Nearly three years after adopting extensive amendments to its rules on accidental release prevention under the Clean Air Act, the Environmental Protection Agency (EPA) adopted a final rule rescinding nearly all of the significant amendments to the Accidental Release Prevention Requirements under the Clean Air Act Risk Management Program (RMP Rule). EPA previously finalized the amendments in January 2017 at the very end of the Obama administration. EPA released the pre-publication version of the final rule amendments on November 25, 2019.

2017 Amendments

EPA developed the 2017 amendments to enhance RMP requirements in 40 CFR Part 68 after notable release incidents at chemical plants, such as the West Fertilizer Company fire in 2013 (which federal investigators later found to have been deliberately set). Briefly, the 2017 amendments added accident prevention requirements, information disclosure requirements, and emergency response requirements. Some of the more controversial provisions were the requirements to develop a root cause analysis during incident investigations, third party compliance audits, mandatory consideration of safer technology and alternatives, and an expanded scope of facility information made available to the public. For more information on the scope of the 2017 amendments, see our prior summary.

The 2017 amendments received significant criticism from the regulated community and from a number of states, and three petitions for reconsideration were filed with EPA asking the new administration to rescind the changes. After a series of delays and legal challenges, the D.C. Circuit Court of Appeals ordered EPA to implement the rule as amended, and EPA adopted the amendment package into the rule. Before any of the implementation dates took effect, EPA separately proposed to rescind virtually all of the 2017 requirements.

EPA’s 2018 Proposal to Rescind

The recent pre-publication rule amendment affirms EPA’s 2018 proposal to rescind most of the amendments. EPA concludes in the rule preamble that the 2017 changes were not reasonable, practical, or cost effective and were not necessary to ensure the prevention of accidental releases.

After reviewing historical release data, EPA determined that increased requirements would be overly burdensome without a corresponding impact on accident prevention. In addition, EPA did not want the RMP rule to impose substantially different requirements than OSHA’s process safety management (PSM) standard, as the two rules are substantially similar and are typically followed in parallel.

Final Amendments – Changes and Requirements

The final amendments delete most of the enhancements that the 2017 amendments added to the RMP requirements, and allow delayed effective dates for some provisions that were not deleted. These continuing provisions require additional coordination with local emergency responders, some enhanced public meeting requirements, and additional requirements for training exercises, although these provisions are all reduced from the requirements of the 2017 amendments. More specifically, within 4-7 years, depending upon the requirement, the amendments require plans for conducting emergency response exercises (no specified frequency), annual notification exercises, documentation of exercises, and a public meeting within 90 days following the occurrence of a reportable accident with offsite impacts. Risk management plans must provide additional information including contact information for response organizations coordinating with the facility, any exercises performed, and any required public meetings.

The following requirements are immediately effective:

• Hazard reviews must address opportunities for equipment malfunctions or human errors that could cause an accidental release.
• Training requirements apply to all employees with process operational responsibilities.
• Third-party audits are no longer required, but compliance audits are required every 3 years.
• Incident investigations and reports are required for catastrophic releases or incidents that could have resulted in a catastrophic release and such incidents must be included in the process hazard analysis.
• Risk management plans must provide information, including emergency response plans, action plans, and updated contact information.
• Responding facilities must consult with local emergency response officials to establish appropriate schedules and plan for field and tabletop exercises.

The following requirements, among others, have been rescinded:

• All new requirements relating to third-party compliance audits.
• All requirements for safer technology and alternatives analysis (STAA) for facilities with Program 3 regulated processes in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing).
• The requirement to include findings from incident investigations in hazard reviews.
• The requirement to include in incident investigations a root cause analysis and a schedule for completion of actions on recommendations within 12 months.
• The requirement to include process supervisors in required training programs.

Looking Ahead

Despite the substantial rollback of the 2017 amendments, EPA continues to pay close attention to enforcement of the RMP program. EPA’s Office of Enforcement and Compliance Assurance has identified RMP as a national compliance initiative for the next several years, with the expectation of a focused enforcement effort by state agencies and EPA.

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.