Review - EPA’s Worst-Case Discharge NPRM – Affected Facilities

As I reported on Sunday, the EPA has published a notice of proposed rulemaking (NPRM) for “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations”. This is the initial post in providing a detailed look at the provisions of that NPRM. These posts will provide the basis for comments that I will be submitting as part of the public comment process for this rulemaking.

Facility Coverage

As I reported on Sunday, a facility would subject to the planning requirements of this proposed rule if it met three requirements:

Threshold quantity,

Proximity to navigable waters, and

Substantial harm criteria,

Hazardous Substance Threshold

In this rulemaking, the amount of a hazardous substance that triggers the possibility of the applicability of the planning requirements (threshold quantity) outlined in the rule is a ‘maximum capacity on site’ for each hazardous substance of 10,000 times it’s RQ. Thus, if a chemical has an RQ of 1-lb (ethylene dibromide for example), the threshold quantity would be a maximum capacity on site of 10,000-lbs. If the RQ were 5,000-lbs (formic acid for instance) the threshold quantity would be 50,000,000-lbs of maximum capacity on site.

Proximity to Navigable Waters

For facilities that meet the threshold quantity standards, the next requirement that needs to be looked at is the proximity to navigable waters. Most facilities that are on the waterfront of navigable waters are going to be marine transportation-related facilities, and thus subject to the Coast Guard regulations, not EPA’s. In this rulemaking, the EPA is targeting facilities meeting threshold quantity requirements that are within ½ mile of a navigable waterway or a “conveyance to navigable water”.

Substantial Harm Criteria

A facility that meets both the threshold and proximity criteria would be required to perform the worst-case planning requirements of this rulemaking if they meet any one of the four ‘substantial harm’ criteria outlined in the new 33 CFR 118.3. Those criteria are:

• Ability to cause injury to fish, wildlife, and sensitive environments,

• Ability to adversely impact a public water system,

• Ability to cause injury to public receptors, or

• Reportable discharge history

A more detailed discussion of the ‘substantial harm’ criteria will be found in the next post in this series.

For more details on the above discussion, including background material, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/epas-worst-case-discharge-nprm - subscription required.