Recently, it seems like the regulated community has been faced with one deadline after another under the federal Clean Air Act requirements--here's another.
In addition to the complex permitting structure under the Clean Air Act regulations, the act--in the section known as the Accidental Release Prevention program--also requires certain companies, principally handlers of toxic or flammable chemicals, to prepare a risk-management plan.
A risk-management plan is designed to assess the risks and potential hazards associated with chemical handling, and put in place a response plan in case a chemical release occurs. The plan is designed to prevent serious chemical accidents, and protect the public health, safety and the environment.
The deadline for completing a risk-management plan is June 21. The U.S. Environmental Protection Agency's final rule on risk-management plan preparation was issued three years ago; now the deadline is just around the corner.
Who must prepare a risk-management plan? Generally, any company that handles a certain quantity, or "threshold quantity," of either toxic or flammable chemicals that EPA has included in its rule. EPA has identified 77 toxic and 63 flammable chemicals in the Code of Federal Regulations, and has established threshold quantities between 500 and 20,000 pounds, depending on the chemical.
Any company that manufactures, distributes, stores or uses any of these chemicals in sufficient quantity must prepare a risk-management plan.
What must be included in a risk-management plan? The EPA fact sheet with the plan lists the following elements:
• An off-site consequence analysis evaluating specific potential release scenarios, including worst-case and alternative ones.
• A five-year history of certain accidental releases of regulated substances at each source within a facility.
• An integrated prevention program to manage risk.
• An emergency response program.
• An overall management system to supervise implementation of these elements.
• The written risk-management plan, revised at least once every five years, that summarizes/documents these activities.
Whether a company must include all of these elements into its risk-management planning is dependent primarily on its size. Of course, a company with higher risk, complex chemical processing operations, must include all elements in its plan.
Companies must be aware that a number of sources, which EPA identifies as "processes," may be present in one facility. Therefore, a company may need to undertake a number of analyses for its facility to address each potential source of chemical release. These analyses may become quite complex and expensive to complete.
Companies should prepare carefully. The risk-management plan requirement is not designed for internal company use only. It does not remain confidential with EPA but becomes a public document and is seen as a complement to the federal Emergency Planning and Community Right-to-Know Act, EPCRA.
Together, the EPCRA and the risk-management plan are intended to assist communities in prevention of chemical accidents, and to prepare for and respond to a chemical accident if one does occur. The plan thus becomes available to local governments and emergency planning agencies, fire departments and members of the general public.
Clearly, given the public nature of the risk-management plan, great care must be given to its preparation, including a worst-case release scenario. The use of outside consultants to aid in preparation and presentation of the risk-management plan should be considered.
The risk-management plan requirement should be embraced by covered companies as an opportunity to identify potential problems before they occur. The liability that can result from a chemical release, let alone the public relations nightmare, can be staggering. If a chemical release does occur, the risk-management plan will provide the company with a timely and effective response plan to limit potential exposure.
Delay in preparing risk-management plans may prove costly. EPA has the authority to assess $25,000 per-day penalties for companies that fail to meet the June 21 risk-management plan deadline.
Information on the program can be obtained on EPA's hotline or its Chemical Emergency Preparedness and Prevention Office home page on the Web.
Gilchrist is a partner in the Environmental Practice Group of Harris Beach & Wilcox in Albany.
