Hot Topics in CAA – 112(r) Federal Program Update

1. Hot Topics in CAA – 112(r)Federal Program Update GA AWMA REGULATORY UPDATE CONFERENCE Adam G. Sowatzka April 16, 2013

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

3. Background

4. 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

5. 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

6. 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

7. EPA’s Risk Management Program

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. General Duty Clause

15. 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

16. 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.

17. 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

18. 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

19. 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

20. EPA Enforcement

21. EPA’s Enforcement Initiatives 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

22. EPA Enforcement Overview • Inspection • Information request • Administrative Compliance Order • Penalty action • Administrative • Judicial Referral • Criminal

23. EPA RMP and GDC Enforcement

24. Questions Adam G. Sowatzka Partner King & Spalding 1180 Peachtree Street, N.E. Atlanta, GA 30309-3521 Direct: 404-572-3508 Fax: 404-572-5136 Cell: 770-309-5349 asowatzka@kslaw.com www.kslaw.com