The U.S. Court of Appeals for the District of Columbia is set to rule on a challenge by an asphalt emulsions manufacturing company alleging that the EPA unlawfully required its facility to maintain a Facility Response Plan (“FRP”) simply because of its proximity to navigable waters. The Regulation in question requires a facility to prepare an FRP if, “because of its location, it could reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters or adjacent shorelines.” The “substantial harm” test is fulfilled when a facility’s total oil storage capacity exceeds 1,000,000 gallons, and the facility is located at such a distance that a discharge from the facility could cause injury to fish and wildlife and sensitive environments. The EPA uses an arbitrary distance (1/2 mile) to determine which facilities are required to develop FRPs. The challenge to the Regulation asserts that the EPA must show that a discharge could reasonably be expected to cause substantial harm. The agency argued that the Regulation does not require proof of actual injury under the substantial harm test. A ruling is expected early next year.