Adam Sowatzka - CAA 112(r) Federal Program Update

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Hot Topics in CAA – 112(r)

Federal Program Update

GA AWMA REGULATORY

UPDATE CONFERENCE

Adam G. Sowatzka

April 16, 2013

Agenda

• Background

• Risk Management Program

• General Duty Clause

• EPA Enforcement

Questions

2

Background

3

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

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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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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

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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 Enforcement

Case

Tyson Foods

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

Suiza Dairy

Corporation

C.A.I., Inc. of

Danvers,

Massachusetts

BP Products North

America Inc.

D.D. Williamson &

Co, Inc.

Date

4/4/2013

1/9/2013

9/28/2012

8/15/2011

9/30/2010

10/7/2009

Penalty

$3.9 million

$225,000

$275,000

$100,000

$15 million

$300,000

Injunctive Relief

RMP audits at 21 facilities

Various corrective actions related to its ammonia program

$3.75 million in facility upgrades

$1.3 million for site clean-up related to a removal action caused by a fire

Implement defined compliance program including monthly reports to EPA

Conduct RMP audit and take corrective actions based on that audit

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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

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