Facilities subject to Section 112(r) of the Clean Air Act—better known as the Risk Management Program (RMP)—won a significant deregulatory victory with the EPA’s issuance of its RMP Reconsideration Rule. The Reconsideration Rule rescinds major portions of the RMP Amendments Rule the Obama EPA issued in January 2017.
The intent of the RMP is to prevent accidents at facilities that hold threshold amounts of hazardous chemicals and particularly to ensure that these facilities have plans in place to avoid off-site consequences from such an accident that would extend to the public.
In the Amendments Rule, the EPA sought to strengthen the RMP with new requirements affecting chemical process safety, the involvement of local emergency authorities in facility planning and response, and public awareness of chemical hazards at regulated sources. But the Agency now asserts that these and other provisions of the Amendments Rule placed unnecessary and redundant burdens on the regulated sector. The revised position was powerfully influenced by three petitions for reconsideration that industry organizations submitted to the EPA after the Amendments Rule was promulgated.
The principle compliance move the EPA says it intends to make as part of the Reconsideration Rule would focus the Agency’s energies on “case-specific oversight of those facilities that are performing poorly [rather than] over regulatory changes that increase compliance costs for the entire regulated community.” The new approach would involve “requiring additional safety measures as injunctive relief in enforcement actions” for the poorest RMP performers.
Scope of Reconsideration
The EPA summarizes its Reconsideration Rule thusly:
“The major provisions of this rule include rescinding amendments made to the Risk Management Program in 2017 relating to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and several other minor provisions. EPA is also modifying regulations relating to local emergency coordination, emergency response exercises, and public meetings after an accident, changing the compliance dates for some of these provisions and modifying risk management plan and air permit requirements relating to rescinded or modified provisions.”
Following are four provisions in the 2017 amendments industry petitioners found particularly burdensome and the EPA’s reasons for rescinding them.
The Amendments Rule would have required all RMP facilities to provide, upon request by any member of the public, certain information for all RMP-regulated processes. This included chemical hazard information,regulated substances information, accident history information, and information about the emergency response program.
The Reconsideration Rule reduces all these requirements to a public meeting the facility must hold no later than 90 days after any RMP-reportable accident. The EPA notes that the information included in the Amendments Rule is already available through various avenues (such as by visiting a federal RMP reading room, requesting information from a local emergency planning committee, or making a request under the Freedom of Information Act). But the Agency was concerned that the Amendments Rule would have allowed anonymous access to chemical hazard information in consolidated form that may have presented a more comprehensive picture of the vulnerabilities of a facility than would be apparent from any individual element.
“EPA is concerned that allowing anonymous access to sensitive chemical facility hazard information could potentially increase the risk of criminal acts and terrorism against regulated facilities,” states the Agency.
The Amendments Rule would have required facilities to contract with a third-party to conduct a compliance audit within 12 months after an RMP reportable accident or after an implementing agency determines that conditions at the facility could lead to an accidental release of a regulated substance or identifies problems with the prior third-party audit.
The EPA is rescinding all requirements for third-party compliance audits. The main reason appears to be the absence of requirements for a third-party audit under the Occupational Safety and Health Administration’s (OSHA) Process Safety Management (PSM) following an accidental chemical release. Much of the RMP is based on the PSM, and the EPA believes it is important to keep the two programs aligned.
“EPA therefore believes that we should not retain and put into effect changes to the prevention aspects of the Risk Management Program until we have a better understanding of OSHA’s plans for changes to the PSM standard so that we may move forward in a more coordinated fashion,” says the Agency.
The EPA adds that it will continue to include third-party audits as part of enforcement actions, when appropriate.
Root-Cause Incident Investigation
The Amendments Rule would have required facilities to conduct a root-cause analysis as part of an incident investigation following an incident that resulted in a catastrophic release or an incident that could reasonably have resulted in a catastrophic release (i.e., a near miss).
The EPA is rescinding all the incident investigation report elements added by the Amendments Rule. This includes rescinding the requirement to complete an investigation within 12 months after the incident, the requirement to provide a schedule for addressing recommendations in the investigation report, and the requirement to investigate catastrophic releases that result in a decommissioned or destroyed process.
The EPA concedes that a root-cause incident investigation can be useful in determining whether the cause of a release is accidental or intentional. The Agency says that facilities already conduct such analysis on their own. The EPA now says it prefers to return to the preamendments provisions that require RMP facilities with Program 2 or 3 processes to conduct incident investigations that include identification of contributing factors. Also, the EPA’s RMP guidance document already encourages owners and operators to identify root and underlying causes of incidents, says the EPA.
Again, the rescission is also intended to keep the RMP requirements closely aligned with those of OSHA’s PSM, which does not require the type of incident included the Amendments Rule.
Safer Technology and Alternatives Analysis
The Amendments Rule would have required thatProgram 3 facilities in the paper manufacturing, petroleum and coal products manufacturing, and chemical manufacturing sectors conduct and document a safer technology and alternatives analysis (STAA).
This Reconsideration Rule removes this requirement and reverts to the previous requirement that a process hazard analysis (PHA) be performed on all Program 3 processes and updated and reevaluated every 5 years. The EPA is concerned that the STAA requirement targets entire sectors rather than the facilities within those sectors that have problematic prevention programs.
Also, the Agency emphasizes that the 2017 provision does not require that facilities adopt the safer technologies and alternatives they review under the STAA requirement. The EPA says that it has no data from which to predict how many facilities might choose to implement these technologies and what those technologies might be. The Agency also believes that facilities are already investigating safer technologies and alternatives as part of their PHAs. Finally, the EPA says the STAA requirement is not a reasonable regulation because its costs are disproportionate to its benefits; indeed, the Agency notes that this requirement imposed the highest cost of any of the new provisions included in the Amendments Rule.