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Clean Air Risk Management Plan Issues and Enforcement

Jacy T. Rock, Brian Nelson, Ivan London, Suzanne Crespo, Air Quality Issues Affecting Oil, Gas, and Mining Development and Operations (2018)

In response to terrifying chemical-release accidents in the U.S. and abroad, Congress enacted section 112(r) as part of the 1990 Clean Air Act Amendments. Section 112(r) required the Environmental Protection Agency (EPA) to publish regulations aimed at preventing accidental releases of various “extremely hazardous substances” and to minimize the consequences of accidental releases that do occur. The resulting “Risk Management Program” regulations—applicable to companies of all sizes—include development of risk management plans (RMPs), implementation of audit programs and a “general duty” to identify hazards that may result from accidental releases. Shortly before the inauguration of President Trump, EPA promulgated amendments to “modernize” the Risk Management Program in response to an executive order issued by then-President Obama. However, under new Administrator Scott Pruitt, EPA has since signed a final rule to delay the effective date of the amendments until February 19, 2019. Nevertheless, EPA has become increasingly active in section 112(r) enforcement efforts over the past several years, and the amendments—if they become final—contain new types of requirements that the regulated community might find challenging. Against this backdrop, this paper addresses the history and requirements of section 112(r) and its implementing regulations, summarizes the “modernized” section 112(r) requirements and their expected impacts—focusing specifically on refineries, and then related topics such as the relationship of the Risk Management Program to OSHA regulations, and regulatory enforcement. § 2. Section 112(r) of the 1990 Clean Air Act Amendments In the 1990 Clean Air Act Amendments, Congress authorized and directed EPA to create regulations that prevent explosive chemical accidents that could cause death and injury beyond facility fences. The Senate Committee on Environment and Public Works, in its report on a version of what ultimately became the 1990 Amendments, pointed to a number of reasons for the new directive. Among other things, it cited an accidental toxic release of methyl isocyanate in August of 1985 in Institute, West Virginia, which sent 409 residents and workers to emergency rooms, and a summary from EPA of 11,048 accidental releases of extremely hazardous substances in the U.S. between 1982 and 1986. The West Virginia incident occurred approximately nine months after the facility’s sister operation in Bhopal, India released the same chemical, killing 3,400 people and injuring 200,000. Following these incidents, the Occupational Safety and Health Administration (OSHA) and EPA launched efforts to examine the potential for injury and damage from such accidental releases.