Final Rulemaking on Clean Water Act Hazardous Substance Facility Response Plans

EPA Administrator Michael Regan signed a final rule on March 14, 2024, mandating certain facilities to develop response plans for worst-case scenarios involving the discharge of hazardous substances under the Clean Water Act (CWA) or threats thereof. A worst-case discharge refers to the largest foreseeable release during adverse weather conditions, including those intensified by climate change. Facilities falling under this rule must draft response plans for such emergencies and submit them to the EPA.

These facility response plan requirements pertain to facilities likely to cause significant environmental harm based on their proximity to water bodies. This includes facilities within a 0.5-mile radius of navigable water or linked to such water bodies and meeting specified criteria for substantial harm. These planning mandates serve to safeguard the environment by ensuring facilities are equipped to handle hazardous substance discharges, particularly in areas with environmental justice concerns, often situated near industrial sites.

Regulated facilities must submit their response plans to the EPA within 36 months of the rule’s effective date.

The origin of these regulations lies in Section 311(j)(5) of the CWA, which instructs the President to establish regulations necessitating facility owners or operators to prepare and submit response plans for worst-case discharges or substantial threats thereof of oil or hazardous substances. While regulations for worst-case oil discharges were promulgated in 1994 under 40 CFR part 112, subpart D, this recent action finalizes regulations for CWA hazardous substances under Section 311(j)(5).

Liberty Environmental has extensive experience in spill prevention and response planning, including preparation of Facility Response Plans for compliance with CWA Section 311(j)(5).

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