EPA Releases Clean Water Act Spill Response FRPs
Key points to remember
What is happening? The U.S. Environmental Protection Agency (EPA) has released a proposed rule requiring certain facilities to prepare Facility Response Plans (FRPs) to respond to worst-case releases of hazardous substances listed under the Clean Water Act (CWA). The proposed rule is available for public comment until May 27, 2022.
Who is impacted? Affected industries include oil and gas extraction, mining, manufacturing, textiles, warehousing and storage, gas stations and waste management facilities, among others, which are located in proximity to navigable waters and can store any of the 296 CWA-listed hazardous substances at or above the threshold. the amounts.
What should I do? Facility owners and operators, and related trade associations, potentially affected by the proposed rule should consider submitting public comments by the May 27, 2022 deadline.
The proposed rule is intended to expand the scope of facilities required to prepare PRFs, and the scope of substances to be processed by PRFs, under the CWA. Currently, CWA regulations only require the owner or operator of a facility that can reasonably be expected to cause substantial harm to the environment by discharging oil into navigable waters to prepare and implement an FRP to respond to the worst case of an oil spill. The proposed rule expands this provision to require facilities to assess damage caused by any of the 296 hazardous substances listed in the CWA. Where, based on the location of a facility, it is reasonable to expect that there could be significant harm to the environment from a discharge into navigable waters, the facility shall prepare and implement an FRP to respond to the worst-case release of CWA-listed hazardous substances. The proposed rule includes criteria for determining the applicability of the rule and whether an installation may cause significant harm.
The proposed regulations follow the settlement of a 2019 lawsuit by the Natural Resources Defense Council, among others, which claimed that the EPA was required, but failed, to issue regulations “requiring that non-transportation substantial damage facilities plan for, prevent, mitigate and respond to the worst case of hazardous substance spills. »
The consent decree requires the EPA to take final action on a rule regarding worst-case hazardous substance release plans by September 2022.
As a preliminary point, the proposed rule only applies to “non-transmission related” land-based facilities (ie facilities that are not under the jurisdiction of the Department of Transportation). As currently written, there are two ways for a “non-transport related” land-based facility to prepare, submit and implement a CWA hazardous substance FRP for worst-case releases under the proposed rule.
First, facilities that can reasonably be expected to cause significant harm to the environment due to their location are required to prepare, submit and implement PRFs.
The first selection criteria determines whether a facility can store CWA hazardous substances on-site at or above a threshold quantity (10,000x the CWA reportable quantity).
The second selection criterion determines whether the facility is within half a mile of navigable waters or a means of transportation to navigable waters.
If a facility meets both screening criteria, the facility must undergo an assessment to determine if it meets the substantial harm criteria.
The ability to adversely impact a public water system;
The ability to cause injury to fish, wildlife and sensitive environments;
The ability to cause injury to public receivers; and or
One reportable release of a CWA hazardous substance within the last five years.
If the two selection criteria and one or more substantial harm criteria apply, the facility must prepare a FRP.
Second, an EPA Regional Administrator may require the facility owner or operator to prepare, submit, and implement an FRP considering site-specific factors for a facility, whether or not the facility meets to the criteria proposed above. These factors include: threshold quantity; installation location; ability to cause injury to fish, wildlife and sensitive environments; ability to negatively impact a public water supply system; ability to cause injury to public receivers; and a reportable discharge history.
The summary of the EPA applicability criteria is as follows:
Implementation and application
The EPA proposes the following implementation and enforcement methods:
Compliance Dates. Existing facilities that meet the above criteria will have 12 months from the effective date of the final rule to submit an FRP to the EPA. After the regulations come into force, newly regulated facilities will have six months to submit an FRP and newly constructed facilities will have to submit a plan before commencing operations.
Appeal process. If facility owners or operators disagree with the EPA’s determination of significant and substantial damage, or the disapproval of a CWA Hazardous Substance FRP, they may appeal the decision by submitting a request for reconsideration. The regional administrator should assess reconsideration requests as soon as possible.
Stakeholder petitions. The EPA’s proposal includes a petition process to allow the public and other government agencies to provide information about CWA hazardous substance facilities that they believe should be required to submit an FRP. Petitions should include a discussion of how the criteria apply to the facility in question. The regional administrator should review these requests and respond to them as soon as possible.
The CWA Hazardous Substances Worst Case Release Planning regulations are available for public comment until May 27, 2022. Operators and trade associations affected by the proposed changes may consider submitting public comment.
 Complaint for declaratory and injunctive reliefEnvironmental Justice Health Alliance for Chemical Policy Reform v. EPA, no. 1-19-cv-02516 (SDNY, filed March 21, 2019). Section 311(j)(5)(A)(i) if the CWA directs the EPA to issue regulations that require certain facilities to prepare and submit to the EPA “a plan to respond, to the extent practicable, worst case release, and substantial threat of such release, of oil or a hazardous substance 42 USC § 1321(j)(5)(A)(i).