Regulatory Developments

RMP Amendments Delayed Until 2019

In a final rule, the EPA has delayed by 20 months its January 13, 2017, amendments to the Clean Air Act’s (CAA) Risk Management Program (RMP).

Seven days after the Obama EPA issued the amendments, the incoming Trump administration delayed their March 14, 2017, effective date until March 21, 2017. Then on March 16, 2017, the Agency issued a 90-day stay, pushing the effective date to June 19, 2017. With the current final rule, the amendments are now effective February 19, 2019. However, in light of the considerable influence of the industry organizations and states that have requested reconsideration of the amendments, it is possible that any RMP amendments that take effect in 2019 will have little resemblance to those promulgated under President Barack Obama. It is also possible that the amendments will be withdrawn in their entirety and that the Agency will initiate rulemaking to revise or withdraw other provisions of the original 1996 RMP regulations.

“This additional delay of the effective date enables EPA time to evaluate the objections raised by the various petitions for reconsideration of the Risk Management Program Amendments, provides a sufficient opportunity for public comment on the reconsideration in accordance with the requirements of CAA section 307(d), gives us an opportunity to evaluate and respond to such comments, and take any possible regulatory actions, which could include proposing and finalizing a rule to revise or rescind the Risk Management Program Amendments, as appropriate,” states the Agency. “During the reconsideration, EPA may also consider other issues, beyond those raised by petitioners, that may benefit from additional comment, and take further regulatory action.”

Added Requirements

Under the RMP, approximately 12,500 stationary sources with threshold amounts of listed chemicals used on-site in processes must assess the potential impact of releases of those chemicals; undertake steps to prevent those releases; plan for emergency response to releases; and summarize all this information in a risk management plan submitted to the EPA.

The amendments being delayed also required covered facilities to conduct root-cause analyses of both accidents and near accidents; have independent third parties conduct compliance audits if there has been a reportable accident or if an implementing RMP agency determines that a third-party audit is necessary based on information about the facility or about a prior third-party audit at the facility; engage in annual coordination with Local Emergency Planning Committees (LEPCs) or local emergency response officials to clarify response needs, emergency plans, roles, and responsibilities; and share emergency planning information with the LEPCs and also share information about chemical hazards and accident history with the public.

Information Sharing Opposed

In February 2017, major industry organizations calling themselves the RMP Coalition asked the EPA to reconsider the amendments. Shortly thereafter, 11 states also requested that the amendments be stayed and reconsidered. Generally, the petitioners were most concerned about the requirements to disclose internal information to LEPCs and have third parties conduct audits. The petitioners claimed that these provisions were not described when the amendments were proposed, and hence, there was no opportunity to comment on them. The petitioners also noted that the catastrophic explosion at the West Fertilizer Company facility in Texas in April 2013, which provided some impetus for the amendments, was later found to be an act of arson, not the result of safety mismanagement and, therefore, not a reasonable basis for some of the amendments.

Original RMP Is Working

Those opposed to the delay said it would result in a higher risk of accidents involving hazardous chemicals. The EPA disagreed, stating that the existing RMP rule remains in effect. One commenter noted that the rule has been effective and that between 2004 and 2013, there has been a decrease of over 60 percent of all RMP-reportable events. The Agency also notes that compliance with the major provisions of the amendments is not required until 4 years after their effective date. “So the EPA’s delay of that effective date has no immediate effect on the implementation of these requirements,” says the Agency.

The final rule delaying the effective date of the RMP amendments was published in the June 14, 2017, FR.

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