Facilities Required to Develop Hazardous Substance Facility Response Plans

On March 14, 2024, United States Environmental Protection Agency (USEPA) Administrator Michael Regan signed a final rule requiring certain facilities to develop a facility response plan (FRP) for a worst-case discharge of Clean Water Act (CWA)wa, or threat of such a discharge. This rule aims to enhance preparedness and minimize environmental harm in the event of hazardous substance spills. The rule is effective on May 28, 2024.

What entities are affected by the rule?

The rule applies to onshore, non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment by discharging a CWA hazardous substance into or on the navigable waters, adjoining shorelines, or exclusive economic zone. The rule affects many types of entities that manufacture, distribute, and conduct other operations that involve hazardous substances. It sets forth provisions related to definitions, applicability, general requirements, regional administrator determinations, appeals, petitions, exceptions, exemptions, and worst-case discharge calculations.

What are the requirements?

The CWA hazardous substance FRP requirements apply to facilities that

  • Have a maximum on-site quantity of any CWA hazardous substance that meets or exceeds 1,000 times the Reportable Quantity (see 40 Code of Federal Regulations [CFR] 117.3); and
  • Are within 0.5 mile of navigable water or a conveyance to navigable water; and
  • Meet one or more of the following substantial harm criteria:
    • Ability to cause injury to fish, wildlife, and sensitive environments
    • Ability to adversely impact a public water system
    • Ability to cause injury to public receptors
    • Has had a reportable discharge of a CWA hazardous substance above the Reportable Quantity within the last 5 years that reached navigable water

(See CWA Hazardous Substance Facility Response Plan Applicability | USEPA, which includes a visual representation of the applicability criteria.)

To comply with the rule, covered facilities must

  • Model a worst-case discharge scenario;
  • Complete and submit to the USEPA regional administrator a Substantial Harm Certification Form by June 1, 2027; and
  • Within 36 months, prepare and submit to USEPA an FRP.

This proactive measure aims to safeguard water quality and protect ecosystems from hazardous substance spills.

EHS Support has experience with developing and implementing FRPs under the Oil Pollution Prevention regulations and state-specific response plans. We are available to discuss the new rule and how it may affect your facility. Contact Amy Bauer at amy.bauer@ehs-support.com for more information.

Sources

Clean Water Act Hazardous Substance Facility Response Plans. 89 Fed. Reg. 21924 (2024) (to be codified at 40 CFR Parts 118 and 300). https://www.federalregister.gov/documents/2024/03/28/2024-05870/clean-water-act-hazardous-substance-facility-response-plans

Green, J. J., and Lee, Z. J. 2024, March 22. “EPA finalizes first-ever facility response plan requirements for ‘worst-case’ chemical discharges to water.” Kelley Drye & Warren LLP blog. Accessed at https://www.jdsupra.com/legalnews/epa-finalizes-first-ever-facility-1604330/

Kuriger, W. D. 2024, January 18. “Proposed Rule: Avoiding a Worst-Case Scenario for Worst-Case Discharges.” William Mullen, Legal News. Accessed at https://www.williamsmullen.com/insights/news/legal-news/proposed-rule-avoiding-worst-case-scenario-worst-case-discharges

Regulations.gov. Official website of United States Government. Accessed at https://www.regulations.gov/

USEPA. 2024. “Final Rulemaking on Clean Water Act Hazardous Substances Facility Response Plans.” Last updated March 28. Accessed at https://www.epa.gov/hazardous-substance-spills-planning-regulations/final-rulemaking-clean-water-act-hazardous

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