Review - EPA Publishes EPCRA 30-Day ICR Notice

Yesterday, the EPA published a 30-day information collection request (ICR) renewal notice in the Federal Register (87 FR 8836-8837) for “Emergency Planning and Release Notification Requirements (EPCRA Sections 302, 303, and 304)”. This renewal request does not reflect any programmatic changes, just changes in the reporting history during the period covered by the currently approved ICR.

Normally, I do not pay a great deal of attention to these routine IRC renewals. They are typically just boiler plate repeats of previously submitted data. The EPA is one of the agencies that does update its burden estimates to reflect the changes in data submission over time. This time, however, a comment in the explanation for the changes in estimate portion of the notice caught my attention:

“The reduction in state and local government burden estimate of approximately 15,607 hours annually, is attributable to the reduction in the numbers of SERCs (or TERCs) and LEPCs (or TEPCs) in this ICR compared to the previous ICR (new total of 3,052 reduced from 3,556).”

The EPA does not explain the change in the number of  SERCs/LEPCs in the supporting documents for the simple reason that they have no control over those organizations. Congress established this important chemical safety program but it has provided for little to no oversight and no organizational control of the program at the Federal level. The decline in the numbers of reported organizations in this ICR notice make it clear that Congress needs to take a closer look at this program.

For more details about the changes in the numbers being reported by EPA, including a look at the history of the numbers being reported, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/epa-publishes-epcra-30-day-icr-notice - subscription required.

Review - OMB Approves EPA SERC Survey ICR

Yesterday, the OMB’s Office of Information and Regulatory Affairs issued a new OMB Control Number for an information collection request from the EPA. Control Number 2050-0224 provides data collection authority for “Survey of State Emergency Response Commissions (SERCs)”. The new survey form will provide the EPA with a comprehensive look at the current state of SERCS and the Local Emergency Planning Commissions (LEPCs) established under §301 of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA) (42 USC 11001).

I hope that the response rate from the State and Tribal SERCS is much closer to 100% than the EPA’s predictions. SERCS and LEPCs form a potentially important backbone for the emergency response planning for chemical emergencies. I think that that backbone is currently weak and needs additional support. A survey like this could provide both the EPA and Congress with the information necessary to identify the extent of the current weaknesses in this important program.

For more details on the survey and EPA’s IRC, see my article at CFSN Detailed Response - https://patrickcoyle.substack.com/p/omb-approves-epa-serc-survey-icr - subscription required.

HR 861 Introduced - Alerting Localities of Environmental Risks and Threats Act

Last month Rep Blunt-Rochester (D,DE) introduced HR 861, the Alerting Localities of Environmental Risks and Threats Act of 2021. The bill would amend the Emergency Planning and Community Right-To-Know Act (EPCRA) to require covered facilities to hold public meetings about any reportable release and annual meetings about reportable chemicals held on-site.

Post-Release Meetings

Section 2(a) of the bill would require facilities subject to the incident reporting requirements of 42 USC 11004, in the event of a reportable release, to hold a public meeting about the incident. Public notice of the meeting would be posted within 72 hours of the release. The meeting would provide the attending public with the reportable information set forth in §11004(b)(2).

Annual Meetings

Section 2(b) of the bill would add a new §306 to EPCRA that would require facilities subject to EPCRA reporting requirements to hold an annual public meeting to provide the attendees with information about the covered chemicals held on site. The information would include {new §306(2)}:

• The chemical name of each substance on the list published under section 302(a) [42 USC 11002(a)] that was present at such facility, in an amount in excess of the threshold planning quantity established for such substance under such section, at any time in the preceding calendar year,

• An estimate of the maximum amount of each such substance present at such facility during the preceding calendar year, and

• The details of the methods and procedures to be followed to respond to a release of such a substance pursuant to the applicable emergency plan prepared under section 303(c) [42 USC 11003(c)].

The section specifically allows the facility to maintain existing trade secret protections under §11042.

Moving Forward

Blunt-Rochester and three of her ten cosponsors {Matsui (D,CA), Schakowsky (D,IL), Soto (D,FL)} are members of the House Energy and Commerce Committee to which this bill was referred for consideration. This means that there should be sufficient influence for this bill to be considered in Committee. Republicans could be expected to oppose this bill because of ‘security concerns’ (see more in the Commentary section below). The bill would be expected to pass in Committee and on the floor of the House along mainly party lines.

Commentary

This bill addresses an on-going issue about the information that the public is entitled to know about the hazardous chemical inventories at local facilities. EPCRA was intended to ensure that the public was aware of the potential chemical threats in their communities. Up until 2001, the EPA maintained a searchable web site that made the information reportable under EPCRA available to the public. After the 9/11 attacks, however, that web site was taken down due to concerns that it provided potential terrorists with too much valuable information for planning their next attack. The information is still available to the public, but only in-person at a limited number of EPA Reading Rooms around the country.

I think that the very moderate language in this bill goes a long way to balancing those twin concerns, community right-to-know and security. Just as terrorists would not be expected to access this information via the Reading Rooms, they would probably no expose their interest by attending these public meetings.

My only concern is that the bill does not tie this reporting requirement in with the emergency planning requirements of §303 (§11003). Of course, individual facilities are not responsible for those requirements. That falls on the Local Emergency Planning Committee established under §301(c) {§11001(c)}. I would suggest that the following additions be made to the language in this bill to establish this relationship.

First under §2(a) I would add a paragraph (3)(C):

“(C) the facility will invite the Local Emergency Planning Committee to provide meeting attendees that would be prepared to provide a description of the emergency response plan (ERP) required under §303 (42 USC 11003) that was in effect when the incident occurred and any lessons-learned from the actual incident response that would be used to modify the ERP going forward.”.

Finally, under the proposed new §306 I would add a new §306(3):

(3) The facility will invite the Local Emergency Planning Committee to provide meeting attendees that would be prepared to describe the emergency response plan required under §303 (42 USC 11003).

Bills Introduced – 2-5-21

Yesterday, with just the House in session, there were 62 bills introduced. Of those bills one will receive additional coverage in this blog:

HR 861 To amend the Emergency Planning and Community Right-To-Know Act of 1986 to require an emergency notification meeting in the event of the release of an extremely hazardous substance from a facility, and for other purposes. Rep. Blunt Rochester, Lisa [D-DE-At Large]

It will be interesting to see how the bill defines an ‘emergency notification meeting’.

EO 13650 §6(a) RFI – EPA Improvements

This is another in a series of posts addressing the recent request for information (RFI) from the EO 13650 Working Group. That RFI addressed requirements in §6(a) of the Improving Chemical Safety and Security Executive Order (EO 13650) for the Working Group to “develop options for improved chemical facility safety and security that identify improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations”. Earlier posts in the series include:

EO 13650: Another Request for Input

EO 13650 §6(a) RFI – Areas Covered

EO 13650 §6(a) RFI – CFATS Improvements

EPA Accomplishments

The RFI addresses EPA accomplishments in chemical safety regulation in two principal areas; Emergency Planning and Community Right to Know Act (EPCRA) and their Risk Management Program (RMP).

At the community level EPCRA ensures that local fire departments, the agency most likely to respond to chemical emergencies, get the needed information to properly respond to a chemical emergency. The RFI notes (pg 4): “Local fire departments receive this information and should [emphasis added] use it to understand the chemical present at facilities in their community and what to do to respond to an accident at the facility.” The EPA has no legal authority to influence or evaluate the community planning process.

The RFI also addresses the availability of the chemical safety information for the public, stating that: “Additionally, the information about chemicals in the community is made available to the public.” This is technically true, but since 9-11 this information, while available at ‘local’ EPA reading centers, is not available from the EPA on the internet. Many community activist organizations, however, have stepped in and placed the information on their web sites.

The RMP program addresses chemical process safety with the emphasis on preventing process upsets or accidents from affecting the local public. The RFI notes that: “EPA conducts chemical plant safety inspection and enforcement efforts at covered facilities based upon this rule.” It does not address, however, how frequently such inspections are actually done with the limited inspection staff available to the EPA or its allied State agencies.

Suggested Areas for Improvements

EPA has identified 7 categories of areas for improvement (pgs 4-5):

• Updating the list of regulated substances;

• Exploring options for improving coverage of reactive substances, reactivity hazards, and explosive chemical hazards;

• Expanding inspector training to include best practices and improve chemical safety beyond regulatory requirements;

• Further enhancing EPA software tools for emergency responders (e.g., the suite of software products called Computer Aided Management of Emergency Operations (CAMEO));

• Evaluating the implementation of best practices and lessons learned such as the “safety case” regulatory model to reduce risk in complex industrial processes;

• Identifying ways to use safer alternatives as mechanisms to reduce chemical risk; and

• Evaluating opportunities for increasing worker involvement and labor-management cooperation in hazard investigations.

Only one of these categories applies to the EPCRA program; the improvements to CAMEO. All of the remainder deal with RMP issues. Part of the reason for that is that Federal agencies are greatly restricted in the requirements that they can place on State and local agencies for fear of establishing ‘unfunded mandates’ that the local jurisdictions cannot afford to implement.

One area that both EPA programs fail to address is the issue of chemical ‘accidents’ caused by deliberate actions. While DHS clearly has the responsibility of preventing terrorist attacks on facilities, that responsibility does not currently extend to preventing actions by disgruntled employees or contractors. Additionally, the response to or mitigation of the consequences of chemical releases from such incidents is not within the area of expertise found within DHS. The extent of the area affected by a deliberate release can be much greater than the current ‘worst case scenario’ planning required under EPCRA.

Some Suggestions

While the CSB has been calling for EPA to cover reactive chemical hazards for more than a decade now, there is no clear consensus of how the agency is supposed to define such potential hazards, much less regulate them. Probably the most hazardous of these reactions, as a general class, are the self-accelerating decomposition reactions (SADR). If EPA were to initially restrict itself to requiring chemical manufacturing facilities to identify potential SADR reactions and methods to limit reaching the critical process upsets (usually temperature) that start such reactions, it will have gone a long way to reducing community risk from reactivity hazards.

The biggest potential improvement to EPCRA (short or regulating the planning activities of State and local agencies which clearly will not happen) would be to have an active requirement for covered facilities to document response drill activities that include local emergency response personnel. That way the regulatory onus will be placed on the facilities that EPA can regulate.

To get around the problem of a too small inspection force (Congressional action would be needed to significantly expand it, and Congressional action is beyond the scope of the President’s EO) the EPA could require RMP covered facilities to submit an annual report on their drill activities in support of the EPCRA drill activity I’ve described above. This would not necessarily ensure the quality of such drills, but at least an effort would be made at most covered facilities.

Public Comments

This is a reminder that the whole purpose of this RFI is to get public feedback on these proposed ideas. The RFI requests the public to respond to these specific proposals for areas of improvement. That response should address the following (pg 9):

• Examples of where implementation of the same or similar options has been successful;

• Information or data that would characterize the positive impacts the options might have, including additional benefits;

• Potential limitations or unintended consequences of the options described;

• Methods for implementing the options, including methods for potentially increasing benefits or reducing costs; or

• Alternatives to the options that could achieve substantially the same result.

Comments need to be submitted by March 31^st, 2014. They may be submitted via the Federal eRulemaking Portal (www.Regulatons.gov; Docket #OSHA-2013-0026). This Docket is now operational.