Long awaited proposed regulations were published for notice and comment on March 14, 2016 (81 Fed. Reg. 13638) by the U.S. Environmental Protection Agency to strengthen its Risk Management Program (RMP), 40 C.F.R. Part 68.
Though EPA has been considering changes to the RMP rules for many years, the 2013 explosion at a fertilizer facility in West, Texas that killed fifteen people, at least ten of them first responders, spurred EPA to speed up its revisions to the rules. As a result, the proposed rules contained strengthened emergency response obligations in addition to additional accident prevention requirements and enhanced availability of information to the public.
Comments on the proposed rule will be accepted until May 13, 2016. The proposal, among other changes, would impose (a) additional accident prevention requirements, (b) strengthen emergency response obligations, and (c) provide enhanced availability of public information.
Additional Accident Prevention Requirements:
- Current rules regarding incident investigation require an analysis of factors that contributed to the incident. EPA seeks to expand this analysis for Program 2 or 3 processes to conduct root cause analysis for catastrophic releases or incidents that could have reasonably resulted in a catastrophic release.
- For facilities that experience a reportable release, EPA proposes to require a post-incident compliance audit performed by an independent third-party. Current rules allow for the audit to be conducted by an internal representative of the facility's owner or operator.
- For Program 3 regulated processes in certain SIC codes, EPA proposes a new element to the process hazard analysis (PHA) obligating affected facilities to conduct safer technology and alternatives analysis (STAA) as part of their PHA, and to evaluate the feasibility of inherently safer technology (IST).
Strengthened Emergency Response Obligations:
- EPA proposes that facilities with Program 2 or 3 processes must coordinate with local emergency response agencies at least once a year, with the intent that such coordination will ensure that resources and capabilities are in place to respond to an accidental release.
- Facilities with Program 2 or 3 processes would be required to conduct notification exercises annually. This is intended to ensure that emergency contact information is accurate and complete.
- Facilities subject to subpart E of the RMP rules (emergency response program for "responding facilities") would be required to conduct a field exercise at least once every five years, and a tabletop exercise annually in other years. Also, any responding facility with a reportable accident would need to conduct a full field exercise within a year of the accident.
Enhanced Availability Of Public Information:
- The proposed rule would require all regulated facilities to make certain basic information available to the public. Internet access would be required if the company maintains a web site, and if otherwise, to be available at the public library or governmental office.
- A subset of facilities would be obligated to provide additional information, upon request, to the Local Emergency Planning Committee (LEPC), Tribal Emergency Planning Committee (TEPC) or other local emergency response agencies. The additional information to be shared would include summaries relate to: (a) compliance audits (facilities with Program 2 and Program 3 processes); (b) emergency response exercises (facilities with Program 2 and Program 3 processes); (c) accident history and investigation reports (all facilities that have had RMP reportable accidents); and (d) any ISTs implemented at the facility (a subset of Program 3 processes).
- A timely public meeting with the local community would be mandated for any facility suffering a reportable accident.
The Occupational Safety and Health Administration (OSHA) is also considering updates to its Process Safety Management (PSM) standards. Though targeting differing communities (employee safety versus public and environmental health), EPA's RMP and OSHA's PSM regulations complement each other. For example, an employer complying with OSHA's PSM standards can satisfy RMP's "prevention program" and process hazard analysis (PHA) element because PSM's process safety techniques employ systematic methods for evaluating a process and identifying hazards. EPA's proposed rule creates additional RMP requirements that are not mirrored in OSHA's current PSM regulations. However, that may change when OSHA releases updates to the PSM regulations.
EPA's proposed rule does not add any additional listed hazardous substances under Section 112(r) of the Clean Air Act. In addition, the proposed rule does not include any changes to EPA's regulations that govern siting of chemical facilities and requirements for buffers or setbacks.
Our take on EPA's proposal is that a regulated facility's compliance burden could significantly increase. Given that enforcement of the Risk Management Program is already a current EPA enforcement priority, regulated facilities should become familiar with the proposed rule changes, and, if appropriate, submit comments to EPA in advance of May 13.
For further information on EPA's national enforcement initiative, see National Enforcement Initiative: Reducing Risks of Accidental Releases at Industrial and Chemical Facilities Fiscal Years 2017-19.
By Jeryl L. Olson, Andrew H. Perellis, and Patrick D. Joyce
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