Posted by: Lawyer Sanders | July 30, 2008

Attorney Sanders says Section 112(r) of the Clean Air Act may require Risk Management Plan.

The Clean Air Act (CAA) is intended to “to protect and enhance the quality of the Nation’s air resources so as to promote public health and welfare and the productive capacity of its population…”  To help meet this Congressional mandate, EPA established a Risk Management Program to reduce or eliminate air releases from industrial accidents.  This federal program is due, in part, to increased public awareness of human health and environmental dangers from accidental releases of hazardous chemicals.  For example, a single 1984 airborne release of methyl isocyanate from a Union Carbide pesticide plant in Bhopal, India killed thousands of unsuspecting people living near the plant.    

The CAA Amendments of 1990 amend section 112 and add paragraph (r).  The intent of section 112(r) is to prevent accidental releases to the air and mitigate the consequences of such releases by focusing prevention measures on chemicals that pose the greatest risk to the public and the environment. Section 112(r)(3) mandates that EPA  promulgate a list of regulated substances, with threshold quantities; this list defines the stationary sources that will be subject to accident prevention regulations mandated by section 112(r)(7).  The regulatory keystone to reducing the possibility of an accidental release of hazardous chemicals into the atmosphere is the Risk Management Program (RMP). 

The RMP applies to a subset of these facilities were certain substances above a threshold level. The RMP is found at 40 C.F.R. Part 68, which emphasizes hazard assessment, prevention and response.  It applies to owners and operators of stationary sources that have more than a “threshold quantity” of a regulated substance in a process.  “Threshold quantity” means the quantity specified for regulated substances pursuant to section 112(r)(5) of the CAA, and listed at 40 CFR Section 68.130, and determined to be present at a stationary source as specified in Section 68.115. The full list of chemicals regulated by the RMP is at: http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=40&PART=68&SECTION=130&TYPE=TEXT

Threshold quantities of hazardous chemicals range from 500 to 20,000 pounds and are determined by the maximum amount of a stationary source in a process, not the maximum quantity at a facility or installation. Section 68.115 details exemptions that apply to certain regulated substances when present in a mixture.  To address risks posed by potential releases of regulated substances from covered processes, owners and operators of stationary sources must undertake certain activities and meet certain requirements relative to the risk associated with each process.

The regulatory requirements have been categorized under Title 40 CFR Part 68 into three “Program Levels.” A stationary source could have covered processes in one or more of the three Programs Levels discussed below. The requirements of Title 40 CFR Part 68 will be met most effectively if a facility carefully evaluates all processes and hazardous substances, determines which processes would be covered, and categorizes them under the appropriate Program Level.

The RMP must be submitted to the EPA and made available to the public, as well as state and local personnel.  For more information on what is required in a RMP, go to: http://www.epa.gov/oem/content/rmp/ .   EPA’s 1996 risk management program regulation requires the following information from all affected sources:

1.      A 5-year history of accidental releases of substances subject to the RMP regulation that have resulted in injury or death to humans, off-site evacuations, or property or environmental damage;

2.      hazard assessment of worst-case releases of toxic or flammable substances and, for some sources, alternative release scenarios;

3.      a summary of the facility’s emergency response program, including procedures for notifying the public of a release, and schedules for drills completed and planned;

4.      the contact person for emergencies;

5.      date of the last safety inspection and the agency that performed it; and

6.      a general description of the company’s prevention plan.

Some sources also will need to include pertinent details of any incident investigation, management of change procedures, operating procedures, pre-startup reviews, maintenance activities, compliance audits, process safety training information, and process hazard analyses.

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