Businesses that store and use flammable and toxic chemicals that are regulated under EPA’s Risk Management Plan (RMP) Program at 40 CFR Part 68 need to be aware of recent actions by the U.S. Environmental Protection Agency aimed at curtailing chemical accidents and releases through new proposed regulations and also enforcement. Facilities potentially subject to EPA’s initiatives include chemical plants and refineries, POTWs that use chlorine as a disinfectant, as well as those companies that use and store bulk anhydrous ammonia as an industrial refrigerant (dairy operations, food and pharmaceutical manufacturing, cold storage warehousing) or as fertilizer (agricultural cooperatives, fertilizer distribution).
On March 14, 2016, 81 Fed. Reg. 13638, EPA issued a new proposed rulemaking with major changes in the following areas:
Chemical Accident Prevention
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Inherently Safer Technology (IST) – As part of the Process Hazard Analysis (PHA) review, companies in three industrial categories (chemical manufacturing, coal and petroleum manufacturing, and paper manufacturing) would be required to conduct a safer technology and alternatives analysis to evaluate the feasibility of IST.
- Root Cause Analysis (RCA) – In near-miss situations and during Incident Investigation, Program 2 and 3 facilities would be required to conduct a RCA.
- Independent Third-Party Compliance Audits – Following a reportable release, Program 2 or 3 facilities would be required to retain an independent third-party to perform a compliance audit.
Emergency Response Enhancements
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Coordination with Local Emergency Responders – On an annual basis, Program 2 or 3 facilities would be required to coordinate with local emergency responders to ensure adequacy of roles and responsibilities in the event of a release.
- Emergency Response Exercises – Annually, facilities would be required to conduct notification exercises and tabletop reviews, with a field exercise every five years.
Enhanced Availability of Information
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Public Access – Members of the community would have easier access to facility chemical hazard information.
- Information sharing – Certain information would need to be shared on company websites and with Local Emergency Planning Committees (LEPCs), including Incident Investigation reports, a summary of IST, and emergency response exercise reports.
Comments on the proposed rule are due on or before May 13, 2016, although a number of preliminary comment letters have already requested an extension of 30 days to the comment period.
In conjunction with the new proposed rulemaking is EPA’s parallel focus on increased enforcement under 40 CFR Part 68 and the Clean Air Act General Duty Clause under section 112(r)(1). EPA recently announced a new national enforcement initiative aimed at RMP compliance designed to reduce the risk of accidental releases at chemical and industrial facilities, as part of the FY2017-2019 National Enforcement Initiatives, which will take effect on October 1, 2016.
In simple terms, EPA’s RMP program under section 112(r) of the Clean Air Act is largely designed to protect human health and the environment outside the fenceline of a facility, and is an analog to OSHA’s Process Safety Management (PSM) standard at 29 CFR Part 1910.119, which has an emphasis focused more towards protecting employee health and safety inside the fenceline.
This post was drafted by Andrew Brought, an attorney in the Spencer Fane LLP Kansas City, MO office. For more information, visit spencerfane.com.