On March 11, the U.S. Environmental Protection Agency (EPA) published the long-awaited Safer Communities by Chemical Accident Prevention Rule (Final Rule), which concluded a nearly decadelong process — spanning three administrations — to update EPA’s Risk Management Program (RMP) under the Clean Air Act (CAA).

The Final Rule makes major changes to the RMP program, requires covered facilities to comply with stringent new requirements for accident prevention and emergency preparedness, and increases public availability of chemical hazard information. Notably, the Final Rule also institutes board-level reporting requirements under the program for the first time. Because the Final Rule reinforces EPA’s continued focus on chemical accident risk reduction as part of its National Enforcement and Compliance Initiative, companies impacted by it will want to pay close attention to the new requirements.

What Is the Risk Management Program?

The RMP rule is rooted in Section 112(r) of the CAA, which Congress enacted to minimize the risks and consequences of accidental chemical releases at industrial facilities. While the RMP requirements are similar to and often overlap with those in the Occupational Safety and Health Administration (OSHA) Process Safety Management (PSM) program, the two programs address different risks. Whereas OSHA’s PSM program focuses on safety within the workplace, EPA’s RMP program focuses on minimizing the impacts of accidental chemical releases on the community outside the fenceline.

In recent years, EPA has stepped up its enforcement of RMP requirements, often together with the CAA’s General Duty Clause, resulting in dozens of administrative, civil, and even criminal enforcement actions across a broad range of industries. The Biden administration also has prioritized increasing EPA onsite inspection activity, particularly in environmental justice areas, which will likely result in a further increase in RMP enforcement actions in the near term. Civil penalties for RMP violations can be assessed at a statutory maximum of up to $121,275 per violation per day. EPA frequently uses enforcement actions as a vehicle for obtaining compliance with new requirements through negotiated consent decrees even before they officially kick in.

Significant Changes Under the Final Rule

The Final Rule will impose several new requirements on covered facilities, including the following key changes to the RMP:

• Safer Technologies and Alternatives Analysis (STAA). Perhaps the most significant change is that chemical plants, petroleum refineries, and coal product manufacturers will be required to include a STAA evaluation in their process hazard analyses. In addition, the following three categories of RMP facilities also will need to conduct a practicability assessment of inherently safer technologies and designs (IST/ISD) and document the justification for decisions not to implement recommendations from those assessments: (1) chemical plants and petroleum refineries within one mile of each other, (2) refineries with hydrofluoric acid alkylation processes, and (3) facilities that have had an RMP accident since their most recent process hazard analysis.
• Natural Hazards. As part of hazard evaluations, facilities must consider meteorological, environmental, or geological phenomena, including potential impacts due to climate change. This includes considering not only whether these hazards can cause accidents but also whether they can make accidents worse.
• Third-Party Compliance Audits. Facilities that have an RMP-reportable accident will need to have a third-party audit conducted as their next compliance audit. As with other requirements in the Final Rule, facilities will be required to document decisions not to follow any recommendations of the third-party audit in their RMP plans. Perhaps most significantly, the revised RMP rule delves into the corporate governance arena for the first time by requiring board-level reporting of both the third-party audit findings and the company’s responses to those findings.
• Employee Participation. The Final Rule mandates employee participation in addressing findings and recommendations from process hazardous analyses, compliance audits, and accident investigations. Covered facilities will need to develop employee participation plans and ensure that knowledgeable employees are involved in RMP evaluations. The employee participation plans also will need to set out procedures for employees to anonymously report RMP-releases or noncompliance concerns.
• Information Availability. Finally, the Final Rule contains provisions designed to increase transparency and access to chemical hazard information at RMP facilities. The Final Rule expands the population eligible to submit information requests to those who reside, work, or otherwise spend significant time within a six-mile radius of a covered facility. If requested, facilities will need to provide information on accident history, details about their emergency response program, and a list of RMP recommendations that were not adopted. This information must be provided in at least two major languages used in the community other than English.

Key Takeaways for Companies With RMP Facilities

With the recent wave of major CAA rulemakings, including high-profile rules addressing GHGs and PM_2.5, it is not surprising that EPA’s new RMP rule has not garnered as much national media attention. But the Final Rule’s impact on affected companies will be significant. Not only does the rule impose more stringent requirements on certain facilities like chemical plants and refineries, but new requirements for third-party audits, board-level reporting, and public disclosures create a framework that will undoubtedly increase the risks of EPA enforcement actions and citizen lawsuits. Although companies will have three years to comply with most of the new provisions (assuming the Final Rule survives legal review), it should not be expected that the EPA will wait that long to impose many of the requirements through negotiated consent decrees as part of ongoing enforcement activities under Section 112(r).