ILTA Developing Comments on EPA Worst-Case Scenario Discharge Rulemaking

On March 28, 2022, the Environmental Protection Agency (EPA) issued a Notice of Proposed Rulemaking regarding the Worst-Case Discharge Planning under the Clean Water Act (CWA). The comments are due July 26, 2022. EPA’s proposal is authorized under the CWA and is an attempt to address EPA’s identified deficiency with discharge response plans related to onshore, non-transportation related facilities that could impact navigable waters, adjoining shorelines, and other economic zones. EPA’s objective with the rulemaking is to establish new requirements for Facility Response Plans (FRPs) for worst case discharges under CWA. EPA wants to develop a new requirement for the FRPs for these onshore facilities because of the facilities location and how the facilities could reasonably cause substantial harm because of a discharge to navigable waters, adjoining shorelines, or exclusive economic zone(s).

EPA cited the need to address this issue based on EPA’s determination that federal and state laws do not provide adequate protection from a “worst case discharge” that could impact navigable waterways, shorelines, and other water-related economic zones. EPA reviewed more than 29 federal legal requirements designed to protect or mitigate negative impacts to drinking water and other waterways. The list of reviewed laws and regulatory regimes included, amongst others, Oil Pollution Act of 1990, the Oil Pollution and Prevention Program, Resource Conservation and Recovery Act (RCRA), Mine Safety, and Occupational Safety and Health Administration Regulations. As a result of a comprehensive review of these and other statutes and regulations, the EPA determined that further regulatory action is required.

In addition to reviewing existing laws, EPA dealt with extensive litigation related to Clean Water Act (CWA). Specifically, in the March 28 notice, EPA cites two previous litigation claims that gave rise to the need and requirement for this rulemaking. The first claim indicates that EPA failed to comply with the CWA by failing to perform and issue regulations requiring the planning, prevention, mitigation, and response to worst case spills of hazardous substances. The second claim was that EPA’s failure to issue regulations in the first claim violated the Administrative Procedures Act and the CWA. The nongovernmental environmental groups and the EPA entered into a consent decree to address these two claims, which the proposed rulemaking seeks to do.

The goal of EPA’s rulemaking is to help develop a requirement for Worst Case Discharge Action Plans to prepare, prevent, and respond to any “worst case discharge”. The EPA’s rulemaking will seek to address several key areas. EPA is seeking comments on the “Applicability Criteria” for the proposed requirements. As parts of the Applicability Criteria, EPA is seeking comments on the: threshold reportable quantity for hazardous substances; facility location; ability for discharge to injure wildlife, fish, and other sensitive areas; potential impact to public water systems; and, ability to injure public receptors. Further, EPA is seeking to clarify the reportable quantities and establish thresholds for entities to comply with the proposed new requirements.

ILTA members are working to provide comments in response to the EPA notice. ILTA is also working with other industry participants to better inform the EPA about the impact of these new requirements on liquid terminal operators and potentially other partner industries. In ILTA’s initial member call several issues of concern were identified. The issues included clarifying the reportable quantities for the triggering threshold, providing insights on how reportable quantities will be applied for different types of mixtures and substances, proposing other evaluative methods for establishing reportable quantities, and clarifying what EPA means by navigable waterways, in addition to that which was already provided in EPA’s notice.

Furthermore, ILTA members want to highlight potential deficiencies and ambiguities in EPA’s worst case scenario discharge calculations. In the calculations, there is further concern regarding EPA’s calculations for different types of vessels, that is, the size and quantity as related to the content of the vessels. ILTA members are working with other industry-related groups to help clarify and provide additional insights into EPA’s newly focused climate-change terms and how adverse weather events will also impact potentially regulated entities.

Given the complexities of this rulemaking and the application of the proposed new requirements, ILTA will be working diligently to help clarify its members’ interests for the EPA. Please look for further updates on this important issue.