EPA Proposes to Rescind RMP Provisions Amended Under Obama Administration, Seeks Comments

On May 30, 2018, the U.S. Environmental Protection Agency (EPA) published a proposed rule (Proposed Rule) that would rescind the majority of the amendments to the RMP rule that were finalized in January 2017 in the final days of the Obama Administration (RMP Amendments Rule).  Comments on the Proposed Rule are due on or before July 30, 2018.

Procedural Background

The 2017 RMP Amendments Rule contained some significant revisions to the RMP rule.  Following the filing of three petitions for reconsideration from industry groups and a coalition of eleven states, and a decision by EPA Administrator Scott Pruitt to convene a reconsideration proceeding, the EPA published a final rule in June 2017 delaying the effective date of the RMP Amendments Rule to February 19, 2019.  The EPA indicated that the delay in the effective date would allow the agency to evaluate the objections raised by the various petitions, consider other issues that may benefit from additional comment, and take further regulatory action.  The proposed rule published on May 30 is the next step in EPA’s reconsideration of the RMP Amendments Rule.

Proposed Rule

As we described in our prior reports, the RMP Amendments Rule implemented programmatic changes to prevention program requirements (including incident investigation and accident history requirements, third-party compliance audits, and safer technology and alternatives analyses (STAA)), emergency response preparedness requirements, and information availability requirements.  EPA is now proposing to rescind the vast majority of those changes, including most or all of the prevention program requirements and the information availability requirements, modify the emergency response preparedness requirements, and extend the compliance dates for the limited set of revisions that EPA is proposing to retain. 

The Proposed Rule seeks in part to address the issues raised by the petitioners, who argued that reconsideration was warranted because, among other reasons:

• EPA failed to sufficiently coordinate the changes to the RMP program with the Occupational Safety and Health Administration’s (OSHA) Process Management Safety (PSM) program;
• The new local emergency response coordination requirements would create security risks;
• The public did not have an opportunity to comment on the finding by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) that the West, Texas fertilizer facility was caused by an intentional act, rather than an accident; and
• The EPA’s economic analysis did not accurately assess the costs and burdens associated with the new provisions.

The EPA states that the Proposed Rule would result in annualized cost savings to industry of approximately $88 million.  According to the EPA, the Proposed Rule would also:

• Maintain consistency in accident prevention requirements between EPA’s RMP rule and OSHA’s PSM standard;
• Address security concerns related to the requirements for emergency response coordination, information availability, and public meetings after accidents;
• Address BATF’s finding that an intentional act was the cause of the West, Texas fertilizer warehouse explosion in 2013 that killed 15 people;
• Reduce unnecessary regulations and regulatory costs associated with, among other requirements, the STAA, third-party audits, incident investigation root cause analyses, information availability, tabletop and field exercises; and
• Revise compliance dates to provide time for program changes.

Rationale for Proposed Changes

1. Accident Prevention Requirements

The industry petitioners sought reconsideration of the RMP Amendments Rule in part based on EPA’s alleged failure to coordinate with OSHA.  The RMP rule and the OSHA process safety management (PSM) standard are substantially similar, and Section 112(r)(7)(D) of the Clean Air Act requires EPA to consult with both the Secretary of Labor and the Secretary of Transportation in any RMP rulemaking, and to coordinate RMP provisions with any requirements established for comparable purposes by OSHA or the Department of Transportation.  Following President Obama’s Executive Order 13650, OSHA issued a Request for Information (RFI) in December 2013 to help evaluate potential changes to its PSM standard.  EPA followed nearly eight months later with a separate RFI, asking for information on many of the same topics as OSHA, in order “to evaluate any potential updates to the RMP regulation in parallel to OSHA’s evaluation of potential updates to the PSM standard.”  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, and then finalizing the rule in January 2017.  Meanwhile, as of the date of this writing, OSHA has yet to propose a rule amending the PSM standard.

EPA has now concluded in the Proposed Rule that in promulgating the RMP Amendments Rule, the agency moved away from its “longstanding practice” of coordinating with OSHA on its prevention program and process safety efforts to minimize divergence between the two programs.  EPA explains in the preamble to the Proposed Rule that “it did not give sufficient weight to the value of coordination with OSHA and focused too much on its legal authority to proceed independently.”  EPA therefore proposes to rescind the accident prevention amendments pending further action by OSHA, to allow the programs to remain as aligned as possible for the benefit of the regulated community.  While certain elements of EPA’s RMP rule and OSHA’s PSM standard do diverge, EPA explains that understanding OSHA’s path forward on process safety management is necessary before EPA can determine whether any divergence from OSHA’s PSM standard would be reasonable.

2. Information Disclosure Requirements

Petitioners, as well as many commenters during the notice-and-comment period, objected to the proposed public information availability requirements because of the potential for the new requirements to create security risks.  The petitioners emphasized that information made available to the public could be used by criminals or terrorists to target facilities for attack.  Finding that these concerns had merit, EPA stated that it “believes the synthesis of the required chemical hazard and facility information may present a more comprehensive picture of the vulnerabilities of a facility than would be apparent from any individual element,” and that requiring a facility to synthesize and make that information available to the public could increase the risk of attack on facilities.  EPA therefore proposes to rescind the information disclosure requirements under 40 CFR 68.210 of the RMP Amendments Rule, except for the requirement that facilities hold public meetings after RMP reportable accidents (with minor modifications to the information facilities are required to share at the meetings).  EPA considers a public meeting to be warranted in these circumstances so that members of a community may learn about the causes of an accident and the facility’s plans to address those causes.

3. Emergency Response Requirements

EPA proposes to retain the provisions requiring coordination with local emergency response agencies, with modifications to both address security concerns raised by the petitioners and provide flexibility to regulated facilities.  The RMP Amendments Rule added a requirement that facilities provide to local emergency response agencies “any other information that local emergency planning and response organizations identify as relevant to local emergency response planning.”  The petitioners raised concerns that this language posed security concerns and the program rules did not protect information as confidential business information (CBI).  EPA concluded that this language “may have inadvertently opened the door to local emergency officials requesting and receiving security-sensitive information” and is therefore proposing to rescind the language. EPA also reaffirms that facilities may assert CBI claims for sensitive information submitted to local emergency response agencies.  Further, EPA proposes to retain some form of the requirement for tabletop and field exercises for emergency drills and suggests several alternatives for comment. 

4. Compliance Dates

EPA proposes to revise the compliance dates for various new requirements:

• Emergency coordination provisions: one year after the effective date of the final rule.
• Public meeting provision: two years after the effective date of the final rule.
• Emergency exercise provisions: four years after the effective date of the final rule.
• Incorporation of new Subpart G data elements into RMP plans: five years after the effective date of the final rule.

Conclusion

The Proposed Rule is a substantial change of course for EPA and a dramatic step to scale back the RMP Amendments Rule.  The proposal comes at a time when there are court challenges pending to EPA’s actions to delay the effective date of the RMP Amendments and to revise the rule. It is expected that the Proposed Rule will be the subject of substantial and diverse comments from views across the regulatory spectrum.

Beveridge and Diamond counsels clients on a wide range of matters relating to the Clean Air Act’s Risk Management Plan requirements, OSHA Process Safety Management requirements, and the general duty clauses under both the Clean Air Act and the OSHA statute. Our work includes compliance strategies, assistance with program development and implementation, and enforcement response.  For more information, please contact the authors.