Hazardous Substance Facility Response Plans – EPA-Issued Final Rulemaking

*The information presented in this article is based on the Clean Water Act Facility Response Plans requirements as of September 13, 2024. Please verify current guidelines and regulations independently.

The U.S. Environmental Protection Agency (U.S. EPA) has issued a final rule under the Clean Water Act (CWA) expanding the requirements for Facility Response Plans (FRPs) to include facilities handling certain hazardous substances exceeding threshold quantities, that are also located within a 0.5-mile radius of a navigable water or conveyance to navigable water, provided they meet one or more substantial harm criteria. These facilities must now develop Hazardous Substance FRPs to address potential worst-case discharges of hazardous substances. The rule aims to protect water bodies from environmental harm. Facilities will need to comply with the new requirements by June 1, 2027.

What Is the Rule?

The U.S. EPA issued a final rule on March 14, 2024, formalizing the new requirement for CWA Hazardous Substance FRPs. The rule requires facilities that have a maximum quantity on-site of CWA hazardous substances 1,000 times or more the Reportable Quantity (RQ)[1] to prepare and implement FRPs for worst-case discharge scenarios. The objective is to protect water bodies and surrounding areas from significant environmental harm, especially in light of increasing frequency and severity of extreme weather events.

The rule applies to facilities that:

• Store, use, or handle CWA hazardous substances in quantities that are 1,000 times or more than the Reportable Quantity (RQ) specified in Code of Federal Regulations (CFR) Title 40 Part 117.3;
• Are located within 0.5 miles of navigable waters or a conveyance to navigable waters;
• Meet one or more of the following criteria:
  • Could harm fish, wildlife, or sensitive environments;
  • Could negatively impact public water systems;
  • Could injure public receptors; and/or
  • Have had a reportable discharge of a CWA hazardous substance above the RQ in the past 5 years that reached navigable waters.

Regulatory Changes

In 1994, the U.S. EPA promulgated regulations for FRPs for worst-case discharges of oil under 40 CFR Part 112, Subpart D. Following a lawsuit filed in 2019 by the National Resources Defense Council and others, the U.S. EPA entered into a consent decree to develop regulations that expand the requirement for developing FRPs to include CWA hazardous substances. The March 14, 2024 rule finalized these regulations and specified an effective date of March 28, 2024.