[Federal Register Volume 91, Number 32 (Wednesday, February 18, 2026)]
[Proposed Rules]
[Pages 7415-7420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-03220]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 118
[EPA-HQ-OLEM-2025-1707; FRL-7881.2-01-OLEM]
RIN 2050-AH41
Clean Water Act Hazardous Substance Facility Response Plans;
Amendment Reconsideration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advanced notice of proposed rulemaking.
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SUMMARY: The U.S. Environmental Protection Agency (EPA or Agency) is
publishing an advance notice of proposed rulemaking to seek feedback on
reconsidering Clean Water Act Hazardous Substance Facility Response
Plans regulations that were published in the Federal Register on March
28, 2024. This advanced notice of proposed rulemaking seeks feedback on
potential amendments to address implementation challenges and clarify
requirements from the 2024 final rule. Any resulting proposed
amendments will align with Administration priorities and would
prioritize opportunities to address regulatory burden while maintaining
planning requirements to protect human health and the environment when
responding to Clean Water Act Hazardous Substance worst case
discharges.
DATES: Comments must be received on or before March 20, 2026.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2025-1707, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management Docket, Mail Code
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Public Participation''
heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Rebecca Broussard, Office of Resource
Conservation and Recovery Act, Office of Land and Emergency Management,
Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania
Avenue NW, Washington, DC 20460; telephone number: (202) 566-0121;
email: [email protected].
SUPPLEMENTARY INFORMATION:
Acronyms and abbreviations
EPA uses multiple acronyms and terms in this preamble. While this
list may not be exhaustive, to ease the reading of this preamble and
for reference purposes, the EPA defines the following terms and
acronyms here:
List of Abbreviations and Acronyms
ANPRM Advanced Notice of Rulemaking
CWA Clean Water Act
EPA Environmental Protection Agency
FRP Facility Response Plan
HS Hazardous Substance
PWS Public Warter Systems
QI Qualified Individual
RA Regional Administrator
RQ Reportable quantities
Table of Contents
I. Public Participation
A. Written Comments
II. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
III. Background
A. Rule History
B. Regulatory Requirements
IV. Implementation Challenges
A. Applicability Issues
B. Program Implementation Issues
V. Statutory and Executive Order Reviews
I. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2025-
1707 at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket at https://www.regulations.gov any information you consider to
be Confidential Business Information (CBI), Proprietary Business
Information (PBI), or other information whose disclosure is restricted
by statute. [insert alternate language about the submission of CBI or
PBI directly to the Program Office, if applicable.] Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment
policy; information about CBI, PBI, or multimedia submissions; and
general guidance on making effective comments.{time}
II. General Information
A. Does this action apply to me?
A list of NAICS codes at the three-digit level that could be
affected by requirements established under Clean Water Act (CWA)
section 311(j)(5), as applicable, is provided in table 1.
Table 1--Sectors Potentially Affected by the Proposed Rule
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NAICS NAICS description
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111......................................... Crop Production.
112......................................... Animal Production and Aquaculture.
115......................................... Support Activities for Agriculture and Forestry.
211......................................... Oil and Gas Extraction.
212......................................... Mining (except Oil and Gas).
213......................................... Support Activities for Mining.
[[Page 7416]]
221......................................... Utilities.
236......................................... Construction of Buildings.
237......................................... Heavy and Civil Engineering Construction.
238......................................... Specialty Trade Contractors.
311......................................... Food Manufacturing.
312......................................... Beverage and Tobacco Product Manufacturing.
313......................................... Textile Mills.
314......................................... Textile Product Mills.
321......................................... Wood Product Manufacturing.
322......................................... Paper Manufacturing.
323......................................... Printing and Related Support Activities.
324......................................... Petroleum and Coal Products Manufacturing.
325......................................... Chemical Manufacturing.
326......................................... Plastics and Rubber Products Manufacturing.
327......................................... Nonmetallic Mineral Product Manufacturing.
331......................................... Primary Metal Manufacturing.
332......................................... Fabricated Metal Product Manufacturing.
333......................................... Machinery Manufacturing.
334......................................... Computer and Electronic Product Manufacturing.
335......................................... Electrical Equipment, Appliance, and Component Manufacturing.
336......................................... Transportation Equipment Manufacturing.
339......................................... Miscellaneous Manufacturing.
423......................................... Merchant Wholesalers, Durable Goods.
424......................................... Merchant Wholesalers, Nondurable Goods.
441......................................... Motor Vehicle and Parts Dealers.
444......................................... Building Material and Garden Equipment and Supplies Dealers.
447......................................... Gasoline Stations.
453......................................... Miscellaneous Store Retailers.
481......................................... Air Transportation.
486......................................... Rail Transportation.
488......................................... Support Activities for Transportation.
493......................................... Warehousing and Storage.
511......................................... Publishing Industries (except Internet).
518......................................... Data Processing, Hosting, and Related Services.
522......................................... Credit Intermediation and Related Activities.
531......................................... Real Estate.
541......................................... Professional, Scientific, and Technical Services.
561......................................... Administrative and Support Services.
562......................................... Waste Management and Remediation Services.
611......................................... Educational Services.
622......................................... Hospitals.
624......................................... Social Assistance.
712......................................... Museums, Historical Sites, and Similar Institutions.
713......................................... Amusement, Gambling, and Recreation Industries.
811......................................... Repair and Maintenance.
812......................................... Personal and Laundry Services.
921......................................... Executive, Legislative, and Other General Government Support.
924......................................... Administration of Environmental Quality Programs.
926......................................... Administration of Economic Programs.
928......................................... National Security and International Affairs.
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This table is not intended to be exhaustive but rather provides a
guide for readers regarding affected entities potentially regulated by
this action. This table includes the types of entities that EPA is now
aware could potentially be regulated by this action. Other types of
entities not included 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?
EPA is publishing this advanced notice of rulemaking (ANPRM) to
seek feedback on specific elements of the newly promulgated facility
response plan (FRP) requirements for worst case discharges of Clean
Water Act (CWA) hazardous substances (HS) for non-transportation
related onshore facilities under 40 CFR part 118 (89 FR 21924, March
28, 2024). The new requirements focus on facilities that, because of
their location, could reasonably be expected to cause substantial harm
to the environment by discharging a CWA HS into or on the navigable
waters, adjoining shorelines, or exclusive economic zone. The Agency
recognizes there are multiple implementation challenges given the
complex nature of the new program. Further, the regulated community has
also identified process challenges to implementing the requirements as
finalized.
This ANPRM focuses on specific elements of the new requirements
with the goal of identifying opportunities to address implementation
challenges and clarify the existing requirements, including potential
amendments to the existing requirements that could offer potential
burden reductions. The regulatory elements for which the Agency is
explicitly seeking feedback are detailed in the background section
below.
[[Page 7417]]
C. What is the Agency's authority for taking this action?
This ANPRM is authorized by section 311(j)(5) and 501(a) of the
CWA, (33 U.S.C. 1321(j)(5), 1361(a)). Section 311(j)(5) of the CWA
directs the President to issue regulations to require an owner or
operator of a facility to prepare and submit a plan for responding, to
the maximum extent practicable, to a worst-case discharge, and to a
substantial threat of such a discharge, of oil or a hazardous
substance. Executive Order 12777 (56 FR 54757, October 18, 1991)
delegated CWA section 311(j)(5) authority for non-transportation-
related onshore facilities to EPA.
III. Background
A. Rule History
In 1994, EPA promulgated regulations for FRPs for worst case
discharges of oil under 40 CFR part 112, subpart D (59 FR 34070, July
1, 1994). On March 21, 2019, the Natural Resources Defense Council,
Clean Water Action, and the Environmental Justice Health Alliance for
Chemical Policy Reform filed suit in the United States District Court
for the Southern District of New York alleging violations of the CWA
section 311(j)(5)(A)(i) and the Administrative Procedures Act for
failing to promulgate corresponding regulations for FRPs for worst case
discharges of CWA HS. Pursuant to a consent decree, on March 28, 2024,
EPA finalized facility response planning requirements for CWA HS at 40
CFR part 118 (89 FR 21924, March 28, 2024). The list of CWA HS is
available at 40 CFR 116.4 and reportable quantities (RQs) assigned to
each of these CWA HS are at 40 CFR 117.3.
B. Regulatory Requirements
The 2024 final rule established FRP requirements for a worst-case
discharge of CWA HS from non-transportation-related onshore facilities
that, because of their location, could reasonably be expected to cause
substantial harm to the environment by discharging these substances
into or on navigable waters, adjoining shorelines, or the exclusive
economic zone.
The applicability requirements establish three paths to determine
whether a non-transportation related onshore facility is subject to the
CWA FRP rule:
Facility owner/operator determination;
Regional Administrator (RA) case-by-case determination
(applies to any non-transportation-related onshore facility); or
Petition (e.g., by the public) to an EPA Regional
Administrator.
The facility owner or operator applicability determination
considers multiple criteria in sequential order (40 CFR 118.3). First,
an owner or operator of a facility must determine if they satisfy the
initial screening criteria that are based on the quantities of each CWA
HS at the facility and its distance to navigable waters or conveyance
to navigable waters. For purposes of FRP requirements, threshold
quantities for each CWA HS are established in 40 CFR 118.3(a) as a
multiple of 1,000 for the corresponding Reportable Quantity (RQ) \1\
pursuant to the authority provided under section 311(b) of the CWA. If
a facility does not have more than a CWA HS threshold on-site quantity
or if a facility is not within a half mile of a navigable water or a
conveyance to navigable waters, then the facility is not subject to the
requirements of the rule. However, if a facility exceeds both a CWA HS
threshold quantity and is within one-half mile of a navigable waters or
a conveyance to navigable waters, applicability of the FRP requirements
is then determined by evaluating substantial harm criteria that depend,
in part, on planning distance calculations. There are four substantial
harm elements to consider when determining potential applicability:
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\1\ CWA RQs established under 40 CFR 117.3 include five
reportable quantities: 1, 10, 100, 1,000 and 5,000 lbs. This
corresponds to threshold quantities under 40 CFR 118.3(a) of 1,000,
10,000, 100,000, 1,000,000, and 5,000,000 lbs.
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A reportable discharge of a CWA HS from the facility
within the last five years that reached navigable waters;
Ability for a discharge of a CWA HS to navigable waters to
adversely impact a public water system (PWS);
Ability for a discharge of a CWA HS to navigable waters to
cause injury to fish, wildlife, and sensitive environments; or
Ability for a discharge of a CWA HS to navigable waters to
cause injury to public receptors.
Figure 1--Applicability Criteria for CWA Hazardous Substance FRP
Facilities
[GRAPHIC] [TIFF OMITTED] TP18FE26.001
Substantial harm criteria require multiple layers of analyses to
determine if the facility is located at a distance to an endpoint such
that it meets the substantial harm specific thresholds. For example, to
determine the ability to adversely impact a PWS, the owner or operator
of a facility must evaluate five sub-criteria to assess the substantial
harm criterion for PWS. In so doing, the facility should coordinate
with the PWS to conduct its assessment. The five sub-criteria for
whether a worst case discharge adversely impacts a PWS includes a
concentration of a CWA HS that: violates any National Primary Drinking
Water Standards or State Drinking Water Regulations, compromises the
ability of the PWS to comply with such standards, results in adverse
health impacts in people exposed to the maximum concentration that
could enter a drinking water distribution system, contaminate public
[[Page 7418]]
water system infrastructure, or impair the taste, odor, or other
aesthetic characteristics of the drinking water.
The requirements include planning distance calculations for both
the facility owner or operator to determine applicability, and, if
required to submit an FRP, to determine worst case discharge response
resources. These calculations are performance-based in that the owner
or operator may use any methodology, model, or technique to calculate
planning distance to the three substantial harm criteria endpoints that
require such calculation, accounting for all applicable requirements
and for facility specific conditions (e.g., water flow rate). In
addition, the final rule provides concentration-based endpoints
specific to fish, wildlife, and sensitive environments and public
receptors.
The FRP requirements under 40 CFR 118.11 include both general
considerations and specific emergency response information, including
an emergency response action plan.
General Plan Requirements
Consistency with National Contingency Plan and Area
Contingency Plans;
Identify Qualified Individual (QI) having full authority
to implement removal actions and require immediate communications
between that individual and the appropriate Federal official and the
persons providing personnel and equipment;
Identify, and ensure by contract or other approved means,
the availability of private personnel and equipment necessary to remove
to the maximum extent practicable a worst-case discharge (including a
discharge resulting from fire or explosion), and to mitigate or prevent
a substantial threat of such a discharge;
Describe the training, equipment testing, periodic
unannounced drills, and response actions of persons on the vessel or at
the facility, to be carried out under the plan to ensure the safety of
the vessel or facility and to mitigate or prevent the discharge, or the
substantial threat of a discharge;
Be updated periodically; and
Be resubmitted for approval of each significant change.
Emergency Response Information
Facility information: Facility details including the
facility name; latitude and longitude; street address, with city,
state, and zip code; telephone number; and facility location
information described in a manner that would aid a reviewer and a
responder in locating the facility;
Owner or operator information: Contact information to
include name and preferred contact method;
Hazard evaluation for worst case discharge into or on the
navigable waters or a conveyance to navigable waters considering a
risk-based decision support system that is chemical specific (health
hazards, fire hazards, chemical reactivity, hazard classifications, and
physical and chemical properties, potential effects) and processes that
will help responders make decisions on the identification,
characterization, and control, of risks to human health and the
environment following a CWA HS discharge;
History of reportable discharges of CWA HS in quantities
equal to or exceeding in any 24-hour period the designated RQ and that
reached navigable waters (see 40 CFR 117.21);
Personnel and equipment to implement the necessary
response action to respond to a CWA HS worst case discharge, and to
mitigate or prevent a substantial threat of such discharge;
Evidence of contracts to ensure the availability of proper
response personnel and equipment, including firefighting capabilities
for handling a worst case discharge incident resulting from a fire or
explosion, if facility or mutual aid resources are not available;
A list of individuals or organizations, including contact
information and preferred communication method(s) that need to be
notified in the event of a discharge;
Description of the information to provide response
personnel with, including specifics about the discharge, including CWA
HS name, characteristics, quantity discharged, possible areas and
receptors affected, potential transport to nearby waterways, ignition
sources and explosion potential, and other information that may be
helpful to responders and the public, including updates on the scope
and nature of the discharge as available;
Description of response personnel duties and capabilities,
including training and qualifications;
Description of the response equipment, including purpose,
location, and information on inspections, testing and drills;
Facility evacuation plans, coordinated with community
plans as appropriate and considering potential discharge scenarios and
resulting interactions with response personnel;
Procedures and equipment used to detect discharges,
including reliability checks and inspections;
Response actions to mitigate or prevent worst case
discharges or the substantial threat of such discharges, including
immediate detection, response, and monitoring actions;
Plans to manage contaminated clean up materials, as
appropriate, including recovery, reuse, decontamination, treatment, and
disposal;
Measures to provide adequate containment and drainage of
discharged CWA hazardous substances;
Training and exercise procedures; and
Self-inspection procedures and records of findings to be
retained for five years.
Emergency Response Action Plan
Addresses the first two hours of the incident response;
Outlines continued operations appropriate for Incident
Command;
Identifies contact information for the qualified
individual having full authority to implement removal actions and as
well as contact information for individuals and organizations to be
contacted to coordinate the response (e.g., federal officials, response
personnel);
Includes the facility's response equipment and its
location;
Includes the facility's response personnel capabilities,
including duties and response times and qualifications;
Includes a facility diagram, evacuation plans, and
measures to secure the source; and
Identifies potential pathways to public water systems,
public receptors, and fish and wildlife and sensitive environments.
IV. Implementation Challenges
EPA has identified challenges with implementation of the CWA HS FRP
requirements described in the 2024 final rule. The Agency has also
received similar feedback concerning implementation challenges from
multiple stakeholders, including potentially affected industry sectors.
While the key focus of concerns centers around the complex nature of
applicability determinations, this section also discusses several plan
implementation issues identified. The Agency seeks feedback on
approaches and opportunities to address those concerns, clarify
requirements, and address burden, while maintaining readiness to
protect human health and the environment in case of a CWA HS worst case
discharge to navigable waters.
A. Applicability Issues
Specific to the applicability criteria, EPA recognizes concerns
around the
[[Page 7419]]
complexity for an owner or operator to determine both if a facility is
subject to the requirements and subsequently how to comply. All
facilities that have a CWA HS in a quantity that meets or exceeds the
on-site threshold quantity and are located within one-half mile of
navigable waters or a conveyance to navigable waters are required to
submit a ``Substantial Harm'' determination form to EPA regardless of
whether they meet one or more ``Substantial Harm'' criteria that would
ultimately require an FRP submittal. Concerns regarding the potential
complexity of the applicability requirements, including the potential
multiple calculations for all CWA HS at a facility, make the
substantial harm calculations a key concern for rule implementation,
particularly for facilities that ultimately may not be required to
develop and submit an FRP.
While the Agency had proposed a multiple of 10,000 (10,000x RQs),
the 2024 final rule established screening criteria thresholds at a
multiple of 1,000 of the RQs (1,000x RQs). This change directly
impacted size of the regulated universe. Additionally, the Agency
rejected establishing de minimis thresholds to consider for container
sizes toward the quantity onsite in the 2024 final rule. The Agency
cited factors such as the potential for aggregated smaller quantities
that could cause substantial harm in the event of a worst-case
discharge, and the chemical property variations of the CWA HS,
including toxicity, as rationale against establishing de minimis
container sizes for threshold calculations. Nonetheless, for purposes
of program implementation, concerns have been raised regarding this
approach. Similarly, the requirements do not include de minimis
concentrations to consider for purposes of threshold calculations of
the quantity onsite. The lack of de minimis concentrations impacts, for
example, how threshold quantities are to be determined for CWA HS
generated as process byproducts or intermediates.
Concerns have also been raised regarding proximity to navigable
waters determinations. While the Agency has stated in response to
comments for the 2024 final rule that facility owners or operators
should use the facility boundary or nearest opportunity to discharge
into or on the navigable waters or a conveyance to navigable waters,
potentially affected stakeholders have requested clarifications. For
example, whether distance is measured point-to-point. Or whether
proximity determinations are made relative to the facility fence line
versus potential release location(s), particularly for facilities that
have a large geographic footprint. Concerns additionally have been
raised regarding regulatory ambiguity because of a lack of a
``conveyance'' definition specific to the FRP requirements.
The Agency seeks feedback on approaches to reconsider that would
clarify or amend the requirements in a manner that still targets non-
transportation related onshore facilities that could cause substantial
harm to the environment through a worst-case discharge to navigable
water as required by statute. Specifically, the Agency seeks feedback,
including supporting rationale and data, on what streamlined approaches
may be appropriate.
1. What other RQ multipliers should EPA reconsider? Why?
2. What different approaches, other than an RQ multiplier, should
EPA reconsider establishing threshold quantities?
3. How could EPA simplify the threshold quantity screening
criterion? For example, could a single threshold quantity apply for all
CWA HS in lieu of a multiple of the RQs? If EPA chooses to establish a
single threshold quantity, what rationale will support this approach?
What quantity (or quantities) would be appropriate for the list of CWA
HS in 40 CFR part 116? What reconsiderations should be given to
establishing CWA HS de minimis concentrations, including byproducts and
intermediates? Note, the FRP requirements for facilities handling oil
have thresholds for total oil storage capacity greater than or equal to
42,000 gallons when transferring oil over water, and a total oil
storage capacity greater than or equal to one million gallons
otherwise. While the Agency recognizes the variability of the CWA HS,
oils are complex mixtures with varied compositions depending on the
source of organic matter, the elements from the rock reservoir, and its
degradation over time. These differences in composition translate to
differences in properties such as volatility, water solubility,
toxicity and environmental persistence, all contributing to different
fates and effects in the environment. Parallel assumptions could be
reconsidered to capture the variations in the listed CWA HS for the
purposes of establishing a simpler applicability approach to FRP
regulatory threshold quantities.
4. What factors would support establishing a de minimis container
size for purposes of CWA HS facility applicability threshold
determinations? What reconsiderations should be given to establishing
de minimis container sizes for CWA HS? What are the range of container
sizes that may apply for storing CWA HS? What rationale would support
selecting a de minimis container size?
5. What factors would support establishing de minimis
concentrations for purposes of facility applicability threshold
determinations? What reconsiderations should be given to establishing
CWA HS de minimis concentrations? What rationale would support
establishing de minimis concentrations?
6. How can EPA simplify the facility criterion for proximity to
navigable waters? For example, is a clarification of how to reconsider
``facility boundary'' versus ``nearest opportunity'' necessary?
Likewise, is there a need to clarify the term ``conveyance'' as it
applies to CWA HS FRP requirements? What terminology could the Agency
reconsider?
7. What changes to the substantial harm criteria specified under 40
CFR 118.3(c), if any, should EPA reconsider? What are alternative
approaches to determine whether a facility's discharge of a CWA HS
could reasonably be expected to cause substantial harm?
8. What quantity, other than an RQ, should EPA reconsider for the
five-year reportable discharge substantial harm criterion? Oil FRP
requirements establish a threshold for a five-year reportable discharge
to navigable waters at greater than or equal to 10,000 gallons. What
rationale would support an alternative threshold?
9. What other potential approaches should EPA reconsider for
planning distance determination calculations?
10. What other potential exemptions from the applicability
threshold determination should EPA reconsider? For example, there is an
exemption for wastewater treated by Publicly Owned Treatment Works for
determining whether the CWA HS maximum quantity onsite meets or exceeds
the applicability threshold. What factors would support expanding that
exemption to water treatment facilities/wastewater treated by
privately-owned treatment works under NPDES permit? What rationales
would support establishing other potential exemptions?
11. How should the new CWA HS FRP requirements account for CWA HS
in oils that are already subject to 40 CFR part 112 oil FRP
requirements? What factors would support establishing an exemption for
CWA HS in oils already subject to oil FRP requirements from threshold
quantity calculations?
B. Program Implementation Issues
In addition to the primary concerns specific to applicability
determinations for the CWA HS FRP requirements,
[[Page 7420]]
there are broader program implementation issues that have been
identified by both the Agency and potentially impacted stakeholders.
The Agency recognized in the preamble to the 2024 final rule that, as
this is a new and complex program, it would need to not only provide
compliance assistance as facilities develop plans for the first time,
but also make existing and evolving data sources and tools available as
part of ongoing compliance assistance. While providing guidance on the
various aspect of the regulation may help alleviate implementation
concerns, simplifying requirements to minimize the need for additional
compliance assistance tools may also be an alternative.
The Agency seeks feedback on approaches that would clarify or amend
the requirements in a manner that still targets substantial harm
facilities as required by statute. Specifically, the Agency seeks
feedback on whether a more streamlined approach may be appropriate.
1. What existing tools or alternative approaches would assist a
facility in determining planning distances for the existing worst case
discharge calculations? For example, should EPA reconsider planning
distance approaches like those applied to oil discharges in appendix C
under 40 CFR part 112?
2. How are chemical reaction intermediates and byproducts
appropriately reconsidered in making substantial harm determinations?
How would they be reconsidered in making worst case discharge
calculations? What factors would support their reconsideration in the
rule?
3. What specific overlapping requirements under other relevant EPA
regulatory programs should EPA reconsider for purposes of compliance
with the CWA HS FRP requirements? Are there specific requirements in
other programs that should be highlighted (e.g., 40 CFR part 112--Oil
Pollution Prevention Program, 40 CFR part 68--Risk Management Program)?
4. Are there specific external resources that would assist in the
facility FRP coordination with potentially affected entities at the
federal, state and/or local level (e.g., public water systems)?
5. Are there other opportunities or ways in which to simplify the
CWA HS FRP requirements under 40 CFR part 118 that would maintain
readiness to protect human health and the environment in case of a CWA
HS worst case discharge to navigable waters, adjoining shorelines, or
exclusive economic zone and meet all CWA 311(j)(5) statutory
requirements?
6. What other FRP amendments should the EPA reconsider, that may be
more appropriately targeted to address CWA HS worst case discharges to
navigable waters or adjoining shorelines?
IV. Statutory and Executive Order Reviews
Additional information about statutes and executive orders can be
found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to Office of Management and Budget for review. Any changes made in
response to OMB recommendations have been documented in the docket for
this action. Because this action does not propose or impose any
requirements and instead seeks comments and suggestions for the Agency
to consider in possibly developing a subsequent proposed rule, the
various statutes and Executive Orders that normally apply to rulemaking
do not apply in this case. Should EPA subsequently determine to pursue
a rulemaking, EPA will address the statues and Executive Orders as
applicable to that rulemaking.
List of Subjects in 40 CFR Part 118
Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
Lee Zeldin,
Administrator.
[FR Doc. 2026-03220 Filed 2-17-26; 8:45 am]
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