Most Environmental Health and Safety professionals are familiar with the Clean Water Act (CWA) requirements related to oil storage, including the Spill Prevention Control and Countermeasure Plan (SPCC) requirements. Depending on your oil storage capacity, spill plans may be an important part of overall environmental compliance. Similar to the SPCC Plan, with more narrow applicability and more extensive obligations, is the Facility Response Plan (FRP).
Environmental Groups Sue
Because of a lawsuit brought by some environmental groups, the United States Environmental Protection Agency (EPA) is proposing to expand the applicability of the FRP rules. According to the EPA “On March 21, 2019, the Natural Resources Defense Council, on behalf of Clean Water Action and the Environmental Justice Health Alliance for Chemical Policy Reform filed suit in the United States District Court for the Southern District of New York alleging violations of CWA 311(j)(5)(A)(i) and the Administrative Procedures Act (APA).”
The plaintiffs and the EPA entered into a consent decree on March 12, 2020. The consent decree required proposed rulemaking within 24 months. The result is the March 28, 2022, “Clean Water Act Hazardous Substance Worst Case Discharge Planning Regulations.”
The proposed rulemaking is in response to the 2019 settlement of a lawsuit brought by the Natural Resources Defense Council, among others (Image by 3D Animation Production Company from Pixabay).
Expansion of FRP Applicability
Currently, the Clean Water Act regulations only require an owner or operator of a facility that could “reasonably be expected to cause substantial harm to the environment by discharging oil into navigable waters” to prepare and implement a FRP. The resulting proposed rule seeks to expand the scope of facilities required to prepare FRPs. The proposed rule also looks to expand the list of substances addressed by FRPs (See EPA Expands Clean Water Act Spill Response Planning to Hazardous Substances).
SPCC v FRP
The SPCC rule is intended to help facilities prevent a discharge of oil into navigable waters or adjoining shorelines. The FRP rule requires certain facilities to submit a response plan and prepare to respond to a worst-case oil discharge or threat of a discharge.
FRPs consider “worst case discharges of CWA” hazardous substances for onshore facilities. These facilities, because of their location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or exclusive economic zone.
Do the Proposed Changes Apply to Your Facility?
Those potentially affected by the proposed FRP changes include industries ranging from Crop Production and Food Manufacturing to Chemical Manufacturing, Gasoline Stations, Warehousing & Storage, and Hospitals.
Excerpted from an article in National Law Review they state, “As currently drafted, there are two ways an onshore ‘non-transportation-related’ facility can be required to prepare, submit, and implement a CWA hazardous substance FRP for worst case discharges under the proposed rule.”
“First, facilities that can reasonably be expected to cause substantial harm to the environment based on their location are required to prepare, submit, and implement FRPs.”
“Second, an EPA Regional Administrator can require the owner or operator of the facility to prepare, submit, and implement an FRP based on the consideration of site-specific factors for a facility, regardless of whether a facility meets the criteria proposed…These factors include: threshold quantity; facility location; 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; and a reportable discharge history.”
As the applicability is far more complex, you should read the article and/or the regulation for a better understanding of the proposed rule.
What Should You Do Now?
If you want to comment, you can do so on or before May 27, 2022. There have already been more than 750 comments submitted online. If you are not sure if this regulation may apply to your facility and/or if you need to update your existing spill plans, we can help. Contact Matthew Schroeder, P.E. at 248-932-0228, Ext. 117 with questions you may have.
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