As anticipated, on Friday the U.S. Environmental Protection Agency (EPA) issued a proposed Risk Management Program (RMP) Safer Communities by Chemical Accident Prevention rule pursuant to the Clean Air Act. The proposed rule would reinstate certain provisions newly introduced to the RMP rule (originally promulgated in 1991) late in the Obama administration and subsequently removed by the Trump administration in 2019. The EPA has additionally added significant new requirements not originally in the 2017 draft RMP rule, including provisions aimed to further current policies on environmental justice and climate change. The proposed RMP rule also appears to draw influence from recommendations made by the Chemical Safety Board (CSB) as well as state updates to process safety regulations in the past decade, most notably the California Accidental Release Prevention Program (CalARP) and the California Refinery Process Safety Management (PSM) Standard.

These changes, including the addition of requirements regarding employee participation, public availability of information, inherent safety, third party auditing, facility siting and natural hazards consideration, as well as emergency response planning, will result in covered RMP facilities having to significantly revisit and revise their RMP programs and plans. Certain requirements also appear to be directly aimed at limiting stationary sources’ ability to privately manage their internal risk management decisions. For example, covered facilities would now be required to document any revisions between draft and final compliance audits and provide justifications for rejected RMP program recommendations.

According to EPA Administrator Michael Regan, “protecting public health is central to EPA’s mission, particularly as we adapt to the challenges of climate change, and the proposal announced today advances this effort, especially for those in vulnerable communities. This rule will better protect communities from chemical accidents, and advance environmental justice for communities that have been disproportionately impacted by these facilities.” EPA estimates the rule will cost approximately $77 million a year.

Comments on the proposed rule are due to EPA within 60 days of its publication in the Federal Register and may be submitted online, via mail, or hand-delivery.

What facilities are covered by EPA’s RMP rule?

The RMP rule applies to stationary source facilities with processes containing more than a threshold quantity of a regulated substance. Regulated substances and their threshold quantities are listed in 40 CFR § 68.130.

What new RMP requirements has EPA proposed?

Significant new requirements included in the proposed RMP rule (by Subpart, with proposed citations in Title 40) include:

Prevention Program (Subparts C and D)

  • Natural hazards and power loss
    • Explicit requirement that natural hazards, including from climate change, and loss of power must be addressed in Program 2 hazard reviews (§ 68.50(a)(5)) and Program 3 process hazard analyses (PHAs) (§ 68.67(c)(5)).
    • Requirement to justify in the Risk Management Plan when hazard evaluation recommendations are not adopted (§ 68.170(e)(7) for Program 2, § 68.175(e)(8) for Program 3).
  • Facility Siting
    • Requirement that facility siting (“including the placement of processes, equipment, and buildings within the facility, hazards posed by proximate facilities, and potential accidental release consequences to nearby public and environmental receptors”) be addressed in Program 2 hazard reviews (§ 68.50(a)(6)) and Program 3 PHAs (§ 68.67(c)(5)).
    • Requirement to justify in the Risk Management Plan when facility siting hazard recommendations are not adopted (§ 68.170(e)(7) for Program 2, § 68.175(e)(8) for Program 3).
  • Safer technologies and alternatives analysis (STAA)
    • Requirement to perform a STAA and consider practicability of inherently safer technologies for covered petroleum refining (NAICS Code 324) and chemical manufacturing (NAICS Code 325) facilities within one mile of another such facility, and for any covered hydrofluoric acid alkylation process classified under NAICS 324 (§ 68.67(c)(9)).
    • Requirement to identify in the Risk Management Plan when STAA recommendations are not adopted (§ 68.175(e)(8)).
  • Third-party compliance audits
    • Requirement to utilize a third-party that meets specific competency and independence requirements for the RMP-required compliance audit in the following circumstances:
      • Two RMP-reportable accidents from a covered process within five years;
      • One RMP-reportable accident from a covered process within five years at a Program 3 petroleum refining or chemical manufacturing facility within one mile of a similarly classified facility;
      • The implementing agency requires it because “conditions at the stationary source could lead to an accidental release” or when a previous third-party audit failed to meet the required competency or independence criteria, subject to the facility’s appeal (§§ 68.58 & 68.59 for Program 2, §§ 68.79 & 68.80 for Program 3).
    • Requirement to identify in the Risk Management Plan when third-party compliance audit recommendations are not adopted (§ 68.170(i) for Program 2, § 68.175(e)(8) for Program 3).
  • Root cause analysis (RCA) Incident Investigations
    • Requirement to perform a formal RCA incident investigation, including identification of the initiating event, direct and indirect contributing factors, and root causes, for RMP-reportable accidents (§ 68.60 for Program 2, § 68.81(h) for Program 3).
  • Employee participation
    • Requirement to develop an employee participation action plan, implement a process for employees and their representatives to anonymously report catastrophic hazards, accidents, or RMP non-compliance, and provide employees access to hazard reviews and other information required under the RMP (§§ 68.62 & 68.83).
    • For Program 3 facilities, a requirement to consult with employees and their representatives “on the conduct and development of process hazards analyses, and on the development of the other elements of process safety management,” and on resolving recommendations and findings of PHAs, compliance audits, and incident investigations (§§ 68.83(b)-(c)).
    • Also for Program 3 facilities, a requirement to provide stop work authority to employees and document and respond in writing within 30 days to respond to certain specified instances of stop work being exercised (§ 68.83(c)).
  • Hot work
    • Requirement to retain hot work permits for five years after completion of the work (§ 68.85).

Emergency Response (Subpart E)

  • Community Notifications
    • For non-responding RMP facilities, requirement to develop procedures for informing the public about accidental releases (§ 68.90).
    • Requirement to provide release notification data to local responders and to ensure a community notification system and procedures are in place for informing the public and response agencies of RMP-reportable accidents (§ 68.95).
  • Emergency Response Exercises
    • Requirement to perform RMP field exercises every 10 years unless local responders indicate that frequency is infeasible (§ 68.96(b)(1)).
    • Mandatory evaluation report within 90 days for emergency response exercises, including evaluation of the results and recommendations for improvement along with a schedule for resolution (§ 68.96(b)(3)).

Information Availability (Subpart H)

  • Enhanced information availability
    • Requirement that a covered facility provide within 45 days upon request to residents living with six miles of the facility chemical hazard information in the language requested, including names of regulated substances in a process, safety data sheets, accident history information, emergency response program information, scheduled exercises, and LEPC contact information. Covered facilities must also maintain an online notification that this information is available (§ 68.210).

When are covered facilities required to comply?

EPA has proposed the following timeframes in which stationary sources must comply with the new requirements:

  • For new STAA, incident investigation root cause analysis, third-party compliance audit, employee participation, emergency response public notification, exercise evaluation reports, and information availability provisions, facilities must comply within three years after the effective date of the final rule.
  • For emergency response field exercise frequency requirements, facilities must comply by March 15, 2027, or within 10 years of the date of an emergency response field exercise conducted after March 15, 2017 but before the publication of the proposed rule in the Federal Register.
  • For updates and resubmission of risk management plans with new data elements, facilities must comply within four years after the effective date of the final rule.