Hot Topics in CAA – 112(r)Federal Program UpdateGA AWMA REGULATORY UPDATE CONFERENCE

Adam G. SowatzkaApril 16, 2013

Agenda• Background• Risk Management Program• General Duty Clause• EPA Enforcement• Questions

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Background

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Why Address Risk Management?• Congressional response to

preventing further major chemical accidents:― Bhopal, India (Methyl

Isocyanate release, 2,800 deaths, 1984)

― Institute, West Virginia (100 plus injured, 1985)

― Pasadena, Texas (plastics plant fire, 23 deaths, 1989)

http://www.youtube.com/watch?feature=player_detailpage&v=3l2PQEjMnnM 4

Risk Management Program – Federal Statutory Provisions

• EPCRA – Emergency Planning and Community Right-to-Know Act (SARA Title III), Sections 302-312

• CERCLA – Comprehensive Environmental Response, Compensation and Liability Act, Section 103

• CAA – Clean Air Act Section 112(r)(7), Chemical Accident Prevention Provisions and Risk Management Plans; and Section 112(r)(1) General Duty Clause

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CAA Section 112(r)• Regulatory requirement for subject facilities to

file a Risk Management Plan (RMP) by June 21, 1999 or before covered chemical is on site

• Includes “General Duty Clause” (GDC) requiring facilities to consider hazards and minimize risk posed by chemicals

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EPA’s Risk Management Program

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Who is subject to the RMP regulations?• Stationary sources that have more than a threshold

quantity (TQ) of a listed substance• EPA has developed a list of chemicals:

― 77 toxic― 63 flammable

• If a facility stores one of these chemicals at quantities greater than a TQ….. THE FACILITY MUST HAVE A RISK MANAGEMENT PLAN

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Key Elements of RMP• Employee participation plan • Process safety information (documentation of the

process)• Process Hazard Analysis (PHA)• Operating procedures• Operator training• Contractor evaluation and selection• Pre-start-up safety reviews

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Key Elements of RMP Cont’d• Mechanical integrity program• Hot work permitting process• Management of Change (MOC)• Incident investigation• Emergency planning and response• Compliance audits

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RMP Filing• Facilities must resubmit RMPs at 5 year intervals• There are additional/on-going responsibilities − it

is not a static program that ends with filing of RMP• Certification of receipt and completion from RMP

Reporting Center does not indicate that an RMP is in compliance with regulations

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Important Dates Reported in RMPs• Process Hazard Analysis

(PHAs), compliance audits, and SOP review dates

• Red flags:― Leaving these entries blank

or having future dates ― Having dates (as of the

filing) that are more than 5 years, 3 years, and 1 year past due

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PHAs and Compliance Audits• Must be performed by proper personnel• Corrective actions/recommendations required for

noted deficiencies• If completion dates are not shown in facility

documentation, objective quality evidence is required

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General Duty Clause

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General Duty Clause – CAA §112(r)(1) • Statutory requirement, effective as of November

1990• No list of covered substances, no threshold

quantities• No reporting requirement, information sharing with

public not required• No exemptions or exclusions

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General Duty Clause – CAA §112(r)(1) • The owners and operators of stationary sources producing,

processing, handling or storing such substances [i.e., a chemical in 40 CFR part 68 or any other extremely hazardous substance] have a general duty [in the same manner and to the same extent as the general duty clause in the Occupational Safety and Health Act (OSHA)] to identify hazards which may result from (such) releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.

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Substances Covered Under GDC• Extremely hazardous substances

― Short-term exposures associated with releases to air may cause death, injury, or property damage due to toxicity, reactivity, flammability, volatility, or corrosivity

• Includes, but not limited to, RMP list of toxic and flammable substances

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Facility Responsibilities Under GDC• Identify hazards of chemicals, and assess impact of

potential releases• Design and maintain safe facilities• Follow codes, standards, and other business

practices• Minimize consequences of accidental releases

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GDC – Considerations for Safe Practices• What are similar businesses doing to minimize

hazard?― Codes and standard practices― EPA and other Safety Alerts, Case Studies, and

Investigation Reports― Trade association guidelines

• What is the accident history of my industrial sector?― Lessons learned

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EPA Enforcement

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Fiscal Years 2011-2013:•Preventing the release of raw sewage and contaminated stormwater •Preventing animal waste from contaminating surface and ground waters•Cutting toxic air pollution that affects health•Reducing air pollution from largest sources•Reducing pollution from mineral processing operations•Assuring energy extraction sector compliance

EPA’s Enforcement Initiatives

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EPA Enforcement Overview• Inspection• Information request• Administrative Compliance

Order• Penalty action

― Administrative― Judicial Referral― Criminal

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EPA RMP and GDC EnforcementCase Date Penalty Injunctive ReliefTyson Foods 4/4/2013 $3.9 million RMP audits at 21 facilities

JP Lillis Enterprises, d/b/a Cape Cod Ice

1/9/2013 $225,000 Various corrective actions related to its ammonia program

Suiza Dairy Corporation

9/28/2012 $275,000 $3.75 million in facility upgrades

C.A.I., Inc. of Danvers, Massachusetts

8/15/2011 $100,000 $1.3 million for site clean-up related to a removal action caused by a fire

BP Products North America Inc.

9/30/2010 $15 million Implement defined compliance program including monthly reports to EPA

D.D. Williamson & Co, Inc.

10/7/2009 $300,000 Conduct RMP audit and take corrective actions based on that audit

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QuestionsAdam G. SowatzkaPartnerKing & Spalding1180 Peachtree Street, N.E.Atlanta, GA 30309-3521Direct: 404-572-3508Fax: 404-572-5136Cell: 770-309-5349asowatzka@kslaw.com www.kslaw.com

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