EPA’s Worst-Case Discharge NPRM
Affected Facilities
As I reported on Sunday, the EPA has published a notice of proposed rulemaking (NPRM) for “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations”. This is the initial post in providing a detailed look at the provisions of that NPRM. These posts will provide the basis for comments that I will be submitting as part of the public comment process for this rulemaking.
Background
This rulemaking is being driven by a a Consent Decree between the Trump Administration’s EPA and the Environmental Justice Health Alliance for Chemical Policy Reform. It would implement the rulemaking requirement of 33 USC 1321(j)(5)(A)(i). Subsection (j), National Response System, outlines the systems that are to be put into place under the Clean Water Act to respond to oil and hazardous substance spills that could impact water quality in the navigable waters of the United States. That subsection also addresses:
The establishment of the CG National Response Unit,
The establishment of CG District response units,
Area Committees and their Area contingency plans,
Response equipment requirements, and
Area drills.
Paragraph (5) establishes the requirement to promulgate regulations for the development of response plans for worst-case discharges of oil or hazardous substances. Subparagraph (A) establishes the dual requirement for response plans for tank vessels and facilities for discharges of oil and hazardous substances, and for oil discharges from nontank vessels. Subsequent subparagraph outline requirements for:
Noxious liquid substances response plans,
Definitions of ‘tank vessels’, ‘nontank vessels’, and ‘facilities’,
Response plan requirements, and
Response plan review/approval requirements.
The preamble to the NPRM discusses the relationship between the EPA and other Federal agencies and their relative responsibilities for overseeing the response plan requirements for onshore facilities. In accordance with EO 12777 (pg 7), the Coast Guard has responsibility for marine transportation related (MTR) facilities, the DOT has responsibility for non-marine transportation related facilities, and the EPA has responsibility for non-transportation related facilities.
Facility Coverage
As I reported on Sunday, a facility would subject to the planning requirements of this proposed rule if it met three requirements:
Hazardous Substance Threshold
A key component of this proposed regulation is determining whether or not a facility is subject to the planning requirements. One of the determining factors is whether the facility has ‘hazardous substances’ at or above the reporting quantity (RQ). The Clean Water Act required the EPA to establish a list of hazardous substances along with their RQ. The EPA has established that list of hazardous substances in Table 116.4A in 40 CFR 116.4. The RQ for those substances can be found in Table 117.3 in §117.3
In this rulemaking, the amount of a hazardous substance that triggers the possibility of the applicability of the planning requirements (threshold quantity) outlined in the rule is a ‘maximum capacity on site’ for each hazardous substance of 10,000 times it’s RQ. Thus, if a chemical has an RQ of 1-lb (ethylene dibromide for example), the threshold quantity would be a maximum capacity on site of 10,000-lbs. If the RQ were 5,000-lbs (formic acid for instance) the threshold quantity would be 50,000,000-lbs of maximum capacity on site.
The maximum capacity calculations required in this rulemaking are not inventory calculations. Instead, it is based upon the “total aggregate container capacity for each CWA hazardous substance present at all locations within the entire facility at any one time.” While the term ‘aggregate container capacity’ is not specifically defined in the rulemaking, the preamble to the rule points to 40 CFR 112 as using a similar approach. Appendix D to that section provides details for calculating “a Worst Case Discharge Planning Volume”, but this rulemaking does not specifically mention that Appendix.
Proximity to Navigable Waters
For facilities that meet the threshold quantity standards, the next requirement that needs to be looked at is the proximity to navigable waters. Most facilities that are on the waterfront of navigable waters are going to be marine transportation-related facilities, and thus subject to the Coast Guard regulations, not EPA’s. In this rulemaking, the EPA is targeting facilities meeting threshold quantity requirements that are within ½ mile of a navigable waterway or a “conveyance to navigable water”.
In this case, the preamble does more specifically reference 40 CFR112. It points at §112 Appendix C. There, in Attachment C-III, is a detailed discussion of the overland or waterway transport of a worst case spill transport to navigable waters the EPA uses to justify the ½ mile distance criteria.
Substantial Harm Criteria
A facility that meets both the threshold and proximity criteria would be required to perform the worst-case planning requirements of this rulemaking if they meet any one of the four ‘substantial harm’ criteria outlined in the new 33 CFR 118.3. Those criteria are:
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 (link to definition in NPRM), or
Reportable discharge history
A more detailed discussion of the ‘substantial harm’ criteria will be found in the next post in this series.