EPA Proposes Rule Expanding Facility Response Plan Requirements

EPA has issued a proposed rule that would require many non-transportation-related facilities to develop a Facility Response Plan under the Clean Water Act, based on planning for worst-case scenario discharges.  This proposed rule significantly increases the number of facilities who may need a Facility Response Plan and increases the number of hazardous substances to be considered when making a compliance determination.

EPA’s goal is to make onshore non-transportation facilities determine if they could reasonably be expected to cause substantial harm to the environment by discharging one of the 296 Clean Water Act hazardous substances into or on navigable waters, the shoreline or exclusive economic zones.  If the facility meets the criteria, then they’ll be required to prepare a Facility Response Plan that plans for worst case scenarios.

This rule is a result of a settlement EPA made in a 2019 lawsuit from the Natural Resources Defense Council and others.  The suit claimed EPA was required, but failed, to make non-transportation-related facilities that could cause substantial harm to plan, prevent, mitigate and respond to worst case spills of hazardous substances.  The consent decree requires EPA to take final action on a rule addressing worst case discharge plans for hazardous substances before September 2022 and this is the result of that.

What Industries are Affected?

The new rule would apply to the following NAICS code groups:

111 Crop Production
115 Support Activities for Agriculture and Forestry
211 Oil and Gas Extraction
212 Mining (except Oil and Gas)
213 Support Activities for Mining
221 Utilities
311 Food Manufacturing
314 Textile Product Mills
321 Wood Product Manufacturing
322 Paper Manufacturing
324 Petroleum and Coal Products Manufacturing
325 Chemical Manufacturing
326 Plastics and Rubber Products Manufacturing
327 Nonmetallic Mineral Product Manufacturing
331 Primary Metal Manufacturing
332 Fabricated Metal Product Manufacturing
333 Machinery Manufacturing
335 Electrical Equipment, Appliance, and Component Manufacturing
336 Transportation Equipment Manufacturing
423 Merchant Wholesalers, Durable Goods
424 Merchant Wholesalers, Nondurable Goods
441 Motor Vehicle and Parts Dealers
444 Building Material and Garden Equipment and Supplies Dealers
447 Gasoline Stations
453 Miscellaneous Store Retailers
488 Support Activities for Transportation
493 Warehousing and Storage
511 Publishing Industries (except internet)
522 Credit Intermediation and Related Activities
562 Waste Management and Remediation Services
611 Educational Services
622 Hospitals
811 Repair and Maintenance
812 Personal and Laundry Services
928 National Security and International Affairs

How Do You Know if It Affects Your Company?

To determine if this applies to your company, there are three criteria to consider.

1. Maximum Capacities Stored Onsite

Determine if your maximum capacity for any of the 296 Clean Water Act-identified hazardous substances meets or exceeds 10,000 times the reportable quantity in pounds.  The reportable quantities for each hazardous substance are different.  Some may be 5000 lbs. (hydrochloric acid, acetic acid), others may be 1000 lbs. (nitric acid, phenol), some may be 100 lbs. (hydrogen sulfide, formaldehyde), others may be 10 lbs. (benzene, nitrogen dioxide, sodium) and some may be 1 lb. (PCBs, arsenic, diazinon).

2. Location

Next, determine if your facility is one half mile of a navigable water or conveyance to a navigable water.  The definition of a navigable water has been under debate for a number of years and has changed between the different Presidential administrations.

3. Substantial Harm Criteria

Last, do you meet any of the substantial harm criteria.  That is, will you:

• Do you have the ability to adversely impact a public water system?
• Could you cause injury to fish, wildlife and sensitive environments?
• Do you have the ability to cause injury to public receptors?
• Have you had a reportable discharge of a Clean Water Act hazardous substance within the past 5 years?

If you meet the substantial harm criteria, you would need to submit your Facility Response Plan to the EPA.  Existing facilities that meet the criteria on the effective date of the rule would have to submit a Facility Response Plan within 12 months.

What is a Facility Response Plan (aka, an FRP)?

FRPs are required per 40 CFR 112.  Current criteria says if you have over 42,000 gallons of oils and are transferring them over water to/from vessels, or if you have over 1,000,000 gallons and meet other certain criteria, you are required to have one. Facility Response Plans requirements are from the Federal Water Pollution Control Act.

Public Comment

EPA is taking public comments on the proposed rule until May 27, 2022.  More information, including links to the public comment site can be found HERE.