Echoing recent revisions strengthening the Risk Management Program under the Clean Air Act, the U.S. Environmental Protection Agency (“EPA” or “the Agency”) on March 14, 2024 finalized a rule requiring certain facilities to develop facility response plans (“FRPs”) for “worst-case” discharges (or threat of such a discharge) of hazardous substances under the Clean Water Act (“CWA”).
According to the text of the pre-publication version of the final rule, these FRP requirements would apply to facilities that, “because of their location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone.” Thus, facilities with an onsite quantity of a CWA hazardous substance that meets or exceeds threshold quantities (i.e., 1,000 times the Reportable Quantity identified in 40 CFR 117.3), are located within half a mile radius of a navigable water or conveyance into such water, or that meet one of following substantial harm criteria will be expected to comply:
- Whether the facility has had a reportable discharge of a CWA hazardous substance that reached a navigable water within the last five years;
- Whether it has the ability to “adversely impact a public water system;”
- Whether it has the ability to cause injury to fish, wildlife and “sensitive environments;” and
- Whether it has the ability to cause injury to public receptors.
The new rule also provides a process by which EPA Regional Administrators may assess facilities on a case-by-case basis, and if supported, can require a facility to develop a FRP based on, among other things, factors related to potential impacts of worst-case discharges on environmental justice communities.
In a press release on the matter, EPA estimates that approximately 5,400 facilities will be required to submit FRPs under the new rule. These facilities will have 36 months to submit FRPs to EPA once the rule is published in the Federal Register.
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