Tribal Consultation Teleconference Meeting on Risk Management Modernization Rule April 20, 2016 No tribes participated. April 26, 2016 EPA Participants: Resources Management Division, Office of Emergency Management: Nick Nichols and Victoria van Roden Regulations Implementation Division Kim Jennings, Margaret Gerardin, Patty Gioffre, Kathy Franklin, and Beth Bosecker EPA Region 10: Neverley Shoemake Tribal participants: Vivian Seals, Twin Hills Village Council, Alaska Polly Edwards, Caddo Nation, Oklahoma Sara Jones, Chickasaw Nation, Oklahoma

# Risk Management 

# Modernization Rule TRIBAL CONSULTATION 

# APRIL 2016

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT

# Agenda Background Overview of proposed rule provisions and costs Tribal impact Additional resources Questions

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# Background On August 1, 2013, President Obama issued Executive Order (EO) 13650: Improving Chemical Facility Safety and Security following several catastrophic chemical facility incidents in the United States. ◦ Focus is to reduce risks associated with hazardous chemicals to owners and operators, workers, and communities by enhancing the safety and security of chemical facilities. 

## The keys areas of emphasis under the EO are: ◦ Strengthening community planning and preparedness, ◦ Enhancing federal operational coordination, 

### ◦ Improving data management, and ◦ Modernizing policies and regulations . ◦ EPA issued a request for information (RFI) on July 31, 2014, and ◦ Convened a Small Business A dvocacy Review panel on November 4, 2015.

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# Existing regulatory framework The Risk Management Program is one of several programs that 

## address chemical facility safety and security: ◦ OSHA Process Safety Management (PSM) standard - Management program for highly hazardous chemicals aimed at preventing and minimizing occupational/onsite exposure ◦ Emergency Planning and Community Right -to - know (EPCRA) requirements - Local emergency planning and preparedness, emergency release notification, community right -to - know: provision of hazardous chemical storage inventory and toxic chemical release inventory to the community and first responders ◦ CAA Section 112(r)(1) general duty clause - Facility owner/operators have a 

### general duty to prevent and minimize releases ◦ Chemical Facility Anti -terrorism Standards ( CFATS) - DHS security requirements ◦ ATF requirements for explosives ◦ State/local requirements (e.g., NJ, Contra Costa County, CA regulations)

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# Risk Management Program rule

◦ Promulgated in 1996 under Section 112(r) of the Clean Air Act 

### Amendments ◦ Applies to all stationary sources with processes that contain more than a threshold quantity of a regulated substance (approx. 12,500 sources) ◦ Includes a wide variety of industry sectors including: refining , chemical manufacturing, energy production, ammonia refrigeration, water treatment, bulk storage, chemical distribution, agricultural retail, and chemical warehouses 

### ◦ Requires the source to develop a Risk Management Plan (RMP) ◦ Addresses elements aimed at preventing accidental releases and reducing the severity of releases that occur ◦ Prepare and submit an RMP to EPA at least every 5 years 

### ◦ Covered processes fall within one of three prevention program levels based on: ◦ The potential for offsite consequences from a worst - case accidental release; ◦ Accident history; and ◦ Regulation under OSHA PSM

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# Program levels

PROGRAM 1 642 Facilities 

## PROGRAM 2 1,272 Facilities* Processes not eligible for Program 1, not subject to Program 3 ◦ Mainly water & wastewater treatment in Federal OSHA states ◦ Additional hazard assessment, accident prevention, management, and emergency response requirements

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT *Analysis reflects OSHA change to PSM retail exemption issued July 2015. See OSHA PSM Retail Exemption Policy at: https ://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=2 9528 6 

### Processes subject to OSHA’s PSM or in one of 10 specified NAICS codes ◦ Larger facilities or those with complex processes ◦ Examples include: refining, chemical manufacturing, energy production, water treatment ◦ Covered by OSHA’s PSM accident prevention program and include additional hazard assessment , management , and emergency response requirements 

## PROGRAM 3 10,628 Facilities * Processes that would not affect the public in the event of a worst case release & no accidents with offsite consequences in the last five years ◦ Small quantities of flammables, less volatile toxics ◦ Limited accident prevention including hazard assessment and emergency response requirements

# Program level comparison

PROGRAM 1 PROGRAM 2 PROGRAM 3  Worst case analysis  5 - year accident history  Document management system  Worst case analysis  5 - year accident history  Document management system  Worst case analysis  5 - year accident history  Document management system Prevention Program Certify no additional prevention steps needed  Safety information  Hazard review  Operating procedures  Training  Maintenance  Incident investigation  Compliance audit  Process safety information  Process hazard analysis (PHA)  Operating procedures  Training  Maintenance  Incident investigation  Compliance audit  Management of change  Pre - startup review  Contractors  Employee participation  Hot work permits Emergency Response Program Coordinate with local responders Develop plan/program and coordinate with local responders Develop plan/program and coordinate with local responders

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# Overview of Proposed Revisions P1 P2 P3 Third - party a udits (applies to the next scheduled audit after an accident) [Estimated 150 accidents/year] √ √ Incident Root Cause Analysis (only for facilities with accidents/near misses) [Estimated 300 incidents/year] √ √ Safer Alternatives Analysis (applies to a subset of P3 in certain NAICS codes*) [Estimated 1,692 Facilities/4,308 Processes] √ 

### Coordinating Emergency Response Program Requirements with Local Responders 

### √ √ Emergency Response Exercises √ √ Information Sharing √ √ √

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 8 *Applies to paper manufacturing, petroleum and coal products manufacturing, and chemical manufacturing facilities

# Third

- party compliance audits Proposed revisions require all P2 and P3 facilities to conduct a third

## party audit in lieu of a compliance audit following an RMP reportable accident.* ◦ Must be completed within 12 months of an RMP reportable accident or within 3 years of completion of the previous compliance audit, whichever is sooner. ◦ Note that this audit and its schedule are independent of the incident investigation requirement and its schedule. 

### ◦ Same scope as the current compliance audit provisions (i.e., audit prevention program implementation for all covered processes). 

### ◦ EPA is proposing criteria for auditor independence, impartiality, and competence.

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 9 * RMP reportable accident means an accidental release meeting the criteria in § 68.42(a) from a covered process at a stationary source (i.e., includes accident with deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage).

# Incident investigations and root cause analysis Proposed revisions (Applies to P2 and P3): ◦ Revise incident investigation requirements to: ◦ Clarify that it applies to a catastrophic release (i.e., an RMP reportable accident) or an incident that could reasonably have resulted in a catastrophic release (i.e ., a near miss) ◦ Require a root cause investigation (i.e ., identify the fundamental reasons why an incident occurred and the correctable failures in management systems ) ◦ Require a report be completed within 12 months (unless extension approved, in writing, by implementing agency ) 

### ◦ Clarify the definition of catastrophic release to be consistent with reportable 

### accidental release (i.e., an accident with deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage) ◦ Add a definition of root cause to mean a fundamental, underlying, system related reason why an incident occurred that identifies correctable failure(s) in management systems

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# Safer technology and a lternatives analysis (STAA)

Would apply to P3 facilities in NAICS codes: ◦ 322 (paper manufacturing), ◦ 324 (petroleum and coal products manufacturing), and ◦ 325 (chemical manufacturing) 

### The STAA would consider, in the following order of preference: ◦ Inherently safer technology (IST) or design, ◦ P assive measures, ◦ Active measures, and ◦ Procedural measures 

### ISTs are those measures that reduce or eliminate the hazards and include minimization , substitution of less hazardous chemical, moderation of the process, and simplification of the 

### process/procedures Owner/operator would not be required to implement any prescribed technology; however EPA is requesting comment on whether the rule should require implementation EPA is proposing several definitions including feasible

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## Proposed revisions to require the source to conduct a STAA and 

## determine feasibility of inherently safer technologies and designs considered:

# Local coordination Proposed revisions require all P2 and P3 facilities to: ◦ Coordinate annually with the Local Emergency Planning Committees (LEPCs*) /emergency responders and ensure response capabilities exist ◦ Document coordination ◦ LEPCs*/emergency responders can request source to prepare an emergency response (ER) program What are the outcomes of “coordination”? ◦ “Non - responding” source – coordination indicates that local public response capabilities are adequate to respond, appropriate notification mechanisms are in place, and local authorities have not requested that owner develop ER program ◦ “Responding” source – coordination indicates that local public response capabilities are not adequate to respond, or local authorities request that owner develop ER program ◦ F acility must develop an emergency response program following § 68.95

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 12 What is “coordination”? ◦ Facility and local responders meet and discuss response needs, capabilities, and roles: • Determine resources needed to appropriately respond to regulated substance releases at facility • Determine resources available from facility and local responders • Identify capability gaps and develop plans to address • Decide whether facility or local responders will respond to releases of regulated substances • Assign response action roles and responsibilities * Applicable to Tribal Emergency Planning Committees (TEPCs)

# Exercises Proposed revisions : Require facilities to test their emergency response 

## program through notification, tabletop, and field exercises (Applies to all P2 and P3) ◦ Require “responding” and “non - responding” facilities to conduct an annual notification exercise ◦ Require “responding” facilities to conduct the field and tabletop exercises and invite local responders to participate: 

### Tabletop exercise ◦ Frequency : Annually except in the year of a field exercise ◦ Scope : Same as field exercise without actual mobilization of personnel & equipment An exercise evaluation report must be completed within 90 days of each exercise.

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### Field exercise ◦ Frequency : Every 5 years and within one year following a reportable accident ◦ Scope : Test procedures for notification, evacuation, medical treatment, communications systems, emergency response personnel mobilization (including contractors, if appropriate), coordination with local responders, equipment deployment, and other actions identified in ER program as appropriate

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# Information sharing Proposed revisions add new disclosure elements for all facilities: ◦ To LEPCs* and emergency responders 

### ◦ To general public ◦ Public meetings within 30 days of an RMP reportable accident 

## The information should be conveyed without revealing CBI or trade secret information 

## Any summary information should adequately explain the findings, results, or analysis being provided while avoiding technical jargon

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 14 * Applicable to TEPCs

# Information sharing

- LEPC Require summaries of chemical hazard information to be provided to LEPC* or local emergency response official, upon request: ◦ Information on RMP regulated substances−names and quantities of regulated substances held in a process ◦ Five - year accident history information (reported under § 68.42) ◦ Compliance audits ◦ Incident investigation reports (with root cause findings ) ◦ IST implemented or planned to be implemented, if applicable ◦ No requirement to implement, but if a source does implement ISTs it is useful information for LEPCs*/first responders to have in their local emergency planning efforts ◦ Exercises, including schedules and reports

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 15 * Applicable to TEPCs

# Information sharing

- public Require chemical hazard information to be provided in an easily 

## accessible manner (i.e., posting on a company website , public file sharing website, or social media website, or placing a file at a public library or local government office) 

## ◦ Names of RMP regulated substances held in a process 

## ◦ Safety data sheets (SDS) for all RMP regulated substances located at the facility ◦ Emergency response program summary information ◦ Five -year accident history information reported under § 68.42 

## ◦ Exercise summary information ◦ LEPC contact information

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# Information sharing

public meetings Proposed revisions would require a public meeting to be held within 30 days of an RMP reportable accident. The meeting would address: ◦ Information about the accident; ◦ Other relevant chemical hazard information (such as what would be provided to the public) 

## Can be held in concurrence with a regularly scheduled LEPC* meeting that is open to the public Facilities must notify the community about the public meeting and can use various methods including: ◦ Publishing a notice in a local paper, 

### ◦ Social media, and/or ◦ Fliers in public places, like the local library

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 17 * Applicable to TEPCs

# Estimated unit costs (in actual $)* Type of Cost Estimated Compliance Cost * Notes Third - party Compliance Audits $18,000 to $49,000 Applies to facilities with P2 and P3 processes after an RMP reportable accident. Incident Investigation Root Cause Analysis $2,000 to $5,000 Applies to facilities with P2 and P3 processes only after an RMP reportable accident or a near miss. STAA $29,000 to $49,000 per process Applies to facilities in select NAICS codes with P3 processes.

Occurs once every 5 years. Coordination with local responders $300 to $400 Applies to P2 and P3 facilities. Occurs annually. New Responder Costs (estimated costs that may apply if a current non - responding facility becomes a responding facility as a result of local coordination activities) Develop Plan $2,000 to $8,000 Initial year costs. New responders will also be subject to exercises costs below. Train employees $11,000 to $65,000 Purchase equipment $50,000 to $60,000 Emergency Response Exercises (P2 and P3) Notification drills $100 to $200 Applies to both responders and non - responders. Occurs annually. Tabletop exercises $5,000 to $24,000 Applies to responding facilities. Tabletop exercises occur annually except in the year of a field exercises which occurs once every five years. Field exercises $8,000 to $66,000 Information Sharing (All RMP facilities) LEPC/TEPC/local responders $4,000 to $10,000 These ranges represent the combined costs for all required reports. Costs will vary on an annual basis upon occurrence of regulatory requirements (e.g., compliance audits, incident investigations). Public $200 to $1,600 Update annually. Public meetings $2,000 to $4,000 After an RMP reportable accident. * Sources for estimates include technical literature, public comments, other similar programs, RMP database, and EPA labor models

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# How Could This Proposed Rule 

# Impact Tribes? Approximately 260 RMP facilities are located on tribal lands Tribes could be impacted by this proposal in 2 ways: ◦ As a Tribal government when the Tribal government conducts emergency response or emergency preparedness activities under EPCRA • The Tribe would be able to request specific information from the facility for planning purposes • The Tribe may be requested to participate in exercises by RMP - regulated facilities on Tribal lands 

### ◦ As an owner or operator of an RMP - regulated facility

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# Non -federal Emergency Response Entities Under EPCRA SERCs TERCs LEPCs TEPCs State Emergency Response Commissions Tribal Emergency

Response Commissions Local Emergency Planning Committees Tribal Emergency

Planning Committees SERCs are appointed by the governor of each state to establish LEPCs. TERCs are established by

the Chief Executive Officer of the tribe . TERCs have the same responsibilities as SERCs in the Tribal region. LEPCs are established by the SERC in each state. TEPCs are established by

the TERC. They have the same responsibilities as LEPCs in the tribal region. Responsibilities • Establish and supervise LEPCs / TEPCs • Review local emergency plan • Establish mechanisms to collect hazardous chemical inventories and information on chemical releases from facilities • Establish procedures to process public information requests Responsibilities • Prepare and review chemical emergency response plan • Coordinate responses to emergency releases, serving as a focal point in the community for information and holding discussions about chemical risks in the community • Establish procedures to process public information requests

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# Tribal Funding Considerations A tribe may or may not conduct emergency planning or response activities under EPCRA ◦ This proposal does not seek to establish new TERCs or TEPCs 

## EPA does not provide funding under EPCRA or the RMP program for 

## state, local, or Tribal governments to conduct emergency response programs However, the May 2013 General Assistance Program (GAP) Guidance defines capacity indicators for an emergency response program that 

## include :

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### ◦ Establishing a TERC, ◦ Participating on an LEPC, ◦ Coordinating with a SERC 

### ◦ Conducting an emergency response exercise, or ◦ Conducting a public meeting to discuss chemical risk information

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# Additional resources RMP proposed rule webpage: http ://www.epa.gov/rmp/proposed changes - risk - management - program - rmp - rule EO activities under EO 13650: http://www.epa.gov/rmp/executive order- improving - chemical - facility - safety - and - security 

## EO 13650: https://www.osha.gov/chemicalexecutiveorder/index.html Report for the President: Actions to Improve Chemical Facility Safety and Security

– A Shared Commitment : https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_stat 

## us_report.pdf EPA RFI: https ://federalregister.gov/a/2014 - 18037

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# Questions?

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 23Questions and Answers from April 2 6 Tribal Consultation Teleconference Meeting on Risk

Management Modernization Rule . Ms Edwards: Our tribe forms an LEPC with Caddo County, we are not an independent TEPC. Can the emergency response plans be uploaded to the state DEQ to be shared with LEPCs? EPA : EPCRA information from facilities is gathered by some state s and distributed to LEPCs and fire departments. However RMP emergency plans are not reported to EPA, but are kept at the facility. The Risk Management Plan data reported to EPA does not have detailed ER Plan information. Some Risk Management Plans are uploaded by the states. If the facility is a responding facility, then they may incorporate their ER plan as part of the coordination effort with LEPCs and first res ponders. Ms. Edwards: Are wind farms covered by RMP regulations? EPA : No. Ms. Edwards: Would after action reports from full scale exercises be published or made part of best practices? Under CFATS, facilities can upload exercise data into database ( ? ) and local response agencies can read after- action reports to learn about and plan exercises. HSEEP (Homeland Security Exercise and Evaluation Program) also has guidance for evaluation of exercises. Wildfire planning was also mentioned. EPA : RMP regulations would not require them to put the after- action exercise reports into a CFATS program or database. LEPCs can request a summ ary of exercise reports. Best Management Practices should be shared, made public. Ms. Edwards: When putting together an exercise, it is helpful for one to look at others’ exercise reports and best practices. Looking at scenarios developed by others help s with planning. EPA: Facilities would be required to invite LEPCs to participate in their exercises. EPA: There is organization call NATTSPO - National Association of SARA Title III Program Officials (www.nasttpo.com) that works with state and local emergency planning organizations that tribal representatives may be interested in joining. They are having a meeting in May. Ms. Edwards: I would be interested in getting more information about that meetin g. EPA: We can send you further information and we also put information about upcoming meeting of interest in our SERC/TERC Update email which you can subscribe to. (EPA collected email contact information for the interested parties.) There were no comments from other tribes.