Background
The U.S. Environmental Protection Agency (“EPA”), has authority under section 112(r) of the Clean Air Act (“CAA”) to require facilities that handle hazardous chemicals to develop accident prevention and emergency response plans and submit those plans to the Agency. The EPA promulgated the original Risk Management Plan (“RMP”) rule in 1996. 40 C.F.R. part 68.
Following the ammonium nitrate explosion at an agricultural retailer in West, Texas in 2013 the Obama Administration ordered all federal agencies to review their chemical facility regulations. As part of this review, EPA finalized amendments to the RMP rule in 2017, which increased the accident prevention, public disclosure, and emergency response coordination requirements for covered facilities. 82 Fed. Reg. 4594 (Jan. 13, 2017).
In the early days of the Trump Administration, multiple industry organizations petitioned EPA to reconsider the 2017 RMP amendments. The EPA granted reconsideration and stayed implementation of the 2017 amendments until February, 2019. On May 30, 2018, EPA issued a proposed rule that would rescind many of the requirements added by the 2017 amendments. 83 Fed. Reg. 24,850 (May 30, 2018).
The EPA is accepting comments on the proposed rule until July 30, 2018 and will hold a hearing on June 14, 2018 in Washington, D.C. Several environmental and labor groups have challenged the Agency’s stay of the 2017 amendments. We anticipate these groups will challenge provisions of the proposed rule once they become final.
Summary of Proposed Rule
The proposed rule returns the accident prevention program elements to where they were prior to the 2017 amendments. For instance, a requirement for facilities in the paper, chemical, and oil and coal products manufacturing industries to conduct safer technology and alternatives analysis and consider inherently safer technology would be rescinded. The proposed rule also would rescind requirements related to third party audits, root cause analyses, and incident investigations.
The 2017 amendments would have required facilities to make information about the types and quantities of chemicals, along with other facility specific information, available to the public. The proposed rule rescinds these disclosure provisions.
The proposed rule does retain a requirement that a facility host a public meeting within 90 days of a reportable release. Requirements relating to coordination with emergency response organizations and emergency response exercises are also largely retained. However response exercise frequency and reporting provisions are relaxed.
