Accidental Releases –Doting Your “i”s;

Crossing Your “t”s

Bob Presley, C.T., CHMM, A.T.

EHS Compliance Dept. Mgr.

2017 AHMP National Conference

Accidental Release Changes - Timeline

►President Obama signs EO 13650,

"Improving Chemical Facility Safety and

Security,“ August 1, 2013

►Final comments (OSHA-PSM) were due

March 31, 2014;

►Final comments (EPA-RMP) were due

October 31, 2014;

Accidental Release Changes – Timeline (cont’d)

►EPA convenes a Small Business Advocacy Review (SBAR) panel to receive input from Small Entity Representatives (SERs) – July 2015 – January 2016;

►EPA hosts public hearing on 3/29/16;

►Final rule in Federal Register – 1/13/17 (effective date of 3/14/17);

►Petitions received 1/13 thru 3/14/17 requesting reconsideration and a request for stay;

►EPA published proposed rule on April 3, 2017 to further delay effective date until February 19, 2019.

What’s change??

Final Amendments to the RMP Rule

►Address and improve accident prevention

program elements;

►Enhance the emergency preparedness

requirements;

►Ensure LEPCs (Local Emergency Planning

Committees), local emergency response

officials, and the public can access

information in a user-friendly format to help

them understand the risks at RMP facilities

and better prepare for emergencies.

Accident Prevention Program Revisions

►Rule requires all facilities with Program 2 or

3 processes to conduct a root cause

analysis as part of an incident investigation

of a catastrophic release or an incident that

could have reasonably resulted in a

catastrophic release (i.e., a near-miss);

Accident Prevention Program Revisions

►Rule requires regulated facilities with

Program 2 or 3 processes to contract with

an independent third-party, or assemble an

audit team led by an independent third-

party, to perform a compliance audit after

the facility has an RMP reportable

accident.

Accident Prevention Program Revisions

► Final revision to the prevention program adds an

element to the process hazard analysis (PHA),

which is updated every five years. Specifically,

owners or operators of facilities with Program 3

regulated processes in NAICS codes 322 (paper

manufacturing), 324 (petroleum and coal products

manufacturing), and 325 (chemical manufacturing)

are required to conduct a safer technology and

alternatives analysis (STAA) as part of their PHA,

and to evaluate the practicability of any inherently

safer technology (IST) identified.

Emergency Response Revisions

► Owners or operators of all facilities with Program 2 or 3 processes are required to coordinate with the local emergency response agencies at least once a year to determine how the source is addressed in the community emergency response plan and to ensure that local response organizations are aware of the regulated substances at the source, their quantities, the risks presented by covered processes, and the resources and capabilities at the facility to respond to an accidental release of a regulated substance.

Emergency Response Revisions

►Additionally, all facilities with

Program 2 or 3 processes are

required to conduct notification

exercises annually to ensure that

their emergency contact information

is accurate and complete.

Emergency Response Revisions

►All facilities subject to the emergency response program

requirements of subpart E of the rule (or ‘‘responding

facilities’’) conduct field exercises and tabletop

exercises. The frequency of these exercises shall be

established in consultation with local emergency

response officials, but at a minimum, full field exercises

will be conducted at least once every ten years and

tabletop exercises conducted at least once every three

years.

Emergency Response Revisions

► Responding facilities that have an RMP reportable accident, and

document the response activities in an after-action report

comparable to the exercise evaluation reports may use that

response to satisfy the field exercise requirements.

► In addition, owner and operators of responding facilities that conduct

exercises to meet other Federal, state or local exercise

requirements may satisfy the RMP exercise requirements provided

that the scope of the exercise includes the objectives of an RMP

exercise.

Enhanced Availability of Information

This action includes various enhancements to

the public availability of chemical hazard

information. The rule requires all facilities to

provide certain basic information to the public,

upon request.

►The owner or operator of the facility shall

provide ongoing notification of availability of

information elements on a company Web

site, social media platforms, or through some

other publicly accessible means.

Enhanced Availability of Information

►The rule also requires all facilities to

hold a public meeting for the local

community within 90 days of an RMP

reportable accident.

What does that mean for me &

my facility??

Updating your RMP/PSM Program - BMP Based on

EPA Findings (cont’d)

► DOCUMENT your employee participation – DON’T

SIMPLY SAY you involve employees – HAVE

SOMETHING TO ACTUALLY PROVE IT;

► When you have a chemical covered under PSM

only or BOTH RMP & PSM (where thresholds may

be different), STRONGLY suggest addressing it

within the framework of the RMP; and,

► If you have listed chemicals (or others listed

somewhere) that are below threshold amounts,

remember that you ARE STILL SUBJECT TO the

general duty clause. DO A HAZARD

ASSESSMENT/ OCA ANYWAY!

Updating your RMP/PSM Program – BMP Based on

EPA Findings

► Make sure your written program ACCURATELY

reflects what you really do;

► MAKE SURE your supporting documentation

actually REFLECTS what is in your WRITTEN

PLAN;

► Monitor your dates, i.e. annual oper. procedure

certs, reporting personnel changes, compliance

audit due dates, re-submittal, etc.;

► Document ANY progress/ activity on required

action items;

► Inspections mean NOTHING if they’re not

documented . Document your inspections and

inspection process;

Updating your RMP/PSM Program - BMP Based on

EPA Findings (cont’d)

► DOCUMENT your emergency response drills &

activities AND APPROPRIATE FOLLOW UP

ACTIVITIES!;

► Make sure your EPCRA, Emissions Report/ EIQ,

and other reports actually say the SAME THING;

► Find someone to do your 3rd party audits that

ACTUALLY KNOWS what they’re doing AND make

sure they provide you with documentation

necessary to fix what’s broke;

► Add the tracking systems necessary to follow

through on maintenance activities, inspections, and

other changes that have been identified as

necessary;

Accidental Releases- limited to

PSM/RMP………right?????

NOT

A Few Examples…………

► Dyno Nobel (2014) – Region 7 – 112r , General Duty, EPCRA, CERCLA - $272,000;

► Monson Companies, Inc. (2012) – Region 1 – 112r, General Duty, EPCRA, RCRA - $120,000;

► Pretium Packaging (2013) – Regions 3 & 7 – RMP, RCRA - $76,000;

► Severstal Steel Sparrows & Mtn. State Carbon (2014) – Region 3 – 112r, General Duty, RCRA -$2.4 MM;

► Coffeyville Resources Refining (2014) – Region 7 –CAA, CERCLA, EPCRA, CWA - $$2.7MM penalty, $1.3MM SEP, $10.7 MM compliance costs;

► Harcross Chemicals (2017) – 6 EPA Regions –RMP and General Duty – Civil penalty of $950,000

EPA’s RMP Cases

►18 Judicial Cases;

►330 Administrative – Formal Cases;

►269 w/ Federal Penalties;

►24 w/ SEPs

EPA Enforcement Trends

► Reducing Risks of Accidental Releases at

Industrial and Chemical Facilities (New initiative

for FY 2017-19)

► Higher Penalties

2010 - $15 million civil penalty (largest ever

assessed)

► Cases with referrals

► Review of facilities that deregistered

► In Region 7, EPA assigned a lawyer to work

several months with EPA's chemical risk

information branch to learn about the Risk

Management Program in preparation for an

anticipated rise in RMP enforcement actions;

EPA Enforcement Trends

► There are typically three types of cases:

- failure to submit a risk management plan;

- failure to implement a risk management

program; and,

- cases in which there was an accident or

release, where the EPA cites failure to

adequately implement a risk

management program and failure to

comply with the Clean Air Act General

Duty Clause.

General Duty Clause – 112(r)(1)

● Applies to "owners and operators of stationary sources

producing, processing, handling or storing any

extremely hazardous substances.“

● Since Nov. 15, 1990, facilities have had a GENERAL DUTY

to:

Identify hazards which may result from accidental releases

Design and maintain facility to prevent accidental releases

Minimize consequences of accidental releases that do occur

● No thresholds, no lists, and no regulations. However, EPA

issued guidance in May 2000.

EPA will look to hazards identified by the facility or industry rather

than a specific list of chemicals.

Focus on industry practices and standards for addressing a

hazard in determining how each regulated entity should comply

with the general duty clause.

Final thought on enforcement…….

“…the Accidental Release provisions have the

greatest potential for enforcement activity of any

regulation currently on the books….”

• Ranking EPA Enforcement Official

B o b P r e s l e y( 3 1 4 ) 3 2 4 - 5 3 2 3 o r ( 3 1 4 ) 6 8 2 - 1 5 8 0

r e p r e s l e y @ b u r n s m c d . c o m

QUESTIONS??