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The Clean Water Act (CWA) provides that regulations shall be issued "which require an owner or operator of a tank vessel or 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." EPA was sued for failure to fulfill this mandatory duty imposed by Congress. This regulatory action is being conducted under the terms of a consent decree entered into on March 12, 2020, which requires that a proposed action is signed within 24 months of the final agreement and that a final action follow within 30 months of the publication of the proposed rule. Subsequently, the Environmental Protection Agency proposed a regulatory action to require planning for worst case discharges of CWA hazardous substances under section 311(j)(5)(A). EPA plans to promulgate a final rule by Spring 2024 meet the terms of the Consent Decree.

Statement of Need: Worst case discharges of CWA hazardous substances could result in impacts to drinking water; impacts to industrial and agricultural water uses; commercial and recreational waterway closures; impacts to fish and other aquatic life; impacts to ecosystems and the environment; injuries, hospitalizations, and fatalities; emergency response costs; transaction costs; direct property impacts; property value impacts; costs from sheltering in place and evacuations; impacts to sensitive or vulnerable populations; and fiscal revenue impacts. The purpose of this regulation would be to plan for and mitigate these damages.

Summary of the Legal Basis: CWA Section 311(j)(5) directs the president to issue regulations to “require an owner or operator of a tank vessel or 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 was sued for not promulgating the hazardous substance worst case planning regulations and entered into a consent decree with the plaintiffs that requires the EPA to publish a proposed rule by March 12, 2022 and take final action by September 12, 2024.

Alternatives: The EPA is considering a regulatory program modeled on EPA’s Facility Response Plan program for worst case discharges of oil.

Anticipated Costs and Benefits: The Agency will determine anticipated costs and benefits later as it is currently too early in the process.

Risks: To help determine the risks to be addressed by this rulemaking, EPA is reviewing historical data on discharges of CWA hazardous substances.