Beveridge & Diamond
 

RMP Inspections Likely to Increase and Become More Targeted Due to OIG Critique

Beveridge & Diamond, P.C. - Client Alert, March 26, 2009

Companies with facilities that are subject to the Environmental Protection Agency (“EPA”) Risk Management Program (“RMP”) requirements under Section 112(r) of the Clean Air Act should expect to see heightened enforcement activity by EPA and states later this year as a result of a recent critique of the RMP inspection program by EPA’s own Office of Inspector General.  Greater numbers of inspections are likely, and they are increasingly likely to be targeted at:

  • Non-filers of risk management plans;
  • Initial filers of risk management plans that did not update those plans after five years;
  • Filers of risk management plans that do not report on RMP compliance in their Title V reports; and
  • High-risk facilities.

Companies with facilities likely to be targeted may want to review their compliance status before the heightened inspection activity gets underway.

I.    Background

Congress enacted Section 112(r) of the Clean Air Act in 1990 to prevent releases of airborne chemicals that could harm the public and to mitigate the consequences of such releases to the surrounding community.[1]  In 1996, EPA issued the RMP rule, creating a comprehensive program to meet the requirements of Section 112(r).[2]  Under the RMP, any stationary source that has more than the threshold quantity of any of 140 regulated substances in a process must implement a risk management program and submit a risk management plan to EPA.  The risk management plan must describe and document the facility’s hazard assessment and its prevention and response programs.  Facilities must update and resubmit these plans at least every 5 years and when there are changes to the regulated substances or processes at the facility.  EPA is primarily responsible for oversight of the RMP, as only 9 states and 5 local agencies have accepted delegation of the RMP.

On February 10, 2009, the EPA Office of the Inspector General (“OIG”) issued a report evaluating EPA’s implementation and oversight of the RMP.[3]  The OIG found that there were large numbers of facilities that are subject to the RMP requirements and have not filed or re-filed a risk management plan with EPA; that some permitting agencies did not correctly incorporate RMP requirements into Title V operating permits; and that many high-risk facilities have not been audited or inspected to ensure compliance with the RMP.  Based on these findings, the OIG recommended that EPA take measures to identify facilities that are subject to the RMP; ensure that covered facilities comply with the RMP’s requirements and re-file risk management plans as necessary; and create a more rigorous inspection program targeting high-risk facilities.  As a result of the OIG report and recommendations, EPA has indicated that it will make changes to improve its implementation and enforcement of the RMP. 

II.    The OIG’s Findings

The OIG evaluated EPA’s implementation and oversight of the RMP program by:  (1) collecting and analyzing data about facilities that may be subject to the RMP from the RMP National Database, EPA regions and delegated states and local agencies, and the Toxics Release Inventory; and (2) interviewing staff and managers from EPA headquarters, EPA regions, and 4 states about their implementation of the RMP.  The OIG’s first finding was that EPA has not provided regions and states with guidance or procedures to identify facilities that are subject to the RMP.  As a result, several facilities that are subject to the RMP have not implemented risk management programs or submitted a risk management plan to EPA.  In the OIG’s limited review of existing chemical data for 5 states, it identified 48 facilities in 3 states that stored large amounts of covered chemicals on-site but had not filed risk management plans. 

The OIG’s second finding was that EPA has not provided regions and states with timelines for assessing the status of facilities that have not re-filed their risk management plans after 5 years.[4]  As a result, as of March 2008, there were 664 facilities covered by the RMP that had failed to re-file their risk management plans within the RMP’s 5-year deadline. 

The OIG’s third finding was that permitting agencies have failed to properly address RMP requirements during the Title V operating permit process.  Approximately 16 percent (2,222) of the risk management plans filed with EPA were for Title V facilities.  Although Title V facilities are a small part of the overall universe of RMP facilities, over half of the facilities identified by EPA’s Office of Emergency Management (“OEM”) as high-risk facilities are subject to Title V.  Although 40 C.F.R. § 68.215(a) requires Title V permits to include the RMP requirements as a condition of a permit when a facility is subject to the RMP, permits in only 3 of the 8 states reviewed by the OIG complied with this requirement.  The permits in the other 5 states only contained conditional language, providing that the facility was required to comply with the RMP “when and if” the requirements of the RMP were applicable.  Additionally, although 40 C.F.R. § 68.215(e) requires permitting agencies to verify that a facility has submitted a risk management plan to EPA if the facility is subject to the RMP, the permitting agencies in the 8 states reviewed by OIG did not independently verify whether covered facilities had submitted a risk management plan.  The OIG emphasized that Title V permitting can be used as a management control for identifying facilities subject to the RMP and ensuring their compliance, and that the permitting agencies’ failure to properly implement RMP requirements into Title V permits eliminated this control.

The OIG’s fourth finding was that EPA and the delegated state and local agencies have failed to audit or inspect many high-risk facilities.  Specifically, the OIG reported that EPA had not inspected or audited over half (296 of 493) of the high-risk facilities identified by OEM.  Since most states have not accepted delegation of the program, EPA is responsible for ensuring compliance for over 84 percent of facilities nationwide.  Of the 296 uninspected high-risk facilities managed by EPA, 151 could each impact 100,000 people or more in a worst-case accident.  Another 10 such facilities are managed by states.  The report noted that accident data suggest that uninspected high-risk facilities are more than five times as likely to have an accident than uninspected lower-risk facilities.  The OIG also found that EPA has only conducted audits or inspections at 39% of the facilities that have reported accidents. 

According to the OIG’s report, there are three factors that have led to this low inspection rate:  (1) the fact that few state or local agencies have accepted delegation of the RMP; (2) the low number of EPA inspectors that are available to conduct audits and inspections; and (3) limited training.

III.    The OIG’s Recommendations

The OIG report contains several recommendations to address the shortcomings in EPA’s implementation and oversight of the RMP.  First, the OIG recommended that EPA strengthen controls to identify facilities that have not filed risk management plans by:

(1) Revising Headquarters guidance to the regions and the states to specify how often they should conduct reviews to identify covered facilities that have not filed risk management plans;

(2)  Issuing new Headquarters guidance to regions and states that incorporates the Toxics Release Inventory methodology and other effective methodologies used by regions  to identify facilities that are subject to the RMP and have not filed risk management plans;   

(3)  Updating the RMP National Database to de-activate closed facilities; and

(4)  Ascertaining whether the facilities identified through EPA’s Toxics Release Inventory are subject to RMP requirements, and if so, taking appropriate action to ensure that those facilities comply with the RMP requirements.

Second, the OIG recommended that EPA establish milestones for reviewing whether facilities have re-filed their risk management plans as required by the RMP.

Third, the OIG recommended that EPA instruct Title V permitting agencies on the proper procedures for identifying facilities that are subject to the RMP and including RMP requirements in their Title V operating permits.  The OIG emphasized that any guidance to the permitting agencies should include instructions on how to verify whether facilities have submitted risk management plans and how to monitor implementation of the RMP requirements.

Fourth, the OIG recommended that EPA establish a more rigorous risk-based approach to inspecting and auditing facilities.  The OIG recommended that the Office of Enforcement and Compliance Assurance (“OECA”):

(1)  Develop and implement a risk-based inspection strategy that incorporates regional   input on high-risk facilities to prioritize facilities for inspection based on risk and other priority measures;

(2)  Revise the performance expectation for the RMP to incorporate the inspection of the high-risk facilities; and

(3)  Track which high-risk facilities have been inspected and develop procedures to provide expeditious inspection coverage for those high-risk facilities that have not yet been inspected.

The OIG also recommended that the Office of Solid Waste and Emergency Response (“OSWER”) provide RMP training courses for RMP inspectors and explore strategies to provide additional resources to regions with high facility-to-inspector ratios.

IV.       EPA’s Response

EPA has concurred with each of the OIG’s recommendations and plans to take a series of actions to improve its implementation and oversight of the RMP.  First, EPA plans to provide guidance to the regions by December 2009 that will specify when the regions should conduct reviews to detect covered facilities, what methodologies they should use for those reviews, and a timeline for reviewing and removing inactive facilities from the RMP National Database. 

Second, several EPA regions have started to review the facilities that the OIG identified in its Toxics Release Inventory searches to determine if they are subject to the RMP requirements and need to submit a risk management plan.  EPA anticipates that this review will be completed by September 2009. 

Third, EPA plans to remind regional Air Directors about EPA’s 1999 Title V permitting guidance, which instructs permitting agencies about their responsibilities with respect to the RMP.  EPA will also instruct the regional Air Directors to inform the state Title V program managers about the guidance and their RMP responsibilities.

Fourth, EPA plans to take several actions to establish a more rigorous risk-based approach to inspecting and auditing facilities.  OECA is working with OSWER to develop a more rigorous definition of a high-risk facility, is developing a mechanism to track which high-risk facilities have not been inspected, and is revising the performance expectation for the RMP to incorporate the inspection of high-risk facilities.  Additionally, OSWER has scheduled additional RMP training courses for inspectors and is beginning to explore options for providing additional resources to EPA regions with large numbers of high-risk facilities.

V.        Conclusion

As a result of the OIG’s report, it is likely that EPA’s emphasis in implementing the RMP will turn to identifying facilities that are subject to the RMP and have not filed or re-filed risk management plans, and conducting inspections at facilities that it deems to be high-risk.  Both EPA and state inspections are likely to increase in number and will tend to be focused on those areas.  Companies that are subject to the RMP requirements should be prepared for when state or federal RMP inspectors appear at their plant gate.


[1] 42 U.S.C. § 7412(r), as added by Section 301 of the Clean Air Act Amendments of 1990.

[2] 40 C.F.R. Part 68.

[3] U.S. Environmental Protection Agency Office of Inspector General, Evaluation Report: EPA Can Improve Implementation of the Risk Management Program for Airborne Chemical Releases, Report No. 09-P-0092 (Feb. 10, 2009), available at www.epa.gov/oig/reports/2009/20090210-09-P-0092.pdf.

[4] See 40 C.F.R. § 68.190.