[Federal Register Volume 87, Number 59 (Monday, March 28, 2022)]
[Proposed Rules]
[Pages 17890-17935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05505]



[[Page 17889]]

Vol. 87

Monday,

No. 59

March 28, 2022

Part III





Securities and Exchange Commission





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40 CFR Parts 118 and 300





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Clean Water Act Hazardous Substance Worst Case Discharge Planning 
Regulations; Proposed Rule

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

[[Page 17890]]


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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.

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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: <a href="/cdn-cgi/l/email-protection#1270607d6761617360763c60777077717173527762733c757d64"><span class="__cf_email__" data-cfemail="84e6f6ebf1f7f7e5f6e0aaf6e1e6e1e7e7e5c4e1f4e5aae3ebf2">[email protected]</span></a>.

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

[[Page 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 three-digit 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
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                                             North American industry
                NAICS 3                   classification system (NAICS)
                                                   description
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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
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 Sec.  
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 per-facility 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)
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                                        Present value,    Annualized cost,    Present value,    Annualized cost,
                                              7%                 7%                 3%                 3%
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Cost................................       $300,375,193        $28,353,293       $410,322,776        $27,580,136
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    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

[[Page 17892]]

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:
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    \1\ Navigable 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.''
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    (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,

[[Page 17893]]

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 non-transportation-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 non-transportation-related offshore facilities 
landward of the coastline to EPA. This MOU applies to both oil and CWA 
hazardous substance facilities.
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    \2\ E.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/federal-register/executive-orders/1991.html#12777.
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    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)).
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    \3\ Protocol 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.
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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.
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    \4\ 43 FR 10474, March 13, 1978.
    \5\ 44 FR 50766, August 29, 1979.
    \6\ 43 FR 10496, March 13, 1978.
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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 non-transportation-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\
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    \7\ See 40 CFR part 112 Appendix C.
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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).

[[Page 17894]]

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 non-transportation-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.
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    \8\ Complaint for Declaratory and Injunctive Relief, 
Environmental Justice Health Alliance for Chemical Policy Reform v. 
EPA, No. 1-19-cv-02516 (S.D.N.Y., filed March 21, 2019).
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    The plaintiffs and EPA entered into a consent decree on March 12, 
2020 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 non-transportation-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.
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    \9\ Envtl. Justice Health All. for Chem. Reform v. EPA, No. 
1:19-cv-02516-VM, Document 32 (S.D.N.Y., filed March 12, 2020).
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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 CWA-regulated 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-transportation-related 
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 CWA-regulated hazardous 
substances that could be linked to non-transportation-related 
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\
---------------------------------------------------------------------------

    \10\ The 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.
---------------------------------------------------------------------------

    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.
------------------------------------------------------------------------
                                                            Discharged
                 CWA Hazardous substance                     (percent)
------------------------------------------------------------------------
PCBs....................................................              55
Sulfuric acid...........................................               8
Sodium hydroxide........................................               6
Ammonia.................................................               5
Benzene.................................................               4
Hydrochloric acid.......................................               4
Chlorine................................................               4
Sodium hypochlorite.....................................               3

[[Page 17895]]

 
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 non-transportation-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-
transportation-related 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\)
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

--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.
---------------------------------------------------------------------------

    \12\ No 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.

Table 4--Other Reported Impacts of CWA Hazardous Substance Discharges From Non-Transportation-Related Facilities
                                    That May Have Reached Water 2010 to 2019
----------------------------------------------------------------------------------------------------------------
                                             Number of
         Other reported impacts              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 non-transportation-
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
---------------------------------------------------------------------------

    \13\ Chemical Accident Prevention Provisions, RMP (40 CFR part 
68).
---------------------------------------------------------------------------

--Toxics Release Inventory (TRI) discharge to water data

[[Page 17896]]

--Survey data from previous CWA Hazardous Substance Spill Prevention 
rulemaking effort \14\
---------------------------------------------------------------------------

    \14\ EPA 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).
---------------------------------------------------------------------------

--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 non-EPA 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

[[Page 17897]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 17898]]

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).
[GRAPHIC] [TIFF OMITTED] TP28MR22.242

    EPA is proposing a definition of ``facility'' in Sec.  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.
---------------------------------------------------------------------------

    \15\ See EPA's ``SPCC Guidance for Regional Inspectors'' https://www.epa.gov/oil-spills-prevention-and-preparedness-regulations/spcc-guidance-regional-inspectors.
---------------------------------------------------------------------------

1. Screening Criteria
a. CWA Hazardous Substance Capacity Threshold Quantity
i. 10,000x CWA Hazardous Substance RQ Multiplier
    In Sec.  118.3, EPA is proposing that if the maximum capacity 
onsite, as defined in Sec.  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

[[Page 17899]]

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.
---------------------------------------------------------------------------

    \16\ These values were later adopted by Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(CERCLA).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).

  Table 5--CWA Hazardous Substance Categories and Reportable Quantities
------------------------------------------------------------------------
                                                     Reportable quantity
                      Category                              (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

[[Page 17900]]

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 site-specific 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.
---------------------------------------------------------------------------

    \18\ See Footnote 17.
---------------------------------------------------------------------------

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 Distance-Based Multipliers
    EPA considered establishing applicability thresholds using 
distance-based 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 x distance x 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)


[[Page 17901]]


    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 Sec.  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
----------------------------------------------------------------------------------------------------------------
                                                                                                     Physical/
           Material classification               Physical/ chemical/ dispersal         Rank          chemical/
                                                            category                                 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.

[[Page 17902]]

    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 Sec.  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 Sec.  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

[[Page 17903]]

quantity proposed in Sec.  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.
---------------------------------------------------------------------------

    \19\ See 40 CFR part 370.
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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.
---------------------------------------------------------------------------

    \20\ 58 FR 8832, February 17, 1993.
    \21\ ibid.
---------------------------------------------------------------------------

    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 self-determination 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.

[[Page 17904]]

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 Sec.  118.2) as well as 
use applicable ACP guidance in defining fish, wildlife, and sensitive 
environments in their respective regions.
---------------------------------------------------------------------------

    \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/USCODE-2019-title33-chap26-subchapIII-sec1321.pdf.
---------------------------------------------------------------------------

    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 worst-case 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 self-determine 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 Sec.  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 Sec.  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 two-fold. 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.

[[Page 17905]]

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 Sec.  
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]
----------------------------------------------------------------------------------------------------------------
                                                                     Aquatic toxicity  (mg/L)
                    Category                        RQ  (lbs.)   --------------------------------   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.
---------------------------------------------------------------------------

    \23\ Further information is available in the TBD.
---------------------------------------------------------------------------

Planning Distance Parameters

    EPA is proposing in Sec.  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-size-fits-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.

[[Page 17906]]

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.
---------------------------------------------------------------------------

    \24\ Details on the models evaluated are included in the TBD.
---------------------------------------------------------------------------

b. Ability to Adversely Impact a Public Water System
i. Proposed Approach
    EPA is proposing in Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \25\ Legislative 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.
---------------------------------------------------------------------------

    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 site-specific 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

[[Page 17907]]

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 Sec.  
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 Sec.  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. Upper-bound 
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.
---------------------------------------------------------------------------

    \26\ See Footnote 17.
---------------------------------------------------------------------------

    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

[[Page 17908]]

percent of the upper bound, EPA established a proposed concentration of 
0.01 mg/L.

                                                  Table 8--Proposed Concentrations for Public Receptors
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Mammalian toxicity (oral) (mg/                      Aquatic toxicity (mg/L)
                                                                        kg)                              --------------------------------
                Category                     RQ (lbs)    --------------------------------   10% (mg/kg)                                     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 Sec.  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\
---------------------------------------------------------------------------

    \27\ Additional information on the toxicity values reviewed is 
available in the TBD.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 17909]]

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.
---------------------------------------------------------------------------

    \28\ See 40 CFR 300.5, Size classes.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \29\ See 40 CFR 68.25(h), 68.28(d).
---------------------------------------------------------------------------

    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.

[[Page 17910]]

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 over-water 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 Sec.  118.3. In Sec.  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 Sec.  
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 Sec.  118.5(d) that the RA can 
consider, in addition to the substantial harm criteria found in 
Sec. Sec.  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 Region-specific information, including local impacts on 
public health. The Agency concluded that these considerations, in 
addition to the substantial harm criteria proposed in Sec. Sec.  
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 
Sec.  118.5(c). This includes promptly reviewing plans, requiring 
amendments, approving plans, and reviewing plans on a schedule.
    Finally, EPA is proposing in Sec.  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

[[Page 17911]]

categories from all requirements of the program.
    EPA is proposing in Sec.  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.
---------------------------------------------------------------------------

    \30\ See 33 CFR 154.108.
---------------------------------------------------------------------------

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 Sec.  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 (Sec.  118.8(a) Exceptions) as well as in threshold 
quantity calculations (Sec.  118.8(b) Exemptions).
4. Worst Case Discharge Calculations
    In Sec.  118.2, EPA is proposing a regulatory definition for worst 
case discharge for onshore non-transportation-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 Sec.  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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \31\ See 33 U.S.C. 1321(a)(24).
---------------------------------------------------------------------------

    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 Sec.  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.

[[Page 17912]]

b. Worst Case Discharge Scenarios
i. Proposed Approach
    In Sec.  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 site-
specific 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.

[[Page 17913]]

c. Worst Case Discharge Distance to Endpoints
    EPA is proposing in Sec.  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 
site-specific 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 Sec.  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 Sec.  118.4(c), EPA is proposing that all facilities that meet 
the CWA hazardous substances threshold quantity in Sec.  118.3(a) and 
the proximity to navigable waters criterion in Sec.  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 
Sec.  118.3(a) and (b), regardless of whether they meet the substantial 
harm criteria pursuant to Sec.  118.3(c). In accordance with Sec.  
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 Sec.  
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 Sec.  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

[[Page 17914]]

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 Sec.  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 
SPCC-regulated facilities and requires signature by the certifier for 
the facility.
    EPA is proposing in Sec.  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 Sec.  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 non-transportation-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.
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    \32\ See OPA Conference Report, H.R. Rep. No. 101-653, 101st 
Cong., 2d Sess. 1990 at p. 150.
---------------------------------------------------------------------------

    EPA is proposing in Sec.  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

[[Page 17915]]

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 Sec.  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 Sec.  
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.
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    \33\ See OPA Conference Report, H.R. Rep. No. 101-653, 101st 
Cong., 2d Sess. 1990 at p. 151.
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    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

[[Page 17916]]

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 
Sec.  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.
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    \34\ See 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.
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    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.
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    \35\ See RIA for more information.
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    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 Sec.  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.
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    \36\ See 40 CFR 112.20(h)(3)(ix).
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    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 Sec.  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 Sec.  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 Sec.  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 substance-specific 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.,

[[Page 17917]]

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 Sec.  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 Sec.  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 
Sec.  118.11(b)(3)(i).
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    \37\ For 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.
    \38\ See https://iris.epa.gov/AtoZ/%3Flist_type=alpha.
    \39\ See https://www.atsdr.cdc.gov/mrls/index.html.
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    EPA is also proposing in Sec.  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.
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    \40\ See Factual Update, Chemical Safety Board, October 30, 2019 
https://www.csb.gov/assets/1/20/itc_factual_update_2019-10-30.pdf?16522.
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d. Reportable Discharge History
    EPA proposes in Sec.  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 in-depth 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 Sec.  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

[[Page 17918]]

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 (Sec.  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\
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    \41\ See 40 CFR 112.2.
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    The Oil Pollution Prevention regulation also defined an OSRO (Sec.  
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 in-
house resources or through OSROs.\43\
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    \42\ Ibid.
    \43\ Legislative 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.
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    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 Sec.  118.2 
and require evidence of contracts or other approved means for ensuring 
the availability of such personnel and equipment in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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.

[[Page 17919]]

j. Response Equipment Information
    EPA is proposing in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \44\ See EPA requirements at https://www.epa.gov/hwpermitting/what-specific-areas-must-hazardous-waste-permit-address and a model 
RCRA permit https://www.epa.gov/sites/default/files/2016-03/documents/rcra-model-1988.pdf
    \45\ U.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-analysis-facilities-generate-treat-store-and-dispose-hazardous.
    \46\ U.S. Environmental Protection Agency. Pre-incident 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-hazards-waste-management-plan-guidelines-four-step-waste.
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o. Containment Measures
    EPA proposes in Sec.  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

[[Page 17920]]

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 Sec.  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 
(Sec.  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 Sec.  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 Sec.  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 after-action report and adjust operations accordingly, 
which can count for this requirement.
---------------------------------------------------------------------------

    \47\ See 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.
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    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 Sec.  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 non-
responding 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 non-responding 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 Sec.  68.95 while non-responding facilities are not 
required to, provided they meet certain criteria in

[[Page 17921]]

Sec.  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, 
non-responding facilities would be required to comply with all the 
planning requirements. EPA is proposing in Sec.  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. Multi-
facility CWA hazardous substance ERAPs could ease the burden of 
preparing individual CWA hazardous substance ERAPs but may not be 
practicable in terms of accessing time-sensitive information across a 
multi-facility 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 Sec.  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 Sec.  118.4(a)(1) that initially regulated 
facilities that meet the criteria in Sec.  118.3 or are notified by the 
RA that they meet the criteria for substantial harm found in Sec.  
118.5 must prepare and submit a CWA hazardous substance FRP within 12 
months. Additionally, EPA is proposing in Sec.  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 Sec.  118.3 or are 
notified by the RA that they meet the substantial harm criteria in 
Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  118.4(a)(4). EPA is proposing in Sec.  
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.

[[Page 17922]]

3. Confidential Business Information
    EPA is proposing in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  
300.185, 300.211, and 300.411, EPA is proposing minor changes to 40 CFR 
part 300 to ensure uniformity.
    In Sec. Sec.  300.185 and 300.211, EPA is proposing to add 
references to proposed 40 CFR part 118. EPA is proposing to add Sec.  
300.411 to detail requirements for responses to CWA hazardous substance 
worst case discharges, to mirror the requirements for oil worst case 
discharges in Sec.  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 co-
location 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 co-location 
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

[[Page 17923]]

respond to worse case discharges of CWA hazardous substances.
---------------------------------------------------------------------------

    \48\ Commission 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.
    \49\ Ringquist, 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.
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    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 Sec.  
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 Sec.  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/laws-regulations/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)

[[Page 17924]]

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

[[Page 17925]]

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 low-
income; 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:

0
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.

[[Page 17926]]

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.


Sec.  118.1  Purpose.

    This part establishes Clean Water Act (CWA) hazardous substance 
facility response plan requirements for the owner or operator of any 
non-transportation-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.


Sec.  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 Sec.  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 Sec.  118.3(c)(2).
    Facility means any non-transportation-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 non-contiguous buildings, properties, parcels, 
leases, structures, installations, pipes, or pipelines under the 
ownership or operation of the same person may be considered separate 
facilities. Non-transportation-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 non-transportation-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 
Sec.  118.11

[[Page 17927]]

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 Sec.  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 Sec.  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 Sec.  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

[[Page 17928]]

a discharge resulting from fire or explosion.


Sec.  118.3  Applicability.

    This part applies to the owner or operator of any non-
transportation-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 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 
Sec.  118.8 or permanently closed containers in this determination. To 
calculate the threshold quantities of CWA hazardous substances in 
mixtures, follow the procedures in Sec.  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 Sec.  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 Sec.  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 Sec.  118.10(b) such that a discharge to navigable water 
from the facility could cause injury to a public receptor as defined in 
Sec.  118.2; or
    (4) Reportable discharge history. The facility has had a reportable 
CWA hazardous substance discharge under Sec.  117.21 within the last 
five years.


Sec.  118.4  General requirements.

    (a) Preparation and submission of facility response plans. The 
owner or operator of any facility meeting the applicability 
requirements of Sec.  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 Sec.  118.3 or that is notified by the 
Regional Administrator pursuant to Sec.  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 Sec.  118.3 or that is notified by the Regional 
Administrator pursuant to Sec.  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 Sec.  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 Sec.  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 start-up 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 Sec.  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

[[Page 17929]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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.


Sec.  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 Sec.  118.3(c)(ii);

[[Page 17930]]

    (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 Sec.  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 Sec.  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 Region-specific information, 
including local impacts on public health.


Sec.  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.


Sec.  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 Sec.  118.3. Such a petition shall include a discussion of how 
the factors in Sec.  118.3 apply to the facility in question. The 
Regional Administrator shall consider such petitions and respond as 
soon as practicable.


Sec.  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 Sec.  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,

[[Page 17931]]

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 Sec.  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.


Sec.  118.9   Mixtures.

    For the purposes of determining the CWA hazardous substance maximum 
capacity onsite at the facility of CWA hazardous substance(s), under 
Sec.  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 
Sec.  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 Sec.  118.3(a) with the lowest threshold 
quantity by extrapolating the amount of the known constituent(s) to the 
full capacity of the container.


Sec.  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 Sec.  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 Sec.  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 cross-channel mixing; Manning's 
Roughness coefficient; differentiation of still, tidal

[[Page 17932]]

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.


Sec.  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

[[Page 17933]]

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 
Sec.  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 Sec.  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 Sec.  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 Sec.  118.13;
    (17) Exercise procedure. Exercise procedures as per Sec.  118.13 
and the schedule set under Sec.  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.


Sec.  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

[[Page 17934]]

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 Sec.  
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.


Sec.  118.13   Facility response training, drills, and exercises.

    (a) The owner or operator of any facility required to prepare a 
facility response plan under Sec.  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 Sec.  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 Sec.  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) x 10,000?
    Yes __ No __
    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 __ No __
    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 __ No __
    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 __ No __
    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.

[[Page 17935]]

    Yes __ No __
    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 __ No __
    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
----------------------------------------------------------------------------------------------------------------
                                                 Endpoints for public receptors    Endpoints for fish, wildlife
                                                              LD50                  and sensitive environments
                                               ---------------------------------       using  96-hour LC50
                                                 Mammalian toxicity             --------------------------------
              Category               RQ (lbs.)     (oral) (mg/kg)                  Aquatic toxicity
                                               ---------------------- 10%  (mg/       (mg/liter)       10%  (mg/
                                                                         kg)    ----------------------     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

0
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

0
3. Revise Sec.  300.185 to read as follows:


Sec.  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.
0
4. Revise Sec.  300.211 paragraph (c) to read as follows:


Sec.  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;
* * * * *
0
5. Add Sec.  300.411 to read as follows:


Sec.  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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