February 7, 2020 Update: We recently reported on the Environmental Protection Agency (EPA) publishing the final Risk Management Plan (RMP) rule to the Federal Register and highlighted that the EPA is increasingly auditing facilities and levying fines for RMP deficiencies.
Since this article’s release, the EPA has reached a settlement with a fertilizer company regarding gaps in the company’s RMP. In a 2018 investigation, the EPA determined the company did not sufficiently maintain RMPs for the release of anhydrous ammonia, which is a substance that can cause health hazards when exposure occurs. Since the inspection, the company has brought facilities into compliance. However, as part of the EPA settlement, the company has agreed to pay a civil penalty of $71,652.
This recent settlement serves as another cautionary example of EPA’s continued enforcement of its RMP rule and a reminder of the importance of keeping RMPs up-to-date and in standing compliance with the rule.
One More Update: Since this article’s release, the Chemical Safety and Hazard Investigation Board (CSB) has finalized the regulation requiring companies to report accidental chemical releases to the CSB and/or the National Response Center (NRC) should the ambient air emission event result in: “…any accidental release resulting in a fatality, serious injury or substantial property damage.” Notably, under the final rule, facilities are required to provide notice to CSB and/or NRC within eight hours (previously four hours in the draft rule) of an accidental chemical release. Failure to report by “any person” is a violation subject to enforcement actions by EPA including administrative penalties, civil action, and criminal action pursuant to the authorities under 42 U.S.C. 7413 and 7414.
The final rule is expected to be published to the Federal Register the week of February 10, 2020, and will become effective 30 days after publication.
Andrew Pawlisz, D.A.B.T
On December 19, 2019, the EPA published the final RMP rule to the Federal Register, triggering a series of regulatory requirements and deadlines. Under the RMP rule
, facilities using hazardous substances
must develop an RMP that identifies the potential effects of a chemical accident, outlines prevention strategies, and establishes emergency response procedures to mitigate unplanned events.
Also in December, the Chemical Safety and Hazard Investigation Board (CSB) proposed a rule that would add another layer of requirements for facilities using hazardous substances. CSB’s proposed rule would require facilities to report accidental chemical releases both to CSB and the National Response Center (NRC). This would be in addition to EPA’s required reporting.
These two rule changes will have big industry impacts because they require facilities to evaluate and modify their RMPs, paying particular attention to their emergency response programs. For example, the CSB proposed rule would require facilities to provide notice to CSB and NRC within four hours of an accidental chemical release. Because the RMP rule does not contain unique reporting timeframe requirements, it will become important for facilities to understand how the two rules interplay and to develop sound operating procedures around that. It is also worth noting that other programs applicable to a given substance may have their own requirements, further complicating the reporting structure.
A brief overview of final RMP changes
The recent RMP final ruling overturns many of the requirements established by EPA in its 2017 ruling, such as those surrounding third-party compliance audits and root cause analyses for incident investigations. A full overview of what is being revoked can be found in the latest final ruling. The EPA’s reversals are based on updated analyses and stakeholder feedback and are intended to maintain consistency with the Occupational Safety and Health Administration (OSHA) Process Safety Management of Highly Hazardous Chemicals (PSM) standard, address security concerns, and reduce unnecessary regulations and compliance costs.
While the final RMP rule contains several reversals, it also includes emergency response specifications for facilities to consider and operationalize, such as:
- An Emergency Response Program must be established within three years of a facility’s determination that it is subject to the RMP rule.
- Starting on March 14, 2021, if an incident with offsite impacts occurs (i.e., known offsite fatalities, injuries, evacuations, sheltering in place, property damage, and/or environmental damage), the facility must hold a public meeting within 90 days.
- Tabletop and field exercise plans must be prepared by the owner/operator within four years of the final rule being published to the Federal Register (i.e., by December 19, 2023).
- Facilities must perform and document annual notification drills, with the first exercise to be performed within five years of the final rule appearing in the Federal Register (i.e., by December 19, 2024).
- Tabletop exercises are to be performed every three years, with the first exercise to be held within seven years of the final rule publishing to the Federal Register (i.e., by December 19, 2026).
- Field exercises have no specific frequency requirements other than establishing a schedule in coordination with local response agencies.
Next steps for CSB’s proposed accidental release reporting rule
Like the RMP rule, CSB’s proposed rule affects multiple stakeholders, including refineries, chemical manufacturers, and sewage treatment facilities – to name a few. Stakeholders recently had the opportunity to submit comments regarding the proposed rule, and CSB is currently reviewing submitted comments.
Because most organizations only interact with CSB under catastrophic circumstances, many stakeholders are unfamiliar with the nuances of their oversight and may have trouble determining how the proposed ruling impacts day-to-day operations, emergency planning, and reporting requirements. As such, an extra level of review may be prudent.
Contact us with your RMP questions
In concert with RMP changes and enhanced regulations, EPA is increasingly auditing facilities and levying fines for RMP deficiencies. Trihydro provides comprehensive RMP development and implementation services, and we can assist in evaluating how the rules impact your organization. We are also available to provide RMP internal and external audit support. Contact us today to get started.
Andrew Pawlisz, D.A.B.T