Rule2026-20849
Clean Water Act Hazardous Substance Facility Response Plans: Compliance Date Delay and Changes To Reflect Administration Policy
Primary source
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Published
October 13, 2026
Effective
December 14, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is finalizing an extension to the compliance date for Facility Response Plans (FRPs) required by the Clean Water Act (CWA) addressing potential worst-case discharges of CWA hazardous substances. These requirements apply to onshore non-transportation-related facilities that could reasonably be expected to cause substantial harm to the environment from a CWA hazardous substance worst-case discharge to navigable waters, adjoining shorelines, or the exclusive economic zone. This action is also finalizing language modifications to remove references to climate change and environmental justice in the FRP requirements to align with Executive Order 14148 of January 20, 2025. EPA is revising the compliance deadlines in light of serious concerns that facilities may be unable to comply with the relevant requirements by the existing deadline. These changes are necessary to allow the Agency to consider implementation and compliance assistance tools that regulated facilities may be able to take advantage of when complying with the new requirements, and to ensure proper planning for all communities while promoting a science-based and risk-based approach to planning. EPA also recognizes that a delay would provide time for EPA to consider whether revisions are necessary before facilities must comply.
Full Text
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<title>Federal Register, Volume 91 Issue 196 (Tuesday, October 13, 2026)</title>
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[Federal Register Volume 91, Number 196 (Tuesday, October 13, 2026)]
[Rules and Regulations]
[Pages 64774-64780]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-20849]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 118
[EPA-HQ-OLEM-2021-0585; FRL-7881.1-02-OLEM]
RIN 2050-AH38
Clean Water Act Hazardous Substance Facility Response Plans:
Compliance Date Delay and Changes To Reflect Administration Policy
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing an
extension to the compliance date for Facility Response Plans (FRPs)
required by the Clean Water Act (CWA) addressing potential worst-case
discharges of CWA hazardous substances. These requirements apply to
onshore non-transportation-related facilities that could reasonably be
expected to cause substantial harm to the environment from a CWA
hazardous substance worst-case discharge to navigable waters, adjoining
shorelines, or the exclusive economic zone. This action is also
finalizing language modifications to remove references to climate
change and environmental justice in the FRP requirements to align with
Executive Order 14148 of January 20, 2025. EPA is revising the
compliance deadlines in light of serious concerns that facilities may
be unable to comply with the relevant requirements by the existing
deadline. These changes are necessary to allow the Agency to consider
implementation and compliance assistance tools that regulated
facilities may be able to take advantage of when complying with the new
requirements, and to ensure proper planning for all communities while
promoting a science-based and risk-based approach to planning. EPA also
recognizes that a delay would provide time for EPA to consider whether
revisions are necessary before facilities must comply.
DATES: This final rule is effective on December 14, 2026.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OLEM-2021-0585. All documents in the docket are
listed on the <a href="http://www.regulations.gov">http://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
internet and will be publicly available only in hard copy form.
Publicly available docket materials are available electronically
through <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Melissa Kaps, Waste and Chemicals
Implementation Division, Office of Resource Conservation and Recovery
(5303T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW,
Washington, DC 20460; telephone number: (202) 566-0501; email address:
<a href="/cdn-cgi/l/email-protection#ee858f9e9dc0838b82879d9d8fae8b9e8fc0898198"><span class="__cf_email__" data-cfemail="d2b9b3a2a1fcbfb7bebba1a1b392b7a2b3fcb5bda4">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the incremental costs and benefits of this action?
II. Background
A. Statutory Authority and Delegation of Authority
B. Clean Water Act Hazardous Substances Facility Response Plans
Regulation
C. Summary of the March 2026 Proposed Rule
1. Compliance Date Delay
2. Climate Change Language Recission
3. Environmental Justice Language Recission
III. Discussion of the Final Rule and Public Comments
A. General Comments
B. Provisions in the Final Rule
IV. Supporting Information
A. Children's Environmental Health
V. Statutory and Executive Orders Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
A list of North American Industry Classification System (NAICS)
codes at the three-digit level that could be affected by requirements
established under CWA section 311(j)(5) is provided in table 1.
Table 1--Sectors Potentially Affected by the Proposed Rule
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NAICS NAICS description
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111......................................... Crop Production.
112......................................... Animal Production and Aquaculture.
115......................................... Support Activities for Agriculture and Forestry.
211......................................... Oil and Gas Extraction.
212......................................... Mining (except Oil and Gas).
[[Page 64775]]
213......................................... Support Activities for Mining.
221......................................... Utilities.
236......................................... Construction of Buildings.
237......................................... Heavy and Civil Engineering Construction.
238......................................... Specialty Trade Contractors.
311......................................... Food Manufacturing.
312......................................... Beverage and Tobacco Product Manufacturing.
313......................................... Textile Mills.
314......................................... Textile Product Mills.
321......................................... Wood Product Manufacturing.
322......................................... Paper Manufacturing.
323......................................... Printing and Related Support Activities.
324......................................... Petroleum and Coal Products Manufacturing.
325......................................... Chemical Manufacturing.
326......................................... Plastics and Rubber Products Manufacturing.
327......................................... Nonmetallic Mineral Product Manufacturing.
331......................................... Primary Metal Manufacturing.
332......................................... Fabricated Metal Product Manufacturing.
333......................................... Machinery Manufacturing.
334......................................... Computer and Electronic Product Manufacturing.
335......................................... Electrical Equipment, Appliance, and Component Manufacturing.
336......................................... Transportation Equipment Manufacturing.
339......................................... Miscellaneous Manufacturing.
423......................................... Merchant Wholesalers, Durable Goods.
424......................................... Merchant Wholesalers, Nondurable Goods.
441......................................... Motor Vehicle and Parts Dealers.
444......................................... Building Material and Garden Equipment and Supplies Dealers.
447......................................... Gasoline Stations.
453......................................... Miscellaneous Store Retailers.
481......................................... Air Transportation.
486......................................... Rail Transportation.
488......................................... Support Activities for Transportation.
493......................................... Warehousing and Storage.
511......................................... Publishing Industries (except internet).
518......................................... Data Processing, Hosting, and Related Services.
522......................................... Credit Intermediation and Related Activities.
531......................................... Real Estate.
541......................................... Professional, Scientific, and Technical Services.
561......................................... Administrative and Support Services.
562......................................... Waste Management and Remediation Services.
611......................................... Educational Services.
622......................................... Hospitals.
624......................................... Social Assistance.
712......................................... Museums, Historical Sites, and Similar Institutions.
713......................................... Amusement, Gambling, and Recreation Industries.
811......................................... Repair and Maintenance.
812......................................... Personal and Laundry Services.
921......................................... Executive, Legislative, and Other General Government Support.
924......................................... Administration of Environmental Quality Programs.
926......................................... Administration of Economic Programs.
928......................................... National Security and International Affairs.
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This table is not intended to be exhaustive but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table includes the types of entities that the EPA is now
aware could potentially be regulated by this action. Other types of
entities not included could also be regulated. To determine whether
your entity is regulated by this action, you should carefully examine
the applicability criteria found in 40 CFR 118.3. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.
B. What action is the Agency taking?
The Agency is finalizing a three-year delay of the compliance date
by which a regulated facility is required to prepare and submit their
CWA hazardous substances FRP, as well as language modifications to 40
CFR part 118 to remove references to climate change and environmental
justice to align with Executive Order (E.O.) 14148. Delaying the
compliance date to June 1, 2030, is necessary to allow the Agency to
consider implementation and compliance assistance tools that regulated
parties may be able to take advantage of when complying with the new
requirements. EPA also recognizes that a delay would provide time for
EPA to consider whether revisions are necessary before facilities must
comply. Removal of the provisions related to climate change and
environmental justice aligns with E.O. 14148 while ensuring proper
planning for all communities and promoting a science-based and risk-
based approach to planning.
[[Page 64776]]
C. What is the Agency's authority for taking this action?
This final rule is authorized by sections 311(j)(5) and 501(a) of
the CWA, (33 U.S.C. 1321(j)(5), 1361(a)).
D. What are the incremental costs and benefits of this action?
EPA has determined that the delay of the compliance date and the
language modifications to remove references to climate change and
environmental justice will have a deregulatory impact for affected
facilities, State and local entities, and/or the Federal Government.
Expressed in 2024 dollars, annualized cost savings due to the final
rule are $25.97 million and $17.95 million using 7 and 3 percent
discount rates, respectively. EPA's 2024 final rule assessed benefits
of the CWA hazardous substances FRP program qualitatively, and
therefore, there is no quantifiable effect of this final rule on
benefits.
More details on the costs and benefits are found in Section 4,
``Analysis of Costs,'' and Section 5, ``Analysis of Benefits,'' in the
``Regulatory Impact Analysis: Clean Water Act Hazardous Substance
Facility Response Plans: Compliance Date Delay and Changes to Reflect
Administration Policy,'' which is located in the docket.
II. Background
A. Statutory Authority and Delegation of Authority
The CWA section 311(j)(5)(A)(i) states, ``[t]he President shall
issue regulations which require an owner or operator of a tank vessel
or facility . . . 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.'' The EPA Administrator was delegated authority
under E.O. 12777 of October 18, 1991, Implementation of section 311 of
the Federal Water Pollution Control Act of October 18, 1972, as
amended, and the Oil Pollution Act of 1990 (56 FR 54757), for onshore
non-transportation related facilities under this statutory provision.
The EPA Administrator also has authority under CWA section 501 to
prescribe such regulations as are necessary to carry out provisions of
the Act.
B. Clean Water Act Hazardous Substances Facility Response Plans
Regulation
On March 28, 2022, the EPA proposed the CWA Hazardous Substances
Worst-Case Discharge Planning Regulations (87 FR 17890); on March 28,
2024, the EPA issued final CWA Hazardous Substance FRP requirements for
worst-case discharges of CWA hazardous substances (89 FR 21924) (2024
final rule). The requirements are for onshore non-transportation-
related facilities that could reasonably be expected to cause
substantial harm to the environment by a worst-case discharge of a CWA
hazardous substance into or on the navigable waters, adjoining
shorelines, or exclusive economic zone. The compliance date in the 2024
final rule for facilities to submit their Hazardous Substances FRPs to
EPA is June 1, 2027.
C. Summary of the March 2026 Proposed Rule
On March 5, 2026 (91 FR 10787), the EPA proposed three
modifications to the CWA Hazardous Substances FRP regulations at 40 CFR
part 118: (1) delay the compliance date for regulated facilities to
meet the requirements by three years; (2) remove language referencing
climate change; and (3) remove language referencing environmental
justice.
1. Compliance Date Delay
The EPA proposed a three-year delay in the compliance date in
recognition of the complexity in implementing the new CWA Hazardous
Substances FRP Regulation. Originally, in the 2022 proposal for the
2024 final rule, the EPA proposed that initially regulated facilities
must prepare and submit a CWA hazardous substances FRP within 12 months
(87 FR 17890 at 17921, March 28, 2022) of the effective date of the
final rule. In the 2024 final rule, the EPA changed the language for
plan submission to provide an initial 36-month implementation period
(89 FR 21924 at 21941, March 28, 2024). In so doing, the EPA recognized
that it was establishing a new program that would require significant
compliance assistance. Indeed, the 2024 final rule is replete with
statements where the EPA signaled its intent to provide tools and
compliance assistance to help the regulated community with these new
requirements because of the complexity of the new requirements to make
applicability determinations. For example, there are many variables to
consider in determining appropriate endpoints for all CWA hazardous
substances present in a facility above the threshold quantity. CWA
hazardous substances and mixtures can be present onsite in myriad types
of containers and configurations. Modeling worst case discharge
scenarios and making substantial harm calculations will be needed to
determine not only applicability but also to inform the development of
the FRPs. At the time, in recognizing both the complexity of
implementing a new program and resource constraints, the EPA judged a
36-month implementation period appropriate.
Upon further consideration, on March 5, 2026 (91 FR 10787), EPA
proposed extending the compliance date by another three years due in
part to the complexity of the existing requirements and extent of
compliance assistance that EPA said it would provide in the 2024 final
rule. EPA is continuing to consider what compliance assistance and
tools are necessary while simultaneously considering changes to the
underlying provisions. EPA considered several lengths of delay and,
after reviewing public comment, has ultimately determined that it is
necessary to delay the compliance date by three years. The three-year
delay balances EPA's dual priorities of implementing the FRP program as
soon as possible, while also ensuring compliance and consistency across
regions. This delay is necessary to allow EPA adequate time to develop
tools far enough in advance of the compliance deadline so as to be
actionable. Specifically, the Agency proposed delaying the compliance
dates in 40 CFR 118.4 (a) for onshore non-transportation related
facilities (hereafter, covered facilities or facility) as follows:
<bullet> Covered facilities meeting the applicable criteria in 40
CFR 118.3 (a) and (b) but not (c) that are in operation on March 30,
2030, must submit the Substantial Harm Certification Form by June 1,
2030, while covered facilities meeting the applicable criteria in 40
CFR 118.3 (a) and (b) after March 30, 2030, have 60 days to submit
their form.
<bullet> Initially, regulated covered facilities (covered
facilities in operation on November 30, 2029, and that meet the
criteria in 40 CFR 118.3 or are notified by a Regional Administrator
(RA) as in 40 CFR 118.5(a)) shall prepare and submit an FRP by June 1,
2030.
<bullet> Newly regulated covered facilities (covered facilities
that meet the criteria in 40 CFR 118.3 or are notified by an RA as in
40 CFR 118.5(a) after November 30, 2029) shall prepare and submit an
FRP within six months of meeting the criteria.
<bullet> Newly constructed covered facilities (covered facilities
starting operations after June 1, 2030) shall prepare and submit an FRP
and Substantial Harm Certification Form prior to the start of
operations and including a 60-day start up period adjustment phase.
<bullet> Covered facilities regulated as a result of a planned
event or change shall prepare and submit an FRP and
[[Page 64777]]
Substantial Harm Certification Form prior to the start of operations
and including a 60-day start up period adjustment phase, but no sooner
than June 1, 2030.
<bullet> Covered facilities regulated as a result of an unplanned
event or change shall prepare and submit an FRP and Substantial Harm
Certification Form within six months of the unplanned event or change,
but no sooner than June 1, 2030.
2. Climate Change Language Recission
The EPA proposed to remove references to climate change from the
CWA hazardous substances FRP requirements in 40 CFR part 118 to reflect
the January 20, 2025, E.O. 14148--Initial Rescissions of Harmful
Executive Orders and Actions. E.O. 14148 specifically orders the
rescission of E.O. 13990--Protecting Public Health and the Environment
and Restoring Science to Tackle the Climate Crisis. Additionally,
disproportionate focus on climate-related hazards may result in uneven
applicability determinations, which could skew planning away from a
risk-based approach. This unintended consequence could lead to planning
based upon highly unlikely events, rather than foreseeable scenarios.
Specifically, the Agency proposed modifications consistent with E.O.
14148 as follows:
<bullet> Remove the term ``climate change'' and the associated
examples from the definition of ``adverse weather'' under 40 CFR 118.2.
<bullet> Remove reference to ``climate change'' from the passive
mitigation provision under 40 CFR 118.5(b)(7).
<bullet> Remove reference to ``climate change'' in adverse weather
provision under 40 CFR 118.5(b)(9).
<bullet> Remove ``impacts of climate change'' and associated
examples from the hazard evaluation provision under 40 CFR
118.11(b)(3)(i) and replace with ``in adverse weather conditions.''
3. Environmental Justice Language Recission
The EPA proposed to remove references to environmental justice from
the CWA hazardous substances FRP requirements in 40 CFR part 118 to
reflect E.O. 14148, which specifically orders the rescission of E.O.
14096--Revitalizing Our Nation's Commitment to Environmental Justice
for All. The EPA is also concerned that undue focus on particular
communities rather than on the risks posed to the community by any CWA
hazardous substance release could lead to improper planning. Indeed,
comprehensive substantial harm criteria should protect all communities.
Specifically, the Agency proposed modifications consistent with E.O.
14148 as follows:
<bullet> Remove ``Potential to adversely impact communities with
environmental justice concerns'' provision under 40 CFR 118.5(b)(8) and
amend to read ``potentially exposed or susceptible populations.''
Remove ``impacts to communities with environmental justice
concerns'' from the hazard evaluation provision under 40 CFR
118.11(b)(3)(i).
D. Severability
EPA intends that the provisions of the rule be severable. In the
event that any individual provision or part of the rule is invalidated,
EPA intends that this would not render the entire rule invalid, and
that any individual provisions that can continue to operate will be
left in place. The rule contains many discrete provisions that operate
independent of each other.
III. Discussion of the Final Rule and Public Comments
A. General Comments
A total of 30 comments were received on the proposed rule: 18
supporting the proposal, 11 opposing, and one requesting additional
information. Fifteen comments were from industry groups, and 10
comments were from citizens, while the remaining five comments were
submitted by two environmental and health non-governmental
organizations (NGOs), one local government, one Tribal community, and
one utility provider.
The comments from industry groups, the utility provider, and the
local government were generally in favor of the proposed delay of the
compliance deadline from June 1, 2027, to June 1, 2030, citing the
complexity of the underlying rule, the cost of compliance, the lack of
tools and guidance provided by the EPA, and the EPA's ongoing
reconsideration of the underlying rule. Several of the comments
encouraged the EPA to delay the compliance deadline by five years or
more. Similarly, industry groups were generally in favor of the
proposed language changes, arguing that climate change was difficult to
predict, all communities should be protected, the rule was confusing as
written, the proposed changes simplify compliance and follow Executive
Order direction, and questioning the EPA's authority under the CWA to
require covered facilities to consider environmental justice and
climate change in their FRPs.
The comments from citizens, NGOs, and the Tribal community were
generally opposed to the proposed delay of the compliance deadline,
arguing that there could be environmental impacts of a discharge in the
meantime, implementation is overdue, there is no valid reasoning for
delaying compliance, and there is a need to quantify the foregone
benefits associated with delaying compliance. Some commenters suggested
that the EPA should have already developed the tools and guidance
necessary for compliance with 40 CFR part 118, that the tools and
guidance should not take three years to develop, and that a shorter
delay for compliance, such as 12 months, should be sufficient to
develop such tools and guidance. Similarly, many commenters were
opposed to the language modifications, asserting that the proposal was
arbitrary and not supported by evidence, would weaken protections for
groups facing disproportionate impacts, and weaken the rule in general.
These commenters stated that the proposed rule contradicts the EPA's
own findings in the preamble to 40 CFR part 118, as well as argued that
evidence supports climate-related hazards as contributors to severe
discharge scenarios and that 40 CFR part 118 was issued under the
authority of the CWA and does not need to comply with Executive Orders.
The EPA agrees with commenters that supported the compliance delay
due to the complexity of the rule and lack of guidance and tools
provided by EPA thus far. However, EPA disagrees with commenters who
argued that a five-year extension is needed, given the Agency expects a
three-year extension will be adequate time for the Agency to consider
implementation and compliance assistance such as tools, guidance, or
any additional measures that would best support the regulated
community. EPA seeks to implement the FRP program as soon as is
feasibly possible and has determined that a delay of five years is not
necessary to develop compliance assistance tools and consider necessary
revisions, and therefore could unnecessarily delay the eventual
implementation of the rule. EPA disagrees with commenters opposed to
any delay. EPA needs additional time to consider compliance assistance
and tools that regulated facilities may be able to take advantage of
when complying with the new and complex requirements in order to
promote compliance and maximum effectiveness of the FRP program.
EPA originally proposed a delay of three years based on timeframe
expectations for the Agency to consider implementation and compliance
assistance tools and approaches that
[[Page 64778]]
would best support the regulated community and solicited comments for
whether a delay was necessary and, if so, supporting rationale and
data. Throughout this rulemaking, EPA has continued to assess potential
timeframes for developing compliance assistance tools and reconsidering
the underlying rule. EPA considered a shorter delay of two years or
less but determined that any timeframe shorter than three years would
not allow adequate time to develop compliance assistance tools, and
allow adequate time for regulated entities to come into compliance.
Moreover, it is not clear from the comments on the proposal that a
delay longer than three years is necessary to ensure compliance. In
finalizing a delay of three years here, EPA seeks to balance timely
implementation of the FRP program with the time necessary to carry out
essential compliance assistance activities. EPA believes that three
years is the correct amount of time to allow for such agency
activities, as well as to provide adequate time to regulated entities
to come into compliance.
The Agency has repeatedly acknowledged that implementation and
compliance with the 2024 rule will be extremely difficult and regulated
entities may face potential barriers to compliance because tools and
models do not yet exist or have not been identified. Therefore, EPA
guidance and compliance assistance may be necessary to enable
compliance. For example, the current planning distance approach is very
complex and relies on developing modeling assumptions that, by
themselves, can be difficult to consistently apply across facilities.
Facilities will have to determine how to factor in the flow path,
stormwater behavior, stormwater intensity, containment performance, and
terrain to avoid unnecessary inconsistencies. In addition, EPA has not
been able to identify models or methods that could account for the
specific physical and chemical properties of each of the 296 CWA
hazardous substances and mixtures thereof that could apply to both
overland and in-water transport. Additional calculations are required
to assess the ability to cause substantial harm to the environment and
perform needed and appropriate calculations to numerous endpoints, as
well as guidance and assistance for developing and implementing worst
case discharge plans to protect the environment from substantial harm.
Given all the variabilities, EPA is concerned that even if
facilities had compliance tools in hand today, determining applicably
and submitting compliant FRPs by June of 2027 may not be possible.
EPA's efforts to date confirm that the rule cannot be implemented
absent a years-long effort to develop modeling and other tools
necessary for compliance. Indeed, EPA is considering how to provide the
necessary compliance tools far enough in advance of the compliance
deadline to be actionable and simultaneously exploring whether changes
to the underlying rule are warranted. In either case, EPA has
determined that it is necessary to delay the compliance date by three
years, to allow for EPA to develop tools far enough in advance of the
compliance deadline so as to be actionable.
Guidance and other compliance assistance tools are not only
necessary for regulated parties, but for EPA to administer the national
CWA Hazardous Substances FRP program effectively and pursuant to the
statute and corresponding regulations. EPA must ensure consistency
across Regional Administrators and offices and provide regional staff
with the tools to review and assess the adequacy and accuracy of CWA
Hazardous Substances FRPs. For example, Regional Administrators are
responsible for accepting and reviewing submitted FRPs, reviewing
petitions from the public or any other party to require an FRP from any
given facility, and determining if a facility that submits a
substantial harm certification form is required to submit an FRP.
Without vital compliance assistance, programs, and guidance,
enforcement of the FRP program may vary across regions leading to
uneven applications.
EPA agrees with commenters who pointed out that a delay would allow
EPA to consider whether revisions to the underlying FRP provisions are
necessary in order to facilitate compliance and protectiveness. On
February 18, 2026, EPA published an advanced notice of proposed
rulemaking to seek feedback on reconsidering the provisions that were
promulgated in the 2024 rule. This Advance notice of proposed
rulemaking (ANPRM) sought feedback on potential amendments to address
implementation challenges and clarify requirements from the 2024 final
rule. EPA accepted comments on the ANPRM through May 19, 2026. EPA
recognizes that additional corrections, clarifications, and/or
revisions to these standards may be needed, and such changes cannot be
made without an opportunity for notice and comment. Several commenters
expressed concern over incurring significant costs to comply with the
2024 rule that could potentially be wasted if EPA makes revisions to
the underlying FRP provisions as contemplated in the ANPRM. Through
notice and comment rulemaking on this delay rule and the recent ANPRM,
EPA has identified serious barriers to compliance with the 2024 rule.
EPA finds that a delay is necessary to provide time to (1) determine if
guidance, calculators, outreach, or other tools can address these
serious compliance issues and/or (2) determine if revision of the 2024
rule is necessary to ensure compliance with the FRP program, therefore
ensuring the most effective protection of human health and the
environment.
After reviewing further input from stakeholders, EPA has determined
to revise the compliance deadline in order to sufficiently analyze what
revisions and/or compliance assistance tools are necessary to address
serious concerns that facilities may be unable to comply with the
relevant requirements by the existing deadline.
EPA also agrees with commenters who supported the proposed changes
to remove references to climate change and environmental justice,
stating that the language modifications are needed to align with E.O.
14148, and that the changes will promote consistency without impacting
40 CFR part 118's effectiveness. The EPA disagreed with commenters who
suggested the language modifications were not necessary, were
arbitrary, and would weaken protections for groups facing
disproportionate impacts. In particular, the language modifications
will help avoid uneven applicability determinations and improper
planning. A disproportionate focus on climate-related hazards may
result in uneven applicability determinations, which could skew
planning away from a risk-based approach. This unintended consequence
could lead to planning based upon highly unlikely events, rather than
foreseeable scenarios. Additionally, undue focus on particular
communities rather than on the risks posed by any CWA hazardous
substance release could lead to improper planning.
B. Provisions in the Final Rule
The EPA is finalizing the rule as proposed on March 5, 2026 (91 FR
10787), to modify the CWA Hazardous Substances FRPs Regulation at 40
CFR part 118. This rule finalizes language modifications to: (1) delay
the compliance date by three years for regulated facilities to meet the
requirements; (2) remove language on climate change; and (3) remove
language on environmental justice. Please refer to section II.C of this
preamble for further details.
[[Page 64779]]
IV. Supporting Information
A. Children's Environmental Health
This action is not subject to the EPA's Children's Health Policy
(<a href="https://www.epa.gov/children/childrens-health-policy-and-plan">https://www.epa.gov/children/childrens-health-policy-and-plan</a>) because
EPA does not believe the action has considerations for human health.
The removal of climate change and environmental justice language
will prevent undue focus on climate-related hazards and particular
communities rather than on the risks posed by more common scenarios to
the community by any CWA hazardous substance release, which could lead
to improper planning. Additionally, delaying the compliance date will
allow for more thorough, protective, and targeting planning efforts.
V. Statutory and Executive Orders Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action as defined under
section 3(f)(1) of Executive Order 12866. Accordingly, it was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket. The EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis, ``Regulatory
Impact Analysis: Clean Water Act Hazardous Substance Facility Response
Plans: Compliance Date Delay and Changes to Reflect Administration
Policy,'' is available in the docket.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This action is considered an Executive Order 14192 deregulatory
action. For regulatory accounting purposes, the estimated present value
and annualized value of the cost savings of this rule are $348 million
and $24 million, respectively (7% discount rate, 2024$, 2024 present
value year, perpetuity time horizon). Details on the estimated cost
savings of this final rule can be found in EPA's analysis of the
potential costs and benefits associated with this action.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
Agency is certifying that this rule will not have a significant
economic impact on a substantial number of small entities because the
rule has no net burden on the small entities subject to the rule. This
rule will not impose a regulatory burden for small entities because it
only proposes to delay the compliance date of the Clean Water Act
Hazardous Substances Facility Response Plans Regulation finalized on
March 24, 2024 (see 89 FR 21924). Total annualized cost savings for
small entities with existing facilities that would require an FRP are
estimated to be approximately $3.91-$7.29 million, using 3 and 7
percent discount rates, respectively, expressed in 2024 dollars. Total
annualized cost savings for small entities with existing facilities
that would not require an FRP are estimated to be approximately $73-
$296 thousand, using 3 and 7 percent discount rates, respectively,
expressed in 2024 dollars. The vast majority (about 97%) of small
entity cost savings would accrue to entities that own or operate
facilities that do require an FRP. We have therefore concluded that
this action will have no net regulatory burden for all directly
regulated small entities.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any State,
local or Tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. This rule will only delay the compliance date of
the CWA Hazardous Substances Facility Response Plans Regulation
finalized on March 24, 2024 (see 89 FR 21924) and does not propose any
new regulatory requirements. Thus, Executive Order 13175 does not apply
to this action. Consistent with the EPA Policy on Consultation and
Coordination with Indian Tribes, the EPA consulted with Tribal
officials during the development of this action. A summary of that
consultation is provided in ``Tribal Consultation Summary-Clean Water
Act Hazardous Substance Facility Response Plans: Compliance Date Delay
and Changes to Reflect Administration Policy Final Rule,'' which is
located in the docket.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. Therefore, this action is not subject to Executive
Order 13045 because it does not concern an environmental health risk or
safety risk. Since this action does not concern human health, EPA's
Policy on Children's Health also does not apply.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. The rule will not cause reductions in
the supply or production of oil, fuel, coal, or electricity; nor will
it result in increased energy prices, increased cost of energy
distribution, or an increased dependence on foreign supplies of energy.
J. National Technology Transfer and Advancement Act (NTTAA)
This rule does not involve technical standards.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action meets the criteria set forth in 5 U.S.C.
804(2).
[[Page 64780]]
List of Subjects in 40 CFR Part 118
Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
Lee Zeldin,
Administrator.
For the reasons set forth in the preamble, the EPA amends 40 CFR
part 118 as follows:
PART 118--CLEAN WATER ACT HAZARDOUS SUBSTANCES FACILITY RESPONSE
PLANS
0
1. The authority citation for part 118 is revised to read as follows:
Authority: 33 U.S.C. 1251 et seq. Executive Order 11735,
superseded by Executive Order 12777, 56 FR 54757; and Executive
Order 14148, 90 FR 8237.
0
2. Amend Sec. 118.2 by revising the definition ``Adverse weather'' to
read as follows:
Sec. 118.2 Definitions.
* * * * *
Adverse weather means weather conditions that make it difficult for
response equipment and personnel to clean up or respond to discharged
CWA hazardous substances, and that must be considered when identifying
response systems and equipment in a response plan for the applicable
operating environment.
* * * * *
0
3. Amend Sec. 118.4 by revising paragraphs (a)(1) through (5) to read
as follows:
Sec. 118.4 General requirements.
(a) * * *
(1) Initially regulated facilities. The owner or operator of a non-
transportation related onshore facility in operation on November 30,
2029, that satisfies the criteria in Sec. 118.3 shall prepare and
submit a facility response plan that satisfies the requirements of this
section and appendix A: Substantial Harm Certification Form to the
Regional Administrator by June 1, 2030.
(2) Newly regulated facilities. The owner or operator of a non-
transportation related onshore facility that did not satisfy the
criteria in Sec. 118.3 on November 30, 2029, but satisfies the
criteria in Sec. 118.3 after November 30, 2029 or that is notified by
the Regional Administrator pursuant to Sec. 118.5 shall prepare and
submit a facility response plan that satisfies the requirements of this
section and appendix A: Substantial Harm Certification Form to the
Regional Administrator within six months of meeting the criteria or
notification.
(3) Newly constructed facilities. For a newly constructed non-
transportation related onshore facility that commences operation after
June 1, 2030, and is required to prepare and submit a facility response
plan based on the criteria in Sec. 118.3, the owner or operator shall
submit the facility response plan and appendix A: Substantial Harm
Certification Form to the Regional Administrator prior to the start of
operations. Adjustments to the facility response plan to reflect
changes that occur during the start-up phase of operations must be
submitted to the Regional Administrator after an operational trial
period of 60 days.
(4) Facilities regulated as a result of a planned event or change.
For a non-transportation related onshore facility required to prepare
and submit a facility response plan after June 1, 2030, as a result of
a planned change in design, construction, operation, or maintenance so
that the non-transportation related onshore facility now meets the
criteria in Sec. 118.3 of this part, the owner or operator shall
submit the facility response plan and appendix A: Substantial Harm
Certification Form to the Regional Administrator before the portion of
the non-transportation related onshore facility undergoing the planned
change commences operations. Adjustments to the facility response plan
to reflect changes that occur during the start-up phase of operations
must be submitted to the Regional Administrator after an operational
trial period of 60 days.
(5) Facilities regulated as a result of an unplanned event or
change. For a non-transportation related onshore facility required to
prepare and submit a facility response plan after June 1, 2030, as a
result of an unplanned event or change in facility characteristics that
renders the non-transportation related onshore facility subject to the
criteria in Sec. 118.3, the owner or operator shall submit the
facility response plan and appendix A: Substantial Harm Certification
Form to the Regional Administrator within six months of the unplanned
event or change.
* * * * *
0
4. Amend Sec. 118.5 by:
0
a. Revising paragraphs (b)(7) through (10); and
0
b. Removing paragraphs (b)(11) and (12).
The revisions read as follows:
Sec. 118.5 Regional Administrator determination of substantial harm
and significant and substantial harm.
* * * * *
(b) * * *
(7) Lack of passive mitigation measures or systems;
(8) Reportable discharge history; or
(9) Other site-specific characteristics and environmental factors
that the Regional Administrator determines to be relevant to recovery,
shoreline protection, and cleanup; or
(10) Density of facilities with CWA hazardous substances onsite in
the immediate area.
* * * * *
0
5. Amend Sec. 118.11 by revising paragraph (b)(3)(i) to read as
follows:
Sec. 118.11 Facility response plan requirements.
* * * * *
(b) * * *
(3) * * *
(i) Chemical-specific information, including the response
considerations, health hazards, fire hazards, chemical reactivity,
hazard classifications, and physical and chemical properties; and
potential effects of a CWA hazardous substance worst case discharge as
per Sec. 118.10 in adverse weather conditions. Illustrative diagrams
of the hazard evaluation should be included.
* * * * *
[FR Doc. 2026-20849 Filed 10-9-26; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on October 13, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.