[Federal Register Volume 83, Number 122 (Monday, June 25, 2018)]
[Proposed Rules]
[Pages 29499-29520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13470]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 151

[EPA-HQ-OLEM-2018-0024; FRL-9979-83-OLEM]
RIN 2050-AG87


Clean Water Act Hazardous Substances Spill Prevention

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed action.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is

[[Page 29500]]

proposing to establish no new requirements under Clean Water Act (CWA), 
section 311. This section directs the President to issue regulations to 
prevent discharges of oil and hazardous substances from onshore and 
offshore facilities, and to contain such discharges. On July 21, 2015, 
EPA was sued for failing to comply with the alleged duty to issue 
regulations to prevent and contain CWA hazardous substance discharges. 
On February 16, 2016, the United States District Court for the Southern 
District of New York entered a Consent Decree between EPA and the 
litigants that required EPA to sign a notice of proposed rulemaking 
pertaining to the issuance of hazardous substance regulations, and take 
final action after notice and comment on said notice. Based on an 
analysis of the frequency and impacts of reported CWA HS discharges and 
the existing framework of EPA regulatory requirements, the Agency is 
not proposing additional regulatory requirements at this time. This 
proposed action is intended to comply with the Consent Decree and to 
provide an opportunity for public notice and comment on EPA's proposed 
approach to satisfy the CWA requirements.

DATES: Comments must be received on or before August 24, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2018-0024, ``Clean Water Act Hazardous Substances Discharge 
Prevention Action'' at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from https://www.regulations.gov/. The EPA may 
publish any comments received on its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Stacey Yonce, Office of Emergency 
Management, Mail Code 5104A, Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460, (202) 564-2288, 
yonce.stacey@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. What is the statutory authority for this proposed action?

    This proposal is authorized by section 311(j)(1)(C) of the CWA.

B. Does this proposed action apply to me?

    A list of entities that could be affected by requirements 
established under CWA section 311(j)(1)(C) is provided in Table 1:

                 Table 1--Potentially Affected Entities
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                    Industry                               NAICS
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Wired and Wireless Telecommunications...........  51711, 51721.
Oil and Gas Extraction..........................  21111.
Water Supply and Irrigation Systems.............  22131.
Farm Supplies Merchant Wholesalers..............  42491.
Electric Power Generation, Transmission and       2211.
 Distribution.
Support Activities for Crop Production..........  11511.
Warehousing and Storage.........................  4931.
Food Manufacturing..............................  311.
Chemical Manufacturing..........................  325.
Other Merchant Wholesalers, Nondurable Goods....  424.
Mining and Quarrying............................  21.
Utilities.......................................  22.
Construction....................................  23.
Manufacturing...................................  31-33.
Wholesale and Retail Trade......................  42, 44-45.
Transportation and Warehousing..................  48-49.
Other...........................................  11, 51-56, 61-62, 71-
                                                   72, 81, 92.
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NAICS = North American Industry Classification System.

    The list of potentially affected entities in Table 1 may not be 
exhaustive. The Agency's aim is to provide a guide for readers 
regarding those entities that potentially could be affected by this 
action. However, this action may affect other entities not listed in 
this table. If you have questions regarding the applicability of this 
action to a particular entity, consult the person(s) listed in the 
preceding section entitled FOR FURTHER INFORMATION CONTACT.

C. What is the purpose of this proposed action?

    The purpose of this proposal is to provide opportunity for public 
notice and comment on EPA's proposed approach to satisfy the 
requirements of CWA section 311(j)(1)(C) pertaining to CWA hazardous 
substances (HS).

II. Background

A. Statutory Authority and Delegation of Authority

    CWA section 311(j)(1)(C) directs the President to issue regulations 
establishing procedures, methods, and equipment; and other requirements 
for equipment to prevent discharges of oil and HS from vessels and from 
onshore facilities and offshore facilities, and to contain such 
discharges.\1\ The President

[[Page 29501]]

has delegated the authority to regulate non-transportation-related 
onshore facilities and offshore facilities landward of the coastline, 
under section 311(j)(1)(C) of the CWA to EPA.\2\
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    \1\ 33 U.S.C. 1321(j)(1)(C).
    \2\ Under Executive Order 12777(b)(1), the Department of the 
Interior has redelegated the authority to regulate non-
transportation-related offshore facilities landward of the coastline 
to EPA (see 40 CFR part 112, Appendix B). A Memorandum of 
Understanding (MOU) between the U.S. Department of Transportation 
(DOT) and EPA (36 FR 24080, November 24, 1971) established the 
definitions of transportation- and non-transportation-related 
facilities. An MOU among EPA, DOI, and DOT, effective February 3, 
1994, has redelegated the responsibility to regulate certain 
offshore facilities from DOI to EPA.
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B. Legislative Background

    The term ``hazardous substance'' is defined in CWA section 
311(a)(14). Section 311(b)(2)(A) authorizes regulations designating HS, 
which when discharged in any quantity into jurisdictional waters,\3\ 
present an imminent and substantial danger to public health or welfare, 
including, but not limited to, fish, shellfish, wildlife, shorelines, 
and beaches.
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    \3\ The CWA 311 jurisdiction applies to discharges or 
substantial threats of discharges into or upon the navigable waters 
of the United States, adjoining shorelines, or into or upon the 
waters of the contiguous zone; in connection with activities under 
the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) or 
the Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.); or which 
may affect natural resources belonging to, appertaining to, or under 
the exclusive management authority of the United States [including 
resources under the Magnuson-Stevens Fishery Conservation and 
Management Act (16 U.S.C. 1801 et seq.)] (``jurisdictional 
waters''). See 33 U.S.C. 1321(b)(1) and 33 U.S.C. 1321(c).
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    Once a chemical was designated as a CWA HS, as described in Section 
II.C, the corresponding quantity was established by regulation under 
the authority of CWA section 311(b)(4).\4\ The CWA prohibits discharges 
of CWA HS in quantities that may be harmful in section 311(b)(3).
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    \4\ CWA section 311(b)(4) provides for the President to, by 
regulation, determine for the purposes of this section, those 
quantities of oil and any hazardous substances, the discharge of 
which may be harmful to the public health or welfare or the 
environment of the United States, including but not limited to fish, 
shellfish, wildlife, and public and private property, shorelines, 
and beaches.
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C. Regulatory Background

    In March 1978, EPA designated a list of CWA HS in 40 CFR part 116. 
EPA established reportable quantities for those substances in 40 CFR 
part 117 in August 1979 (see, for example, 43 FR 10474, March 13, 1978; 
44 FR 50766, August 29, 1979). In September 1978, EPA proposed to 
establish requirements for Spill Prevention, Control, and 
Countermeasure (SPCC) Plans to prevent CWA HS discharges from 
facilities subject to permitting requirements under the National 
Pollution Discharge Elimination System (NPDES) program of the CWA (43 
FR 39276, September 1, 1978). The Agency proposed to require owners and 
operators to develop CWA HS SPCC Plans that included, among other 
things, general requirements for appropriate containment, drainage 
control and/or diversionary structures; and specific requirements for 
the proper storage of liquids and raw materials, preventive maintenance 
and housekeeping, facility security, and training for employees and 
contractors. EPA did not finalize that proposed CWA HS SPCC rule. There 
is no information in the record to explain the reason the 1978 proposal 
was not finalized.

D. Litigation Background

    On July 21, 2015, the Environmental Justice Health Alliance for 
Chemical Policy Reform, People Concerned About Chemical Safety, and the 
Natural Resources Defense Council filed a lawsuit \5\ against EPA for 
failing to comply with the alleged duty to issue regulations to prevent 
and contain CWA HS spills from non-transportation-related onshore 
facilities, including aboveground storage tanks, under CWA section 
311(j)(1)(C).
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    \5\ Complaint for Declaratory and Injunctive Relief, 
Environmental Justice Health Alliance from Chemical Policy Reform v. 
EPA, 15-cv-5705 (S.D.N.Y. July 21, 2015).
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    On February 16, 2016, the United States District Court for the 
Southern District of New York entered a Consent Decree between EPA and 
the litigants establishing a schedule under which EPA is to sign ``a 
notice of proposed rulemaking pertaining to the issuance of the 
Hazardous Substance Regulations'' and take final action after notice 
and comment on said notice.\6\
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    \6\ Envtl. Justice Health All. for Chem. Reform v. U.S. EPA, No. 
15-cv-05075, ECF No. 46 (S.D.N.Y. Feb. 16, 2016).
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E. Public Outreach

    EPA held three public meetings in 2016 to gain early input from 
stakeholders that EPA should consider during the rulemaking 
development. A public meeting was held in Charleston, West Virginia, on 
November 2; and two virtual public meetings were held on November 29 
and December 1. EPA received input from a variety of stakeholders, 
including nongovernmental organizations, local governments, private 
citizens, and representatives from industry and trade organizations. 
Topics addressed in these discussions included:
     Establish spill prevention and right-to-know requirements 
for chemicals.
     Require secondary containment and inspections of primary 
and secondary containment to assure continued compliance.
     Require information about downstream public water intakes 
to allow prompt notification after a spill.
     Concerns about CBI should not prohibit notifying residents 
about the risks of the chemicals stored or released.
     EPA must enforce standards for them to be effective.
     A number of Federal and state regulations already require 
spill prevention measures and EPA should not establish redundant or 
conflicting requirements.
    The public input received is available in the docket.\7\
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    \7\ A summary of the input is available on the EPA website at: 
https://www.epa.gov/rulemaking-preventing-hazardous-substance-spills/summary-public-input-clean-water-act-cwa-hazardous, as well 
as in the docket for this proposal: Docket ID #: EPA-HQ-OLEM-2018-
0024.
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F. Additional Information Collection

    We intend to supplement the information that this action is based 
on with an additional information collection. This information 
collection would be a voluntary survey of U.S. states, tribes, and 
territories that would request information on the number and type of 
facilities with CWA HS onsite; historical discharges of CWA HS; the 
ecological and human health impacts of those discharges; and existing 
state, territory, and Tribal programs that address discharge prevention 
of CWA HS. EPA anticipates using the results of the survey to further 
inform this regulatory action.\8\
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    \8\ On September 21, 2017, EPA issued a notice in the Federal 
Register (82 FR 44178) that identified plans to submit an 
information collection request (ICR) to the Office of Management and 
Budget (OMB) for review and approval, and provided a 60-day public 
comment period.
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III. Proposed Action

    EPA is proposing no new regulatory requirements under the authority 
of CWA section 311(j)(1)(C) at this time. This determination is based 
on an analysis of identified CWA HS discharges, and an evaluation of 
the existing framework of EPA regulatory requirements relevant to 
preventing and containing CWA HS discharges.
    The Agency set forth to determine what regulatory requirements 
under CWA section 311(j)(1)(C) would be appropriate to prevent CWA HS 
discharges. To this end, EPA analyzed the frequency of and reported 
impacts of the identified CWA HS discharges.
    Next, EPA identified an analytical framework of discharge 
prevention, containment, and mitigation provisions,

[[Page 29502]]

or program elements, commonly found in discharge and accident 
prevention regulatory programs. EPA then conducted a review of existing 
EPA regulatory programs to determine which regulations, such as NPDES, 
Resource Conservation and Recovery Act (RCRA), Risk Management Program 
(RMP), and others include these program elements and also apply to CWA 
HS.
    Based on the reported frequency and impacts of identified CWA HS 
discharges, and the Agency's evaluation of the existing framework of 
EPA regulatory requirements relevant to preventing CWA HS discharges, 
EPA has determined that the existing framework of regulatory 
requirements serves to prevent CWA HS discharges. Additionally, EPA 
identified relevant requirements in other Federal regulatory programs 
and determined that they further serve to prevent CWA HS discharges, 
providing additional support for this proposed action.

A. CWA HS Discharge History and Impacts Analysis

1. Discharge History and Reported Impacts
    EPA analyzed CWA HS discharges reported to the National Response 
Center (NRC) \9\ over a 10-year period to estimate the frequency of CWA 
HS discharges and to understand the reported impacts of these 
discharges to communities that were potentially affected.\10\ 40 CFR 
117.21 requires immediate notification to the NRC once the person in 
charge of a vessel or an offshore or onshore facility has knowledge of 
a discharge of a designated CWA HS from the facility in quantities 
equal to or exceeding, in any 24-hour period, the reportable quantity.
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    \9\ The NRC is the designated federal point of contact for 
reporting all oil, chemical, radiological, biological, and 
etiological discharges and releases into the environment anywhere in 
the United States and its territories. The NRC maintains a national 
database of these reports.
    \10\ EPA recognizes that historical CWA HS discharges do not 
predict future incidents. EPA reviewed the CWA HS discharge history 
to gain insight into the frequency and impact of past CWA HS 
discharges.
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    During 2007-2016, the NRC received reports of 285,867 releases of 
all kinds (including for example of oil, chemical, radiological, 
biological to a variety of media). EPA then further analyzed the data 
to identify discharges of CWA HS that impacted water from facilities in 
EPA's regulatory jurisdiction. Based on the NRC database review \11\ 
and recognizing the data limitations discussed further in Section 
III.A.3, EPA identified 9,416 reports of CWA HS discharges out of the 
total received (3.3 percent) for this time period. Of these CWA HS 
discharge reports, the Agency further refined the analysis by 
identifying 3,140 reports that were reported to have reached water (see 
discussion below on NRC data limitations). Within that universe, 2,491 
(less than one percent of the reports) were identified as CWA HS 
discharges reported to have originated from non-transportation-related 
sources.
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    \11\ This review is described in detail in the Regulatory Impact 
Analysis in the docket (Docket ID No. EPA-HQ-OLEM-2018-0024) for 
this proposed action.
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    EPA further analyzed the NRC data to examine how many of the CWA HS 
discharges to water from non-transportation-related facilities had 
reported impacts. This information was supplemented with reported 
impact data for identified CWA HS discharges from the National Toxic 
Substance Incidents Program (NTSIP).\12\ Impacts reported to NRC and 
NTSIP include evacuations, injuries, hospitalizations, fatalities, 
waterway closures, and water supply contamination. A total of 117 CWA 
HS discharge reports (4.7 percent) included one or more of these 
impacts out of the 2,491 identified CWA HS discharges to water, 
reported as originating from non-transportation-related sources over 
the 10-year period analyzed.
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    \12\ The Agency for Toxic Substances and Disease Registry's 
NTSIP collects and combines information from many resources to 
protect people from harm caused by spills and leaks of toxic 
substances. NTSIP gathers information about harmful spills into a 
central place. People can use NTSIP information to help prevent or 
reduce the harm caused by toxic substance incidents. NTSIP can also 
help experts when a release does occur. See https://www.atsdr.cdc.gov/ntsip/ for additional information.
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    EPA seeks comment on the approach used to analyze the frequency of 
CWA HS discharges and to quantify the impacts of CWA HS discharges. 
Specifically, EPA requests additional data sources, information, and 
approaches that may allow EPA to further revise or refine the estimated 
impacts of CWA HS discharges from non-transportation-related sources, 
nationally.
2. Most-Frequently Discharged CWA HS
    In addition to determining the frequency of CWA HS discharges, EPA 
also analyzed the reporting data to identify the CWA HS most frequently 
discharged. Of 292 CWA HS currently designated in 40 CFR part 116, the 
following 13 CWA HS comprised the majority of identified discharges, as 
well as the majority of identified discharges with reported impacts 
(Table 2).

                                   Table 2--Most Frequently Discharged CWA HS
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                                                                                     Number of       Number w/
               CWA HS                     CAS No.           Chemical class          discharges        impacts
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Polychlorinated Biphenyls (PCBs)....       1336-36-3  Organic...................           1,322              21
Sulfuric Acid (>80%)................       7664-93-9  Acid......................             185              14
Sodium Hydroxide....................       1310-73-2  Base......................             147               4
Ammonia.............................       7664-41-7  Weak Base.................             112              18
Benzene.............................         71-43-2  Organic...................              91               8
Hydrochloric Acid...................       7647-01-0  Acid......................              91               9
Chlorine (liquid/solid).............       7782-50-5  Base......................              81              13
Sodium Hypochlorite.................       7681-52-9  Base......................              81               1
Toluene.............................        108-88-3  Organic...................              38               1
Phosphoric Acid.....................       7664-38-2  Acid......................              34               0
Styrene.............................        100-42-5  Organic...................              21               1
Nitric Acid (fuming)................       7697-37-2  Acid......................              19               4
Potassium Hydroxide.................       1310-58-3  Base......................              18               0
                                                                                 -------------------------------
    Total...........................  ..............  ..........................           2,240              94
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[[Page 29503]]

    These 13 CWA HS make up 90 percent of all identified CWA HS 
discharges to water from non-transportation-related facilities and 80 
percent of the 117 identified CWA HS discharges with reported impacts.
3. NRC Data Limitations
a. Discharge History Limitations
    The Agency looked to the NRC database as the best readily available 
source of information on CWA HS discharges in the United States. 
However, EPA recognizes its limitations. The NRC database is based on 
notifications of CWA HS discharges, and thus is dependent on the 
reporting individuals for comprehensiveness and accuracy of the 
information provided.
    NRC reports are generally received immediately following an 
incident, often before a facility has accurate and complete information 
about the discharge. There is no requirement to update the information 
reported to the NRC; sometimes, the information available in the 
database includes inaccuracies regarding, among others, the substance 
reported, the quantity reported, the source, and the nature or impacts 
of the discharge. Further, some discharges may not be reported to the 
NRC, or the NRC may be notified of discharges that do not equal or 
exceed the reportable quantity. EPA has no information to assess or 
characterize the uncertainty associated with information reported to 
the NRC, the extent of under-reporting (failure to report a discharge), 
or the extent of over-reporting (discharges reported that are not 
subject to notification requirements).
    Furthermore, the analysis conducted focused on those discharges 
that impacted water, but no additional determination was conducted to 
determine if the waters impacted were jurisdictional.\13\
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    \13\ Jurisdictional waters include navigable waters of the 
United States or adjoining shorelines, or the waters of the 
contiguous zone or in connection with activities under the Outer 
Continental Shelf Lands Act (43 U.S.C. 1331 et seq.) or the 
Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.), or which may 
affect natural resources belonging to, appertaining to, or under the 
exclusive management authority of the United States (including 
resources under the Magnuson-Stevens Fishery Conservation and 
Management Act (16 U.S.C. 1801 et seq.).
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b. Discharge Impact Limitations
    There may be additional impacts (i.e., beyond evacuations, 
injuries, hospitalizations, fatalities, waterway closures, and water 
supply contamination) from the universe of CWA HS discharges to water 
from non-transportation-related facilities, which were not required to 
be reported to the NRC and, thus, could not be quantified in this 
analysis. These may include the loss of productivity due to a facility 
or process unit shutting down as a result of a discharge, emergency 
response and restoration costs, transaction costs such as the cost of 
resulting litigation, damages to water quality, fish kills, or impacts 
to property values due to changes in perceived risk or reduced 
ecological services. EPA was not able to identify sources of data to 
quantify these impacts, other than the cited data from NRC or NTSIP and 
some limited information about fish kills that is made publicly 
available by a few states. The NRC and NTSIP data are discussed and 
analyzed in the RIA. The information EPA identified on fish kills is 
included in the docket.
c. Additional Efforts To Gather Data
    EPA's initial data gathering efforts for this proposed action 
focused on assessing the scope of historical CWA HS discharges and 
identifying relevant industry practices and regulatory requirements 
related to preventing CWA HS discharges. EPA began to develop an 
information collection request (ICR) with a voluntary survey intended 
for facilities with CWA HS. EPA intended to collect information on 
current prevention practices and other facility-specific information 
that would inform the selection of prevention program elements for a 
proposed rule (e.g., storage capacity, types of storage equipment). 
However, EPA revised the focus of the survey after recognizing 
uncertainties in the estimate of the universe of potentially-subject 
facilities and the impacts associated with the 10-year CWA HS discharge 
data.
    EPA intends to collect information from states to refine:
     The estimate of the universe of potentially-regulated 
facilities, and
     The analysis of CWA HS discharges in the 10-year period 
analyzed.
    EPA provided notice on September 21, 2017 (82 FR 44179) of plans to 
submit an ICR to the OMB for review and approval of a voluntary survey 
intended for U.S. states, tribes, and territories. On April 10, 2018 
(83 FR 15387) EPA provided notice that the ICR has been submitted to 
OMB for review and provided an additional 30-day public comment period.
    EPA anticipates using any relevant information obtained through 
survey responses to further inform development of a regulatory action. 
If new information is received that informs the rulemaking, EPA will 
publish a notice to allow an opportunity for public review and comment 
of the information, as appropriate.

B. Analysis of Existing Regulatory Programs

1. Program Elements
    The Agency assessed current discharge prevention practices and 
technologies based on a review of existing EPA and other Federal 
regulatory programs.\14\ To further inform this analysis, EPA also 
reviewed state regulatory programs and industry standards, which are 
sometimes incorporated into state or Federal regulations as 
requirements. The purpose of this regulatory review was to identify 
common discharge and accident prevention, control and mitigation 
provisions that would serve to prevent, contain, or mitigate CWA HS 
discharges. EPA also analyzed past CWA HS discharges to determine what 
program elements could prevent or minimize impacts from these types of 
discharges in the future. Finally, EPA considered stakeholder input 
from the 2016 public meetings when identifying program elements (e.g., 
secondary containment and inspections, and downstream water 
notifications). See section II.E for a description of the early 
stakeholder input opportunities for this action.
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    \14\ Indiana's Department of Environmental Management took a 
similar approach when developing a report of aboveground storage 
tank rules and regulations. See IDEM's Report of Aboveground Storage 
Tank Rules and Regulations Pursuant to SEA 312; November 2015. 
https://www.in.gov/idem/cleanwater/files/ast_rules_overview.pdf.
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    EPA identified a framework of discharge prevention, containment, 
and mitigation provisions, or program elements, commonly found in 
discharge and accident prevention regulatory programs. These program 
elements are listed in Table 3 and discussed below and in the 
Background Information Document (BID).\15\
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    \15\ The analysis did not include administrative provisions, 
such as recordkeeping, which would normally be included in a 
regulatory program.

[[Page 29504]]



           Table 3--Program Elements and Associated Provisions
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         Program elements            Sample owner/operators requirements
------------------------------------------------------------------------
Prevention Provisions:
    Safety Information............  Maintain and review Safety Data
                                     Sheets (SDS).
    Hazard Review.................  Review materials and operations at a
                                     facility, identify potential CWA HS
                                     discharge scenarios, and address
                                     them. Examples of resulting hazard
                                     mitigation measures could include
                                     storage container compatibility,
                                     engineering controls (e.g.,
                                     uninterrupted power source) to
                                     address expected weather events,
                                     overfill prevention, explosion-
                                     proof requirements, and facility
                                     security measures.
    Mechanical Integrity..........  Conduct preventive maintenance
                                     inspections, including process
                                     equipment and process control
                                     equipment, and implement
                                     appropriate corrective actions
                                     within specified timeframes.
    Personnel Training............  Conduct initial and periodic
                                     personnel training for employees
                                     and contractors on proper facility
                                     operations, including any discharge
                                     prevention, mitigation, and
                                     response practices.
    Incident Investigations.......  Investigate CWA HS discharge causes,
                                     identify ways to prevent
                                     recurrence, document findings, and
                                     implement appropriate corrective
                                     actions.
    Compliance Audits.............  Review and document compliance with
                                     regulatory requirements. This could
                                     be an in-house or third-party
                                     review.
Containment Provisions:
    Secondary Containment.........  Install and maintain secondary
                                     containment or diversionary
                                     structures to prevent a CWA HS
                                     discharge from reaching a waterway.
                                     Requirements could include
                                     specifications for size
                                     requirements, freeboard for
                                     precipitation, and imperviousness.
Mitigation Provisions:
    Emergency Response Plan.......  Develop an emergency response plan
                                     that includes information and
                                     procedures needed in the event of a
                                     discharge to mitigate the impacts
                                     of the discharge, ensure the safety
                                     of responders and facility
                                     personnel, and to notify potential
                                     receptors.
    Coordination with State and     Coordinate with state and local
     Local Responders.               responders on response and
                                     notification procedures prior to a
                                     CWA HS discharge.
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    A summary of the program elements is included below.
a. Safety Information
    As part of prevention planning, owners/operators should maintain 
and review safety information about the chemicals they handle and the 
equipment involved in their operations. Knowledge and understanding of 
this information could serve to maintain overall safe operations, 
reducing the potential for CWA HS discharges. Chemical safety 
information, for example, would be useful when conducting a hazards 
review, developing a mechanical integrity program, or developing 
training materials for equipment operators.
    Examples of safety information include SDS, as well as 
manufacturers' specifications for operating equipment. A safety 
information program element ensures that facility personnel have 
information to help them understand the safety-related aspects of their 
materials, equipment, and processes; and recognize the limits that are 
placed on their operations.
b. Hazard Review
    The hazard review process is intended to identify potential 
chemical or operational hazards present in a process. The task of 
identifying potential hazards could inform changes in operations that 
would prevent CWA HS discharges. A hazard review could provide 
information key to the proper design, construction, and operation of 
facility equipment/systems (e.g., identifying a risk of corrosion that 
can be mitigated by ensuring compatibility of the container with the 
stored material) or choosing engineering controls (e.g., identifying a 
risk of overfilling may lead to installing alarms or an automatic 
shutoff mechanism, installing an uninterrupted power supply in case of 
loss of power). Hazard review program provisions could be designed to 
focus facilities on identifying process hazards that may cause a 
discharge in order to control or prevent these discharges.
c. Mechanical Integrity Program
    Process equipment widely varies and may include, for example, 
containers, piping, valves, pumps, loading racks, reactors, control 
systems, vents or relief devices, wastewater treatment systems, or 
other equipment that could be potential sources of CWA HS discharges. 
Facilities develop and implement mechanical integrity programs to 
ensure proper equipment operation and maintenance, which not only serve 
to prevent CWA HS discharges, but can also ensure operational 
reliability and safe operation at a facility.
    Mechanical integrity provisions may include procedures for 
inspections (e.g., inspect pressure relief valves, gasket and seal 
integrity), testing, and appropriate corrective action by qualified 
personnel to prevent equipment failures before they cause a discharge. 
Specific to the prevention of CWA HS discharges, mechanical integrity 
provisions may, for example, serve to avoid equipment leaks and 
container failures. Failure of operational equipment (e.g., pumps or 
tanks) or instrumentation (e.g., overfill alarms) can weaken active 
prevention measures and result in CWA HS discharges.
d. Personnel Training
    Training programs for employees and/or contractors help ensure they 
are aware of proper and/or safe operating procedures, chemical hazards, 
discharge prevention and containment measures, and response procedures. 
A training program aims to reduce operator errors that could lead to 
CWA HS discharges and educate operators on the proper implementation of 
discharge prevention measures.
    Personnel training can also strengthen the implementation of other 
program elements, such as hazard review or mechanical integrity, by 
helping employees understand operational procedures established by 
those program elements. Training programs may include specific 
prevention and response procedures, which have been developed to 
prevent, contain, and mitigate CWA HS discharges; or include more 
general provisions for the safe and proper operation of equipment to 
prevent accidents due to operator error.
e. Incident Investigations
    Incident investigations examine the causes of a discharge after it 
has occurred. Lessons learned from incident investigations can then be 
applied to inform future prevention activities, and may result in 
improvements to

[[Page 29505]]

operational methods, process design, or preventative maintenance 
procedures with the goal of preventing future CWA HS discharges. 
Incident investigation requirements may include conducting the 
investigation, documenting the findings, developing procedures to 
address the findings, and sharing the results with relevant employees.
    Incident investigation provisions applicable to CWA HS discharges 
may serve to document findings of a discharge and implement appropriate 
corrective actions aimed at preventing future discharges. For example, 
depending on the identified cause of a CWA HS discharge, one-time 
corrective actions could be implemented (e.g., installing an 
engineering control), or a programmatic or management approach could be 
implemented through another program element (e.g., changes to a 
preventive maintenance inspection schedule under the mechanical 
integrity program, or changes to employee training materials).
f. Compliance Audits
    Compliance audits serve as a mechanism to evaluate and measure a 
facility's compliance with regulatory requirements. An audit reviews a 
facility's operations and practices to determine whether or not 
applicable regulatory requirements are being met. Compliance audits 
identify deficiencies and opportunities for improvement, and may be 
accomplished by in-house personnel or by an outside third party. A 
compliance audit could be accomplished by a Professional Engineer or 
other person with liability/professional standards and knowledge of the 
specific processes and applicable regulations.
    A compliance audit provision could provide facility management with 
a mechanism for oversight of implementation of CWA HS discharge 
prevention practices, and could include reports documenting the audit 
and follow-up actions.
g. Secondary Containment
    When properly designed and maintained, secondary containment 
systems can prevent discharges to jurisdictional waters. Secondary 
containment provisions could include dikes, berms, diversionary 
structures, sumps, spill kits, or other means of preventing discharges 
of CWA HS into jurisdictional waters. Secondary containment systems 
provide a second line of defense in the event of a failure of the 
primary containment, such as bulk storage containers, plant equipment, 
portable containers, or piping. Secondary containment design 
considerations may include passive or active measures, appropriate 
volumes, impermeability of containment structures, and freeboard for 
precipitation.
    Secondary containment provisions for CWA HS equipment could 
require, for example, specific sizing requirements for a worst-case 
discharge (e.g., construction of secondary containment sized to contain 
a CWA HS discharge from the largest container) or a typical discharge 
incident (based on a most-likely scenario); design specifications to 
address impervious construction; maintenance provisions, including 
inspections to ensure the designed capacity is maintained (e.g., by 
removing rainwater or other debris); and corrective actions to ensure 
that inspection results are addressed.
h. Emergency Response Plan
    Emergency response plans describe immediate response actions to be 
taken after a CWA HS discharge in order to mitigate the impacts of the 
discharge, and may include key information that could be quickly 
accessed when needed. These plans identify not only the steps to be 
taken by facility personnel to mitigate the severity and environmental 
impacts of a discharge, to make appropriate notifications to local, 
state and Federal authorities, and also typically includes safety 
information to protect employees and emergency responders. Including an 
emergency response plan as part of a prevention program is 
complementary, since it requires facility owners/operators to 
proactively (i.e., in advance of the discharge) gather information and 
develop immediate actions to be initiated quickly following a CWA HS 
discharge. Additional considerations for emergency response plans may 
include procedures for notifying potential receptors of the CWA HS 
discharge or requirements to have ready access to information about 
proper medical treatment for ingestion of CWA HS that impact drinking 
water supplies.
i. Coordinating Emergency Response Plan With State and/or Local 
Responders
    Coordination between facility personnel and state and/or local 
responders on the content of the facility's emergency response plan 
allows for an information exchange that can improve emergency 
responders' understanding of the potential hazards onsite and ensure an 
effective response following a discharge.
    For example, Local Emergency Planning Committees (LEPCs) include 
representatives from the local community (including elected state and 
local officials; police, fire, civil defense, and public health 
professionals; facility representatives; and community group 
representatives). LEPCs develop an emergency response plan for the 
community, and provide information about chemicals in the community to 
citizens. Where there is no active LEPC, different entities such as 
fire departments, emergency management agencies, police departments, or 
public health agencies may be planning and/or assisting in an incident 
response.
    Coordination with state and local responders prior to a CWA HS 
discharge could help mitigate the impacts of a CWA HS discharge (e.g., 
allow for a timely shutdown of downstream drinking water intakes). 
Provisions could require facility personnel to share their emergency 
response plans with the appropriate local or state entities that would 
respond in the event of a CWA HS discharge. This could include an LEPC, 
as well as other local authorities in charge of coordinating source 
water protection for public drinking water systems or for other 
receptors.
2. Existing Regulatory Requirements
    EPA analyzed the Federal programs and corresponding regulations 
identified in Table 4, focusing on these program elements, to better 
understand the existing regulatory requirements, practices, and 
technologies currently used at facilities to prevent CWA HS discharges. 
These regulatory programs were selected because they include discharge 
or accident prevention requirements and were identified as regulating 
at least some CWA HS; or regulating at least some facilities that 
produce, store, or use CWA HS. For example, the SPCC rule in 40 CFR 
part 112 was reviewed because more than 50 percent of the 2,491 
identified CWA HS discharges in the NRC data were discharges of PCBs, 
reported as present in transformer oil. Storage and handling of 
transformer oil is subject to the SPCC rule when a facility meets the 
applicability criteria of 40 CFR part 112.

[[Page 29506]]



    Table 4--Reviewed Federal Programs and Corresponding Regulations
------------------------------------------------------------------------
                                                        Code of Federal
  Federal programs/regulations        Authorizing         Regulations
                                        statute            citation
------------------------------------------------------------------------
                                   EPA
------------------------------------------------------------------------
NPDES Multi-Sector General        CWA...............  40 CFR part 122.
 Permit (MSGP) for Industrial
 Stormwater (2015).
RMP Rule........................  Clean Air Act       40 CFR part 68.
                                   (CAA).
SPCC Rule.......................  CWA...............  40 CFR part 112.
Pesticide:
     Pesticide            Federal             40 CFR part 165,
     Management and Disposal.      Insecticide,        40 CFR part 170.
     Worker Protection     Fungicide, and
     Standard..                    Rodenticide Act.
RCRA:
     For Generators of    Resource            40 CFR part 262;
     Hazardous Waste.              Conservation and    40 CFR parts 264
     For Hazardous Waste   Recovery Act        and 265.
     Treatment, Storage, and       (RCRA).
     Disposal Facilities.
Requirements for Underground      RCRA..............  40 CFR part 280.
 Storage Tanks (USTs).
EPCRA:
     Emergency Planning   Emergency Planning  40 CFR part 355;
     and Notification.             and Community       40 CFR part 370.
     Hazardous Chemical    Right-to-Know Act
     Reporting.                    (EPCRA).
Pulp, Paper, and Paper Board      CWA, CAA..........  40 CFR part 430.
 Effluent Guidelines.
------------------------------------------------------------------------
          Occupational Safety and Health Administration (OSHA)
------------------------------------------------------------------------
OSHA:
     Process Safety       Occupational        29 CFR part 1910.
     Management (PSM).             Safety and Health
     Hazardous Waste       Act.
     Operations and Emergency
     Response (HAZWOPER)..
     Hazard
     Communication Standard
     (HCS).
     Emergency Action
     Plans (EAPs).
------------------------------------------------------------------------
              Mine Safety and Health Administration (MSHA)
------------------------------------------------------------------------
MSHA Regulations................  Federal Mine        30 CFR parts 46-
                                   Safety and Health   48, 50, 56-57.
                                   Act (Mine Act).
------------------------------------------------------------------------
                  Department of Transportation Programs
------------------------------------------------------------------------
Pipeline Hazardous Materials      Hazardous           49 CFR parts 171-
 Safety Administration (PHMSA)     Materials           185.
 Regulations.                      Transportation
                                   Act (HMTA).
------------------------------------------------------------------------
     Department of Interior/Office of Surface Mining Reclamation and
                           Enforcement (OSMRE)
------------------------------------------------------------------------
Surface Mining Control and        SMCRA.............  30 CFR parts 700-
 Reclamation Act (SMCRA)                               999.
 Requirements.
------------------------------------------------------------------------

a. NPDES MSGP for Industrial Stormwater (2015)
    The CWA NPDES Permit Program, authorized by the CWA, controls water 
pollution by regulating point sources that discharge pollutants into 
waters of the United States. An NPDES permit establishes limits on what 
can be discharged, monitoring and reporting requirements, and other 
provisions to protect water quality. In essence, the permit translates 
general requirements of the CWA into specific provisions tailored to 
the operations of the facility discharging pollutants. Regulations at 
40 CFR 122.26(b)(14)(i)-(xi) require stormwater discharges associated 
with specific categories of industrial activity to be covered by NPDES 
permits, unless otherwise excluded. An NPDES general permit may be 
written to establish requirements that apply to eligible facilities 
with similar operations and types of discharges that obtain 
authorization to discharge under the general permit. Many states are 
currently authorized to issue NPDES permits for industrial stormwater.
    This review focused on the provisions in one industrial stormwater 
general permit, the Multi-Sector General Permit for Stormwater 
Discharges Associated with Industrial Activity, issued by EPA in 
2015.\16\ The MSGP is a general permit that is available to facilities 
that do not discharge to a state with NPDES permitting authority. 
Because many states model their industrial stormwater permits after 
EPA's permit, it was used to identify prevention requirements likely to 
be present in NPDES industrial stormwater permits issued by states.
---------------------------------------------------------------------------

    \16\ EPA focused on stormwater permits for this review because 
the requirements apply where stormwater from an industrial property 
has the potential to discharge to a waterway. The MSGP's 
requirements apply to all pollutants present in the regulated 
stormwater discharge, including all toxic pollutants, conventional 
pollutants, and non-conventional pollutants. As such, the MSGP 
controls what this notice refers to as CWA HS. Further, the MSGP 
permit is representative of stormwater permits in general.
---------------------------------------------------------------------------

    NPDES stormwater permits for industrial activity contain effluent 
limits that correspond to required levels of technology-based and water 
quality-based controls for discharges (CWA 402(p)(3)(A)). In the MSGP, 
most of the effluent limits are expressed as non-numeric pollution 
prevention or best management practice (BMP) requirements for 
minimizing the pollutant levels in the discharge (40 CFR 122.44(k)). To 
identify existing requirements relevant to preventing CWA HS 
discharges, EPA focused on non-numeric effluent limitations in Section 
2 of the permit, including good housekeeping and maintenance 
requirements, and Stormwater Pollution Prevention Plan requirements in 
Section 5 of the MSGP.
    The 2015 MSGP for Industrial Stormwater includes discharge

[[Page 29507]]

prevention and response measures to minimize stormwater contamination 
(see part 2.1.2.4 of the MSGP). These requirements include plainly 
labeling containers susceptible to spillage or leakage to encourage 
proper handling and facilitate rapid response if spills or leaks occur; 
and implementing procedures for material storage and handling, 
including the use of secondary containment and barriers between 
material storage and traffic areas, or a similarly effective means 
designed to prevent the discharge of pollutants from these areas.
    Applicability criteria. The industrial sectors and activities 
covered by the MSGP are listed in Appendix D of the permit, while 
another version of that list of industries is included in Appendix N. 
The permit is meant to control and minimize pollutants in stormwater 
discharges associated with specific categories of industrial 
activities. This permit is available only to facilities that meet the 
eligibility criteria described in the MSGP where EPA is the permitting 
authority. Regulated facilities under the jurisdiction of authorized 
states are expected to be subject to similar provisions in a state-
issued NPDES permit.
    The term ``pollutant'' is defined at 40 CFR 122.2 as ``dredged 
spoil, solid waste, incinerator residue, filter backwash, sewage, 
garbage, sewage sludge, munitions, chemical wastes, biological 
materials, radioactive materials [except those regulated under the 
Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)], heat, 
wrecked or discarded equipment, rock, sand, cellar dirt and industrial, 
municipal, and agricultural waste discharged into water.'' The 
definition of pollutant is considered to include all CWA HS.
    Equipment or operations at which requirements apply. The permit's 
requirements apply to discharges of stormwater from activities and 
areas at a regulated industrial plant, including industrial processes 
and activities such as material handling, material storage, and 
equipment maintenance and cleaning.
b. RMP Rule (40 CFR Part 68)
    The Chemical Accident Prevention Provisions, also known as the RMP 
Rule, require facilities that use certain listed, regulated substances 
to develop and implement a RMP. The RMP Rule is authorized by the Clean 
Air Act (CAA). Regulated facilities are also required to develop an 
RMP, which must identify the potential effects of a chemical accident, 
identify steps the facility is taking to prevent an accident, and spell 
out emergency response procedures should an accident occur. Regulated 
facilities must submit a single RMP for all covered processes at the 
facility; these plans must be revised and resubmitted every five years.
    Applicability criteria. The RMP requirements apply to facilities 
(stationary sources) that manufacture, use, store, or otherwise handle 
more than a threshold quantity of a regulated substance in a process. 
The RMP Rule provides a List of Regulated Substances under section 
112(r) of the CAA. The 140 RMP-regulated substances, and their 
threshold quantities, are listed at 40 CFR 68.130. The list includes 77 
acutely toxic chemicals that can cause serious health effects or death 
from short-term exposures, as well as 63 flammable gases and highly 
volatile flammable liquids that have the potential to form vapor clouds 
and explode or burn if released. RMP-regulated substances include some 
CWA HS. The rule defines three program levels based on the processes' 
relative potential for public impacts and the level of effort needed to 
prevent accidents. For each program level, the rule defines 
requirements that reflect the level of risk and effort associated with 
the processes at that level. As a result, different facilities covered 
by the regulation may have different requirements depending on their 
processes.
    Equipment or operations at which requirements apply. The RMP 
requirements apply to facilities that have more than a threshold 
quantity of a regulated substance in a process. Therefore, the 
requirements in the rule apply to processes. A process means any 
activity involving a regulated substance including any use, storage, 
manufacturing, handling, or onsite movement of such substances, or 
combination of these activities. For example, 40 CFR 68.25 requires 
that, for each process at the stationary source, the facility owner/
operator analyze and report worst-case release scenarios.
c. SPCC Rule (40 CFR Part 112)
    The portion of the Oil Pollution Prevention regulation known as the 
SPCC Rule, authorized by the CWA, is designed to protect public health, 
public welfare, and the environment from potential harmful effects of 
oil discharges to navigable waters or adjoining shorelines. The SPCC 
Rule requires certain facilities that could reasonably be expected to 
discharge oil in quantities that may be harmful into jurisdictional 
waters or adjoining shorelines to develop and implement SPCC Plans. 
Subparts A through C of 40 CFR part 112 are often referred to as the 
SPCC Rule. The SPCC Plan includes several elements to prevent oil 
spills, including a facility diagram, oil discharge predictions, 
secondary containment or diversionary structures, overfill prevention, 
requirements for inspections, transfer procedures, personnel training, 
and a five-year plan review.
    Applicability criteria. The SPCC Rule applies to any owner or 
operator of a non-transportation-related onshore or offshore facility 
engaged in drilling, producing, gathering, storing, processing, 
refining, transferring, distributing, using, or consuming oil and oil 
products, which, due to its location, could reasonably be expected to 
discharge oil in quantities that may be harmful. The rule applies to 
facilities with an aboveground storage capacity of more than 1,320 
gallons of oil (except farms \17\), or a completely buried storage 
capacity of more than 42,000 gallons of oil. The rule has a number of 
exemptions, such as an exemption for containers used for wastewater 
treatment.
---------------------------------------------------------------------------

    \17\ Farms are exempt under two circumstances: (1) If the farm 
has less than 6,000 gallons of aboveground storage and no reportable 
oil discharge history; or (2) has 2,500 gallons or less of 
aboveground storage, regardless of reportable oil discharge history.
---------------------------------------------------------------------------

    While the SPCC Rule applies only to oil, it regulates oil mixed 
with other substances, including a CWA HS. The definition of oil can be 
found in 40 CFR 112.2: ``Oil means oil of any kind or in any form, 
including, but not limited to: Fats, oils, or greases of animal, fish, 
or marine mammal origin; vegetable oils, including oils from seeds, 
nuts, fruits, or kernels; and, other oils and greases, including 
petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, 
or oil mixed with wastes other than dredged spoil.''
    Equipment or operations at which requirements apply. Some SPCC 
requirements apply facility-wide and some apply to specific equipment. 
For example, 40 CFR 112.7(f) requires that all oil-handling personnel 
must be trained in the operation and maintenance of equipment to 
prevent discharges; discharge procedure protocols; applicable pollution 
control laws, rules, and regulations; general facility operations; and 
the contents of the facility SPCC Plan. Alternatively, the integrity 
testing and inspection provisions found at 40 CFR 112.8(c)(6) apply to 
bulk storage containers.

[[Page 29508]]

d. Pesticide Management Regulation (Pesticide Management and Disposal, 
40 CFR Part 165)
    The Pesticide Management and Disposal regulation establishes 
standards for pesticide containers and repackaging as well as label 
instructions to ensure the safe use, reuse, disposal, and adequate 
cleaning of the containers. Pesticide registrants and refillers (who 
are often distributors or retailers) must comply with the regulations, 
and pesticide users must follow the label instructions for cleaning and 
handling empty containers. Specifically, the Pesticide Management 
Regulation at part 165 establishes standards and requirements for 
pesticide containers, repackaging pesticides, and pesticide containment 
structures (Sec.  165.1). Twenty-one states implement pesticide 
containment regulations in lieu of federal containment regulations in 
40 CFR part 165.
    Applicability criteria. The requirements apply to chemicals that 
meet the definition of pesticide. One hundred and nine designated CWA 
HS may be used as pesticides subject to the 40 CFR part 165 FIFRA 
requirements.
    Equipment or operations at which requirements apply. Most 
requirements in 40 CFR part 165 apply to containers and pesticide 
manufacturers are responsible for meeting these requirements. For 
example, 40 CFR 165.25(a) and 165.45(a) require pesticide containers to 
meet certain DOT packaging requirements even if the pesticide is not a 
DOT hazardous material. Similarly, Sec.  165.65(e) requires visual 
inspection of a refillable container before repackaging a pesticide 
product into it, to determine whether the container meets the necessary 
criteria with respect to continued container integrity, required 
markings, and openings.
    The regulation also includes requirements that apply to the area 
where stationary containers are stored and/or pesticide dispensing 
areas. For example, 40 CFR 165.85 provides design and capacity 
requirements for secondary containment structures at these areas. The 
requirements at Sec.  165.90(a)(1) further state that containment 
structures must be managed in a manner that prevents pesticides or 
materials containing pesticides from escaping from the containment 
structure.
e. Pesticide Worker Protection Standard (Pesticide Agricultural Work 
Protection Standard, 40 CFR Part 170)
    FIFRA regulates worker safety through Workplace Protection 
Standards in 40 CFR part 170. Farms, forests, nurseries, and 
greenhouses that handle pesticides used to produce agricultural plant 
crops must adopt workplace practices designed to reduce or eliminate 
exposure to pesticides, and must follow procedures for responding to 
exposure-related emergencies.
    Applicability criteria. The requirements apply to chemicals that 
meet the definition of pesticide. One hundred and nine designated CWA 
HS may be used as pesticides subject to the 40 CFR part 165 FIFRA 
requirements.
    Equipment or operations at which requirements apply. The Worker 
Protection Standard requirements in 40 CFR part 170 apply to employers 
of pesticide workers and handlers. For example, 40 CFR 170.501 requires 
employers to provide training to all pesticide handlers (who mix, load, 
and apply agricultural pesticides) every 12 months.
f. RCRA Generators Regulation (Standards Applicable to Generators of 
Hazardous Waste, 40 CFR Part 262)
    This RCRA Rule establishes cradle-to-grave hazardous waste 
management standards for generators of hazardous waste as defined by 
Sec.  260.10. These generator regulations ensure that hazardous waste 
is appropriately identified and handled in a manner that protects human 
health and the environment, while minimizing interference with daily 
business operations.
    The rule sets forth a process for generators of solid waste to 
determine if their wastes are hazardous, and for generator category 
determination (based on the amount of hazardous waste generated each 
month). It provides manifest requirements, pre-transport (e.g., 
packaging, labeling) requirements, and recordkeeping and reporting 
requirements for both small and large quantity generators. Some 
generators are also subject to preparedness, prevention, and emergency 
response requirements.
    Applicability criteria. The RCRA Generators Regulation applies to 
generators of hazardous waste. Hazardous wastes, defined in Sec.  
261.3, may include specifically ``listed'' hazardous wastes, or 
``characteristic'' hazardous wastes evaluated based on four criteria 
(ignitability, corrosivity, reactivity, and toxicity). Some listed 
hazardous wastes are CWA HS (e.g., toluene), and some CWA HS would meet 
criteria for characteristic hazardous wastes at certain concentrations 
if the CWA HS were present as waste. RCRA regulations apply only to 
waste materials (as opposed to raw materials or intermediate products). 
This rule establishes different requirements for very small, small, and 
large quantity generators of hazardous waste.
    Equipment or operations at which requirements apply. Some 
provisions apply to facility areas. For example, 40 CFR 262.252 
requires that all subject areas must be equipped with an internal 
communications or alarm system, a device to summon emergency 
assistance, portable fire extinguishers and other fire/spill control 
equipment, and adequate volumes of water or foam-producing equipment. 
Other provisions apply to packages. For example, Sec.  262.31 requires 
that the generator must label each package of hazardous waste in 
accordance with the applicable DOT regulations on hazardous materials 
(49 CFR part 172).
g. RCRA TSD Regulations (Standards for Owners and Operators of 
Hazardous Waste Treatment, Storage, and Disposal Facilities, 40 CFR 
Parts 264 and 265)
    The purpose of the RCRA Treatment, Storage, and Disposal Facilities 
(TSDF) Standards is to establish minimum national standards for the 
acceptable management of hazardous waste.
    Part 264 applies to permitted TSDFs, while part 265 applies to 
interim status facilities. Both parts 264 and 265 provide general 
facility and unit-specific operating requirements to assure that a 
facility is operated in a manner that is protective of human health and 
the environment.
    Applicability criteria. The standards apply to owners and operators 
of facilities that treat, store, or dispose of hazardous waste. 
Hazardous waste is defined in Sec.  261.3. Hazardous wastes may include 
specifically ``listed'' hazardous wastes; or ``characteristic'' 
hazardous wastes, which are identified as hazardous based on four 
criteria (ignitability, corrosivity, reactivity, and toxicity.) Some 
listed hazardous wastes are CWA HS (e.g., toluene); and some CWA HS 
would meet criteria for characteristic hazardous wastes at certain 
concentrations, if the CWA HS were being discarded and thus a waste. A 
facility includes all contiguous land, structures, and appurtenances on 
or in the land used for treating, storing, or disposing of hazardous 
waste.
    Equipment or operations at which requirements apply. The standards 
in 40 CFR parts 264 and 265 include facility-wide requirements, such as 
good housekeeping provisions, as well as unit-specific design and 
operating criteria. A single facility may consist of several types of 
operational units (e.g., containers, tank systems, surface 
impoundments, waste piles, landfills,

[[Page 29509]]

incinerators). The unit-specific technical requirements are designed to 
prevent the release of hazardous waste into the environment. For 
example, Sec.  264.184 includes container-specific requirements 
governing design and operating requirements for storage area 
containment systems.
h. UST Rule (Technical Standards and Corrective Action Requirements for 
Owners and Operators of Underground Storage Tanks, 40 CFR Part 280)
    UST regulations, authorized by RCRA, are intended to reduce the 
chance of releases from USTs, detect leaks and spills when they do 
occur, and secure a prompt cleanup. The regulations require owners and 
operators to properly install UST systems and protect their USTs from 
spills, overfills, and corrosion; they also require correct filling 
practices to be followed. In addition, owners and operators must report 
new UST systems, suspected releases, and UST system closures; and they 
must keep records of operation and maintenance.
    Applicability criteria. These requirements are specific to UST 
systems greater than 110 gallons in capacity that store either 
petroleum or Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) hazardous substances. All designated CWA HS are 
also defined as CERCLA hazardous substances. Specific parts of the 
regulation (e.g., Sec.  280.42) apply to hazardous substance UST 
systems and petroleum UST systems, both defined in 40 CFR 280.12.
    Equipment or operations at which requirements apply. Some 
requirements apply to equipment. For example, the compatibility 
requirements at 40 CFR 280.32 state that UST systems must be made of or 
lined with materials that are compatible with the substance stored in 
the UST system. Other requirements apply to areas or processes. For 
example, areas directly surrounding the tanks are protected by 
requirements such as the spill and overfill control measures in Sec.  
280.30, which calls for the constant monitoring of transfer operations.
i. EPCRA Planning Rule (Emergency Planning and Notification, 40 CFR 
Part 355)
    The EPCRA planning rule requires regulated facilities to provide 
information necessary for developing and implementing state and local 
emergency response plans. It also requires emergency notification in 
the event of a release of a regulated chemical. The facility owner/
operator must designate a facility representative who will participate 
in the local emergency planning process as a facility emergency 
response coordinator, and provide notice to the LEPC (Sec.  355.20(b)).
    Applicability criteria. The emergency planning requirements in 40 
CFR part 355 apply to facilities with an extremely EHS onsite in 
amounts equal to or greater than its designated threshold planning 
quantity (TPQ). EHS is defined in Appendices A and B of 40 CFR part 
355. EHS include 65 substances, all of which are also designated as CWA 
HS.
    The emergency release notification requirements in 40 CFR part 355 
apply to facilities that produce, use, or store a hazardous chemical, 
and that also release a reportable quantity of either an EHS or a 
CERCLA hazardous substance as defined by CERCLA. All CWA HS are defined 
as CERCLA hazardous substances.
    Equipment or operations at which requirements apply. These 
requirements apply to an entire facility.
j. EPCRA Reporting Rule (Hazardous Chemical Reporting: Community Right 
to Know, 40 CFR Part 370)
    The EPCRA reporting rule establishes reporting requirements for 
facilities to provide state and local officials with information on 
hazardous chemicals present at the facility. The information submitted 
by the facilities must also be made available to the public.
    Applicability criteria. This rule applies to facilities that are 
required by the OSHA HazCom regulation to have an SDS available, and 
handle or store hazardous chemicals in quantities that equal or exceed 
the following thresholds:
     For EHS, either 500 pounds or the TPQ, whichever is lower. 
EHS is defined in Appendices A and B of 40 CFR part 355.
     For all other hazardous chemicals, 10,000 pounds. A 
hazardous chemical is defined by OSHA HazCom at 29 CFR 1910.1200(c) and 
Sec.  1910.1200(c) defines chemical. This definition includes all CWA 
HS.
    Equipment or operations at which requirements apply. The hazardous 
chemical reporting requirements in 40 CFR part 370 apply to individual 
chemicals rather than process equipment. For example, regulated 
facilities must submit an SDS for the subject chemicals to the LEPC, 
the State Emergency Response Commission (SERC), and the local fire 
department as described in Sec. Sec.  370.30 to 370.33.
k. Pulp and Paper Effluent Guidelines (Pulp, Paper and Paperboard 
Effluent Guidelines, 40 CFR Part 430)
    The requirements at 40 CFR part 430 were promulgated as part of the 
``Cluster Rule'' for the Pulp, Paper, and Paperboard Industry; are 
authorized by the CWA and CAA; and establish requirements under 
multiple statutes for multiple environmental media. The Cluster Rule 
was included in EPA's review of existing requirements because it 
includes BMPs for spent pulping liquor, soap, and turpentine in Sec.  
430.03, which includes spill prevention and control measures and the 
requirement to develop a BMP Plan.
    Applicability criteria. These requirements apply to any pulp, 
paper, or paperboard mill that discharges or may discharge process 
wastewater pollutants to the waters of the United States; or that 
introduces or may introduce process wastewater pollutants into a 
publicly owned treatment works.
    The relevant BMPs apply specifically to direct and indirect 
discharging pulp, paper, and paperboard mills with pulp production in 
Subparts B and E of part 430 in order to prevent spills and leaks of 
spent pulping liquor, soap, and turpentine. Subparts B (Bleached 
Papergrade Kraft and Soda) and E (Papergrade Sulfite) define effluent 
limitations for a limited number of CWA HS.
    Equipment or operations at which requirements apply. The 
requirements apply to pieces of equipment and process areas. For 
example, 40 CFR 430.03(c)(2)(i) requires regular visual inspections of 
process areas with equipment items in spent pulping liquor service. As 
another example, under 40 CFR 430.03(c)(4), the mill must establish a 
program of initial and refresher training of operators, maintenance 
personnel, and other technical and supervisory personnel who have 
responsibility for operating, maintaining, or supervising the operation 
and maintenance of equipment items in spent pulping liquor, soap, and 
turpentine service.
l. Other Federal Programs
    Although the analysis of existing EPA regulations is the basis for 
this proposal, EPA reviewed other Federal regulations with prevention 
requirements that may be applicable to CWA HS. For more information 
about these requirements, see Background Information Document: Review 
of Relevant Federal and State Regulations; Docket ID #: EPA-HQ-OLEM-
2018-0024.

 OSHA Regulations
    [cir] Emergency Action Plans (EAPs), 29

[[Page 29510]]

CFR 1910.38
    [cir] Process Safety Management of Highly Hazardous Chemicals 
(PSM), 29 CFR 1910.119
    [cir] Hazardous Waste Operations and Emergency Response (HAZWOPER), 
29 CFR 1910.120
    [cir] HazCom, 29 CFR 1910.1200
 Mine Safety and Health Administration (MSHA) Regulations
    [cir] Training and Retraining of Miners Engaged in Shell Dredging 
or Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal 
Phosphate, or Surface Limestone Mines (Training, Sand and Gravel 
Mines), 30 CFR part 46
    [cir] Hazard Communication (HazCom), 30 CFR part 47
    [cir] Training and Retraining of Miners (Training), 30 CFR part 48
    [cir] Notification, Investigation, Reports and Records of 
Accidents, Injuries, Illnesses, Employment, and Coal Production in 
Mines (Accident Notification), 30 CFR part 50
    [cir] Safety and Health Standards--Surface Metal and Nonmetal 
Mines, 30 CFR part 56
    [cir] Safety and Health Standards--Underground Metal and Nonmetal 
Mines, 30 CFR part 57
 Pipeline and Hazardous Materials Safety Administration (PHMSA) 
Hazardous Materials Regulations, 49 CFR parts 171-185
 Surface Mining Control and Reclamation Act of 1977 (SMCRA) 
Regulations, 30 CFR parts 700-999
m. State Programs and Industry Standards
    EPA also identified state regulatory programs,\18\ which regulate 
the proper handling and storage of chemicals to prevent accidents and 
discharges, and industry standards that establish technology standards 
and recommend practices prudent for proper operation and maintenance. A 
review of these state programs and industry standards is presented in 
the BID.
---------------------------------------------------------------------------

    \18\ Fourteen states have regulatory programs; multiple programs 
in the same state are noted in parentheses: CA (3), DE, GA, IL, IN 
(2), ME, MA (2), MI, MN, NJ, NY, OR, PA, and WV.
---------------------------------------------------------------------------

3. Regulatory Coverage of the Nine Program Elements
    EPA cross-referenced the regulatory requirements for the Federal 
programs in Table 4--Reviewed Federal Programs and Corresponding 
Regulations with the nine program elements in Table 3--Program Elements 
and Associated Provisions to identify existing regulatory programs that 
include discharge prevention, control, and mitigation provisions. The 
relevance of each EPA/Federal program and corresponding regulations to 
the cross-referenced program elements and their associated provisions 
is summarized in Table 5--Review of EPA and Other Federal Regulations 
for Program Elements, and is discussed in detail in the BID available 
in the docket for this proposal.\19\ For each regulatory program, this 
high-level analysis documents provisions related to each of the nine 
program elements identified.
---------------------------------------------------------------------------

    \19\ See Background Information Document: Review of Relevant 
Federal and State Regulations; Docket ID #: EPA-HQ-OLEM-2018-0024.
---------------------------------------------------------------------------

    The analysis indicates that, for all nine program elements, there 
are existing cumulative EPA regulatory requirements under various 
programs for accident and discharge prevention relevant to CWA HS. 
Similarly, existing cumulative requirements under Federal regulatory 
programs administered by other Federal agencies and departments (i.e., 
OSHA, MSHA, PHMSA, and OSMRE) reflect, under various accident and 
discharge prevention programs, all nine program elements. This 
information is summarized in detail in the BID. For example, Table 5--
Review of EPA and Other Federal Regulations for Program Elements shows 
that hazard review and emergency response planning provisions are the 
two most frequently addressed program elements; these were identified 
in seven of eight EPA regulations and in all of the other Federal 
programs reviewed.

BILLING CODE 6560-50-P

[[Page 29511]]

[GRAPHIC] [TIFF OMITTED] TP25JN18.009

BILLING CODE 6560-50-C

    The analysis focused on those provisions within the existing EPA, 
and other Federal, regulatory framework that address to varying 
degrees, either

[[Page 29512]]

directly or indirectly, the identified program elements for CWA HS. The 
compliance auditing program element is addressed by one EPA regulatory 
program (RMP) and one other Federal regulation (the OSHA Process Safety 
Management standard). Mechanical integrity and personnel training are 
addressed by seven of eight EPA programs and by three of the other 
Federal programs reviewed. Secondary containment provisions are 
included in six of eight EPA regulations and three additional Federal 
programs reviewed. The remaining program elements (i.e., safety 
information; incident investigations; and coordination with state and 
local responders) are addressed by approximately half of the Federal 
regulations reviewed.
    The BID provides details on how each program element is addressed 
by both EPA regulations and other Federal programs. A summary of the 
EPA regulations, that serve as the basis for this proposal, is provided 
below.
a. Safety Information
    Of the 11 EPA regulations reviewed, three programs include 
requirements to identify safety information for chemicals used or 
stored on-site--the Pesticide Worker Protection Standard, the RMP Rule 
and the EPCRA Reporting Rule.
    The Pesticide Worker Protection Standard requires agricultural 
establishments to display safety data sheets for the pesticides that 
have been applied on the establishment and to keep the SDSs in records 
for two years.
    The RMP Rule requires owners or operators to compile and maintain 
general safety information, including: An SDS, maximum intended 
inventory of equipment in which the regulated substances are stored or 
processed, and safe operation conditions. The RMP rule also requires 
owners to compile process safety information for regulated substances, 
such as toxicity information.
    The EPCRA Reporting Rule, which establishes Tier I and Tier II 
reporting requirements, requires regulated facilities to submit 
identifying information, either as an SDS or a list of hazardous 
substances grouped by specific hazards, for hazardous substances. In 
addition, an inventory of the chemicals for the preceding calendar year 
must be submitted to the facility's State Emergency Response Commission 
(SERC), LEPC, and local fire department.
b. Hazard Review
    Eight EPA regulations reviewed include requirements for facilities 
to conduct a hazard review or identify hazards:
     MSGP for Industrial Stormwater;
     RMP Rule;
     SPCC Rule;
     Pesticide Management Regulation;
     RCRA Generators Regulation;
     RCRA TSD Regulations;
     UST Rule; and
     EPCRA Reporting Rule.
    The program element or sub-elements most commonly required by EPA 
programs are identification of engineering or administrative controls 
and/or a requirement for equipment/containers to be constructed in 
accordance with standards (six regulatory programs), requirement for 
compatibility of stored materials with tanks and equipment (five 
regulatory programs), and overfill prevention (six programs).
    A general hazard review and identification of process hazards is 
required by four EPA regulatory programs--the 2015 MSGP for Industrial 
Stormwater, RMP Rule, SPCC Rule and RCRA TSD Regulations. Four 
programs, the MSGP for Industrial Stormwater, SPCC Rule, RCRA TSD 
Regulations and EPCRA Reporting Rule, require description of process 
technology or equipment for risk identification. The 2015 MSGP for 
Industrial Stormwater requires permitted facilities to assess potential 
hazards, implement control measures to minimize discharge based on 
identified hazards, and compile a list of the industrial activities 
exposed to stormwater. The RMP Rule requires facilities, depending on 
applicability, to either develop a hazard review or a process hazard 
analysis. The SPCC Rule requires that regulated facilities develop 
spill prevention, control and countermeasure plans that include a 
review of equipment and processes with a reasonable potential for 
failure.
    Compatibility of stored materials with tanks and equipment is 
required by five EPA regulatory programs--Pesticides Management 
Regulation, the SPCC Rule, RCRA Generators Regulation, RCRA TSD 
Regulations, and the UST Rule. Most of the regulatory programs have a 
general requirement that tanks or equipment (or tank lining) must be 
compatible with the stored material. The Pesticides Management 
Regulation requires compatibility of containers and pesticides stored 
by referring to and requiring compliance with the DOT Hazardous 
Materials Packaging Regulations, and also requires that each stationary 
pesticide container and its appurtenances are resistant to extreme 
changes in temperature and constructed of materials that are adequately 
thick to not fail and that are resistant to corrosion, puncture, or 
cracking. This requirement is included because material incompatibility 
can result in corrosion, which implicitly requires pesticide storage 
facilities to incorporate hazard review in order to satisfy the 
requirement.
    Six EPA regulatory programs have a broad requirement to identify 
engineering or administrative controls or that equipment or containers 
are to be constructed in accordance with industry codes or standards. 
Four specific types of engineering or administrative controls were 
reviewed: General engineering or administrative controls (e.g. 
temperature control), alarms, inventory management, and overfill 
prevention. The most commonly required engineering or administrative 
control is general controls. For example, the RCRA TSD Regulations at 
40 CFR part 264 requires that containers holding hazardous waste remain 
closed during storage, except when it is necessary to add or remove 
waste, which is a control to prevent discharges. The RCRA Generators 
Regulation requires large quantity generators to use inventory logs to 
monitor hazardous waste. The UST Rule requires that owners or operators 
monitor hazardous substance transfer between tanks to avoid overfilling 
or spills. These forms of engineering or administrative controls may 
prevent discharges.
c. Mechanical Integrity
    Eight regulations include requirements for facilities to maintain 
mechanical integrity of equipment critical for safe operation:
     MSGP for Industrial Stormwater;
     RMP Rule;
     SPCC Rule;
     Pesticide Management Regulation;
     RCRA Generators Regulation;
     RCRA TSD Regulations;
     UST Rule; and
     Pulp and Paper Effluent Guidelines.
    Five of the reviewed EPA regulations (MSGP for Industrial 
Stormwater, RMP Rule, SPCC Rule, RCRA TSD Regulations, and Pulp and 
Paper Effluent Guidelines,) have a general mechanical integrity program 
element requirement, eight require inspections and testing, and seven 
require corrective action as a result of these inspections and tests. 
For example, the 2015 MSGP for Industrial Stormwater addresses a 
mechanical integrity program element and requires maintenance of non-
structural control measures (e.g., ensuring availability of spill 
response supplies, maintenance training). The SPCC Rule requires that 
facilities' SPCC

[[Page 29513]]

Plans include inspections and mechanical integrity.
    These regulations vary considerably in scope, such as inspection 
frequency. For example, the Pulp and Paper Effluent Guidelines require 
best management practices that involve daily inspection of equipment 
for leaks for the pulp and paper sector while the 2015 MSGP for 
Industrial Stormwater requirements emphasize preventative maintenance 
on equipment that could result in contamination of stormwater. The RMP 
Rule requires facilities to inspect equipment at a frequency 
recommended by the manufacturer or industry standards and also to keep 
records of inspections.
d. Personnel Training
    Of the 11 EPA regulations reviewed, eight include training 
requirements for employees or contractors that could serve to prevent 
CWA HS discharges:
     MSGP for Industrial Stormwater;
     RMP Rule;
     SPCC Rule;
     Pesticide Worker Protection Standard;
     RCRA Generators Regulation;
     RCRA TSD Regulations;
     UST Rule; and
     Pulp and Paper Effluent Guidelines.
    These regulations frequently outline prescribed content that must 
be covered in the employee and/or contractor training. These training 
programs typically require training related to safe operation of 
equipment as well as emergency response procedures when a spill occurs. 
For example, the RCRA TSD and Generators Regulations require that 
facility personnel are trained in hazardous waste management 
procedures, including equipment monitoring, automatic waste feed cut-
off systems, alarm systems, response to fires or explosions, response 
to ground-water contamination incidents, and emergency shutdown of 
operations. Similarly, the Pesticide Worker Protection Standard 
requires training for pesticide handlers to include safety requirements 
for handling, transporting, storing, and disposing of pesticides, 
including general procedures for spill cleanup. The MSGP for Industrial 
Stormwater (2015) has a general requirement for permit holders to 
develop training on the procedures for expeditiously stopping, 
containing, and cleaning up leaks, spills, and other releases.
    Seven of the eight EPA regulations reviewed specifically for 
personnel training also include a requirement specific to refresher 
training. Most programs require that employees receive a review or 
refresher training at least annually. For example, the RMP Rule 
requires that refresher training is completed every three years.
e. Incident Investigations
    Three EPA regulations include an incident investigation program 
element:
     Pulp and Paper Effluent Guidelines;
     SPCC Rule; and
     the RMP Rule.
    These three EPA regulations that include an incident investigation 
program element require facilities to determine the cause of an 
incident. The SPCC Rule requires that facilities undertake an incident 
investigation and submit a report within 60 days if they discharged 
1,000 U.S. gallons of oil or more in a single discharge or more than 42 
U.S. gallons of oil in each of two discharges. This incident 
investigation must include an analysis of the cause of the discharge, 
corrective action taken, and additional preventive measures that would 
minimize the possibility of recurrence. The RMP Rule requires that 
incident investigations are initiated within 48 hours of an accidental 
release and include factors that contributed to the incident as well as 
recommendations resulting from the investigation. Finally, the Pulp and 
Paper Effluent Guidelines require that mills conduct an incident 
investigation after a spill and generate a report that identifies 
changes in operations and equipment, as necessary to prevent 
recurrence.
f. Compliance Audits
    Of the 11 EPA regulations reviewed, the RMP rule is the only one 
that requires compliance audits. The RMP Rule requires owners or 
operators of stationary sources with regulated chemicals to evaluate 
their compliance with the RMP Rule every three years. If they find 
areas of deficiency, they must determine and document an appropriate 
response and correct the deficiency.
g. Secondary Containment
    Seven EPA regulations were found to contain secondary containment 
provisions:
     MSGP for Industrial Stormwater;
     SPCC Rule;
     Pesticide Managment Regulation;
     RCRA Generators Regulation;
     RCRA TSD Regulations;
     UST Rule; and
     Pulp and Paper Effluent Guidelines.
    These seven EPA regulations require secondary containment for 
equipment in order to prevent discharges to jurisdictional waters. Only 
one regulation, SPCC Rule, allows for active or passive secondary 
containment. Another four of the seven regulations--MSGP for Industrial 
Stormwater, SPCC Rule, RCRA TSD Regulations, and Pulp and Paper 
Effluent Guidelines--allow an alternative to containment to be used to 
prevent released material from reaching water. For example, MSGP for 
Industrial Stormwater (2015) allows for a ``similarly effective means 
designed to prevent the discharge of pollutants.''
    EPA regulations reviewed vary in their standards for the required 
secondary containment. For example, RCRA TSD regulations require that 
secondary containment include at least one of the following: A liner 
(external to the tank); a vault; a double-walled tank; or an equivalent 
device as approved by the Regional Administrator. Comparatively, the 
SPCC Rule requires onshore facilities to use at least one of the 
following: Dikes, berms, or retaining walls sufficiently impervious to 
contain oil; curbing or drip pans; sumps and collection systems; 
culverting, gutters, or other drainage systems; weirs, booms, or other 
barriers; spill diversion ponds; retention ponds; or sorbent materials. 
The SPCC Rule requires offshore facilities to use curbing or drip pans 
or sumps and collection systems.
h. Emergency Response Plan
    Eight EPA regulations include requirements for facilities to 
develop an emergency response plan or at least one of the sub-elements 
of that program element:
     MSGP for Industrial Stormwater;
     RMP Rule;
     SPCC Rule;
     Pesticide Worker Protection Standard;
     RCRA Generators Regulation;
     RCRA TSD Regulations;
     UST Rule; and
     EPCRA Planning Rule.
    These eight EPA regulations require either the emergency response 
program element or at least one of its sub-elements. Of these, four 
generally require emergency response plans for discharges or accidental 
releases--RMP Rule, SPCC Rule, RCRA Generators Regulation, and RCRA TSD 
Regulations. Both RCRA regulations require that facilities develop 
contingency plans, which describes the actions that must be taken in 
response to unplanned release of hazardous waste. The SPCC Rule 
requires that in addition to spill prevention, facilities must include 
certain response plan elements to assist with a responding to an oil 
discharge. The RMP Rule requires facilities to develop an emergency 
response plan for accidental release.
    Seven of the eight EPA regulations reviewed for the emergency 
response plan element require that facilities plan

[[Page 29514]]

immediate actions in the event of a discharge. For example, the MSGP 
for Industrial Stormwater regulation requires permitted facilities to 
develop plans for effective response to spills, including procedures 
for expeditiously stopping, containing, and cleaning up leaks, spills, 
and other releases and to execute such procedures as soon as possible. 
The RMP Plan requires the emergency response plan to include immediate 
procedures and measures for emergency response after an accident. Four 
of the reviewed EPA programs also include procedures to ensure 
personnel safety, such as evacuation. RCRA Generators and TSD 
Regulations both require evacuation plans for personnel, while the 
Pesticide Worker Protection Standard requires that employers provide 
emergency assistance for handlers that have experienced a potential 
pesticide exposure.
    Notification procedures are also frequently addressed by the 
reviewed EPA regulatory programs. Seven of these EPA regulations have 
requirements to notify government or local communities about spills. 
For example, the UST Rule requires owners and operators to notify the 
implementing agency within 24 hours of a spill. Similarly, the EPCRA 
Planning Rule requires facilities to make an immediate notification to 
EPA, as soon as practical, and a written follow-up emergency 
notification. The RMP Rule requires that emergency response plans 
include procedures for informing the public and local emergency 
response agencies about accidental releases.
    The remaining sub-elements identified for emergency response 
planning are addressed by half or less than half of the reviewed EPA 
regulations. Three programs require medical information, including the 
RMP Rule which requires documentation of proper first-aid and emergency 
medical treatment necessary to treat accidental human exposures. Four 
programs require facilities to designate an emergency response 
coordinator, including the SPCC Rule which requires the plan to provide 
a phone number for the facility response coordinator. One program 
requires facilities to describe information about downstream receptors 
that may be affected by a discharge. For example, the RMP Rule requires 
that facilities describe environmental receptors within a calculated 
distance from the point of release.
i. Coordination of Emergency Response Program With State/Local 
Responders
    Four EPA regulations require facilities to coordinate an emergency 
response program with state and/or local responders:
     RMP Rule;
     RCRA Generators Regulation;
     RCRA TSD Regulations;
     EPCRA Planning Rule.
    Each EPA regulatory program requires facilities to make 
arrangements with local responders to prepare for an emergency. The RMP 
Rule mandates that facilities establish an arrangement with public 
emergency responders to not enter an emergency area except as arranged 
with the emergency contact indicated in the RMP. The two RCRA rules 
mandate a coordinated effort with local police, fire, hospital, and 
other emergency personnel, wherein potential responders understand 
which specific police/fire departments have primary authority and are 
familiar with the layout and activity of the facility and the 
properties of hazardous waste being handled. Unlike the RCRA 
regulations and RMP Rule, the EPCRA Planning Rule does not require 
formal arrangements to be made with state and local responders; EPCRA 
mandates the sharing of information with local emergency response 
personnel.
4. CWA HS Subject to EPA and Other Federal Regulatory Requirements
    EPA further analyzed the existing Federal regulatory programs to 
determine whether the most frequently discharged CWA HS listed in Table 
2 are subject to existing regulatory requirements (Table 6). However, 
it is important to note that the applicability criteria for some of the 
regulatory programs do not rely solely on chemical identity, but 
include other factors (e.g., whether the substance is a waste, the 
industrial category of the facility); there may be additional 
regulatory requirements applicable to the identified CWA HS that this 
analysis has not identified. Thus, in cases where applicability could 
not be assessed with relative certainty based on chemical identity, the 
existing regulation was not included in Table 6. Furthermore, the list 
of CWA HS and/or the criteria for listing or distinguishing hazards 
between CWA HS is outside the scope of this action, as well as 
differentiating requirements based on such consideration.

     Table 6--Most Frequently Discharged CWA HS and Relevant Federal
                               Regulations
------------------------------------------------------------------------
                 CWA HS                        Relevant regulations
------------------------------------------------------------------------
PCBs (CAS No. 1336-36-3)...............  NPDES MSGP for Industrial
                                          Stormwater (Toxic Pollutant).
                                         SPCC Rule (commonly mixed with
                                          transformer oil).
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.\a\
                                         PHMSA Hazardous Material
                                          Regulations.
Sulfuric Acid (CAS No. 7664-93-9)......  NPDES MSGP for Industrial
                                          Stormwater.
                                         RMP Rule.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Sodium Hydroxide (CAS No. 1310-73-2)...  NPDES MSGP for Industrial
                                          Stormwater.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Ammonia (CAS No. 7664-41-7)............  NPDES MSGP for Industrial
                                          Stormwater.
                                         RMP Rule.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.

[[Page 29515]]

 
Benzene (CAS No. 71-43-2)..............  NPDES MSGP for Industrial
                                          Stormwater (Priority/Toxic
                                          Pollutant).
                                         Pesticide Regulations.\b\
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Hydrochloric Acid (CAS No. 7647-01-0)..  NPDES MSGP for Industrial
                                          Stormwater.
                                         RMP Rule.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Chlorine (CAS No. 7782-50-5)...........  NPDES MSGP for Industrial
                                          Stormwater.
                                         RMP Rule.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Sodium Hypochlorite (CAS No. 7681-52-9)  NPDES MSGP for Industrial
                                          Stormwater.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Toluene (CAS No. 108-88-3).............  NPDES MSGP for Industrial
                                          Stormwater (Priority/Toxic
                                          Pollutant).
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Phosphoric Acid (CAS No. 7664-38-2)....  NPDES MSGP for Industrial
                                          Stormwater.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Styrene (CAS No. 100-42-5).............  NPDES MSGP for Industrial
                                          Stormwater.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Nitric Acid (CAS No. 7697-37-2)........  NPDES MSGP for Industrial
                                          Stormwater.
                                         RMP Rule.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
Potassium Hydroxide (CAS No. 1310-58-3)  NPDES MSGP for Industrial
                                          Stormwater.
                                         UST Rule.
                                         EPCRA Regulations.
                                         OSHA Regulations.
                                         PHMSA Hazardous Material
                                          Regulations.
------------------------------------------------------------------------
\a\ All instances of ``OSHA Regulations'' indicate that the CWA HS is
  covered under either EAPs (29 CFR 1910.38), PSM (29 CFR 1910.119),
  HAZWOPER (29 CFR 1910.120), or HCS (29 CFR 1910.1200).
\b\ ``Pesticide Regulations'' indicates that the substance has a
  commercial use of pesticides.

    Table 6 summarizes relevant regulations for the most commonly 
discharged CWA HS. However, there are challenges to identifying 
applicability for certain programs, specifically when regulatory 
program applicability relies on criteria other than chemical identity. 
For example, SMCRA regulations and MSHA regulations apply primarily 
based on industrial activity (i.e., mining). These requirements were 
not cited in Table 6, although they may apply to some CWA HS present in 
those industrial activities. Also, not cited in this table are 
Standards for Generators of Hazardous Waste; or Standards for 
Treatment, Storage, and Disposal of Hazardous Waste. Their 
applicability depends on whether a waste is present, and whether that 
waste meets the regulatory definition of hazardous waste. While not 
included in Table 6, these regulations apply to CWA HS in certain 
situations (e.g., when CWA HS are hazardous waste), so EPA considered 
these regulatory requirements in the analysis of existing regulations.
    For other regulatory programs, applicability may depend on other 
criteria in addition to chemical identity. Requirements for USTs apply 
to CWA HS when present in UST systems greater than 110 gallons in 
capacity. PHMSA Hazardous Materials Regulations specify integrity 
requirements for packages used to ship hazardous materials, including 
CWA HS. Therefore, when CWA HS are stored in packages intended for 
shipment, the packages must meet certain design criteria that may also 
serve to prevent discharges of CWA HS. These regulatory programs are 
cited in Table 6, and the complexities of assessing their

[[Page 29516]]

prevention advantages for CWA HS are discussed in the BID.
    Based on the review of NRC reporting data, in conjunction with 
existing prevention requirements of the regulations included in the 
analysis, the Agency determined that the majority of identified CWA HS 
reported discharges to water from non-transportation-related sources 
have been discharges of chemicals currently subject to discharge or 
accident prevention regulatory requirements.

C. Conclusions

    In the 40 years since CWA section 311(j)(1)(C) was enacted by 
Congress, multiple statutory and regulatory requirements have been 
established under different Federal authorities that generally serve 
to, directly and indirectly, prevent CWA HS discharges. Some states 
have also established their own discharge prevention provisions 
relevant to CWA HS. Based on EPA's analysis of the frequency and 
impacts of reported CWA HS discharges and the existing framework of EPA 
regulatory programs and implementing regulations, EPA is not proposing 
additional regulatory requirements at this time.
    EPA requests comments on this proposed approach of establishing no 
new regulatory requirements under the authority of CWA section 
311(j)(1)(C). EPA specifically requests comments on the analysis of 
existing EPA regulations and their applicability to CWA HS for purposes 
of spill prevention. EPA also requests comments on the analysis of 
other Federal regulations that supplement the EPA regulatory program 
analysis and whether EPA should consider expanding the basis of the 
proposal to these Federal regulations.
    Furthermore, while the analysis of state regulations and industry 
standards included in the BID do not serve as a basis for this 
proposal, the Agency requests comments on whether the state regulations 
and industry standards considered have program elements reflective of 
those identified as key to prevention. The Agency also requests 
comments on whether there are other Federal regulations not considered 
in the analysis but that may have applicable discharge prevention 
requirements, as well as whether any of the identified program elements 
should or should not have been considered. Likewise, the Agency 
requests comments on whether there may be regulatory gaps in prevention 
requirements that are not reflected in the analysis. We also request 
information that may be used to revise or supplement our analysis 
regarding any facilities, which are using, storing, producing, and/or 
otherwise handling CWA HS. Please provide any supporting information, 
including supporting data, with comments.

IV. Alternative Regulatory Options Considered

A. Prevention Program

    The Agency considered proposing a CWA HS discharge prevention 
program that would include provisions to address all nine prevention 
program elements listed in Table 3. Under this option, EPA considered 
requiring regulated facility owners/operators to develop a written plan 
with site-specific prevention measures and practices. Regulated 
facilities would be expected to implement this plan, to maintain and 
update it as needed, and to make it available for inspection. Under 
this alternative option, the facilities could take credit for and/or 
incorporate existing discharge prevention compliance strategies when 
addressing CWA HS discharge prevention requirements under this program.
    A prevention program regulatory option would be designed to reflect 
all discharge prevention, control and mitigation program elements 
discussed in this action to prevent and mitigate CWA HS discharges to 
jurisdictional waters. A prevention program regulatory approach would 
also include additional administrative program elements, such as 
requirements to:
     Develop a plan in accordance with good engineering 
practices;
     Update the plan as operations or equipment changes; and
     Require records documenting compliance with the rule.
    Following an analysis of the frequency of CWA HS discharges and the 
causes and impacts of such discharges, the Agency chose not to propose 
this approach. Over the 10-year period analyzed (2007-2016), there were 
a total of 2,491 CWA HS discharges from non-transportation-related 
sources with 117 of those discharges with reported impacts. This data 
suggests that the existing framework of regulatory requirements serves 
to prevent CWA HS discharges.
    EPA requests comments on whether to consider this alternative 
approach and develop a CWA HS prevention program. Comments should 
include supporting information and data. EPA requests comments on the 
specific provisions recommended, costs and advantages of such an 
approach, ways to minimize any regulatory redundancies, and any other 
information that would support the promulgation of new CWA HS discharge 
prevention provisions.

B. Targeted Prevention Requirements

    EPA also considered proposing a limited set of requirements 
designed to prevent CWA HS discharges. This regulatory option could 
establish targeted requirements under one or more of the nine program 
elements listed in Table 3. Targeted requirements under several of the 
program elements could be effective in helping to prevent CWA HS 
discharges.
    To evaluate which requirement(s) might be appropriate, EPA reviewed 
cause data in the NRC database for past CWA HS discharges, and 
identified four key program elements that may have addressed the CWA HS 
discharge causes. A summary of this review is shown in Table 7. The 
first category of causes, Unknown/Illegal Dumping/Other, consisted of 
reports for which there was either too little information provided to 
develop a prevention strategy, or for which additional regulatory 
requirements would be unlikely to prevent the discharges because the HS 
was disposed of illegally. For example, there are statutory and 
regulatory prohibitions in place to prevent CWA HS dumping, and these 
prohibitions are enforced (see CWA section 311(b)(3) and 40 CFR 
117.1(a)). There is no reason to believe that a redundant prohibition 
on such dumping would alleviate the problem of those who already 
disregard existing regulations.
    EPA identified program elements that could be effective in 
preventing CWA HS discharges resulting from the other four categories 
of reported causes. These program elements were considered, both 
individually and in various combinations, as an alternative regulatory 
option.

[[Page 29517]]



                              Table 7--Cause Data for Identified CWA HS Discharges
----------------------------------------------------------------------------------------------------------------
                                                                 CWA HS
                                                 CWA HS        discharges         Program element that could
        Reported cause category \a\            discharges     with reported    potentially prevent this type of
                                                                 impacts                  discharge
----------------------------------------------------------------------------------------------------------------
Unknown/Illegal Dumping/Other..............           1,357              74  Unknown--not enough information.
                                                                             None--illegal dumping violates
                                                                              current regulations.
Equipment Failure..........................             563              17  Hazard Review.
                                                                             Mechanical Integrity.
                                                                             Secondary Containment.
Natural Phenomenon.........................             321               4  Hazard Review.
Operator Error.............................             204              10  Hazard Review.
                                                                             Personnel Training.
                                                                             Secondary Containment.
Fire, explosion............................              46              12  Hazard Review.
                                                                             Mechanical Integrity.
                                                                             Personnel Training.
                                            --------------------------------
    Total..................................           2,491             117  ...................................
----------------------------------------------------------------------------------------------------------------
\a\ EPA used NRC incident descriptions to categorize the incident cause.

1. Hazard Review
    Approximately 46 percent of the identified CWA HS discharges from 
2007 to 2016 were reportedly due to equipment failure, a natural 
phenomenon, operator error, or fire/explosion. These causes were all 
identified as potentially addressed by a hazard review. A requirement 
to identify potential hazards, including, for example, process hazards, 
engineering and administrative controls, and human factors, could help 
prevent CWA HS discharges. However, establishing new requirements for 
hazard reviews may provide only incremental advantages, as the hazard 
review program element was identified in seven of the eight EPA 
regulatory programs and in all four of the other Federal regulations 
reviewed.
2. Mechanical Integrity
    Nearly 23 percent of the identified 2,491 CWA HS discharges from 
2007 to 2016 were reportedly due to equipment failure, which could be 
addressed in part through preventive maintenance. However, EPA believes 
additional regulatory requirements would provide minimal prevention 
advantages, since seven of the eight EPA programs and three of the four 
other Federal programs analyzed in the existing requirements review 
already contain some mechanical integrity/preventive maintenance 
provisions.
3. Personnel Training
    Approximately 10 percent of the identified 2,491 CWA HS discharges 
were due to either operator error or fire/explosion, which were both 
identified as causes that could be reduced by personnel training. 
Training employees on the proper operation of equipment and discharge 
prevention measures/procedures could serve to prevent CWA HS discharges 
due to operator error. However, the value of a personnel training 
program would depend, in part, on whether proper operating, 
maintenance, prevention, or response procedures have been developed to 
train personnel. Personnel training provisions are currently required 
in seven of the eight EPA programs and three of the four other Federal 
programs reviewed.
4. Secondary Containment
    More than 30 percent of the identified 2,491 CWA discharges were 
due to causes (e.g., equipment failure, operator failure) where 
secondary containment could have played a role in preventing the 
discharge to jurisdictional waters. A requirement to construct and 
maintain appropriate secondary containment (e.g., sized to prevent a 
CWA HS discharge from impacting jurisdictional waters could be the most 
generally applicable program element). However, the advantages of 
adding secondary containment provisions may only be incremental, as at 
least some type of secondary containment provision is included in six 
of the eight EPA regulatory programs and three of the four other 
Federal regulatory programs reviewed.
5. Conclusion
    Provisions for any of the four program elements described above, as 
well as others identified in Table 3, could be included in a targeted 
regulatory approach. However, these provisions were frequently 
identified in both the EPA and other Federal regulatory programs 
reviewed. EPA believes there would be only minimal incremental value in 
requiring these provisions in a new regulation. Additionally, the 
benefits of any of the targeted provisions described above may not 
justify the associated costs.\20\ For more information on the potential 
costs and benefits associated with regulatory options considered for 
this action, see the economic analysis, ``Regulatory Impact Analysis; 
Clean Water Act Hazardous Substances Discharge Prevention,'' available 
in the docket and the summary of the economic analysis in section V.A. 
of this action.
---------------------------------------------------------------------------

    \20\ Executive Order 12866 (58 FR 51735, October 4, 1993) 
section 1(a) states that in choosing among alternative regulatory 
approaches, agencies should select those approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety, and other advantages; distributive impacts; and 
equity), unless a statute requires another regulatory approach.
---------------------------------------------------------------------------

    EPA requests comments on whether it should adopt a narrowly 
targeted regulatory approach to prevent CWA HS discharges. Commenters 
who support targeted prevention requirements should provide information 
and data that identify which program elements to include and why, the 
costs and advantages of such an approach, ways to minimize any 
regulatory redundancies, and any other information that would support 
the promulgation of new, targeted prevention provisions. Furthermore, 
EPA requests comments on whether a targeted regulatory approach should 
allow a facility to substitute alternative prevention measures for 
specific targeted requirements (e.g., a situation where secondary 
containment is not practicable, a facility could substitute a separate 
prevention measure that achieves the same effect).

[[Page 29518]]

    In summary, the proposal identifies three options the Agency may 
choose to finalize:
     Establishes no new requirements under the authority of CWA 
311(j)(1)(C);
     Requires prevention plans to address the nine program 
elements discussed; or
     Requires actions under targeted program elements.
    EPA requests comments on these three approaches, as well as on 
other alternatives not specifically identified in this notice. For 
example, EPA could consider an approach that requires an owner or 
operator to develop a plan to prevent CWA HS discharges but allows 
flexibility for the owner or operator to determine what provisions 
should be incorporated within the plan. The Agency could also consider 
establishing a prevention program under CWA section 311(j)(1)(C) 
authority that incorporates existing discharge prevention provisions 
already established under other statutory authorities. EPA requests 
comments on alternative approaches.
    If the Agency were to finalize an alternative option that 
establishes a regulatory program, it would apply to facilities 
producing, storing, processing, using, transferring or otherwise 
handling CWA HS. EPA would need to establish applicability criteria for 
the program, and is requesting comments on appropriate applicability 
criteria or thresholds for such alternatives.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to OMB for review, because it raises novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order. Any changes made in 
response to the OMB recommendations have been documented in the docket.
    EPA prepared an economic analysis of the potential costs and 
benefits associated with regulatory options considered for this action. 
This analysis, ``Regulatory Impact Analysis; Clean Water Act Hazardous 
Substances Discharge Prevention,'' is available in the docket.
1. Summary of the Economic Analysis
    A regulatory impact analysis (RIA) is included in the record. The 
RIA considers three alternatives: The proposed no-action approach, a 
prevention program including provisions under nine program elements, 
and a targeted approach including four of the program elements. The 
unit costs of the program elements are derived from similar 
requirements in other EPA regulatory programs. The number of affected 
facilities is estimated from the number of facilities subject to EPCRA.
    EPA does not attempt to determine the number of potentially 
regulated facilities currently undertaking various prevention 
activities in the baseline. Thus, EPA does not estimate total costs per 
facility, nor does it estimate total program costs across facilities. 
EPA does calculate the annualized net present value of a wide range of 
unit compliance costs for each program element over a 10-year analysis 
period, using 3 percent and 7 percent discount rates, as presented in 
Tables 8 and 9. Avoided damages, estimated from historical CWA HS 
discharges, represent the monetized damages. Based on historical 
incidents reported to the NRC, EPA estimated the total existing level 
of monetized damages over the 10-year period from 2007 to 2016 to be 
$33.1 million in 2016 dollars.

                                         Table 8--Summary of Unit Costs
----------------------------------------------------------------------------------------------------------------
                                                Unit Costs: Total annualized unit costs  (2016 $)
                               ---------------------------------------------------------------------------------
                                   Option 1:  Proposed       Option 2:  Prevention        Option 3: Targeted
         Type of cost                    action                     program             prevention requirements
                               ---------------------------------------------------------------------------------
                                     3%           7%           3%            7%            3%            7%
----------------------------------------------------------------------------------------------------------------
Safety Information (Recurring)           $0           $0   $14-$25,100   $15-$26,700            $0            $0
Hazard Review (Recurring).....            0            0     19-15,900     20-17,300     19-15,900     20-17,300
Mechanical Integrity (Initial             0            0    348-98,800    349-99,400    348-98,800    349-99,400
 and Recurring)...............
Personnel Training (Recurring)            0            0     42-69,100     44-73,400     42-69,100     44-73,400
Incident Investigations                   0            0     40-14,600     42-15,300             0             0
 (Recurring)..................
Compliance Audits (Recurring).            0            0     46-10,800     45-10,600             0             0
Secondary Containment                     0            0  3,000-43,100  3,570-51,200  3,000-43,100  3,570-51,200
 (Initial)....................
Emergency Response Plan, ERP)             0            0           770           914             0             0
 (Initial)....................
Coordination of ERP with State            0            0           (*)           (*)             0             0
 and Local Responders
 (Initial)....................
----------------------------------------------------------------------------------------------------------------
* Included in cost of ERP.


                                      Table 9--Summary of Monetized Damages
----------------------------------------------------------------------------------------------------------------
                                                                     Monetized damages
                                          ----------------------------------------------------------------------
                                                                                                 Average annual
             Impact category                                                   Average  annual       damages
                                                         Impact                     cases        (millions, 2016
                                                                                                       $)
----------------------------------------------------------------------------------------------------------------
Human Health.............................  Injuries (w/o hospitalizations)..               1.2            $0.001
                                           Hospitalizations.................               4.1               0.2
                                           Fatalities.......................               0.3               3.1
Other....................................  Evacuations......................             211.9              0.04
                                           Sheltering-in-Place..............              n.e.              n.e.
                                           Waterway Closures................              n.e.              n.e.
                                           Water Supply Contamination.......              n.e.              n.e.
                                           Environmental Impacts............              n.e.              n.e.
                                           Lost Productivity................              n.e.              n.e.

[[Page 29519]]

 
                                           Emergency Response Costs.........              n.e.              n.e.
                                           Transaction Costs................              n.e.              n.e.
                                           Property Value Impacts *.........              n.e.              n.e.
                                                                             -----------------------------------
    Total................................  .................................             217.5               3.3
----------------------------------------------------------------------------------------------------------------
n.e. = not estimated.
* Property value impacts overlap with human health and other impact categories.

    EPA believes the benefits would not justify the costs in any 
alternative other than the proposed alternative.\21\ The benefits of 
the provisions are to reduce the likelihood and severity of CWA 
hazardous substance discharges and their associated impacts on human 
health and the environment. Table 9 gives estimates of baseline damages 
from hazardous substance discharges. Annualized damages are estimated 
as $3.3 million (2016$) and represent human health impacts and 
evacuations. Nonmonetized baseline damages include impacts such as 
shelter-in-place events, waterway closures, and lost productivity. The 
estimated annualized unit costs of proposed provisions vary widely, 
from less than $100 to tens of thousands of dollars (Table 8). However, 
existing regulatory programs already require many of the prevention and 
mitigation actions proposed by Options 2 and 3. Even a robust 
regulatory program where none existed before would not be expected to 
completely eliminate all risk.
---------------------------------------------------------------------------

    \21\ Under Executive Order 12866 (58 FR 51735, October 4, 1993), 
section 1(b)(6), each agency shall assess both the costs and 
benefits of the intended regulation and, recognizing that some costs 
and benefits are difficult to quantify, propose or adopt a 
regulation only upon a reasoned determination that the benefits of 
the intended regulation justify its costs.
---------------------------------------------------------------------------

    Since the proposed alternative establishes no new regulatory 
requirements, it neither imposes incremental costs nor provides 
incremental environmental protection benefits.
2. Estimating Universe of Potentially Regulated Facilities
a. Identifying Facilities With CWA HS
    To estimate the universe of facilities that would potentially be 
subject to a rule preventing CWA HS discharges, EPA first estimated the 
number of facilities with CWA HS onsite. Information in EPCRA Tier II 
reports was used to identify facilities with CWA HS onsite, because 
these reports contain information about many chemicals, of which CWA HS 
are a subset. EPA reviewed Tier II reports submitted in 16 states and 
extrapolated the data nationally based on NAICS codes and United States 
Census data. EPA estimates there are approximately 108,000 potentially 
affected facilities nationally. For additional details on this 
methodology, alternatives considered, and the results, please see 
Section 3 and Appendix B of the RIA available in the docket for this 
action.\22\
---------------------------------------------------------------------------

    \22\ See Regulatory Impact Analysis; Clean Water Act Hazardous 
Substances Discharge Prevention; Docket ID #: EPA-HQ-OLEM-2018-0024.
---------------------------------------------------------------------------

b. Proximity to Jurisdictional Waters
    EPA did not identify an appropriate method to quantify those 
facilities that would not have the potential to discharge to 
jurisdictional waters for this action. To estimate the universe of 
potentially subject facilities, EPA took a conservative approach and 
assumed that all CWA HS facilities have the potential to discharge CWA 
HS to jurisdictional waters.
c. Data Limitations
    The estimate of potentially regulated facilities has several 
uncertainties. First, due to the wide range of trade names used for 
many chemicals and chemical mixtures, it was unclear whether 
approximately 20 percent of the facilities in the Tier II reports 
reviewed had a CWA HS onsite. Second, Tier II reports are required for 
materials present at any one time in an amount greater than or equal to 
10,000 pounds, or lower established thresholds for chemicals defined as 
Extremely Hazardous Substances in 40 CFR part 355, Appendix A. If a 
proposed regulation were to establish applicability criteria with a 
higher or lower applicability threshold than those established in 40 
CFR part 355, Appendix A, the number of potentially regulated 
facilities would be impacted. Finally, the extrapolation assumes that 
the fraction of facilities in each NAICS sector that have CWA HS onsite 
is the same across all states. As discussed in Section 3.3 of the RIA, 
alternative extrapolation methodologies were used with reasonably 
similar results, which provides some confidence that the extrapolation 
approach is reasonable (i.e., nationwide estimate of approximately 
101,000 facilities based on Tier II data and U.S. population vs. 
approximately 108,000 facilities based on NAICS codes and Census data).
3. Conclusion
    EPA seeks comments on the method used to estimate the potential 
affected universe, including any additional data or information sources 
that could be used to reduce the uncertainty of the estimate. For any 
additional information sources, commenters are encouraged to provide 
information, including where it can be publicly obtained, as well as 
how the data could improve EPA's current estimate. EPA intends to 
further refine the estimate of the facilities that could be potentially 
subject to CWA HS regulatory requirements as additional information is 
received. EPA is requesting comments on its approach to the economic 
analysis, including additional sources of information or data to refine 
the analysis.

B. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory or 
deregulatory action, because this action does not propose any 
regulatory requirements.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA, because this action does not propose any regulatory 
requirements.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this

[[Page 29520]]

determination, the impact of concern is any significant adverse 
economic impact on small entities. An agency may certify that a rule 
will not have a significant economic impact on a substantial number of 
small entities if the rule relieves regulatory burden, has no net 
burden, or otherwise has a positive economic effect on the small 
entities subject to the rule.
    This action proposes no regulatory requirements. We have therefore 
concluded that this action will have no net regulatory burden for all 
directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175, because this action proposes no regulatory 
requirements. Thus, Executive Order 13175 does not apply to this 
action.

H. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
Section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This action proposes no regulatory 
requirements.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because it does not establish an 
environmental health or safety standard and imposes no regulatory 
requirements.

    Dated: June 15, 2018.
E. Scott Pruitt,
Administrator.
[FR Doc. 2018-13470 Filed 6-22-18; 8:45 am]
 BILLING CODE 6560-50-P