The U.S. Environmental Protection Agency has released a final rule updating the Accidental Release Prevention rules at 40 C.F.R. Part 68, which implement the Clean Air Act Section112(r)(7) risk management planning program. A pre-publication copy of the rule can be accessed here.
EPA’s final rule is a product of substantial controversy and culminates an administrative rulemaking process that spanned several years and generated over 61,500 public comments from various stakeholders, including government agencies, industry, and environmental groups. As discussed below, the final rule includes changes to the accident prevention program requirements, new emergency response requirements, and increased public availability of chemical hazard information.
The final rule is scheduled to go into effect sixty days after publication in the Federal Register. If that happens, it has the potential to significantly affect the 12,500 facilities in the United States that are subject to the RMP program. The final rule faces an uncertain future in the Trump Administration, especially in light of past criticism of the proposed rule by Oklahoma Attorney General Scott Pruitt, whom President-elect Trump has nominated for EPA Administrator as of the publication date of this summary piece.
Background on Rulemaking
EPA’s rulemaking arose out of the West, Texas ammonium nitrate warehouse explosion and fire in April, 2013. That incident involved an antiquated wooden warehouse facility that was operated largely outside the Part 68 framework. Viewed at the time as a preventable accident (though now known as caused by arson), President Obama directed that “the Administrator of EPA and the Secretary of Labor shall review the chemical hazards covered by the Risk Management Program (RMP) and the Process Safety Management Standard (PSM) and determine if the RMP or PSM can and should be expanded to address additional regulated substances and types of hazards.” See Executive Order 13650.
The Occupational Safety and Health Administration (OSHA) responded rapidly to the Executive Order, issuing a Request for Information in December 2013 about potential changes to its process safety management standard (PSM). EPA followed more than eight months later with its separate RFI, asking for information on many of the same topics that OSHA had inquired about, plus several others. Although OSHA took an early lead in the rulemaking efforts, EPA stepped out in front of OSHA in March 2016 by issuing a proposed rule. According to the most recent Regulatory Agenda, OSHA considers its proposed rule to be a “long-term action” for which it does not have a planned date.
Coordination among the agencies on these rulemakings is more than just a function of the Executive Order. Under the Federal Clean Air Act, Section 112(r)(7)(D) requires EPA to consult with both the Secretary of Labor and the Secretary of Transportation in any RMP rulemaking, and it requires EPA to coordinate any RMP provisions with any requirements established for comparable purposes by OSHA or the Department of Transportation.
EPA’s proposed rule sought significant programmatic changes to prevention program requirements (including incident investigation and accident history requirements, third-party compliance audits, and safer technology and alternatives analyses), emergency response preparedness requirements, and information availability requirements. The proposal was also intended to streamline, clarify, and make technical corrections to a number of existing RMP requirements. Further discussion and analysis of EPA’s proposed rule is available here.
The RMP rule currently divides affected sources into three program categories (Programs 1, 2, and 3). The most highly regulated category is Program 3, which includes facilities subject to the OSHA PSM standard and specific types of facilities by NAICS code. Given that the genesis of this rulemaking was the West, Texas warehouse explosion involving ammonium nitrate, it is noteworthy that EPA neither proposed nor ultimately added ammonium nitrate to the list of chemicals regulated under the RMP program. Consistent with its statements in the proposed rule, EPA indicated that it will wait to see if other agencies modify their regulations to cover ammonium nitrate, and will coordinate any potential changes to the list of substances covered by the RMP program with the actions of the other agencies.
EPA’s Final Rule
EPA finalized and issued a prepublication copy of the RMP rule on December 21, 2016. In a news release accompanying the rule, EPA stated that the amendments set forth in the final rule are intended to:
- Prevent catastrophic accidents by improving accident prevention program requirements;
- Enhance emergency preparedness to ensure coordination between facilities and local communities;
- Improve information access to help the public understand the risks at RMP facilities; and
- Improve third-party audits at RMP facilities.
The key changes made by the final rule include the following:
A. Accident Prevention Program Revisions
- Incident Investigation and Accident History Requirements
Program 2 and 3 facilities will be required to conduct a root cause analysis as part of the incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (i.e., a near-miss). The existing rule only requires that the “factors that contributed to the incident” be determined. 40 C.F.R. §§ 68.60; 68.81.
The final rule will also require facilities to consider incident investigations in hazard reviews and process hazard analyses (PHAs).
Although EPA had proposed modifying the definition of “catastrophic release” in an effort to clarify the term, EPA has decided to maintain the existing definition because the proposed definition would have inadvertently expanded the scope of incidents that could trigger an investigation.
Finally, EPA decided not to adopt a proposed amendment that would have required facilities to include the results of root cause analyses in RMP accident history reports.
2. Third Party Compliance Audits
The final rule will require Program 2 and 3 facilities to conduct independent third-party audits when they have an RMP reportable accident or when an implementing agency determines that an audit is needed based on conditions that could lead to an accidental release or problems with a prior third-party audit. While compliance audits are required under the existing rules, they do not need to be performed or led by an independent third party.
Whether EPA has the authority to require third party audits, and the extent of the audit requirement, were the subject of substantial adverse comments from industry. EPA’s final rule pulled back from several of the more burdensome provisions in the original proposal, such as the extent of auditor independence, the necessary credentials for audit team members, the public availability of audit documentation, the ability of companies to assert attorney/client privilege protections for communications made during the audit process, and the triggers for conducting an audit. However, the requirement to conduct third party audits remains in the final rule.
3. Safety Technology and Alternatives Analysis
EPA will require a subset of Program 3 facilities – those in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) -- to conduct a safer technology and alternatives analysis (STAA) as part of the PHA that is currently conducted every 5 years.
As envisioned by EPA in the final rule, an STAA is an evaluation of risk management measures that is to be conducted as part of a PHA and it involves consideration of a hierarchy of controls to reduce process hazards, consisting of, in the following order of preference, inherently safer technology or design, passive measures, active measures, and procedural measures. Importantly, while EPA has required those subject to the STAA requirement to evaluate the practicability of any inherently safer technology (IST) identified during the review, the final rule does not mandate the implementation of IST.
Several groups have pressured EPA over time to incorporate an STAA requirement into the RMP rules. However, EPA’s authority to require an STAA, as well as the efficacy and practicality of the requirement, is highly controversial within industry and this topic was the subject of substantial comments on the draft rule. In adopting an STAA requirement for a subset of Program 3 facilities, EPA reverses a decision that it made in its 1996 RMP rulemaking to not require an STAA as a component of a PHA.
B. Emergency Response Requirements
EPA’s final rule will make three major changes to the existing emergency response requirements.
First, the rule will require Program 2 and 3 facilities to coordinate with local emergency response agencies at least once a year to determine how the facility is addressed in the community emergency response plan and to ensure that appropriate resources and capabilities are in place to respond to an accidental release of a regulated substance. Facilities will be required to document information about this coordination, including the names of individuals involved in coordination and their contact information, dates of coordination activities, and the nature of coordination activities.
In addition, EPA will require Program 2 and 3 facilities to conduct notification exercises once a year to ensure that their emergency contact information is accurate and complete. Further, “responding facilities” that are subject to the emergency response program requirements in § 68.95 will be required to conduct field and tabletop exercises.
The field exercises must involve a simulated accidental release of a regulated substance and must include tests of: notification procedures; procedures and measures for emergency responses actions; and communication systems. They must also include: mobilizing of facility emergency response personnel, including contractors, as appropriate; coordinating with local emergency responders; deploying emergency response equipment; and any other action identified in the emergency response program, as appropriate. While the proposed rule would have required such exercises at least once every five years, the final rule will only require them once every ten years.
The tabletop exercises must include discussions of: procedures to notify the public and the appropriate federal, state, and local emergency response agencies; procedures and measures for emergency response including evacuations and medical treatment; identification of facility emergency response personnel and/or contractors and their responsibilities; coordination with local emergency responders; procedures for equipment deployment; and any other action identified in the emergency response plan, as appropriate. While the proposed rule would have required these exercises on an annual basis, the final rule will only require them at least once every three years.
As with the proposed rule, facilities will be required to prepare an exercise evaluation report within 90 days of each field and tabletop exercise.
C. Increased Public Availability of Information
EPA’s final rule will require all facilities to make certain information available to the public upon request. This information includes information about regulated substances, their safety data sheets, accident history information, the emergency response program, exercises, and LEPC contact information. In conjunction with this requirement, facilities must provide ongoing notification of the availability of this information through the company website, social media, or other publicly accessible means. The Trump Administration nominee to head EPA, Oklahoma’s Attorney General Scott Pruitt, expressed opposition to these provisions in a July 27, 2016 letter to EPA, co-signed by ten other state Attorneys General. In that letter, Attorney General Pruitt called for the withdrawal of the then-pending proposed rule.
The final rule will also require facilities to hold a public meeting for the local communities within 90 days of any RMP reportable accident to share information about the accident, including: when the accident occurred; the nature of the accident; chemicals involved and quantities released; on-site and offsite impacts; notifications made to emergency responders; weather conditions (if known); initiating event and contributing factors (if known); and operational changes (if any) that have resulted from the investigation of the release. The 90-day timeframe is an enlargement of the 30-day timeframe that was set forth in the proposed rule.
Although EPA had proposed that facilities submit certain information, including specific chemical-hazard related information to their Local Emergency Planning Committees (LEPCs) or other local emergency response agencies, EPA removed this requirement from the final rule. Instead, EPA will require facilities to share information that is relevant to emergency response planning as part of the coordination activities that occur annually with local emergency response agencies.
D. Streamlining, Clarification, and Technical Corrections
Consistent with the proposed rule, EPA adopted a number of changes that purport to streamline and clarify the existing rule. In large part, commenters indicated that they found these proposed changes to complicate the rule provisions and increase reporting burdens. Among these changes, EPA has added several RMP data elements that must be reported in RMP submissions, so that they will address the new requirements in EPA’s final rule. Although EPA had proposed to delete or revise some of the other data elements, EPA deferred those revisions at this time. Of particular note, EPA deferred action on numerous burdensome attestations of compliance that had been proposed in the draft rule.
While EPA’s final rule is expected to be published in the Federal Register before the end of the Obama Administration, its future is far from clear. Throughout the rulemaking process, industry stakeholders and some state Attorneys General have expressed strong opposition to several of the rule’s requirements.
Due to this widespread opposition, and the change in presidential administrations, it is not clear that the final rule will be implemented. Among the possible outcomes, Congress might rescind the rule using the Congressional Review Act, EPA might stay the rule and then unilaterally seek to repeal it through amendment, or the rule might be challenged, either through a petition for reconsideration to EPA or a petition for review by the federal courts. The rule is currently scheduled to become effective sixty days after the date it is published in the Federal Register. As of the date of this posting, that publication has not yet occurred.