Proposed Hazardous Substance Regulation Could Pose Major Impact to Facilities

The U.S. Environmental Protection Agency (EPA) recently released a new proposed Facility Response Plan (FRP) regulation under the Clean Water Act (CWA) that could cause major impacts to non-transportation facilities storing large quantities of hazardous substances on-site. Hazardous substances refer to any non-oil substances or chemicals that pose a health or physical hazard or harm to the environment. The EPA lists 296 hazardous substances, but the most common released to water are PCBs (a group of human-made organic chemicals consisting of carbon, hydrogen and chlorine atoms), chlorine, ammonia, sulfuric acid and phosphoric acid.

On March 10, 2022, the EPA proposed a regulation that would require a facility that stores a threshold amount of a hazardous substance on-site, and meets several criteria outlined by the organization, to create an FRP for response to a worst-case discharge of that hazardous substance. This means that the facility is responsible for modeling the path a discharge might take and how to respond in the event the hazardous substances compromise the facility’s surrounding environment.

As the regulation is currently proposed, the hazardous substance FRP regulation is applicable to facilities storing a threshold quantity of 10,000 times the reportable quantity (RQ) of the hazardous substance. This effectively means the regulation will likely affect only very large facilities. Additionally, the facility must meet the following criteria outlined by the EPA to be subject to the requirement:

• The facility is within a half-mile of navigable water or a tributary to navigable water.

AND

• If released, the hazardous substance could cause injury to fish, wildlife and sensitive environments, public drinking water, or public receptors like parks, residential areas or other common areas.

AND/OR

• The facility has experienced a reportable discharge of the hazardous substance that reached water within the last five years.

If a facility fails to meet the capacity threshold of 10,000 times the RQ of a hazardous substance, the facility will likely not need to develop an FRP. However, the EPA reserves the right to mandate that a facility create an FRP, so appropriate documentation should be retained on-site by the facility to validate facilities not needing an FRP.

The EPA anticipates issuing a final ruling on the proposed regulation in September 2024. Under the proposed regulation, facilities would have 12 months after the final rule to implement an FRP if required. The proposed regulation is open for public comment until July 26, 2022.

Regulations and compliance can be tricky to navigate. Our environmental specialists can provide guidance on any questions you may have about facility regulations.