On March 28, 2024, the U.S. Environmental Protection Agency (EPA) published its Final Rule: Clean Water Act Hazardous Substance Facility Response Plans (Final Rule), requiring certain facilities to develop Facility Response Plans (FRP) for a worst-case discharge of Clean Water Act (CWA) hazardous substances, or threat of such a discharge.
A worst-case discharge is the largest foreseeable discharge in adverse weather conditions, including extreme weather conditions.
Facilities subject to the rule must prepare response plans in the event of worst-case discharges or threat of such discharges and submit them to EPA.
The Facility Response Plan requirements apply to facilities that could reasonably be expected to cause substantial harm to the environment, based on their location. These include facilities with:
- a maximum onsite quantity of a CWA hazardous substance that meets or exceeds threshold quantities,
- located within a 0.5-mile radius of navigable water or conveyance to navigable water, and
- that meets one or more substantial harm criteria (See CWA Hazardous Substance Facility Response Plan Applicability)
Regulated facilities are required to submit response plans to EPA within 36 months after the effective date of the rule (3/28/2024). During this time, the agency is committed to conducting outreach, providing compliance assistance to the regulated community, and implementing organizations to help them understand the requirements.
CLICK HERE for the Clean Water Act Hazardous Substance Facility Response Plans
Here is a look at the Applicability section of the rule:
(emphasis by me)
This part applies to the owner or operator of any non-transportation-related onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging CWA hazardous substances into or on the navigable waters or a conveyance to navigable waters by meeting the following criteria:
(a) Threshold quantity. The maximum quantity onsite for any CWA hazardous substance listed at 40 CFR 116.4 at any time, meets or exceeds 1,000 times the Reportable Quantity in pounds (kilograms) found at 40 CFR 117.3. Do not include any exceptions or exemptions identified in § 118.8. To calculate the threshold quantities of CWA hazardous substances in mixtures, follow the procedures in § 118.9; and
(b) Proximity to navigable waters. The non-transportation-related onshore facility boundary or nearest opportunity for discharge is located within one-half mile of navigable waters or a conveyance to navigable waters; and
(c) Substantial harm criteria. The non-transportation-related onshore facility meets one or more of the following substantial harm criteria:
(1) Ability to cause injury to fish, wildlife, and sensitive environments. The non-transportation-related onshore facility is located at a distance to an endpoint as calculated using a planning distance in § 118.10(b) such that a worst case discharge of a CWA hazardous substance or the aqueous products that form when the CWA hazardous substance enters water from the non-transportation-related onshore facility could cause injury to fish, wildlife, and sensitive environments. For identification of fish, wildlife, and sensitive environments, owners or operators shall use the applicable Area Contingency Plan prepared pursuant to section 311(j)(4) of the CWA, in addition to identifying other areas pursuant to the definition in § 118.2;
(2) Ability to adversely impact a public water system. The non-transportation-related onshore facility is located at a distance to an endpoint such that a worst case discharge could adversely impact a public water system, as described by the five criteria listed under paragraphs (c)(2)(i) through (v) of this section. This assessment should be conducted in collaboration with the downstream public water system(s). If the owner or operator is unable to work with the public water system after good faith efforts to do so, the owner or operator should use the estimated peak concentration of the CWA hazardous substance from a worst case discharge at the water intake to assess the potential to adversely impact a public water system. Ability to adversely impact a public water system includes a concentration of a CWA hazardous substance, or the aqueous products that form when the CWA hazardous substance enters water, reaching a public water system which:
(i) Violates any National Primary Drinking Water Standard or State Drinking Water Regulation, such as an exceedance of a Maximum Contaminant Level;
(ii) Compromises the ability of the public water system to produce water that complies with any National Primary Drinking Water Standard or State Drinking Water Regulation;
(iii) Results in adverse health impacts in people exposed to the maximum concentration that could enter a drinking water distribution system;
(iv) Contaminates public water system infrastructure, including but not limited to intake structures, treatment facilities, and drinking water distribution systems, or premise plumbing systems to a degree that requires remediation to restore system components to acceptable performance; or
(v) Impairs the taste, odor, or other aesthetic characteristic of the water entering a drinking water distribution system to a degree that could make the water unacceptable to consumers and that could prompt the public water system to issue use restrictions;
(3) Ability to cause injury to public receptors. The non-transportation-related onshore facility is located at a distance to an endpoint as calculated using a planning distance in § 118.10(b) such that a worst case discharge into or on the navigable waters or a conveyance to navigable waters could cause injury to a public receptor as defined in § 118.2; or
(4) Reportable discharge history. The non-transportation-related onshore facility has had a reportable CWA hazardous substance discharge under § 117.21 within the last five years that reached navigable waters.