An Environmental Protection Agency (EPA) final rule requiring facilities that manufacture, use and store dangerous chemicals to develop comprehensive plans to prepare for, and respond to worst-case chemical discharges (or spills) near waterways, was made public on March 28, 2024.

A worst-case discharge of chemicals is the largest foreseeable discharge in adverse weather conditions, including extreme weather conditions due to climate change, EPA says. Facilities subject to the rule—the Clean Water Act (CWA) Hazardous Substances Facility Response Plans—are required to not only prepare response plans to worst-case discharges, but also threats of such discharges, and submit those plans to EPA. 

The requirement to develop response plans applies to facilities that could reasonably be expected to cause substantial harm to the environment by chemical spills based on the location of a facility, according to the EPA. That includes facilities with a maximum onsite quantity of a CWA hazardous substance that meets or exceeds threshold quantities, located within a 0.5-mile radius of navigable waters or conveyance to navigable waters, and that meets one or more substantial harm criteria, the EPA says.

Under the rule, regulated facilities are required to submit response plans to EPA within 36 months after the effective date of the rule. During this time, the EPA says it will conduct outreach and provide compliance assistance to the regulated community and implementing organizations to help them understand the requirements.

The rule was developed by the EPA in response to a lawsuit filed by a coalition of environmental groups that alleged EPA failed to issue a “regulation mandated” by the CWA that requires “non-transportation-related substantial-harm facilities to plan, prevent, mitigate, and respond to worst case spills of hazardous substances (which) constitutes a failure to perform a non-discretionary duty or act in violation of the (CWA).”

The 2019 lawsuit was brought by the Environmental Justice Health Alliance for Chemical Policy Reform (EJHA); Clean Water Action, and the Natural Resources Defense Council (NRDC) and it alleged that EPA violated both the CWA and the Administration Procedures Act by its “failure to issue these regulations” and by not issuing the regulations “constituted (unlawful) agency action.” 

The coalition requested the court issue an order compelling EPA to issue a regulation requiring facilities producing or storing such hazardous substances to develop hazardous-substances facility response plans. However, EPA entered into a consent degree with the coalition in which the agency agreed to issue its rule by 2024, says a joint statement by the coalition. In addition, the coalition urges EPA to produce more such regulations. “Although the rule is an important milestone, more robust prevention measures are needed,” the statement says.

The rule addresses a critical vulnerability faced by U.S. communities and waterways, which is that thousands of facilities that manufacture, use and store some of the most dangerous chemicals are near waterways or are in flood-prone areas, the coalition says. The new policy comes after numerous disasters affecting drinking water supplies, wildlife habitats, and environmental justice communities that experience the brunt of extreme weather supercharged by climate change, says the coalition. 

“EPA’s worst-case discharge rule correctly recognizes chemical disasters as both an environmental justice and a climate issue,” said Jared Knicley, NRDC’s managing litigator. 

EPA acknowledges the “environmental justice” aspect the rule is serving in the regulation, which says, “These planning requirements help protect the environment by ensuring that facilities have planned for and can respond to discharges of hazardous substances, particularly in communities that are disproportionately located in proximity to industrial facilities.”

 That climate change is creating strong storms that can cause environmental disasters need to be considered by EPA when it develops new rules, says the coalition. “The rule’s (Hazardous Substances Facility Response Plans) elevation of those issues as central, organizing principles for environmental protection should be a blueprint for all future regulations,” Knicley said.

 Click here to read the final rule.