EPA Proposes Changes to the Risk Management Program (40 CFR Part 68)

On March 14, 2016, EPA published proposed Risk Management Program (RMP) rule revisions in 81 FR 13638. The proposed revisions are based on EPA’s July 31, 2014 Request for Information (RFI) on RMP regulations in 40 CFR Part 68 (79 FR 44604), which was required by Executive Order (EO) 13650 issued on August 1, 2013, in response to catastrophic chemical facility incidents in the United States.

Key Changes

The proposed revisions add 10 definitions to section 40 CFR 68.3. While some definitions simply define generally understood acronyms, such as Confidential Business Information (CBI) and Local Emergency Planning Committee (LEPC), others impact the RMP program requirements and are described later in the relevant section below. The proposed revisions also modify recordkeeping provisions in 40 CFR 68.200 to require that records be kept at the stationary source for five years unless Level 2 site exemptions are met. Finally, multiple changes are required to the EPA RMP*eSubmit database in order to accommodate the proposed revisions.

Key proposed revisions are summarized below. In this article, RMP refers to the full Risk Management Program, while RMPlan refers to the RMP summary submitted via EPA’s RMP*eSubmit tool.

Third-Party Audits (68.59/68.80) - NEW

The proposed revisions add requirements for a third-party audit, which would be defined as a compliance audit conducted pursuant to Subparts 68.59 and 68.80 by an entity (individual or firm) meeting the competency, independence, and impartiality criteria in those sections. A third-party audit would be triggered if a site has an accident that meets the five-year accident history criteria in 68.42(a) or if an implementing agency requires it. The implementing agency could request a third-party audit based on a site’s non-compliance with the Subpart or a determination that a previous third-party audit failed to meet competency, independence, or impartiality criteria (Subpart 68.59/68.80). If a third-party audit is required, the audit and the final report must be completed by the sooner of 12 months from the five-year accident window, 12 months from the final agency determination, or three years from the site’s last compliance audit. The proposed rule establishes an appeals process and timeline for third-party audits driven by agency request.

The proposed revisions regarding third-party audits establish requirements regarding the competency, independence and impartiality of the auditor and require the third-party auditor to have written policies and procedures to ensure compliance. The third-party audit report must include the identity of the lead auditor, audit team, and participants, as well as the auditor’s qualifications. The report must document the auditor’s evaluation of each covered process as well as the findings of the audit with respect to any compliance or performance deficiencies. Further, it is required that the owner or operator’s comments regarding the draft be documented, as well as any adjustments made to the draft audit report by the auditor. Finally, the audit will require a specific certification statement by the auditor. Upon completion of the final audit report, the third-party auditor must submit the final audit report to the implementing agency at or before the time it is submitted to the owner/operator.

EQ SPRING 2016 EPA...management text

Other interesting provisions include that the draft reports must be submitted to the agency if requested and that no attorney-client or attorney work product privilege is allowed for the audit report or related records. Once the owner/operator receives the final audit report, they must provide a findings response report to the agency no later than 90 days after receipt of the final audit report, addressing each finding and providing a schedule for promptly addressing any deficiencies. The findings response report requires a company official certification statement. Subsequently, the site must document steps taken and completion dates to address any deficiencies and maintain those records for five years per 68.200.

Incident Investigation (68.60 / 68.81)

The proposed rule would synchronize the definition of a catastrophic release with the RMP reportable accident definition in Subpart 68.42 and add definitions of Root Cause.

  • Catastrophic Release – major uncontrolled emission, fire, or explosion involving one or more regulated substances that results in:
    • Deaths, injuries, or significant property damage on-site
    • Known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage
  • Root Cause – fundamental, underlying, system-related reason why an incident occurred that identifies a correctable failure(s) in management systems

The incident investigation report requirements under the proposed revisions would be identical for Level 2 and 3 sites, triggered for Catastrophic Releases and near misses, and would now include the following:

  • Date, time, location of incident
  • Date investigation began
  • Description of incident in chronological order, including all relevant facts
  • Name and amount of chemical released and event duration
  • Consequences to people and the environment
  • Emergency response actions taken
  • Initiating event, direct, and indirect contributing factors and root causes analysis (using a recognized method)
  • Recommendations and schedule for addressing them

For incidents meeting the five-year accident definition under Subpart 68.42(b), proposed updates to Subpart 68.195 would require that the categories of root causes identified in the incident investigation analysis be reported in the RMPlan within 12 months of the incident. The current five-year accident information must still be reported in the RMPlan within six months of the incident.

An RMP Reportable Accident EQ SPRING 2016 EPA...table 1under Subpart 68.42 triggers many new requirements, as summarized in Table 1 based on a hypothetical final rule effective date of June 5, 2017, an RMP Reportable accident date of July 5, 2021, a June 30, 2020 RMPlan update, and a last RMP compliance audit of April 6, 2020.

Safer Technology and Alternatives Analysis (STAA) – NEW

New definitions related to STAA include Feasible, ISTD, Active Measures, Passive Measures, and Procedural Measures.

  • Feasible – capable of being successfully accomplished within a reasonable time, accounting for economic, environmental, legal, social, and technological factors. Environmental factors would include consideration of potential transferred risks for new risk reduction measures.
  • Inherently Safer Technology or Design – risk management measures that minimize the use of regulated substances, substitute less hazardous substances, moderate the use of regulated substances, or simplify covered processes
  • Active Measures – rely on mechanical, or other energy input to detect and respond to process deviations (alarms, safety instrumented systems, detection sensors)
  • Passive Measures – use design features that reduce the hazard without human, mechanical, or other energy input (pressure vessel design, dikes, berms, blast walls)
  • Procedural Measures – policies, operating procedures, training, administrative controls, and emergency response actions

For RMP Program Level 3 sites in NAICS codes 322 (Paper Manufacturing), 324 (Petroleum and Coal Products Manufacturing), and 325 (Chemical Manufacturing), the proposed rule revisions require that facilities conduct Safer Technology and Alternatives Analysis (STAA) as part of their Process Hazard Analysis review. STAA reviews require that the following design changes or safeguards be evaluated in the following order of preference (see also the Hierarchy of Controls figure):

  • Inherently safer technology or design (ISTD)
  • Passive measures
  • Active measures
  • Procedural measures

While the proposed rule does not require the implementation of ISTD, the owner or operator must document their evaluation of the feasibility of ISTD options that are identified in the STAA.

Table 2 outlines the STAAEQ SPRING 2016 EPA...Table 2 requirements that would apply for a hypothetical Level 3 Program in NAICS Code 322, 324, or 325 with a last PHA date of March 7, 2017, and a last RMPlan update of March 31, 2018, based on a hypothetical Final Rule Revisions effective date of June 5, 2017.

Emergency Response (68.90/68.95)

The proposed rule revisions modify the conditions in Subparts 68.90 and 68.95 for a facility to act as an RMP responding and non-responding facility. To be a non-responding site, the facility must confirm that local public response capabilities are available to appropriately respond to a release from the source; however, the proposed rule does not clarify whether the scope of the response must include a worst-case release scenario or just a more likely alternate-release scenario. The revisions also authorize the LEPC to request in writing that a site be a responding facility and require that the facility act as a responding facility within three years of receiving that written request.

A facility would be required to be an RMP responding facility if coordination requirements (per a new emergency response coordination activities section, Subpart 68.93) demonstrate that local public response capabilities are not adequate to respond to regulated substance releases from the source, or that the LEPC or equivalent has requested in writing that the site be the responding facility. Responding facilities would be required to provide their procedures for informing the public and the appropriate federal, state, and local emergency response agencies about accidental releases in their Emergency Response Plan (ERP).

In addition, the responding facility would be required to review and update the ERP at least annually to incorporate recommendations and lessons from their emergency response exercises and incident investigations.

Local Coordination Requirements (68.93) – NEW
Both responding and non-responding sites would be required to coordinate with local responders at least annually to address changes at the source and in the source’s emergency action / response plan, in local response capabilities, and in the local community response plan. Documentation of these coordination activities would be required. Facilities handling RMP toxic substances would involve their LEPC or equivalent. Facilities handling flammable substances would involve their local fire department(s).

EQ SPRING 2016 EPA...Hierarchy

Emergency Response Exercises (68.96) – NEW
This proposed new section establishes three types of emergency response exercises: notification, tabletop, and field exercises.

Notification exercises are required for all RMP Program Levels 2 & 3, and include an annual test of the emergency response notification mechanisms to ensure the contact information is accurate.

Tabletop and Field Exercises are required for RMP Program Levels 2 & 3 responding facilities. Facilities must coordinate with local public responders, invite them to these exercises, and complete a written evaluation report within 90 days of the exercise. That report must include a schedule for addressing recommendations provided in the report. Both field and tabletop exercises must include tests of notification procedures for public, government, and responding agencies; emergency response actions such as evacuation or medical treatment; coordination with local responders; and any other actions identified in the ERP.

Field and tabletop exercises must be conducted on the following schedule and include the following additional steps:

  • Field – simulated release, at least every five years and within one year of an RMP Reportable accident; must include:
    • Tests of communications systems
    • Mobilization of facility emergency response personnel, including contractors
    • Tests of equipment deployment
  • Tabletop – annually, except field exercise year, and must include:
    • Identification of facility emergency response personnel, including contractors and their responsibilities
    • Test procedures for equipment deployment
Information Availability

The proposed revisions add a new section pertaining only to information that must be made available to the LEPC and local emergency responders, and expand the existing section addressing information for the general public. In both cases, the proposed rule states that the disclosure of information classified by the Department of Defense (DOD) or other Federal agencies or contractors remains under control of those applicable laws, regulations, or executive orders. In addition, the rule requires a sanitized version to be provided if claiming CBI; however, the five-year accident history cannot be claimed as CBI.

LEPC and Local Emergency Responders (68.205) – NEW
Under this proposed new section, the information listed below must be updated annually and made available upon request to the LEPC and local emergency responders

  • RMPlan (Subpart G)
  • Chemical hazard information summaries
    • Names and quantities of regulated substances
    • 5-year accident (RMP reportable) history information
    • Compliance audit report summaries
    • Incident investigation report summaries
    • ISTD summaries for Level 3 NAICS 322, 324, & 325
    • Emergency response exercise schedules and reports

General Public (68.210)
The proposed revisions expand the information currently required to be made available to the public under Subpart 68.210. In addition, a new requirement in 68.210(d) triggers a public meeting to be held within 30 days of an RMP reportable accident, providing the 5-year accident history information and chemical hazard information at that meeting.

Under the proposed rule, the following information must be updated annually and be available to the public in an easily accessible manner such as a company website, public library, or government office:

  • RMPlan (Subpart G)
  • Chemical hazard information summaries
    • Names, quantities, and Safety Data Sheets of regulated substances
    • 5-year accident (RMP reportable) information
    • Emergency response status, coordinating LEPC, and procedures to notify the public about accidental releases
    • Emergency response exercise schedules and reports
Compliance Dates (68.10)

Table 3 projects the trigger dates for the proposed RMP rule revision requirements based on a hypothetical effective date of the final rule changes of June 5, 2017. 

EQ SPRING 2016 EPA...Table 3

What Isn’t Addressed…Yet

Currently, the proposed rule does not revise the list of regulated substances (Subpart 68.130, Tables 1-4). The preamble calls specific attention to the fact that EPA is not presently proposing to add ammonium nitrate to the list of substances subject to RMP, but indicates that EPA may elect to propose such a listing at a later date.

The preamble also states that EPA is seeking comments on two other RMP RFI topics that have not been addressed in this round of the proposed rule, specifically whether rule-making or guidance should be established for (1) location of stationary sources and (2) emergency shutdown systems.

Next Steps in the Rulemaking Process

A public hearing was held March 29, 2016, in Washington D.C. The public notice comment period deadline is May 13, 2016. Comments on the information collection provisions are best assured of consideration if Office of Management and Budget (OMB) receives your comments on or before April 13, 2016.

Visit http://www.regulations.gov, and search for Docket # EPA-HQ-OEM-2015-0725 to submit comments. For assistance in providing comments either individually or as part of a group/trade association, contact Natalie VanLiew, PE, at nvanliew@trinityconsultants.com.