EPA Requires Potential Polluters to Plan for Climate-Driven Disasters

On March 28, 2024, the U.S. Environmental Protection Agency (EPA) issued a final rule requiring facilities that may become major sources of water pollution to plan for the impact of climate change.

The Clean Water Act ("CWA") directs EPA to issue regulations requiring facilities that have the potential to cause major pollution "to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance.” (See 33 U.S.C. 1321(j)(5)(A)(i)). Under the CWA, EPA requires at-risk facilities to submit plans that include discharge detection systems, evacuation plans, response actions, and containment measures, among other things. 

Among other changes, the new rule embeds consideration of climate-related risks into regulatory requirements for RMPs. The CWA, as amended, defines the worst case discharge for a facility as “the largest foreseeable discharge in adverse weather conditions.” The new rule amends the definition of "adverse weather" to mean "weather conditions that make it difficult for response equipment and personnel to clean up or respond to discharged CWA hazardous substances, accounting for impacts due to climate change, such as the increased frequency and intensity of extreme weather events, temperature fluctuations, rising seas, storm surges, inland and coastal flooding, drought, wildfires, and permafrost melt in northern areas and that must be considered when identifying response systems and equipment in a response plan for the applicable operating environment." This definition aligns with similar requirements in EPA's March 11, 2024 rulemaking regulating chemical facilities under the Clean Air Act. In addition, the new rule requires EPA regional administrators to assess facilities' vulnerability to, and adaptation around, climate change risks when identifying potential sources of major pollution that will be required to submit RMPs.

The new rule goes into effect on May 28, 2024.