In late March, the Environmental Protection Agency (EPA) proposed the “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations.” The proposed rule will require all non-transportation related onshore facilities that store hazardous substances with potential to cause substantial environmental harm above Clean Water Act (CWA) threshold amounts to prepare and submit a Facility Response Plan (FRP) to the EPA. The response plans will address potential worst-case discharges into or on navigable waters or conveyances to navigable water under adverse weather conditions.

The rule will apply to facilities meeting the following criteria:

1. Capacity to store certain substances: facilities with a maximum capacity above 10,000 times the Reportable Quantity (RQ) of CWA hazardous chemical such as sulfuric acid, ammonia, benzene, sodium hydroxide, hydrochloric acid, etc.
2. Location: facilities within a half mile of navigable waters or conveyances to navigable waters.
3. Potential harm (based on past chemical releases or modeled worst case discharges): facilities which meet the first two criteria will have to evaluate whether a discharge could cause harm to public water system receptors or to fish, wildlife, and sensitive environments. A facility will also be required to submit an FRP if they have met the capacity and location criteria and have had a reportable discharge of a CWA hazardous substance within the last five years.

Even if a facility did not meet all three criteria, an EPA Regional Administrator could still require the facility to complete an FRP based on site-specific factors.

The response plans will include identification of qualified individuals and key response resources, hazard evaluations, drills and exercises, release detection, response actions, and communication plans with Local Emergency Planning Committees (LEPC).

EPA enacted regulations for worst case discharges of oil under 40 CFR Part 112, subpart D in 1994. It has not proposed any regulations for CWA hazardous substances until this rule, which could affect a variety of industries and manufacturers. The proposed rule considers the impact of climate change on increased discharge risks as well as impacts to communities with environmental justice concerns.

Recently, the EPA extended the comment time for the proposed rule to July 26, 2022. When the final rule is issued, facilities will be required to determine if they are subject, and if so, prepare and submit an FRP within twelve months of the effective date of the rule. Newly constructed facilities will be required to submit a FRP before starting operations. In addition, updates to the FRP will be required every 5 years or within 60 days of a change that impacts the facility’s potential to cause substantial harm to the environment.

Catherine Nies is a Chemical Data Management Specialist.  Her responsibility focus on the output end of our Foundation system verifying the information and deciding what reports to produce, including Tier II, permit summaries, EPCRA reports, and any other high priority needs of our clients. A second responsibility for Catherine is tracking EPA, OSHA, CDC, state and local regulatory updates.