A Quick Dive into Proposed Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations

On March 28, 2022 the U.S. Environmental Protection Agency (U.S. EPA) proposed a new rule, expanding on the current regulations at 40 CFR §118, as authorized under the Clean Water Act (CWA). The proposed rule would require all non-transportation related, onshore facilities to prepare and submit a Facility Response Plan (FRP) addressing the potential worst-case discharge of hazardous substances with the potential to cause substantial harm to the environment. The current rule only covers potential discharges of oil. This proposed rule could impact many industries and manufacturers.

Facilities with an onsite maximum capacity of a CWA hazardous chemical above 10,000 times the reportable quantity (RQ), as identified in 40 CFR §117.3, and located within one-half mile of navigable waters or conveyances to navigable waters will need to evaluate the following criteria to determine if the facility will be subject to the proposed rule.

• Past RQ releases to water,
• Modeled worst case discharges to fish, wildlife, and sensitive environments (FWSE),
• Modeled worst case discharges to public water systems, and
• Modeled worst case discharges to public receptors.

Navigable waters of the United States (navigable waters) as used in sections 311 and 312 of the Federal Water Pollution Control Act are:

• Territorial seas of the United States,
• Internal waters of the United States that are subject to tidal influence,
• Internal waters of the United States that are subject to tidal influence that are or have been waterways for transportation or been improved to connect waters, and
• All waters with the United States that are tributaries to such waters.

The U.S. EPA Regional Administrator will also be authorized to require that facilities prepare and submit a FRP regardless of the criteria noted above.

If subject to the rule, a facility must develop, implement, and submit an FRP. Plans are comprised of multiple requirements including:

• Identification of Qualified Individuals,
• Identification of key response resources,
• Routine employee training and response drills,
• Risk identification and characterization,
• Communication plans with Local Emergency Planning Committees (LEPC), and
• Release detection.

What do I need to do?

Upon final issuance of the rule, facilities will need to determine the applicability to their facility based on specific criteria within the rule and, if, submit a FRP within 12 months after the effective date of the final rule. It is worth noting that the comment period on the proposed rule will close on July 26, 2022. It could be several months until the final rulemaking is published.

If you have questions about how the proposed CWA rule could affect your facility’s compliance, or what your next steps should be once the rule is finalized, please reach out to Matt Dabrowski at mdabrowski@all4inc.com or Karen Thompson at kthompson@all4inc.com. ALL4 is monitoring all updates published by the U.S. EPA on this topic, and we are here to answer your questions and assist your facility with any aspects of facility response plan compliance.