EPA Publishes Worst Case Discharge NPRM

The EPA published a notice of proposed regulations (NPRM) in Monday’s (available online yesterday) Federal Register (87 FR 17890-17935) for “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations”. The proposed rule would implement the mandate in 33 USC 1321(j)(5)(A)(i) for regulations that would 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.” The plan would then have to be approved by the EPA.

This NPRM is being published in accordance with a Consent Decree between the Trump Adminstation’s EPA and the Environmental Justice Health Alliance for Chemical Policy Reform. According to that agreement (pg 3), this NPRM was to be published by April 4th, 2022, and the final rule is to be published by October 18th, 2024. The draft of this NPRM was sent to the OMB for review on January 24th, 2022.

Identification of Affected Facilities

According to the new 33 CFR 118.3 proposed in this rule, the new reporting requirements would apply to facilities that meet the following criteria:

• Threshold quantity,

• Proximity to navigable waters, and

• Substantial harm criteria,

A facility meeting one or more of the following criteria would fulfill the ‘substantial harm criteria’ above:

• Ability to cause injury to fish, wildlife, and sensitive environments,

• Ability to adversely impact a public water system,

• Ability to cause injury to public receptors, or

• Reportable discharge history

Section 118.5 would specifically allow the Regional Administrator to require an owner or operator of any non-transportation-related onshore facility to prepare and submit a facility response plan under this section. Additionally, §118.7 would allow anyone to petition the Regional Administrator to determine whether the facility meets the criteria in section § 118.3.

Emergency Response Plans

The new §118.11 establishes the requirements for the emergency response plans required under this NPRM. Each response plan would include the following:

• Consistency with National Contingency Plan and Area Contingency Plans,

• Qualified individual with authority to implement plan,

• Response resources,

• Training, testing and drills, and

• Plan updates

Additionally, the plans would include the following emergency response information:

• Facility information,

• Owner or operator information,

• Hazard evaluation,

• Reportable discharge history,

• Response personnel and equipment,

• Contracts,

• Notifications,

• Discharge information,

• Personnel roles and responsibilities,

• Response equipment information,

• Discharge detection systems,

• Response actions,

• Disposal plans,

• Containment measures,

• Training procedures,

• Exercise procedures, and

• Self-inspection

Soliciting Comments

The EPA is soliciting public comments on this rulemaking. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OLEM-2021-0585). Comments should be submitted by May 27th, 2022.

There are lot of details in this rulemaking. I will be addressing many of those in future posts.