Final Rule Introduces New Requirements under Section 112 of the CAA

Final Rule Introduces New Requirements under Section 112 of the CAA

Most of us remember the fatal explosion at a fertilizer facility in West, Texas a few years ago, including the devastating impact it had on the surrounding community. A final rule to amend EPA’s Risk Management Program (RMP) regulations that has been in the works since this tragic accident occurred becomes effective this March—barring any further delays—with what could be substantial impacts to various facilities.

The intent of the Chemical Accident Prevention Provisions regulations under Section 112(r) of the Clean Air Act, which are often referred to as the RMP regulations, is to reduce the likelihood and frequency of accidents, ensure communities are prepared to deal with an accident if it occurs, and provide some transparency around the risks at facilities subject to these regulations. Many sites all over the country have prevention programs in place and have operated safely for years, but according to EPA’s Office of Emergency Management, 1,517 reportable accidents have occurred over the past decade causing 58 deaths, 17,099 injuries, and $2 billion in property damages. With this in mind, this final rule requires additional accident prevention and emergency response measures to protect employees, community members, and first responders.

These amended regulations are estimated to affect 12,500 facilities in areas such as industrial manufacturing, oil and gas extraction, paper manufacturing, and water treatment. Here’s what you should know about this rule’s implications:

Emergency response program developments

The rule requires that facilities where employees are responsible for responding to accidental releases collaborate with their local emergency response organizations yearly to make sure they have been made aware of the amounts of regulated substances at the facility and the risks those substances pose to the public. Local emergency response organizations also need to know what response capabilities and resources the facility has in order to assess what would be required of them in the event of a release. Keep in mind that some facilities have already worked with these local groups to become incorporated in the community’s emergency response plan. It’s also worth noting that facilities that only have flammable regulated substances and no responders on staff are subject to more simplified requirements.

Emergency Response Notification exercises are also required under the rule on an annual basis, along with field exercises—which must include testing public notification procedures, response action procedures, and coordination with local emergency responders, among other emergency measures—every 10 years, and tabletop exercises, in which the aforementioned measures are discussed, every three years. An evaluation report that includes a plan for improving areas of weakness must be prepared after each exercise.

Additions to accident prevention program requirements

There are three main changes that you should be aware of under the accident prevention program. One of these is that facilities in petroleum refining and processing, pulp and paper manufacturing, and chemical manufacturing will need to conduct an assessment of alternative risk measures and safer technology as part of a process hazard analysis (PHA). These could be safer design or technologies, passive measures, active measures, or procedures that reduce the possibility for accidental releases. The rule doesn’t require that these safer options be implemented, necessarily, just that the facility considers their practicability each time PHAs are updated.

The inclusion of a root cause analysis will also be required in incident investigations of catastrophic releases or near misses. EPA has defined a root cause as a “fundamental, underlying, system-related reason why an incident occurred,” and requires that the analysis for identifying a root cause must use one of their accepted methods. By looking beyond the immediate cause of an incident or near miss, the idea is that similar occurrences can be prevented in the future and that any potential vulnerabilities in the system will be well-documented.

Currently, many facilities perform their own audits or use a combination of in-house staff and third-party auditors, but the new rule will require a compliance audit to be performed by an independent third-party within 12 months of any RMP-reportable incident. In addition to being an expert in the type of processes and facility being audited, these third-party auditors must act objectively and cannot have provided any business or consulting services to the facility or its owner within the prior two years. It’s also prohibited from providing these services for at least two years following the audit report’s submission.

Making information available to the public

The objective of the RMP regulations has always been to improve public awareness about the risks at covered facilities, but this new rule establishes additional requirements. While off-site consequence analysis (OCA) information has been available through Federal Reading Rooms, facilities will now be required to provide ongoing notification of the availability of chemical hazard information on a company website, social media platform, or other publically accessible means with clear instructions on how to request the information. Information on the types of regulated substances at a facility, safety data sheets, an emergency response program summary, procedures for notifying the public and local emergency response agencies about accidental releases, emergency response exercises, accident history information, and contact information for local emergency response organizations must be provided to a member of the public within 45 days of a request. A public meeting is additionally required within 90 days of any reportable accident.

The new rule was scheduled to become effective on March 14, 2017. Under the recent directive from the Trump Administration, EPA has delayed the effective date to March 21, 2017, with the possibility of being delayed further. It is still important to understand your obligations under the new rule and to be familiar with the threshold quantity of regulated substances under the RMP Program as well as General Duty obligations. We have seen requests for copies of documentation and inventory records for regulatory substances from EPA to private sector facilities, and being prepared for this with the right information and knowledge about your facility’s requirements under section 112(r) will help prepare you in the case of such a request. We’ll keep you updated on developments with this rule and related legislation so be sure to follow us on social media or subscribe to blog updates to stay in the know.

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