On March 11, 2022, the U.S. Environmental Protection Agency (“EPA”) AnnouncementIt was Proposing new regulationsIt would be required that facilities located near navigable waters develop and submit Facility Response Plans to address worst case discharges. These regulations would add to EPA’s existing regulations of worst case discharges of oil, which have been in place since 1994. Adding a new twist in these proposed regulations, EPA would grant Regional Administrators wide discretion to make the Facility Response Plan requirements mandatory at facilities that, in the Regional Administrator’s judgment, were vulnerable to climate change or potentially impacting an environmental justice community, even if the facilities are not near a navigable water.
The Clean Water Act (“CWA”) contains general spill response plan requirements, which require EPA to establish rules “to prevent discharges of oil and hazardous substances from vessels and from onshore facilities and offshore facilities, and to contain such discharges…” 42 U.S.C. § 1321(j)(1)(C). In response to this requirement of the CWA, EPA promulgated its Spill Prevention, Control, and Countermeasure (“SPCC”) Regulations, found at 40 C.F.R. part 112.
The proposed hazardous substance Facility Response Plan rules have been promulgated under Section 311 (j)(5) of Clean Water Act (CWA). This is a slightly more specific provision that was added in 1990 to the CWA. Section 311(j)(5)(A) directs EPA to issue regulations that require certain facilities to prepare and submit to EPA “a plan for responding, to the maximum extent practicable, a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance.” 42 U.S.C. § 1321(j)(5)(A)(i). Specifically, the CWA states that facilities covered by this requirement include, a facility “that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.” 42 U.S.C. § 1321(j)(5)(C)(iv).
1994 regulations were issued by the EPA that required certain facilities that store and use crude oil to prepare and submit a Facility response plan. See 40 C.F.R. §§ 112.20-112.21. However, EPA has never issued regulations requiring similar plans for response in facilities that store hazardous substances. EPA was sued by several environmental groups, including the Natural Resources Defense Council, Clean Water Action and the Environmental Justice Health Alliance for Chemical Policy Reform, alleging violations to the CWA, as well as the Administrative Procedures Act. The lawsuit was settled by the environmental groups and EPA through a consent decree dated March 12, 2020. This required EPA to promulgate hazardous substances response plan regulations by March 12, 2022.
- Whether the facility has the capacity to hold a CWA hazardous material onsite at or above a threshold amount (threshold quantity proposed to be 10,000 times reportable quantity).
- Whether the facility is located within one-half miles of navigable waters or a conveyance from navigable waters
If these conditions are met, the facility will determine if it meets any of four substantial harm criteria.
- The potential to negatively impact a public water supply system.
- The ability to cause injury to fish, wildlife, and sensitive environments (“FWSE”);
- The ability to cause harm to public receptors.
- A reportable discharge of a CWA hazardous material within the past five years.
If the facility meets any of these substantial harm criteria, it must submit a CWA hazardous substances Facility Response Plan to the EPA.
EPA also proposes that each EPA Regional administrator has the authority, regardless of whether a facility fulfills the criteria above, to require CWA hazardous material Facility Response Plans. This is if the Regional Administration determines that site-specific circumstances warrant the need for the Facility Response Plan. Regional Administrators are instructed to consider additional factors in making such a determination. This includes potential vulnerability to adverse climate conditions resulting from global warming and potential for a worst case release to adversely impact communities that have environmental justice concerns.
The Federal Register will publish the proposed rule in the coming weeks. EPA will accept public comments for 60 days after publication.
