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PT Notes

Emergency Response Preparedness Requirements

PT Notes is a series of topical technical notes on process safety provided periodically by Primatech for your benefit. Please feel free to provide feedback.

This PT Note describes proposed amendments to EPA's Risk Management Program regulation relating to emergency response preparedness requirements.

EPA has often found during facility inspections that facilities either are not included in the community emergency response plan or have not properly coordinated response actions with local authorities. State and local response officials have echoed this concern. This problem occurs with both responding and non-responding facilities, but EPA finds it particularly troublesome for non-responding facilities, because if the facility itself does not maintain the capability to respond to emergencies, and local authorities are not able to respond, then a proper response to an accidental release at the facility may not occur or may be significantly delayed. Also, when local responders are unfamiliar with the hazards of the facility, they may not be prepared to safely respond. Furthermore, poor coordination between chemical facilities and local emergency responders has been identified as a factor contributing to the severity of chemical accidents.

EPA believes that exercising an emergency response plan is critical to ensure that response personnel understand their roles, local emergency responders are familiar with the hazards at the facility, and the emergency response plan is appropriate and up-to-date. It ensures that personnel are properly trained and lessons learned from exercises can be used to identify future training needs.

EPA believes that poor emergency response procedures during some recent accidents have highlighted the need for facilities to conduct periodic emergency response exercises and that failure to conduct emergency exercises involving local authorities may have resulted in injuries and fatalities to local responders.

The proposed amendments address:

  • Emergency response program coordination with local responders.
  • Facility emergency response exercises

These are described below.

Emergency Response Program Coordination With Local Responders

The current RMP rule and RMP Guidance indicate that from its inception, the RMP rule has required that owners and operators of regulated sources must either meet the full emergency response program requirements of the rule or ensure that local responders are capable of responding to releases at the source. In spite of this fact, the history of poor emergency response coordination during accidental releases, EPA's findings during compliance inspections, and recent feedback provided to EPA's RFI and during Executive Order 13650 listening sessions indicate that many regulated sources have not provided for an adequate emergency response.

EPA is proposing to amend the rule requirements to clarify the obligations of the owner or operator of the stationary source to coordinate emergency response with local authorities. In order to provide clarity, EPA is proposing to reorganize subpart E of the rule, Emergency Response.

EPA is proposing to reorganize § 68.90 to specifically describe the applicability of the emergency response program requirements.

Proposed paragraph (a) describes the applicability provisions for non-responding facilities. The owner or operator of a stationary source need not comply with the emergency response program requirements in § 68.95 provided that:

  • The coordination activities required under the proposed § 68.93 indicate that adequate local public emergency response capabilities are available to appropriately respond to any accidental release of the regulated substances at the stationary source.
  • Appropriate mechanisms are in place to notify emergency responders when there is a need for a response, and
  • The Local Emergency Planning Committee (LEPC) or equivalent local response authorities have not requested in writing that the owner or operator develop an emergency response program for the stationary source in accordance with § 68.95.

Proposed paragraph (b) describes the applicability provisions for responding facilities. The owner or operator of a stationary source would be required to comply with the emergency response program requirements of § 68.95 when:

  • The outcome of the response coordination activities with local response authorities required under § 68.93 demonstrates that local public emergency response capabilities are not adequate to appropriately respond to an accidental release of the regulated substances at the stationary source, or
  • The LEPC, local fire department, or other local emergency response officials having jurisdiction requests in writing that the owner or operator of the stationary source comply with the requirements of § 68.95.

EPA is proposing to add § 68.93 to clarify emergency response coordination activities. Section 68.93 would require the owner or operator of a stationary source with a Program 2 or 3 process to coordinate with local response authorities to ensure that appropriate resources and capabilities are in place to respond to an accidental release of a regulated substance. As part of the coordination, the owner or operator and the local response authorities would work together to determine who will respond if an incident occurs, and what would be an appropriate response.

Paragraph (a) would require coordination to occur at least annually, and more frequently if necessary, to address changes:

  • At the source.
  • In the source's emergency action plan.
  • In local authorities' response resources and capabilities, or
  • In the local community emergency response plan.

Paragraph (b) would require the owner or operator to document coordination with local authorities, including:

  • The names of individuals involved and their contact information (phone number, email address, and organizational affiliations).
  • Dates of coordination activities, and
  • The nature of coordination activities.

Paragraph (c) specifies that the owner or operator shall coordinate potential response actions as follows:

  • For stationary sources with any regulated toxic substance held in a process above the threshold quantity, the owner or operator shall coordinate potential response actions with the LEPC or equivalent and ensure that the stationary source is included in the community emergency response plan developed under the Emergency Planning & Community Right-to-Know Act (EPCRA, 42 U.S.C. 11003), and/or
  • For stationary sources with only regulated flammable substances held in a process above the threshold quantity, the owner or operator shall coordinate response actions with the local fire department.

EPA believes that it is appropriate to provide a mechanism for the local emergency response officials to request that the owner or operator of the stationary source comply with the emergency response program requirements of § 68.95 because it is the presence of the source and its attendant hazards that create a risk of accidental releases to the surrounding community. Therefore, in the event that the outcome of the coordination activities with local response authorities indicates that local public emergency response capabilities are not adequate, the ultimate burden of providing for an appropriate response to releases of regulated substances from the source should rest with the owner or operator. This philosophy is consistent with the general duty clause of CAA section 112(r)(1), which among other things requires the owner or operator to minimize the consequences of accidental releases that do occur.

If, as a result of the annual coordination, the facility owner or operator must develop an emergency response program in accordance with § 68.95, EPA believes the owner or operator should develop the program as soon as reasonably practicable.

EPA also is proposing to revise § 68.95 to ensure that notification procedures include notifications to Federal, Tribal, and state agencies and to require that emergency response plans be updated at least annually. Specifically, EPA is revising § 68.95(a)(1)(i) to add a reference to Federal and state agencies and § 68.95(a)(4) to require that the owner or operator review and update the program annually or more frequently if necessary, to incorporate recommendations and lessons learned from emergency response exercises and/or incident investigations, or other available information. Changes that occur in emergency notification systems, local responder organizations, stationary source hazards, or other critical emergency response planning information should trigger reviews and updates. EPA also is proposing to revise § 68.95(c) to replace local emergency planning committee with the acronym LEPC.

Additionally, EPA is proposing to revise § 68.3 to add LEPC for local emergency planning committee. The term is used throughout the rule and means the LEPC as established under 42 U.S.C. 11001.

Lastly, EPA is proposing to revise § 68.12 (General requirements) to be consistent with these proposed coordination requirements. EPA is proposing revisions to Program 2 requirements under § 68.12(c) in which EPA would renumber paragraph § 68.12(c)(4) and (c)(5) as § 68.12(c)(5) and (c)(6). New paragraph § 68.12(c)(4) would specify the owner or operator's requirements to coordinate response actions with local emergency planning and response agencies as provided in § 68.93.

EPA is proposing similar revisions to Program 3 requirements under § 68.12(d). EPA would renumber paragraph § 68.12(d)(4) and (d)(5) as § 68.12(d)(5) and (d)(6). New paragraph § 68.12(d)(4) would specify the owner or operator's requirements to coordinate response actions with local emergency planning and response agencies as provided in § 68.93.

EPA believes that these proposed amendments clarify existing obligations and prevent situations where neither regulated stationary sources nor local authorities are prepared to appropriately respond to accidental releases at the source. EPA recognizes that an appropriate response - even for responding facilities - may sometimes involve evacuation of facility employees, evacuation or sheltering of nearby residents, and implementation of other defensive measures to prevent harm to workers, responders, and the public. However, EPA believes that planning for such situations should occur in advance, so that either the source or local responders are prepared to implement response measures that are appropriate to the hazards of the stationary source.

If local public responders are not capable of responding to accidental releases at a stationary source, the owner or operator can continue to satisfy the applicable requirements of subpart E of the RMP rule in a number of different ways beyond training and equipping the source's own employees to respond to releases. For example, EPA has observed situations where stationary source owners or operators supplement their on-site response capability using response contractors, or via mutual aid agreements with other nearby sources. In the RMP Guidance, EPA explained that this may be the most appropriate course of action to comply with the emergency response requirements of subpart E, particularly for small sources with few employees.

EPA recognizes that, in some cases, particularly for retailers and other small operations with few employees, it may not be appropriate for employees to conduct response operations for releases of regulated substances. For example, it would be inappropriate, and probably unsafe, for an ammonia retailer with only one full-time employee to expect that a tank fire could be handled without the help of the local fire department or other emergency responder. EPA does not intend to force such facilities to develop emergency response capabilities. At the same time, owners or operators are responsible for ensuring effective emergency response to any releases at their facilities. If local public responders are not capable of providing such response, owners or operators must take steps to ensure that effective response is available, for example, by hiring response contractors. Such arrangements would continue to be acceptable to the Agency as a means to meet a facility's emergency response program obligations.

Alternatively, stationary source owners or operators can work with local emergency response officials to identify gaps in local responder capabilities, and assist local authorities in supplementing those capabilities, as appropriate, by providing the equipment or training needed to allow local public responders to prepare for and carry out an appropriate response to accidental releases at the source. Close and ongoing coordination between stationary source owners or operators and local responders will allow such capability gaps to be quickly identified and corrected and appropriate response plans to be developed. Coordination will also assist local responders in complying with other Federal, state, and local emergency preparedness, planning, and response requirements, such as planning requirements under EPCRA, training requirements under the OSHA Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120), and other applicable requirements.

EPA has noted that some LEPCs are not active or do not have sufficient resources to fully implement EPCRA requirements. Therefore, the question arises of how to comply with coordination requirements when facility owners or operators make good faith efforts to coordinate with local emergency response officials who do not respond to coordination attempts. EPA recommends that these coordination attempts be documented and maintained at the facility. However, EPA believes that the owner or operator must develop an emergency response program in accordance with § 68.95 if the LEPC is inactive and has not developed a community emergency response plan or has not included the facility in the plan (for toxic substances), or if the owner or operator is unable to coordinate response actions with the local fire department (for flammable substances).

EPA is seeking comments on this approach. The Agency has posed these questions:

  • Will the proposed amendments contribute to improvements in emergency response planning and coordination?
  • Are there additional practices that EPA should consider that significantly improve planning and coordination?
  • Should EPA further clarify what is necessary for RMP facility owners or operators to adequately coordinate their emergency response program with local authorities?
  • Should coordination activities and emergency plan updates be required annually, or is some other frequency appropriate?
  • How should disagreements between local authorities and the source owner or operator concerning which party should provide for an emergency response to releases of regulated substances at the source be resolved?
  • When an LEPC makes a written request for the owner or operator to comply with the emergency response program requirements of § 68.95, should the LEPC be required to provide a rationale for the request that meets certain criteria, to ensure that the request is reasonable? If so, what criteria should be established?

Alternative Options

EPA considered an alternative that would require owners and operators of all stationary sources with Program 2 or Program 3 processes to comply with the full emergency response program requirements of § 68.95. Under this option, RMP facilities would still be required to perform the annual local coordination and to document activities described previously. However, it would eliminate the flexibility of the current rule and require all Program 2 and Program 3 facilities to be “responding” facilities. EPA did not propose this approach because it does not consider the existing capabilities of local responders and shifts to the regulated stationary sources the burden associated with developing and maintaining an appropriate and effective emergency response capability from local responders in communities that may have adequate capabilities. Additionally, EPA believes that this approach would place an unnecessary burden on small facilities.

EPA is seeking comments on this alternative approach and whether there are any other alternative options that EPA should consider prior to issuing a final action.

Facility Emergency Response Exercises

EPA's experience with implementing the RMP rule, along with process safety incidents that have occurred, indicate that many regulated sources do not regularly conduct emergency exercises that involve local response authorities. Therefore, EPA believes that adding a provision for response exercises to the regulation will likely reduce the severity of some accidents that do occur.

Proposed Exercise Program Requirements

In order to further improve coordination with community responders and ensure that both facility personnel and local responders have practice responding to accidental releases at RMP facilities, EPA is proposing to require most regulated facilities to perform exercises as an element of the emergency response program identified under subpart E. Proposed § 68.96 would require both responding and non-responding RMP facilities with any Program 2 or 3 process to perform emergency exercises.

Notification Exercises

EPA is proposing a new paragraph, § 68.96(a), to require facilities with any Program 2 or Program 3 process to perform annually an exercise of the source's emergency response notification system. This exercise would include contacting the Federal, Tribal, state, and local public emergency response authorities, and other external responders that would respond to accidental releases at the source. The purpose of these notifications is to ensure facility personnel understand how to initiate the notification system and to test the emergency contact information to ensure it is up-to-date.

As part of the notification exercise, the individual making the notifications should clearly indicate that the call is part of an exercise to test the notification system. The owner or operator would be required to document these notification exercises and maintain a written record of each exercise conducted for a period of five years. The owner or operator would also be required to provide copies of the report to local response officials, and to make the report available to the public in accordance with §§ 68.205 and 68.210.

As non-responding facilities will rely on local authorities to respond to accidental releases at the source, EPA believes that the proposed facility notification exercises will be an important supplement to the existing requirement for local emergency plan exercises under EPCRA section 303(c)(9), which requires local emergency plans to include methods and schedules for exercising the plan. Responding facilities will be required to meet additional field and tabletop exercise requirements, which in many cases will also involve the participation of local authorities. Notifications to Federal, state, and local officials conducted as part of field or tabletop exercises may also serve to meet the annual notification exercise requirements provided that the owner or operator documents these notification exercises.

EPA is also proposing to modify § 68.95(a)(1)(i) to clarify that the emergency response program should include procedures for performing appropriate notifications to Federal and state emergency response agencies, as well as the public and local emergency response agencies, about accidental releases. This could include, for example, any required notifications to the National Response Center, as required by section 103(a) of CERCLA, and/or notifications to the State Emergency Response Commission (SERC) as required by section 304 of EPCRA.

Responding Facility Field and Tabletop Exercises

EPA is proposing a new paragraph, § 68.96(b), to require responding facilities to develop and implement an emergency response exercise program that uses the emergency response plan required under § 68.95(a)(1). EPA is proposing to require two types of exercises: field exercises and tabletop exercises. The owner or operator would be required to coordinate with local public emergency response officials in planning and conducting exercises, and invite local officials to participate in exercises. However, participation in an exercise by local responders is not required for a facility to comply with the exercise provisions.

Field exercises involve the actual performance of emergency response functions during a simulated accidental release event. Field exercises involve mobilization of firefighters and/or hazardous materials response teams; activation of an incident command structure; deployment of response equipment; evacuation or sheltering of facility personnel as appropriate; and notification and mobilization of law enforcement, emergency medical, and other response personnel as determined by the scenario and the source's emergency response plan.

Section 68.96(b)(1) would require the owner or operator to conduct an emergency response field exercise involving the simulated accidental release of a regulated substance at least once every five years and within one year of any accidental release meeting the five-year accident history criteria. If the facility is required to conduct a field exercise as a result of an RMP reportable accident, then this would effectively reset the timeframe for when the next five-year field exercise is due.

EPA is proposing that the scope of the field exercises would include tests of:

  • Procedures to notify the public and the appropriate Federal, state, and local emergency response agencies about an accidental release.
  • Procedures and measures for emergency response actions after an accidental release of a regulated substance including evacuations and medical treatment.
  • Communications systems.
  • Mobilization of facility emergency response personnel, including contractors, as appropriate.
  • Coordination with local emergency responders.
  • Equipment deployment, and
  • Other actions identified in the source's emergency response plan, as appropriate.

Tabletop exercises are discussion-based exercises without the actual deployment of response equipment. During tabletop exercises, responders typically assemble in a meeting location and simulate procedural and communications steps for response to a simulated accidental release, as determined by the scenario and the source's emergency response plan.

EPA is proposing in § 68.96(b)(2) to require the owner or operator to conduct annually an emergency tabletop exercise involving the simulated accidental release of a regulated substance, except during years when field exercises are conducted. The exercise would involve facility emergency response personnel, response contractors, and local emergency response and planning officials, as appropriate.

The scope of a tabletop exercise would include tests of:

  • Procedures to notify the public and the appropriate Federal, state, and local emergency response agencies about an accidental release.
  • Procedures and measures for emergency response after an accidental release of a regulated substance including evacuations and medical treatment.
  • Identification of facility emergency response personnel and/or contractors and their responsibilities.
  • Coordination with local emergency responders.
  • Procedures for equipment deployment.
  • Any other action identified in the source's emergency response plan, as appropriate.

Exercise Reports and Program Updates

EPA is proposing in § 68.96(b)(3) to require the owner or operator to evaluate each exercise and prepare a written report within 90 days of the exercise. The report would include:

  • A description of the exercise scenario.
  • Names and organizations of each participant.
  • An evaluation of the results of the exercise including lessons learned.
  • Recommendations for improvement or revisions to the emergency response exercise program and emergency response program, and
  • A schedule to promptly address and resolve recommendations.

The report would also include an evaluation of the adequacy of coordination with local emergency response authorities, and other external responders, as appropriate.

Section 68.96(b)(3) would also require the owner or operator to update the emergency exercise program and emergency response program at least annually, and more frequently if necessary to incorporate recommendations and lessons learned from emergency response exercises, incident investigations, or other available information.

The owner or operator would also be required to provide schedules of exercises and copies of exercise reports to local response officials, and to make exercise reports available to the public in accordance with §§ 68.205 and 68.210. Exercise reports would be maintained for five years.

Updates to § 68.12 (General Requirements)

EPA is proposing to revise § 68.12 (General Requirements) to be consistent with these proposed exercise requirements. EPA is proposing to revise the Program 2 and Program 3 requirements under § 68.12 by renumbering paragraph § 68.12(c)(4) as § 68.12(c)(5) (for Program 2) and § 68.12(d)(4) as § 68.12(d)(5) (for Program 3), adding a reference to exercise requirements, and correcting citations to subpart E.

EPA is aware that while not all facilities regulated under the RMP rule conduct emergency exercises, many do, and the Agency believes that exercises conducted in accordance with other Federal, state, or local requirements, or exercises conducted in conjunction with a facility's trade association membership or code of practice, etc., may be used to satisfy the new requirements to the extent those exercises address the specific regulatory provisions contained herein.

EPA is seeking comments on this approach. The Agency has posed these questions:

  • Are there additional exercise provisions that EPA should consider to improve the ability of RMP facility personnel and local authorities to respond to accidental releases?
  • Are annual exercises sufficient or should EPA consider alternative frequencies?
  • What information regarding exercises would be most helpful to the public while maintaining a balance for security?
  • How best to address emergency postponement and rescheduling of exercises.

EPA also is seeking comments on whether to eliminate the requirement for tabletop and field exercises.

Alternative Options

EPA considered two alternative approaches to requiring emergency exercises. The first alternative approach would also require responding and non-responding facilities to conduct an annual emergency notification system exercise. However, under this approach responding facilities would additionally be required to conduct only annual tabletop exercises; emergency field exercises would not be required. This alternative approach would be a lower cost option for responding facilities, as field deployment of the source's equipment and personnel would not be required. However, it may also result in less realistic and less effective emergency exercises.

The second alternative approach considered by EPA would contain the same provisions for notification exercises as in the proposed approach, but would require responding facilities to conduct field exercises annually, instead of tabletop exercises. This approach would be similar to the New Jersey Toxic Catastrophe Prevention Act (TCPA) emergency exercise provisions, and provide for a comprehensive test of all systems under the emergency exercise program for responding facilities. However, the costs of this approach would be significantly higher than the proposed approach.

EPA is seeking comments on these alternative approaches and whether there are any other alternative options that EPA should consider prior to issuing a final action.

Further details can be found at:

https://www.regulations.gov/#!documentDetail;D=EPA-HQ-OEM-2015-0725-0001

Comments on the proposed amendments must be submitted on or before May 13, 2016. Comments should be identified by docket EPA-HQ-OEM-2015-0725 and submitted through to the Federal eRulemaking Portal: http://www.regulations.gov.

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