Overview of Risk Management Program:
Risk management program (RMP) is a federal program under the Clean Air Act, Section 112(r)(7), in place since 1996, focusing on prevention and emergency planning for accidental releases of toxic and flammable substances from covered facilities. A facility is covered under the program if it stores and/or handles listed toxic and flammable substances above threshold quantities (TQ). Currently 258 toxic and flammable substances are listed in RMP. The TQ is unique for each toxic substance and is 10,000 lbs for all flammable substances.
If covered under RMP, a facility has to submit a Risk Management Plan (RMPlan) prior to the date any listed substance is above the TQ. This plan includes three major sections: (i) hazard assessment, which estimates the distance of impact of potential accidental releases beyond the facility boundary; (ii) prevention program, which describes the practices and procedures in place for prevention of accidental releases; and (ii) emergency response program, which describes the practices, procedures, training, and equipment available to the facility to respond to unfortunate incident of an accidental release. Facilities are classified in three program levels – Level 1-3, with increasing compliance requirements. Smaller facilities located in areas with no public or environmental receptors nearby may be classified in Program Level 1, with minimal requirements other than submission of the RMPlan. On the other hand, facilities with large inventory of listed substances and/or facilities located in populous areas may be classified in Program Level 3 and need to develop the full blown RMPlan. All covered facilities are required to submit an initial RMPlan and on the 5 year anniversaries thereafter, except that under special situations, the submission may be required sooner than the 5-yr anniversary. For Program Level 2 and 3 facilities, there are numerous other continuing compliance obligations.
RMP Amendments: (Note: This may be shown in a graphics with a timeline)
On January 13, 2017, EPA finalized amendments to RMP (82 FR 4594, January 13, 2017). It was initiated by several accidental releases in industrial facilities and more prominently by the 2013 West Texas Fertilizer Company explosion. The amendments substantially increased the requirements of the prevention program, the emergency preparedness, and communication with public and local emergency responders. Many of the changes were considered onerous and unnecessary by the industry and as a result, a coalition of eleven states files three petitions to EPA for reconsideration. Subsequently, EPA published a series of notices including a final rule in June 2017, delaying the effective date of the January 2017 RMP amendments till February 2019. The delay was challenged in U.S. Court of Appeals for the D.C. Circuit and on August 17, 2018, the Court vacated the June 2017 delay rulemaking. The Court issued its mandate on September 21, 2018, which made the RMP rule effective immediately. EPA followed up with adopting the full version of the RMP amendments on December 3, 2018.
RMP Reconsideration Rule:
Meantime, as part of reconsideration of the RMP amendments, on May 30, 2018, EPA has proposed rescinding several elements of the prevention program such as safer technology and alternative analysis, third party audits, incident investigation procedures, and availability of information with agencies. The reconsideration also proposes to modify emergency preparedness program related to local emergency coordination, emergency exercises, public meetings.
A public hearing on the proposed reconsideration rule was held in June 2018 and the public comment period on this proposed rule closed in August 2018. EPA is now evaluating all comments and is yet to finalize the reconsideration rule. It is possible that when the reconsideration rule is finalized, it may again be litigated, and the uncertainties will continue.
So Now What?
The December 2018 EPA action means that the RMP amendment as finalized in January 13, 2017 is in full effect. Fortunately, the amendments included a compliance schedule extending to March 2021, providing some time for facilities to evaluate its impact and plan for compliance. While the confusion still exists regarding the publication and fate of the proposed reconsideration rule, facilities are advised to get a check up on their Risk Management Plan to understand the implications of any of the impending provisions that may affect their operations and program. Because of the significantly more emphasis on public communication in case of an accidental releases, facilities are advised to review their prevention program for continuing safe operations. The check-ups may be carried out as part of the required compliance audits or separately.
EDGE continues to follow up on the twists and turns in the Risk Management Program. If you have any questions on the RMP, RMP amendments, and the RMP Reconsideration, please contact us.