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Energy and Environment Monitor

EPA Proposes to Expand its Accidental Release and Risk Management Program Rules under Section 112(r) of the Clean Air Act

March 10, 2016

By: Robert G. McLusky

EPA has released a pre-publication copy of a proposed rule to expand its risk management program under § 112(r)(7) of the Clean Air Act.  EPA has long maintained a risk management program (“RMP”) under § 112(r) of the Clean Air Act for “stationary sources” that hold “regulated substances” in excess of threshold quantities. See 40 C.F.R. Part 68.  These facilities have been required to assess potential release impacts, undertake steps to prevent releases, plan for emergency responses and summarize this information in a risk management plan submitted to EPA.

In 2013, in response to an explosion at the West Fertilizer facility in Texas, President Obama issued an executive order requiring EPA to review the hazards covered by the existing risk management program and expand, implement and enforce the RMP to address any additional hazards. See Executive Order 13650, “Improving Chemical Facility Safety and Security” (Aug. 1, 2013).

EPA’s proposed rule includes a summary of its major provisions. It explains that the release prevention steps vary depending on the type of process, but progressively gain specificity and rigor over three program levels: Program One, Two and Three.  Below is a listing of changes to the existing rule as summarized by EPA:

  1. Accident Prevention Program Revisions

The proposed rule would make three changes to the accident prevention program. First, it would require all facilities with Program Two or Three processes to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release. 

Second, the proposed rule would require regulated facilities with Program Two or Three processes to contract with independent third parties to perform a compliance audit after the facility has a reportable release. The existing rule includes a compliance audit component, but facilities are allowed to utilize self-audits.  The proposed rule would require that these audits be outsourced to third-party contractors. 

The third proposed revision would add an element to the process hazard analysis (“PHA”), which is updated every five years. Specifically, facility owners or operators with Program Three regulated processes in identified industrial codes would be required to conduct a “safer technology and alternatives analysis” as part of their PHA and to evaluate the feasibility of any identified inherently safer technology.  Current PHA requirements include consideration of active, passive and procedural means to control hazards.  The proposed rule adds a required consideration of inherently safer technology alternatives.  The industries included in this requirement are: paper manufacturing; petroleum and coal products manufacturing; and chemical manufacturing.  EPA explained that processes in these industrial codes have a disproportionate share of reportable releases.

  1. Emergency Response Enhancements

Owners or operators of all facilities with Program Two or Three processes would be required to coordinate with local emergency response agencies at least annually to ensure that resources and capabilities are in place to respond to an accidental release of a regulated substance.

Additionally, all facilities with Program Two or Three processes would be required to conduct notifications exercises annually to ensure their emergency contact information is accurate and complete.

Finally, the proposed rule would require all facilities subject the emergency response program requirements of subpart E (“Responding Facilities”) conduct a full field exercise at least once every five years and one tabletop exercise annually in the remaining years. Additionally, responding facilities that have an RMP reportable accident would also have to conduct a full field exercise within one year of the accident.

  1. Enhanced Availability of Information

The proposed rule would require all facilities to provide certain basic information to the public through easily accessible means such as a facility website. If no website exists, the owner or operator may provide the information at public libraries or government offices or use other appropriate means.

In addition, a subset of facilities would be required upon request to provide the local emergency planning committee (“LEPC”) or other local emergency response agencies with summaries related to their activities on compliance audits, emergency response exercises, and acts of history and investigation reports.

The proposed rule would also require all facilities to hold a public meeting for the local community within a specified timeframe after an RMP reportable accident. This provision is to ensure that first responders and members of the community have easier access to appropriate facility chemical hazard information. 

Finally, EPA claims that its proposed rule clarifies and simplifies RMP submissions.

This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.


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