US EPA to expand Facility Response Plans to Clean Water Act Hazardous Substances facilities

In a regulatory update set to go into effect in September 2024, the Environmental Protection Agency (EPA) has a proposed rulemaking under the Clean Water Act (CWA) that mandates onshore, non-transportation-related facilities to plan for the worst-case discharge (WCD) of a CWA hazardous substance  This rulemaking resulted from a 2020 Consent Decree between the EPA, the National Resources Defense Council Inc. (NRDC), Clean Water Action, and the Environmental Justice Health Alliance for Chemical Policy Reform.  The Consent Decree requires EPA to sign the final Rule by September 2024. The rule will likely require existing facilities to have a Facility Response Plan (FRP) by September 2025.

The proposed Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations, introduces a regulatory framework for facilities that could cause substantial harm to the environment through the discharge of CWA HS. Key regulatory thresholds and criteria for triggering the new FRP requirement are outlined below:

  • Applicability Criteria: Facilities expected to cause substantial harm based on location must prepare and submit FRPs for worst-case discharges of a CWA HS to the EPA. The criteria focus on facilities that could significantly harm the environment due to their proximity to navigable waters or adjoining shorelines and the quantities of hazardous substances they handle.
  • Initial Screening Criteria: Facilities must first determine if they have the capacity for a CWA HS onsite at or above a threshold quantity. Then, determine if they are within one-half mile of navigable waters. Facilities meeting these criteria must evaluate their potential to cause substantial harm based on specific criteria.
    • Threshold Quantities and Multipliers: The EPA proposes using a CWA Reportable Quantity (RQ) multiplier for each CWA HS to establish threshold quantities for FRP applicability. This approach aims to quantify the potential environmental impact based on the substance’s properties and historical discharge data.
    • Facility Location Relative to Navigable Waters: A facility’s location, specifically its proximity to navigable waters or conveyance to navigable water, is critical. Facilities within one-half mile of such waters and meeting or exceeding the maximum capacity onsite threshold quantity for a CWA HS must assess if they meet at least one of the substantial harm criteria.
  • Substantial Harm Criteria: Facilities are assessed based on their ability to impact public water systems adversely, cause injury to fish, wildlife, and sensitive environments, injure public receptors, or have had a reportable discharge of a CWA HS within the last five years.
  • EPA Regional Administrator Authority: The EPA Regional Administrator may require facilities to submit an FRP regardless of whether they meet the initial screening criteria, based on site-specific factors and the potential for substantial harm.

The intent of the proposed regulations is to identify and mitigate the risks associated with the worst-case discharges of a CWA HS into navigable waters and ensure that facilities are prepared to respond effectively to environmental emergencies.

As currently proposed, the new FRPs and associated emergency response equipment will be an additional financial cost for facilities throughout the manufacturing sector.  If you think your facility might meet the criteria for the new FRP We can help guide that process based on the chemicals at your facility combined with our extensive experience in preparing response plans.

Read the proposed rulemaking

And in case the list of each CWA HS isn’t something you have memorized; we are including a link to it here

As always, we here at Cox-Colvin are ready to help you navigate these new regulatory waters.  You can start by reaching out to John West