On November 20, 2019, the U.S. Environmental Protection Agency (EPA) signed off on final changes to the risk management program (RMP) rule, most recently amended in January 2017. The regulations were promulgated under Section 112(r) of the Clean Air Act (CAA) when the law was amended in 1990. This section is intended to prevent or minimize the consequences of accidental chemical releases. A need to prevent or minimize the catastrophic consequences of accidental chemical release is a point few would argue. How best to “prevent or minimize,” however, has evoked exhausting debate and legal wrangling. This column summarizes key changes in the reissued final rule.
The RMP Program
CAA Section 112(r) requires the EPA to issue regulations for chemical accident prevention at facilities that use certain chemicals. Under the RMP rule, facilities that use extremely hazardous substances must develop a risk management plan that:
• identifies the potential effects of a chemical accident,
• pinpoints steps the facility is taking to prevent an accident, and
• spells out emergency response procedures should an accident occur.
These plans provide information essential to local fire, police and emergency response personnel to prepare for and respond to chemical emergencies in their communities. According to the EPA, making RMPs available to the public also fosters communication and awareness to improve accident prevention and emergency response practices at the local level.
After notable disasters, including the West Fertilizer Company explosion in 2013, the EPA issued amendments in 2017 to strengthen RMP requirements in several key respects: accident prevention, information disclosure and emergency response. Other requirements included root cause analysis as part of post-incident investigations, third-party compliance audits, and required consideration of safer technology and alternatives analysis (STAA).
Unsurprisingly, the 2017 amendments inspired their own firestorm; three petitions for reconsideration were submitted to the EPA seeking rescission of many of the new amendments. When the Trump administration took over in 2017, it sought to delay implementing the 2017 amendments until February 2019. The U.S. Court of Appeals for the D.C. Circuit eventually engaged; in August 2018, it vacated the Trump administration stay and ordered the EPA on September 21, 2018, to implement the rule as amended. The EPA proposed to rescind essentially all of the 2017 amendments in a separate rulemaking and the rule just issued reflects this final action.
Final RMP Reconsideration Rule
Virtually all the controversial provisions in the 2017 amended rule have been rescinded, including:
• The requirement to hire a third party to conduct the compliance audit after a reportable RMP incident. The EPA retains the ability to demand third-party audits under certain circumstances, however.
• STAA provisions requiring facilities to assess theoretically safer technology and alternative risk management measures. As a cornerstone of the Trump Administration is regulatory rollback; the STAA provisions in many respects symbolized the type of “impractical,” “costly,” and “no impact on safety” criticisms often asserted by anti-regulation enthusiasts.
• The mandate to conduct a post-incident root cause analysis. According to the EPA, the rescission was appropriate and needed to maintain consistency with the Occupational Safety and Health Administration process safety management rule that may already use root cause analysis for incident investigations.
• The need to define information broadly and to make it available to the public upon request. Stakeholders expressed concern that such information could assist terrorists. In addition, much information already is available to the public.
Other provisions were rescinded, amended or retained; careful review of the final rule is essential. The EPA provides a useful fact sheet identifying changes made to the 2017 final rule.
While not everyone agrees with the significant rollback, that the Trump administration has proceeded with the final rescissions is by no means a surprise. Whether the EPA got it right or if too much was cut, only time will tell. On the whole, industry stakeholders believe they dodged a bullet as the EPA’s conservative estimate of annualized cost savings occasioned by the rule is more than $87 million.
A word of caution is needed. The EPA has made it crystal clear that accident prevention is a top enforcement priority. Stakeholders can expect to see intense enforcement scrutiny on RMP compliance by federal and state regulators for the foreseeable future.
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.