EPA Proposes CWA Hazardous Substance Worst Case Discharge Planning Rule

On March 28, 2022 EPA published in the Federal Register a proposed regulation that would require certain facilities to prepare a Facility Response Plan (FRP) regarding how it would handle a “worst case discharge” of hazardous substances that could pose a threat to navigable waters, adjoining shorelines or exclusive economic zones.  87 Fed. Reg. 17890.  The proposed rule was prompted by a consent decree that required EPA to issue a proposed rule by March 2022 and a final rule by September 2024.

Screening Criteria -- Facilities are subject to the proposed regulation if they meet several screening criteria identified below.

1. Threshold Quantities – The first screening criterion is a facility’s capacity to store threshold amounts of the Clean Water Act (CWA) hazardous substances.  The threshold amount is 10,000 times the reportable quantity (RQ) for each hazardous substance.  The RQs range from one to 5,000 pounds, and are listed in the federal regulation at 40 CFR §117.3.  The storage capacity is defined as “the total aggregate container capacity for each CWA hazardous substance present at all locations within the entire facility at any one time.”  The proposed rule defines “container” as “any device or portable device in which a CWA hazardous substance is processed, stored, used, transported, treated, disposed of, or otherwise handled.”  Facilities must determine if the meet or exceed the threshold quantities for each hazardous substance.  This would not include hazardous substances contained in articles, process water, cooling water or permanently closed containers.

2. Location – If a facility meets or exceeds the threshold quantities criteria for any hazardous substance, and is located within a half mile of a “navigable water or conveyance to a navigable water,” the facility must then determine if it meets at least one of the substantial harm criteria in the proposal.  Given the broad definition of navigable waters, most facilities that meet the threshold quantity criteria would likely meet this location criteria.

3. Substantial Harm – A facility that meet the first two screening criteria discussed above must undertake an evaluation to determine if it meets at least one of the following “substantial harm” criteria:

• the facility has had a discharge of a RQ of hazardous substance within the last five years,
• discharge from the facility could cause injury to fish, wildlife, or sensitive environments,
• discharge from the facility could adversely impact a public water system, OR
• discharge from the facility could cause injury to public receptors.

Facility Response Plan (FRP) – Facilities that meet the location, storage capacity, and substantial harm criteria are required to submit a FRP to EPA.   The FRP should include:

• the facility’s hazard evaluation for a worst-case discharge of hazardous substances and how the facility plans to respond to potential discharges;
• the facility’s discharge history;
• the facility’s response personnel (including roles and responsibilities) and equipment necessary to remove, mitigate, and prevent the threat of a discharge;
• discharge detection system and containment measures; and
• a response training program and a drills and exercise program in coordination with local planning and emergency organizations.

Facilities must submit the FRP to EPA within 12 months of the effective date of the final rule and update the plan every five years or within 60 days of a change at or outside the facility that impacts the potential to cause substantial harm to the environment.

EPA Regional Administrator Authority – EPA is also proposing that Regional Administrators may have the authority to require a facility to submit a FRP based on site-specific factor, regardless of whether the facility meets the screening criteria of the rule.  Even though the site-specific factors are identified in the proposed rule, this requirement would give EPA overly broad authority to require facilities to submit a FRP.

More information is available on the proposed rule is available on the EPA website at:  Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations | US EPA.  According to the EPA website, comments on the proposed rule are due by July 26, 2022.  If you have any questions or would like additional information on the proposed rule, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com. 

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.