Six Months into the EPA’s New Hazardous Substance FRP Rule, Compliance Remains Elusive

When the Environmental Protection Agency’s (“EPA”) new Clean Water Act (“CWA”) Hazardous Substance (“HS”) Facility Response Plans (“FRP”) rule went into effect on May 28, 2024, it made quite a splash in the consulting world and trade groups. The impact in the industry itself was not as great, mostly because it was not well publicized. Today, many more people know about this rule, and given that it is a behemoth with many new planning requirements, there is a lot of anxiety about it. One of the biggest concerns is that the current deadline -- June 1, 2027 -- is too short based on what is required. The burning question is, what do we do now and why?

Currently, the rule is unfunded until late 2025, so money for implementing it won’t likely be available until 2026. This means there is no money to develop critical, required planning tools or to issue corrections and clarifications. There are two big issues worth noting. First, the planning model, which EPA has promised to develop, has yet to be started. Without it, you cannot fulfill a large portion of the rule's requirements. Second, the rule presently doesn’t exclude oil. While the EPA has noted that it does not intend to regulate oil, until a formal correction or a guidance document is issued, oil is still regulated under the rule. EPA is working on the correction.

In addition to these critical concerns, there are other important questions, outlined below, that we’ve encountered while deep-diving into the rule. In our private conversations with the EPA, the agency noted that many of them are being addressed internally, and they should have guidance in late 2025. With this in mind, your organization must decide whether to act now or wait.

At the end of this article, I provide my thoughts on what companies should do now. Ultimately, though, your organization will need to decide what to do next.

High-level concerns and roadblocks to complying:

On Sept.11, 2024, Witt O’Brien’s hosted Rebbecca Broussard, the EPA’s program lead for the new rule. During her presentation, she noted areas that the EPA was working to fix, the current position on critical compliance elements, and those elements that the EPA was still working on. Her most noteworthy comments are listed below, along with a list of questions Witt O’Brien’s published shortly after the rule came out that highlight areas of the rule that needed clarification in order for operators to start developing plans. (Comments noted “regarding question” are tied to the original questions at the end of the article.)

1. In a somewhat surprising admission, the EPA noted that the current rule is not funded, and they are advising companies not to invest in complying until 2026. Many components still require development or further clarification. Many may change with the outcome of the presidential election. That said, Witt O’Brien’s recommends doing the actions outlined above.
2. The EPA hopes to have a guidance document like its Spill Prevention, Control, and Countermeasure in 2026. They noted that this would come after the publication of the Oil Facility Response Plan Rule guidance document that is still in the works.
3. Though oil is not currently exempted in the new rule, EPA plans through guidance or corrective action, to make it clear that if something is considered an oil, it is exempt.
4. EPA is working on amending the National Preparedness for Response Exercise Program (“PREP”) and should have something out in late 2025.
5. EPA is developing a model for the rule's complex modeling requirements. No date was noted, but they are addressing this critical industry component.
6. They emphasized that this is not a prevention rule, so there are no requirements for containment. However, it is highly advisable to provide containment around HSs.
7. Regulated substances in piping need to be accounted for, as piping is regulated as a container.
8. There is not a de minimis container size. The rule is wholly based on the aggregate quantity of storage on site.
9. The expectation under this rule is that firefighting capabilities are the responsibility of the operator, and you should not rely on local fire departments. If no resources are on site, they expect operators to secure third-party contracted support by contract.
10. Qualified Individuals are expected to have Incident Commander level Hazardous Waste Operations and Emergency Response training.
11. Operators are responsible for identifying proper response equipment with their Spill Response organization (“SRO”) [(SRO is the new term for Oil Spill Removal Organization (“OSRO”)]). The rule doesn’t set a standard, and as of right now, the United States Coast Guard (“USCG”) has not started a program to vet and certify SROs for this program as they do for OSROs under the Oil FRP Rule.
12. Regarding the question, “Are there exclusions for discharges under National Pollutant Discharge Elimination System (“NPDES”) permits?” The EPA answered, “Yes.”
13. Regarding the question, “The rule exempts Publicly Owned Treatment Works (“POTW”); does it also exempt industrial, privately owned systems? The EPA answered, “Yes, we view these as the same; however, there may be components that are not exempt, such as skimmer tanks.”
14. Regarding the question, “The rule provides container types that are not included in the definition. What is a “process vessel” – is it HS-filled manufacturing equipment?” The EPA answered, “One needs to review all areas where regulated substances are stored, treated, or are in process at a facility.” This is not a direct answer; however, the takeaway is that HSs should be accounted for everywhere, as there are no container/equipment exemptions.
15. Regarding question 18 listed below about guidance on new planning requirements, it was noted that these would have to be conversations with the Regional Administrator (“RA”). They mentioned that they would try to address these in the proposed guidance document. There is still a lot to gather here.
16. Regarding question 4 listed below about the need to evaluate chemical/mechanical processes at refineries for coverage of regulated HSs, the answer was simple: “Yes, and we know it will be challenging.”
17. Regarding question 6 listed below about ignitions and reactions, two slightly different responses were given, so this remains challenging. On the one hand, it was noted that one would only have to account for these in the discharge and whether it would react to things downstream. Later, it was also pointed out that one should look at realistic scenarios if a release could impact something on site, and the example given was the ITC incident. What does this mean? At this point, and until there are enough plan reviews with feedback, you and your plan preparer will have to make the best judgment and make a case as to why you only addressed what is noted in your plan – risk assessment.
18. Regarding question 11 about working with Local Emergency Planning Committees (“LEPC”), EPA noted that you must only share your FRP. However, EPA did not discuss when changes were requested and what cooperation was needed. Can you say no? Or are you required to address any requests? Further discussion is still needed.
19. Regarding question 12 about self-inspections for response equipment or regulated containers, the EPA noted this is not a prevention program, so the expectation here is limited to noting what industry standards you are adhering to, and where the answer is “none,” describing what you are doing. It is a discussion, not setting a standard/requirement.
20. Regarding question 15 about what else the EPA expects beyond noting if impacts to communities with environmental justice concerns may apply, this is a limited exercise, noting if this applies and what precautions you have taken.
21. Concerning gases, it was noted that due to the HS rule regulating many gases, the expectation is primarily screening. If the planning distance is zero, you enter this in the Substantial Harm form. This means that you should complete the Substantial Harm form, submit it (only), and keep a copy on file. Important note: part of this rule is to determine if a gas release could cause enough acid rain (example) to trigger the need to develop an FRP: this would need to be addressed on this form.
22. One confusing comment from the EPA was that manmade structures could be used to avoid developing an FRP. It was also mentioned that this would have to be discussed and approved by the RA. Honestly, I don’t think a 100 % containment in a tank dike or retention pond would ever be approved in this manner, but it is worth including, as it was noted during the conference.

Questions that arose when the rule was first published:

1. As the plan holder determines the equipment required to respond, do SRO agreements need to list everything or will the USCG eventually be the certifying agency as in the Oil FRP Rule? If the latter, will the plan holder only have to show proof of a contract? If not, what level of documentation will be required?
2. Will the EPA develop a model for the planning calculations and Worst-Case Discharge modeling, or does the industry have to develop a model? If it’s on the industry, what level of documentation will be required? Also, if it’s up to the industry, there are many conditions that need to be modeled, so will there be guidance on how to apply these conditions and clear resources (e.g., where to find water standard databases and how to use, tools for different water characteristics, list of capable models with their limitations, tools for surface condition modeling, weather modeling) to use as reference tools?
3. The rule provides container types that are not included in the definition. What is a “process vessel” – is it HS-filled manufacturing equipment?
4. At manufacturing/refining locations, does every chemical/mechanical process, from feedstocks, to interim products, to final products, have to be evaluated for coverage of regulated HSs? The rule notes process equipment, which implies that they will.
5. Are there exclusions for discharges under NPDES permits?
6. The rule notes that ignitions and reactions must be considered. Does this mean you have to evaluate all secondary products when something is ignited, as well as all the outcomes if substances mix?
7. What is the difference between distance and the definition of planning distance?
   1. Distance to the endpoint means the greatest distance a CWA hazardous substance in a worst-case discharge into or on the navigable waters or a conveyance to navigable waters can travel while still having the ability to cause injury to public receptors or fish, wildlife, and sensitive environments ...
   2. Planning distance means the distance to an endpoint such that a worst-case discharge of CWA hazardous substances into or on the navigable waters or a conveyance to navigable waters from a non-transportation-related onshore facility could adversely impact a public water system or cause injury to fish, wildlife, and sensitive environments or public receptors …
8. The rule exempts POTW; does it also exempt industrial, privately owned systems?
9. The rule does not exempt oil; will it be exempted?
10. PREP has yet to be updated to address this new rule. When will it be updated?
11. Companies are required to work with local emergency planning committees. If these Local Emergency Planning Committees ("LEPCs") have unreasonable requests, will the EPA moderate expectations?
12. Are self-inspections for response equipment or regulated containers under this program?
13. For the hazard analysis, is there a preferred methodology, as it reads very similar to Process Safety Management, or is it up to the plan holder’s best judgment?
14. For firefighting equipment, what proof do you need to demonstrate that the local fire department can respond? If they can’t, and you have to contract out, what level of documentation is required?
15. Beyond noting if impacts to communities with environmental justice concerns may apply, what else is the EPA expecting?
16. The information on mixture requirements is unclear. Does the mixture have to meet the threshold quantity or is it added to the total aggregate quantity at the site?There is an “and” used in the Resource Conservation and Recovery Act exemptions language. Does the “and” “mean “and/or,” or does it mean “one must be both”? (See rule definitions for further information) Also, if other HSs are at the exempted facilities, but not part of the waste, are they to be screened, or is the entire facility exempted?
17. The rule contains several extensive planning requirements, and expectations for addressing them in the FRP are not clearly defined. Will guidance be provided, or will these be case-by-case per-plan reviews (which will cause a lot of “shots in the dark”)? For example, climate change, extreme weather, injury to public receptors, the potential for hazards uses an etc. in its requirements, etc.
18. Gases and solids must be screened; what level of documentation must be documented to support these reviews?
19. What does “peak concentration” mean under §118.3?
20. What date triggers the 5-year re-submittal – the date the Substantial Harm (“SH”) form is submitted or the date the FRP is submitted for approval for Significant (“S”)+SH facilities?
21. What are some examples of configuration changes that trigger resubmittals?

Based on these significant concerns, there is no physical way to comply fully with the rule today. This presents the industry with a dilemma: What do we do now? Do we start complying with what we can? Do we wait and see if the new administration will impact the rule before we act? I don’t have an answer for these questions. Your organization will have to work through the risk analysis. That said, I have been advising companies that they should complete the actions listed below, hold until mid-2025 to see where things progress, and then make a decision on how to proceed.

1. Run a query of your safety data sheets (“SDS”) against the 296 regulated substances.
2. Once you identify SDS that have regulated substances, determine the amount of the substance aggregately stored onsite, then do the math to ascertain if the amount stored onsite exceeds the RQ multiplier or if it makes sense if just on the edge to reduce onsite storage.
3. Then, and only then, review the exceptions and exemptions under §118.8 to see if any of these can be excluded.
4. After compiling your final list of what is regulated and not regulated, hold tight until mid-2025 once the EPA provides more understanding and guidance on how to comply with the rule. The EPA is still working on several large sections of the rule, e.g., the planning model, updated PREP, identifying SROs, and other areas that require further guidance. Hopefully, these will be more transparent by mid-2025.

If you have questions or want to learn more, do not hesitate to contact John K. Carroll III, Associate Managing Director, Witt O’Brien’s/Ambipar Response, at jcarroll@wittobriens.com.

About the Author

John K. Carroll III