| EHS Regulatory News | October 2003
1. Transporters of Hazardous Materials Are Subject to New Security Plan Requirements
2. Risk Management Plans Must Be Resubmitted by June 2004
3. Critical Habitat Designation Impacts Development
4. European Chemical Policy Experts Promote REACH Directive in California
Transporters of Hazardous Materials Are Subject to New Security Plan Requirements
With the events of recent years highlighting a heightened risk of terrorism, the Department of Transportation (DOT) Research and Special Programs Administration (RSPA) has recently published a final rule addressing the need for increased security of hazardous materials shipments from the threat of acts of terrorism and sabotage.
This new DOT rulemaking (published in the Federal Register, Volume 68, Number 57, and dated 25 March 2003) established significant hazardous materials risk management and training regulations for persons who either offer for transportation or transport specific types of hazardous materials in commerce in a “state of the United States.” In consideration of the final rule, RSPA has added Title 49 of the Code of Federal Regulations (CFR) Part 172, Subpart I, to address a requirement for the preparation and implementation of a Security Plan.
By 25 September 2003, each person who offers for transportation in commerce, or transports in commerce one or more of a specified hazardous material, must develop and adhere to a Security Plan for hazardous materials.
The following hazardous materials determine applicability to Security Plan development (49 CFR 171 - 173):
- A highway route-controlled quantity of a Class 7 (radioactive) material;
- More than 55 pounds of a Division 1.1, 1.2, or 1.3 (explosive) material;
- More than 1.06 quarts per package of a material poisonous by inhalation in Hazard Zone A;
- A shipment in a bulk package with a capacity greater than or equal to 3,500 gallons for liquids and gases, or greater than 468 cubic feet for solids;
- Infectious substances listed as select agents by the Centers for Disease Control and Prevention (CDC) in 42 CFR 73; and/or
- A shipment that requires placarding.
Shipments that require placarding, as stated in Item 6 above, applies to individual shipments of greater than or equal to 2,205 pounds (equal to about four 55-gallon drums) of one DOT hazard class (such as flammable liquids as hazardous waste) shipped from one facility or simply more than 1,001 pounds of hazardous materials.
Contractors used by facilities for the transport of hazardous materials shall be contractually required to adhere to that facility’s Security Plan, in addition to ensuring compliance with their own Plan.
When developing a written Plan, key components should include (1) Vulnerability Assessment, (2) Personnel Security, (3) Unauthorized Access, and (4) En-Route Security.
For more information log onto www.dot.gov/safety or contact Sheri Cook-Johnstone at 714-430-1476 or sheri.cook-johnstone@erm.com.
Risk Management Plans Must Be Resubmitted in June 2004
The Risk Management Planning (RMP) regulations (40 CFR 68) required submission of Risk Management Plans to the United States Environmental Protection Agency (EPA) in June of 1999. Under the requirements of the RMP, sources are required to review RMP compliance and resubmit the RMP (electronically) no later than 21 June 2004.
The EPA has proposed a number of changes designed to reduce the reporting burdens for small changes: increase the availability of information on emergency contacts, eliminate submission of certain publicly available information due to terror concerns, and require information regarding the use of consultants to develop or submit RMP documents. In the absence of substantive adverse comment on the proposed rule, we anticipate that the EPA will finalize these rules in mid-November 2003.
ERM has reviewed the new rules and the public comment and believe the following is a summary of the changes likely to be required by EPA:
New Information
Emergency contact information: EPA has expressed interest in obtaining e-mail addresses for emergency contacts. This desire comes as a result of security concerns stemming from the establishment of the Department of Homeland Security’s Terror Alert System. EPA intends to provide contact information to the Department of Health Services so that emergency contacts can receive e-mail notification of security alerts, news, and specific threats. No substantive adverse comment to this position was received.
Contractor/Consultant information: The EPA has expressed concerns with the quality of contractor-prepared RMP submissions and documentation. EPA would like to collect data to determine if specific contractors have been responsible for systemic errors in the submission of RMP documents. Although some commenters argued that little value was gained from this information, EPA may still require submission.
Reason for Resubmission: Along with some streamlining suggestions (discussed below) EPA has requested that the reason for changes to the RMP be documented. The EPA requested specific assistance in developing terminology to categorize these types of changes. No significant adverse comment was received about this proposal.
Updating the RMP Information
The EPA has suggested mandatory changes in the timeframe for resubmission of the RMP after certain changes in facility personnel or modifications to the covered processes occur:
- Submit an update within 6 months of any change requiring a change to the off-site consequence analysis;
- Submit an update within 6 months of a change to the Program Level;
- Submit an update within 6 months of an accidental release that meets the reporting requirements of the 5-year accident history (40 CFR 68.42(a)); and
- Submit an update within 1 month for any change to the emergency contact information to the RMP.
Clearly the last requirement (1 month for changes of emergency contacts) is the most onerous for facilities experiencing turnover in operational personnel. EPA received significant adverse comment regarding this change, and may extend the update period, but will likely retain the requirement. We recommend that special care be taken to meet this requirement.
The EPA has also recommended that facilities no longer be required to describe the off-site consequence analysis in the executive summary to the RMP. This regulatory revision was informally included in the requirements of the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA). Further, the EPA is recommending that sources not provide this information voluntarily.
Practical Aspects of Resubmittal
ERM recommends that sources review the implementation of their Process Safety Management (PSM) and RMP programs prior to the submission of the 2004 RMP. In particular, sources should review their management commitment to the implementation of PSM and RMP, review progress towards completing Process Hazard Assessment (PHA) recommendations, ensure recommendations, ensure the adequacy and timing of PHA revalidations, and ensure the adequacy of PSM/RMP compliance audits and follow through on completing audit items.
In particular, owners/operators should complete their required 3-year PSM/RMP compliance audit and ensure that PHA revalidations have been completed on schedule for all processes. In particular, they should ensure that PHA revalidations contain an assessment of off-site consequences.
In certifying the resubmission of the RMP, responsible parties at sources will be certifying the facility’s compliance with all of the RMP components. Prior to signing, responsible parties should ensure that sources are in compliance with the requirements.
Critical Habitat Designation Impacts Development
Critical habitat designation is currently a hot-button issue in California, as well as across many of the western states. There is a growing trend for economic impacts to be included in the analysis of critical habitat designations, giving property owners and developers a greater voice in the process. The Federal Endangered Species Act (ESA) of 1973 regulates both private and public activities that may affect threatened or endangered species of animals and plants. The ESA provides various protections for these species and their critical habitats that often present considerable economic and other hurdles for private property interests. In fact, the ESA has long been one of the most effective tools for opponents of development projects, and the critical habitat provisions have increasingly been cited as part of such opposition.
Recently, however, several significant court decisions, as well as recent actions by the U.S. Fish and Wildlife Service (the Service), provide new hope for protecting property interests by indicating that the economic impacts of critical habitat designation are becoming a key issue in the ESA process.
Because there are various mandatory requirements relating to critical habitat designation, agency action as well as inaction is judicially re-viewable. Thus, if the agency designates critical habitat, that designation may be challenged in court. Similarly, if the agency fails to designate critical habitat, that inaction may also be challenged. Environmental groups frequently file challenges either claiming that a designation of critical habitat is insufficient, or for failure to designate such habitat. These lawsuits have become a common occurrence, often acting as the catalyst for the designation of critical habitat.
Recently, the critical habitat designation process has come under increased scrutiny. One area of criticism has been the failure to properly account for the economic impacts of designation. Recent judicial decisions have placed a greater burden on the federal government to identify the full range of economic impacts associated with critical habitat designation. A recent February 2003 study prepared by the University of California at Berkeley assessed the economic costs of critical habitat designation. The study concluded that the Service’s current methodology underestimated economic impacts by seven to 14 times.
The recent turnaround in the analysis of economic impacts under the ESA has potentially great effects on private property interests. Property owners and developers have long sought greater balancing of economic and other data in the implementation of the ESA, and this may signal a new leveling of the playing field. Additionally, it may provide the federal government greater ability to factor in economic considerations and private property interests when designating critical habitat.
Ultimately, private property owners, developers, and other project proponents should remain informed regarding proposed endangered and threatened species listings, as well as proposed critical habitat designations affecting their land and projects. Given the increasing emphasis on economic factors, it is important for these private parties to involve themselves early on in the designation process to ensure that their interests are represented, and that the potential economic effects are accounted for by the federal agency in question.
For more information on critical habitat designation and the ESA, please contact Cord Hute (925-279-3233 or cord.hute@erm.com) or visit the U.S. Fish and Wildlife Service website (www.fws.gov).
European Chemical Policy Experts Promote REACH Directive in California
A delegation of senior European chemical policy experts, including representatives from Sweden, Denmark, the UK, Germany, and the European Commission, visited San Francisco, Washington, Chicago, and Boston from October 20 to 28, to present the content of and basis for Europe's Chemicals White Paper expected to be released October 29. The White Paper is widely expected to result in a new Europe-wide Directive by 2006 that is being called the REACH (Registration, Evaluation and Authorization of Chemicals) Directive.
According to the draft concept of the REACH Directive, after the Directive takes effect, regardless of whether or not a chemical was previously sold or produced, all chemicals sold or produced in the European Union in volumes of greater than 1 ton would need to be either registered, evaluated by industry for risk of human health or environmental impact, or authorized by regulatory authorities, depending on the category into which the chemical falls. The legislation is expected to affect around 30,000 chemicals and cost industry at least $2 billion to implement.
The legislation continues to generate considerable controversy in industry and in diplomatic trade negotiations due to its potentially far-reaching implications.
More information is available on the EU official website at http://europa.eu.int/comm/environment/chemicals/whitepaper.htm.
You can also contact Chris Hazen (1-925-946-0455 or chris.hazen@erm.com) or your local ERM office.
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