Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
The United States Environmental Protection Agency has proposed new changes to the requirements for the accident prevention programs and risk management plans under Section 112 of the Clean Air Act as a result of a review initiated in response to Executive Order 13650. One of the targets of Section 112 of the Clean Air Act was the reduction and prevention of industrial incidents involving hazardous chemicals.
The rules promulgated by the EPA would subject stationary sources that have more than the threshold quantity of a regulated substance in process to comply with, among others, various accident prevention, emergency response coordination, training and risk management requirements. Facilities subject to these requirements are further divided into Program 1, 2 and 3 facilities, depending upon the risk to public receptors and their history of accidents with off-site consequences, whether they are subject to OSHA’s Process Safety Management standard or their classification within any one of ten different certain North American Industrial Classification System codes specified in the regulations.
The proposed rules will impose significant new compliance obligations on any regulated facility and fall within one of three basic concepts:
- Additional accident prevention program requirements;
- New emergency response coordination, notification and drill requirements,
- Requirements for making certain information generally available to the public.
With respect to the accident prevention program requirements, the proposed rules will impose a requirement that, in the event there is a catastrophic release or an incident that could have reasonably resulted in a catastrophic release, any facility with Program 2 or 3 processes must undertake a root cause analysis of the incident. Additionally, the newly proposed rules would impose on facilities with Program 2 and 3 processes an obligation to contract for and conduct a third party compliance audit after a reportable release at the facility or in the event that the agency requires an audit based upon a prior failure to comply with audit requirements. Currently, such compliance audits are already required, but this new rule would require that such audits be performed by third parties, not by the regulated facility itself. Lastly, facilities with Program 3 processes in North American Industrial Classification System codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing) and 325 (chemical manufacturing) would be required, in connection with the five year update of their process hazard analysis, to evaluate the feasibility of any inherently safer technology and conduct a safer technology and alternatives analysis.
As to emergency response coordination, the proposed rules would require facilities with Program 2 or 3 processes to coordinate with local emergency response agencies at least once a year to ensure that appropriate resources and capabilities are in place to respond in the event of an accidental release of a regulated substance. In addition, all facilities with Program 2 or 3 processes will be required to conduct an annual notification exercise, designed to ensure the emergency contact information is accurate and complete and that appropriate notification protocols and systems are in place. The proposed rule would also require full field exercises under several circumstances: i) once every five years, and ii) within one year after a RMP reportable incident. In addition, tabletop exercises would be required every year in which a full field exercise is not conducted.
If the regulated facility has an existing website, then the proposed regulations would require that certain basic chemical hazard information is made available to the public through that site. If the facility does not have a website, then the required information can be made available to the public at government offices, public libraries or other appropriate locations and facilities. In addition, all regulated facilities would be required to hold a public meeting within a specified time after the occurrence of a RMP reportable incident.
In addition to the changes outlined above, other changes are proposed to training and refresher training requirements.
These proposed rules were published in the Federal Register on March 14 in Volume 81, No. 49, page 13638. EPA will hold a public hearing on these rules on March 29 in Washington DC and the deadline for submitting written comments on these rules to the USEPA is May 13, 2016.