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Why Facilities Should Be Proactive Rather Than Reactive – Amendments to the Risk Management Program Rule

Posted: February 26th, 2016

Author: All4 Staff 

UPDATE (2/26/2016): As a follow-up to my blog below regarding upcoming changes to the Risk Management Program, U.S. EPA has released a prepublication rule. EPA will hold a public hearing in Washington, D.C. on March 29, 2016. Publication in the Federal Register is expected in the next month or so.

ALL4 is reviewing the proposed rule and is available to answer questions that you have.

ORIGINAL (2/19/2016): The U.S. Environmental Protection Agency (U.S. EPA) is scheduled to propose revisions to 40 CFR Part 68 (the Risk Management Program rule) in March 2016. The proposed revisions are part of an effort to strengthen the safety and security of industrial facilities under President Obama’s Executive Order (EO) 13650, which calls for improving coordination and communication between levels of government, and revising policies, rules and standards. The proposed revisions largely are intended to expand existing requirements within 40 CFR Part 68, and are categorized as follows (please refer to a U.S. EPA presentation for specifics):

  • Third-Party Audits
  • Incident Root Cause Analysis
  • Safer Alternatives Analysis
  • Coordinating Emergency Response Program Requirements with Local Responders
  • Emergency Response Exercises
  • Information Sharing

A summary of the proposed revisions is provided below.

Third-Party Audits

Compliance audit requirements currently exist within 40 CFR Part 68 for Program 2 and Program 3 facilities. However, the proposed revisions to the compliance audit requirements specify that a third-party auditor with specific credentials must perform an audit following a reportable incident as defined in 40 CFR Part 68. U.S. EPA states that “[i]t is not expected that a lot of facilities will need to hire an independent auditor since the requirement only applies after a reportable accident occurs.” U.S. EPA stated that the basis for a third-party audit requirement includes research that “shows that without sufficient safeguards to ensure auditor independence, (self) auditors are more likely to provide lenient or biased audit reports that can fail to accurately identify problems and violations by the regulated entity.”

Incident Root Cause Analysis

Owners and operators of Program 2 and Program 3 facilities must conduct incident investigations following an incident that resulted in or could have resulted in a catastrophic release (a “near miss”). U.S. EPA believes it is necessary to strengthen the current incident investigation requirements to identify the underlying reasons for a chemical accident which would lead to preventing future accidents and ensuring compliance. Under the proposed revisions, an owner or operator must identify the fundamental reasons why an incident occurred and the correctable failures in management systems (“root cause analysis”). U.S. EPA proposes to define “root cause” as a fundamental, underlying, system-related reason why an incident occurred that identifies a correctable failure(s) in management systems. The proposed revisions also include the requirement to complete a report within 12 months of the incident.

Safer Alternatives Analysis

Program 3 facilities must develop a process hazard analysis (PHA) to identify, evaluate, and control process hazards involving regulated substances. The proposed revisions apply to the following Program 3 facilities: paper manufacturing, petroleum and coal products manufacturing, and chemical manufacturing. The revisions would require these facilities to consider inherently safer technology or design, passive measures, active measures, and procedural measures as part of its PHA.

Coordinating Emergency Response Program Requirements with Local Responders

Program 2 and Program 3 facilities must develop and implement an emergency response program. The proposed revisions would require affected facilities to coordinate with local responders on an annual basis, and specifically discuss the following items:

  • Determine resources needed to appropriately respond to regulated substance releases at the facility
  • Determine resources available from the facility and local responders
  • Identify capability gaps and develop plans to address the gaps
  • Decide whether facility or local responders will respond to releases of regulated substances
  • Assign response action roles and responsibilities

Emergency Response Exercises

Currently there is no requirement for affected facilities to exercise their emergency response plans. The proposed revisions would require Program 2 and Program 3 facilities to test their emergency response program through notification, tabletop, and field exercises. Notification exercises would be required on an annual basis, while responding facilities would be required to conduct a field exercise every five (5) years and a tabletop exercise annually.

Information Sharing

40 CFR Part 68 data are made available to the public and local responders. The proposed revisions would add new disclosure elements to all facilities to adequately explain the contents of a facility’s program (without revealing confidential business information or trade secret information). Public meetings would be required every five (5) years or within 30 days of a reportable incident.

This is a lot of information to absorb in a single blog. And keep in mind these are proposed revisions that are subject to change. We will closely follow the status of the revisions and stay tuned for an upcoming blog when the proposed regulations are published. Until then, start thinking about how the current status of your program and how an external resource like ALL4 can be of assistance.


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