On August 31, 2022, the EPA published proposed amendments to its Clean Air Act (CAA) Risk Management Program in the Federal Register. The proposed revisions include changes to the accident prevention program requirements, enhancements to the emergency preparedness requirements, increased public availability of chemical hazard information, and changes/points of clarification to certain regulatory definitions. These proposed amendments seek to improve chemical process safety; assist in planning, preparedness, and responding to Risk Management Program-reportable accidents; and improve public awareness of chemical hazards at regulated sources.
Authority for the Risk Management Program falls under Section 112(r) of the CAA, which requires the EPA to enact regulations for facilities holding more than a threshold amount of regulated substances to develop and submit a risk management plan (RMP) that:
- Identifies the potential effects of a chemical accident,
- Identifies steps the facilities are taking to prevent an accident, and
- Spells out emergency response procedures should an accident occur.
Each plan must include:
- A hazard assessment that details the potential effects of an accidental release, an accident history of the last 5 years, and an evaluation of worst-case and alternative accidental releases;
- A prevention program that includes safety precautions and maintenance, monitoring, and employee training measures; and
- An emergency response program that spells out emergency health care, employee training measures, and procedures for informing the public and response agencies (e.g., the fire department) should an accident occur.
“The proposed amendments would require [Risk Management Program] facilities to address certain risks EPA believes are associated with climate change and environmental justice,” says the National Law Journal. “The proposed accident prevention program, emergency response provisions, and information availability requirements would provide more information and greater scrutiny on potential impacts to certain communities that face risks from accidental releases.”
Accident prevention program
Under the proposed revisions, facilities subject to Risk Management Program regulations will be required to add RMPs for external events such as natural hazards, including those caused by climate change.
The EPA is proposing to emphasize that Program 2 hazard reviews and Program 3 process hazard analyses (PHAs) identify and address natural hazards, loss of power, and facility siting to prevent or minimize accidental releases of regulated substances. The Agency is also proposing to require the owner or operator to report any recommendations arising from these evaluations that are declined, along with the owner’s or operator’s justification for declining them, within the RMP submitted to the EPA.
Safer Technologies and Alternatives Analysis (STAA)
The EPA is proposing a requirement in 40 Code of Federal Regulations (CFR) 68.67(c)(9) for some Program 3-regulated processes to consider and document the feasibility of applying safer technologies and alternatives as part of their PHA.
This requirement would apply to petroleum, coal and chemical manufacturing processes that are located within 1 mile of another Risk Management Program-regulated facility with the same processes, and all sources with petroleum and coal products processes using hydrogen fluoride in an alkylation unit (approximately 45 facilities) regardless of their location in a densely co-located area.
Root cause analysis
The EPA is proposing to require all facilities with Program 2 and 3 processes to conduct a root cause analysis as part of an incident investigation for a Risk Management Program-reportable accident as defined under 40 CFR 68.42. This includes requiring the root cause analysis to include specific elements, requiring the use of a recognized investigation method, and requiring that investigations be completed within 12 months.
“The rule would define a root cause as a ‘fundamental, underlying, system-related reason why an incident occurred,’” advises a Lexology article by Beveridge & Diamond P.C. “In its discussion of when root cause analyses should be required, EPA considers ‘near miss’ incidents and asks for public comment on a definition of ‘near miss’ that ‘would address difficulties in identifying the variety of incidents that may occur at [Risk Management Program] facilities that could be near misses that should be investigated.’”
The EPA is proposing to add additional regulatory provisions to the employee participation requirements for owners and operators of regulated facilities with Program 2 and Program 3 processes. Specifically, the proposed rules would require employers to:
- Consult with employees when making decisions on implementing recommendations from PHAs, compliance audits, and incident investigations.
- Provide employees with the opportunity to stop work under certain circumstances.
- Provide opportunities for employees to report late or unreported accidents and other areas of Risk Management Program noncompliance to the EPA and other relevant authorities.
Third-party compliance auditing
“The proposed rule would reimpose third-party compliance auditing requirements that were in the 2017 amendments and rescinded in the 2019 amendments,” Beveridge & Diamond adds. “EPA proposes to require Program 2 and 3 sources to conduct audits using third-party auditors after certain qualifying release events, or when EPA or an implementing state agency determines that conditions exist that ‘could lead’ to an accidental release.”
Community information requirements
The EPA is proposing to amend 40 CFR 68.210 to allow the public to request specific chemical hazard information if they reside within 6 miles of a facility. This radius will allow information access for those located within worst-case-scenario impact zones while not requiring disclosure to everyone. If a facility were to receive such a request, it would be required to provide certain chemical hazard information and access to community emergency preparedness information.
Emergency response provisions
The proposed regulations will require impacted facilities to have a community notification system in place and to have procedures in place to inform the public and the appropriate federal, state, and local emergency response agencies about accidental releases. This includes making relevant release data available to local responders.
The proposed amendments would also require all facilities with Program 2 and Program 3 processes that are subject to the emergency response program requirements of subpart E (i.e., the responding stationary source) to, at a minimum, conduct field exercises involving a simulated accidental release of a regulated substance once every 10 years unless local responders indicate (in writing) that this frequency is impractical. These exercises will require evaluation reports to be maintained in a consistent manner.
Comments on the proposed regulations will be accepted at regulations.gov under Docket #EPA-HQ-OLEM-2022-0174 until October 31, 2022.