EPA Proposed Rule on Clean Water Act Worst Case Discharge Planning – Update from Manko Gold Katcher Fox

April 18, 2022

Spencer A. Hill, Jr. and Carol F. McCabe

MGKF Special Alert

On March 28, 2022, the Environmental Protection Agency (EPA) published a proposed rule which would require planning for worst case discharges of hazardous substances under the Clean Water Act (CWA). The proposed rule would apply to onshore non-transportation related facilities that, because of their location, could reasonably be expected to cause substantial harm to the environment by discharge of CWA hazardous substances into navigable waters, adjoining shorelines, or exclusive economic zones. The EPA’s proposed rule is entirely new and has the potential to affect industries such as: oil and gas extraction, mining, textile production, utilities, petroleum and coal products manufacturing, chemical manufacturing, metal manufacturing, waste management and remediation services, and a host of others.

The CWA, as amended by the Oil Pollution Act of 1990, requires the President (as delegated to the EPA Administrator) to issue regulations which require an owner or operator of a tank vessel or facility to prepare and submit a plan for responding, to the maximum extent practicable, to a worst case discharge or threat of such a discharge of hazardous substances. A hazardous substance is an element or compound that, when discharged into navigable waters in any quantity, presents an imminent and substantial danger to the public health or welfare, including, fish, shellfish, wildlife, shorelines, and beaches. Once a chemical is designated as a CWA hazardous substance, the reportable quantity is established by regulation.  CWA hazardous substances are listed in 40 CFR Part 116, and their respective reportable quantities are listed in Part 117.  The new response plan requirements are proposed to be established in Part 118. 

As set forth in Section 311(j)(5) of the CWA, these response plans must: 1) be consistent with the National Contingency Plan and Area Contingency Plan; 2) identify the Qualified Individual having full authority to implement the removal action, and require immediate communication 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.  The rule proposal results from a lawsuit filed by the National Resources Defense Council and others, claiming that EPA failed to fulfill its obligation to issue regulations required by the Clean Water Act. 

EPA is proposing, 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.  EPA is proposing that threshold quantity be determined by using a multiplier of the CWA Reportable Quantity—if the maximum capacity onsite of any CWA hazardous substance, at any one time, meets or exceeds 10,000 times its Reportable Quantity, the facility has met the threshold quantity. Once a facility has met the threshold quantity, the facility owner or operator then determines whether the facility is within one-half mile of navigable water or a conveyance to navigable water.

If the facility has met the threshold quantity and is within one-half mile of navigable waters, the owner or operator then must determine whether the facility meets any of the four proposed substantial harm criteria:

  1. the ability to adversely impact a public water system;
  2. the ability to cause injury to fish, wildlife, and sensitive environments (FWSE);
  3. the ability to cause injury to public receptors;
  4. 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 Facility Response Plan FRP to EPA. Additionally, EPA is proposing, in § 118.5(a), that an EPA Regional Administrator has the authority to require CWA hazardous substance facility response plans, after consideration of site-specific factors for a facility, regardless of whether a facility meets the criteria in proposed § 118.3.

Regarding substantial harm criteria, 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. EPA is also 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. 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. Public receptors, under the proposal, would be defined 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 apply for determining injury to public receptors. Finally, 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 any discharge in quantities equal to, or exceeding, in any 24-hour period, the reportable quantity which violates CWA.

For each of the applicability criteria, EPA identifies alternatives that were considered, and invites comment on the proposed criteria.  Comment is also solicited with respect to the required plan contents, which would include:  hazard evaluations for worst-case discharge; identification of response personnel and equipment; notification procedures; personnel roles and responsibilities; evacuation plans; discharge detection systems; response actions; disposal plans; containment plans; drills and exercises; and self-inspections, among other plan items. 

Under the proposal, existing affected facilities would be required to submit facility response plans within 12 months, while newly constructed facilities must prepare and submit a response plan prior to the start of operations but no sooner than 12 months after the effective date of the final rule.  EPA solicits comment with supporting rationale and data.  Comments must be received on or before May 27, 2022.  Should you have any questions with respect to the proposal, please feel free to reach out to MGKF’s Spencer Hill or Carol McCabe at 484-430-5700.