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EPA Seeks to Revise Risk Management Plan

June 1, 2016
Proposed amendments to the Risk Management Plan include three core changes

On March 14, 2016, the U.S. Environmental Protection Agency (EPA) proposed much-anticipated amendments to the Risk Management Plan (RMP) regulations. This column summarizes the proposed amendments and industry’s response to them.

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The genesis of the proposal is President Obama’s Executive Order (EO) 13650, which was issued in the aftermath of the catastrophic explosion that occurred in April 2013 that claimed 15 lives in West, Texas. The EO requires various federal agencies to develop options for better chemical facility safety and security that identify “improvements to existing risk management practices through agency programs, private sector initiatives, government guidance, outreach, standards, and regulations.” The EPA’s RMP regulations fall squarely in the zone of interest for purposes of the EO. Required under Section 112(r) of the Clean Air Act, these regulations, codified at 40 C.F.R. Part 68, apply to stationary sources that hold specified regulated substances in excess of certain thresholds. These “facilities” are required to assess their potential release impacts, undertake steps to prevent releases, plan for emergency response to releases, and summarize this information in a risk management plan submitted to the EPA.

Key Changes

The EPA’s proposed amendments are sweeping, and not without controversy. Three changes are core. First, the proposed rule would require all facilities with Program 2 or 3 processes to conduct a “root cause analysis” as part of an accident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (i.e., a near-miss).

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Second, regulated facilities with Program 2 or 3 processes must contract with an independent third-party to perform a compliance audit after the facility has a reportable release. The current rule authorizes self-audits.

Third, the proposal would require owners and operators of facilities with Program 3-regulated processes to conduct a safer technology and alternatives analysis (STAA) as part of their process hazard analysis (PHA), and to evaluate the feasibility of any inherently safer technology (IST) identified. (For more on IST, see: “Use Elegant Design to Bolster Inherent Safety.") The proposal also necessitates various information-sharing provisions, facility exercises and other requirements.

The granularity of these proposed modifications is beyond the scope of this article. However, it’s worth noting that regulated entities made their displeasure with the proposal known. Several themes emerged based on a review of comments submitted.

First, despite the robust public outreach the EPA conducted on the proposal, which many commenters praised the EPA for undertaking, many interested parties submitted requests to extend the comment period. Despite Congressional pressure from Senator Inhofe, the EPA firmly declined. The comment period closed as expected on May 13, 2016. Key comments include concerns with the following: the need for greater clarity on what a “near-miss” might include and request for EPA guidance on this topic; the cost that retaining a third-party auditor would incur, and the inference that self-audits are somehow inadequate; the lack of clarity on the topic of IST and the likelihood that the requirement to determine and implement IST will devolve into a paperwork exercise and elicit no real value; and the concern that information-sharing provisions in the proposal are burdensome, would overwhelm local emergency planning committees with too much information, and require sharing information that could put a facility at a security risk.

Discussion

Essentially all of the aforementioned proposals were outlined in the EPA’s 2014 Request for Information to amend the RMP, so none of the more-controversial provisions came as a surprise. That said, the provisions invited from most industry commenters were the same vigorous opposition they invited in 2014. While some expressed support for certain provisions, on the whole, the response was adverse.

The forthcoming general elections obscure the next steps. The EPA will need time to review and consider the comments. Despite the proposal’s high visibility, it’s unlikely any final rule would be approved for release before November. What happens next will likely depend on who wins the White House.

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).

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