17890 Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 118 and 300 

[EPA–HQ–OLEM–2021–0585; FRL–7881– 

02–OLEM] 

RIN 2050–AH17 

Clean Water Act Hazardous Substance 

Worst Case Discharge Planning 

Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Clean Water Act (CWA) 

states that regulations shall be issued 

which require an owner or operator of 

a facility to prepare and submit a plan 

for responding, to the maximum extent 

practicable, to a worst case discharge, 

and to a substantial threat of such a 

discharge, of a hazardous substance. 

The Environmental Protection Agency 

(EPA or Agency) proposes to require 

planning for worst case discharges of 

CWA hazardous substances for onshore 

non-transportation-related facilities that 

could reasonably be expected to cause 

substantial harm to the environment by 

discharging CWA hazardous substances 

into or on the navigable waters, 

adjoining shorelines, or exclusive 

economic zone. 

DATES: Comments must be received on 

or before May 27, 2022. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OLEM–2021–0585, by any of the 

following methods: 

— Federal eRulemaking Portal: https:// 

www.regulations.gov/ (our preferred 

method). Follow the online 

instructions for submitting comments. 

— Mail: U.S. Environmental Protection 

Agency, EPA Docket Center, EPA– 

HQ–OLEM–2021–0585 Docket, Mail 

Code 28221T, 1200 Pennsylvania 

Avenue NW, Washington, DC 20460. 

— Hand delivery or courier (by 

scheduled appointment only): EPA 

Docket Center, WJC West Building, 

Room 3334, 1301 Constitution 

Avenue NW, Washington, DC 20004. 

The Docket Center’s hours of 

operations are 8:30 a.m. to 4:30 p.m., 

Monday through Friday (except 

Federal holidays). 

Instructions: All submissions received 

must include the Docket ID No. for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are open to the public by 

appointment only to reduce the risk of 

transmitting COVID–19. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries 

and couriers may be received by 

scheduled appointment only. For 

further information on EPA Docket 

Center services and the current status, 

please visit us online at https://

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Rebecca Broussard, Office of Emergency 

Management, Mail Code 5104A, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460; telephone number: 202–564– 

6706; email: broussard.rebecca@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

A. Written Comments 

II. General Information 

A. Does this action apply to me? 

B. What action is the Agency taking? 

C. What is the Agency’s authority for 

taking this action? 

D. What are the costs and benefits of this 

action? 

E. List of Abbreviations and Acronyms 

III. Background 

A. Statutory Authority and Delegation of 

Authority 

1. Statutory Requirements 

2. Delegation of Authority 

B. CWA Hazardous Substance Designation 

and Reportable Quantities 

C. Regulatory Background 

1. EPA CWA Hazardous Substance 

Actions 

2. EPA Oil Pollution Prevention 

Regulation 

3. USCG CWA Hazardous Substance 

Worst Case Discharge Actions 

D. Litigation 

E. CWA Hazardous Substance Discharge 

History and Impacts Analysis 

1. Discharge History and Reported 

Impacts 

2. Most Frequently Discharged CWA 

Hazardous Substances 

3. Impacts to Waterways and Sensitive 

Environments 

4. NRC Data Limitations 

5. Data Sources Examined 

F. Analysis of Existing Regulatory 

Programs 

IV. Proposed Action 

A. Applicability Criteria 

1. Screening Criteria 

2. Substantial Harm Criteria 

3. Other Applicability Criteria 

4. Worst Case Discharge Calculations 

5. Substantial Harm Certification Form 

B. Response Planning 

1. Consistency With NCP and ACPs 

2. LEPC or TEPC Coordination 

3. QI Designation and Duties 

4. CWA Hazardous Substance FRP 

Components 

C. Implementation and Enforcement 

1. Office Delegation 

2. Compliance Dates 

3. Confidential Business Information 

4. Appeals Process 

5. Stakeholder Petitions 

6. Consistency With the NCP 

D. Additional Considerations 

1. Communities With Environmental 

Justice Concerns 

2. Climate Change 

3. Facility Density 

V. Statutory and Executive Orders Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. Public Participation 

A. Written Comments 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OLEM–2021– 

0585 at https://www.regulations.gov 

(our preferred method), or the other 

methods identified in the ADDRESSES

section, above. Once submitted, 

comments cannot be edited or removed 

from the docket. The EPA may publish 

any comment received to its public 

docket. Do not submit to EPA’s docket 

at https://www.regulations.gov 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 


jspears on DSK121TN23PROD with PROPOSALS3
Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 17891 

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. 

Due to public health concerns related 

to COVID–19, the EPA Docket Center 

and Reading Room are open to the 

public by appointment only. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries or 

couriers will be received by scheduled 

appointment only. For further 

information and updates on EPA Docket 

Center services, please visit us online at 

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

The EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our Federal partners 

so that the Agency can respond rapidly 

as conditions change regarding COVID– 

19. 

II. General Information 

A. Does this action apply to me? 

A list of NAICS codes at the threedigit level that could be affected by 

requirements established under CWA 

section 311(j)(5) is provided in Table 1: 

TABLE 1—ENTITIES POTENTIALLY

AFFECTED BY THE PROPOSED RULE

NAICS 3 

North American industry 

classification system 

(NAICS) description 

111 ................. Crop Production 

115 ................. Support Activities for Agriculture and Forestry 

211 ................. Oil and Gas Extraction 

212 ................. Mining (except Oil and Gas) 

213 ................. Support Activities for Mining 

221 ................. Utilities 

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

314 ................. Textile Product Mills 

321 ................. Wood Product Manufacturing 

TABLE 1—ENTITIES POTENTIALLY AFFECTED BY THE PROPOSED RULE— 

Continued 

NAICS 3 

North American industry 

classification system 

(NAICS) description 

322 ................. Paper Manufacturing 

324 ................. Petroleum and Coal Products Manufacturing 

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

326 ................. Plastics and Rubber Products Manufacturing 

327 ................. Nonmetallic Mineral Product 

Manufacturing 

331 ................. Primary Metal Manufacturing 

332 ................. Fabricated Metal Product 

Manufacturing 

333 ................. Machinery Manufacturing 

335 ................. Electrical Equipment, Appliance, and Component 

Manufacturing 

336 ................. Transportation Equipment 

Manufacturing 

423 ................. Merchant Wholesalers, Durable Goods 

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

441 ................. Motor Vehicle and Parts 

Dealers 

444 ................. Building Material and Garden Equipment and Supplies Dealers 

447 ................. Gasoline Stations 

453 ................. Miscellaneous Store Retailers 

488 ................. Support Activities for Transportation 

493 ................. Warehousing and Storage 

511 ................. Publishing Industries (except 

internet) 

522 ................. Credit Intermediation and 

Related Activities 

562 ................. Waste Management and Remediation Services 

611 ................. Educational Services 

622 ................. Hospitals 

811 ................. Repair and Maintenance 

812 ................. Personal and Laundry Services 

928 ................. National Security and International Affairs 

This table is not intended to be 

exhaustive, but rather provides a likely 

minimal set of affected entities likely to 

be regulated by this action. This table 

lists the types of entities that EPA is 

aware could potentially be subject to 

this proposed action. Other types of 

entities not listed in the table may also 

be subject to this proposed action. To 

determine whether your facility is 

subject to this proposed action, you 

should carefully examine the 

applicability criteria proposed in 

§ 118.3. If you have questions regarding 

the applicability of this action to a 

particular entity or facility, consult the 

person listed in the FOR FURTHER

INFORMATION CONTACT section. 

B. What action is the Agency taking? 

The EPA is proposing new 

requirements for Facility Response 

Plans (FRPs) for worst case discharges of 

CWA hazardous substances for onshore 

facilities that, because of their location, 

could reasonably be expected to cause 

substantial harm to the environment by 

discharging into or on the navigable 

waters, adjoining shorelines, or 

exclusive economic zone. 

C. What is the Agency’s authority for 

taking this action? 

This proposal is authorized by section 

311(j)(5) and 501(a) of the CWA, (33 

U.S.C. 1321(j)(5), 1361(a)). 

D. What are the costs and benefits of 

this action? 

EPA estimated the total costs of the 

proposed action by combining the perfacility estimates of compliance costs 

with the estimate of the affected facility 

universe. EPA estimated the annualized 

cost of the proposed rule over a 20-year 

analysis period, using three percent and 

seven percent discount rates, as 

presented in Table 2. 

TABLE 2—TOTAL COMPLIANCE COST OF THE PROPOSED ACTION, 20-YEAR PRESENT VALUE AND ANNUALIZED ($2020) 

Present value, 

7% 

Annualized cost, 

7% 

Present value, 

3% 

Annualized cost, 

3% 

Cost .......................................................................................... $300,375,193 $28,353,293 $410,322,776 $27,580,136 

EPA also estimated the annualized 

cost of the proposed action to EPA to 

develop and implement the proposed 

requirements, which can be found in the 

Regulatory Impact Analysis (RIA) titled, 

‘‘Regulatory Impact Analysis: Clean 

Water Act Hazardous Substance Worst 

Case Discharge Planning Regulations,’’ 

available in the docket for this action. 

The proposed action is expected to have 

a mitigating effect on CWA hazardous 

substance worst case discharges because 

the proposed rule provisions address 

the kind of damages and adverse 

impacts expected from this type of 

discharge. The planning activities 

associated with developing CWA 

hazardous substance FRPs are likely to 

mitigate several damage categories 

through pre-discharge planning and 

identification of potential receptors and 

applicable endpoints; the emergency 

response information provisions; 

descriptions of discharge detection 

systems, hazard evaluation, and training 

programs; and drills and exercises. 

Information on previous worst case 

discharges of a similar nature suggests 

that the benefits of mitigating these 


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17892 Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 

1Navigable waters are defined in 40 CFR 120.2 as 

waters of the United States, including the territorial 

seas. This document will refer to ‘‘navigable water’’ 

to include ‘‘adjoining shorelines and the exclusive 

economic zone.’’ 

discharges could be large relative to the 

proposed rule’s estimated cost. 

Sections 6 and 7 of the RIA developed 

for this proposed action provide 

additional details on costs and benefits, 

respectively, and EPA solicits comment 

on the contents therein and associated 

data sources. 

E. List of Abbreviations and Acronyms 

ACP Area Contingency Plan 

AEGLs Acute Exposure Guideline Levels 

for Airborne Chemicals 

ANPRM Advanced Notice of Proposed 

Rulemaking 

APA Administrative Procedures Act 

AWIA America’s Water Infrastructure Act 

BHP Biodegradation, Hydrolysis, and 

Photolysis 

CAA Clean Air Act 

CASRN Chemical Abstract Service Registry 

Numbers 

CBI Confidential Business Information 

CCC Criterion Continuous Concentration 

CDC Centers for Disease Control and 

Prevention 

CFR Code of Federal Regulations 

CMC Criterion Maximum Concentration 

CERCLA Comprehensive Environmental 

Response, Compensation, and Liability Act 

of 1980 

CFATS Chemical Facility Anti-Terrorism 

Standards 

CTAC Chemical Transportation Advisory 

Committee 

CWA Clean Water Act 

DHS United States Department of 

Homeland Security 

DOI United States Department of the 

Interior 

DOT United States Department of 

Transportation 

EJSCREEN Environmental Justice Screening 

and Mapping Tool 

E.O. Executive Order 

EPA United States Environmental 

Protection Agency 

EPCRA Emergency Planning and 

Community Right-to-Know Act 

ERAP Emergency Response Action Plan 

ERPGs Emergency Response Planning 

Guidelines 

FR Federal Register 

FRP Facility Response Plan 

FWSE Fish, Wildlife, and Sensitive 

Environments 

HAZWOPER Hazardous Waste Operations 

and Emergency Response 

ICR Information Collection Request 

ICS Incident Command System 

IDLH Immediately Dangerous to Life or 

Health 

IRIS Integrated Risk Information System 

LC50 Lethal Concentration 50% 

LD50 Lethal Dose 50% 

LEPC Local Emergency Planning Committee 

MCL Maximum Contaminant Level 

MOU Memorandum of Understanding 

MRLs Minimum Risk Levels 

MSHA Mine Safety and Health 

Administration 

MTR Marine Transportation Related 

NAICS North American Industry 

Classification System 

NCP National Contingency Plan 

NIIMS National Interagency Incident 

Management System 

NIOSH National Institute for Occupational 

Safety and Health 

NOAA National Oceanic and Atmospheric 

Administration 

NPDES National Pollutant Discharge 

Elimination System 

NPRM Notice of Proposed Rulemaking 

NRC National Response Center 

NTSIP National Toxic Substance Incidents 

Program 

NTTAA National Technology Transfer and 

Advancement Act 

OMB Office of Management and Budget 

OPA 90 Oil Pollution Act of 1990 

OSC On-Scene Coordinator 

OSHA Occupational Safety and Health 

Administration 

OSRO Oil Spill Removal Organization 

PALs Provisional Advisory Levels for 

Hazardous Agents 

PCBs Polychlorinated Biphenyls 

PHMSA Pipeline and Hazardous Materials 

Safety Administration 

PRA Paperwork Reduction Act 

PREP Preparedness for Response Exercise 

Program 

QI Qualified Individual 

RA Regional Administrator 

RCP Regional Contingency Plan 

RCRA Resource Conservation and Recovery 

Act 

RFA Regulatory Flexibility Act 

RIA Regulatory Impact Analysis 

RMP Risk Management Plan 

RQ Reportable Quantity 

SBA Small Business Administration 

SDWA Safe Drinking Water Act 

SERC State Emergency Response 

Commission 

SMCRA Surface Mining Control and 

Reclamation Act 

SPCC Spill Prevention Control, and 

Countermeasure 

SRO Spill Response Organization 

SWPA Source Water Protection Area 

TBD Technical Background Document 

TEPC Tribal Emergency Planning 

Committee 

TERC Tribal Emergency Response 

Commission 

TRI Toxics Release Inventory 

TSCA Toxic Substances Control Act of 1976 

as amended by the Lautenberg Act 

TSDF Treatment, Storage, and Disposal 

Facility 

UMRA Unfunded Mandates Reform Act 

USCG United States Coast Guard 

UST Underground Storage Tank 

III. Background 

A. Statutory Authority and Delegation of 

Authority 

1. Statutory Requirements 

The CWA as amended by the Oil 

Pollution Act of 1990 (33 U.S.C. 2701 et 

seq; hereafter, ‘‘OPA 90’’), states, ‘‘The 

President shall issue regulations which 

require an owner or operator of a tank 

vessel or facility . . . to prepare and 

submit to the President a plan for 

responding, to the maximum extent 

practicable, to a worst case discharge, 

and to a substantial threat of such a 

discharge, of oil or a hazardous 

substance’’ (33 U.S.C. 1321(j)(5)(A)(i)). 

For this action, a facility is determined 

to be ‘‘. . . [an] onshore facility that, 

because of its location, could reasonably 

be expected to cause substantial harm to 

the environment by discharging into or 

on the navigable waters,1 adjoining 

shorelines, or the exclusive economic 

zone’’ (33 U.S.C. 1321(j)(5)(C)(iv)). As 

described below, the Administrator has 

been delegated this authority under E.O. 

12777 (56 FR 54757, October 18, 1991). 

The Administrator also has authority 

under CWA section 501 to prescribe 

such regulations as are necessary to 

carry out provisions of the Act. In 33 

U.S.C. 1321(j)(5)(D), the CWA states that 

these response plans must: 

(1) Be consistent with the National 

Contingency Plan (NCP) and Area 

Contingency Plans (ACP); 

(2) Identify the qualified individual 

(QI) having full authority to implement 

removal actions, and require immediate 

communications between that 

individual and the appropriate Federal 

official and the persons providing 

personnel and equipment; 

(3) Identify, and ensure by contract or 

other means approved by the President 

the availability of private personnel and 

equipment necessary to remove to the 

maximum extent practicable a worst 

case discharge (including a discharge 

resulting from fire or explosion), and to 

mitigate or prevent a substantial threat 

of such a discharge; 

(4) Describe the training, equipment 

testing, periodic unannounced drills, 

and response actions of persons on the 

vessel or at the facility, to be carried out 

under the plan to ensure the safety of 

the vessel or facility and to mitigate or 

prevent the discharge, or the substantial 

threat of a discharge; 

(5) Be updated periodically; and 

(6) Be resubmitted for approval of 

each significant change. 

EPA’s responsibilities in the CWA (33 

U.S.C. 1321(j)(5)(E)) for this action for 

onshore facilities that could reasonably 

be expected to cause significant and 

substantial harm to the environment by 

discharging into or on the navigable 

waters are to: 

(1) Promptly review plans; 

(2) Require amendments when plans 

do not meet the statutory requirements; 

(3) Approve plans; and 

(4) Review each plan periodically. 

Additionally, EPA may require 

inspection of containment booms, 


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Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 17893 

2E.O. 12777 Implementation of Section 311 Of 

The Federal Water Pollution Control Act of October 

18, 1972, as Amended, and the Oil Pollution Act 

of 1990. See https://www.archives.gov/federalregister/executive-orders/1991.html#12777. 

3Protocol of 1978 relating to the International 

Convention for the prevention of pollution from 

ships, 1973 (with annexes, final act and 

International Convention of 1973). Concluded at 

London on 17 February 1978; registered by the 

International Maritime Organization on 26 

November 1983. https://treaties.un.org/doc/ 

Publication/UNTS/Volume%201340/volume-1340- 

A-22484-English.pdf. 

4 43 FR 10474, March 13, 1978. 

5 44 FR 50766, August 29, 1979. 

6 43 FR 10496, March 13, 1978. 7See 40 CFR part 112 Appendix C. 

skimmers, vessels, and other major 

equipment used to remove discharges 

(33 U.S.C. 1321(j)(6)(A)). EPA also has 

the authority to conduct unannounced 

drills of removal capability in areas for 

which Area Contingency Plans (ACPs) 

are required and under relevant FRPs 

(33 U.S.C. 1321(j)(7)). 

2. Delegation of Authority 

Under E.O. 12777 (56 FR 54757, 

October 18, 1991), EPA was delegated 

the authority to regulate nontransportation-related onshore facilities 

and non-transportation-related offshore 

facilities landward of the coastline.2

DOT was the delegated authority for 

transportation-related facilities and the 

U.S. Coast Guard (USCG) was delegated 

the authority for tank vessels and 

marine transportation-related (MTR) 

facilities. Section 2(i) of E.O. 12777 

allows for further delegation between 

the agencies as later occurred in a 

February 3, 1994 MOU between EPA, 

the U.S. Department of the Interior 

(DOI), and DOT (59 FR 9494, February 

28, 1994). DOI redelegated 33 U.S.C. 

1321(j)(5) authority to regulate nontransportation-related offshore facilities 

landward of the coastline to EPA. This 

MOU applies to both oil and CWA 

hazardous substance facilities. 

EPA has delegated authority over 

offshore facilities landward of the 

coastline as per 40 CFR part 112 

Appendix B. However, this action is 

limited to non-transportation-related 

onshore facilities as defined in the 

consent decree described in Section 

III.D of this document. EPA solicits data, 

information, and comment on CWA 

hazardous substance facilities located 

offshore landward of the coastline and 

their regulation under this action. 

B. CWA Hazardous Substance 

Designation and Reportable Quantities 

The term ‘‘hazardous substance’’ is 

defined in the CWA as those substances 

designated pursuant to 33 U.S.C 

1321(b)(2), wherein EPA is authorized 

to list hazardous substances which, 

when discharged in any quantity into 

jurisdictional waters, present an 

imminent and substantial danger to 

public health or welfare, including, but 

not limited to, fish, shellfish, wildlife, 

shorelines, and beaches (33 U.S.C. 

1321(a)(14)). 

Once a chemical (i.e., ‘‘element and 

compound’’) is designated as a CWA 

hazardous substance, the reportable 

quantity is established by regulation 

under 33 U.S.C. 1321(b)(4). Section 311 

of the CWA prohibits discharges of 

CWA hazardous substances in 

quantities that may be harmful into 

navigable waters and waters of the 

contiguous zone, except where 

permitted under the Protocol of 1978 

relating to the International Convention 

for the Prevention of Pollution from 

Ships, 1973,3 and where permitted in 

quantities and at times and locations or 

under such circumstances or conditions 

as the President may, by regulation, 

determine not to be harmful (33 U.S.C 

1321(b)(3)). 

C. Regulatory Background 

1. EPA CWA Hazardous Substance 

Actions 

EPA designated a list of CWA 

hazardous substances in 40 CFR part 

116 4 and subsequently established 

reportable quantities (RQs) for those 

substances in 40 CFR part 117, the 

discharge of which at or above the RQ 

is a violation of CWA section 311(b)(3) 

and requires notice, including notice as 

set forth in 40 CFR 117.21 and the 

National Contingency Plan in 40 CFR 

300.125(a).5 The RQs constitute the 

quantities EPA deemed may be harmful 

and were initially based on a five-level 

rating system derived from acute aquatic 

toxicity and set in 40 CFR 117.3. The 

most acutely toxic CWA hazardous 

substances were classified as Category X 

and assigned a one-pound RQ, which 

was determined based on the smallest 

container commonly used in 

commerce.6 Under EPA’s scaled system, 

EPA assigned the other categories on a 

proportional basis. If the upper aquatic 

toxicity limit of a category is 10 times 

the upper limit of the preceding, more 

toxic category, then the harmful 

quantity was set as 10 times larger, 

excepting category D, at five times 

larger, and so forth. CWA RQs (in lbs.) 

for the five categories are X: 1, A: 10, B: 

100, C: 1,000, and D: 5,000. 

2. EPA Oil Pollution Prevention 

Regulation 

Promulgated under the authority of 

CWA section 311, the Oil Pollution 

Prevention regulation sets forth 

requirements for the prevention of, 

preparedness for, and response to oil 

discharges at specific nontransportation-related facilities (see 40 

CFR part 112). The goal of the regulation 

is to prevent discharges of oil and oil 

mixed with hazardous substances from 

onshore facilities and to contain such 

discharges. The regulation requires 

facilities to develop and implement 

Spill Prevention, Control, and 

Countermeasure (SPCC) Plans and 

establishes procedures, methods, and 

equipment requirements to prevent oil 

discharges to navigable waters or 

adjoining shorelines. 

Additionally, subpart D of the Oil 

Pollution Prevention regulation requires 

certain facility owners or operators to 

prepare and submit a facility response 

plan (FRP) for responding to a worst 

case discharge of oil. The Oil Pollution 

Prevention FRP requirements apply to a 

subset of SPCC-regulated facilities from 

which a discharge, or substantial threat 

of discharge, may cause substantial 

harm to the environment.7

3. USCG CWA Hazardous Substance 

Worst Case Discharge Actions 

In response to OPA 90, the USCG 

published rulemaking actions regarding 

response plans for CWA hazardous 

substances. On May 3, 1996, the USCG 

published an Advance Notice of 

Proposed Rulemaking (ANPRM) 

addressing vessel and facility response 

plans (61 FR 20084, May 3, 1996). USCG 

held two public meetings in 1996 and 

then developed proposed regulations 

and published two separate NPRMs for 

tank vessels and MTR facilities in 1999 

(64 FR 13734, March 22, 1999) and 2000 

(65 FR 17416, March 31, 2000), 

respectively. On February 17, 2011, 

USCG reopened the comment period. In 

2019, USCG withdrew their proposed 

rulemakings (84 FR 2799 and 84 FR 

2800, February 8, 2019) based on 

findings of the Chemical Transportation 

Advisory Committee (CTAC) that the 

proposed rules are no longer applicable 

to the current state of chemical industry 

spill response. Specifically for MTR 

facilities, ‘‘[d]ue to the services and 

requirements industry frequently 

engages in to satisfy insurance 

requirements and company 

sustainability polices, together with the 

existence of new terminal inspection 

protocols like that developed by the 

Chemical Distribution Institute, CTAC 

was unable to identify any significant 

gaps in hazardous substance spill 

response planning at marine 

transportation-related facilities that 

would be reduced by the 2000 proposed 

rulemaking’’ (84 FR 2799–2800). 


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17894 Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 

8Complaint for Declaratory and Injunctive Relief, 

Environmental Justice Health Alliance for Chemical 

Policy Reform v. EPA, No. 1–19–cv–02516 

(S.D.N.Y., filed March 21, 2019). 

9Envtl. Justice Health All. for Chem. Reform v. 

EPA, No. 1:19–cv–02516–VM, Document 32 

(S.D.N.Y., filed March 12, 2020). 

10The NRC database does not identify how many 

of the 2,489 discharges involving a CWA hazardous 

substance reached or may have reached navigable 

waters. For this analysis, EPA took a conservative 

approach and assumed that all discharges impacted 

navigable water. 

Additionally, for vessels, ‘‘CTAC also 

identified many areas in which the 

NPRM may overlap with existing local, 

state, and international regulatory 

schemes as well as current industry 

practice’’ (84 FR 2799). To date, a USCG 

regulation has not been finalized. 

D. Litigation 

On March 21, 2019, the Natural 

Resources Defense Council, on behalf of 

Clean Water Action and the 

Environmental Justice Health Alliance 

for Chemical Policy Reform filed suit in 

the United States District Court for the 

Southern District of New York alleging 

violations of CWA 311(j)(5)(A)(i) and 

the Administrative Procedures Act 

(APA).8 The first claim alleged that 

EPA’s failure to issue ‘‘regulations 

mandated by the [CWA] requiring nontransportation-related substantial-harm 

facilities to plan, prevent, mitigate and 

respond to worst case spills of 

hazardous substances . . . constitutes a 

failure to perform a non-discretionary 

duty or act in violation of the [CWA].’’ 

The second claim alleged that, ‘‘EPA’s 

failure to issue these regulations 

constitute[d] agency action unlawfully 

withheld contrary to and in violation of 

the [APA] and the [CWA].’’ The 

plaintiffs requested an order from the 

Court to compel EPA to promulgate 

CWA Hazardous Substance Worst Case 

Discharge Planning Regulations. 

Following EPA’s Answer, filed on June 

4, 2019, the plaintiffs and EPA entered 

discussions regarding a potential 

resolution of the lawsuit. 

The plaintiffs and EPA entered into a 

consent decree on March 12, 2020 that 

resolved the litigation.9 The consent 

decree requires that within two years 

(24 months) of entry into the consent 

decree, or by March 12, 2022, EPA will 

sign a notice of proposed rulemaking 

pertaining to the issuance of the CWA 

Hazardous Substance Worst Case 

Discharge Planning Regulations for nontransportation-related onshore facilities. 

The consent decree further requires EPA 

to sign a notice taking final action 

within an additional two and a half 

years, or 30 months after publication of 

the proposal. This proposed action 

satisfies EPA’s first obligation under the 

consent decree. 

E. CWA Hazardous Substance Discharge 

History and Impacts Analysis 

To gain a historic perspective of CWA 

hazardous substance discharges to water 

over time, EPA researched and analyzed 

multiple sources of available CWA 

hazardous substance discharge data. 

EPA analyzed National Response Center 

(NRC) data on CWA hazardous 

substances discharges to water. 40 CFR 

117.21 requires immediate notification 

to the NRC once the person in charge of 

a vessel or an offshore or onshore 

facility has knowledge of a discharge of 

a CWA hazardous substance from the 

facility in quantities equal to or 

exceeding its assigned RQ in any 24- 

hour period. Reporters may not always 

be familiar with RQ levels for CWA 

hazardous substances and reported 

quantities released are usually 

inaccurate or unknown, the NRC will 

field and process all reported CWA 

hazardous substance incidents and 

forward the initial information to the 

Federal On-Scene Coordinator (OSC) for 

further investigation. Reports are also 

made under the NCP reporting 

requirement in 40 CFR 300.125. NRC 

data are generated by notifications 

received immediately following a 

discharge and often lack complete 

information on chemicals and quantities 

discharged, incident and response 

details, impacts, and locations. 

Although the data have limitations of 

accuracy, completeness, and over- and 

under-reporting of incidents, the NRC 

database is the most comprehensive 

database for CWA hazardous substance 

discharges. It is important to recognize 

that these data reflect the impacts 

reported upon discovery of an incident 

(e.g., evacuations, injuries, 

hospitalizations, fatalities, waterway 

closures, and water supply 

contamination), which often result 

directly from the event that caused the 

discharge, rather than the totality of 

impacts that could be attributed to the 

discharge itself. In many cases, it can 

take days, weeks, and even months to 

fully characterize the harm caused by a 

discharge. NRC data are not updated to 

reflect that harm. This analysis is also 

hindered by the lack of a robust national 

database of the types of CWA hazardous 

substance discharges that EPA is 

proposing to regulate in this action. 

1. Discharge History and Reported 

Impacts 

While there are notable instances of 

high-volume discharges of non-CWA 

hazardous substances to water, EPA 

found limited data on historical worst 

cases discharges to water of CWAregulated hazardous substances and the 

NRC has no information related to the 

origination of the data cited in this 

section and Table 3. Between 2010 and 

2019, 252,238 total discharges were 

reported to the NRC. Of those, 98,306 

were non-transportation-related, of 

which CWA hazardous substance 

discharges comprised 19,657. EPA then 

identified 2,489 non-transportationrelated CWA hazardous substance 

discharges which either reached water 

(1,311) or it is unknown whether they 

reached water (1,178). Of the 2,489 

discharges in those categories, 131 had 

reported impacts. Finally, of those 131, 

EPA identified 52 discharges of CWAregulated hazardous substances that 

could be linked to non-transportationrelated facilities (i.e., within EPA’s 

regulatory jurisdiction). Given the 

generally cursory nature of data 

provided to the NRC as part of an 

emergency notification, the Agency was 

unable to determine whether any of the 

52 discharges could have been 

considered worst case discharges (i.e., 

the largest foreseeable discharge in 

adverse weather conditions, including a 

discharge resulting from fire or 

explosion; see Section IV.A.3.b of this 

preamble) of CWA hazardous 

substances based on volume and 

impacts.10

Over the 10-year period of 2010 to 

2019, the average number of CWA 

hazardous substance discharges 

declined from 289 to 219 discharges (a 

decrease of 24 percent). EPA has no 

information as to the cause of this 

decline. 

2. Most Frequently Discharged CWA 

Hazardous Substances 

A chart of the distribution by CWA 

hazardous substance of the 2,489 CWA 

hazardous substance discharges that 

may have reached water is shown in 

Table 3. 

TABLE 3—DISTRIBUTION OF DISCHARGES BY CWA HAZARDOUS

SUBSTANCE 2010 TO 2019. 

CWA Hazardous substance Discharged 

(percent) 

PCBs ..................................... 55 

Sulfuric acid .......................... 8 

Sodium hydroxide ................. 6 

Ammonia ............................... 5 

Benzene ................................ 4 

Hydrochloric acid .................. 4 

Chlorine ................................ 4 

Sodium hypochlorite ............. 3 


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11 Indicator in NRC database for water 

contamination provides options of yes, no, and 

unknown to have reached water. Forty-four of these 

incidents reported ‘unknown’ if reached water. The 

data are unclear as to whether any of these 

incidents reached water and/or whether they 

contaminated the water. 

12No fatalities resulted from a CWA hazardous 

substance discharge. The only fatality identified 

was due to a tractor trailer collision on a bridge 

where the driver perished, and the vehicle landed 

on the toe of a temporary cap on an EPA Superfund 

site. 

13Chemical Accident Prevention Provisions, RMP 

(40 CFR part 68). 

TABLE 3—DISTRIBUTION OF DISCHARGES BY CWA HAZARDOUS

SUBSTANCE 2010 TO 2019.—Continued 

CWA Hazardous substance Discharged 

(percent) 

Other ..................................... 12 

Source: NRC. 

The majority of discharges (55 

percent, or 1,358) comprised 

polychlorinated biphenyls (PCBs), 

typically PCB-containing transformer 

leaks or discharges, most often due to 

vehicles colliding with transformers 

(most likely on telephone poles). Fifteen 

chemicals accounted for 90 percent of 

CWA hazardous substance discharge 

incidents (by frequency, not by volume), 

263 of 362 CWA hazardous substances 

(includes alternate names) had no 

reported discharges, and 80 CWA 

hazardous substances had fewer than 10 

discharges. 

EPA banned PCBs in 1979 and while 

they are no longer commercially 

produced, they are still present in 

materials and products produced before 

the ban. EPA regulates PCBs through the 

Toxic Substances Control Act of 1976 

(TSCA). Implementation of TSCA 

includes a PCB cleanup policy which 

addresses mitigating the impacts of PCB 

discharges. Additionally, most PCBs 

discharges or threats of discharges are 

comingled with oil. Oil of any kind and 

in any form, including oil mixtures, are 

subject to regulation under EPA’s Oil 

Pollution Prevention regulation. Please 

see the Technical Background 

Document (TBD) for additional 

information. 

3. Impacts to Waterways and Sensitive 

Environments 

In reviewing the identified 131 nontransportation-related CWA hazardous 

substance discharges that may have 

reached water with reported impacts, 

EPA determined that 46 involved 

residences, dumping, third-party 

damage to transformers (typically 

vehicle crashes), swimming pools, drills 

or exercises (not actual discharges), 

vehicles, incidents that occurred outside 

of the time period (pre-2010) but were 

reported later, duplicates, incidents 

outside of the United States, or 

miscellaneous hydraulic fracturing 

reports (e.g., odor coming from tap due 

to drilling occurring nearby). 

Of the remaining 86 discharges, 52 

could be linked to non-transportationrelated facilities that are within EPA’s 

regulatory jurisdiction. Of note: 

—Water supply contamination: 50 

incidents (six discharges reached 

water, 44 discharges where it is 

unknown if discharges reached 

water 11) 

—Waterway traffic corridor closed: Two 

incidents (one discharge reached 

water, one discharge where it is 

unknown if the discharge reached 

water) 

Other impacts,12 to the extent to 

which known, are described in Table 4. 

Since the NRC fields and processes 

initial incident information, impact 

information cited in Table 4 is most 

often unknown. 

TABLE 4—OTHER REPORTED IMPACTS OF CWA HAZARDOUS SUBSTANCE DISCHARGES FROM NON-TRANSPORTATIONRELATED FACILITIES THAT MAY HAVE REACHED WATER 2010 TO 2019 

Other reported impacts Number of incidents Number of individuals Notes 

Evacuations ............................................. 35 1,115 ........................................................ Typically impacts facility workers. 

Shelter-in-place ........................................ 1 No data available .................................... Barge offloading toluene discharged 50 

gallons into the Mississippi River. 

Injuries (without hospitalizations) ............ 2 4 ............................................................... All reported injuries appear to be workers onsite, but NRC data are not explicit. 

Hospitalizations ........................................ 11 18 ............................................................. All reported hospitalizations appear to be 

workers onsite, but NRC data are not 

explicit. 

4. NRC Data Limitations 

The NRC data on which EPA relied 

for this analysis have numerous 

limitations. As described in the 

subsequent section, EPA has not been 

able to identify another dataset which is 

more complete and/or includes the 

types of discharges that would be 

regulated by this proposed rule, so 

despite their limitations, EPA is using 

the NRC data for this analysis. There 

may be impacts (i.e., additional or other 

than evacuations, injuries, 

hospitalizations, fatalities, waterway 

closures, and water supply 

contamination) from the universe of 

CWA hazardous substance discharges to 

jurisdictional water from nontransportation-related facilities which 

were not 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 because 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 data sources to quantify these 

impacts, other than the cited data from 

the NRC. The NRC data are discussed 

and analyzed further in the RIA. 

5. Data Sources Examined 

Since the mission of the NRC is to be 

the initial point of contact for all oil and 

hazardous substances releases and 

forward that information to the Federal 

OSC for response, the initial data 

collected does, in most cases, have 

limitations. Due to this lack of 

information on discharges with impacts 

in the NRC database, EPA examined 

additional data sources including: 

—National Oceanic and Atmospheric 

Administration (NOAA) Incident 

News 

—Risk Management Plan (RMP) 13 rule 

five-year accident history data 

—Toxics Release Inventory (TRI) 

discharge to water data 


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14EPA sent a voluntary survey to states, tribes 

and U.S. territories in June 2018 as part of the final 

Clean Water Act Hazardous Substances Spill 

Prevention rulemaking (84 FR 46100; September 3, 

2019) requesting information on the number and 

type of EPCRA Tier II facilities reporting CWA 

hazardous substances onsite, as well as information 

about historical discharges of CWA hazardous 

substances, ecological and human health impacts of 

those discharges, and existing state and tribal 

regulatory programs that serve to prevent discharges 

of hazardous substances (Docket EPA–HQ–OLEM– 

2017–0444). 

—Survey data from previous CWA 

Hazardous Substance Spill Prevention 

rulemaking effort 14

—National Toxic Substance Incidents 

Program (NTSIP) 

—Chemical Safety and Hazard 

Investigation Board Reports 

—State discharge reports 

EPA did not identify any instances of 

worst case discharges of CWA 

hazardous substances (i.e., the largest 

foreseeable discharge in adverse 

weather conditions, including a 

discharge resulting from fire or 

explosion, see Section IV.A.3.b of this 

preamble) previously unknown to the 

Agency from the above list of data 

sources. The RIA contains additional 

information on these data sources and 

EPA’s research to identify discharge 

information sources. EPA requests data 

on occurrences of CWA hazardous 

substance discharges into navigable 

waters along with documented impacts. 

F. Analysis of Existing Regulatory 

Programs 

To understand the degree to which 

CWA hazardous substances worst case 

discharge planning requirements are 

regulated under existing regulations, the 

Agency reviewed and analyzed the 

current Federal and state regulatory 

framework as well as industry standards 

for overlap with and coverage of CWA 

hazardous substance worst case 

discharge FRP provisions required by 

CWA section 311(j)(5) as detailed in 

Section III of this preamble. 

EPA’s analysis did not find any 

combination of Federal programs that 

comprehensively cover all the CWA 

section 311(j)(5)(D) requirements for all 

CWA hazardous substances. CWA 

hazardous substance facilities subject to 

the Oil Pollution Prevention Program 

requirements or RMP rule will have 

some overlap for the required program 

elements. RCRA hazardous waste 

regulations are comprehensive for CWA 

hazardous substances present as waste. 

State programs do not provide uniform 

coverage and are a patchwork, while 

industry standards are voluntary. 

The TBD compares the programs 

analyzed to the CWA hazardous 

substance FRP required program 

elements and provides a matrix of each 

program examined and elements of 

those programs that have requirements 

comparable to those in CWA section 

311(j)(5). 

EPA analyzed the following EPA 

requirements: 

—America’s Water Infrastructure Act of 

2018 Amendments to section 1433 of 

the Safe Drinking Water Act (42 

U.S.C. 300i–2) 

—Chemical Accident Prevention 

Provisions, RMP (40 CFR part 68) 

—Emergency Planning and Community 

Right-to-Know Act: 

—Emergency Planning Notification 

and Emergency Release Notification 

(40 CFR part 355) 

—Hazardous Chemical Reporting: 

Community Right-to-Know (40 CFR 

part 370) 

—Toxic Chemical Release Reporting: 

Community Right-to-Know (40 CFR 

part 372) 

—National Pollutant Discharge 

Elimination System (NPDES) 

Regulations 

—NPDES (40 CFR part 122) 

—General Pretreatment Regulations 

for Existing and New Sources of 

Pollution (40—CFR part 403) 

—Oil Pollution Prevention Regulations 

—Subpart A, Applicability, 

Definitions, and General 

Requirements for All Facilities and 

All Types of Oils, SPCC (40 CFR 

part 112) 

—Subpart D, Response Requirements, 

FRP (40 CFR 112.20 and 112.21) 

—Pesticide Regulations 

—Pesticide Management and Disposal 

(40 CFR part 165) 

—Pesticide Agricultural Worker 

Protection Standard (40 CFR part 

170) 

—Resource Conservation and Recovery 

Act (RCRA) Regulations 

—Criteria for Classification of Solid 

Waste Disposal Facilities and 

Practices Subpart D, Standards for 

the Disposal of Coal Combustion 

Residuals in Landfills and Surface 

Impoundments (40 CFR part 257) 

—Standards Applicable to Generators 

of Hazardous Wastes (40 CFR part 

262) 

—Standards for Owners and 

Operators of Hazardous Waste 

Treatment, Storage, and Disposal 

Facilities (TSDF) (40 CFR parts 264 

& 265) 

—Technical Standards and Corrective 

Action Requirements for Owners 

and Operators of Underground 

Storage Tanks (UST) (40 CFR part 

280) 

—TSCA: PCBs Manufacturing, 

Processing, Distribution in Commerce, 

and Use Prohibitions (40 CFR part 

761) 

EPA also analyzed the following nonEPA Federal requirements: 

—Mine Safety and Health 

Administration (MSHA) Subchapter 

H—Education and Training, 

Subchapter I—Accidents, Injuries, 

Illnesses, Employment, and 

Production in Mines (30 CFR parts 

46–50) 

—Occupational Safety and Health 

Administration Regulations: 

—Hazard Communication Standard 

(HazCom) (29 CFR 1910.1200) 

—Hazardous Waste Operations and 

Emergency Response (HAZWOPER) 

(29 CFR 1910.120) 

—Process Safety Management of 

Highly Hazardous Chemicals (29 

CFR 1910.119) 

—Emergency Action Plan (29 CFR 

1910.38) 

—Pipeline and Hazardous Materials 

Safety Administration (PHMSA) 

Hazardous Materials Regulations (49 

CFR parts 171–179) 

—Surface Mining Control and 

Reclamation Act (SMCRA) Mineral 

Resources, Office of Surface Mining 

Reclamation and Enforcement, 

Department of the Interior (30 CFR 

parts 700–999) 

—United States Department of 

Homeland Security (DHS) Chemical 

Facility Anti-Terrorism Standards 

(CFATS) (6 CFR part 27) 

EPA also analyzed the existing state 

regulatory framework for CWA 

hazardous substance FRPs for all 50 

states and found 27 programs with 

elements potentially comparable to 

those required by CWA section 311(j)(5), 

available in the TBD. EPA found state 

coverage is an inconsistent patchwork 

and cannot be relied upon for uniform, 

nationwide CWA hazardous substance 

FRP requirements. 

Additionally, EPA analyzed existing 

industry standards related to CWA 

hazardous substance FRPs for four 

standards with elements potentially 

comparable to those required by CWA 

section 311(j)(5). However, these 

standards are voluntary and do not 

provide comprehensive coverage of 

proposed CWA hazardous substance 

FRP program elements. 

Again, the TBD contains a more 

detailed discussion of each proposed 

program element and regulation, 

program, or standard. EPA solicits 

comment on this analysis as well as on 

other programs or standards EPA should 

examine. 

IV. Proposed Action 

EPA is proposing a regulatory 

program whereby those facilities that 


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could reasonably be expected to cause 

substantial harm to the environment, 

based on their location, are required to 

prepare and submit CWA hazardous 

substance FRPs for worst case 

discharges to the EPA. EPA will approve 

only those CWA hazardous substance 

FRPs submitted for facilities that could 

cause significant and substantial harm 

to the environment. EPA proposes that 

FRPs must be consistent with the NCP 

and ACPs; identify the qualified 

individual having full authority to 

implement response actions and require 

immediate communications between 

that individual and the appropriate 

Federal official and the persons 

providing personnel and equipment, 

with a description of duties; identify, 

and ensure by contract or other 

approved means, the availability of 

private personnel and equipment 

necessary to respond to the maximum 

extent practicable to a worst case 

discharge of CWA hazardous substances 

(including a discharge resulting from 

fire or explosion), and to mitigate or 

prevent a substantial threat of such a 

discharge; describe the training, 

equipment testing, periodic 

unannounced drills, and response 

actions of persons at the facility; and 

review and update facility response 

plan periodically and resubmit to the 

RA for approval of each significant 

change. Specific CWA hazardous 

substance FRP components will 

include: facility information, owner or 

operator information, hazard evaluation, 

reportable discharge history, response 

personnel and equipment, evidence of 

contracts or other approved means to 

ensure the availability of personnel and 

equipment, notification lists, discharge 

information, personnel roles and 

responsibilities, response equipment 

information, evacuation plans, 

discharge detection systems, response 

actions, disposal plans, containment 

measures, training and exercise 

procedures, self-inspection, a 

coordination activities. Please see 

section IV.B of this preamble for specific 

discussion of each of these components. 

To identify potential elements to 

include in this proposal, EPA reviewed 

existing regulations that include 

emergency response planning 

provisions as well as the USCG 

regulatory proposals to establish 

requirements for CWA hazardous 

substance worst case discharges. 

Specifically, EPA considered existing 

requirements for Oil Pollution 

Prevention FRPs under 40 CFR part 112 

(or oil FRPs) given that these 

requirements have been in place since 

1994 and were promulgated under the 

same statutory authority as this 

proposal. Of note, CWA hazardous 

substances vary widely in physical and 

chemical properties when compared to 

oils; EPA has closely considered these 

variations in this proposal. 

Additionally, EPA examined 

requirements under the RMP rule under 

40 CFR part 68, which implements 

section 112(r)(7) of the Clean Air Act 

and requires facilities that use regulated 

substances to develop an RMP. 

A. Applicability Criteria 

The statute governing CWA hazardous 

substances worst case discharges 

specifies that those facilities that could 

reasonably be expected to cause 

substantial harm to the environment, 

based on their location, are required to 

prepare and submit CWA hazardous 

substance FRPs for worst case 

discharges to the EPA. EPA will approve 

or disapprove only those CWA 

hazardous substance FRPs submitted for 

‘‘significant and substantial harm 

facilities.’’ 

EPA is proposing in § 118.3 two 

initial screening criteria to determine 

whether a facility, because of its 

location, could cause substantial harm 

to the environment from a worst case 

discharge into or onto navigable water. 

The first step in assessing applicability 

is to determine whether a facility has 

the container capacity for a CWA 

hazardous substance onsite at or above 

a threshold quantity. If so, the facility 

owner or operator then determines 

whether the facility is within one-half 

mile to navigable water or a conveyance 

to navigable water. EPA solicits 

comment on alternative or additional 

screening criteria with supporting 

rationale and data. If those two 

conditions are satisfied, the owner or 

operator determines whether the facility 

meets any of the four substantial harm 

criteria: The ability to adversely impact 

a public water system; the ability to 

cause injury to fish, wildlife, and 

sensitive environments (FWSE); the 

ability to cause injury to public 

receptors; and/or having had a 

reportable discharge of a CWA 

hazardous substance within the last five 

years. If any of those substantial harm 

criteria are met, then the owner or 

operator must submit a CWA hazardous 

substance FRP to EPA. Additionally, 

EPA is proposing in § 118.5(a) that an 

EPA Regional Administrator has the 

authority to require CWA hazardous 

substance FRPs, after consideration of 

site-specific factors for a facility, 

regardless of whether a facility meets 

the criteria in proposed § 118.3. To 

determine whether a facility could 

reasonably be expected to cause 

substantial harm following a CWA 

hazardous substance worst case 

discharge, EPA is proposing factors for 

the RA to evaluate in § 118.5(b). Please 

see further discussion of Regional 

Administrator authorities to require 

CWA hazardous substance FRPs and 

determination of significant and 

significant and substantial harm in A.2.f 

of this section. 

Proposed applicability criteria 

include: 

Threshold Quantity: To account for 

the 296 different CWA hazardous 

substances with various properties, EPA 

is proposing to apply a maximum 

capacity onsite criterion threshold 

quantity for each CWA hazardous 

substance by using a multiplier of the 

CWA RQ, based on the RQ categories 

specified in 40 CFR part 117. 

Facility location: EPA is proposing to 

use facility location relative to navigable 

waters as an applicability screening 

criterion for CWA hazardous substance 

FRP facilities. Specifically, facilities 

meeting or exceeding the CWA 

hazardous substance maximum capacity 

onsite threshold quantity and located 

within one-half mile of a navigable 

water or a conveyance to a navigable 

water must determine if the facility 

meets at least one substantial harm 

criterion. 

Ability to cause injury to fish, wildlife, 

and sensitive environments (FWSE): 

EPA proposes a substantial harm 

criterion for facilities located at a 

distance such that a CWA hazardous 

substance discharge has the potential to 

cause injury to FWSE. EPA proposes to 

codify parameters and toxic endpoints 

to be used by facility owners when 

determining whether a worst case CWA 

hazardous substance discharge could 

cause injury to FWSE. 

Ability to adversely impact a public 

water system: EPA is proposing to 

require facility owners or operators to 

coordinate with nearby public water 

systems to determine whether a CWA 

hazardous substance worst case 

discharge could adversely impact a 

public water system. 

Ability to cause injury to public 

receptors: EPA is proposing a 

substantial harm criterion for facilities 

located at a distance such that a CWA 

hazardous substance discharge could 

cause injury to public receptors. EPA 

proposes a definition for public 

receptors as those areas where the 

public could be exposed to a CWA 

hazardous substance worst case 

discharge to navigable waters. EPA 

further proposes that the same 

parameter and toxic endpoints used for 

the FWSE substantial harm criterion 


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15See EPA’s ‘‘SPCC Guidance for Regional 

Inspectors’’ https://www.epa.gov/oil-spillsprevention-and-preparedness-regulations/spccguidance-regional-inspectors. 

apply for determining injury to public 

receptors. 

Reportable discharge history: EPA is 

proposing a substantial harm criterion 

that identifies whether the facility has 

had a reportable CWA hazardous 

substance discharge to water within the 

last five years. A reportable discharge is 

defined in 40 CFR 117.21 as any 

discharge in quantities equal to, or 

exceeding, in any 24-hour period, the 

reportable quantity in 40 CFR 117.3, the 

discharge of which violates CWA 

section 311(b)(3). 

EPA is proposing a definition of 

‘‘facility’’ in § 118.2 that is adopted from 

the Oil Pollution Prevention regulation 

at 40 CFR 112.2.15 This definition is 

broad and captures the types of facilities 

intended to be regulated by EPA under 

CWA hazardous substance worst case 

discharge regulations. The Agency 

recognizes that under this definition, 

the owner or operator has the discretion 

to determine what constitutes a facility. 

That is, the proposed rule may become 

applicable to a facility in cases of 

aggregation of buildings, structures, or 

equipment and associated storage or 

type of activity, or the division of the 

facility may end applicability due to 

separation of buildings, structures, or 

equipment and associated CWA 

hazardous substance storage or type of 

activity. However, an owner or operator 

may not make facility determinations 

indiscriminately and in such a manner 

as to simply avoid applicability of the 

proposed rule (for example, the division 

of one facility into separate facilities 

with one CWA hazardous substance 

container located at each facility where 

all containers are located side-by-side or 

in close proximity to each other and are 

used for the same purpose). EPA solicits 

comment on this definition and any 

appropriate adjustments with 

supporting rationale and data. 

1. Screening Criteria 

a. CWA Hazardous Substance Capacity 

Threshold Quantity 

i. 10,000× CWA Hazardous Substance 

RQ Multiplier 

In § 118.3, EPA is proposing that if the 

maximum capacity onsite, as defined in 

§ 118.2 (the total aggregate container 

capacity for each CWA hazardous 

substance present at all locations within 

the entire facility at any one time) at the 

facility of any CWA hazardous 

substance, at any one time, meets or 

exceeds 10,000 times its RQ, the facility 

has met the threshold quantity. If a 

facility’s container capacity meets or 

exceeds the threshold quantity for any 

one CWA hazardous substance and the 

facility is within one-half mile of 

navigable waters, then the facility owner 

or operator must determine if the 

facility meets at least one substantial 

harm criterion proposed in this action. 

If so, the entire facility would be subject 

to the CWA hazardous substance FRP 

requirements proposed in this action for 

all CWA hazardous substances stored or 

used at the facility. 

EPA chose to use a multiplier of the 

CWA hazardous substance RQ as the 

threshold quantity because RQs 

represent a quantity that may be 

harmful when discharged to navigable 

waters. For a facility to cause substantial 

harm to the environment, it would need 

to reasonably be expected to cause a 

discharge in a quantity larger than the 

RQ and would therefore need to have 

the capacity to store significantly larger 

quantities onsite. 

RQs exist for all CWA hazardous 

substances and reflect relative (in 

relation to other CWA hazardous 

substances, due to the five categories 

detailed below, see Table 5) and aquatic 


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16These values were later adopted by 

Comprehensive Environmental Response, 

Compensation, and Liability Act of 1980 (CERCLA). 

17 In 1979, EPA established RQs at 40 CFR 117 

(44 FR 50766, August 29, 1979), which used the 

acute aquatic toxicity of the CWA hazardous 

substances to determine RQs. For a detailed 

discussion of this methodology, see 43 FR 10489– 

92 (March 13, 1978) and 40 FR 59982–89 (December 

30, 1975). In 1985, EPA amended 40 CFR part 117 

to make reportable quantities adjusted under 

CERCLA the applicable reportable quantities for 

hazardous substances pursuant to CWA section 311 

(50 FR 13456, April 4, 1985). In this action, EPA 

established a methodology for adjusting RQs, which 

established ‘‘primary criteria’’ as aquatic toxicity, 

mammalian toxicity (oral, dermal, and inhalation), 

ignitability, reactivity, and chronic toxicity. EPA 

subsequently established a methodology for 

including potential carcinogenicity as a ‘‘primary 

criterion’’ (see, for example, 54 FR 33418, August 

14, 1989 and 54 FR 33426, August 14, 1989). 

toxicity.16 In accordance with 40 CFR 

117.21, CWA hazardous substance 

discharges to navigable waters or 

adjoining shorelines require notification 

to the NRC when the CWA hazardous 

substance discharge is equal to, or 

exceeds, in any 24-hour period, the RQ 

in 40 CFR 117.3. 

The RQs were originally developed in 

1979 and adjusted beginning with an 

evaluation of the intrinsic physical, 

chemical, and toxicological properties 

of each CWA hazardous substance. The 

intrinsic properties examined, also 

called the ‘‘primary criteria,’’ were 

aquatic toxicity, mammalian toxicity 

(oral, dermal, and inhalation), 

ignitability, reactivity, chronic toxicity, 

and potential carcinogenicity.17

Generally, for each intrinsic property, 

EPA ranked CWA hazardous substances 

on a scale, associating a specific range 

of values on each scale with an RQ 

value of 1, 10, 100, 1,000, or 5,000 lbs. 

EPA evaluated the data for each CWA 

hazardous substance using various 

primary criteria; each CWA hazardous 

substance may have received several 

tentative RQ values based on its 

particular intrinsic properties. The 

lowest of the tentative RQs became the 

‘‘primary criteria RQ’’ for that 

substance, which EPA used to assign an 

initial category of X, A, B, C, or D. After 

EPA assigned the primary criteria RQ, 

EPA further evaluated substances for 

their susceptibility to certain 

degradative processes, which were used 

as secondary adjustment criteria. These 

natural degradative processes were 

biodegradation, hydrolysis, and 

photolysis (BHP). If a CWA hazardous 

substance, when discharged into the 

environment, degrades relatively 

rapidly to a less hazardous form by one 

or more of the BHP processes, its RQ (as 

determined by the primary RQ 

adjustment criteria), was generally 

adjusted down one level (e.g., from 

Category A to Category B). Conversely, 

if a CWA hazardous substance degrades 

to a more hazardous product after its 

discharge, the original substance was 

assigned an RQ equal to the RQ for the 

more hazardous substance, which may 

have been one or more levels higher 

than the RQ for the original substance 

(e.g., from Category C to Category A). 

This approach in developing RQs may 

not reflect the ignitability or reactivity 

of single substances or among multiple 

substances that may comingle, or the 

potential for the additive or synergistic 

effects in the toxicity of two or more 

CWA hazardous substances. 

TABLE 5—CWA HAZARDOUS SUBSTANCE CATEGORIES AND REPORTABLE QUANTITIES

Category Reportable quantity 

(lbs) 

X ................................. 1 

A ................................. 10 

B ................................. 100 

C ................................. 1,000 

D ................................. 5,000 

Using the RQ as a basis to characterize 

a facility that has the ability to cause 

substantial harm in the event of a worst 

case discharge has the advantage of 

building a regulatory structure using 

existing quantifiable values that have 

previously been vetted through the 

rulemaking process. The public, 

industry, and EPA are familiar with 

these concepts. Additionally, RQs 

reflect varying levels of and relative 

risk, based on the methodology outlined 

above, so applicability criteria under the 

proposed rule are scaled to the specific 

circumstances of each facility, rather 

than applying a one-size-fits-all 

approach. However, the properties of 

listed CWA hazardous substances may 

not be fully captured in the RQs because 

the existing RQs may not be based on 

the most current risk data. 

This rulemaking is explicitly focused 

on response planning for worst case 

CWA hazardous substances discharges 

to navigable waters. EPA recognizes that 

multiple factors contribute to the 

likelihood of a CWA hazardous 

substance worst case discharge to 

navigable waters, including but not 

limited to, physical and chemical 

properties of the CWA hazardous 

substance, quantity stored onsite, size of 

storage containers, cause of the 

discharge, proximity to navigable waters 

or conveyances, properties of the 

terrain, drainage pathways, weather, etc. 

EPA expects that excessively low 

threshold quantities would likely be 

overly cautious and regulate facilities 

that are not likely to cause substantial 

harm to the environment. Establishing a 

lower threshold planning quantity for 

all CWA hazardous substances could 

potentially overwhelm local and facility 

emergency planning efforts and would 

not be commensurate with the danger 

posed by individual substances. 

The 10,000x RQ multiplier assumes 

that larger capacities of CWA hazardous 

substances generally correspond to an 

increased risk of adverse impacts to 

receptors should a worst case discharge 

occur. As discussed in Section III of this 

preamble, the RQs are quantities that 

‘‘may be harmful,’’ thus, by definition, 

they do not represent a worst case 

discharge quantity. Additionally, as 

discussed in Section IV(A)(2)(d) of this 

preamble, the definition of ‘‘size classes 

of releases’’ in 40 CFR 300.5, which 

corresponds with hazardous substance 

releases under the NCP, is not tied to a 

particular quantity; rather, a major 

release is a ‘‘release of any quantity of 

hazardous substance(s), pollutant(s), or 

contaminants(s) that poses a substantial 

threat to public health or welfare of the 

United States or the environment or 

results in significant public concern.’’ 

Under the NCP, the On-Scene 

Coordinator (OSC) makes the final 

determination of the appropriate 

classification of a hazardous substance 

release based on consideration of the 

particular release (e.g., size, location, 

impact, etc.). EPA concludes that to 

focus on the threat of these major 

releases, in terms of applicability, 

adjusting the RQ upward is warranted. 

EPA recognizes that the multiplier 

proposed here does not represent a 

‘‘safe’’ quantity in the event of a CWA 

hazardous substance discharge. 

However, EPA determined the 10,000x 

RQ multiplier reflects the range of risks 

posed by the listed CWA hazardous 

substances, whether they are used at 

large or small facilities, by preserving 

the underlying toxicity parameters used 

to establish the original RQs. EPA notes, 

however, owners and operators are 

responsible for remaining cognizant of 

the maximum capacity(ies) onsite of all 

CWA hazardous substances at any one 

time and determining whether the 

maximum capacity onsite is at or 

exceeds 10,000x the RQ found at 40 CFR 

117.3. 

The proposed rule requires detailed 

planning requirements for responding to 

worst case discharges. These 

requirements should be triggered only 

when maximum capacities onsite of 

CWA hazardous substances are large 

enough to pose a risk of substantial 

harm to public health or the 

environment. While EPA recognizes that 

site-specific factors, such as site 

elevations and location and nature of 


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18See Footnote 17. 

the discharge point, could affect the 

likelihood or effects of a discharge, EPA 

does not believe it is feasible to develop 

a methodology for establishing 

threshold quantities based on sitespecific factors that would be applicable 

uniformly nationwide for every CWA 

hazardous substance. This is consistent 

with EPA’s original approach in setting 

the RQs and reflected in the regulatory 

history and language.18 EPA examined 

other threshold multipliers, available in 

the RIA, including 10x, 100x, and 

1,000x multipliers; however, these 

multipliers would not focus the 

proposed emergency planning 

requirements on those facilities with the 

greatest potential to cause substantial 

harm to human health or the 

environment. EPA solicits comment on 

using a 10,000x multiplier of the RQs 

for the screening criteria with 

supporting rationale and data. EPA also 

solicits comment on the use of 

alternative RQ multiplier values, as well 

as different multipliers for each category 

of CWA hazardous substance, in 

addition to any supporting data or 

studies on this topic. 

I. Alternative Applicability Approaches 

Establish New Regulatory Thresholds 

Based on Toxic Endpoints 

EPA also considered developing 

applicability thresholds using 

representative receptors for each of the 

three categories of receptors considered 

under this proposed rule (FWSE, public 

receptors, and public water systems) in 

order meet the specific objectives of this 

rule. 

Under this approach, EPA would set 

new threshold quantities for each CWA 

hazardous substance using the most 

current risk data. Each CWA hazardous 

substance would be evaluated to 

determine (1) how a discharge could 

cause substantial harm to each type of 

receptor, and (2) the concentration at 

which substantial harm would be likely 

to occur for each type of receptor. The 

lowest concentration that could cause 

substantial harm to any receptor would 

serve as the basis for establishing a 

single applicability threshold for each 

CWA hazardous substance. A standard 

conservative dilution factor would be 

used to relate the substantial harm 

concentration to a quantity of the CWA 

hazardous substance onsite at a facility 

that would then serve as the 

applicability threshold for that CWA 

hazardous substance. 

While this approach could effectively 

target facilities based on their effects on 

the receptors of interest, there are 

significant drawbacks to this strategy. 

Development of new CWA hazardous 

substance-specific worst case discharge 

thresholds would unduly delay 

implementation of this protective 

regulation, and there would be data 

gaps. Additionally, simplifying 

assumptions would be necessary to 

develop a dilution factor used to convert 

a concentration at a downstream 

receptor to a mass stored at a facility. 

EPA solicits comment on establishing 

new regulatory thresholds for CWA 

hazardous substance FRP applicability 

using the most current risk data and 

appropriate endpoints, including the 

methodology, data, and rationale; 

appropriate dilution factors; and 

feasibility of implementation. 

Establish Thresholds Using DistanceBased Multipliers 

EPA considered establishing 

applicability thresholds using distancebased multipliers for CWA hazardous 

substance RQs. This approach 

recognizes that the potential for a CWA 

hazardous substance worst case 

discharge from a facility to cause 

substantial harm to a downstream 

receptor (i.e., public water system, 

FWSE, or public receptor) depends on 

the distance and travel time from the 

facility to a downstream receptor over 

land and water, among other factors 

(e.g., river width, gage height, flow 

velocity, land transport considerations, 

lateral dispersion and/or diffusion). As 

distance increases, the contaminant 

concentration at the receptor decreases, 

while the time available to respond to 

the discharge increases; thus, the further 

a facility is from a receptor, the lower 

the potential for substantial harm, all 

other factors being equal. By applying a 

multiplier to the RQ based on the 

distance from the facility to the nearest 

downstream receptor, the regulation 

could better target facilities that are 

more likely to cause substantial harm in 

the event of a worst case discharge. 

Under this approach, an owner or 

operator would be required to calculate 

a planning distance to the nearest 

downstream receptor if the following 

two conditions are met: The facility has 

more than 10x the RQ of the CWA 

hazardous substance onsite and the 

facility is within one-half mile of 

navigable water or a conveyance leading 

to navigable water. The planning 

distance to the nearest downstream 

receptor is then used to establish the 

distance-based applicability threshold 

using the simple equation: RQ × 

distance × 100, where distance is the 

planning distance, in miles, between the 

facility and the nearest downstream 

receptor. The planning distance 

includes travel overland and in water. 

For a release of the same amount, the 

concentration at a receptor is inversely 

proportional to the distance from the 

point of release to the receptor. Thus, 

inclusion of a ‘‘distance factor’’ in the 

equation to establish an applicability 

threshold will appropriately establish a 

lower threshold for facilities that are 

closer to downstream receptors, and 

thus present a greater risk. 

Facilities with onsite quantities 

greater than this distance-based 

threshold would then be required to 

conduct an analysis to determine 

whether the facility has the potential to 

cause substantial harm in the event of 

a worst case discharge. Only if the 

analysis determines that the facility has 

the potential to cause substantial harm 

in the event of a worst case discharge 

would the facility be required to 

develop a CWA hazardous substance 

FRP. 

EPA recognizes that use of planning 

distance in the applicability 

determination may better target facilities 

with the potential to cause substantial 

harm without unnecessarily increasing 

the size of the regulated universe, 

because facilities located further 

upstream from a receptor would have a 

proportionately higher applicability 

threshold. This approach would be 

more complicated for the regulated 

community to implement, relative to the 

use of a single threshold multiplier (e.g., 

10,000), and for EPA to evaluate and 

enforce. EPA solicits comment on this 

approach, as well as any supporting 

data, information pertaining to 

additional costs, considerations for 

appropriate multipliers to use, and 

underlying methodology, data, and 

rationale. 

Thresholds From Other Hazardous 

Substances Regulations (Non-CWA) 

EPA reviewed other hazardous 

substance regulations for potential 

consideration of applicability 

thresholds, including: 

—Chemical Accident Prevention 

Provisions, RMP List of Substances 

(40 CFR 68.130) 

—EPCRA Section 302: Threshold 

Planning Quantities for Emergency 

Planning (40 CFR part 355, 

Appendices A and B) 

—EPCRA Section 304: Reportable 

Quantities for Emergency Release 

Notification (40 CFR part 355, 

Appendices A and B) 

—EPCRA Sections 311 and 312: 

Reporting Thresholds for Hazardous 

Chemical Reporting: Community 

Right to Know (40 CFR 370.10) 

—EPCRA Section 313: Toxic Chemical 

Release Reporting (40 CFR 372.65) 


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These are detailed in the TBD. EPA 

concluded that the methodologies used 

to create the reporting thresholds under 

these regulations are not appropriate for 

CWA hazardous substance response 

planning. Additionally, EPA found that 

only EPCRA Sections 311 and 312 

include all substances on the 40 CFR 

part 116 list of CWA hazardous 

substances. However, the applicability 

for EPCRA sections 311 and 312 

regulations is if any OSHA hazardous 

chemical is present at the facility at or 

above the reporting thresholds at any 

one time. EPA solicits comment on any 

other chemical threshold approaches 

from Federal or state regulations, 

industry standards, etc. that EPA should 

consider, including data and rationale. 

II. Alternative Thresholds by Aggregated 

Category 

EPA considered options involving 

aggregating chemical capacity by RQ 

category or by removability or 

recoverability in the event of a 

discharge. To aggregate by RQ category 

to determine whether a facility meets 

the threshold quantity for the maximum 

capacity onsite proposed in § 118.3(a), a 

facility could be required to add up the 

capacities of CWA hazardous substance 

containers present onsite by category. If, 

in aggregate, the capacity of those 

containers in each category reaches the 

threshold quantity, the owner or 

operator would be required to determine 

whether the facility is within one-half 

mile of navigable water and then 

whether the facility meets any of the 

substantial harm criteria. 

EPA decided this approach is 

inappropriate due to the wide 

variability of physicochemical 

properties for CWA hazardous 

substances within each category. 

Additionally, under this approach, 

facilities with small amounts of 

multiple chemicals in each category 

may be required to do facility response 

planning for improbable events 

impacting multiple small containers, or 

other containers where the likelihood of 

concurrent catastrophic discharge is 

very low. Finally, this approach would 

require EPA to select a capacity 

threshold for each category above which 

facilities would be regulated. EPA found 

no basis for selecting a threshold for 

aggregate capacity for each category. 

EPA solicits comment on the 

approach to aggregate CWA hazardous 

substances within categories to 

determine whether a facility has 

reached the threshold quantity for 

applicability, as well as alternative 

approaches to aggregating quantities of 

different CWA hazardous substances 

with supporting rationale and data. 

In terms of categorizing CWA 

hazardous substances by removability 

and recoverability for response resource 

planning, EPA previously proposed and 

revoked rules that could guide that 

discussion. On March 13, 1978, EPA 

issued 40 CFR part 117 to determine the 

removability of each CWA hazardous 

substance and 40 CFR part 119, which 

determined units of measurement and 

penalties (43 FR 10488 and 43 FR 

10495). On November 2, 1978, section 

311 of the CWA was amended by Public 

Law 95–576. The amended statute no 

longer required the Agency to make 

determinations of removability or units 

of measurement for computing 

penalties. Therefore, 40 CFR parts 117 

and 119 of the March 13, 1978 

regulations were revoked on February 

16, 1979 (44 FR 10269). The basis for 

determining reportable quantities, 

formerly termed ‘‘harmful quantities,’’ 

was simplified by the amendment and, 

thus, part 118 of the March 13, 1978 

regulations was also revoked and 

reportable quantities were reproposed as 

a new part 117 on February 16, 1979 (44 

FR 10271) as ‘‘quantities that may be 

harmful.’’ 

In 40 CFR part 117: Determination of 

Removability of Hazardous Substances 

(43 FR 10488) (since revoked), EPA 

discussed designating certain 

substances as those that can actually be 

removed under most conditions of 

discharge. These substances have 

limited water solubility, a relatively 

cohesive mass, and are less dense than 

water. Thus, they resemble petroleum 

oils in their behavior when discharged 

to water. The substances can be 

described as those with specific 

gravities less than 1.0 and water 

solubility less than 1,000 mg/l. 

Accordingly, the revoked final rule 

made the determination that allyl 

acetate, ethylbenzene, xylene, allyl 

chloride, benzene, cyclohexane, 

isoprene, methyl methacrylate, styrene, 

and toluene could actually be removed 

and identified them as oil-like CWA 

hazardous substances. 

Additionally, under 40 CFR part 119: 

Units of Measurement & Rates of 

Penalty (43 FR 10495) (now revoked), 

EPA discussed applying an adjustment 

factor to penalties (0.1 to 1.0) using a 

profiling operation based on the 

solubility, density, volatility, and 

associated propensity for dispersal in 

water of each CWA hazardous 

substance. Each CWA hazardous 

substance was placed in one of eight 

categories combining these physical, 

chemical, and dispersal properties in 

various ways. EPA then ranked the 

relative harm these categories posed to 

the environment. Table 6 shows the 

terms involved; final relative ranking of 

physical, chemical, and dispersal 

categories in increasing order of relative 

damage potential; and physical, 

chemical, and dispersal factor of each 

category. 

TABLE 6—MATERIAL CLASSIFICATION AND RELATIVE HARM

Material classification 

Physical/ 

chemical/ 

dispersal 

category 

Rank 

Physical/ 

chemical/ 

dispersal 

Insoluble Volatile Floater ................................................................................................................ IVF .............. 1 0.10 

Insoluble Nonvolatile Floater .......................................................................................................... INF .............. 2 0.23 

Insoluble Sinker .............................................................................................................................. IS ................. 3 0.36 

Soluble Mixer ................................................................................................................................. SM ............... 4 0.49 

Precipitator ..................................................................................................................................... P .................. 5 0.62 

Soluble Sinker ................................................................................................................................ SS ............... 6 0.75 

Soluble Floater ............................................................................................................................... SF ................ 7 0.88 

Miscible .......................................................................................................................................... M ................. 8 1.0 

The eight categories were defined as: 

1. IVF (insoluble volatile floater): 

Materials lighter than water with a 

vapor pressure greater than 10 mm Hg 

and a solubility of less than 1,000 ppm 

(weight per weight basis) or materials 

with vapor pressure greater than 100 

mm Hg and solubility less than 10,000 

ppm. 


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2. INF (insoluble nonvolatile floater): 

Materials lighter than water with a 

vapor pressure greater than 10 mm Hg 

and a solubility of less than 1,000 ppm 

(weight per weight basis). 

3. IS (insoluble sinker): Materials 

heavier than water and with a solubility 

less than 1,000 ppm (weight per weight 

basis). 

4. SM (soluble mixer): Solid 

substances with a solubility greater than 

1,000 grams of solute per 1,000 grams of 

water. 

5. P (precipitator): Salts which 

dissociate or hydrolyze in water with 

subsequent precipitation of a toxic ion. 

6. SS (soluble sinker): Materials 

heavier than water and a solubility 

greater than 1,000 ppm (weight per 

weight basis). 

7. SF (soluble floater): Materials 

lighter than water and a solubility 

greater than 1,000 ppm (weight per 

weight basis). 

8. M (miscible): Liquid substances 

which can freely mix with water in any 

proportion. 

EPA considered, but decided against, 

using these revoked categories for a 

listed hazardous substance’s ability to 

be removed under most conditions of 

discharge to aggregate hazardous 

substances for establishing an 

applicability threshold quantity. EPA 

judged that aggregating in this fashion is 

impractical; may not adequately reflect 

risks, including inherent, CWA 

hazardous substance-specific toxic, 

explosive, ignitable and/or reactive 

natures, especially during an extreme 

event; and implementation and 

compliance would be complicated. 

Additionally, as these regulations were 

revoked, industry is unfamiliar with this 

approach and facility planners do not 

use these categories in their planning. 

EPA solicits comment on aggregating 

CWA hazardous substances, as detailed 

above, with supporting rationale and 

data. 

Additionally, in the USCG proposed 

rules for tank vessels and MTR facilities 

(64 FR 13734, March 22, 1999 and 65 FR 

17416, March 31, 2000), some CWA 

hazardous substances were defined as 

‘‘sinkers’’ and ‘‘floaters’’, where 

‘‘sinkers’’ are those CWA hazardous 

substances whose physical and 

chemical properties, following a 

discharge into water, result in a 

substance in the water that does not 

float, react chemically with water, 

rapidly vaporize, or rapidly dissolve. 

Under ambient conditions, these 

chemicals have a solubility of less than 

0.01 percent, specific gravity greater 

than 1.0, and a vapor pressure less than 

1 PSIG. ‘‘Floaters’’ are those CWA 

hazardous substances whose physical 

and chemical properties, following a 

discharge into water, result in a 

substance on the water surface that does 

not rapidly sink, react chemically with 

water, vaporize, or dissolve. Under 

ambient conditions, these CWA 

hazardous substances have a solubility 

of less than 0.01 percent, a specific 

gravity less than 1.0, and a vapor 

pressure less than 1 PSIG. Neither a 

‘‘sinker’’ or ‘‘floater’’ designation was 

intended to include CWA hazardous 

substances that are highly reactive in 

water or volatile, and therefore could 

not be reasonably contained or collected 

under any conditions. 

Categorizing chemicals in this fashion 

is more intuitive than the EPA-revoked 

eight categories in Table 6 above. 

Additionally, ‘‘sinker’’ and ‘‘floater’’ 

would specifically link to response 

requirements, the main focus of this 

action. However, again due to the wide 

variability in chemical properties and 

requirements around responding to a 

worst case discharge, EPA determined 

that categorizing and aggregating 

chemicals generally is not appropriate 

for this action for the reasons specified 

above for aggregating by the revoked 

categories. 

EPA solicits comment on using 

‘‘sinkers’’ and ‘‘floaters’’ as chemical 

categories to require specific response 

planning resources be available or 

contracted, or in aggregating chemicals 

for threshold determinations with 

supporting rationale and data. 

ii. Maximum Capacity Onsite v. 

Maximum Quantity Onsite 

EPA is proposing in § 118.2 to define 

maximum capacity onsite as the total 

aggregate container capacity of each 

CWA hazardous substance present at all 

locations within the entire facility at 

any given time, similar to the approach 

taken in the Oil Pollution Prevention 

regulation (see 40 CFR part 112). EPA is 

proposing a definition for permanently 

closed containers in § 118.2 such that 

facilities would not need to count these 

containers in their CWA hazardous 

substance maximum capacity onsite 

threshold quantity calculations. 

EPA recognizes that for the chemical 

industry, chemical inventory quantities 

routinely fluctuate, and facilities use a 

wide variety of containers to store CWA 

hazardous substances; common 

containers include storage tanks, 

process vessels, railcars, and other 

onsite shipping containers not in 

transportation. Thus, regulating 

facilities based on the maximum 

container capacity onsite will allow 

regulated stakeholders an opportunity to 

plan for the worst case quantities of 

CWA hazardous substances at the 

facility. This approach also allows 

emergency response planners to reflect 

the risk posed by CWA hazardous 

substances onsite in those maximum 

possible quantities. This is a simpler 

approach for inspectors to determine 

facility applicability based on container 

sizes instead of reviewing and aligning 

quantities in fluctuating inventories. 

Furthermore, calculating applicability 

using container shell capacity could be 

viewed as a more conservative approach 

to determine whether a facility has 

reached the threshold quantity of CWA 

hazardous substances. 

There are some limitations to this 

approach. Chemical mixtures would be 

complex to regulate, and the approach 

does not allow for flexibility. Oils are 

fundamentally different from CWA 

hazardous substances in that when an 

oil is mixed with another substance, the 

entire mixture is subject to regulation 

under CWA section 311 and the Oil 

Pollution Prevention regulation. 

Therefore, when determining 

applicability for oils, the shell capacity 

of the container can be taken into 

account because the entire mixture in 

the container is considered an oil for 

regulatory purposes. However, CWA 

hazardous substances may be combined 

into mixtures and therefore it is 

necessary to understand the quantities 

of each substance in the mixture to 

determine total quantities onsite when 

determining applicability. Furthermore, 

EPA understands that CWA hazardous 

substance facility quantities and batch 

process operations often vary and 

therefore EPA inspectors would still 

need to consider facility inventories to 

understand facility storage capacities. 

Additionally, this approach is not 

consistent with how industry manages 

their chemicals under similar chemical 

preparedness and reporting regulations. 

The typical amount of CWA hazardous 

substances at a facility may be less than 

the total capacity because facilities are 

overdesigned to meet seasonal demands 

or changing facility need. Finally, 

containers may be designed to never 

actually hold the maximum quantity 

possible due to the need for freeboard or 

headspace, thus using the maximum 

capacity onsite may not be a realistic 

accounting of CWA hazardous 

substance quantities for planning 

purposes. 

EPA considered proposing that the 

maximum quantity stored onsite means 

the total amount of a CWA hazardous 

substance present at all locations within 

the entire facility at any given time (e.g., 

storage tanks, process vessels, onsite 

shipping containers) and that this 

amount be used to determine whether a 

facility meets or exceeds the threshold 


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19See 40 CFR part 370. 

20 58 FR 8832, February 17, 1993. 

21 ibid. 

quantity proposed in § 118.3(a). This is 

consistent with other EPA chemical 

accident preparedness and reporting 

programs, for example EPCRA Sections 

311 and 312.19 A facility owner or 

operator would use the maximum total 

aggregate amount of a CWA hazardous 

substance in all containers onsite at any 

one time to calculate this quantity. Once 

a facility becomes subject to the 

regulation for one CWA hazardous 

substance, the facility would include all 

CWA hazardous substances on site in 

their planning activities. 

EPA solicits comment on the 

proposed approach, the definition of 

permanently closed containers, using 

maximum quantity onsite rather than 

maximum capacity onsite for 

applicability threshold quantity 

calculations, the number of facilities 

that may be regulated under the 

proposed approach versus using 

maximum quantity onsite, and potential 

alternative approaches with supporting 

rationale and data. 

iii. Accounting for Mixtures 

When designating CWA hazardous 

substances, EPA defined mixture in 40 

CFR 116.3 to mean any combination of 

two or more elements and/or 

compounds in solid, liquid, or gaseous 

form except where such substances have 

undergone a chemical reaction so as to 

become inseparable by physical means. 

Additionally, 40 CFR 116.4 states that 

the elements and compounds appearing 

in Tables 116.4 A and B are designated 

as hazardous substances in accordance 

with CWA section 311(b)(2)(A). This 

designation includes any isomers and 

hydrates, as well as any solutions and 

mixtures containing these substances. 

Under 40 CFR 302.6 Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA) Notification Requirements, 

hazardous substance mixtures are 

calculated by the following: (i) If the 

quantity of all of the hazardous 

constituent(s) of the mixture or solution 

is known, notification is required where 

an RQ or more of any hazardous 

constituent is discharged; (ii) If the 

quantity of one or more of the hazardous 

constituent(s) of the mixture or solution 

is unknown, notification is required 

where the total amount of the mixture 

or solution discharged equals or exceeds 

the RQ for the hazardous constituent 

with the lowest RQ. 

As the regulated community is 

already familiar with determining RQs 

for mixtures or solutions for release 

notification under CERCLA section 

103(a) (40 CFR 302.6), EPA is proposing 

the same requirements in § 118.9 for 

mixtures or solutions in this action. As 

such, if a facility has a mixture wherein 

the quantities of all the hazardous 

constituents of the mixture are known, 

the threshold quantity would be reached 

when any individual CWA hazardous 

substance constituent quantity reaches 

that level as extrapolated to the 

maximum container capacity. However, 

if a facility has a mixture wherein the 

quantities of the constituents are not 

known, the facility has met the 

threshold when the entire quantity of 

the mixture onsite reaches or exceeds 

the threshold quantity for the hazardous 

constituent with the lowest threshold 

when extrapolated to the maximum 

container capacity. EPA solicits 

comment on this approach or suggested 

alternative approaches with supporting 

data for determining CWA hazardous 

substance threshold quantities for 

mixtures. 

Because this proposed action would 

determine threshold quantity 

applicability based on maximum 

capacity onsite, a facility would follow 

the mixture rule proposed in § 118.9 to 

determine the capacity quantities of 

CWA hazardous substances onsite. For 

the worst case discharge planning 

quantity, please see Section IV.A.4.iv of 

this preamble. 

b. Distance to Navigable Water 

i. One-Half Mile to Navigable Water or 

Conveyance to Navigable Water 

EPA is proposing that facilities 

meeting the threshold quantity of CWA 

hazardous substances and located 

within one-half mile of navigable water 

or a conveyance to navigable water 

complete the substantial harm 

determination. This distance is based on 

research related to the Oil Pollution 

Prevention FRP regulation.20 As 

discussed in the preamble to the Oil 

Pollution Prevention FRP regulation,21

all facilities with worst case discharges 

of oil to navigable water examined in 

the case studies were located such that 

their closest opportunity for discharge 

was within one-half mile of navigable 

waters. Thus, 40 CFR part 112, 

Appendix C, Attachment C–III— 

Calculation of the Planning Distance 

considers one-half mile proximity to a 

navigable water or a conveyance to 

navigable water as part of the planning 

distance calculation for overland 

transport. These overland transport 

planning distance calculations, 

combined with in-water calculations, 

determine whether the facility could 

cause substantial harm to public health 

and sensitive environments due to a 

worst case discharge. Additionally, 

conveyances located close to the facility 

can provide a direct pathway to 

navigable waters. If this distance is less 

than or equal to one-half mile, a 

discharge from the facility could pose 

substantial harm given that the time to 

travel the distance from the storm drain 

or other conveyance to the navigable 

water could be considered virtually 

instantaneous (40 CFR 112, Appendix 

C). Given that the Oil Pollution 

Prevention FRP regulation has been in 

place for over 30 years, industry is 

familiar with this approach. 

EPA considered using both lower and 

higher values for the distance to 

navigable water or conveyances to 

navigable water and solicits comment 

on alternative approaches to 

determining whether a facility, because 

of its location, could reasonably be 

expected to cause substantial harm to 

the environment by discharging CWA 

hazardous substances into or on the 

navigable waters, with supporting 

rationale and data. 

ii. Alternatives to One-Half Mile to 

Navigable Water or Conveyance to 

Navigable Water 

EPA considered a facility selfdetermination model, wherein an owner 

or operator would determine whether 

the facility has a reasonable expectation 

to cause substantial harm by discharging 

to navigable waters based on locational 

and geographic considerations using 

EPA-defined criteria. Under this model, 

the determination would be customized 

by each facility to their unique 

circumstances. The main drawback to 

this approach is that defining 

universally applicable criteria to 

determine whether facilities are located 

at a distance that may cause substantial 

harm may be complicated and 

implementation may be difficult and 

burdensome. 

EPA also considered establishing 

proximity distances to navigable waters 

for CWA hazardous substances using 

chemical characteristics or historical 

discharge data. Under this approach, 

EPA would use available CWA 

hazardous substance physicochemical 

data to calculate overland distances to 

navigable water to indicate that a 

facility’s location potentially poses a 

substantial threat. However, the Agency 

concluded that determining the 

appropriate physicochemical properties 

influencing fate and transport for the 

296 CWA hazardous substances is not 

feasible when accounting for the large 

number of mixtures or wastes 

containing CWA hazardous substances. 


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22 33 U.S.C. 1321(j)(5)(D)(i). Accessed January 14, 

2021. Available at: https://www.govinfo.gov/ 

content/pkg/USCODE-2019-title33/pdf/USCODE2019-title33-chap26-subchapIII-sec1321.pdf. 

Additionally, worst case discharge 

historical data are sparse, and EPA has 

identified an insufficient number of 

historical worst case discharges of CWA 

hazardous substances to accurately set a 

distance threshold using discharge 

history data. 

EPA solicits comment and any 

information pertinent to these 

alternative approaches as well as 

supporting data and rationale. 

2. Substantial Harm Criteria 

After determining whether a facility 

satisfies the initial screening criteria, 

EPA is proposing that an owner or 

operator would then assess whether 

their facility meets any of the four 

substantial harm criteria: (1) Ability to 

cause injury to FWSE, (2) ability to 

adversely impact a public water system, 

(3) ability to cause injury to public 

receptors, and (4) reportable discharge 

history. If any one of these substantial 

harm criteria are met, then the facility 

must prepare and submit a response 

plan to EPA. 

EPA considered the substantial harm 

criteria in the Oil Pollution Prevention 

regulation in 40 CFR part 112 as a basis 

for developing CWA hazardous 

substances substantial harm criteria. 

These criteria and steps to determine 

whether they are met are further 

detailed below. 

a. Ability to Cause Injury to Fish, 

Wildlife, and Sensitive Environments 

(FWSE) 

i. Proposed Approach 

EPA is proposing a substantial harm 

criterion to consider the facility’s ability 

to cause injury to FWSE. This is based 

on 40 CFR 112.20(f)(1)(ii)(B) for oil 

FRPs, in which EPA established a 

criterion for determining injury to 

FWSE as follows: ‘‘The facility is 

located at a distance . . . such that a 

discharge from the facility could cause 

injury to fish and wildlife and sensitive 

environments . . .’’ Furthermore, in 40 

CFR 112.20(f)(2)(i) EPA identified that 

an EPA Regional Administrator (RA) 

shall consider proximity to FWSEs and 

other areas he or she determines to 

possess ecological value in his or her 

assessment of whether a facility could 

reasonably be expected to cause 

substantial harm to the environment. 

EPA judged that a similar approach 

considering ability to cause injury to 

FWSE is appropriate to determine the 

potential for CWA hazardous substance 

discharges to cause substantial harm to 

the environment. 

I. Definition of FWSE 

40 CFR part 112 Appendix C 

references the DOC/NOAA document, 

‘‘Guidance for Facility and Vessel 

Response Plans Fish and Wildlife and 

Sensitive Environments,’’ which 

outlines guidance for interpreting fish, 

wildlife, and sensitive environments (59 

FR 14713, March 29, 1994). In six 

appendices (I–VI), the guidance 

document outlines the Federal agencies 

responsible for specific environmental 

resources (I); critical habitats for 

endangered/threatened species (II); 

federally protected areas (III); sensitive 

biological and human-use resources 

(IV); ranking of shoreline habitats 

impacted by oil spills (V); and contact 

information for regional offices (VI). As 

part of the statutory requirements under 

the CWA, any hazardous substances 

worst case discharge program must ‘‘be 

consistent with the requirements of the 

National Contingency Plan (NCP) and 

Area Contingency Plans (ACPs).’’ 22 EPA 

is proposing to require owners and 

operators to evaluate the substantial 

harm criteria using the fish and wildlife 

definition under 40 CFR 112.2 

(proposed in this rulemaking in § 118.2) 

as well as use applicable ACP guidance 

in defining fish, wildlife, and sensitive 

environments in their respective 

regions. 

An ACP is used by all agencies 

engaged in responding to environmental 

emergencies within a defined 

geographical area. When implemented 

in conjunction with the NCP, the ACP 

must be adequate to remove a worstcase discharge, and to mitigate or 

prevent a substantial threat of such 

discharge from a vessel, offshore 

facility, or onshore facility operating in 

or near the defined geographical area. 

Additionally, the ACP identifies areas 

within its bounds that may require 

tailored protection or response strategies 

due to unique environmental attributes. 

These may be endangered species 

habitats or other areas defined by the 

ACP. The ACP provides guidance on 

how responders should incorporate the 

needs of these areas into response 

strategies. The ACP Fish and Wildlife 

and Sensitive Environments Plan annex 

is developed in consultation with the 

U.S. Fish and Wildlife Service, NOAA, 

and other interested parties, including 

state fish and wildlife conservation 

officials. The annex, consistent with the 

NCP and Regional Contingency Plans 

(RCPs), addresses fish and wildlife 

resources and their habitat, and other 

areas considered sensitive 

environments, and provides the 

necessary information and procedures 

to immediately and effectively respond 

to discharges that may adversely affect 

these resources, including provisions for 

a response to a worst case discharge (40 

CFR 300.210(c)(4)). EPA solicits 

comment on how FWSEs are defined for 

this action. 

II. FWSE Planning Distance Calculation 

To determine whether a facility could 

cause substantial harm to a FWSE, EPA 

is proposing that facilities selfdetermine formulas and/or 

methodologies to use for overland 

transport and transport in water for 

planning distance, using EPA-provided 

parameters and the lethal concentration 

50 percent (LC50) toxicity intervals 

provided by EPA (Table 7). The facility 

owner or operator would be required to 

evaluate whether the facility is located 

at a distance such that a worst case 

discharge from the facility could cause 

injury to FWSE. EPA is proposing in 

§ 118.10 that a facility owner or operator 

calculate the worst case discharge 

scenario of the maximum single CWA 

hazardous substance container, 

interconnected containers, pipe, or 

piping system capacity onsite for a CWA 

hazardous substance at or above the 

threshold quantity set in § 118.3(a) that 

represents the largest capacity. If the 

worst case discharge scenario indicates 

that the facility could cause injury to 

FWSE, then the owner or operator must 

prepare an FRP that addresses all CWA 

hazardous substances where the 

maximum capacity onsite meets or 

exceeds the threshold quantity. The goal 

of calculating planning distance is twofold. First, planning distance determines 

a facility’s potential to cause substantial 

harm, and second, planning distance 

may be part of the response plan 

implementation to identify appropriate 

response actions. Thus, the worst case 

discharge scenario is used to both 

determine applicability and in the 

hazard evaluation. 

EPA is proposing to provide the 

toxicity thresholds and parameters for 

overland transport and in-water 

transport, while the facility must 

determine (1) where the FWSE receptors 

are located, and (2) if, based on the 

parameters provided, a worst case 

discharge of CWA hazardous substances 

would result in exposure of receptors to 

a concentration equal to or greater than 

the toxicity threshold concentration 

provided by EPA. The following 

describes the parameters reviewed, the 

proposed methodology, and toxic 

endpoints and parameters for planning 

distance calculations. 


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23Further information is available in the TBD. 

Toxic Endpoints 

EPA is proposing in Appendix B of 40 

CFR part 118 to use 10 percent of a 

range of LC50 concentrations. A 

common risk assessment method, use of 

an uncertainty factor of 10 to estimate 

the lower limit by dividing the LC50 

threshold by 10 (LC50/10) extrapolates 

the lethal concentration used in 

laboratory aquatic toxicity tests to lower 

concentrations than the lethal dose. 

This method results in a concentration 

of concern that is more conservative and 

likely more relevant to discharges of 

CWA hazardous substances to the 

environment. EPA used tests involving 

adult fathead minnows to create the 

original RQ classification; they are 

available for all 296 CWA hazardous 

substances (43 FR 10474, March 13, 

1978). EPA proposes to use 96-hour 

LC50 intervals for each RQ category as 

the criterion for FWSE (Table 7). For 

mixtures of CWA hazardous substances, 

EPA proposes in § 118.10(a) that an 

owner or operator shall assume the 

entire capacity of the container holds 

the CWA hazardous substance with the 

lowest RQ. EPA judges that this 

approach will appropriately capture the 

risk of CWA hazardous substance worst 

case discharges causing injury to FWSE. 

TABLE 7—PROPOSED CONCENTRATIONS FOR FWSE 

[Proposed Part 118 Appendix B] 

Category RQ 

(lbs.) 

Aquatic toxicity 

(mg/L) 10% 

(mg/L) 

Lower Upper 

X ....................................................................................................................... 1 0 0.1 0.01 

A ....................................................................................................................... 10 0.1 1 0.1 

B ....................................................................................................................... 100 1 10 1 

C ...................................................................................................................... 1,000 10 100 10 

D ...................................................................................................................... 5,000 100 500 50 

EPA reviewed several options for 

toxicity endpoints for FWSE. These 

included both the Criterion Maximum 

Concentration (CMC) and Criterion 

Continuous Concentration (CCC), as 

well as a percentage of the LC50 for 

acute aquatic toxicity tests. While the 

CMC and CCC have the advantage of 

combining the results of multiple 

toxicity tests, using overarching 

chemical components, there are 104 

freshwater CMCs, 116 freshwater CCCs, 

97 saltwater CMCs and 97 saltwater 

CCCs for CWA hazardous substance 

chemical compounds.23 EPA solicits 

comment on methods of estimating 

concentrations based on aquatic toxicity 

testing that are relevant to human and 

aquatic endpoints for the 296 CWA 

regulated hazardous substances and 

how to address mixtures, with 

supporting rationale and data. 

Planning Distance Parameters 

EPA is proposing in § 118.10(b) that 

owners or operators shall use any 

methodology(ies) or formula(s) that 

accurately reflect the conditions at the 

facility location and that consider 

parameters provided by EPA for 

overland transport and transport over 

water. Overland transport parameters 

shall include ground conditions (e.g., 

topography, land use, soil absorption) 

and properties of the CWA hazardous 

substance (e.g., evaporation, reactivity). 

In-water transport parameters include: 

The point of entry to the water (i.e., flow 

rate, duration, direction of the 

discharge); conditions of the water (i.e., 

velocity, slope, currents, turbulence, 

water temperature, salinity); and 

properties of the CWA hazardous 

substance in water. 

The proposed approach differs from 

the Oil Pollution Prevention FRP 

program which specifies formulas for 

calculating planning distance and 

allows the owner or operator to use an 

alternative formula(s) for calculating 

planning distance (see 40 CFR part 112 

Appendix C, Attachment C–III). In this 

action, EPA is proposing flexibility for 

determining planning distance for CWA 

hazardous substances to account for the 

variety in chemical and physical 

properties of the 296 CWA hazardous 

substances. EPA determined a one-sizefits-all approach for calculating 

planning distances for CWA hazardous 

substances is not appropriate for this 

particular action given the variety of 

hazardous substances and the range of 

physicochemical properties resulting in 

differences in their fate and transport. 

Facility owners and operators may 

choose to use existing models and 

formulas to calculate planning distance 

such as those in 40 CFR part 112 

Appendix C. The owner or operator 

must provide supporting 

documentation, rationale, and 

assumptions for the formula used to 

calculate planning distance in order for 

the EPA to evaluate the facility’s 

determination of substantial harm. 

EPA explored other potential models 

for planning distance, which are further 

discussed in the TBD, and considered 

whether the Agency should specify 

formulas for calculating planning 

distance and/or develop a tool to assist 

facility owners and operators in 

completing calculations. An example of 

one such tool is RMP*Comp, a free 

software program an owner or operator 

can use to complete the Off-site 

Consequence Analyses (both worst case 

scenarios and alternative scenarios) 

required under the RMP rule. 

RMP*Comp allows a user to input data 

elements and then guides the user 

through the process of conducting the 

analysis. 

EPA solicits comment on the various 

model parameters, in-water and 

overland transport models, scenarios, 

and variables which should be included 

in a potential planning distance 

calculation as well as whether EPA 

should develop a comparable tool to the 

RMP*Comp system for worst case 

discharges CWA hazardous substances. 

ii. Alternative Approaches 

EPA considered using the same 

parameter and toxic endpoint approach 

as proposed above, except with 

endpoints established from the CWA RQ 

concentrations. In this alternative 

approach, EPA would use the lower end 

of each RQ category concentration range 

for the toxic endpoint value. Although 

this approach ensures that the program 

remains consistent by using the RQs, 

considering both aquatic toxicity and 

mammalian toxicity (oral), the range of 

concentrations for each RQ category 

may be too large to accurately reflect the 

risk of each substance. EPA solicits 

comment on this approach and potential 

alternatives along with supporting data 

and rationale. 

EPA also considered specifying 

formulas by chemical, chemical 

category, or some other categorization. 


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24 Details on the models evaluated are included 

in the TBD. 25Legislative History of the Oil Pollution Act of 

1990: Public Law 101–380: 104 Stat. 484: August 

18, 1990. in 8 Washington, DC, Covington & 

Burling; p. 150. 

The Agency evaluated existing 

modeling programs for water and land 

but chose not to adopt an approach that 

specifies formulas for CWA hazardous 

substance planning distance.24 The 

chemical and physical property 

variation across the 296 CWA hazardous 

substances make it challenging to adopt 

a one-size-fits-all approach to accurately 

calculate planning distances. EPA 

solicits comment on available 

technologies, methodologies, modeling 

programs, or formulas that could be 

used to establish planning distance. 

b. Ability to Adversely Impact a Public 

Water System 

i. Proposed Approach 

EPA is proposing in § 118.3(c)(2) that 

facilities located at a distance such that 

a worst case discharge from the facility 

has the ability to adversely impact a 

public water system could reasonably be 

expected to cause substantial harm to 

the environment. Facilities would be 

required to coordinate with the public 

water system to determine whether 

concentrations from a worst case CWA 

hazardous substance discharge would 

result in scenarios adversely impacting 

the public water system. 

Public drinking water was specifically 

highlighted as an area of risk of 

substantial harm in the OPA 90 

Conference Report under proximity to 

potable water.25 EPA proposes in 

§ 118.2 to adopt the definition of public 

water system as stated in 40 CFR 141.2 

and used by the Oil Pollution 

Prevention FRP program, designating a 

public water system as a system of 

public piped water for human 

consumption with at least fifteen service 

connections or that regularly services 25 

individuals for at least 60 days of the 

year. 

In determining whether a CWA 

hazardous substance discharge would 

adversely impact a downstream public 

water system, the facility owner or 

operator would be required to evaluate 

whether a worst case discharge 

concentration would: 

1. Violate Federal and state drinking 

water standards (e.g., Maximum 

Contaminant Levels (MCLs)), 

2. Compromise the ability of a public 

water system to produce water that 

complies with Federal and state 

drinking water standards, 

3. Result in adverse health impacts in 

individuals exposed to contaminated 

drinking water, 

4. Contaminate public water system 

infrastructure, and/or 

5. Cause a public water system to 

issue water use restrictions. 

EPA expects that facilities would 

need to gather relevant information 

related to the CWA hazardous 

substances onsite and information 

relevant to their fate and transport 

following a discharge in order to 

determine whether the facility has the 

ability to adversely impact public water 

systems. This may include modeling a 

worst case discharge scenario and 

obtaining the arrival time, duration, and 

concentration of the discharge as it 

reaches a water intake. With that 

information, the facility would 

coordinate with downstream public 

water systems to determine impacts to 

the system and would be required to 

document coordination. 

State drinking water primacy agencies 

(‘‘State agency’’) may be another 

resource to aid in determining impacts 

to public water systems. EPCRA section 

304 requires facilities to notify their 

State Emergency Response Commission 

(SERC) or Tribal Emergency Response 

Commission (TERC) and Local 

Emergency Planning Committee (LEPC) 

or Tribal Emergency Planning 

Committee (TEPC) of any releases of 

extremely hazardous substances (EHSs) 

defined under EPCRA section 302 or 

CERCLA hazardous substances at or 

above their RQ. The America’s Water 

Infrastructure Act (AWIA), which 

amended EPCRA section 304, requires 

facilities to notify the applicable State 

agency, which in turn notifies 

community water systems of a discharge 

that has the potential to impact the 

system’s source water. In Appendix A of 

40 CFR part 118, EPA is proposing to 

require facilities to document and retain 

efforts to coordinate with nearby public 

water systems regarding this substantial 

harm criterion. 

All states, except for Wyoming, have 

primacy for implementing the Safe 

Drinking Water Act (SDWA). The EPA 

Regional Water Program implements the 

SDWA for Wyoming, Washington DC, 

several Indian Tribes, and the 

territories. State drinking water primacy 

agencies are required to enforce Federal 

standards. State drinking water 

programs also have the discretion to (1) 

place more stringent standards on 

contaminants regulated under SDWA or 

(2) regulate a contaminant that is not 

currently regulated under SDWA. EPA 

intends the proposed language to 

encompass Federal drinking water 

standards as well as more stringent state 

drinking water regulations. 

This general approach covers any sitespecific considerations and contains 

clear and unambiguous requirements, as 

well as negates the need to specify 

values (i.e., concentration or total mass) 

that result in substantial harm; rather, it 

focuses on adverse outcomes that could 

result from a worst case discharge. 

Additionally, this approach avoids the 

issue of whether drinking water 

treatment could (or could not) reduce 

the concentration of the CWA hazardous 

substance to below harmful levels. 

EPA recognizes challenges with this 

approach. First, this approach places a 

burden on public water systems to 

voluntarily participate in coordination 

activities with an unknown number of 

upstream facilities. A limited number of 

public water systems could be 

inundated with coordination requests 

depending on the number of potentially 

regulated facilities located upstream. 

Second, public water systems may not 

fully understand whether worst-case 

discharges for particular CWA 

hazardous substance would result in 

adverse health impacts in exposed 

individuals or contaminate their 

infrastructure given the variability of 

CWA hazardous substance 

physiochemical properties and 

toxicities. This may be especially true 

for smaller systems that lack the 

knowledge and resources to assist in 

this evaluation. EPA recognizes that 

guidance would need to be developed to 

support such evaluations. Lastly, given 

their variability, the treatability of some 

CWA hazardous substances is not 

known. Further, if a public water system 

does not respond to requests to 

coordinate, facility owners or operators 

may be in a position to make the 

determination without the support and 

expertise of water system staff. In these 

instances, the regulated facility would 

measure compliance at the water 

treatment facility intake. Another 

challenge with this approach is that it 

does not consider other water intakes 

(e.g., industrial water intakes) that may 

be downstream of a potentially 

regulated facility. EPA solicits comment 

on the merits and limitations of this 

approach, including situations where a 

public water system declines to 

participate or does not respond; 

suggested alternatives to this approach; 

and supporting data and rationale for 

these alternatives. 

ii. Alternative Approaches 

EPA considered categorizing all 

facilities within Source Water 

Protection Areas (SWPAs) as meeting 

substantial harm criteria. The 1996 

Amendments to SDWA emphasized the 

importance of pollution prevention to 

protect the safety of drinking water 

supplies and required states to create a 


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26See Footnote 17. 

Source Water Assessment Program for 

all public water systems. State drinking 

water programs were required to: 

1. Identify the land area(s) which 

provide water to each public drinking 

water source in their state; 

2. Complete an inventory of existing 

and potential sources of contamination 

in those areas; 

3. Determine the susceptibility of each 

drinking water system to contamination; 

and 

4. Distribute the results of the 

assessment to water users and other 

interested entities. 

The 1996 program requirements were 

intended to provide communities with 

the information needed to formulate and 

implement protection measures. By the 

early 2000s, source water assessments 

were completed for all public water 

systems. The 1996 SDWA Amendments 

do not require states to update source 

water assessments periodically. 

However, some states opt to implement 

state-specific policies requiring periodic 

evaluations and/or updates of 

assessments. States may provide access 

to public water system source water 

assessment reports on their websites or 

respond to information requests for 

these reports. Updating assessment 

plans by the states is voluntary. As 

such, states, not EPA, maintain the 

information and geographic boundaries 

of SWPAs. 

For SWPAs that are publicly 

available, facilities could easily 

determine whether they are within a 

boundary and it would obviate the need 

for distance planning. However, EPA 

chose not to adopt this approach for 

several reasons. First, this would 

increase the number of facilities that 

must develop facility response plans 

without clearly focusing on those that 

could cause the greatest harm. 

Additionally, many states do not make 

their SWPAs available to the public, so 

facility owners or operators would have 

to request them from the state. 

Responding to these requests could 

place a burden on state drinking water 

programs. Further, EPA does not 

possess the geographic boundaries of 

current state SWPAs, which hinders 

EPA’s ability to assess how feasible this 

option would be to implement. This 

presents challenges to estimating the 

facility universe or costs for this 

approach. Additionally, states regulate 

and define SWPAs differently, and EPA 

has no information on how often these 

areas are updated. SWPAs can be quite 

large, which would likely expand the 

facility universe and increase 

compliance costs imposed on the 

regulated community without 

necessarily corresponding to the 

potential to cause substantial harm. This 

is especially true in states that identify 

larger areas, such as entire watersheds, 

to delineate SWPAs. 

EPA also considered an approach 

whereby facility owners or operators 

would self-determine whether they 

could adversely impact public water 

systems using parameters and toxic 

endpoints. This approach would 

parallel the methodology recommended 

to determine impacts to FWSE. Setting 

concentration thresholds at the drinking 

water intake would provide certainty to 

the regulated community. This 

approach could be less burdensome to 

regulated facilities if they are not 

required to coordinate with public water 

systems. However, the drinking water 

standards EPA evaluated (e.g., MCLs) 

apply only to the finished water rather 

than source water. Applying those 

drinking water standards at the water 

intake, before the water is treated, may 

not be an accurate reflection of whether 

a worst case discharge could cause 

substantial harm. Additionally, it may 

be impractical, if not impossible, to 

develop threshold concentrations at the 

intake that would result in substantial 

harm that would broadly apply to most 

public water systems for all the types of 

substantial harm listed under the 

preferred option and for all 296 CWA 

hazardous substances. 

EPA solicits comment on these 

approaches and methodologies, with 

supporting rationale and data. 

c. Ability To Cause Injury to Public 

Receptors 

i. Proposed Approach 

Given the intrinsic properties (e.g., 

physicochemical; toxicity) of some of 

the CWA hazardous substances, EPA is 

proposing in § 118.3(c)(3) a separate 

substantial harm criterion for facilities 

that could cause injury to public 

receptors through a worst case discharge 

to navigable waters. Additionally, EPA 

is proposing that substantial harm be 

determined through the same parameter 

and toxic endpoint approach proposed 

for FWSE. 

EPA’s proposed definition of public 

receptor is adapted from an EPA 

chemical accident prevention and 

preparedness program, the Clean Air 

Act (CAA) Risk Management Program, 

at 40 CFR 68.3, which defines a public 

receptor as: ‘‘offsite residences, 

institutions (e.g. schools, hospitals), 

industrial, commercial, and office 

buildings, parks, or recreational areas 

inhabited or occupied by the public at 

any time without restriction by the 

facility where members of the public 

could be exposed to toxic 

concentrations as a result of a worst case 

discharge.’’ However, the definition 

proposed in § 118.2 is specific to 

discharges to navigable waters and 

public receptors subsequently likely to 

be affected. 

This approach proposes the same 

planning distance parameters 

recommended for FWSE, but sets the 

toxic endpoints at the upper bound of 

the 10 percent of the RQ concentration 

value for mammalian oral toxicity for 

each of the RQ categories: X, A, B, C, 

and D. This extrapolates to lower 

concentrations that are more relevant to 

discharges of CWA hazardous 

substances near public receptors (see 

Table 8, below). 

While the original CWA hazardous 

substance RQs were based on aquatic 

toxicity, subsequent RQ adjustments 

updated the RQ levels to account for 

mammalian toxicity (oral, inhalation, 

and dermal), as well as other 

physicochemical properties.26 A 

substance was rated as toxic based on its 

LC50 or lethal dose 50 percent (LD50) 

value, which is the concentration or 

dose of a substance which causes the 

death of 50 percent of a defined 

experimental animal population. Upperbound toxicity values were identified 

for each of the three intervals. These 

values were correlated with a 5,000-lb 

RQ value. An upper-bound oral 

(ingestion) toxicity value of 500 mg/kg 

was adopted based on the assumption of 

a ‘‘standard man’’ (70 kg body weight, 

swallow volume of 21 cubic 

centimeters) being exposed to a 

situation which would allow him to 

take one swallow of a CWA hazardous 

substance. Once the upper-bound 

toxicity levels were chosen, the toxicity 

ranges in Table 8 for the 1-, 10-, 100-, 

1000-, and 5,000-lb RQ categories were 

scaled for mammalian toxicity in the 

same ratios as the ranges for aquatic 

toxicity. 

The mammalian oral toxicity values, 

which are of interest for CWA 

hazardous substance discharges to water 

and human exposure (i.e., public 

receptors), correspond with the aquatic 

toxicity ranges (presented in mg/kg and 

mg/L). Because these are both parts per 

million, EPA proposes using the mg/L 

concentrations relevant to water in 

Appendix B of 40 CFR part 118. The 

lower end of the toxicity levels is 

effectively 10 percent of the upper 

bound. For category X, the lower bound 

is effectively zero, though by taking 10 


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27Additional information on the toxicity values 

reviewed is available in the TBD. 

percent of the upper bound, EPA established a proposed concentration of 

0.01 mg/L. 

TABLE 8—PROPOSED CONCENTRATIONS FOR PUBLIC RECEPTORS

Category RQ 

(lbs) 

Mammalian toxicity (oral) 

(mg/kg) 10% 

(mg/kg) 

Aquatic toxicity (mg/L) 

10% 

(mg/L) 

Lower Upper Lower Upper 

X ................................... 1 0 0.1 0.01 0 0.1 0.01 

A ................................... 10 0.1 1 0.1 0.1 1 0.1 

B ................................... 100 1 10 1 1 10 1 

C ................................... 1,000 10 100 10 10 100 10 

D ................................... 5,000 100 500 50 100 500 50 

While this approach does not account 

for inhalation toxicity, EPA concluded 

that any air releases (even from a liquid 

discharge to navigable water) are more 

appropriately covered under the CAA. 

This proposal is focused on worst case 

discharges to navigable water, due to the 

statutory authority upon which this 

action is based, however, EPA notes that 

exposure pathways are complex. In 

some scenarios, aerial deposition on 

waterways may be an important 

exposure pathway for public receptors 

and FWSE. EPA solicits comment on the 

appropriateness of requiring facility 

owners or operators to assess whether 

worst case discharges could cause injury 

to public receptors via inhalation 

exposures to either the parent 

compounds or degradation byproducts 

(e.g., phosgene emanating from 

chlorinated solvents exposed to high 

temperatures) and/or following 

volatilization followed by aerial 

deposition on waterways of concern. 

EPA is proposing in § 118.11 that CWA 

hazardous substance FRPs consider 

potential inhalation risks in the hazard 

evaluation, discharge detection systems, 

and response resources. 

ii. Alternative Approaches 

EPA reviewed several information 

sources for human health toxicity values 

and associated endpoints for public 

receptors including: EPA Integrated Risk 

Information System (IRIS) reference 

doses or reference concentrations, 

National Institute for Occupational 

Safety and Health’s (NIOSH) 

Immediately Dangerous to Life or Health 

(IDLH), Acute Exposure Guideline 

Levels for Airborne Chemicals (AEGLs), 

Emergency Response Planning 

Guidelines (ERPGs), Minimum Risk 

Levels (MRLs), and Provisional 

Advisory Levels for Hazardous Agents 

(PALs). Of these, AEGLs, IDLHs, and 

ERPGs are relevant to emergency 

response, but are based on inhalation 

toxicity tests not relevant to water 

discharge exposures. While PALs are 

potentially relevant, they are available 

for only six CWA hazardous substances. 

Additionally, PALs toxicity values are 

not provided for acute exposures of less 

than 24 hours and EPA judged that 

shorter exposures are more relevant for 

the emergency discharge scenarios 

covered by this rulemaking. Similarly, 

while MRLs are established for 88 of the 

CWA hazardous substances, they have 

acute exposures for only 24 hours (not 

less than 24 hours).27

EPA also considered a stratified 

approach, which would first apply 

MRLs for those 88 CWA hazardous 

substances for which MRLs exist, 

followed by 10 percent of the CWA RQ 

toxicity bounds provided to create the 

RQ categories in 40 CFR part 117. Using 

the MRLs may provide a more accurate 

representation of human exposure risk. 

However, the MRLs do not use an acute 

toxicity value that would be appropriate 

for this action. Under a discharge to 

water scenario, the duration of human 

exposure should be at most hours, and 

not over one day. Additionally, a 

stratified approach may be overly 

complicated and difficult for regulated 

entities to understand and implement. 

Finally, EPA considered not including 

ability to cause injury to public 

receptors as a substantial harm criterion. 

The Agency anticipates that the greatest 

risk to human health is through 

drinking water contamination, which 

would be covered under the substantial 

harm criterion of the ability to adversely 

impact public water systems. This 

approach would omit any specific 

substantial harm criteria for public 

receptors. It is unclear how many public 

receptors would be impacted by a worst 

case discharge of a CWA hazardous 

substance. 

However, not accounting for human 

health effects beyond public water 

system impacts may be shortsighted. An 

assumption of no prolonged exposure 

relies on timely detection, notification, 

and response, which cannot necessarily 

be assumed, particularly if there are no 

CWA hazardous substance FRP 

requirements for the facility. 

EPA solicits comment on the 

appropriateness of its proposed 

definition of public receptor, including 

ability to cause injury to public 

receptors as a substantial harm criterion, 

EPA’s approach to air releases, the 

proposed approach, and alternative 

approaches, including supporting 

rationale and data. 

d. Reportable Discharge History 

i. Proposed Approach 

EPA is proposing in § 118.3(c)(4) to 

include reportable discharge history as 

a substantial harm criterion. A discharge 

at or exceeding the RQ, as listed in 40 

CFR 117.3, that violates CWA section 

311(b)(3) (i.e., reaches navigable waters 

or adjoining shorelines) is a reportable 

discharge. If a facility that meets the 

screening criteria has had a reportable 

discharge within the last five years that 

reached water, the facility would be 

considered a facility that has the 

potential to cause substantial harm in 

the event of a worst case discharge. 

40 CFR 117.21 outlines requirements 

to report CWA hazardous substance 

discharges. Once a facility owner or 

operator has knowledge of a discharge at 

or exceeding the RQ, they must report 

the discharge in accordance with 33 

CFR part 153.203 (i.e., to the NRC or, if 

not practicable, to the USCG or EPA 

predesignated OSC for the geographic 

area where the discharge occurred). This 

reporting requirement serves as a trigger 

for informing the government of a 

discharge so that Federal personnel can 

evaluate the need for a response action 

and undertake any necessary action in 

a timely fashion in accordance with the 

NCP. 

ii. Alternative Approaches 

EPA considered an alternative 

approach where a reportable discharge 

would include a discharge above the RQ 

that may not have impacted water. EPA 

anticipates this approach would be 


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28See 40 CFR 300.5, Size classes. 29See 40 CFR 68.25(h), 68.28(d). 

more protective in that it would capture 

more discharges and thus result in more 

facilities meeting this substantial harm 

criterion. Further, initial reporting to the 

NRC is often done with incomplete 

information and before it is clear 

whether a discharge has violated CWA 

section 311(b)(3) and a review of these 

reports may not accurately identify 

circumstances where facilities have 

impacted navigable waters. However, 

EPA concluded that it is more 

appropriate to remain consistent with 

CWA statutory authority when 

establishing substantial harm criteria, 

including specifically considering 

instances where discharges violate CWA 

section 311(b)(3). 

EPA also looked to the NCP to 

identify whether that would help to 

establish an appropriate basis for a 

reportable discharge quantity to 

determine the potential to cause 

substantial harm. However, The NCP 

does not provide a quantitative value for 

major releases of hazardous substances. 

Instead, the NCP states that a major 

release of a hazardous substance poses 

a substantial threat to public health or 

welfare or the environment, or results in 

significant public concern. The OSC 

makes the final determination of the 

appropriate classification of a hazardous 

substance release based on the specifics 

of the particular release scenario.28

Regulated facilities would need to 

determine whether any of their releases 

in the past five years have met the major 

release definition. Facilities exceeding 

the onsite threshold quantity of CWA 

hazardous substances that are within 

one-half mile of navigable water and 

that have also had a major discharge 

would self-certify as meeting substantial 

harm criteria and be required to submit 

a CWA hazardous substance FRP. This 

may be difficult to evaluate and enforce, 

since there are no metrics to consider in 

the NCP definition of size classes for 

this approach. 

EPA also considered not including 

reportable discharge history as a 

substantial harm criterion. This would 

simplify this substantial harm 

determination but may not be a logical 

approach, since EPA determined that 

discharge history can be a reliable 

indicator of future discharge potential. 

EPA solicits comment on including 

reportable discharge history as a 

substantial harm criterion, the time 

horizon for discharge history to be 

examined, as well as on whether EPA 

should use the RQ, a discharge that 

reached water, some other metric, and/ 

or a ‘‘major release’’ of a hazardous 

substance as defined in the NCP to 

determine which discharges should be 

considered for this criterion, as well as 

supporting rationale and data. 

e. Other Substantial Harm Criteria 

Considerations 

i. Climate Change Risk Considerations 

EPA recognizes that the potential to 

cause substantial harm to the 

environment is not static and evolves 

over time as factors at the facility 

change, especially factors related to the 

changing climate and the corresponding 

increase in adverse weather events and 

their severity. EPA considered a 

forward-looking approach where a 

facility owner and operator would 

determine the facility’s vulnerability to 

climate change impacts in terms of 

discharge potential due to flooding, 

increased extreme weather events, and 

other changes, such as sea level rise and 

subsidence. 

EPA judged that the proposed criteria, 

which rely on consideration of adverse 

weather conditions (see Section 

IV.A.3.b.i of this preamble), capture this 

forward-thinking approach; however, 

the Agency is particularly interested in 

feedback on how best to ensure ongoing 

consideration of climate risks in 

preparing for CWA hazardous substance 

worst case discharges. EPA solicits 

comments, suggestions and supporting 

rationale and data on how best to 

incorporate climate risks into CWA 

hazardous substance FRPs. 

ii. Consideration of Passive Mitigation 

Measures and Administrative Controls 

EPA considered including lack of 

adequate secondary containment as a 

substantial harm criterion for this action 

but concluded this would be difficult 

for regulated entities to implement and 

for EPA to enforce for CWA hazardous 

substances. 

First, secondary containment may not 

be an appropriate discharge prevention 

measure for all CWA hazardous 

substances. CWA hazardous substances 

vary widely in physicochemical 

properties and prevention and response 

strategies correspondingly differ based 

on the substance. Prescribing specific 

containment requirements for each of 

the 296 CWA hazardous substances as 

well as mixtures would be difficult to 

determine and evaluate and may be 

inappropriate for some substances 

altogether. Requirements to prevent 

CWA hazardous substances discharges 

are based on many different regulatory 

regimes and industry standards and 

thus may be difficult for an inspector to 

assess. 

Further, EPA is proposing in § 118.6 

to allow facility owners and operators to 

appeal their substantial harm 

determination. This appeal can include 

consideration of prevention measures 

and/or secondary containment and/or 

reduce their worst case discharge 

planning quantity using the process. 

Therefore, a substantial harm criterion 

for adequate secondary containment is 

not necessary. 

EPA also considered proposing to 

allow for passive mitigation and 

administrative controls in distance 

planning for a worst case discharge to 

FWSE, public water systems, and public 

receptors in § 118.10 to further 

encourage facilities to use secondary 

containment or other prevention 

measures, where appropriate. Passive 

mitigation could be defined as 

equipment, devices, or technologies that 

function without human, mechanical, or 

other energy input, but not active 

mitigation systems, if such systems are 

capable of withstanding destructive 

events (e.g., fires, explosions, floods, 

hurricanes, and earthquakes). Scenarios 

involving passive mitigation systems 

that have connections to the 

environment (such as a rainwater drain 

valve) would have to assume failure of 

that connection. The threat of natural 

disasters would be specific to certain 

geographic regions, and sources could 

certify that their passive mitigation 

meets or exceeds local natural disaster 

design standards as capable of 

withstanding destructive natural events. 

USTs might also be considered a passive 

mitigation system for liquids. This 

would be similar to the RMP program’s 

allowance of passive mitigation in 

offsite consequence analyses.29 EPA did 

not take that approach in this proposed 

regulation because in the event of a 

worst case discharge during adverse 

weather conditions, it is entirely likely 

that passive mitigation measures or 

administrative controls could fail. 

EPA solicits comment on whether and 

how to include passive mitigation 

measures, such as secondary 

containment, and administrative 

controls in determining substantial 

harm, as well as whether to consider 

passive mitigation and administrative 

controls in planning distance 

calculations. EPA also solicits comment 

and data on CWA hazardous substances 

for which secondary containment and/ 

or passive mitigation might not be 

appropriate. Additionally, EPA solicits 

comment on examples of secondary 

containment, passive mitigation 

measures, or administrative controls 

that mitigated discharges thereby 

avoiding a CWA section 311(b)(3) 

violation. 


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iii. Transfers Over Water 

EPA considered, but did not choose to 

propose, a separate threshold quantity 

for facilities that transfer CWA 

hazardous substances to or from vessels 

over water as a ‘‘substantial harm’’ 

criterion. The Oil Pollution Prevention 

FRP requirements in 40 CFR part 112 

contain provisions for facility transfers 

of oil over water to and from vessels and 

has a total oil storage capacity greater 

than or equal to 42,000 gallons. EPA 

lacks information on these types of 

facilities for CWA hazardous substances 

and on whether those facilities pose a 

greater threat to human health and the 

environment. 

In 2000, the USCG estimated that 225 

companies owned approximately 450 

facilities transferring bulk chemicals to 

or from vessels in the United States (65 

FR 17416, March 31, 2000). This 

estimate did not account for chemicals 

on the CWA hazardous substances list 

(40 CFR 116.4). The number of facilities 

under EPA jurisdiction with transfer 

operations over water of CWA 

hazardous substances is unknown. The 

USCG proposed (65 FR 17416, March 

31, 2000) that all MTR facilities that 

transfer any bulk CWA hazardous 

substances to vessels be designated as 

‘‘significant and substantial harm’’ 

facilities unless otherwise reclassified 

by the Captain of the Port. 

In establishing a threshold for overwater transfers, EPA also considered 

proposing to use the same ratio as the 

Oil Pollution Prevention FRP program 

threshold quantity for oil storage 

capacity for facilities that do not transfer 

over water (1,000,000 gallons) to those 

that transfer over water (42,000 gallons) 

to CWA hazardous substances. In this 

approach, facilities meeting initial 

screening criteria and transferring 

approximately 4 percent of the RQ 

10,000 multiplier over water would 

automatically be considered to meet the 

substantial harm criteria and be 

required to prepare and submit a CWA 

hazardous substance FRP. Alternatively, 

EPA considered proposing another 

lower multiplier of the RQ (e.g., 10x, 

100x) as the threshold amount for 

facilities transferring CWA hazardous 

substances over water. EPA did not 

adopt these approaches because the 

Agency lacks information about these 

types of CWA hazardous substance 

facilities and their potential to cause 

substantial harm to the environment. 

EPA solicits comment on these 

approaches to develop a substantial 

harm criterion for facilities that transfer 

CWA hazardous substances over water, 

including whether EPA should include 

a criterion for facilities transferring 

CWA hazardous substances over water, 

what threshold quantity would be 

appropriate for these facilities, and 

whether EPA should consider a blanket 

determination that these facilities pose 

both significant and substantial harm to 

the environment. EPA further requests 

data or information on the number and 

types of facilities conducting CWA 

hazardous substance over-water 

transfers currently operating in the 

United States. 

f. Regional Administrator (RA) 

Determinations of Substantial Harm and 

Significant and Substantial Harm 

The CWA directs the President to 

develop criteria to identify those 

facilities that could reasonably be 

expected to cause substantial harm to 

the environment. Consistent with the 

approach in 40 CFR part 112 for oil 

FRPs, EPA concluded that the RA has 

the authority to require CWA hazardous 

substance FRPs, after consideration of 

site-specific factors for a facility, 

regardless of whether a facility meets 

the criteria in proposed § 118.3. In 

§ 118.5(a), EPA is proposing language 

that identifies the RA authority and the 

notification requirements and timeframe 

within which the facility owner or 

operator must submit the plan. EPA 

judged that this is appropriate for CWA 

hazardous substances due to the wide 

variability in the substances themselves, 

how they are used and stored, 

surrounding communities, and other 

local considerations of which the RA 

will have considerable knowledge. 

To determine whether a facility could 

reasonably be expected to cause 

substantial harm following a CWA 

hazardous substance worst case 

discharge, EPA is proposing factors for 

the RA to evaluate in § 118.5(b). The RA 

can consider transfer operation type; 

CWA hazardous substance quantities 

and categories onsite; proximity to 

FWSE and other areas that possess 

ecological value; ability to adversely 

impact public water systems; location in 

a SWPA; ability to cause injury to 

public receptors; reportable discharge 

history; lack of passive mitigation 

measures, including measures that 

enhance resilience to climate change; 

potential for a worst case discharge to 

cause harm to communities with 

environmental justice concerns; 

potential vulnerability to climate 

change; or other site-specific 

characteristics and environmental 

factors that the RA determines to be 

relevant to protecting the public or 

environment from substantial harm by 

CWA hazardous substances discharges 

into navigable waters. These factors 

provide flexibility for EPA to identify 

those facilities that could cause 

substantial harm to the environment 

that might not otherwise fit the criteria 

proposed in this action. 

Furthermore, the CWA directs the 

President to develop criteria to identify 

a subset of the substantial harm 

facilities that could reasonably be 

expected to cause both significant and 

substantial harm to the environment. 

EPA is proposing in § 118.5(d) that the 

RA can consider, in addition to the 

substantial harm criteria found in 

§§ 118.3(c) and 118.5(b), factors that 

include: Frequency of past reportable 

discharges; proximity to navigable 

waters or conveyances to navigable 

waters; age of equipment; potential for 

hazards such as flooding, hurricanes, 

earthquakes, or other disasters that 

could result in a worst case discharge; 

and other facility-specific and Regionspecific information, including local 

impacts on public health. The Agency 

concluded that these considerations, in 

addition to the substantial harm criteria 

proposed in §§ 118.3(c) and 118.5(b), 

provide a flexible, risk-based approach 

to designating facilities that meet 

substantial harm or significant and 

substantial harm criteria. By allowing 

the RA to consider a wide variety of 

data points and local considerations, he 

or she can appropriately target those 

CWA hazardous substance facilities 

posing a significant and substantial 

harm to human health or the 

environment to prepare CWA hazardous 

substance FRPs and require EPA 

approval of those plans. 

Consistent with CWA requirements, 

EPA is proposing to specify actions that 

EPA will take to review CWA hazardous 

substance FRPs in § 118.5(c). This 

includes promptly reviewing plans, 

requiring amendments, approving plans, 

and reviewing plans on a schedule. 

Finally, EPA is proposing in § 118.6 a 

process for facility owners or operators 

to appeal the substantial harm or 

significant and substantial harm 

determinations. See Section IV.C. of this 

preamble for further discussion. 

EPA solicits comments on these 

provisions and supporting rationale or 

data for alternative approaches. 

3. Other Applicability Criteria 

a. Exceptions 

EPA analyzed applicability 

exceptions for major EPA and Federal 

non-EPA hazardous substances 

regulations. EPA also reviewed industry 

and use-specific exemptions in EPA 

hazardous substances programs. These 

exceptions can extend so far as to 

exclude facilities storing or using 

hazardous substances in exempted 


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30See 33 CFR 154.108. 31See 33 U.S.C. 1321(a)(24). 

categories from all requirements of the 

program. 

EPA is proposing in § 118.8(a)(4) to 

except USTs as defined in 40 CFR part 

280 from the regulatory requirements in 

this action. This proposed exception 

aims to reduce the burden of 

overlapping regulatory requirements. 

Under 40 CFR part 280, a hazardous 

substance UST is defined as an 

underground storage tank system 

containing a hazardous substance 

defined in section 101 of CERCLA, 

including mixtures of substances with 

petroleum, which is not a petroleum 

UST system. For the hazardous 

substances UST program, owners and 

operators must report releases to the 

Agency within 24 hours, take immediate 

action to prevent any further release of 

the substance, and identify and mitigate 

fire, explosion, and vapor hazards. 

USCG regulates facilities transferring 

oil or hazardous materials in bulk and 

considers exemption requests from 

facilities.30 USCG reviews exemption 

requests to determine that compliance 

with the regulatory requirement is 

economically or physically impractical; 

that no alternative procedures, methods 

or equipment standards exist that would 

provide an equivalent level of safety 

from pollution by hazardous materials; 

and the likelihood of discharge does not 

increase as the result of an exemption. 

EPA addresses this petition issue 

(discussed in detail in Section IV.C.4 of 

this preamble) through proposing to 

adopt language allowing facilities to 

request reconsideration of substantial 

harm status from the RA. Therefore, the 

Agency is not proposing to adopt 

language allowing facilities to request 

reconsideration of substantial harm 

status from the RA as an exemption but 

solicits comment on whether a similar 

provision is needed for this proposed 

regulation. 

b. Threshold Exemptions 

Several hazardous substance 

regulations, under both EPA and other 

Federal agencies, exempt the counting 

of hazardous substances with specific 

uses towards the calculation of the 

threshold quantity. EPA is proposing in 

§ 118.8(b) to exempt articles and 

specific uses including in use as a 

structural component of the facility; use 

of products for routine janitorial 

maintenance; use by employees of 

foods, drugs, cosmetics, or other retail 

and personal items containing the CWA 

hazardous substance; process water or 

cooling water; use of CWA hazardous 

substances present in process water or 

non-contact cooling water as drawn 

from the environment or municipal 

sources; use of CWA hazardous 

substances present in air used either as 

compressed air or as part of combustion; 

and retail and personal uses. 

The intent of these exemptions is to 

reduce the burden of incorporating 

limited quantities of hazardous 

substances contained within articles 

and other products listed, which are 

unlikely to be discharged in a worst case 

scenario. EPA proposes to adopt these 

exemptions in counting CWA hazardous 

substances toward total threshold 

quantity calculations. 

c. Alternative Exceptions and 

Exemptions 

EPA solicits comments and rationale 

for excluding any industries, product 

types, or uses for both excepted from all 

regulatory requirements (§ 118.8(a) 

Exceptions) as well as in threshold 

quantity calculations (§ 118.8(b) 

Exemptions). 

4. Worst Case Discharge Calculations 

In § 118.2, EPA is proposing a 

regulatory definition for worst case 

discharge for onshore nontransportation-related facilities. 

Specifying the definition is necessary 

for a facility owner or operator to 

determine a planning quantity that 

corresponds to the largest foreseeable 

amount of a CWA hazardous substance 

that could be discharged under worst 

case circumstances when preparing a 

response plan, and to determine 

distance to endpoints for applicability. 

EPA is proposing a definition for 

distance to endpoint in § 118.2 as the 

distance a CWA hazardous substance 

will travel before dissipating to the 

point that a worst case discharge will no 

longer cause injury to public receptors 

or fish, wildlife, and sensitive 

environments as in proposed Appendix 

B or adversely impact a public water 

system as in proposed § 118.3(c)(2). The 

facility’s worst case discharge quantity 

will significantly affect the response 

resources and equipment necessary to 

implement the plan. The CWA defines 

a worst case discharge as the largest 

foreseeable discharge in adverse 

weather conditions.31 EPA is proposing 

to adopt this definition in this action, 

consistent with the Oil Pollution 

Prevention FRP program and DOT’s 

worst case discharge regulations. EPA is 

proposing in § 118.10 that for all CWA 

hazardous substances, the worst case 

discharge scenario will represent the 

largest capacity container of a single 

CWA hazardous substance, which meets 

or exceeds the threshold quantity at the 

facility as a whole, in a container or 

group of interconnected containers. 

Therefore, the facility owner or operator 

need only to define one worst case 

discharge quantity regardless of how 

many CWA hazardous substances are 

present onsite. However, an FRP will 

need to identify and plan for all CWA 

hazardous substances with a maximum 

capacity on site that meets or exceed the 

threshold quantity. 

EPA recognizes that there are 

advantages and disadvantages to 

establishing a worst case discharge 

quantity for a facility. Specific 

information on the worst case discharge 

scenario will assist facility and public 

emergency planners and responders 

recognize the maximum hazard 

potential surrounding the facility. This 

allows planners to identify the 

necessary resources and equipment to 

respond to the worst case discharge 

from the facility. 

However, the worst case discharge 

scenario may be unlikely in comparison 

to other discharge scenarios with 

smaller quantities of CWA hazardous 

substances posing lesser potential 

consequences. Focusing on the worst 

case scenario alone, therefore, could 

lead facility owners and operators, 

public agencies, and the public to 

overestimate the threat posed by a 

facility and commit unnecessary 

resources for planning purposes. EPA 

solicits comment on the proposed 

definition of a worst case scenario, as 

well as the approach to focus on a single 

worst case discharge planning quantity 

for a facility that could have multiple 

CWA hazardous substances onsite. 

a. Adverse Weather Conditions 

The worst case discharge scenario is 

defined as the largest foreseeable 

discharge in adverse weather 

conditions. EPA is proposing in § 118.2 

to define adverse weather conditions as 

weather conditions that hinder response 

activities and that must be considered in 

identifying appropriate response 

strategies, tactics, and equipment, to 

include the potential for increased 

incidence and severity of extreme 

weather events due to climate change, 

as well as other climate change impacts. 

EPA judged that this definition is 

appropriately forward-looking and 

encompasses a wide range of potential 

weather conditions due to climate 

change that could affect a facility’s 

potential worst case discharge and 

response to such a discharge. EPA 

solicits comment on this definition and 

alternative language and considerations. 


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b. Worst Case Discharge Scenarios 

i. Proposed Approach 

In § 118.10, EPA is proposing to 

require facilities to develop one worst 

case discharge scenario for the container 

with the largest capacity of a CWA 

hazardous substance with a maximum 

capacity onsite that meets or exceeds 

the threshold quantity in one container 

or group of interconnected containers. 

This would capture the worst case 

discharge at the facility for CWA 

hazardous substances and be used to 

both determine applicability and for the 

FRP hazard evaluation. 

This action is focused on worst case 

discharges of CWA hazardous 

substances and EPA is not proposing to 

require planning for less than worst case 

discharge scenarios, as per the statutory 

authority. Additionally, planning for a 

worst case discharge should help ensure 

that the appropriate plans, response 

personnel, and equipment are ready 

should a less than worst case discharge 

occur. 

This approach may be problematic for 

some facilities such as batch processors 

and warehouses where the use of CWA 

hazardous substances or inventory may 

vary considerably. It also would not 

account for a facility that could have 

different worst case discharge scenarios 

reaching two different bodies of water or 

requiring different response resources 

under adverse weather conditions. 

ii. Alternatives to Proposed Worst Case 

Discharge Approach 

I. Additional Worst Case Scenarios if 

Response Equipment Differs 

EPA considered requiring one worst 

case scenario for the largest capacity 

container or group of interconnected 

containers at a facility and additional 

scenarios for additional CWA hazardous 

substances if the response equipment 

differs from the primary worst case 

scenario. One worst case discharge 

scenario would be defined for the 

largest capacity container of a single 

CWA hazardous substances above a 

threshold quantity or group of 

interconnected containers, as detailed in 

the proposed worst case discharge 

quantity. However, if the facility also 

has a second CWA hazardous substance 

that exceeds the threshold quantity 

which would require differing response 

equipment or procedures than the 

primary worst case scenario, the facility 

must develop a second worst case 

scenario. This would account for a 

facility that could have different CWA 

hazardous substances reaching different 

navigable waters, one CWA hazardous 

substance reaching multiple navigable 

waters, or different CWA hazardous 

substances reaching the same navigable 

waters but requiring different response 

equipment, which all occur in adverse 

weather conditions. However, this still 

may be problematic for some facilities 

such as batch processors and 

warehouses where use of CWA 

hazardous substances or inventory may 

vary considerably. 

II. Additional Worst Case Scenarios if 

Receptors Differ 

EPA also considered requiring one 

worst case scenario for each CWA 

hazardous substance with a maximum 

capacity onsite above the threshold 

quantity if different receptors would be 

affected and different response 

resources would be required. One worst 

case discharge scenario would be 

defined to represent each CWA 

hazardous substance above a threshold 

quantity in its largest container. A 

facility would be required to evaluate 

worst case scenarios for each CWA 

hazardous substance at the facility, 

unless it can show that no additional 

receptors (public water system, FWSE, 

or public receptors) would be impacted 

in a worst case discharge with the 

additional CWA hazardous substance(s) 

or categories of CWA hazardous 

substances. Each worst case scenario 

would include planning distance 

calculations. 

III. Additional Worst Case Scenarios 

Based on Hazard Class 

EPA considered requiring additional 

worst case discharge scenarios based on 

hazard classification. In this situation, 

an owner or operator would model a 

worst case discharge scenario for each 

hazard class of the CWA hazardous 

substances with a capacity onsite above 

a threshold quantity at his or her 

facility. Requiring scenarios based on 

hazard classification may clarify 

response requirements and ensure 

equipment and response resources 

available are appropriate to each class of 

hazardous substance present onsite, 

since response considerations are likely 

to be similar within hazard classes. 

Additionally, industry and responders 

should be familiar with these types of 

commonly used classification systems. 

Examples of common hazard 

classification systems are DOT’s hazard 

classification system found at 40 CFR 

173.2 or the CWA hazardous substance 

reportable quantity categories in 40 CFR 

117.3. 

EPA solicits comment on requiring 

additional worst case discharge 

scenarios based on hazard classification, 

including the preferred classification 

system and reasons for its use. 

IV. Alternative Discharge Scenarios 

EPA also considered requiring 

alternative discharge scenarios. This 

approach would require facility owners 

or operators to evaluate additional 

alternative discharge scenarios to 

account for more probable discharge 

scenarios and varying adverse weather 

conditions which could impact different 

downstream receptors compared to the 

worst case discharge. EPA recognizes 

that the worst case scenario may often 

be improbable compared to other 

discharge scenarios with potentially 

fewer and less serious consequences. 

Focusing on the worst case scenario 

alone, therefore, could lead facility 

planners, public agencies, and the 

public to overestimate the threat posed 

by a facility. Therefore, EPA considered 

requiring facilities to examine a range of 

events in addition to the worst case 

scenario, including more probable 

discharges, and communicating 

information on these events to public 

agencies and the public to provide 

additional information on the hazards 

posed by the facility. This approach 

would reflect disparate chemical risk 

and offsite consequences. However, it is 

unclear whether requiring facilities to 

examine more probable discharge 

scenarios would result in a different 

emergency response action as compared 

to the worst case discharge. 

Either the facility owner or operator 

or EPA would need to determine the 

appropriate number of alternative 

discharge scenarios to be evaluated. 

Although the worst case scenario is 

specifically defined, facilities are likely 

to use varying models and approaches 

to estimate offsite impacts, which may 

be appropriate in accounting for sitespecific conditions associated with 

other scenarios. 

EPA solicits comment on the worst 

case discharge number of scenarios, 

scenarios for different CWA hazardous 

substances onsite, quantity calculations, 

examining chain reactions of failures, 

methodologies, and the types of 

alternative discharge scenarios facilities 

should consider with supporting 

rationale and data. EPA also solicits 

comment on allowing consideration of 

active mitigation, which could be 

equipment, devices, or technologies that 

need human, mechanical, or other 

energy input to function, in worst case 

discharge scenarios. Examples of active 

mitigation for CWA hazardous 

substance discharges to land and water 

could include containment dams in 

onsite conveyances, culvert plugs, 

chemical neutralization, sorbent 

materials, and other measures. 


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c. Worst Case Discharge Distance to 

Endpoints 

EPA is proposing in § 118.10(b) that a 

facility owner or operator may use a 

methodology, model, or other technique 

that accounts for the stated 

requirements to calculate the distance to 

each endpoint. An owner or operator 

may use proprietary models provided 

that he or she allows EPA access to the 

model and describes the model’s 

features to local emergency planners, 

upon request. The stated requirements 

are: 

1. Identifying endpoints: This step in 

the process requires the identification of 

endpoints for each CWA hazardous 

substance. EPA is proposing endpoints 

in Appendix B for FWSE and public 

receptors. 

2. Calculating the distance to 

endpoints: Endpoints are critical in 

calculating distances from the nearest 

opportunity for discharge, within which 

human health and the environment 

could expect to be adversely affected. In 

addition to the characteristics of the 

CWA hazardous substances the FRP 

addresses, distances to endpoints are 

affected by planning quantities and 

impact analysis parameters. 

3. Compare endpoint concentration(s) 

against calculated concentration(s). 

The Agency recognizes facilities will 

need to have in-house expertise or hire 

consultants with such expertise to 

complete these offsite impact analyses. 

This may pose a significant resource 

burden on some facilities. The Agency 

requests comment on approaches to 

minimize this burden and ensure the 

results are useful for facility and local 

emergency planners. 

The Agency recognizes the limitations 

associated with simple, generic tools 

needed to cover a potentially wide 

variety of scenarios. It would be difficult 

to construct a generic methodology 

inclusive of all chemical characteristics 

and other site-specific parameters. As a 

result, a generic methodology will 

generally be less sensitive to these sitespecific conditions and therefore may 

provide less realistic estimates of offsite 

impacts. The Agency requests comment 

on this approach and requests input on 

possible innovative ways to assist 

facilities in offsite impact analysis that 

might reduce the burden and provide 

meaningful, useful results. 

d. Worst Case Discharge Quantity 

In § 118.10(a), EPA is proposing that 

the worst case planning quantity be 

based on the largest capacity container 

of a CWA hazardous substance or group 

of interconnected containers for a CWA 

hazardous substance with a maximum 

capacity onsite above the threshold 

quantity. For mixtures, an owner and 

operator should assume the entire 

capacity of the container holds the CWA 

hazardous substance with the lowest 

RQ. Using the container or 

interconnected containers with the 

largest storage capacity as a worst case 

discharge quantity provides a 

conservative approach by using the 

largest potential discharge quantity. It 

may also be simpler for both facilities 

and EPA to calculate storage capacity 

versus the maximum quantity stored in 

a single container or group of 

interconnected containers. 

Under CWA section 311, a worst case 

discharge is defined as the largest 

foreseeable discharge in adverse 

weather conditions, including a 

discharge resulting from fire or 

explosion. This quantity will be used in 

the distance planning calculation to 

determine whether a facility is 

considered to meet substantial harm 

criteria with respect to the various 

receptors. The worst case discharge 

quantity will also be used by the facility 

owner or operator to plan appropriate 

response resources, equipment, and 

actions. 

EPA considered but is not proposing 

to allow facilities to take written 

administrative controls that limit the 

maximum quantity in a container into 

account. EPA determined that these 

types of controls may be overridden or 

are easily overlooked, and thus may not 

be reliably counted on to limit 

quantities. EPA solicits comment on 

allowing administrative controls to be 

accounted for in worst case discharge 

quantity calculations. 

EPA is not proposing to apply a credit 

for single-facilities with existing 

secondary containment for the worst 

case discharge quantity for CWA 

hazardous substances. In the Oil 

Pollution Prevention FRP program 

(Appendix D to 40 CFR part 112), for the 

worst case discharge planning volume 

calculation at single-tank facilities, 

secondary containment credit is applied 

by multiplying the capacity of the tank 

by 0.8 (i.e., 80 percent of the tank 

capacity). Please see the discussion of 

secondary containment and passive 

mitigation in Section IV.A.2.e.ii of this 

preamble. 

For this action, interconnected 

containers are defined containers that 

are connected via pipes, hoses, or other 

conveyance to allow movement of a 

CWA hazardous substance between 

containers. In a worst case discharge 

scenario, a single failure could cause the 

discharge of the contents of more than 

one container if they are interconnected. 

The owner or operator must provide 

evidence in the response plan that 

containers with common piping or 

piping systems are not operated as one 

unit. If such evidence is provided and 

is acceptable to the RA, the worst case 

discharge planning quantity would be 

based on the largest CWA hazardous 

substance maximum capacity onsite in 

interconnected containers without 

common piping systems or in one 

container, whichever is greater. 

EPA solicits comment on the 

proposed definition of worst case 

discharge quantity, calculation of the 

worst case discharge quantity based on 

capacity, mixtures, and a secondary 

containment or passive mitigation 

reduction. 

5. Substantial Harm Certification Form 

a. Proposed Approach 

EPA is proposing a Substantial Harm 

Certification Form in 40 CFR part 118 

Appendix A that includes the 

substantial harm criteria and additional 

data requirements. The proposed form 

includes fields to capture the screening 

and substantial harm criteria, as well as 

the names, Chemical Abstract Service 

Registry Numbers (CASRN), and 

quantities of onsite CWA hazardous 

substances, distance planning 

calculations, impact analysis, model 

schema and data dictionaries, if not 

already vetted by industry and 

academia. 

In § 118.4(c), EPA is proposing that all 

facilities that meet the CWA hazardous 

substances threshold quantity in 

§ 118.3(a) and the proximity to 

navigable waters criterion in § 118.3(b) 

must complete the Substantial Harm 

Certification Form proposed in 

Appendix A of this action. This 

includes all facilities that meet criteria 

in § 118.3(a) and (b), regardless of 

whether they meet the substantial harm 

criteria pursuant to § 118.3(c). In 

accordance with § 118.4(c)(1), the 

facility owner or operator must 

complete and submit to the RA the 

certification form contained in 

Appendix A to this part within one 

month of the compliance date proposed 

in this action (See Section IV.C.2 of this 

preamble for a discussion of proposed 

compliance dates) or, for new facilities, 

within one month of meeting the 

§ 118.3(a) and (b) criteria. All owners or 

operators required to complete the 

substantial harm certification form 

would submit the form to the RA as well 

as maintain the form onsite so that it is 

available during compliance 

inspections. EPA is further proposing in 

§ 118.4(c)(3) that the owner or operator 

submit updates to the RA every five 

years or within 60 days of a change at 


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32See OPA Conference Report, H.R. Rep. No. 

101–653, 101st Cong., 2d Sess. 1990 at p. 150. 

or outside of the facility (e.g., 

construction of a new water intake) that 

impacts the facility’s potential to cause 

substantial harm to the environment in 

accordance as outlined in § 118.3. This 

ensures that the facility review their 

potential to cause substantial harm to 

the environment periodically and that 

EPA has access to updated information 

in a timely manner. This proposed 

approach is based on the Oil Pollution 

Prevention FRP program, in which 

facility personnel must complete, and 

maintain at the facility, a certification 

form which identifies substantial harm 

information for the facility (see 40 CFR 

part 112 Appendix C, Attachment C–II). 

The form is required of all SPCCregulated facilities and requires 

signature by the certifier for the facility. 

EPA is proposing in § 118.4(c)(2) that 

the facility attach information that 

demonstrates the reliability and 

analytical soundness of the substantial 

harm evaluation as well as a review of 

potential receptors that could be 

impacted as a result of a CWA 

hazardous substance discharge. The 

additional information would assist 

EPA in making compliance 

determinations as well as provide 

sufficient information to identify those 

facilities that could reasonably be 

expected to cause significant and 

substantial harm to the environment. 

EPA proposes that the Substantial 

Harm Certification Form found in 

Appendix A include a value for ‘‘Parent 

Company’’ that comports with the 

definition proposed in Parent Company 

Definition for TRI Reporting (86 FR 

53577, September 28, 2021). This would 

provide consistency across programs 

and aid in compliance and enforcement 

activities. 

EPA requests comment on the 

proposed approach to require a 

Substantial Harm Certification Form. 

EPA further requests comment on the 

information requested in the 

certification form proposed in Appendix 

A, the requested supporting 

documentation, and the timeframes for 

submitting and updating the 

information. 

b. Alternative Approaches 

EPA also considered, but did not 

propose, requiring facilities that meet 

the initial screening criteria in § 118.3(a) 

and (b) to maintain the form only onsite, 

rather than submit it to EPA. Under the 

Oil Pollution Prevention regulation (40 

CFR part 112), SPCC plans are not filed 

with EPA, but FRP facilities must 

submit FRP plans for review, and 

approval as appropriate. Under this 

onsite only approach, the burden on 

facilities to submit the form, and on 

EPA to maintain the data, would be 

reduced. However, the largest burden 

related to the certification form is the 

planning distance calculation and 

impact evaluation. Regardless of 

whether EPA requires this information 

in the certification form, the facilities 

would be required to complete planning 

distance calculations and submit their 

supporting documentation to EPA. 

EPA also considered requiring 

facilities to submit their information 

electronically. EPA determined that 

electronic submission and management 

of CWA hazardous substance FRPs 

would simplify the process for both 

industry and the Agency. Using this 

type of system would allow industry to 

easily submit and make changes and 

amendments to their plans, while EPA 

could review, require amendments, and 

approve plans. However, such a system 

could be costly to set up and maintain. 

An electronic submission and review 

system could also be used to provide the 

public with access to all or some of the 

submitted data from facility owners and 

operators, which allows for 

transparency and availability of data to 

the public including communities with 

environmental justice concerns and 

those vulnerable to climate change 

impacts. EPA chose not to specify 

electronic submission in the regulatory 

text to allow flexibility in implementing 

regulatory requirements based on 

available resources. 

EPA solicits comment on these 

approaches. Specifically, EPA solicits 

comment on whether to make the 

Substantial Harm Certification form 

available to the public, including 

methods, systems, and data elements 

that should be shared, as well as 

alternatives to the proposed approach, 

including supporting data and rationale. 

B. Response Planning 

This proposed rulemaking is specific 

to the requirements in CWA section 

311(j)(5) for facilities that, because of 

their location, could reasonably be 

expected to cause substantial harm to 

the environment by discharging CWA 

hazardous substances into or on the 

navigable waters. Additionally, these 

proposed regulations would require an 

owner or operator of a covered facility 

to prepare and submit to the EPA a plan 

for responding, to the maximum extent 

practicable, to a worst case discharge, 

and to a substantial threat of such a 

discharge, of a CWA hazardous 

substance. 

EPA is proposing to define 

‘‘maximum extent practicable’’ as 

within the limitations used to determine 

CWA hazardous substance discharge 

planning resources for recovery, 

shoreline protection, and cleanup for 

worst case discharges from onshore nontransportation-related facilities in 

adverse weather, as appropriate. It 

includes the planned capability to 

respond to a worst case discharge in 

adverse weather, as described in a CWA 

hazardous substance FRP. This planned 

capability may require planning for 

actions other than containment and 

recovery of discharged CWA hazardous 

substances. 

With regard to the involvement of 

Federal response resources in 

determining maximum extent 

practicable, EPA notes that one major 

objective of the OPA 90 amendments to 

section 311(j)(5) of the CWA was to 

create a system in which private parties 

supply the bulk of response resources 

needed for an oil spill response in a 

given area.32 While a worst case 

discharge of hazardous substances will 

likely require the use of both public and 

private resources, section 

311(j)(5)(D)(iii) states specifically that 

facility owners or operators must 

identify and ensure by contract or other 

means the availability of private 

personnel and equipment necessary to 

respond to the maximum extent 

practicable to a worst case discharge. 

EPA is proposing in § 118.11 

requirements that ensure access to 

certain information and equipment 

during a response and the availability of 

appropriate technical expertise, as 

necessary. Certain requirements mirror 

those found in the Oil Pollution 

Prevention FRP regulation and others do 

not. A written plan that complies with 

other Federal contingency plan 

regulations or is consistent with the 

approach in the National Response 

Team’s Integrated Contingency Plan 

Guidance (‘‘One Plan’’) and that 

includes the elements required would 

satisfy the requirements of this 

proposed rule. Facilities may augment 

an existing response plan with 

requirements that are specific to this 

action. 

The proposed requirements below 

closely follow those required by the Oil 

Pollution Prevention FRP regulation, 

with some modifications to address 

concerns specific to CWA hazardous 

substances. 

1. Consistency With the NCP and ACPs 

The CWA section 311(j)(5)(D)(i) 

requires that response plans, ‘‘. . . be 

consistent with the requirements of the 

[NCP] and [ACPs] . . .’’ The NCP is the 

Federal government’s blueprint for 

responding to both oil spills and 


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33See OPA Conference Report, H.R. Rep. No. 

101–653, 101st Cong., 2d Sess. 1990 at p. 151. 

hazardous substance discharges. The 

NCP is the result of efforts to develop 

a national response capability and 

promote coordination among the 

hierarchy of responders and 

contingency plans. Congress has 

broadened the scope of the NCP over the 

years. As required by the CWA of 1972, 

the NCP was revised to include a 

framework for responding to hazardous 

substance releases, as well as oil spills. 

OPA 90 further amended the CWA to 

establish Area Committees to create 

ACPs that, when implemented in 

conjunction with the NCP and RCPs, be 

adequate to remove a worst case 

discharge, and to mitigate or prevent a 

substantial threat of such a discharge, of 

oil and of hazardous substances, 

amongst other requirements. 

ACPs are mandated under CWA 

section 311(j)(4) and prepared by Area 

Committees comprised of members 

appointed by the President from 

qualified Federal, state, and local 

agency personnel. The term ‘‘ACP’’ is 

used generically to represent the 

applicable ACP, RCP, Regional 

Integrated Contingency Plan, etc., as 

geographically relevant to the area(s) 

under discussion. When implemented 

in conjunction with the NCP, ACPs 

must be adequate to remove a worst case 

discharge, and to mitigate or prevent a 

substantial threat of such a discharge, 

from a facility operating in or near the 

area covered by the plan. ACPs cover 

discharges affecting all navigable waters 

and adjoining shorelines. Under E.O. 

12777, EPA and the USCG are 

responsible for establishing Area 

Committees for the inland and coastal 

zones, respectively. In the inland zones 

for which EPA has jurisdiction, ACPs 

have been completed by Area 

Committees and approved by EPA. The 

ACP process is dynamic, and Area 

Committees will continue to refine the 

ACPs to provide more detailed 

information on protection priorities, 

develop protection strategies, and 

identify appropriate cleanup strategies 

for inland areas. Area Committees have 

the option to further subdivide their 

areas into smaller, geographically 

distinct subareas and develop 

geographic-specific annexes for these 

subareas. Members of the public may 

contribute to the ACP refinement 

process through communication with 

Area Committees in the development of 

geographic-specific annexes. 

In § 118.11(a)(1), EPA is proposing 

that CWA hazardous substance FRPs 

shall be consistent with the 

requirements of the NCP and applicable 

ACPs prepared pursuant to section 

311(j)(4) of the CWA. Additionally, the 

owner or operator shall review relevant 

portions of the NCP and applicable ACP 

annually and, if necessary, revise the 

CWA hazardous substance FRP to 

ensure consistency with these plans. 

EPA solicits comment on this approach. 

2. LEPC or TEPC Coordination 

The OPA Conference Report states 

that Oil Pollution Prevention FRPs 

should be consistent with plans 

prepared under other programs, and that 

any information developed under CWA 

section 311(j) should be made available 

to SERC or TERC and LEPC or TEPC.33

Consistent with that approach, for CWA 

hazardous substances the EPA is 

proposing in § 118.12 that a CWA 

hazardous substance FRP should be 

consistent with the local emergency 

response plan for the community in 

which the facility is located. To ensure 

consistency, facility owners or operators 

should coordinate FRPs with their LEPC 

(or TEPC) local emergency response 

plan developed under EPCRA section 

303. In addition, upon request by the 

SERC (or TERC) and LEPC (or TEPC), 

the facility should provide a copy of the 

CWA hazardous substance FRP. 

EPA has examined numerous 

examples of emergency planning 

coordination in existing regulations. 

Under the Oil Pollution Prevention FRP 

regulation, 40 CFR 112.20(g)(1), ‘‘The 

facility response plan should be 

coordinated with the local emergency 

response plan developed by the local 

emergency planning committee under 

section 303 of Title III of the Superfund 

Amendments and Reauthorization Act 

of 1986 (42 U.S.C. 11001 et seq.). Upon 

request, the owner or operator should 

provide a copy of the facility response 

plan to the local emergency planning 

committee or State emergency response 

commission.’’ 

The RMP rule has an equivalent 

provision under section 68.95(c) and 

additional local emergency planning 

and response organization-related 

provisions at 68.93, such as: 

—The owner or operator of a stationary 

source shall coordinate response 

needs with local emergency planning 

and response organizations to 

determine how the stationary source 

is addressed in the community 

emergency response plan and to 

ensure that local response 

organizations are aware of the 

regulated substances at the stationary 

source, their quantities, the risks 

presented by covered processes, and 

the resources and capabilities at the 

stationary source to respond to an 

accidental release of a regulated 

substance. 

—Coordination shall occur at least 

annually, and more frequently if 

necessary, to address changes: At the 

stationary source; in the stationary 

source’s emergency response and/or 

emergency action plan; and/or in the 

community emergency response plan 

(40 CFR 68.93(a)). 

—Coordination shall include providing 

to the local emergency planning and 

response organizations: The stationary 

source’s emergency response plan if 

one exists; emergency action plan; 

updated emergency contact 

information; and other information 

necessary for developing and 

implementing the local emergency 

response plan. For responding 

stationary sources, coordination shall 

also include consulting with local 

emergency response officials to 

establish appropriate schedules and 

plans for field and tabletop exercises. 

The owner or operator shall request 

an opportunity to meet with the local 

emergency planning committee (or 

equivalent) and/or local fire 

department, as appropriate, to review 

and discuss those materials (40 CFR 

68.93(b)). 

—The owner or operator shall document 

coordination with local authorities, 

including: The names of individuals 

involved and their contact 

information (phone number, email 

address, and organizational 

affiliations); dates of coordination 

activities; and nature of coordination 

activities (40 CFR 68.93(c)). 

EPA considered following the RMP 

model in this proposed action. Both the 

Oil Pollution Prevention FRP program 

and the RMP rule account for 

coordination with local emergency 

response planners (i.e., LEPCs), but the 

RMP rule includes specifics on 

activities during coordination between 

the facility and the local response 

organization, the frequency of 

coordination, and documentation of the 

coordination. Due to the likely 

involvement of local emergency 

responders in CWA hazardous 

substance response actions, EPA judged 

that this level of detail is warranted for 

coordination and documentation. 

EPA is considering various 

documentation requirements for this 

action. Under the RMP rule (40 CFR 

68.93(c)), the owner or operator must 

document coordination with local 

authorities. EPA solicits comment on 

including the documentation 

requirement in this action, as well as on 

expanding this requirement to 

document agreement between the 


jspears on DSK121TN23PROD with PROPOSALS3
17916 Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 

34See the 2016.1 PREP Guidelines, effective 

October 1, 2018, at https://homeport.uscg.mil/Lists/ 

Content/DispForm.aspx?ID=30271&Source=/Lists/ 

Content/DispForm.aspx?ID=30271. 

35See RIA for more information. 36See 40 CFR 112.20(h)(3)(ix). 

facility and local responders on actions 

or resources that are identified as the 

responsibility of the local responders. 

As per Section IV.2.d.xvii of this 

preamble, EPA is proposing in § 118.13 

that facility owners or operators 

coordinate with local emergency 

response officials and invite them to 

participate in drills and exercises. CWA 

section 311(j)(6) authorizes periodic 

inspection of containment booms, 

skimmers, vessels, and other major 

equipment used to remove discharges. 

CWA section 311(j)(7) requires 

unannounced drills. Establishing a 

program that follows the National 

Preparedness for Response Exercise 

Program (PREP) guidelines satisfies the 

exercise requirements of the EPA, 

USCG, the Pipeline and PHMSA, and 

the Bureau of Safety and Environmental 

Enforcement (BSEE).34 PREP is a joint 

industry and government effort to 

establish recognized national guidelines 

for conducting drills and exercises to 

meet the CWA section 311 drill and 

exercise requirements. 

Under the RMP rule, coordination 

occurs at least annually and more 

frequently, if necessary. Aligning with 

RMP is logical due to the overlap in 

potentially regulated facilities,35 and 

LEPCs or TEPCs that will likely play a 

significant role in responding to CWA 

hazardous substance discharges. Note 

that EPA’s cost estimates do not include 

costs incurred by state and local 

agencies to identify water intakes, nor 

coordination and planning costs for 

emergency planning and exercises that 

SERCs, LEPCs and emergency 

responders may incur. 

EPA solicits comment on the cost and 

appropriate frequency of coordination, 

including for public water systems, 

LEPC time commitment, and procedures 

if an LEPC in the area is inactive. 

3. QI Designation and Duties 

The CWA section 311(j)(5)(D)(ii) 

requires that response plans, ‘‘. . . 

identify the qualified individual having 

full authority to implement removal 

actions and require immediate 

communications between that 

individual and the appropriate Federal 

official and the persons providing 

personnel and equipment . . .’’ One of 

the primary responsibilities of the QI is, 

upon learning of a discharge of CWA 

hazardous substance, to immediately 

communicate with the appropriate 

Federal official and the persons 

providing personnel and equipment for 

the discharge response. This procedure 

will ensure timely notification of 

Federal officials so that they may 

activate ACPs; notify other Federal, 

state, tribal, and local agencies; ensure 

adequate measures are taken by the 

responsible party; and activate 

governmental response resources, when 

necessary. It also ensures that response 

resources identified will commence 

appropriate response actions in a timely 

manner. EPA is proposing that regulated 

facilities be required to identify a QI 

who is capable of immediately 

communicating with the appropriate 

Federal official and response resource 

providers and has the full authority to 

implement removal actions to contain 

and remove the CWA hazardous 

substance(s) discharged. 

EPA is proposing specific duties for 

QIs in § 118.11(a)(2). The Agency is 

proposing the same duties for the QI as 

are required in the Oil Pollution 

Prevention FRP regulation and is also 

proposing an additional requirement to 

notify and provide necessary 

information to public water systems that 

may be impacted by a discharge.36 The 

Agency is not assuming that the QI for 

an oil spill response will necessarily be 

the appropriate QI for CWA hazardous 

substance incidents. 

A QI must have basic knowledge of 

chemical response to be able to 

characterize the nature of the incident to 

responders. Therefore, EPA is proposing 

minimum training requirements for a 

QI. To build on an existing standard that 

is widely accepted and demonstrates the 

appropriate skill set, EPA proposes that 

a QI must be trained as an incident 

commander under the OSHA 

HAZWOPER provisions in 29 CFR 

1910.120(q)(6)(v). OSHA’s emergency 

response training guidance (29 CFR 

1910.120 Appendix E) further describes 

qualifications for incident commanders. 

The OSHA training requirement for 

incident commanders should be 

interpreted as a minimum qualification, 

not an absolute measure of expertise. 

EPA solicits comment on the specific 

duties of the QI, how he or she should 

be designated and identified, training 

and recordkeeping requirements, and 

other approaches to fulfilling these 

requirements. 

4. CWA Hazardous Substance FRP 

Components 

a. Facility Information 

EPA is proposing in § 118.11(b)(1) 

that a CWA hazardous substance FRP 

include facility information including 

the facility name; latitude and 

longitude; street address, including city, 

state, and zip code; telephone number, 

and information regarding the facility’s 

location described in a manner that 

would aid a reviewer and a responder 

in locating the facility. EPA solicits 

comment on additional or alternative 

data elements that should be included. 

b. Owner or Operator Information 

EPA is proposing in § 118.11(b)(2) 

that a plan include the name and 

preferred contact method of the owner 

or operator. EPA solicits comment on 

additional or alternative data elements 

that should be included. 

c. Hazard Evaluation for Worst Case 

Discharge With Risk-Based Decision 

Support System 

EPA is proposing requirements for 

developing a hazard evaluation for a 

worst case discharge scenario in 

§ 118.11(b)(3). The intent of this 

requirement is to ensure that in the 

event of a worst case discharge, owners 

or operators will have pre-identified the 

areas in which adverse impacts to 

human health and the environment 

could occur. Please see Section IV.A.4 

of this preamble for a more in-depth 

discussion of worst case discharge 

scenarios and requirements. 

Hazard evaluation is a widely used 

industry practice that allows facility 

owners or operators to develop a 

complete understanding of potential 

hazards and the response actions 

necessary to address these hazards. 

Hazard identification and evaluation 

will assist facility owners or operators 

in planning for potential discharges, 

thereby reducing the severity of 

discharge impacts that may occur in the 

future by allowing expeditious 

implementation of preplanned and 

practiced CWA hazardous substancespecific response actions designed to 

mitigate impacts. The evaluation also 

may help the operator identify potential 

sources of discharges. In addition, 

hazards to workers and emergency 

response personnel health and safety 

shall be evaluated. The hazard 

evaluation should include CWA 

hazardous substance-specific 

information for all CWA hazardous 

substances with a maximum capacity 

onsite that meets or exceeds the 

threshold quantity, including cautionary 

response considerations, health hazards, 

fire and explosion hazards, chemical 

reactivity, hazard classifications, and 

physical and chemical properties. This 

section also requires the facility owner 

or operator to examine the facility’s 

operations closely. 

Additionally, the hazard evaluation 

shall address the potential effects (e.g., 


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Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 17917 

37For substances that did not have an established 

ERPG–2, the toxic endpoint was the level of 

concern (LOC) from EPA’s 1987 Technical 

Guidance for Hazards Analysis, updated where 

necessary to reflect new toxicity data. See 61 FR 

31668, June 20, 1996. 

38See https://iris.epa.gov/AtoZ/%3Flist_

type=alpha. 

39See https://www.atsdr.cdc.gov/mrls/ 

index.html. 

40See Factual Update, Chemical Safety Board, 

October 30, 2019 https://www.csb.gov/assets/1/20/ 

itc_factual_update_2019-10-30.pdf?16522. 

to human health, property, or the 

environment) of a CWA hazardous 

substance worst case discharge as per 

the discussion in Section IV.A.b of this 

preamble on the ability to adversely 

affect public water systems, ability to 

cause injury to FWSE, and ability to 

cause injury to public receptors. This 

analysis should examine impacts to 

communities with environmental justice 

concerns, using tools such as EPA’s 

Environmental Justice Screening and 

Mapping Tool (EJSCREEN), as well as 

consider the potential impacts of 

climate change, including but not 

limited to increased flooding or 

subsidence, sea level rise, and an 

increase in the number and severity of 

extreme weather events. 

Because of the many variables that 

influence the fate, transport, and effects 

of a CWA hazardous substance 

discharge, these analyses are designed 

to provide a macroscopic view of 

potential impacts. By identifying worst 

case discharge planning quantities, 

endpoints, and distances to endpoints, 

diagrams of impacted areas for each 

CWA hazardous substance can be 

developed. Further, within these impact 

areas, owners or operators will be able 

to identify the magnitude of potential 

exposure to humans and the 

environment and factor this information 

into the overall response planning and 

actions. 

EPA is proposing to define 

‘‘endpoint’’ in § 118.2 as the point at 

which a worst case discharge no longer 

has the ability to cause injury to public 

receptors or fish, wildlife, and sensitive 

environments as in Appendix B or 

adversely impact a public water system 

as in § 118.3(c)(2). Under the RMP rule, 

the endpoint for airborne releases of 

most RMP-regulated toxic substances is 

its ERPG Level 2, developed by the 

American Industrial Hygiene 

Association (see 61 FR 31668, June 20, 

1996).37 Endpoints can be obtained or 

derived from health guideline values 

from a recognized authority, to include 

Federal or state agencies, professional 

associations, or scientific studies. Useful 

values could be those for oral or 

incidental digestion that could 

characterize waterborne exposure, as 

found in EPA’s oral reference dose 

values from IRIS assessments 38 or 

ATSDR’s MRLs, the latter of which are 

defined as an estimate of the daily 

human exposure to a hazardous 

substance that is likely to be without 

appreciable risk of adverse non-chance 

health effects over a specified duration 

of exposure.39 MRLs are not intended to 

define clean up or action levels for 

ATSDR or other Agencies. An endpoint 

is used to determine the perimeter of an 

area adversely impacted by a CWA 

hazardous substance discharge to water. 

EPA envisions that the analysis will 

result in a series of diagrams illustrating 

the areas potentially impacted, as well 

as human and environmental receptors 

within those areas, as proposed in 

§ 118.11(b)(3)(i). 

EPA is also proposing in 

§ 118.11(b)(3)(ii) that plan holders 

develop a risk-based decision support 

process. This requirement provides a 

tool to be used by plan holders and 

responders to ensure thorough 

consideration of risk factors that may 

influence response activities. This 

section of the plan would include a 

description of processes to identify, 

evaluate, control, and communicate 

risks of a CWA hazardous substance 

incident. This requirement could be met 

through a checklist, decision tree, flow 

diagram, automated system, or any other 

method that contains the required 

components. At a minimum, the process 

must include the following: 

—Risk identification, which describes 

the process which will be used to 

determine the extent and route of 

CWA hazardous substance exposure 

to humans and the environment; 

—Risk characterization, which describes 

the process which will be used to 

establish relative degrees of risk and 

prioritizing risks; 

—Risk control, which describes the 

process that will be used to determine 

feasible response methods to 

eliminate or reduce CWA hazardous 

substance discharge impacts on 

human health and the environment; 

and 

—Risk communication, which describes 

the process which will be used to 

communicate information resulting 

from the above three bullets to parties 

internal and external to response 

activities. 

EPA recognizes that a worst case 

discharge at a facility could have 

cascading effects on co-located or 

proximate facilities, as well as a chain 

reaction of failures. An analysis of this 

potential is required in the Oil Pollution 

Prevention FRP regulation. An example 

of this type of incident was the storage 

tank fire at Intercontinental Terminals 

Company, LLC (ITC) in Deer Park, TX, 

on March 17, 2019. In that instance, a 

fire originated in the vicinity of an 

80,000-barrel aboveground atmospheric 

storage tank that stored naphtha, a 

flammable liquid, typically used as a 

feedstock or blend stock for production 

of gasoline. ITC was unable to isolate or 

stop the release of naphtha product from 

the tank, and the fire continued to burn, 

intensify, and progressively involved 

additional tanks in the tank farm.40 EPA 

solicits comment on including the 

potential effects of cascading failures 

within and between facilities in a 

hazard analysis and the feasibility of 

this type of information sharing between 

facilities, outside of the context of local 

emergency planning and LEPCs or 

TEPCs. Additionally, EPA solicits 

comment on the proposed elements of 

the hazard evaluation as well as 

additional considerations that should be 

included, with supporting data and 

rationale. 

d. Reportable Discharge History 

EPA proposes in § 118.11(b)(4) that 

facilities report in their CWA hazardous 

substance FRP any discharge above the 

RQ of CWA hazardous substances with 

a maximum capacity onsite above the 

threshold quantity that reached water in 

the last five years. Please see Section 

IV.1.b.iv of this preamble for a more indepth discussion on the proposed 

requirement. The owner or operator 

shall report the following information 

when available: Date, time, and 

approximate duration of the discharge; 

CWA hazardous substance(s) 

discharged; estimated quantity 

discharged in pounds; the type of 

discharge event and its source; weather 

conditions; onsite impacts; offsite 

impacts; initiating event; contributing 

factors; clean-up actions taken, steps 

taken to reduce possibility of 

recurrence, and description of how the 

discharge was detected. EPA solicits 

comment on the data elements required 

and the inclusion of these in the plan, 

including supporting data and rationale. 

e. Response Personnel and Equipment 

EPA proposes in § 118.11(b)(5) that 

plans include the identity of private 

personnel and equipment necessary to 

remove to the maximum extent 

practicable a worst case discharge of a 

CWA hazardous substance, and to 

mitigate or prevent a substantial threat 

of a worst case discharge. It is likely that 

personal protective equipment, 

monitoring equipment, and dispersion 


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41See 40 CFR 112.2. 

42 Ibid. 43Legislative History of the Oil Pollution Act of 

1990: Public Law 101–380: 104 Stat. 484: August 

18, 1990. in 8 Washington, DC, Covington & 

Burling; p. 147. 

models would be necessary to assess the 

potential risks and develop response 

strategies. Many CWA hazardous 

substances, once discharged, cannot be 

contained or collected. The first priority 

for these discharges would be to ensure 

that exposure to the CWA hazardous 

substances is minimized. The proposed 

equipment requirements are designed to 

do this. Additionally, if facilities 

determine that equipment is required, 

owners or operators must include times 

within which the equipment and 

personnel will be onsite in the event of 

a worst case discharge. In this action, 

EPA is not proposing minimum 

response times due to the wide 

variability in appropriate response 

actions, resources, and equipment 

needed to respond to discharges of CWA 

hazardous substances. 

EPA solicits comment on this 

approach and on requiring equipment 

and personnel onsite in specified time 

frames, with supporting data and 

rationale. 

f. Contracts 

Under the CWA section 

311(j)(5)(D)(iii), an FRP is required to 

‘‘identify, and ensure by contract or 

other means approved by the President 

the availability of, private personnel and 

equipment necessary to remove to the 

maximum extent practicable a worst 

case discharge . . .’’ To address ‘‘by 

contract or other approved means,’’ the 

Oil Pollution Prevention regulation 

codified the following definition of 

contract or other approved means 

(§ 112.2): 

(1) A written contractual agreement 

with an oil spill removal organization 

that identifies and ensures the 

availability of the necessary personnel 

and equipment within appropriate 

response times; and/or 

(2) A written certification by the 

owner or operator that the necessary 

personnel and equipment resources, 

owned or operated by the facility owner 

or operator, are available to respond to 

a discharge within appropriate response 

times; and/or 

(3) Active membership in a local or 

regional oil spill removal organization 

(OSRO) that has identified and ensures 

adequate access through such 

membership to necessary personnel and 

equipment to respond to a discharge 

within appropriate response times in 

the specified geographic area; and/or 

(4) Any other specific arrangement 

approved by the RA upon request of the 

owner or operator.41

The Oil Pollution Prevention 

regulation also defined an OSRO 

(§ 112.2) as an entity that provides 

response resources and includes any 

for-profit or not-for-profit contractor, 

cooperative, or in-house response 

resources that have been established in 

a geographic area to provide required 

response resources.42 The Oil Pollution 

Prevention regulation’s fourth definition 

of contract or other approved means 

(any other specific arrangement 

approved by the RA upon request of the 

owner or operator), as above, allows 

flexibility for all regulated facilities to 

propose other means of demonstrating 

adequate response capability, subject to 

approval by the appropriate RA. For oil 

spills from Oil Pollution Prevention 

FRP-regulated facilities, the OPA 90 

Conference Report states that the intent 

was to put the onus on facilities to 

provide personnel and equipment to 

respond to spills either through inhouse resources or through OSROs.43

EPA is proposing to adopt the Oil 

Pollution Prevention FRP regulatory 

definition of ‘‘ensure by contract or 

other means’’ and CWA hazardous 

substance Spill Response Organization 

(SRO) in § 118.2 and require evidence of 

contracts or other approved means for 

ensuring the availability of such 

personnel and equipment in 

§ 118.11(b)(6), while specifically 

referring to ‘‘response/respond’’ rather 

than ‘‘remove/removal’’, since in many 

cases, it may be infeasible or impossible 

to remove a CWA hazardous substance. 

EPA solicits comment on this approach 

and information on such organizations 

relevant to this regulation, specifically 

regional availability of these services, 

readiness fees, and general costs, as well 

as supporting data and rationale. 

g. Notifications 

EPA is proposing in § 118.11(b)(7) to 

require CWA hazardous substance FRPs 

to include the identity and contact 

information of individuals or 

organizations to be notified in the event 

of a discharge so that immediate 

communications between the QI and the 

appropriate Federal officials and 

persons providing response personnel 

and equipment can be ensured. 

The notification list should include: 

The NRC, the QI, the company response 

team, the Federal OSC and/or Regional 

Response Center, the local response 

team (fire department or cooperatives), 

the fire marshal, the SERC or TERC, the 

state police, the LEPC or TEPC, 

downstream public water systems, a 

local television/radio station for 

evacuation notification, local hospitals, 

and any other potential receptor or 

interested party who could be impacted 

by a discharge. 

In § 118.11(b)(7), EPA is also 

proposing a description of the methods, 

such as email, telephone, etc., facilities 

should use to make notifications, as 

well as a list of those individuals and 

organizations required to be notified. 

Due to the potential for exposure to 

public receptors following a discharge, 

plans must include notifications to local 

public response organizations so they 

may initiate established response 

procedures and discharge notifications. 

EPA is proposing in § 118.11(b)(7) 

that each plan describe how the 

responsible party will coordinate with 

local response organizations following a 

CWA hazardous substance discharge. 

Although the CWA explicitly requires 

the availability of private resources to 

respond to these discharges, local 

emergency responders, such as 

firefighters and hazardous materials 

response teams, may respond as well. 

This requirement recognizes the benefits 

gained by ensuring an effective liaison 

between the responsible party and these 

response organizations. EPA solicits 

comment on the required notifications 

and methods, including supporting data 

and rationale. 

h. Discharge Information 

EPA is proposing in § 118.11(b)(8) 

that a CWA hazardous substance FRP 

include a description of information to 

pass to response personnel in the event 

of a discharge, including specifics about 

the event, CWA hazardous substance 

name and quantity discharged, possible 

areas and receptors affected, potential 

routes of transport, distance(s) to nearby 

waterways and conveyances, data on the 

characteristics of the CWA hazardous 

substance and other hazardous 

substances in proximity, ignition 

sources, and any other information that 

may be helpful to responders and the 

public. EPA solicits comment on this 

plan element, with supporting data and 

rationale. 

i. Personnel Roles and Responsibilities 

EPA is proposing in § 118.11(b)(9) 

that the CWA hazardous substance 

facility response plan include the 

identification and description of 

responsibilities and the activities that 

personnel have been trained in and are 

qualified to conduct in the event of a 

worst case discharge or substantial 

threat of such a discharge. EPA solicits 

comment on this plan element, with 

supporting data and rationale. 


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44See EPA requirements at https://www.epa.gov/ 

hwpermitting/what-specific-areas-must-hazardouswaste-permit-address and a model RCRA permit 

https://www.epa.gov/sites/default/files/2016-03/ 

documents/rcra-model-1988.pdf 

45U.S. Environmental Protection Agency (2015). 

Waste Analysis at Facilities that Generate, Treat, 

Store, and Dispose of Hazardous Wastes—Final. 

EPA 530–R–12–001. https://www.epa.gov/ 

hwgenerators/guidance-manual-waste-analysisfacilities-generate-treat-store-and-disposehazardous. 

46U.S. Environmental Protection Agency. Preincident All-hazards Waste Management Plan 

Guidelines: Four-step Waste Management Planning 

Process. EPA 530–F–19–006. https://www.epa.gov/ 

homeland-security-waste/pre-incident-all-hazardswaste-management-plan-guidelines-four-step-waste. 

j. Response Equipment Information 

EPA is proposing in § 118.11(b)(10) 

that the CWA hazardous substance 

facility response plan shall include 

equipment-specific information, as 

dictated by the worst case discharge 

scenario. This includes information 

about the type of equipment at the 

facility, its location, response times, and 

testing requirements. 

The CWA requires that worst case 

discharge response plans, ‘‘. . . describe 

the . . . equipment testing . . . at the 

facility, to be carried out under the plan 

to ensure the safety of the vessel or 

facility and to mitigate or prevent the 

discharge, or the substantial threat of a 

discharge.’’ (33 U.S.C. 1321(j)(5)(D)(iv)). 

EPA is proposing in § 118.11(b)(10) that 

covered facilities for the proposed 

program be required to submit 

information on equipment testing in 

accordance with statutory requirements. 

EPA solicits comment on this approach 

to the equipment testing requirements, 

equipment location information, types 

of equipment onsite, response times for 

equipment, and other data elements that 

should be included, with supporting 

data and rationale. 

k. Evacuation Plans 

In § 118.11(b)(11), EPA is proposing 

requirements for evacuation plans, 

which should be coordinated with 

community evacuation plans, as 

available. Owner and operators should 

develop a facility-wide evacuation plan 

in addition to plans to evacuate parts of 

the facility that are at a high risk of 

exposure in the event of a discharge, 

with routes shown on a diagram of the 

facility. Considerations should be given 

to: Location of CWA hazardous 

substances; hazards imposed by 

discharged material; discharge flow 

direction; water currents, tides, or wave 

conditions; arrival route of emergency 

response personnel and response 

equipment; limitations on evacuation 

routes, their capacities, and potential for 

those routes to be impacted by adverse 

weather events; transportation of 

injured people to nearest emergency 

medical facility; location of alarm/ 

notification systems; the need for a 

centralized check-in area for evacuation 

validation (roll call); selection of a 

mitigation command center; and 

location of shelter at the facility as an 

alternative to evacuation. These are 

important considerations for CWA 

hazardous substance response planning 

because discharges may behave 

unpredictably, especially in adverse 

weather conditions. Additionally, 

almost all covered facilities will likely 

be required to comply with OSHA’s 

emergency action plan requirements at 

29 CFR 1910.38, which include 

procedures for evacuation plans and 

exit route assignments for personnel 

onsite and overlap with some of the 

proposed requirements. EPA solicits 

comment on this requirement and the 

specifics therein, as well as supporting 

data and rationale. 

l. Discharge Detection Systems 

EPA is proposing in § 118.11(b)(12) 

that the facility owner or operator shall 

provide a detailed description of the 

procedures and equipment used to 

detect discharges as well as detect and 

monitor any hazardous air releases 

resulting from discharges to navigable 

water. A section on CWA hazardous 

substance discharge detection by 

personnel and a discussion of 

automated discharge detection, if 

applicable, shall be included for both 

regular operations and afterhours 

operations and be characterized by 

CWA hazardous substance. In addition, 

the facility owner or operator shall 

discuss how the reliability of any 

automated system will be checked and 

how frequently the system will be 

inspected. EPA solicits comment on this 

approach and other approaches to 

discharge detection systems, including 

supporting data and rationale. 

m. Response Actions 

In § 118.11(b)(13), EPA is proposing 

that facility owners or operators explain 

in detail how to implement the facility’s 

response plan by describing response 

actions to be carried out under the plan 

to ensure the safety of the facility and 

to mitigate discharges. This section of 

the plan must contain prioritized 

procedures necessary to protect the 

facility’s personnel and mitigate, 

control, and remediate a CWA 

hazardous substance discharge. This 

should include personnel safety, and if 

applicable, the use of personal 

protective equipment; facility personnel 

responsibilities by job title; facility 

personnel actions in the event of an 

incident; facility personnel assigned to 

gather information that must be 

provided to response personnel; and 

facility responsibilities to mitigate a 

CWA hazardous substance incident. If 

facility personnel will sample or 

monitor air or water, then include 

personnel responsibilities for 

recordkeeping and sampling of CWA 

hazardous substances involved in an 

incident, procedures for sharing real 

time data with response personnel and 

the public, personal protective 

equipment requirements, and safety 

procedures during the sampling or 

monitoring operation. EPA solicits 

comment on this approach and other 

approaches to enumerating and 

detailing response actions to be carried 

out, with supporting data and rationale. 

n. Disposal Plans 

EPA is proposing in § 118.11(b)(14) 

that facility owners or operators must 

describe how and where the facility 

intends to recover, reuse, 

decontaminate, treat, and/or dispose of 

materials after a discharge has taken 

place and include plans for temporary 

storage of recovered materials. The 

appropriate permits required to manage 

recovered materials according to local, 

state, and Federal requirements must be 

addressed.44 Materials that must be 

accounted for in the disposal plan, as 

appropriate, include recovered product; 

contaminated soil and water; 

contaminated equipment and materials, 

including drums, tank parts, valves, and 

shovels; personal protective equipment; 

decontamination solutions; adsorbents; 

and spent chemicals. These plans must 

be prepared in accordance with Federal 

(e.g., RCRA), state, and local regulations, 

where applicable. For example, a 

facility could follow the EPA 

publications A Guidance Manual: Waste 

Analysis at Facilities that Generate, 

Treat, Store, and Dispose of Hazardous 

Wastes 45 and Pre-Incident All-Hazards 

Waste Management Plan Guidelines: 

Four-Step Waste Management Planning 

Process.46 EPA solicits comment on this 

approach and other approaches to 

disposal plans for CWA hazardous 

substances with supporting data and 

rationale. 

o. Containment Measures 

EPA proposes in § 118.11(b)(15) that a 

plan should include measures to 

provide adequate containment and 

drainage of discharged CWA hazardous 

substances to limit the threat of harm to 

human health and the environment. 

This section shall describe how to 

contain and control a discharge through 

drainage, including the available 

volume of containment, the route of 


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47See the 2016.1 PREP Guidelines, effective 

October 1, 2018, at https://homeport.uscg.mil/Lists/ 

Content/DispForm.aspx?ID=30271&Source=/Lists/ 

Content/DispForm.aspx?ID=30271. 

drainage from storage and transfer areas, 

the construction materials used in 

drainage troughs, the type and number 

of valves and separators used in the 

drainage system, sump pump capacities, 

the containment capacity of weirs and 

booms that might be used and their 

locations, and other cleanup materials. 

EPA solicits comment on this approach 

and other approaches to provide 

adequate containment and draining of 

discharged CWA hazardous substances 

with supporting data and rationale. 

p. Training Procedures 

The CWA requires that response plans 

describe training for responding 

personnel (33 U.S.C. 1321(j)(5)(D)(iv)). 

In this rulemaking, EPA is proposing in 

§ 118.13(b) to reference OSHA’s 29 CFR 

1910.120 training specific to hazardous 

substances, while also ensuring that 

training is conducted not only for 

facility personnel, but for private 

personnel, casual laborers, and 

volunteer responders. EPA is proposing 

additional considerations for employee 

training, given the wide range of CWA 

hazardous substances covered by this 

proposed regulation and the potential 

exposure of employees, volunteer 

responders, and casual laborers to these 

CWA hazardous substances during a 

response. Additionally, OSHA’s 29 CFR 

1910.120 already applies to emergency 

response operations for releases of, or 

substantial threats of release of, 

hazardous substances without regard to 

the location of the hazard 

(§ 1910.120(a)(1)(v)). Therefore, facilities 

should already be complying with these 

regulations in responding to worst case 

discharges of CWA hazardous 

substances. Section (q) of 1910.120 is 

applicable to this proposed rulemaking, 

and includes specific requirements 

based on the role of the responder 

(Incident Commander, etc.), annual 

refresher training, training on 

implementing response plans and 

understanding of the CWA hazardous 

substances involved, knowledge of the 

incident command system, and use of 

personal protective equipment. 

Requiring that training is conducted in 

compliance with 29 CFR 1910.120 will 

further minimize exposures that are 

hazardous to the health of response 

personnel. 

Finally, EPA is proposing in 

§ 118.13(b)(4) that facilities keep logs for 

five years following training. Given the 

ease of storing records electronically, 

EPA does not believe this poses a 

significant burden on facilities. Access 

to training logs is necessary for 

conducting compliance inspections 

with the training portion of response 

plans proposed in this rulemaking. EPA 

solicits comment on training and 

documentation requirements with 

supporting data and rationale. 

q. Drills and Exercises 

EPA is proposing requirements to 

develop a drill and exercise program in 

§ 118.13(c). This section references 

PREP, which is a joint industry/ 

government effort to establish 

recognized national guidelines for 

conducting drills/exercises to meet the 

requirements in section 311(j)(5) of the 

CWA and existing exercise requirements 

for oil spill response plan exercises 

specified by agency-specific 

regulations.47 A program that follows 

PREP will be deemed satisfactory. 

Additionally, if a facility has a 

discharge, they may complete an afteraction report and adjust operations 

accordingly, which can count for this 

requirement. 

Drills and exercises are designed to 

periodically test the ability of response 

personnel to ensure the safety of the 

facility and to mitigate or prevent 

discharges of CWA hazardous 

substances. A drill and exercise program 

comprises facility drills and exercises, 

including tabletop and field exercises, 

both announced and unannounced, as 

well as participation in larger area drills 

and exercises and evaluation of these 

drills and exercises. 

Field exercises should include tests of 

procedures to notify the public and the 

appropriate Federal, state, and local 

emergency response agencies about a 

worst case discharge; tests of procedures 

and measures for emergency response 

actions including evacuations and 

medical treatment; tests of 

communications systems; mobilization 

of facility emergency response 

personnel, including contractors, as 

appropriate; coordination with local 

emergency responders; emergency 

response equipment deployment; and 

any other action identified in the 

response plan, as appropriate. 

Tabletop exercises should include 

discussions of procedures to notify the 

public and the appropriate Federal, 

state, tribal, and local emergency 

response agencies; procedures and 

measures for emergency response 

including evacuations and medical 

treatment; identification of facility 

emergency response personnel and/or 

contractors and their responsibilities; 

coordination with local emergency 

responders; procedures for emergency 

response equipment deployment; and 

any other action identified in the 

response plan, as appropriate. 

The purpose of area exercises is to 

have the entire response community 

practice discharge response actions in a 

particular area. An area is defined as 

that geographic area for which a 

separate and distinct ACP has been 

prepared. The response community is 

comprised of the Federal, state, and 

local government and industry, and as 

appropriate, tribal entities. 

EPA solicits comment on the 

appropriate frequency for drills and 

exercises, the types of drills and 

exercises that should be required, 

evaluation reports, and the level of 

coordination with LEPCs or TEPCs and 

other response organizations, with 

supporting data and rationale. 

r. Self-Inspection 

In § 118.11(b)(18), EPA is proposing 

that owners and operators include 

written procedures and records of 

inspections. Facility self-inspection 

requires two-steps: (1) A checklist of 

things to inspect; and (2) a method of 

recording the actual inspection and its 

findings. An owner or operator should 

note the date of each inspection and 

keep CWA hazardous substance FRP 

records for five years. EPA solicits 

comment on this approach and 

alternative methods for self-inspection 

and self-inspection recordkeeping with 

supporting data and rationale. 

s. Alternative Approaches 

EPA considered, but did not propose, 

to require that plans describe the 

organizational structure that will be 

used to manage response operations. 

This structure could outline the roles 

and responsibilities of the specific 

functional areas contained in the 

National Interagency Incident 

Management System (NIIMS) Incident 

Command System (ICS). 

EPA also considered proposing 

different requirements for nonresponding versus responding facilities. 

The RMP regulations (40 CFR 68.90) 

make a distinction between responding 

(facilities at which employees will 

respond to accidental releases of 

regulated substances) and nonresponding facilities (facilities at which 

employees will not respond to 

accidental releases of regulated 

substances, provided the owner or 

operator coordinates with local response 

agencies to ensure that they will be 

prepared to respond to an emergency at 

the facility). Responding facilities must 

comply with the emergency response 

plan elements of § 68.95 while nonresponding facilities are not required to, 

provided they meet certain criteria in 


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§ 68.90(b). While this distinction is 

appropriate for the RMP program, the 

CWA stipulates that a facility that has 

the potential to cause substantial harm 

in the event of a worst case discharge is 

required to develop a response plan. For 

this CWA proposed rulemaking, nonresponding facilities would be required 

to comply with all the planning 

requirements. EPA is proposing in 

§ 118.11(a)(3) to require the facility 

owner or operator to identify the 

resources to be provided by the facility 

as per CWA section 311(j)(5)(D)(iii). 

The Oil Pollution Prevention FRP 

regulation specifies the amount of time 

in which facilities must have resources 

onsite based on the size of the spill, type 

of oil, and other hazard evaluation 

criteria. Due to the variability in fate 

and transport of CWA hazardous 

substances and their individual 

response equipment and action needs, 

EPA is not including similar 

requirements in this proposed action. 

Additionally, EPA considered 

requiring an Emergency Response 

Action Plan (ERAP), similar to the 

provision under the Oil Pollution 

Prevention FRP regulations at 40 CFR 

112.20(h)(1). The ERAP’s purpose is to 

provide a summary of steps for spill 

source stabilization, including 

immediate actions by the facility 

incident management team, such as 

internal and external notifications and 

initiation of oil spill preparedness and 

evacuation procedures, to be kept in the 

front of the oil FRP or in a separate 

binder to accompany the full oil FRP. If 

owners or operators have already 

prepared a federal or state response plan 

that addresses the oil FRP requirements 

and it is cross-referenced, they need not 

prepare a separate plan (58 FR 8837; 

February 17, 1993). Such a requirement 

in this action could provide an 

important compilation of critical 

response information for facility 

personnel and responders, especially if 

required on a site-specific basis, where 

one CWA hazardous substance ERAP 

would be required for each site, rather 

than allowing multi-facility CWA 

hazardous substance ERAPs. Multifacility CWA hazardous substance 

ERAPs could ease the burden of 

preparing individual CWA hazardous 

substance ERAPs but may not be 

practicable in terms of accessing timesensitive information across a multifacility plan in an emergency situation. 

EPA anticipates that CWA hazardous 

substance ERAPs would facilitate owner 

or operator response to incidents by 

including condensed versions of select 

sections from the overall response plan 

proposed in this action. EPA has found 

ERAPs to be helpful to planholders 

responding to oil spills. 

EPA solicits comment on these 

alternative approaches and supporting 

data and rationale. 

C. Implementation and Enforcement 

1. Office Delegation 

EPA is proposing in § 118.4 that 

facility owners and operators submit 

plans to their respective RAs, following 

the regional delegation model used in 

the Oil Pollution Prevention regulation. 

As is currently the practice, and has 

been for over 30 years, EPA Regions 

administer the Oil Pollution Prevention 

FRP program with guidance from EPA 

Headquarters. This creates effective and 

efficient localized knowledge and field 

experience enabling the regions to 

interact with the regulated community. 

This is especially true for the potential 

to require additional facilities to be 

regulated by the determination of the 

RA. Additionally, EPA Regional Offices 

can further delegate to OSCs or other 

staff as needed. EPA Regional staff have 

extensive knowledge of the scope of the 

localized variables for the areas, but 

EPA understands that this approach will 

increase the workload in the regions and 

may require additional staff and 

resources. 

2. Compliance Dates 

EPA is proposing in § 118.4(a)(1) that 

initially regulated facilities that meet 

the criteria in § 118.3 or are notified by 

the RA that they meet the criteria for 

substantial harm found in § 118.5 must 

prepare and submit a CWA hazardous 

substance FRP within 12 months. 

Additionally, EPA is proposing in 

§ 118.4(a)(2) that newly regulated 

facilities (facilities in operation after the 

effective date of the Final Rule and that 

meet the criteria in § 118.3 or are 

notified by the RA that they meet the 

substantial harm criteria in § 118.5) 

submit plans within six months, but no 

sooner than 12 months after the 

effective date of the final rule. EPA is 

proposing in § 118.4(a)(3) that newly 

constructed facilities (facilities that 

come into existence after the effective 

date of the final rule) that meet the 

applicability criteria must prepare and 

submit a response plan in accordance 

with the final rule prior to the start of 

operations, but no sooner than 12 

months after the effective date of the 

final rule. EPA is proposing in 

§ 118.4(a)(4) that plans be updated and 

in place prior to the implementation of 

planned change in design, construction, 

operation, or maintenance at the facility 

that results in the facility meeting the 

criteria in § 118.3, but no sooner than 12 

months after the effective date of the 

final rule. An unplanned event or RA 

determination will require response 

plan submission within six months, but 

no sooner than 12 months after the 

effective date of the final rule, as 

proposed in § 118.4(a)(4). EPA is 

proposing in § 118.4(b)(1) that owner or 

operator of a facility shall revise and 

resubmit their plan within 60 days of 

each facility change, including material, 

capacity, spill response organization 

capability, discharge mitigation and 

response equipment or emergency 

response procedures, or other changes 

that may affect the response to a worst 

case discharge. Materially change means 

introduction of a new process, new 

equipment, or regulated substance, an 

alteration of process chemistry that 

results in any change to safe operating 

limits, or other alteration that 

introduces a new hazard or affects the 

facility’s potential for a discharge. 

These proposed timelines are roughly 

based on OPA 90 transition provisions, 

which directed EPA (as delegated by the 

President in E.O. 12777) to issue 

regulations for oil worst case discharge 

response plans (oil FRPs) under section 

311(j)(5) of the CWA within 24 months. 

Facilities could submit the Oil Pollution 

Prevention FRPs beginning 30 months 

from enactment (February 18, 1993) and 

were required to be submitted by 36 

months of enactment (August 18, 1993) 

for facility compliance of onshore 

facilities pursuant to CWA section 

311(j)(5)(E). The Agency set forth 

existing and new facility compliance 

requirements in the Oil Pollution 

Prevention FRP regulations that plans 

be submitted within six months from 

the time of discovery or notification that 

a facility could cause ‘‘substantial 

harm,’’ and a material change 

requirement for owner or operator plan 

resubmittal within 60 days of each 

material change in facility or plan that 

could affect the adequacy of a facility’s 

response capabilities, such as the ability 

to respond to a worst case discharge. 

CWA section 311(j)(5)(G) allows the 

owner or operator of a facility to seek 

Federal authorization to operate for up 

to two years after the plan has been 

submitted for approval if the owner or 

operator has certified that he or she has 

ensured by contract or other federally 

approved means the availability of 

private personnel and equipment 

necessary to respond, to the maximum 

extent practicable, to a worst case 

discharge or substantial threat of such a 

discharge. 

EPA solicits comment on the 

proposed timelines and alternatives, 

with supporting data and rationale. 


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48Commission for Racial Justice. (1987). Toxic 

Wastes and Race In the United States: A National 

Report on the Racial and Socio-Economic 

Characteristics of Communities with Hazardous 

Waste Sites. United Church of Christ. https://

www.nrc.gov/docs/ML1310/ML13109A339.pdf. 

49Ringquist, E.J. (2005). Assessing evidence of 

environmental inequities: A meta-analysis. Journal 

of Policy Analysis and Management, 24(2), 223– 

247. https://doi.org/10.1002/pam.20088. 

3. Confidential Business Information 

EPA is proposing in § 118.4(d) that a 

facility owner or operator may make a 

claim of CBI if he or she is able to show 

that the information meets the 

substantive criteria set forth in 40 CFR 

2.302. These criteria generally require 

that the data be commercial or financial 

in nature, that they not be available to 

the public through other means, that an 

owner or operator take appropriate steps 

to prevent disclosure, and that 

disclosure of the data would be likely to 

cause substantial harm to a competitive 

position. Review of any CBI claims will 

be handled as provided for in 40 CFR 

part 2. However, EPA is proposing in 40 

CFR part 118 that certain CWA 

hazardous substance FRP data elements 

may not be claimed as CBI because they 

do not convey any business sensitive 

information. EPA is proposing specific 

procedures for submission of CBI claims 

for CWA hazardous substance FRPs in 

§ 118.4(d)(3). This approach will ensure 

that EPA and the public have access to 

critical emergency planning 

information, while preserving industry 

competitiveness. EPA solicits comment 

on this approach and alternatives. 

4. Appeals Process 

EPA is proposing in § 118.6 to allow 

owners or operators to participate in 

and appeal the RA’s determination of 

substantial harm or significant and 

substantial harm, and the disapproval of 

a CWA hazardous substance FRP. EPA 

recognizes the importance of allowing 

facility owners or operators to present 

relevant information and therefore 

proposes a two-part appeals process. 

The first stage allows a facility owner or 

operator to submit to the RA a request 

for reconsideration that includes 

information and data to support the 

request. The RA shall evaluate the 

submitted information and reach a 

decision on the facility’s risk 

classification or the status of plan 

approval (including whether changes to 

a facility’s worst case discharge 

planning quantity are necessary for 

approval) as soon as practicable. Once 

the RA renders a decision, the facility 

owner or operator must submit a plan 

within 60 days. EPA expects that the 

request for reconsideration process will 

be the primary mechanism to address 

disputes over decisions. However, a 

follow-up process will also be available 

for appeal of the RA’s determination to 

the Administrator of EPA. EPA solicits 

comment on the proposed process and 

alternative approaches. 

5. Stakeholder Petitions 

EPA is proposing a petition process to 

allow the public and other government 

agencies the opportunity to provide 

input on a voluntary basis on CWA 

hazardous substance facilities that 

should be required to submit an FRP to 

EPA in § 118.7. EPA concluded that the 

availability of the petition process is 

important for public involvement in the 

designation of substantial harm facilities 

and could be an important mechanism 

for communities with environmental 

justice concerns and those impacted by 

climate change to participate in the 

CWA hazardous substance FRP process. 

The Agency judged that information 

provided by the public and other 

government agencies will assist, rather 

than burden, the RA. This proposed 

petition process is similar to one in the 

Oil Pollution Prevention FRP Final Rule 

(59 FR 34070, July 1, 1994), where any 

member of the public or representative 

from a Federal, State, or local agency 

may petition the Agency with 

information that a facility meets the 

substantial harm criteria and thus 

should be required to prepare a 

response plan (see 40 CFR 

112.20(f)(2)(ii)). Under this provision, 

petitions are submitted to the RA, and 

the RA considers and responds to the 

petition as soon as practicable. The 

petition process was implemented to 

allow the opportunity for public 

involvement. In addition, the Agency 

believed that information provided by 

the public and other government 

agencies would assist the RA. 

It is not necessary for petitioners to 

determine quantitatively whether the 

facility meets one of the specific 

applicability or substantial harm 

criteria, but rather, petitioners should 

provide a reasonable basis for asserting 

that the facility may pose a risk of 

substantial harm to the environment. A 

petition that fails to document the 

reasons why a facility should be 

classified as a facility that has the 

potential to cause substantial harm in 

the event of a worst case discharge (e.g., 

the facility is near a source water supply 

or a priority sensitive environment 

listed in an ACP, the facility has a 

history of frequent discharges or poor 

maintenance, etc.) will not be 

considered by the RA. However, 

petitioners are not required to provide 

detailed analyses and calculations. 

Other avenues of participation for the 

public in the response planning process 

include involvement in the ACP 

development process or participation in 

the LEPC or TEPC. 

EPA solicits comment on the 

proposed petition process and 

alternatives, with supporting data and 

rationale. 

6. Consistency With the NCP 

Section 311(j)(5)(D) of the CWA states 

that Facility Response Plans must be 

consistent with the NCP and ACPs. As 

such, in §§ 300.185, 300.211, and 

300.411, EPA is proposing minor 

changes to 40 CFR part 300 to ensure 

uniformity. 

In §§ 300.185 and 300.211, EPA is 

proposing to add references to proposed 

40 CFR part 118. EPA is proposing to 

add § 300.411 to detail requirements for 

responses to CWA hazardous substance 

worst case discharges, to mirror the 

requirements for oil worst case 

discharges in § 300.324, including OSC 

responsibilities to notify the National 

Strike Force Coordination Center, 

require the FRP be initiated, implement 

ACP worst case discharge plans, take 

response actions, and coordinate private 

and public equipment for response. 

D. Additional Considerations 

1. Communities With Environmental 

Justice Concerns 

EPA recognizes the unique challenges 

faced by communities with 

environmental justice concerns. 

Evidence of the disproportionate colocation of historically marginalized 

populations and hazardous waste was 

demonstrated over 30 years ago 48 with 

subsequent environmental justice 

literature establishing that industrial 

facilities and aboveground storage tanks 

are disproportionately located in 

communities with environmental justice 

concerns,49 and similarly, our colocation assessment confirms, and likely 

underestimates, historical trends. Please 

see the section 8.7 of the RIA for further 

description of our analysis of 

environmental justice impacts. 

However, the impacts of worst-case 

discharges of CWA hazardous 

substances on these communities are 

also influenced by the unique 

circumstances of a discharge and a 

facility’s positioning up or downstream 

from public water systems that often 

serve large and diverse communities. 

This proposed rule would protect 

human health and the environment by 

requiring facilities to prepare and 


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respond to worse case discharges of 

CWA hazardous substances. 

Additionally, EPA is proposing that 

RAs have wide authority to require 

CWA hazardous substance FRPs for 

facilities located in communities with 

environmental justice concerns, as well 

as those that could impact such 

communities with a worst case 

discharge in § 118.5. EPA is also 

proposing that any stakeholder (e.g., 

member of the public, organization, or 

local, state, Tribal, or Federal 

government) can petition EPA to require 

that a specific facility prepare and 

submit a CWA hazardous substance FRP 

in § 118.7. Communities with 

environmental justice concerns are also 

considered in the hazard evaluation as 

discussed in Section IV.C.2.d.iii of this 

preamble. 

EPA considered using impacts to 

communities with environmental justice 

concerns as an applicability criterion to 

determine whether such facilities have 

the potential to cause substantial harm 

in the event of a worst case discharge 

and is interested in possible approaches, 

methodologies, and data sources to do 

so. EPA solicits comment on alternate 

ways to prioritize the needs of 

communities with environmental justice 

concerns and is open to other 

approaches to meaningfully address 

risks from lack of planning to respond 

to worst case discharges of CWA 

hazardous substances among these 

communities. Please see section V.J. of 

this preamble for a discussion of E.O. 

12898: Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations. 

2. Climate Change 

Climate change will have a significant 

impact on CWA hazardous substance 

facilities, including through increases in 

both the number and the severity of 

extreme weather events. Additionally, 

the rise in sea levels occurring along the 

southern and eastern coasts of the 

United States may further exacerbate the 

effects of these weather events. Climate 

change is also contributing to 

subsidence, which is the gradual 

settling or sudden sinking of land 

surface due to removal or displacement 

of subsurface resources. In the United 

States, the principal cause of subsidence 

is the over-extraction of ground water. 

With increases in the number and 

severity of droughts, population, and 

economic growth, subsidence is a 

critical aspect to consider in the future. 

This proposed regulation is inherently 

a climate change adaptation regulation 

in that the statute requires planning for 

worst case discharges in adverse 

weather conditions. Additionally, our 

analysis shows that 90 percent of 

facilities estimated to meet or exceed 

the CWA hazardous substance 

maximum capacity onsite threshold 

quantity are within one-half mile of 

navigable water, and therefore are often 

located in floodplains. The definition of 

a worse case discharge is the largest 

foreseeable discharge in adverse 

weather conditions, so including flood 

plains and tidal zones as a substantial 

harm criterion may be duplicative and 

unnecessary, since facility owners and 

operators should already be examining 

these metrics in their worst case 

discharge scenarios for determining 

planning distance. Please see Section 

IV.A.2.e.i of this preamble for more 

discussion on climate change risk 

considerations in applicability. 

A hazard evaluation is a required 

element for the response plan for worst 

case discharges. Hazard evaluation will, 

by its nature, include hazards posed by 

climate change, increased flooding, 

temperature changes, etc. Additionally, 

the hazard analysis is intended to 

address climate change adaptation and 

resilience in facility emergency 

response planning for worst case 

discharges of CWA hazardous 

substances. 

EPA solicits comment on 

methodologies to take climate change 

into account in both applicability 

criteria as well as response plan 

requirements. 

3. Facility Density 

EPA recognizes the increased risk of 

worst case discharges in areas with a 

high density of CWA hazardous 

substance facilities. EPA considered 

additional requirements for facilities in 

areas with high facility density, as well 

as including co-location of facilities 

with less than the threshold quantity of 

CWA hazardous onsite but proximate to 

other facilities which, in the aggregate, 

meet the CWA hazardous substance 

threshold quantity as an applicability 

criterion. EPA solicits comment on 

these approaches as well as the 

appropriate proximity metrics, 

quantities, and methods for determining 

shared risk amongst facilities. 

V. Statutory and Executive Orders 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://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 

Under E.O. 12866 (58 FR 51735; 

October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it is likely to raise novel legal or policy 

issues under section 3(f)(4). 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under E.O. 12866 and 

E.O. 13563 (76 FR 3821; January 21, 

2011); any changes made in response to 

OMB recommendations have been 

documented in the docket for this action 

(EPA–HQ–OLEM–2021–0585). 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 Clean 

Water Act Hazardous Substance Worst 

Case Discharge Planning Regulations,’’ 

is available in the docket. 

The RIA discusses the potential costs 

and benefits associated with this 

proposed action. As presented in 

Section 6 of that analysis, EPA 

estimated the final rule will result in 

annualized costs of $27.6 to $28.4 

million per year, at three percent and 

seven percent discount rates, 

respectively. The benefits of the 

proposed action are assessed 

qualitatively and include a wide 

diversity of potential benefit 

mechanisms, such as reductions in: 

Impacts to public water systems and 

other waterways used for recreational 

and commercial purposes; impacts to 

the ecosystem and environment; 

impacts to human health; and other 

socioeconomic impacts driven by 

business disruption, evacuations, and 

other elements of emergency response. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this proposed rule have been 

submitted for approval to the OMB 

under the PRA. The Information 

Collection Request (ICR) document that 

the EPA prepared has been assigned 

EPA ICR number 2710.01. You can find 

a copy of the ICR in the docket for this 

rule, and it is briefly summarized here. 

All information submitted to the 

agency in response to the ICR will be 

managed in accordance with applicable 

laws and EPA’s regulations governing 

treatment of confidential business 

information at 40 CFR part 2, subpart B. 

Any information determined to 

constitute a trade secret will be 

protected under 18 U.S.C. 1905. The 

facility plans required under the 

proposed revisions to section 311(j)(5) 


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of the CWA are submitted to the EPA for 

compliance review and approval. The 

information would also likely be shared 

with state and local officials who could 

use the information to develop or 

modify emergency response plans for 

their communities. The burden to 

regulated facilities is estimated in terms 

of the time (in hours) spent by facility 

personnel to review the proposed 

regulation and prepare a response plan 

and maintain the plan on an annual 

basis. Additional detail is provided in 

the ICR for the proposed rule referenced 

above. 

Respondents/affected entities: The 

industries that are likely to be affected 

by the requirements in the proposed 

regulation fall into numerous NAICS 

categories. About 72 percent of facilities 

are in the following major NAICS 

groups at the three-digit level that may 

be subject to the proposed regulation: 

Utilities (221), Chemical Manufacturing 

(325), and Merchant Wholesalers, 

Nondurable Goods (424). Other facilities 

may be covered by these regulations in 

other NAICS categories. A complete list 

of NAICS categories with covered 

facilities is included in the ICR 

accompanying the proposed rule. 

Respondent’s obligation to respond: 

Mandatory (40 CFR parts 118 and 300). 

Estimated number of respondents: 

1,659 initially, plus 25 new respondents 

annually. 

Frequency of response: One-time 

response required; burden also includes 

annual maintenance of the plan. 

Total estimated burden: 330,740 

hours (average per year for first three 

years). Burden is defined at 5 CFR 

1320.3(b). 

Total estimated cost: $52,434,008, 

(average per year for first three years), 

includes $15,188,371 annual operations 

and maintenance costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

Submit your comments on the 

Agency’s need for this information, the 

accuracy of the provided burden 

estimates, and any suggested methods 

for minimizing respondent burden to 

the EPA using the docket identified at 

the beginning of this rule. The EPA will 

respond to any ICR-related comments in 

the final rule. You may also send your 

ICR-related comments to OMB’s Office 

of Information and Regulatory Affairs 

using the interface at www.reginfo.gov/ 

public/do/PRAMain. Find this 

particular information collection by 

selecting ‘‘Currently under Review— 

Open for Public Comments’’ or by using 

the search function. OMB must receive 

comments no later than May 27, 2022. 

C. 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. The small entities 

subject to the requirements of this 

action includes small businesses. The 

Agency has determined that among the 

421 potentially regulated small entities, 

138 small entities may experience an 

impact between one and three percent 

of revenues. These entities are in three 

industries: Animal Food Manufacturing, 

Sawmills and Wood Preservation, and 

Marine Cargo Handling. The Agency 

also estimated, and that five small 

entities in the Electric Power Generation 

industry may experience an impact 

greater than three percent of revenues 

(or about 1.3 percent of all small 

entities). Details of this analysis are 

presented in Section 9.3 of the proposed 

rule RIA, available in the docket. 

In summary, EPA has prepared a 

small entity impact screening analysis 

to assess whether the proposed action 

would have ‘‘a significant impact on a 

substantial number of small entities.’’ 

This analysis involved three main steps: 

1. Identifying the subset of small 

entities potentially affected by the 

proposed action based on Small 

Business Administration (SBA) size 

criteria for each NAICS industry; 

2. Assessing the potential impact of 

the rule on those small entities by 

comparing the entity-level compliance 

cost to entity-level revenue (i.e., 

applying a cost-to-revenue test). EPA 

used threshold compliance costs of one 

percent or three percent of revenue to 

categorize the degree of significance of 

the economic impacts; and, 

3. Based on the results of the 

threshold test, assessing (1) magnitude 

of economic impact that may be 

experienced by regulated small entities; 

(2) total number of regulated small 

entities that may experience the 

economic impact; and, (3) percentage of 

regulated small entities that may 

experience the economic impact, in 

order to make a SISNOSE 

determination. 

Among the 1,659 facilities estimated 

to be required to develop response 

plans, EPA estimated that 669 of these 

facilities are owned by 421 small 

entities. EPA’s cost-to-revenue test 

estimated that 8 small entities would 

have costs between one and three 

percent of revenues (or about 2 percent 

of all small entities), and 5 entities 

would have costs exceeding three 

percent of revenues (or about 1 percent 

of all small entities). Based on the 

results, EPA concluded that the 

proposed action’s requirements will not 

have a significant impact on a 

substantial number of small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate of $100 million or 

more as described in UMRA, 2 U.S.C. 

1531–1538, and does not significantly or 

uniquely affect small governments. 

Under UMRA Section 202, EPA 

generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that might 

result in expenditures by state, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100 million 

(adjusted annually for inflation) or more 

in any one year. Based on the cost 

estimates detailed previously, EPA 

determined that compliance costs in any 

given year will be below the threshold 

set in UMRA. This proposed action is 

also not subject to the requirements of 

section 203 of UMRA because it does 

not significantly or uniquely affect small 

governments. 

EPA determined that the proposed 

local coordination requirements build 

upon existing requirements under 

EPCRA section 303, and thus do not 

impose an unfunded mandated upon 

LEPCs or public water systems that 

would coordinate with regulated 

facilities. LEPCs are required to develop 

community emergency response plans 

under EPCRA section 303, and this 

proposed rule provisions are intended 

to ensure that facility representatives 

coordinate with LEPC and local 

emergency response officials in 

developing those plans. Water systems 

are similarly required under the AWIA 

to develop or update risk assessments 

and emergency response plans. 

Furthermore, EPA provided flexibility 

in this proposed rule to allow LEPC and 

other local officials to participate as 

their schedules allow. For example, EPA 

is proposing that when appropriate, 

facility owners or operators coordinate 

with local public emergency response 

officials and invite them to participate 

in drills and exercises. The proposed 

rule does not require participation in 

drills and exercises. 

E. 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 


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responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in E.O. 13175 

(65 FR 67249, November 6, 2000). EPA 

mapped the location of the available 

sample of 661 in-scope facilities present 

in EPA’s Tier II data against EPA’s 

geographic boundaries for tribal lands 

and did not identify any facilities 

located on tribal lands. EPA notes that 

these data capture only a portion of 

potentially regulated facilities, and do 

not include some states with relatively 

higher proportions of Tribal lands, such 

as Oklahoma. In addition, EPA lacks 

information on the location of water 

intakes associated with facilities, which 

is a further uncertain potential source of 

tribal impacts. Thus, Executive Order 

13175 does not apply to this action. 

EPA will consult with Tribal officials 

as it develops this regulation to permit 

them to have meaningful and timely 

input into its development. 

Consultation will include conference 

calls, webinars, and meetings with 

interested tribal representatives to 

ensure that their concerns are addressed 

before the rule is finalized. In the spirit 

of E.O. 13175 and consistent with EPA 

policy to promote communications 

between EPA and Tribal governments, 

EPA specifically solicits comment on 

this proposed rule from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to E.O. 

13045 (62 FR 19885, April 23, 1997) 

because it is not economically 

significant as defined in E.O. 12866 (58 

FR 51735, October 4, 1993), and because 

the EPA does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

action’s health and risk assessments are 

contained in the RIA for this proposed 

rule, available in the docket. 

H. Executive Order 13211: Actions 

Concerning Regulations 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. 

The proposed rule does not directly 

regulate energy production or 

consumption. Adding CWA hazardous 

substance FRP requirements is not 

expected to impact energy production or 

distribution. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This proposed action does not involve 

technical standards and is therefore not 

subject to the requirements contained in 

NTTAA section 12(d), 15 U.S.C. 272. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA concluded that this action 

does not have disproportionately high 

and adverse human health or 

environmental effects on minority 

populations and low-income 

populations and/or Indigenous peoples, 

as specified in E.O. 12898 (59 FR 7629, 

February 16, 1994). 

The documentation for this decision 

is contained in section 8.7 of the RIA. 

Worst case discharges of hazardous 

substances from facilities regulated by 

this action would likely pose 

disproportionate risks to minority and 

low-income populations. EPA has 

concluded that the regulatory 

requirements will advance fair 

treatment of those populations, by 

reducing the disproportionate damages 

that worst case discharges might 

otherwise inflict on underserved and 

overburdened communities. To further 

ensure that the regulation is addressing 

needs of those specific communities, 

this regulation would give authority to 

RAs to regulate facilities which 

potentially affect communities of 

environmental justice concern if they 

are otherwise not captured by the 

proposed applicability criteria. 

The Agency’s environmental justice 

screening tool, EJSCREEN, was 

developed to combine environmental 

and demographic indicators to screen 

communities for those at potentially 

greater risk of environmental exposures. 

Here, EPA used EJSCREEN to combine 

information on the universe of facilities 

with the potential to discharge into 

navigable waters given their proximity. 

The Agency quantified facilities with 

threshold quantities of CWA hazardous 

substances within a one-half mile of 

navigable water (n=661), using available 

Tier II data from 17 states. Tier II data 

reporting is required under section 312 

of EPCRA. Tier II data is meant to 

provide State, tribal, and local officials, 

and the public with specific information 

on potential hazards including locations 

and amounts of hazardous chemicals 

present at a facility. Tier II reporting 

includes all CWA hazardous substances. 

For this analysis, EPA used Tier II data 

from the Clean Water Act Hazardous 

Substances Discharge Prevention 

Rulemaking, Docket ID EPA–HQ– 

OLEM–2018–0024. 

This environmental justice analysis 

shows that minority and low-income 

populations are more likely to live in 

proximity to those facilities (and thus 

are at greater risk) than other 

populations. EPA found 46 percent of 

individuals in proximity (defined as 

living within a one-half mile radius) to 

potentially regulated facilities are lowincome; the average in the United States 

population is 38 percent. Low-income is 

defined here as less than twice the 

Census Bureau’s poverty threshold. EPA 

also found that 52 percent of people in 

proximity to potentially regulated 

facilities are racial and ethnic 

minorities, including any designation 

except for ‘‘Non-Hispanic, White,’’ 

which includes those identifying as 

Hispanic white or as multiracial white. 

The average in the United States 

population (overall) is 37 percent. This 

is likely an underestimate given that the 

17 states do not include Texas and 

Louisiana: Two states which have 

known communities with 

environmental justice concerns. 

List of Subjects 

40 CFR Part 118 

Environmental protection, Hazardous 

substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 300 

Environmental protection, Hazardous 

substances, Reporting and 

recordkeeping requirements, Water 

pollution control 

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, Title 40, chapter I, of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

■ 1. Add Part 118 to subchapter D to 

read as follows: 

Subchapter D Water Programs 

PART 118—CLEAN WATER ACT 

HAZARDOUS SUBSTANCES WORST 

CASE DISCHARGE PLANNING 

REGULATIONS 

Sec. 

118.1 Purpose. 

118.2 Definitions. 

118.3 Applicability. 

118.4 General requirements. 

118.5 Regional Administrator 

determination of substantial harm and 

significant and substantial harm. 

118.6 Appeals process. 

118.7 Petitions. 


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118.8 Exclusions and exemptions. 

118.9 Mixtures. 

118.10 Worst case discharges. 

118.11 Facility response plan requirements. 

118.12 Coordination activities. 

118.13 Facility response training and drills/ 

exercises. 

Appendix A to Part 118: Certification Form 

Appendix B to Part 118: Toxicity endpoints 

for calculating planning distance for fish, 

wildlife and sensitive environments and 

public receptors. 

Authority: 33 U.S.C. 1251 et seq., and 

Executive Order 11735, superseded by 

Executive Order 12777, 56 FR 54757. 

§ 118.1 Purpose. 

This part establishes Clean Water Act 

(CWA) hazardous substance facility 

response plan requirements for the 

owner or operator of any nontransportation-related onshore facility 

that, because of its location, could 

reasonably be expected to cause 

substantial harm to the environment by 

discharging CWA hazardous substances 

into or on the navigable waters, 

adjoining shorelines, or the exclusive 

economic zone. 

§ 118.2 Definitions. 

For the purposes of this part: 

Adverse weather means weather 

conditions that make it difficult for 

response equipment and personnel to 

clean up or respond to discharged CWA 

hazardous substances, accounting for 

the potential for increased and more 

severe extreme weather events and other 

impacts due to climate change, and that 

must be considered when identifying 

response systems and equipment in a 

response plan for the applicable 

operating environment. 

Article means a manufactured item 

that is formed to a specific shape or 

design during manufacture, has end use 

functions dependent in whole or in part 

upon the shape or design during end 

use, and does not release or otherwise 

result in exposure to a CWA hazardous 

substance under normal conditions of 

processing and use. 

Container means any device or 

portable device in which a CWA 

hazardous substance is processed, 

stored, used, transported, treated, 

disposed of, or otherwise handled. 

Contract or other approved means is 

defined as: 

(1) A written contractual agreement 

with a spill response organization that 

identifies and ensures the availability of 

the necessary personnel and equipment 

within appropriate response times; 

(2) A written certification by the 

owner or operator that the necessary 

personnel and equipment resources, 

owned or operated by the facility owner 

or operator, are available to respond to 

a discharge within appropriate response 

times; 

(3) Active membership in a local or 

regional spill response organization that 

has identified and ensures adequate 

access through such membership to 

necessary personnel and equipment to 

respond to a discharge within 

appropriate response times in the 

specified geographic area; and/or 

(4) Any other specific arrangement 

approved by the Regional Administrator 

upon request of the owner or operator. 

CWA Hazardous Substance means 

any hazardous substance designated in 

40 CFR part 116. 

Discharge includes, but is not limited 

to, any spilling, leaking, pumping, 

pouring, emitting, emptying, or 

dumping of a CWA hazardous 

substance, but excludes: discharges in 

compliance with a permit under section 

402 of the CWA; discharges resulting 

from circumstances identified, 

reviewed, and made a part of the public 

record with respect to a permit issued 

or modified under section 402 of the 

CWA, and subject to a condition in such 

permit; and continuous or anticipated 

intermittent discharges from a point 

source, identified in a permit or permit 

application under section 402 of the 

CWA, that are caused by events 

occurring within the scope of relevant 

operating or treatment systems. 

Distance to the endpoint is the 

distance a CWA hazardous substance 

will travel before dissipating to the 

point that a worst case discharge will no 

longer cause injury to public receptors 

or fish, wildlife, and sensitive 

environments as in Appendix B or 

adversely impact a public water system 

as in § 118.3(c)(2). 

Endpoint means the concentration at 

which a worst case discharge no longer 

has the ability to cause injury to public 

receptors or fish, wildlife, and sensitive 

environments as in Appendix B or 

adversely impact a public water system 

as in § 118.3(c)(2). 

Facility means any nontransportation-related onshore mobile or 

fixed building, property, parcel, lease, 

structure, installation, equipment, pipe, 

or in-plant pipeline (other than a vessel 

or a public vessel), used in CWA 

hazardous substance handling, 

production, manufacturing, storage, 

processing, refining, transfer, 

distribution, treatment, or in which any 

CWA hazardous substance is used. The 

boundaries of a facility depend on 

several site-specific factors, including 

but not limited to, the ownership or 

operation of buildings, structures, and 

equipment on the same site and types of 

activity at the site. Contiguous or noncontiguous buildings, properties, 

parcels, leases, structures, installations, 

pipes, or pipelines under the ownership 

or operation of the same person may be 

considered separate facilities. Nontransportation-related onshore facility 

means any facility of any kind located 

in, on, or under any land within the 

United States and excludes movement 

of CWA hazardous substances in 

interstate or intrastate commerce under 

active shipping papers by rail, pipeline, 

highway vehicle, or vessel pursuant to 

49 CFR 171–180. 

Fish, wildlife, and sensitive 

environments mean areas that may be 

identified by their legal designation or 

by evaluations of Area Committees (for 

planning) or members of the Federal 

On-Scene Coordinator’s spill response 

structure (during responses). These 

areas may include wetlands, National 

and state parks, critical habitats for 

endangered or threatened species, 

wilderness and natural resource areas, 

marine sanctuaries and estuarine 

reserves, conservation areas, preserves, 

wildlife areas, wildlife refuges, wild and 

scenic rivers, recreational areas, 

national forests, Federal and state lands 

that are research national areas, heritage 

program areas, land trust areas, and 

historical and archaeological sites and 

parks. These areas may also include 

unique habitats such as aquaculture 

sites and agricultural surface water 

intakes, bird nesting areas, critical 

biological resource areas, designated 

migratory routes, and designated 

seasonal habitats. 

Injury means a measurable adverse 

change, either long- or short-term, in the 

chemical or physical quality or the 

viability of a natural resource or public 

receptor resulting either directly or 

indirectly from exposure to a discharge, 

or exposure to a product of reactions 

(e.g., more hazardous degradation 

products, ignition, or reaction) resulting 

from a discharge. 

Interconnected containers mean 

containers that are connected via pipes, 

hoses, or other conveyance (either 

permanent or temporary) to allow 

movement of a CWA hazardous 

substance between containers. 

Maximum extent practicable means 

within the limitations used to determine 

CWA hazardous substance release 

planning resources for recovery, 

shoreline protection, and cleanup for 

worst case discharges from onshore nontransportation-related facilities in 

adverse weather. It includes the planned 

capability to respond to a worst case 

discharge, including a discharge 

resulting from fire or explosion, as 

contained in a facility response plan 

that meets the requirements in § 118.11 


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or in a specific plan approved by the 

Regional Administrator. 

Maximum capacity onsite means the 

total aggregate container capacity for 

each CWA hazardous substance present 

at all locations within the entire facility 

at any one time. 

Mitigation or mitigation system(s) 

means specific activities, technologies, 

or equipment designed or deployed to 

capture or control substances upon loss 

of containment to minimize exposure of 

the public or the environment. Passive 

mitigation means equipment, devices, or 

technologies that function without 

human, mechanical, or other energy 

input. 

Navigable waters mean waters of the 

United States, including the territorial 

seas, as defined in 40 CFR 120.2, 

adjoining shorelines, and the exclusive 

economic zone. Exclusive economic 

zone means the zone contiguous to the 

territorial sea of the United States 

extending to a distance up to 200 

nautical miles from the baseline from 

which the breadth of the territorial sea 

is measured. 

Offshore facility means any facility of 

any kind (other than a vessel or public 

vessel) located in, on, or under any of 

the navigable waters of the United 

States, and any facility of any kind that 

is subject to the jurisdiction of the 

United States and is located in, on, or 

under any other waters. 

Offsite means areas beyond the 

property boundary of a facility, and 

areas within the property boundary to 

which the public has routine and 

unrestricted access during or outside 

business hours. 

Onshore facility means any facility of 

any kind located in, on, or under any 

land within the United States other than 

submerged land. Furthermore, this 

extends to in, on, or under any 

submerged land as delegated to the 

Environmental Protection Agency (EPA) 

pursuant to 40 CFR 112 Appendix B. 

Owner or operator means any person 

owning or operating an onshore facility 

or an offshore facility, and in the case 

of any abandoned offshore facility, the 

person who owned or operated or 

maintained the facility immediately 

prior to such abandonment. 

Permanently closed means any 

container or facility for which: 

(1) All CWA hazardous substance and 

residue has been removed from each 

container and connecting line; and 

(2) All connecting lines and piping 

have been disconnected from the 

container and blanked off, all valves 

(except for ventilation valves) have been 

closed and locked, and conspicuous 

signs have been posted on each 

container stating that it is a permanently 

closed container and noting the date of 

closure. 

Person includes an individual, firm, 

corporation, association, or partnership. 

Planning distance means the distance 

to an endpoint such that a worst case 

discharge of CWA hazardous substances 

to water from a facility could adversely 

impact a public water system or cause 

injury to fish, wildlife, and sensitive 

environments or public receptors, as 

described in § 118.10. 

Public receptors mean parks, 

recreational areas, docks, or other public 

spaces inhabited, occupied, or used by 

the public at any time where members 

of the public could be injured as a result 

of a worst case discharge to navigable 

waters. 

Public vessel means a vessel owned or 

bareboat-chartered and operated by the 

United States, or a state or political 

subdivision thereof, or by a foreign 

nation, except when such vessel is 

engaged in commerce. 

Public water system is a system as 

defined in 40 CFR 141.2. A public water 

system is either a ‘‘community water 

system’’ or a ‘‘non-community water 

system.’’ 

Qualified individual (QI) means the 

individual having full authority to 

implement response actions and 

required to initiate immediate 

communications with the appropriate 

Federal official and the persons 

providing personnel and equipment to 

respond, to the maximum extent 

practicable, to a worst case discharge 

(including a discharge resulting from 

fire or explosion) and to mitigate or 

prevent a substantial threat of such a 

discharge. 

Regional Administrator means the 

Regional Administrator of the EPA, in 

and for the Region in which the facility 

is located. 

Respond or response means 

containment, removal, remediation, 

neutralization, source control, 

mechanical recovery, bioremediation, or 

other release countermeasures, in 

accordance with the applicable Regional 

Contingency Plan and Area Contingency 

Plan, of the CWA hazardous substances 

from the water and adjoining shorelines 

or the taking of such other actions that 

may be necessary to prevent, minimize, 

or mitigate damage to the public health 

or welfare, including, but not limited to, 

persons, fish, shellfish, wildlife, public 

water systems, and public and private 

property, shorelines, and beaches. 

Reportable quantities mean quantities 

that may be harmful as set forth in 

§ 117.3, the discharge into the 

environment during a 24-hour period, 

which is a violation of Clean Water Act 

section 311(b)(3) and requires notice as 

set forth in § 117.21. 

Response equipment means 

equipment (including firefighting 

equipment), or other mitigating 

substances and devices, available to an 

owner or operator and Federal, state, 

and local or Tribal agencies, designed or 

used to ensure an effective and 

immediate response to a discharge, and 

to ensure mitigation or prevention of a 

substantial threat of a discharge. 

Response resources means the 

personnel, equipment, supplies, and 

other capability necessary to perform 

the response activities identified in the 

facility response plan required under 

this part. 

Source water protection area: The 

area delineated by the state for a public 

water system or including numerous 

public water systems, whether the 

source is ground water or surface water 

or both, as part of the state Source Water 

Assessment Program approved by EPA 

under section 1453 of the Safe Drinking 

Water Act (42 U.S.C. 300j–13). 

Spill response organization (SRO) 

means an entity that provides spill 

response resources to mitigate or 

remove CWA hazardous substances 

from the environment and mitigate 

associated impacts. 

Transportation or transport means the 

movement of property and loading, 

unloading, or storage incidental to 

movement pursuant to 49 CFR 171–199. 

Transportation-related onshore 

facility means any facility of any kind, 

in, on, or under any land within the 

United States which provides 

movement or conveyances of CWA 

hazardous substances in interstate or 

intrastate commerce by rail, pipeline, 

highway vehicle, or vessel pursuant to 

49 CFR 171–199. 

United States means the States, the 

District of Columbia, the 

Commonwealth of Puerto Rico, the 

Commonwealth of the Northern Mariana 

Islands, Guam, American Samoa, the 

U.S. Virgin Islands, and the Pacific 

Island Governments. 

Vessel means every description of 

watercraft or other artificial contrivance 

used, or capable of being used, as a 

means of transportation on water other 

than a public vessel. 

Water distribution system means a 

system which delivers potable water to 

many end users and has a source of 

water, a treatment plant to make the 

water drinkable, storage facility to keep 

water until it is needed and distribution 

system to deliver water to the end user. 

Worst case discharge for an onshore 

non-transportation-related facility 

means the largest foreseeable discharge 

in adverse weather conditions including 


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a discharge resulting from fire or 

explosion. 

§ 118.3 Applicability. 

This part applies to the owner or 

operator of any non-transportationrelated onshore facility that, because of 

its location, could reasonably be 

expected to cause substantial harm to 

the environment by discharging CWA 

hazardous substances into or on the 

navigable waters by meeting the 

following criteria: 

(a) Threshold quantity. The maximum 

capacity onsite for any CWA hazardous 

substance listed at 40 CFR 116.4, at any 

one time, meets or exceeds 10,000 times 

the Reportable Quantity in pounds 

(kilograms) found at 40 CFR 117.3. Do 

not include any exemptions identified 

in § 118.8 or permanently closed 

containers in this determination. To 

calculate the threshold quantities of 

CWA hazardous substances in mixtures, 

follow the procedures in § 118.9; and 

(b) Proximity to navigable waters. The 

facility is located within one-half mile 

of navigable waters or a conveyance to 

navigable waters; and 

(c) Substantial harm criteria. The 

facility meets one or more of the 

following substantial harm criteria: 

(1) Ability to cause injury to fish, 

wildlife, and sensitive environments. 

The facility is located at a distance to an 

endpoint as calculated using a planning 

distance in § 118.10(b) such that a worst 

case discharge from the facility could 

cause injury to fish, wildlife, and 

sensitive environments. For 

identification of fish, wildlife, and 

sensitive environments, facilities shall 

use the applicable Area Contingency 

Plan prepared pursuant to section 

311(j)(4) of the Clean Water Act, in 

addition to identifying other areas 

pursuant to the definition in § 118.2; 

(2) Ability to adversely impact a 

public water system. The facility is 

located at a distance to an endpoint 

such that a discharge from the facility 

could adversely impact a public water 

system. Ability to adversely impact a 

public water system includes a 

concentration of a CWA hazardous 

substance reaching a public water 

system which: 

(i) Violates any National Primary 

Drinking Water Standard or State 

Drinking Water Regulation, such as an 

exceedance of a Maximum Contaminant 

Level at the point of compliance. If the 

facility is unable or unwilling to work 

with the public water system to 

determine the point of compliance, the 

facility shall use the water intake; 

(ii) Compromises the ability of the 

public water system to produce water 

that complies with any National 

Primary Drinking Water Standard or 

State Drinking Water Regulation; 

(iii) Results in adverse health impacts 

in people exposed to the maximum 

concentration that could enter a 

drinking water distribution system; 

(iv) Contaminates public water system 

infrastructure, including but not limited 

to intake structures, treatment facilities, 

and drinking water distribution systems, 

or premise plumbing systems to a 

degree that requires remediation to 

restore system components to 

acceptable performance; 

(v) Impairs the taste, odor, or other 

aesthetic characteristic of the water 

entering a drinking water distribution 

system to a degree that could make the 

water unacceptable to consumers and 

that could prompt the public water 

system to issue use restrictions; 

(3) Ability to cause injury to public 

receptors. The facility is located at a 

distance to an endpoint as calculated 

using a planning distance in § 118.10(b) 

such that a discharge to navigable water 

from the facility could cause injury to a 

public receptor as defined in § 118.2; or 

(4) Reportable discharge history. The 

facility has had a reportable CWA 

hazardous substance discharge under 

§ 117.21 within the last five years. 

§ 118.4 General requirements. 

(a) Preparation and submission of 

facility response plans. The owner or 

operator of any facility meeting the 

applicability requirements of § 118.3 

shall prepare and submit a facility 

response plan to the EPA, according to 

the following provisions: 

(1) Initially regulated facilities. The 

owner or operator of a facility in 

operation on the effective date of the 

final rule that satisfies the criteria in 

§ 118.3 or that is notified by the 

Regional Administrator pursuant to 

§ 118.5 shall prepare and submit a 

facility response plan that satisfies the 

requirements of this section to the 

Regional Administrator within 12 

months of meeting the criteria or 

notification. 

(2) Newly regulated facilities. The 

owner or operator of a facility in 

operation after the effective date of the 

final rule that satisfies the criteria in 

§ 118.3 or that is notified by the 

Regional Administrator pursuant to 

§ 118.5 shall prepare and submit a 

facility response plan that satisfies the 

requirements of this section to the 

Regional Administrator within six 

months of meeting the criteria or 

notification, but no sooner than 12 

months after the effective date of the 

final rule. 

(3) Newly constructed facilities. For a 

newly constructed facility that 

commences operation after the effective 

date of the final rule, and is required to 

prepare and submit a facility response 

plan based on the criteria in § 118.3, the 

owner or operator shall submit the 

facility response plan to the Regional 

Administrator prior to the start of 

operations, but no sooner than 12 

months after the effective date of the 

final rule. Adjustments to the facility 

response plan to reflect changes that 

occur at the facility during the start-up 

phase of operations must be submitted 

to the Regional Administrator after an 

operational trial period of 60 days. 

(4) Facilities regulated as a result of 

a planned event or change. For a facility 

required to prepare and submit a facility 

response after the effective date of the 

final rule as a result of a planned change 

in design, construction, operation, or 

maintenance so that the facility now 

meets the criteria in § 118.3, the owner 

or operator shall submit the facility 

response plan to the Regional 

Administrator before the portion of the 

facility undergoing the planned change 

commences operations, but no sooner 

than 12 months after the effective date 

of the final rule (adjustments to the 

facility response plan to reflect changes 

that occur at the facility during the startup phase of operations must be 

submitted to the Regional Administrator 

after an operational trial period of 60 

days). 

(5) Facilities regulated as a result of 

an unplanned event or change. For a 

facility required to prepare and submit 

a facility response plan after the 

effective date of the final rule, as a result 

of an unplanned event or change in 

facility characteristics that renders the 

facility subject to the criteria in § 118.3, 

the owner or operator shall submit the 

facility response plan to the Regional 

Administrator within six months of the 

unplanned event or change, but no 

sooner than 12 months after the 

effective date of the final rule. 

(b) Facility response plan 

amendments. 

(1) The owner or operator of a facility 

for which a facility response plan is 

required under this part shall revise and 

resubmit revised portions of the facility 

response plan within 60 days of each 

facility change that materially may 

affect the response to or potential for a 

worst case discharge, including: 

(i) A change in the facility’s 

configuration that materially alters the 

information included in the facility 

response plan; 

(ii) A change in the CWA hazardous 

substance maximum capacity onsite 

(e.g., commissioning or 

decommissioning of containers; 

replacement, reconstruction, or 


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movement of containers) that materially 

alters the required response resources; 

(iii) A material change in capabilities 

of the spill response organization(s) that 

provide equipment and personnel to 

respond to discharges of CWA 

hazardous substances described in 

§ 118.11(a)(3); 

(iv) A material change in the facility’s 

discharge mitigation and response 

equipment or emergency response 

procedures; and 

(v) Any other changes that materially 

affect the implementation of the facility 

response plan. 

(2) Except as provided in paragraph 

(b) of this section, amendments to 

information in the facility response plan 

(such as personnel, contact information, 

or changes in the spill response 

organization(s)) that do not result in a 

material change in response capabilities 

do not require review and approval by 

the Regional Administrator. Facility 

owners or operators shall provide a 

copy of such changes to the Regional 

Administrator as the revisions occur. 

(3) The owner or operator of a facility 

that submits changes to a facility 

response plan as provided in the 

preceding paragraphs of this section 

shall provide the EPA-issued facility 

identification number (where one has 

been assigned, such as Facility Registry 

Service number) with the changes. 

(4) The Regional Administrator shall 

review and approve or disapprove 

changes to a facility response plan 

submitted pursuant to the requirements 

in paragraph (b)(1) of this section for a 

facility that he or she has determined 

pursuant to § 118.5(c) to have the 

potential to cause significant and 

substantial harm to human health or the 

environment. 

(c) Substantial harm certification form 

submission. If the facility meets the 

criteria in § 118.3(a) and (b), the owner 

or operator must: 

(1) Complete and submit to the EPA 

Regional Administrator the substantial 

harm certification form in Appendix A 

to this part within 12 months of the 

effective date of the final rule or, for 

new facilities, within one month of 

meeting the criteria in § 118.3(a) and (b), 

but not sooner than 12 months after the 

effective date of the final rule. Owner or 

operators must retain their completed 

Appendix A and supporting 

documentation for the duration that the 

CWA hazardous substance maximum 

capacity onsite is at or exceeds the 

threshold quantity and for an additional 

10 years. 

(2) Attach to the form documentation, 

calculations, and any other information 

necessary to demonstrate the reliability 

and analytical soundness of the 

substantial harm determination as well 

as a review of potential receptors that 

could be impacted as a result of a CWA 

hazardous substance discharge. 

(3) Submit to the EPA Regional 

Administrator updates to the substantial 

harm certification every five years, or 

within 60 days of a change at or outside 

the facility that impacts the facility’s 

potential to cause substantial harm to 

the environment in accordance with the 

criteria in § 118.3. 

(d) Assertion of claims of confidential 

business information. 

(1) Except as provided in paragraph 

(2) of this section, an owner or operator 

of a facility required to submit a facility 

response plan or otherwise provide 

information under this part may make a 

claim of confidential business 

information for any such information 

that meets the criteria set forth in 

§ 2.302 of this chapter. 

(2) Notwithstanding the provisions of 

40 CFR part 2, an owner or operator of 

a facility subject to this part may not 

claim as confidential business 

information the following information: 

(i) Data required by § 118.11 (b); and 

(ii) Data required in Appendix A of 

this part, excluding the supporting 

documentation. 

(iii) Notwithstanding the procedures 

specified in 40 CFR part 2, an owner or 

operator asserting a claim of CBI with 

respect to information contained in its 

facility response plan as per § 118.11, 

shall submit to EPA at the time it 

submits the facility response plan the 

following: 

(A) The information claimed 

confidential, provided in a format to be 

specified by EPA; 

(B) A sanitized (redacted) copy of the 

facility response plan, with the notation 

‘‘CBI’’ substituted for the information 

claimed confidential, except that a 

generic category or class name shall be 

substituted for any chemical name or 

identity claimed confidential; and 

(C) The document or documents 

substantiating each claim of confidential 

business information, as described in 

paragraph (e) of this section. 

(e) Substantiating claims of 

confidential business information. 

(1) An owner or operator claiming 

that information is confidential business 

information must substantiate that claim 

by providing documentation that 

demonstrates that the claim meets the 

substantive criteria set forth in § 2.302 

of this chapter. 

(2) Information that is submitted as 

part of the substantiation may be 

claimed confidential by marking it as 

confidential business information. 

Information not so marked will be 

treated as public and may be disclosed 

without notice to the submitter. If 

information that is submitted as part of 

the substantiation is claimed 

confidential, the owner or operator must 

provide sanitized and unsanitized 

versions of the substantiation. 

(3) The owner, operator, or senior 

official with management responsibility 

at the facility shall sign a certification 

that the signer has personally examined 

the information submitted and that 

based on inquiry of the persons who 

compiled the information, the 

information is true, accurate, and 

complete, and that those portions of the 

substantiation claimed as confidential 

business information would, if 

disclosed, reveal trade secrets or other 

confidential business information. 

§ 118.5 Regional Administrator 

determination of substantial harm and 

significant and substantial harm. 

(a) Regional Administrator authority 

to require facility response plans. The 

Regional Administrator may at any time 

require the owner or operator of any 

non-transportation-related onshore 

facility to prepare and submit a facility 

response plan under this section after 

considering the factors in paragraph (b) 

of this section. If such a determination 

is made, the Regional Administrator 

shall notify the facility owner or 

operator in writing and shall provide a 

basis for the determination. If the 

Regional Administrator notifies the 

owner or operator in writing of the 

requirement to prepare and submit a 

facility response plan under this 

section, the owner or operator of the 

facility shall submit the facility 

response plan to the Regional 

Administrator within six months of 

receipt of such written notification but 

no sooner than 12 months after the 

effective date of the final rule. 

(b) Regional Administrator substantial 

harm determination. To determine 

whether a facility could, because of its 

location, reasonably be expected to 

cause substantial harm to the 

environment by a discharge, or 

substantial threat of a discharge, of 

CWA hazardous substances to navigable 

waters, the Regional Administrator may 

consider the following: 

(1) Type of transfer operation(s); 

(2) CWA hazardous substance 

quantity and category as determined in 

40 CFR 117.3 stored onsite; 

(3) Proximity to fish, wildlife, and 

sensitive environments and other areas 

determined by the Regional 

Administrator to possess ecological 

value; 

(4) Ability to adversely impact public 

water systems as described in 

§ 118.3(c)(ii); 


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(5) Location in a source water 

protection area; 

(6) Ability to cause substantial harm 

to public receptors due to a worst case 

discharge to navigable waters; 

(7) Lack of passive mitigation 

measures or systems, including those 

that enhance resilience to climate 

change; 

(8) Potential for a worst case discharge 

to adversely impact communities with 

environmental justice concerns; 

(9) Potential vulnerability to adverse 

weather conditions resulting from 

climate change; 

(10) Reportable discharge history; or 

(11) Other site-specific characteristics 

and environmental factors that the 

Regional Administrator determines to be 

relevant to protecting the public or 

environment from harm by discharges, 

or a substantial threat of discharge, of 

CWA hazardous substances into or on 

navigable waters. 

(c) Regional Administrator 

responsibilities for significant and 

substantial harm facilities. The Regional 

Administrator shall review facility 

response plans submitted by facilities 

meeting the applicability requirements 

of § 118.3 to determine whether the 

facility could, because of its location, 

reasonably be expected to cause 

significant and substantial harm to the 

environment by a discharge, or a 

substantial threat of discharge, of CWA 

hazardous substances into or on the 

navigable waters based on the factors 

identified in paragraph (d) of this 

section. If such a determination is made, 

the Regional Administrator shall notify 

the owner or operator of the facility in 

writing and: 

(1) Promptly review the facility 

response plan; 

(2) Require amendments to any 

facility response plan that does not meet 

the requirements of this section; 

(3) Approve any facility response plan 

that meets the requirements of this 

section; and 

(4) Review each facility response plan 

periodically thereafter on a schedule 

established by the Regional 

Administrator. 

(d) Regional Administrator significant 

and substantial harm determination. To 

determine whether a facility could, 

because of its location, reasonably be 

expected to cause significant and 

substantial harm to the environment by 

discharging a CWA hazardous substance 

into or on the navigable waters, the 

Regional Administrator shall consider 

the factors in paragraph (b) of this 

section and § 118.3(c), as well as the 

following: 

(1) Frequency of past reportable 

discharges; 

(2) Proximity to navigable waters; 

(3) Age of containers and equipment; 

(4) Potential for hazards such as 

flooding, hurricanes, earthquakes, or 

other disasters that could result in a 

worst case discharge; and 

(5) Other facility-specific and Regionspecific information, including local 

impacts on public health. 

§ 118.6 Appeals process. 

(a) Owner or operator request to 

reconsider requirement to prepare a 

facility response plan. In the event the 

owner or operator of a facility does not 

agree with the Regional Administrator’s 

determination that the facility could, 

because of its location, reasonably be 

expected to cause substantial harm or 

significant and substantial harm to the 

environment by discharging CWA 

hazardous substances into or on the 

navigable waters, or that amendments to 

the facility response plan are necessary 

prior to approval, such as changes to the 

worst case discharge planning quantity, 

the owner or operator may submit a 

request for reconsideration to the 

Regional Administrator and provide 

additional information and data in 

writing to support the request. The 

request and accompanying information 

must be submitted to the Regional 

Administrator within 60 days of receipt 

of notice of the Regional Administrator’s 

original decision. The Regional 

Administrator shall consider the request 

and render a decision as soon as 

practicable. 

(b) Owner or operator request to 

reconsider facility classification status. 

In the event the owner or operator of a 

facility believes a change in the facility’s 

classification status is warranted 

because of an unplanned event or 

change in the facility’s characteristics 

(i.e., substantial harm or significant and 

substantial harm), the owner or operator 

may submit a request for 

reconsideration to the Regional 

Administrator and provide additional 

information and data in writing to 

support the request. The Regional 

Administrator shall consider the request 

and render a decision as soon as 

practicable. 

(c) Appeal process following Regional 

Administrator decision. After a request 

for reconsideration under paragraph (a) 

or (b) of this section has been denied by 

the Regional Administrator, an owner or 

operator may appeal a determination 

made by the Regional Administrator. 

The appeal shall be made to the EPA 

Administrator and shall be made in 

writing within 60 days of receipt of the 

decision from the Regional 

Administrator that the request for 

reconsideration was denied. A complete 

copy of the appeal must be sent to the 

Regional Administrator at the time the 

appeal is made. The appeal shall 

contain a clear and concise statement of 

the issues and points of fact in the case. 

It also may contain additional 

information from the owner or operator, 

or from any other person. The EPA 

Administrator may request additional 

information from the owner or operator, 

or from any other person. The EPA 

Administrator shall render a decision as 

soon as practicable and shall notify the 

owner or operator of the decision, at 

which time the owner or operator must 

submit a Facility Response Plan within 

60 days. 

§ 118.7 Petitions. 

(a) Any person, including a member 

of the public or any representative from 

a Federal, state, or local agency who 

believes that a facility subject to this 

section could, because of its location, 

reasonably be expected to cause 

substantial harm to the environment by 

a discharge, or substantial threat of a 

discharge, of CWA hazardous substance 

into or on the navigable waters may 

petition the Regional Administrator to 

determine whether the facility meets the 

criteria in section § 118.3. Such a 

petition shall include a discussion of 

how the factors in § 118.3 apply to the 

facility in question. The Regional 

Administrator shall consider such 

petitions and respond as soon as 

practicable. 

§ 118.8 Exceptions and exemptions. 

(a) Exceptions. This part does not 

apply to the owner or operator of any 

facility, equipment, or operation that is 

not subject to the jurisdiction of the EPA 

under section 33 U.S.C. 1321(j)(5)(C), as 

follows: 

(1) Any onshore facility, that due to 

its location, could not reasonably be 

expected to have a discharge, or 

substantial threat of a discharge, as 

described in § 118.3. This determination 

must be based solely upon 

consideration of the geographical and 

location aspects of the facility (such as 

proximity to navigable waters, land 

contour, drainage, etc.) and must 

exclude consideration of manmade 

features such as dikes, equipment, or 

other structures, which may serve to 

restrain, hinder, contain, or otherwise 

prevent a discharge. 

(2) Any equipment, or operation of a 

vessel or transportation-related onshore 

facility which is subject to the authority 

and control of the U.S. Department of 

Transportation, and which provides 

movement or conveyances of CWA 

hazardous substances in interstate or 

intrastate commerce by rail, pipeline, 


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highway vehicle, or vessel. For modes 

other than pipeline, this exception is 

limited to movement under active 

shipping papers prior to arrival at a final 

destination pursuant to 49 CFR 171– 

180. 

(3) Any equipment, or operation of a 

vessel or onshore or offshore facility 

which is subject to the authority and 

control of the U.S. Coast Guard or the 

U.S. Department of the Interior, as 

defined in the Memorandum of 

Understanding between the Secretary of 

Transportation, the Secretary of the 

Interior, and the Administrator of EPA 

(40 CFR part 112, Appendix B). 

(4) Any underground storage tank and 

connected underground piping, 

underground ancillary equipment, and 

containment systems, at any facility, 

that is subject to all of the technical 

requirements of part 280 of this chapter 

or a state program approved under part 

281 of this chapter. 

(b) Exemptions. For the purposes of 

determining whether the maximum 

capacity onsite meets or exceeds the 

threshold quantity of a CWA hazardous 

substance or substances, under 

§ 118.3(a), at the facility, the following 

exemptions apply: 

(1) Articles. CWA hazardous 

substances contained in articles need 

not be considered when determining 

whether the maximum capacity onsite 

meets or exceeds the threshold quantity. 

(2) Uses. CWA hazardous substances, 

when in use for the following purposes, 

need not be included in determining 

whether the maximum capacity onsite 

meets or exceeds the threshold quantity: 

(i) Structural components. Use as a 

structural component of the facility; 

(ii) Janitorial. Use of products for 

routine janitorial maintenance; 

(iii) Foods, drugs, cosmetics. Use by 

employees of foods, drugs, cosmetics, or 

other personal items containing the 

CWA hazardous substance; 

(iv) Process water or cooling water. 

Use of CWA hazardous substances 

present in process water or non-contact 

cooling water as drawn from the 

environment or municipal sources; 

(v) Compressed air. Use of CWA 

hazardous substances present in air 

used either as compressed air or as part 

of combustion; and 

(vi) Retail and personal uses. Use for 

personal, family, or household 

purposes, or present in the same form 

and concentration as a product 

packaged for distribution and use by the 

general public. Present in the same form 

and concentration as a product 

packaged for distribution and use by the 

general public means a CWA hazardous 

substance packaged in a similar manner 

and present in the same concentration 

as the substance when packaged for use 

by the general public, whether or not it 

is intended for distribution to the 

general public or used for the same 

purpose as when it is packaged for use 

by the general public. 

§ 118.9 Mixtures. 

For the purposes of determining the 

CWA hazardous substance maximum 

capacity onsite at the facility of CWA 

hazardous substance(s), under 

§ 118.3(a), the following provisions 

apply to CWA hazardous substances 

mixtures: 

(a) If the quantity of all of the CWA 

hazardous substance constituent(s) of 

the mixture or solution is known, the 

mixture meets the threshold quantity 

when the maximum capacity onsite, as 

defined in § 118.2, meets or exceeds the 

threshold quantity of any CWA 

hazardous substance in the mixture by 

extrapolating the amount of each 

constituent to the full capacity of the 

container. 

(b) If the quantity of one or more of 

the CWA hazardous substance 

constituent(s) of the mixture or solution 

is unknown, the mixture meets the 

threshold when the maximum capacity 

onsite of the mixture or solution meets 

or exceeds the quantity for the CWA 

hazardous substance established in 

section § 118.3(a) with the lowest 

threshold quantity by extrapolating the 

amount of the known constituent(s) to 

the full capacity of the container. 

§ 118.10 Worst case discharge. 

Facilities are required to model a 

worst case discharge scenario; calculate 

endpoint distances to fish, wildlife, and 

sensitive environments and public 

receptors; and compare endpoint 

concentration(s) against calculated 

concentration(s). The worst case 

discharge scenario represents the single 

CWA hazardous substance maximum 

capacity onsite that meets or exceeds 

the threshold quantity set in § 118.3(a) 

that equals the largest quantity 

following the below parameters: 

(a) Determination of worst case 

discharge quantity. The worst case 

discharge quantity shall be the greater of 

the following: 

(1) For CWA hazardous substances in 

separate containers, the maximum 

capacity of a single container; 

(2) For CWA hazardous substances in 

interconnected containers, the 

maximum capacity of a group of 

interconnected containers; or 

(3) For substances in pipes, the 

maximum capacity of a pipe or 

interconnected pipes, and the owner or 

operator must provide evidence in the 

facility response plan that containers 

with common piping or piping systems 

are not operated as one unit. 

(4) For mixtures of CWA hazardous 

substances, assume the entire capacity 

of the container, interconnected 

containers, or pipes or interconnected 

pipes hold(s) the CWA hazardous 

substance with the lowest RQ. 

(b) Planning distance determinations. 

To determine the distance to endpoints 

for fish, wildlife, and sensitive 

environments, public water systems, 

and public receptors as referenced in 

§ 118.3(c), a facility shall use a 

methodology, model, or other technique 

that accounts for facility-specific 

conditions and accounts for the stated 

requirements in this paragraph. A 

facility may use proprietary models, 

provided that the owner or operator 

allows EPA access to the model, submits 

documentation that demonstrates the 

reliability and analytical soundness of 

the methodology used, and describes 

the model’s features to local emergency 

planners, upon request. 

(1) Endpoints for fish, wildlife, and 

sensitive environments are provided in 

Appendix B of this part. 

(2) Endpoints for public receptors are 

provided in Appendix B of this part. 

(3) In determining the distance to 

endpoints, owners or operators shall 

consider the following parameters: 

(i) Factors affecting overland transport 

including: 

(A) Nearest opportunity for discharge 

to navigable waters; 

(B) Ground conditions which may 

include topography of the surrounding 

area, drainage patterns, land use 

coverage, impervious cover, soil 

distribution or porosity, and soil 

absorption rate or soil saturation during 

adverse weather conditions; and 

(C) Properties of the CWA hazardous 

substance, which may include 

evaporation rate based on wind speed; 

atmospheric stability, ambient 

temperature, pressure, and humidity; 

reactivity with rainwater and/or other 

substances; ignitability and explosive 

potential; flooding; and pooling. 

(ii) Factors affecting in-water 

transport including: 

(A) Point of entry to navigable water; 

(B) Flow rate and duration of the 

discharge; 

(C) Direction of the discharge at the 

point of entry; 

(D) Surface versus underwater entry; 

and 

(E) Conditions of the receiving water 

including the velocity of the navigable 

water which may be affected by: Slope 

of the river; hydraulic radius; 

turbulence and potential for crosschannel mixing; Manning’s Roughness 

coefficient; differentiation of still, tidal 


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or moving waters; currents; wave height; 

tidal influence; and water temperature 

and salinity. 

(iii) Adverse weather conditions, 

which shall be calculated based on 

adverse winds, currents, and/or river 

stages, over a range of seasons, weather 

conditions, and river stages. 

(iv) Properties of the CWA hazardous 

substance such as solubility in water, 

speciation in water, density (relative to 

water), polarity, vapor pressure, 

reactivity with water and common 

solutes in natural waterbodies, human 

toxicity, mammalian toxicity, aquatic 

toxicity, and flammability. 

§ 118.11 Facility response plan 

requirements. 

(a) General requirements. A written 

plan that complies with other Federal 

contingency plan regulations or is 

consistent with the approach in the 

National Response Team’s Integrated 

Contingency Plan Guidance (‘‘One 

Plan’’) and that includes the elements 

provided in this section shall satisfy the 

requirements. The owner or operator 

may augment an existing plan with 

these required elements. All facility 

response plans must include the 

following: 

(1) Consistency With National 

Contingency Plan and Area Contingency 

Plans. Plans must be consistent with the 

requirements of the National Oil and 

Hazardous Substance Pollution 

Contingency Plan (40 CFR part 300) and 

applicable Area Contingency Plans 

prepared pursuant to section 311(j)(4) of 

the Clean Water Act. 

(i) The owner or operator shall review 

relevant portions of the National Oil and 

Hazardous Substances Pollution 

Contingency Plan and applicable Area 

Contingency Plan annually and, if 

necessary, revise the facility response 

plan to ensure consistency with these 

plans. 

(2) Qualified individual. Identify the 

qualified individual having full 

authority to implement response actions 

and require immediate communications 

between that individual and the 

appropriate Federal official and the 

persons providing personnel and 

equipment, with a description of duties 

including: 

(i) Activate internal alarms and 

hazard communication systems to notify 

all facility personnel; 

(ii) Notify all response personnel, as 

needed; 

(iii) Identify the character, exact 

source, amount, and extent of the 

discharge, as well as the other items 

needed for notification; 

(iv) Notify and provide necessary 

information to the appropriate Federal, 

state, and local authorities with 

designated response roles, including the 

National Response Center, State 

Emergency Response Commission or 

Tribal Emergency Response 

Commission, and Local Emergency 

Planning Committee or Tribal 

Emergency Planning Committee; 

(v) Notify and provide necessary 

information to public water systems that 

may be impacted by a discharge; 

(vi) Assess the interaction of the 

discharged CWA hazardous substance 

with water, solutes in water, water 

treatment chemicals, and/or other 

substances stored at the facility and 

notify response personnel at the scene 

of that assessment; 

(vii) Assess the possible hazards to 

human health and the environment due 

to the discharge. This assessment must 

consider both the direct and indirect 

effects of the discharge (i.e., the effects 

of any toxic, irritating, or asphyxiating 

gases that may be generated, or the 

effects of any hazardous surface water 

runoffs from water or chemical agents 

used to control fire and heat-induced 

explosion) and initiate appropriate 

monitoring; 

(viii) Implement prompt response 

actions to contain and respond, to the 

maximum extent practicable, to the 

CWA hazardous substance discharged; 

(ix) Coordinate rescue and response 

actions as previously arranged with all 

response personnel; 

(x) Use authority to immediately 

access company funding to initiate 

cleanup activities; 

(xi) Direct cleanup activities until 

properly relieved of this responsibility; 

and 

(xii) Acquire and maintain incident 

commander training requirements 

consistent with 29 CFR 

1910.120(q)(6)(v). 

(3) Response resources. Identify, and 

ensure by contract or other approved 

means, the availability of private 

personnel and equipment necessary to 

respond to the maximum extent 

practicable to a worst case discharge of 

CWA hazardous substances (including a 

discharge resulting from fire or 

explosion), and to mitigate or prevent a 

substantial threat of such a discharge; 

(4) Training, testing and drills. 

Describe the training, equipment testing, 

periodic unannounced drills, and 

response actions of persons at the 

facility to be carried out under the plan 

to ensure facility safety and to mitigate 

or prevent the discharge, or the 

substantial threat of a discharge; and, 

(5) Plan updates. Review and update 

facility response plan periodically and 

resubmit to the Regional Administrator 

for approval of each significant change. 

(b) Emergency response information. 

The facility response plan shall include: 

(1) Facility information. Facility 

details including the facility name; 

latitude and longitude; street address, 

with city, state, and zip code; telephone 

number; and facility location 

information described in a manner that 

would aid a reviewer and a responder 

in locating the facility; 

(2) Owner or operator information. 

Contact information to include name 

and preferred contact method; 

(3) Hazard evaluation. Hazard 

evaluation for worst case discharge and 

risk-based decision support system shall 

include: 

(i) Chemical-specific information, 

including the response considerations, 

health hazards, fire hazards, chemical 

reactivity, hazard classifications, and 

physical and chemical properties; 

potential effects of a CWA hazardous 

substance worst case discharge on the 

ability to adversely impact a public 

water system; ability to cause injury to 

fish, wildlife, and sensitive 

environments; and ability to cause 

injury to public receptors; impacts to 

communities with environmental justice 

concerns; and impacts of climate 

change, including but not limited to 

increased flooding or subsidence, sea 

level rise, wildfires, and increased 

vulnerability to and changes in the 

frequency of natural disasters. 

Illustrative diagrams of the hazard 

evaluation should be included in the 

hazard evaluation. 

(ii) This section of the plan must 

outline processes that will help 

responders make decisions relating to 

the identification, evaluation, and 

control of risks to human health and the 

environment following a CWA 

hazardous substance discharge. The 

processes outlined below do not need to 

be scenario-specific but can be generic 

in nature. At a minimum, the processes 

must include all the following: 

(A) Risk identification—describe the 

process that will be used to determine 

the extent and route of CWA hazardous 

substance exposure to humans and the 

environment including location of 

containers and their contents; 

(B) Risk characterization—describe 

the process that will be used to establish 

relative degrees of risk and prioritizing 

risks; 

(C) Risk control—describe the process 

that will be used to determine feasible 

response methods to mitigate CWA 

hazardous substance discharge impacts 

on human health and the environment; 

and 

(D) Risk communication—describe 

the process that will be used to 

communicate information resulting 


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from paragraphs (A), (B), and (C) of this 

section to parties internal and external 

to response activities. 

(4) Reportable discharge history. 

Discharges reported under 40 CFR part 

117.21 that reached navigable water 

with additional data including date, 

time, and discharge duration; CWA 

hazardous substance(s) discharged; 

estimated quantity discharged in 

pounds; quantity discharged that 

reached navigable water in pounds; the 

type of discharge event and its source; 

weather conditions; on-site impacts; 

offsite impacts; initiating event; 

description of how the discharge was 

detected; clean-up actions taken, steps 

taken to reduce the possibility of 

recurrence; and contributing factors; 

(5) Response personnel and 

equipment. The identity and a 

description of response personnel and 

equipment and response action 

implementation necessary to respond to 

the maximum extent practicable to a 

worst case discharge of a CWA 

hazardous substance described in 

§ 118.10, and to mitigate or prevent a 

substantial threat of a worst case 

discharge; 

(6) Contracts. Evidence of contracts or 

other approved means as per the 

definition in § 118.2 to ensure the 

availability of proper response 

personnel and equipment; 

(7) Notifications. A list of the 

identities, contact information, and 

preferred communication method(s) of 

individuals or organizations to be 

notified in the event of a discharge so 

that immediate communications and 

liaising between the qualified 

individual identified in paragraph (a)(2) 

of this section and the appropriate 

Federal officials; state, local, or Tribal 

response organizations; and persons 

providing response personnel and 

equipment can be ensured, and a 

description of communication methods. 

Notification shall include but not be 

limited to the: National Response 

Center, qualified individual, facility 

response team, Federal On-Scene 

Coordinator and/or Regional Response 

Center, local response team (fire 

department or cooperatives), fire 

marshal, the State Emergency Response 

Commission or Tribal Emergency 

Response Commission, state police, 

Local Emergency Planning Committee 

or Tribal Emergency Planning 

Committee, downstream public water 

systems, local television/radio stations 

for evacuation notification, local 

hospitals, and any other potential 

receptor or interested party who could 

be impacted by a discharge; 

(8) Discharge information. A 

description of information to pass to 

response personnel in the event of a 

reportable discharge, including specifics 

about the event, CWA hazardous 

substance name and quantity 

discharged, possible areas and receptors 

affected, potential routes of transport, 

distance(s) to nearby waterways and 

conveyances, any data on the 

characteristics of the CWA hazardous 

substance and other hazardous 

substances in proximity, ignition 

sources, and any other information that 

may be helpful to responders and the 

public; 

(9) Personnel roles and 

responsibilities. A description of 

response personnel capabilities, 

including the duties of persons at the 

facility during a response action and 

their response times, training, and 

qualifications; 

(10) Response equipment information. 

A description of the facility’s response 

equipment, the location of the 

equipment, last inspection or response 

equipment test date, inspection 

frequency, last deployment drill date, 

deployment frequency, response times, 

and equipment testing; 

(11) Evacuation plans. Facility-wide 

plans for evacuation including a 

diagram and a reference to and 

coordination with community 

evacuation plans, as appropriate, and 

considering locations of CWA 

hazardous substances and their risks 

when discharged; anticipated flow 

direction; water conditions; emergency 

response personnel and equipment 

arrival routes; limitations on evacuation 

routes; transportation of injured 

personnel to nearest emergency medical 

facility; location of alarm/notification 

systems; check-in areas for evacuation 

validation; command center location; 

and location of shelter at the facility as 

an alternative to evacuation; 

(12) Discharge detection systems. 

Procedures and equipment used to 

detect discharges, as well as detect and 

monitor any hazardous air releases 

resulting from discharges to navigable 

water, including personnel or automatic 

discharge detection for regular and 

afterhours operations by CWA 

hazardous substance, reliability checks, 

and inspection frequency; 

(13) Response actions. Response 

actions to be carried out by facility 

personnel or contracted personnel 

under the facility response plan to 

ensure the safety of the facility and to 

mitigate or prevent discharges described 

in § 118.10 or the substantial threat of 

such discharges, including immediate 

response actions for personnel safety, 

personal protective equipment use, 

facility personnel responsibilities by job 

title, facility personnel actions, facility 

personnel information gathering 

assignments for response personnel, and 

facility responsibilities to mitigate a 

CWA hazardous substance incident. For 

air or water sampling or monitoring, 

include personnel responsibilities for 

recordkeeping, procedures for sharing 

real time data with response personnel 

and the public, personal protective 

equipment requirements, and safety 

procedures; 

(14) Disposal plans. Plans to dispose 

of contaminated cleanup materials, if 

appropriate to the material, including 

how and where the facility intends to 

recover, reuse, decontaminate, treat, 

and/or dispose of materials after a 

discharge has taken place and plans for 

temporary storage of recovered materials 

as well as the appropriate permits 

required to manage recovered materials 

according to local, state, and Federal 

requirements. The disposal plan must 

account for recovered product; 

contaminated soil and water; 

contaminated equipment and materials, 

including drums, tank parts, valves, and 

shovels; personal protective equipment; 

decontamination solutions; adsorbents; 

and spent chemicals; 

(15) Containment measures. Measures 

to provide adequate containment and 

drainage of discharged CWA hazardous 

substances including containment 

volumes, draining routes from storage 

and transfer areas, materials used to 

construct drainage troughs, number and 

types of valves and separators used in 

the drainage system, sump pump 

capacities, containment capacity of 

weirs and booms and their locations, 

and other cleanup materials; 

(16) Training procedures. Training 

procedures as per § 118.13; 

(17) Exercise procedure. Exercise 

procedures as per § 118.13 and the 

schedule set under § 118.12(c); and 

(18) Self-inspection. Written 

procedures and records of inspections 

for including an inspection checklist 

and method to record the inspection 

date and findings, to be retained for five 

years. 

§ 118.12 Coordination Activities. 

The facility response plan shall be 

coordinated with the local emergency 

response plan developed by the Local 

Emergency Planning Committee or 

Tribal Emergency Planning Committee 

under section 303 of title III of the 

Superfund Amendments and 

Reauthorization Act of 1986 (42 U.S.C. 

11001 et seq.). Upon request, the owner 

or operator shall provide a copy of the 

facility response plan to the Local 

Emergency Planning Committee, Tribal 

Emergency Planning Committee, State 

Emergency Response Commission, or 


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Tribal Emergency Response 

Commission. The owner or operator of 

a facility shall coordinate response 

needs with local emergency planning 

and response organizations to determine 

how the facility is addressed in the 

community emergency response plan 

and to ensure that local response 

organizations are aware of the CWA 

hazardous substances at the facility, 

their quantities, the risks presented, and 

the resources and capabilities provided 

by the facility to respond to a worst case 

discharge of a CWA hazardous 

substance. 

(a) Coordination shall occur at least 

annually, and more frequently if 

necessary, to address changes at the 

facility, in the facility response plan, 

and/or in the community emergency 

response plan. 

(b) Coordination shall include 

providing to the appropriate state, local, 

or Tribal emergency planning and 

response organizations the facility 

response plan, updated emergency 

contact information, and other 

information necessary for developing 

and implementing the local emergency 

response plan. 

(c) Coordination shall include 

consulting with appropriate state, local, 

or Tribal emergency response officials to 

establish appropriate schedules and 

plans for drills and exercises required 

under § 118.13. The owner or operator 

shall request an opportunity to meet 

with the Local Emergency Planning 

Committee or Tribal Emergency 

Planning Committee (or equivalent) 

and/or local fire department as 

appropriate to review and discuss those 

materials. 

(d) The owner or operator shall 

document coordination with 

appropriate state, local, or Tribal 

authorities, including: 

(i) The names of individuals involved 

and their contact information (phone 

number, email address, and 

organizational affiliations), dates of 

coordination activities, and nature of 

coordination activities and 

(ii) Signed agreements on activities 

and resources, identified by the facility, 

in the facility response plan to be 

performed by the appropriate state, 

local, or Tribal emergency response 

organizations. 

§ 118.13 Facility response training, drills, 

and exercises. 

(a) The owner or operator of any 

facility required to prepare a facility 

response plan under § 118.3 shall 

develop and implement a facility 

response training program and a drills 

and exercise program that satisfy the 

requirements of this section. The owner 

or operator shall describe the programs 

in the facility response plan as provided 

in § 118.11. 

(b) The facility owner or operator 

shall develop a facility response training 

program to train those personnel 

involved in CWA hazardous substance 

response activities. 

(1) A facility owner or operator must 

identify the method to be used for 

training any volunteers or casual 

laborers used during a response to 

comply with the requirements of 29 CFR 

1910.120. 

(2) The facility owner or operator is 

responsible for ensuring that all private 

response personnel are trained to meet 

the Occupational Safety and Health 

Administration standards for emergency 

response operations in 29 CFR 

1910.120. 

(3) The facility response plan shall 

include a description of the training 

program as described in § 118.11. 

(4) The facility response plan shall 

include logs of CWA hazardous 

substance facility response plan 

meetings, type of response training and 

dates, personnel responsibilities during 

a response action, and drills and 

exercises. These logs will be maintained 

as an annex to the facility response 

plan. Logs will be kept for five years 

following each training session. 

(c) The facility owner or operator 

shall develop a program of facility 

response drills and exercises, including 

evaluation procedures. A program that 

follows the National Preparedness for 

Response Exercise Program (PREP) will 

be deemed as compliant with the drill 

and exercise requirements of this 

section. An alternative program or 

deviations from the PREP exercise 

requirements may also be developed by 

the owner or operator and are subject to 

approval by the Regional Administrator. 

(1) Drills and exercises shall, when 

appropriate, be coordinated with local 

public emergency response officials and 

these officials shall be invited to 

participate. 

Appendix A to Part 118: Certification 

Form 

Facility Name: 

Facility Address: 

EPA Facility ID: 

Facility Latitude/Longitude: 

Facility Qualified Individual (Last name, 

First name): 

Facility Contact (phone): 

Facility Contact (email): 

Parent Company: 

Facility industry NAICS code: 

1. Does the facility have a maximum 

capacity onsite of a CWA hazardous 

substance greater than or equal to the CWA 

Reportable Quantity (RQ) × 10,000? 

Yes ll No ll

If so, list names, CAS no., and maximum 

quantities (lbs) stored onsite for each CWA 

hazardous substance: 

2. Is the facility within one-half mile of 

navigable waters or a conveyance to 

navigable waters? 

Yes ll No ll

If the answers to 1 and 2 are Yes, answer 

questions 3–6. 

3. Is the facility located at a distance such 

that a discharge from the facility could cause 

injury to fish, wildlife, and sensitive 

environments? For further description of fish, 

wildlife. and sensitive environments, see the 

applicable Area Contingency Plan. Attach 

documentation of the formulas, assumptions, 

and distance to receptors calculated. 

Yes ll No ll

Distance to fish, wildlife, and sensitive 

environments (feet or miles): 

Type of fish, wildlife, and sensitive 

environment receptor(s): 

Names, CAS no. and worst case discharge 

quantity (lbs) for each CWA hazardous 

substance: 

4. Is the facility located at a distance such 

that a discharge from the facility could 

adversely impact a public water system, 

including a concentration reaching a public 

water system intake which: 

(i) Violates any National Primary Drinking 

Water Standard or State Drinking Water 

Regulation, such as exceedance of a 

Maximum Contaminant Level at the point of 

compliance; 

(ii) Compromises the ability of the public 

water system to produce water that complies 

with any National Primary Drinking Water 

Standard or State Drinking Water Regulation; 

(iii) Results in adverse health impacts in 

people exposed to the maximum 

concentration that could enter a drinking 

water distribution system; 

(iv) Contaminates public water system 

infrastructure, including but not limited to 

intake structures, treatment facilities, and 

distribution systems, or premise plumbing 

systems to a degree that requires remediation 

to restore system components to acceptable 

performance; or 

(iv) Impairs the taste, odor, or other 

aesthetic characteristic of the water entering 

a drinking water distribution system to a 

degree that could make the water 

unacceptable to consumers and that could 

prompt the public water system to issue use 

restrictions. 

Yes ll No ll

Attach documentation of the formulas used 

for calculating planning distance, 

assumptions, and efforts to coordinate with 

public water systems. 

Which criteria are met for the above 

substantial harm to drinking water (1–5)? 

Attach documentation attesting to the 

required consultation with the applicable 

public water system, including name of 

public water system, point of contact, and 

date of consultation for each potentially 

impacted public water system, or provide 

detail on point of compliance at the water 

intake. 

5. Is the facility located at a distance such 

that a discharge from the facility could cause 

injury to public receptors? Attach 

documentation of the formulas and planning 

distance used. 


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Federal Register / Vol. 87, No. 59 / Monday, March 28, 2022 / Proposed Rules 17935 

Yes ll No ll

Distance to public receptor (feet or miles): 

Type and description of receptor: 

Name of CWA hazardous substance and 

worst case discharge quantity (pounds): 

6. Has the facility experienced a reportable 

CWA hazardous substance discharge within 

the last five years? 

Yes ll No ll

Attach relevant documentation of past 

reportable discharges 

For each reportable discharge identify: 

Name of CWA hazardous substance, CAS 

no. 

Date of discharge: 

Duration of discharge (minutes): 

Quantity discharged (lbs): 

Waterway impacted: 

Injury caused to FWSE: 

Injury caused to public receptors: 

Adverse impacts to public water systems: 

NRC report number: 

Certification 

I certify under penalty of law that I have 

personally examined and am familiar with 

the information submitted in this document, 

and that based on my inquiry of those 

individuals responsible for obtaining this 

information, I believe that the submitted 

information is true, accurate, and complete. 

Signature 

Name (please type or print) 

Title 

Date 

Phone/Email 

Appendix B to Part 118—Toxicity 

Endpoints for Calculating Planning 

Distance for Fish, Wildlife and 

Sensitive Environments and Public 

Receptors 

TABLE 1—CONCENTRATIONS FOR PUBLIC RECEPTORS AND FISH, WILDLIFE, AND SENSITIVE ENVIRONMENTS

Category RQ (lbs.) 

Endpoints for public receptors 

LD50 

Endpoints for fish, wildlife and 

sensitive environments using 

96-hour LC50 

Mammalian toxicity 

(oral) (mg/kg) 10% 

(mg/kg) 

Aquatic toxicity 

(mg/liter) 10% 

(mg/L) Lower Upper Lower Upper 

X ........................................................................................... 1 0 0.1 0.01 0 0.1 0.01 

A ........................................................................................... 10 0.1 1 0.1 0.1 1 0.1 

B ........................................................................................... 100 1 10 1 1 10 1 

C ........................................................................................... 1,000 10 100 10 10 100 10 

D ........................................................................................... 5,000 100 500 50 100 500 50 

PART 300—NATIONAL OIL AND 

HAZARDOUS SUBSTANCES 

POLLUTION CONTINGENCY PLAN 

■ 2. The authority citation for part 300 

continues to read as follows: 

Authority: 33 U.S.C. 1251 et seq.; 42 

U.S.C. 9601–9657; E.O. 13626, 77 FR 56749, 

3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 

FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 

12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 

193 

■ 3. Revise § 300.185 to read as follows: 

§ 300.185 Nongovernmental participation. 

(a) Industry groups, academic 

organizations, and others are 

encouraged to commit resources for 

response operations. Specific 

commitments should be listed in the 

RCP and ACP. Those entities required to 

develop tank vessel and facility 

response plans under CWA section 

311(j) must be able to respond to a worst 

case discharge to the maximum extent 

practicable, and shall commit sufficient 

resources to implement other aspects of 

those plans in accordance with the 

requirements of 30 CFR part 254, 33 

CFR parts 150, 154, and 155; 40 CFR 

parts 112 and 118; and 49 CFR parts 171 

and 194. 

■ 4. Revise § 300.211 paragraph (c) to 

read as follows: 

§ 300.211 OPA facility and vessel 

response plans. 

* * * * * 

(c) For non-transportation-related 

onshore facilities, these regulations are 

codified in 40 CFR 112.20 and 40 CFR 

part 118; 

* * * * * 

■ 5. Add § 300.411 to read as follows: 

§ 300.411 Response to CWA hazardous 

substance worst case discharges. 

(a) If the investigation by the OSC 

shows that a discharge is a worst case 

discharge as defined in the ACP, or 

there is a substantial threat of such a 

discharge, the OSC shall: 

(1) Notify the NSFCC; 

(2) Require, where applicable, 

implementation of the worst case 

portion of an approved facility response 

plan required by CWA section 311(j)(5); 

(3) Implement the worst case portion 

of the ACP required by CWA section 

311(j)(4); and 

(4) Take whatever additional response 

actions are deemed appropriate. 

(b) Under the direction of the OSC, 

the NSFCC shall coordinate use of 

private and public personnel and 

equipment, including strike teams, to 

respond to a worst case discharge and 

mitigate or prevent a substantial threat 

of such a discharge. 

[FR Doc. 2022–05505 Filed 3–25–22; 8:45 am] 

BILLING CODE 6560–50–P 


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