Proposed Rulemaking on Clean Water Act Hazardous Substance Worst Case Discharge Planning
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On March 10, 2022, EPA Administrator Michael Regan signed a proposed rule to require certain facilities to develop facility response plans for a worst case discharge of Clean Water Act (CWA) hazardous substances, or threat of such a discharge. A worst case discharge is the largest foreseeable discharge in adverse weather conditions, including those from climate change.
The facility response plan requirements would apply to facilities that could reasonably be expected to cause substantial harm to the environment, based on their location. These include industrial facilities with a maximum onsite capacity of a CWA hazardous substance that meets or exceeds threshold quantities, located within a 0.5-mile radius of navigable water or conveyance to navigable water, and that meets one or more substantial harm criteria.
The proposed action considers increased risks of worst case discharges from climate change as well as impacts to communities with environmental justice concerns. The Agency is also soliciting comment on additional strategies to take these concerns into account.
EPA is taking public comment on the proposed rule until July 26, 2022. Comments can be submitted at www.regulations.gov (Docket No.: EPA-HQ-OLEM-2021-0585).
Section 311(j)(5) of the CWA directs the President to issue regulations “which 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.”
In 1994, EPA promulgated regulations for worst case discharges of oil under 40 CFR part 112, subpart D, but the Agency has not proposed regulations for CWA hazardous substances under section 311(j)(5) until this action.
On March 21, 2019, the Natural Resources Defense Council, Clean Water Action, and the Environmental Justice Health Alliance for Chemical Policy Reform filed suit in the United States District Court for the Southern District of New York alleging violations of the CWA section 311(j)(5)(A)(i) and the Administrative Procedures Act (APA). The plaintiffs and EPA entered into a consent decree on March 12, 2020, that resolved the claims of the suit.