In my discussions with SAFTENG members who are Process Safety clients, the question is always asked: “Where do you get the terms “responding facilities” and “Non-Responding facilities” from? These are terms used in EPA’s Risk Management Plan rule, and I have said many times in my writings that not every facility is required to have an emergency response team and program. Every facility is responsible for ensuring proper and timely response to events is in place, but that could be using the local emergency response resources. Here are the ER requirements based on how the facility classifies itself in terms of a Non-Responding Facility or a Responding Facility.
For facilities with Program 2 or 3 processes, Subpart E designates them as either “responding” facilities or “non-responding” facilities.
Responding facilities are those that will use properly trained facility employees (or contractors) to respond to accidental releases of regulated substances.
In contrast, non-responding facilities are those whose employees will not respond to accidental releases of regulated substances.
Non-responding facilities instead rely on local public responders to respond to accidental releases at the source. Under Subpart E, while both responding and non-responding facilities MUST conduct and document annual coordination activities and annual notification drills, only responding facilities have additional obligations to the implementation of an emergency response program (ERP).
EPA understands that a wide spectrum of planning, preparedness, and response arrangements is available to facilities and local communities and that the two categories of “responding” and “non-responding” facilities do not fully capture this continuum. As explained above, there is some overlap between the obligations of non-responding and responding facilities. For example, both non-responding and responding facilities must have mechanisms or procedures to notify emergency responders about accidental releases, and both sources must conduct and document annual coordination activities with local responders. Because the outcome of these coordination activities may result in different types of response arrangements involving regulated facilities and communities, EPA understands that a facility’s designation as “responding” or “non-responding” does not, by itself, explain all facets of emergency preparedness and response for the facility. However, these designations are still useful because “responding” facilities must meet certain requirements that “non-responding” facilities are not required to meet.
Responding facilities must comply with all of the emergency response program provisions of § 68.95, which include
- developing an emergency response plan,
- developing procedures for the use, inspection, and testing of emergency response equipment,
- conducting training for employees in relevant procedures, and
- updating the emergency response plan to reflect changes at the source
Any facility that plans to use its employees to take offensive response actions as a result of an accidental release at the source – which could include, for example, donning emergency air breathing apparatus to enter an area where a toxic gas leak has occurred intending to stop or control the release – would be expected to have obtained appropriate equipment and training, and to address these activities in its emergency response program, even if the facility is also relying on local responders to supplement its own response, or to manage off-site response actions such as evacuations and sheltering-in-place. Under § 68.96, responding facilities must implement an emergency exercise program involving notification, field, and tabletop exercises. In contrast, non-responding facilities are only required to perform annual notification exercises and are not required to perform field or tabletop exercises.
The rule’s emergency response requirements do not specify how responding facilities must respond to accidental releases. EPA recognizes that response strategies for responding sources may vary depending on the source, its location, the number and type of regulated substances and processes, available response resources, the surrounding community, and other factors. Regular coordination between facilities and local responders allows both parties to share information about response plans and resources. This is important because even in situations where regulated sources maintain full emergency response capabilities, local responders would still be responsible for managing the aspects of the response external to the source, such as community evacuations and sheltering-in-place and responding facilities may also need or request local response resources to assist with on-site aspects of the response.
EMERGENCY RESPONSE COORDINATION (§ 68.93)
For facilities with Program 2 or 3 covered processes, emergency response coordination with local officials must occur at least annually, and more frequently if necessary, to address changes at the facility, in the emergency response plan or emergency action plan, and in the community emergency response plan.
To begin coordination, you must open communications with local emergency planning and response officials, particularly your local emergency planning committee (LEPC) if one exists. Because your LEPC consists of representatives from many local emergency planning and response agencies, it is likely to be the best source of information about the critical emergency response issues in your community. However, in some cases, there may not be an active LEPC in your community. If so, or if your state has not designated your community as an emergency planning district under the Emergency Planning and
Community Right-to-Know Act (EPCRA), you will likely need to directly contact local agencies individually to determine which entities (e.g., fire department, emergency management agency., police department, civil defense office, public health agency, or hospital) have jurisdiction over emergency planning and the response of your facility.
Coordination MUST include providing to the local emergency planning and response organizations your
- facility’s emergency response plan (if one exists),
- the emergency action plan,
- updated emergency contact information, and
- other information necessary for developing and implementing the local emergency response plan
The purpose of the annual coordination is to allow you to update and discuss the information being provided to local authorities and to allow local authorities to provide you with updated information on how the source is addressed in the community emergency response plan. Coordination will also clarify the roles and responsibilities of local, state, and Federal responders and facility personnel in the case of an accidental release. Coordination efforts might also help a facility determine whether it will respond to accidental releases of regulated substances or rely on local response authorities.
The forum for coordination meetings is left up to the discretion of the owner or operator and local response authorities. You may choose to hold a meeting specifically for this purpose or combine the coordination meeting with another appropriate one, such as a regularly scheduled LEPC meeting if both parties agree. Although EPA recommends in-person meetings, where necessary, owners and operators and local authorities may hold meetings remotely (e.g., via conference call or webinar). You must document coordination with local authorities, including:
- The names of individuals involved and their contact information, and
- the dates and nature of coordination activities
Regardless of whether your community has an active LEPC, you should make good faith efforts to coordinate the activities. Suppose local emergency planning and response organizations decline to participate in coordination activities, or you cannot identify any appropriate local emergency planning and response organization with which to coordinate. In that case, you should document your coordination or research efforts and continue to attempt to perform coordination activities at least annually.
SAFTENG TIP: Send a certified letter to the Fire Chief annually asking for their participation.
NON-RESPONDING FACILITIES (§ 68.90(b))
EPA has adopted a policy for facilities that do not intend to respond to releases of regulated substances themselves (non-responding facilities), similar to that adopted by OSHA in its Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard (29 CFR 1910.120), which allows certain facilities to develop an emergency action plan (EAP under 1910.38) to ensure employee safety, rather than a full-fledged emergency response program.
EPA recognizes that, in some cases (particularly for retailers and other small operations with few employees), it may not be appropriate for employees to conduct response operations for releases of regulated substances. For example, it would be inappropriate and probably unsafe for an ammonia retailer with only one full-time employee to expect a tank fire to be handled without the help of the local fire department or other emergency responders. EPA does not intend to force such facilities to develop emergency response capabilities.
Suppose your employees do not respond to accidental releases of regulated substances. In that case, you need NOT comply with the additional emergency response program requirements in § 68.95, provided you annually coordinate with local response agencies to ensure that they will be prepared to respond to an emergency at your facility consistent with § 68.93. (You may want to briefly review the program design issues discussed in Section 8.4 prior to making this decision.)
This will help to ensure that your community has a strategy for responding to and mitigating the threat posed by a release of a regulated substance from your facility. To do so, you must ensure that you have set up a way to notify emergency responders when there is need for a response and that you perform annual notification exercises required under § 68.96(a) (discussed in Section 8.6). Effective communication with local responders is key to these coordination efforts. Refer to Section 8.1 for tips on effective communication with local responders and your surrounding community.
Source: https://www.epa.gov/sites/default/files/2013-11/documents/chap-08-final.pdf
NOTE this Document was updated in 2022 to reflect the RMP Amendments.