Thirty years after the requirement was first included in the Clean Water Act (CWA), EPA has proposed a rule relating to planning for worst-case discharges of hazardous substances.
The CWA requires the issuance of regulations mandating that certain facilities prepare and submit a plan for responding to a worst-case discharge of a hazardous substance. In 2019, a suit was filed 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.
EPA proposed that non-transportation-related onshore 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. EPA specified that the hazardous substances are those designated as such in 40 CFR Part 116.
There are two methods by which the proposed rule requires the submittal of a response plan. One determination is conducted by the facility itself and the other is conducted by the EPA's regional administrator (RA). For the facility's determination, EPA proposed a two-step process. In Step 1, the facility would have to meet two initial screening criteria: container capacity above a threshold quantity (10,000 times the reportable quantity for that substance) and location within one-half mile of a navigable waterway.
If Step 1 is met, the facility then determines in Step 2 if it meets any one of 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 within the past 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 Step 1 criteria must complete a form and submit it to EPA. Essentially, the form requires the facility to provide and certify information to EPA 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. Presumably, an incorrect answer could lead to enforcement action.
Additionally, an RA would have authority to require the submission of a response plan if certain criteria are met. The RA must provide a notice setting out the basis for the determination. There are 11 designated criteria and the RA need only rely on one. The criteria are broad and relatively vague, such as "proximity to fish, wildlife, and sensitive environments and other areas" and "reportable discharge history."
Some criteria are even more vague. The RA may also consider the lack of passive mitigation measures that enhance resilience to climate change, the potential for a worst-case discharge to environmental justice communities 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 an RA to submit response plans.
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 engage 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.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement with the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
