On March 14, 2016, EPA published in the Federal Register proposed rules to amend the Accidental Release Prevention Requirements of Risk Management Programs (RMP) under the Clean Air Act, Section 112(r)(7). See 81 Fed. Reg. 13638 (March 14, 2016). The proposed revisions are in response to Executive Order 13650 issued by President Obama on August 1, 2013 after the explosion at the West Fertilizer facility in West, Texas on April 17, 2013 that killed 15 people. The Executive Order directed the federal government to carry out a number of tasks to develop options that identify “improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations” according to EPA. EPA states that RMP regulations have been effective in preventing and mitigating chemical accidents in the United States but further protections could be gained through the advancement of process safety management based on lessons learned.
For compliance audits at certain process facilities, the proposed rules include changes that would require a third-party audit if an accidental release meeting certain criteria occurred or if an implementing agency required a third-party audit based on non-compliance with RMP requirements. A new section has been added governing third-party audits, including: competency provisions requiring a licensed professional engineer be part of the audit team; impartiality requirements such that an auditor cannot have provided research, development, design, construction or consulting services for the source three years before or after the audit and cannot provide advice on implementation of the findings or recommendations in an audit report. The auditor would be required to submit the audit report to the implementing agency at the same time, or before, the report is provided to the source. The proposed rule also affirmatively removes the attorney-client privilege from audit reports “even if written for or reviewed by legal staff.” Further, the source would be required to maintain copies of all draft third-party audit reports and provide draft reports to the implementing agency if requested.
At certain facilities, an incident report, rather than a summary, would be required after incident investigations. The report would include more information related to the incident, such as consequences of the incident, emergency response actions taken and factors contributing to the incident, and a root cause determination. “Root cause” is defined in the proposed rule as “a fundamental, underlying, system-related reason why an incident occurred that identifies a correctable failure(s) in management systems.”
The proposed rule also calls for new emergency response coordination activities, including exercises and drills with facility emergency response personnel, response contractors and local emergency response and planning officials. EPA proposed that all facilities would provide chemical hazard information for all regulated processes to the public in an easily accessible manner, such as a website, including safety data sheets, accident history information and emergency response program information. Certain facilities would have to provide additional information, including compliance audit reports, to the Local Emergency Planning Committee.
Comments on the proposed rule must be submitted to EPA by May 13, 2016.