# Risk Management Modernization Rule

Presented at Small Business Administration Environmental Roundtable By Patty Gioffre and Kathy Franklin, Office of Emergency Management,USEPA APRIL 22, 2016

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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 Advocacy Review (SBAR) panel on November 4, 2015.

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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 140 regulated substances (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 ◦ Regulated substances listed based on toxicity, volatility, and flammability criteria 

### ◦ 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 Process Safety Management Standard (PSM)

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# OSHA Process Safety Management Standard (PSM)

◦ Process safety management program for highly hazardous chemicals aimed at preventing and minimizing occupational/onsite exposure ◦ Authorized by Clean Air Act Amendments of 1990 ◦ OSHA PSM standard found at 29 CFR part 1910.119 ◦ Focuses on protecting workers from chemical accidents ◦ Promulgated in 1992 ◦ OSHA also considering revisions of the PSM standard and has initiated a Small Business Advocacy Review Panel. For more info, see: https://www.osha.gov/dsg/psm/index.html

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### OSHA PSM & EPA RMP form the U.S. regulatory framework for prevention of catastrophic chemical accidents at fixed facilities

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# RMP Program level applicability PROGRAM 1

642 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 

## PROGRAM 2 1,272 Facilities*

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=29528 5 

### 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

# RMP 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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# Proposed Revisions

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# Key Dates RFI SBAR Panel

◦ Formal notification ◦ Pre - panel outreach ◦ Panel convened ◦ Panel outreach ◦ Report signed Proposed rule published Public hearing Tribal consultation Comment period ends Final rule July 31, 2014 July 10, 2015 September 22, 2015 November 4, 2015 November 19, 2015 February 19, 2016 March 14, 2016 March 29, 2016 April 20 and 26, 2016 May 13, 2016 TBD

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# Overview of RMP Proposed Revisions P1 P2 P3 Third - part y 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 √ √ √

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# Third

- party compliance audits Current Requirements: Facility owners/operators must perform compliance audits every three years. Proposed revisions require all P2 and P3 facilities to conduct a thirdparty 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. ◦ 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.

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### * 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).

# Third

- party compliance audits SBAR Feedback

◦ Eliminate provision ◦ Limit applicability ◦ Revise or eliminate independence criterion ◦ Concerns with Professional Engineer (PE) criterion ◦ Concerns with auditor availability ◦ Security 

## EPA anticipates minimal impacts on small businesses

◦ Applies only after an RMP reportable accident (i.e., only those accidents with deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage)

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# Third

- party audits PANEL RECOMMENDATIONS Consider streamlined independence requirements for small businesses Limit the independence criteria to individuals participating in the audit rather than the entire company Seek comment on:

◦ Eliminating the independence requirement ◦ Limiting applicability to Program 3 facilities, triggered by major accidents that have offsite impacts ◦ Deleting the current PE requirement and considering other independent accreditation for third - party auditors ◦ The impacts on facility security and measures to protect facilities from terrorism or release of CBI from a third - party auditor 

## SBA RECOMMENDATIONS EPA should follow Bureau of Safety and Environmental Enforcement (BSEE) approach for small firms, using a simplified small business size standard Small firms should be allowed to submit a waiver request of the independence requirement, based on consideration of the specific facts, such as the limited availability of qualified independent auditors

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# Incident investigations and root cause analysis Current Requirements: Facility owners/operators must conduct incident investigations following an incident that resulted in or could reasonably have resulted in a catastrophic release. 

## Proposed revisions (Applies to P2 and P3): ◦ Clarify/emphasize current investigation requirements for incidents that could reasonably have resulted in a catastrophic release . Add the term “near miss” to regulations with examples in preamble. ◦ 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) ◦ Require a root cause investigation and define root cause to mean a fundamental, underlying, system - related reason why an incident occurred that identifies correctable failure(s) in management systems ◦ Require a report be completed within 12 months (unless extension approved, in writing, by implementing agency)

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# Incident investigations and root cause analysis PANEL RECOMMENDATIONS Clarify its intent that incident investigations are not intended to cover minor accidents or minor near misses Consider requiring root cause analysis only for reportable releases, not including near misses Clarify in the preamble the comparative advantages of a root cause analysis to the current incident investigation requirements Seek comment on:

◦ Whether to eliminate root cause analysis requirement ◦ The revised definition of catastrophic release and whether it should be further limited ◦ Examples of near misses 

## SBA RECOMMENDATIONS EPA retain the root cause analysis requirement, but not revise the definition of catastrophic release from the 1996 version which SBA believes is limited to major accidents, and maintains consistency with the current OSHA PSM definition of catastrophic release which refers to a “major uncontrolled emission, fire or explosion,” presenting a “serious danger”

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# Safer technology and alternatives analysis (STAA ) Current Requirements: Facility owners/operators must develop a PHA to identify, evaluate, and control process hazards involving regulated substances. Proposed revisions to require the source to conduct a STAA and determine feasibility of inherently safer technologies and designs considered: ◦ Would apply to P3 facilities in: Paper Mfg ; Petroleum and Coal Products Mfg.; and Chemical Mfg. ◦ The STAA would consider, in the following order of preference: ◦ Inherently safer technology (IST) or design, ◦ Passive 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

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# STAA PANEL RECOMMENDATIONS Explain why EPA is reconsidering the 1996 assessment that analysis of inherently safer technology was unlikely to yield additional benefits Seek comment on:

◦ Whether to eliminate requirement ◦ Limiting this provision to require analyses only to be conducted at the design stage of new processes ◦ Exempting batch toll manufacturers from this requirement 

## SBA RECOMMENDATIONS Small firms (under 250 employees) should not be subject to this provision until three years after the rule’s compliance date for large firms Exempt batch toll processors from this provision unless the firm has a contractual relationship with the customer of five or more years

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# Local emergency response coordination Current Requirements: Facilities must develop an emergency response program except when the community emergency response plan addresses toxic substances at the facility, or owner/operator has coordinated response actions for flammable substances with local fire department. 

## 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

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# Local emergency response coordination PANEL RECOMMENDATIONS Explain how coordination should occur between local emergency response officials and small facilities and clarify requirements for facilities that make a “good faith” effort to coordinate with local emergency response officials Seek comment on proposed frequency for annual coordination 

## SBA RECOMMENDATIONS SBA does believe that it is not appropriate to require small firms to provide emergency response capability in the absence of a public response mechanism EPA should follow hazardous waste generators requirements to “attempt” to make arrangements with local responders and document failure to complete such arrangements

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# Emergency Response Exercises No Current Requirements 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

# Emergency Response Exercises PANEL RECOMMENDATIONS Clarify that participation by local responders is not required for a facility to comply Clarify that exercises required by other state and federal regulations could meet this requirement if the facility’s emergency response plan is tested Seek comment on:

◦ Whether the exercise provision should be eliminated ◦ How to address postponement and rescheduling issues (which SERs have indicated may take up to a year); ◦ Limiting the requirement to only tabletop exercises; and ◦ The frequency of required field and tabletop exercises 

## SBA RECOMMENDATIONS Propose tabletop exercises alone, and include no minimum requirements for field exercises

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# Information availability Current RMP data availability

◦ Only emergency response and other govt. officials can access the RMP data via a non - public EPA database ◦ Public access to worst case off- site consequence analysis (OCA) data is restricted to viewing only in Federal Reading Rooms ◦ Public can access non - OCA RMP data in Federal Reading Rooms or by FOIA request

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# Information availability

- LEPC Proposed revisions: 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

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# Information availability

- LEPC PANEL RECOMMENDATIONS Consider only requiring facilities to develop chemical hazard information summaries and allow LEPCs to make reasonable requests for additional information Make chemical hazard information available upon request by the LEPC rather than requiring it to be automatically submitted by the facility. Seek comment on:

◦ Narrowing the approach to require a one page summary of each significant chemical hazard during a fire identifying the product, its properties, its location and firefighting measures for responders -- a one - page summary of information that addresses chemical hazard information and emergency response measures ◦ Limiting the amount of information to be shared with LEPCs ◦ Whether EPA should specify a format for summary information to make it easier for local officials to find and interpret the information that they need OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 23

# Information availability

- public

◦ 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 ◦ Local Emergency Planning Committee (LEPC) contact information 

## Posting on a ◦ company website , ◦ public file sharing website, or ◦ social media website P lacing a file at a public library or local government office

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## Proposed Revisions: Require chemical hazard information to be provided in an easily accessible manner

# Information availability

- public PANEL RECOMMENDATIONS Seek comment on:

◦ Ways to limit the scope of the information elements shared with the public as well as the format in which information should be provided (e.g. a one - page summary of information that addresses chemical hazard information and emergency response measures ) ◦ Whether the existing RMP data, including the executive summary, are adequate for the public in the absence of a specific request ◦ Whether additional information should only be provided to the public upon request

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# Information availability

- 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

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# Information availability

public meetings PANEL RECOMMENDATIONS EPA require that a public meeting be held only after an RMP reportable accident EPA should consider allowing the public meeting to be combined with any meeting open to the general public (e.g. city council, municipal board, or LEPC meeting)

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### Seek comment on: ◦ Whether it is appropriate to require public meetings ◦ Whether to eliminate the public meeting requirement and instead require the facility to schedule a meeting with the LEPC and/or emergency responders 60 to 90 days after an accident or incident; ◦ Whether public meetings should be held upon request (e.g., LEPC or its community equivalent) rather than automatically within an established timeframe; and ◦ Extending the timeframe from 30 to 90 days or whether there is a more appropriate timeframe for scheduling a meeting following an RMP reportable accident and who should be included in the invitation

# Estimated Unit Costs ( in actual $)*

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT * Sources for estimate include technical literature, public comments, other similar programs, RMP database, and EPA labor models

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# Additional resources EO 13650 Resources:

◦ EO 13650 Improving Chemical Safety and Security: 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_status_re port.pdf ◦ Activities under EO 13650: http://www.epa.gov/rmp/executive - order improving - chemical - facility - safety - and - security

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# Submit Comments RMP proposed rule website: http://www.epa.gov/rmp/proposed - changes risk - management - program - rmp - rule

◦ Includes proposed rule supporting documents ◦ Frequently asked questions 

## Proposed rule published March 14, 2016:

◦ https ://federalregister.gov/a/2016 - 05191 

## Submit comments on or before May 13, 2016

◦ http ://www.regulations.gov , Docket ID: EPA - HQ- OEM - 2015 - 0725

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# Questions?

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 311 SBA Roundtable Presentation on RMP Proposed Rule - Questions and Answers April 22, 2016 27 in - person attendees and 11 persons participating by teleconference phone Q: When does EPA project the final rule would be completed? A: We cannot give an exact date but this rulemaking is a priority for this Administration. Q. From review of the proposed rule, it looks like the Agency based analysis on 7 years of accidental release data. Why was this timeframe chosen? A: EPA ’s analysis covered 10 years of accident data. This covers two reporting cycles (each cycle is 5 years) . Q: The RIA seemed to have a good qualitative analysis of benefits of the proposed rule. Can EPA isolate the benefits for each provision of the rule? A: EPA welcomes any information that stakeholders have that could provide benefits for each provision. EPA looked at a net benefits of the entire rule. We did not have information to estimate benefits for individual provision s . Q: EPA could look at other rules with similar requirements, such as the SEMS2 rule that had auditing provisions. A: Please provide that suggestion as part of your written comments including any other examples that EPA should consider. Q: Were there many comments f rom process safety consultants in the SBREFA process? A: No, process safety consultants would not have been eligible because.... only those entities that are small businesses directly subject to the regulation are allowed to participate in the S mall Business Advocacy Review process. We did have one consultant provide comments at the March 29 public meeting. Q: The International Dairy Foods Association will be filing a request for extension of the comment period for another 30 days. EPA has a l ot of data to be reviewed for this rule. The association needs more time to gather and analyze data so they can prepare meaningful comments.2 A: EPA will take this message back to our management. Q: (SOCMA) 90% of the preventable accident damage benefit s seems to be associated with only on - site impacts . EPA and OSHA needs to decide which agency can claim these benefits as part of their rulemaking and not double count the benefits. A: EPA agrees. We coordinate with OSHA regularly. If EPA issues a fin al rule before OSHA, OSHA would not claim as benefits those that are already in the EPA rule.