EPA Delays Clean Water Act Hazardous Substance Facility Response Plan Requirements Until 2030

Key Takeaways

• What Happened: The U.S. Environmental Protection Agency (EPA) delayed by three years the compliance deadline for its Clean Water Act (CWA) hazardous substance Facility Response Plan (FRP) requirements, from June 1, 2027, to June 1, 2030. EPA’s new rule also removes references to climate change and environmental justice (EJ) from the related regulations, which may narrow the range of scenarios that facilities must consider when developing their hazard evaluations. EPA published the final rule in the Federal Register on October 13, 2026, and it will take effect on December 14, 2026.
• Who’s Impacted: The rule affects onshore, non-transportation-related industrial and commercial sectors and facilities that handle hazardous substances at or above current reportable quantity thresholds. As discussed in B&D’s April 2024 News Alert, facilities subject to the rule include manufacturing and chemical plants, storage operations, utilities, and other facilities that store CWA hazardous substances at or above applicable threshold quantities and are located near navigable waters.
• What to Do: Facilities now have substantially more time to assess applicability and prepare for compliance. The extension is particularly significant because EPA is also reconsidering portions of the underlying 2024 rule and has acknowledged that additional guidance, modeling tools, or changes may be necessary. Facilities should continue assessing potential applicability while monitoring EPA's reconsideration of the rule before undertaking more resource-intensive compliance work.

The final rule differs little from the March 2026 proposed rule. It extends the principal compliance dates by three years and eliminates specific references to climate change and EJ in 40 CFR Part 118. The underlying requirement to prepare an FRP for certain worst-case discharges of CWA hazardous substances remains in effect. EPA may further revise the rule; the agency states that it may need additional “corrections, clarifications, and/or revisions” to the 2024 requirements.

Background

EPA's 2024 rule established a new FRP program for worst-case discharges of CWA hazardous substances. The requirements apply to onshore, non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment from a worst-case discharge into navigable waters, adjoining shorelines, or the exclusive economic zone.

EPA uses a two-step applicability analysis. See 40 CFR § 118.3. A facility must first determine whether it (1) has a maximum quantity onsite of at least 1,000 times the reportable quantity of a CWA hazardous substance and (2) is within 0.5 miles of navigable water or a conveyance to navigable water. 40 CFR § 118.3(a), (b). Facilities meeting both screening criteria must then determine whether they satisfy one or more of the rule's substantial harm criteria. 40 CFR § 118.3(c). Facilities that meet both criteria must prepare and submit an FRP addressing each CWA hazardous substance onsite above the threshold quantity. 40 CFR § 118.4(a). The 2024 rule required initially regulated facilities to prepare and submit FRPs by June 1, 2027. B&D’s earlier alerts on the 2022 proposed rule and 2024 final rule provide additional background on the applicability criteria and substantive FRP requirements.

Compliance Deadline Extended to June 2030

The most significant change in the new rule is the three-year extension of the compliance deadline. Facilities operating on November 30, 2029, that satisfy the FRP applicability criteria must now prepare and submit an FRP by June 1, 2030. Facilities that become regulated after November 30, 2029, generally will have six months to comply. Newly constructed facilities beginning operations after June 1, 2030, must submit an FRP before beginning operations. The rule similarly adjusts deadlines for facilities that become regulated because of planned or unplanned changes. Facilities that become subject to the rule because of a planned change must submit the FRP before the changed portion of the facility begins operations, while facilities that become subject because of an unplanned event or change must submit the FRP within six months of that event or change. 40 CFR § 118.4(a)(4)–(5).

EPA explained that the extension is necessary in part because implementing and complying with the new program is complex and because of the “lack of guidance and tools provided by EPA thus far.” Among other issues, facilities may need to model, for both assessing applicability and for development of the FRPs, how a worst-case discharge would travel over land and through water and determine whether a discharge could reach navigable waters. EPA acknowledged that it has not yet identified models or methods capable of accounting for the differing physical and chemical properties of all 296 CWA hazardous substances and mixtures across both overland and in-water transport. EPA concluded that additional compliance assistance—including potential guidance, calculators, modeling tools, and outreach—may be necessary before the program can be implemented consistently across various regulated facilities and EPA regions.

The extension also gives EPA additional time to reconsider the 2024 rule. EPA states the 2024 requirements may need further “corrections, clarifications, and/or revisions.”

EPA Removes Climate Change and EJ References

EPA also removed references to climate change and EJ from 40 CFR Part 118, consistent with Executive Order 14148.

EPA removed references to climate change—and associated examples such as “increased frequency and intensity of extreme weather events” and “rising seas”—from the definition of “adverse weather” in 40 CFR § 118.2, the substantial-harm determination provisions in 40 CFR § 118.5, and the hazard-evaluation provisions in 40 CFR § 118.11(b)(3)(i). Facilities must still evaluate worst-case discharges under adverse weather conditions, but the regulations no longer specifically require consideration of climate-change impacts. EPA explained that a “disproportionate focus on climate-related hazards may result in uneven applicability determinations,” potentially directing planning toward “highly unlikely events, rather than foreseeable scenarios.”

In practice, the change may narrow the range of scenarios facilities must consider in developing their hazard evaluations. For example, the regulations no longer expressly direct facilities to account for projected climate-related changes such as rising sea levels or increases in the frequency or severity of extreme weather. The change does not, however, eliminate consideration of flooding, hurricanes, or other severe weather when those conditions are relevant to the facility’s operating environment. The revised rule continues to require planning for “adverse weather conditions.”

EPA also removed EJ considerations from the factors regional administrators may consider in making case-by-case substantial-harm determinations and from the FRP hazard-evaluation requirements. As a result, proximity to, or potential impacts on, a community with EJ concerns is no longer an expressly identified basis for requiring an FRP or a separate element that a facility’s hazard evaluation must address. Regional administrators nevertheless retain authority to consider other site-specific characteristics, environmental factors, and “potentially exposed or susceptible populations” in determining whether a facility could cause substantial harm. EPA explained that the revisions focus planning on risks posed by potential CWA hazardous substance discharges rather than separately emphasizing climate-related hazards or impacts on particular communities.

What Comes Next?

The final rule gives facilities significant additional time to assess compliance obligations, but it does not rescind the hazardous substance FRP program or alter its core applicability criteria. Companies with facilities that may meet the rule's threshold quantity and proximity criteria should therefore continue to evaluate potential applicability.

At the same time, EPA's acknowledgment that it needs additional compliance tools—and potentially further regulatory revisions—may affect the timing and scope of compliance efforts. Facilities may want to focus in the near term on identifying CWA hazardous substances, evaluating threshold quantities and proximity to navigable waters, preserving completed work, and monitoring EPA's development of compliance tools and any further amendments to Part 118.

Beveridge & Diamond's water practice group develops creative, strategically tailored solutions to challenges that arise under the nation's water laws. The firm's attorneys have represented clients in a range of industries in project planning as well as in litigation and enforcement proceedings on issues arising from the growing convergence of water supply, use, and quality issues. For more information on these developments, please contact the authors.