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;
• Inherently Safer
Technologies (IST); and
• Exercises.
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.
Commentary
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.
Posts
1 comment:
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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