Audit, Compliance and Risk Blog

EPA requires worst case release planning by onshore facilities

Posted by Jon Elliott on Tue, Apr 23, 2024

river-4336788_1280On March 28, 2024, the US Environmental Protection Agency (EPA) adopted requirements that qualifying onshore non-transportation-related facilities prepare Facility Response Plans (FRPs) to address possible “worst case” discharges of hazardous substances into navigable waters or related areas. These new requirements fulfill a mandate imposed in 2020 after environmental groups successfully sued EPA for failing to issue such rules in the 30 years following 1990 amendments to the Clean Water Act (CWA) directed EPA to do so (Environmental Justice Health Alliance for Chemical Policy Reform, et al. v. EPA). The rest of this note discusses these new requirements, in the context of CWA facility preparation requirements.

What existing CWA regulations do these rules supplement?

Since 1978, EPA has employed its CWA authority to define a list of “hazardous substances.” These have been subject to discharge permit requirements and some have established water quality (concentration) limits. EPA and the US Coast Guard have defined “reportable quantities (RQs)” and require reporting to the National Response Center of unauthorized discharges to waterways exceeding applicable RQs.

In 1990, the Oil Pollution Act (OPA) responded to the Exxon Valdez disaster by amending CWA to provide EPA with additional express authority to regulate entities involved in transportation of oil and other hazardous substances. EPA (and the US Coast Guard, in some situations) responded with rules for offshore oil facilities and tankers. In addition, however, OPA mandated that EPA “issue regulations which require an owner or operator of a tank vessel or facility . . . to prepare and submit … a plan for responding, to the maximum extent practicable, to a worst case discharge and to a substantial threat of such a discharge, of oil or a hazardous substance.’’ EPA never did so, and was eventually sued by environmental groups; in 2020 the agency settled that litigation by agreeing to do so.  EPA proposed rules in April 2022 (which I wrote about HERE), and has adopted final rules that include important changes from the proposal. The remainder of this note discusses the  new final rules.

What do EPA’s new rules require?

EPA now requires “non-transportation-related onshore facilities” to prepare facility response plans (FRPs) covering selected releases of hazardous substances, and submit those plans to EPA. Applicability will be determined based on the following criteria:

Which facilities are covered?

The rules apply to “any non-transportation-related onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging CWA hazardous substances into or on the navigable waters or a conveyance to navigable waters.” The applicability of this definition depends on the following:

  • Threshold quantity – 1,000 times the reportable quantity (RQ) established for each hazardous substance (in 40 CFR 117.3). RQs vary from 1 pound for highly hazardous materials (e.g., PCBs) up to 5,000 pounds, so the thresholds for these new FRP requirements vary from 1,000 to 5 million pounds.
  • Proximity to navigable waters – within ½ mile from navigable waters or conveyances to navigable waters
  • “Substantial harm” possible under any of the following:
    • Ability to cause “injury” to fish, wildlife, and sensitive environments (“Injury means a measurable adverse change, either long- or short-term, in the chemical or physical quality or the viability of a natural resource or public receptor (including to human health) resulting either directly or indirectly from exposure to a discharge, or exposure to a product of reactions (e.g., more hazardous degradation products, ignition, or reaction) resulting from a discharge.”)
    • Ability to adversely impact a public water system
    • Ability to cause injury to public receptors (i.e, parks and other areas where people may be present)
    • Reportable discharge history – i.e, any within past 5 years

The potential for such harms will be evaluated by “worst case discharge scenarios,” which the new rules define as “Worst case discharge means the largest foreseeable discharge in adverse weather conditions including a discharge resulting from fire or explosion”, which are to be modeled by facilities in compliance with methodological standards set forth in the rules.

What compliance documents will be required, and when?

The new rules provide “general requirements” consisting of the following compliance documentation requirements:

  • Initial FRPs by existing facilities – by June 1, 2027 for covered facilities in operation as of November 30, 2026, and within 6 months after first qualifying for coverage if an existing facility did not meet the criteria as of that date
  • Initial FRPs for newly constructed facilities – for covered facilities that are constructed after June 1, 2027, submit FRP before begin operations, and revise as necessary within 60 days after start-up period
  • Amended FRPs – within 60 days after a “material” change in activities
  • Revised FRP – submit within 6 months after add or remove a hazardous substance in quantities that qualify under these rules
  • Substantial harm certification – providing the facility’s formal self-assessment under the threshold criteria above, on behalf of owner or operator and certified by an individual under legal penalty for mis-representation, submit with initial FRP and at least every 5 years thereafter

The rules provide procedures for assertion of claims of confidential business information. EPA’s Regional Administrators will receive and review filings and determine facilities’ compliance requirements and whether documentation meets applicable requirements. The rules provide procedures for these reviews and determinations, and for facilities to appeal agency determinations and other parties to petition for further agency action.

What requirements will apply to facility response plans?

The rules define FRP requirements, specifying elements and standards to be met when preparing and implementing each element. FRPs can be coordinated or combined with other emergency preparation and response plans. FRP requirements consist of the following:

General requirements:

  • Consistency with the CWA/Superfund National Contingency Plan (NCP) and applicable Area Response Plans
  • Qualified individual(s) with authority to implement response actions and ensure communication between the subject facility, its organization, and agency officials, and description of each individual’s duties regarding notifications, communication and responses
  • Response resources available – within the facility and its organization, and through contracts or other means to ensure outside party support
  • Training, testing and drills
  • Periodic FRP reviews and updates

Emergency response information:

  • Facility information
  • Owner and operator information
  • Hazard evaluation, for a worst case discharge
  • Reportable discharge history
  • Response personnel and equipment
  • Contracts (for response personnel and equipment)
  • Notifications (within organization and with all relevant agencies)
  • Discharge information (to be provided in notifications)
  • Personnel roles and responsibilities
  • Response equipment information
  • Evacuation plans
  • Discharge detection systems
  • Response actions
  • Disposal plans
  • Containment measures
  • Training procedures
  • Exercise procedure
  • Self-inspection

Emergency response action plan – addressing the first 2 hours after a release, including plans and procedures

Coordination with agencies

FRPs must be coordinated with the local emergency response plan prepared by the local emergency planning committee or tribal emergency planning committee, and state emergency response commission or tribal emergency response commission in compliance with the Emergency Planning and Community Right-to-Know Act (EPCRA, also known as SARA Title III).

What now?

The final rules are effective May 28, 2024, with compliance requirements triggered as of November 30, 2026 and compliance required beginning on June 1, 2027 based on applicable triggers. Litigation seems likely, although I cannot predict the timing or outcome.

Self-assessment checklist

Does the organization have any facilities or operations that involve the presence of CWA-listed hazardous substances?

  • If so, has the organization evaluated the maximum amounts of such hazardous substances that may be onsite or in use at a location?
  • If so, has the organization evaluated possible discharge incidents, including amounts that could be discharged and the proximity of such discharges to bodies of water and conveyances to water?

Has the organization conducted incident planning for possible hazardous substance releases?

  • If so, has the organization evaluated whether releases might meet thresholds of material volumes and proximity to waters, as set forth in EPA’s new rules?
  • If so, has the organization prepared facility planning and response plans, in compliance with existing requirements or on a voluntary basis?

Has the organization evaluated its operations to determine whether any will be subject to EPA’s new FRP requirements?

Has the organization evaluated the extent to which existing planning and response activities comply with EPA’s FRP requirements?

  • If so, is the organization taking steps to meet applicable FRP requirements?

Is the organization preparing comments in the pending RFRP rulemaking?

Where can I go for more information?

About the Author

jon_f_elliottJon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:


Tags: Environmental risks, Environmental, EPA, CWA, Clear water, Hazardous Waste, Environment, Environmental Policy