Could hazardous substances at your facility trigger new response plans?
The United States Environmental Protection Agency (EPA) has promulgated a final rule requiring Facility Response Plans (FRPs) at certain facilities in preparation of a worst-case discharge of Clean Water Act (CWA) hazardous substances. A worst-case discharge is the largest foreseeable discharge in adverse weather conditions, including extreme weather conditions due to climate change.
The FRP requirements apply to facilities that could reasonably be expected to cause substantial harm to the environment. These include facilities with a maximum on-site quantity of a CWA hazardous substance that meets or exceeds threshold quantities, located within a 0.5-mile distance to navigable water or conveyance to navigable water, and that meets one or more substantial harm criteria, further outlined below.
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; 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 within the last five years that reached navigable water.
Facilities that meet the threshold requirements but not the substantial harm criteria still need to timely submit their certification of no substantial harm to the EPA. These planning requirements help protect the environment by ensuring that facilities have planned for and can respond to discharges of CWA hazardous substances, particularly in communities with environmental justice concerns, which are often located near industrial facilities.
By the EPA’s estimate, over 108,000 facilities are potentially subject to this rule across a wide range of industries. The EPA’s list of affected facilities is not exhaustive and the EPA places the burden on you to determine if you are regulated. This may catch facilities currently not subject to Spill Prevention, Control, and Countermeasure (SPCC) Plans or Oil Pollution Act (OPA) FRPs off-guard. Regulated facilities are required to submit response plans to EPA within 36 months after the effective date of the rule, May 28, 2024.
For additional EPA information, please click here. Please contact Roux below for further insights into whether this rule affects you, and if so, which further actions we can take to help you achieve compliance.
