Florida’s Accidental Release Prevention and Risk Management Planning Act
With a June 21 plan filing deadline almost here, Florida’s emergency management officials are gearing up to implement newly delegated responsibilities to oversee risk management planning for the prevention of accidental releases of hazardous air pollutants from a variety of stationary sources. About 2,180 Florida sites, including chemical plants, petroleum refineries, paper or electronics manufacturers, potable water and waste water systems, electric and gas utilities, cold storage facilities, large warehouses or retail distribution outlets, and military bases will file detailed risk management plans with the U.S. Environmental Protection Agency (EPA).1 The EPA will provide the plans to state officials.
This article presents a brief history of the development of Florida’s risk management planning program, reviews aspects of Florida’s delegated program, and outlines federal requirements for risk management planning.
Brief History of Program
In 1990, Congress amended the Clean Air Act to require the EPA to establish programs and requirements to prevent catastrophic chemical accidents and to mitigate the consequences of such accidents when they occur.2 The EPA was directed to adopt rules listing regulated substances in addition to the 25 hazardous chemicals listed in the Clean Air Act, and to adopt rules establishing requirements for preparation and implementation of risk management plans and for prompt emergency response to any release of a regulated substance.
The EPA published its original regulated substances list in January 19943 ; the list has been amended.4 The EPA noticed the accidental release prevention-risk management program (RMP) rules in June 1996.5 On January 6, 1999, the EPA amended the rules but the plan filing deadline was not extended.6
In July 1996, the State Hazardous Chemicals Emergency Response Commission (SERC) established a working group to study state implementation issues associated with the EPA’s risk management rules and to recommend whether Florida should seek program delegation from the EPA.7 The SERC endorsed proposed legislation for the Department of Community Affairs (DCA) to seek delegation.
The 1998 Legislature adopted the Florida Accidental Release Prevention and Risk Management Planning Act, F.S. Ch. 252, part IV (the Florida RMP act), authorizing the DCA to seek delegation from the EPA to administer the risk management planning program, except for facilities in which liquefied petroleum gas is the only regulated substance and which are subject to F.S. Ch. 527.8
On June 12, 1998, Florida sought delegation from the EPA. On October 20, 1998, the EPA noticed its approval of Florida’s delegation request.9
The Florida RMP Act
The Florida RMP act provides a framework for implementation of federal delegation. The RMP act directs the DCA to establish a fee system to make the program “self-sustaining.”10 The act also outlines organizational structure; establishes inspection, audit, and enforcement authorities; specifies remedies and penalties; and provides public records protection of trade secrets.
The legislature appropriately placed the Florida RMP act in F.S. Ch. 252, the emergency management chapter. The DCA has considerable experience administering the Florida Hazardous Materials Emergency Response and Community Right-to-Know Act of 1988, which is Florida’s counterpart to the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA).11 The EPA’s stated philosophy for Clean Air Act risk management planning corresponds to its EPCRA philosophy: “[R]egulatory requirements, by themselves, will not guarantee safety. . . . [I]nformation about hazards in a community can and should lead public officials and the general public to work with industry to prevent accidents.”12
The EPCRA-inspired organization already integrated into Florida’s Comprehensive Emergency Management Plan will implement the delegation.13 The DCA will rely upon the SERC’s advice and consent for rulemaking and technical assistance and will make quarterly financial reports to the SERC.14
The act directs that workplace safety and environmental protection programs such as those implemented by the Department of Labor and Employment Security’s Division of Safety and the Department of Environmental Protection’s Division of Air Resource Management and Division of Water Facilities be coordinated with the DCA’s implementation of the delegation.15
The DCA will collect an annual registration fee based upon the highest program level assigned to a “process” at the stationary source for the reporting year. “Process” means:
any activity involving a regulated substance including any use, storage, manufacturing, handling, or on-site movement of such substances, or combination of these activities. For the purposes of this definition, any group of vessels that are interconnected, or separate vessels that are located such that a regulated substance could be involved in a potential release, shall be considered a single process.16
The owner of a stationary source may have more than one process at a facility, each of which may be a different program level. The EPA established three process program levels: Program 1 processes present a minimal potential risk; Program 3 processes have the highest risk; Program 2 is the default level.
The base annual registration fee for a Program 1 process stationary source is $100.17 A multiple source discount is available whereby the owner of multiple facilities with the same process level pays $1,000. The base annual registration fee for a Program 2 process stationary source is $200.18 Multiple source fee discounts are available.19 The base annual registration fee for a Program 3 process stationary source is $1,000.20 The DCA can assess late fees for an owner’s failure to submit timely annual registration fees, enforceable in circuit court.21
The RMP act authorizes the DCA to supplement EPA enforcement.22 The DCA may inspect a source to ascertain compliance. If permission to inspect is refused, a county or circuit court may authorize an inspection warrant.23
The DCA must develop an annual audit work plan to audit RMP plan compliance with SERC assistance and using specified factors.24 Upon request, the DCA must provide an oral exit interview after any source audit. The DCA must provide the source owner with a written preliminary determination of any revisions believed necessary to the RMP plan, with an implementation schedule.25
Federal Requirements for Risk Management Planning
The owner or operator of a stationary source that has more than the threshold quantity of a regulated substance in a process must comply with the EPA regulations by the latest of three dates: June 21, 1999; three years after a regulated substance is listed; or the date on which a regulated substance is first present above a threshold quantity in a process. Keys to determining if the regulations apply to an existing facility include: 1) the chemical must be a regulated substance; 2) the stationary source must be analyzed to delineate the various processes; and 3) the amount of the regulated substance in any process must exceed the threshold. If the rules apply, each process must be evaluated to determine its program level which will require evaluation of at least one worst-case scenario analysis and of a five-year accident history.
Program 1 eligibility requirements include: no accidental release of the regulated substance for five years prior to the plan submittal that caused off-site death, injury, or response or restoration activities to an environmental receptor; the distance to a toxic or flammable endpoint for a worst-case release assessment is less than the distance to any public receptor; and emergency response procedures have been coordinated with local emergency management officials.26
Program 1 processes have the least rigorous requirements. The RMP submittal must: include the worst-case release scenario analysis tied to the nearest public receptor and the five-year accident history; ensure that response actions have been properly coordinated; and certify that the Program 1 eligibility criteria have been met.27
Program 2 is the default program level.28 The RMP submittal requirements include: implementation of a management system; conduct of a hazard assessment; implementation of Program 2 prevention steps; implementation of an emergency response program; and data to support the prevention program elements.29 Program 2 process owners must maintain up-to-date safety information; conduct a hazard review for each regulated substance, process, and procedure; prepare written operating procedures for each covered process; provide employee training; prepare and implement equipment maintenance procedures; conduct a compliance self-audit at least every three years; and conduct an investigation of each actual or potential catastrophic release incident and document the investigation.30
Program 3 processes are those that do not qualify for Program 1 and either the process is one of nine industrial classes,31 or the process is subject to the Occupational Safety and Health Administration (OSHA) process safety management standard, 29 CFR 1910.119.32
Program 3 RMP requirements include: implementation of a management system; conduct of a hazard assessment; implementation of Program 3 prevention steps; implementation of an emergency response program; and data to support the prevention program elements.33 Program 3 processes require an initial written compilation of process safety information including details regarding hazards of regulated substances in each process, the technology of each process, and the equipment in each process.34 After the process safety information compilation, a hazard evaluation is required; OSHA compliant hazard analyses suffice.35
Program 3 process owners must develop and implement written operating procedures and annually certify that the procedures are current and accurate. Employee training, refresher training, and training documentation are required.36 For certain types of equipment such as pressure vessels and storage tanks, mechanical integrity procedures, training, inspection, and testing are required.37 Before changes are made that may affect a process, the owner must establish written “management of change” procedures and employ a pre-startup review procedure if a source modification demands amended process safety information.38 Compliance audits and incident investigations are required, along with requirements for employee participation, hot work permits, and regulation of contractors.39
Program 2 and 3 processes require the owner or operator to develop and implement an emergency response program that is coordinated with the EPCRA community response plan.40
A stationary source owner or operator is required to submit a single risk management plan for all processes.41 Recently, the EPA finalized the filing software “RMP*Submit – Version 1.0.7” and posted it on the Internet for downloading.42 The EPA will post redacted risk management plans on the Internet using “RMP*Info.” Owners may file hard-copy risk management plans, stating why an electronic filing was not possible.43 Considerable legal and technical resources are available in a variety of forms and from a variety of sources. The EPA Internet site is essential. DCA’s site—www.dca.state.fl.us/cps/arprmp/start.htm—provides a link to the EPA’s site.
Conclusion
Florida’s emergency management officials soon will be presented with the end result of a considerable risk management planning process for hundreds of facilities that pose a potential risk to public health and safety because they use relatively large amounts of dangerous chemicals. Hopefully, the process will result in an enlightened discussion between citizens, workers, local officials, emergency responders, and facility owners and managers about improved ways to prevent accidents—safeguarding life and health and protecting Florida’s environmental and economic future.
q
1 EPA, Risk Management Programs under Clean Air Act §112(r) – Guidance for Implementing Agencies, Feb. 1998, A-2.
2 Pub. L. No. 101-549, Title III, §301, 104 Stat. 2399, codified at 42 U.S.C. §7412.
3 59 Fed. Reg. 4478 (1994).
4 62 Fed. Reg. 45132 (1997); 63 Fed. Reg. 640 (1998).
5 61 Fed. Reg. 31668 (1996).
6 64 Fed. Reg. 963 (1999), codified as 40 C.F.R. Part 68: Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act §112(r)(7).
7 The SERC was created on April 17, 1987, by Exec. Order 87-57. See Fla. Stat. §252.82(1) (1997).
8 1998 Fla. Laws ch. 193. A companion measure authorized a public records exemption for portions of the RMP plans protected as trade secrets. 1998 Fla. Laws ch. 406.
9 63 Fed. Reg. 55954 (1998). Delegation is authorized by 42 U.S.C. §7412(l).
10 Fla. Stat. §252.938(1) (Supp. 1998). The proposed rules were noticed July 17, 1998. 24 F.A.W. 3693 – 3695.
11 Pub. L. No. 99-499, tit. III, §301, 100 Stat. 1729 (1986), codified as amended at 42 U.S.C. §§11001-11050 (1988 & Supp. V 1993).
12 61 Fed. Reg. 31670 (1996).
13 Fla. Stat. §252.937(2) (Supp. 1998).
14 Fla. Stat. §252.927(1)(b)(e) & (f) and (2) (Supp. 1998), respectively.
15 Fla. Stat. §252.937(2) (Supp. 1998).
16 40 C.F.R. 68.3.
17 Fla. Stat. §252.939(1)(c)1 (Supp. 1998); Fla. Admin. Code r. 9G-21.002(2).
18 Fla. Stat. §252.939(1)(c)2 (Supp. 1998).
19 Id.
20 Fla. Stat. §252.939(1)(c)3 (Supp. 1998); Fla. Admin. Code r. 9G-21.002(4).
21 Fla. Stat. §252.939(2) (Supp. 1998).
22 Fla. Stat. §252.937(1)(a)2, 252.940(1), 252.941, 252.942 (Supp. 1998). Fla. Stat. §252.940(2) (Supp. 1998), compare Fla. Stat. §252.86(4) (1997).
23 Fla. Stat. §252.942(1)-(3) & (7) (Supp. 1998).
24 Fla. Stat. §252.942(4) (Supp. 1998).
25 Fla. Stat. §252.942(5), (6) (Supp. 1998).
26 40 C.F.R. 68.10(b).
27 40 C.F.R. 68.12(b).
28 40 C.F.R. 68.10(c).
29 40 C.F.R. 68.12(c).
30 40 C.F.R. Subpart C.
31 40 C.F.R. 68.10(d).
32 29 C.F.R. 1910.119(a) and Appendix A.
33 40 C.F.R. 68.12(d).
34 40 C.F.R. 68.65.
35 40 C.F.R. 68.67 and 29 C.F.R. 1910.119(e).
36 40 C.F.R. 68.89 and 68.71.
37 40 C.F.R. 68.73.
38 40 C.F.R. 68.75 and 68.77.
39 40 C.F.R. 68.79 and 68.81.40 C.F.R. 68.83, 68.85, and 68.87.
40 40 C.F.R. 68.90 and 68.95. Two limited exemptions are provided if employees will not respond to an accidental release and either the source has a regulated toxic substance and is included in an existing EPCRA community response plan, or the only regulated substances are flammables and the owner has coordinated response actions with the local fire department. Appropriate mechanisms must be in place to notify emergency responders.
41 With a signed certification statement.
42 See www.epa.gov/swercepp/acc-pre.html.
43 See “other issues” at 64 Fed. Reg. 973 (1999).
Ross Stafford Burnaman is an assistant general counsel with the Florida Department of Community Affairs. He received a B.A. in political science/environmental studies from New College, and a J.D. from Florida State University. He has represented a variety of agencies and others on Florida environmental, land use, and public lands matters.
This column is submitted on behalf of the Environmental and Land Use Law Section, Ralph A. DeMeo, chair, and Melissa Anderson, editor.
