New EPA Rule Mandates Worst Case Discharge Response Plans for Facilities Handling Hazardous Substances

At a Glance

• EPA finalized a new rule requiring Facility Response Plans for worst-case scenario discharge of hazardous substances under the Clean Water Act.
• EPA expects more than 5400 facilities will meet the criteria to submit a Facility Response Plan.
• Facilities may be required to submit plans pursuant to specific regulatory criteria or at the discretion of an EPA Regional Administrator on a case-by-case basis.

On March 14, 2024, Environmental Protection Agency (EPA) Administrator Michael Regan signed a final rule requiring a broad swath of facilities to develop response plans (FRP) for a worst-case discharge of Clean Water Act (CWA) hazardous substances or threat of a discharge. EPA defines “worst-case discharge” as “the largest foreseeable discharge in adverse weather conditions, including extreme weather conditions due to climate change.” Before this rule, CWA regulations only required owner or operators to prepare FRPs for responding to worst-case discharges of oil. According to EPA’s press release, the purpose of the finalized rule is “to build on EPA’s recent issuance of the Safer Communities by Chemical Accident Prevention Rule” and “strengthen protections for communities already overburdened by pollution because many regulated facilities [are] located in or near these communities.”

What facilities does the rule apply to?

Facilities subject to this rule must prepare an FRP to respond to potential worst-case discharges, or threat of such discharges, for submission to EPA within 36 months. In addition to applying to facilities specifically identified by EPA regional administrators based on potential impacts of a discharge event on communities with environmental justice concerns, facilities will also have to self-identify whether they are required to prepare an FRP based on the following:

• Have a maximum onsite quantity of any CWA hazardous substance that meets or exceeds 1,000 times the Reportable Quantity; and
• Are within 0.5-mile of navigable water or a conveyance to navigable water; and 
• Meet one or more of the following substantial harm criteria:
  • Ability to cause injury to fish, wildlife and sensitive environments.
  • Ability to adversely impact a public water system.
  • Ability to cause injury to public receptors.
  • Has had a reportable discharge of a CWA hazardous substance above the Reportable Quantity within the last five years that reached navigable water. 

EPA expects more than 5,400 facilities — including waste management and remediation services, chemical manufacturing, textile mills, and oil and gas extraction — will meet the criteria of the rule to submit an FRP. EPA created a diagram¹ to determine whether an FRP is required:

When does the rule go into effect, and how long do facilities have to comply?

The rule goes into effect on May 28, 2024, and covered facilities have 36 months (until Thursday, May 28, 2026) to comply. Covered facilities will have to review and recertify their plan every five years.

What is required to be in the plans that must be submitted?

EPA draws from Appendix F of the Oil Pollution Prevention Regulation (40 CFR 112) a template for what the FRP must contain, which includes:

• Emergency Response Action Plan
• Facility information, including its name, type, location, owner and operator information
• Emergency notification, equipment, personnel and evacuation information
• Identification and analysis of potential spill hazards and previous spills
• Discussion of small, medium and worst-case discharge scenarios and response actions
• Description of discharge detection procedures and equipment
• Detailed implementation plan for response, containment and disposal
• Description and records of self-inspections, drills and exercises, and response training
• Diagrams of the facility site plan, drainage and evacuation plan
• Security (e.g., fences, lighting, alarms, guards, emergency cut-off valves and locks, etc.)
• Response plan coversheet

What does this mean for facilities?

Facilities that meet the criteria to submit an FRP will have to start compiling the required information to complete a plan by the Thursday, May 28, 2026, deadline. EPA is prepared to provide technical assistance as facilities develop plans for the first time.

Although whether a facility has had a reportable release within the past five years can be objectively determined, it may not be clear how facilities should apply the other three factors under the final rule. Facilities that handle large amounts of hazardous substances, especially those located on or near water, should take a close look at their operations and determine whether they fit in the substantial harm criteria² — frequency of past reportable discharges; proximity to navigable waters or a conveyance to navigable waters; age or condition of containers and equipment; potential for hazards such as flooding, hurricanes, earthquakes or other disasters that could result in a worst-case discharge; and other facility- and region-specific information, including local impacts on public health — to determine their likelihood of being captured by the rule.