Sink or Swim, the Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations are live!

On March 28, 2024, the U.S. Environmental Protection Agency (EPA) published in the Federal Register the final Clean Water Act (CWA) Hazardous Substances Facility Response Plans (FRP) regulation under 40 CFR 118.

What does it mean?

A non-transportation related, onshore facility with a maximum quantity of any CWA hazardous chemical above 1,000 times the reportable quantity (RQ), as identified under 40 CFR §117.3 and located within one-half (0.5) mile of navigable waters or conveyances to navigable waters must demonstrate that the facility will or will not be subject to the rule. This is significant decrease from 10,000 times the RQ originally proposed in the draft rule, there is no container size exemption, and mixtures containing CWA hazardous chemicals need to be included.

Worst case discharge demonstrations entail:

• Review of past RQ releases to water,
• Modeling the planning distance to public water systems,
• Modeling the planning distance to fish, wildlife, and sensitive environments (FWSE), and
• Modeling the planning distance discharges to public receptors.

Facilities will need to model the planning distance for each CWA hazardous chemical meeting the 1,000 x RQ. Any model used to determine the planning distance must include considerations for adverse weather from climate change and from potential fire or explosions.

Additionally, each EPA Regional Administrator is authorized to the require facilities prepare and submit a FRP regardless of the criteria noted above.

A facility required to develop and submit an FRP comprised of multiple requirements including:

• Identification of Qualified Individuals (QI),
• Identification of key response resources,
• Routine employee training and response drills,
• Risk identification, characterization, control, and communication,
• Communication plans with Local Emergency Planning Committee (LEPC), and
• Release detection including hazardous air releases resulting from discharges.

What do I need to do?

Facilities will need to determine the applicability to their facility based on specific criteria within the rule and, if required, submit a FRP by June 1, 2027. This may seem like a far off date, but inventorying all your CWA hazardous chemicals, modeling worst case discharges, developing the FRP, forecasting for future facility expansions, and implementing capital projects takes time and planning. The clock is ticking, are you going to sink or swim?

If you have questions about how the CWA Worst Case Discharge rule could affect your facility compliance, or what your next steps should be, please reach out to me at mdabrowski@all4inc.com. ALL4 continues to monitor 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.