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Rule2024-05870

Clean Water Act Hazardous Substance Facility Response Plans

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Published

March 28, 2024

Effective

May 28, 2024

Issuing agencies

Environmental Protection Agency

Abstract

The U.S. Environmental Protection Agency (EPA or Agency) is finalizing facility response plan requirements for worst case discharges of Clean Water Act (CWA) hazardous substances for onshore non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment by discharging a CWA hazardous substance into or on the navigable waters, adjoining shorelines, or exclusive economic zone.

Full Text

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[Federal Register Volume 89, Number 61 (Thursday, March 28, 2024)]
[Rules and Regulations]
[Pages 21924-21967]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-05870]

[[Page 21923]]

Vol. 89

Thursday,

No. 61

March 28, 2024

Part III

Environmental Protection Agency

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40 CFR Parts 118 and 300

Clean Water Act Hazardous Substance Facility Response Plans; Final Rule

Federal Register / Vol. 89 , No. 61 / Thursday, March 28, 2024 /
Rules and Regulations

[[Page 21924]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 118 and 300

[EPA-HQ-OLEM-2021-0585; FRL-7881-01-OLEM]
RIN 2050-AH17

Clean Water Act Hazardous Substance Facility Response Plans

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or Agency) is
finalizing facility response plan requirements for worst case
discharges of Clean Water Act (CWA) hazardous substances for onshore
non-transportation-related facilities that could reasonably be expected
to cause substantial harm to the environment by discharging a CWA
hazardous substance into or on the navigable waters, adjoining
shorelines, or exclusive economic zone.

DATES: This final rule is effective on May 28, 2024.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2021-0585. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Rebecca Broussard, Office of Emergency
Management, Mail Code 5104A, Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-
564-6706; email: <a href="/cdn-cgi/l/email-protection#f597879a808686948791db87909790969694b5908594db929a83"><span class="__cf_email__" data-cfemail="c9abbba6bcbabaa8bbade7bbacabacaaaaa889acb9a8e7aea6bf">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the incremental costs and benefits of this action?
E. List of Abbreviations and Acronyms
II. Background
A. Statutory Authority and Delegation of Authority
1. Statutory Requirements
2. Delegation of Authority
B. Litigation
C. Proposed Rule
III. This Action
A. General Comments
B. Costs and Benefits of Various Regulatory Provisions
C. Background Analyses
1. CWA Hazardous Substance Discharge History and Impacts
Analysis
2. Analysis of Existing Programs/Technical Background Document
D. Rule Provisions
1. Definitions
2. Applicability
3. General Requirements
4. Regional Administrator Determination of Substantial Harm and
Significant and Substantial Harm
5. Appeals
6. Petitions
7. Exceptions and Exemptions
8. Mixtures
9. Worst Case Discharge Calculations
10. Facility Response Plan Requirements
11. Substantial Harm Certification Form
12. Confidential Business Information (CBI)
E. Additional Considerations
1. Climate Change
2. Communities With Environmental Justice Concerns
3. Facility Density
F. Consistency With the NCP
IV. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review;
and Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

A list of entities with facilities that could be affected by
requirements established under CWA section 311(j)(5) is provided in
Table 1:

Table 1--Entities Potentially Affected by the Final Rule
------------------------------------------------------------------------
NAICS 3 NAICS description
------------------------------------------------------------------------
111........................... Crop Production.
112........................... Animal Production and Aquaculture.
115........................... Support Activities for Agriculture and
Forestry.
211........................... Oil and Gas Extraction.
212........................... Mining (except Oil and Gas).
213........................... Support Activities for Mining.
221........................... Utilities.
236........................... Construction of Buildings.
237........................... Heavy and Civil Engineering
Construction.
238........................... Specialty Trade Contractors.
311........................... Food Manufacturing.
312........................... Beverage and Tobacco Product
Manufacturing.
313........................... Textile Mills.
314........................... Textile Product Mills.
321........................... Wood Product Manufacturing.
322........................... Paper Manufacturing.
323........................... Printing and Related Support Activities.
324........................... Petroleum and Coal Products
Manufacturing.
325........................... Chemical Manufacturing.
326........................... Plastics and Rubber Products
Manufacturing.
327........................... Nonmetallic Mineral Product
Manufacturing.

[[Page 21925]]

331........................... Primary Metal Manufacturing.
332........................... Fabricated Metal Product Manufacturing.
333........................... Machinery Manufacturing.
334........................... Computer and Electronic Product
Manufacturing.
335........................... Electrical Equipment, Appliance, and
Component Manufacturing.
336........................... Transportation Equipment Manufacturing.
339........................... Miscellaneous Manufacturing.
423........................... Merchant Wholesalers, Durable Goods.
424........................... Merchant Wholesalers, Nondurable Goods.
441........................... Motor Vehicle and Parts Dealers.
444........................... Building Material and Garden Equipment
and Supplies Dealers.
447........................... Gasoline Stations.
453........................... Miscellaneous Store Retailers.
481........................... Air Transportation.
486........................... Rail Transportation.
488........................... Support Activities for Transportation.
493........................... Warehousing and Storage.
511........................... Publishing Industries (except Internet).
518........................... Data Processing, Hosting, and Related
Services.
522........................... Credit Intermediation and Related
Activities.
531........................... Real Estate.
541........................... Professional, Scientific, and Technical
Services.
561........................... Administrative and Support Services.
562........................... Waste Management and Remediation
Services.
611........................... Educational Services.
622........................... Hospitals.
624........................... Social Assistance.
712........................... Museums, Historical Sites, and Similar
Institutions.
713........................... Amusement, Gambling, and Recreation
Industries.
811........................... Repair and Maintenance.
812........................... Personal and Laundry Services.
921........................... Executive, Legislative, and Other
General Government Support.
924........................... Administration of Environmental Quality
Programs.
926........................... Administration of Economic Programs.
928........................... National Security and International
Affairs.
------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provides a
guide for readers regarding affected entities likely to be regulated by
this action. This table includes the types of entities that EPA is
aware could potentially be regulated by this action. Other types of
entities not included in the table could also be regulated. To
determine whether your entity is regulated by this action, you should
carefully examine the applicability criteria found in Sec. 118.3. If
you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.

B. What action is the Agency taking?

EPA is finalizing new requirements for Facility Response Plans
(FRPs) for worst case discharges of CWA hazardous substances from
onshore non-transportation related facilities (hereafter, covered
facilities or facility) that, because of their location, could
reasonably be expected to cause substantial harm to the environment by
discharging into or on the navigable waters, adjoining shorelines, or
exclusive economic zone.

C. What is the Agency's authority for taking this action?

This final rule is authorized by section 311(j)(5) and 501(a) of
the CWA, (33 U.S.C. 1321(j)(5), 1361(a)).

D. What are the incremental costs and benefits of this action?

EPA estimated the total incremental costs of the final action by
combining the per-covered facility estimates of compliance costs with
the estimate of the affected covered facility universe. EPA estimated
the annualized cost of the final rule over a 20-year analysis period,
using three percent and seven percent discount rates, as presented in
Table 2.

Table 2--Total Incremental Compliance Cost of the Final Action, Annualized
[2022$]
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Annualized cost, Annualized cost,
Present value, 7% 7% Present value, 3% 3%
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Facility Cost................... $1,120,290,646 $105,747,512 $1,641,867,861 $110,359,310
Agency Cost..................... 70,880,205 6,690,590 101,561,496 6,826,528
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Total Cost.................. 1,191,170,851 112,438,102 1,743,429,357 117,185,838
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[[Page 21926]]

The final action is expected to have a mitigating effect on CWA
hazardous substance worst case discharges because the rule provisions
address the categories of damages and adverse impacts expected from
this type of discharge. The planning activities associated with
developing FRPs are likely to mitigate several damage categories
through pre-discharge planning and identification of potential
receptors and applicable endpoints; the emergency response information
provision; descriptions of discharge detection systems, hazard
evaluation, and training programs; and drills and exercises.
Quantifying the costs and benefits of this action is challenging due to
a lack of data around the likelihood of a worst case discharge in the
baseline, the universe of potentially regulated facilities, costs of
program elements, historical discharges, baseline compliance behavior,
and the degree to which the final action will mitigate the probability
and severity of worst case discharges. Despite the numerous
uncertainties associated with estimating the benefits of the final
action quantitatively, information on previous worst case discharges of
a similar nature suggests that the benefits of mitigating these
discharges could be large relative to the final rule's estimated cost.
Chapters 5 and 6 of the final rule Regulatory Impact Analysis (RIA)
developed for this action provide additional details on costs and
benefits, respectively. This analysis, ``Regulatory Impact Analysis:
Clean Water Act Hazardous Substance Facility Response Plans,'' is
available in the docket.

E. List of Abbreviations and Acronyms

ACP Area Contingency Plan
ANFO ammonium nitrate-fuel oil
APA Administrative Procedures Act
BLS United States Bureau of Labor Statistics
CAA Clean Air Act
CAS Chemical Abstracts Service
CBI Confidential Business Information
CFR Code of Federal Regulations
CERCLA Comprehensive Environmental Response, Compensation, and
Liability Act of 1980
CFATS Chemical Facility Anti-Terrorism Standards
CRA Congressional Review Act
CWA Clean Water Act
DHS United States Department of Homeland Security
DOI United States Department of the Interior
E.O. Executive Order
EPA United States Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
ERAP Emergency Response Action Plan
FBI Federal Bureau of Investigation
FR Federal Register
FRP Facility Response Plan
FRS Facility Registry Service
FWSE Fish, Wildlife, and Sensitive Environments
GIUE Government-Initiated Unannounced Exercises
HAZWOPER Hazardous Waste Operations and Emergency Response
ICP Integrated Contingency Plan
ICR Information Collection Request
IPAWS Integrated Public Alert & Warning System
LC50 Lethal Concentration 50%
LEPC Local Emergency Planning Committee
MCL Maximum Contaminant Level
MOU Memorandum of Understanding
MTR Marine Transportation-Related
NAICS North American Industry Classification System
NCEI National Centers for Environmental Information
NCP National Contingency Plan
NOAA National Oceanic and Atmospheric Administration
NPDES National Pollutant Discharge Elimination System
NPDWR National Primary Drinking Water Regulations
NPRM Notice of Proposed Rulemaking
NRC National Response Center
NSFCC National Strike Force Coordination Center
O&M Operations and Maintenance
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
OSC On-Scene Coordinator
OSHA Occupational Safety and Health Administration
POTW Publicly Owned Treatment Works
PRA Paperwork Reduction Act
PREP Preparedness for Response Exercise Program
PSM Process Safety Management
PWS Public Water System
QI Qualified Individual
RA Regional Administrator
RCP Regional Contingency Plan
RCRA Resource Conservation and Recovery Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RMP Risk Management Plan
RQ Reportable Quantity
SDWA Safe Drinking Water Act
SDWR State Drinking Water Regulations
SERC State Emergency Response Commission
SPCC Spill Prevention Control and Countermeasure
SRO Spill Response Organization
SWPA Source Water Protection Area
TBD Technical Background Document
TEPC Tribal Emergency Planning Committee
TRI Toxics Release Inventory
TSDF Treatment, Storage, and Disposal Facility
U.S.C. United States Code
UMRA Unfunded Mandates Reform Act
USCG United States Coast Guard
USDOT United States Department of Transportation
UST Underground Storage Tank
WOTUS Waters of the United States
ZOC Zone of Concern

II. Background

A. Statutory Authority and Delegation of Authority

1. Statutory Requirements
The CWA, as amended by the Oil Pollution Act of 1990 (33 U.S.C.
2701 et seq; hereafter, ``OPA 90''), states, ``The President shall
issue regulations which require an owner or operator of a tank vessel
or facility . . . to prepare and submit to the President a plan for
responding, to the maximum extent practicable, to a worst case
discharge, and to a substantial threat of such a discharge, of oil or a
hazardous substance'' (33 U.S.C. 1321(j)(5)(A)(i)). The statute defines
a covered facility as ``. . . [an] onshore facility that, because of
its location, could reasonably be expected to cause substantial harm to
the environment by discharging into or on the navigable waters,
adjoining shorelines, or the exclusive economic zone'' (33 U.S.C.
1321(j)(5)(C)(iv)). As described below, the Administrator has been
delegated this authority under Executive Order (E.O.) 12777 (56 FR
54757, October 18, 1991). The Administrator also has authority under
CWA section 501 to prescribe such regulations as are necessary to carry
out provisions of the Act.
In 33 U.S.C. 1321(j)(5)(D), the CWA states that these response
plans must:
(1) Be consistent with the National Contingency Plan (NCP) and Area
Contingency Plans (ACP);
(2) Identify the qualified individual (QI) having full authority to
implement removal actions, and require immediate communications between
that individual and the appropriate Federal official and the persons
providing personnel and equipment;
(3) Identify, and ensure by contract or other means approved by the
President the availability of private personnel and equipment necessary
to remove to the maximum extent practicable a worst case discharge
(including a discharge resulting from fire or explosion), and to
mitigate or prevent a substantial threat of such a discharge;
(4) Describe the training, equipment testing, periodic unannounced
drills, and response actions of persons on the vessel or at the
facility, to be carried out under the plan to ensure the safety of the
facility and to mitigate or prevent the discharge, or the substantial
threat of a discharge;
(5) Be updated periodically; and
(6) Be resubmitted for approval of each significant change.
EPA's responsibilities pursuant to the CWA (33 U.S.C.
1321(j)(5)(E)) for this action for facilities that could

[[Page 21927]]

reasonably be expected to cause significant and substantial harm to the
environment by discharging into or on the navigable waters are to:
(1) Promptly review plans;
(2) Require amendments when plans do not meet the statutory
requirements;
(3) Approve plans; and
(4) Review each plan periodically.
Additionally, EPA may require inspection of containment booms,
skimmers, vessels, and other major equipment used to remove discharges
(33 U.S.C. 1321(j)(6)(A)). EPA also has the authority to conduct
unannounced drills of removal capability in areas for which ACPs are
required and under relevant FRPs (33 U.S.C. 1321(j)(7)).
EPA intends that the provisions of the rule be severable. In the
event that any individual provision or part of the rule is invalidated,
EPA intends that this would not render the entire rule invalid, and
that any individual provisions that can continue to operate will be
left in place. The rule contains many discrete provisions that operate
independent of each other. For example, the screening criteria are
designed to provide an initial, relatively bright line for identifying
covered facilities that do not need to engage in any further
applicability determination. That is independent of the criteria that
actually determine whether a covered facility could cause substantial
harm to the environment from a worst case discharge into or on the
navigable waters or a conveyance to navigable waters. Thus, the rule
would still satisfy the statutory requirements if the one-half mile
distance screening criterion were struck down. Similarly, the four
substantial harm criteria are independent of one another, and covered
facility owners and operators could still conduct a substantial harm
analysis to determine whether an FRP is required absent any one
substantial harm criterion. Likewise, if the provisions regarding
Regional Administrator (RA) determinations were struck down, the rule
would still meet statutory requirements and fulfill its purpose.
Furthermore, while there are many different components of an FRP, they
serve different functions and are independent requirements.
2. Delegation of Authority
Under E.O. 12777 (56 FR 54757, October 18, 1991), EPA was delegated
the authority to regulate non-transportation-related onshore facilities
and non-transportation-related offshore facilities landward of the
coastline. The U.S. Department of Transportation (USDOT) was the
delegated authority for transportation-related facilities and the U.S.
Coast Guard (USCG) was delegated the authority for tank vessels and
marine transportation-related (MTR) facilities. Section 2(i) of E.O.
12777 allows for further delegation between the agencies as later
occurred in a February 3, 1994 memorandum of understanding (MOU)
between EPA, the U.S. Department of the Interior (DOI), and USDOT (59
FR 9494, February 28, 1994). DOI redelegated 33 U.S.C. 1321(j)(5)
authority to regulate non-transportation-related offshore facilities
landward of the coastline to EPA. This MOU applies to both oil and CWA
hazardous substance facilities.
EPA has delegated authority over offshore facilities landward of
the coastline as per 40 CFR part 112 Appendix B. However, this final
action is limited to non-transportation-related onshore facilities as
defined in the consent decree described below.

B. Litigation

On March 21, 2019, the Natural Resources Defense Council, on behalf
of Clean Water Action, and the Environmental Justice Health Alliance
for Chemical Policy Reform filed suit in the United States District
Court for the Southern District of New York alleging violations of the
CWA section 311(j)(5)(A)(i) and the Administrative Procedures Act
(APA).\1\ The first claim alleged that EPA failed to issue
``regulations mandated by the [CWA] requiring non-transportation-
related substantial-harm facilities to plan, prevent, mitigate and
respond to worst case spills of hazardous substances . . . [which]
constitutes a failure to perform a non-discretionary duty or act in
violation of the [CWA].'' The second claim alleged, ``EPA's failure to
issue these regulations constitute[d] Agency action unlawfully withheld
contrary to and in violation of the [APA] and the [CWA].'' The
plaintiffs requested an order from the Court to compel EPA to
promulgate CWA Hazardous Substance Worst Case Discharge Planning
Regulations. Following EPA's Answer, filed on June 4, 2019, Plaintiffs
and EPA entered discussions regarding a potential resolution of the
lawsuit.
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\1\ Complaint for Declaratory and Injunctive Relief,
Environmental Justice Health Alliance for Chemical Policy Reform v.
EPA, No. 1-19-cv-02516 (S.D.N.Y., filed March 21, 2019).
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The plaintiffs and EPA entered into a consent decree on March 12,
2020, which resolved the claims of the suit.\2\ The consent decree
requires that within two years (24 months) of entry into the consent
decree, i.e., by March 12, 2022, EPA sign a notice of proposed
rulemaking pertaining to the issuance of the CWA Hazardous Substance
Worst Case Discharge Planning Regulations for non-transportation-
related onshore facilities. The consent decree further requires EPA to
sign a notice taking final action within an additional two and half
years, or 30 months after publication of the proposal. On March 28,
2022 (87 FR 17890), EPA proposed to require planning for worst case
discharges of CWA hazardous substances for onshore non-transportation-
related facilities. This final action satisfies EPA's second obligation
under the consent decree.
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\2\ Envtl. Justice Health All. for Chem. Reform v. U.S. EPA,
Case1:19-cv-02516-VM, Document 32 (S.D.N.Y., filed March 12, 2020).
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C. Proposed Rule

On March 28, 2022, EPA proposed to require planning for worst case
discharges of CWA hazardous substances for onshore non-transportation-
related facilities that could reasonably be expected to cause
substantial harm to the environment by discharging CWA hazardous
substances into or on the navigable waters, adjoining shorelines, or
exclusive economic zone, with a 60-day comment period, which was later
extended to 120 days. EPA proposed that FRPs must (1) be consistent
with the NCP and ACPs; (2) identify the QI having full authority to
implement response actions and require immediate communications between
that individual and the appropriate Federal official and the persons
providing personnel and equipment, with a description of duties; (3)
identify, and ensure by contract or other approved means, the
availability of private personnel and equipment necessary to respond to
the maximum extent practicable to a worst case discharge of CWA
hazardous substances (including a discharge resulting from fire or
explosion), and to mitigate or prevent a substantial threat of such a
discharge; (4) describe the training, equipment testing, periodic
unannounced drills, and response actions of persons at the covered
facility; (5) be reviewed and updated periodically and resubmitted to
the RA for approval of each significant change.
In developing CWA hazardous substance worst case discharge plan
components, EPA considered existing requirements for the Oil Pollution
Prevention FRP regulation under 40 CFR 112.20 given that these
requirements have been in place since 1994 and were promulgated under
the same statutory authority as the proposal. Notwithstanding the
differences between CWA hazardous substances and oil, EPA understands
that, where possible, there is value to having a high

[[Page 21928]]

level of consistency between similar regulatory programs. Even if this
rule applies to a different set of regulated entities, there will be
synergy among local responders, States, and others, such as spill
response organizations (SROs) and consultants, that have experience
with worst case discharge planning. Invariably, the experience of
implementing and complying with the Oil Pollution Prevention FRP
regulation will make this rule easier to comply with, understand, and
implement. Additionally, EPA examined elements under the Risk
Management Plan (RMP) regulation under 40 CFR part 68, which implements
section 112(r)(7) of the Clean Air Act (CAA) and requires facilities
that use regulated substances to develop an RMP. Specific CWA hazardous
substance FRP components in the proposed rule included: facility
information, owner or operator information, hazard evaluation,
reportable discharge history, response personnel and equipment,
evidence of contracts or other approved means to ensure the
availability of personnel and equipment, notification lists, discharge
information, personnel roles and responsibilities, response equipment
information, evacuation plans, discharge detection systems, response
actions, disposal plans, containment measures, training and exercise
procedures, self-inspection, and coordination activities.
Eight commenters requested a 60-day extension to submit comments.
In response, EPA extended the original comment period an additional 60
days, to July 26, 2022. EPA received a total of 220 unique comments: 59
organization comments from 53 unique organizations, 158 private
citizens, and 3 mass mailer campaigns representing a total of 29,860
signatories.

III. This Action

After issuing its proposal, EPA received comments on numerous
issues relating to:
1. General comments;
2. Costs and benefits of various regulatory provisions;
3. Background analyses; and
4. Proposed provisions.
EPA has structured this document to address these issues and
discuss each proposal element, related significant comments, and how
any changes EPA considered are reflected in the final rule.

A. General Comments

As discussed above in Section II.A.1 of this preamble, Congress
directed EPA to issue regulations to address worst case discharges for
both oil and CWA hazardous substances, providing clear and unambiguous
authority for this action. While some commenters asserted that the
Agency has the authority to decide not to proceed with the rulemaking
and questioned the data analysis supporting this action, including the
breadth of the potentially regulated community, EPA has judged the
underlying data as sufficient to warrant a regulatory program as
detailed in the RIA, available in the docket. While worst case
discharges historically may be rare, that in and of itself is not a
rationale for not planning for a worst case discharge. This is
especially true given trends in natural disasters in the US, with more
than $1 trillion in damage from 2016-2022,\3\ illustrating that
planning for severe weather events is critical as they become more
common and intense and reflecting the long term challenges posed by
climate change.\4\ Additionally, the requirements follow the statutory
directives set forth in 33 U.S.C. 1321(j)(5)(D). Indeed, OPA 90 is
clear in directing the President to promulgate regulations for worst
case discharges of CWA hazardous substances, regardless of the number
of facilities that may be ultimately regulated. EPA is following the
same approach as the Oil Pollution Prevention FRP regulation, which was
promulgated under the same statutory authority, and as such disagrees
with commenters who argued that the proposal represents administrative
overreach. Worst case discharge planning provisions will appropriately
place response planning responsibilities on covered facility owners and
operators, as is clearly the Congressional intent, as per the OPA 90
Conference Report, while enumerating EPA's role in oversight and
enforcement.
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\3\ National Oceanic and Atmospheric Administration (NOAA)
National Centers for Environmental Information (NCEI). (2023). U.S.
Billion-Dollar Weather and Climate Disasters. <a href="https://www.ncei.noaa.gov/access/billions/">https://www.ncei.noaa.gov/access/billions/</a>, DOI: 10.25921/stkw-7w73.
\4\ U.S. Global Change Research Program (USGCRP). (2017).
Climate Science Special Report: Fourth National Climate Assessment,
Volume I, Chapter 7: Precipitation Change in the United States.
<a href="https://science2017.globalchange.gov/chapter/7/">https://science2017.globalchange.gov/chapter/7/</a>.
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EPA notes that in March 2000, USCG published a notice of proposed
rulemaking (NPRM) in the Federal Register entitled ``Marine
Transportation-Related Facility Response Plans for Hazardous
Substances'' (65 FR 17416, March 31, 2000) under the same CWA authority
as this final rule. USCG then withdrew that rulemaking in February 2019
(84 FR 2799). Given that nearly 20 years elapsed between the proposal
and withdrawal, it is unsurprising that USCG found the proposed rule
was no longer appropriate to the current state of spill response in the
chemical industry. USCG also noted that their NPRM may overlap with
existing local and State regulatory schemes as well as current industry
practice. EPA has reviewed USCG's actions, reports, and findings. EPA
did not find sufficient overlap for onshore non-transportation-related
facilities to justify not promulgating this regulation as per Chapter 2
of the Technical Background Document (TBD), available in the docket.
Finally, to commenters who pointed to the no action final rule under
CWA 311(j)(1)(C) (84 FR 46100, October 3, 2019), that rulemaking is
outside the scope of this final rule and the Agency conclusion there
has no bearing here.
EPA disagrees with commenters who asserted they were not adequately
notified as per the APA. The proposal was clear and the comment period
was ample. Indeed, the Agency extended the comment period to 120 days
from 60 days to accommodate commenters who requested additional time
(87 FR 29728, May 16, 2022).
Several commenters noted that the rule does not fully define
``waters of the United States'' (WOTUS) and that this causes the term
``navigable waters'' to be ``very ambiguous.'' The commenters
highlighted a related and, at the time, pending Supreme Court decision
and EPA rulemaking that would ultimately clarify these concerns. These
commenters stressed the importance of holding off from any final
rulemaking until the court decision is issued or navigable waters is
more clearly defined while additional commenters recommended EPA
release a supplementary proposed rule once `WOTUS' and `navigable
waters' are clearly defined.
EPA disagrees with the comment. Following the Supreme Court's May
25, 2023, decision in Sackett v. Environmental Protection Agency, 143
S. Ct. 1322 (2023), the EPA and Department of the Army developed a rule
to amend the final ``Revised Definition of `Waters of the United
States''' rule consistent with Sackett (88 FR 61964, Sept. 8, 2023).
EPA has determined that the rule should cite to the definition in
40 CFR 120.2 to determine whether a particular water is a water of the
United States, as opposed to establishing a separate definition. The
revised definition provides clarity and citing to this definition will
ensure consistency with the Supreme Court's decision in Sackett, as
well as ensuring greater understanding and consistency

[[Page 21929]]

nationwide. Because this definition is also used by other regulatory
programs, it provides the greatest amount of information and experience
regarding its applicability. The Agency disagrees with commenters who
asserted that this definition is prohibitively technical or costly; and
notes that the September 2023 definition, issued following Sackett,
covers fewer waters than the rule that was in place at the time
comments were received. In sum, it is the Agency's position that the
regulated community has sufficient information to determine whether
they are more than one-half mile from navigable waters or a conveyance
to navigable waters such that they are not subject to the rule. Doing
so, as some commenters suggest, could inadvertently inject unintended
ambiguities or questions about applicability, causing more uncertainty,
not less.
Finally, EPA acknowledges concerns raised about the impact of
litigation and court rulings on post-2015 definitions of ``waters of
the United States,'' and a resulting patchwork of definitions across
the country. Needless to say, this is a different rule and while EPA
recognizes that due to ongoing litigation there is variation among
jurisdictions as to which definition of ``waters of the United States''
governs, e.g., using the pre-2015 definition in the SPCC context,
presumably at some point the litigation will be resolved resulting in
national consistency and, in any event, introducing another variation
would do nothing to advance national consistency. To the contrary,
codifying yet another definition would introduce more complexity within
every jurisdiction by requiring regulated entities that need to comply
with different CWA regulations to navigate two different definitions
within that jurisdiction. Thus, even if currently there is variation
with respect to which definition (pre- or post-2015) applies in
different jurisdictions, there is merit to having the definition be
consistent for regulated parties within their jurisdiction for purposes
of the CWA (see Operative Definition of Waters of the United States
chart at: <a href="https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update">https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update</a>).

B. Costs and Benefits of Various Regulatory Provisions

EPA estimated the total costs of the final action by combining the
per-covered facility estimates with the estimate of the affected
facility universe. To provide information about the scale of costs that
covered facilities will incur, EPA compiled estimates of unit
compliance costs for each of the program elements in the final action.
EPA developed unit burden estimates for individual elements of the
response plan on a first- and subsequent-year basis. EPA also estimated
the extent of baseline compliance for facilities subject to the rule
due to the overlap in facilities and program elements in the existing
Oil Pollution Prevention FRP, RMP, and Resource Conservation and
Recovery Act (RCRA) regulatory requirements, as these three regulations
have the most significant crossover. EPA estimated an average
compliance cost per covered facility after accounting for baseline
compliance with existing regulations by multiplying labor rates and
unit burdens.
EPA has prepared and posted in the docket an RIA of the potential
costs and benefits associated with this action. As presented in Chapter
5 of that analysis, EPA estimated the final rule will result in total
annualized costs of 112.4 to 117.2 million per year, at 7 percent and 3
percent discount rates, respectively. This cost includes 92.0-93.5
million for existing covered facilities to comply, 13.7-16.9 million
for projected new covered facilities to comply in the future, and 6.7-
6.8 million for the Agency to administer the regulations. Table 3 and
Table 4 present the estimated costs of the final rule by FRP program
component for covered facilities and the Agency, respectively. See
Chapter 6 of the final rule RIA for additional details regarding
benefits of the final action.

Table 3--Total Cost of the Final Action, Facilities, Annualized (2022)
----------------------------------------------------------------------------------------------------------------
Annualized cost, Annualized cost,
Response plan requirements Present value, 7% 7% Present value, 3% 3%
----------------------------------------------------------------------------------------------------------------
Facilities completing the substantial harm certification only
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............ $2,840,473 $268,121 $2,950,783 $198,339
Substantial Harm Certification 51,660,843 4,876,418 57,916,345 3,892,888
Form...........................
-------------------------------------------------------------------------------
Subtotal, Substantial Harm 54,501,316 5,144,539 60,867,128 4,091,227
Certification Form only
facilities.................
----------------------------------------------------------------------------------------------------------------
Facilities developing FRPs
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............ 2,120,519 200,162 2,202,869 148,067
Substantial Harm Determination.. 38,419,664 3,626,544 43,071,820 2,895,103
Facility and Owner Information.. 1,234,121 116,492 1,383,558 92,997
Emergency Response.............. 501,508,344 47,338,840 730,536,570 49,103,533
Hazard Evaluation............... 16,929,190 1,597,996 18,979,110 1,275,694
Discharge Detection............. 1,456,263 137,461 1,632,598 109,736
Response Actions, Disposal, and 7,407,466 699,212 8,304,421 558,188
Containment....................
Drills & Exercises.............. 253,557,291 23,934,015 376,924,100 25,335,220
LEPC/TEPC Coordination.......... 46,538,057 4,392,863 69,523,895 4,673,098
Training........................ 3,597,780 339,605 4,670,568 313,936
FRP Amendments.................. 38,554,948 3,639,314 59,705,771 4,013,166
ERAP............................ 9,234,533 871,675 13,347,586 897,167
-------------------------------------------------------------------------------
Subtotal, FRP facilities.... 920,558,174 86,894,179 1,330,282,867 89,415,904
-------------------------------------------------------------------------------
Subtotal, Existing 975,059,491 92,038,718 1,391,149,995 93,507,131
Facilities.................
-------------------------------------------------------------------------------
Subtotal, Projected New 145,231,155 13,708,794 250,717,866 16,852,179
Facilities.................
-------------------------------------------------------------------------------

[[Page 21930]]

Grand Total, Facilities. 1,120,290,646 105,747,512 1,641,867,861 110,359,310
----------------------------------------------------------------------------------------------------------------

Table 4--Total Cost of the Final Action, the Agency, Annualized (2022)
------------------------------------------------------------------------
Annualized cost, Annualized cost,
Agency cost 7% 3%
------------------------------------------------------------------------
Review Existing Facility Plans...... $1,359,732 $1,126,250
Review New Facility Plans........... 345,366 389,990
Government-Initiated Unannounced 3,846,625 4,141,097
Exercises (GIUEs) and Inspections..
FRP Amendments...................... 289,529 311,693
IT/Data Management and Integration.. 849,339 857,498
-----------------------------------
Total........................... 6,690,590 6,826,528
------------------------------------------------------------------------

The benefits of the final action are assessed qualitatively and
include a wide diversity of potential benefit mechanisms, such as
reductions in impacts to public water systems (PWS) and waterways used
for recreational and commercial purposes; impacts to the ecosystem and
environment; impacts to human health; and other socioeconomic impacts
driven by business disruption, evacuations, and other elements of
emergency response. These benefits include prevention of economic loss
in value of homes near discharges \5\ and the economic losses to
communities affected by a discharge. See Chapter 6 of the final rule
RIA for additional details regarding benefits of the final action.
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\5\ Burton, K., Maas, A., and Lee, K. (2022). A Case Study in
Contamination: Persistent Home Value Losses Associated with the Elk
River Spill. <a href="https://jareonline.org/articles/a-case-study-in-contamination-persistent-home-value-losses-associated-with-the-elk-river-spill/">https://jareonline.org/articles/a-case-study-in-contamination-persistent-home-value-losses-associated-with-the-elk-river-spill/</a>).
---------------------------------------------------------------------------

The Agency disagrees with commenters who assert that EPA has
underestimated costs. EPA recognizes commenters' concern that covered
facility owners or operators will need to spend some resources to
determine whether they meet the initial screening criteria, and for
those that do, potentially significantly more resources and time
determining whether they meet any of the substantial harm criteria,
preparing an FRP including in-depth hazard evaluations, and potentially
revising the FRP. The Agency has accounted for these costs, as well as
all other aspects of the regulatory program in Chapter 5 of the final
RIA.
The Agency proposed that if the maximum capacity onsite exceeds
10,000x the reportable quantity (RQ), a covered facility meets the
threshold quantity screening criterion. While EPA proposed a 10,000x RQ
multiplier, the Agency has determined that a 1,000x RQ multiplier will
more appropriately screen for covered facilities that could cause
substantial harm to the environment from a worst case discharge of a
CWA hazardous substance, to fully address the range of potential
releases that merit worst case discharge planning and response. This
results in substantially more covered facilities having to determine
whether they are subject to the planning requirements of the rule,
i.e., meet the initial screening criteria in the first instance, and
analyzing the substantial harm criteria. The Agency also revised the
economic analysis for the final rule, estimating annualized costs for
regulated facilities of approximately 117 million per year, as
documented in section 5.5 the final RIA.
EPA estimated the total costs of the final action by combining per-
facility estimates with the estimate of the affected facility universe.
To provide information about the scale of costs that covered facilities
would incur, EPA compiled estimates of unit compliance costs for each
of the program elements in the final action. EPA developed unit burden
estimates for individual elements of the response plan on a first- and
subsequent-year basis. EPA calculated the annualized total cost to
regulated facilities of the final action over a 20-year analysis
period, using the three percent and seven percent discount rates.
The Agency also notes that the majority of labor burden for
regulated facility staff are estimated using labor rates of $93.50 and
$70.84, based on U.S. Bureau of Labor Statistics (BLS) wage data. The
Agency also recognizes the role of consultants in facility planning
efforts. This cost is accounted for as an annually recurring cost of
$18,471 per facility for contractor support.

C. Background Analyses

1. CWA Hazardous Substance Discharge History And Impacts Analysis
EPA maintains that it has sufficient data to support the need for
this final rule. As detailed in the final rule RIA, EPA analyzed
National Response Center (NRC) data on CWA hazardous substances
discharges to water. 40 CFR 117.21 requires immediate notification to
the NRC once the person in charge of a vessel or an offshore or onshore
facility has knowledge of a discharge of a CWA hazardous substance from
the facility in quantities equal to or exceeding its assigned RQ in any
24-hour period. NRC data are generated by notifications received
immediately following a discharge and often lack complete information
on chemicals and quantities discharged, incident and response details,
impacts, and locations. While EPA's analysis of NRC data shows a
decline in the average number of CWA hazardous substance discharges
from 2010 to 2019, past discharge history is not a guarantee of future
outcomes, nor does the number of discharges definitively indicate the
level of impact of those discharges. Thus, it's possible that a smaller
number of higher consequence discharges could cause more adverse
impacts due to the circumstances of the incident. Moreover, NRC data
are a starting point for further analysis to inform CWA hazardous
substance worst case discharge occurrences. Based on past experiences
of oil and chemical spills, EPA has observed data gaps with NRC
reports, but continues to improve oil and CWA hazardous substance spill
data as incidents progress through regional and EPA Emergency Operation
Center reporting. Furthermore, NRC

[[Page 21931]]

data is the most complete dataset available, and it does show that CWA
hazardous substance discharges to water continue to occur. Accordingly,
EPA has determined that worst case discharge planning regulations for
CWA hazardous substances are critical to protect the environment, keep
our waterways safe and clean, and protect human health.
While 10 CWA hazardous substances account for most of the CWA
hazardous substance discharges reported to the NRC, as detailed in
section 3.1 of the RIA, these data often lack the names and quantities
of chemicals discharged, and do not reflect future probabilities of
release. Also, the frequency of reported releases does not reflect the
impacts that could occur with a worst case discharge. While some
commenters suggested narrowing the number of CWA hazardous substances
covered by the rule, changing the list of CWA hazardous substances in
40 CFR part 116 is outside the scope of this action.
Moreover, EPA has no reliable information to support the commenter
claim that the industry is already devoting the necessary resources and
capabilities to prevent and respond to discharges that may reach
navigable waters or a conveyance to navigable waters. And even if there
is any merit to the commenter's assertion, that would generally serve
to change the baseline, mitigating the impact of this rule, and not a
reason to have no rule or even the playing field between those that are
responsibly planning for such events and those that are not. In any
case, EPA intends to work collaboratively with industry to ensure
robust response plans for CWA hazardous substance worst case discharges
into or on navigable waters or a conveyance to navigable waters that
could cause substantial harm to the environment. Additionally, while
this final regulation does not address the causes of worst case
discharges, it does require comprehensive response planning regardless
of how a CWA hazardous substance discharge occurs. By focusing on
covered facilities within one half mile to navigable waters or a
conveyance to navigable waters and above the threshold quantity that
also meet one or more proposed substantial harm criteria, the final
regulation will appropriately ensure robust planning for covered
facilities that pose the highest risk of causing substantial harm to
the environment.
2. Analysis of Existing Programs/Technical Background Document
In sum, EPA's analysis found few Federal programs that
comprehensively cover all the CWA section 311(j)(5)(D) requirements for
all CWA hazardous substances. While CWA hazardous substance covered
facilities subject to the Oil Pollution Prevention Program FRP
requirements or RMP regulations, among others, have some overlap for
the required program elements, those programs do not cover all
requirements in CWA section 311(j)(5)(D) for CWA hazardous substances.
EPA also recognizes commenter feedback that industry guidance and
voluntary programs are valuable resources for ensuring safe, protective
practices. However, those practices are not enforceable nor required
and do not fulfill the statutory requirements of this action. In
addition, EPA acknowledges State programs may be comprehensive for CWA
hazardous substance worst case discharge planning. The Agency agrees
with commenters who stated that duplicative requirements should be
avoided and refers the commenters to Chapter 2 of the TBD for more
information and analysis. As such, a regulated facility owner or
operator may augment an existing plan with the requirements of this
rule or use an Integrated Contingency Plan (ICP) approach, such as One
Plan, which will reduce the administrative burden. However, an owner or
operator may not assume they are compliant with this regulation due to
their compliance under other programs (e.g., the Oil Pollution
Prevention FRP regulation, RMP regulation). See the Response to
Comments document for specific responses to each program, in the docket
for this action. Please see section III.D.7 of this Preamble for a
discussion of exemptions.

D. Rule Provisions

1. Definitions
Some commenters requested that EPA revise its definitions of key
terms. EPA has considered these comments carefully as is committed to
providing clarity throughout this action.
i. Adverse Weather
EPA considered comments advocating that the definition of ``adverse
weather'' should be revised. To the extent that commenters are
concerned with ``ambiguity,'' it seems largely because they are
interested in narrowing the definition to a limited number of clearly
delineated events. However, the definition is intentionally broad and
meant to capture the wide range of potential weather changes and
conditions due to the nation's varying regional weather patterns.
Prescribing specific types of events or adverse weather conditions is
unrealistic and does not represent the myriad challenges facing our
nation due to climate change. EPA also disagrees with commenters who
asserted that the breadth of this definition will cause uneven
implementation of the final rule; rather, it will allow covered
facility owners or operators and local emergency planners to consider
the full range of potential adverse weather events, taking into
consideration varying local and regional weather patterns (current and
future), that could impact the covered facility and affect worst case
discharge response planning as well as changing conditions and emerging
threats such as the widening impact of extreme heat. For example, while
specific events, such as ``20-year storm conditions'' may be useful as
one type of climatological condition to consider in one region, EPA
agrees that it is equally important to consider effects of, for
example, increased drought or lack of rain activity in other regions
and the effects on a potential worst case discharges of CWA hazardous
substances. As such, EPA has added language describing some types of
climate change impacts that may need to be considered when accounting
for adverse weather conditions during a worst case discharge of CWA
hazardous substances into or on the navigable waters or a conveyance to
navigable water, such as the increased frequency and intensity of
adverse weather, temperature fluctuations, rising seas, storm surges,
inland and coastal flooding, drought, wildfires, and permafrost melt in
northern areas.
EPA chose to define ``adverse weather'' in this final rule
differently from the Oil Pollution Prevention regulation definition of
adverse weather found in 40 CFR 112.2 due to the variance in
physicochemical properties among oil and the 296 CWA hazardous
substances as well as how different types of adverse weather may impact
the analysis of appropriate response actions for those myriad CWA
hazardous substances. This is another reason why a broad definition of
``adverse weather'' is appropriate for this rule.
EPA recognizes that, given the increased probability of extreme
weather events, historic incidents are becoming less of a predictor of
future effects. Compliance assistance will be available to aid owners
or operators in determining the appropriate types and severity of
weather events, sea level rise, drought, flooding, heat, wildfire, and
subsidence risk, etc., to consider for their worst case discharge in
adverse

[[Page 21932]]

weather, as well as references and data sources.
ii. Container
While several commenters noted that the definition of ``container''
is not consistent with the Oil Pollution Prevention regulation in 40
CFR 112.2 and that there is no corresponding definition in this action
for ``bulk storage container.'' The primary reason for this is because
the two regulations do not cover the same substances. Additionally,
while the Oil Pollution Prevention regulation has determined that a 55-
gallon de minimis container size is appropriate, as noted by
commenters, this is not the case for CWA hazardous substances. To the
contrary, certain CWA hazardous substances have been determined that
they ``may be harmful'' at quantities as low as one pound. Accordingly,
a 55-gallon container size would be an inappropriate de minimis amount
for all substances because smaller containers may contain hazardous
levels of substances that could cause substantial harm in the event of
a worst case discharge, especially when aggregated. Additionally, CWA
hazardous substances are stored in a wide variety of containers, and
CWA hazardous substances are typically measured and regulated \6\ by
mass (e.g., pounds), not volume (gallons), underscoring why a 55-gallon
de minimis container standard would be unsuitable. Because of the
variation of the chemical properties, including toxicity, of CWA
hazardous substances, EPA has no basis for setting a de minimis
container size at 55-gallons or any other level, including the RQ
level, as suggested by some commenters. Furthermore, the OPA Conference
Report states that ``. . . the selection criteria should not
necessarily omit those smaller facilities that are near major water
supplies or that are near environmentally sensitive areas.'' (H.R. Rep.
No. 101-653, 10lst Cong., 2d Sess., p.151.). Threshold determinations
must consider all CWA hazardous substance present at the covered
facility in the aggregate, but without consideration to container size
or capacity because the maximum quantity onsite may contribute to the
potential harm posed by a covered facility. Finally, two commenters
asked for additional examples of containers. Accordingly, EPA notes
that containers may consist of a rail car or other mobile storage not
under active shipping papers, process vessel, canister, drum, bulk
storage tank, dumpster, tote, or bulk cargo container positioned on
land, among other things. For the reasons enumerated above, EPA is
finalizing the definition of container as proposed.
---------------------------------------------------------------------------

\6\ EPCRA Reporting Rule (40 CFR part 370), RMP regulation (40
CFR part 68), DHS CFATS (6 CFR part 27), OSHA's PSM (29 CFR
1910.119).
---------------------------------------------------------------------------

iii. Conveyance to Navigable Waters
EPA considered whether to include a rule-specific definition for
``conveyance to a navigable waterway.'' EPA is aware that the CWA
definition of ``point source'' at 33 U.S. Code Sec. 1362(14) uses the
term conveyance and includes some examples. However, EPA determined
that cross-referencing that description of conveyance, with its
specific exclusions, would not be appropriate for this rule. In this
rule, conveyances are a critical consideration in a facility's worst
case discharge scenarios because a straight-line analysis may overlook
an opportunity to travel via pipe or open channel that could more
easily enter navigable waters. Indeed, the concern is not particular
types of structures or pathways (and categorizing them) but that a
conveyance to navigable waters can result in a more immediate discharge
to navigable waters. Moreover, while there are some broad categorical
generalizations that can be made about what constitutes a conveyance to
navigable waters, there are factual elements that necessarily make the
determination a case-by-case determination (even if most of the time it
will be straightforward, if not obvious), i.e., where identifying
particular types of conveyances will not suffice or capture the
variations that exist in the real world.
In any case, in terms of a definition, conveyance is meant to have
its normal English language definition and usage. That said, consistent
with having the elements of the initial screen be relatively
straightforward, EPA is clarifying that it considers a conveyance to
navigable waters in the context of this rule to be a means of transport
that provides a direct pathway to navigable waters. In the majority of
cases, a means of transport will be discernible, confined, and
discrete, and thus will present a straightforward factual scenario.
Some examples are a storm drain, pipe, or channel that discharge
directly into navigable waters.
A few commenters had categorical questions about types of
structures or features such as a dry gulch, a wellhead, subsurface
water or even groundwater. While EPA could make some generalization
that it does or does not expect that any of these examples would serve
as a means of transport, the reality is there will inevitably be
situations where it will depend on the specific facts to determine
whether a given structure or feature (no matter what it is called)
serves as a means of transport to navigable waters. Finally, given the
purpose of the rule, EPA disagrees that the inclusion of a means of
transport that could result in a more immediate discharge to navigable
waters in the initial screen (and in some cases may require some
analysis), makes the reach or scope of the rule ``unbounded.''
iv. Distance to Endpoint
EPA is adjusting the definition of distance to endpoint for clarity
and to reflect that the distance represents the greatest distance a CWA
hazardous substance can travel in a worst case discharge to navigable
waters or a conveyance into or on the navigable waters while still
being able to cause injury to fish, wildlife, or sensitive environments
(FWSE) or public receptors, or adversely impact a PWS.
v. Endpoint
Accordingly with the definition of distance to endpoint above, EPA
is adjusting the definition of endpoint to clarify that it represents
the concentration at which a worst case discharge of a CWA hazardous
substance into or on the navigable waters has the ability to cause
injury to FWSE or public receptors, or adversely impact a PWS.
vi. Facility
Some commenters asserted that the definition of ``facility'' is
unclear while others were concerned about the possibility of
gamesmanship in drawing facility boundaries. EPA is adjusting the
definition to reflect the Preamble to the proposed rule, that stated
that an owner or operator may not make determinations as to what
constitutes a covered facility indiscriminately and in such a manner as
to simply avoid applicability of the final rule (for example, the
division of one facility into separate facilities with one CWA
hazardous substance container located at each facility where all
containers are located side-by-side or in close proximity to each other
and are used for the same purpose). EPA maintains that the flexibility
afforded to owners or operators in determining what constitutes a
covered facility allows those most knowledgeable about its operations
to decide whether it should be aggregated or divided, which may vary
widely due to the range of CWA hazardous substance operations and types
of facilities. Furthermore, EPA notes that it is adopted from the Oil
Pollution Prevention regulation at 40 CFR 112.2, is appropriately
broad, and captures the types of facilities intended

[[Page 21933]]

to be regulated by EPA under CWA hazardous substance worst case
discharge regulations. Please see the Response to Comments document in
the docket for further discussion.
EPA has adjusted the definition to separate out non-transportation-
related onshore facilities for clarity and ease of navigation in the
document.
vii. Injury
Because of the need to maintain consistency with the NCP, the
Agency has determined it is appropriate to use the definition of
``injury'' established by the Natural Resource Trustees for this rule.
Federal officials authorized by the President and the authorized
representatives of Indian Tribes and State and foreign governments act
as public trustees to recover damages to natural resources under their
trusteeship. Under the NCP, each trustee has responsibilities for
protection of resources; mitigation and assessment of damage; and
restoration, rehabilitation, replacement, or acquisition of resources
equivalent to those affected (40 CFR 300.615). EPA maintains that the
definition of ``injury'' is appropriate to assess substantial harm
based on the extensive experience of the Natural Resource Trustees in
conducting evaluations of CWA hazardous substance impacts on natural
resources. The definition of ``injury'' in 40 CFR 112.2 of the Oil
Pollution Prevention regulation was adapted from the definition of
``injury'' in the DOI Natural Resources Damage Assessments (NRDA) final
rule at 43 CFR part 11 and includes only the part of the definition
that addresses oil discharges, which EPA is now adapting for this
regulation to provide regulatory consistency.
In response to the commenters who stated that the definition of
``injury'' could apply to ``insubstantial effects'' rather than
``substantial harm,'' EPA notes that the definition of ``injury'' is
intended to assist in the identification of covered facilities that
could cause substantial harm. The potential for a spill to cause an
injury to FWSE or public receptors is coupled with the screening
criteria to determine if a covered facility could cause substantial
harm to the environment. In that context, causing injury indicates the
potential for a worst case discharge to cause substantial harm to the
environment. EPA concludes that the injury relies on changes that have
been demonstrated to adversely impact the resources in question, or
services provided by those resources.
While ``injury'' to a public receptor as a concept may be new to
the regulatory community, EPA holds that it is an important
consideration due to the variability of CWA hazardous substances, how
they act in water, their effects on human health and the environment,
and their impact on the potentially exposed public. EPA agrees with the
commenter who asserted that just being a measurable effect does not
mean that the effect is ``substantial;'' however, the endpoints in
Appendix B are not limited to just measurable effects. Indeed, the
endpoints are both measurable and indicate a covered facility could
cause substantial harm to the environment due a worst case discharge
into or on the navigable waters or a conveyance to navigable waters.
viii. Maximum Quantity Onsite
EPA has revised the definition of ``maximum capacity onsite'' to
``maximum quantity onsite.'' This is based on the decision to use a
threshold quantity based on quantity, not capacity, discussed below in
section III.D.2.ii. Please note, a covered facility owner or operator
must plan proactively for future anticipated product onsite and FRP
threshold quantities are based on the maximum quantity onsite at any
time for each CWA hazardous substance. For example, a covered facility
with both chlorine and benzene onsite must consider when those CWA
hazardous substances will be at their maximum quantity onsite both as
to whether they meet the threshold quantity and for planning purposes.
If the owner or operator is developing a plan in January and does not
want to amend their plan in the coming months, the maximum quantity
onsite for chlorine may occur in March and the maximum quantity onsite
of benzene may occur in September. For the FRP to be valid without
amendments, it must plan for the maximum quantities onsite for each CWA
hazardous substance at any time, so both maximum quantities onsite,
regardless as to whether the times overlap.
ix. Permanently Closed
EPA is removing the definition of ``permanently closed'' because a
CWA hazardous substance maximum quantity onsite, threshold quantity,
and worst case discharge scenario quantities in the final rule are
based on using quantity, not capacity, discussed below in section
III.D.2.ii.
x. Publicly Owned Treatment Works
EPA is adding a definition for publicly owned treatment works
(POTW), referring to the existing definition in 40 CFR 403.3, but
including federally owned treatment works for the purposes of this
final rule.
xi. Public Receptor
Some commenters suggested that the definition of ``public
receptor'' is too broad. However, EPA's definition of ``public
receptor'' is intentionally so in order to cover a wide variety of
areas through which the public has access to navigable waters and could
be affected by a worst case discharge. EPA did not include first
responders in the definition of public receptor, as one commenter
suggested, because first responders are covered in a facility and
community's health and safety plan and emergency planning.
While this definition is not part of the Oil Pollution Prevention
regulation in 40 CFR part 112, CWA hazardous substances differ from oil
in important and varied ways and require different considerations. For
instance, certain CWA hazardous substances may have no realistic means
of recovery once the substance enters a waterbody, meaning that
receptors must be prepared for and swiftly notified of the diluted
substance as it travels downstream. As with other aspects of this rule,
EPA intends to provide compliance assistance to covered facility owners
or operators on types of areas they should consider when determining
their ability to cause injury to public receptors.
xii. Public Vessel
EPA did not receive any comments on the definition of public vessel
and has adjusted the definition to refer to the definition in section
311(a)(4) of the CWA. This will provide regulatory consistency with
other CWA programs and reflect the statutory authority of this action
rather than creating a new definition just for use in this regulation.
xiii. Vessel
EPA did not receive any comments on the definition of vessel has
adjusted the definition to refer to the sections 311(a)(4) of the CWA
and 101(28) of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA). This will provide regulatory
consistency with other CWA and CERCLA programs and reflect the
statutory authority of this action, rather than creating a new
definition just for use in this regulation.
xiv. Water Distribution System
EPA has revised the definition for accuracy and to align with its
use in other EPA programs in order to more

[[Page 21934]]

accurately reflect drinking water system characteristics.\7\
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\7\ <a href="https://www.epa.gov/dwreginfo/drinking-water-distribution-system-tools-and-resources">https://www.epa.gov/dwreginfo/drinking-water-distribution-system-tools-and-resources</a>.
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xv. Wellhead Protection Area
EPA is adding a definition for wellhead protection area for
consistency with the Oil Pollution Prevention FRP regulation and to aid
responders in identifying risks in the event of a worst case discharge
to protect drinking water sources.
xvi. Worst Case Discharge
Some commenters suggested EPA change its definition of worst case
discharge; however, EPA concludes that the current definition is
designed to capture the worst case discharge and consistent with the
statutory authority of this action. It is worth noting, however, that
discharges in compliance with NPDES (40 CFR part 122) are not covered
by this regulation. To commenters concerned with impacts due to climate
change, a largest foreseeable discharge must already be evaluated in
adverse weather conditions, including those due to climate change,
which may include challenging climatic conditions such the increased
frequency and intensity of extreme weather events, temperature
fluctuations, rising seas, storm surges, inland and coastal flooding,
drought, wildfires, and permafrost melt in northern areas. In addition,
EPA refers commenters to 40 CFR 118.10 and section III.D.9 of this
preamble for more specific language and discussion on worst case
discharge calculations.
xvii. Other Definitions
EPA did not receive major substantive comments on the remaining
definitions in Sec. 118.2 and is finalizing them as proposed, with
some separated out for clarity.
2. Applicability
In 40 CFR 118.3, EPA set forth a two-step applicability process,
whereby a covered facility owner or operator assesses two screening
criteria, and, if both criteria are met, the owner or operator then,
and only then, assesses the ability to cause substantial harm to the
environment through four substantial harm criteria (all described in
detail below). To ensure that EPA tied the proposed applicability
provisions to the statutory requirements, the Agency proposed four
substantial harm criteria to target covered facilities that could cause
substantial harm to the environment by discharging into or on navigable
waters or a conveyance to navigable waters. Additionally, EPA proposed
location-based criteria (using both distance from navigable waters or
conveyance and planning distance calculations) to ensure covered
facilities are regulated based on their location, as required by
statute. In combination with the screening criteria, EPA determined
that the substantial harm criteria reflect real world scenarios whereby
a worst case discharge could cause substantial harm to the environment.
Some commenters raised concerns about the level of responsibility on
owners or operators to determine if they are subject to the rule. While
EPA staff will be available to work with facilities and provide
compliance assistance, consistent with Congressional intent, the
responsibility for safeguarding their materials and for planning for a
worst case discharge of CWA hazardous substances into or on the
navigable waters or a conveyance to navigable waters rests first and
foremost with the covered facility owner or operator (H.R. Rep. No.
101-653, 101st Cong., 2d Sess. 1990).

Figure 1--Final Applicability Criteria for CWA Hazardous Substance FRP-
Subject Facilities
[GRAPHIC] [TIFF OMITTED] TR28MR24.014

i. Example of the Applicability Determination Process
Below is a detailed discussion of the applicability determination
process in 40 CFR 118.3. The first step is to complete the screening
criteria, which are to be assessed concurrently; there is no implied
order of which screening criterion to assess initially, and a covered
facility owner or operator may choose to examine either their distance
to navigable waters or a conveyance to navigable waters or threshold
quantity first, whichever is preferable to their circumstances. In this
example, the owner or operator chooses to determine if their maximum
quantity/quantities onsite of CWA hazardous substance(s) meets or
exceeds the threshold quantity first. The aggregate maximum quantity
onsite at any time of benzene (a listed hazardous substance as found in
40 CFR 116.4) is 15,000 pounds. Since benzene has an RQ of 10 and the
RQ multiplier is 1,000, the threshold quantity for benzene is 10,000
pounds. Because the covered facility's maximum quantity onsite exceeds
the threshold quantity for benzene, it meets this screening criterion.
If there are mixtures containing CWA hazardous substances onsite, the
owner or operator must follow the requirements regarding mixtures, as
detailed in section III.D.8 of this preamble. The covered facility
owner or operator then determines whether it has a maximum quantity
onsite at any time that meets or exceeds the threshold quantity for
each other CWA hazardous substance onsite and in mixtures following the
same procedure. Alternatively, if a covered facility does not have any
CWA hazardous substances that meet the CWA hazardous substance
screening threshold (1,000x RQ), it need not

[[Page 21935]]

proceed further with the applicability determination.
Again, if the covered facility meets the CWA hazardous substance
threshold quantity screening criterion, the owner or operator next
determines its distance to navigable waters or a conveyance to
navigable waters. In this instance, the covered facility boundary or
nearest opportunity for discharge nearest to a navigable water or a
conveyance to navigable water as assessed using an online mapping tool
is 0.3 miles. Thus, the covered facility is within one-half mile of
navigable waters or a conveyance to navigable waters. Since the covered
facility meets both prongs of the screening criteria, the owner or
operator then determines whether it meets any of the substantial harm
criteria. If a covered facility is not within one-half mile of a
navigable waters or a conveyance to navigable waters, the owner or
operator need not proceed further.
Similar to the screening criteria, there is no implied order of
operations in determining whether a covered facility meets any of the
substantial harm criteria, and an owner or operator may proceed through
the criteria as preferred. However, unlike the screening criteria
(where both prongs need to be met), if an owner operator determines
that the covered facility meets one of the substantial harm criteria,
the owner or operator must submit an FRP to EPA. In addition, the owner
or operator must still assess the other substantial harm criteria, as
it is important to have a guide to all the potential areas of impact in
the case of a worst case discharge as well as past vulnerabilities as
shown through previous reportable discharges. Therefore, the
assessments for all four criteria must be included in the FRP or
Appendix A: Substantial Harm Certification Form.
Proceeding through each of the substantial harm criteria, for the
substantial harm criteria based on calculating distances to endpoints
(FWSEs and public receptors and the ability to adversely impact a PWS),
EPA expects that covered facility owners or operators will need to
gather information related to the CWA hazardous substances onsite above
the threshold quantity and information relevant to their fate and
transport following a worst case discharge. This may include modeling a
worst case discharge scenario under various flow conditions to obtain
the arrival time, duration, and concentration of the discharge as it
reaches a FWSE, public receptor, or water intake. Typically, low flow
conditions will result in larger peak concentrations of the discharged
substance, and thus could be more likely to cause substantial harm.
Next, a covered facility owner or operator determines whether a
worst case discharge of each CWA hazardous substance with a maximum
quantity onsite above the threshold quantity could cause injury to
FWSE. To calculate the quantity of a worst case discharge for each CWA
hazardous substance onsite above the threshold quantity, the owner or
operator identifies the maximum CWA hazardous substance container,
interconnected containers, pipe, or piping system quantity onsite.
Then, a covered facility owner or operator consults the relevant ACP
(available by contacting their EPA regional office) to identify FWSE
that could potentially be reached by a worst case discharge. To
calculate planning distance, the owner or operator must consider the
factors for overland and in water transport detailed in Sec.
118.10(b)(3)(i) and (ii), as well as adverse weather conditions in
Sec. 118.10(b)(3)(iii) and properties of the CWA hazardous substance
in 40 CFR 118.10(b)(3)(iv) or associated aqueous products. Once an
owner or operator completes the planning distance calculations, they
compare the concentration-based (i.e., mg/L) results to the chart in
Appendix B to determine whether a worse case discharge could cause
injury to FWSE.
To determine whether a covered facility could cause injury to a
public receptor, the owner or operator follows the same steps as for
FWSE, but uses the appropriate concentration-based (i.e., mg/kg)
endpoint values found in Appendix B. To identify public receptors, an
owner or operator may consult local maps, local authorities, their
Local Emergency Planning Committee (LEPC) or Tribal Emergency Planning
Committee (TEPC), or any other available information about parks,
recreational areas, docks, or other public spaces inhabited, occupied,
or used by the public at any time where members of the public could be
injured as a result of a worst case discharge into or on the navigable
waters or a conveyance to navigable waters.
To evaluate whether a worst case discharge from a covered facility
could adversely impact a PWS, the owner or operator determines whether
a worst case discharge would result in certain outcomes as detailed
below by working with potentially affected PWSs. Using information
including properties of CWA hazardous substances onsite and information
relevant to their fate and transport arrival time, duration, and
concentration of the discharge as it reaches a water intake, the owner
or operator coordinates with downstream PWSs to determine impacts to
the system and documents that coordination. If the owner or operator
has made and documented good faith efforts but is nonetheless unable to
work with the PWS, the covered facility will use the estimated
concentration of the CWA hazardous substance from a worst case
discharge at the water intake to assess the potential to adversely
impact a PWS. Specifically, an owner or operator must assess each of
the following impacts:

--Violation of a National Primary Drinking Water Standard or State
Drinking Water Regulation: To assess whether a worst case discharge
violates any National Primary Drinking Water Regulations (NPDWR) or
State Drinking Water Regulations (SDWR), a covered facility owner or
operator determines whether the released CWA hazardous substance,
aqueous products, or a chemical product that forms when the CWA
hazardous substance reacts with drinking water treatment chemicals, is
subject to a NPDWR or SDWR, and is predicted to exceed the maximum
contaminant level (MCL) at the point of compliance with the NPDWR or
SDWR. For example, benzene is a CWA hazardous substance and is subject
to a NPDWR with an MCL of 0.005 mg/L measured at the entry point to the
water distribution system. An example of a chemical product that could
form through a reaction is the CWA hazardous substance ammonium
thiocyanate, which reacts with free chlorine to form cyanogen chloride
and/or free cyanide, both of which are acutely toxic above a threshold
and are regulated under SDWA.
--Interference with the ability of PWSs to comply with any NPDWR or
SDWR: To assess whether a worst case discharge compromises the ability
of the PWS to produce water that complies with any NPDWR or SDWR, a
covered facility owner or operator determines whether the released CWA
hazardous substance alters water quality or interferes with treatment
processes in a manner that impacts a PWS's ability to produce water
that complies with an NPDWR or SDWR. For example, a release of a strong
acid, such as sulfuric acid in sufficient quantity may reduce water
alkalinity to a degree where the PWS can no longer maintain adequate
corrosion control, putting it at risk of a violation under the Lead and

[[Page 21936]]

Copper Rule (40 CFR part 141 subpart I).
--Threat to public health: To assess whether a worst case discharge
results in adverse health impacts in people exposed to the maximum
concentration that could enter a drinking water distribution system, a
covered facility owner or operator determines whether the released CWA
hazardous substance, aqueous products, or a chemical product that forms
when the CWA hazardous substance reacts with drinking water treatment
chemicals, is predicted to exceed scientifically accepted reference
concentrations below which adverse human health impacts are not
expected. An example of such reference concentrations are EPA's
established Drinking Water Health Advisories, which are intended to
protect public health during an emergency, such as a chemical release.
As an example, benzene has a one-day Drinking Water health advisory of
0.2 mg/L.
--Contamination of PWS infrastructure: To assess whether a worst case
discharge will contaminate PWS infrastructure, including but not
limited to intake structures, treatment facilities, and drinking water
distribution systems, or premise plumbing systems \8\ to a degree that
requires remediation to restore system components to acceptable
performance, a covered facility owner or operator determines whether
the released CWA hazardous substance, aqueous products, or a chemical
product that forms when the CWA hazardous substance reacts with
drinking water treatment chemicals, is likely to corrode, foul, adhere
to, adsorb into, permeate into, or otherwise damage components and
materials used at any point in the PWS, from the intake through premise
plumbing systems. For example, CWA hazardous substances that are oil-
like can foul water treatment filtration media, making it ineffective.
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\8\ <a href="https://www.epa.gov/emergency-response-research/premise-plumbing-decontamination">https://www.epa.gov/emergency-response-research/premise-plumbing-decontamination</a>.
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--Impact to aesthetic characteristics of drinking water: To assess
whether a worst case discharge impairs the taste, odor, or other
aesthetic characteristic of the water entering a drinking water
distribution system to a degree that could make the water unacceptable
to consumers and that could prompt the PWS to issue use restrictions, a
covered facility owner or operator determines whether the released CWA
hazardous substance, aqueous products, or a chemical product that forms
when the CWA hazardous substance reacts with drinking water treatment
chemicals, is predicted to exceed scientifically accepted reference
concentrations, below which aesthetic impacts from the CWA hazardous
substance are not expected. For example, a CWA hazardous substance at a
concentration above established taste and odor thresholds could prompt
a water system to issue use restrictions, such as a ``do not drink''
order. When available, secondary MCLs established under SDWA should be
used as a reference concentration for aesthetic impacts. For example,
chloride has a secondary MCL of 250 mg/L--above this concentration, the
taste of the water may be unacceptable to customers. Several CWA
hazardous substances, such as hydrochloric acid, would increase the
chloride concentration in water.

When assessing each criterion for substantial harm to PWSs, the
covered facility owner or operator should attempt to work
collaboratively with the downstream PWS(s) to determine precisely how
the worst case discharge would impact the system. Given the complexity
of fate and transport of a CWA hazardous substance in aqueous
environments as well as the impact of drinking water treatment
processes on the CWA hazardous substance, system specific information
from the PWS will facilitate the most accurate assessment for the
potential of the CWA hazardous substance to cause substantial harm to
the PWS. However, if the covered facility owner or operator has made
and documented good faith efforts but is nonetheless unable to work
with the PWS in this assessment, the owner or operator must use the
predicted concentration of the CWA hazardous substance at the drinking
water intake resulting from a worst case discharge, along with
scientifically accepted information about the impact of common water
treatment processes (e.g., chlorination) on the CWA hazardous substance
to make the substantial harm determination.
The covered facility owner or operator must consider each of the
five potentially adverse outcomes to PWSs described above and determine
the concentration at which the adverse outcome could occur. The lowest
concentration at which any of the five adverse outcomes could occur
must be used in the substantial harm determination, and if the
concentration at the reference point (e.g., at the intake, at the entry
point to the distribution system) is equal to or greater than the
concentration at which the adverse outcome could occur, then the
covered facility meets this substantial harm criterion.
Finally, a covered facility owner or operator assesses whether they
have had a reportable discharge of a CWA hazardous substance (a
discharge over the RQ) to navigable waters in the last five years. This
could be accomplished by reviewing discharge records and those
submitted to the NRC in the event of a reportable discharge.
If the covered facility CWA hazardous substance maximum quantity
onsite meets or exceeds the threshold quantity and it is located within
one-half mile of navigable waters or a conveyance to navigable waters,
but does not meet any of substantial harm criteria, the owner or
operator must still submit a Substantial Harm Certification Form
(Appendix A) to EPA, including supporting calculations and modeling. If
the covered facility meets at least one of the substantial harm
criteria, the owner or operator must complete and submit an FRP to EPA
that includes information on each CWA hazardous substance onsite above
the threshold quantity, along with their Substantial Harm Certification
Form.
Below is a detailed discussion of the significant comments and
EPA's responses, as well as adjustments made to the regulatory text.
ii. Threshold Quantity
In 40 CFR 118.3, EPA proposed that if the maximum capacity onsite
exceeds 10,000x the RQ, a covered facility meets the threshold quantity
screening criterion. While EPA proposed using 10,000x RQ multiplier for
threshold quantities, the Agency has determined that a 1,000x RQ
multiplier will more appropriately screen for covered facilities that
could cause substantial harm to the environment from a worst case
discharge. For example, some commenters criticized the 10,000x
multiplier citing a lack of evidence that those facilities under that
threshold quantity would not be reasonably be expected to cause
substantial harm to the environment from a worst case discharge.
Therefore, the commenters urged EPA to take a more precautionary
approach and not exclude these facilities from determining their
ability to cause substantial harm to the environment. Since threshold
quantity is a screening tool, i.e., a covered facility with less than
that amount is not covered by the rule and need not consider whether it
may reasonably cause a worst case discharge in the first instance,
setting a lower initial screening level at this stage has merit,

[[Page 21937]]

since even with less than a 10,000x RQ amount, it is reasonably
foreseeable that a covered facility could cause substantial harm from a
worst case discharge. Said another way, setting the threshold quantity
too high may mean that higher risk covered facilities are not required
to determine their ability to cause substantial harm at all, which
could leave the environment more vulnerable to worst case discharges.
Several commenters supported the initial proposed 10,000x RQ
multiplier, but EPA agrees with other commenters who suggested lowering
the RQ multiplier to 1,000x. See Chapter 2 of the RIA for this final
rule for a detailed analysis of covered facilities with CWA hazardous
substances onsite at the 1,000x and 10,000x RQ multiplier levels. This
analysis shows that at the 1,000x RQ multiplier, a number of additional
covered facilities with CWA hazardous substances onsite that present a
significant threat to downstream PWSs, FWSEs, and public receptors will
need to determine if they meet the substantial harm criteria. For
example, for covered facilities with 1,000x RQ onsite of arsenic
trioxide (arsenic, a known toxin regulated under the Safe Drinking
Water Act (SDWA)), 66% would now meet the quantity threshold, versus
50% at 10,000x RQ. Similarly, for covered facilities with benzene
onsite, a known carcinogen also regulated under the SDWA, 75% would now
meet the threshold quantity versus 32% at 10,000x RQ. A few other
examples include lead sulfate (lead, regulated under SDWA), 66% of
covered facilities at 1,000x RQ versus 17% at 10,000x RQ; sodium
arsenate (arsenic, a known toxin regulated under SDWA), 100% of covered
facilities at 1,000x RQ versus 11% at 10,000x RQ; and hydrogen cyanide
(cyanide, regulated under SDWA), 57% at 1,000x RQ versus 29% at 10,000x
RQ. These additional covered facilities evaluating their substantial
harm criteria will significantly add to protection of the environment.
EPA disagrees with commenters who argued that this lower multiplier
value will bring in too many covered facilities under the rule without
a concomitant increase in environmental protection. First, meeting the
threshold quantity does not automatically make a covered facility
subject to the rule. Second, a lower threshold quantity is appropriate
for an initial screening criterion, ensuring that only covered
facilities that are unlikely to meet the substantial harm criteria are
excluded from the scope of the rule. Accordingly, EPA has judged that
the screening criteria in conjunction with the substantial harm
criteria appropriately targets those covered facilities that could
cause substantial harm to the environment from a worst case discharge
of CWA hazardous substances into or on the navigable waters.
To the commenters who asked for more information on the basis of
the threshold quantity, the RQ multiplier reflects relative toxicity
parameters used to establish the original RQs. See section IV.A.1.a.i
of the proposed rule preamble, Docket ID EPA-HQ-OLEM-2021-0585-0001,
for a discussion on RQs and how they were derived. The RQs provide a
means to use an existing regulatory structure that already considers
risk on a scale and that has been successfully used for release
notification for decades. EPA also balanced the variability among the
296 CWA hazardous substances and tailoring threshold amount against a
uniform, easily applied, mass-based RQ multiplier, as advocated for by
many commenters, deciding on balance in favor of using a single RQ
multiplier. In addition, while the proposal focused on capturing larger
capacity covered facilities that could pose a greater risk, with
additional consideration, in EPA's judgment, a 1,000x multiplier for
determining the threshold quantity as a screening criterion more
effectively represents the potential risks associated with a worst case
discharge.
In this final rule, EPA has adjusted its approach to use maximum
quantity onsite (inventory) rather than maximum container capacity
onsite as the basis for assessing risk to the environment. EPA based
this decision largely on the fact that risk determinations using
maximum quantity onsite will more accurately reflect the hazard posed
and has been used successfully in other EPA chemical regulations, such
that this is standard business practice. Additionally, since containers
are typically measured by volume and CWA hazardous substances may vary
dramatically in weight due to their physical properties, there is not a
clear association between container size and quantity of CWA hazardous
substances onsite, which many commenters raised as an unnecessary
complication. Thus, a covered facility owner, operator, or inspector
would have to convert the volume of each CWA hazardous substance
container onsite to a chemical-specific weight in order to compare
reported values and determine if the covered facility meets the
threshold quantity, exacerbating conversion difficulties discussed in
the proposed rule including at 87 FR 17900 and raised by several
commenters.
While the Oil Pollution Prevention FRP regulations use container
capacity for applicability threshold determination, this is consistent
with how oil is measured and regulated, using volume (gallons). On the
chemical side, CWA hazardous substances (and all chemicals that EPA and
other Federal agencies regulate) are measured and regulated by weight,
typically in pounds. CWA RQs are also weight-based (1, 10, 100, 1,000,
and 5,000 pounds). The OPA Conference Report (H.R. Rep. No. 101-653,
101st Cong., 2d Sess. 1990) specifically directed EPA to account for
oil storage capacity, but it has no corresponding language for CWA
hazardous substances. As oil and the 296 CWA hazardous substances
differ in important and myriad ways, it is reasonable to pursue a
different approach in terms of determining the appropriate amount that
should be used for determining threshold quantities and as a planning
factor.
In so doing, EPA is responding to commenter concerns about covered
facilities that may have capacity for but will never actually have CWA
hazardous substances onsite in quantities sufficient to meet the
threshold quantity but (if capacity were the metric) could be subject
to the rule, especially considering some CWA hazardous substances will
never be stored at the full capacity of a container due to their
physical properties. For example, several commenters noted that for one
of the highest volume and occurrence CWA hazardous substances,
anhydrous ammonia, containers are prohibited to be filled beyond 85%
liquid volume to allow expansion and contraction.
For mixtures, using capacity gets even more complicated, an issue
raised by many commenters, since a covered facility owner or operator,
or EPA inspector would have to convert varying volumes of CWA hazardous
substances into weights, then extrapolate based on their proportions to
the full capacity of the container. This seems needlessly complex and
potentially introduces calculation errors into threshold applicability
determinations and worst case discharge scenario quantities. To add to
the complexity, CWA hazardous substance and mixtures can be present
onsite in myriad types of containers and configurations.
EPA understands the concern regarding fluctuating quantities and
numbers of containers, particularly at certain batch processors and in
some industries and also the use of mobile storage containers and notes
that the maximum quantity onsite must reflect the aggregated quantity
at the covered

[[Page 21938]]

facility across all containers, including but not limited to rail cars
or other mobile storage not under active shipping papers, process
vessels, canisters, drums, bulk storage tanks, dumpsters, totes, or
bulk cargo containers positioned on land. However, EPA disagrees with
commenters who asserted that the only way to adequately plan for
response to worst case discharges is to account for the full storage
capacity for CWA hazardous substances. Indeed, EPA and other Federal
regulators routinely use actual chemical inventory quantities for a
variety of regulatory and planning purposes. EPA intends that an FRP
for CWA hazardous substances be forward-looking and account for the
maximum quantity onsite at any time. On balance, EPA believes that
choosing quantity over capacity is appropriate in terms of
implementability and the risks presented. Moreover, covered facilities
have many incentives to accurately track their inventories over time.
iii. Proximity to Navigable Waters or a Conveyance to Navigable Waters
EPA is retaining the proposed location-based screening criterion
that covered facilities must determine whether they are located within
one-half mile of navigable waters or a conveyance to navigable waters,
while clarifying that this should be measured from the facility
boundary or nearest opportunity for discharge. This distance is based
on research related to the Oil Pollution Prevention FRP regulation. On
balance, while the Agency agrees that there are significant differences
between oil and CWA hazardous substances, one-half mile is an
appropriate distance to infer that a covered facility has a reasonable
expectation to discharge to navigable waters or a conveyance to
navigable waters in the event of a worst case discharge.
Some commenters argued that the distance should be extended farther
for more complete protection of the nation's waters and in the context
of CWA hazardous substances. However, in EPA's analysis, 80% of covered
facilities with CWA hazardous substances onsite were within one-half
mile to navigable waters (see Chapter 2 of the RIA in the rulemaking
docket). To extend the distance would make the criterion effectively
meaningless because nearly every covered facility that meets or exceeds
the threshold quantity would meet this screening criterion. While
commenters were concerned about differences in topography complicating
determinations of whether a covered facility is within one-half mile of
navigable waters or a conveyance to navigable waters, this distance
should be measured from the nearest opportunity for discharge and
industry will be able to comply using widely available electronic
mapping tools. EPA has determined that the one-half mile distance is
protective and simple to calculate, and covered facility owners or
operators will have the opportunity to model a worst case discharge in
evaluating the substantial harm criteria that depend on planning
distance. Additionally, an owner or operator may appeal to the RA if
they believe there is no reasonable expectation to discharge into or on
navigable waters or a conveyance to navigable waters from their covered
facility.
EPA agrees with commenters who stated that one-half mile to
navigable waters or conveyance to navigable waters applicability
requirement is important to minimize harms to the environment. The
Agency again notes that this is an initial screening criterion; it does
not mean that a facility is subject by the rule. Rather, it means that
if a covered facility does not meet either of these initial screening
thresholds, it is not subject to the rule and need not do any further
analysis. Only covered facilities within one-half mile to navigable
water or a conveyance that also meets or exceeds a threshold quantity
must then determine whether they satisfy any of the substantial harm
criteria.
EPA recognizes commenter concerns regarding CWA hazardous
substances that have physical properties (e.g., viscosity, vapor
pressure, etc.) that preclude the substance from reaching navigable
waters or a conveyance to navigable waters. However, a covered facility
owner or operator will consider these properties, and their
implications for the ability of the substance to impact water, when
they evaluate the substantial harm criteria, not in the initial
screening criteria. A covered facility will need to determine its
distance to navigable waters or a conveyance to navigable waters
regardless of the route or method of travel of a CWA hazardous
substance in a worst case discharge.
iv. Substantial Harm Criteria
In Sec. 118.3(c), EPA proposed four substantial harm criteria. EPA
is retaining these criteria in the final rule, with minor
modifications. Below is a summary of changes and responses to major
comments.
Several commenters asserted that the extensive efforts to assess
whether they meet the substantial harm criteria were essentially
requiring compliance with the rule. EPA disagrees with this premise;
indeed, the reason for the initial screening criteria is to mitigate
the impact on covered facilities that would not meet the substantial
harm criteria. However, given the variability of the CWA hazardous
substances at issue (including variations in transport, fate, and other
chemical characteristics), it is inevitable that some covered
facilities that meet the screening criteria will nonetheless not meet
any of the substantial harm criteria. Because of the myriad of
variables involved, the analysis is necessarily case-by-case. And while
simplicity can reduce costs, it also often faces the dilemma of being
either over or under inclusive. So, while EPA determined that simple to
apply, bright line screening criteria were appropriate to satisfy the
requirements of the statute in terms of adequately protecting human
health and the environment, a more nuanced analysis of the substantial
harm criteria to determine which covered facilities must incur the
added cost of preparing an FRP is warranted. Nevertheless, in
principle, EPA agrees that making it as easy as possible to conduct
these assessments is an important goal and will facilitate the
successful implementation of this rule. EPA intends to continue to
identity and provide tools to the regulated community and the public to
support these determinations.
To commenters who suggested a standalone substantial harm criterion
based on the potential impacts of worst case discharges to navigable
waters or a conveyance to navigable waters on communities with
environmental justice concerns, EPA recognizes the unique risks faced
by these communities. In Sec. 118.5(b), an RA may determine that a
covered facility could cause substantial harm to the environment due to
its potential impacts on communities with environmental justice
concerns. Another issue for communities with environmental justice
concerns is the potential cumulative impact of multiple covered
facilities in one area where any one covered facility may not have a
maximum quantity onsite that meets or exceeds the threshold quantity of
CWA hazardous substances, but it seems likely that if one covered
facility experienced a worst case discharge due to extreme weather
conditions, others could be similarly impacted and the collective
effects could cause substantial harm to the environment. Upon
consideration and in response to commenter concerns, an RA may now
consider concerns regarding co-located covered facilities when
determining whether a covered facility has the

[[Page 21939]]

potential to cause substantial harm to the environment.
a. Ability To Cause Injury to FWSE
In Sec. 118.3(c)(1), EPA proposed and is retaining in the final
rule a substantial harm criterion to consider the covered facility's
ability to cause injury to FWSE. Relatedly, the Agency proposed in
Appendix B, and is retaining in the final rule, 10 percent of Lethal
Concentrations 50% (LC50) as the toxic endpoints a covered facility
owner or operator must use to perform planning distance calculations.
FWSEs are identified in ACPs. This regulation does not alter how FWSEs
are identified or what constitutes FWSE. EPA has added language that
facility owners and operators must also consider aqueous products that
form when the CWA hazardous substance enters water to ensure the full
range of risk is represented in this assessment.
EPA disagrees with the commenter who requested that the regulated
community should identify endpoints for individual CWA hazardous
substances (as opposed to categories of CWA hazardous substances) and
incorporate these facility-defined endpoint concentrations given EPA
approval. Determining these on a site-by-site and CWA hazardous
substance-by-substance basis would be prohibitively difficult to
assess. On a case-by-case basis, a covered facility owner or operator
may appeal a substantial harm determination to the RA if they disagree
with the planning distance calculations. EPA maintains that the LC50-
based endpoints appropriately model for effects on wildlife, regardless
of the type of hazardous substance discharge or type of waterbody.
One commenter requested that EPA acknowledge that ``not all
navigable waters identify fish, wildlife, and sensitive environments
and public receptors in their Area Contingency Plans,'' and asked for
flexibility in these determinations because of these situations,
specifically referencing the Oil Pollution Prevention FRP regulation's
vulnerability analysis, Sec. 112.20(h)(4) and section 1.4.1 of
Appendix F. EPA is aware that ACPs currently may not reflect impacts of
worst discharge of CWA hazardous substances to navigable waters.
Working with Federal response partners, the Agency intends to provide
compliance assistance to covered facilities to ensure these areas are
properly identified and impacts are assessed. In addition, the owner or
operator is responsible for identifying public receptors, not just
ACPs.
b. Ability to Adversely Impact a Public Water System
EPA proposed in Sec. 118.3(c)(2) and is retaining in the final
rule the substantial harm criterion for covered facilities located at a
distance such that a worst case discharge has the ability to adversely
impact a PWS. Covered facilities are required to coordinate with the
PWS to determine whether predicted concentrations from a worst case CWA
hazardous substance discharge would result in substantial harm to the
PWS. EPA has added language that facility owners and operators must
also consider aqueous products that form when the CWA hazardous
substance enters water to ensure the full range of risk is represented
in this assessment.
However, several commenters expressed concern with EPA's approach.
Some commenters requested that EPA provide detailed, transparent, and
clear guidance about the applicable drinking water standards to prevent
inconsistencies in implementation and confusion for covered facilities.
An owner or operator must assess the possibility of a worst case
discharge to cause any of the impacts enumerated in Sec.
118.3(c)(2)(ii) through (v). Information that supports this assessment
includes NPDWR, SDWR, human health impact thresholds, taste and odor
thresholds, and physicochemical properties of the CWA hazardous
substance. Furthermore, EPA intends to provide compliance assistance to
covered facility owners or operators in making these assessments,
including resources that crosswalk CWA hazardous substances against
existing NPDWR.
Additionally, several commenters suggested that EPA allow covered
facility owners or operators to show a good-faith effort of
coordination with PWSs through documented attempts, especially in
certain circumstances where coordination is difficult or not possible.
EPA agrees and is revising the requirement to more clearly state that
owner or operators may show a good-faith effort of coordination with
PWSs through documented attempts where coordination is difficult or not
possible.
(i) Alternative Approaches
--Source Water Protection Areas (SWPAs): As part of the proposal, EPA
considered requiring covered facilities within SWPAs to prepare an FRP.
Although several commenters supported this approach, largely for the
reasons enumerated in the proposal preamble at IV.A.2.b.ii EPA has
decided not to finalize this requirement. On the one hand, SWPAs would
be a useful tool that could eliminate the need for distance planning if
they were universally available and uniformly applied. However, they
are not. Moreover, EPA is concerned with the burden that would be
placed on State drinking water programs to respond to requests for
SWPAs from covered facilities if this were a requirement of the rule.
Commenters provided no data or information to support the assertion
that responding to requests for SWPAs from covered facilities would
likely not place a significant burden on State drinking water programs.
One purpose of this final regulation is to implement congressional
intent by shifting the responsibility for planning from public
resources to private covered facilities that pose a substantial risk to
the environment in the event of a worst case discharge into or on the
navigable waters or a conveyance to navigable waters, not create new
burdens for State drinking water programs or PWSs. Furthermore,
requiring additional updating of SWPAs or uniformity in their
application so that they could be used as a substantial harm criterion
is outside the scope of this rulemaking.
--Groundwater: Including potential discharges to groundwater is outside
of the scope of this final rule, which is specific to onshore non-
transportation-related facilities that, because of their location,
could reasonably be expected to cause substantial harm to the
environment by a worst case discharge into or on navigable waters or a
conveyance to navigable waters. Nonetheless, several commenters
requested that EPA include a provision to protect groundwater under the
final rule. One commenter recognized that groundwater is not
jurisdictional water of the United States under the CWA but argued that
the rule affects the quality of groundwater drawn by groundwater-
supplied PWSs regulated under the SDWA as well as nearby groundwater
users and other downstream surface water users if the groundwater
discharges to surface water. Again, navigable waters does not, by
definition, include groundwater.
--Zones Of Concern (ZOCs): EPA disagrees with commenters who posited
that the source water zones of concern (ZOCs) described in the report
``Occurrence of Releases with the Potential to Impact Sources of
Drinking Water'' (EPA 817-R-21-001) are appropriate for this
regulation. The ZOCs used in the study described in the referenced
report were

[[Page 21940]]

intended to provide a uniform definition for identifying whether
releases captured by the NRC would be included in the analysis or not.
The methodology was not designed to identify worst case discharges. As
noted in Section 2.6 of the referenced report: Limitations of the
Methodology, ``It is possible that releases significantly impacting a
source of drinking water occurred outside a zone of concern.
Conversely, it is also possible that releases within a zone of concern
did not significantly impact the source water.'' The criteria in the
final rule, which are based on whether a worst case discharge from a
covered facility could cause substantial harm to a PWS are outcome
based and therefore will more appropriately target covered facilities
for regulation compared to the ZOCs in the referenced report.
c. Ability To Cause Injury to Public Receptors
In Sec. 118.3(c)(3), EPA proposed a substantial harm criterion for
covered facilities that could cause injury to public receptors through
a worst case discharge into or on navigable waters or a conveyance to
navigable waters, using the same parameter and toxic endpoint approach
proposed for FWSE. EPA is retaining this provision in this final
action. Several commenters expressed concern with EPA's proposal to
have a separate substantial harm criterion for covered facilities that
could cause injury to public receptors through a worst case discharge
into or on the navigable waters or a conveyance to navigable waters and
asserted that this is out of scope of the CWA. EPA disagrees that this
substantial harm criterion does not fall under the scope of the CWA or
the stated purpose of this final rule. The scope of the rule is onshore
non-transportation-related facilities that, because of their location,
could reasonably be expected to cause substantial harm to the
environment by a worst case discharge into or on navigable waters or a
conveyance to navigable waters. Public receptors are defined as areas
through which the public has access to navigable waters, thus tying
this criterion to the statutory authority.
Covered facility owner or operators should include impacts to
public receptors in their hazard evaluations in Sec. 118.11(b)(3),
based on the physicochemical properties of the CWA hazardous substances
onsite and their potential effects as well as the potential economic
effects to businesses.
d. Reportable Discharge History
In Sec. 118.3(c)(4), EPA proposed, and is retaining in the final
action, that a reportable discharge history is a substantial harm
criterion, meaning the covered facility has had a discharge of a CWA
hazardous substance at or exceeding the RQ, as listed in 40 CFR 117.3,
that violates CWA section 311(b)(3), i.e., that reaches navigable
waters or adjoining shorelines. If a covered facility that meets the
screening criteria has had a reportable discharge within the last five
years that reached navigable waters, it will be considered to have the
potential to cause substantial harm in the event of a worst case
discharge. Reportable discharge history will be limited to the
preceding five years, so if a covered facility has had a reportable
discharge outside of that date range, it does not meet that substantial
harm criterion. EPA clarifies here that discharges permitted under
National Pollutant Discharge Elimination System (NPDES) are not subject
to this regulation (40 CFR part 122).
EPA notes that the fact that a reportable discharge in this context
means that the discharge entered into or on navigable waters in
quantities that may be harmful. Furthermore, these discharges are
required to be reported to the NRC, so evaluating whether a covered
facility has had one in the last five years should add no burden.
Additionally, discharge history may indicate deficiencies at a covered
facility and so warrant further care and additional planning, as shown
in the related study of oil spills discussed in the preamble to the Oil
Pollution Prevention FRP regulation (58 FR 8832, February 17, 1993).
EPA maintains that five years is a reasonable look back window and
ample time for a covered facility to improve spill resilience as
demonstrated through the lack of reportable discharges into or on
navigable waters. EPA agrees with commenters that limiting the
reportable discharge releases into or on navigable waters is reasonable
and has added clarifying text to the final rule. The Agency is not
expanding the discharge history criterion to cover other reportable
discharges (e.g., to land) given that the authority for this action is
specific to impacts into or on navigable waters, adjoining shorelines,
or exclusive economic zone.
e. Passive Mitigation, Administrative Controls, and Secondary
Containment
EPA did not propose and is not including provisions regarding
passive mitigation, administrative controls, or secondary containment
in this rule. This is a planning regulation, as per its statutory
authority under the CWA 311(j)(5). As such, the Agency is not
incorporating mitigation techniques into the screening criteria,
determinations of substantial harm, nor in the FRP hazard evaluation.
As per the CWA, as amended by the OPA, a worst case discharge is
defined as ``the largest foreseeable discharge in adverse weather
conditions.'' The OPA Conference Report goes on to state that the
largest foreseeable spill from a given type of facility is intended to
describe a case that is worse than either the largest spill to date or
the maximum most probable spill for that type of facility. Further,
Congress' intent was that the worst case discharge reflects the partial
failure of various preventive systems, and that the private sector be
encouraged to increase its spill response capability (H.R. Rep. No.
101-653, 101st Cong., 2d Sess. 1990). Relatedly, in extreme weather
events, mitigation systems may fail. In addition, written
administrative controls may be overridden or overlooked, making it
foreseeable that a worst case discharge could occur notwithstanding
such controls.
Furthermore, although EPA encourages covered facilities to
implement additional release prevention, detection, and mitigation
measures such as those cited by commenters, the Agency believes that
the effects of these measures on the size and impact of a potential
spill are not readily quantifiable, nor easily supported with
historical spill evidence. CWA hazardous substances vary widely in
physicochemical properties and prevention and response strategies
correspondingly differ based on the substance. EPA maintains that
incorporating factors into the worst case discharge calculation that
consider the risks associated with a variety of site-specific
conditions regarding passive mitigation or administrative controls
will, in general, be too complex for this rulemaking, and will require
a very detailed verification and inspection processes. Requirements to
prevent CWA hazardous substance discharges are based on many different
regulatory regimes and industry standards and thus may be difficult for
an inspector to assess and requiring installation or operation of such
systems is outside the scope of this final action. As a result, EPA
does not believe that it is feasible or warranted to include a
calculation of mitigation measures tied to a reduction in the worst
case discharge volume. Nonetheless, if an owner or operator

[[Page 21941]]

believes that the circumstances of the covered facility are such that
it could not cause substantial harm to the environment from a worst
case discharge to navigable waters or a conveyance to navigable waters,
they may appeal the substantial harm determination to their RA.
For these reasons, EPA maintains that it is inappropriate to
include secondary containment, administrative controls, and passive
mitigation in this final rule.
f. Transfers Over Water
EPA did not propose an additional or different substantial harm
criteria for covered facilities that transfer CWA hazardous substances
over water. The Agency received comments both supporting and opposing
such a provision. EPA has decided against including one in this final
action. First and foremost, the USCG has primary responsibility for MTR
facilities and would be the implementing Agency for any CWA hazardous
substance FRP regulations for that type of facility. Should the USCG
initiate a rulemaking for facilities over which it and the Agency share
jurisdiction, the two agencies will collaborate to ensure consistency.
Moreover, EPA did not receive data or information to support adding
this as a substantial harm criterion. EPA notes that should a covered
facility within EPA's jurisdiction have a reportable discharge during
transfers over water, this would meet the Sec. 118.3(c)(4) substantial
harm criterion (i.e., reportable discharge of a CWA hazardous
substances under Sec. 117.21 within last five years).
3. General Requirements
In Sec. 118.4, EPA proposed and is finalizing, with some
adjustments, general requirements and compliance dates for CWA
hazardous substance FRPs. In Sec. 118.4(a), to aid in informing the
regulated community of their responsibilities under this regulation,
the Agency has added ``implement'' to the list of items a covered
facility must do regarding their FRP. This will reduce uncertainty and
make clear that plans must be in place and followed.
In Sec. 118.4(a), EPA has changed the language for plan submission
to emphasize that there is an initial 36-month implementation period.
This will allow covered facilities ample time to familiarize themselves
with the rule requirements, gauge seasonal and commodity flow-related
inventory fluctuations to determine the maximum quantity onsite at any
time, perform planning distance calculations, and prepare their plans.
Plan preparation, submission, and implementation timelines are as
follows:

--Initially regulated covered facilities (covered facilities in
operation on November 30, 2026, and that meet the criteria in Sec.
118.3 or are notified by an RA as in Sec. 118.5): by June 1, 2027.
--Newly regulated covered facilities (covered facilities that meet the
criteria in Sec. 118.3 or are notified by an RA as in Sec. 118.5
after November 30, 2026: Within 6 months.
--Newly constructed covered facilities (covered facilities starting
operations after June 1, 2027: Prior to the start of operations and
including a 60-day start up period adjustment phase.
--Covered facilities regulated as a result of a planned event or
change: Prior to the start of operations and including a 60-day start
up period adjustment phase, but no sooner than June 1, 2027. An example
of a facility characteristic change could be processing expansion
whereby nearest opportunity to discharge moves within one-half mile to
navigable waters or a conveyance to navigable waters, such as adding a
rail spur.
--Covered facilities regulated as a result of an unplanned event or
change: Prior to the start of operations and including a 60-day start
up period adjustment phase, but no sooner than November 30, 2026.

Newly constructed covered facility owners or operators should use
projected CWA hazardous substance maximum quantities onsite to develop
the FRP, which can then be adjusted during the 60-day operational start
up period.
For covered facilities meeting the criteria in Sec. 118.3(a) and
(b), Appendix A: Substantial Harm Certification Forms must be submitted
to EPA by June 1, 2027, while covered facilities meeting that criteria
at a later date have 60 days to submit their forms to EPA, but no
sooner than June 1, 2027. The Agency has adjusted this timeline from
one month to recognize that the required calculations may require
additional time and resources.
EPA recognizes that some commenters believe that the timelines
provided are too short or insufficient for FRP development and
submission. In response, all covered facilities now have 36 months
following the effective date to comply with the requirements in 40 CFR
part 118. On the other hand, some commenters would prefer a swifter
implementation period. However, due to resource constraints and the
complexity of implementing a new regulatory program, EPA had judged a
36-month implementation period to be warranted. Moreover, as this is a
new program, albeit modeled on an existing program, EPA is prepared to
provide necessary compliance assistance as facilities develop plans for
the first time.
Although EPA understands that current practices at some covered
facilities may present challenges with meeting the 60-day window for
changes to FRPs, documenting and adjusting material changes must be
done swiftly to ensure that plans adequately prepare for worst case
discharges of CWA hazardous substances. Longer timelines could render
the FRP unusable as a response plan. Larger and more complex batch
processors, laboratories, and facilities require proactive planning for
the anticipated maximum quantities onsite. In addition, as detailed in
the proposal, these timelines are roughly based on OPA 90 transition
provisions, which directed EPA to issue regulations for oil worst case
discharge response plans (oil FRPs) under section 311(j)(5) of the CWA
within 24 months. Facilities could submit the oil FRPs beginning 30
months from enactment and were required to be submitted by 36 months of
enactment. For existing and new facilities, oil FRPs were to be
submitted within six months from the time of discovery or notification
that a facility could cause ``substantial harm.'' This timeline is
similar to that of the oil FRP program, where an oil FRP must be
resubmitted within 60 days of each material change in facility or plan
that could affect the adequacy of a facility's response capabilities,
such as the ability to respond to a worst case discharge.
EPA has added Sec. 118.4(a)(6), whereby a covered facility owner
or operator must review and recertify their plan Agency every five
years. This will ensure that FRPs stay updated and that owners or
operators remain cognizant of their responsibilities under this
regulation. A five-year review period is common in EPA programs and the
Agency judges this to be a necessary component of an effective program.
EPA has added Sec. 118.4(a)(7), whereby a covered facility owner
or operator must evaluate their operations if EPA adds or removes a CWA
hazardous substance from the list at 40 CFR 116.4 or adjusts relevant
RQs as found in 40 CFR 117.3. Such additions, deletions, or adjustments
are done through a formal notice and comment rulemaking procedure, so
the regulated community will be on notice and have ample opportunity to
review such proceedings before they become final. If a covered facility
becomes newly subject to this regulation at that time, the owner or
operator has six months to submit a new or updated FRP to EPA.

[[Page 21942]]

4. Regional Administrator Determination of Substantial Harm and
Significant and Substantial Harm
In proposed Sec. 118.5, EPA detailed a process by which an RA may
require a covered facility to prepare a CWA hazardous substance FRP
after consideration of site-specific factors. EPA has added a provision
in Sec. 118.5(a) whereby the RA may require amendments to FRPs
submitted under their authority in Sec. 118.5. Additionally, the
Agency proposed factors for the RA to consider in Sec. 118.5(b), as
well as the factors in Sec. 118.3. Some commenters urged EPA to remove
the provision regarding the process for RAs to determine that a covered
facility could cause substantial harm to the environment and must
prepare, implement, and submit an FRP.
For the following reasons, EPA has decided to retain the language
largely as proposed in the final action. On the one hand, EPA
understands that Sec. 118.5 creates some uncertainty for owners and
operators. With respect to determining whether covered facilities could
cause substantial harm to the environment in the first instance, EPA
decided to implement a rule with two components (i.e., regulatory
criteria, including an initial screen followed by an analysis of
substantial harm criteria). The regulatory criteria are designed to
capture the bulk of those covered facilities that could reasonably be
expected to cause substantial harm to the environment. However, because
of the size and diversity of the types of covered facilities within the
regulated community, EPA believes that there are covered facilities
that will not meet the criteria in Sec. 118.3, but may, due to
facility-specific or location-specific circumstances, pose sufficient
risk to the environment to be designated as being able to cause
substantial harm to the environment. Accordingly, EPA has included the
ability of the RA to make a case-by-case determination. Although EPA
has made every effort to avoid being overly broad in terms of covered
facilities that must submit an FRP, EPA understands that there may be
circumstances where the regulatory criteria are overinclusive. In such
cases, an owner or operator may seek a determination by the RA that the
covered facility does not have the potential to cause substantial harm
to the environment despite meeting the regulatory criteria. The Agency
recognizes that RAs possess unique knowledge of Region-specific
considerations and EPA has authority under E.O. 12777 to designate
covered facilities on a case-by-case basis that could reasonably be
expected to cause substantial harm to the environment. That said, EPA
expects to exercise this authority judiciously and in manner that is
reserved to ensure adequate protection of the environment. This type of
process is not without precedent; indeed, the Oil Pollution Prevention
FRP regulation has a similar provision in 40 CFR 112.20.
Moreover, EPA agrees with commenters who stressed that communities
with environmental justice concerns may have unique circumstances that
are not captured in the published applicability criteria. To be
sensitive to these specific issues, of which RAs are uniquely
positioned to have knowledge, EPA maintains that considering these
concerns and circumstances is necessary to protect these communities.
Similarly, the impacts of climate change may be difficult to anticipate
and vary widely; thus, the Regional ability to assess facilities on a
case-by-case basis and, if appropriate, to require a facility to
develop a response plan is warranted in order to protect the
environment.
EPA has decided to augment Sec. 118.5(b)(2) to specifically
reference CWA hazardous substance characteristics, such as ignitability
and reactivity. Thus, RAs may take such considerations into account
when determining if a covered facility could cause substantial harm to
the environment in the event of a worst case discharge to navigable
waters. This addition is important in certain instances to account for
the wide variety of CWA hazardous substances and their physicochemical
properties, including CWA hazardous substances present in waste,
especially in combination with the other substantial harm factors in
Sec. 118.5(b), of which the RA is uniquely situated to be
knowledgeable. In addition, and with further consideration of public
comments, EPA has decided to add Sec. 118.5(b)(10), whereby an RA may
consider facility density and potential cumulative impacts of co-
located facilities in requiring a covered facility to prepare and
submit an FRP. EPA agrees with commenters concerned about cascading
effects of a worst case discharge and submits that the RA is best
positioned to evaluate this potential in the regulated community.
Some commenters also urged EPA to remove the provision regarding
the process by which RAs determine that a covered facility could cause
significant and substantial harm through a worst case discharge into or
on navigable waters or a conveyance to navigable waters. However, the
CWA directs the President to develop criteria to identify a subset of
substantial harm facilities that could reasonably be expected to cause
both significant and substantial harm to the environment. As such, EPA
proposed factors for the RA to consider when determining that a covered
facility could cause significant and substantial harm to the
environment in Sec. 118.5(d), along with the substantial harm criteria
found in Sec. Sec. 118.3(c) and 118.5(b). Also, in Sec. 118.5(d)(3),
EPA has expanded the factors an RA may consider when designating a
covered facility as a significant and substantial harm facility to
include the condition of containers or equipment onsite, as
deteriorating or poor quality containers or equipment could more
readily fail. In addition, EPA removed a duplicative provision
referring to plan reviews. Finally, an owner or operator may appeal an
RA's determination that their covered facility could cause significant
and substantial harm to the environment through a worst case discharge
using the process in Sec. 118.6.
To assist RAs in achieving nationwide consistency, EPA intends to
outline specific screening procedures for use by RAs and to foster
consistency in how the substantial harm and significant and substantial
harm factors are applied. RAs should consider the relationship of the
substantial harm and significant and substantial harm factors and not
consider one factor in isolation except under unique circumstances.
Although the RA may consider that one factor is sufficient to require
that a response plan be submitted, this would be done only under
limited circumstances where site-specific conditions warrant. EPA
believes that this will help to ensure a greater degree of uniformity
in Regional determinations of substantial harm and significant and
substantial harm.
RAs will provide a written basis for the determination of
substantial harm or significant and substantial harm, which will be
made available to the covered facility owner or operator. An owner or
operator may use the appeals provision in Sec. 118.6 to request
reconsideration and ultimately appeal to the Administrator that their
covered facility could cause substantial harm or significant and
substantial harm to the environment from a worst case discharge into or
on navigable waters or a conveyance to navigable waters.
5. Appeals
EPA proposed and is retaining in Sec. 118.6 a two-step appeals
process to allow covered facility owners or operators seek
reconsideration of the RA's determination of substantial harm or
significant and substantial harm or the disapproval of a CWA hazardous

[[Page 21943]]

substance FRP, and then, if warranted, to appeal that decision to the
EPA Administrator. The two-step appeals process is similar to one that
has been available in the Oil Pollution Prevention FRP regulation for
close to 30 years and is intended to provide owners or operators with
an avenue to present their data and information to EPA through a formal
process.
In the first stage, the owner or operator submits a request for
reconsideration, including supporting data and information, to the RA.
Then, the RA will evaluate the submitted information and data and
decide whether to approve the covered facility's appeal or adjust its
evaluation of the ability to cause substantial harm to the environment.
The RA will issue a written decision, including the basis for the
determination, as soon as practicable. Depending on the outcome, the
owner or operator either must submit a plan or amendments to a plan
following the timelines in Sec. 118.4 or is not required to submit a
plan or amendments. After the RA issues a determination, the owner or
operator may appeal the decision to the EPA Administrator within 60
days. If the EPA Administrator requires a plan or amendments to be
submitted to EPA, the owner or operator shall follow the timelines in
Sec. 118.4.
As per the OPA 90 amendments to the CWA, the intent of this
regulation is to shift the burden of planning and response to covered
facilities rather than public resources; thus, putting the onus on the
owner or operator to disprove the need for a plan is appropriate.
6. Petitions
EPA proposed and is retaining in this final rule a petition
provision in Sec. 118.7 whereby the public and other government
agencies may petition EPA to determine whether a CWA hazardous
substance covered facility should be required to submit an FRP to EPA.
Petitions are submitted to the RA, who in turn reviews the submissions
as soon as practicable. Petitions must include a reasonable basis for
asserting that the covered facility may pose a risk of substantial harm
to the environment. Specifically, a petition must include a discussion
of how the factors in Sec. 118.3 apply to the covered facility.
Although including quantitative or other data as to the substantial
harm criteria would be ideal, petitioners are not required to submit
such data. EPA will make the petition available to the owner or
operator that is the subject of the petition and provide an opportunity
to respond. RAs may render a decision based solely on the information
in the petition and in the response provided by the owner or operator
that is the subject of the petition, but may also gather additional
information before rendering a decision.
In terms of public availability, EPA does not believe that making
all petitions public would serve to protect human health and the
environment. Some materials may contain sensitive information or be
inaccurate; once a covered facility is subject to FRP requirements, EPA
will make public those parts of the FRP that can be shared as
determined in conjunction with Federal partners like the U.S.
Department of Homeland Security (DHS) and the Federal Bureau of
Investigation (FBI). EPA is also not adding a deadline for acting on
petitions, since they and covered facilities may be complex, and it is
important to allow ample time for review and to work with both
petitioners and owners or operators to address any concerns.
EPA disagrees with commenters who assert that petitions will lead
to the regulation being unevenly applied. It is not unusual for
Executive Agencies to have a process that develops and establishes
applicability norms over time. A few commenters suggested that the rule
should require petitioners to provide supporting evidence and allow
covered facility owners or operators an opportunity to respond before
an RA decides how the Agency will proceed in response to such a
petition. Other commenters expressed concern that the rule does not
provide procedures for covered facilities that are the subject of a
petition to test the claims made in the petition, to submit data or
information, or rebut the petition in other ways. In response to these
concerns, EPA has revised Sec. 118.7 to specify EPA will make the
petition available to the owner or operator of the covered facility in
question and provide an opportunity to respond. In addition, the RA
will work with the owner or operator to substantiate the petition, as
appropriate. The appeals and petitions provisions are complementary:
one the one hand, the petition provision allows for stakeholder
participation in whether EPA determines if a covered facility poses a
risk of substantial harm to the environment through a worst case
discharge into or on navigable waters or a conveyance to navigable
waters and must prepare an FRP. On the other hand, the appeals
provision allows covered facilities that may meet the criteria but
could not reasonably be expected to cause substantial harm to the
environment from a worst case discharge into or on navigable waters or
a conveyance to navigable waters to appeal to the RA that the owner or
operator is not required to submit an FRP, or otherwise engage with EPA
on determinations.
While commenters expressed concern that the petition process is
based on subjective opinion and lacks evidence-based standards for
determining covered facility applicability, EPA will still determine
covered facility status based on the regulatory criteria in Sec. Sec.
118.3 and 118.5. EPA clarifies here that it is not necessary for
petitioners to provide detailed analyses and calculation as to whether
the covered facility meets one of the specific criteria in Sec. 118.3
but rather must provide a reasonable basis for asserting that the
covered facility may pose a risk of substantial harm to the
environment. For example, if a covered facility is located near a
wildlife sanctuary and appears to store significant quantities of a CWA
hazardous substance, then the petition need only include such
observations. That said, a petition that fails to provide a basis for
why a covered facility should be determined to reasonably be expected
to cause substantial harm to the environment from a worst case
discharge into or on navigable waters or a conveyance to navigable
waters (e.g., the covered facility is near a drinking water supply or a
priority sensitive environment listed in an ACP, or has a history of
frequent discharges to water or poor maintenance, etc.) may not receive
immediate action by the RA or may be summarily denied. The purpose of
the requirement to provide some basic information based on knowledge of
EPA's criteria is to help screen out frivolous, unfounded petitions.
The RA will use his or her discretion in following up on petitions that
do not include a reasonable basis to believe a covered facility could
cause substantial harm to the environment from a worst case discharge
into or on navigable waters or a conveyance to navigable waters.
To commenters concerned that communities at risk of a CWA hazardous
substance discharge would be dependent on petitions in order to protect
themselves, EPA maintains that the applicability criteria in Sec.
118.3 appropriately target the bulk of covered facilities that could
cause substantial harm to the environment from a worst case discharge
into or on navigable waters or a conveyance to navigable waters.
Rather, for the subset of covered facilities that may not be captured
using that mechanism, the public may submit a petition asking EPA to
pursue the matter. The RA then follows the processes in Sec. Sec.
118.3 and 118.5 to

[[Page 21944]]

determine whether a covered facility could cause substantial harm to
the environment.
One commenter requested that EPA authorize State Emergency Response
Commissions (SERCs) to make covered facility designations--due to their
greater local capacity to address environmental justice, responder and
public safety--unless the RA disagrees. EPA disagrees that SERCs should
be authorized to make covered facility designations, as this is EPA's
authority. The SERC may use the petition process to work with the RA in
determining whether a covered facility could cause substantial harm to
the environment through a worst case discharge into or on navigable
waters or a conveyance to navigable waters.
Finally, EPA disagrees that the petitions process is unprecedented
and expansive; the petitions process is similar to one that has been
available in the Oil Pollution Prevention FRP regulation for close to
30 years and is intended to provide stakeholders and the public with an
avenue to participate in the FRP determination process with EPA through
a formal process.
7. Exceptions and Exemptions
EPA proposed and is retaining in Sec. 118.8 certain exceptions and
exemptions to this regulation, but with some adjustments and
clarifications. Several commenters expressed concern about areas where
they thought the rule overlapped with other regulations or programs.
Below is a brief summary of the regulations commenters most commonly
cited as overlapping:

--The RMP regulation under the CAA's authority is for air releases; for
that reason alone, it is insufficient to rely upon to determine whether
a covered facility could cause substantial harm to the environment by
discharging into or on navigable waters (40 CFR part 68).
--The Oil Pollution Prevention Program FRP regulation is comprehensive
for oils but does not regulate CWA hazardous substances (40 CFR 112.20
and 112.21, Appendices C-F). Similarly, the Oil Pollution Prevention
Spill Prevention, Control, and Countermeasure (SPCC) program regulates
oils, specifically the prevention of oil spills (40 CFR part 112).
--Occupational Safety and Health Administration's (OSHA) Process Safety
Management (PSM) standard sets requirements for preventing or
minimizing the consequences of catastrophic releases of toxic,
reactive, flammable, or explosive chemicals in order to protect
workers. The provisions of the PSM standard were written to assure safe
and healthful working conditions for employees, not to protect the
environment from discharges of CWA hazardous substances. (29 CFR
1910.119).
--The CWA NPDES Permit Program, authorized by the CWA, controls water
pollution by regulating point sources that discharge pollutants into
waters of the United States. An NPDES permit establishes limits on what
can be discharged, monitoring and reporting requirements, and other
provisions to protect water quality. In essence, the permit translates
general requirements of the CWA into specific provisions tailored to
the operations of the facility discharging pollutants. A NPDES general
permit may be written to establish requirements that apply to eligible
facilities with similar operations and types of discharges that obtain
authorization to discharge under the general permit. It does not
require response planning and permitted discharges are not regulated
under this final rule (40 CFR part 122).
--Bureau of Alcohol, Tobacco, Firearms and Explosives ammonium nitrate-
fuel oil (ANFO) requirements apply to ANFO, which is not a CWA
hazardous substance (27 CFR part 555).
--USDOT regulations for product and waste shipping apply to items in
transportation, while this proposal applies explicitly to onshore non-
transportation-related facilities (49 CFR parts 171-185).
--DHS regulations do not require planning for worst case discharges of
CWA hazardous substance into or on the navigable waters or a conveyance
to navigable waters; rather, they identify and regulate high-risk
facilities to ensure security measures are in place to reduce the risk
that certain dangerous chemicals are weaponized by terrorists (6 CFR
part 27).
--The Emergency Planning and Community Right-to-Know Act (EPCRA)
Reporting Rule is a reporting rule and does not require worst case
discharge planning (40 CFR part 370).

EPA refers commenters to the TBD, available in the docket, for more
information on how the program elements in existing Federal programs do
or do not align with the requirements in CWA Sec. 311(j)(5).
After examining the RCRA regulations and commenter concerns, EPA is
adding an exemption at Sec. 118.8(b)(2)(viii) for the storage and
accumulation of hazardous waste subject to the Standards for Owners and
Operators of Hazardous Waste Treatment, Storage, and Disposal
Facilities (TSDF), 40 CFR part 264 and 40 CFR part 265 and Standards
Applicable to Generators of Hazardous Waste, 40 CFR part 262, subpart
M. For covered facilities subject to the TSDF requirements under 40 CFR
parts 264 and 265, these regulations comprehensively address the
program elements required under CWA section 311(j)(5)(D). For hazardous
waste generators covered under 40 CFR part 262, EPA is exempting those
generators subject to subpart M (i.e., large quantity generators) for
the same reason; the contingency plan and emergency procedures
requirements therein comprehensively address the program elements
required under CWA section 311(j)(5)(D). While small quantity
generators have preparedness and prevention requirements, these do not
cover all required program elements under CWA section 311(j)(5)(D), and
very small quantity generators are not subject to prevention and
preparedness requirements nor required to develop a contingency plan
and emergency procedures. Since hazardous waste at these generators may
contain CWA hazardous substances and are not subject to all RCRA
hazardous waste requirements, EPA has decided that hazardous waste
generators not subject to RCRA part 262, subpart M requirements must
follow the applicability criteria at Sec. 118.3 to determine if they
could cause substantial harm to the environment through a worst case
discharge into or on navigable waters or a conveyance to navigable
waters. Solid, non-hazardous waste is also subject to this final rule.
Additionally, EPA excepts tanks already regulated under the
underground storage tank (UST) program at 40 CFR part 280 at 40 CFR
118.8(a)(4). EPA is not regulating substances present as oil and that
may be part of an oil mixture, such as gasoline, at covered facilities
in this action since those are regulated under 40 CFR 112.20.
In terms of adjustments and clarifications, the Agency clarifies
that permitted discharges are not included in the Sec. 118.3
applicability determinations, nor the Sec. 118.11 FRP requirements.
Also, EPA is adding an exemption under Sec. 118.8(b)(2)(v) for
wastewater whereby a POTW does not need include CWA hazardous
substances present in wastewater entering their collection system prior
to treatment under a NPDES permit in their threshold quantity
determinations. The Agency, however, notes the pretreatment program
oversight requirements in 40

[[Page 21945]]

CFR 403.8(f) for any industrial users that may be subject to this rule,
and recommends control authorities evaluate whether program elements
such as slug control plans or local limits expressed as best management
practices should be issued or revised in coordination with the
requirements of this rule.
Additionally, EPA clarifies here that the exemption under Sec.
118.8(b)(2)(iv) for use of process water or cooling water is specific
to amounts of a CWA hazardous substance present in water drawn into a
covered facility from the environment or municipal sources. For
example, chlorine present in water taken from municipal sources does
not have to be considered for threshold determination. This is
consistent with the approach taken by other chemical regulations,
including Toxics Release Inventory (TRI) and RMP, and DHS's Chemical
Facility Anti-Terrorism Standards (CFATS) program and reflects the low
level of risk of such waters.
Finally, this regulation applies to only the non-transportation-
related portion of MTR facilities that are subject to both EPA and USCG
jurisdiction, as per Sec. 118.8. As such, the non-transportation-
related portion of the facility is generally defined as the valve
manifold adjacent to the tank nearest the connection to the
transportation-related portion of the facility (i.e., the structure
used or intended to be used to transfer CWA hazardous substances to or
from a vessel or pipeline). The interface may be defined differently at
a specific facility if agreed to by the RA and the appropriate Federal
official.
8. Mixtures
In Sec. 118.9, EPA proposed and is retaining in this final action
a mixture provision for determining the CWA hazardous substance maximum
quantity onsite at the covered facility of CWA hazardous substance(s),
under Sec. 118.3(a) and mixture worst case discharge quantities under
Sec. 118.10. This provision is based on CERCLA Notification
Requirements, found in CERCLA section 103(a) (40 CFR 302.6). EPA agrees
with a commenter that noted the chosen approach mirrors existing
regulations on how to treat mixtures of CWA hazardous substances under
the CWA and CERCLA. Regulated facilities are familiar with the mixture
rule and how to apply it.
EPA disagrees with commenters who argued that requiring the use of
the lowest RQ when the exact mixture composition is unknown is overly
conservative, unrealistic, and does not reflect the actual risk of
harm. If there are known and unknown substance constituent quantities,
the covered facility owner or operator must only apply the lowest RQ to
the unknown portion of the mixture, not the entire quantity. This
approach is properly conservative and reflective of risk. If a covered
facility owner or operator can provide evidence that the mixture
composition does not meet the lowest RQ, they may use the appeals
provision in Sec. 118.6 to adjust their maximum quantity onsite or
worst case discharge scenario quantity, or for reconsideration of their
status.
A few examples illustrate how the mixture rule is applied when
evaluating whether the quantity of CWA hazardous substances onsite is
greater than or equal to their respective RQs. The first example
provides a case where a covered facility has a mixture where all
components are known. The covered facility has 5,000 pounds of a
cleaning solution containing 45-55% water, 1-10% chromic acid, 1-10%
sodium sulfate, and 25-35% sulfuric acid onsite. Chromic acid (CAS
7738-94-5) and sulfuric acid (CAS 7664-93-9) are CWA hazardous
substances with RQs of 10 and 1,000 pounds, respectively. The owner or
operator assumes the highest percentage of each CWA hazardous substance
in the range, performing mixture calculations based on 10% chromic acid
and 35% sulfuric acid. Based on the total quantity of the cleaning
solution at the covered facility, there are 500 pounds of chromic acid
and 1,750 pounds of sulfuric acid onsite. The threshold quantity for
chromic acid is 10,000 pounds, while the threshold quantity for
sulfuric acid is 100,000 pounds. The quantities of chromic acid and
sulfuric acid onsite are below the threshold quantity.
A second example demonstrates threshold calculations when the
composition of a mixture is not known. A large manufacturing covered
facility produces chromated copper arsenate as a wood preservative for
specialized timber applications. The covered facility regularly
generates production waste, which is stored in a container. The
container has 1,000 pounds of a waste of unknown composition, but which
has been determined to be non-hazardous under RCRA and contains water,
copper oxide, arsenic pentoxide, and chromic acid. Arsenic pentoxide
(CAS 1303-28-2) and chromic acid (CAS 7738-94-5) are CWA hazardous
substances with RQs of 1 and 10 pounds, respectively. The covered
facility has 50 pounds of arsenic pentoxide and 75 pounds of chromic
acid onsite as reactants. Because the composition of the waste is
unknown, the owner or operator must assume that the entire mixture is
composed of the lowest RQ substance, in this case arsenic pentoxide.
Based on the total mass of the waste, the owner or operator calculates
that they have 1,000 pounds of arsenic pentoxide from the waste
mixture, and 50 pounds of arsenic pentoxide as a reactant (but which is
not a commercial chemical product), with a total mass of 1,050 pounds
of arsenic pentoxide. The threshold quantity for arsenic pentoxide is
1,000 pounds. The quantity of arsenic pentoxide onsite is above the
threshold quantity.
A final example demonstrates a case when part of a waste mixture
containing CWA hazardous substances is known and part is unknown. A
small, covered facility uses hydrochloric acid and nitric acid as part
of its manufacturing process. The spent acid is collected in a large
vessel containing 100,000 pounds of a mixture with a pH of 3 composed
of 25% water by weight and an unknown percentage of hydrochloric acid,
nitric acid, and several other unknown chemical substances.
Hydrochloric acid (CAS 7647-01-0) and nitric acid (CAS 7697-37-2) are
CWA hazardous substances with RQs of 5,000 and 1,000, respectively. The
covered facility has 1,000 pounds of hydrochloric acid and 5,000 pounds
of nitric acid onsite. Because 25% of the waste mixture is of known
composition, the owner or operator only needs to assume the remaining
75% of the mixture is the CWA hazardous substance with the lowest RQ.
Because nitric acid has the lowest RQ, the owner operator calculates
that they have 75,000 pounds of nitric acid in the waste mixture, with
80,000 total pounds of nitric acid onsite. The threshold quantity for
nitric acid is 1,000,000 pounds. The quantity of nitric acid onsite is
below the threshold quantity.
Note that CWA hazardous substance maximum quantities onsite are
calculated by CWA hazardous substance. They should not be aggregated,
even if they have the same RQ.
9. Worst Case Discharge Calculations
As discussed earlier, EPA is adjusting the worst case discharge
calculations in Sec. 118.10. The CWA, as amended by the OPA, defines
the worst case discharge for a facility as ``the largest foreseeable
discharge in adverse weather conditions.'' As detailed above, adverse
weather conditions include those due to climate change, which may
consist of challenging climatic conditions such as those that would
maximize the peak concentration of the discharged substance in the
receiving waterbody. The OPA Conference Report goes on to

[[Page 21946]]

state that the largest foreseeable spill from a given type of facility
is intended to describe a case that is worse than either the largest
spill to date or the maximum most probable spill for that type of
facility (see H.R. Rep. No. 101-653, l0lst Cong., 2d Sess. 1990 at pp.
149-150.), which is unlikely to be the entire capacity or quantity
stored at a facility in a single event.
Again, EPA has adjusted its approach to worst case discharge
scenario quantity to use the maximum quantity of a single container for
substances stored in separate containers or the maximum quantity of a
group of interconnected containers, rather than capacity. Facility
circumstances and methods of storage vary widely, and owners or
operators should know their inventories and largest containers.
Additionally, this simplifies procedures for facilities accounting for
mixtures. EPA has further adjusted its approach to require worst case
discharge scenarios for all CWA hazardous substances onsite above the
threshold quantity once a covered facility is subject to this
regulation. This will satisfy the statutory requirement to plan for CWA
hazardous substance worst case discharges and address the concerns of
commenters around which substance to use in worst case discharge
scenarios. The Agency has also revised language to clarify that covered
facility owners or operators must compare the distance to the endpoints
provided in Appendix B against their calculated CWA hazardous substance
planning distance to determine if the covered facility could cause
substantial harm to FWSE or public receptors from a worst case
discharge into or on navigable waters or a conveyance to navigable
waters and also in their hazard evaluation once a covered facility is
subject to the regulation. EPA has further adjusted the properties of
the CWA hazardous substance to be evaluated to reflect those properties
as they relate to a discharge to navigable waters. Additionally, an
owner or operator must provide evidence in their Appendix A:
Substantial Harm Certification Form that containers with common piping
or piping systems are not operated as one unit. Finally, EPA has added
pH and alkalinity under the conditions of the receiving water to better
characterize a worst case discharge in Sec. 118.10(b)(ii)(E).
While a few commenters were concerned about piping and measuring
the contents of piping systems, EPA maintains that, in general, if a
covered facility owner or operator has two or more containers that
contain a CWA hazardous substance and are connected through piping or
hoses to transfer the CWA hazardous substance, the owner or operator
must consider the total quantity of the CWA hazardous substance in all
the connected containers and piping when determining the maximum worst
case discharge scenario quantity. If the containers are connected for
transfer of the CWA hazardous substance using hoses that are sometimes
disconnected, the owner or operator still must consider the contents of
the containers as one process, because if one container were to rupture
while a hose was attached or a hose were to break during the transfer,
both containers could be affected. Again, the statute directs EPA to
address the worst case discharge scenarios--even in situations where
the conditions are not static, i.e., sometimes containers are connected
but not always. Therefore, the owner or operator must count the
quantities in both containers and in any connecting piping or hoses.
Similarly, the presence of automatic shutoff valves or other devices
that can limit flow do not change the analysis because these are
assumed to fail for the purpose of determining the worst case discharge
scenario quantity. This is consistent with and required under other
regulations, such as onshore oil pipelines regulated by the USDOT
Pipeline and Hazardous Materials Safety Administration.
EPA agrees with commenters who noted that there are chemicals in
the CWA hazardous substance list at 40 CFR 116.4 that may be in either
a solid or gaseous form upon release and may be physically unable to
reach navigable waters or a conveyance to navigable waters.
Specifically, facility circumstances and methods of storage vary
widely, so the covered facility owner or operator must use their best
professional judgment based on the physicochemical properties and
characteristics of the substance at issue and best available
information and practice in determining if a worst case discharge or a
CWA hazardous substance that releases as a gas or solid could, in
adverse weather conditions, reach navigable waters or a conveyance to
navigable waters, cause injury to a public receptor or FWSE, or
adversely impact a PWS. This may mean that for a substance released as
a gas in adverse weather conditions and without consideration of
passive mitigation, secondary containment, or administrative controls,
the distance to endpoints cannot be calculated. Solid CWA hazardous
substances may be miscible in water and, as such, a planning distance
may be calculated. Thus, if a solid stored as a powder or in pellets
has the ability to release in a flood scenario and reach navigable
waters or a conveyance to navigable waters, the covered facility owner
or operator must make a substantial harm determination, and if
determined to be able to cause substantial harm to the environment from
a worst case discharge of a CWA hazardous substance into or on
navigable waters or a conveyance to navigable waters, submit an FRP to
EPA. However, EPA stresses that adverse weather conditions, including
extreme events due to climate change, must be considered. As such, if a
solid stored as a powder or in pellets could release in a high-
intensity rainfall event or flood scenario and navigable waters or a
conveyance to navigable waters, the covered facility must make a
substantial harm determination. Similarly, should a worst case
discharge consist of a CWA hazardous substance releasing as a gas that
could mix with rainwater and then reach navigable waters or a
conveyance to navigable waters, the covered facility owner or operator
would need to examine that outcome in their worst case discharge
scenario(s). Relatedly, EPA is not choosing to set a temperature range
or define the form of the substance as it releases; instead, the
covered facility owner or operator should make a similar determination
as described above. The Agency recognizes commenter concern over
covered facilities with a variable inventory of CWA hazardous
substances. Owners or operators of these covered facilities will need
to plan for the maximum quantity in a single container or
interconnected containers of a CWA hazardous substance onsite at any
one time and forecast when such occasions may occur. Due to the
potentially catastrophic effects of a worst case discharge, the Agency
does not see these requirements as overly burdensome. EPA notes that
plans can and should be updated if, for example, there is an unexpected
increase in demand such that the worst case discharge scenario quantity
is outside of anticipated fluctuations and necessitates different or
more response resources, requiring an amendment to the FRP as in Sec.
118.4(b).
While some commenters asked for clarification on the timing of a
discharge, EPA maintains that a worst case discharge may occur
instantaneously or over time, and a covered facility owner or operator
is best situated to determine the appropriate timing scenario based
onsite-specific considerations and the

[[Page 21947]]

physicochemical properties of the CWA hazardous substances in question.
The timing used for the worst case discharge scenario should reflect
reasonable conditions that have the greatest potential to cause
substantial harm. One commenter suggested that calculations should be
based on the dollar amount of potential damage. EPA is not following
this approach as such calculations would be very difficult to assess
and could fluctuate over time dependent on inflation and the costs of
equipment, materials, labor, etc.
The Agency is aware that CWA hazardous substance planning distance
modeling is a critical component of successful implementation of this
regulation and is engaged with its research arm to identify additional
data and resources to aid the regulated community in compliance. That
said, EPA disagrees with commenter concerns that having covered
facilities exercise their professional judgment and applying best
modeling practices creates opportunities for inconsistency, as it
provides flexibility and allows for those most familiar with the
substance, facility, and site conditions to examine the event of a
worst case discharge and its potential effects.
For commenters concerned with public availability of the models
used, Sec. 118.10 as proposed and finalized in this action requires
covered facility owners or operators to provide EPA access to models,
submit documentation substantiating the methodology, and describe the
features to local emergency planners. EPA will work with other Federal
partners to determine the feasibility and safety of providing such
information to the public.
For the commenter who suggested requiring use of the Chezy Manning
equation as in the Oil Pollution Prevention FRP regulation (40 CFR part
112, Appendix C), this approach may be applicable to some oil-like CWA
hazardous substances. However, it is not generally applicable to the
myriad characteristics and effects of the 296 hazardous substances
listed in 40 CFR 116.4. So, while they may be useful tools, dictating
or limiting the analysis to those methods alone would not be adequate
for calculating planning distances for all CWA hazardous substances,
though they may be used for oil-like CWA hazardous substances as
appropriate.
10. Facility Response Plan Requirements
EPA proposed and is finalizing with adjustments the FRP
requirements in Sec. 118.11. One major objective of the OPA 90
amendments to section 311(j)(5) of the CWA was to shift the burden of
response from public to private resources. While a worst case discharge
of hazardous substances will likely require the use of both public and
private resources, section 311(j)(5)(D)(iii) of the CWA states
specifically that facility owners or operators must identify and ensure
by contract or other means the availability of private personnel and
equipment necessary to respond to the maximum extent practicable to a
worst case discharge. The Agency clarifies here that covered facility
owner or operators who meet the screening and one or more of the
substantial harm criteria must prepare and submit an FRP to EPA that
plans for all CWA hazardous substances onsite above the threshold
quantity but not CWA hazardous substances onsite below the threshold
quantity.
The requirements in Sec. 118.11 are designed to address concerns
specific to CWA hazardous substances; as such they do not mirror
exactly the requirements under the Oil Pollution Prevention FRP
regulation. A written plan that complies with other Federal contingency
plan regulations or is consistent with the approach in the National
Response Team's ICP Guidance (``One Plan'') and that includes the
elements required will satisfy the requirements of this final rule.
Facilities may augment an existing response plan with requirements that
are specific to this action.
The Agency is aware that planning for any number of the 296
possible CWA hazardous substances with disparate characteristics and
impacts may be involved. That is one reason EPA has implemented an
initial screen with relatively bright line criteria to that will
identify covered facilities that do not need to engage in further
analysis.
In this final action, once a covered facility determines it meets
one of the substantial harm criteria, the owner or operator must plan
for all CWA hazardous substance onsite above the threshold quantity.
EPA has adjusted its approach from the proposed rule, where one CWA
hazardous substance worst case discharge scenario provided the basis
for the FRP. This change is consistent with EPA's statutory authority
under this action to require plans for covered facilities that, because
of their location, could cause substantial harm to the environment from
a worst case discharge into or on the navigable waters. It also
recognizes that response and/or recovery actions may vary widely
depending on the physicochemical properties of the substance, so one
CWA hazardous substance at facilities with multiple CWA hazardous
substances that meet or exceed the threshold quantity cannot adequately
inform that facility's FRP.
i. Consistency With National Contingency Plan and Area Contingency
Plans
Despite supporting the overall proposed rule, one commenter
requested EPA add a provision to Sec. 118.11(a)(1) to provide a way to
evaluate facility owner or operator compliance with the requirement to
ensure consistency with the NCP and ACPs. This seems like a commonsense
suggestion that should not impose any additional burden on facilities
and will allow the Agency and other reviewers to confirm compliance and
cross check relevant plans. Accordingly, EPA has added Sec.
118.11(a)(1)(ii), requiring a signed affirmation of review of relevant
plans and Sec. 118.11(a)(1)(iii), requiring a list of area and sub-
area plans reviewed.
Additionally, EPA has augmented this provision to require
consistency with Regional Contingency Plans (RCPs) as per 40 CFR
300.210. This is appropriate and consistent with the requirements of
the CWA since RCPs form a fundamental component of the NCP.
ii. Qualified Individual
Several commenters stated that the requirements for a QI are
extremely difficult to meet and impractical, while placing all these
responsibilities on one individual is inconsistent with most
facilities' operational structures. On the one hand, EPA understands
that this is a new program and these requirements may be foreign
compared to how owners or operators currently do business. On the other
hand, such requirements have been in operation for close to 30 years in
the Oil Pollution Prevention FRP regulation, so there is precedent and
a successful model for this approach. Accordingly, EPA is keeping in
place the requirements for a QI. However, in response to the concerns
raised in the comments, EPA is clarifying that a documented management
system that can perform the stated functions may take the place of a
single individual. For example, as in the Oil Pollution Prevention FRP
regulation, duties may be spread across corporate departments and
consist of a regional QI structure, corporate call center, and
corporate media relations department.
As stated in the OPA conference report (H.R. Rep. No. 101-653,
101st Cong., 2d Sess. 1990), a main objective of this statutory mandate
is to shift the burden of response from public to private resources. A
sufficiently trained QI can be a valuable member of the incident
response team who has

[[Page 21948]]

intimate knowledge of the facility and its operations, allowing the QI
to make better and informed decisions for the facility if the plan
needs to be put into action as well as how the facility response fits
into the larger community response. Assuming public responders will
take on this role is inappropriate to this action.
In Sec. 118.11(a)(2)(xii), EPA is requiring QIs to acquire and
maintain incident commander training requirements consistent with 29
CFR 1910.120(q)(6)(v). Commenters asserted that this is inappropriate
because OSHA's Hazardous Waste Operations and Emergency Response
(HAZWOPER) standard at 29 CFR 1910.120 is for uncontrolled releases,
which could be mitigated by passive mitigation and thus be controlled.
EPA maintains that a worst case discharge into or on navigable waters
or a conveyance to navigable waters that causes substantial harm to the
environment is, by definition, an uncontrolled release and is not
allowing for consideration of passive mitigation in this final action.
EPA maintains that proper facility personnel training is critical to an
effective response program.
iii. Emergency Response Information
EPA has endeavored to provide a framework in Sec. 118.11(b) that
is consistent with the Oil Pollution Prevention FRP regulation in 40
CFR 112.20 while maintaining the flexibility needed to address the
specific planning needs for 296 disparate CWA hazardous substances.
Facility Information
EPA agrees with a commenter suggestion to add EPA identification
numbers to make it easier for EPA, response officials, and stakeholders
to cross-reference other relevant information about the facility
related to discharge response and preparedness. As such, the Agency has
added ``EPA identification numbers'' as a data element to report so
facility owner or operators can report various EPA ID numbers they may
use, such as TRI IDs, Facility Registry Service (FRS) numbers, etc.
This will aid in cross referencing submissions across programs.
Additionally, to provide consistency with the Oil Pollution
Prevention FRP regulation, EPA is adding that a facility owner or
operator must indicate whether their facility is located in or drains
into a wellhead protection area as defined by the SDWA. This
information will aid responders in determining whether further
assessment of impacts to those areas is warranted.
Owner or Operator Information
The Agency maintains that information on the facility owner or
operator is sufficient; both are not needed. EPA is not requiring
notification of related facilities nearby and disagrees with a
commenter who suggested that listing all facilities within a three-mile
radius that are under common ownership would enhance response planning
efforts. Related information should be included in the hazard
evaluation, where a facility owner or operator would identify nearby
businesses that could be affected by a worst case discharge.
Hazard Evaluation
The Agency is aware of the complexity and cost of modelling
endpoints for all CWA hazardous substances above the threshold,
examining communities with environmental justice concerns, and
considering climate change impacts in hazard evaluations. EPA intends
to provide tools and compliance assistance to help the regulated
community comply with these requirements and maintains that their
inclusion is critical to protect the environment in the event of a
worst case discharge. The hazard evaluation will additionally serve to
inform equipment selection (i.e., based on physicochemical
characteristics of the CWA hazardous substance as floater, sinker, or
soluble in water) and response actions to be taken, since those will
all depend on what risks are identified and characterized, the
necessary control methods, and communications required. Additionally,
EPA has added a requirement that, when identifying risks, facility
owners or operators must assess the age of CWA hazardous substance
containers, since older containers may be more susceptible to failure.
Facility owners or operators must also identify taste or odor
thresholds in water in their assessment of the ability to adversely
impact a PWS in order to more fully inform the relevant PWS of the
risks.
For the commenters concerned about assessing cascading failures,
EPA does not have access to facility-specific risk information and is
not taking on that responsibility for this evaluation, nor is it
requiring facilities to assess these impacts across facilities.
However, the risks associated with facility density is a factor the RA
may consider in Sec. 118.5(b)(10) when determining if a facility could
cause substantial harm to the environment through a worst case
discharge into or on navigable waters or a conveyance to navigable
waters. That said, it is incumbent upon the facility owner or operator
to identify nearby schools, businesses, places of worship, or other
areas that could be impacted by a worst case discharge.
In addition, the hazard evaluation must examine the effects of CWA
hazardous substance worst case discharges on communities with
environmental justice concerns as well as the effects of climate
change, including those that result in low flow conditions in receiving
water bodies, on the likelihood, duration, and impacts of a CWA
hazardous substance worst case discharge into or on navigable waters or
a conveyance to navigable waters. EPA is not specifying specific
climatological data or scenarios in regulation in order to be flexible
and in recognition that climate change impacts are occurring in
unexpected ways. Indeed, climate change considerations may include the
increased frequency and intensity of extreme weather events,
temperature fluctuations, rising seas, storm surges, inland and coastal
flooding, drought, wildfires, and permafrost melt in northern areas.
Instead, the Agency will continue to provide compliance assistance for
assessing both climate change impacts and effects on communities with
environmental concerns.
Reportable Discharge History
EPA maintains that reportable discharge history is not only
relevant but also an appropriate substantial harm criterion; this
information is critical to scenario development, including lessons
learned from past CWA hazardous substance discharges and response
efforts. In terms of a timeline for reporting, EPA is following the
lead of the Oil Pollution Prevention FRP regulation and requiring this
information to be retained for the life of the facility. EPA notes that
permitted discharges under NPDES and reportable discharges under 40 CFR
part 112 are covered under those regulations. EPA is not requiring
information on non-CWA hazardous substance discharges, since it is
unclear at best how relevant they are or would be to worst case
discharges of CWA hazardous substances. Similarly, EPA is only
including reportable discharges that reach navigable waters, since
other discharges are outside the scope of this action.
Another commenter suggested that that any discharge above a RQ is
already required to be reported under the CWA or the ancillary State
program, so it should be sufficient for the CWA hazardous substance FRP
to simply reference the notification submitted to EPA or the State. EPA
disagrees that this

[[Page 21949]]

is an adequate substitute for purposes of using the information as a
planning tool.
Response Personnel and Equipment
Pursuant to Sec. 118.11(b)(5), facility owners or operators must
provide the identity and a description of response personnel and
equipment and response action implementation necessary to respond to a
discharge of a CWA hazardous substance. The Agency clarifies that a
management system that clearly outlines the spill response roles will
be sufficient for this requirement, as long as it is properly
documented.
Contracts
EPA has revised the contracts requirement to explicitly require
response resources with firefighting capability. Adding this
clarification will aid facility owners or operators in their
preparations for a worst case discharge due to fire or explosion, as
per the statutory requirement. This is also consistent with the Oil
Pollution Prevention FRP regulation at 40 CFR part 112, Appendix E,
section 7.4. If a facility does not have adequate resources onsite and
it is unable to rely on locally available resources with firefighting
capabilities, the facility owner or operator must identify such
resources and ensure they are available by contract or other approved
means as per Sec. 118.2. The plan must also identify an individual,
who could be the QI, at the facility to work with the local fire
department during a response and verify that sufficient well-trained
resources are available within a reasonable response time to respond to
a worst case discharge.
EPA recognizes that, in many cases, contracting resources will need
to be identified to fill the role of SROs. Most large Oil Spill Removal
Organizations already have the capability to respond to hazardous
material incidents, particularly if they have been contracted by truck
and rail carriers. EPA expects that the potential increase in demand
for SROs caused by the rule will result in greater competition and
increased market entry by new contractors. Additionally, in Sec.
118.4, EPA is providing a 36-month implementation period before
facility owner or operators must submit plans. Finally, EPA will work
with USCG to identify SROs that can fulfill this role.
Notification Lists
EPA received a variety of suggestions of possible interested
parties who could potentially be contacted in the event of a discharge.
EPA is not expanding the scope of the notification list, since Federal,
Tribal, State, and local responders, as well as the non-specific
listing of potential receptors or interested parties is inclusive of
all of these suggestions. The Agency did, however, remove the
requirement to notify the Federal On-Scene Coordinator (OSC) and/or
Regional Response Center, since this notification will be handled by
the NRC. Federal, State, and local responders will be best positioned
to determine whether additional types of notifications are necessary
and will be most knowledgeable about the language needs of their local
community. Additionally, local responders will be aware of special
populations, e.g., hospitals, long-term care homes, assisted living
facilities, etc., that may have specific concerned and needs in an
emergency situation.
EPA can expect facilities to ensure that a community notification
system is available because FEMA has established the Integrated Public
Alert & Warning System (IPAWS) for community notification. This system
provides authenticated emergency and life-saving information to the
public through mobile phones using wireless emergency alerts. It also
provides alerts to radio and television via the Emergency Alert System
and on NOAA's Weather Radio. The Emergency Alert System devices found
at radio, TV and cable stations can support multiple languages and
wireless Emergency Alerts can support both English and Spanish. EPA has
judged that the presence of State and/or local IPAWS alerting
authorities--with the designated authority to alert and warn the public
when there is an impending natural or human-made disaster, threat, or
dangerous or missing person--in all 50 States provides the necessary
infrastructure for facilities to ensure that a community notification
system is operational in the event of a worst case discharge of a CWA
hazardous substance with the potential to impact the public. The most
applicable alerts through this system would be the imminent threat and
public safety alerts. Imminent threat alerts include natural or human-
made disasters, extreme weather, active shooters, and other threatening
emergencies that are current or emerging. Public safety alerts contain
information about a threat that may not be imminent, or about an
imminent threat that has occurred.
EPA disagrees with commenters who argued that ``preferred
communication'' should be removed, since telephone call is not the only
method of notification. The reason telephone communication has been
historically preferred is because the ``sender'' knows that they have
gotten through, or just as importantly, that they have not gotten
through and need to continue trying. That said, as long as receipt of
the communication is confirmed, notification can take any number of
electronic forms, including text or email.
Discharge Information
EPA clarifies that there is an expectation that a facility will
provide response officials with material updates to discharge
information as the facility learns more about the scope and nature of
the discharge as it becomes available to aid response efforts.
Personnel Roles and Responsibilities
In response to the concerns raised in the comments, the Agency is
clarifying that a documented management system that can perform the
stated functions may take the place of a specific individual.
Response Equipment Information
In order to avoid unnecessary confusion or redundancy, EPA notes
that CWA hazardous substance FRPs may reference lists in other plans as
long as they meet the requirements of Sec. 118.11. For example, oil
FRP plan holders could reference their existing response equipment and
update the narrative to meet the CWA hazardous substance FRP
requirements in an ICP.
EPA disagrees with a commenter who asserted that monitoring and
sampling equipment should be specified as ``can be made available.''
Since time will always be of the essence in responding to a worst case
discharge, these items are an important component of CWA hazardous
substance response and should be actually available rather than
possibly available. Additionally, plan holders should refer to their
ACP, which contains equipment and response resource requirements in
some areas. Finally, determining the type, quantity, etc. of response
resources may vary widely given the range of facilities and chemicals
at issue, which is one reason EPA has decided that facility owners and
operators should have the latitude to make these types of
determinations.
Evacuation Plans
One commenter suggested that the final rule explicitly require FRPs
to identify the community evacuation plan(s) with which they
coordinated and how that coordination with the surrounding community
was conducted. EPA agrees with the commenter that this is an important
aspect of response planning for a worst case discharge and has adjusted
its approach to require FRPs to identify and list the community

[[Page 21950]]

evacuation plans consulted in Sec. 118.11(b)(11).
The Agency recognizes that evacuation routes may vary, which is why
Sec. 118.11(b)(11) includes ``limitations on evacuation routes'' as a
plan element. A facility may include more than one diagram to reflect
different scenarios as necessary. Facility owner or operators may
include evacuation plans prepared in accordance with 29 CFR 1910.38,
but they must reflect the requirements of this section.
To the commenter who suggested cross referencing to evacuation
plans prepared under other statutes, while EPA understands there is
some redundancy in submitting a plan and in some cases cross
referencing is appropriate, the Agency maintains submitting the
evacuation plan here allows OSCs to have the plans readily available in
the event of a worst case discharge and to inform coordinated response.
However, a facility owner or operator may combine their plans in a
single ICP to reduce the administrative burden.
Discharge Detection Systems
The Agency maintains that in the event of a worst case discharge,
discharge detection systems are critical to inform response timelines.
If a facility demonstrably has the ability to cause substantial harm to
the environment, it must also have the ability to detect when such a
discharge is occurring. EPA notes, however, that the facility owner or
operator may include personnel procedures (visual examination, etc.)
designed to detect discharges. EPA recognizes that this may increase
costs but maintains that the effects of worst case discharges can be
catastrophic and costly (see chapter 3 of RIA in the docket).
EPA disagrees with a commenter who argued that discharge detection
systems for the 296 CWA hazardous substances should follow the same
requirements as for oils. The context of this regulation is for worst
case discharges of CWA hazardous substances, as such, discharge
detection systems should be sufficient for those events. Additionally,
the Agency notes that these systems should not be limited to response
actions, as they may alert a facility owner operator of a discharge in
the first place.
Response Actions
EPA has adjusted the language in this section to clarify that air
monitoring and water sample collection, including analytical methods
and laboratory support, must be described in this section. Monitoring
and sampling are critical components of CWA hazardous substance release
responses, since many CWA hazardous substances cannot be recovered, in
contrast to oil discharges, where recovery is more likely feasible.
Therefore, it is imperative that they be planned for accordingly.
Additionally, and in the same vein, EPA has added a requirement to
identify types of environmental monitoring to be collected, including
method collection techniques, parameter of interest measurement, a
description of how the data will be used in a response, and personal
protection and safety considerations.
A facility owner or operator; PWS; or responding Federal, State, or
local agency can determine whether it is necessary to obtain a third-
party to assess and monitor the community health effects following a
hazardous discharge to a PWS and make this information publicly
available. This will be part of the response actions to a discharge.
One commenter recommended that EPA require facilities to develop a
safety plan prior to conducting sampling that considers variable
factors like weather conditions, chemical hazards, and situational
awareness. EPA notes provisions for worker health and safety are found
at Sec. 300.150 of the NCP. The Agency emphasizes that the NCP
requires compliance with applicable worker health and safety
regulations, including OSHA, under Sec. 300.150(b) during a response
action taken by the responsible party, the responsible party must
assure that an occupational safety and health program consistent with
29 CFR 1910.120 is made available for protection of workers at the
response site.
Finally, EPA has added requirements for response actions to be
taken within one- and two-hours of discharge detection. Within one hour
of discharge detection, actions include making notifications,
mobilizing facility personnel, identifying the extent of the incident,
coordinating with the SRO, consulting the hazard evaluation to
determine potential effects of the discharge, ensuring containment and
neutralization systems are working, evacuation assessment, and
coordination with PWSs and local responders. Within two hours,
resources and monitoring must be deployed. Explicitly stating EPA's
expectations within these critical response time frames will ensure
resources are ready and available, and guide exercise and training
programs as well as GIUEs, further enabling readiness.
Disposal Plans
EPA has adjusted its approach to include disposal plans for
firefighting foam and runoff. As seen in responses such as the
Menominee Michigan Warehouse Fire, where several million gallons of
fire suppression water have been collected to minimize runoff of fire-
related contaminants into to the Menominee and Marinette water
treatment plant and adjacent Menominee River,\9\ these types of plans
are important to ensure chemicals are properly disposed of and to
minimize runoff of fire-related contaminants.
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\9\ <a href="https://response.epa.gov/site/site_profile.aspx?site_id=15823">https://response.epa.gov/site/site_profile.aspx?site_id=15823</a>.
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Containment Measures
One commenter recommended that EPA define the term ``adequate
containment'' to prevent industry confusion and differences in
interpretations by the regions. Adequate containment will vary based on
the worst case discharge scenario and associated response actions and
consist of sufficient resources to contain the items described in Sec.
118.11(b)(15). As per the statutory authority of this action under CWA
sec. 311(j)(5), this is a response planning regulation. Inherently
safer technologies and designs related to CWA hazardous substance
storage are outside the scope of this rule. Nonetheless, EPA notes that
Sec. 118.11(b)(15) includes requirements for measures to provide
adequate containment and drainage of discharged CWA hazardous
substances in a response scenario, as this is a response function.
Training Procedures
See section III.D.vi of this preamble for a discussion of training
procedures.
Exercise Procedures
See section III.D.vi of this preamble for a discussion of training
procedures.
Self-Inspection
EPA is finalizing Sec. 118.11(b)(18) as proposed.
iv. Emergency Response Action Plan
In Sec. 118.11(c), EPA has added a provision requiring an
Emergency Response Action Plan (ERAP), similar to the provision under
the Oil Pollution Prevention FRP regulation at 40 CFR 112.20(h)(1). As
detailed in the proposed rule, the ERAP's purpose is to provide a
summary of steps for discharge source stabilization, including
immediate actions by the facility incident management team, such as
internal and external notifications and

[[Page 21951]]

initiation of CWA hazardous substance discharge preparedness and
evacuation procedures, to be kept in the front of the CWA hazardous
substance FRP or in a separate binder to accompany the full CWA
hazardous substance FRP. This requirement will provide important site-
specific information for facility personnel and responders. EPA has
found ERAPs to be important to plan holders responding to oil spills
and expects that a CWA FRP ERAP will be similarly critical for
responders to a CWA hazardous substance worst case discharge into or on
navigable waters or a conveyance to navigable waters.
v. Coordination Activities
As State and local emergency response officials are vital
participants in community and facility response planning, EPA disagrees
with the commenters who requested that EPA remove Sec. 118.12(c) as
well as the requirement to coordinate drills and exercises with local
public emergency response officials and invite them to participate in
Sec. 118.13(c)(1). The Agency maintains that such coordination is
critical for planning for worst case discharges since public entities
are often involved in response efforts and, as such, EPA has added
language to include local emergency planning and response organizations
outside of SERCs, TERCs, LEPCs, and TEPCs in coordination activities.
Additionally, the rule does not contain language that State and local
emergency response officials should set drill and exercise schedules;
rather, it states that facility owner

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