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.

EPA recently reviewed inspection data from its regional offices to get an idea of the most common SPCC (Spill Prevention, Control and Countermeasures) Plan deficiencies.  The goal of the review was to help EPA determine how clear their rules were to help companies comply with the regulations.

The data was reviewed for companies who had SPCC Plan issues, with a preference for companies with higher oil storage capacity and who also had to have Facility Response Plans (FRPs) onsite as well.  Inspection data was reviewed for 120 companies with oil storage capacity between 4,000 gallons and 857,000,000 gallons.

Of those, 10 companies didn’t have an SPCC Plan.  Of the remaining, they found that the companies averaged 4 issues with their plans.

Top 9 SPCC Plan Deficiencies (in Order)

• Plan Content, Certifications & Reviews (112.3, 112.5, 112.7) – 119 of the 120 had this deficiency
• General Secondary Containment (112.7)
• Testing and Inspection: Integrity Testing (112.8, 112.12)
• Sized Secondary Containment (112.8, 112.9, 112.12)
• Drainage (112.8)
• Piping: General (112.8)
• Piping: Inspections (112.8, 112.9)
• Discharge Prediction (112.7)
• PE Certification (112.3)

Some examples of these include:

• Inadequate or no documentation of the required 5-year review of the plan;
• Failure to address required containment for piping;
• Failure to address integrity testing of bulk storage containers;
• Failure to demonstrate that secondary containment met the requisite size of design requirements; and,
• Failure to provide procedures for controlling stormwater discharges from diked areas.

Do you have these issues with your own SPCC plan?   Are you required to have an SPCC Plan?  Check out our blog about SPCC plans, or contact us today to help.  We can review your plan for compliance to these issues, conduct the required 5-year update, or provide the required training you need to conduct to your employees.  Contact us today!

​iSi currently manages several industrial wastewater treatment plants for manufacturing facilities. In order to best manage these plants, we first needed to learn how they worked in order to develop standard operating procedures and operator training for our own personnel to use.

Ranging in scope from SOP creation, to supervisor operations training, through individual operator’s training, and certification programs, iSi has formalized the knowledge needed to train operators and managers to run effective industrial wastewater treatment systems. Learn more about the process we went through to put these procedures in place and how we can help you do the same for your own facility.

This webinar covers:

• The Wastewater Process (Using Hexavalent Chromium as an Example)
• Wastewater Chemistry
• Disposal
• Operator Training Content
• Parameter Table for Checks and Balances

This webinar is free – click here to watch it.

EPA and the U.S. Army have finalized their definition of the Waters of the United States (WOTUS) through a new final rule called the Navigable Waters Protection Rule.

The definition of WOTUS has been at the point of contention between regulators, industry and environmental groups since the Clean Water Act amendment in 2015.   The definition has been at the heart of a number of legal battles, and an item of regulatory enforcement uncertainty.

“[The Navigable Waters Protection Rule] clearly delineates where federal regulations apply and gives states and local authorities more flexibility to determine how best to manage waters within their borders,” said EPA in a published fact sheet about the new rule.

What is Included?

Once proposed as six categories, the final rule was narrowed to four major categories of waters to be included:

Territorial Seas and Traditional Navigable Waters

Included are bodies of water such as the Atlantic Ocean, Mississippi River, Great Lakes, large rivers and lakes, tidal waters, tidally influenced waterbodies including wetlands, along coastlines — used in interstate or foreign commerce.

Tributaries

These are rivers and streams that flow to traditional navigable waters either directly or through other non-jurisdictional surface waters.  The flow must be perennial (flowing continuously) or intermittent (flowing continuously during certain times of the year), not just when it rains.

These tributaries can connect through structures such as culverts, spillways, and debris piles.  Ditches can be tributaries if they satisfy the perennial or intermittent flow requirements and could be considered an artificial channel used to convey water when they are tributaries or built in adjacent wetlands.

Lakes, Ponds and Impoundments of Jurisdictional Waters

These are included when they are traditional navigable waters like the Great Salt Lake in Utah or where they contribute a perennial or intermittent flow of water.  Lakes and ponds flooded by an included WOTUS in a typical year would be included.

However, lakes, ponds and impoundments must have a surface water connection to a jurisdictional water body.  If they are only flooded by stormwater runoff from fields, or if they lose their water only through evaporation, underground seepage or use, they wouldn’t be included.

Adjacent Wetlands

Wetlands are adjacent and included if they:

• Physically touch other included WOTUS;
• Are separated from an included WOTUS by a natural berm, bank or dune;
• Are flooded by an included WOTUS in a typical year;
• Are separated from an included WOTUS by an artificial dike, barrier or similar structure that allows direct connection between the wetland and the WOTUS through a culvert, flood gate, pump, or similar; or,
• Are separated by a road or similar structure where there is an allowance for direct surface connection during a typical year.

What is NOT Included?

The below are not included as long as they do not meet the above definitions, and are upland and in non-jurisdictional areas.

• Groundwater, including drains in agricultural lands;
• Ephemeral features: springs, streams, swales, gullies, rills and pools;
• Stormwater: diffuse stormwater runoff and directional sheet flow over upland as well as stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater runoff;
• Farm and roadside ditches;
• Prior converted cropland (except in the case where the cropland has been abandoned/not used for agricultural purposes in the previous five years and has reverted to wetlands);
• Artificially irrigated areas including flooded fields for agricultural purposes;
• Artificial lakes and ponds including water storage reservoirs and farm irrigation, stock watering and log cleaning ponds;
• Water-filled depressions incidental to construction or mining and pits for fill, sand, and gravel;
• Groundwater recharge, water reuse, and wastewater recycling structures (detention, retention and infiltration basins and ponds); and,
• Waste treatment systems, that is, lagoons, treatment ponds, settling and cooling ponds, and all components designed to convey or retain, concentrate, settle, reduce or remove pollutants either actively or passively from wastewater or stormwater prior to discharge.

Representatives of the agricultural community see this new rule as a win for them as it provides some clarity for their industry and relieves some of the potential impacts the 2015 version would have put on them.  Many of the non-included features are agricultural-based.

What’s a Typical Year?

The phrase “typical year” is used widely throughout the definitions.  In this rule, typical year means the normal periodic range of precipitation and other climactic variables based on data for the past 30 years.  So, some areas which have non-typical flooding or non-typical drought during some calendar years may or may not be included depending on what is “typical.”

What Really Matters:  What Are Your Local Laws?

The Navigable Waters Protection Rule defines the requirements of federal law.  However, some states like California have developed their own regulations and definitions that are stricter and the federal law allows for that.  Be aware of what’s required locally, and that’s the rule you’ll need to follow.  However, having this clearer definition of the federal law may be a help in determining what the differences are locally.