Facility Response Plans: not just about oils anymore

Regulatory applicability

The rule applies to non-transportation-related onshore facilities that meet these criteria:

• Maintain a maximum quantity of any CWA hazardous substance at or above 1,000 times the Reportable Quantity (RQ)
• Be located within 0.5 miles of navigable waters or their conveyances
• Meet at least one substantial harm criterion, such as the potential to injure fish, wildlife, or sensitive environments; adversely impact public water systems; harm public receptors; or have a history of discharges

Data centers meet the definition of a “non-transportation-related onshore facility” and therefore could be subject to regulation if the three criteria above are met. Further, there is no specific exemption or exclusion in the rule for facilities already subject to 40 CFR Part 112.

Requirements for subject facilities

If subject to this rule, facilities must prepare and submit an FRP to the USEPA or amend an existing FRP under 40 CFR Part 112 to account for the provisions of 40 CFR Part 118. Any facility of subject materials and quantities onsite within the 0.5-mile radius of navigable water seeking to document exemption from the substantial harm criteria must submit a completed substantial harm certification form by June 1, 2027.

Potential impact on the data center sector

The new rule could have substantive impacts on data centers. Facilities found subject to the rule must prepare, implement, and submit an FRP for response to a discharge of a CWA hazardous substance, or for any data centers with existing substantial volumes of oils onsite, undertake the appropriate amendments to an existing FRP.

Given much of the requirements of the new rule align with existing FRP requirements under §112.20, additional burdens of the rule are likely minimal for facilities already accustomed to the rigors of maintaining compliance with an FRP. However, the addition of subject substances may render some facilities FRP-subject that previously were only SPCC-subject and had not yet exceeded applicable thresholds for an FRP under §112.20, and the additional compliance burdens thereof.

Next steps for data center operators

Evaluating existing annual reporting under EPCRA Tier II makes for a key initial picture of potential for being subject. Note, however, that there is also the potential for subject materials to be present onsite that do not meet the respective Tier II reporting threshold, so looking beyond the Tier II list is critical as well.

Data centers are often heavy users of batteries, so components thereof such as sulfuric acid, lead sulfate, nickel hydroxide, and potassium hydroxide should be carefully evaluated. Other common items found at data centers that have been found to contain subject hazardous substances include but are not limited to cleaners, pH stabilizers, and coolants.

Whether new or amended, FRPs under §118 must be submitted to the respective USEPA region of the facility no later than June 1, 2027.