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RMP Inspection Strategy Impacted in EPA Region 8

Beveridge & Diamond, P.C. - Client Alert, April 6, 2009

Following the February 2009 report by the Environmental Protection Agency (“EPA”) Office of Inspector General (“OIG”) evaluating nationwide implementation and oversight of EPA’s Risk Management Program for Airborne Chemical Releases (“RMP”), OIG has issued another report, this one focusing in particular on RMP inspection activity in EPA Region 8.  As a result, RMP-covered facilities in Region 8 are likely to see an increase in RMP inspections, particularly of high-risk facilities.  Region 8 covers the states of Colorado, Montana, North Dakota, South Dakota, Utah, and Wyoming, and 27 sovereign tribal nations.  In addition, this second OIG report is likely to prompt other regions into action as well.

As discussed in our previous client alert on the February 2009 OIG report, RMP Inspections Likely to Increase and Become More Targeted Due to OIG Critique, that report identified several shortcomings in the nationwide implementation of the RMP and issued several recommendations that will result in greater numbers of inspections at facilities that have failed to file or re-file risk management plans, facilities that have failed to report on RMP compliance in their Title V reports, and high-risk facilities.[1]

Due to specific concerns with EPA Region 8’s implementation of the RMP, on March 30, 2009, the OIG issued a separate report evaluating Region 8’s coordination and management of the RMP.[2]  In response to the OIG’s critique, Region 8 has developed an RMP implementation strategy that is targeted at increasing outreach to industries that are subject to the RMP and increasing inspection activity at high-risk facilities.  Companies with facilities in Region 8 may want to review their compliance status before heightened inspection activity gets underway.

I.    The OIG’s Region 8 Findings

During the nationwide evaluation of the RMP, the OIG interviewed Region 8 staff; reviewed Region 8 program guidance, procedures, budget reports, and RMP implementation materials; and obtained lists of RMP audits and inspections in Region 8.  After comparing the review of Region 8 with that of other EPA regions, the OIG was concerned that Region 8 was not managing the RMP efficiently or effectively.

The OIG’s first finding was that the two Region 8 offices that are responsible for implementing the RMP have not effectively coordinated their efforts.  In Region 8, there are two offices that are responsible for the implementation of the RMP: the Office of Ecosystems Protection and Remediation (“EPR”) and the Office of Enforcement, Compliance, and Environmental Justice (“ECEJ”).  Although the Region has a Memorandum of Understanding and an Implementation Protocol that delineate the offices’ roles with regard to RMP implementation, the offices have failed to follow the guidance in these documents and have planned their RMP activities independent of each other.  As a result, EPR and ECEJ have duplicated their oversight efforts by auditing and inspecting the same facilities.

The OIG’s second finding was that the majority of high-risk facilities in Region 8 have not been audited or inspected.  Out of 61 high-risk facilities that have been identified in Region 8, only 23 facilities have been inspected.  The majority of audits and inspections took place at low-risk facilities, even though the never-inspected high-risk facilities are more than 5 times as likely to have an accident  and could potentially impact over one million people during a worst-case scenario chemical release.

The OIG’s third finding was that Region 8 has failed to resolve noncompliance at facilities.  Out of 9 facilities that EPR audited and referred to ECEJ for enforcement action, only 2 facilities have come into compliance.  The compliance status at the other 7 facilities has remained unresolved for over 2 years.  In that time, the facilities have not been inspected by Region 8 and have not been subject to any enforcement actions.

The OIG’s fourth finding was that Region 8 has the lowest enforcement rate out of all EPA Regions.  Region 8 has taken fewer enforcement actions than any other region and also has the lowest number of enforcement actions in comparison to the number of facilities subject to the RMP.  Since FY 2001, and as of January 2008, Region 8 had only taken 12 enforcement actions among the 890 facilities that are subject to the RMP.

II.    The OIG’s Recommendations

The OIG report contains two recommendations to address Region 8’s shortcomings in the implementation of the RMP.  First, the OIG recommended that Region 8 develop a strategy for administering the RMP that defines program goals, performance measures, organizational responsibilities, documentation requirements, and required coordination between offices.  Second, the OIG recommended that Region 8 develop an oversight process to evaluate its own success in implementing the strategy.

III.    Region 8’s Response

Region 8 agreed with the OIG’s findings and has already completed the two actions that the OIG recommended.  Region 8 has developed an implementation strategy that defines EPR’s and ECEJ’s joint program goals, performance measures, organizational responsibilities, coordination responsibilities, resource allocation, and oversight.  Specifically, the implementation strategy requires EPR to conduct RMP outreach activities and requires ECEJ to conduct the majority of inspections and enforcement initiatives.  The implementation strategy provides outreach and inspection strategies for the offices to follow and places an emphasis on conducting outreach and inspections at high-risk facilities.  In addition, the implementation strategy includes an oversight process that requires EPR to report annually on all RMP outreach and training activities and requires ECEJ to conduct a review all inspection files that includes an accounting of the high-risk facilities inspected and an evaluation of the findings.

IV.    Conclusion

As a result of the OIG’s critique singling out Region 8 for poor coordination and management of the RMP, it is likely that Region 8 will have a renewed focus in implementing the RMP.  Region 8 has already developed an RMP implementation strategy that is targeted at increasing outreach to industries that are subject to the RMP and increasing inspection activity at high-risk facilities.  This action by OIG is likely to influence other EPA regional offices as well into taking a hard look at their RMP inspection numbers and targeting strategy.


[1] 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.

[2] U.S. Environmental Protection Agency Office of Inspector General, Evaluation Report: EPA Region 8 Needs to Better Manage the Risk Management Program for Airborne Chemical Releases, Report No. 09-P-0130 (Mar. 30, 2009), available at www.epa.gov/oig/reports/2009/20090330-09-P-0130.pdf.