Does the New EPA Facility Response Plan Rule Apply to Your Facility?
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In March 2024, the Environmental Protection Agency (EPA) finalized a significant new rule under the Clean Water Act (CWA), requiring certain facilities to develop Facility Response Plans (FRPs) for hazardous substances. The rule applies to facilities that handle CWA hazardous substances but excludes transportation-related facilities.
The final rule, which went into effect on May 28, 2024, aims to mitigate the environmental and public health risks posed by worst-case discharges of these substances into U.S. waters by strengthening preparedness for industrial spills. As climate change increases extreme weather events, it is critical for facilities to develop emergency response plans if the facility could cause substantial harm.
What are the new FRP rule applicability criteria?
The FRP rule applies only to facilities that meet three specific criteria:
Storage Threshold: The facility must store quantities of CWA hazardous substances that equal or exceed 1,000 times the Reportable Quantity (RQ) as outlined in 40 CFR 117.3. The RQ for each substance is determined by its potential environmental impact.
Proximity to Navigable Waters: The facility must be located within 0.5 miles of navigable waters or a conveyance to a navigable water, such as a storm drain, pipe, or channel that discharges directly into a navigable water.
Substantial Harm Criteria: The facility must meet one or more of the following:
Potential to harm fish, wildlife, or sensitive environments
Potential to adversely affect a public water system
Ability to cause injury to public receptors such as parks or recreational areas
A history of reportable discharges exceeding the RQ within the last five years
IMPORTANT: If one out of the three criteria does not apply, then the facility is not subject to the rule.
How should facilities evaluate the applicability criteria?
Step 1: Onsite Quantity and Distance to Water
First, facilities should evaluate their onsite storage of hazardous substances and the distance to navigable waters. For chemical storage, facilities can use the chemical inventory on their TIER II report and compare their storage capacity to the threshold.
Step 2: Substantial Harm Criteria
If the facility meets both of those criteria, it should evaluate whether it meets the substantial harm criteria, which is dependent on the planning distance. The planning distance will vary based on the properties of the hazardous substance, the potential for overland and water transport, and adverse weather conditions. Facilities may use their own models when evaluating this criterion; however, they must be consistent with EPA methodology.
Key Components of an FRP
Facilities that meet all applicability criteria are required to develop an FRP for worst-case discharge scenarios. This plan is similar to the Oil Pollution Prevention FRP, which is required for facilities storing more than one million gallons of oil. The FRP must include:
Hazard Evaluation: A detailed evaluation of worst-case discharge scenarios, including risk identification, characterization, and control.
Response Resources and Personnel: Identification of response teams and equipment necessary to mitigate a spill.
Emergency Response Procedures: Detailed protocols for spill detection, notification of authorities, and containment efforts.
Training and Drills: Regular training for personnel and periodic drills to test the effectiveness of the plan.
Inspections: Written procedures and records of inspections, including an inspection checklist and method to record the inspection date and findings.
Annual Review: The plan must be reviewed annually to confirm consistency with relevant portions of the National Oil and Hazardous Substances Pollution Contingency Plan and applicable Area Contingency Plan.
Compliance Dates and Requirements
Facilities that meet the criteria must submit their FRPs to the EPA by June 1, 2027. Existing plans, such as a Spill Prevention Control and Countermeasures (SPCC) plan or an Oil Pollution Prevention FRP, may be augmented to comply with the requirements of this rule.
Once the FRP has been developed, facilities must conduct periodic training, drills, and self-inspections. The plan must be reviewed at least annually, and any changes to the facility that may affect emergency response strategies or the potential for a worst-case discharge must be added to the plan within sixty (60) days of the change.
Conclusion
The new FRP rule is intended to improve emergency response strategies by requiring high-risk facilities to establish a facility response plan for worst-case discharges. Facilities should evaluate whether they trigger the applicability criteria, and if they fall under the criteria, begin preparing their FRP.
If you would like to discuss how this new rule might impact your facility, please contact us or call (800) 508-8034 to speak with one of our compliance professionals.
Authors
Jessica Dye
Project Engineer, Compliance Engineering Services
KERAMIDA Inc.
Contact Jessica at jdye@keramida.com
Kayla Gibbons, MS, PE
Senior Project Engineer, EHS Compliance Services
KERAMIDA Inc.
Contact Kayla at kgibbons@keramida.com
Wesley Fleming, MBA, PE
Senior Vice President, Compliance Engineering Services
KERAMIDA Inc.
Contact Wesley at wfleming@keramida.com
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