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June 22, 2010

EPA Issues Interim Guidance for Employee Participation in Risk Management Program Inspections

Bergeson & Campbell, P.C.

On June 22, 2010, the U.S. Environmental Protection Agency (EPA) announced that employees at facilities regulated under Section 112(r) of the Clean Air Act (CAA) will be invited to participate in government inspections of their worksites. Interim guidance issued by EPA and referenced in its announcement states that “[e]ffective immediately, EPA staff conducting CAA section 112(r) on-site compliance evaluations should offer facility employees and employee representatives the opportunity to participate in any such evaluations.” The interim guidance, issued jointly by EPA’s Offices of Enforcement and Compliance Assurance and Solid Waste and Emergency Response, is available online.

Under CAA Section 112(r), owners or operators of facilities that produce, handle, process, or store any “extremely hazardous toxic and flammable substance” listed in 40 C.F.R. Section 68.130 in an amount above the “threshold planning quantity” specified for that substance are required to develop and implement a risk management program (RMP). The goal of the RMP is to prevent accidental releases of substances that can cause serious harm to the public and the environment from short-term exposures and to mitigate the severity of releases that do occur. Facilities regulated under the RMP generally must:

  • Develop and implement a RMP and maintain documentation of the program at the site. The RMP must include an analysis of the potential offsite consequences of a worst-case accidental release, a five-year accident history, a release prevention program, and emergency planning.
  • Develop and submit a risk management plan to EPA.
  • Implement the RMP and update plans periodically or when certain process or other changes occur.

Employee participation in RMP inspections is specifically authorized under CAA Section 112(r). Although seeking employee participation in compliance inspections is authorized under the Occupational Safety and Health Act (OSH Act), such participation is fairly unique to EPA’s regulatory programs, and the CAA’s provision is the only major federal environmental statute specifically authorizing employee participation in inspections.

EPA’s interim guidance provides little detail on how EPA inspectors are to engage employees in the inspections. The two-page document states that CAA Section 112(r) provides employees and employee representatives with the same rights to participate in EPA CAA Section 112(r) inspections as are authorized under the OSH Act. (Section 112(r) was largely fashioned by Congress to reflect the OSH Act and EPA’s RMP rules reflect similar requirements under the Occupational Safety and Health Administration’s (OSHA) safety management standard.) Although the interim guidance provides no specifics with respect to how employees or employee representatives can or should participate in inspections, the guidance references OSHA’s regulations that detail such procedures. One can thus presume that EPA inspectors will use the OSHA regulations as a guidepost in how to involve employees in RMP inspections until EPA issues final guidance on this issue. Those provisions, codified at 29 C.F.R. Section 1903.8, generally allow employees to be questioned by inspectors and to accompany the inspector on the site evaluation, provided the inspector believes the employee “will further aid the inspection.” The OSHA provisions also allow an inspector to deny an employee to participate in the inspection if it appears that the employee may interfere with a fair and orderly inspection.

EPA is developing final guidance to implement the Section 112(r) provision, and states that it plans to issue the final guidance later this year. Until the guidance is issued in final, EPA directs inspectors to use OSHA’s Field Operations Manual as a guide and reference tool. The manual can be accessed online.