EPA Publishes Worst Case Discharge Final Rule
Today the EPA published a final rule in the Federal Register (89 FR 21924-21967) on “Clean Water Act Hazardous Substance Facility Response Plans”. The final rule was approved by OMB’s Office of Information and Regulatory Affairs (OIRA) on February 21st, 2024. The notice of proposed rulemaking was published on March 28th, 2022 (with additional coverage here and here). This rule establishes facility response plan requirements for worst case discharges of Clean Water Act (CWA) hazardous substances for onshore non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment by discharging a CWA hazardous substance into or on the navigable waters, adjoining shorelines, or exclusive economic zone.
NPRM Summary
The EPA proposed requiring non-transportation related to develop facility response plans (FRP) for worst case discharges of Clean Water Act (CWA) hazardous substances for onshore non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment. Those FRP’s would be required to:
Be consistent with the National Contingency Plan (NCP) and Area Contingency Plan (ACP),
Identify the qualified individual having full authority to implement response actions and require immediate communications between that individual and the appropriate Federal official,
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),
Describe the training, equipment testing, periodic unannounced drills, and response actions of persons at the covered facility, and
Be reviewed and updated periodically and resubmitted to the Regional Administrator (RA) for approval of each significant change.
Definitions
Based upon comments received on the proposed rule, the EPA made revisions to the following definitions in the final rule:
Adverse Weather – The EPA has added language describing some types of climate change impacts that may need to be considered when accounting for adverse weather conditions during a worst-case discharge of CWA hazardous substances.
Conveyance to Navigable Waters – The EPA is clarifying that it considers a conveyance to navigable waters in the context of this rule to be a means of transport that provides a direct pathway to navigable waters.
Distance to End Point – The EPA is adjusting the definition of distance to endpoint for clarity and to reflect that the distance represents the greatest distance a CWA hazardous substance can travel in a worst-case discharge.
Endpoint – The EPA is adjusting the definition of endpoint to clarify that it represents the concentration at which a worst case discharge of a CWA hazardous substance into or on the navigable waters has the ability to cause injury.
Facility - EPA is adjusting the definition to reflect the Preamble to the proposed rule, that stated that an owner or operator may not make determinations as to what constitutes a covered facility indiscriminately and in such a manner as to simply avoid applicability of the final rule.
Maximum Quantity on Site – The EPA has revised the definition of “maximum capacity onsite” to “maximum quantity onsite.”
Permanently Closed – The EPA is removing the definition of “permanently closed”.
Publicly Owned Treatment Works - EPA is adding a definition for publicly owned treatment works (POTW).
Water Distribution System – The EPA has revised the definition for accuracy and to align with its use in other EPA programs.
Well Head Protection Area – The EPA is adding a definition for wellhead protection area for consistency with the Oil Pollution Prevention FRP.
The EPA did not receive comments on the following terms, but is revising the definition of both to be consistent with §311(a)(4) of the CWA.
Public Vessel, and
Applicability
In response to comments about concerns about the level of responsibility on owners or operators to determine if they are subject to the rule, the preamble provides a lengthy discussion (including a nifty flow chart) about the process by which facilities will determine if they are subject to planning requirements of this rule. The EPA notes that:
“While EPA staff will be available to work with facilities and provide compliance assistance, consistent with Congressional intent, the responsibility for safeguarding their materials and for planning for a worst case discharge of CWA hazardous substances into or on the navigable waters or a conveyance to navigable waters rests first and foremost with the covered facility owner or operator (H.R. Rep. No. 101-653, 101st Cong., 2d Sess. 1990).”
Threshold Quantity
The EPA has made two significant changes to their threshold quantity requirements in §118.3(a). First they changed the threshold quantity calculation from 10,000 times the RQ for the chemical to 1,000 times the RQ. The EPA also changed the weight basis for the determination from ‘the maximum container capacity onsite’ to ‘the maximum quantity onsite’.
Substantial Harm
While the ‘substantial harm’ language in the final rule remains essentially the same as the proposed language, the EPA has included the following changes:
Ability To Cause Injury to FWSE – No changes.
Ability to Adversely Impact a Public Water System – The EPA has added language to §118.3(c)(2) that facility owners and operators must also consider aqueous products that form when the CWA hazardous substance enters water to ensure the full range of risk is represented in this assessment. The EPA has also revised the requirement to more clearly state that owner or operators may show a good-faith effort of coordination with PWSs through documented attempts where coordination is difficult or not possible.
Ability To Cause Injury to Public Receptors – No changes.
Reportable Discharge History – The EPA clarifies here that discharges permitted under National Pollutant Discharge Elimination System (NPDES) are not subject to this regulation (40 CFR part 122).
General Requirements
The final rule makes the following changes to the general requirements and compliance dates of the rule:
Initial submission – The EPA has changed the language for plan submission to emphasize that there is an initial 36-month implementation period.
Plan review requirements – The EPA has added §118.4(a)(6), providing that a covered facility owner or operator must review and recertify their plan Agency every five years. The EPA has added §118.4(a)(7), whereby a covered facility owner or operator must evaluate their operations if EPA adds or removes a CWA hazardous substance from the list at 40 CFR 116.4 or adjusts relevant RQs as found in 40 CFR 117.3.
Regional Administrator Determinations
The final rule makes the following changes to the provisions relating to determinations to be made by the Regional Administrators:
The EPA has added a provision in §118.5(a) whereby the RA may require amendments to FRPs submitted under their authority in §118.5.
The EPA has decided to augment §118.5(b)(2) to specifically reference CWA hazardous substance characteristics, such as ignitability and reactivity.
EPA has expanded the factors in §118.5(d)(3) an RA may consider when designating a covered facility as a significant and substantial harm facility to include the condition of containers or equipment onsite, as deteriorating or poor quality containers or equipment could more readily fail.
Emergency Response Information
The final rule makes the following changes to the emergency response requirements proposed in the NPRM:
Facility Information – The EPA has added “EPA identification numbers” as a data element to report so facility owner or operators can report various EPA ID numbers they may use, such as TRI IDs, Facility Registry Service (FRS) numbers, etc. The EPA is also adding that a facility owner or operator must indicate whether their facility is located in or drains into a wellhead protection area as defined by the SDWA.
Owner or Operator Information – No changes.
Hazard Evaluation – The EPA has added a requirement that, when identifying risks, facility owners or operators must assess the age of CWA hazardous substance containers, since older containers may be more susceptible to failure.
Reportable Discharge History – No changes.
Response Personnel and Equipment - No changes.
Contracts – The EPA has revised the contracts requirement to explicitly require response resources with firefighting capability.
Notification Lists – No changes.
Discharge Information – The EPA clarifies that there is an expectation that a facility will provide response officials with material updates to discharge information as the facility learns more about the scope and nature of the discharge as it becomes available.
Personnel Roles and Responsibilities – The EPA is clarifying that a documented management system that can perform the stated functions may take the place of a specific individual.
Response Equipment Information – No changes.
Evacuation Plans – The EPA has adjusted its approach to require FRPs to identify and list the community
evacuation plans consulted in §118.11(b)(11).
Discharge Detection Systems – No changes.
Response Actions – The EPA has adjusted the language in this section to clarify that air monitoring and water sample collection, including analytical methods and laboratory support, must be described in this section. Additionally, the EPA has added a requirement to identify types of environmental monitoring to be collected, including method collection techniques, parameter of interest measurement, a description of how the data will be used in a response, and personal protection and safety considerations. Finally, EPA has added requirements for response actions to be taken within one- and two-hours of discharge detection.
Disposal Plans – No changes.
Containment Measures - No changes.
Emergency Response Action Plan – The EPA has added a provision requiring an Emergency Response Action Plan (ERAP).
Coordination Activities – No changes.
Facility Response Training, Drills, and Exercises – The EPA has added language to §118.13(b) to clarify that facility personnel are also subject to these requirements. Additionally, the EPA has adjusted the documentation provision in §118.13(b)(4) to allow records to be maintained under usual and customary business practices and either as an annex or included in the FRP. In §118.13(b)(1), a facility owner or operator must coordinate with local public emergency response officials when appropriate and invite them to participate. EPA has added language in §118.13(c)(1) which allows a facility owner or operator to demonstrate through documentation that he or she has made a good faith effort to coordinate. Finally. EPA notes that the Preparedness for Response Exercise Program (PREP) guidelines will be updated to reflect the requirements under 40 CFR part 118, CWA Hazardous Substance FRPs.
Effective Date
The effective date for the final rule is May 28th, 2024.