CWA Hazardous Substance Facility Response Plans

The Clean Water Act Hazardous Substances Facility Response Plan rule — finalized in 2022 and codified at 40 CFR Part 118 — requires certain land-based facilities that store or handle CWA hazardous substances to develop written emergency response plans covering worst-case discharge scenarios. It fills a gap that existed for decades: while oil spill response was covered by the Oil Pollution Act, there was no parallel federal rule requiring facilities handling non-oil hazardous chemicals near waterways to plan for catastrophic releases into navigable waters.

Legal Authority

• 33 U.S.C. § 1321(j)(5) — Clean Water Act § 311(j)(5): directs the President (delegated to EPA) to issue regulations requiring the owner or operator of any vessel or onshore or offshore facility to prepare and submit a plan for responding to a worst-case discharge of a harmful quantity of a hazardous substance; EPA implemented this for CWA hazardous substances in 40 CFR Part 118
• 33 U.S.C. § 1321(b)(4) — CWA § 311(b)(4): defines the hazardous substances subject to regulation
• 40 CFR Part 118 — EPA final rule (2022) establishing Facility Response Plan requirements for CWA hazardous substances at covered land-based facilities

Key Mechanics

40 CFR Part 118 requires Facility Response Plans (FRPs) from facilities that: (1) exceed a threshold quantity of a CWA hazardous substance onsite, AND (2) are located near navigable waters or their shorelines such that a worst-case discharge could reach those waters. Covered facilities must prepare written FRPs that include: identification of the worst-case discharge scenario, steps to mitigate that discharge, a trained response team, contracts with spill response contractors, notification procedures for affected local emergency responders, and annual exercises. The rule phases in based on facility tier (higher quantities = more stringent requirements). EPA reviews submitted FRPs and may require amendments. CWA hazardous substances (not to be confused with CERCLA hazardous substances) are listed at 40 CFR § 116.4 and include acids, solvents, pesticides, and other industrial chemicals.

Current Rule (2026)

What This Rule Does

40 CFR Part 118 establishes a tiered planning framework. Facilities must first self-assess whether they meet the "substantial harm" threshold based on proximity to navigable water, storage quantities exceeding reportable quantities, and transfer operations. Facilities meeting the substantial harm threshold must prepare a written Facility Response Plan. A subset — those that could cause "significant and substantial harm" — must also submit their plans to EPA for review and certification.

The response plan must address a worst-case discharge: a catastrophic release of the entire stored volume of the most hazardous substance at the facility during the worst meteorological conditions, with no mitigation assumed. The plan must demonstrate that the facility has access to equipment, personnel, and contractors capable of containing and removing such a discharge.

Key Provisions

• § 118.1 — Purpose: establishes response plan requirements for facilities that could cause substantial harm to the environment by discharging CWA hazardous substances into or on navigable waters, adjoining shorelines, or adjacent waters
• § 118.10 — Worst case discharge: facilities must model a worst-case discharge scenario, calculate planning distances to defined environmental endpoints (e.g., drinking water intakes, ecological resources), and ensure their response plan addresses mitigation of that worst case; worst-case discharge assumes the largest stored quantity released at the facility
• § 118.11 — Facility response plan requirements: the written plan must include: (a) an emergency response action plan for immediate deployment; (b) facility information and a hazardous substance inventory; (c) contact lists for response organizations and regulatory agencies; (d) evidence of contracts with qualified individual(s) to implement the response plan; (e) a training and drill program; (f) a response equipment and deployment plan; plans conforming to EPA's One Plan guidance (National Response Team's Integrated Contingency Plan) satisfy Part 118 requirements
• § 118.12 — Coordination: the facility response plan must be coordinated with the Local Emergency Planning Committee (LEPC) or Tribal Emergency Planning Committee (TEPC) established under EPCRA § 303; facilities must provide the plan to the LEPC upon request
• § 118.13 — Significant and substantial harm certification: facilities in this tier must certify that their response plan is adequate, that they have contracts with qualified response providers, and that they have conducted required training and drills; EPA may inspect these facilities to verify plan accuracy

How It Affects You

Chemical manufacturers, distributors, and industrial facilities near waterways that store CWA-listed hazardous substances in quantities at or above reportable quantities (listed at 40 CFR Part 117) must conduct a substantial harm determination. Many petroleum facilities already had Oil Pollution Act response plans under 40 CFR Part 112; those existing plans generally satisfy Part 118 requirements with minimal supplementation.

Facilities affected include chemical plants, storage terminals, industrial manufacturing, and other non-transportation land-based facilities. Transportation-related facilities (pipelines, motor vehicles, railroad) are excluded because they are regulated under separate DOT authorities.

Local emergency planners gain access to facility response plans upon request — integrating industrial hazardous substance response into community emergency planning under EPCRA.

Statutory Authority

This rule implements:

• 33 U.S.C. § 1321(j)(5) — the specific CWA provision (§ 311) directing EPA to issue regulations requiring non-transportation-related onshore facilities that could cause substantial environmental harm to prepare and submit facility response plans
• 33 U.S.C. § 1251 — CWA general purposes; prevention of hazardous substance releases that degrade water quality

Recent Rulemakings

• 87 FR 35942 (June 13, 2022) — final rule establishing 40 CFR Part 118; compliance deadlines phased in 2022–2024 based on facility tier; this was the first federal rule implementing CWA § 311(j)(5) facility response plan requirements for non-oil hazardous substances

Pending Action

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