UNSETTLING IMPLICATIONS OF THE
CLEAN AIR ACT'S SEC. 112 ( R )
RISK MANAGEMENT PROGRAM

By Alan B. Bernstein, CEM
Senior Consultant, Shandwick Risk Management Program Alliance
& President, PASE Inc.

By June 21, 1999, all facilities using threshold quantities of certain toxic or flammable materials in their processes will have to prepare, sign and submit accidental release prevention plans-Risk Management Plans (RMP) -- electronically to the US Environmental Protection Agency. Your RMP document declares that your facility can and will prevent accidental air releases. The signature of the facility manager, plant engineers, or safety officer which must appear on RMP plan swears to your readiness level and sets that individual forth as the "designated felon" should the plan be inaccurate or substandard.
Though planning is on-going but the law is already in effect
While companies have another 16 more months to develop and submit their RMP plans, the "general duty provisions" of Section 112 ( r ) could arguably go back to November 15, 1990, when the Clean Air Act was amended.
The "general duty" provisions states that you will identify hazards which may result from accidental releases and design and maintain a safe facility taking such steps as necessary to prevent such release and minimize the consequences of such releases. Failure to do so will trigger enforcement action.
Should you harbor any doubts about this statement consider this... On September 2, 1997, a joint FBI/ EPA investigation led to the Justice Department bringing Civil Action No. 97-191, against E.I. Du Pont de Nemours and Company, in Wurtland, KY. This action under the "General Duty" clause of 112 ( r ) came in the wake of an accidental release of Oleum-fuming sulfuric acid-and carries with it penalties up to $25,000/ day. Even more alarming is the fact that the Feds also charged DuPont with EPCRA and CERCLA violations and took their action after the company had ready reached an administratively settlement with Kentucky and Ohio for $500,000.
The Clean Air also allows the public-individuals and environmental groups-to file their own civil enforcement actions against a facility. If successful these "citizen suits" could trigger EPA fines of up to $25,000 per day.
And finally, there are the criminal penalties. Any corporate official who knowingly violates the Clean Air Act could face up to 5 years in prison and stiff fines.
Thou shalt not produce plumes... the essence of Section 112 ( r )
Thou shalt not produce plumes. Between the CAA Section 112 ( r ), EPCRA and other regulations federal enforcers of environmental laws now have more teeth than a barracuda and carte blanche to chew up responsible parties.
Section 112 ( r ) states that users of reportable quantities of any one of 77 different toxic substance and/ or 63 different flammable substances in a single process must prepare risks management plans and inform the public about these risks through a dialogue. This is not confined just to chemical manufacturers. It means anybody using threshold quantities of these materials in any process. Of these toxics and flammables propane, chlorine and ammonia are the most common.
Sections of 112 (r ) also states that facilities will run hazards assessments, model accidental releases, assemble five year accident histories, develop worst case scenarios and alternate release scenarios; conduct a public dialogues on process safety, prevention, community preparedness and emergency response. Though big on "what to do" the EPA is vague on how best to do it, how to submit RMP plans electronically, and where to submit it.
Even worse EPA makes no comment is on the emergency public information mandate the "general duty provision" of Section 112 ( r ) inadvertently confers on companies who experience accidental chemical release.
Nowhere is this mandate spelled out, but a study of enforcement actions combined with thorough reading of the regulation implies it.
Consider these three pithy little turns of phrase:
"Section 112 (r )(1) of CAA 42 U.S.C. 7412 ( r )(1), provides that the owner or operator of a stationary source producing, processing, handling or storing a substance listed pursuant to Section 112( r )(3) of CAA 42 U.S.C. 7412 ( r )(1),or any other extremely hazardous subsance, has a general duty in the same manner and to the same extent as Section 654 of Title 29 to identify hazards which may result from accidental releases using proper hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent such releases and to minimize the consequences of such releases which do occur." .
and
"RMP information should be used as the basis for a dialogue between the community and sources on accident prevention, risks reduction, and preparedness for emergency response. Industry and the public should continue to use the L.E.P.C. as a mechanism for this dialogue."
and
"EPA continues to encourage sources to work with the LEPCs and other community groups to provide information to the public and ensure an on-going dialogue during and after RMP development and submission. The public is a valuable resource and a key stakeholder in chemical accident prevention, preparedness and response at the local level."
In short, a facilities responsibility to communicate effectively does not end with a public dialogue on risk communications it begins there.
What you must explain before and during an accidental release.
If you now explain to your workers and contractors: who you are, how you work, what your do to prevent accidents, and emergency response procedures; Section 112 ( r ) requires you to explain these to the community at large after June 21, 1999 post that information on the internet.
How large is that audience?
Section 112 ( r ) also defines the audience you must address. It does by saying if toxic concentrations, radiant heat, or overpressure can harm a public receptor-e.g., offsite residences, schools, prisons, day care facilities, hospitals, commercial or industrial facilities, parks , recreational areas, etc., or an environmental receptor-e.g., natural areas, monuments, officially designated preserves, refuges, or wildlife areas; they are your become stakeholders and an audience you must address. In a large chemical release under the right conditions this can easily cover a 5 to 10 miles area downwind.
Add to this groups your own corporate officials, all local, regional and national news media likely to cover a major release in your area, and your mandatory government notifications and you have a complete picture of the size and diversity of your audience.
Yes, it is daunting. Yes, it is a very large risks communication and emergency public information task. Yes, you will be cooked if you leave it till the last minute .
Who must I notify if I have an accident?
Sec. 112 ( r ) and related environmental regulations are very specific about emergency notifications and accident reporting. Your must immediately notify-immediate means less than one hour-the National Response Team and your Local Emergency Planning Committee.
EPCRA-SARA Title III, requires you to immediately notify the State Emergency Response Committee (SERC), the Local Emergency Planning Committee (LEPC) and the county and local emergency coordinators.
The CERCLA-SARA requires you to notify the National Response Center within 24 hours.
If reportable quantities of non-permitted hazardous materials escape as part of a federally permitted release, you must report that as well.
In addition there are a host of other state notification and reporting requirements you must know and follow.
What must I tell the government if I have an accident? What will the news media and general public want to know?
When you make your notification, government response agencies want to know what, where, when. who, how much, and how long.
To meet government notification and reporting requirements and survive in the court of public opinion, you must be ready to explain:
What chemicals were involved in the release.
whether they were toxic, flammable and if they were extremely hazardous.
How much material was released and over what period of time.
Critical information related to evacuating, sheltering in place and taking other protective actions.
What are the known or anticipated health risks, are they expected to be acute or chronic and what medical attention is needed after exposure.
Who to contact for more information.
You must also be ready to brief the community and the news media on:
The number of people killed or injured.
The amount of physical destruction.
The level of financial loss.
Who will be blamed for the release.
Yours or anyone's official description of the accidental release and the response.
Civil, criminal, and administrative proceeding likely to develop from the release.
In short, the demand for information coming from receptors, community leaders and first responders, those who must comment on events, special populations, victims and families, plant employees and the community at large and the news media is almost identical to what the government wants to know.
During an accidental release your deeds had better affirm your dialogue.
When you send a plume of toxic or flammable materials over a community, disrupt life, and kill, injure or terrify thousands, your physical response to the emergency speaks volumes more than anything you could possibly say. Because of this your ability to coordinate emergency response with a decisive, articulate, responsive, accurate, reliable and honest communications response become crucial. When keeping critical relationships intact means the difference between recovery and demise, emergency public information becomes and operational arm of the emergency response. It moves from being a luxury to being a necessity.
Which brings us back to Section 112 ( r ). Though EPA did not specify in its final rule how a company must conduct its public dialogue on accident prevention and emergency response, it is probably safe to assume that someone somewhere in EPA figured out that any facility manger worth his or her salt would realize it's foolish to try and get through an accidental release without and an emergency communications plan and a trained groups of spokespersons and public information experts to supplement the RMP.
What you don't want to look like.
The Clean Air Act Section 112 ( r ) does not order you to develop a formal communications plan. But only premeditated carelessness could lead a senior official at a site to conclude such a guide to public information, news media relations, victim communication, community/ government relations is unneeded.
Perceptions will be poisoned and liability increased if the second reality of an accidental release-what people think has happened-is not managed.
If you deny, delay and default you are finished. If you duck responsibility, mismanage, or appear arrogant, negligent or disinterested your will compound the damage done by the chemical release.
Miscalculate risk, lack remorse or trivialize people's fears and you will pay, and pay, and pay.
Remember, your accidental release is prima facie evidence that your hazards assessment, process safety, and prevention programs did not work. The only thing you have yet to prove is whether you can respond to the emergency in a competent fashion, alert, warn and inform the public and explain your actions. Considered in this light your emergency public information plan, and your ability to implement it could well determine whether how your situation and emergency response is perceived and whether you lose more or lose less.
Communication activities you should be able to carry out in the event of an accidental release.
To provide public information support to an emergency response you must be able to:
Conduct mandatory notifications
Alert and warn the community
Disseminate news and emergency information
Meet the demands for information and access placed by print, radio, television, and cable news reporters.
Provide evacuation, shelter-in-place and health risk information.
Correct misinformation and counter rumors.
Establish and information / news media center, or operate as part of a Joint Information Center.
Coordinate between communicators at corporate headquarters, communicators at the scene , and communicators working with public safety, medical and emergency response agencies.
Monitor news media.
Make trained general and technical spokespersons available.
Frame issues and messages and control expectations.
Manage public telephone inquiries and rumors.
Use the LEPC to speed preparations and cut costs.
A lot of work goes into determining how to conduct your public dialogue and them how to conduct communications during an accidental release. One of the best ways to speed the process along and cuts costs is to work collectively through your Local Emergency Planning Committee (LEPC).
Section 112 ( r ) states that the LEPC should be the hub of your risks communications with the public. As both a center for planning expertise and a venue where government, business and the public can cooperate, it is a nearly perfect structure for writing emergency public information plans, testing those plans and exercising those who will carry them out.
Making your LEPC a hub for such planning cuts costs, saves time, focuses consulting help around shared communications needs, permits coordinated training and facilitates the simultaneous exercising of response and communications plans and bypasses conflict of interest issues.
"Thou shalt produce no plumes"
Like it or not, CAA Section 112( r ) does impose a communication burden on companies who use threshold quantities of specified toxic and flammable materials. It is just not stated.
Poor emergency public information planning will increase your company's liability in the wake of an accidental release. Section 112 ( r ) may be ambiguous about this, but enforcement actions, lawsuits and public outrage blossoming from miscommunications in high risk, high stress situations seldom are.

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The Emergency Operations Center/ Information Center Status Board Kit <http://www.paseinc.com> is a low cost tool for managing the operational communications and public information. It is worth looking at since it give govenment, social services, a business the sale tool on which to gather, compile and update CAA 112(r)information.