If you run or manage an onshore facility that works with hazardous chemicals, then you’ve most likely heard of the new rule the EPA proposed earlier this year, in which the agency states it intends to enforce facility response plans, or FRPs, for worst case discharges of Clean Water Act hazardous substances. The rule itself is the result of a consent decree (resolved in March 2020) requiring the EPA to sign a proposed rule within two years and issue a final version of it 30 months after the proposal’s publication, meaning we can expect it to pass into law sometime around September of 2024.

    While there is still plenty of time before the deadline, it’s best to start planning for your FRPs now, such as by keeping a comprehensive inventory of all chemicals on site, before the rule is approved and you are forced to cram your preparations into a single year. To make that task easier for you, we read all 45+ pages of the federal register notice and condensed everything worth knowing into answers to the questions you’ll most likely have come submission time.

    Before you get reading, you should know that the information below was taken from the proposed rule (as published on March 28th, 2022) and is therefore subject to change with the issuance of the final rule.

    Which Are the CWA Hazardous Substances and What Are Their Reportable Quantities (RQs)?

    Before studying the elements of an FRP and going over the applicability criteria, you should ascertain the chemicals your facility stores or uses are indeed hazardous. This should be an intuitive check, but in case you need confirmation, here is the complete list of hazardous substances designated pursuant to 33 U.S.C. 1321(b)(2), also known as:

    Substances… which, when discharged in any quantity into jurisdictional waters, present an imminent and substantial danger to public health or welfare, including, but not limited to, fish, shellfish, wildlife, shorelines, and beaches (Federal Register Notice section 3B).

    On that same link, you’ll find each CWA substance’s category—X, A, B, C, or D—and corresponding reportable quantity (RQ) in pounds—1, 10, 100, 1,000, or 5,000. If your facility works with or stores on site hazardous substances at or above the RQ, and it is located near navigable waters (see next section), then the EPA deems it “reasonably expected to cause substantial harm to the environment”.

    Having ‘earned’ that distinction, you may now move on to the applicability criteria specific to worst case discharges of said substances.

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    What does the EPA Consider a CWA Worst Case Discharge?

    A worst case discharge is “the largest foreseeable discharge in adverse weather conditions, including a discharge that results from a fire or an explosion” (Section IV.A.3.b of the Federal Register Notice).

    Practically, it is equivalent to a discharge of the container, or group of interconnected containers, with the largest capacity of a single hazardous substance (which meets or exceeds the threshold quantity at the facility as a whole). The EPA labels this occurrence a “worst case discharge scenario”, and it is what facilities use to determine applicability and evaluate hazards.

    Put those two together, and we can think of a worst case discharge as the hypothetical scenario in which your container(s) with the highest quantity of a hazardous substance (when at full capacity) in your entire facility is discharged into navigable waters, or a conveyance to navigable waters, as a consequence of bad weather, a fire, or an explosion.

    Does my Facility Have to Submit a Facility Response Plan (FRP)?

    If your facility meets both EPA-listed screening criteria and any one of the four substantial harm criteria, you must submit an FRP for it.

    Screening Criteria:

    1. Does your facility have a maximum capacity onsite of any hazardous substance at or above 10,000 times the RQ?

    For the purposes of this criterion, maximum capacity onsite represents:

    The total aggregate container capacity of the hazardous substance (excluding permanently closed containers) present at all locations within the entire facility at any given time (section IV.a.1.A.II).

    2. Is your Facility within one-half mile of navigable water or a conveyance to navigable water?

    Remember, only move on to the substantial harm criteria below if you answered “Yes” to both criteria above.

    Substantial Harm Criteria:

    • In the last five years, has your facility had a discharge of a hazardous substance at its RQ (not 10,000 times its RQ) that reached water?
    • Is your facility located at a distance such that a worst case discharge has the ability to cause injury to fish, wildlife, and sensitive environments (FWSE)?
    • Is your facility located at a distance such that a worst case discharge could adversely impact a public water system?
    • Is your facility located at a distance such that a worst case discharge has the ability to cause injury to public receptors, that is, areas where the public could be exposed to those discharges, such as offsite residences, office buildings, parks, or any other area inhabited or occupied by the public at any time without restriction by the facility?

    It’s normal to be confused as to how determine your applicability for these criteria. In fact, the EPA anticipates that facilities will need the helping hand, which is why owners or operators at facilities that meet both screening criteria will be asked to complete the Substantial Harm Certification Form (Federal Register Notice, Appendix A), whether they believe they meet any of the four criteria or not. The EPA will make the final determination for them.

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    Similarly, it’s worth noting that the rule grants the Regional Administrator the authority to require FRPs from facilities that do not meet any of the aforementioned criteria. Facilities that lack passive mitigation measures, that could be vulnerable to climate change in the near future (say, due to flooding), that have the potential to cause harm to communities with environmental justice concerns, or that display other site-specific factors of concern can expect to fall within the scope of the rule. That said, facility owners/operators are always able to appeal by requesting reconsideration.

    What do I Include in a CWA Hazardous Substance Facility Response Plan (FRP)?

    [The following is merely a summary of the main components of an FRP. Please see Section IV.B.4 of the Federal Register Notice for more details.]

    Regulated facilities will have to identify and plan for all hazardous substances with a maximum capacity onsite that meets or exceeds the threshold quantity (that is, 10,000 times its RQ). However, they have to calculate only one planning quantity.

    There are three parts to this calculation. The first is the quantity itself, otherwise known as the worst case discharge quantity; it corresponds to the largest foreseeable amount of a hazardous substance that could be discharged under a worst case discharge scenario. Once that quantity is established, facility owners/operators must identify the endpoints and calculate the distance to them. The EPA defines “distance to endpoint” as:

    The distance a hazardous substance will travel before dissipating to the point that a worst case discharge no longer causes injury to public receptors or FWSE, or adversely impacts a public water system (Federal Register Notice, section IV.A.4).

    Keep in mind that the rate of dissipation varies depending on the affected endpoint. Lower and upper toxicity endpoints are available in Appendix B.

    Facilities must also submit the following four pieces of paperwork to the EPA:

    1. Proof that the facility has ensured, by contract or other means, the availability of personnel and equipment necessary to respond, to the maximum extent practicable, to a worst case discharge
    2. A written plan that complies with other Federal contingency plan regulations or is consistent with the approach in the One Plan (see the Federal Register where it was published or a summary presentation)
    3. Documents that clearly designate a qualified individual and outline his/her duties, including immediate communication with the appropriate Federal official and resource response providers
    4. Detailed descriptions of the training, equipment testing, periodic unannounced drills, and response actions of persons at the facility, carried out to ensure the safety of the facility and to mitigate or prevent the discharge.

    Finally, facility owners/operators should make sure, prior to submission, that their FRP is consistent with the National Contingency Plan and any other Area Contingency Plans applicable to the jurisdiction in which the facility is located.

    All this information should be submitted to the Regional Administrator at most 12 months after the final rule’s effective date. Updates are to be sent every five years or within 60 days of a change.

    How an EHS Software Solution Makes it Easier to Plan for Worst Case Discharges

    Complying with this rule will require a great degree of self-inspection. Facility owners/operators would have to know how much of every hazardous substance is present at their facilities at any given time, how much could foreseeably be discharged, and what kind of mitigation methods and training procedures are in place to diminish their impact on people and the environment. Inventories, Safety Data Sheets (SDS), waste profiles, and records of past discharges should be regularly maintained, and emergency response plans clearly outlined and communicated.

    A software solution like ERAs can alleviate the burden of checking up on new developments by keeping up-to-date records of capacity and quantity on site for every chemical that moves through your facility. It also boasts the tools to automate most of the common processes that touch on environmental management and health and safety, including:

    Need to reorganize your inventory system in preparation for your FRPs? Schedule a meeting with one of our Project Analysts today!

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    Andres Cabrera Rucks
    Post by Andres Cabrera Rucks
    August 15, 2022
    Andres is a Science Content Writer at ERA Environmental Management Solutions.