EPA Seeking Public Comment on Significant Revisions to the RMP Program
On August 31, 2022, the United States Environmental Protection Agency’s (EPA) proposed revisions to the Risk Management Program (RMP) regulations were published in the Federal Register, kicking off a 60-day public comment period which ends on October 31, 2022. This proposal, known as the Safer Communities by Chemical Accident Prevention (SCCAP) Rule, includes a number of requirements that were originally promulgated by the Obama EPA in 2017 and subsequently rolled back during the Trump Administration. This proposed rule, however, is not just a “do-over.” If finalized, this proposal would newly require RMP facilities to consider potential impacts of climate change and environmental justice concerns when performing hazard reviews. The proposal also contains new employee participation requirements and enhanced community notification requirements. If finalized, this proposal will certainly impose new costs on RMP facilities, which will need to update their RMPs to consider new data elements, prepare additional reports, and implement or update their procedures for community notification.
Under Section 112(r) of the Clean Air Act, owners and operators of stationary sources that have processes containing greater than threshold amounts of certain regulated substances are required to prepare and implement RMPs to prevent or minimize accidental releases, and to promptly provide emergency response to protect human health and the environment. In the waning days of the Obama Administration, EPA issued a controversial regulation updating RMP requirements (the 2017 RMP Rule). After President Trump took office, several petitions to review the 2017 RMP Rule were submitted to EPA, and in December 2019, EPA issued the 2019 RMP Reconsideration Rule which rescinded many of the 2017 changes, in part because the revised requirements would result in unnecessary costs. Both the 2017 and 2019 rules have been challenged in court.
On January 20, 2021, President Biden issued Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” This executive order directed Federal agencies to review existing regulations and take action, in part, to bolster resilience to the impacts of climate change and prioritize environmental justice. The current RMP proposal is an outgrowth of both Executive Order 13990, and also a February 2022 Government Accountability Office (GAO) report recommending that EPA amend the RMP rules to ensure that affected facilities were considering the risks associated with climate change. As detailed below, this proposed rule re-establishes many of the 2017 RMP Rule provisions that were rescinded in the 2019 Reconsideration Rule, albeit some with modifications, and it addresses the climate change and environmental justice concerns that were raised in Executive Order 13990 and the GAO report.
Key Elements of the Proposed SCCAP Rule
The proposed SCCAP rule includes the following notable requirements:
- Consideration of Natural Hazards and Potential Power Loss: This proposal clarifies the existing regulatory text to emphasize that both Program 2 hazard reviews and Program 3 process hazard analyses must address risks associated with natural hazards and power losses, including those associated with climate change. Additionally, a facility’s RMP must include a justification for any hazard evaluation recommendations that are not adopted.
- Facility Siting: Stationary source siting is already an element considered in Program 2 hazard reviews and Program 3 process hazard analyses, but this proposal emphasizes this requirement and further explains that siting evaluations for Program 2 and 3 facilities must address the placement of processes, equipment, buildings, and hazards posed by proximate facilities, and accidental release consequences posed by proximity to the public and public receptors.
- Safer technologies and alternatives analysis (STAA): The STAA requirements of the proposed rule would only apply to a small subset of RMP sources, namely petroleum and coal products manufacturing processes and chemical manufacturing processes located within one mile of another facility using the same processes and regulated by the RMP. Under these proposed requirements, subject facilities would be required to consider and document in their process hazard assessment the feasibility of applying safer technologies and alternatives in their operations. EPA is also proposing that facilities with petroleum and coal products processes using hydrofluoric acid (HF) in an alkylation unit (approximately 45 facilities) consider safer alternatives to HF alkylation.
- Root cause analysis: The proposal would reestablish the requirement in the 2017 RMP Rule that all facilities with Program 2 or 3 processes conduct a root cause analysis incident investigation following an RMP-reportable accident. The proposal defines "root cause" and provides that the root cause analysis must be conducted using a recognized method or approach as soon as reasonably practicable but in most instances, no later than 12 months after the incident. EPA also seeks comments in the proposal about whether to define “near miss” to better clarify those instances where a near miss incident should be investigated.
- Third-party compliance audits: The proposal also reestablishes 2017 RMP Rule requirements related to the conduct of third-party compliance audits after RMP reportable incidents with some modifications. The proposed SCCAP would generally require RMP facilities that experience two RMP-reportable accidents within five years to conduct a third-party audit at their next scheduled audit. This is a change from the 2017 RMP Rule where a single RMP event triggered such an audit. For facilities with petroleum and coal products manufacturing and chemical manufacturing Program 3 processes located within one mile of another facility using the same processes and regulated by the RMP, one RMP-reportable accident within five years by a facility would trigger a third-party compliance audit. Additionally, the owners or operators must include a justification for any third-party issued compliance findings that are not adopted.
- Employee participation: The proposed SCCAP rule includes new requirements giving employees a greater voice in the RMP process. Specifically, under the proposal, employees at facilities with Program 2 and 3 processes must be consulted on implementation of process hazard analysis, compliance audit, and incident investigation recommendations; have the opportunity to stop work under certain circumstances; and have opportunities to report late or unreported accidents and other areas of RMP non-compliance to EPA or other regulatory authorities.
- Community Notification of RMP Accidents: During the EPA listening sessions related to potential revision of the RMP rules, commenters pointed out that residents who live near RMP facilities that experienced release incidents often did not learn of the event until hours later when reported by television or media, and this type of delay has created fear in the communities. To address this concern, EPA is proposing to require non-responding RMP facilities to develop procedures for informing the public about accidental releases and to amend the public notification requirements applicable to responding RMPs. Under the proposal, the public must be promptly notified of releases.
- Emergency Response Exercises: The proposal requires RMP facilities to conduct field exercises with local responders at least once every ten years. This is a change from the current regulation that requires consultation with local officials to establish an appropriate frequency for exercises. The proposal further mandates the elements to be included in field and tabletop exercise reports.
- Enhanced Information Availability: The proposal requires RMP facilities to provide specific chemical hazard information and access to community emergency preparedness plans upon request to residents living with six miles of the facility, in the language requested. Under the current regulation, facilities are not required to provide this information.
- Proposed Compliance Dates: EPA has proposed the following dates for compliance with the requirements of the proposed SCCAP rule:
- Compliance with the STAA, root cause analysis, third-party compliance audit, employee participation, emergency response public notification, exercise evaluation reports, and information availability provisions must be achieved three years after the effective date of the final rule;
- Compliance with the field exercise requirements must be achieved by March 15, 2027, or within ten years of a field exercise conducted between March 15, 2027 and August 31, 2022; and
- Update and submittal of new RMPs that meet the requirements of the regulation must occur four years after the effective date of the final rule.
Implications of the Proposed SCCAP Rule
Since the proposed SCCAP rule contains many of the hot button elements of the 2017 RMP Rule, like the requirements related to performance of root cause analyses, third-party audits, and increased scope of public access to information, it will likely be as controversial as its predecessor. In addition, this proposal also adds climate change and environmental justice considerations to the mix. While EPA’s proposal to require consideration of natural hazards and potential power loss appears timely and appropriate given the number of extreme weather events and wildfires experienced over the past few years, the enhancements regarding consideration of potential impacts on environment justice communities may be challenging – particularly for RMP facilities in industrial corridors where there are multiple similar facilities. The proposed emergency notification provisions, which would require facilities to provide “best estimates of the nature of the release” during an event also raise concerns regarding accuracy of the initial information to be provided.
Public Comment on Proposed Rule
The 60-day comment period for this proposed rule ends on October 31, 2022. EPA will likely receive a large number of comments due the onerous nature and security concerns raised by some of the proposed revisions.
If you have any questions concerning this proposed rule and how it may impact you, or if you would like to submit comments on this proposal, please contact your Quarles & Brady attorney or:
- Cynthia A. Faur: (312) 715-2609 / firstname.lastname@example.org
- Lauren R. Harpke: (414) 277-5158 / email@example.com