Climate Change, Environmental Justice, and Process Safety: EPA Proposes Risk Management Program Rule Amendments
The U.S. Environmental Protection Agency (EPA) has proposed to further amend its Clean Air Act Risk Management Program (RMP) rules and has issued a proposed rule. 87 Fed. Reg. 53556 (August 31, 2022). The proposed rule would add requirements to 40 C.F.R. Part 68 that would restore and enhance several of the Obama-era provisions of the RMP program that the Trump Administration EPA rescinded. Should the rule be promulgated as proposed, it would impose explicit requirements for companies to consider the potential for hurricanes, floods, and other natural phenomena as they review and revise their process safety programs, emphasizing potential impacts on environmental justice communities.
Section 112(r) of the Clean Air Act requires EPA to enact regulations that require owners and operators of stationary sources that have processes containing greater than threshold amounts of certain regulated substances to prepare and implement risk management plans to detect and prevent or minimize accidental releases, and to provide prompt emergency response to protect human health and the environment. Congress added section 112(r) in the Clean Air Act Amendments of 1990 following serious chemical release incidents, including in Bhopal, India, and Institute, West Virginia, and after enacting the Emergency Planning and Community Right-to-Know Act of 1986. EPA adopted the RMP rule at 40 C.F.R. Part 68 in response to the statutory mandate in Section 112(r). The RMP rule applies to stationary sources that have present at a facility more than a threshold quantity of a regulated substance in a process. 40 C.F.R. § 68.10.
EPA amended the RMP rule in January 2017 in the last few days of the Obama Administration, in a rulemaking that proved controversial across much of regulated industry. The final adopted amendment required facilities in a small number of industrial sectors to consider and document the feasibility of safer technologies and alternatives (referred to as a safer technologies and alternatives analysis or STAA) as part of their routine process hazard analyses; it required more aggressive incident investigation root cause analyses; and also required third-party compliance audits after an RMP-reportable accident. 82 Fed. Reg. 4594 (Jan. 13, 2017). The 2017 amendments also required owners and operators to provide specific chemical hazard information to the public upon request, and information about accidental releases. Three petitions for reconsideration of the 2017 rule were submitted to the EPA following the change in administration, one by a group of states and two others by industry groups. Three years later, the Trump Administration EPA revoked many of the 2017 amendments to the RMP rule, suggesting that, among other concerns, the amendments would create burdens and unnecessary costs. 84 Fed. Reg. 9834 (Dec. 19, 2019).
Just over a year after the 2019 amendments, again after a change in administration, President Biden issued Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. This Executive Order directed federal agencies to, among other things, take action to limit chemical exposures, bolster resilience to climate change impacts, and prioritize environmental justice. In response, the Biden Administration EPA developed a regulatory proposal to revise its RMP rule to address these priorities. In February 2022, the Government Accountability Office also recommended that EPA amend the RMP rules to address climate change. On August 31, 2022, EPA issued the proposed rule. The proposed rule reconsiders many of the provisions contained in the rescinded 2017 amendments and addresses the climate change and environmental justice concerns that were raised in the Executive Order and the GAO report.
The proposed rule would reimpose third-party compliance auditing requirements in the 2017 amendments and rescinded in the 2019 amendments. EPA proposes to require Program 2 and 3 sources to conduct audits using third-party auditors after certain qualifying release events or when EPA or an implementing state agency determines that conditions exist that “could lead” to an accidental release.
The Proposed Rule
The proposed amendments would require RMP facilities to address certain risks EPA believes are associated with climate change and environmental justice. The proposed accident prevention program, emergency response provisions, and information availability requirements would provide more information and greater scrutiny on potential impacts to certain communities that face risks from accidental releases.
Accident Prevention Program
The proposed amendments would require stationary sources subject to the RMP program to implement risk management plans that specifically address external events such as natural hazards, including those caused by climate change. These events would need to be evaluated within the existing hazard evaluation framework, which includes hazard evaluations under 40 C.F.R. § 68.50(a)(5) for Program 2 facilities and process hazard analyses (PHAs) under § 68.67(c)(8) for Program 3 facilities.
- Safer Technologies and Alternatives Analysis (STAA)
A small subset of owners and operators of primarily densely co-located petroleum refining and chemical manufacturing facilities would be required to conduct STAA reviews as part of their regular PHAs under 40 C.F.R. § 68.67(e). EPA has proposed to limit the STAA analysis requirement to (a) sources in the petroleum and coal products manufacturing (NAICS 324) and chemical manufacturing (NAICS 325) sectors that are located within 1 mile of another RMP-regulated NAICS 324 or 325 facility, and (b) all sources in NAICS 324 using hydrogen fluoride in an alkylation unit (approximately 45 facilities) regardless of their location in a densely co-located area. EPA indicates that it chose these sectors based on a review of accident histories.
The proposed STAA provision would require these owners and operators to conduct an analysis of and document inherently safer technology or design, passive measures, active measures, and procedural measures. EPA explains that it intends for the STAA to focus attention on communities located near these co-located facilities that could face a heightened risk of accidental releases due to overlapping vulnerability zones.
- Root cause analysis
The proposed rule would require all facilities with Program 2 and 3 processes to conduct a root cause analysis as part of each incident investigation. The rule would define a root cause as a “fundamental, underlying, system-related reason why an incident occurred.” In its discussion of when root cause analyses should be required, EPA considers “near miss” incidents and asks for public comment on a definition of “near miss” that “would address difficulties in identifying the variety of incidents that may occur at RMP facilities that could be near misses that should be investigated.”
- Third-party compliance auditing
The proposed rule would reimpose third-party compliance auditing requirements that were in the 2017 amendments and rescinded in the 2019 amendments. EPA proposes to require Program 2 and 3 sources to conduct audits using third-party auditors after certain qualifying release events, or when EPA or an implementing state agency determines that conditions exist that “could lead” to an accidental release.
- Employee participation
The proposed rule would require covered owners and operators with Program 2 and Program 3 processes to:
- consult with employees when making decisions on implementing recommendations from PHAs, compliance audits, and incident investigations;
- provide employees the opportunity to stop work under certain circumstances; and
- provide opportunities for employees to report late or unreported accidents and other areas of RMP non-compliance to EPA and other relevant authorities.
Emergency response provisions
EPA explains that it drafted the proposed rule to address concerns from communities that surround RMP facilities. Communities apparently stressed to EPA during virtual public listening sessions that they first learned of accidental chemical releases impacting their homes via television or social media hours after the release. 87 Fed. Reg. 53594; Virtual Public Listening Sessions, Request for Public Comment; EPA-HQ-OLEM-2021-0312-0001. The proposed rule would require owners and operators to coordinate emergency responses among appropriate federal, state, and local emergency response agencies and to have a community notification system in place. Owners and operators of these facilities would be responsible for providing relevant release data to local responders.
The proposed rule would require Program 2 and Program 3 facilities to conduct field exercises to simulate accidental releases at least every ten years. Exercise evaluation reports would be required and would be maintained in a consistent manner with the field exercises.
Information availability requirements
The proposed rule would require RMP facilities to provide their chemical hazard information to communities within a 6-mile radius of the facility. These facilities were not previously required to provide this communication. EPA asserts that this provision would help share information with the most at-risk communities while not disclosing it to the public at-large.
Comments are due October 31. EPA-HQ-OLEM-2022-0174. Before the door to comment closes, EPA will also hold three virtual public hearings on the proposed rule on September 26, 27, and 28.
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.