Clean Water Act Facility Response Planning for Hazardous Substances

As we start 2025 it is important to note that we are moving closer to the compliance deadline of the U.S. Environmental Protection Agency’s (U.S. EPA) Clean Water Act (CWA) Hazardous Substances Facility Response Plans (FRP) regulation under 40 CFR 118. Think of this rule as more advanced Spill Prevention, Control and Countermeasure (SPCC) for chemicals.

If you own or operate a non-transportation related, onshore facility with any CWA hazardous chemicals, as identified under 40 CFR §117.3, and have proximity to navigable waters you will need to determine whether the facility will be subject to the rule and, if applicable, submit a FRP to U.S. EPA by June 1, 2027.

What should I be doing now?

First, determine the maximum quantity onsite of all CWA hazardous substances with a reportable quantity (RQ) located at your facility. The maximum quantity onsite is the total aggregate quantity for each CWA hazardous substance present at all locations within the entire facility at any time. Keep in mind there is no container size exemption, and you also need to account for mixtures containing CWA hazardous chemicals.

Next, determine if your property boundary or nearest opportunity for discharge is located within one-half (0.5) mile of navigable waters or conveyances to navigable waters. If your facility is in proximity to navigable waters, conduct worst case discharge modeling for each CWA hazardous chemical with a maximum quantity onsite greater than or equal to 1,000 times the RQ. Modeling will need to be used to determine planning distances, which are determined as the concentration of each CWA hazardous chemical at endpoints including:

• Public water systems,
• Fish, wildlife, and sensitive environments (FWSE), and
• Public receptors, including parks, recreational areas, docks, or boat launches.

Any model used to determine the planning distance must include considerations for both adverse weather including extreme weather events, temperature fluctuations, rising seas, storm surges, inland and coastal flooding, drought, wildfires, permafrost melt in northern areas, and from potential fires or explosions at the facility.

Additionally, each U.S. EPA Regional Administrator can require a facility to prepare and submit an FRP regardless of whether the criteria noted above are met.

If required, an FRP must include:

• Identification of Qualified Individuals (QI) who will require specialized training,
• Identification of key response resources, including local firefighting equipment,
• Established contracts to ensure the availability of proper response personnel and equipment, including response resources with firefighting capability and the availability of resources if facility or mutual aid resources are not capable of handling a worst case discharge incident resulting from a fire or explosion,
• Routine employee training outside of QI training,
• Annual response drills in coordination with the Local Emergency Planning Committee (LEPC) and fire departments,
• Risk identification, characterization, control, and communication,
• Communication plans with LEPC and fire departments, and
• Release detection including hazardous air releases resulting from discharges.

What’s next?

If you have questions about how the CWA Worst Case Discharge rule could affect your facility’s compliance procedures, or need help with starting your facility applicability evaluation, conducting a comprehensive inventory, modeling planning distance, or developing an FRP, please reach out to me at mdabrowski@all4inc.com.

In 2025 U.S. EPA is expected to provide additional compliance guidance. ALL4 continues to monitor all updates published by U.S. EPA on this topic, and we are here to answer your questions and assist your facility with any aspects of FRP compliance.