Conventional wisdom suggests that regulatory activity is more likely to be subdued in a federal election year than in a non-election year.  Based on the continued pace of environmental regulatory activity, conventional wisdom will not hold true this election cycle.

Clean Water Act Hazardous Substance Facility Response Plans

The latest environmental regulatory development is the expansion of the Facility Response Plans (FRP) rules. Because of the rule expansion, the Environmental Protection Agency (EPA) estimates that 5,400 facilities will meet the new criteria and be required to submit a FRP.  As we discuss later, some companies, though they do not meet the criteria, may still be required to prepare a FRP.

The final rule resulted from a 2019 lawsuit by Natural Resources Defense Council et. al. that was settled on March 13, 2020.  This settlement required “non-transportation-related substantial-harm facilities to plan, prevent, mitigate, and respond to worst-case spills of hazardous substances.”  The settlement required the EPA to issue a proposed rule within two years.

Industries Affected by FRP Rule

According to an article in National Law Review, affected industries may include “manufacturing and chemical plants and storage operations located near navigable waters that have an inventory of (Clean Water Act) CWA-listed hazardous substances at or above threshold amounts. Facilities associated with oil and gas extraction, mining, construction, utilities, crop production, animal production and aquaculture, and support activities for agriculture and forestry, among others, could also be affected.”

The rule requires FRPs for “worst-case” discharges of CWA Hazardous Substances from onshore non-transportation-related facilities that due to their location could reasonably be expected to cause substantial harm to the environment by discharging into or on navigable waters, adjoining shorelines, or exclusive economic zone. The Exclusive Economic Zone or EEZ is adjacent to U.S. territorial waters and extends up to 200 nautical miles offshore from the continental U.S., Alaska, and any U.S. territory.

Does The Rule Apply to You?

The EPA established a two-step process to determine if the rule applies to a facility.  If you meet the two screening criteria, then you must assess the ability to cause substantial harm.

Initial Screening

1. If you have a maximum quantity onsite of 1000 times the reportable quantity of CWA Hazardous Substances. Note that initially, the EPA proposed a 10,000 times threshold.
2. If the facility is within one-half mile of navigable waters or conveyance to navigable water.

If you meet the initial screening criteria, you must evaluate whether you meet the substantial harm criteria.

Substantial Harm Criteria

1. Ability to cause injury to fish, wildlife, and sensitive environments.
2. Ability to adversely impact a public water system.
3. Ability to cause injury to public receptors.
4. Reportable discharge history (a reportable release of a CWA hazardous substance that reached a navigable water in the last 5 years).

See the Federal Register Notice for a narrative on each of the above criteria.

FRP for Each CWA Hazardous Substance

If the covered facility meets the two Initial Screening Criteria and at least one of the substantial harm criteria, the owner or operator must complete and submit an FRP to the EPA that includes information on each CWA hazardous substance onsite above the threshold quantity, along with their Substantial Harm Certification Form.

Meet the Initial Screening but not Substantial Harm

In the Federal Register notice, the EPA states that if the facility meets the Initial Screening Criteria, but does not meet any of the substantial harm criteria, the owner or operator must still submit a Substantial Harm Certification Form (Appendix A) to the EPA.  This includes supporting calculations and modeling.

Environmental Justice “Discretion”

The Biden Administration has focused heavily on the issue of environmental justice or EJ in drafting and implementing environmental regulations, including this regulation. In a blog by the law firm, Stinson, they write, “The Final Rule includes a process that allows EPA regional administrators to identify facilities and require the development of an FRP even if other criteria are not met. When a regional administrator is exercising their discretion on whether to require a facility to submit an FRP, the Final Rule allows regional administrators to consider whether there is potential to adversely impact EJ communities. Facilities near EJ communities should be aware” (emphasis added).

 The rule takes effect May 28, 2024, and has a 36-month implementation period. The FRPs must be updated every 5 years.

For more information on environmental compliance issues, see our Environmental Compliance Tips page.

If you are not sure if the new FRP rule applies to your facility or if you have other questions about environmental regulatory issues, contact Matthew Schroeder, P.E. at 248-932-0228 Ext 117.

Alan Hahn drafted this blog.  Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management.  He has worked in environmental management for more than 45 years.  He has written hundreds of blogs and articles.  His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.

 Matthew Schroeder, M.S., P.E., reviewed this blog. Matt is a senior environmental engineer at Dragun Corporation.  Matt has advised industrial, commercial, municipal, and agricultural clients on environmental compliance for 30 years. Matt has defended violations under RCRA, SARA, CWA, and NPDES; prepared, reviewed, and implemented numerous emergency plans; and advised on discharge permitting compliance for a wide variety of industries. Matt is a frequent speaker, author, and expert witness See Matt’s bio.

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