2710ss01

Statement Supporting for

the Information Collection Request

for the Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations

1. IDENTIFICATION OF THE INFORMATION COLLECTION

1(a) Title of the Information Collection Request

Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations (new), EPA ICR Number 2701.1, OMB Control Number 2050-NEW.

1(b) Short Characterization

Section 311(j)(5) of the Clean Water Act (CWA) directs the President to issue regulations “which require an owner or operator of a tank vessel or facility . . . to prepare and submit to the President 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.” (33 USC 1321). The term “hazardous substance” is defined in CWA section 311(a)(14), and CWA hazardous substances and their associated reportable quantities (RQs) are designated in 40 CFR parts 116 and 117.

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 (APA). The plaintiffs and EPA entered into a consent decree on March 12, 2020 that resolved the litigation. The consent decree requires that within two years (24 months) of entry into the consent decree, or by March 12, 2022, EPA must sign a notice of proposed rulemaking pertaining to the issuance of the Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulation. In accordance with the consent decree, this proposed action satisfies EPA’s first obligation under the consent decree.

The proposed action specifies that those facilities that could reasonably be expected to cause substantial harm to the environment, based on their location, are required to prepare and submit response plans for worst case discharges to EPA. The proposed applicability criteria include a CWA hazardous substance threshold quantity based on a multiplier of the RQ, a one-half mile distance to navigable waters and meeting one of the following substantial harm criteria: potential to cause injury to fish, wildlife, or sensitive environments; potential to adversely impact public water systems; potential to cause injury to public receptors; and having a reportable discharge of a CWA hazardous substance within the last five years. Once a facility determines that it is subject to the proposed action, the facility must 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 CWA hazardous substance, based on CWA 311(j)(5).

2. NEED FOR AND USE OF THE COLLECTION

2(a) Need/Authority for the Collection

1. Need for the Collection

Section 311(j)(5) of the CWA directs the President to issue regulations “which require an owner or operator of a tank vessel or facility . . . to prepare and submit to the President 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.” (33 USC 1321). Facilities are determined to be “. . . [an] onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.” Specifically, these plans must:

• Be consistent with the National Contingency Plan (NCP) and Area Contingency Plans (ACP);

• Identify the qualified individual 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 means approved by the President 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.

EPA’s responsibilities for facilities that could reasonably be expected to cause significant and substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone are to:

• Promptly review plans,

• Require amendments if the plans do not meet requirements,

• Approve plans; and

• Review each plan periodically.

Additionally, under 311(j)(6)(A), EPA may require inspection of containment booms, skimmers, vessels, and other major equipment used to remove discharges. Under 311(j)(7), EPA must conduct unannounced drills of removal capability in areas for which Area Contingency Plans are required and under relevant facility response plans. EPA was delegated the authority to regulate non-transportation-related onshore and offshore facilities landward of the coastline, under section 311(j)(5) of the CWA.

1. Authority for the Collection

Under Executive Order (E.O.) 12777 (56 FR 54757, October 18, 1991), EPA was delegated the authority to regulate non-transportation-related onshore facilities and non-transportation related offshore facilities landward of the coastline. The U.S. Dept. of Transportation (DOT) has delegated authority for transportation-related facilities and the U.S. Coast Guard (USCG) has authority for tank vessels and marine transportation-related (MTR) facilities. Section 2(i) of E.O. 12777 allows for further delegation between the agencies as later occurred in a February 3, 1994 Memorandum of Understanding (MOU) between EPA, U.S. Department of the Interior (DOI), and DOT. DOI redelegated 33 U.S.C § 1321(j)(5) authority to regulate non-transportation related offshore facilities landward of the coastline to EPA. This MOU applies to both oil and hazardous substance facilities.

2(b) Practical Utility/Users of the Data

The facility plans required under the proposed revisions to Section 311(j)(5) of the CWA are submitted to the EPA for compliance review and approval. The information would also likely be shared with state and local officials who could use the information to develop or modify emergency response plans for their communities.

3. NON-DUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

3(a) Non-Duplication

To understand the degree to which worse case discharges of CWA hazardous substances are regulated by existing regulations, the Agency analyzed the existing federal and state regulatory framework as well as industry standards for overlap with CWA hazardous substance worst case discharge planning provisions required by CWA section 311(j)(5).

EPA’s analysis found there are no existing federal programs that cover all the required CWA section 311(j)(1)(5) program elements for all CWA hazardous substances. Facilities subject to the Oil Pollution Prevention Facility Response Plan (FRP) regulations or Risk Management Plan (RMP) rule will have significant overlap for the required program elements. Resource Conservation and Recovery Act (RCRA) hazardous waste regulations are comprehensive for CWA hazardous substances present as waste. The burden estimate in this Information Collection Request (ICR) accounts for the overlap with these existing regulations to include only the incremental burden imposed by this information collection. Furthermore, State programs do not provide uniform coverage and are a patchwork, while industry standards are voluntary.

3(b) Public Notice

In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Agency has notified the public through the Federal Register notice on the proposal of this ICR on March 28, 2022 (87 FR 17890 ). EPA will respond to any comments it receives during the 60-day comment period.

3(c) Consultations

EPA will consult with a maximum of nine potential respondents to this proposed rule once the proposed rule is published in the Federal Register as well as consider public comments the Agency receives on this proposed ICR and the proposed RIA in developing burden estimates for this ICR.

3(d) Effects of Less Frequent Collection

EPA is proposing that newly regulated facilities that meet applicability criteria or are notified by the Regional Administrator (RA) that they meet the criteria for substantial harm must prepare and submit a CWA hazardous substance facility response plan within 12 months of the effective date of the final action. Additionally, EPA is proposing that newly constructed facilities (facilities that come into existence after the effective date of the final rule) that meet the applicability criteria must prepare and submit a response plan in accordance with the final rule prior to the start of operations, but no sooner than 12 months after the effective date of the final action. EPA is also proposing that plans be updated and in place prior to the implementation of planned change in design, construction, operation, or maintenance at the facility that mean the facility now meets the applicability criteria. Because collection is not periodic, less frequent collection is not possible.

3(e) General Guidelines

The collection activities specified in this proposed ICR adhere to the guidelines specified by OMB.

3(f) Confidentiality

All information submitted to the agency in response to the ICR will be managed in accordance with applicable laws and EPA’s regulations governing treatment of confidential business information at 40 CFR Part 2, Subpart B. Any information determined to constitute a trade secret will be protected under 18 U.S.C. § 1905.

3(g) Sensitive Questions

The information collection activities under this ICR do not involve any sensitive questions.

4. RESPONDENTS’ NAICS CODES, INFORMATION REQUESTED

4 (a) Respondents’ NAICS Codes

The statute governing both oil and CWA hazardous substances worst case discharges specifies that those facilities that could reasonably be expected to cause substantial harm to the environment, based on their location, are required to prepare and submit response plans for worst case discharges to the EPA. The proposed regulation is applicable to all regulated facilities that meet the applicability criteria in the associated proposed rule.

The industries that are likely to be affected by the requirements in the proposed regulation fall into numerous North American Industry Classification System (NAICS) categories. Approximately 72 percent of facilities are in the following major NAICS groups at the three-digit level that may be subject to the proposed regulation: Utilities (221), Chemical Manufacturing (325), and Merchant Wholesalers, Nondurable Goods (424). Other facilities may be covered by these regulations in other NAICS categories. A complete list of NAICS categories with covered facilities is included in Appendix A.

4(b) Information Requested

(i) Data Items

Facilities that could cause substantial harm to the environment as a result of a CWA hazardous substance release or a discharge of oil must prepare and submit facility response plans under the proposed regulation. The response plans would be required to:

• Be consistent with the requirements of the NCP and ACPs.

• Identify the qualified individual (QI) having full authority to implement removal actions and require immediate communications with Federal officials and other response personnel.

• Identify, and ensure by contract or other means, private personnel and equipment necessary to remove, to the maximum extent practicable, a worst case discharge 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 at the facility under the plan.

• Be updated periodically.

• Be resubmitted for approval for each significant change.

A complete list of data items that would be required in the facility response plans under the proposed regulation can be found in Appendix B.

(ii) Respondent Activities

Facilities owners and operators must determine whether the requirements are applicable to their facility by first checking whether they have maximum onsite storage capacity for a CWA hazardous substance above the reportable quantity (RQ) threshold specified in the proposed rule (i.e., RQ x10,000). If so, the facility owner/operator would then determine whether the facility is within one-half mile of navigable waters or a conveyance to navigable waters. If those two conditions are satisfied, the facility would then determine whether it meets any of the four substantial harm criteria: the potential to adversely impact public water systems, the potential to cause injury to fish and wildlife and sensitive environments (FWSE), the potential to cause injury to public receptors, and having a reportable discharge of CWA hazardous substance within the last five years. If any of those substantial harm criteria are met, then the facility would be required to submit a response plan to EPA.

Owners or operators of facilities that meet the applicability criteria would be required to prepare and submit a response plan to EPA, as outlined above in 4(b)(i), including reviewing and updating the response plan annually.

5. THE INFORMATION COLLECTED: AGENCY ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT

5(a) Agency Activities

EPA would review and approve those plans from facilities whose discharges could potentially pose a significant and substantial harm to the environment. Agency activities would include:

• Logging the submitted response plans into a national tracking database, sending communications acknowledging receipt, and storing the plans.

• Reviewing the plans to identify any deficiencies and to determine whether the facility warrants a “substantial harm” or a “significant and substantial harm” designation and notifying owner/operators of significant and substantial harm facilities of this determination.

• Reviewing all submitted response plans and requiring amendments to those facility owners and operators whose plans do not meet the regulatory requirements.

• Approving response plans for significant and substantial harm facilities and notifying facilities of plan approval.

• Periodically reviewing facility response plans.

• Conducting unannounced drills of removal capability in areas for which ACPs are required under relevant facility response plans.

5(b) Collection Methodology and Management

Owners or operators who determine that their facility meets the substantial harm criteria would send their plan to the appropriate EPA Regional office for Agency review and approval. The response plan review and approval process would be directed by an EPA RA based on national criteria and local conditions and considerations. EPA Regional offices would notify each owner or operator directly of the status of the facility’s response plan (i.e., approved or deficient). For deficient response plans, a list of the deficiencies to be addressed would be sent to the facility. The status of all plans would be tracked by each EPA Regional office.

5(c) Small Entity Flexibility

The proposed rule does not include any specific small entity flexibilities.

EPA considers the relative burden for small facilities to be smaller than the burden for large facilities because of the reduced number of chemicals onsite at smaller facilities. Based on the Regulatory Flexibility Analysis presented in the Regulatory Impact Analysis for the proposed action, EPA did not find a significant impact on a substantial number of small entities (SISNOSE).

5(d) Collection Schedule

Preparation and submission of response plans by owners or operators of subject facilities is a one-time event. However, facility owners or operators are required to review and update their plans periodically to reflect changes at the facility. Certain facility changes that materially affect the response to a worst case discharge require revisions to the response plan and resubmittal of the affected sections to EPA for review and incorporation into the response plan on file with the Agency. The Agency reviews all plans and plan revisions when they are submitted and periodically reviews plans for significant and substantial harm facilities.

EPA is proposing that newly regulated facilities that meet the substantial harm criteria or are notified by the RA that they meet the criteria and must prepare and submit a CWA hazardous substance response plan within 12 months of the effective date of the final action. Additionally, EPA is proposing that newly constructed facilities (facilities that come into existence after the effective date of the final rule) that meet the applicability criteria must prepare and submit a response plan in accordance with the final rule prior to the start of operations, but no sooner than 12 months after the effective date of the final action. EPA is proposing that plans be updated and in place prior to the implementation of planned change in design, construction, operation, or maintenance at the facility as applicable. An unplanned event or RA determination will require response plan submission within six months. EPA is proposing that the owner or operator of a facility revise and resubmit their plan within 60 days of each facility change that may affect the response to a worst case discharge.

6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION

6(a) Estimating Respondent Burden

This section presents estimates of the burden respondents incur when they conduct the information collection activities contained in the proposed rule. The burden to regulated facilities is estimated in terms of the time (in hours) spent by facility personnel to review the proposed regulation and prepare and maintain a response plan on an annual basis.

The Agency’s Regulatory Impact Analysis (RIA) for the proposed rule, “Regulatory Impact Analysis: Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations”, documents the Agency’s methodology for estimating the number of facilities subject to the requirements and the associated compliance burden. In summary, EPA used the list of designated CWA hazardous substances in 40 CFR 116 along with EPCRA Tier II reporting data to identify facilities known to have at least one CWA hazardous substance onsite, by industry, for a sample of states with available data. EPA then compared the maximum daily onsite quantity reported with various thresholds and conducted a screening analysis to estimate the distance of facilities to navigable waters. Lastly, EPA aggregated and extrapolated these data to the entire United States.

For the proposed applicability threshold of RQ x10,000, EPA estimated 2,233 facilities potentially would be subject to the proposed plan requirements. Of these, the subset of facilities that meet both the RQ threshold and the one-half mile to navigable waters criteria must then make the substantial harm determination. For the purposes of estimating the facility universe, EPA conservatively assumed that all the facilities that meet both applicability criteria would also make a determination of substantial harm and be required to develop a response plan. Of the total 2,233 facilities, EPA estimates that 574 facilities would incur burden only for rule familiarization (see Section 2 of the proposed rule RIA for additional detail) and 1,659 facilities would be subject to all requirements of the proposed rule.

The burden analysis for this ICR uses 1,659 as the number of existing facilities (including government facilities) that would be required to submit a response plan to EPA. In addition, EPA assumes that an equivalent of three percent of the total initial plans, or 50 plans, would be submitted on an ongoing annual basis. EPA assumes that half of the annual submissions (25) would be new plans for new facilities, and half (25) would be amended plans from existing facilities. Exhibit 1 provides estimates of the number of existing and new facilities subject to the requirements over the three-year period covered by the ICR.

EXHIBIT 1

Estimate of Existing and New Facilities Subject to the CWA HS Proposed Rule

Facility Type/ Year	Facilities
Year 1
Total Facilities	1,659
Existing Facility Amendments	0
New Facilities	0
Year 2
Total Facilities	1,684
Existing Facility Amendments	25
New Facilities	25
Year 3
Total Facilities	1,709
Existing Facility Amendments	25
New Facilities	25

The total burden of the information collection on the regulated community is calculated by multiplying the average per-facility (“unit”) burden estimated for each facility by the total number of affected facilities. Unit burdens are based on estimates of the labor required to adequately perform the necessary activities. Unit burden estimates include facility personnel in the following labor categories: general and operations manager, environmental engineer, and administrative assistant.

As discussed previously, EPA estimates that 574 facilities would meet the RQ x10,000 criterion, but would fall outside of the one-half mile to navigable waters criterion. EPA assumes these facilities would engage only in the rule familiarization activity because they are not subject to the plan requirements in the proposed action. Unit burden estimates for these facilities not subject to the proposed regulation are presented in Exhibit 4. Owners or operators of facilities that are not required to prepare a response plan will have a minimal rule familiarization burden in year one (Exhibit 2).

EXHIBIT 2

Burdens and Costs of Rule Familiarization and Certification for Facilities Not Required to Prepare CWA HS Facility Response Plans

Hours Required to Read Rule, Make Determination, and Complete Certification	Unit Cost per Facility	Number of Facilities		Total	Total Cost
		Year 1	3-Year Total	Burden (hours)
6	$419	574	574	3,451	$240,359

For facilities developing response plans, the requirements include both a first-year burden to prepare the plan and a subsequent-year burden to maintain the plan. Response plans must ensure that facility owners or operators have the equipment, personnel, information, and procedures needed to respond to a worst case discharge. In subsequent years, for plan maintenance owners or operators of facilities may need to update the response plan to reflect changes at the facility and are required to keep logs of response training and exercises and other records.

To support the estimation of costs that facilities would incur under the proposed action, EPA specified unit labor burden and equipment costs for each proposed program element. EPA previously developed unit burdens for existing similar program elements in previous RIAs for other EPA regulatory actions, and therefore, the burden estimates in this analysis reflect the program elements as defined in other regulations. Existing federal programs and corresponding regulations that include discharge prevention, control, and mitigation provisions include the Oil Pollution Prevention FRP program, the Oil Pollution Prevention Regulation in 40 CFR part 112 (“Oil Pollution Prevention SPCC regulation”) and the RMP rule in 40 CFR part 68.

EPA developed unit burden estimates for individual elements of the response plan on a first- and subsequent-year bases. The burden to determine whether a facility must prepare and/or submit a response plan and to understand the critical definitions and deadlines for the response plan by reading the rule are included in the burden for rule familiarization. Burden estimates to prepare the facility’s response plan consist primarily of personnel time on a one-time basis. Burden in subsequent years includes reviewing the plan, ongoing exercises, training, and coordination with LEPCs. In addition, EPA assumes that facilities do not have adequate in-house response equipment and pay an annual readiness fee to a discharge response contractor. See Section 4.1 of the proposed rule RIA for additional detail about the Agency’s burden estimates for plan development and maintenance.

The first-year burden for a substantial harm facility for rule familiarization and preparation of a response plan is shown in Exhibit 3.

EXHIBIT 3

Estimated Burden and Total Cost for Facilities Required to Prepare Facility Response Plans

Response Plan Requirement	Unit Burden (hours)	Facility Labor Cost	O&M Costs	Total Unit Cost	Number of Facilities				Total Burden (hours)	Total Cost (3-yr total)
					Yr 1	Yr 2	Yr 3	3-Year Total
Rule Familiarization	11	$766	$0	$766	1,659	25	25	1,709	18,803	$1,309,758
Substantial Harm	137	$9,412	$0	$9,412	1,659	25	25	1,709	234,675	$16,088,132
Facility and Owner Information	9	$490	$0	$490	1,659	25	25	1,709	15,384	$838,438
Emergency Response	155	$10,637	$16,500	$27,137	1,659	25	25	1,709	264,950	$46,387,291
Hazard Evaluation	115	$7,607	$0	$7,607	1,659	25	25	1,709	196,361	$13,002,344
Discharge Detection	9	$576	$0	$576	1,659	25	25	1,709	15,384	$984,625
Response Actions, Disposal, and Containment	44	$2,943	$0	$2,943	1,659	25	25	1,709	75,212	$5,031,340
Drills & Exercises	98	$6,479	$0	$6,479	1,659	25	25	1,709	167,517	$11,075,348
LEPC Coordination	14	$851	$0	$851	1,659	25	25	1,709	23,931	$1,455,467
Training	12	$787	$0	$787	1,659	25	25	1,709	20,512	$1,344,763
Total	604	$40,549	$16,500	$57,049	1,659	25	25	1,709	1,032,729	$97,517,506

The subsequent-year burden for existing substantial harm facilities for plan maintenance is shown in Exhibit 4.

EXHIBIT 4

Estimated Burden and Unit Cost for Facilities to Maintain Facility Response Plans Annually

Response Plan Requirement	Unit Burden (hours)	Facility Labor Cost	O&M Costs	Total Unit Cost	Number of Facilities				Total Burden (hours)	Total Cost (3-yr total)
					Yr 1	Yr 2	Yr 3	3-Year Total
Rule Familiarization	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Substantial Harm	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Facility and Owner Information	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Emergency Response	0	$0	$16,500	$16,500	0	1,659	1,684	3,344	0	$55,171,655
Hazard Evaluation	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Discharge Detection	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Response Actions, Disposal, and Containment	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Drills & Exercises	144	$9,595	$0	$9,595	0	1,659	1,684	3,344	481,494	$32,082,762
LEPC Coordination	28	$1,830	$0	$1,830	0	1,659	1,684	3,344	93,624	$6,120,298
Training	2	$65	$0	$65	0	1,659	1,684	3,344	6,687	$216,551
Total	174	$11,490	$16,500	$27,990	0	1,659	1,684	3,344	581,805	$93,591,266

6(b) Estimating Respondent Costs

(i) Facility Labor Costs

To calculate per-facility compliance costs, EPA multiplied the unit labor burden estimates for compliance activities by hourly labor rates for private industry obtained from the Bureau of Labor Statistics (BLS) Occupational Employment & Wage Statistics (OEWS) survey.¹ EPA obtained NAICS-specific wage rates from the BLS data for occupations that align with the compliance burden labor categories noted above: Management, Technical/Engineering, General, and Administrative. Exhibit 5 presents the occupations used for each labor category.

EXHIBIT 5

Labor Burden Occupations

Compliance Labor Category	OEWS Occupation	OEWS Occupation No.
Management	General and Operations Managers	11-1020
Technical/Engineering	Environmental Engineers	17-2080
General	All Occupations	00-0000
Administrative	Administrative Assistants	43-6010
Source: BLS (2019)

EPA obtained the raw hourly wage for each of the above occupations, by NAICS code, from the BLS OEWS. EPA then adjusted the hourly wage for the cost of fringe benefits and overhead using BLS’ Employee Cost of Compensation (ECC) survey.² EPA used the ECC value for all civilian workers, which shows that wages comprise 68.7 percent of total hourly labor cost; therefore, the EPA inflated the raw BLS wages by 1/.687 to estimate the fully loaded labor rate. EPA also adjusted the wages from 2019 to 2020 dollars using the U.S. BEA implicit price deflator for Gross Domestic Product (GDP).³

Exhibit 6 presents the average hourly wage rate for each occupation category, where the average is weighted by the number of in-scope facilities in each NAICS industry (see ‎Appendix D of the proposed rule RIA for NAICS-specific labor rates).

EXHIBIT 6

Average Hourly Labor Rates, by Industry and Occupation ($2020)

Labor Category	Fully Loaded Labor Rate ($/hr)*
All Occupations	$41.31
General & Operations Managers	$96.11
Environmental Engineers	$66.22
Administrative Assistants	$32.38
*Average labor rates for Rule Familiarization differ slightly from the above values because familiarization captures a broader set of facilities (2,233) compared to the subset estimated to develop response plans (1,659). Average labor rates for Rule Familiarization: All: $44.80, Managers: $98.19, Engineers: $67.83, and Admin: $32.34. Source: BLS (2019), BLS (2020)

(ii) Operation and Maintenance (O&M) Costs

As documented in the RIA for the proposed rule, the emergency response section of the response plan would include identifying private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge of a CWA hazardous substance, and to mitigate a substantial threat of a worst case discharge. The proposed rule would also require that the facility provide evidence of contracts or other approved means for ensuring the availability of such personnel and equipment. Facilities are assumed to contract for response capability sufficient to respond to their worst case discharge. Based on the Oil Pollution Prevention FRP program’s RIA estimates of $10,000 per year in 1993⁴, EPA estimated an annual response contractor fee of $16,500 per year in 2020 dollars.

6(c) Agency Burden and Cost

This section summarizes the estimated EPA burden and cost of the proposed requirements based on the most recent ICR for the Oil Pollution Prevention FRP program and on input from EPA Oil Pollution Prevention FRP program staff. As proposed, EPA will incur burden to receive, process, review, and approve submitted response plans. EPA estimated that 1,659 response plans would be submitted initially under the proposed action.

Under the proposal, EPA would review and approve those plans from facilities whose discharges could potentially pose a significant and substantial harm to the environment. A substantial amount of government resources would be required to comprehensively evaluate the adequacy of a response plan from a facility that meets the significant and substantial harm criteria.

A complete list of Agency activities related to review of submitted response plans can be found in Appendix C.

Owners or operators who determine that their facility meets the substantial harm criteria would send their plan to the appropriate EPA Regional office for Agency review and approval. The response plan review and approval process would be directed by EPA’s RAs based on national criteria and local conditions and considerations. EPA Regional offices would notify each owner or operator directly of the status of the facility’s response plan (i.e., approved or deficient). For deficient response plans, a list of the deficiencies to be addressed would be sent to the facility. The status of all plans would be tracked by each EPA Regional office.

EPA estimated the labor burden to start-up and then administer the proposed worst case discharge program, including program start-up costs would be equivalent to 9 full-time equivalent (FTE) employees for EPA Headquarters and 20 FTEs for EPA Regions. EPA’s estimated Agency burden does not include potential additional costs such as regulated community outreach efforts or resources required for IT systems integration for data collection.

Based on these resources and the number of plans, the estimated Agency burden is approximately 37 hours per response plan,⁵ including 12 hours for EPA Headquarters staff and 25 hours for EPA Regional staff (Exhibit 7).

EXHIBIT 7

Initial Agency Burden for Program Start-Up and Facility Response Plan Review and Approval

Agency Category	FTEs	Burden Hours	Hours per Plan
EPA Headquarters	9.5	19,760	12
EPA Regions	20	41,600	25
Total	29.5	61,360	37

Next, EPA allocated the burden to the GS staff grades that roughly correspond to facility personnel in the managerial, technical, and administrative labor categories, assuming the following labor mix: 20 percent managerial equivalent to GS-14, Step-7 and 80 percent technical equivalent to GS-12, Step-10.

Agency labor costs are calculated based on the 2020 General Schedule (GS) pay schedule for the Washington, DC area. EPA estimated an average hourly labor cost (labor plus overhead) of $85.82 for managerial staff (GS-14, Step-7) and $66.17 for technical staff (GS-12, Step-10). To derive hourly estimates, EPA divided annual compensation estimates by 2,080, which is the number of hours in the Federal work year. EPA then multiplied hourly rates by the standard government overhead factor of 1.6. EPA estimated the Agency costs by multiplying the hourly labor rates for EPA personnel by the quantity of labor hours for each labor category (Exhibit 8). To the extent that salaries are lower for EPA Regional staff outside Washington, DC, the fully loaded wage rate will be an overestimate of Agency costs.

EXHIBIT 8

Hourly Labor Rates for Agency Staff ($2020)

Labor Category	Annual Salary	Hourly Wage	Overhead Factor	Fully Loaded Wage Rate
Managerial (GS-14, Step-7)	$111,571	$53.64	1.6	$85.82
Technical (GS-12, Step-10)	$86,021	$41.36	1.6	$66.17
Source: https://www.federalpay.org/gs/2020

EPA estimated that facilities would incur the above burden for review and approval of the 1,659 in-scope plans over the first three years following rule promulgation. EPA therefore allocates this burden evenly over the first three years of the Agency cost analysis.

Following this period, EPA’s estimated burden includes reviewing 50 new or revised facility plans per year (equivalent to three percent of the initial plan holders⁶), using the average burden of 37 hours per plan, or approximately 1,849 hours per year beginning in the fourth year of the program (Exhibit 9).

EXHIBIT 9

Agency Burden by Labor Category

Labor Category	Agency Start-Up Burden (first 3 yrs)			Agency Annual Burden
	HQ	Regions	Total	HQ	Regions	Total
Managerial	3,952	8,320	12,272	119	251	370
Technical	15,808	33,280	49,088	476	1,003	1,479
Total	19,760	41,600	61,360	595	1,253	1,849

6(d) Estimating the Respondent Universe and Total Annual Respondent Burden and Costs

1. Estimated Total Annual Burden and Costs for All Respondents

The total burden of the information collection is the combined total burdens of rule familiarization, completion of the substantial harm certification form, and development and submittal of the response plan. Total burden is calculated by multiplying unit burden estimates by the number of facilities affected. Total cost is derived in a similar manner. The total burden and costs associated with the development of response plans were shown previously in Exhibits 5 and 6.

As detailed in Section 5.1 of the RIA for the proposed rule, the Agency accounted for facilities’ current degree of baseline compliance when specifying the incremental burden imposed by the proposed rule. EPA estimated the extent of baseline compliance for facilities subject to the proposed action due to the overlap in facilities and program elements in the existing Oil Pollution Prevention FRP, RMP, and RCRA regulatory requirements. The compliance burden for this action is therefore adjusted (i.e., reduced) to account for the actions and associated costs shared by those existing standards and the proposed action. EPA’s overall approach for estimating baseline compliance includes the following steps:

• Estimate the percentage of in-scope facilities that are already subject to the Oil Pollution Prevention FRP, RMP, and RCRA regulations,

• Assess the degree of overlap in regulatory requirements for facilities subject to one or more existing regulations; and,

• Estimate the overall percentage reduction in compliance burden, e.g., a weighted average reduction, based on the combination of the percentage of facilities with overlap, and the degree of overlap in requirements for those facilities.

The Agency estimated an average baseline compliance burden overlap of 45 percent for facilities developing plans under the proposed rule and applied this adjustment to all plan requirements except for the determination of substantial harm (see Section 5.1 of the proposed rule RIA).

The burdens and costs to facility owners, adjusted for baseline compliance with existing regulations, are presented in Exhibits 10, 11, and 12.

EXHIBIT 10

Estimated Burden and Total Cost for Facilities Required to Prepare Facility Response Plans,

by year and 3-year total

Response Plan Requirement	Unit Burden (hours)	Facility Labor Cost	O&M Costs	Total Unit Cost	Number of Facilities				Total Burden (hours)	Total Cost (3-yr total)
					Yr 1	Yr 2	Yr 3	3-Year Total
Rule Familiarization	6	$419	$0	$419	1,659	25	25	1,709	10,276	$715,782
Substantial Harm	137	$9,412	$0	$9,412	1,659	25	25	1,709	234,675	$16,088,132
Facility and Owner Information	5	$268	$0	$268	1,659	25	25	1,709	8,407	$458,206
Emergency Response	85	$5,813	$9,017	$14,831	1,659	25	25	1,709	144,795	$25,350,654
Hazard Evaluation	63	$4,157	$0	$4,157	1,659	25	25	1,709	107,311	$7,105,781
Discharge Detection	5	$315	$0	$315	1,659	25	25	1,709	8,407	$538,098
Response Actions, Disposal, and Containment	24	$1,609	$0	$1,609	1,659	25	25	1,709	41,103	$2,749,627
Drills & Exercises	54	$3,541	$0	$3,541	1,659	25	25	1,709	91,548	$6,052,678
LEPC Coordination	8	$465	$0	$465	1,659	25	25	1,709	13,078	$795,413
Training	7	$430	$0	$430	1,659	25	25	1,709	11,210	$734,913
Total	392	$26,428	$9,017	$35,446	1,659	25	25	1,709	670,812	$60,589,285

EXHIBIT 11

Estimated Burden and Unit Cost for Facilities to Maintain Facility Response Plans Annually,

by year and 3-year total

Response Plan Requirement	Unit Burden (hours)	Facility Labor Cost	O&M Costs	Total Unit Cost	Number of Facilities				Total Burden (hours)	Total Cost (3-yr total)
					Yr 1	Yr 2	Yr 3	3-Year Total
Rule Familiarization	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Substantial Harm	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Facility and Owner Information	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Emergency Response	0	$0	$9,017	$9,017	0	1,659	1,684	3,344	0	$30,151,309
Hazard Evaluation	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Discharge Detection	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Response Actions, Disposal, and Containment	0	$0	$0	$0	0	1,659	1,684	3,344	0	$0
Drills & Exercises	79	$5,244	$0	$5,244	0	1,659	1,684	3,344	263,136	$17,533,230
LEPC Coordination	15	$1,000	$0	$1,000	0	1,659	1,684	3,344	51,165	$3,344,743
Training	1	$35	$0	$35	0	1,659	1,684	3,344	3,655	$118,345
Total	95	$6,279	$9,017	$15,297	0	1,659	1,684	3,344	317,957	$51,147,627

EXHIBIT 12

Estimated Burden and Total Cost for Facilities Required to Prepare and Maintain Facility Response Plans, by year and 3-year total

Response Plan Requirement	Unit Burden (hours)	Facility Labor Cost	O&M Costs	Total Unit Cost	Number of Facilities				Total Burden (hours)	Total Cost (3-yr total)
					Yr 1	Yr 2	Yr 3	3-Year Total
Rule Familiarization	6	$419	$0	$419	1,659	1,684	1,709	3,394	20,401	$1,421,096
Substantial Harm	137	$9,412	$0	$9,412	1,659	1,684	1,709	3,394	465,919	$31,940,969
Facility and Owner Information	5	$268	$0	$268	1,659	1,684	1,709	3,394	16,692	$909,711
Emergency Response	85	$5,813	$18,035	$23,848	1,659	1,684	1,709	3,394	287,473	$80,932,721
Hazard Evaluation	63	$4,157	$0	$4,157	1,659	1,684	1,709	3,394	213,053	$14,107,637
Discharge Detection	5	$315	$0	$315	1,659	1,684	1,709	3,394	16,692	$1,068,325
Response Actions, Disposal, and Containment	24	$1,609	$0	$1,609	1,659	1,684	1,709	3,394	81,605	$5,459,040
Drills & Exercises	132	$8,785	$0	$8,785	1,659	1,684	1,709	3,394	448,828	$29,812,245
LEPC Coordination	23	$1,466	$0	$1,466	1,659	1,684	1,709	3,394	77,896	$4,973,951
Training	8	$465	$0	$465	1,659	1,684	1,709	3,394	25,965	$1,579,193
Total	488	$32,708	$18,035	$50,742	1,659	1,684	1,709	3,394	1,654,524	$172,204,888

The total burden and O&M costs to the entire regulated community are presented in Exhibits 13 and 14. The burdens and costs over three years are taken from Exhibits 2, 10, and 11.

EXHIBIT 13

Total Respondent Burden and Non-Labor Costs Over Three Years

Activity	Year 1		Year 2		Year 3		TOTAL
	Burden (hours)	O&M Cost	Burden (hours)	O&M Cost	Burden (hours)	O&M Cost	Burden (hours)	O&M Cost
Rule Familiarization Only	3,445	$0	0	$0	0	$0	3,445	$0
Plan Preparation	651,190	$14,962,938	9,811	$225,433	9,811	$225,433	670,812	$15,413,804
Plan Maintenance	0	$0	157,790	$14,962,938	160,167	$15,188,371	317,957	$30,151,309
TOTAL	654,635	$14,962,938	167,601	$15,188,371	169,978	$15,413,804	992,213	$45,565,114

EXHIBIT 14

Total Respondent Labor and Non-Labor Costs Over Three Years

Activity	3-Year Total			Annual Average
	Labor Cost	O&M Cost	Total Cost	Labor Cost	O&M Cost	Total Cost
Rule Familiarization Only	$240,359	$0	$240,359	80,120	$0	$80,120
Plan Preparation	$60,580,268	$15,413,804	$75,994,072	20,193,423	$5,137,935	$25,331,357
Plan Maintenance	$51,138,609	$30,151,309	$81,289,919	17,046,203	$10,050,436	$27,096,640
TOTAL	$111,959,236	$45,565,114	$157,524,350	$37,319,745	$15,188,371	$52,508,117

2. Estimated Total Annual Burden and Cost to EPA

The Agency will incur burden to develop the proposed regulatory program and review the 1,659 anticipated response plans. This initial burden is anticipated to be incurred during the first three years of the program. In addition, the Agency will incur ongoing annual burden thereafter to review an estimated 50 new plans per year, as summarized in Exhibit 15.

EXHIBIT 15

Summary of Agency Burden (hours)

Labor Category	Start-Up Burden (3 yrs)	Annual Burden
Managerial	12,272	370
Technical	49,088	1,479
Total	61,360	1,849

Using the labor rates specified in Exhibit 8, EPA estimated that the Agency will incur total start-up costs of $4.3 million, along with annually recurring costs of $130,000 to administer the proposed regulatory program (Exhibit 16).

EXHIBIT 16

Total Agency Cost for the Proposed Action, undiscounted

Start-Up Cost (first 3 year)		Recurring Annual Cost
Number of Plans	Cost	Number of Plans	Cost
1,659	$4,301,383	50	$129,610

The Agency’s total burden and cost on a year-by-year basis in presented in Exhibit 17.

EXHIBIT 17

Estimated Total Burdens and Costs to EPA

Activity	Year 1			Year 2			Year 3			Total
	Number of Plans	Burden (Hours)	Cost	Number of Plans	Burden (Hours)	Cost	Number of Plans	Burden (Hours)	Cost	Burden (Hours)	Cost
Review and Approve Existing Facility Plans	553	20,453	$1,433,794	553	20,453	$1,433,794	553	20,453	$1,433,794	61,360	$4,301,383
Review and Approve New or Amended Plans	0	0	$0	50	1,849	$129,610	50	1,849	$129,610	3,698	$259,220
Total	553	20,453	$1,433,794	603	22,302	$1,563,405	603	22,302	$1,563,405	65,058	$4,560,603

6(e) Bottom Line Burden Hours and Cost

Exhibits 18 and 19 summarize the total estimated burden hours and cost incurred by all respondents (existing and new facilities) to comply with the information collection requirements. Total burden and cost are summarized for respondent facilities and government.

EXHIBIT 18

Total Burden and Cost Estimates

	Facilities		EPA		Total
	Burden (hours)	Total Non-Labor Cost	Burden (hours)	Total Non-Labor Cost	Burden (hours)	Total Non-Labor Cost
Year 1	654,635	$14,962,938	20,453	$0.00	675,088	$14,962,938
Year 2	167,601	$15,188,371	22,302	$0.00	189,903	$15,188,371
Year 3	169,978	$15,413,804	22,302	$0.00	192,280	$15,413,804
Total	992,213	$45,565,114	65,058	$0	1,057,271	$45,565,114

EXHIBIT 19

Total Cost Estimates

Activity	3-Year Total			Annual Average
	Labor Cost	O&M Cost	Total Cost	Labor Cost	O&M Cost	Total Cost
Facilities	$66,412,157	$45,565,114	$111,977,271	$22,137,386	$15,188,371	$37,325,757
EPA	$4,560,603	$0	$4,560,603	$1,520,201	$0	$1,520,201
TOTAL	$70,972,761	$45,565,114	$116,537,874	$23,657,587	$15,188,371	$38,845,958

6(f) Reasons for Change in Burden

This is a new information collection request.

6(g) Burden Statement

The average burden for facilities subject to the proposed rule’s response plan requirements is estimated to be 392 hours on a one-time basis to develop the plan, and 95 hours annually to maintain the plan.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID Number XXXX, which is available for online viewing at www.regulations.gov. This site can be used to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. When in the system, select “search,” then key in the Docket ID Number identified above. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room is closed to the public, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. For further information about the EPA’s public docket, Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets. The telephone number for the Docket Center is 202-566-1744.

Also, you can send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, D.C. 20503, Attention: Desk Officer for EPA. Please include the EPA Docket ID Number XXXX and OMB Control Number XXXX in any correspondence.

APPENDIX A

The industry sectors containing facilities required to develop and submit a response plan to EPA are presented in Exhibit A-1.

EXHIBIT A-1

Industry Sectors and NAICS Codes Covered by the CWA Hazardous Substance Worst Case Discharge Planning Regulations

NAICS Code	NAICS Description
11111	Soybean Farming
11115	Corn Farming
11119	Other Grain Farming
11511	Support Activities for Crop Production
21111	Oil and Gas Extraction
21222	Gold Ore and Silver Ore Mining
21223	Copper, Nickel, Lead, and Zinc Mining
21311	Support Activities for Mining
22111	Electric Power Generation
22131	Water Supply and Irrigation Systems
22132	Sewage Treatment Facilities
31111	Animal Food Manufacturing
31122	Starch and Vegetable Fats and Oils Manufacturing
31411	Carpet and Rug Mills
32111	Sawmills and Wood Preservation
32121	Veneer, Plywood, and Engineered Wood Product Manufacturing
32211	Pulp Mills
32212	Paper Mills
32213	Paperboard Mills
32411	Petroleum Refineries
32419	Other Petroleum and Coal Products Manufacturing
32512	Industrial Gas Manufacturing
32513	Synthetic Dye and Pigment Manufacturing
32518	Other Basic Inorganic Chemical Manufacturing
32519	Other Basic Organic Chemical Manufacturing
32521	Resin and Synthetic Rubber Manufacturing
32522	Artificial and Synthetic Fibers and Filaments Manufacturing
32531	Fertilizer Manufacturing
32532	Pesticide and Other Agricultural Chemical Manufacturing
32561	Soap and Cleaning Compound Manufacturing
32592	Explosives Manufacturing
32599	All Other Chemical Product and Preparation Manufacturing
32621	Tire Manufacturing
32721	Glass and Glass Product Manufacturing
32732	Ready-Mix Concrete Manufacturing
33111	Iron and Steel Mills and Ferroalloy Manufacturing
33121	Iron and Steel Pipe and Tube Manufacturing from Purchased Steel
33131	Alumina and Aluminum Production and Processing
33141	Nonferrous Metal (except Aluminum) Smelting and Refining
33149	Nonferrous Metal (except Copper and Aluminum) Rolling, Drawing, Extruding, and Alloying
33231	Plate Work and Fabricated Structural Product Manufacturing
33281	Coating, Engraving, Heat Treating, and Allied Activities
33299	All Other Fabricated Metal Product Manufacturing
33361	Engine, Turbine, and Power Transmission Equipment Manufacturing
33522	Major Appliance Manufacturing
33531	Electrical Equipment Manufacturing
33591	Battery Manufacturing
33599	All Other Electrical Equipment and Component Manufacturing
33631	Motor Vehicle Gasoline Engine and Engine Parts Manufacturing
33641	Aerospace Product and Parts Manufacturing
33661	Ship and Boat Building
42393	Recyclable Material Merchant Wholesalers
42399	Other Miscellaneous Durable Goods Merchant Wholesalers
42451	Grain and Field Bean Merchant Wholesalers
42469	Other Chemical and Allied Products Merchant Wholesalers
42471	Petroleum Bulk Stations and Terminals
42491	Farm Supplies Merchant Wholesalers
44112	Used Car Dealers
44422	Nursery, Garden Center, and Farm Supply Stores
44711	Gasoline Stations with Convenience Stores
44719	Other Gasoline Stations
48811	Airport Operations
48819	Other Support Activities for Air Transportation
48831	Port and Harbor Operations
48832	Marine Cargo Handling
49311	General Warehousing and Storage
49319	Other Warehousing and Storage
51111	Newspaper Publishers
52232	Financial Transactions Processing, Reserve, and Clearinghouse Activities
56221	Waste Treatment and Disposal
61131	Colleges, Universities, and Professional Schools
81131	Commercial and Industrial Machinery and Equipment (except Automotive and Electronic) Repair and Maintenance
81292	Photofinishing
92811	National Security

APPENDIX B

In order to fulfill the response plan requirements, the regulation requires that the response plan include, among other information, the following elements:

• Information about the facility’s qualified individual having full authority to implement removal actions.

• Information about emergency response, including notification procedures, equipment, personnel, evacuation plans, and duties of the qualified individual.

• Evidence of availability, by contracts or other approved means, of personnel and equipment necessary to remove, to the maximum extent practicable, a worst case discharge and to mitigate or prevent a substantial threat of such a discharge.

• Information on 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 facility safety and to mitigate or prevent the discharge, or the substantial threat of a discharge.

• Information about the facility’s location, owner, and operator.

• A hazard evaluation for worst case discharge and risk-based decision support system.

• A record of the facilities discharge history.

• A description of information to pass to response personnel in the event of a reportable discharge.

• A description of response personnel capabilities, including the duties of persons at the facility during a response action and their response times and qualifications.

• A description of the facility’s response equipment, the location of the equipment, response times, and equipment testing.

• Plans for evacuation of the facility including a diagram, and a reference to community evacuation plans, as appropriate.

• A description of the procedures and equipment used to detect discharges.

• A description of response actions to be carried out by facility personnel or contracted personnel under the response plan to ensure the safety of the facility and to mitigate or prevent discharges or the substantial threat of such discharges, including immediate response actions.

• A description of plans to dispose of contaminated cleanup materials, if appropriate to the material, as well as to provide adequate containment and drainage of discharged CWA hazardous substances.

• A description of training and exercise procedures, and self-inspections [§118.11(b)(16), (17), (18)].

APPENDIX C

Agency activities related to review of submitted plans would include:

• Logging the submitted response plans into a national tracking database, sending communications acknowledging receipt, and storing the plans.

• Reviewing the plans to identify any deficiencies and to determine whether the facility warrants a “substantial harm” or a “significant and substantial harm” designation and notifying owner/operators of significant and substantial harm facilities of this determination.

• Reviewing all submitted response plans and requiring amendments to those facility owners and operators whose plans do not meet the regulatory requirements.

• Approving response plans for significant and substantial harm facilities and notifying facilities of plan approval.

• Periodically reviewing facility response plans.

• Conducting unannounced drills of removal capability in areas for which ACPs for required under relevant facility response plans.

1 U.S Bureau of Labor Statistics (BLS) (2019). Occupational Employment and Wage Statistics (OEWS) Survey. May 2019. https://www.bls.gov/oes/tables.htm

2 U.S. Bureau of Labor Statistics (BLS) (2020). Employer Costs for Employee Compensation Data Series, All 2018 Civilian Wages and Salaries. Table 1. Employer Costs for Employee Compensation by ownership. December 2020. https://www.bls.gov/news.release/ecec.toc.htm

3 U.S. Bureau of Labor Statistics (U.S. BLS). 2021. U.S. Table 1.1.9. Implicit Price Deflators for Gross Domestic Product, 2019 - 1993 (112.34 / 68.92 = 1.63). https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=3&isuri=1&1921=survey&1903=13#reqid=19&step=3&isuri=1&1921=survey&1903=13

4 U.S. Environmental Protection Agency (U.S. EPA). 1994. Regulatory Impact Analysis of Revisions to the Oil Pollution Prevention Regulation (40 CFR 112) to Implement the Facility Response Planning Requirements of the Oil Pollution Act of 1990. Emergency Response Division, Office of Emergency and Remedial Response, June 1994. EPA-HQ-OPA-1993-0001-0061

5 Assuming 2,080 hours per FTE and 1,659 response plans.

6 EPA believes this is a conservative assumption relative to similar statistics found in the RMP rule and Oil Pollution Prevention FRP program RIAs.

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