On Wednesday, December 21, 2016, EPA issued a final rule that overhauls its Risk Management Plan (RMP) facility accident prevention program. A 2013 executive order issued by the Obama Administration following a chemical release at a Texas fertilizer facility required EPA to promulgate the rule.
EPA proposed changes to the RMP regulations on March 14, 2016 (Environmental Law & Policy Monitor article). With a few exceptions, EPA’s final rule is largely consistent with the proposal.
The rule is designed to reduce the risks of accidents in several ways. The most significant revision relates to accident prevention programs. The final rule requires facilities with Program 2 or 3 processes to conduct root cause analyses as part of investigations following a catastrophic release or “an incident that could have reasonably resulted in a catastrophic release” (i.e., near miss). The stated intent of this requirement is to reduce the number of chemical accidents through identifying and addressing their causes. While EPA’s March proposal revised the “catastrophic release” definition, the final rule maintains the existing definition, which is “a major uncontrolled emission, fire, or explosion, involving one or more regulated substances that presents imminent and substantial endangerment to public health and the environment.”
The rule also requires facilities with Program 2 or 3 processes to contract with independent parties to conduct compliance audits after reportable accidents. Prior to this rule, compliance audits could be self-implemented. Also, facilities with Program 3-regulated processes at paper, petroleum, coal products, and chemical manufacturing facilities must now conduct technology and alternatives analyses to evaluate the practicability of any inherently safer technology or design that could be implemented to minimize hazards. “Inherently Safer Technology or Design” is defined as “risk management measures that minimize the use of regulated substances, substitute less hazardous substances, moderate the use of regulated substances, or simplify covered processes in order to make accidental releases less likely, or the impacts of such releases less severe.”
The rule also revises emergency response requirements. The rule requires owners to coordinate with local emergency response agencies at least once a year to confirm the proper application of the community emergency response plan and ensure that local response organizations are aware of substances stored onsite. Additionally, the rule requires facilities with Program 2 or 3 processes to conduct notification exercises annually to ensure that their emergency information is accurate and complete. These facilities must also conduct full field and tabletop exercises. While EPA’s March proposal required full field exercises once every five years and tabletop exercises annually in other years, the final rule lessens the frequency and only requires full field exercises at least once every ten years and tabletop exercises at least once every three years. The exact frequency of these exercises will be determined in consultation with local emergency response officials.
Finally, the rule increases facilities’ obligations to provide information to the public. The rule seeks to “enhance the public availability of chemical hazard information by requiring facility owners to provide certain basic information to the public upon request and provide ongoing notification of the availability of such information through publicly-accessible means. Facilities now also must hold public meetings within 90 days of reportable accidents. EPA’s March proposal would have required public meetings within 30 days of reportable accidents.
The rule indicates it will be effective sixty days after Federal Register publication (which has not yet occurred), but the incoming Trump administration is widely expected to block its implementation. Since the rule will not be effective until after the transition of power, the incoming Administration could simply rescind it or Congress could claw the rule back pursuant to the Congressional Review Act.
A copy of the rule can be found here. For more information on the rule or its implications, please contact Randy Brogdon, Angela Levin, Buck Dixon, or Rich Pepper.