CHAPTER 12 CLEAN AIR RISK MANAGEMENT PLAN ISSUES AND ENFORCEMENT

• Jurisdiction: United States

Air Quality Issues Affecting Oil, Gas, and Mining Development and Operations (Feb 2018)
CHAPTER 12
CLEAN AIR RISK MANAGEMENT PLAN ISSUES AND ENFORCEMENT
Jacy T. Rock
Legal Counsel--R&M U.S.A.
Suncor Energy Services Inc.
Denver, CO
Brian Nelson
Manager, Environmental Health & Safety Commerce City
Suncor Energy Services Inc.
Denver, CO
Ivan London & Suzanne Crespo
Attorneys
Bryan Cave LLP
Denver, CO & Colorado Springs, CO

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JACY ROCK is currently Legal Counsel for Suncor Energy Services Inc., where she is responsible for supporting Suncor's U.S. business units with respect to a variety of legal issues, including environmental compliance. Prior to joining Suncor, Jacy specialized in environmental litigation at the law firm of Faegre Baker Daniels LLP, where she was recognized as a Colorado SuperLawyers "Rising Star." She is a graduate of the Denver Metro Chamber of Commerce's Leadership Denver program, received the Faculty of Federal Advocates Counsel-Co-Counsel Pro Bono Award, and has served on multiple and diverse boards and committees, including as President of the Colorado Hazardous Waste Management Society, Co-Chair of American Bar Association's Environmental Litigation Committee Corporate Counsel and Young Lawyers' Sub-Committees, and Secretary of the Delores Project Board of Directors. Jacy is passionate about Colorado's outdoors, and currently serves as the Vice Chair of the Board of Trustees of Great Outdoors Colorado and on the Jefferson County Open Space Advisory Committee. She is a graduate of the University of Minnesota School of Law (Order of the Coif, Magna Cum Laude) and the University of North Dakota (Phi Beta Kappa, Summa Cum Laude). Jacy lives with her husband, daughter, and vizsla in Golden, CO.

BRIAN NELSON is currently Environmental Health and Safety ("EHS") Manager with Suncor Energy Services Inc., where he manages a team of EHS professionals that serve as both the corporate EHS center for Suncor Energy (U.S.A) Inc. as well as the daily EHS support staff Suncor's Commerce City Refinery. Prior to becoming the EHS Manager, Brian was the Manager of Process Safety and Operational Excellence at Suncor's Commerce City Refinery. At the Commerce City Refinery, Brian has done significant work on the Refinery's OSHA Process Safety Management ("PSM") and Risk Management Plan ("RMP") programs and has played an integral role in developing corporate process safety standards for Suncor, helping implement a similar set of process safety programs in Suncor's Canadian business units. Prior to joining Suncor, Brian worked for ExxonMobil Corporation at their Chalmette, LA refinery where he held a variety of safety and fire protection engineering roles. Brian began his career with Phillips 66 Chemical Company and later ChevronPhillips Chemical LLC in Pasadena, TX. It was there that Brian gained the deep appreciation for the importance of process safety in the petrochemical industry that guides him in his work today. Brian is a graduate of Oklahoma State University with a degree in Fire Protection and Safety Engineering Technology (Summa Cum Laude). Brian lives with his wife and two boys in Thornton, CO.

IVAN L. LONDON is an associate in the Denver office of Bryan Cave LLP, where he primarily represents energy/natural resources and manufacturing clients - particularly in the oil and gas industry - in dealing with complex environmental and litigation matters. He assists clients in the administrative rule-making process, interacting with regulatory agencies during enforcement proceedings, litigating disputes in both administrative and civil settings, conducting compliance audits and defending government investigations.

§ 1. Introduction

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

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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.¹ 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.² 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 1986.³ 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 200,000.⁴ 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.⁵ OSHA concluded that its

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program was better suited than EPA's program "to protect worker safety and health against common hazards, not rare catastrophic events."⁶ In response, Congress designed section 112(r) to close the gap between the two agencies by giving EPA the ability to issue rules for the prevention, detection and correction of accidental releases of extremely hazardous substances.⁷

EPA responded in the 1990s by promulgating the Risk Management Program regulations, which require owners and operators of regulated facilities to, among other things, conduct worst-case scenario hazard analyses and plan for emergency responses in case the contemplated releases actually occur. Regulated facilities include "any buildings, structures, equipment, installations, or substance emitting stationary activities" from which an accidental release may occur.⁸ Thus, the scope of section 112(r) and its implementing regulations is broad. This paper turns to a couple of the primary risk-prevention concepts in the statute: RMPs and the "general duty" that Congress imposes on the regulated community to address accidental releases of extremely hazardous substances.

[1] Risk Management Plans

In the Clean Air Act, Congress directed EPA to "promulgate reasonable regulations and appropriate guidance to provide, to the greatest extent practicable, for the prevention and detection of accidental releases of regulated substances and for response to such releases by the owners or operators of the sources of such releases."⁹ Congress further instructed that the

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regulations would have to require regulated entities to submit "a risk management plan to detect and prevent or minimize accidental releases" of regulated substances.¹⁰

EPA promulgated regulations implementing Congress' requirements as the Chemical Accident Prevention Provisions, at Part 68, Title 40 of the Code of Federal Regulations. To comply with the statute and implementing regulations, a regulated facility must submit an RMP to EPA if it has more than a "threshold quantity of a regulated substance in process."¹¹ An RMP must cover three main areas: the potential effects of a chemical accident, steps the facility is taking to prevent an accident and emergency response procedures should an accident occur.¹² Specific elements of the RMP vary somewhat depending on the substances involved and the facility's history. Generally, an RMP must include (i) an offsite-consequence analysis of worst-case release scenarios;¹³ (ii) a five-year accident history;¹⁴ (iii) information regarding prevention programs for accidental releases, with the prevention requirements becoming increasingly rigorous depending on whether EPA would consider the facility to require a "Program 1," "Program 2" or "Program 3" accident-prevention program;¹⁵ and (iv) information regarding an

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emergency response plan.¹⁶ Thus, the Risk Management Program regulations require both backward- and forward-looking analyses, and consideration of various "what-if" scenarios.

[2] The General Duty Clause

In the "General Duty Clause" (GDC), Congress subjected the owners and operators of regulated facilities to a broad duty to prevent and mitigate accidental releases in addition to the more specific requirements such as those for RMPs:

The owners and operators of stationary sources producing, processing, handling or storing such substances have a general duty in the same manner and to the same

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