February 08, 2017

New EPA Risk Management Plan Amendments Face 'Trumped' Future

The Goods, Kentucky Association of Manufacturers, January 2017

Days before President Trump was sworn in, the U.S. Environmental Protection Agency (EPA) published amendments to the Risk Management Plan (RMP) rule, which implements Section 112(r) of the Clean Air Act. (82 Federal Register 4594, January 13, 2017). The RMP rule requires facilities that use extremely hazardous substances to develop Risk Management Plans. The Plans help local emergency response personnel prepare for and respond to chemical emergencies.

The amendments stem from an Executive Order issued by President Obama in 2013 following a deadly explosion at a fertilizer plant in West, Texas. The amendments include key changes to the RMP rule’s incident investigation and accident history requirements and the emergency response provisions. In addition, the amendments expand obligations relating to the public availability of information and purport to streamline and clarify the existing rule. EPA believes the amendments will help to reduce the roughly 1,500 accidents reported by facilities subject to RMP requirements over the last 10 years.

However, the amendments face an uncertain future in the new Trump Administration. Oklahoma Attorney General Scott Pruitt, whom President Trump has nominated to serve as Administrator of the EPA, has criticized the amendments publicly in the past. Due to the change in presidential administrations, it is not clear whether the amendments will be implemented by EPA. Among the possible outcomes, Congress might rescind the rule using the Congressional Review Act, EPA might stay the rule and then unilaterally seek to repeal it through amendment, or the rule might be challenged, either through a petition for reconsideration to EPA or a petition for review by the federal courts. The amendments are scheduled to go into effect on March 14, 2017. If that happens, the amendments have the potential to significantly affect the 12,500 facilities in the United States that are subject to the RMP program.

The key changes made by the amendments include the following.

Accident Prevention Program Revisions

The RMP rule currently divides affected sources into three program categories (Programs 1, 2, and 3). The most highly regulated category is Program 3, which includes facilities subject to the Occupational Safety and Health Administration (OSHA) Process Safety Management Standard (PSM) standard and specific types of facilities by NAICS code. Under the amended rule, Program 2 and 3 facilities, will be required to conduct a root cause analysis as part of the facility’s investigation of a catastrophic release or any incident that could have reasonably resulted in a catastrophic release (i.e., a near-miss) during the facility’s hazard reviews and process hazard analyses (PHAs).

Program 2 and 3 facilities will also be required to conduct independent third-party audits when they have an RMP reportable accident or when an implementing agency determines that an audit is needed based on conditions that could lead to an accidental release or problems with a prior third-party audit.

A subset of Program 3 facilities – those in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) – will be required to conduct a safer technology and alternatives analysis (STAA) as part of the PHA.

Emergency Response Requirements Revisions

Program 2 and 3 facilities will be required to coordinate with local emergency response agencies at least once a year to determine how the facility is addressed in the community emergency response plan and to ensure that appropriate resources and capabilities are in place to respond to an accidental release of a regulated substance. Facilities will be required to document information about this coordination, including the names of individuals involved in coordination and their contact information, dates of coordination activities, and the nature of coordination activities.

Program 2 and 3 facilities will also be required to conduct notification exercises once a year to ensure that their emergency contact information is accurate and complete. In addition, certain “responding facilities” will be required to conduct field and tabletop exercises, every five and 10 years, respectively. The field exercises must involve a simulated accidental release of a regulated substance and the tabletop exercises must include discussions of emergency response procedures. Facilities will be required to prepare an exercise evaluation report within 90 days of each field and tabletop exercise.

Public Availability of Information

Perhaps the most controversial aspect of the amendments is the obligation that facilities will be required to make certain information available to the public upon request. This data includes information about regulated substances, their safety data sheets, accident history information, the emergency response program, and exercises. In conjunction with this requirement, facilities must provide ongoing notification of the availability of this information through the company website, social media, or other publicly accessible means. Opponents to this provision believe such data availability will result in significant security concerns by providing terrorists or others with the information needed to cause intentional releases of dangerous materials.

The amendments also require facilities to hold a public meeting for the local communities within 90 days of any RMP reportable accident to share information about the accident, including the chemicals involved and quantities released; on-site and offsite impacts; and operational changes that have resulted from the investigation of the release.

EPA will also require facilities to share data that is relevant to emergency response planning as part of the coordination activities that occur annually with local emergency response agencies.

Streamlining, Clarification, and Technical Corrections

EPA adopted a number of changes that purport to streamline and clarify the existing rule. Among these changes, EPA has added several RMP data elements that must be reported in RMP submissions, so that they will address the new requirements in amendments.

Although the future of these amendments is unclear, affected facilities should begin taking a hard look at the requirements so that they can understand their new obligations under the RMP program. EPA previously announced a new National Enforcement Initiative related to reducing risks of accidental releases at industrial and chemical facilities. EPA is expected to use these amendments along with increased inspection and enforcement at regulated facilities to meet its goal of reducing accidents under this initiative.

This article was originally published in The Goods, a publication of the Kentucky Association of Manufacturers, ©2017 and is republished with the permission of the Kentucky Association of Manufacturers.

Related Capabilities
Environmental, Natural Resources, & Energy Environmental Transactions & Due Diligence Environmental Litigation Sustainability & Emerging Technology Regulatory Counseling, Permitting and Compliance Administrative Law