EPA May Require New Plan for Worst-Case Hazardous Substance Releases

Update 05/16/22

Comment period extended. US EPA will accept public comments on the proposed rule to require planning for a worst-case discharge of hazardous substances until July 26, 2022.

EPA announced the extension in the Federal Register on May 16, 2022. 

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US EPA recently proposed a new regulation that would require certain facilities to create and submit a Facility Response Plan (FRP) for a “worst case” discharge of a hazardous substance listed in the Clean Water Act.

EPA will accept public comments on the proposed rule until May 27, 2022. The proposal would apply to onshore, non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment by discharging a hazardous substance.

To be more specific, the proposed rule may impact facilities that:

• Have the container capacity to store a CWA hazardous substance at or above the quantity threshold, and
• Are located within one-half mile to a navigable water or a conveyance to a navigable water.  

If a facility meets these two criteria, the owner/operator must determine if the facility meets one or more of four substantial harm criteria:

• Ability to adversely impact a public water system;
• Ability to cause injury to fish, wildlife, and sensitive environments (FWSE);
• Ability to cause injury to public receptors; or
• The facility had a reportable discharge of a CWA hazardous substance within the last 5 years.  

Facilities that demonstrate the container capacity, location, and potential for substantial harm would be required to submit an FRP to EPA. In addition, EPA Regional Administrators have authority to require an FRP from a facility even if the facility does not meet the criteria above.

Read EPA’s proposed rule in the Federal Register.

What is a Clean Water Act Hazardous Substance?

The list of “Clean Water Act hazardous substances” is found in 40 CFR 116.4. The list is made up of substances that, when discharged to water, present an imminent and substantial danger to public health and the environment.

Polychlorinated biphenyls (PCBs) are by far the most frequently discharged hazardous substances in recent years. PCBs made up 55% of all (reported) hazardous substances discharges between 2010 and 2019, according to the National Response Center.

Other commonly discharged hazardous substances include sulfuric acid, sodium hydroxide, ammonia, benzene, hydrochloric acid, and chlorine.

What’s in the Proposed Hazardous Substance FRP?

EPA proposes that each covered facility’s Clean Water Act hazardous substance FRP will include:

• Facility information including owner or operator information,
• Hazard evaluation and reportable discharge history,
• Response personnel and equipment, and notification lists,
• Personnel roles and responsibilities,
• Response equipment information, actions, and containment measures,
• Evacuation plans,
• Discharge detection systems,
• Disposal information,
• Training and exercise procedures,
• Self-inspection, and more.

If and when EPA finalizes this rulemaking, Lion News will summarize additional details about the specific elements required in the plan. 

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Tags: Clean Water Act, environmental compliance, EPA, hazardous substances, proposed rules