Contributed by Zane Hood, Principal, PPM Consultants
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. If you are searching for some “interesting” late night reading you can read a full copy of the rule here. The final rule is effective on May 28, 2024.
FRP requirements have been around since the promulgation of the Oil Pollution Prevention Regulation (40 CFR Part 112.20) in 1994. Until now the rule was limited only to “Oil” spills, however the new rule will expand to Hazardous Substances as listed in 40 CFR Part 117.3. The rule contains a large list of chemicals/products and it will definitely bring a lot of new facilities into the FRP universe. A few examples of applicable facilities may include but are not limited to:
- Chemical Manufacturing Plants: facilities involved in the manufacturing of various chemicals, including acids, bases, solvents, and other toxic or reactive chemicals.
- Oil Refineries: facilities involved in the processing of crude oil or other petroleum products often contain hazardous substances such as hydrocarbons, acids, and other chemicals, which are subject to regulation under the Clean Water Act.
- Storage Facilities: chemical storage warehouses, bulk storage tanks, and terminals.
- Water Treatment Plants: facilities responsible for treating wastewater or drinking water.
- Facilities with On-Site Chemical Processes: industries such as pharmaceuticals, electronics manufacturing, metal plating, and others.
So, you may be asking yourself “How do I know if this regulation will affect my facility?” The first step to determine if your facility is subject to the rule is to conduct threshold screening. If your facility is 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 Part 117.3, you are subject to the rule. This multiplier is considerably more stringent than EPA’s original proposal of 10,000 times the RQ.
Let’s pause there for a moment and put that into perspective. Assume you are storing xylene solvents at your facility, the RQ for xylene is 100 pounds. Multiply that by 1,000 and you have 100,000 pounds of xylene storage as the first triggering threshold to consider. Based on a density of 7.3 pounds per gallon of xylene, this equates to around 13,700 gallons of xylene. Therefore, if your facility stores a cumulative amount in excess of 13,700 gallons, you must continue with substantial harm consideration. It’s definitely worth noting that there is no minimum container size, so in this situation, if your facility stores 55-gallon drums of xylene and there are more than 249 drums you would continue with threshold screening. Mixtures must be considered based on proportion as well. If the percentage of the mixture is unknown, the resulting mixture is considered in total for the RQ threshold.
If the RQ threshold is exceeded, the next consideration is whether the facility is located within one-half (0.5) mile of navigable waters or conveyances to navigable waters. If the answer is yes, the facility would be subject to the rule. We all know the definition of a navigable water can be controversial; but for starters if there is a perennial stream located within a 0.5 mile radius of the facility, it will be subject to the rule. Needless to say, making this determination can be a gray area at times. So whatever position you take for your facility, give it considerable thought and document the basis for your decision particularly if you decide it is not going to be subject. You may be thinking, “that didn’t seem so bad.” Not so fast, there are many other triggering conditions to be considered.
If the answers to the two threshold conditions we’ve reviewed are “yes,” you will be off to the races with considering the rest of substantial harm criteria, including determining the worst-case discharge scenario, which will entail:
- Review of past RQ releases to water,
- Modeling the planning distance to public water systems, fish, wildlife, and sensitive environments (FWSE), and to public receptors.
Facilities will need to model the planning distance for each CWA hazardous chemical meeting the 1,000 x RQ threshold. It doesn’t appear that EPA has developed any guidance for this methodology, so once again, careful documentation is in order for substantial harm determination, planning distances, etc. EPA specifically calls out that planning distance models must include considerations for adverse weather from climate change and from potential fires or explosions. Additionally, each EPA Regional Administrator is given broad authority to require facilities to prepare and submit a FRP regardless of the baseline criteria noted above. This would include considerations related to environmental justice (EJ) which was mentioned extensively in the preamble and in the rule under “Regional Administrator substantial harm determination.”
If your facility is required to develop and submit an FRP, the plan will be 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.
The requirements very closely resemble the existing oil spill FRP requirements, but they do not mirror them exactly. An existing FRP facility adding in new CWA hazardous substances should be able to readily modify the plan as an integrated contingency plan (ICP) to conjoin and cross-reference the two rules into one plan.
If your facility is subject to the rule, you should consider starting this effort early to get ahead of the curve. The rule requires facilities to have a plan in place prior to June 1, 2027. You might think this date is in the distant future, but you need time and planning to list your CWA hazardous chemicals, model worst case discharges, develop the FRP, plan for future facility expansions, and carry out capital projects. In short, don’t procrastinate!
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 zane.hood@ppmco.com and I will be glad to discuss it with you.