The U.S. Environmental Protection Agency (EPA) announced on August 19, 2022, that it will propose revisions to the Risk Management Program (RMP) rule to protect further vulnerable communities from chemical accidents, especially those living near facilities with high accident rates. According to EPA, the “Safer Communities by Chemical Accident Prevention” (SCCAP) rule “would strengthen the existing program and includes new safeguards that have not been addressed in prior RMP rules, such as enhanced employee participation and transparency for communities on safety decisions.” EPA has posted a prepublication version of the proposed rule. Publication of the proposed rule in the Federal Register will begin a 60-day comment period. EPA will hold three virtual public hearings on September 26, 27, and 28, 2022. Registration for the hearings will be available upon publication of the proposed rule in the Federal Register.
Background
Under Section 112(r) of the Clean Air Act, owners or operators of facilities that produce, handle, process, or store any toxic and flammable substance listed in 40 C.F.R. Section 68.130 in an amount above the threshold quantity (TQ) specified for that substance are required to develop and implement a risk management plan. 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 an 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.
EPA amended the RMP rule on January 13, 2017, as a result of former President Barack Obama’s Executive Order (EO) 13650, “Improving Chemical Facility Safety and Security,” which directed EPA and other federal agencies to modernize policies, regulations, and standards to enhance safety and security in chemical facilities. 82 Fed. Reg. 4594. The 2017 rule contained various new provisions applicable to RMP-regulated facilities addressing prevention program elements (safer technology and alternatives analysis (STAA); incident investigation root cause analysis; and third-party compliance audits), emergency response coordination with local responders (including emergency response exercises), and availability of information to the public.
EPA received three petitions for reconsideration of the 2017 rule, and in December 2019, EPA issued a final rule reconsidering the changes made in January 2017. 84 Fed. Reg. 69834. According to EPA, the 2019 reconsideration rule rescinded certain information disclosure provisions of the 2017 amendments rule, removed most new accident prevention requirements added by the 2017 rule, and modified other provisions of the 2017 rule. EPA notes that there are petitions for judicial review of both the 2017 amendments and the 2019 reconsideration rules. The 2019 reconsideration rule challenges are being held in abeyance until October 3, 2022, by which time the parties must submit motions to govern. The case against the 2017 amendments rule is in abeyance pending resolution of the 2019 reconsideration rule case.
On January 20, 2021, President Joseph Biden issued EO 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” EO 13990 directed federal agencies to review existing regulations and take action to address priorities established by the current Administration, including bolstering resilience to the impacts of climate change and prioritizing environmental justice (EJ). As a result, EPA was tasked to review the current RMP regulations.
EPA states that while it reviewed the RMP rule under EO 13990, the EO did not specifically direct it to solicit public comment. Nevertheless, EPA held virtual public listening sessions in 2021 and opened a docket for public comment. In its request for public comment, EPA asked for information on the adequacy of revisions to the RMP regulations completed since 2017, incorporating consideration of climate change risks and impacts into the regulations and expanding the application of EJ. Information collected through these comments has informed the review.
Proposed Rule
The proposed rule would apply to facilities subject to the chemical accident prevention requirements at 40 C.F.R. Part 68. EPA states that according to the latest RMP reporting as of December 31, 2020, these facilities range from petroleum refineries and large chemical manufacturers to water and wastewater treatment systems; chemical and petroleum wholesalers and terminals; food manufacturers, packing plants, and other cold storage facilities with ammonia refrigeration systems; agricultural chemical distributors; midstream gas plants; and a limited number of other sources, including federal installations, that use RMP-regulated substances.
EPA’s fact sheet for regulated facilities includes the following summary of the proposed revisions (* indicates provisions that have not been addressed in prior RMP rules):
Prevention Program (Subparts C and D)
- Natural hazards and power loss*: (1) Adding amplifying regulatory text to emphasize that natural hazards (including those that result from climate change) and loss of power are among the hazards that must be addressed in Program 2 hazard reviews and Program 3 process hazard analyses. (2) Requiring a justification in the risk management plan when hazard evaluation recommendations are not adopted.*
- Facility Siting: (1) Emphasizing that facility siting should be addressed in hazard reviews and explicitly define the facility siting requirement for Program 2 hazard reviews and Program 3 process hazard analyses. (2) Requiring a justification in the risk management plan when facility siting hazard recommendations are not adopted.*
- STAA: (1) Requiring a STAA and practicability of inherently safer technologies and designs considered for (a) RMP-regulated processes classified under North American Industrial Classification System (NAICS) codes 324 and 325 within one mile of another RMP-regulated facility that also has a process classified under NAICS code 324 or 325 and (b) RMP-regulated hydrofluoric acid alkylation processes classified under NAICS code 324. (2) Requiring a justification in the risk management plan when STAA recommendations are not adopted.* Increased access to this information promotes transparency and gives more opportunities for the public to be involved.
- Root Cause Analysis: Requiring a formal root cause analysis incident investigation when facilities have had an RMP-reportable accident.
- Third-party Compliance Audits: (1) Requiring the next scheduled compliance audit be a third-party audit when an RMP-regulated facility experiences: (a) two RMP-reportable accidents within five years; or (b) one RMP-reportable accident within five years by a facility with a Program 3 process classified under NAICS code 324 or 325 within one mile of another RMP regulated facility that also has a process classified under NAICS code 324 or 325. (2) Requiring a justification in the risk management plan when third-party compliance audit recommendations are not adopted.*
- Employee Participation*: (1) Requiring employee participation in resolving process hazard analyses, compliance audit and incident investigation recommendations and findings. (2) Outlining stop work procedures in Program 3 employee participation plans. (3) Requiring Program 2 and Program 3 employee participation plans to include opportunities for employees to report anonymously RMP-reportable accidents or other related RMP non-compliance issues.
Emergency Response (Subpart E)
- Community Notification of RMP Accidents*: (1) Requiring non-responding RMP facilities to develop procedures for informing the public about accidental releases. (2) Requiring release notification data be provided to local responders. (3) Ensuring a community notification system is in place for notification of RMP-reportable accidents.
- Emergency Response Exercises: (1) Requiring a ten-year frequency for field exercises unless local responders indicate that frequency is infeasible. (2) Requiring mandatory scope and reporting requirements for emergency response exercises.
Information Availability (Subpart H, Section 68.210)
- Enhanced Information Availability*: New requirements for the facility to provide chemical hazard information upon request to residents living within six miles of the facility, in the language requested. Under the current regulation, facilities are not required to provide this information.
Other Areas of Technical Clarification (Subparts A, C, D)
The proposed rule would make minor regulatory edits to:
- Require Program 3 process safety information be kept up to date;
- Make Program 2 and Program 3 requirements consistent for recognized and generally accepted good engineering practices (RAGAGEP);
- Retain hot work permits for five years;
- Further define the “storage incident to transportation” term and the retail exemption; and
- Require RAGAGEP review in process hazard analyses.
Proposed Compliance Dates for the Proposed Changes
EPA will propose to require that regulated sources comply with:
- New STAA, incident investigation root cause analysis, third-party compliance audit, employee participation, emergency response public notification, exercise evaluation reports, and information availability provisions, three years after the effective date of the final rule.
- Revised emergency response field exercise frequency provision by March 15, 2027, or within ten years of the date of an emergency response field exercise conducted between March 15, 2017, and the date of publication of the proposed rule in the Federal Register.
- Updates and resubmission of risk management plans with new and revised data elements, four years after the effective date of the final rule.
Estimated Costs for the Proposed RMP SCCAP Rule
EPA estimates the rule will cost approximately $77 million a year.
Commentary
In its proposed rule, EPA appears to try to address some of the EJ aspects of facility siting, raising the burden for RMP-governed facilities that are near facilities managing similar hazards. This reflects the Biden Administration’s commitment to EJ.
EPA’s proposal to include natural hazards and power loss is a sensible reaction to incidents in the past few years in which facilities have been flooded, damaged by storms, or lost power, leading to loss-of-control accidents. More frequent extreme weather events increase the risk of such accidents. How much additional cost must be borne by facilities to address those risks remains to be seen. Presumably, such costs will be compared to the benefits from the avoidance of accidents in the Regulatory Impact Analysis.
As with all rulemakings, Bergeson & Campbell, P.C. urges stakeholders to comment on the rule, either individually or through a consortium or trade association. It is critical that EPA receive specific information during the comment period so that such information can be considered appropriately. Stakeholders should not assume that another party will represent their interests.