New USEPA Hazardous Substances Regulations
The new Environmental Protection Agency (EPA) Clean Water Act (CWA) Hazardous Substance (HS) Facility Response Plan regulation expands requirements for facilities storing hazardous substances to prepare and submit a Facility Response Plan (FRP). The purpose of this regulation is to maintain an actionable plan in the scenario that there is a worst-case discharge, defined as the largest foreseeable discharge in adverse weather conditions, or a threat of such a discharge. Due to climate change increasing the frequency of these adverse weather conditions, planning and preparedness for such incidents must likewise increase to avoid discharges that would cause substantial harm to the environment, particularly in communities with environmental justice concerns, which are disproportionately located in proximity to industrial facilities.
Facilities to which this new hazardous substances regulation will apply include those that could be expected to cause substantial harm to the environment based on their location. For this regulation to apply, a facility must be located within a 0.5-mile radius of navigable waters or a conveyance to navigable waters. The facility must also store onsite a quantity of the CWA hazardous substance that meets or exceeds the threshold quantity for that substance and meets one or more substantial harm criteria. These criteria include the following:
- the facility has experienced a reportable discharge of the CWA hazardous substance that reached navigable waters within the last five years.
- the ability to adversely impact public water systems.
- the ability to cause injury to fish, wildlife, and sensitive environments.
- the ability to cause injury to public receptors (parks, recreational areas, drinking water intakes, docks, etc.).
How does this new regulation differ from a general FRP or a Spill Prevention, Control, and Countermeasure (SPCC) Plan?
A general FRP covers a broader range of emergencies and may not specifically address hazardous substances and their impacts on water sources. An SPCC plan will typically focus on preventing oil spills and their impacts on water sources. There are similar elements between the SPCC and the new CWA HS regulation, but the SPCC is specifically geared toward oil spill prevention and mitigation. The new CWA HS FRP regulation, however, is specifically tailored to address hazardous substances and their impacts on water quality and to provide more targeted guidance for facilities storing these substances.
How does this rule differ from NYS Chemical Bulk Storage rules and regulations?
Chemical Bulk Storage (CBS) rules and regulations pertain to the storage of certain hazardous chemicals within New York State, while the CWA HS regulation focuses on the environmental impact of chemical discharges into navigable waters across the entire U.S. While there is an overlap in chemicals regulated by these two regulations, the list subject to CBS regulations, found in 6 NYCRR Part 597, includes a broader range of hazardous substances related to bulk storage, while the CWA hazardous substance list, found in 40 CFR Part 117.3, includes substances specifically harmful to water bodies and their ecosystems. In short, NYS CBS regulations deal with the storage and handling of chemicals to prevent releases, whereas the CWA HS regulation is concerned with the consequences of those chemicals entering water bodies.
Environmental Scientist
Some common CWA hazardous substances include BTEX (common in petroleum gasoline), sodium hypochlorite (bleach), sulfuric acid, ammonia, sodium hydroxide, phosphoric acid, and propylene oxide (used to make propylene glycol for deicers). You can find the full list of 296 CWA hazardous substances in 40 CFR 117.3 along with their respective reporting quantities. Regulated facilities are required to submit FRPs to the EPA within 36 months of the effective date of the rule.
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