Facility Response Plans (FRPs) are required for facilities with potential to cause substantial harm to the environment in the event of a chemical discharge. As of March 28, 2024, FRPs are now required for facilities storing Clean Water Act (CWA) Hazardous Substances (HS) above certain thresholds. There are 296 chemicals on the CWA HS list, each with different reportable quantities (RQs) to consider when determining applicability under the FRP provisions.

Examples of common CWA HS, their respective RQs, and their applicable FHR applicability threshold are listed in Table 1.

Table 1. Common CWA HS and FRP Threshold Quantities

The deadline for compliance with the updated FRP requirements is June 1, 2027.

CWA HS can be referenced from 40 CFR Table 116.4A.

Applicability Determination

Applicability under the CWA FRP is based on the maximum quantity of CWA HS at the facility and if the facility is within 0.5 miles of navigable water or conveyance and if the facility meets a specific “substantial harm” criteria. The “maximum capacity onsite,” as defined under 40 CFR 118.2, means the maximum total aggregate quantity for each CWA HS present at all locations within the entire facility at any one time. Maximum quantity is different than what was described in the proposed rule text, “maximum capacity onsite”, which was similar to what is used to determine the Spill Prevention, Control, and Countermeasure (SPCC) applicability. “Navigable water” means waters of the United States as defined in 40 CFR 120.2, adjoining shorelines, and the exclusive economic zone.
A facility subject to the CWA FRP regulations must also plan for future anticipated substance(s) onsite since FRP threshold quantities are based on the maximum quantity at any one time for each CWA HS.

If it is determined that the facility is within 0.5 miles of navigable water and stores a CWA HS above the FRP Thresholds, a facility is subject to the CWA FRP if any of the four criteria of substantial harm are met:

1. Ability to cause injury to fish, wildlife, and sensitive environments (FWSE),
2. Ability to adversely impact a public water system,
3. Ability to cause injury to public receptors,
4. Had a reportable discharge of a CWA hazardous substance within the past five years.

If a facility is subject to the CWA FRP, they are required to draft and submit an FRP to the Environmental Protection Agency (EPA).

FRP Contents

FRPs are large documents that must be thoughtfully drafted. Initial FRPs take time to develop; if your facility is newly applicable to the FRP requirement, Trinity recommends starting on the plan sooner rather than later. FRPs require several sections, including, but not limited to, the following:

• General Requirements:
  • Qualified Individuals
  • Response Resources
  • Training, Testing, and Drills
  • Plan Updates
• Emergency Response Information
  • Facility Information
  • Owner and Operating Information
  • Hazard Evaluation
  • Reportable Discharge History
  • Response Personnel and Equipment
  • Contracts
  • Notifications
  • Discharge Information,
  • Personnel Roles and Responsibilities
  • Response Equipment Information
  • Evacuation Plans
  • Discharge Detection Systems
  • Response Actions
  • Disposal Plans
  • Containment Measures
  • Training Procedures
  • Exercise Procedures
  • Self-Inspection

Once prepared, FRPs must be submitted to the EPA by June 1, 2027. The FRP must be submitted within 6 months for newly regulated covered facilities after November 30, 2026. Plans must be submitted prior to operations and include a 60-day start up period for newly constructed covered facilities starting operations after June 1, 2027.

Trinity is Available to Help

If you are subject to new CWA FRP rule or are unsure if your facility is applicable, Trinity is available to support with answering any FRP-related questions, determining your facility’s applicability, and updating or drafting the FRP. For more information on this topic, please contact Russell Novotny by email or Trinity’s Minneapolis Office at 651.275.990.