The Environmental Protection Agency has announced plans to reconsider its 2024 final rule requiring a facility response plan for worst case discharges of Clean Water Act hazardous substances for onshore non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment by discharging a CWA hazardous substance into or on the navigable waters, adjoining shorelines, or exclusive economic zone.
APPA hosted a webinar where EPA briefed members on the final rule, and APPA staff provided a summary of the final rule.
The final rule took effect on May 28, 2024.
Facilities subject to the rule must have FRPs in place by June 1, 2027. It’s APPA’s understanding that EPA plans to extend the June 1, 2027, compliance deadlines in a notice that will be issued shortly, followed by a second notice with more substantive changes.
The first notice, which could be issued as an interim final rule (IFRs) or concurrently with a proposal, would seek to extend the compliance dates by up to five years.
IFRs become effective upon publication in the Federal Register. This means that, unless the Agency receives adverse comments, there is no opportunity for public comment before the rule takes effect. However, if adverse comments are received, stakeholders can provide comments on the concurrent proposal, and the Agency must respond to any comments it receives.
As it currently stands, the following compliance dates are in effect:
• Initially regulated facilities that meet the criteria in any final rule, or are notified by the Regional Administrator (RA) that they meet the criteria, must prepare and submit a hazardous substance FRP within 36 months, or by June 1, 2027;
o For covered facilities meeting the criteria in the rule, Appendix A: Substantial Harm Certification Forms must be submitted to EPA by June 1, 2027;
• Newly regulated facilities (those in operation after the effective date of the final rule), or those notified by an RA after November 30, 2026, that meet the criteria must submit plans within 6 months;
• Newly constructed facilities that meet the applicability criteria after June 1, 2027, must prepare and submit a hazardous substance FRP prior to the start of operations and including a 60-day start up period adjustment phase;
• Covered facilities regulated as a result of a planned event or change must comply prior to the start of operations, including a 60-day start up period adjustment phase, but no sooner than June 1, 2027; and
• Covered facilities regulated as a result of an unplanned event or change must comply prior to the start of operations, including a 60-day start-up period adjustment phase, but no sooner than November 30, 2026.
The second notice is expected to be an advance notice of proposed rulemaking, seeking input on the following preliminary list of changes to the substantive requirements of the final rule:
• Definitional changes to “adverse weather conditions” and “conveyance”;
• Requiring a threshold quantity of 10,000x reportable quantity (RQ), as was originally proposed, rather than the 1,000x RQ as is set under the Final Rule;
• Incorporating an explanation of how to measure the one-half mile distance screening criterion;
• Modifying the Final Rule’s requirement related to determining the “ability [of a worst case discharge of a
CWA hazardous substance into or on the navigable waters] to cause injury to fish, wildlife, or sensitive environments (FWSE) or public receptors, or adversely impact a public water system (PWS)” due to practical challenges (i.e., modeling);
• Modifying completed substantial harm certification form submission requirements;
• Removing any mentioning of environmental justice and climate change;
• Modifying the exemptions to include anything covered by 40 C.F.R. 112 (Oil Pollution Prevention Program) and wastewater treated by privately owned treatment works under National Pollutant Discharge Elimination System permits;
• Changing the treatment of chemical reaction intermediaries and byproducts; and
• Changing FRP requirements related to model plan/template development, hazard evaluation, and sampling requirements.
APPA staff will continue to monitor this matter and keep members apprised of the notices as they are issued.
