EPA Worst-Case Scenario Updates
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Michael Stroud
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EPA Worst-Case Scenario Updates

On March 28, 2022, the Environmental Protection Agency (EPA) issued a proposed rule governing discharge of hazardous substances under the Clean Water Act. The Clean Water Act (CWA) states that regulations shall be issued which 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 a hazardous substance. The EPA proposes to require planning for worst case discharges of CWA hazardous substances for onshore non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment by discharging CWA hazardous substances into or on the navigable waters, adjoining shorelines, or exclusive economic zone.

ILTA and its Members share the objectives of preventing chemical accidents, improving preparedness, practicing environmental stewardship and sustainability, and enhancing community partnerships. But, ILTA and its Members are concerned with EPA’s rule that it might be overly burdensome and need further adjustment to clarify some portions of the proposed rule. ILTA joined in two separate sets of joint comments to this Notice of Proposed Rule.

The first set of comments were filed by the American Petroleum Institute (API), the American Fuel and Petrochemical Manufacturers (AFPM), and the American Exploration and Production Council (AXPC) (Association Comments). The Association Comments focused on several key points. First, that the Proposed Rule is overreaching, extremely complex, unclear in many respects, uncertain and difficult to implement, and includes requirements that far exceed the scope of what is necessary to protect against the risk of substantial harm in the event of a worst-case discharge. Because of the overly broad scope of these requirements, compliance with the Proposed Rule is likely to burden the regulated community and result in unnecessary costs, without advancing the objective of focusing emergency planning requirements on those facilities that have the greatest potential to cause substantial harm to human health and the environment.

The Association’s comments address many of these broad areas with specificity, as well as other areas. The Association Comments highlight the uncertainty of the need for the proposed rule. The Association Comments indicated that there were in fact very few discharges that would be subject to this Proposed Rule because facilities had existing plans and had taken significant safety measures to reduce the likelihood of such discharges. Also, there was significant concern about the use of triggering thresholds for hazardous substances based on the storage capacity versus the actual amounts of hazardous substances stored at the facility. This was a critical issue, particularly for ILTA Members, because this is the crux of ILTA’s industry, storage of liquid commodities, many of which would be hazardous substances and thus triggering the new rule. The other area of focus was the uncertain application and overlap with other regulatory frameworks. Specifically, the Oil Pollution Act of 1990 and the Occupational Safety and Health Administration’s (OSHA) Process Safety Management, and EPA’s Risk Management Plan rules.

The second set of comments were filed by the Agricultural Retailers Association, American Chemistry Council, National Association of Chemical Distributors, National Mining Association, Industrial Minerals Association, The Chlorine Institute, The Fertilizer Institute, and the U.S. Chamber of Commerce (Coalition Comments). The Coalition’s comments focused on several aspects of the Proposed Rule. Specifically, they focused on the cost-feasibility of complying with the final rule, especially for small businesses. Further, the Coalition highlighted several areas of the proposed rule where further clarification was needed. In some places the rule is too expansive, vague, and impractical. The Coalition highlighted how these uncertainties would conflict with the overall goal of reducing the number of worst-case chemical discharges that reach navigable waterways. Although some of the general themes of the two sets of comments were similar, they each addressed the issues in ways that truly highlighted the needs and concerns of ILTA Members. With any questions, please contact Michael Stroud.

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