On March 14, 2024, Environmental Protection Agency (EPA) issued a 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 a discharge. The rule became effective on May 28, 2024.
Facilities subject to this new rule must prepare an FRP to respond to potential worst-case discharges, or threat of such discharges, for submission to EPA before June 1, 2027.
Who’s applicable?
Facilities will have to determine if they are required to prepare an FRP based on the following:
- Facility has an onsite quantity of any CWA hazardous substance that meets or exceeds 1,000 times the Reportable Quantity; and
- Is located within 0.5-mile of navigable water or a conveyance to navigable water; and
- Meets 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 above the Reportable Quantity within the previous five years that reached navigable water.
To determine if a hazardous substance discharge could cause “substantial harm,” the new Rule mandates that facilities model a worst-case scenario discharge and measure the results against specific criteria in the regulations. See final rule here: https://www.epa.gov/hazardous-substance-spills-planning-regulations/final-rulemaking-clean-water-act-hazardous
What’s required?
The final rule details the required scope and content of FRPs. In summary, FRPs must include:
- Identification of Qualified Individual to implement response action.
- A hazard evaluation for a worst-case discharge.
- Record of prior CWA hazardous substances discharges.
- Procedures and equipment to detect discharges and monitor air releases.
- Response personnel and equipment.
- Description of equipment testing, training procedures and unannounced drills.
- Response actions, including immediate and follow up procedures.
- Procedures for notifying government authorities and public water providers.
- Details of evacuation plans.
- Containment measures and other response actions.
- Plan to dispose of contaminated cleanup materials.
What to do now?
Facilities that store and handle large quantities of hazardous substances, especially those located near navigable water, should take a close look at their operations and determine whether they are subject to the FRP requirements.
Facilities need to determine applicability to the new rule and, if required, submit a FRP by June 1, 2027. The process to determine applicability and develop FRPs will take time and planning. Facilities need to inventory all of their CWA hazardous chemicals, model worst case discharges, and develop a comprehensive FRP for EPA review by June 1, 2027.
NGE has significant experience with the development of facility response plans and other contingency planning. We are available to discuss the new “worst-case” spill rule and determine if your facility is must complete and submit a FRP.