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02.06.2017 EPA Amends CAA 112(r) Risk Management Program By: Jessica J.O. King

EPA has published a final rule amending its Clean Air Act (CAA) Risk Management Program (“RMP”) regulations.  EPA states the new rule will reduce the likelihood of accidental releases at chemical facilities, improve emergency response to releases, and raise public awareness of chemical hazards at chemical facilities.  The rule was scheduled to become effective on March 14, 2017, but the Trump Administration on January 24 delayed its effective date by at least another 60 days to give the Administration time to study it.  Although it’s possible the rule will never become effective, we’ve described its provisions below so our readers can be prepared if it does.

Section 112(r) of the Clean Air Act (CAA) requires stationary sources (“facilities”) that hold specific “regulated substances” in excess of threshold quantities to implement a risk management program.  Under that program, facilities assess their potential release impacts, prevent releases, plan for emergency response to releases, and summarize the program in a Risk Management Plan.  A facility’s plan is reported to EPA and shared with state and local officials to ensure appropriate responses to chemical releases.  EPA is amending the RMP regulations in response to Executive Order (EO) 13650 signed by President Obama on August 1, 2013.  The EO was issued in response to a series of chemical accidents reported around the nation, including an explosion at a fertilizer plant in West Texas that same year.

According to EPA, the final rule will accomplish the following:

  • Accident Prevention:  Prevent catastrophic accidents by improving accident prevention program requirements;
  • Emergency Response Enhancement:   Enhance emergency preparedness to ensure coordination between facilities and local communities; and
  • Enhanced Availability of Information: Improve information access to help the public understand the risks at RMP facilities.

Accident Prevention Program Revisions

The final rule contains the following three changes to the program intended to prevent accidental releases:

1.  Root Cause Analysis:  EPA’s RMP establishes three “program levels” for regulated processes.  Program 1 applies to processes that would not affect the public in a worst-case scenario release and that have not had a release in the past five years.  Program 2 applies to those that do not qualify for Programs 1 or 3.  Program 3 applies to processes not eligible for Program 1 and either subject to OSHA’s PSM standard (under Federal or state OSHA programs) or classified in 1 of 10 specified industry sectors.  When a catastrophic release or “near miss” occurs, facilities with Program 2 and 3 regulated processes must now perform a root cause analysis.  EPA believes this analysis can be used to put measures in place to prevent future similar releases at other locations. 

2.  Third Party Audits:  Facilities with Program 2 and 3 regulated processes that have an RMP reportable accident must contract with an independent third-party to perform or lead a compliance audit instead of a “self-audit” to determine if the facility is complying with the accident prevention procedures required under the rule.

3.  Safer Technology and Alternatives Analysis:  Paper manufacturing, petroleum and coal products manufacturing, and chemical manufacturing facilities with Program 2 regulated processes must now conduct a safer technology and alternatives analysis (STAA) as part of their process hazard analysis (PHA), which is updated every five years.  

Emergency Response Enhancements

There are four major changes in the final rule to the emergency response requirements:

  1. Coordination with Local Responders:  Facilities with Program 2 or 3 processes are now required to coordinate with the local emergency response agencies at least once a year to determine how the source is addressed in the community emergency response plan;
  2. Information:  Facilities with Program 2 or 3 processes are now required to ensure local response organizations are aware of the regulated substances at the source, their quantities, the risks presented by them, and the resources and capabilities at the facility to respond to an accidental release of a regulated substance;
  3. Emergency Contact Tests:  Facilities with Program 2 or 3 processes are now required to conduct notification exercises annually to ensure emergency contact information on their plans is accurate and complete; and
  4. Field and Tabletop Exercises:  All facilities subject to the emergency response requirements are now required to conduct field and tabletop exercises on a timeline established in consultation with local emergency response officials.  However, at a minimum, full field exercises must be conducted once every 10 years and tabletop exercises at least once every 3 years.

Enhanced Availability of Information

To improve the public’s access to information relating to chemical releases, the rule contains the following new requirements:

  1. All regulated facilities must provide certain basic information to the public upon request;
  2. All regulated facilities must provide ongoing notification of availability of information elements on a company website, social media site, or some other publicly accessible means; and
  3. All regulated facilities must hold a public meeting for the local community within 90 days of a reportable accident.

The rule was finalized after public input and comment, and the changes are fewer than were expected when the rule was first proposed.  For instance, EPA considered modifying the list of regulated substances by adding Ammonium Nitrate and redefining “catastrophic release,” but elected not to do so in the final rule.

Although facilities should prepare to implement the rule, it’s quite possible the rule may never become effective.  With some exceptions, President Trump on January 24 required all agencies to delay the effective date of all recently-issued final rules for an additional 60 days to give the Administration time to review them.  In addition, Republicans in Congress have suggested using the Congressional Review Act to void this final rule.  We’ll keep you apprised of further developments.   

82 Fed. Reg. 4594 (Jan. 13, 2017).

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