On December 21, 2016, the U.S. Environmental Protection Agency finalized amendments to its Risk Management Program (RMP). The EPA Administrator, Gina McCarthy, signed the final rule but it has not yet been published in the Federal Register.
The Accidental Release Prevention regulations under section 112(r) of the Clean Air Act, also called the Risk Management Program regulations, require covered facilities to develop and implement a risk management program and coordinate with state and local officials. Approximately 12,500 facilities are covered by the RMP and will be affected by the revised rule. These facilities include petroleum refineries, large chemical manufacturers, water and waste treatment systems, chemical and petroleum wholesalers and terminals, food manufacturers, packing plants and other cold storage facilities with ammonia refrigeration systems, and some gas plants.
Over the past decade, these RMP facilities have reported more than 1,500 accidents. These accidents resulted in nearly 60 deaths, 17,000 injuries, 500,000 people evacuated or told to shelter in place, and more than $2 billion in property damages. After a series of catastrophic incidents in 2013, including a tragic explosion at a fertilizer facility in West, Texas that killed 15 people, President Obama ordered the EPA to strengthen the RMP to improve safety and security at these facilities.
Consequently, the EPA issued a new rule that includes several changes to EPA’s accident prevention program requirements, emergency response requirements, and public availability of chemical hazard information requirements.
New Accident Prevention Program Requirements
- Under the new rule, facilities are required to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (i.e., a near miss).
- Facilities are required to contract with a third-party auditor (or a team led by a third-party auditor) to perform a compliance audit after an RMP reportable incident.
- Additionally, chemical manufacturers are required to conduct a safer technology and alternatives analysis (STAA) and evaluate the practicability of any inherently safer technology (IST) identified, as part of their process hazard analyses (PHA).
Revised Emergency Response Requirements
- Owners and operators of certain facilities are required to coordinate with local response agencies at least once a year to determine how the facility is addressed in its community emergency response plan and to ensure that local response organizations are aware of the regulated substances at the source, their quantities, the risks presented, and the abilities of the facility to respond to an accidental release.
- Certain facilities are required to conduct annual notification exercises to ensure emergency contact information is accurate and complete.
- Responding Facilities are also required to conduct full field exercises at least once every ten years and tabletop exercises at least once every three years.
Increased Availability Of Information
- The final rule requires all facilities to provide certain information to the public upon request. This information includes: chemical hazard information, accident history, dates of past emergency response exercises, emergency response program information, and contact information. Owners and operators are required to provide ongoing notification of the availability of this information to the public.
- Facilities are required to provide relevant emergency response information to local emergency response agencies as part of their annual coordination activities.
- Facilities are also required to hold a public meeting within 90 days of an RMP reportable event.
What This Means to You
The rule will become effective 60 days after publication in the Federal Register. Because it is not scheduled to take effect until at least a month into the new administration, there is a possibility of a regulatory rollback.
Scott Pruitt, the President-elect’s nominee for EPA Administrator, has been a strong critic of the proposed rule. In August, he called the proposal a terrorism risk, expressing concern that the rule would make information publically available could aid bad actors seeking to cause intentional releases of hazardous substances.
However, the final rule attempts to address these concerns. The final rule eliminates a proposed requirement to share chemical hazard information on facilities’ websites. Instead, facilities are only required to provide information about possible risks directly to local community members who request the information, making the information more difficult to access and requiring inquiring community members to give their names first.
Additionally, the proposed rule received considerable criticism from industry for its third-party facility audit requirements. The final rule lessens the burden for facilities, allowing in-house teams to be led by third-party auditors, removing the Professional Engineer requirement, and eliminating the requirement to submit all auditor reports to implementing agencies.
Given these changes from the proposed rule, it remains to be seen how the new rule will be addressed by the new administration.
For more information about EPA’s Risk Management Program and how it impacts your business, contact a member of Husch Blackwell’s Environmental team.