[Federal Register Volume 84, Number 170 (Tuesday, September 3, 2019)]
[Rules and Regulations]
[Pages 46100-46136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18706]



[[Page 46099]]

Vol. 84

Tuesday,

No. 170

September 3, 2019

Part II





Environmental Protection Agency





-----------------------------------------------------------------------





40 CFR Part 151





Clean Water Act Hazardous Substances Spill Prevention; Final Rule

  Federal Register / Vol. 84, No. 170 / Tuesday, September 3, 2019 / 
Rules and Regulations  

[[Page 46100]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 151

[EPA-HQ-OLEM-2018-0024; FRL-9999-09-OLEM]
RIN 2050-AG87


Clean Water Act Hazardous Substances Spill Prevention

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is not 
establishing at this time new requirements for hazardous substances 
under Clean Water Act (CWA) section 311. This section directs the 
President to establish procedures, methods, and equipment and other 
requirements for equipment to prevent discharges of oil and hazardous 
substances from vessels and from onshore facilities and offshore 
facilities, and to contain such discharges. The EPA has been delegated 
and/or redelegated authority for certain facilities as identified 
below. On July 21, 2015, a lawsuit was filed against the EPA for 
failing to comply with the alleged duty to issue regulations to prevent 
and contain CWA hazardous substance discharges under CWA section 311. 
On February 16, 2016, the United States District Court for the Southern 
District of New York entered a Consent Decree between the EPA and the 
litigants that required a notice of proposed rulemaking pertaining to 
the issuance of hazardous substance regulations, and a final action 
after notice and comment. After seeking public comment and based on an 
analysis of the frequency and impacts of reported CWA Hazardous 
Substances discharges, as well as the existing framework of EPA 
regulatory requirements, the Agency is not establishing at this time 
new discharge prevention and containment regulatory requirements under 
CWA section 311.

DATES: This final action is effective on October 3, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OLEM-2018-0024, ``Clean Water Act Hazardous 
Substances Discharge Prevention Action.'' All documents in the docket 
are listed on the http://www.regulations.gov website. Although listed 
in the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available electronically 
through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Gregory Wilson, Office of Emergency 
Management, Mail Code 5104A, Environmental Protection Agency, 1200 
Pennsylvania Avenue NW, Washington, DC 20460, (202) 564-7989, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    A list of entities potentially subject to CWA section 311(j)(1)(C) 
requirements is provided in Table 1:

                 Table 1--Potentially Affected Entities
------------------------------------------------------------------------
                       Industry                              NAICS
------------------------------------------------------------------------
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
------------------------------------------------------------------------
NAICS = North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities potentially subject to CWA section 
311(j)(1)(C) requirements. This table lists the types of entities that 
EPA is now aware could potentially be regulated under CWA section 
311(j)(1)(C). Other types of entities not listed in the table could 
also be regulated. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed in the 
FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

    The Agency is taking final action to not establish at this time new 
regulatory requirements under the CWA section 311(j)(1)(C) authority 
for CWA hazardous substance (HS) discharge prevention. Based on a 
review of the existing EPA programs in conjunction with the frequency 
and impacts of reported CWA HS discharges, the Agency believes the 
existing regulatory framework meets the requirements of CWA section 
311(j)(1)(C) and is serving to prevent, contain and mitigate CWA HS 
discharges. This action is (1) in compliance with a consent decree 
addressing CWA section 311(j)(1)(C) and (2) based on public comment on 
the proposed EPA approach.

C. What is the Agency's authority for taking this action?

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

D. What are the incremental costs and benefits of this action?

    Under the final action, which imposes no new requirements at this 
time,

[[Page 46101]]

facilities will not incur any incremental costs. The Agency expects 
zero incremental change in CWA HS discharges and therefore, no benefits 
are realized under the final action. The full economic analysis can be 
found in the Regulatory Impact Analysis--Clean Water Act Hazardous, 
Substances Spill Prevention Final Action document, which is included in 
the public docket for this action.

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 hazardous substances 
from vessels and from onshore facilities and offshore facilities, and 
to contain such discharges.\1\ The EPA has been delegated the authority 
to regulate non-transportation-related onshore facilities and offshore 
facilities landward of the coastline, under section 311(j)(1)(C).\2\
---------------------------------------------------------------------------

    \1\ 33 U.S.C. 1321(j)(1)(C).
    \2\ Under Executive Order 12777 (56 FR 54757, October 22, 1991), 
the President delegated various responsibilities identified in 
section 311(j) of the CWA, including the responsibility to regulate 
non-transportation related onshore facilities to EPA, and the 
responsibility to regulate non-transportation-related offshore 
facilities landward of the coast line to the Department of the 
Interior (DOI). DOI has redelegated the authority to regulate non-
transportation-related offshore facilities landward of the coast 
line to EPA through a Memorandum of Understanding (MOU), effective 
February 3, 1994, between DOI, the U.S. Department of Transportation 
(DOT), and EPA (see 40 CFR part 112, Appendix B). An MOU DOT and EPA 
(36 FR 24080, November 24, 1971) established the definitions of 
transportation- and non-transportation-related facilities for the 
purposes of Executive Order 11548 (see 40 CFR part 112, Appendix A).
---------------------------------------------------------------------------

B. Legislative Background

    The term ``hazardous substance'' is defined in CWA section 
311(a)(14). Section 311(b)(2)(A) authorizes regulations designating 
hazardous substances, which when discharged in any quantity into waters 
subject to CWA jurisdiction,\3\ present an imminent and substantial 
danger to public health or welfare, including, but not limited to, 
fish, shellfish, wildlife, shorelines, and beaches.
---------------------------------------------------------------------------

    \3\ CWA 311(b)(3) provides that the discharge of oil or 
hazardous substances (i) into or upon the navigable waters of the 
United States, adjoining shorelines, or into or upon the waters of 
the contiguous zone, or (ii) 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.]), in such quantities as may 
be harmful as determined by the President under paragraph (4) of 
this subsection, is prohibited, except (A) in the case of such 
discharges into the waters of the contiguous zone 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), where permitted under the Protocol of 1978 Relating 
to the International Convention for the Prevention of Pollution from 
Ships, 1973, and (B) where permitted in such quantities and at times 
and locations or under such circumstances or conditions as the 
President may, by regulation, determine not to be harmful.
---------------------------------------------------------------------------

    Once a chemical (i.e.,'' element and compound'') is designated as a 
CWA HS, as described in Section II.C, the corresponding quantity is 
established by regulation under the authority of CWA section 
311(b)(4).\4\ Section 311 of the CWA prohibits discharges of CWA HS in 
quantities that may be harmful in section 311(b)(3), except where 
permitted under the Protocol of 1978 Relating to the International 
Convention for the Prevention of Pollution from Ships, 1973, and where 
permitted in quantities and at times and locations or under such 
circumstances or conditions as the President may, by regulation, 
determine not to be harmful.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 and contain 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. The EPA did not finalize that proposed CWA HS SPCC 
regulation. There is no information in the record to explain the 
reason(s) 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 discharges originating from non-transportation-
related onshore facilities, including aboveground storage tanks, under 
CWA section 311(j)(1)(C).
---------------------------------------------------------------------------

    \5\ Complaint for Declaratory and Injunctive Relief, 
Environmental Justice Health Alliance from Chemical Policy Reform v. 
EPA, 15-cv-5705 (Southern District of New York (S.D.N.Y.) July 21, 
2015).
---------------------------------------------------------------------------

    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 of proposed rulemaking.\6\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

E. Additional Information Collection

    The Agency's initial data gathering efforts to support this action 
focused on assessing the scope of historical CWA HS discharges, 
identifying relevant industry practices, and identifying regulatory 
requirements related to preventing and containing CWA HS discharges. 
The EPA also used available data to estimate the universe of 
potentially regulated entities subject to this action. To supplement 
this data, the EPA developed a voluntary survey for states, territories 
and tribes, focused on collecting information on the universe of 
potentially-regulated facilities' CWA HS discharges over a 10-year 
period.
    On June 22, 2018, EPA issued the voluntary survey directed at State 
and Tribal Emergency Response Coordinators (respondents with custodial 
responsibility for data representing the potentially affected 
``facility universe'' that produce, store, or use CWA HS), as well as 
state, tribal, and territorial government agencies with custodial 
responsibility for data on CWA HS impacts to drinking water utilities 
and fish kills potentially caused by discharge(s) of CWA HS. The EPA 
received relevant responses from 15 states: Alabama, California, 
Delaware,

[[Page 46102]]

Hawaii, Indiana, Kentucky, Maryland, Massachusetts, Minnesota, 
Missouri, New Hampshire, New Mexico, Oregon, Rhode Island, and Texas. A 
full analysis of the voluntary survey data can be found in Appendix B 
of the RIA, included in the docket for this action.
    The Agency made the voluntary survey data available in 
regulations.gov at Docket ID: EPA-HQ-OLEM-2017-0444, provided notice of 
its availability on the EPA website for this action, and provided 
direct notice to the litigants in the S.D.N.Y. litigation that the data 
was available. Additionally, the EPA published a Notice of Data 
Availability (NODA) \7\ making the survey data received available for 
public review and comment. The Agency considered the supplemental data 
received in response to the survey, and the related public comments, to 
further inform this final action.
---------------------------------------------------------------------------

    \7\ Clean Water Act Hazardous Substances Spill Prevention 
Proposed Action Under Clean Water Act Section 311(j)(1)(C); 
Notification of Data Availability--Responses to 2018 Clean Water Act 
Hazardous Substances Survey (OMB Control No. 2050-0220); 84 FR 4741, 
February 19, 2019.
---------------------------------------------------------------------------

III. This Action

    The EPA is finalizing this action as proposed, establishing no new 
regulatory requirements under the authority of CWA section 311(j)(1)(C) 
at this time. In making this determination, the Agency analyzed data on 
both the frequency and reported impacts of identified CWA HS 
discharges, and supplemented this analysis with information received in 
response to the voluntary survey. Additionally, the EPA identified an 
analytical framework of program elements that include prevention, 
containment, and mitigation provisions commonly found in regulatory 
programs for discharge and accident prevention.
    Based on the reported frequency and impacts of identified CWA HS 
discharges, and on an evaluation of the existing framework of EPA 
discharge, containment and accident prevention regulatory requirements, 
the Agency has determined that, at this time, this existing framework 
adequately serves to prevent and contain CWA HS discharges. While 
recognizing there may be other applicable regulations and standards 
relevant and of value in preventing and containing CWA HS discharges, 
the Agency ultimately focused on programs within, and regulations 
promulgated under, its authorities, and for which the requirements more 
directly address the key prevention, containment and mitigation program 
elements identified. In general, the Agency recognizes that other 
federal programs, as well as other state programs and industry 
standards, may also be effective in preventing and containing CWA HS 
discharges.
    This Section highlights comments received on the proposed approach 
to this action and summarizes Agency responses to those comments. While 
discussion in preamble and supporting documents for this action reflect 
comments received characterizing various regulatory programs, the 
Agency notes that specific requirements and applicability for all cited 
prevention programs are contained in the relevant statutes and 
regulations. For a full discussion of the comments received and of 
Agency responses, see Comment and Response Document--Clean Water Act 
Hazardous Substances Spill Prevention Final Action, available in the 
docket for this action.

A. General Comments

    The EPA proposed to establish at this time no new regulatory 
requirements under the authority of CWA section 311(j)(1)(C). This 
determination was 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.
    Several commenters supported EPA's proposed determination not to 
issue new regulatory requirements under CWA section 311(j)(1)(C), 
agreeing that existing federal and state agency programs, and other 
industry standards are effective in preventing discharges of CWA HS to 
waters subject to CWA jurisdiction. Several commenters supported the 
key prevention program elements the Agency identified to analyze the 
existing framework of regulations that serve to prevent and contain CWA 
HS discharges. Several commenters also stated new requirements would 
conflict with existing regulations, create redundancy, and would have 
``minimal incremental value.'' Several commenters stated compliance 
with regulatory programs is not 100 percent, with new provisions not 
preventing discharges because of regulatory programs violations 
irrespective of regulation, and that requiring all facilities to 
protect from worst-case events would likely be expensive or not 
technically feasible. Several commenters agreed the Agency has 
discretion to interpret CWA section 311(j)(1)(C) as having already been 
satisfied by existing EPA regulations.
    The Agency agrees with comments supporting this action that new 
regulatory requirements at this time would have minimal incremental 
value. The EPA based its determination on an analysis of the frequency 
and impacts of reported CWA HS discharges to waters subject to CWA 
jurisdiction and on an evaluation of the existing framework of EPA 
regulatory requirements relevant to prevention and containment of CWA 
HS discharges. While this action is based on the existing EPA 
regulatory framework, the Agency agrees there are other federal and 
state agency programs and other industry standards that may be 
effective in preventing and containing discharges of CWA HS. Further, 
EPA has the discretion to determine that CWA section 311(j)(1)(C) has 
been satisfied by existing EPA regulations issued since 1972. The EPA 
is taking this final action in compliance with the Consent Decree. 
Finally, nothing in this action precludes future EPA regulatory actions 
under CWA section 311(j)(1)(C).
    In contrast, some commenters opposed the approach of establishing 
no new regulatory requirements under CWA section 311(j)(1)(C) at this 
time. Some commenters asserted CWA section 311(j)(1)(C) explicitly 
requires EPA to issue hazardous-substance spill-prevention regulations 
for non-transportation-related onshore facilities, and that EPA lacks 
the authority to ignore a statutory mandate. Additionally, commenters 
stated the regulatory analysis for the proposed approach failed to 
adequately show how existing programs/regulations serve to functionally 
provide the spill-prevention protections mandated in the CWA, asserting 
that the supporting cost/benefit analyses provided insufficient 
justification. One commenter stated that the existing framework of the 
EPA regulatory requirements fails to prevent toxic spills as 
demonstrated by the recent chemical spill into West Virginia's Elk 
River, stating that existing federal regulations would not prevent that 
exact scenario. One commenter stated EPA's proposal to take no action 
is inappropriate and would leave water bodies, drinking water sources, 
and communities at risk. Another commenter stated the EPA should 
perform a second regulatory analysis to determine gaps where the 
current regulations lack protection that may have led to the identified 
discharges, and how the current regulations could be improved to 
prevent future spills.
    Further, one commenter stated that the EPA lacks critical 
information on the universe of potentially regulated facilities (e.g., 
location, chemicals stored, current spill-prevention measures), without 
which the central claim for this action cannot be reasonably evaluated 
or supported. Another commenter questioned why the Agency did not wait 
for the voluntary

[[Page 46103]]

survey results before issuing the proposed action, further stating that 
existing regulatory programs lack useful prevention or preparedness 
guidance for industry or communities to follow. The commenter offered 
that instead, the EPA should build upon the framework of the spill-
prevention rules it has already issued under section 311(j)(1)(C) for 
oil.
    Finally, several commenters recommended establishing new prevention 
measures specific to safeguard drinking water from threats, including 
information sharing and timely notification with downstream utilities 
to plan for and respond to potential hazards. One commenter stated 
that, lacking a federal mandate, there is no guarantee that hazardous 
substance spills will not occur, with another commenter stating that 
federal minimum requirements must be sufficient to facilitate 
additional protections at the regional level and particularly for 
tribal lands.
    The Agency disagrees with commenters stating that the existing EPA 
regulatory framework fails to provide the spill-prevention protections 
mandated under the CWA. 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 which serve, 
both directly and indirectly, to prevent and contain CWA HS discharges. 
While the Agency has the authority to regulate CWA HS under CWA section 
311(j)(1)(C), it has determined that at this time CWA 311(j)(1)(C) has 
been satisfied as to CWA HS by the existing EPA regulatory framework. 
It is important to note that this action is not guided by a cost-
benefit analysis. Rather, the action is based on the determination that 
further regulation would provide only minimal incremental value. The 
EPA has based its determination on an analysis of the frequency and 
impacts of reported CWA HS discharges to waters subject to CWA 
jurisdiction, and on its evaluation of the existing framework of EPA 
regulatory requirements relevant to prevention and containment of CWA 
HS discharges. The Agency also disagrees that there are no federal 
regulations currently in place to prevent discharges similar to past 
scenarios and that this final action leaves water bodies, drinking 
water sources, and communities at risk. The Agency believes its 
analyses support the conclusion that the existing framework of 
requirements identified within EPA's regulatory programs serves to 
address key prevention elements. The Agency further points to its 
review of discharge history, which identified discharges that would not 
have been prevented regardless of applicable regulatory requirements 
already in place.
    Regarding the voluntary survey, the Agency's original intent was to 
collect information on current prevention practices and other facility 
specific information that would inform the selection of prevention 
program elements for the proposed action (e.g., storage capacity, types 
of storage equipment). However, as survey development progressed, EPA 
revised the survey's focus to instead inform the estimate of the 
universe of potentially-subject facilities and of the impacts 
associated with the 10-year CWA HS discharge data. This change in 
approach to the survey, in conjunction with the court ordered deadline 
to issue a proposed action, did not allow the Agency to await the 
survey results before publishing the proposed action. The Agency has 
considered the data received through the voluntary survey when revising 
its regulatory analysis to further inform this final action.
    The Agency disagrees with the comment that without a federally 
mandated regulation there would be no guarantee that hazardous 
substance spills will not occur. The existing framework of regulatory 
requirements upon which this final action is based provides the federal 
baseline for EPA programs relative to the prevention and containment 
CWA HS discharges. Additionally, there are other federal programs under 
statutes administered by other Agencies and Departments that also add 
to the current federal baseline of existing regulatory requirements, 
all of which provide discharge protections applicable to states, 
including tribal lands. The EPA recognizes the concerns regarding 
threats to drinking water systems. To this end, the Agency notes that, 
in addition to the regulatory structure already identified herein, 
recent statutory amendments to the Emergency Planning and Community 
Right-To-Know (EPCRA) focus on notifications to State drinking water 
primacy agencies, as well as on providing community water systems with 
hazardous chemical inventory data.\8\
---------------------------------------------------------------------------

    \8\ The EPA has published a factsheet on its website providing 
information on America's Water Infrastructure Act of 2018 (Pub. L. 
No: 115-270) amendments for State Emergency Response Commissions 
(SERCs), Tribal Emergency Response Commissions (TERCs), and Local 
Emergency Planning Committees (LEPCs). https://www.epa.gov/sites/production/files/2019-04/documents/awia_epcra_fact_sheet_draft_508_serc_terc_lepc_final_4-10-19.pdf.
---------------------------------------------------------------------------

    Again, while this final action is based on the existing EPA 
regulatory framework, the Agency recognizes there are, in addition to 
other federal programs, state agency programs and other industry 
standards that may be effective in preventing discharges of CWA HS. 
Finally, nothing in this action precludes future EPA regulatory actions 
under CWA section 311(j)(1)(C).

B. Comments on CWA HS Discharge History and Impacts Analysis

1. Analytic Approach to Frequency of CWA HS Discharges
    For the proposed action, the Agency analyzed CWA HS discharges 
reported to the National Response Center (NRC) over a 10-year period to 
estimate the frequency of discharges. Specifically, for the period of 
2007-2016, the EPA identified 2,491 NRC reports (less than one percent 
of all reports to the NRC for that period) as CWA HS discharges 
originating from non-transportation-related sources, with 117 of those 
non-transportation-related discharges having reported impacts.\9\
---------------------------------------------------------------------------

    \9\ The causes of the 117 CWA HS identified discharges with 
reported impacts are: 74 as Unknow/Illegal Dumping/Other; 17 as 
Equipment Failure; 4 as Natural Phenomena; 10 as Operator Error; 12 
as Fire/Explosion. See Table 7 of the proposed action at 83 FR 
29517, June 25, 2018.
---------------------------------------------------------------------------

    Several commenters supported the Agency's analysis of CWA HS 
discharges, and agreed with the Agency's conclusion that, given the 
relatively small number of discharges and reported impacts, the 
framework of existing EPA regulations adequately serves to prevent, 
contain and mitigate CWA HS discharges. Three commenters specifically 
supported the use of NRC data as likely the best readily available 
source of relevant information. Some commenters noted the Agency's 
analysis that less than one percent of releases originated from non-
transportation sources, with only a fraction of those originating from 
non-transportation sources resulting in impacts. Some commenters also 
stated that unreported spills would not come from the already highly 
regulated facilities that would likely be subject to any new spill 
prevention program, but rather would result from illegal dumping or 
other unknown causes; these commenters stated that additional SPCC-type 
regulations would not address such discharges. One commenter stated 
that while the impacts for some discharges over the 10-year period may 
have been significant, they are a small number on which to justify a 
major new federal regulatory framework. Yet another commenter asserted 
that new requirements for onshore facilities would have little 
environmental benefit, but would create significant costs, given

[[Page 46104]]

the limited number of hazardous substance spills to waters.
    The Agency agrees that the frequency and reported impacts of CWA HS 
discharges identified, and as supplemented by the voluntary survey 
data, does not support issuing new regulatory requirements under the 
authority of CWA section 311(j)(1)(C) at this time. However, discharge 
history does serve as the basis for determining applicability of 
certain requirements within existing EPA regulations. While this final 
action does not establish any new requirements, the Agency reiterates 
that the CWA prohibits discharges of CWA HS in quantities that may be 
harmful, with exceptions only where otherwise permitted or under such 
circumstances or conditions as the President may, by regulation, 
determine not to be harmful, irrespective of whether facilities are 
subject to hazardous substance spill prevention regulations.
    Alternatively, several commenters opposed the approach used by EPA 
to identify CWA HS discharges to water, with one commenter stating that 
underreporting to the NRC is more likely than over-reporting, thereby 
resulting in an incomplete and unreliable data set. The commenter 
further stated the EPA exacerbated NRC data limitations by only 
focusing on CWA HS spills reported to reach waterways with reported 
impacts. Additionally, this commenter expressed concern that CWA HS 
discharges resulting from natural phenomena are likely to increase in 
frequency in the future (e.g., hurricane activity).
    One commenter stated that EPA's approach of looking at 
retrospective data to predict the future is ``a fraught endeavor'' that 
does not quantify that risk. The commenter suggested that the most 
relevant data for the Agency to consider would be CWA HS spills with 
potential to reach water, rather than those reported to reach water 
with impacts. The commenter stated the EPA did not consider the 
proximity of facilities to water and that the Agency rejected comments 
on the proposed Information Collection Requests supporting this 
approach. Further, another commenter stated that without confirming NRC 
data, the Agency cannot ``provide a conclusive picture of the amount, 
causes, or ultimate impact of a hazardous substance release.''
    The Agency recognizes the limitations of the NRC database. As noted 
in the FR Notice for the proposed action, the NRC database is based on 
notifications of CWA HS discharges and thus, is dependent on the 
reporting individual(s) for completeness and accuracy of the 
information provided. NRC reports are generally received and documented 
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 
the substance reported, the quantity reported, the source, and the 
nature or impacts of the discharge, among other elements of the report. 
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.
    Despite these limitations, the Agency looked to the NRC database as 
the best readily available source of relevant information on CWA HS 
discharges in the United States. Further, the Agency disagrees that 
discharges are necessarily more likely to be underreported than 
overreported. The 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 
overreporting (discharges reported that are not subject to notification 
requirements). While EPA recognizes that past discharge history does 
not necessarily predict future discharges, the Agency believes the NRC 
data can provide insight into the extent of CWA HS discharge for the 
purposes of establishing the need for new regulatory requirements.
    The EPA considered both CWA HS reported discharges with the 
potential to reach waters as well as CWA HS discharges reported to have 
reached water. The analysis identified 9,416 reports of CWA HS 
discharges out of all NRC reports received (3.3 percent) for the period 
of 2007 to 2016. Of these CWA HS discharge reports, the Agency further 
refined the analysis by identifying 3,140 discharges reported to have 
reached water. Within that universe, 2,491 (less than one percent of 
the reports) were identified as CWA HS discharges identified from non-
transportation-related sources. Each refined data set informed the 
proposed action.
    The Agency could not identify an appropriate method to quantify 
those facilities that would not have the potential to discharge to 
waters subject to CWA jurisdiction for this final action. Further, the 
EPA took a conservative approach and assumed that any CWA HS facility, 
regardless of its proximity to waters subject to CWA jurisdiction, 
would have the potential to discharge CWA HS to such waters. Finally, 
the Agency disagrees that it did not try to confirm NRC data for the 
amounts, causes, or ultimate impacts of reported hazardous substance 
releases. Part of the Agency's purpose in analyzing the data received 
from the voluntary survey was to identify new, potentially relevant 
discharges and impacts that could not be matched to those identified 
from the NRC data in the proposed action.
2. Analytic Approach to Quantifying Impacts of CWA HS Discharges
    The EPA analyzed the NRC data to examine how many of the CWA HS 
discharges to waters from non-transportation-related facilities had 
reported impacts. The Agency supplemented its analysis of this NRC 
impact data with reported impact data for identified CWA HS discharges 
from the National Toxic Substance Incidents Program (NTSIP).\10\ 
Impacts reported to NRC and NTSIP include evacuations, injuries, 
hospitalizations, fatalities, waterway closures, and water supply 
contamination. The analysis for the proposed action showed that, out of 
the 2,491 identified CWA HS discharges reports from non-transportation-
related sources to water, 117 included one or more of these impacts 
over the 10-year period analyzed.
---------------------------------------------------------------------------

    \10\ 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.
---------------------------------------------------------------------------

    A commenter stated a new rule to address the small number of 
hazardous substances spills to waters would have significant costs but 
little environmental benefit, with another pointing to the small number 
of identified discharge reports on which to justify a major new federal 
regulatory framework. One commenter expressed concerns that the 
monetized damages still overestimated the direct costs associated with 
the discharges. The commenter supports reliance on other federal 
statutes and regulatory programs as the appropriate mechanisms to 
address other types of damages associated with chemical releases. The 
commenter further argues that damages are most accurately assessed in 
the analysis for this final action by limiting evaluation to direct 
impacts of CWA HS discharges. A commenter asserted that a chemical 
release reaching water does not necessarily mean that chemical caused 
other site impacts, including explosions,

[[Page 46105]]

fires, and air and water quality issues. Further, the commenter pointed 
out that it is not clear whether some identified impacts, such as 
sheltering in place and fatalities, are directly caused by the 
hazardous substances reaching water; the commenter also questioned 
whether the EPA evaluated whether the impacts were directly caused by 
the CWA HS discharge. The commenter added that the 2014 fatality 
included in the Regulatory Impacts Analysis (RIA) for the proposed 
action appeared to have been caused by incidents unrelated to the 
discharge of a hazardous substance to water and stated that it is 
likely that the two other fatalities included in the Regulatory Impacts 
Analysis (RIA) for the proposed action were not directly caused by CWA 
HS reaching CWA jurisdictional water. This commenter suggested that it 
would be more appropriate for the fatality EPA included in its 
assessment of impacts in 2014 to be considered in an evaluation of 
chemical accidents subject to Occupational Safety and Health 
Administration (OSHA) or EPA Risk Management Program (RMP) regulations.
    Further, the commenter raised the concern that the three fatalities 
EPA included in its analysis account for over 90 percent of the total 
monetized damages from hazardous substance discharges to water. The 
commenter noted that eliminating one of the three included fatalities 
from the analysis would decrease the monetized damages in the RIA by 
approximately one-third and urged the EPA to perform the type of 
cursory evaluation used in the review of the remaining impact data. 
Finally, a commenter stated that SPCC-type regulations would not 
address 74 incidents out of the 117 that were identified, given that 
the incidents resulted from illegal dumping or other unknown causes.
    The Agency recognizes commenters' support for EPA's analysis, with 
several reiterating the findings of 117 CWA HS identified discharges 
with reported impacts such as evacuations, injuries, waterway closures, 
and water supply contamination. The Agency analyzed the NRC data to 
examine how many of the CWA HS discharges to water originating from 
non-transportation-related facilities had reported impacts. This 
information was supplemented with reported impact data for identified 
CWA HS discharges from the NTSIP. Impacts reported to NRC and NTSIP 
include evacuations, injuries, hospitalizations, sheltering in place, 
fatalities, waterway closures, and water supply contamination. The EPA 
recognizes that the reported impacts in the proposed action do not 
necessarily represent the only impacts arising from those discharges. 
The EPA also agrees with the commenters that the fatalities reported to 
the NRC database may not be the direct result of CWA HS discharges to 
water. For the final action, EPA supplemented the reported impacts data 
with additional information (e.g., fish kill events) from the voluntary 
survey. The Agency's analysis is further discussed in Section III.E 
below.
    Alternatively, two commenters opposed the approach EPA used to 
quantify impacts of CWA HS discharges. One commenter took issue with 
the analysis, given that NRC and NTSIP do not require comprehensive 
reporting of impacts, and stated the analysis did not account for 
under-reporting. One commenter stated the Agency did not address 
significant health risks from exposure to hazardous substances. The 
commenter cited Agency for Toxic Substances and Disease Registry's 
(ATSDR, an agency of the U.S. Department of Health and Human Services) 
information for some of the most commonly spilled hazardous substances, 
and further asserted the EPA ignored health risks in favor of a 
numerical analysis based on incomplete and unreliable data.
    Associated with comments on impacts, some commenters stated that 
there are disparate impacts on communities of color and low-income 
communities resulting from hazardous substance discharges, and that 
comprehensive regulation would provide critical protections for 
communities. Commenters further stated that EPA's no action approach 
maintains existing environmental injustices associated with CWA HS 
discharges. These comments are further discussed in Section III.H.2 of 
this FR notice. Parallel to those comments, some commenters recommended 
the EPA continue gathering States and Tribal information, stating 
concerns that this final action and the economic analysis fail to 
consider the potential environmental and treaty rights impacts to the 
rights of Indian Tribal Governments. These impacts include the 
potential impacts to Indian Tribal Governments, sheltering in place, 
waterway closures, water supply contamination, environmental impacts, 
lost productivity, emergency response costs, transaction costs, and 
property value impacts not reflected in NRC data. Further discussion on 
these comments are found in Section III.H.2 of this FR notice.
    The Agency recognizes 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 meet or exceed the reportable quantity. The 
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). As noted in the RIA, monetized historical impacts are 
also not necessarily direct consequences of CWA HS discharges to water. 
Based on the descriptions provided to the NRC on the monetized 
fatalities, EPA cannot confirm that the fatalities were the direct 
result of a CWA HS discharge to water; however, EPA erred on the 
conservative side and included these impacts as historical damages. 
Further comments on impacts and economic analysis are found below in 
Section III.H.1 of this FR notice; discussion on the regulatory impacts 
is found in Section IV of this FR notice.
    The EPA also noted in the proposed action that 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 
originating from non-transportation-related facilities, which were not 
reported to the NRC or the NTSIP 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 because 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. For the proposed action, the 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. However, EPA 
updated the discharge history and reported impacts in the proposed 
action with additional information the Agency received from the 
voluntary survey and from publicly

[[Page 46106]]

available state data, further discussed in Section III. E of this FR 
notice.
    Finally, relative to health risks from exposure to hazardous 
substances, the proposed action noted that the list of CWA HS and/or 
the criteria for listing or distinguishing hazards between CWA HS is 
outside the scope of this final action; that authority is provided in 
CWA section 311(b)(2)(A). Similarly, differentiating requirements based 
on listing and hazard considerations is also outside the scope of this 
final action.
3. Alternative Approaches and Supplemental Information To Refine 
Impacts Estimates
    The Agency requested comment on additional data sources, 
information, and approaches that allow it to further revise or refine 
the estimated impacts of CWA HS discharges from non-transportation-
related sources, nationally.
    Several commenters provided data or suggestions for further 
analysis of discharge data, with one industry group searching the NRC 
database to identify relevant discharges from member facilities for the 
years 2010-2016 and contrasting the results with company-specific data; 
for the period reviewed the industry group stated that there were 18 
relevant discharges from their member facilities, arguing this provides 
strong evidence there are sufficient existing requirements.
    Some commenters provided additional information to support an 
analysis of the cost of water supply, noting Federal Emergency 
Management Agency's (FEMA) valuation for disruption of water service, 
and citing an analysis of the Charleston, WV incident that affected 
300,000 residents and business due its impact on the community's 
drinking water supply. One commenter stated the Agency's cost-benefit 
analyses did not adequately account for potential drinking water 
utilities impacts, and that water supply contamination can be a major 
cost to communities (e.g., potential public health consequences for 
downstream utility intakes economic losses from cessation of potable 
water production and sewerage service interruption; impacts in 
distribution systems; cost of developing new raw water source if 
remediation is not possible; utility advisory outreach), requesting the 
EPA include these types of monetary costs in its assessment. Further, 
the commenter asked the EPA to provide information on regulatory gaps 
that allowed these instances of water contamination.
    Finally, a commenter noted the EPA and the states need to 
continually improve risk assessment, planning, and implementation to 
protect populations in high-risk areas that experience greater exposure 
and disease burdens. The commenter stated the NRC data are unreliable 
and urged the EPA to develop more robust and credible data before 
weighing costs and benefits of alternatives to a no action 
determination.
    The Agency acknowledges that some commenters performed a search of 
the NRC database for their specific industry group and concluded that 
the small number of discharges identified for their specific industry 
group suggests that existing requirements are sufficient. For its 
proposed action, the EPA considered CWA HS discharges with the 
potential to reach water as well as CWA HS discharges reported to have 
reached water. The analysis identified 9,416 reports of CWA HS 
discharges (3.3 percent of the total received) for the period of 2007 
to 2016. 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. Each refined data set informed the 
proposed action; the Agency has supplemented that analysis with the 
data and information received from the voluntary survey in support of 
this final action, further discussed in Section III.E of this FR 
notice.
    As noted in the FR notice for the proposed action, the Agency 
looked to the NRC database as the best readily available source of 
information on CWA HS discharges in the United States. The EPA also 
notes that some commenters agreed that the NRC data is likely the best 
readily available source of relevant information. In addition, EPA also 
developed a voluntary survey to collect information from states, tribes 
and territories focused on the universe of potentially regulated 
facilities and on CWA HS discharges. Again, the use of relevant survey 
responses to further inform this final action is further discussed in 
Section III.E.
4. Most-Frequently Discharged CWA HS
    The Agency analyzed the NRC reporting data to identify those CWA HS 
most frequently discharged. Of the currently designated CWA HS,\11\ 13 
accounted for 90 percent of all identified CWA HS discharges to water 
originating from non-transportation-related facilities, while 
accounting for 80 percent of the 117 identified CWA HS discharged with 
reported impacts.
---------------------------------------------------------------------------

    \11\ At 40 CFR part 116.
---------------------------------------------------------------------------

    Commenters generally supported the Agency's examination of most 
frequently discharged CWA HS, with one commenter highlighting that less 
than one percent of the identified discharges originated from non-
transportation sources. Another commenter specifically noted members of 
its organization use, handle, or store three of the top 13 CWA HS, with 
most spills captured in the NRC with no reported impacts.
    The EPA acknowledges commenters supporting the analysis to identify 
the most frequently discharged CWA HS. To be conservative in its 
analysis, the Agency focused on those discharges that impacted water, 
with no additional determination of whether the waters impacted were 
subject to CWA jurisdiction. The Agency could not identify an 
appropriate method to quantify those facilities that would not have the 
potential to discharge to waters subject to CWA jurisdiction for this 
final action.
5. NRC Data Limitations and Alternatives
    The Agency recognized the limitations of using the NRC database as 
its source of information on CWA HS discharges in the United States in 
support of the proposed action. The NRC database is dependent on 
reporting individuals for comprehensiveness and accuracy of information 
provided. In addition, EPA has no information to assess the uncertainty 
associated with NRC information, including the extent of under-
reporting, or the extent of over-reporting. In addition, there may be 
additional impacts beyond those reported to the NRC that could not be 
quantified by EPA.
    Several commenters supported EPA's use of NRC data as being the 
best readily available source of relevant information. One commenter 
noted that while facilities are required to report almost immediately, 
failure to report is subject to potential penalties, resulting in 
conservative reporting of regulated discharges. The commenter stated 
that members of this commenter's organization compared their records to 
NRC data, revealing few discrepancies and a tendency toward over-
reporting. The Agency acknowledges the support for the use of the NRC 
database to inform this action and notes that discharge notification 
requirements are outside the scope of this final action.\12\
---------------------------------------------------------------------------

    \12\ Under CWA section 311 regulations, the notice of a 
discharge of a reportable quantity requirement for CWA HS is found 
at 40 CFR 117.21, and the liabilities for removal requirement at 40 
CFR 117.23.

---------------------------------------------------------------------------

[[Page 46107]]

    In contrast, several commenters highlighted limitations to the NRC 
data, with one stating that the identified CWA HS discharges used in 
support of the proposed action is under-inclusive and provides limited 
impacts information given it relies on self-reporting. Another 
commenter noted the EPA has previously used stronger language to 
describe underreporting limitations, with statements to the data 
representing the minimum number of spills. Additionally, the commenter 
stated, reports are received immediately after an incident, with no 
update requirement, and may not accurately convey the nature and extent 
of the discharge, including the substance reported, the quantity 
reported, the source, and the nature or impacts. Some commenters stated 
the NRC data may provide a snapshot of how often, where, and when 
hazardous substances are released, but lacking confirmation, it cannot 
provide a conclusive picture of the amount, causes, or ultimate impact 
of a hazardous substance release. One commenter also expressed concerns 
the NRC data may misrepresent the nature of discharges and suggested 
further analysis to ensure that reportable quantities were exceeded, 
releases were to jurisdictional waters, and to clarify any over- or 
under-reporting during the initial report.
    The EPA has no information to assess or characterize the 
uncertainty associated with information reported to the NRC, the extent 
of under-reporting (e.g., failure to report a discharge), or the extent 
of over-reporting (e.g., discharges reported that are not subject to 
notification requirements). The Agency's analysis focused on those 
discharges that impacted water, but no additional determination was 
conducted to determine whether the waters impacted were subject to CWA 
jurisdiction. EPA could not identify an appropriate method to quantify 
those facilities that would not have the potential to discharge to 
jurisdictional waters for this final action.
    However, recognizing these limitations, the Agency looked to the 
NRC database as the best readily available source of information on CWA 
HS discharges in the United States. The Agency notes that, for example, 
40 CFR 117.21 requires immediate notification of discharge of a 
reportable quantity of a CWA HS by any person in charge of a vessel or 
an onshore or an offshore facility as soon as he or she has knowledge 
of any discharge of a designated hazardous substance. Additionally, the 
EPA also developed a voluntary survey directed at states, tribes and 
territories to collect information on the universe of potentially 
regulated facilities and on CWA HS discharges. The Agency supplemented 
the proposed action analysis with data and information from relevant 
survey responses to further inform the final action. The analyses of 
the data received from the voluntary survey is further discussed in 
Section III. E of this FR notice.
C. Comments on Affected Universe Analysis
1. Analytic Approach To Determine Affected Universe
    For the proposed action, the Agency used EPCRA Tier II information 
to estimate the universe of potentially affected facilities by 
identifying those with CWA HS onsite. The EPA reviewed Tier II reports 
submitted for 2014, 2015, or 2017 (the latest available) in 16 states 
and extrapolated the data nationwide based on NAICS codes and U.S. 
Census data. The Agency noted data limitations, including the wide 
range of trade names used for many chemicals and chemical mixtures, as 
well as the applicability thresholds established in 40 CFR 370.10, 
which then references the Threshold Planning Quantities for Extremely 
Hazardous Substances listed in 40 CFR 355, Appendix A and B for EPCRA 
Tier II reporting. The analysis assumed the fraction of facilities in 
each NAICS sector with CWA HS facilities is the same across all states 
and extrapolated accordingly.
    One commenter claimed that using Tier II data would underestimate 
facilities potentially subject to hazardous substance spill prevention 
regulation, stating that EPA has not attempted to determine the number 
of facilities that would be subject to hazardous substance spill 
prevention regulations under CWA section 311(j)(l)(C). Because EPA 
extrapolated the data from 16 states to potentially covered facilities 
nationwide, and given the EPCRA Tier II reporting thresholds (i.e., 
amounts greater or equal to 10,000 pounds, or lower established 
thresholds for Extremely Hazardous Substances) the commenter asserts 
only facilities with relatively large storage quantities of hazardous 
substances are required to report under EPCRA Tier II. In contrast, the 
commenter notes, CWA section 311(b) requires reports of discharges of 
much smaller amounts. With some reportable quantities as low as one 
pound under the CWA, the commenter notes the Agency did not solicit 
information from non-Tier II facilities that could potentially be 
subject to a CWA HS spill prevention rule, further asserting the 
analysis does not provide a rational basis for the determination not to 
issue regulations. Another commenter stated the number of aboveground 
storage tanks around the country containing hazardous substances is 
unknown, and no existing program assembles information on these tanks, 
their condition, the hazardous substances they contain, or whether they 
threaten water resources.
    The Agency acknowledged the uncertainties associated with the 
estimate of potentially regulated facilities in the proposed notice. 
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 substances 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. The estimated number of 
potentially regulated facilities would depend on whether regulatory 
requirements establish applicability criteria with either higher or 
lower thresholds than those established in 40 CFR part 355, Appendix A. 
There are approximately 400,000 facilities that are subject to EPCRA 
Tier II reporting, including those with CWA HS onsite. These facilities 
are required under 40 CFR part 370 to report annually to the State 
Emergency Response Commission (SERC), Local Emergency Planning 
Committees (LEPC) and the fire department with jurisdiction over the 
facility. These facilities are also required to provide access for site 
inspections and information on the location of hazardous chemicals 
present to the fire department with jurisdiction over the facility. The 
Agency recognizes it has no information to assess or characterize non-
Tier II facilities, and that the CWA HS reportable quantities for some 
of the designated CWA HS are measurably lower than the Tier II 
reporting thresholds. The Agency recognizes that it did not base the 
estimated universe of potentially regulated facilities on applicability 
criteria, including one specific to the RQ for the CWA HS. However, the 
Agency used EPCRA Tier II information as the best available data for 
estimating the potential universe in both the proposal and in this 
final action.

[[Page 46108]]

    The Agency is unaware of specific data at a national level on 
aboveground storage tanks that contain hazardous substances, or of any 
specific program that compiles this information. However, the EPA 
disagrees with the assertion that this final action would result in a 
threat to water resources. In the 40 years since CWA section 
311(j)(1)(C) was enacted by Congress, multiple EPA statutory and 
regulatory requirements have been established which generally serve, 
directly and indirectly, to prevent and contain CWA HS discharges. 
Based on EPA's analysis of the frequency and impacts of reported CWA HS 
discharges, EPA determined that the existing framework of EPA 
regulatory programs and implementing regulations at this time is 
serving to adequately prevent and contain CWA HS discharges, and thus 
is not finalizing any new spill prevention and containment regulatory 
requirements under CWA section 311(j)(1)(C).
2. Alternative Approaches and Supplemental Information To Refine 
Affected Universe
    In the proposed action, EPA solicited additional data or 
information that could be used to revise, refine, or reduce the 
uncertainty of the estimated affected facility universe and CWA HS 
storage volume locations relative to water sources.
    One commenter pointed to information submitted to the Agency 
through comments for identifying potential candidates for 
prioritization for risk evaluation under the amended Toxic Substances 
Control Act (TSCA), stating that the offered approaches for that effort 
could inform an assessment of the volume of chemical substances stored 
near ground and surface water drinking water sources. Pointing to 
baseline data called for in section 311, the commenter stated the EPA 
has hydrological data on surface waters and aquifers critical for 
targeting source water protection, which can be used to evaluate risk 
when compared against chemical storage data collected in Tier II 
reports. The commenter also stated the Agency's approach underestimates 
the potential universe of facilities, offering that a review of the EPA 
data shows 10 states reported 60 percent of these discharges, with none 
among the 16 states used to estimate facility universe; comparatively, 
the 16 states with Tier II data represented 19 percent of CWA HS 
discharges to water. The commenter recommended that the Agency work 
directly with those states that may have a greater frequency of 
incidents and/or a greater proportion of CWA HS facilities to determine 
the potential universe.
    The Agency could not identify, for the purposes of this final 
action, an appropriate method to estimate the number of facilities that 
would not have the potential to discharge to waters subject to CWA 
jurisdiction. Therefore, EPA estimated the universe of potentially 
subject facilities using a conservative approach and assumed that all 
CWA HS facilities identified in this rulemaking have the potential to 
discharge CWA HS to waters subject to CWA jurisdiction. For further 
discussion refer to the Response to Comments document for this action, 
located in the docket.
    Additionally, EPA issued a voluntary survey to states, tribes and 
territories to collect relevant information, including information on 
the universe of potentially regulated facilities and on CWA HS 
discharges. EPA used relevant survey responses to further inform the 
final action. Based on the voluntary survey information received, EPA 
updated the universe of potentially subject facilities; the revised 
estimate changed by less than one percent from the original estimate.

D. Comments on Review of Existing Regulatory Programs

1. Program Elements
    The Agency evaluated eleven EPA regulatory programs to determine 
whether they addressed the following program elements: Safety 
information, hazard review, mechanical integrity, personnel training, 
incident investigations, compliance audits, secondary containment, 
emergency response plan, and coordination with state and local 
responders.
    Several commenters expressed general support for EPA's 
identification of the nine program elements, agreeing these elements 
would comprise the core procedures, methods and equipment of a 
discharge prevention program for CWA HS, and that regulatory programs 
with these nine program elements would similarly achieve the objective 
of preventing and containing CWA HS discharges to water. Other 
commenters expressed support for EPA's identification of provisions 
within the existing EPA regulations that address discharge and accident 
prevention, control and mitigation of CWA HS discharges. Some 
commenters also agreed that new regulatory action would be a redundant 
mandate relative to the costs and administrative resources potentially 
required for implementation and enforcement when it would likely result 
in little commensurate benefit to human health and the environment. One 
commenter specifically noted the identified nine program elements are 
currently part of at least two or more existing rules, and that the 
identified program elements are covered under a minimum of ten other 
federal regulations.
    The Agency agrees with the commenters that the identified nine 
program elements are key to prevention, containment, and mitigation of 
CWA HS discharges. The EPA identified these elements as an analytical 
framework of provisions commonly found in discharge and accident 
prevention regulatory programs. To this end, the Agency reviewed 
existing EPA and other federal regulatory programs, state regulatory 
programs, and industry standards to assess current discharge prevention 
practices and technologies. The Agency agrees the nine program elements 
identified and which are commonly reflected in EPA regulatory programs 
provisions, at this time adequately serve to prevent, contain, or 
mitigate CWA HS.
    In contrast, one commenter asserted the examination of existing 
regulatory mechanisms conflates hazardous substance accident prevention 
with emergency response, and that the regulatory programs in place 
mainly focus on the follow-up to releases, rather than on spill 
prevention. Another commenter urged the EPA to expand its discussion to 
include the numerous other federal statutory and regulatory programs 
that have the effect, either directly or indirectly, of helping to 
prevent and contain discharges of hazardous substances. The commenter 
stated that focusing the analysis of regulatory programs on the nine 
program elements is too narrow and fails to consider how other 
regulatory programs with broader purposes, such as NPDES permits, as 
well as statutory and regulatory programs establishing liability for 
hazardous substance discharges, effectively impose additional ``program 
elements'' on facilities. The commenter stated these broad programs and 
liability provisions create strong incentives for facilities to 
implement appropriate measures to avoid uncontained hazardous substance 
spills and provide substantial additional support for the Agency's 
determination that additional rules would provide only de minimis 
regulatory benefit.
    The Agency disagrees with the commenters that the analysis of EPA 
regulations focused on nine select program elements was too narrow. The 
Agency recognizes there may be other provisions captured within 
additional regulations with broader purposes,

[[Page 46109]]

including those establishing liability for CWA HS discharges, that may 
either directly or indirectly be effective for the prevention, 
containment, and mitigation of CWA HS discharges. However, EPA 
identified the nine program elements as an analytical framework of key 
provisions specific to discharge and accident prevention regulatory 
programs. The Agency reviewed existing EPA and other federal regulatory 
programs, state regulatory programs, and industry standards to assess 
current discharge prevention practices and technologies. The EPA also 
reviewed past CWA HS discharges to identify key elements that would 
serve to prevent, contain or minimize impacts from future CWA HS 
discharges. While some of these key elements may be also considered as 
response measures, the Agency believes it is also important to note 
provisions that focus on expeditiously containing discharges. The 
Agency believes regulatory requirements addressing these nine key 
program elements adequately serve to prevent, contain, or mitigate CWA 
HS discharges.
    The discussion that follows addresses comments on each of the nine 
prevention program elements identified. The Agency recognizes that no 
single program element or regulatory provision may individually prevent 
and contain CWA HS discharges from occurring. However, this action is 
not based on any individual provision and/or program preventing CWA HS 
discharges, but rather on how the cumulative framework of key 
prevention elements, as implemented through existing EPA regulatory 
programs, adequately serves to prevent, contain, or mitigate CWA HS 
discharges under section 311(j)(1)(C).
i. Safety Information
    The EPA identified safety information as one of the key provisions 
within prevention regulations. Prevention planning includes owners/
operators maintaining and reviewing chemical and process safety 
information for their facility. Knowing and understanding the hazards 
associated with CWA HS helps maintain the overall safety of facility 
operations and reduces the potential for CWA HS discharges.
    The Agency originally determined in the proposed action that the 
safety information program element is addressed in three out of the 
eleven EPA regulatory programs identified: RMP, Pesticide Worker 
Protection Standard, and EPCRA Hazardous Chemical Inventory Reporting 
regulation. Upon notice and comment review, the Agency identified two 
additional regulatory programs that addressed this element: NPDES 
Pretreatment standards and TSCA Polychlorinated Biphenyl (PCB) 
regulation. The EPA had also identified that safety information is 
addressed in at least two OSHA regulations (OSHA PSM, OSHA Hazard 
Communication Standard (HCS)), and in regulatory requirements under the 
Mine Safety and Health Administration (MSHA), and the Pipeline and 
Hazardous Materials Safety Administration (PHMSA). For more information 
on other federal programs and corresponding regulations, please see the 
Background Information Document: Review of Relevant Federal and State 
Regulations (hereafter referred to as BID) and the Supplemental 
Background Information Document: Additional Review of Relevant EPA 
Federal and State Regulations (hereafter referred to as Supplemental 
BID) in the docket to this action (Docket ID No. EPA-HQ-OLEM-2018-
0024).
    One commenter opposed the determination to establish no new 
requirements, stating that prevention provisions are not adequately 
covered under existing regulations and that a prevention provision 
alone does not actively prevent unlawful discharges. The commenter 
posited that while maintaining safety information on-site makes it more 
likely that fully-trained personnel and emergency response officials 
will understand the risks and be able to appropriately respond to 
releases, the three regulatory programs identified in this category 
mostly relate to response situations. The commenter noted it is up to 
the facility to provide adequate training to ensure proper handling of 
hazardous substances, and stated the identified rules seem to focus on 
emergency response mechanisms rather than spill prevention. The 
commenter noted RMP standards focus on potential off-site impacts and 
worst-case scenarios (40 CFR 68.12); the Pesticide Worker Protection 
Standards emphasize response protocols more than preventative measures 
(40 CFR 170.230 and 170.311); and EPCRA safety information standards 
require Safety Data Sheets (SDS) (29 CFR 1910.1200(g)) which, while 
required to contain information about handling and storage, exposure 
controls/personal protection, and disposal and transportation 
information, mainly provide general chemical composition and emergency 
response information.
    While the Agency recognizes the regulations specifically identified 
as existing safety information requirements may also focus on emergency 
response, these regulations also include requirements more broadly 
relevant to prevention and preparedness. For example, as highlighted in 
the supporting documents for the proposed action, the RMP regulation 
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 regulation also requires owners to 
compile process safety information for regulated substances, such as 
toxicity information. Similar safety information requirements that 
address preparedness and prevention were also identified for the 
Pesticide Worker Protection Standard and for the EPCRA Hazardous 
Chemical Inventory Reporting Regulation.
ii. Hazard Review
    Hazard review was identified by the Agency as one of the key 
provisions within prevention regulations. It is intended to identify 
potential chemical or operational hazards present in a process and 
allowing for the prevention, containment, and/or mitigation of 
discharges. A hazard review provides information key for the proper 
design, construction, and operation of facility equipment/systems 
(e.g., identifying corrosion risks to be mitigated by ensuring storage 
container compatibility) and for choosing engineering controls (e.g., 
identifying overfill risks to be addressed by installing alarms/
automatic shutoffs).
    The Agency originally determined that the hazard review program 
element is addressed in eight out of the 11 EPA regulatory programs 
identified: NPDES Multi-Sector General Permit (MSGP) for Industrial 
Stormwater (2015), RMP, SPCC, Pesticide Management, Resource 
Conservation and Recovery Act (RCRA) Generators, RCRA Treatment, 
Storage and Disposal Facilities (TSDF), Underground Storage Tanks 
(UST), and EPCRA Hazardous Chemical Inventory Reporting. Upon notice 
and comment review, the Agency identified five additional regulatory 
programs that addressed this element: NPDES Pretreatment standards, 
TSCA PCB regulation, Effluent Guidelines and Standards for 
Transportation Equipment Cleaning Point Source Category, Effluent 
Guidelines and Standards for Construction and Development Point Source 
Category, and Pulp and Paper Effluent Guidelines. The EPA had also 
identified that hazard review is addressed in at least two OSHA 
regulations (OSHA PSM, OSHA Hazardous Waste Operations and Emergency 
Response Standard (HAZWOPER)), MSHA, PHMSA, and Surface Mining Control 
and Reclamation Act (SMCRA). For more

[[Page 46110]]

information on other federal programs and corresponding regulations 
please see the BID and the Supplemental BID in the docket to this 
action.
    One commenter stated the bulk of prevention provisions fall under 
hazard review, mechanical integrity, and personnel training, stating 
these are the most-covered prevention provisions along with personnel 
training, and a step in the right direction for promulgating spill 
prevention regulations. The commenter pointed to hazard review 
consisting of controls that, for example, support container integrity 
and prevent overfills, to varying degrees across the eight regulatory 
programs identified.
    The Agency believes that, at this time, existing regulations 
adequately cover prevention provisions relative to CWA HS, including 
hazard review requirements. For example, as highlighted in the 
supporting documents for the proposed action, both the RMP and the SPCC 
regulations include general hazard review and process hazards 
identification requirements; RMP requires facilities, depending on 
applicability, to either develop a hazard review or a process hazard 
analysis, and the SPCC regulation requires regulated facilities to 
develop spill prevention, control and countermeasure plans including 
equipment and processes review. Similarly, other hazard review 
requirements such as identification of engineering or administrative 
controls, compatibility of stored materials with tanks and equipment, 
and overfill prevention were identified in existing EPA programs.
iii. Mechanical Integrity
    Mechanical integrity programs to ensure proper equipment operation 
and maintenance, identified by the Agency as one of the key provisions 
of prevention regulations, not only serve to prevent and contain CWA HS 
discharges, but also serve to ensure operational reliability and safe 
operation at a facility. Mechanical integrity provisions may include 
procedures for inspections, testing, and appropriate corrective action 
by qualified personnel to prevent equipment failures before they cause 
a discharge.
    The Agency originally determined that the mechanical integrity 
program element is addressed in eight out of the 11 EPA regulatory 
programs identified: NPDES MSGP for Industrial Stormwater (2015), RMP, 
SPCC, Pesticide Management, RCRA Generators, RCRA TSDF, UST, and Pulp, 
Paper, and Paper Board Effluent Guidelines. Upon notice and comment 
review, the Agency identified five additional regulatory programs that 
addressed this element: NPDES Pretreatment standards, TSCA PCB 
regulation, and CWA Effluent Guidelines and Standards for Ore Mining 
and Dressing Point Source Category, CWA Effluent Guidelines and 
Standards for Concentrated Aquatic Animal Production Point Source 
Category, and CWA Effluent Guidelines and Standards for Pesticide 
Chemicals. The EPA had identified that mechanical integrity is 
addressed in at least one OSHA regulation (OSHA PSM), and in regulatory 
requirements under PHMSA and SMCRA. For more information on other 
federal programs and corresponding regulations please see the BID and 
the Supplemental BID in the docket to this action.
    One commenter noted mechanical integrity requirements for regular 
testing of components and corrective actions, and that these prevention 
controls are implemented based on revealed potential hazards and 
encourage good engineering practices to prevent discharges and 
mechanical failures. The commenter stated these control options have 
room for expansion, and that the process of discovering potential 
breaches in safety and correcting those works well as a preventative 
safety measure.
    The Agency believes that, at this time, existing regulations 
adequately cover prevention provisions relative to CWA HS, including 
requirements for facilities to maintain mechanical integrity of 
equipment that is critical for safe operations. Requirements range from 
general mechanical integrity programs, inspections and testing, and 
corrective action resulting from inspections and tests. As highlighted 
in the supporting documents for the proposed action, for example, the 
RMP regulation requires facilities to inspect equipment at a frequency 
recommended by the manufacturer or industry standards and also to keep 
records of inspections. Similarly, the SPCC regulation has mechanical 
integrity and inspection requirements for bulk containers for certain 
plan holders.
iv. Personnel Training
    Personnel training programs to ensure employees and/or contractors 
are aware of safe operating procedures, chemical hazards, discharge 
prevention and containment measures, and response procedures aim to 
reduce operator errors that could lead to CWA HS discharges. These 
programs also strengthen implementation of other prevention program 
elements, such as hazard review or mechanical integrity, by ensuring 
employees understand the operational hazards at the facility and the 
procedures for safe operations established by those program elements.
    The Agency originally determined that the personnel training 
program element is addressed in seven out of the 11 EPA regulatory 
programs identified: RMP, SPCC, Pesticide Worker Protection Standard, 
RCRA Generators, RCRA TSDF, UST, and CWA Effluent Guidelines and 
Standards for Pulp, Paper and Paperboard Point Source Category. Upon 
notice and comment review, the Agency identified two additional 
regulatory program that addressed this element: NPDES Pretreatment 
standards and CWA Effluent Guidelines and Standards for Concentrated 
Aquatic Animal Production Point Source Category. The Agency had 
identified that personnel training is addressed in at least three OSHA 
regulations (OSHA PSM, OSHA HAZWOPER, OSHA HCS), and in regulatory 
requirements under MSHA and PHMSA. For more information on other 
federal programs and corresponding regulations please see the BID and 
the Supplemental BID in the docket to this action.
    One commenter noted that personnel training can reasonably decrease 
the chance that employee negligence would cause a release. The 
commenter stated however, that the regulatory programs identified seem 
to focus on employee understanding of release emergency response 
mechanisms rather than emphasizing spill prevention training, and again 
pointed to the RMP standards focus on worst-case scenarios and on off-
site impacts, and the Pesticide Worker Protection Standards emphasizing 
response protocols over prevention measures.
    While the Agency recognizes the regulations specifically identified 
with existing personnel training requirements may also focus on 
emergency response, these regulations also include requirements more 
broadly relevant to prevention and preparedness. For example, as 
highlighted in the supporting documents for the proposed action, the 
RCRA TSDF 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, personnel training requirements were identified in other 
existing EPA programs, ranging from specific prevention and response

[[Page 46111]]

procedures to prevent, contain, and mitigate CWA HS discharges, to more 
general provisions for the proper handling of chemical hazards and the 
safe operation of equipment to prevent accidents.
v. Incident Investigations
    The Agency identified incident investigation provisions as a key to 
prevention regulations, as they focus on examining causes of discharges 
to apply lessons learned and inform prevention and containment 
activities going forward. While the Agency recognizes these may also be 
considered a response measure, provisions for incident investigations 
also result in improvements to process design, operational methods, and 
procedures with the goal of preventing future incidents.
    The Agency originally determined that the incident investigation 
program element is addressed in three out of the 11 EPA regulatory 
programs identified: RMP, SPCC, and CWA Effluent Guidelines and 
Standards for Pulp, Paper and Paperboard Point Source Category. Upon 
notice and comment review, the Agency identified one additional 
regulatory programs that addressed this element: MSGP for Industrial 
Stormwater (2015). The EPA also found that incident investigation is 
addressed in at least one OSHA regulation (OSHA PSM), and in regulatory 
requirements under MSHA and PHMSA. For more information on other 
federal programs and corresponding regulations please see the BID and 
the Supplemental BID in the docket to this action.
    One commenter stated that incident investigation should not be 
classified as a prevention provision but that rather it would more 
appropriately be considered a response measure. The commenter stated 
that, for example, RMP requires investigations of catastrophic releases 
or near misses of catastrophic releases, but the investigations do not 
actively prevent releases from happening. The commenter further stated 
that owners and operators are often forced to respond to new or unusual 
types of releases that have never occurred at their sites; therefore, 
incident investigation reports may prove useless at times. Finally, the 
commenter noted that the Agency appears to be on the verge of 
eliminating many of the provisions of the RMP regulation that have any 
possible link to accident prevention or investigation.
    As highlighted in the supporting documents for the proposed action, 
the incident investigation provisions under the SPCC regulation require 
an analysis of the cause of the discharge, including corrective actions 
and additional preventive measures to minimize the possibility of 
recurrence. Similar incident investigation requirements for prevent 
corrective actions were also identified for the RMP regulation and for 
the CWA Effluent Guidelines and Standards for Pulp, Paper and 
Paperboard Point Source Category.
    Finally, RMP regulation provisions that the Agency is contemplating 
to amend are not expected to impact the core requirements of the 
regulation that have served to reliably prevent accidents since its 
issuance in 1996. While the RMP Amendments, 82 FR 4594 (January 13, 
2017), added various new provisions to the prevention program 
requirements in subparts C and D of the RMP Rule, and while the Agency 
is conducting a reconsideration of these additions, the Agency did not 
propose and is not contemplating eliminating the prevention program 
requirements altogether. The RMP Amendments themselves acknowledge the 
pre-Amendments RMP Rule was ``effective in preventing and mitigating 
chemical accidents.'' 82 FR at 4600.
vi. Compliance Audits
    Compliance audit provisions were identified as a key to prevention 
regulations as a mechanism to evaluate and measure a facility's 
compliance with regulatory requirements. A compliance audit provision 
can provide facility management with a mechanism for oversight of 
implementation of discharge prevention practices, including 
documentation and follow-up actions. These provisions require 
facilities to identify compliance deficiencies or opportunities for 
improvement.
    The Agency originally determined that the compliance audit program 
element is addressed in one of the regulatory programs identified: RMP. 
Upon notice and comment review, the Agency identified two additional 
relevant regulatory programs that addressed this element: CWA NPDES 
MSGP for Industrial Stormwater and CWA Effluent Guidelines and 
Standards for Pulp, Paper and Paperboard Point Source Category. The EPA 
also found that compliance audits are addressed in at least one other 
federal regulation: OSHA PSM.
    One commenter stated compliance audits alone do not prevent 
releases, and further noted they were only identified as an RMP 
requirement. The commenter states that while compliance audits are not 
immaterial, their use could be expanded to ensure facilities stay in 
compliance with any current or future prevention requirements. The 
commenter agreed the compliance review discussed in the notice is 
appropriate to determine whether a facility has deficiencies and to 
correct those deficiencies, and that third-party audits could be useful 
to learn to what extent facilities need to correct shortcomings in 
prevention mechanisms, recognizing that discovery of those deficiencies 
could help prevent future hazardous releases.
    The Agency recognizes that while specific requirements for 
compliance audits were identified under RMP, CWA Effluent Guidelines 
and Standards for Pulp, Paper and Paperboard Point Source Category, and 
CWA NPDES MSGP for Industrial Stormwater (see the Supplemental BID in 
the docket to this action for additional details), there are other 
regulations with compliance duty provisions that may also serve to 
prevent and contain CWA HS spills. For example, applicable to all NPDES 
Permits are ``duty to comply'' requirements (see 40 CFR 122.41: 
Conditions applicable to all permits) requiring compliance with all 
conditions of issued permits. Finally, the Agency agrees that 
compliance audits may also be considered a response measure. 
Nonetheless, in implementing these provisions facilities may identify 
deficiencies or opportunities for improvements to process design and 
operational methods and may also identify procedures with the goal of 
preventing future discharges as well.
vii. Secondary Containment
    Secondary containment provisions were identified by the Agency as a 
key to prevention regulations, serving as 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 provides a temporary measure until appropriate actions are 
taken to permanently abate the source of the release. Provisions may 
include passive or active containment measures such as specific sizing 
requirements to contain worst-case discharges, or design specifications 
to address impervious construction. When properly designed and 
maintained, secondary containment can prevent discharges to waters 
subject to CWA jurisdiction.
    The Agency originally determined that the secondary containment 
program element is addressed in seven out of the 11 EPA regulatory 
programs identified: CWA NPDES MSGP for Industrial Stormwater (2015), 
SPCC, Pesticide

[[Page 46112]]

Management Regulation, RCRA Generators, RCRA TSDF, UST, and CWA 
Effluent Guidelines and Standards for Pulp, Paper and Paperboard Point 
Source Category. Upon notice and comment review, the Agency identified 
four additional regulatory programs that addressed this element: NPDES 
Pretreatment standards, TSCA PCB Regulation, and the CWA Effluent 
Guidelines and Standards for Ore Mining and Dressing Point Source 
Category and the CWA Effluent Guidelines and Standards for Pesticide 
Chemicals. The EPA had also identified that secondary containment 
requirements are addressed in at least two OSHA regulations (OSHA PSM, 
OSHA HAZWOPER), and in regulatory requirements under the MSHA and the 
SMCRA. For more information on other federal programs and corresponding 
regulations please see the BID and the Supplemental BID in the docket 
to this action.
    One commenter noted that, because the identified secondary 
containment provisions call for the use of liners, double-walled tanks, 
berms, drip pans, gutters, and other collection systems, they can be 
fairly described as prevention measures. The commenter also asserted 
that regulating the types of containers in which hazardous substances 
are stored may help to prevent leaks from occurring or prevent 
hazardous substances discharges to water and stated that expanding 
secondary containment into other standards such as RMP and EPCRA may 
also add layers of spill prevention.
    While the EPA programs and corresponding regulations reviewed vary 
in their standards for the required secondary containment, seven of the 
11 EPA programs originally reviewed were found to contain secondary 
containment provisions. For example, as highlighted in the supporting 
documents for the proposed action, the SPCC regulation 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. Similarly, secondary 
containment requirements were identified in other existing EPA 
programs, ranging from passive measures, to equivalent devices, to 
approvals by Regional Administrators. Amending the regulations 
identified as part of the existing prevention and containment framework 
is outside the scope of this action. However, nothing in this action 
precludes future regulatory actions for regulations identified as part 
of the existing EPA regulatory framework.
viii. Emergency Response Plan
    Emergency response plan requirements were identified by the Agency 
as a key provision for prevention regulations, focusing facility 
owners/operators to gather information and develop procedures needed to 
adequately respond in advance of a discharge. These plans identify 
steps for facility personnel to mitigate the severity and environmental 
impacts of a discharge, as well as for appropriate notifications to 
local, state and federal authorities (including notifications to 
potential drinking water receptors). While the Agency recognizes these 
may also be considered a response measure, emergency response planning 
provisions may also include procedures for expeditiously containing 
discharges.
    The Agency originally determined that the emergency response plan 
program element is addressed in eight out of the eleven EPA regulatory 
programs identified: NPDES MSGP for Industrial Stormwater (2015), RMP, 
SPCC, Pesticide Worker Protection Standard, RCRA Generators, RCRA TSDF, 
UST, and EPCRA Emergency Planning and Notification regulations. Upon 
notice and comment review, the Agency identified three additional 
regulatory programs that addressed this element: NPDES Pretreatment 
standards, TSCA PCB regulation, and CWA Effluent Guidelines and 
Standards for Pesticide Chemicals. The EPA had also identified that the 
emergency response plan program element is addressed in at least three 
OSHA regulations (OSHA Emergency Action Plans, OSHA PSM, OSHA 
HAZWOPER), and in regulatory requirements under MSHA, PHMSA, and SMCRA. 
For more information on other federal programs and corresponding 
regulations please see the BID and the Supplemental BID in the docket 
to this action.
    One commenter recognized that emergency response planning is 
critical to protecting the health, safety, and welfare of the public. 
However, the commenter stated that while emergency response plans 
provide for immediate response to releases of hazardous materials, they 
do nothing to actively prevent releases from occurring, similarly to 
safety information, making their consideration irrelevant in an action 
regarding spill prevention.
    Most of the EPA programs identified by the Agency have emergency 
response planning requirements for facilities to plan what immediate 
actions they will take in the event of a discharge. For example, as 
highlighted in supporting documents for the proposed action, the MSGP 
for Industrial Stormwater 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. 
Similarly, notification procedures are also frequently addressed by the 
identified EPA programs and corresponding regulations. Separately, 40 
CFR 117.21 requires immediate notification to the NRC of discharge of a 
reportable quantity of a CWA HS from vessels or onshore or offshore 
facilities as soon as there is knowledge of it.\13\ The NRC serves as 
an emergency call center that fields initial reports for pollution and 
railroad incidents and forwards that information to appropriate 
federal/state agencies for response.
---------------------------------------------------------------------------

    \13\ Anyone witnessing an oil spill, chemical release or 
maritime security incident should call the NRC hotline at 1-800-424-
8802. http://www.nrc.uscg.mil/.
---------------------------------------------------------------------------

ix. Coordination With State and Local Responders
    Coordinating with state and local responders is also identified by 
the Agency as key to prevention regulations. Coordination between 
facility personnel and state and/or local responders on emergency 
response plans allows for emergency responders' improved understanding 
of potential onsite hazards and better ensures an effective response 
following a discharge.
    The Agency originally determined that the program element for 
coordinating with state and local responders is addressed in four out 
of the eleven EPA regulatory programs identified: RMP, SPCC, RCRA 
Generators, RCRA TSDF, and EPCRA Emergency Planning and Notification. 
Upon notice and comment review, the Agency identified one additional 
relevant regulatory programs that addressed this element: NPDES 
Pretreatment standards. The EPA had also identified that coordination 
with state and/or local responders is addressed in at least one OSHA 
regulation (OSHA HAZWOPER), and in regulatory requirements under PHMSA. 
For more information on other federal programs and corresponding 
regulations please see the BID and the Supplemental BID in the docket 
to this action.
    One commenter stated that, regarding coordination with state or 
local emergency responders, EPCRA puts the

[[Page 46113]]

EPA on the right path toward meaningful spill prevention regulation. 
The commenter noted that SERCs and LEPCs use the information provided 
to them under EPCRA to make their own arrangements with facilities, 
while RMP and RCRA provide for information coordination with emergency 
response personnel including fire departments and police. The commenter 
also recognized that coordinated efforts with third parties would 
likely make the planning process more efficient for facilities and lead 
to better operational practices, and that sharing knowledge can 
increase confidence that release prevention mechanisms will work as 
intended. This commenter also submitted comments to the NODA published 
in the Federal Register on February 19, 2019 (Docket number EPA-HQ-
OLEM-2017-0444). The commenter expressed concerns that the Agency is 
focused on accident response rather than prevention, adding that 
accidental release prevention is not about emergency response, but is 
about efforts within the facility to identify sources of potential 
accidental releases and then to design their facility, or modify their 
operations, to prevent the releases. The commenter also stated 
facilities need good emergency preplanning done in conjunction with 
local first responders and the LEPC.
    As highlighted in supporting documents to the proposed action, 
LEPCs include representatives from the local community such as police, 
fire, civil defense, public health professionals and facility 
representatives. The LEPCs develop an emergency response plan for the 
community and provide information about chemicals in the community to 
citizens. Under EPCRA section 312(f), the facility owner or operator 
subject to Tier II reporting is required to provide access to the fire 
department to conduct an on-site inspection of the facility. Further, 
the facility is also required to provide the location information on 
hazardous chemicals at the facility. While the Agency agrees 
coordinating with state and local responders may also be considered a 
response measure, such coordination prior to any discharge could also 
help to contain and/or mitigate the impacts of a discharge (e.g., allow 
for a timely shutdown of downstream drinking water intakes).
2. Existing EPA Regulatory Programs
i. NPDES MSGP for Industrial Stormwater
    The NPDES MSGP for Industrial Stormwater includes requirements that 
address six of the nine identified program elements: Hazard review, 
mechanical integrity, incident investigations, compliance audits, 
secondary containment, and emergency response plan.
    Some commenters supported EPA's analysis of the NPDES MSGP's 
coverage of the program elements, with one commenter also recommending 
that EPA recognize that the NPDES MSGP for Industrial Stormwater also 
has requirements for incident investigations and compliance audits. The 
commenter stated that the current version of the NPDES MSGP requires 
permitted facilities to review and revise its Stormwater Pollution 
Prevention Plan (SWPPP) and to initiate immediate and follow-up 
corrective actions in the event of certain conditions or incidents, 
including an unauthorized release or discharge, a discharge that 
violates an effluent limit, a visual assessment that shows evidence of 
stormwater pollution, benchmark exceedances, or certain issues relating 
to stormwater control measures. The commenter asserted that permitted 
facilities are also required to immediately document the existence of 
any of above-described conditions, including an incident evaluation and 
a description of any measures taken to prevent the reoccurrence of the 
condition. The commenter stated that the NPDES MSGP for Industrial 
Stormwater includes requirements for facilities to document and report 
the cause of any incident or release, implement corrective actions, and 
revise its SWPPP to minimize the chance of future incidents or 
releases.
    The commenter asserted that the NPDES MSGP for Industrial 
Stormwater requires investigations and reporting that amount to a 
compliance audit. As part of the requirements, facilities must conduct 
inspections quarterly, and facilities must document their findings. 
Further, the commenter noted that facilities must also submit an Annual 
Report to EPA, which includes a summary of the past year's routine 
facility inspection documentation, a summary of the past year's 
corrective action documentation, and a description of any incidents of 
noncompliance, or a statement that the facility is compliant with the 
permit. Lastly, the commenter stated that facilities must review and 
revise their SWPPPs upon incidents of non-compliance and document the 
conditions triggering the incident of non-compliance and actions taken 
to minimize or prevent reoccurrence of releases.
    The Agency agrees with the commenters that requirements for 
incident investigations and compliance audits are included in the NPDES 
MSGP for Industrial Stormwater. This analysis is detailed in the 
Supplemental BID in the docket to this action.
    Other commenters did not support EPA's analysis of the NPDES MSGP 
for Industrial Stormwater relative to this action, stating that the 
NPDES MSGP is not intended to address spill-prevention for hazardous 
substances, but rather to mitigate pollution from stormwater discharges 
across industrial facilities. A commenter stated that hazardous 
substance spills are not a type of stormwater discharge under the NPDES 
MSGP nor are they a type of ``allowable non-stormwater discharge'' 
covered under the NPDES MSGP. The commenter stated that the provisions 
that touch on spill prevention are extremely high-level and are not 
tailored to hazardous substances under the CWA. The commenter further 
stated that these provisions, while perhaps detailed enough for the 
context of permitting stormwater discharges under the NPDES program, 
are far from adequate to satisfy the CWA's separate command that EPA 
issue specific spill-prevention regulations for hazardous substances.
    The commenter also stated that the NPDES MSGP cross-references 
spill-prevention plans under the SPCC regulation 12 times, with no 
suggestion the SPCC regulation, which is issued under the same 
statutory mandate and authority at issue in this rulemaking, is 
satisfied through compliance with the MSGP's spill-prevention 
guidelines. Furthermore, the commenter stated that the MSGP applies 
only in a few states, most territories, and most of Indian country, and 
that a permit that applies to such a small part of the United States 
cannot serve as the basis for EPA's refusal to issue the nationwide 
hazardous-substance spill-prevention regulations mandated by Congress.
    The Agency disagrees with these commenters because, as part of 
compliance with the NPDES MSGP, facilities are required to prepare a 
SWPPP prior to submitting a Notice of Intent (NOI) for permit coverage. 
The SWPPP is intended to document the selection, design, and 
installation of control measures to meet the permit's effluent limits 
plus document the implementation (including inspection, maintenance, 
monitoring, and corrective action) of the permit requirements. The 
SWPPP must be prepared in accordance with good engineering practices 
and to industry standards. While the Agency recognizes that the SWPPP 
is not directly intended to address emergency and/or unanticipated oil 
discharges, as is the case with an SPCC plan, the core

[[Page 46114]]

elements of a SWPPP enhance CWA HS discharge spill prevention. 
Additionally, in cases where the facility is subject to the SPCC 
requirements under 40 CFR 112, a facility's SWPPP can reference the 
relevant SPCC plan for oil spill prevention requirements.
ii. RMP Regulation
    The RMP regulation includes requirements that address eight of the 
nine program elements: Safety information, hazard review, mechanical 
integrity, personnel training, incident investigations, compliance 
audits, emergency response plan, and coordinating with state and/or 
local responders.
    Some commenters supported EPA's analysis of the RMP regulation, 
stating that to the extent that discharges of hazardous substances to 
water are caused by chemical accidents at RMP-regulated facilities/
substances, EPA should consider these discharged substances already 
comprehensively federally regulated. Another commenter asserted that 
RMP requires many steel mills to develop risk management plans to 
address the potential risks of a chemical spill and procedures for 
responding to an accidental release. The EPA acknowledges the 
commenters' support.
    Another commenter did not support EPA's review of the RMP 
regulation, stating that the RMP Rule covers only some of the CWA HS, 
and that of the 13 most commonly spilled CWA HS identified by EPA, only 
four (ammonia, chlorine, hydrochloric acid, and nitric acid) are 
covered under the RMP regulation. The commenter also stated that even 
for those hazardous substances, the threshold quantity for RMP is 
significantly higher than the CWA's reporting requirements for spills. 
The commenter further stated that EPA should evaluate the protections 
in the RMP Rule, including the risk evaluation, accident prevention, 
response planning, training, auditing, and incident investigation 
components within the RMP, and determine whether and how they can be 
adapted to apply the full suite of CWA HS. The commenter also stated 
that EPA relies on the incident investigation and compliance audit 
portions of the RMP Rule, while the agency is simultaneously proposing 
to remove those protections from the RMP Rule.
    The Agency recognizes there is not a complete overlap between the 
RMP regulation protections and the universe of potentially regulated 
CWA HS facilities. However, this action is not based on any individual 
provision and/or standalone regulatory program preventing CWA HS 
discharges, but rather on how the cumulative framework of key 
prevention and containment elements, as implemented through those 
existing EPA regulatory programs identified, meet the requirement to 
regulate CWA HS under section 311(j)(1)(C).
    The Agency examined current discharge prevention practices and 
technologies within existing EPA regulations that would be relevant to 
the prevention, containment, and mitigation of CWA HS discharges. The 
EPA also reviewed past CWA HS discharges to identify key elements that 
would serve to prevent, contain or mitigate impacts from CWA HS 
discharges in the future. Based on these analyses, the Agency 
identified the RMP regulation as a discharge prevention program within 
the framework of existing accident prevention regulations.
    As discussed in the FR notice to the proposed action, EPA analyzed 
the NRC data to identify those CWA HS most frequently discharged. The 
EPA updated this analysis to include the additional information from 
the voluntary survey. Of the currently designated CWA HS,\14\ 13 
substances accounted for most identified discharges, as well as most 
identified discharges with reported impacts: Polychlorinated Biphenyls, 
Sulfuric Acid (>80%), Sodium Hydroxide, Ammonia, Benzene, Hydrochloric 
Acid, Chlorine, Sodium Hypochlorite, Toluene, Phosphoric Acid, Styrene, 
Nitric Acid (fuming), and Phosphorus. These 13 CWA HS make up 
approximately 89 percent of all identified CWA HS discharges to water 
from non-transportation-related facilities and 83 percent of the 265 
identified CWA HS discharges with reported impacts. The EPA's analysis 
also found the 13 most frequently discharged CWA HS are subject to 
multiple regulatory programs which serve to prevent and contain CWA HS 
discharges. For example, sulfuric acid (covered by RMP if fuming) is 
also regulated by the Underground Storage Tank regulation, EPCRA 
Regulations, and the NPDES MSGP for Industrial Stormwater. The Agency 
recognizes the currently designated CWA HS and RMP regulated substances 
may not completely overlap. However, the Agency is taking this action 
based on the framework of key prevention elements, as implemented 
through the cumulative requirements identified within existing EPA 
regulations that are applicable to the universe of CWA HS and regulated 
facilities.
---------------------------------------------------------------------------

    \14\ See 40 CFR 116.4: The elements and compounds appearing in 
Tables 116.4 A and B are designated as hazardous substances in 
accordance with section 311(b)(2)(A) of the Act. This designation 
includes any isomers and hydrates, as well as any solutions and 
mixtures containing these substances. Synonyms and Chemical Abstract 
System (CAS) numbers have been added for convenience of the user 
only. In case of any disparity the common names shall be considered 
the designated substance.''
---------------------------------------------------------------------------

    Finally, the commenter mischaracterizes the chemical accident 
prevention provisions in 40 CFR part 68 (RMP Rule) as they are since 
the RMP Amendments (82 FR 4594, January 13, 2017) and as EPA has 
proposed to revise them in the RMP Reconsideration proposal (83 FR 
24850, May 30, 2018). The RMP Rule has had provisions for incident 
investigations and compliance audits since it was adopted in 1996 (61 
FR 31688, 31717, June 20, 1996). The RMP Amendments added additional 
provisions addressing these topics, and the RMP Reconsideration 
proposal has proposed to rescind or modify these additions. The 
proposal is taking comment on reverting to the pre-RMP Amendments 
provisions on these issues and not altogether removing the incident 
investigation or compliance audit requirements.
iii. SPCC Regulation
    The SPCC regulation includes requirements that address six of the 
nine program elements: Hazard review, mechanical integrity, personnel 
training, incident investigations, secondary containment, and emergency 
response plan.
    Several commenters supported EPA's analysis of the SPCC regulation, 
stating that EPA correctly concluded that the SPCC program applies to 
oil, including mixtures of hazardous substances and oil, and contains a 
range of requirements that include a general review of facility 
hazards, personnel training, incident investigation, and emergency 
response planning. Several commenters stated that many states also have 
established protective, state-specific SPCC regulations to prevent 
discharges of oil and hazardous substances and to address them when 
they occur.
    One commenter stated that many mining companies also treat 
substances with hazard characteristics similar to regulated oil-based 
products, comparable to those covered under a site's SPCC plan, as a 
best management practice. One commenter discussed that the SPCC 
regulation, including plans, secondary containment areas, and 
countermeasures, provides protection against hazardous substance 
discharges. One commenter stated that the SPCC regulation already 
requires facilities to develop and implement SPCC plans, conduct 
appropriate tank inspection

[[Page 46115]]

and testing in accordance with standards set by organizations such as 
the American Petroleum Institute and the Steel Tank Institute, install 
both general and sized secondary containment to prevent oil spills, and 
provide proper notification in the event of a spill.
    Several commenters stated that the scope of the existing SPCC 
regulation includes mixtures of oil, such as PCB-containing transformer 
oil. According to the commenters, this is noteworthy given that in 
EPA's review, PCBs were associated with more than 50 percent of CWA HS 
discharges to water. A commenter further stated that the Agency should 
specifically find that it has already directly fulfilled Congress' 
legislative mandate. A commenter noted that a majority of facilities in 
the electric power industry that possess CWA HS of any significant 
volume are also subject to SPCC plan regulations and must comply with 
these provisions. These regulations significantly impact these 
facilities' potential to discharge hazardous substances, even if these 
hazardous substances do not, by themselves, trigger the SPCC 
requirements.
    A commenter discussed that SPCC regulations, which address oil, and 
EPA's current proposed action, which addresses hazardous substances, 
serve the same legislative purpose: Preventing these materials from 
being discharged and containing these discharges if they occur. The 
commenter noted that a single mixture could have duplicative 
regulations that address the exact same congressional intent and the 
exact same risk.
    Alternatively, several commenters opposed EPA's analysis of the 
SPCC Rule. One commenter stated that the analysis does not appear to 
address a significant protective regulatory gap. The commenter noted 
that SPCC rules do not apply to facilities with aggregate aboveground 
storage tank capacity of 1,320 gallons or less, and only counts 
containers of oil with 55 gallons of capacity or greater when 
determining storage tank capacity. The commenter stated that many 
potential PCB-containing oil containers, such as transformers, may not 
be covered by SPCC protections, and therefore may not have been 
adequately assessed by this analysis. Several commenters stated that 
SPCC applies only to ``oil'' or ``oil mixed with other substances,'' 
thus facilities or tanks storing hazardous substances--but not oil--are 
not subject to the rule. Commenters also stated that the SPCC rule is 
an ideal model for a spill prevention and response regulation for 
hazardous substances and contains features that can be adopted into a 
robust hazardous substance spill prevention regulation.
    The EPA agrees with the comments that the SPCC prevention program 
elements serve as part of the larger framework of existing regulatory 
requirements identified in the proposed action, providing a holistic 
approach to CWA HS discharge prevention and containment. The EPA is 
basing this approach on an analysis of the frequency and impacts of 
reported CWA HS discharges, and on an evaluation of the existing 
framework of EPA regulatory requirements relevant to prevention, 
containment, and mitigation of CWA HS discharges. Additionally, the 
Agency recognizes other federal and state agency programs, as well as 
other industry standards, may also be effective in preventing and 
containing CWA HS discharges.
    The EPA acknowledges that the SPCC program applicability is 
generally limited to certain containers of oil and oil mixed with other 
substances, including oil mixed with CWA HS, as further defined in the 
SPCC regulations themselves. While recognizing that containers and 
related equipment with only CWA HS are not regulated under SPCC as per 
the SPCC regulations, the Agency believes the application of SPCC 
prevention program elements still serves as a model for good 
engineering practice within SPCC regulated facilities and can provide 
collateral improvements resulting in overall spill prevention. The 
Agency agrees with certain commenters that collateral improvements, 
such as drainage and containment elements of the SPCC regulation, can 
be applied on a facility-wide basis, which can also serve to prevent, 
contain and mitigate discharges from CWA HS containers. Likewise, where 
CWA HS and oil handling activities (e.g., operations, piping, storage 
containers) are co-located, the prevention elements of the SPCC program 
can also serve to prevent, contain and mitigate CWA HS discharges. This 
may also be important where containers and related equipment may be 
interchangeably used for both oil and CWA HS service: For example, 
operations, piping, and storage containers that meet the regulatory 
applicability and threshold requirements would be subject to the SPCC 
regulation.
    The EPA disagrees with those commenters that state the SPCC 
program, as part of the existing EPA regulatory framework, fails to 
functionally provide the spill prevention protections mandated under 
section 311 of the CWA. In the 40 years since CWA section 311(j)(1)(C) 
was enacted by Congress, EPA has established multiple statutory and 
regulatory requirements under different federal authorities that 
generally serve, directly and indirectly, to adequately prevent and 
contain CWA HS discharges. The Agency has identified the SPCC program 
as part of the larger framework of existing EPA regulations that 
implement cumulative discharge prevention requirements applicable to 
the universe of CWA HS and regulated facilities.
    The EPA acknowledges the SPCC regulation applies to certain 
containers of oil and oil mixed with other substances, including oil 
mixed with CWA HS. While containers designated for use with only CWA HS 
(i.e., containers not used interchangeably with oil) are not subject to 
the SPCC regulation, the Agency believes SPCC elements can serve to 
prevent and contain discharges where the operator chooses to apply the 
SPCC provisions facility wide. For example, elements of the SPCC 
regulation such as drainage and containment can be applied to include 
CWA HS containers and operations, thereby also serving to prevent 
discharges from CWA HS containers. Likewise, where CWA HS and oil 
handling activities (e.g., operations, piping, storage containers) are 
co-located, the prevention elements of the SPCC program can also serve 
to prevent and contain CWA HS discharges.
    The EPA also acknowledges that certain smaller facilities and 
containers may not be subject to SPCC because of its threshold 
applicability requirements, and that there may not be a complete 
overlap between SPCC protections and the universe of potentially 
regulated CWA HS facilities. However, this final action is not based on 
any individual provision, applicability threshold, and/or standalone 
regulatory program for the prevention of CWA HS discharges. The final 
action is based rather on the cumulative framework of key prevention 
elements, as implemented through the existing EPA regulatory programs 
identified, that have been demonstrated to adequately serve to prevent 
and contain CWA HS discharges.
iv. Pesticide Management and Disposal Regulation/Pesticide Agricultural 
Worker Protection Standard
    The Pesticide Management and Disposal regulation includes 
requirements that address three of the nine program elements: Hazard 
review, mechanical integrity, and secondary containment. EPA reviewed 
the Pesticide Agricultural Worker

[[Page 46116]]

Protection Standard and found that the program includes requirements 
which address three of the nine program elements: Safety information, 
personnel training, and emergency response plan.
    One commenter opposed EPA's analysis of the Pesticide Management 
Regulation and the Pesticide Agricultural Worker Protection Standard, 
stating that those regulations only apply to specific businesses in the 
agricultural industry, as the requirements only apply to chemicals that 
meet the definition of ``pesticide'' under the Federal Insecticide, 
Fungicide and Rodenticide Act (FIFRA). The commenter stated that 
according to EPA analysis for the proposed action, a little less than 
one-third of CWA HS may be used as pesticides. However, the commenter 
noted that the FIFRA definition requires that the substance also be 
``intended for'' pesticide use, and unless the CWA HS is actually 
``intended for'' use as a pesticide, the Pesticide Management Rule and 
the Pesticide Agricultural Worker Protection Standard spill-prevention 
requirements do not apply.
    The EPA agrees that the applicability criteria of the Pesticide 
Management regulation and the Pesticide Agricultural Worker Protection 
Standard may be limited to a subset of CWA HS and a subset of 
facilities. The EPA also recognizes that the applicability criteria for 
some of the regulatory programs which serve, in part, as the basis for 
this action do not rely solely on chemical identity but include other 
factors. The regulatory programs discussed in the proposed action were 
selected because they include discharge or accident prevention 
requirements and were identified as regulating at least either some CWA 
HS or some facilities that produce, store, or use CWA HS. The Agency's 
analysis indicates that, for all nine program elements, there are 
existing cumulative regulatory requirements for accident and discharge 
prevention relevant to CWA HS under the framework.
v. RCRA Standards Applicable to Generators of Hazardous Waste/RCRA 
Treatment, Storage, and Disposal Facilities (TSDF) Standards
    The RCRA Standards applicable to generators of hazardous waste 
includes requirements that address six of the nine program elements: 
Hazard review, mechanical integrity, personnel training, secondary 
containment, emergency response plan, and coordination with state and/
or local responders. EPA reviewed RCRA TSDF Standards and found that 
the program includes requirements that address six of the nine program 
elements: Hazard review, mechanical integrity, personnel training, 
secondary containment, emergency response plan, and coordination with 
state and/or local responders.
    Some commenters agreed with EPA's analysis of the RCRA regulations, 
stating that RCRA regulations require identification and safe storage, 
inspection, and shipping of wastes that are identified as hazardous due 
to ignitability, corrosivity, reactivity, or toxicity. The commenters 
also noted that the regulations subject storage and accumulation of 
wastes onsite to accumulation time limits; that hazardous waste 
containers and storage tanks, inspections, secondary containment, 
training, and spill response are addressed in the regulations; and that 
RCRA addresses pre-transportation packaging and labeling requirements 
for any hazardous wastes being shipped offsite. Some commenters stated 
that industrial facilities are subject to cradle-to-grave regulations 
governing the generation, storage, treatment, and disposal of hazardous 
waste, and that these regulations take into consideration the size and 
nature of wastes generated and create comprehensive regulatory 
framework for preventing and responding to releases.
    One commenter supported EPA's analysis approach and suggested that 
RCRA TSDF Standard meets all nine requirements of the program elements 
either based on direct regulatory requirements or requirements that 
accomplish the same goals as required under the CWA HS language. The 
commenter listed other regulations beyond the 40 CFR parts 264 and 265 
standards which TSDFs may also currently follow and stated those 
directly address requirements for each of the program elements. The 
commenter noted that TSDFs are required to follow OSHA safety 
information requirements to have SDSs available for any products that 
are kept or used at the facility. The commenter further noted that the 
proper operation of a TSDF requires that the facility know and 
understand the hazards associated with any material handled, which is 
accomplished with a detailed waste analysis plan required under 40 CFR 
264.13.
    The commenter noted that the requirements for incident 
investigations are met three ways: (1) Immediately after a release, the 
emergency coordinator must provide for treating, storing, or disposing 
of recovered waste, contaminated soil or surface water, or any other 
material that results from a release (40 CFR 264.56(g)); (2) 40 CFR 
264.56(i) requires documentation in the operating record of every time 
the contingency plan is implemented; and (3) TSDFs employ methods to 
prevent reoccurrence that include management team investigations of any 
releases. The commenter stated that if a release or incident is 
significant, the permitting authorities will often require an incident 
investigation, and that facilities regulated by OSHA PSM are also 
required to conduct an incident investigation when a significant event 
occurs under 29 CFR 1910.119(m).
    Regarding compliance audits, the commenter stated that 40 CFR 
264.73 requires every TSDF to keep an operating record. These records 
are maintained at the facility and are available for inspection. The 
commenter noted that in addition, facilities are required to 
immediately report any releases to the environment to the local 
authorities or the NRC and submit a written report to the Regional 
Administrator within 15 days of an incident.
    The EPA acknowledges these commenters' support that RCRA 
regulations contribute to the existing framework of prevention 
requirements that apply to CWA HS when these substances are also 
considered hazardous waste. The RCRA Standards Applicable to Generators 
of Hazardous Waste at 40 CFR part 262 establishes cradle-to grave 
hazardous waste management standards and include general preparedness 
and prevention requirements as well as specific requirements for 
containers and tank systems.
    The Agency recognizes the commenters' support for the inclusion of 
the RCRA TSDF Standard as part of the existing regulatory framework 
upon which this action is based; 40 CFR parts 264 and 265 establish 
minimum national standards for the acceptable management of hazardous 
waste. These standards include both facility-wide requirements such as 
good housekeeping provisions and unit-specific technical requirements 
designed to prevent the release of hazardous waste into the 
environment.
    The Agency did not identify TSDF Standard requirements specific to 
the safety information, incident investigation, and compliance audits 
prevention program elements. Nonetheless, EPA recognizes other 
applicable regulations and standards at these TSDF facilities may 
address these elements. For example, the commenter cited OSHA's Hazard 
Communication Standard (29 CFR 1910.1200) as a

[[Page 46117]]

requirement for TSDFs that may serve to meet the safety information 
program element. While relevant and of value in CWA HS discharge 
prevention, the Agency ultimately focused on programs within its 
authorities, and for which the requirements more directly address the 
key prevention program elements. In general, the Agency recognizes 
other federal, state, and industry programs and standards may also be 
effective in preventing CWA HS discharges.
    Further, the Agency notes the citations highlighted by the 
commenter (i.e., 40 CFR 264.56(g) and (i)) are not requirements 
specific to incident investigations, but rather to immediate emergency 
response and written incident reports within 15 days to the EPA 
Regional Administrator. These provisions differ from those of the 
incident investigation program element identified for this action, 
which focuses on identifying the cause of an incident to implement 
corrective actions to prevent future recurrences. Finally, the Agency 
disagrees that regulatory requirements for compliance audits are 
captured under the citations offered by the commenter for operating 
record requirements at 40 CFR 264.73. While useful to review if 
performing a compliance audit, it is not itself a compliance audit 
requirement. This likewise applies to the incident reports requirements 
cited by the commenter at 40 CFR 264.56(d)(2) and (i) are not 
themselves compliance audits.
    Alternatively, a commenter disagreed with EPA's analysis of the 
RCRA standards for generators of hazardous waste and the RCRA TSDF 
Standards, stating that the regulations address only a small part of 
the spill-prevention problem for CWA HS. The commenter stated that the 
regulations apply only to generators of hazardous waste, as defined 
under RCRA, and only some unquantified number of CWA HS would qualify 
as `hazardous' under RCRA. In addition, the commenter stated that the 
generator requirements apply only to ``waste'' and that definition does 
not cover chemicals that are being created, stored for use, or used at 
a facility. The commenter further stated that by focusing only on 
``waste'', the hazardous waste facility regulations capture only a 
sliver of the spill-prevention problem Congress intended CWA HS spill-
prevention regulations to address.
    The Agency recognizes that RCRA regulations apply to CWA HS when 
the CWA HS are considered hazardous wastes. However, the Agency 
identified these RCRA provisions regulations areas as part of a broader 
framework of existing regulations that address CWA HS. While there is 
not a complete overlap between these specific RCRA regulations and the 
universe of potentially regulated CWA HS facilities, this action is not 
based on any individual regulation and/or standalone regulatory program 
preventing CWA HS discharges, but rather on how the cumulative 
framework of key prevention elements, as implemented through those 
existing EPA regulatory programs identified, have been demonstrated to 
adequately serve to prevent and contain CWA HS discharges.
vi. Technical Standards and Corrective Action Requirements for Owners 
and Operators of USTs
    The Technical Standards and Corrective Action Requirements for 
Owners and Operators of USTs at 40 CFR part 280 (UST regulation) 
include requirements that address five of the nine program elements: 
Hazard review, mechanical integrity, personnel training, secondary 
containment, and emergency response plan.
    One commenter opposed EPA's analysis of the UST, stating that the 
regulation only addresses a subset of the facilities for which Congress 
has mandated that the President issue hazardous-substance spill-
prevention regulations under the CWA. The commenter specified that the 
UST regulation, issued pursuant to a statutory mandate in RCRA, applies 
only to underground tanks, which it defines, subject to several 
exceptions, as any one tank, or combination of tanks (including 
underground pipes connected thereto) that is used to contain an 
accumulation of regulated substances, and the volume of which 
(including the volume of underground pipes connected thereto) is 10 
percent or more beneath the surface of the ground. The commenter added 
that portions of the UST regulation apply to so-called `hazardous 
substance UST systems,' which generally includes UST systems storing 
more than 110 gallons of any CWA HS. The commenter stated that the UST 
regulation does not apply to above-ground storage tanks or any other 
non-transportation-related onshore facilities that do not meet the 
definition of an underground storage tank.
    Relative to the UST regulations authorized by the Solid Waste 
Disposal Act, as amended (commonly known as RCRA), the EPA agrees the 
applicability criteria may be limited to a subset of CWA HS and a 
subset of facilities handling CWA HS. EPA also recognizes that the 
applicability criteria for some of the regulatory programs which serve, 
in part, as the basis for this action do not rely solely on chemical 
identity but include other factors as well. For example, EPA noted in 
the proposed action that requirements for USTs apply to CWA HS when 
present in UST systems greater than 110 gallons in capacity. The 
regulatory programs discussed in the proposed action 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. The Agency's 
analysis indicated that, for all nine program elements, there are 
existing cumulative regulatory requirements for accident and discharge 
prevention and containment relevant to CWA HS under various EPA 
programs.
vii. EPCRA Emergency Planning and Notification
    The EPCRA Emergency Planning and Notification regulations include 
requirements that address two of the nine program elements: Emergency 
response plan and coordination with state and local responders.
    Several commenters supported EPA's analysis of the EPCRA Emergency 
Planning and Notification regulations. One commenter stated that these 
programs cover all CWA HS that may be found at a steel mill and require 
detailed notification to emergency responders and reporting for each 
such chemical. Another commenter agreed with EPA's assessment of 
existing regulatory coverage, explaining that the EPCRA Emergency 
Planning and Notification regulations establish a Threshold Planning 
Quantity (TPQ) for Extremely Hazardous Substances (EHS) present at a 
mine site, and require that, if an EHS is present above the TPQ, 
information be submitted to the SERC. The commenter also noted that 
additionally, under EPCRA, emergency release notifications for EHS or 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) hazardous substances are required. EPA acknowledges 
commenters' support of EPA's analysis of the EPCRA regulations, 
including as applied to CWA HS at specific facilities.
    Some commenters opposed EPA's analysis of the EPCRA Emergency 
Planning and Notification regulations, stating that a majority of CWA 
HS are not covered by the Emergency Planning Rule's requirements. One 
commenter asserted that the EPCRA Emergency Planning Rule's 
requirements to facilitate development of state and local emergency 
response plans apply, with limited exception, only to facilities with 
an EHS above threshold planning

[[Page 46118]]

quantities onsite, and stated that fewer than 20 percent of CWA HS are 
listed EHS under EPCRA. The commenter stated that of the 13 most 
commonly spilled CWA HS, only five (ammonia, chlorine, hydrogen 
chloride, nitric acid, and sulfuric acid) are listed as EHS under EPCRA 
regulations.
    Another commenter discussed EPCRA requirements generally and stated 
that there was a lack of clarity in how the analysis of protection 
provided by EPCRA regulations ensures that water quality will not be 
compromised. The commenter stated that EPCRA applies to substantial 
quantities of a limited universe of hazardous substances and is 
intended to prevent large scale community harm from a catastrophic air 
release, not prevent chronic community and ecological harm via water 
quality degradation through a drainage release pathway, and urged EPA 
to clarify and reassess the analysis in this proposed rulemaking and to 
eliminate any protective factors from the analysis that do not directly 
affect risk to water quality.
    EPA disagrees that the applicability criteria of the EPCRA 
notification requirements is limited to a subset of CWA HS for 
emergency release notification. The emergency release notification 
requirements under 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 designated CERCLA hazardous substance; 
all CWA HS are defined as CERCLA hazardous substances.
    EPA agrees the applicability criteria of the EPCRA emergency 
planning requirements are limited to a subset of CWA HS. The emergency 
planning requirements under 40 CFR part 355 apply to facilities with an 
EHS onsite in amounts equal to or greater than its designated TPQ. The 
list of EHS is codified in Appendices A and B of 40 CFR part 355 and 
includes substances that are also designated as CWA HS. Although the 
EPCRA emergency planning requirement is for facilities that handle 
EPCRA EHS, many LEPCs now also include planning for other hazardous 
chemicals that are reported on the Tier II form under section 312 of 
EPCRA.
    The applicability criteria for the identified regulatory programs, 
which serve in part as the basis for this action, do not always rely on 
chemical identity, and includes other factors. Thus, the Agency 
recognizes that while all the identified regulations include at least 
some CWA HS within their applicability criteria, the extent to which 
they serve to prevent and contain CWA HS discharges may be impacted by 
how broadly or narrowly they regulate those substances within any 
specific facility. However, the Agency again notes that this final 
action is not based on any individual provision and/or program 
preventing CWA HS discharges, but rather on how the cumulative 
framework of key prevention elements, as implemented through existing 
EPA regulatory programs, has been demonstrated to adequately serve to 
prevent, contain and mitigate CWA HS discharges.
viii. EPCRA Hazardous Chemical Inventory Reporting
    The EPCRA Hazardous Chemical Inventory Reporting regulation 
includes requirements that address two of the nine program elements: 
Safety information and hazard review.
    Several commenters supported EPA's analysis of the EPCRA Hazardous 
Chemical Inventory Reporting regulation as it relates to the safety 
information and hazard review. One commenter, however, asserted that 
there is potentially another prevention program element under the EPCRA 
Hazardous Chemical Inventory Reporting regulation that was not 
identified as relevant in EPA's analysis: Incident investigations. The 
commenter explained that pursuant to the EPCRA regulation found at 40 
CFR 355.40(a), a facility must include in its immediate notification 
several pieces of information that require incident investigation 
including: The chemical name or identity of any substance involved in 
the release; an estimate of the quantity of any such substance that was 
released into the environment; the time and duration of the release; 
the medium or media into which the release occurred; and any known or 
anticipated acute or chronic health risks associated with the 
emergency. The commenter also noted that, except for releases that 
occur during transportation, the facility must provide a follow-up 
written emergency notice including: (1) A description of any actions 
taken to respond and contain the release; (2) state any known or 
anticipated acute or chronic health risks associated with the release; 
and (3) where appropriate, provide advice regarding the medical 
attention necessary for exposed individuals. The commenter further 
stated that incident investigation typically includes identification of 
the incident, a determination of why the incident occurred, and a 
determination of appropriate actions to remedy the incident or prevent 
future incidents. The commenter asserted that the EPCRA Hazardous 
Chemical Inventory Reporting Regulations require these components so 
that the facility can submit a mandatory report. As a facility is 
required to create a notification that includes the above parameters, 
it must first investigate the incident to determine what the release 
was, how it occurred, and identify appropriate follow-up actions.
    The Agency recognizes these commenters' support for this action. 
However, the Agency disagrees with the commenters that the EPCRA 
Hazardous Chemical Inventory Reporting Regulations, in essence, require 
incident investigations. The highlighted notification requirements the 
commenter offers as relevant to incident investigation provisions 
(e.g., chemical name, estimate of quantity released, media release 
occurred into, necessary medical attention) focus on facility reporting 
requirements to state and local officials, including information on 
releases at the facility which must also be made available to the 
public. For hazardous chemicals designated under the OSHA and its 
implementing regulations, the EPCRA hazardous chemical inventory 
reporting provisions require facilities to provide their stored amounts 
and storage location, as well as their potential hazard(s). The Agency 
believes that while the information within the reporting requirements 
highlighted by the commenter may also be included as part of incident 
investigations, the focus of an incident investigation is to determine 
the cause of a CWA HS discharge, to identify ways to prevent 
recurrence, to document the investigation's findings, and to implement 
appropriate corrective actions. Again, while the EPCRA provisions 
highlighted in this section do not include requirements for incident 
investigation, LEPCs may use an actual event to update the LEPC 
emergency response plan and to plan for any potential events in the 
future. As stated in the above section of this document, many LEPCs 
focus their emergency planning efforts on all OSHA hazardous chemicals, 
which include EPCRA EHSs.
    In contrast, some commenters disagreed with EPA's analysis of the 
EPCRA Hazardous Chemical Inventory Reporting rules. One commenter urged 
EPA to address limitations regarding the implementation of EPCRA. The 
commenter explained that according to an article by Benjamin et al. 
(2018),\15\ while EPCRA requires industry to report the storage, use, 
and releases of

[[Page 46119]]

hazardous substances to federal, state, and local governments, it is 
often the most difficult data for utilities to obtain for an entire 
geographic area because of restrictions mandating how requests must be 
submitted, and because data can be accessed only after a request is 
fulfilled. The commenter noted that the article by Benjamin et al. 
singles out the requirement where requests made under EPCRA must be 
made by individual facility name and address, which requires utilities 
to have knowledge of all facilities in their area that may have 
chemical storage tanks on site. These restrictions mean that utilities 
often do not have all the information they need to prepare for the 
possibility of a future spill. Another commenter also noted that there 
is no requirement in any current regulation for facilities to alert 
downstream utilities once a spill has occurred.
---------------------------------------------------------------------------

    \15\ Benjamin, J., Smith, E., Kearns, M., Rosen, J., and 
Stevens, K. (2018). Improving Water Utilities' Access to Source 
Water Protection and Emergency Response Data. Journal AWWA. 110:2. 
E33-E44.
---------------------------------------------------------------------------

    Another commenter stated that the EPCRA Hazardous Chemical 
Inventory Reporting requirements have a limited reporting regime, and 
that EPA should establish a more robust reporting regime for CWA HS, 
including requiring reporting directly to EPA, as well as local and 
state authorities. The commenter also stated that while reporting is 
critical, it alone does not prevent spills.
    As the Agency highlighted in the proposed action, the EPCRA 
Hazardous Chemical Inventory Reporting regulation 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. These reporting requirements under 40 CFR part 370 were 
identified to reflect both the Safety Information and Hazard Review 
program elements. As part of prevention planning, owners/operators must 
maintain and review safety information about the chemicals they handle, 
as well as 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. Likewise, 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, contain and mitigate CWA HS discharges.
    The Agency disagrees the EPCRA Hazardous Chemical Reporting 
requirements should include directly reporting to EPA. The purpose of 
these requirements is to provide the public with important information 
on the hazardous chemicals in their communities, raising community 
awareness of chemical hazards and aiding in the development of State 
and local emergency response plans. The Agency believes such a 
requirement would unnecessarily increase burden on a reporting facility 
when the intent is to ensure local communities are aware of chemical 
hazards.
    The Agency recognizes that while all the identified regulations 
include at least some CWA HS within their applicability criteria, the 
extent to which they serve to prevent, contain and mitigate CWA HS 
discharges may be impacted by how broadly or narrowly they regulate 
those substances within a facility. However, EPA disagrees that the 
applicability criteria of the EPCRA Hazardous Chemical Inventory 
Reporting regulation cover a limited universe of hazardous substances. 
The applicability of EPCRA reporting requirements under 40 CFR part 370 
is tied to the OSHA HCS (29 CFR 1910.1200(g)). This OSHA standard 
requires that, for each hazardous chemical, the chemical manufacturer, 
distributor, or importer provide Safety Data Sheets (SDSs) to 
downstream users to communicate information on their hazards. Given 
that OSHA requires SDSs for all designated CWA HS, the EPCRA Inventory 
reporting requirements under 40 CFR part 370 apply to facilities 
handling any designated CWA HS.
    The EPA recognizes recent statutory amendments to EPCRA to require 
state and tribal emergency response commissions to notify the 
applicable State agency (i.e., the drinking water primacy agency) of 
any reportable releases and provide community water systems with 
hazardous chemical inventory data. The EPA published a factsheet on its 
website \16\ which provides information on these amendments for SERCs, 
Tribal Emergency Response Commissions (TERCs), and LEPCs.
---------------------------------------------------------------------------

    \16\ https://www.epa.gov/sites/production/files/2019/04/documents/awia_epcra_fact_sheet_draft_508_serc_terc_lepc_final_4-10-19.pdf.
---------------------------------------------------------------------------

    The Agency again notes that this action is not based on any 
individual provision and/or program preventing CWA HS discharges, but 
rather on how the cumulative framework of key prevention elements, as 
implemented through existing EPA regulatory programs, adequately serves 
to prevent and contain CWA HS discharges.
ix. Pulp, Paper and Paperboard Effluent Guidelines
    As highlighted in the proposed action, the CWA Effluent Guidelines 
and Standards for Pulp, Paper and Paperboard Point Source Category 
include requirements that address six of the nine program elements: 
Hazard review, mechanical integrity, personnel training, incident 
investigations, compliance audits, and secondary containment.
    A commenter supported EPA's analysis of the CWA Effluent Guidelines 
and Standards for Pulp, Paper and Paperboard Point Source Category, and 
suggested inclusion of additional program elements. The commenter 
advocated that the regulation includes requirements for all nine 
program elements, and that EPA should recognize the requirements 
related to safety information, hazard review, compliance audits, 
emergency response plan, and coordinating with state/local responders.
    The EPA agrees with the commenter that the CWA Effluent Guidelines 
and Standards for Pulp, Paper and Paperboard Point Source Category have 
requirements on hazard review and compliance audits; however, the 
Agency did not identify requirements specific to safety information, 
emergency response plans, and coordinating with state/local responders 
on emergency response plans.
    In contrast, a commenter disagreed with EPA's analysis of the CWA 
Effluent Guidelines and Standards for Pulp, Paper and Paperboard Point 
Source Category because the guidelines address only a subset of non-
transportation-related onshore facilities that store or use CWA HS.
    The EPA disagrees with the comment because the Best Management 
Practice (BMP) requirements of 40 CFR 430.03 and related effluent 
limitations found in 40 CFR 430.24 and 40 CFR 430.54 (for specific CWA 
HS that may be present in effluents from Subpart B and E mills) serve 
to prevent and contain discharges of CWA HS. For the other mill 
subcategories under 40 CFR 430, and require permit limits for specific 
CWA HS (related to the use of certain biocides) unless the permittee 
has certified to the permit-issuing authority that they are not using 
these certain biocides.
x. Other EPA Regulatory Programs
    Several commenters highlighted other EPA regulations not considered 
for the proposed action as having applicable discharge prevention 
requirements, including multiple regulations

[[Page 46120]]

governing aboveground and underground storage tanks. Specifically, the 
commenters characterized requirements within other EPA programs they 
believe provide further accident discharge prevention requirements, as 
follows:
     NPDES Permits: Some commenters asserted that NPDES permits 
contain effluent limitations and other conditions designed to ensure 
that any discharges from the point source do not cause or contribute to 
a violation of an applicable water quality standard, including 
narrative standards. One commenter asserted that while the Pulp and 
Paper Effluent Guidelines that EPA identified in the proposed action 
contain specific BMP requirements designed to avoid discharges from 
mill processes into the mill sewer system that concern and response 
applies to other types of facilities as well. A commenter asserted many 
of the EPA effluent guidelines for other point source categories 
effectively require or create a strong incentive for covered facilities 
to implement similar measures to prevent or contain spills that 
otherwise would go into the facility's sewer and impact its wastewater 
treatment plant.
     NPDES SWPPPs: A commenter asserted that many facilities 
are required to develop SWPPP under the requirements of their 
individual NPDES permits. The commenter asserted that under these 
requirements, facilities are required to conduct site-wide evaluations 
and identify all potential pollutant sources, describe maintenance and 
inspection procedures for points of discharge, and maintain robust 
records of inspections and any required follow-up maintenance of BMPs.
     NPDES Pretreatment Program: Some commenters asserted that 
because a large number of facilities that may store or use hazardous 
waste substances are subject to EPA pretreatment standards under CWA 
Sec.  307, this creates a substantial regulatory infrastructure which 
encourages industrial users of POTWs to avoid hazardous substance 
spills and to contain them if they occur.
     CWA Citizen Suit Provision: A commenter asserted that the 
CWA's frequently used citizen suit provision allows any citizen to 
commence a civil action against a mining company for an unpermitted 
point source discharge into a navigable water, which provides for 
additional incentives to avoid unplanned discharges resulting from 
spills.
     CERCLA: Some commenters asserted that facilities likely to 
be affected by additional CWA HS regulations are already aware of 
potential liability under CERCLA, which creates a strong incentive for 
companies to monitor and control the potential release of hazardous 
substances.
     RCRA Corrective Action Program and RCRA Imminent Hazard 
Provisions: Some commenters asserted that CWA HS may also be subject to 
cleanup requirements for releases of hazardous waste, under the 
Resource Conservation and Recovery Act (``RCRA'') Corrective Action 
program, and under the imminent hazard provisions of RCRA Sec.  7003 
for releases of hazardous and non-hazardous solid waste. A commenter 
asserted that, like CERCLA, RCRA cleanup liability has created a strong 
incentive for companies to monitor and control the potential release of 
hazardous substances.
     Toxic Release Inventory (TRI): A commenter asserted that 
there is large overlap between CWA HS and chemicals reported under TRI, 
which already requires extensive inventory reporting. A commenter 
stated that EPA should recognize that TRI and similar federal and state 
reporting requirements can be as effective in motivating facilities to 
prevent and contain hazardous substance discharges as can traditional 
command-and-control regulations such as the alternatives considered in 
the Proposed Action, if not more so.
     TSCA: A commenter noted that TSCA directly regulates PCBs 
(along with SPCC), and that certain of these regulations specifically 
address the regulatory program elements identified by EPA as pertaining 
to CWA HS discharges and are designed with the express intent to 
contain any potential discharge from escaping into the environment.
     Safe Drinking Water Act (SDWA): A commenter stated that 
the potential for hazardous substance releases is addressed through 
regulations promulgated pursuant to the SDWA.
    The EPA recognizes that other of its regulatory programs may also 
create incentives for implementing prevention, containment and 
mitigation measures. However, for the purposes of this final action the 
Agency identified specific EPA regulatory programs that contain 
requirements to address the key prevention program elements. For 
example, the Agency's review of its existing regulatory programs 
included the Effluent Guidelines requirements for the Pulp, Paper, and 
Paperboard Industry promulgated at 40 CFR part 430; this specific 
review was included because of its provisions for spill prevention and 
control measures and the requirement to develop a BMP. The relevant 
BMPs (Subparts B and E of part 430) to prevent spills and leaks of 
spent pulping liquor, soap, and turpentine apply specifically to direct 
and indirect discharging pulp, paper, and paperboard mills with pulp 
production.
    The EPA identified similar requirements under five CWA Effluent 
Guidelines and Standards. For the Ore Mining and Dressing Point Source 
Category standard, EPA found that these effluent guidelines contain 
requirements for two program elements: Mechanical integrity and 
secondary containment. For the Transportation Equipment Cleaning Point 
Source Category standard, EPA found that these effluent guidelines 
contain requirements for one program element: Hazard review. For the 
Construction and Development Point Source Category standard, EPA found 
that these effluent guidelines contain requirements for one program 
element: Hazard review. For the Concentrated Aquatic Animal Production 
Point Source Category standard, EPA found that these effluent 
guidelines contain requirements for two program elements: Mechanical 
integrity and personnel training. Finally, for Pesticide Chemicals 
standard, EPA found that these effluent guidelines contain requirements 
for three program elements: Mechanical integrity, secondary 
containment, and emergency response plans. For further details on these 
requirements, please see the Supplemental BID.
    Likewise, the Agency is aware that some individual NPDES permits 
may include SWPPPs, which in turn may contain requirements for the 
development of spill prevention and response plans as part of BMPs. 
However, because the entities issuing these permits have discretion 
whether to require any specific BMPs that may include a spill 
prevention plan on an individual facility basis, the Agency is not 
considering them as part of the basis for this final action. The Agency 
recognizes that, similar to the discretionary nature of certain program 
elements for NPDES Pretreatment Standards, individual entities may 
have, on a case-by-case basis, requirements that may also serve to 
prevent and contain CWA HS discharges. In contrast, for facilities 
subject to the SPCC regulation under 40 CFR part 112, the requirement 
to prepare an SPCC Plan and to implement an SPCC program is non-
discretionary. Nonetheless, the Agency recognizes provisions under 
other programs may serve to further support the framework of regulatory 
requirements that would serve to prevent and contain CWA HS discharges.

[[Page 46121]]

    Regarding the NPDES Pretreatment Program, EPA agrees with the 
commenters and identified requirements for seven of the program 
elements: Safety information, hazard review, mechanical integrity, 
personnel training, secondary containment, emergency response plan, and 
coordinating with state/local responders. For details on these 
requirements, please see the Supplemental BID in the docket for this 
action.
    While EPA did not point to specific program elements under CWA 
Citizen Suit, CERCLA and/or RCRA cleanup liability, or TRI and/or 
similar federal and state reporting requirements as program elements in 
EPA's discharge and accident prevention programs, the Agency recognizes 
that these provisions may also serve as a deterrent to CWA HS 
discharges.
    Regarding TSCA PCB regulations, EPA agrees with the commenter and 
identified requirements for five of the program elements: Safety 
information, hazard review, mechanical integrity, secondary 
containment, and emergency response plans. For details on these 
requirements, please see the Supplemental BID in the docket for this 
action.
    Regarding SDWA regulations, EPA did not include SDWA in its program 
review. There are no specific regulations regarding CWA HS in SDWA. 
However, under the provisions of the 1996 SDWA Amendments (Pub. L. 104-
182, Section 1453), states exercising primary enforcement 
responsibilities for public water systems were required to complete 
source water assessments by the end of 2003. Source Water Assessments 
developed by states were intended to assist local governments, water 
utilities, and others in identifying and prioritizing risks, mitigation 
options, and preparedness measures.
    The Agency recognizes that several EPA regulations address 
aboveground and underground storage tanks, for example the UST 
regulations. The proposed action, BID and Supplemental BID include 
background on EPA regulations for aboveground and underground storage 
tanks that would apply to CWA HS.
    Table 2 summarizes the provisions relevant to program elements 
identified in EPA regulatory programs reviewed both in the BID and in 
the Supplemental BID, that adequately serve to prevent and contain CWA 
HS discharges.
BILLING CODE 6560-50-P

[[Page 46122]]

[GRAPHIC] [TIFF OMITTED] TR03SE19.000


[[Page 46123]]


[GRAPHIC] [TIFF OMITTED] TR03SE19.001


[[Page 46124]]


[GRAPHIC] [TIFF OMITTED] TR03SE19.002

BILLING CODE 6560-50-C
    Though not shown in Table 2, the Agency also reviewed associated 
program elements or specific requirements, identified as sub-elements 
(e.g., under the emergency response plan program element, sub-elements 
include requiring information about appropriate medical treatment of 
exposures and procedures for notifying downstream receptors). While 
inclusion of the sub-elements varies considerably across programs, EPA 
found the majority were addressed in at least one EPA program and 
corresponding regulation, with most addressed in several programs. A 
detailed analysis of the EPA regulations that address the nine program 
elements is contained in the BID for the proposed action, as well as in 
the Supplemental BID for this final action, both of which are available 
in the docket.
    This analysis identifies relevant prevention requirements for the 
existing regulatory framework currently applicable to facilities that 
manufacture, store, produce, use, or otherwise handle CWA HS. The 
Agency acknowledges, however, that it does not necessarily

[[Page 46125]]

gauge the extent to which each prevention element is addressed by the 
specific provisions. The precise relevance and coverage of existing 
regulatory requirements to the nine program elements will depend on 
site-specific information, which is not always available for a nation-
wide analysis. The basis for the final action relies on existing EPA 
framework of regulatory requirements coupled with the frequency and 
impacts of reported CWA HS discharges.
xi. Other Federal and State Regulations
    While they were not the basis for the Agency's decision for this 
final action, EPA identified OSHA Regulations, MSHA Regulations, PHMSA 
Hazardous Materials Regulations, and Office of Surface Mining 
Reclamation and Enforcement (OSMRE) Regulations spill prevention 
requirements that may be applicable to CWA HS. EPA also identified 
several state regulations addressing spill prevention requirements that 
may be applicable to CWA HS.
    Several commenters agreed with EPA's analysis of other federal and 
state regulations. Many of these commenters offered additional federal 
and state programs that they believe serve to prevent and contain CWA 
HS. Alternatively, one commenter noted that EPA identified only 14 
states that regulate the proper handling and storage of chemicals to 
prevent accidents and discharges, and that no state appears to provide 
for all CWA HS the full panoply of spill-prevention program elements 
identified by EPA in its proposal.
    The Agency acknowledges the comments providing additional federal 
and state regulations that may serve to prevent and contain CWA HS. 
However, the basis for this final action are the existing EPA 
regulatory requirements relevant to prevention and containment. 
Nonetheless, the Agency recognizes that other federal and state 
regulatory programs, as well as other non-regulatory programs and 
industry standards, may be applicable and relevant to CWA HS discharge 
prevention, containment and mitigation.

E. Comments on Additional Efforts To Gather Data

    The Agency signaled in the proposed action its intent to supplement 
the information used as the basis for its determination with an 
additional information collection through a voluntary survey. The 
voluntary survey was distributed to U.S. states, tribes, and 
territories and requested information on EPCRA Tier II facilities, 
discharges and impacts of hazardous substances to surface waters from 
2007 to 2016, and existing state programs in place to help prevent and 
mitigate the impacts of discharges of hazardous substances to surface 
waters. The EPA anticipated using the results of the survey to further 
inform this regulatory action.
    Several commenters offered comments on the proposed action in 
support of the Agency's voluntary survey effort. Some of the commenters 
stated the Agency should have waited to issue the proposed action until 
it had the information from the voluntary survey, with one questioning 
how the EPA could reach the determination that no regulation was needed 
without first consulting the States, Tribes, and territories who have 
developed such programs and regulate hazardous substance facilities. 
Commenters also requested that EPA make the information received 
through the voluntary survey available for public comment before taking 
final action.
    As previously noted in this FR notice, on June 22, 2018, the Agency 
issued a voluntary survey directed at State and Tribal Emergency 
Response Coordinators (respondents with custodial responsibility for 
data representing the potentially affected ``facility universe'' that 
produce, store, or use CWA HS), as well as state, tribal, and 
territorial government agencies with custodial responsibility for data 
on CWA HS impacts to drinking water utilities and fish kills 
potentially caused by discharge(s) of CWA HS. The EPA received relevant 
responses from 15 states: Alabama, California, Delaware, Hawaii, 
Indiana, Kentucky, Maryland, Massachusetts, Minnesota, Missouri, New 
Hampshire, New Mexico, Oregon, Rhode Island, and Texas. The Agency made 
available the data it obtained in response to the voluntary survey 
through Regulations.gov at Docket ID: EPA-HQ-OLEM-2017-0444, provided 
notice of its availability on the EPA website for this action, and 
provided direct notice to the litigants in the S.D.N.Y. litigation that 
the data was available. Additionally, on February 19, 2019, the EPA 
published a NODA making the survey data received available for public 
review and comment.
    Three comments submitted on the NODA supported the additional data 
gathering efforts and the public availability of the responses. One 
commenter stated that making spill data available allows the public to 
hold the EPA and industries accountable for hazardous waste spillage, 
and citizens to make informed decisions on where they live or how their 
environment may be impacting them. One stated that, while it is 
important to provide this data to the public, it is more important to 
enact regulations that monitor how hazardous substances enter water, 
further citing hydraulic fracturing as just one way these hazardous 
materials enter our waterways. EPA agrees with the comments that 
support making the voluntary data publicly available.
    The Agency considered the supplemental data received in response to 
the survey and associated public comments to further inform this final 
action. The Agency analyzed the data received through the voluntary 
survey to identify new, potentially relevant discharges and impacts 
(i.e., could not be matched to those identified in the proposed 
action), as well as to refine the facility universe analysis.
1. Discharge Estimates and Impacts Analysis
    The Agency compared the number of newly identified discharges, and 
discharges with newly identified reported impacts, to a subset of 
discharges of CWA HS from non-transportation-related sources presented 
in the proposed action, for the 13 states analyzed.\17\ From the NRC 
data, the Agency had identified 2,491 potentially relevant discharges 
and 117 discharges with impacts nationwide. The EPA identified an 
additional 159 discharges and 148 discharges with impacts, from the 13 
states. For the revised total including data from the voluntary survey, 
EPA identified a subset of 265 discharges with impacts from a total of 
2,650 historical, in-scope CWA HS discharges. Impacts included fish 
kills, evacuations, injuries, hospitalizations, fatalities, sheltering 
in place, waterway closures, water quality alerts/events/advisories, 
and water supply contamination.
---------------------------------------------------------------------------

    \17\ Data from the 13 states analyzed includes data from 10 
states that responded to the voluntary survey and fish kill data 
from three states which EPA had received for the proposed action. A 
full analysis of the voluntary survey data can be found in Appendix 
B of the Regulatory Impacts Analysis, included in the docket for 
this action.
---------------------------------------------------------------------------

2. Facility Universe Estimates
    To estimate the universe of facilities that would potentially be 
subject to the proposed action, the Agency reviewed EPCRA Tier II 
reports submitted by 16 states and extrapolated the data nationally 
based on NAICS codes. EPA received Tier II reports submitted by two 
states from the ICR. EPA already had Tier II reports from one of these 
states--Minnesota. The Agency added the Tier II reports from the second 
state, Delaware, to the analysis to estimate a

[[Page 46126]]

revised facility universe. Using Tier II reports for 2014, 2015, or 
2017 (the latest available) submitted to 17 states, there are an 
estimated 108,000 potentially regulated facilities nationwide. A full 
analysis of the voluntary survey data can be found in Appendix B of the 
RIA, included in the docket for this action.

F. Comments on Alternative Regulatory Options Considered

1. Prevention Program
    The Agency considered proposing a CWA HS discharge prevention and 
containment program that would include provisions to address all nine 
prevention program elements: Safety information, hazard review, 
maintenance/mechanical integrity, personnel training, incident 
investigations, compliance audits, secondary containment, emergency 
response plan, and coordination with state and local responders. 
Following an analysis of the existing framework and of the frequency of 
CWA HS discharges and the causes and impact of such discharges, EPA 
chose not to propose this approach, in part because the data suggest 
that the existing framework of regulatory requirements adequately 
serves to prevent and contain CWA HS discharges. The EPA requested 
comment on whether to develop a CWA HS prevention program.
    Many commenters supported adoption of a Prevention Program, with 
the Agency receiving similar comments in a mass mailer that facilities 
handling hazardous substances should develop comprehensive plans to 
prevent discharges into water. One commenter further urged EPA to issue 
regulations that at a minimum prevent spills, ensure spills are 
contained and cleaned up expeditiously, and ensure the public has the 
information that the commenter believes it needs to avoid harm. The 
commenter stated that an ideal prevention program would include all 
nine program elements. Additionally, the commenter stated that a 
prevention program should include: annual reporting of Tier II type 
information to EPA for facilities covered and not covered by EPCRA Tier 
II; an SPCC-like plan approved by facility management that is updated 
every five years or as the result of changes at the facility (e.g., 
stored materials); mechanical integrity standards and annual inspection 
of all storage areas, tanks, and secondary containment devices and 
structures by a third-party professional engineer (PE), compliance 
audits every three years by a PE, and third-party incident 
investigations reports provided to EPA, state, and local emergency 
response committees; secondary containment measures aligned with ``good 
engineering practices'' and suitable for the hazardous substances 
stored; public notification of spills, including notification to local 
and state emergency response commissions, EPA, local public health 
agencies, and local public water providers, and the identification of 
individuals responsible for notification; and financial bond 
requirements for covered facilities to pre-fund, or otherwise pre-
arrange for response and cleanup activities. Another commenter urged 
EPA to reconsider the option of a prevention program that would credit 
a company's prevention efforts in compliance with another federal or 
state regulation, stating that such a program would ensure a 
coordinated prevention program that addresses the production, storage, 
and use of hazardous substances.
    The EPCRA Inventory reporting regulation establishes reporting 
requirements for facilities to provide state and local officials with 
information on hazardous chemicals present at the facility, including 
CWA HS. The information submitted by the facilities must be submitted 
to the LEPC, the SERC, and the local fire department. The EPA believes 
that an additional burden of annual reporting of similar information to 
the Agency would not further reduce CWA HS discharges and their 
impacts.
    The Agency identified CWA HS discharges in the NRC data where a CWA 
listed hazardous substance, such as PCBs, were mixed with oil (e.g., 
transformer oil). The Agency included the SPCC regulation in its review 
of regulatory programs that address discharge or accident prevention 
requirements because, while applicable to oil, it also regulates oil 
mixed with other substances, including CWA HS. Storage and handling of 
PCB-laden transformer oil containers are subject to several of the 
regulatory elements of the SPCC regulation when a facility meets the 
applicability criteria of 40 CFR part 112. The SPCC regulation requires 
facilities to submit a report to the Regional Administrator and to 
certain state regulatory agencies after certain oil discharges 
impacting jurisdictional waters (40 CFR 112.4). The report includes 
information to assist the EPA with evaluating the efficacy of the SPCC 
plan and to identify potential amendments to the plan that may be 
required. The elements in the report include information related to the 
oil discharge's cause, corrective actions taken, failure analysis, and 
other preventative measures to minimize the reoccurrence of the 
discharge. Overall, the SPCC regulation includes various elements to 
prevent oil discharges, including discharges of oil mixed with CWA HS, 
including a facility diagram, oil discharge predictions, secondary 
containment or diversionary structures, bulk storage overfill 
prevention, requirements for piping and bulk container inspections, 
transfer procedures, reporting requirements, discharge response/
planning elements, personnel training, PE review of amendments and a 
five-year plan review. Many of these elements were also identified in 
other EPA regulatory programs. For example, EPA identified six other 
EPA regulations that have secondary containment provisions as key 
program elements because, when properly designed and maintained, 
secondary containment systems can prevent discharges to waters subject 
to CWA jurisdiction. While the Agency recognizes the SPCC regulation 
has PE plan certification, secondary containment, and mechanical 
integrity and inspections for bulk containers requirements for certain 
plan holders, the SPCC regulation does not otherwise require: (1) 
Mechanical integrity standards and annual inspection of all oil storage 
areas, all containers, and secondary containment devices and structures 
by a third-party PE; (2) compliance audits every three years by a PE; 
and (3) third-party incident investigations with the cause of the 
spill, corrective action, and recommendations for additional corrective 
action, with such reports provided to EPA, state, and local emergency 
response committees. Notwithstanding the applicability of its 
provisions, EPA believes the SPCC regulation is a critical regulatory 
program that, along with the other EPA regulatory programs identified, 
serve as existing cumulative EPA regulatory requirements for accident 
and discharge prevention relevant to CWA HS.
    The Agency agrees that notification of discharges is a key element 
in a prevention program. There are existing notification requirements 
under EPA regulations (and other federal regulations) that already 
serve this need. For example, 40 CFR 117.21 provides that any person in 
charge of a vessel or an onshore or an offshore facility shall, as soon 
as he has knowledge of any discharge of a CWA HS in quantities equal to 
or exceeding in any 24-hour period the reportable quantity, immediately 
notify the appropriate agency of the United States Government of such 
discharge (see 33 CFR 153.203).

[[Page 46127]]

As highlighted in the proposed action, the EPCRA Emergency Planning 
regulation (Emergency Planning and Notification, 40 CFR part 355) 
requires emergency notification in the event of a release of a 
regulated chemical, including CWA HS. Furthermore, facility owners/
operators must already designate a facility representative to provide 
notice to the LEPC (40 CFR 355.20(b)). 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, 
including all CWA HS. These EPA regulations serve as part of the basis 
for this action.
    The EPA did not identify a program element in the regulatory 
programs that the Agency reviewed that requires covered facilities to 
post bond, pre-fund, or otherwise pre-arrange for response and cleanup 
activities. The Agency believes that CWA 311 already sufficiently 
addresses responsible party liability in cases of a discharge or a 
substantial threat of discharge.
    Finally, the Agency chose not to finalize new regulations under 
CWA(j)(1)(C) following an analysis of the existing framework of EPA 
regulatory provisions, the frequency of CWA HS discharges and the 
causes and impacts of such discharges. This analysis suggests that the 
existing framework of EPA regulatory requirements adequately serves to 
prevent, contain and mitigate CWA HS discharges.
2. Targeted Prevention Requirements
    The Agency considered proposing a limited set of requirements 
designed to prevent and contain CWA HS discharges and identified the 
following requirements that could be effective: Hazard review, 
mechanical integrity, personnel training, and secondary containment. 
However, the Agency believes that these provisions would add only 
minimal incremental value under a new regulation. While EPA did not 
propose this approach, EPA sought comment on whether it should adopt a 
narrowly targeted regulatory approach to prevent, contain and mitigate 
CWA HS discharges.
    One commenter urged EPA to adopt a comprehensive prevention program 
instead of targeted prevention requirements, stating that simply 
because the NRC database does not list reported causes of spills that 
correspond directly to some spill prevention measures such as incident 
investigations, compliance audits, notification requirements, and 
emergency response planning is not a reasonable basis for EPA to reject 
those measures. In addition, this commenter wrote that EPA's basis for 
rejecting the targeted prevention approach is unreasonable, stating the 
Agency cannot refuse to issue regulations because some requirements 
issued under other statutory provisions apply to some hazardous 
substances at some facilities.
    The Agency's review of cause data in the NRC database for past CWA 
HS discharges identified four key program elements for the targeted 
program that the Agency believed could more immediately address the 
identified discharge causes. The Agency did not reject spill prevention 
elements such as incident investigations, compliance audits, 
notification requirements, and emergency response planning on the basis 
that the NRC database does not identify reported causes of spills that 
could be prevented by that program element. Rather, the Agency did not 
finalize a targeted requirement approach because provisions reflective 
of key program elements frequently exist in EPA regulatory programs and 
because the Agency believes further regulation would provide only 
minimal incremental value.
3. Alternative Approach--Incorporate Existing Discharge Prevention 
Provisions Established Under Other Statutory Authorities Under a CWA 
Section 311(j)(1)(C) Program
    The Agency requested comments on the concept of establishing a 
prevention program under CWA section 311(j)(1)(C) authority that 
incorporates existing discharge prevention provisions already 
established under other statutory authorities.
    Three commenters expressed support for minimizing regulatory 
redundancies of a HS spill prevention regulation through recognizing 
actions from other regulatory requirements. One commenter agreed that 
EPA can and should minimize regulatory redundancies when the 
requirements under the new hazardous substance spill prevention 
regulations would be redundant of existing requirements. At the same 
time, the commenter asserted that EPA must maintain comprehensive 
hazardous substance spill prevention protection and stated that a 
patchwork of rules could create unforeseen gaps or loopholes. The 
commenter stated that alternative compliance would allow partial 
compliance with the new regulation by compliance with portions of 
existing regulations. The commenter also stated that any limitation in 
the scope of the hazardous substance spill prevention regulation based 
on redundancy or substituted compliance must be based on a specific 
comparison of each applicable regulation's requirements and effects. 
Finally, the commenter noted that they cannot comment on the 
reasonableness of any substitutions until EPA first determines the 
requirements under a new spill prevention regulation.
    Another commenter urged EPA to reconsider the option of a 
prevention program that would credit a company's prevention efforts in 
compliance with another federal or state regulation, stating that a 
program that works with other regulations would ensure a coordinated 
prevention program that addresses the production, storage, and use of 
hazardous substances beyond those substances that end up in the waste 
stream. This alternative would require additional study of the causes 
and impacts of hazardous substances spills, informing an effective 
spill prevention, control, and countermeasure program.
    As discussed elsewhere in this notice, one commenter supported 
EPA's targeted prevention requirements alternative and recommended that 
EPA collect data and further explore requiring facilities to comply 
with either the NPDES MSGP or the SPCC rule. This commenter believed 
that EPA's data successfully demonstrate that the targeted program 
elements are already in place in the NPDES MSGP, SPCC rules, and UST 
requirements. Facilities that already comply with the NPDES MSGP would 
need to take no further action; facilities that already comply with the 
SPCC regulations would be expected to adapt their SPCC plans as 
necessary to ensure that they address hazardous substances as well.
    One commenter who submitted a comment to the NODA published in the 
Federal Register on February 19, 2019 (Docket number EPA-HQ-OLEM-2017-
0444) stated that EPA already has experience with an available program 
focused on accident prevention in the Clean Air Act Section 112(r): 
Accidental Release Prevention/Risk Management Plan. The commenter 
stated that this program already requires OSHA's PSM standard as the 
accident prevention program as well as additional hazard assessment, 
management, and emergency response requirements for Program 3 
facilities. The commenter added that there is no reason that EPA could 
not tier the CWA accident prevention rule just as it did for RMP and 
would not need to create a new program when it can adapt an existing 
program.
    The EPA disagrees with the commenter's assertion that any

[[Page 46128]]

limitation of the scope of CWA HS spill prevention regulation based on 
redundancy or substituted compliance must be based on a specific 
comparison of each applicable regulation's requirements and effects, 
and that the commenter would not be afforded the opportunity to comment 
on the reasonableness of any substitutions until EPA first determines 
the requirements under a new spill prevention regulation. The Agency 
set forth to determine whether new regulatory requirements under CWA 
section 311(j)(1)(C) would be appropriate to prevent, contain and 
mitigate CWA HS discharges. The EPA identified an analytical framework 
of discharge prevention, containment, and mitigation provisions, or 
program elements, found in discharge and accident prevention regulatory 
programs. The EPA then conducted a review of existing EPA regulatory 
programs to determine which ones include these program elements and 
apply to CWA HS. The EPA believes it is reasonable to expect variations 
in the scope and provisions of existing EPA regulatory programs for 
accident and discharge prevention, even as the Agency's analysis showed 
there is an existing framework of cumulative requirements that 
adequately serves to prevent, contain and mitigate CWA HS discharges. 
Furthermore, the Agency reviewed cause data in the NRC database for 
past CWA HS discharges and identified four key program elements for the 
target program that can more immediately address the identified 
discharge causes in consideration of targeted prevention requirements. 
The Agency chose not to finalize this option because these provisions 
were frequently identified in existing EPA regulatory programs and 
because the Agency believes it would provide only minimal incremental 
value by requiring these provisions in a new regulation. The Agency 
also requested information that it may use to revise or supplement the 
Agency's analysis regarding any facilities which are using, storing, 
producing, and/or otherwise handling CWA HS. While the Agency received 
additional information on reported impacts of CWA HS through the 
voluntary survey, the Agency did not receive information that pointed 
to a need for additional review of the causes of hazardous substance 
discharges. 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 cumulative framework 
of regulatory requirements adequately serves to prevent and contain CWA 
HS discharges, and therefore, the alternative approach to incorporate 
existing discharge prevention provisions established under other 
statutory authorities under a CWA section 311(j)(1)(C) program is not 
necessary at this time.
    As discussed above, the Agency considered an alternative approach 
for targeted accident prevention provisions; such an approach could 
also serve as the basis for a tiered approach similar to the RMP 
regulation. However, the Agency's determination not to issue any new 
regulatory requirements at this time is not based solely on an 
evaluation of the existing framework of EPA regulatory requirements 
relevant to discharge prevention and containment, but also on the 
analysis of the reported frequency and impacts of identified CWA HS 
discharges. One commenter opposed the possibility of promulgating 
``drop-in'' requirements for hazardous substances into the existing 
SPCC framework. The commenter noted that the SPCC provisions would be 
expanded to apply to hundreds of different substances whose physical 
and chemical properties are as varied as the facilities and equipment 
employed to manage them. Additionally, the commenter raised concerns 
that there likely are thousands of facilities, especially those that 
are operated by small businesses, that may store chemicals but do not 
store oil and would come into the SPCC program for the first time. The 
commenter saw the costs of SPCC ``drop-in'' requirements significantly 
outweighing any corresponding benefit.
    The EPA agrees that promulgating ``drop-in'' requirements for CWA 
HS whose physical and chemical properties vary into an existing SPCC 
framework tailored to oil would expand the current SPCC facility 
universe to include facilities not previously subject to 40 CFR part 
112. The EPA did not propose a ``drop-in'' requirement and therefore 
did not include such analysis in the RIA for the proposed action.
4. Alternative Approach--Applicability Criteria for Alternative Options 
Considered (Facilities, Thresholds)
    The Agency requested comments on appropriate applicability criteria 
or thresholds for alternative options, if the Agency were to finalize 
an alternative option that established a regulatory program that 
applied to facilities producing, storing, processing, using, 
transferring or otherwise handling CWA HS.
    One commenter noted that EPA did not provide applicability criteria 
or thresholds in the proposed action. In the absence of such criteria, 
the commenter suggested that EPA set an applicability threshold for 
each non-transportation-related onshore facility that stores CWA HS 
matching the chemical-specific thresholds for reporting hazardous 
substance spills under 40 CFR 117.3. The commenter suggested two 
alternative methods of applying these thresholds: Set the thresholds to 
apply to the entire regulation, such that a facility that is over the 
threshold for a single CWA HS must comply with all requirements; or set 
different applicability thresholds for separate subparts of the 
regulation. The commenter stated that EPA should consider setting more 
stringent thresholds for facilities in sensitive areas, such as those 
where a spill could affect water bodies that serve as public drinking 
water supplies, recreation sites, or ecologically sensitive habitats. 
The commenter asserted that, in addition to reporting requirements, 
regulated facilities must take precautions to prevent and respond to 
discharges.
    The Agency recognizes there are various approaches to setting 
applicability criteria or thresholds for a prevention regulatory 
program, such as those based on reportable quantities under 40 CFR 
117.3. However, given that the Agency is not finalizing either a 
prevention program, targeted requirements, or any other alternative 
regulatory option, it is not establishing any applicability criteria in 
this final action. Each of the EPA prevention programs identified as 
part of the existing prevention and containment framework already have 
specific applicability criteria. This framework of existing EPA 
regulatory requirements adequately serves to prevent and contain CWA HS 
discharges. Therefore, EPA believes there is no need to establish 
additional or superseding applicability criteria or thresholds under 
CWA section 311(j)(1)(C) at this time.
5. Alternative Approach--Other Suggested Options
    In response to the Agency's request for comments on any alternative 
approaches not specifically identified in the proposed action, six 
commenters suggested alternative spill prevention program options in 
addition to those presented in the proposed action.
    Two commenters suggested approaches that would address the

[[Page 46129]]

potential impact of discharges on drinking water systems. One commenter 
recommended that EPA clearly define a drinking water utility as an 
authorized recipient of EPCRA Tier II information to support emergency 
planning, notification, and response. The commenter stated that such 
changes would mitigate the potential impact on treatment operations and 
require that the potentially impacted community water systems receive 
timely notification of a hazardous substance release under section 311 
of the CWA. This commenter also noted the importance of prevention 
measures such as mitigating risks and consequences of hazardous 
substance releases. They requested a comprehensive assessment of the 
full universe of CWA HSs that would include additional applicability to 
both SPCC and TSCA. Another commenter expressed that EPA should further 
investigate alternatives that are both feasible and cost-effective, 
without being an economic burden. They urged EPA to develop a mandatory 
notification process for downstream utilities following a hazardous 
chemical spill, to facilitate utilities obtaining EPCRA information, 
and to clarify existing requirements and develop guidance for utilities 
to better utilize the program.
    One commenter suggested EPA establish improved enforcement and 
stricter consequences for facilities, noting that enforcement should 
include facility inspection for secondary containment and third-party 
audits, and provide consequences for facilities that do not honor water 
quality standards. The commenter also expressed concern that water 
providers do not have necessary information to determine the location 
of potential chemical contamination sources, and consequently cannot 
develop adequate response programs or procedures. The commenter 
suggested that EPA could develop a GIS interface to better disclose 
such facilities to utilities and the public so that facilities and 
communities could prepare response plans for worst case scenarios.
    Noting the number of CWA HS spills, another commenter recommended a 
flexible plan where States create State Implementation Plans to reduce 
the number of hazardous substance spills, without harming economic 
growth.
    One commenter stated that EPA should promulgate a rule requiring 
detailed spill prevention requirements including: Plans that are 
publicly disclosed, have enforcement criteria, include regular internal 
and external inspections of storage tanks containing hazardous 
substances; specify regular third-party inspections and safety audits; 
primary storage specification such as tank design and size limitations 
based on the type of chemical); secondary containment; immediate public 
notification; bonds for or pre-fund response and cleanup costs; and 
public disclosure of the location and size of aboveground storage 
tanks, their last inspection date, and the identity of the hazardous 
substance.
    Another commenter suggested an alternative that includes spill 
mitigation and prevention activities in line with the inspection and 
documentation of accident prevention programs identified by the U.S. 
Chemical Safety Board. The commenter suggested strategic coordination 
between facility owners/operators and third parties such as local 
emergency response officials and LEPCs.
    The EPA recognizes recent statutory amendments to EPCRA to require 
state and tribal emergency response commissions to notify the 
applicable State agency (i.e., the drinking water primacy agency) of 
any reportable releases and provide community water systems with 
hazardous chemical inventory data. The EPA published a factsheet \18\ 
on its website that provides information on these amendments for SERCs, 
TERCs, and LEPCs.
---------------------------------------------------------------------------

    \18\ https://www.epa.gov/sites/production/files/2019-04/documents/awia_epcra_fact_sheet_draft_508_serc_terc_lepc_final_4-10-19.pdf.
---------------------------------------------------------------------------

    For the purposes of this action, the term ``hazardous substance'' 
is defined in CWA section 311(a)(14). The EPA has promulgated a list of 
CWA HS in 40 CFR part 116. To estimate the universe of potentially 
subject facilities, EPA took a conservative approach and assumed that 
all facilities identified through the EPCRA Tier II data as having CWA 
HS would have the potential to discharge to jurisdictional waters. The 
Agency could not identify, for the purposes of this final action, an 
appropriate method to estimate, and exclude from the analysis, the 
number of facilities that would not have the potential to discharge to 
waters subject to CWA jurisdiction.
    The Agency disagrees with comments relative to the flexible plans, 
including States establishing State Implementation Plans to reduce the 
number of hazardous substance spills. CWA section 311(j)(1)(C) 
authorities are not delegable to states. However, nothing in the final 
action prevents states from developing their own prevention programs.
    Note that for all EPA regulatory programs identified the Agency 
enforces regulatory requirements in accordance with its specific 
statutory authorities. While EPA did not identify a specific program 
element relative to posting bonds, pre-funding, or otherwise pre-
arranging for response and cleanup activities, the Agency believes that 
CWA 311 already addresses responsible party liability in cases of a 
discharge or a substantial threat of discharge. Finally, while CWA 
311(j)(1)(C) authorities are not delegable to states, nothing in the 
final action prevents states from developing their own prevention 
programs.
    As highlighted in the FR Notices and supporting documentation to 
the proposed and final action, the identified framework of EPA programs 
already includes requirements similar to those highlighted by the 
commenters. For example, the RMP regulation requires facilities that 
use certain listed, regulated substances to develop and implement a 
risk management program, and to submit to EPA an RMP Plan for all 
covered processes. The RMP must be reviewed and revised, as 
appropriate, and the RMP Plan summarizing the facility's program must 
be resubmitted every five years. Likewise, the SPCC regulation requires 
an SPCC Plan comprised of several elements, 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, mechanical integrity and inspections for bulk containers, 
secondary containment, and PE plan certification requirements for 
certain plan-holders. Finally, the Agency addresses in this document 
similar statements about what some commenters believe should be 
included in detailed spill prevention requirements in the discussion of 
the individual prevention programs elements, as well as in the 
discussion of each existing EPA regulatory program identified as part 
of the framework (e.g., public disclosure of plans; public disclosure 
of the location and size of aboveground storage tanks, their last 
inspection date, and the identity of the hazardous substance; storage 
tank compatibility and specification; enforcement criteria, including 
regular internal and external inspections of hazardous substance-
containing storage tanks, regular third-party inspections and safety 
audits; secondary containment; immediate public notification of 
discharges; and bonds for, or pre-funding of, response and cleanup 
costs).
    The Agency identified nine program elements that are commonly 
contained

[[Page 46130]]

in EPA regulatory programs provisions, and that adequately serve to 
prevent, contain, or mitigate CWA HS. The EPA believes these key 
program elements capture mitigation actions such as employee training, 
maintenance cycles, management of change, and programs to properly 
manage contractors and similar programs the commenter stated are 
identified by the U.S. Chemical Safety Board. For example, the BID and 
Supplemental BID describe the personnel training element as 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. The EPA 
believes a training program that aims to reduce operator errors that 
could lead to CWA HS discharges and educate operators on the proper 
implementation of discharge prevention measures would capture the 
employee training action identified by the commenter.
    The Agency believes a framework for strategic coordination between 
facility owners/operators and third parties, such as local emergency 
response officials and LEPCs, already exists under programs such as 
EPCRA. The EPCRA Emergency Planning and Notification regulation \19\ 
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. The 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). The 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 for and/or assisting in an incident response. 
Likewise, the EPCRA Inventory reporting regulation \20\ 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.
---------------------------------------------------------------------------

    \19\ Emergency Planning and Notification, 40 CFR part 355.
    \20\ Hazardous Chemical Reporting: Community Right to Know, 40 
CFR part 370.
---------------------------------------------------------------------------

G. Comments on Legal 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 hazardous substances 
from vessels and from onshore facilities and offshore facilities, and 
to contain such discharges. 33 U.S.C. 1321(j)(1)(C). The President has 
delegated to EPA the authority to regulate non-transportation-related 
onshore facilities (see Section 2(b)(1) of Executive Order 12777, 
Implementation of Section 311 of the Federal Water Pollution Control 
Act of October 18, 1972, as Amended, and the Oil Pollution Act of 
1990). Pursuant to section 2(i) of Executive Order 12777, DOI has 
redelegated CWA section 311(j)(1)(C) authority to regulate non-
transportation related offshore facilities landward of the coastline to 
EPA.
    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 against EPA for 
failing to comply with an alleged duty to issue regulations to prevent 
and contain CWA HS discharges originating from non-transportation-
related onshore facilities, including aboveground storage tanks, under 
CWA section 311(j)(1)(C). 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 requiring 
EPA to take final action after notice and comment on the notice. The 
EPA issued a notice of proposed rulemaking on June 25, 2018 (83 FR 
29499) in which, based on the existing framework of EPA regulatory 
requirements, in conjunction with an analysis of the frequency and 
impacts of reported CWA HS discharges, the Agency did not propose any 
new spill prevention and containment regulatory requirements under CWA 
section 311(j)(1)(C) at this time.
    Several commenters stated that the Agency has the discretion and 
inherent authority to interpret CWA section 311(j)(1)(C) as having 
already been fulfilled by other federal statutory and regulatory 
programs implemented after the CWA's amendment of the Federal Water 
Pollution Control Act in 1972. Some commenters further asserted it 
would be arbitrary and capricious for the EPA to ignore the statutory 
and regulatory programs that have been adopted in the 40 years since, 
and that already achieve the same ends as any potential new regulation, 
regardless of whether they were issued with reference to section 
311(j)(1)(C). Some commenters pointed to a ``de minimis doctrine'' that 
allows an agency to decline to take a regulatory action when the 
totality of circumstances indicates that issuing the regulation would 
provide no significant benefit, and not just when there would be no 
benefit at all. One commenter questioned whether EPA holds the 
authority to unilaterally revise section 311 of the CWA to include 
products outside the provision's current scope and applicability, and 
without the direction of the Congress. Another stated that while the 
Consent Decree required that EPA issue proposed rules to further 
regulate the prevention and containment of hazardous substance spills 
under CWA section 311(j)(1)(C), neither the litigation nor the Consent 
Decree included any input from the many stakeholders that would be 
affected by the promulgation of such rules, and notably did not involve 
any of the entities that would be subject to potential new regulations. 
Other commenters pointed to case law in support of the Agency's 
proposed action.
    Based on an evaluation of the existing framework of EPA regulatory 
requirements, and the reported frequency and impacts of CWA HS 
discharges, the Agency is not finalizing any new spill prevention and 
containment requirements under CWA section 311(j)(1)(C) at this time. 
EPA believes there would be only minimal incremental value in requiring 
new prevention regulatory provisions. Further, there is no reason to 
believe that establishing what may be redundant provisions would 
alleviate discharges from facilities that disregard existing 
regulations. For this determination, the Agency evaluated statutory and 
regulatory programs adopted since Congress enacted CWA section 
311(j)(1)(C), contrasting existing requirements relevant to preventing 
CWA HS discharges with the frequency and reported impacts of CWA HS 
discharges. The Agency believes it has a demonstrated record of acting 
in accordance with the law and of meeting its obligations relative to 
CWA section 311(j)(1)(C).
    The President delegated to the EPA Administrator those functions in 
CWA section 311(j)(1)(C) pertaining to

[[Page 46131]]

establishing procedures, methods, and equipment and other requirements 
for equipment to prevent and to contain discharges of oil and hazardous 
substances from non-transportation-related onshore facilities (Section 
2(b)(1) of Executive Order 12777, Implementation of Section 311 of the 
Federal Water Pollution Control Act of October 18, 1972, as Amended, 
and the Oil Pollution Act of 1990); 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). Therefore, this action considers requirements 
promulgated by EPA when assessing whether the existing regulatory 
framework adequately serves to prevent, contain and mitigate CWA HS 
discharges.
    The Agency does not have the authority to unilaterally revise CWA 
statutory language. EPA is taking this action to comply with the 
Consent Decree and the requirements of CWA section 311(j)(1)(C). The 
Agency provided an opportunity for public notice and comment on its 
approach to CWA HS regulations under section 311(j)(1)(C). EPA 
acknowledges commenters supporting this approach. The Agency has 
appropriately considered cost and benefit implications for this action 
in accordance with Executive Order 12866. The Agency developed this 
action in accordance with the Administrative Procedure Act (APA) and 
consistent with applicable Executive Orders.
    Alternatively, some commenters asserted that the proposed action 
requiring no new requirements violates the CWA mandate that the 
President ``shall issue regulations . . . establishing procedures, 
methods, and equipment and other requirements for equipment to prevent 
discharges of . . . hazardous substances'' from non-transportation-
related onshore facilities, ``and to contain such discharges.'' One 
commenter stated that the current regulatory framework does not fully 
mitigate the risk of CWA HS discharges when hazardous substances are 
stored in close proximity to drinking water sources. Some commenters 
asserted that when Congress intends to give EPA discretion regarding 
whether to issue a regulation, it does so explicitly, and that Congress 
did not grant such discretion in CWA section 311(j)(1)(C). Some 
commenters stated the proposed approach to not issue new regulatory 
requirements under CWA section 311(j)(1) is not consistent with the 
intent of the Consent Decree. Other commenters pointed to existing case 
law to oppose the Agency's proposed action.
    In the 40 years since CWA section 311(j)(1)(C) was enacted by 
Congress, multiple statutory and regulatory requirements under 
different federal authorities have been established that generally 
serve to, directly or indirectly, prevent and contain CWA HS 
discharges. The EPA recognizes the need for prevention requirements; to 
this end, the Agency specifically identified existing regulatory 
requirements for procedures, methods, and equipment to prevent and 
contain discharges of hazardous substances from non-transportation-
related facilities located both onshore and offshore landward of the 
coastline. Given this existing framework of EPA regulatory programs, 
and the analysis of frequency and impacts of reported CWA HS 
discharges, the Agency believes there would be only minimal incremental 
value in promulgating new prevention regulations. The Agency again 
notes this action is not based on any individual provision and/or 
standalone regulatory program preventing CWA HS discharges. The 
analysis demonstrated how the cumulative framework of key prevention 
and containment elements, as implemented through those existing EPA 
regulatory programs identified, meet the requirement to regulate CWA HS 
under section 311(j)(1)(C). The Agency considered whether it was 
appropriate to issue new regulatory requirements under CWA section 
311(j)(1)(C) for hazardous substances and determined, as provided in 
the final action and supported by the record, that at this time EPA has 
met its statutory obligations.
    The EPA is taking this action to comply with the Consent Decree and 
with CWA section 311(j)(1)(C). The Agency has provided an opportunity 
for public notice and comment on the approach to satisfy the CWA 
requirements under section 311(j)(1)(C). The Agency developed this 
action in accordance with the Administrative Procedure Act (APA) and 
consistent with applicable Executive Orders. The Agency analysis 
demonstrates that there would be only minimal incremental value at this 
time in promulgating new regulatory requirements.
    The applicability of the individual prevention programs or 
regulatory requirements varies depending on the covered CWA HS and on 
the scope of coverage over specific facilities that produce, store, or 
use the regulated CWA HS. While the Agency recognizes this variability, 
the analysis shows the identified EPA regulatory programs address the 
universe of CWA HS. Furthermore, this action is not based on any 
individual provision, applicability thresholds, and/or standalone 
regulatory program for the prevention of CWA HS discharges. Rather, 
this action is based on the cumulative framework of key prevention 
elements, as implemented through the existing EPA regulatory programs 
identified herein, that have demonstrated at this time to offer 
adequate protections to prevent and contain CWA HS discharges at the 
universe of potentially CWA regulated facilities.

H. Comments on Economic Analysis and Executive Orders

1. Economic Analysis
    The EPA prepared an economic analysis of the potential costs and 
benefits associated with the three regulatory options considered for 
the proposed action. Several commenters agreed with EPA's conclusion 
for the proposed action that the existing framework of regulatory 
requirements serves to prevent and contain CWA HS discharges and that 
the benefits may not justify the costs of any of the targeted program 
elements. One commenter stated that EPA reasonably concluded that 
additional regulations to address releases of CWA HS were liable to be 
extremely costly to implement with little or no spill prevention 
benefit, redundant of existing regulations, and/or in conflict with 
existing regulations. Another commenter stated that additional new 
requirements would increase cost and recordkeeping requirements without 
any environmental benefits, while yet another commenter stated that no 
regulatory program, regardless of how stringent it is, will prevent all 
discharges from regulated facilities, and EPA is not obligated to 
impose regulations with that objective in mind.
    One commenter stated that a new rule that would impose new 
procedural and other substantive requirements would have significant 
costs and that the benefits may not justify these costs. The commenter 
asked EPA to explain more fully EPA's authority to consider costs and 
benefits before deciding to adopt new regulations. The commenter also 
stated that just because EPA issues a new regulation intended to reduce 
the chance of an uncontained spill does not mean that facilities will 
have any significantly greater incentive to prevent and contain spills 
than already exists. This commenter stated that EPA should emphasize in 
its final action that cost-benefit balancing does not justify any new 
regulations addressing CWA HS releases.

[[Page 46132]]

    Two commenters stated that EPA is not prohibited by law from 
considering costs and benefits of proposed rules and that recent case 
law has shown that EPA has the discretion to do so. One of the 
commenters stated that the Supreme Court has further shown that, if EPA 
fails to consider cost in determining whether to regulate--and in 
particular, whether to add new regulations on top of existing 
requirements--it is vulnerable to an arbitrariness challenge. The 
commenter stated that the Supreme Court found that even though there 
was no explicit statutory mandate to consider costs and benefits, 
issuing a rule without doing so was arbitrary and capricious, and 
unreasonable. In addition, these commenters noted that E.O. 12866 and 
E.O. 13563 instruct agencies to consider quantitative cost-benefit 
balancing and that nothing in the CWA prevents EPA from following those 
directives.
    One commenter agreed with EPA's conclusion that existing federal 
and state regulations and industry standards already contain the 
regulatory standards that EPA would impose but disagreed with EPA's 
assessment about the burdens associated with duplicative regulation. 
This commenter stated that while EPA suggests that the burdens of 
duplicative regulations are fairly minor, this might be accurate only 
with perfect coordination among states, federal agencies, and industry 
standard-setting organizations. In practice, this commenter noted, it 
is more likely that requirements will be inconsistent or contradictory, 
resulting in few if any burden reductions in having to comply with two 
separate regulatory programs. This commenter disagreed with EPA's 
statement that the cost assessments are significant overestimates 
because many facilities will already be fulfilling these requirements 
under a wide variety of existing regulations and urged EPA to 
reconsider its conclusion about the regulatory burdens associated with 
duplicative regulations.
    One commenter expressed appreciation for EPA's efforts to evaluate 
the monetized damages associated with CWA HS discharges but was 
concerned that the monetized damages overestimated the direct costs 
associated with the discharges. The commenter also noted that other 
federal statutes and regulatory programs are appropriate mechanisms to 
address other types of damages associated with chemical releases, and 
damages caused by discharges of CWA HS are most accurately assessed by 
limiting evaluation to those impacts directly caused by discharges of 
CWA HS to water. The commenter asserted that just because a chemical 
release reaches water does not necessarily mean that the chemical 
reaching the water caused the other site impacts. The commenter 
asserted that it is not clear whether some impacts, such as sheltering 
in place and fatalities, are caused directly by hazardous substances 
reaching water. The commenter added that the 2014 fatality included in 
the Regulatory Impacts Analysis (RIA) appeared to have been caused by 
incidents unrelated to the discharge of a hazardous substance to water 
and it is likely that the other two fatalities were not directly caused 
by CWA HS reaching jurisdictional waters. This commenter suggested that 
the fatality in 2014 which EPA included in its assessment of impact in 
the RIA for the proposed action should not be included, and that it 
would be more appropriate for the fatality in EPA's assessment of 
impacts in 2014 to be considered in an evaluation of chemical accidents 
subject to OSHA or RMP regulations. The commenter noted that in its 
review, removing one of the three included fatalities would decrease 
the monetized damages in the RIA by approximately one-third. 
Furthermore, the commenter stated that removing all three fatalities 
from the cost data in the RIA would reduce EPA's annualized cost 
impacts by 90 percent. The remaining estimated annualized cost of 
impacts from hazardous substance discharges across the nation would 
then be below EPA's estimated cost of compliance for a single large 
facility.
    The Agency acknowledges the commenters' support for its 
determination not to promulgate new regulations at this time. EPA has 
determined that the regulatory alternatives it considered would create 
only minimal incremental value and is not finalizing new regulatory 
requirements at this time. Regarding the comment that the monetized 
damages overestimated the direct costs associated with the discharges, 
EPA agrees with the commenter that not all the monetized impacts may be 
the direct result of CWA HS discharges to water and stated such in the 
RIA for the proposed action. For example, the number of individuals 
evacuated represents evacuees from the facility resulting from the 
reported incident. EPA has no information regarding whether the 
evacuations were caused by the discharges to water.
    EPA also agrees with the commenters that the fatalities reported to 
the NRC database may not be the direct result of CWA HS discharges to 
water. For example, the information reported to the NRC database on the 
2014 fatality states, ``Caller is reporting an 18-gallon release of 
transformer oil onto the ground and into storm drain along Connecticut 
Ave which leads to the Reynolds Canal. Transformer exploded and 
released the material from the bottom of the unit.'' Based on this 
description, EPA cannot confirm that the reported fatality in 2014 was 
the direct result of a CWA HS discharge to water. However, EPA is being 
conservative to ensure inclusivity and is attributing the fatalities to 
a CWA HS discharge to water. As described in the Discharge Universe 
Limitations section of the RIA for the final action, while the NRC 
database is the best available source of information on CWA HS 
discharges in the United States, EPA recognizes the limitations of this 
database. Because the NRC database may contain inaccuracies due both to 
under- and over-reporting, and because EPA has no information to assess 
the extent to of any under- or over-reporting, EPA used the NRC data as 
reported. The RIA for the final action reiterates this limitation as it 
relates to reported fatalities and other reported impacts.
    In addition to the monetized damages, the RIA discusses other 
quantitative and qualitative damages. Quantified, but not monetized, 
damages include sheltering in place, waterway closures, water 
contamination, and fish kills. Damages that were described 
qualitatively in the RIA due to a lack of data include other potential 
water quality impacts, lost productivity due to a facility or process 
shutting down resulting from a discharge, emergency response costs, and 
property value impacts.
    A commenter opposed EPA's consideration of costs and benefits, 
stating that EPA's analysis is incomplete because it does not consider 
environmental impacts and associated impacts to treaty resources. This 
commenter stated that the economic assessment does not account for the 
following: Sheltering in place, waterway closures, water supply 
contamination, environmental impacts, lost productivity, emergency 
response costs, transaction costs, and property value impacts. The 
commenter noted that the Elk River Spill contaminated the drinking 
water of over 300,000 people, closed schools, essentially eliminated 
the local economy, and caused an estimated $61 million in losses to 
local business. This commenter urged EPA to reevaluate the costs 
associated with a hazardous substance spill to incorporate the suite of 
economic, social, environmental, and cultural costs. The commenter also 
noted that EPA must fulfill its Trust Responsibility in protecting the 
treaty-protected resources

[[Page 46133]]

of the Makah Tribe, in part via the CWA, and the current regulatory and 
economic analysis does not consider the impacts to treaty resources 
from a hazardous substance discharge.
    Two commenters provided additional information to support an 
analysis of the cost of water supply contamination and stated their 
dissatisfaction with EPA's calculations. These commenters noted that 
FEMA's valuation for disruption of water service is $111 per person per 
day (2018 dollars; $93/person/day in 2008 dollars) and identified an 
upper bound estimate of $238 per person per day (2018 dollars; $208/
person/day in 2008 dollars). These commenters also cited an analysis 
conducted on the high-profile incident in Charleston, WV, where the 
costs to the community were approximately $19 million per day for the 
first four days following the incident, totaling $61 million. One of 
these commenters stated that while the chemical substances that 
affected 300,000 residents and business in Charleston, WV are not 
listed as CWA HS, the impact on that community is unquestionable, and 
is due almost exclusively to the spill's impact on the community's 
drinking water supply.
    One commenter did not believe EPA's cost-benefit analyses 
adequately accounted for the potential impacts to drinking water 
utilities and communities. The commenter believed that water supply 
contamination can be a major cost to a community, since costs are 
incurred by the utility and its rate payers as well as taxpayers. The 
commenter further described several costs that can be incurred when 
drinking water supplies are disrupted, including: Extensive remediation 
and potential public health consequences when downstream utilities draw 
in contaminated water through surface water intakes; economic losses 
from cessation of potable water production and sewerage service 
interruption; cracks, collapses in the distribution system, loss of 
fire protection, and pipe bursts due to depressurization in mains and 
pipes without water in distribution system; cost to community of 
developing new raw water source if remediation is not possible; and 
outreach costs incurred by utilities when spill occurs to inform 
customers of advisories. This commenter noted that EPA identified 49 
instances of water contamination and requested that EPA provide further 
details of their cost-benefits analysis and explain why impacts like 
water supply contamination were excluded from the monetized damages 
summary. The commenter encouraged EPA to include the monetary costs of 
this water contamination in its assessment of costs.
    The EPA disagrees with these comments opposing its approach not to 
finalize new regulatory requirements, as the analysis pointed to 
minimal incremental value. Additionally, EPA based its decision on the 
frequency and impacts of reported CWA HS discharges to jurisdictional 
waters and an analysis of the existing framework of EPA regulatory 
requirements. In addition, the Agency recognizes there are other 
federal and state agency programs and other industry standards that may 
be effective in preventing discharges of CWA HS.
    A regulatory impact analysis (RIA) is included in the record. 
However, because EPA was unable to determine the number of potentially 
regulated facilities currently undertaking various prevention 
activities in the baseline, EPA was unable to estimate either total 
costs per facility or total program costs across facilities.
    As discussed in Section III.B, to estimate historical CWA HS 
discharges and impacts, EPA reviewed release notifications received by 
the NRC. The NRC is the designated federal point of contact for 
reporting all oil, chemical, radiological, biological, and etiological 
releases into the environment anywhere in the United States and its 
territories. The EPA supplemented the NRC database with data on impacts 
from the ATSDR's NTSIP, which collects and combines information about 
harmful releases from many sources into a central location. In June 
2018, EPA requested additional information through the CWA HS Spill 
Prevention Information Collection Request (ICR). EPA sent a voluntary 
survey to states, tribes, and U.S. territories requesting information 
on EPCRA Tier II facilities, discharges of hazardous substances to 
surface waters from 2007 to 2016, as well as existing state programs in 
place to help prevent and mitigate the impacts of discharges of 
hazardous substances to surface waters. The EPA received data from 15 
states in response to the survey. The NRC, NTSIP, and voluntary survey 
data sources were used to estimate historical damages in the RIA for 
the final action.
    The EPA acknowledges the RIA for the proposed action did not 
monetize the following historical damages: Sheltering in place, 
waterway closures, and water supply contamination (e.g., economic 
losses from cessation of potable water production and sewerage service 
disruption); nor did it quantify historical damages from environmental 
impacts, lost productivity, emergency response costs, transaction 
costs, and property value impacts. The EPA does not have the data 
required to monetize or quantify these historical damages, 
respectively. For example, the NTSIP database provided information on 
whether sheltering in place was ordered (via a yes/no field) but did 
not provide information on the number of people sheltered or the 
duration of the sheltering. Therefore, EPA was unable to monetize this 
impact in the RIA for the proposed or final action.
    With respect to water supply contamination, in FEMA's 2009 BCA 
Reference Guide, FEMA values the economic impacts of complete loss of 
potable water service as $93 per person per day. However, EPA has no 
data on the size of the affected populations or the duration of any 
water supply contamination reported in the NRC database to enable it to 
apply FEMA's valuation of the economic impact of a complete loss of 
potable water service. EPA's information on water supply contamination, 
based on NRC data, indicates whether a drinking water source was 
contaminated by a release. However, the NRC data does not indicate 
whether there was a resulting loss of potable water service, and if so, 
the duration of the event. Similarly, two states reported impacts to 
public water systems through the voluntary survey but did not report on 
the population impacted or the duration of any shutdown. Therefore, EPA 
cannot apply FEMA's valuation of loss of water service to monetize the 
historical damages associated with water supply disruptions and 
contaminations from CWA HS discharges reported to the NRC.
    The EPA recognizes that additional benefits that were not 
quantified may result from avoided discharges of CWA HS. As discussed 
in the RIA for the proposed action, these benefits include avoided 
impacts to water quality, avoided lost productivity due to a facility 
or process unit shutting down as a result of a discharge, avoided 
emergency response costs associated with responding to a CWA HS 
discharge, avoided transaction costs (such as the cost of litigation 
that may result if the public is impacted by a CWA HS discharge), and 
avoided property value impacts for nearby properties that may result 
due to changes in perceived risk, appeal, or reduced ecological 
services after a CWA HS discharge. The EPA does not have data to enable 
the Agency to quantify or monetize these potential avoided damages.
    To supplement the NRC and NTSIP data used for the proposed action, 
EPA conducted a voluntary survey to obtain

[[Page 46134]]

additional information from states, tribes and U.S. territories, 
including information on CWA HS discharges and fish kills. The EPA 
received data on two additional injuries without hospitalizations, 
which were added to the historical damages in the RIA for the final 
action; however, after rounding, the total monetized damages over the 
10-year period remained $33.1 million in 2016 dollars (see the RIA for 
the final action for discussion of damages from Maryland fish kill 
events).
2. Executive Orders
    Commenters supported EPA's proposed action as consistent with 
President Trump's Executive Orders 13771, Reducing Regulation and 
Controlling Regulatory Costs and 13777, Enforcing the Regulatory Reform 
Agenda, which mandated that agencies across the federal government 
identify two regulations to repeal for every new significant regulation 
proposed. One commenter stated that EPA's proposed action for hazardous 
substances is responsive to these EOs, ensuring that additional, 
unnecessary regulatory requirements are not imposed. Another commenter 
stated that any expansion of a current SPCC rule not only usurps the 
states' regulatory authority but seems to be at odds with President 
Trump's Executive Order 13777, Enforcing the Regulatory Reform Agenda, 
as the order explicitly directed agencies to identify regulations that 
are unnecessary or impose costs that exceed benefits.
    The EPA acknowledges the comments supporting its decision not to 
finalize new regulatory requirements. The Agency is basing this 
decision on the frequency and impacts of reported CWA HS discharges and 
a review of existing framework of EPA regulatory requirements to 
prevent and contain CWA HS discharges.
    With regard to Executive Order 13132, a commenter stated that EPA 
should reconsider its proposal to take no further action and work 
within the scheme of cooperative federalism established by the CWA and 
consult with the states and tribes to establish an effective 
prevention, control, and countermeasures program that meets the charge 
of section 311(j)(1)(C) of the CWA. The commenter added that under its 
CWA authority, EPA may, at any time, consult with a state on an 
initiative under the CWA and may request to establish a government-to-
government consultation with tribes potentially impacted by upstream 
activities.
    The Agency disagrees that it should reconsider its decision to take 
no further action at this time. In addition to the opportunity to 
comment on the proposed action, EPA provided an opportunity for states 
and tribes to provide additional data through a voluntary survey EPA 
sent to states, tribes, and U.S. territories in June 2018. The survey 
requested information on EPCRA Tier II facilities, information on 
discharges of hazardous substances to surface waters from 2007 to 2016, 
as well as existing state programs in place to help prevent and 
mitigate the impacts of discharges of hazardous substances to surface 
waters. EPA received data from 15 states in response to the survey, 
which was analyzed and included in the RIA for the final action. EPA 
acknowledges that while further consultation may be allowed under the 
CWA, it is not required. Additionally, cooperative federalism does not 
directly apply to this section of the statute, which contemplates a 
direct federal program that does not allow for delegation of authority 
to states.
    A commenter opposed EPA's determination that this action would have 
no significant impacts on Indian tribes under E.O. 13175: Consultation 
and Coordination with Indian Tribal Governments, especially with over 
42 hazardous substance sites in Washington State alone. The commenter 
stated that EPA's determination has profound impacts on the United 
States Federal Government and EPA's fundamental ability to fulfill its 
Trust Responsibility in protecting the treaty protected resources of 
the Makah Tribe. The commenter stated that failing to incorporate 
environmental impacts to Treaty Resources results in a failure to 
consider the potential impacts to the rights of Indian Tribal 
Governments of a hazardous substance spill. The commenter further 
stated that federally-recognized Indian Tribes are sovereign 
governments and are required to be given the opportunity to determine 
whether an action will have an impact on their sovereign interests via 
government-to-government consultation as stated in the EPA Policy on 
Consultation and Coordination with Indian Tribes.
    The Agency disagrees with this comment on the Agency's 
determination that this action would have no significant impacts on 
Indian tribes. Tribes were provided the opportunity to comment on EPA's 
proposed action through a tribal consultation call on July 19, 2018. 
During the consultation call, EPA presented information on the proposed 
action. The Agency received tribal input on multiple issues, including 
resource impacts, existing state regulations and the proposed action's 
supporting analysis (e.g., concerns regarding information gaps). After 
taking these and other comments, and the survey data, into 
consideration, and 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 finalizing new regulatory requirements 
at this time.
    With regard to E.O. 12898: Environmental Justice, some commenters 
opposed EPA's approach in the proposed action based on environmental 
justice concerns. A commenter asserted that overwhelmingly, and across 
the country, low-income and communities of color are living adjacent to 
hazardous substance sites, putting them at greater risk for human 
health and environmental impacts as a result of a hazardous substance 
spills. The commenter further asserted that continuing with the status 
quo of minimal regulation of these hazardous substance facilities is 
not only directly contrary to the Consent Decree issued to the EPA by 
the US District Court in New York, it is antithetical to the very 
mission of the EPA as an agency. The commenter specifically highlighted 
the poor health outcomes of Indian communities.
    Another commenter stated that the people who are most likely to be 
impacted by these kinds of events are low-income communities and 
communities of color because they are disproportionately located near 
facilities storing hazardous materials that pollute our air, land and 
water. The commenter added that failure to implement rules that prevent 
spills of hazardous substances that protect vulnerable communities only 
exacerbates the unequal protection that EPA provides to our 
communities.
    A commenter stated that, despite Congress' goal of no hazardous 
waste discharges, EPA treats the hundreds of hazardous substance spills 
that are reported to the NRC each year (and the many more that are not) 
as inevitable and inconsequential, and that EPA does not address the 
significant health risks from exposure to hazardous substances. The 
commenter asserted that some of the most commonly spilled hazardous 
substances are known to cause a range of acute and chronic health 
problems, and that EPA often ignores serious health risks from 
hazardous substances spills in favor of numerical analysis based on 
incomplete and unreliable spill data. This commenter stated that 
hazardous substance spills have a disparate impact on communities of 
color and low-income communities.

[[Page 46135]]

Further, the commenter disagreed that E.O. 12898 is not applicable, 
stating that by proposing no additional action, EPA maintains the 
existing, documented environmental injustices associated with CWA HS 
spills. This commenter urged EPA to consider these disparate impacts 
and adopt a final rule that provides robust public health and 
environmental protections for environmental justice communities. 
Similarly, another commenter stated that the EPA and the states have a 
moral and legal obligation to gather more data on documented and 
potential environmental justice impacts to better understand and 
mitigate the risks associated with non-transportation related 
facilities.
    The EPA disagrees with these comments. Executive Order 12898 (59 FR 
7629, February 11, 1994) directs that, to the greatest extent 
practicable and permitted by law, each Federal agency make the 
achievement of environmental justice (EJ) part of its mission. 
Executive Order 12898 provides that each federal Agency conduct its 
programs, policies, and activities that substantially affect human 
health or the environment in a manner that ensures such programs, 
policies, and activities do not have the effect of (1) excluding 
persons (including populations) from participation in; or (2) denying 
persons (including populations) the benefits of; or (3) subjecting 
persons (including populations) to discrimination under such programs, 
policies, and activities because of their race, color, or national 
origin.
    The EPA considered in the development of this action whether it 
would have a disproportionately high and adverse human health or 
environmental effects on minority, low-income populations and/or 
indigenous peoples, as specified in Executive Order 12898. In its 
analysis for this final action, the Agency identified an existing 
framework of EPA regulatory requirements which adequately serves to 
prevent and contain CWA HS discharges. In addition, the Agency has 
identified only a small number of discharges that might be affected by 
a new regulation (see Section II.A) and there are insufficient data 
about this universe to assess any disproportionate impact of such 
discharges on individual communities, including environmental justice 
communities. Furthermore, the Agency has concluded that any final 
regulatory action under this CWA authority would have a minimal 
incremental effect on spills of CWA HS with the potential to reach 
water. Thus, EPA concludes that the final action likely does not have 
disproportionately high and adverse human health or environmental 
effects on minority, low-income populations and/or indigenous peoples, 
as specified in Executive Order 12898. The Agency is not finalizing new 
regulatory requirements at this time, and therefore, the final action 
does not disproportionally affect environmental justice communities.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.

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

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

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

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because this action does not impose any regulatory requirements 
or contain any information collection activities.

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. This 
action will not impose any requirements on small entities because this 
action does not impose any regulatory requirements.

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 it does not impose any regulatory 
requirements. Thus, Executive Order 13175 does not apply to this 
action. Consistent with the EPA Policy on Consultation and Coordination 
with Indian Tribes, the EPA consulted with tribal officials during the 
development of this action. Tribes were provided opportunities to 
comment on EPA's proposed action through a tribal consultation call on 
July 19, 2018. During the consultation call, EPA presented information 
on the proposed action. The Agency received tribal input on multiple 
issues, including resource impacts, existing state regulations and the 
proposed action's supporting analysis (e.g., concerns regarding 
information gaps). The Agency considered this input in its decision not 
to finalize new regulatory requirements at this time.

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

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not believe the environmental health or safety risks 
addressed by this action present a disproportionate risk to children, 
since this action imposes no regulatory requirements.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The 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.
    The Agency is not establishing at this time new CWA HS prevention 
and

[[Page 46136]]

containment regulatory requirements under CWA section 311(j)(1)(C). 
Therefore, the final action does not establish an environmental health 
or safety standard, imposes no regulatory requirements with costs or 
benefits, and does not disproportionally adversely affect environmental 
justice communities as specified in Executive Order 12898.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

    Dated: August 22, 2019.
Andrew R. Wheeler,
Administrator.
[FR Doc. 2019-18706 Filed 8-30-19; 8:45 am]
 BILLING CODE 6560-50-P