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As shown in table 13, the 2030 

MVEBs exceed the estimated 2030 

onroad sector emissions. In an effort to 

accommodate future variations in travel 

demand models and vehicle miles 

traveled forecast, MDNR allocated a 

portion of the safety margin (described 

further below) to the mobile sector. 

Missouri has demonstrated that the 

Missouri portion of the St. Louis area 

can maintain the 2008 ozone NAAQS 

with mobile source emissions in the 

area of 22 tpd of VOC and 40 tpd of NOX

in 2030, since despite partial allocation 

of the safety margin, emissions will 

remain under attainment year emission 

levels. Based on this analysis, the St. 

Louis area should maintain attainment 

of the 2008 ozone NAAQS for the 

relevant maintenance period with 

mobile source emissions at the levels of 

the MVEBs. 

Therefore, EPA has found that the 

MVEBs are adequate and is proposing to 

approve the MVEBs for use in 

determining transportation conformity 

in the Missouri portion of the St. LouisSt. Charles-Farmington, MO-IL area. 

C. What is a safety margin? 

A ‘‘safety margin’’ is the difference 

between the attainment level of 

emissions (from all sources) and the 

projected level of emissions (from all 

sources) in the maintenance plan. As 

noted in table 11, the emissions in the 

Missouri portion of the St. Louis-St. 

Charles-Farmington, MO-IL area are 

projected to have safety margins of 

76.79 tpd for NOX and 23.76 tpd for 

VOC in 2030 (the difference between the 

attainment year 2014 emissions, and the 

projected 2030 emissions for all sources 

in the Missouri portion of the St. LouisSt. Charles-Farmington, MO-IL area). 

Even if emissions reached the full level 

of the safety margin, the counties would 

still demonstrate maintenance since 

emission levels would equal less than 

those in the attainment year. 

As shown in table 13 above, Missouri 

is allocating a portion of that safety 

margin to the mobile source sector. 

Specifically, in 2030, Missouri is 

allocating 3.58 tpd and 14.43 tpd of the 

VOC and the NOX safety margins, 

respectively. MDNR is not requesting 

allocation to the MVEBs of the entire 

available safety margins reflected in the 

demonstration of maintenance. 

Therefore, even though the state is 

requesting MVEBs that exceed the 

projected onroad mobile source 

emissions for 2030 contained in the 

maintenance demonstration, the 

increase in onroad mobile source 

emissions that can be considered for 

transportation conformity purposes is 

well within the safety margins of the 

ozone maintenance demonstration. 

Further, once allocated to mobile 

sources, these safety margins will not be 

available for use by other sources. 

VI. Proposed Action 

EPA is proposing to determine that 

the Missouri portion of the St. Louis 

nonattainment area is attaining the 2008 

ozone standard based on quality-assured 

and certified monitoring data for 2013– 

2015 and that the Missouri portion of 

the St. Louis area has met the 

requirements for redesignation under 

section 107(d)(3)(E) of the CAA. 

EPA is also proposing to approve the 

state’s request to change the designation 

of the Missouri portion of the St. Louis 

area for the 2008 ozone standard from 

nonattainment to attainment. EPA is 

also proposing to approve, as a revision 

to the Missouri SIP, the state’s 

maintenance plan for the area. The 

maintenance plan is designed to keep 

the Missouri portion of the St. Louis 

area in attainment of the 2008 ozone 

NAAQS through 2030. Finally, EPA 

finds adequate and is proposing to 

approve the newly-establisheed 2030 

MVEBs for the Missouri portion of the 

St. Louis area. 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Is not an Executive Order 13771 (82 

FR 9339, February 2, 2017) regulatory 

action because SIP approvals are 

exempted under Executive Order 12866. 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of the 

National Technology Transfer and 

Advancement Act (NTTA) because this 

rulemaking does not involve technical 

standards; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Volatile 

organic compounds. 

Dated: June 13, 2018. 

James B. Gulliford, 

Regional Administrator, Region 7. 

[FR Doc. 2018–13442 Filed 6–22–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 151 

[EPA–HQ–OLEM–2018–0024; FRL–9979– 

83–OLEM] 

RIN 2050–AG87 

Clean Water Act Hazardous 

Substances Spill Prevention 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed action. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 


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1 33 U.S.C. 1321(j)(1)(C). 

proposing to establish no new 

requirements under Clean Water Act 

(CWA), section 311. This section directs 

the President to issue regulations to 

prevent discharges of oil and hazardous 

substances from onshore and offshore 

facilities, and to contain such 

discharges. On July 21, 2015, EPA was 

sued for failing to comply with the 

alleged duty to issue regulations to 

prevent and contain CWA hazardous 

substance discharges. On February 16, 

2016, the United States District Court 

for the Southern District of New York 

entered a Consent Decree between EPA 

and the litigants that required EPA to 

sign a notice of proposed rulemaking 

pertaining to the issuance of hazardous 

substance regulations, and take final 

action after notice and comment on said 

notice. Based on an analysis of the 

frequency and impacts of reported CWA 

HS discharges and the existing 

framework of EPA regulatory 

requirements, the Agency is not 

proposing additional regulatory 

requirements at this time. This proposed 

action is intended to comply with the 

Consent Decree and to provide an 

opportunity for public notice and 

comment on EPA’s proposed approach 

to satisfy the CWA requirements. 

DATES: Comments must be received on 

or before August 24, 2018. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OLEM–2018–0024, ‘‘Clean Water Act 

Hazardous Substances Discharge 

Prevention Action’’ at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from https://

www.regulations.gov/. The EPA may 

publish any comments received on its 

public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the web, 

cloud, or other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Stacey Yonce, Office of Emergency 

Management, Mail Code 5104A, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460, (202) 564–2288, 

yonce.stacey@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. What is the statutory authority for 

this proposed action? 

This proposal is authorized by section 

311(j)(1)(C) of the CWA. 

B. Does this proposed action apply to 

me? 

A list of entities that could be affected 

by requirements established under CWA 

section 311(j)(1)(C) is provided in 

Table 1: 

TABLE 1—POTENTIALLY AFFECTED ENTITIES

Industry NAICS 

Wired and Wireless Telecommunications ..................................................................................................................... 51711, 51721. 

Oil and Gas Extraction .................................................................................................................................................. 21111. 

Water Supply and Irrigation Systems ............................................................................................................................ 22131. 

Farm Supplies Merchant Wholesalers .......................................................................................................................... 42491. 

Electric Power Generation, Transmission and Distribution ........................................................................................... 2211. 

Support Activities for Crop Production .......................................................................................................................... 11511. 

Warehousing and Storage ............................................................................................................................................. 4931. 

Food Manufacturing ....................................................................................................................................................... 311. 

Chemical Manufacturing ................................................................................................................................................ 325. 

Other Merchant Wholesalers, Nondurable Goods ........................................................................................................ 424. 

Mining and Quarrying .................................................................................................................................................... 21. 

Utilities ........................................................................................................................................................................... 22. 

Construction ................................................................................................................................................................... 23. 

Manufacturing ................................................................................................................................................................ 31–33. 

Wholesale and Retail Trade .......................................................................................................................................... 42, 44–45. 

Transportation and Warehousing .................................................................................................................................. 48–49. 

Other .............................................................................................................................................................................. 11, 51–56, 61–62, 71–72, 

81, 92. 

NAICS = North American Industry Classification System. 

The list of potentially affected entities 

in Table 1 may not be exhaustive. The 

Agency’s aim is to provide a guide for 

readers regarding those entities that 

potentially could be affected by this 

action. However, this action may affect 

other entities not listed in this table. If 

you have questions regarding the 

applicability of this action to a 

particular entity, consult the person(s) 

listed in the preceding section entitled 

FOR FURTHER INFORMATION CONTACT. 

C. What is the purpose of this proposed 

action? 

The purpose of this proposal is to 

provide opportunity for public notice 

and comment on EPA’s proposed 

approach to satisfy the requirements of 

CWA section 311(j)(1)(C) pertaining to 

CWA hazardous substances (HS). 

II. Background 

A. Statutory Authority and Delegation of 

Authority 

CWA section 311(j)(1)(C) directs the 

President to issue regulations 

establishing procedures, methods, and 

equipment; and other requirements for 

equipment to prevent discharges of oil 

and HS from vessels and from onshore 

facilities and offshore facilities, and to 

contain such discharges.1 The President 


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2Under Executive Order 12777(b)(1), the 

Department of the Interior has redelegated the 

authority to regulate non-transportation-related 

offshore facilities landward of the coastline to EPA 

(see 40 CFR part 112, Appendix B). A Memorandum 

of Understanding (MOU) between the U.S. 

Department of Transportation (DOT) and EPA (36 

FR 24080, November 24, 1971) established the 

definitions of transportation- and nontransportation-related facilities. An MOU among 

EPA, DOI, and DOT, effective February 3, 1994, has 

redelegated the responsibility to regulate certain 

offshore facilities from DOI to EPA. 

3The CWA 311 jurisdiction applies to discharges 

or substantial threats of discharges into or upon the 

navigable waters of the United States, adjoining 

shorelines, or into or upon the waters of the 

contiguous zone; in connection with activities 

under the Outer Continental Shelf Lands Act (43 

U.S.C. 1331 et seq.) or the Deepwater Port Act of 

1974 (33 U.S.C. 1501 et seq.); or which may affect 

natural resources belonging to, appertaining to, or 

under the exclusive management authority of the 

United States [including resources under the 

Magnuson-Stevens Fishery Conservation and 

Management Act (16 U.S.C. 1801 et seq.)] 

(‘‘jurisdictional waters’’). See 33 U.S.C. 1321(b)(1) 

and 33 U.S.C. 1321(c). 

4CWA section 311(b)(4) provides for the 

President to, by regulation, determine for the 

purposes of this section, those quantities of oil and 

any hazardous substances, the discharge of which 

may be harmful to the public health or welfare or 

the environment of the United States, including but 

not limited to fish, shellfish, wildlife, and public 

and private property, shorelines, and beaches. 

5Complaint for Declaratory and Injunctive Relief, 

Environmental Justice Health Alliance from 

Chemical Policy Reform v. EPA, 15–cv–5705 

(S.D.N.Y. July 21, 2015). 

6Envtl. Justice Health All. for Chem. Reform v. 

U.S. EPA, No. 15–cv–05075, ECF No. 46 (S.D.N.Y. 

Feb. 16, 2016). 

7A summary of the input is available on the EPA 

website at: https://www.epa.gov/rulemakingpreventing-hazardous-substance-spills/summarypublic-input-clean-water-act-cwa-hazardous, as 

well as in the docket for this proposal: Docket 

ID #: EPA–HQ–OLEM–2018–0024. 

8On September 21, 2017, EPA issued a notice in 

the Federal Register (82 FR 44178) that identified 

plans to submit an information collection request 

(ICR) to the Office of Management and Budget 

(OMB) for review and approval, and provided a 60- 

day public comment period. 

has delegated the authority to regulate 

non-transportation-related onshore 

facilities and offshore facilities 

landward of the coastline, under section 

311(j)(1)(C) of the CWA to EPA.2

B. Legislative Background 

The term ‘‘hazardous substance’’ is 

defined in CWA section 311(a)(14). 

Section 311(b)(2)(A) authorizes 

regulations designating HS, which when 

discharged in any quantity into 

jurisdictional waters,3 present an 

imminent and substantial danger to 

public health or welfare, including, but 

not limited to, fish, shellfish, wildlife, 

shorelines, and beaches. 

Once a chemical was designated as a 

CWA HS, as described in Section II.C, 

the corresponding quantity was 

established by regulation under the 

authority of CWA section 311(b)(4).4

The CWA prohibits discharges of CWA 

HS in quantities that may be harmful in 

section 311(b)(3). 

C. Regulatory Background 

In March 1978, EPA designated a list 

of CWA HS in 40 CFR part 116. EPA 

established reportable quantities for 

those substances in 40 CFR part 117 in 

August 1979 (see, for example, 43 FR 

10474, March 13, 1978; 44 FR 50766, 

August 29, 1979). In September 1978, 

EPA proposed to establish requirements 

for Spill Prevention, Control, and 

Countermeasure (SPCC) Plans to 

prevent CWA HS discharges from 

facilities subject to permitting 

requirements under the National 

Pollution Discharge Elimination System 

(NPDES) program of the CWA (43 FR 

39276, September 1, 1978). The Agency 

proposed to require owners and 

operators to develop CWA HS SPCC 

Plans that included, among other things, 

general requirements for appropriate 

containment, drainage control and/or 

diversionary structures; and specific 

requirements for the proper storage of 

liquids and raw materials, preventive 

maintenance and housekeeping, facility 

security, and training for employees and 

contractors. EPA did not finalize that 

proposed CWA HS SPCC rule. There is 

no information in the record to explain 

the reason the 1978 proposal was not 

finalized. 

D. Litigation Background 

On July 21, 2015, the Environmental 

Justice Health Alliance for Chemical 

Policy Reform, People Concerned About 

Chemical Safety, and the Natural 

Resources Defense Council filed a 

lawsuit 5 against EPA for failing to 

comply with the alleged duty to issue 

regulations to prevent and contain CWA 

HS spills from non-transportationrelated onshore facilities, including 

aboveground storage tanks, under CWA 

section 311(j)(1)(C). 

On February 16, 2016, the United 

States District Court for the Southern 

District of New York entered a Consent 

Decree between EPA and the litigants 

establishing a schedule under which 

EPA is to sign ‘‘a notice of proposed 

rulemaking pertaining to the issuance of 

the Hazardous Substance Regulations’’ 

and take final action after notice and 

comment on said notice.6

E. Public Outreach 

EPA held three public meetings in 

2016 to gain early input from 

stakeholders that EPA should consider 

during the rulemaking development. A 

public meeting was held in Charleston, 

West Virginia, on November 2; and two 

virtual public meetings were held on 

November 29 and December 1. EPA 

received input from a variety of 

stakeholders, including 

nongovernmental organizations, local 

governments, private citizens, and 

representatives from industry and trade 

organizations. Topics addressed in these 

discussions included: 

• Establish spill prevention and rightto-know requirements for chemicals. 

• Require secondary containment and 

inspections of primary and secondary 

containment to assure continued 

compliance. 

• Require information about 

downstream public water intakes to 

allow prompt notification after a spill. 

• Concerns about CBI should not 

prohibit notifying residents about the 

risks of the chemicals stored or released. 

• EPA must enforce standards for 

them to be effective. 

• A number of Federal and state 

regulations already require spill 

prevention measures and EPA should 

not establish redundant or conflicting 

requirements. 

The public input received is available 

in the docket.7

F. Additional Information Collection 

We intend to supplement the 

information that this action is based on 

with an additional information 

collection. This information collection 

would be a voluntary survey of U.S. 

states, tribes, and territories that would 

request information on the number and 

type of facilities with CWA HS onsite; 

historical discharges of CWA HS; the 

ecological and human health impacts of 

those discharges; and existing state, 

territory, and Tribal programs that 

address discharge prevention of CWA 

HS. EPA anticipates using the results of 

the survey to further inform this 

regulatory action.8

III. Proposed Action 

EPA is proposing no new regulatory 

requirements under the authority of 

CWA section 311(j)(1)(C) at this time. 

This determination is based on an 

analysis of identified CWA HS 

discharges, and an evaluation of the 

existing framework of EPA regulatory 

requirements relevant to preventing and 

containing CWA HS discharges. 

The Agency set forth to determine 

what regulatory requirements under 

CWA section 311(j)(1)(C) would be 

appropriate to prevent CWA HS 

discharges. To this end, EPA analyzed 

the frequency of and reported impacts of 

the identified CWA HS discharges. 

Next, EPA identified an analytical 

framework of discharge prevention, 

containment, and mitigation provisions, 


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9The NRC is the designated federal point of 

contact for reporting all oil, chemical, radiological, 

biological, and etiological discharges and releases 

into the environment anywhere in the United States 

and its territories. The NRC maintains a national 

database of these reports. 

10EPA recognizes that historical CWA HS 

discharges do not predict future incidents. EPA 

reviewed the CWA HS discharge history to gain 

insight into the frequency and impact of past CWA 

HS discharges. 11This review is described in detail in the 

Regulatory Impact Analysis in the docket (Docket 

ID No. EPA–HQ–OLEM–2018–0024) for this 

proposed action. 

12The Agency for Toxic Substances and Disease 

Registry’s NTSIP collects and combines information 

from many resources to protect people from harm 

caused by spills and leaks of toxic substances. 

NTSIP gathers information about harmful spills into 

a central place. People can use NTSIP information 

to help prevent or reduce the harm caused by toxic 

substance incidents. NTSIP can also help experts 

when a release does occur. See https://

www.atsdr.cdc.gov/ntsip/ for additional 

information. 

or program elements, commonly found 

in discharge and accident prevention 

regulatory programs. EPA then 

conducted a review of existing EPA 

regulatory programs to determine which 

regulations, such as NPDES, Resource 

Conservation and Recovery Act (RCRA), 

Risk Management Program (RMP), and 

others include these program elements 

and also apply to CWA HS. 

Based on the reported frequency and 

impacts of identified CWA HS 

discharges, and the Agency’s evaluation 

of the existing framework of EPA 

regulatory requirements relevant to 

preventing CWA HS discharges, EPA 

has determined that the existing 

framework of regulatory requirements 

serves to prevent CWA HS discharges. 

Additionally, EPA identified relevant 

requirements in other Federal regulatory 

programs and determined that they 

further serve to prevent CWA HS 

discharges, providing additional 

support for this proposed action. 

A. CWA HS Discharge History and 

Impacts Analysis 

1. Discharge History and Reported 

Impacts 

EPA analyzed CWA HS discharges 

reported to the National Response 

Center (NRC) 9 over a 10-year period to 

estimate the frequency of CWA HS 

discharges and to understand the 

reported impacts of these discharges to 

communities that were potentially 

affected.10 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 

designated CWA HS from the facility in 

quantities equal to or exceeding, in any 

24-hour period, the reportable quantity. 

During 2007–2016, the NRC received 

reports of 285,867 releases of all kinds 

(including for example of oil, chemical, 

radiological, biological to a variety of 

media). EPA then further analyzed the 

data to identify discharges of CWA HS 

that impacted water from facilities in 

EPA’s regulatory jurisdiction. Based on 

the NRC database review 11 and 

recognizing the data limitations 

discussed further in Section III.A.3, EPA 

identified 9,416 reports of CWA HS 

discharges out of the total received (3.3 

percent) for this time period. Of these 

CWA HS discharge reports, the Agency 

further refined the analysis by 

identifying 3,140 reports that were 

reported to have reached water (see 

discussion below on NRC data 

limitations). Within that universe, 2,491 

(less than one percent of the reports) 

were identified as CWA HS discharges 

reported to have originated from nontransportation-related sources. 

EPA further analyzed the NRC data to 

examine how many of the CWA HS 

discharges to water from nontransportation-related facilities had 

reported impacts. This information was 

supplemented with reported impact 

data for identified CWA HS discharges 

from the National Toxic Substance 

Incidents Program (NTSIP).12 Impacts 

reported to NRC and NTSIP include 

evacuations, injuries, hospitalizations, 

fatalities, waterway closures, and water 

supply contamination. A total of 117 

CWA HS discharge reports (4.7 percent) 

included one or more of these impacts 

out of the 2,491 identified CWA HS 

discharges to water, reported as 

originating from non-transportationrelated sources over the 10-year period 

analyzed. 

EPA seeks comment on the approach 

used to analyze the frequency of CWA 

HS discharges and to quantify the 

impacts of CWA HS discharges. 

Specifically, EPA requests additional 

data sources, information, and 

approaches that may allow EPA to 

further revise or refine the estimated 

impacts of CWA HS discharges from 

non-transportation-related sources, 

nationally. 

2. Most-Frequently Discharged CWA HS 

In addition to determining the 

frequency of CWA HS discharges, EPA 

also analyzed the reporting data to 

identify the CWA HS most frequently 

discharged. Of 292 CWA HS currently 

designated in 40 CFR part 116, the 

following 13 CWA HS comprised the 

majority of identified discharges, as well 

as the majority of identified discharges 

with reported impacts (Table 2). 

TABLE 2—MOST FREQUENTLY DISCHARGED CWA HS 

CWA HS CAS No. Chemical 

class 

Number of 

discharges 

Number 

w/impacts 

Polychlorinated Biphenyls (PCBs) ................................................................... 1336–36–3 Organic .......... 1,322 21 

Sulfuric Acid (>80%) ........................................................................................ 7664–93–9 Acid ................ 185 14 

Sodium Hydroxide ........................................................................................... 1310–73–2 Base ............... 147 4 

Ammonia .......................................................................................................... 7664–41–7 Weak Base .... 112 18 

Benzene ........................................................................................................... 71–43–2 Organic .......... 91 8 

Hydrochloric Acid ............................................................................................. 7647–01–0 Acid ................ 91 9 

Chlorine (liquid/solid) ....................................................................................... 7782–50–5 Base ............... 81 13 

Sodium Hypochlorite ....................................................................................... 7681–52–9 Base ............... 81 1 

Toluene ............................................................................................................ 108–88–3 Organic .......... 38 1 

Phosphoric Acid ............................................................................................... 7664–38–2 Acid ................ 34 0 

Styrene ............................................................................................................ 100–42–5 Organic .......... 21 1 

Nitric Acid (fuming) .......................................................................................... 7697–37–2 Acid ................ 19 4 

Potassium Hydroxide ....................................................................................... 1310–58–3 Base ............... 18 0 

Total .......................................................................................................... ........................ ........................ 2,240 94 


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13 Jurisdictional waters include navigable waters 

of the United States or adjoining shorelines, or the 

waters of the contiguous zone or in connection with 

activities under the Outer Continental Shelf Lands 

Act (43 U.S.C. 1331 et seq.) or the Deepwater Port 

Act of 1974 (33 U.S.C. 1501 et seq.), or which may 

affect natural resources belonging to, appertaining 

to, or under the exclusive management authority of 

the United States (including resources under the 

Magnuson-Stevens Fishery Conservation and 

Management Act (16 U.S.C. 1801 et seq.). 

14 Indiana’s Department of Environmental 

Management took a similar approach when 

developing a report of aboveground storage tank 

rules and regulations. See IDEM’s Report of 

Aboveground Storage Tank Rules and Regulations 

Pursuant to SEA 312; November 2015. https://

www.in.gov/idem/cleanwater/files/ast_rules_

overview.pdf. 

15The analysis did not include administrative 

provisions, such as recordkeeping, which would 

normally be included in a regulatory program. 

These 13 CWA HS make up 90 

percent of all identified CWA HS 

discharges to water from nontransportation-related facilities and 80 

percent of the 117 identified CWA HS 

discharges with reported impacts. 

3. NRC Data Limitations 

a. Discharge History Limitations 

The Agency looked to the NRC 

database as the best readily available 

source of information on CWA HS 

discharges in the United States. 

However, EPA recognizes its 

limitations. The NRC database is based 

on notifications of CWA HS discharges, 

and thus is dependent on the reporting 

individuals for comprehensiveness and 

accuracy of the information provided. 

NRC reports are generally received 

immediately following an incident, 

often before a facility has accurate and 

complete information about the 

discharge. There is no requirement to 

update the information reported to the 

NRC; sometimes, the information 

available in the database includes 

inaccuracies regarding, among others, 

the substance reported, the quantity 

reported, the source, and the nature or 

impacts of the discharge. Further, some 

discharges may not be reported to the 

NRC, or the NRC may be notified of 

discharges that do not equal or exceed 

the reportable quantity. EPA has no 

information to assess or characterize the 

uncertainty associated with information 

reported to the NRC, the extent of 

under-reporting (failure to report a 

discharge), or the extent of overreporting (discharges reported that are 

not subject to notification 

requirements). 

Furthermore, the analysis conducted 

focused on those discharges that 

impacted water, but no additional 

determination was conducted to 

determine if the waters impacted were 

jurisdictional.13

b. Discharge Impact Limitations 

There may be additional impacts (i.e., 

beyond evacuations, injuries, 

hospitalizations, fatalities, waterway 

closures, and water supply 

contamination) from the universe of 

CWA HS discharges to water from nontransportation-related facilities, which 

were not required to be reported to the 

NRC and, thus, could not be quantified 

in this analysis. These may include the 

loss of productivity due to a facility or 

process unit shutting down as a result 

of a discharge, emergency response and 

restoration costs, transaction costs such 

as the cost of resulting litigation, 

damages to water quality, fish kills, or 

impacts to property values due to 

changes in perceived risk or reduced 

ecological services. EPA was not able to 

identify sources of data to quantify these 

impacts, other than the cited data from 

NRC or NTSIP and some limited 

information about fish kills that is made 

publicly available by a few states. The 

NRC and NTSIP data are discussed and 

analyzed in the RIA. The information 

EPA identified on fish kills is included 

in the docket. 

c. Additional Efforts To Gather Data 

EPA’s initial data gathering efforts for 

this proposed action focused on 

assessing the scope of historical CWA 

HS discharges and identifying relevant 

industry practices and regulatory 

requirements related to preventing CWA 

HS discharges. EPA began to develop an 

information collection request (ICR) 

with a voluntary survey intended for 

facilities with CWA HS. EPA intended 

to collect information on current 

prevention practices and other facilityspecific information that would inform 

the selection of prevention program 

elements for a proposed rule (e.g., 

storage capacity, types of storage 

equipment). However, EPA revised the 

focus of the survey after recognizing 

uncertainties in the estimate of the 

universe of potentially-subject facilities 

and the impacts associated with the 10- 

year CWA HS discharge data. 

EPA intends to collect information 

from states to refine: 

• The estimate of the universe of 

potentially-regulated facilities, and 

• The analysis of CWA HS discharges 

in the 10-year period analyzed. 

EPA provided notice on September 

21, 2017 (82 FR 44179) of plans to 

submit an ICR to the OMB for review 

and approval of a voluntary survey 

intended for U.S. states, tribes, and 

territories. On April 10, 2018 (83 FR 

15387) EPA provided notice that the ICR 

has been submitted to OMB for review 

and provided an additional 30-day 

public comment period. 

EPA anticipates using any relevant 

information obtained through survey 

responses to further inform 

development of a regulatory action. If 

new information is received that 

informs the rulemaking, EPA will 

publish a notice to allow an opportunity 

for public review and comment of the 

information, as appropriate. 

B. Analysis of Existing Regulatory 

Programs 

1. Program Elements 

The Agency assessed current 

discharge prevention practices and 

technologies based on a review of 

existing EPA and other Federal 

regulatory programs.14 To further 

inform this analysis, EPA also reviewed 

state regulatory programs and industry 

standards, which are sometimes 

incorporated into state or Federal 

regulations as requirements. The 

purpose of this regulatory review was to 

identify common discharge and 

accident prevention, control and 

mitigation provisions that would serve 

to prevent, contain, or mitigate CWA HS 

discharges. EPA also analyzed past 

CWA HS discharges to determine what 

program elements could prevent or 

minimize impacts from these types of 

discharges in the future. Finally, EPA 

considered stakeholder input from the 

2016 public meetings when identifying 

program elements (e.g., secondary 

containment and inspections, and 

downstream water notifications). See 

section II.E for a description of the early 

stakeholder input opportunities for this 

action. 

EPA identified a framework of 

discharge prevention, containment, and 

mitigation provisions, or program 

elements, commonly found in discharge 

and accident prevention regulatory 

programs. These program elements are 

listed in Table 3 and discussed below 

and in the Background Information 

Document (BID).15


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TABLE 3—PROGRAM ELEMENTS AND ASSOCIATED PROVISIONS

Program elements Sample owner/operators requirements 

Prevention Provisions: 

Safety Information .................... Maintain and review Safety Data Sheets (SDS). 

Hazard Review ........................ Review materials and operations at a facility, identify potential CWA HS discharge scenarios, and address 

them. Examples of resulting hazard mitigation measures could include storage container compatibility, 

engineering controls (e.g., uninterrupted power source) to address expected weather events, overfill prevention, explosion-proof requirements, and facility security measures. 

Mechanical Integrity ................. Conduct preventive maintenance inspections, including process equipment and process control equipment, 

and implement appropriate corrective actions within specified timeframes. 

Personnel Training ................... Conduct initial and periodic personnel training for employees and contractors on proper facility operations, 

including any discharge prevention, mitigation, and response practices. 

Incident Investigations ............. Investigate CWA HS discharge causes, identify ways to prevent recurrence, document findings, and implement appropriate corrective actions. 

Compliance Audits ................... Review and document compliance with regulatory requirements. This could be an in-house or third-party 

review. 

Containment Provisions: 

Secondary Containment .......... Install and maintain secondary containment or diversionary structures to prevent a CWA HS discharge 

from reaching a waterway. Requirements could include specifications for size requirements, freeboard 

for precipitation, and imperviousness. 

Mitigation Provisions: 

Emergency Response Plan ..... Develop an emergency response plan that includes information and procedures needed in the event of a 

discharge to mitigate the impacts of the discharge, ensure the safety of responders and facility personnel, and to notify potential receptors. 

Coordination with State and 

Local Responders.

Coordinate with state and local responders on response and notification procedures prior to a CWA HS 

discharge. 

A summary of the program elements 

is included below. 

a. Safety Information 

As part of prevention planning, 

owners/operators should maintain and 

review safety information about the 

chemicals they handle and the 

equipment involved in their operations. 

Knowledge and understanding of this 

information could serve to maintain 

overall safe operations, reducing the 

potential for CWA HS discharges. 

Chemical safety information, for 

example, would be useful when 

conducting a hazards review, 

developing a mechanical integrity 

program, or developing training 

materials for equipment operators. 

Examples of safety information 

include SDS, as well as manufacturers’ 

specifications for operating equipment. 

A safety information program element 

ensures that facility personnel have 

information to help them understand 

the safety-related aspects of their 

materials, equipment, and processes; 

and recognize the limits that are placed 

on their operations. 

b. Hazard Review 

The hazard review process is 

intended to identify potential chemical 

or operational hazards present in a 

process. The task of identifying 

potential hazards could inform changes 

in operations that would prevent CWA 

HS discharges. A hazard review could 

provide information key to the proper 

design, construction, and operation of 

facility equipment/systems (e.g., 

identifying a risk of corrosion that can 

be mitigated by ensuring compatibility 

of the container with the stored 

material) or choosing engineering 

controls (e.g., identifying a risk of 

overfilling may lead to installing alarms 

or an automatic shutoff mechanism, 

installing an uninterrupted power 

supply in case of loss of power). Hazard 

review program provisions could be 

designed to focus facilities on 

identifying process hazards that may 

cause a discharge in order to control or 

prevent these discharges. 

c. Mechanical Integrity Program 

Process equipment widely varies and 

may include, for example, containers, 

piping, valves, pumps, loading racks, 

reactors, control systems, vents or relief 

devices, wastewater treatment systems, 

or other equipment that could be 

potential sources of CWA HS 

discharges. Facilities develop and 

implement mechanical integrity 

programs to ensure proper equipment 

operation and maintenance, which not 

only serve to prevent CWA HS 

discharges, but can also ensure 

operational reliability and safe 

operation at a facility. 

Mechanical integrity provisions may 

include procedures for inspections (e.g., 

inspect pressure relief valves, gasket 

and seal integrity), testing, and 

appropriate corrective action by 

qualified personnel to prevent 

equipment failures before they cause a 

discharge. Specific to the prevention of 

CWA HS discharges, mechanical 

integrity provisions may, for example, 

serve to avoid equipment leaks and 

container failures. Failure of operational 

equipment (e.g., pumps or tanks) or 

instrumentation (e.g., overfill alarms) 

can weaken active prevention measures 

and result in CWA HS discharges. 

d. Personnel Training 

Training programs for employees and/ 

or contractors help ensure they are 

aware of proper and/or safe operating 

procedures, chemical hazards, discharge 

prevention and containment measures, 

and response procedures. A training 

program aims to reduce operator errors 

that could lead to CWA HS discharges 

and educate operators on the proper 

implementation of discharge prevention 

measures. 

Personnel training can also strengthen 

the implementation of other program 

elements, such as hazard review or 

mechanical integrity, by helping 

employees understand operational 

procedures established by those 

program elements. Training programs 

may include specific prevention and 

response procedures, which have been 

developed to prevent, contain, and 

mitigate CWA HS discharges; or include 

more general provisions for the safe and 

proper operation of equipment to 

prevent accidents due to operator error. 

e. Incident Investigations 

Incident investigations examine the 

causes of a discharge after it has 

occurred. Lessons learned from incident 

investigations can then be applied to 

inform future prevention activities, and 

may result in improvements to 


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operational methods, process design, or 

preventative maintenance procedures 

with the goal of preventing future CWA 

HS discharges. Incident investigation 

requirements may include conducting 

the investigation, documenting the 

findings, developing procedures to 

address the findings, and sharing the 

results with relevant employees. 

Incident investigation provisions 

applicable to CWA HS discharges may 

serve to document findings of a 

discharge and implement appropriate 

corrective actions aimed at preventing 

future discharges. For example, 

depending on the identified cause of a 

CWA HS discharge, one-time corrective 

actions could be implemented (e.g., 

installing an engineering control), or a 

programmatic or management approach 

could be implemented through another 

program element (e.g., changes to a 

preventive maintenance inspection 

schedule under the mechanical integrity 

program, or changes to employee 

training materials). 

f. Compliance Audits 

Compliance audits serve as a 

mechanism to evaluate and measure a 

facility’s compliance with regulatory 

requirements. An audit reviews a 

facility’s operations and practices to 

determine whether or not applicable 

regulatory requirements are being met. 

Compliance audits identify deficiencies 

and opportunities for improvement, and 

may be accomplished by in-house 

personnel or by an outside third party. 

A compliance audit could be 

accomplished by a Professional 

Engineer or other person with liability/ 

professional standards and knowledge 

of the specific processes and applicable 

regulations. 

A compliance audit provision could 

provide facility management with a 

mechanism for oversight of 

implementation of CWA HS discharge 

prevention practices, and could include 

reports documenting the audit and 

follow-up actions. 

g. Secondary Containment 

When properly designed and 

maintained, secondary containment 

systems can prevent discharges to 

jurisdictional waters. Secondary 

containment provisions could include 

dikes, berms, diversionary structures, 

sumps, spill kits, or other means of 

preventing discharges of CWA HS into 

jurisdictional waters. Secondary 

containment systems provide a second 

line of defense in the event of a failure 

of the primary containment, such as 

bulk storage containers, plant 

equipment, portable containers, or 

piping. Secondary containment design 

considerations may include passive or 

active measures, appropriate volumes, 

impermeability of containment 

structures, and freeboard for 

precipitation. 

Secondary containment provisions for 

CWA HS equipment could require, for 

example, specific sizing requirements 

for a worst-case discharge (e.g., 

construction of secondary containment 

sized to contain a CWA HS discharge 

from the largest container) or a typical 

discharge incident (based on a mostlikely scenario); design specifications to 

address impervious construction; 

maintenance provisions, including 

inspections to ensure the designed 

capacity is maintained (e.g., by 

removing rainwater or other debris); and 

corrective actions to ensure that 

inspection results are addressed. 

h. Emergency Response Plan 

Emergency response plans describe 

immediate response actions to be taken 

after a CWA HS discharge in order to 

mitigate the impacts of the discharge, 

and may include key information that 

could be quickly accessed when needed. 

These plans identify not only the steps 

to be taken by facility personnel to 

mitigate the severity and environmental 

impacts of a discharge, to make 

appropriate notifications to local, state 

and Federal authorities, and also 

typically includes safety information to 

protect employees and emergency 

responders. Including an emergency 

response plan as part of a prevention 

program is complementary, since it 

requires facility owners/operators to 

proactively (i.e., in advance of the 

discharge) gather information and 

develop immediate actions to be 

initiated quickly following a CWA HS 

discharge. Additional considerations for 

emergency response plans may include 

procedures for notifying potential 

receptors of the CWA HS discharge or 

requirements to have ready access to 

information about proper medical 

treatment for ingestion of CWA HS that 

impact drinking water supplies. 

i. Coordinating Emergency Response 

Plan With State and/or Local 

Responders 

Coordination between facility 

personnel and state and/or local 

responders on the content of the 

facility’s emergency response plan 

allows for an information exchange that 

can improve emergency responders’ 

understanding of the potential hazards 

onsite and ensure an effective response 

following a discharge. 

For example, Local Emergency 

Planning Committees (LEPCs) include 

representatives from the local 

community (including elected state and 

local officials; police, fire, civil defense, 

and public health professionals; facility 

representatives; and community group 

representatives). LEPCs develop an 

emergency response plan for the 

community, and provide information 

about chemicals in the community to 

citizens. Where there is no active LEPC, 

different entities such as fire 

departments, emergency management 

agencies, police departments, or public 

health agencies may be planning and/or 

assisting in an incident response. 

Coordination with state and local 

responders prior to a CWA HS discharge 

could help mitigate the impacts of a 

CWA HS discharge (e.g., allow for a 

timely shutdown of downstream 

drinking water intakes). Provisions 

could require facility personnel to share 

their emergency response plans with the 

appropriate local or state entities that 

would respond in the event of a CWA 

HS discharge. This could include an 

LEPC, as well as other local authorities 

in charge of coordinating source water 

protection for public drinking water 

systems or for other receptors. 

2. Existing Regulatory Requirements 

EPA analyzed the Federal programs 

and corresponding regulations 

identified in Table 4, focusing on these 

program elements, to better understand 

the existing regulatory requirements, 

practices, and technologies currently 

used at facilities to prevent CWA HS 

discharges. These regulatory programs 

were selected because they include 

discharge or accident prevention 

requirements and were identified as 

regulating at least some CWA HS; or 

regulating at least some facilities that 

produce, store, or use CWA HS. For 

example, the SPCC rule in 40 CFR part 

112 was reviewed because more than 50 

percent of the 2,491 identified CWA HS 

discharges in the NRC data were 

discharges of PCBs, reported as present 

in transformer oil. Storage and handling 

of transformer oil is subject to the SPCC 

rule when a facility meets the 

applicability criteria of 40 CFR part 112. 


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16EPA focused on stormwater permits for this 

review because the requirements apply where 

stormwater from an industrial property has the 

potential to discharge to a waterway. The MSGP’s 

requirements apply to all pollutants present in the 

regulated stormwater discharge, including all toxic 

pollutants, conventional pollutants, and nonconventional pollutants. As such, the MSGP 

controls what this notice refers to as CWA HS. 

Further, the MSGP permit is representative of 

stormwater permits in general. 

TABLE 4—REVIEWED FEDERAL PROGRAMS AND CORRESPONDING REGULATIONS

Federal programs/regulations Authorizing statute Code of Federal Regulations 

citation 

EPA 

NPDES Multi-Sector General Permit (MSGP) for Industrial Stormwater 

(2015).

CWA .............................................. 40 CFR part 122. 

RMP Rule ................................................................................................ Clean Air Act (CAA) ...................... 40 CFR part 68. 

SPCC Rule .............................................................................................. CWA .............................................. 40 CFR part 112. 

Pesticide: 

• Pesticide Management and Disposal ...........................................

• Worker Protection Standard. 

Federal Insecticide, Fungicide, and 

Rodenticide Act.

40 CFR part 165, 40 CFR part 

170. 

RCRA: 

• For Generators of Hazardous Waste ...........................................

• For Hazardous Waste Treatment, Storage, and Disposal Facilities 

Resource Conservation and Recovery Act (RCRA).40 CFR part 262; 40 CFR parts 

264 and 265. 

Requirements for Underground Storage Tanks (USTs) ......................... RCRA ............................................. 40 CFR part 280. 

EPCRA: 

• Emergency Planning and Notification ..........................................

• Hazardous Chemical Reporting 

Emergency Planning and Community Right-to-Know Act (EPCRA).40 CFR part 355; 40 CFR part 

370. 

Pulp, Paper, and Paper Board Effluent Guidelines ................................ CWA, CAA ..................................... 40 CFR part 430. 

Occupational Safety and Health Administration (OSHA) 

OSHA: 

• Process Safety Management (PSM) ............................................

• Hazardous Waste Operations and Emergency Response 

(HAZWOPER). 

Occupational Safety and Health 

Act.

29 CFR part 1910. 

• Hazard Communication Standard (HCS). 

• Emergency Action Plans (EAPs). 

Mine Safety and Health Administration (MSHA) 

MSHA Regulations .................................................................................. Federal Mine Safety and Health 

Act (Mine Act).

30 CFR parts 46–48, 50, 56–57. 

Department of Transportation Programs 

Pipeline Hazardous Materials Safety Administration (PHMSA) Regulations.Hazardous Materials Transportation Act (HMTA).49 CFR parts 171–185. 

Department of Interior/Office of Surface Mining Reclamation and Enforcement (OSMRE) 

Surface Mining Control and Reclamation Act (SMCRA) Requirements SMCRA .......................................... 30 CFR parts 700–999. 

a. NPDES MSGP for Industrial 

Stormwater (2015) 

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. Regulations at 

40 CFR 122.26(b)(14)(i)–(xi) require 

stormwater discharges associated with 

specific categories of industrial activity 

to be covered by NPDES permits, unless 

otherwise excluded. An 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. Many states are 

currently authorized to issue NPDES 

permits for industrial stormwater. 

This review focused on the provisions 

in one industrial stormwater general 

permit, the Multi-Sector General Permit 

for Stormwater Discharges Associated 

with Industrial Activity, issued by EPA 

in 2015.16 The MSGP is a general permit 

that is available to facilities that do not 

discharge to a state with NPDES 

permitting authority. Because many 

states model their industrial stormwater 

permits after EPA’s permit, it was used 

to identify prevention requirements 

likely to be present in NPDES industrial 

stormwater permits issued by states. 

NPDES stormwater permits for 

industrial activity contain effluent 

limits that correspond to required levels 

of technology-based and water qualitybased controls for discharges (CWA 

402(p)(3)(A)). In the MSGP, most of the 

effluent limits are expressed as nonnumeric pollution prevention or best 

management practice (BMP) 

requirements for minimizing the 

pollutant levels in the discharge (40 

CFR 122.44(k)). To identify existing 

requirements relevant to preventing 

CWA HS discharges, EPA focused on 

non-numeric effluent limitations in 

Section 2 of the permit, including good 

housekeeping and maintenance 

requirements, and Stormwater Pollution 

Prevention Plan requirements in Section 

5 of the MSGP. 

The 2015 MSGP for Industrial 

Stormwater includes discharge 


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17Farms are exempt under two circumstances: (1) 

If the farm has less than 6,000 gallons of 

aboveground storage and no reportable oil discharge 

history; or (2) has 2,500 gallons or less of 

aboveground storage, regardless of reportable oil 

discharge history. 

prevention and response measures to 

minimize stormwater contamination 

(see part 2.1.2.4 of the MSGP). These 

requirements include plainly labeling 

containers susceptible to spillage or 

leakage to encourage proper handling 

and facilitate rapid response if spills or 

leaks occur; and implementing 

procedures for material storage and 

handling, including the use of 

secondary containment and barriers 

between material storage and traffic 

areas, or a similarly effective means 

designed to prevent the discharge of 

pollutants from these areas. 

Applicability criteria. The industrial 

sectors and activities covered by the 

MSGP are listed in Appendix D of the 

permit, while another version of that list 

of industries is included in Appendix N. 

The permit is meant to control and 

minimize pollutants in stormwater 

discharges associated with specific 

categories of industrial activities. This 

permit is available only to facilities that 

meet the eligibility criteria described in 

the MSGP where EPA is the permitting 

authority. Regulated facilities under the 

jurisdiction of authorized states are 

expected to be subject to similar 

provisions in a state-issued NPDES 

permit. 

The term ‘‘pollutant’’ is defined at 40 

CFR 122.2 as ‘‘dredged spoil, solid 

waste, incinerator residue, filter 

backwash, sewage, garbage, sewage 

sludge, munitions, chemical wastes, 

biological materials, radioactive 

materials [except those regulated under 

the Atomic Energy Act of 1954, as 

amended (42 U.S.C. 2011 et seq.)], heat, 

wrecked or discarded equipment, rock, 

sand, cellar dirt and industrial, 

municipal, and agricultural waste 

discharged into water.’’ The definition 

of pollutant is considered to include all 

CWA HS. 

Equipment or operations at which 

requirements apply. The permit’s 

requirements apply to discharges of 

stormwater from activities and areas at 

a regulated industrial plant, including 

industrial processes and activities such 

as material handling, material storage, 

and equipment maintenance and 

cleaning. 

b. RMP Rule (40 CFR Part 68) 

The Chemical Accident Prevention 

Provisions, also known as the RMP 

Rule, require facilities that use certain 

listed, regulated substances to develop 

and implement a RMP. The RMP Rule 

is authorized by the Clean Air Act 

(CAA). Regulated facilities are also 

required to develop an RMP, which 

must identify the potential effects of a 

chemical accident, identify steps the 

facility is taking to prevent an accident, 

and spell out emergency response 

procedures should an accident occur. 

Regulated facilities must submit a single 

RMP for all covered processes at the 

facility; these plans must be revised and 

resubmitted every five years. 

Applicability criteria. The RMP 

requirements apply to facilities 

(stationary sources) that manufacture, 

use, store, or otherwise handle more 

than a threshold quantity of a regulated 

substance in a process. The RMP Rule 

provides a List of Regulated Substances 

under section 112(r) of the CAA. The 

140 RMP-regulated substances, and 

their threshold quantities, are listed at 

40 CFR 68.130. The list includes 77 

acutely toxic chemicals that can cause 

serious health effects or death from 

short-term exposures, as well as 63 

flammable gases and highly volatile 

flammable liquids that have the 

potential to form vapor clouds and 

explode or burn if released. RMPregulated substances include some CWA 

HS. The rule defines three program 

levels based on the processes’ relative 

potential for public impacts and the 

level of effort needed to prevent 

accidents. For each program level, the 

rule defines requirements that reflect 

the level of risk and effort associated 

with the processes at that level. As a 

result, different facilities covered by the 

regulation may have different 

requirements depending on their 

processes. 

Equipment or operations at which 

requirements apply. The RMP 

requirements apply to facilities that 

have more than a threshold quantity of 

a regulated substance in a process. 

Therefore, the requirements in the rule 

apply to processes. A process means any 

activity involving a regulated substance 

including any use, storage, 

manufacturing, handling, or onsite 

movement of such substances, or 

combination of these activities. For 

example, 40 CFR 68.25 requires that, for 

each process at the stationary source, 

the facility owner/operator analyze and 

report worst-case release scenarios. 

c. SPCC Rule (40 CFR Part 112) 

The portion of the Oil Pollution 

Prevention regulation known as the 

SPCC Rule, authorized by the CWA, is 

designed to protect public health, public 

welfare, and the environment from 

potential harmful effects of oil 

discharges to navigable waters or 

adjoining shorelines. The SPCC Rule 

requires certain facilities that could 

reasonably be expected to discharge oil 

in quantities that may be harmful into 

jurisdictional waters or adjoining 

shorelines to develop and implement 

SPCC Plans. Subparts A through C of 40 

CFR part 112 are often referred to as the 

SPCC Rule. The SPCC Plan includes 

several elements to prevent oil spills, 

including a facility diagram, oil 

discharge predictions, secondary 

containment or diversionary structures, 

overfill prevention, requirements for 

inspections, transfer procedures, 

personnel training, and a five-year plan 

review. 

Applicability criteria. The SPCC Rule 

applies to any owner or operator of a 

non-transportation-related onshore or 

offshore facility engaged in drilling, 

producing, gathering, storing, 

processing, refining, transferring, 

distributing, using, or consuming oil 

and oil products, which, due to its 

location, could reasonably be expected 

to discharge oil in quantities that may 

be harmful. The rule applies to facilities 

with an aboveground storage capacity of 

more than 1,320 gallons of oil (except 

farms 17), or a completely buried storage 

capacity of more than 42,000 gallons of 

oil. The rule has a number of 

exemptions, such as an exemption for 

containers used for wastewater 

treatment. 

While the SPCC Rule applies only to 

oil, it regulates oil mixed with other 

substances, including a CWA HS. The 

definition of oil can be found in 40 CFR 

112.2: ‘‘Oil means oil of any kind or in 

any form, including, but not limited to: 

Fats, oils, or greases of animal, fish, or 

marine mammal origin; vegetable oils, 

including oils from seeds, nuts, fruits, or 

kernels; and, other oils and greases, 

including petroleum, fuel oil, sludge, 

synthetic oils, mineral oils, oil refuse, or 

oil mixed with wastes other than 

dredged spoil.’’ 

Equipment or operations at which 

requirements apply. Some SPCC 

requirements apply facility-wide and 

some apply to specific equipment. For 

example, 40 CFR 112.7(f) requires that 

all oil-handling personnel must be 

trained in the operation and 

maintenance of equipment to prevent 

discharges; discharge procedure 

protocols; applicable pollution control 

laws, rules, and regulations; general 

facility operations; and the contents of 

the facility SPCC Plan. Alternatively, 

the integrity testing and inspection 

provisions found at 40 CFR 112.8(c)(6) 

apply to bulk storage containers. 


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d. Pesticide Management Regulation 

(Pesticide Management and Disposal, 40 

CFR Part 165) 

The Pesticide Management and 

Disposal regulation establishes 

standards for pesticide containers and 

repackaging as well as label instructions 

to ensure the safe use, reuse, disposal, 

and adequate cleaning of the containers. 

Pesticide registrants and refillers (who 

are often distributors or retailers) must 

comply with the regulations, and 

pesticide users must follow the label 

instructions for cleaning and handling 

empty containers. Specifically, the 

Pesticide Management Regulation at 

part 165 establishes standards and 

requirements for pesticide containers, 

repackaging pesticides, and pesticide 

containment structures (§ 165.1). 

Twenty-one states implement pesticide 

containment regulations in lieu of 

federal containment regulations in 40 

CFR part 165. 

Applicability criteria. The 

requirements apply to chemicals that 

meet the definition of pesticide. One 

hundred and nine designated CWA HS 

may be used as pesticides subject to the 

40 CFR part 165 FIFRA requirements. 

Equipment or operations at which 

requirements apply. Most requirements 

in 40 CFR part 165 apply to containers 

and pesticide manufacturers are 

responsible for meeting these 

requirements. For example, 40 CFR 

165.25(a) and 165.45(a) require 

pesticide containers to meet certain 

DOT packaging requirements even if the 

pesticide is not a DOT hazardous 

material. Similarly, § 165.65(e) requires 

visual inspection of a refillable 

container before repackaging a pesticide 

product into it, to determine whether 

the container meets the necessary 

criteria with respect to continued 

container integrity, required markings, 

and openings. 

The regulation also includes 

requirements that apply to the area 

where stationary containers are stored 

and/or pesticide dispensing areas. For 

example, 40 CFR 165.85 provides design 

and capacity requirements for secondary 

containment structures at these areas. 

The requirements at § 165.90(a)(1) 

further state that containment structures 

must be managed in a manner that 

prevents pesticides or materials 

containing pesticides from escaping 

from the containment structure. 

e. Pesticide Worker Protection Standard 

(Pesticide Agricultural Work Protection 

Standard, 40 CFR Part 170) 

FIFRA regulates worker safety 

through Workplace Protection 

Standards in 40 CFR part 170. Farms, 

forests, nurseries, and greenhouses that 

handle pesticides used to produce 

agricultural plant crops must adopt 

workplace practices designed to reduce 

or eliminate exposure to pesticides, and 

must follow procedures for responding 

to exposure-related emergencies. 

Applicability criteria. The 

requirements apply to chemicals that 

meet the definition of pesticide. One 

hundred and nine designated CWA HS 

may be used as pesticides subject to the 

40 CFR part 165 FIFRA requirements. 

Equipment or operations at which 

requirements apply. The Worker 

Protection Standard requirements in 40 

CFR part 170 apply to employers of 

pesticide workers and handlers. For 

example, 40 CFR 170.501 requires 

employers to provide training to all 

pesticide handlers (who mix, load, and 

apply agricultural pesticides) every 12 

months. 

f. RCRA Generators Regulation 

(Standards Applicable to Generators of 

Hazardous Waste, 40 CFR Part 262) 

This RCRA Rule establishes cradle-tograve hazardous waste management 

standards for generators of hazardous 

waste as defined by § 260.10. These 

generator regulations ensure that 

hazardous waste is appropriately 

identified and handled in a manner that 

protects human health and the 

environment, while minimizing 

interference with daily business 

operations. 

The rule sets forth a process for 

generators of solid waste to determine if 

their wastes are hazardous, and for 

generator category determination (based 

on the amount of hazardous waste 

generated each month). It provides 

manifest requirements, pre-transport 

(e.g., packaging, labeling) requirements, 

and recordkeeping and reporting 

requirements for both small and large 

quantity generators. Some generators are 

also subject to preparedness, 

prevention, and emergency response 

requirements. 

Applicability criteria. The RCRA 

Generators Regulation applies to 

generators of hazardous waste. 

Hazardous wastes, defined in § 261.3, 

may include specifically ‘‘listed’’ 

hazardous wastes, or ‘‘characteristic’’ 

hazardous wastes evaluated based on 

four criteria (ignitability, corrosivity, 

reactivity, and toxicity). Some listed 

hazardous wastes are CWA HS (e.g., 

toluene), and some CWA HS would 

meet criteria for characteristic 

hazardous wastes at certain 

concentrations if the CWA HS were 

present as waste. RCRA regulations 

apply only to waste materials (as 

opposed to raw materials or 

intermediate products). This rule 

establishes different requirements for 

very small, small, and large quantity 

generators of hazardous waste. 

Equipment or operations at which 

requirements apply. Some provisions 

apply to facility areas. For example, 40 

CFR 262.252 requires that all subject 

areas must be equipped with an internal 

communications or alarm system, a 

device to summon emergency 

assistance, portable fire extinguishers 

and other fire/spill control equipment, 

and adequate volumes of water or foamproducing equipment. Other provisions 

apply to packages. For example, 

§ 262.31 requires that the generator must 

label each package of hazardous waste 

in accordance with the applicable DOT 

regulations on hazardous materials (49 

CFR part 172). 

g. RCRA TSD Regulations (Standards for 

Owners and Operators of Hazardous 

Waste Treatment, Storage, and Disposal 

Facilities, 40 CFR Parts 264 and 265) 

The purpose of the RCRA Treatment, 

Storage, and Disposal Facilities (TSDF) 

Standards is to establish minimum 

national standards for the acceptable 

management of hazardous waste. 

Part 264 applies to permitted TSDFs, 

while part 265 applies to interim status 

facilities. Both parts 264 and 265 

provide general facility and unitspecific operating requirements to 

assure that a facility is operated in a 

manner that is protective of human 

health and the environment. 

Applicability criteria. The standards 

apply to owners and operators of 

facilities that treat, store, or dispose of 

hazardous waste. Hazardous waste is 

defined in § 261.3. Hazardous wastes 

may include specifically ‘‘listed’’ 

hazardous wastes; or ‘‘characteristic’’ 

hazardous wastes, which are identified 

as hazardous based on four criteria 

(ignitability, corrosivity, reactivity, and 

toxicity.) Some listed hazardous wastes 

are CWA HS (e.g., toluene); and some 

CWA HS would meet criteria for 

characteristic hazardous wastes at 

certain concentrations, if the CWA HS 

were being discarded and thus a waste. 

A facility includes all contiguous land, 

structures, and appurtenances on or in 

the land used for treating, storing, or 

disposing of hazardous waste. 

Equipment or operations at which 

requirements apply. The standards in 40 

CFR parts 264 and 265 include facilitywide requirements, such as good 

housekeeping provisions, as well as 

unit-specific design and operating 

criteria. A single facility may consist of 

several types of operational units (e.g., 

containers, tank systems, surface 

impoundments, waste piles, landfills, 


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incinerators). The unit-specific 

technical requirements are designed to 

prevent the release of hazardous waste 

into the environment. For example, 

§ 264.184 includes container-specific 

requirements governing design and 

operating requirements for storage area 

containment systems. 

h. UST Rule (Technical Standards and 

Corrective Action Requirements for 

Owners and Operators of Underground 

Storage Tanks, 40 CFR Part 280) 

UST regulations, authorized by RCRA, 

are intended to reduce the chance of 

releases from USTs, detect leaks and 

spills when they do occur, and secure 

a prompt cleanup. The regulations 

require owners and operators to 

properly install UST systems and 

protect their USTs from spills, overfills, 

and corrosion; they also require correct 

filling practices to be followed. In 

addition, owners and operators must 

report new UST systems, suspected 

releases, and UST system closures; and 

they must keep records of operation and 

maintenance. 

Applicability criteria. These 

requirements are specific to UST 

systems greater than 110 gallons in 

capacity that store either petroleum or 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) hazardous substances. 

All designated CWA HS are also defined 

as CERCLA hazardous substances. 

Specific parts of the regulation (e.g., 

§ 280.42) apply to hazardous substance 

UST systems and petroleum UST 

systems, both defined in 40 CFR 280.12. 

Equipment or operations at which 

requirements apply. Some requirements 

apply to equipment. For example, the 

compatibility requirements at 40 CFR 

280.32 state that UST systems must be 

made of or lined with materials that are 

compatible with the substance stored in 

the UST system. Other requirements 

apply to areas or processes. For 

example, areas directly surrounding the 

tanks are protected by requirements 

such as the spill and overfill control 

measures in § 280.30, which calls for the 

constant monitoring of transfer 

operations. 

i. EPCRA Planning Rule (Emergency 

Planning and Notification, 40 CFR Part 

355) 

The EPCRA planning rule requires 

regulated facilities to provide 

information necessary for developing 

and implementing state and local 

emergency response plans. It also 

requires emergency notification in the 

event of a release of a regulated 

chemical. The facility owner/operator 

must designate a facility representative 

who will participate in the local 

emergency planning process as a facility 

emergency response coordinator, and 

provide notice to the LEPC (§ 355.20(b)). 

Applicability criteria. The emergency 

planning requirements in 40 CFR part 

355 apply to facilities with an extremely 

EHS onsite in amounts equal to or 

greater than its designated threshold 

planning quantity (TPQ). EHS is defined 

in Appendices A and B of 40 CFR part 

355. EHS include 65 substances, all of 

which are also designated as CWA HS. 

The emergency release notification 

requirements in 40 CFR part 355 apply 

to facilities that produce, use, or store a 

hazardous chemical, and that also 

release a reportable quantity of either an 

EHS or a CERCLA hazardous substance 

as defined by CERCLA. All CWA HS are 

defined as CERCLA hazardous 

substances. 

Equipment or operations at which 

requirements apply. These requirements 

apply to an entire facility. 

j. EPCRA Reporting Rule (Hazardous 

Chemical Reporting: Community Right 

to Know, 40 CFR Part 370) 

The EPCRA reporting rule establishes 

reporting requirements for facilities to 

provide state and local officials with 

information on hazardous chemicals 

present at the facility. The information 

submitted by the facilities must also be 

made available to the public. 

Applicability criteria. This rule 

applies to facilities that are required by 

the OSHA HazCom regulation to have 

an SDS available, and handle or store 

hazardous chemicals in quantities that 

equal or exceed the following 

thresholds: 

• For EHS, either 500 pounds or the 

TPQ, whichever is lower. EHS is 

defined in Appendices A and B of 40 

CFR part 355. 

• For all other hazardous chemicals, 

10,000 pounds. A hazardous chemical is 

defined by OSHA HazCom at 29 CFR 

1910.1200(c) and § 1910.1200(c) defines 

chemical. This definition includes all 

CWA HS. 

Equipment or operations at which 

requirements apply. The hazardous 

chemical reporting requirements in 40 

CFR part 370 apply to individual 

chemicals rather than process 

equipment. For example, regulated 

facilities must submit an SDS for the 

subject chemicals to the LEPC, the State 

Emergency Response Commission 

(SERC), and the local fire department as 

described in §§ 370.30 to 370.33. 

k. Pulp and Paper Effluent Guidelines 

(Pulp, Paper and Paperboard Effluent 

Guidelines, 40 CFR Part 430) 

The requirements at 40 CFR part 430 

were promulgated as part of the ‘‘Cluster 

Rule’’ for the Pulp, Paper, and 

Paperboard Industry; are authorized by 

the CWA and CAA; and establish 

requirements under multiple statutes for 

multiple environmental media. The 

Cluster Rule was included in EPA’s 

review of existing requirements because 

it includes BMPs for spent pulping 

liquor, soap, and turpentine in § 430.03, 

which includes spill prevention and 

control measures and the requirement to 

develop a BMP Plan. 

Applicability criteria. These 

requirements apply to any pulp, paper, 

or paperboard mill that discharges or 

may discharge process wastewater 

pollutants to the waters of the United 

States; or that introduces or may 

introduce process wastewater pollutants 

into a publicly owned treatment works. 

The relevant BMPs apply specifically 

to direct and indirect discharging pulp, 

paper, and paperboard mills with pulp 

production in Subparts B and E of part 

430 in order to prevent spills and leaks 

of spent pulping liquor, soap, and 

turpentine. Subparts B (Bleached 

Papergrade Kraft and Soda) and E 

(Papergrade Sulfite) define effluent 

limitations for a limited number of CWA 

HS. 

Equipment or operations at which 

requirements apply. The requirements 

apply to pieces of equipment and 

process areas. For example, 40 CFR 

430.03(c)(2)(i) requires regular visual 

inspections of process areas with 

equipment items in spent pulping liquor 

service. As another example, under 40 

CFR 430.03(c)(4), the mill must 

establish a program of initial and 

refresher training of operators, 

maintenance personnel, and other 

technical and supervisory personnel 

who have responsibility for operating, 

maintaining, or supervising the 

operation and maintenance of 

equipment items in spent pulping 

liquor, soap, and turpentine service. 

l. Other Federal Programs 

Although the analysis of existing EPA 

regulations is the basis for this proposal, 

EPA reviewed other Federal regulations 

with prevention requirements that may 

be applicable to CWA HS. For more 

information about these requirements, 

see Background Information Document: 

Review of Relevant Federal and State 

Regulations; Docket ID #: EPA–HQ– 

OLEM–2018–0024. 

• OSHA Regulations 

Æ Emergency Action Plans (EAPs), 29 


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18Fourteen states have regulatory programs; 

multiple programs in the same state are noted in 

parentheses: CA (3), DE, GA, IL, IN (2), ME, MA (2), 

MI, MN, NJ, NY, OR, PA, and WV. 

19See Background Information Document: 

Review of Relevant Federal and State Regulations; 

Docket ID #: EPA–HQ–OLEM–2018–0024. 

CFR 1910.38 

Æ Process Safety Management of 

Highly Hazardous Chemicals 

(PSM), 29 CFR 1910.119 

Æ Hazardous Waste Operations and 

Emergency Response 

(HAZWOPER), 29 CFR 1910.120 

Æ HazCom, 29 CFR 1910.1200 

• Mine Safety and Health 

Administration (MSHA) 

Regulations 

Æ Training and Retraining of Miners 

Engaged in Shell Dredging or 

Employed at Sand, Gravel, Surface 

Stone, Surface Clay, Colloidal 

Phosphate, or Surface Limestone 

Mines (Training, Sand and Gravel 

Mines), 30 CFR part 46 

Æ Hazard Communication (HazCom), 

30 CFR part 47 

Æ Training and Retraining of Miners 

(Training), 30 CFR part 48 

Æ Notification, Investigation, Reports 

and Records of Accidents, Injuries, 

Illnesses, Employment, and Coal 

Production in Mines (Accident 

Notification), 30 CFR part 50 

Æ Safety and Health Standards— 

Surface Metal and Nonmetal Mines, 

30 CFR part 56 

Æ Safety and Health Standards— 

Underground Metal and Nonmetal 

Mines, 30 CFR part 57 

• Pipeline and Hazardous Materials 

Safety Administration (PHMSA) 

Hazardous Materials Regulations, 

49 CFR parts 171–185 

• Surface Mining Control and 

Reclamation Act of 1977 (SMCRA) 

Regulations, 30 CFR parts 700–999 

m. State Programs and Industry 

Standards 

EPA also identified state regulatory 

programs,18 which regulate the proper 

handling and storage of chemicals to 

prevent accidents and discharges, and 

industry standards that establish 

technology standards and recommend 

practices prudent for proper operation 

and maintenance. A review of these 

state programs and industry standards is 

presented in the BID. 

3. Regulatory Coverage of the Nine 

Program Elements 

EPA cross-referenced the regulatory 

requirements for the Federal programs 

in Table 4—Reviewed Federal Programs 

and Corresponding Regulations with the 

nine program elements in Table 3— 

Program Elements and Associated 

Provisions to identify existing regulatory 

programs that include discharge 

prevention, control, and mitigation 

provisions. The relevance of each EPA/ 

Federal program and corresponding 

regulations to the cross-referenced 

program elements and their associated 

provisions is summarized in Table 5— 

Review of EPA and Other Federal 

Regulations for Program Elements, and 

is discussed in detail in the BID 

available in the docket for this 

proposal.19 For each regulatory 

program, this high-level analysis 

documents provisions related to each of 

the nine program elements identified. 

The analysis indicates that, for all 

nine program elements, there are 

existing cumulative EPA regulatory 

requirements under various programs 

for accident and discharge prevention 

relevant to CWA HS. Similarly, existing 

cumulative requirements under Federal 

regulatory programs administered by 

other Federal agencies and departments 

(i.e., OSHA, MSHA, PHMSA, and 

OSMRE) reflect, under various accident 

and discharge prevention programs, all 

nine program elements. This 

information is summarized in detail in 

the BID. For example, Table 5—Review 

of EPA and Other Federal Regulations 

for Program Elements shows that hazard 

review and emergency response 

planning provisions are the two most 

frequently addressed program elements; 

these were identified in seven of eight 

EPA regulations and in all of the other 

Federal programs reviewed. 

BILLING CODE 6560–50–P 


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BILLING CODE 6560–50–C The analysis focused on those 

provisions within the existing EPA, and 

other Federal, regulatory framework that 

address to varying degrees, either 


amozie on DSK3GDR082PROD with PROPOSALS1EP25JN18.009</GPH>

Table 5- Review of EPA and Other Federal Regulations for Program Elements 

Program Elementsa 

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EPA Programs/Regulations 

NPDES MSGP for 

Industrial Stormwater ../ ../ ../ ../ ../ 

I (2ois) 

RMP ../ ../ ../ ../ ../ ../ ../ ../ 

SPCC ../ ../ ../ ../ ../ ../ 

Pesticide Management ../ ../ ../ 

Pesticide Worker ../ ../ ../ Protection Standard 

RCRA Generators ../ ../ ../ ../ ../ ../ 

RCRA TSD ../ ../ ../ ../ ../ ../ 

UST ../ ../ ../ ../ ../ 

EPCRA Planning ../ ../ 

EPCRA Reporting ../ ../ 

Pulp, Paper, and Paper 

Board Eft1uent ../ ../ ../ ../ 

Guidelines 

Other Federal Regulations 

OSHAEAP ../ 

OSHAPSM ../ ../ ../ ../ ../ ../ ../ 

OSHA HAZWOPER ../ ../ ../ ../ ../ 

OSHAHazCom ../ ../ 

MSHA ../ ../ ../ ../ ../ ../ 

PHMSA Hazardous 

../ ../ ../ ../ ../ ../ ../ Material 

SMCRA ../ ../ ../ ../ 

a A check mark("../") indicates that the regulatory program includes provisions addressing at least one 

sub-element of the program element. 
29512 Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Proposed Rules 

directly or indirectly, the identified 

program elements for CWA HS. The 

compliance auditing program element is 

addressed by one EPA regulatory 

program (RMP) and one other Federal 

regulation (the OSHA Process Safety 

Management standard). Mechanical 

integrity and personnel training are 

addressed by seven of eight EPA 

programs and by three of the other 

Federal programs reviewed. Secondary 

containment provisions are included in 

six of eight EPA regulations and three 

additional Federal programs reviewed. 

The remaining program elements (i.e., 

safety information; incident 

investigations; and coordination with 

state and local responders) are 

addressed by approximately half of the 

Federal regulations reviewed. 

The BID provides details on how each 

program element is addressed by both 

EPA regulations and other Federal 

programs. A summary of the EPA 

regulations, that serve as the basis for 

this proposal, is provided below. 

a. Safety Information 

Of the 11 EPA regulations reviewed, 

three programs include requirements to 

identify safety information for 

chemicals used or stored on-site—the 

Pesticide Worker Protection Standard, 

the RMP Rule and the EPCRA Reporting 

Rule. 

The Pesticide Worker Protection 

Standard requires agricultural 

establishments to display safety data 

sheets for the pesticides that have been 

applied on the establishment and to 

keep the SDSs in records for two years. 

The RMP Rule requires owners or 

operators to compile and maintain 

general safety information, including: 

An SDS, maximum intended inventory 

of equipment in which the regulated 

substances are stored or processed, and 

safe operation conditions. The RMP rule 

also requires owners to compile process 

safety information for regulated 

substances, such as toxicity information. 

The EPCRA Reporting Rule, which 

establishes Tier I and Tier II reporting 

requirements, requires regulated 

facilities to submit identifying 

information, either as an SDS or a list 

of hazardous substances grouped by 

specific hazards, for hazardous 

substances. In addition, an inventory of 

the chemicals for the preceding calendar 

year must be submitted to the facility’s 

State Emergency Response Commission 

(SERC), LEPC, and local fire 

department. 

b. Hazard Review 

Eight EPA regulations reviewed 

include requirements for facilities to 

conduct a hazard review or identify 

hazards: 

• MSGP for Industrial Stormwater; 

• RMP Rule; 

• SPCC Rule; 

• Pesticide Management Regulation; 

• RCRA Generators Regulation; 

• RCRA TSD Regulations; 

• UST Rule; and 

• EPCRA Reporting Rule. 

The program element or sub-elements 

most commonly required by EPA 

programs are identification of 

engineering or administrative controls 

and/or a requirement for equipment/ 

containers to be constructed in 

accordance with standards (six 

regulatory programs), requirement for 

compatibility of stored materials with 

tanks and equipment (five regulatory 

programs), and overfill prevention (six 

programs). 

A general hazard review and 

identification of process hazards is 

required by four EPA regulatory 

programs—the 2015 MSGP for 

Industrial Stormwater, RMP Rule, SPCC 

Rule and RCRA TSD Regulations. Four 

programs, the MSGP for Industrial 

Stormwater, SPCC Rule, RCRA TSD 

Regulations and EPCRA Reporting Rule, 

require description of process 

technology or equipment for risk 

identification. The 2015 MSGP for 

Industrial Stormwater requires 

permitted facilities to assess potential 

hazards, implement control measures to 

minimize discharge based on identified 

hazards, and compile a list of the 

industrial activities exposed to 

stormwater. The RMP Rule requires 

facilities, depending on applicability, to 

either develop a hazard review or a 

process hazard analysis. The SPCC Rule 

requires that regulated facilities develop 

spill prevention, control and 

countermeasure plans that include a 

review of equipment and processes with 

a reasonable potential for failure. 

Compatibility of stored materials with 

tanks and equipment is required by five 

EPA regulatory programs—Pesticides 

Management Regulation, the SPCC Rule, 

RCRA Generators Regulation, RCRA 

TSD Regulations, and the UST Rule. 

Most of the regulatory programs have a 

general requirement that tanks or 

equipment (or tank lining) must be 

compatible with the stored material. 

The Pesticides Management Regulation 

requires compatibility of containers and 

pesticides stored by referring to and 

requiring compliance with the DOT 

Hazardous Materials Packaging 

Regulations, and also requires that each 

stationary pesticide container and its 

appurtenances are resistant to extreme 

changes in temperature and constructed 

of materials that are adequately thick to 

not fail and that are resistant to 

corrosion, puncture, or cracking. This 

requirement is included because 

material incompatibility can result in 

corrosion, which implicitly requires 

pesticide storage facilities to incorporate 

hazard review in order to satisfy the 

requirement. 

Six EPA regulatory programs have a 

broad requirement to identify 

engineering or administrative controls 

or that equipment or containers are to be 

constructed in accordance with industry 

codes or standards. Four specific types 

of engineering or administrative 

controls were reviewed: General 

engineering or administrative controls 

(e.g. temperature control), alarms, 

inventory management, and overfill 

prevention. The most commonly 

required engineering or administrative 

control is general controls. For example, 

the RCRA TSD Regulations at 40 CFR 

part 264 requires that containers 

holding hazardous waste remain closed 

during storage, except when it is 

necessary to add or remove waste, 

which is a control to prevent discharges. 

The RCRA Generators Regulation 

requires large quantity generators to use 

inventory logs to monitor hazardous 

waste. The UST Rule requires that 

owners or operators monitor hazardous 

substance transfer between tanks to 

avoid overfilling or spills. These forms 

of engineering or administrative 

controls may prevent discharges. 

c. Mechanical Integrity 

Eight regulations include 

requirements for facilities to maintain 

mechanical integrity of equipment 

critical for safe operation: 

• MSGP for Industrial Stormwater; 

• RMP Rule; 

• SPCC Rule; 

• Pesticide Management Regulation; 

• RCRA Generators Regulation; 

• RCRA TSD Regulations; 

• UST Rule; and 

• Pulp and Paper Effluent Guidelines. 

Five of the reviewed EPA regulations 

(MSGP for Industrial Stormwater, RMP 

Rule, SPCC Rule, RCRA TSD 

Regulations, and Pulp and Paper 

Effluent Guidelines,) have a general 

mechanical integrity program element 

requirement, eight require inspections 

and testing, and seven require corrective 

action as a result of these inspections 

and tests. For example, the 2015 MSGP 

for Industrial Stormwater addresses a 

mechanical integrity program element 

and requires maintenance of nonstructural control measures (e.g., 

ensuring availability of spill response 

supplies, maintenance training). The 

SPCC Rule requires that facilities’ SPCC 


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Plans include inspections and 

mechanical integrity. 

These regulations vary considerably 

in scope, such as inspection frequency. 

For example, the Pulp and Paper 

Effluent Guidelines require best 

management practices that involve daily 

inspection of equipment for leaks for the 

pulp and paper sector while the 2015 

MSGP for Industrial Stormwater 

requirements emphasize preventative 

maintenance on equipment that could 

result in contamination of stormwater. 

The RMP Rule requires facilities to 

inspect equipment at a frequency 

recommended by the manufacturer or 

industry standards and also to keep 

records of inspections. 

d. Personnel Training 

Of the 11 EPA regulations reviewed, 

eight include training requirements for 

employees or contractors that could 

serve to prevent CWA HS discharges: 

• MSGP for Industrial Stormwater; 

• RMP Rule; 

• SPCC Rule; 

• Pesticide Worker Protection 

Standard; 

• RCRA Generators Regulation; 

• RCRA TSD Regulations; 

• UST Rule; and 

• Pulp and Paper Effluent Guidelines. 

These regulations frequently outline 

prescribed content that must be covered 

in the employee and/or contractor 

training. These training programs 

typically require training related to safe 

operation of equipment as well as 

emergency response procedures when a 

spill occurs. For example, the RCRA 

TSD and Generators Regulations require 

that facility personnel are trained in 

hazardous waste management 

procedures, including equipment 

monitoring, automatic waste feed cut-off 

systems, alarm systems, response to 

fires or explosions, response to groundwater contamination incidents, and 

emergency shutdown of operations. 

Similarly, the Pesticide Worker 

Protection Standard requires training for 

pesticide handlers to include safety 

requirements for handling, transporting, 

storing, and disposing of pesticides, 

including general procedures for spill 

cleanup. The MSGP for Industrial 

Stormwater (2015) has a general 

requirement for permit holders to 

develop training on the procedures for 

expeditiously stopping, containing, and 

cleaning up leaks, spills, and other 

releases. 

Seven of the eight EPA regulations 

reviewed specifically for personnel 

training also include a requirement 

specific to refresher training. Most 

programs require that employees receive 

a review or refresher training at least 

annually. For example, the RMP Rule 

requires that refresher training is 

completed every three years. 

e. Incident Investigations 

Three EPA regulations include an 

incident investigation program element: 

• Pulp and Paper Effluent Guidelines; 

• SPCC Rule; and 

• the RMP Rule. 

These three EPA regulations that 

include an incident investigation 

program element require facilities to 

determine the cause of an incident. The 

SPCC Rule requires that facilities 

undertake an incident investigation and 

submit a report within 60 days if they 

discharged 1,000 U.S. gallons of oil or 

more in a single discharge or more than 

42 U.S. gallons of oil in each of two 

discharges. This incident investigation 

must include an analysis of the cause of 

the discharge, corrective action taken, 

and additional preventive measures that 

would minimize the possibility of 

recurrence. The RMP Rule requires that 

incident investigations are initiated 

within 48 hours of an accidental release 

and include factors that contributed to 

the incident as well as 

recommendations resulting from the 

investigation. Finally, the Pulp and 

Paper Effluent Guidelines require that 

mills conduct an incident investigation 

after a spill and generate a report that 

identifies changes in operations and 

equipment, as necessary to prevent 

recurrence. 

f. Compliance Audits 

Of the 11 EPA regulations reviewed, 

the RMP rule is the only one that 

requires compliance audits. The RMP 

Rule requires owners or operators of 

stationary sources with regulated 

chemicals to evaluate their compliance 

with the RMP Rule every three years. If 

they find areas of deficiency, they must 

determine and document an appropriate 

response and correct the deficiency. 

g. Secondary Containment 

Seven EPA regulations were found to 

contain secondary containment 

provisions: 

• MSGP for Industrial Stormwater; 

• SPCC Rule; 

• Pesticide Managment Regulation; 

• RCRA Generators Regulation; 

• RCRA TSD Regulations; 

• UST Rule; and 

• Pulp and Paper Effluent Guidelines. 

These seven EPA regulations require 

secondary containment for equipment 

in order to prevent discharges to 

jurisdictional waters. Only one 

regulation, SPCC Rule, allows for active 

or passive secondary containment. 

Another four of the seven regulations— 

MSGP for Industrial Stormwater, SPCC 

Rule, RCRA TSD Regulations, and Pulp 

and Paper Effluent Guidelines—allow 

an alternative to containment to be used 

to prevent released material from 

reaching water. For example, MSGP for 

Industrial Stormwater (2015) allows for 

a ‘‘similarly effective means designed to 

prevent the discharge of pollutants.’’ 

EPA regulations reviewed vary in 

their standards for the required 

secondary containment. For example, 

RCRA TSD regulations require that 

secondary containment include at least 

one of the following: A liner (external to 

the tank); a vault; a double-walled tank; 

or an equivalent device as approved by 

the Regional Administrator. 

Comparatively, the SPCC Rule requires 

onshore facilities to use at least one of 

the following: Dikes, berms, or retaining 

walls sufficiently impervious to contain 

oil; curbing or drip pans; sumps and 

collection systems; culverting, gutters, 

or other drainage systems; weirs, booms, 

or other barriers; spill diversion ponds; 

retention ponds; or sorbent materials. 

The SPCC Rule requires offshore 

facilities to use curbing or drip pans or 

sumps and collection systems. 

h. Emergency Response Plan 

Eight EPA regulations include 

requirements for facilities to develop an 

emergency response plan or at least one 

of the sub-elements of that program 

element: 

• MSGP for Industrial Stormwater; 

• RMP Rule; 

• SPCC Rule; 

• Pesticide Worker Protection 

Standard; 

• RCRA Generators Regulation; 

• RCRA TSD Regulations; 

• UST Rule; and 

• EPCRA Planning Rule. 

These eight EPA regulations require 

either the emergency response program 

element or at least one of its subelements. Of these, four generally 

require emergency response plans for 

discharges or accidental releases—RMP 

Rule, SPCC Rule, RCRA Generators 

Regulation, and RCRA TSD Regulations. 

Both RCRA regulations require that 

facilities develop contingency plans, 

which describes the actions that must be 

taken in response to unplanned release 

of hazardous waste. The SPCC Rule 

requires that in addition to spill 

prevention, facilities must include 

certain response plan elements to assist 

with a responding to an oil discharge. 

The RMP Rule requires facilities to 

develop an emergency response plan for 

accidental release. 

Seven of the eight EPA regulations 

reviewed for the emergency response 

plan element require that facilities plan 


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immediate actions in the event of a 

discharge. For example, the MSGP for 

Industrial Stormwater regulation 

requires permitted facilities to develop 

plans for effective response to spills, 

including procedures for expeditiously 

stopping, containing, and cleaning up 

leaks, spills, and other releases and to 

execute such procedures as soon as 

possible. The RMP Plan requires the 

emergency response plan to include 

immediate procedures and measures for 

emergency response after an accident. 

Four of the reviewed EPA programs also 

include procedures to ensure personnel 

safety, such as evacuation. RCRA 

Generators and TSD Regulations both 

require evacuation plans for personnel, 

while the Pesticide Worker Protection 

Standard requires that employers 

provide emergency assistance for 

handlers that have experienced a 

potential pesticide exposure. 

Notification procedures are also 

frequently addressed by the reviewed 

EPA regulatory programs. Seven of these 

EPA regulations have requirements to 

notify government or local communities 

about spills. For example, the UST Rule 

requires owners and operators to notify 

the implementing agency within 24 

hours of a spill. Similarly, the EPCRA 

Planning Rule requires facilities to make 

an immediate notification to EPA, as 

soon as practical, and a written followup emergency notification. The RMP 

Rule requires that emergency response 

plans include procedures for informing 

the public and local emergency 

response agencies about accidental 

releases. 

The remaining sub-elements 

identified for emergency response 

planning are addressed by half or less 

than half of the reviewed EPA 

regulations. Three programs require 

medical information, including the RMP 

Rule which requires documentation of 

proper first-aid and emergency medical 

treatment necessary to treat accidental 

human exposures. Four programs 

require facilities to designate an 

emergency response coordinator, 

including the SPCC Rule which requires 

the plan to provide a phone number for 

the facility response coordinator. One 

program requires facilities to describe 

information about downstream 

receptors that may be affected by a 

discharge. For example, the RMP Rule 

requires that facilities describe 

environmental receptors within a 

calculated distance from the point of 

release. 

i. Coordination of Emergency Response 

Program With State/Local Responders 

Four EPA regulations require facilities 

to coordinate an emergency response 

program with state and/or local 

responders: 

• RMP Rule; 

• RCRA Generators Regulation; 

• RCRA TSD Regulations; 

• EPCRA Planning Rule. 

Each EPA regulatory program requires 

facilities to make arrangements with 

local responders to prepare for an 

emergency. The RMP Rule mandates 

that facilities establish an arrangement 

with public emergency responders to 

not enter an emergency area except as 

arranged with the emergency contact 

indicated in the RMP. The two RCRA 

rules mandate a coordinated effort with 

local police, fire, hospital, and other 

emergency personnel, wherein potential 

responders understand which specific 

police/fire departments have primary 

authority and are familiar with the 

layout and activity of the facility and 

the properties of hazardous waste being 

handled. Unlike the RCRA regulations 

and RMP Rule, the EPCRA Planning 

Rule does not require formal 

arrangements to be made with state and 

local responders; EPCRA mandates the 

sharing of information with local 

emergency response personnel. 

4. CWA HS Subject to EPA and Other 

Federal Regulatory Requirements 

EPA further analyzed the existing 

Federal regulatory programs to 

determine whether the most frequently 

discharged CWA HS listed in Table 2 

are subject to existing regulatory 

requirements (Table 6). However, it is 

important to note that the applicability 

criteria for some of the regulatory 

programs do not rely solely on chemical 

identity, but include other factors (e.g., 

whether the substance is a waste, the 

industrial category of the facility); there 

may be additional regulatory 

requirements applicable to the 

identified CWA HS that this analysis 

has not identified. Thus, in cases where 

applicability could not be assessed with 

relative certainty based on chemical 

identity, the existing regulation was not 

included in Table 6. Furthermore, the 

list of CWA HS and/or the criteria for 

listing or distinguishing hazards 

between CWA HS is outside the scope 

of this action, as well as differentiating 

requirements based on such 

consideration. 

TABLE 6—MOST FREQUENTLY DISCHARGED CWA HS AND RELEVANT FEDERAL REGULATIONS

CWA HS Relevant regulations 

PCBs (CAS No. 1336–36–3) .................................................................... NPDES MSGP for Industrial Stormwater (Toxic Pollutant). 

SPCC Rule (commonly mixed with transformer oil). 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations.a

PHMSA Hazardous Material Regulations. 

Sulfuric Acid (CAS No. 7664–93–9) ......................................................... NPDES MSGP for Industrial Stormwater.

RMP Rule. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Sodium Hydroxide (CAS No. 1310–73–2) ............................................... NPDES MSGP for Industrial Stormwater. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Ammonia (CAS No. 7664–41–7) .............................................................. NPDES MSGP for Industrial Stormwater. 

RMP Rule. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 


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TABLE 6—MOST FREQUENTLY DISCHARGED CWA HS AND RELEVANT FEDERAL REGULATIONS—Continued 

CWA HS Relevant regulations 

Benzene (CAS No. 71–43–2) ................................................................... NPDES MSGP for Industrial Stormwater (Priority/Toxic Pollutant). 

Pesticide Regulations.b

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Hydrochloric Acid (CAS No. 7647–01–0) ................................................. NPDES MSGP for Industrial Stormwater. 

RMP Rule. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Chlorine (CAS No. 7782–50–5) ............................................................... NPDES MSGP for Industrial Stormwater. 

RMP Rule. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Sodium Hypochlorite (CAS No. 7681–52–9) ........................................... NPDES MSGP for Industrial Stormwater. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Toluene (CAS No. 108–88–3) .................................................................. NPDES MSGP for Industrial Stormwater (Priority/Toxic Pollutant). 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Phosphoric Acid (CAS No. 7664–38–2) ................................................... NPDES MSGP for Industrial Stormwater. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Styrene (CAS No. 100–42–5) .................................................................. NPDES MSGP for Industrial Stormwater. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Nitric Acid (CAS No. 7697–37–2) ............................................................ NPDES MSGP for Industrial Stormwater. 

RMP Rule. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

Potassium Hydroxide (CAS No. 1310–58–3) ........................................... NPDES MSGP for Industrial Stormwater. 

UST Rule. 

EPCRA Regulations. 

OSHA Regulations. 

PHMSA Hazardous Material Regulations. 

aAll instances of ‘‘OSHA Regulations’’ indicate that the CWA HS is covered under either EAPs (29 CFR 1910.38), PSM (29 CFR 1910.119), 

HAZWOPER (29 CFR 1910.120), or HCS (29 CFR 1910.1200). b ‘‘Pesticide Regulations’’ indicates that the substance has a commercial use of pesticides. 

Table 6 summarizes relevant 

regulations for the most commonly 

discharged CWA HS. However, there are 

challenges to identifying applicability 

for certain programs, specifically when 

regulatory program applicability relies 

on criteria other than chemical identity. 

For example, SMCRA regulations and 

MSHA regulations apply primarily 

based on industrial activity (i.e., 

mining). These requirements were not 

cited in Table 6, although they may 

apply to some CWA HS present in those 

industrial activities. Also, not cited in 

this table are Standards for Generators 

of Hazardous Waste; or Standards for 

Treatment, Storage, and Disposal of 

Hazardous Waste. Their applicability 

depends on whether a waste is present, 

and whether that waste meets the 

regulatory definition of hazardous 

waste. While not included in Table 6, 

these regulations apply to CWA HS in 

certain situations (e.g., when CWA HS 

are hazardous waste), so EPA 

considered these regulatory 

requirements in the analysis of existing 

regulations. 

For other regulatory programs, 

applicability may depend on other 

criteria in addition to chemical identity. 

Requirements for USTs apply to CWA 

HS when present in UST systems 

greater than 110 gallons in capacity. 

PHMSA Hazardous Materials 

Regulations specify integrity 

requirements for packages used to ship 

hazardous materials, including CWA 

HS. Therefore, when CWA HS are stored 

in packages intended for shipment, the 

packages must meet certain design 

criteria that may also serve to prevent 

discharges of CWA HS. These regulatory 

programs are cited in Table 6, and the 

complexities of assessing their 


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prevention advantages for CWA HS are 

discussed in the BID. 

Based on the review of NRC reporting 

data, in conjunction with existing 

prevention requirements of the 

regulations included in the analysis, the 

Agency determined that the majority of 

identified CWA HS reported discharges 

to water from non-transportation-related 

sources have been discharges of 

chemicals currently subject to discharge 

or accident prevention regulatory 

requirements. 

C. Conclusions 

In the 40 years since CWA section 

311(j)(1)(C) was enacted by Congress, 

multiple statutory and regulatory 

requirements have been established 

under different Federal authorities that 

generally serve to, directly and 

indirectly, prevent CWA HS discharges. 

Some states have also established their 

own discharge prevention provisions 

relevant to CWA HS. Based on EPA’s 

analysis of the frequency and impacts of 

reported CWA HS discharges and the 

existing framework of EPA regulatory 

programs and implementing regulations, 

EPA is not proposing additional 

regulatory requirements at this time. 

EPA requests comments on this 

proposed approach of establishing no 

new regulatory requirements under the 

authority of CWA section 311(j)(1)(C). 

EPA specifically requests comments on 

the analysis of existing EPA regulations 

and their applicability to CWA HS for 

purposes of spill prevention. EPA also 

requests comments on the analysis of 

other Federal regulations that 

supplement the EPA regulatory program 

analysis and whether EPA should 

consider expanding the basis of the 

proposal to these Federal regulations. 

Furthermore, while the analysis of 

state regulations and industry standards 

included in the BID do not serve as a 

basis for this proposal, the Agency 

requests comments on whether the state 

regulations and industry standards 

considered have program elements 

reflective of those identified as key to 

prevention. The Agency also requests 

comments on whether there are other 

Federal regulations not considered in 

the analysis but that may have 

applicable discharge prevention 

requirements, as well as whether any of 

the identified program elements should 

or should not have been considered. 

Likewise, the Agency requests 

comments on whether there may be 

regulatory gaps in prevention 

requirements that are not reflected in 

the analysis. We also request 

information that may be used to revise 

or supplement our analysis regarding 

any facilities, which are using, storing, 

producing, and/or otherwise handling 

CWA HS. Please provide any supporting 

information, including supporting data, 

with comments. 

IV. Alternative Regulatory Options 

Considered 

A. Prevention Program 

The Agency considered proposing a 

CWA HS discharge prevention program 

that would include provisions to 

address all nine prevention program 

elements listed in Table 3. Under this 

option, EPA considered requiring 

regulated facility owners/operators to 

develop a written plan with site-specific 

prevention measures and practices. 

Regulated facilities would be expected 

to implement this plan, to maintain and 

update it as needed, and to make it 

available for inspection. Under this 

alternative option, the facilities could 

take credit for and/or incorporate 

existing discharge prevention 

compliance strategies when addressing 

CWA HS discharge prevention 

requirements under this program. 

A prevention program regulatory 

option would be designed to reflect all 

discharge prevention, control and 

mitigation program elements discussed 

in this action to prevent and mitigate 

CWA HS discharges to jurisdictional 

waters. A prevention program regulatory 

approach would also include additional 

administrative program elements, such 

as requirements to: 

• Develop a plan in accordance with 

good engineering practices; 

• Update the plan as operations or 

equipment changes; and 

• Require records documenting 

compliance with the rule. 

Following an analysis of the 

frequency of CWA HS discharges and 

the causes and impacts of such 

discharges, the Agency chose not to 

propose this approach. Over the 10-year 

period analyzed (2007–2016), there 

were a total of 2,491 CWA HS 

discharges from non-transportationrelated sources with 117 of those 

discharges with reported impacts. This 

data suggests that the existing 

framework of regulatory requirements 

serves to prevent CWA HS discharges. 

EPA requests comments on whether 

to consider this alternative approach 

and develop a CWA HS prevention 

program. Comments should include 

supporting information and data. EPA 

requests comments on the specific 

provisions recommended, costs and 

advantages of such an approach, ways to 

minimize any regulatory redundancies, 

and any other information that would 

support the promulgation of new CWA 

HS discharge prevention provisions. 

B. Targeted Prevention Requirements 

EPA also considered proposing a 

limited set of requirements designed to 

prevent CWA HS discharges. This 

regulatory option could establish 

targeted requirements under one or 

more of the nine program elements 

listed in Table 3. Targeted requirements 

under several of the program elements 

could be effective in helping to prevent 

CWA HS discharges. 

To evaluate which requirement(s) 

might be appropriate, EPA reviewed 

cause data in the NRC database for past 

CWA HS discharges, and identified four 

key program elements that may have 

addressed the CWA HS discharge 

causes. A summary of this review is 

shown in Table 7. The first category of 

causes, Unknown/Illegal Dumping/ 

Other, consisted of reports for which 

there was either too little information 

provided to develop a prevention 

strategy, or for which additional 

regulatory requirements would be 

unlikely to prevent the discharges 

because the HS was disposed of 

illegally. For example, there are 

statutory and regulatory prohibitions in 

place to prevent CWA HS dumping, and 

these prohibitions are enforced (see 

CWA section 311(b)(3) and 40 CFR 

117.1(a)). There is no reason to believe 

that a redundant prohibition on such 

dumping would alleviate the problem of 

those who already disregard existing 

regulations. 

EPA identified program elements that 

could be effective in preventing CWA 

HS discharges resulting from the other 

four categories of reported causes. These 

program elements were considered, both 

individually and in various 

combinations, as an alternative 

regulatory option. 


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20Executive Order 12866 (58 FR 51735, October 

4, 1993) section 1(a) states that in choosing among 

alternative regulatory approaches, agencies should 

select those approaches that maximize net benefits 

(including potential economic, environmental, 

public health and safety, and other advantages; 

distributive impacts; and equity), unless a statute 

requires another regulatory approach. 

TABLE 7—CAUSE DATA FOR IDENTIFIED CWA HS DISCHARGES

Reported cause category a CWA HS 

discharges 

CWA HS 

discharges 

with 

reported 

impacts 

Program element that 

could potentially prevent 

this type of discharge 

Unknown/Illegal Dumping/Other ................................... 1,357 74 Unknown—not enough information. 

None—illegal dumping violates current regulations. 

Equipment Failure ........................................................ 563 17 Hazard Review. 

Mechanical Integrity. 

Secondary Containment. 

Natural Phenomenon .................................................... 321 4 Hazard Review. 

Operator Error .............................................................. 204 10 Hazard Review. 

Personnel Training. 

Secondary Containment. 

Fire, explosion .............................................................. 46 12 Hazard Review. 

Mechanical Integrity. 

Personnel Training. 

Total ....................................................................... 2,491 117 

aEPA used NRC incident descriptions to categorize the incident cause. 

1. Hazard Review 

Approximately 46 percent of the 

identified CWA HS discharges from 

2007 to 2016 were reportedly due to 

equipment failure, a natural 

phenomenon, operator error, or fire/ 

explosion. These causes were all 

identified as potentially addressed by a 

hazard review. A requirement to 

identify potential hazards, including, for 

example, process hazards, engineering 

and administrative controls, and human 

factors, could help prevent CWA HS 

discharges. However, establishing new 

requirements for hazard reviews may 

provide only incremental advantages, as 

the hazard review program element was 

identified in seven of the eight EPA 

regulatory programs and in all four of 

the other Federal regulations reviewed. 

2. Mechanical Integrity 

Nearly 23 percent of the identified 

2,491 CWA HS discharges from 2007 to 

2016 were reportedly due to equipment 

failure, which could be addressed in 

part through preventive maintenance. 

However, EPA believes additional 

regulatory requirements would provide 

minimal prevention advantages, since 

seven of the eight EPA programs and 

three of the four other Federal programs 

analyzed in the existing requirements 

review already contain some 

mechanical integrity/preventive 

maintenance provisions. 

3. Personnel Training 

Approximately 10 percent of the 

identified 2,491 CWA HS discharges 

were due to either operator error or fire/ 

explosion, which were both identified 

as causes that could be reduced by 

personnel training. Training employees 

on the proper operation of equipment 

and discharge prevention measures/ 

procedures could serve to prevent CWA 

HS discharges due to operator error. 

However, the value of a personnel 

training program would depend, in part, 

on whether proper operating, 

maintenance, prevention, or response 

procedures have been developed to train 

personnel. Personnel training provisions 

are currently required in seven of the 

eight EPA programs and three of the 

four other Federal programs reviewed. 

4. Secondary Containment 

More than 30 percent of the identified 

2,491 CWA discharges were due to 

causes (e.g., equipment failure, operator 

failure) where secondary containment 

could have played a role in preventing 

the discharge to jurisdictional waters. A 

requirement to construct and maintain 

appropriate secondary containment 

(e.g., sized to prevent a CWA HS 

discharge from impacting jurisdictional 

waters could be the most generally 

applicable program element). However, 

the advantages of adding secondary 

containment provisions may only be 

incremental, as at least some type of 

secondary containment provision is 

included in six of the eight EPA 

regulatory programs and three of the 

four other Federal regulatory programs 

reviewed. 

5. Conclusion 

Provisions for any of the four program 

elements described above, as well as 

others identified in Table 3, could be 

included in a targeted regulatory 

approach. However, these provisions 

were frequently identified in both the 

EPA and other Federal regulatory 

programs reviewed. EPA believes there 

would be only minimal incremental 

value in requiring these provisions in a 

new regulation. Additionally, the 

benefits of any of the targeted provisions 

described above may not justify the 

associated costs.20 For more information 

on the potential costs and benefits 

associated with regulatory options 

considered for this action, see the 

economic analysis, ‘‘Regulatory Impact 

Analysis; Clean Water Act Hazardous 

Substances Discharge Prevention,’’ 

available in the docket and the summary 

of the economic analysis in section V.A. 

of this action. 

EPA requests comments on whether it 

should adopt a narrowly targeted 

regulatory approach to prevent CWA HS 

discharges. Commenters who support 

targeted prevention requirements 

should provide information and data 

that identify which program elements to 

include and why, the costs and 

advantages of such an approach, ways to 

minimize any regulatory redundancies, 

and any other information that would 

support the promulgation of new, 

targeted prevention provisions. 

Furthermore, EPA requests comments 

on whether a targeted regulatory 

approach should allow a facility to 

substitute alternative prevention 

measures for specific targeted 

requirements (e.g., a situation where 

secondary containment is not 

practicable, a facility could substitute a 

separate prevention measure that 

achieves the same effect). 


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In summary, the proposal identifies 

three options the Agency may choose to 

finalize: 

• Establishes no new requirements 

under the authority of CWA 311(j)(1)(C); 

• Requires prevention plans to 

address the nine program elements 

discussed; or 

• Requires actions under targeted 

program elements. 

EPA requests comments on these 

three approaches, as well as on other 

alternatives not specifically identified in 

this notice. For example, EPA could 

consider an approach that requires an 

owner or operator to develop a plan to 

prevent CWA HS discharges but allows 

flexibility for the owner or operator to 

determine what provisions should be 

incorporated within the plan. The 

Agency could also consider establishing 

a prevention program under CWA 

section 311(j)(1)(C) authority that 

incorporates existing discharge 

prevention provisions already 

established under other statutory 

authorities. EPA requests comments on 

alternative approaches. 

If the Agency were to finalize an 

alternative option that establishes a 

regulatory program, it would apply to 

facilities producing, storing, processing, 

using, transferring or otherwise 

handling CWA HS. EPA would need to 

establish applicability criteria for the 

program, and is requesting comments on 

appropriate applicability criteria or 

thresholds for such alternatives. 

V. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to OMB for 

review, because it raises novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Any changes made in response to 

the OMB recommendations have been 

documented in the docket. 

EPA prepared an economic analysis of 

the potential costs and benefits 

associated with regulatory options 

considered for this action. This analysis, 

‘‘Regulatory Impact Analysis; Clean 

Water Act Hazardous Substances 

Discharge Prevention,’’ is available in 

the docket. 

1. Summary of the Economic Analysis 

A regulatory impact analysis (RIA) is 

included in the record. The RIA 

considers three alternatives: The 

proposed no-action approach, a 

prevention program including 

provisions under nine program 

elements, and a targeted approach 

including four of the program elements. 

The unit costs of the program elements 

are derived from similar requirements in 

other EPA regulatory programs. The 

number of affected facilities is estimated 

from the number of facilities subject to 

EPCRA. 

EPA does not attempt to determine 

the number of potentially regulated 

facilities currently undertaking various 

prevention activities in the baseline. 

Thus, EPA does not estimate total costs 

per facility, nor does it estimate total 

program costs across facilities. EPA does 

calculate the annualized net present 

value of a wide range of unit 

compliance costs for each program 

element over a 10-year analysis period, 

using 3 percent and 7 percent discount 

rates, as presented in Tables 8 and 9. 

Avoided damages, estimated from 

historical CWA HS discharges, represent 

the monetized damages. Based on 

historical incidents reported to the NRC, 

EPA estimated the total existing level of 

monetized damages over the 10-year 

period from 2007 to 2016 to be $33.1 

million in 2016 dollars. 

TABLE 8—SUMMARY OF UNIT COSTS

Type of cost 

Unit Costs: Total annualized unit costs 

(2016 $) 

Option 1: 

Proposed action 

Option 2: 

Prevention program 

Option 3: Targeted 

prevention requirements 

3% 7% 3% 7% 3% 7% 

Safety Information (Recurring) .................................................................. $0 $0 $14–$25,100 $15–$26,700 $0 $0 

Hazard Review (Recurring) ....................................................................... 0 0 19–15,900 20–17,300 19–15,900 20–17,300 

Mechanical Integrity (Initial and Recurring) .............................................. 0 0 348–98,800 349–99,400 348–98,800 349–99,400 

Personnel Training (Recurring) ................................................................. 0 0 42–69,100 44–73,400 42–69,100 44–73,400 

Incident Investigations (Recurring) ........................................................... 0 0 40–14,600 42–15,300 0 0 

Compliance Audits (Recurring) ................................................................. 0 0 46–10,800 45–10,600 0 0 

Secondary Containment (Initial) ................................................................ 0 0 3,000–43,100 3,570–51,200 3,000–43,100 3,570–51,200 

Emergency Response Plan, ERP) (Initial) ................................................ 0 0 770 914 0 0 

Coordination of ERP with State and Local Responders (Initial) .............. 0 0 (*) (*) 0 0 

* Included in cost of ERP. 

TABLE 9—SUMMARY OF MONETIZED DAMAGES

Impact category 

Monetized damages 

Impact Average 

annual cases 

Average annual 

damages 

(millions, 2016 $) 

Human Health ............................... Injuries (w/o hospitalizations) ............................................................... 1.2 $0.001 

Hospitalizations .................................................................................... 4.1 0.2 

Fatalities ............................................................................................... 0.3 3.1 

Other ............................................. Evacuations .......................................................................................... 211.9 0.04 

Sheltering-in-Place ............................................................................... n.e. n.e. 

Waterway Closures .............................................................................. n.e. n.e. 

Water Supply Contamination ............................................................... n.e. n.e. 

Environmental Impacts ........................................................................ n.e. n.e. 

Lost Productivity ................................................................................... n.e. n.e. 


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21Under Executive Order 12866 (58 FR 51735, 

October 4, 1993), section 1(b)(6), each agency shall 

assess both the costs and benefits of the intended 

regulation and, recognizing that some costs and 

benefits are difficult to quantify, propose or adopt 

a regulation only upon a reasoned determination 

that the benefits of the intended regulation justify 

its costs. 

22See Regulatory Impact Analysis; Clean Water 

Act Hazardous Substances Discharge Prevention; 

Docket ID #: EPA–HQ–OLEM–2018–0024. 

TABLE 9—SUMMARY OF MONETIZED DAMAGES—Continued 

Impact category 

Monetized damages 

Impact Average 

annual cases 

Average annual 

damages 

(millions, 2016 $) 

Emergency Response Costs ............................................................... n.e. n.e. 

Transaction Costs ................................................................................ n.e. n.e. 

Property Value Impacts * ..................................................................... n.e. n.e. 

Total ....................................... .............................................................................................................. 217.5 3.3 

n.e. = not estimated. 

* Property value impacts overlap with human health and other impact categories. 

EPA believes the benefits would not 

justify the costs in any alternative other 

than the proposed alternative.21 The 

benefits of the provisions are to reduce 

the likelihood and severity of CWA 

hazardous substance discharges and 

their associated impacts on human 

health and the environment. Table 9 

gives estimates of baseline damages 

from hazardous substance discharges. 

Annualized damages are estimated as 

$3.3 million (2016$) and represent 

human health impacts and evacuations. 

Nonmonetized baseline damages 

include impacts such as shelter-in-place 

events, waterway closures, and lost 

productivity. The estimated annualized 

unit costs of proposed provisions vary 

widely, from less than $100 to tens of 

thousands of dollars (Table 8). However, 

existing regulatory programs already 

require many of the prevention and 

mitigation actions proposed by Options 

2 and 3. Even a robust regulatory 

program where none existed before 

would not be expected to completely 

eliminate all risk. 

Since the proposed alternative 

establishes no new regulatory 

requirements, it neither imposes 

incremental costs nor provides 

incremental environmental protection 

benefits. 

2. Estimating Universe of Potentially 

Regulated Facilities 

a. Identifying Facilities With CWA HS 

To estimate the universe of facilities 

that would potentially be subject to a 

rule preventing CWA HS discharges, 

EPA first estimated the number of 

facilities with CWA HS onsite. 

Information in EPCRA Tier II reports 

was used to identify facilities with CWA 

HS onsite, because these reports contain 

information about many chemicals, of 

which CWA HS are a subset. EPA 

reviewed Tier II reports submitted in 16 

states and extrapolated the data 

nationally based on NAICS codes and 

United States Census data. EPA 

estimates there are approximately 

108,000 potentially affected facilities 

nationally. For additional details on this 

methodology, alternatives considered, 

and the results, please see Section 3 and 

Appendix B of the RIA available in the 

docket for this action.22

b. Proximity to Jurisdictional Waters 

EPA did not identify an appropriate 

method to quantify those facilities that 

would not have the potential to 

discharge to jurisdictional waters for 

this action. To estimate the universe of 

potentially subject facilities, EPA took a 

conservative approach and assumed that 

all CWA HS facilities have the potential 

to discharge CWA HS to jurisdictional 

waters. 

c. Data Limitations 

The estimate of potentially regulated 

facilities has several uncertainties. First, 

due to the wide range of trade names 

used for many chemicals and chemical 

mixtures, it was unclear whether 

approximately 20 percent of the 

facilities in the Tier II reports reviewed 

had a CWA HS onsite. Second, Tier II 

reports are required for materials 

present at any one time in an amount 

greater than or equal to 10,000 pounds, 

or lower established thresholds for 

chemicals defined as Extremely 

Hazardous Substances in 40 CFR part 

355, Appendix A. If a proposed 

regulation were to establish 

applicability criteria with a higher or 

lower applicability threshold than those 

established in 40 CFR part 355, 

Appendix A, the number of potentially 

regulated facilities would be impacted. 

Finally, the extrapolation assumes that 

the fraction of facilities in each NAICS 

sector that have CWA HS onsite is the 

same across all states. As discussed in 

Section 3.3 of the RIA, alternative 

extrapolation methodologies were used 

with reasonably similar results, which 

provides some confidence that the 

extrapolation approach is reasonable 

(i.e., nationwide estimate of 

approximately 101,000 facilities based 

on Tier II data and U.S. population vs. 

approximately 108,000 facilities based 

on NAICS codes and Census data). 

3. Conclusion 

EPA seeks comments on the method 

used to estimate the potential affected 

universe, including any additional data 

or information sources that could be 

used to reduce the uncertainty of the 

estimate. For any additional information 

sources, commenters are encouraged to 

provide information, including where it 

can be publicly obtained, as well as how 

the data could improve EPA’s current 

estimate. EPA intends to further refine 

the estimate of the facilities that could 

be potentially subject to CWA HS 

regulatory requirements as additional 

information is received. EPA is 

requesting comments on its approach to 

the economic analysis, including 

additional sources of information or 

data to refine the analysis. 

B. Executive Order 13771: Reducing 

Regulation and Controlling Regulatory 

Costs 

This action is not an Executive Order 

13771 regulatory or deregulatory action, 

because this action does not propose 

any regulatory requirements. 

C. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA, because this action does not 

propose any regulatory requirements. 

D. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 


amozie on DSK3GDR082PROD with PROPOSALS1
29520 Federal Register / Vol. 83, No. 122 / Monday, June 25, 2018 / Proposed Rules 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. An agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden, or otherwise has a 

positive economic effect on the small 

entities subject to the rule. 

This action proposes no regulatory 

requirements. We have therefore 

concluded that this action will have no 

net regulatory burden for all directly 

regulated small entities. 

E. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local, or 

tribal governments or the private sector. 

F. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

G. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175, because this action 

proposes no regulatory requirements. 

Thus, Executive Order 13175 does not 

apply to this action. 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 as applying to those regulatory 

actions that concern environmental 

health or safety risks that the EPA has 

reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in Section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

I. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This action proposes no regulatory 

requirements. 

J. National Technology Transfer and 

Advancement Act 

This rulemaking does not involve 

technical standards. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes that this action is not 

subject to Executive Order 12898 (59 FR 

7629, February 16, 1994) because it does 

not establish an environmental health or 

safety standard and imposes no 

regulatory requirements. 

Dated: June 15, 2018. 

E. Scott Pruitt, 

Administrator. 

[FR Doc. 2018–13470 Filed 6–22–18; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R09–RCRA–2018–0267; FRL–9979– 

60—Region 9] 

Hawaii: Proposed Authorization of 

State Hazardous Waste Management 

Program Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Hawaii has applied to the 

Environmental Protection Agency (EPA) 

for final authorization of certain changes 

to its hazardous waste program under 

the Resource Conservation and 

Recovery Act, as amended (RCRA). 

These changes correspond to certain 

federal rules promulgated between May 

26, 1998 and June 30, 2016 (also known 

as RCRA Checklist 167 and Clusters IX 

through XXIV) plus several changes 

initiated by the State. EPA has reviewed 

Hawaii’s application with regards to 

federal requirements and is proposing to 

authorize the changes. The EPA seeks 

public comment prior to taking final 

action. 

DATES: Comments on this proposed rule 

must be received by July 25, 2018. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R09–RCRA–2018–0267 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

You may also view Hawaii’s 

application from 8 a.m. to 4 p.m. 

Monday to Friday, excluding State 

holidays at Hawaii State Department of 

Health OPPPD, 1250 Punchbowl Street, 

Room 120, Honolulu, Hawaii 96813, 

phone number: 808–586–4188. 

FOR FURTHER INFORMATION CONTACT: 

Laurie Amaro, U.S. Environmental 

Protection Agency, Region 9, Land 

Division, 75 Hawthorne Street (LND–1– 

1), San Francisco, CA 94105, phone 

number: 415–972–3364, email: 

amaro.laurie@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Why are revisions to State programs 

necessary? 

States which have received final 

authorization from EPA under RCRA 

section 3006(b), 42 U.S.C. 6926(b), must 

maintain a hazardous waste program 

that is equivalent to, consistent with, 

and no less stringent than the federal 

program. As the federal program 

changes, states must change their 

programs and ask EPA to authorize the 

changes. Changes to state programs may 

be necessary when federal or state 

statutory or regulatory authority is 

modified or when certain other changes 

occur. Most commonly, states must 

change their programs because of 

changes to EPA’s regulations in 40 Code 

of Federal Regulations (CFR) parts 124, 

260 through 268, 270, 273, and 279. 

B. What decisions has EPA made in this 

rule? 

On December 13, 2017, Hawaii 

submitted a final complete program 

revision application seeking 

authorization of changes to its 

hazardous waste program corresponding 

to certain federal rules promulgated 

between May 26, 1998 and June 30, 


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