Thursday, April 28, 2016

RMP NPRM: Emergency Response Planning

This is part of a continuing series of blog posts about the EPA’s recently published notice of proposed rulemaking (NPRM) for revisions of their Risk Management Program. Earlier posts in this series include:

Background – Responding Facilities

The current risk management plan (RMP) rules provide that a Program 2 or 3 facility has a choice as to whether it will be a responding facility (establish its own emergency response program under 40 CFR 68.95) or whether it will rely on outside responders as part of a community emergency response plan under 42 USC 11003 (for holders of regulated toxic substances) or has coordinated response activities with the local fire department (for holders of regulated flammable substances). Non-responding facilities also are required to have emergency notification procedures in place to ensure a timely response by the outside agencies.

The preamble to the NPRM notes that while most covered facilities are claiming to be non-responding facilities, that the “EPA has often found that facilities either are not included in the community emergency plan or have not properly coordinated response actions with local authorities”. It goes on to examine a number of incidents where such failures aggravated the consequences of release incidents.

Clarification of Coordination Requirements

The EPA is proposing to add a new §68.93 that would outline the specific annual coordination activities that would be required by all covered facilities. These requirements would apply to both responding and non-responding facilities. They would include specific documentation requirements. A key component to the coordination activity is the requirement that “the owner or operator and the local response authorities would work together to determine who will respond if an incident occurs, and what would be an appropriate response”.

Along with this the current §68.90 would be changed into two paragraphs that would outline the emergency response plan requirements for non-responding {paragraph (a)} and responding {paragraph (b)} facilities. Paragraph (b) would apply not only to facilities that are actively seeking to be responding facilities, but also to facilities where there the coordination activities outlined in §68.93 “indicates that local public emergency response capabilities are not adequate to respond to accidental releases of regulated substances at the stationary source”. Additionally, provisions are included that a facility would be required to formulate a facility emergency response plan if so requested by the LEPC, local fire department or other appropriate local emergency response official.

Emergency Response Plan Requirements

Section 68.95 that outlines the ERP requirements is also being modified. The EPA is adding a sentence to paragraph (a) that specifically adds a requirement to include in the ERP procedures for notifying Federal, State and local authorities of accidental releases. Provisions are also being proposed that would require annual updates of the ERP and more frequent updated to reflect lessons learned from incidents or inspections or to respond to changes in notification requirements or procedures.

The preamble also goes on to discuss those situations where the only legitimate response to a release would be evacuations or shelter-in-place activities. It makes the point that even in these instances a plan developed in advance for conducting those activities would be significantly more effective than activities conducted on the fly after an accidental release occurs.

The preamble also includes a discussion of the situation where a facility is not large enough to have an effective emergency response capability and the community does not have local resources to execute an effective community emergency response plan. The EPA notes that those facilities are still responsible for having an ERP, but may use outside resources (mutual aid agreements or contractors are mentioned) to effect that ERP.

Information Availability

While not specifically included in the ERP section of the preamble, there is a lengthy discussion about the perceived problems with the sharing of information about chemical hazards with the emergency response community and the public. It would seem obvious that adequate information about chemical hazards, in a usable and understandable format would be a prerequisite to forming an effective community emergency response plan.

The EPA is proposing to add a new §68.205 that would apply to all covered facilities (even those with just Program 1 processes). It would require facilities “to develop summaries of specific chemical hazard information for all of their regulated processes and provide this information, upon request, to the LEPC or local emergency response officials as part of their emergency response coordination efforts”. It would specifically require the following information to be made available:

• Information on regulated substances (held above TQ levels);
Accident history information;
• Compliance audit reports;
• Incident Investigation Reports;

The EPA is also proposing to clarify requirements about information that must be made available to the public. It is not changing the current restrictions on the disclosure of off-site consequence analysis (OCA) data, but it is going to require in a new §68.210(b) that facilities provide the following information to the public:

• Names of regulated substances held in a process above TQs;
• Safety Data Sheets (SDSs) for all regulated substances held above TQs at the facility;
• The facility's accident history required under §68.42;
• Information concerning the source's compliance with §68.10(b)(3) or the emergency response provisions of subpart E.


The proposed changes to the emergency response planning portion of the RMP are a decent attempt at addressing some very serious holes in the that planning process. For small to medium sized facilities there are some very real financial and regulatory reasons to opt for being a non-responding facility and letting the local government handle the emergency response planning and execution.

This is certainly reasonable when the local government is large enough or prosperous enough to assume the role of chemical incident responders. It is not, however, reasonable when the local agencies do not have either the financial or technical resources to conduct the planning for, and/or the execution of, a chemical emergency response plan.

The proposed rule makes an honest effort to ensure that facilities and local governments cooperate in the emergency planning and execution process. There are, however, some very real problems that could be created by these rules when there is a significant disparity between the size of the local government and the size of the facility.

When a facility is of sufficient size that it becomes a major economic player in the local community, there is going to be a great deal of political pressure placed on the LEPC and emergency response community to go along with the emergency response plans of the facility whether they are adequate or not. Maintaining jobs and a tax base are going to be a higher political priority than effective emergency response planning.

Where facilities lack economic clout there could be a significant amount of economic pressure placed upon the management to go along to get along with the LEPC, fire department or emergency planning agency so that they are not forced to develop and support a full blown facility emergency response plan that could legitimately bankrupt the company.

Where there are professionals on both side of the table with chemical emergency response planning and execution experience, this is not likely to raise any significant problems as long as goodwill is maintained on all sides. But where that professional experience is lacking, and even if deliberate malfeasance is not an issue, political and economic issues will compromise the emergency planning process.

Without tighter regulation of the LEPCs or a huge increase in the RMP inspection force at EPA (neither of which is likely) I do not see an easy solution to this potential problem. The best response that I can come up with is to increase the EPA’s Inspector General’s ability to respond to complaints in this area. That is not, however, a regulatory response, but rather a legislative requirement that is little more likely than regulation of LEPCs or increasing the inspection force.

1 comment:

Unknown said...

The EPA IG has no role in this arena, unless the complaint at issue is one against an EPA official. If we are referring to someone from EPA who can go sort out issues between companies and communities (regarding response), those people would come from EPA's Office of Emergency Management (OEM). The problem of course is that OEM's manpower has been decimated over the past 5 or 6 years in favor of Administration pet projects like Environmental Justice. OEM's budget has likewise suffered, sometimes despite OMB attempts to shore it up. Today, OEM does not have the manpower to help LEPCs or communities get what they need from plants. EPA Regions could, in theory, have RMP inspectors do this work. There are about 30 full time federal positions spread among the 10 EPA regions which are supposedly dedicated to RMP inspections, but again, these positions have been decimated in favor of other things regional administrators fine more important, like drivers for the regional administrators.

The bottom line is that for a long time now, Congress has not been fulfilling its oversight role, and EPA along with many other Federal Agencies has become largely dysfunctional. EPA can put out paper, but do little else.

So really, Patrick hits the nail on the head - this is a pretty good proposal (and is really EPAs response to the West Fertilizer incident) but even if it goes on the books largely as proposed, it will only have an impact where the companies concerned choose to follow the new rules. No one is going to police this except the industry itself.

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