Hazardous Substance Response Plans Are Coming

Over thirty years after the requirement was first included in the Clean Water Act and after a suit was filed to force EPA to act, EPA has published a proposed rule relating to planning for worst-case discharges of hazardous substances. The comment period is open to May 27, 2022.

The Clean Water Act was amended by the Oil Pollution Act of 1990. As part of that amendment, a provision was added requiring the issuance of regulations mandating that certain facilities prepare and submit 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.” CWA Section 311(j)(5); 33 USCA 1321(j)(5). Of course, both the EPA and the U.S. Coast Guard have promulgated various regulatory requirements relating to discharges of oil, such as those in 40 CFR Part 112, as well as some requirements relating to hazardous substances. However, according to EPA, no single program covered all the requirements of CWA Section 311(j)(5).

In 2019, suit was filed against EPA, alleging that EPA had failed to promulgate the required regulations. In March 2020, EPA entered into a consent decree in which it agreed to publish a proposed rule within two years and finalize a rule within 30 months after the proposed rule was published.

In general, EPA proposed that facilities be required to prepare and submit response plans if they could reasonably be expected to cause substantial harm to the environment due to a worst-case discharge of hazardous substances. The proposal applies to non-transportation-related onshore mobile or fixed facilities that handle hazardous substances. EPA specified that the hazardous substances are those designated as such in 40 CFR Part 116. The proposal draws heavily on prior, related rules, such as the SPCC Rule.

There are two methods by which the proposed rule requires the submittal of a response plan. Although both require a determination of whether a facility could be expected to cause substantial harm to the environment by a discharge of a hazardous substances to navigable waters, one is conducted by the facility itself and one is conducted by EPA’s regional administrator.

For the facility’s determination, EPA proposed a two-step process to determine applicability. In the first step, the facility would have to meet two initial screening criteria: container capacity above a threshold quantity and location within one-half mile of a navigable water or a conveyance to navigable water. The threshold quantity is 10,000 times the reportable quantity for the hazardous substances. EPA uses its own definition of navigable waters in 40 CFR 120.2.

If the criteria in the first step are met, the facility then determines in the second step if it meets any of the four substantial harm criteria: ability to adversely impact a public water system, ability to cause injury to fish, wildlife, and sensitive environments, ability to cause injury to public receptors, and/or having a reportable discharge of a hazardous substance within the last five years. If any of the substantial harm criteria are met, then a response plan must be submitted.

EPA also introduced the concept of the substantial harm certification. Any facility meeting the first step noted above (container capacity above a threshold quantity and location within one-half mile of a navigable water or a conveyance to navigable water) must complete the form included in the proposed rule and submit it to EPA. Essentially, the form requires the facility to provide information to EPA, and certify that information, regarding whether the facility is located such that it could impact fish, wildlife, and sensitive environments, adversely affect a public water supply, or cause injury to public receptors. The form requires a yes or no answer and a certification. Presumably, an incorrect answer could lead to enforcement action.

The EPA will review the submitted response plans, along with the information supplied in the substantial harm certification, to determine whether a facility could be expected to cause substantial harm to the environment by a discharge of CWA hazardous substances to navigable waters. If such a determination is made, the regional administrator will notify the facility, possibly require amendments, and approve the plan.

Additionally, EPA included a provision in the proposal providing authority to a regional administrator to require the submission of a response plan if certain criteria are met. The regional administrator must provide a notice setting out the basis for the determination. There are eleven designated criteria and the RA need only rely on one such criteria to make the determination. The criteria are general and relatively vague, such as “proximity to fish, wildlife, and sensitive environments and other areas” and “reportable discharge history.”

Further, some criteria are even vaguer. The RA may also consider the lack of passive mitigation measures or systems, including those that enhance resilience to climate change, the potential for a worst-case discharge to adversely impact communities with environmental justice concerns, and the potential vulnerability to adverse weather conditions resulting from climate change. With the renewed focus on climate change and environmental justice concerns by this administration, it is likely that these provisions will result in notices from a regional administrator for facilities to submit response plans.

The requirements for the response plans are quite detailed. The plans must be consistent with the requirements of the National Oil and Hazardous Substance Pollution Contingency Plan (40 CFR part 300) and identify a qualified individual. Further, the facility must, among other things, conduct a hazard evaluation, identify response personnel, equipment, and actions, provide for containment measures, and detail training procedures. The proposal also includes coordination requirement with the local emergency planning committee. These provisions draw heavily on the facility response plan requirements in Part 112. In short, EPA is expanding the universe of facilities that must, or may be required to, submit facility response plans. While some facilities that have escaped regulation to date should have engaged in planning to reduce the risk of a discharge, the criteria established by EPA to determine if such a plan should be submitted are broad and vague enough to encompass many facilities that otherwise would not likely discharge substances to navigable waters.

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