On July 31, 2014, the U.S. Environmental Protection Agency published a request for information (RFI) on changes the Agency is considering for its Risk Management Program (RMP) accident prevention regulations under section 112(r) of the Clean Air Act. [1] Prompted by an April 2013 explosion at a Texas fertilizer plant and other high-profile accidents, Executive Order 13650 – Improving Chemical Facility Safety and Security – directed a review of the RMP regulations to identify changes that could improve plant safety. A June 2014 interagency report committed EPA to act on that review within one year.

RMP applies to facilities storing certain toxic or flammable chemicals above a threshold quantity. [2] A number of listed substances, including ammonia, hydrochloric acid, hydrogen sulfide, methane, butane, propane, ethane, and pentane, are present at many facilities in the energy sector.

The RFI seeks input on a range of options that EPA may pursue, several of which relate to mechanisms familiar to many energy companies:

1. Looking to measures adopted by the Bureau of Safety and Environmental Enforcement (BSEE), EPA seeks input on whether to add to RMP requirements:
   • Stop Work Authority– procedures that authorize anyone observing an "imminent risk" to stop work.
   • Ultimate Work Authority – clear articulation of responsibility for operational safety.
   • Job Safety Analysis – process that maps personnel risks to job duties.
   • Third Party Audits – replacing the current self-audit approach.
   • Certification by a senior corporate officer – Chief Executive Officer, Chief Financial Officer, Chief Operations Officer, or the equivalent.
2. Expanding certain existing elements of the RMP, EPA may decide to require:
   • Pre-startup reviews for all startups, not just new or significantly modified operations.
   • Management of change (MOC) review for organizational changes, such as "changes in management structure, budget cuts, or personnel changes." [3]
   • Exercise/drill elements, to supplement the current response plan requirement.
   • Root cause investigation of all near misses, and possibly also inclusion of near misses in a facility's accident history.
3. The EPA is also considering whether to move to a "Safety Case" style approach, such as used in the United Kingdom and other countries outside the U.S. This model requires facilities to "present to regulators a structured argument, supported by a body of evidence that provides a compelling, comprehensible and valid case that a system is safe for a given application in a given operating environment." [4]

Of course, an RMP proposal would not be complete without a discussion of whether and how EPA should require the use of inherently safer technologies (IST), [5] and whether the EPA should require companies to post on their websites the executive summaries of their plans, including chemical identities and quantities.

Affected facilities include more than refineries and petrochemical plants. Indeed, RMP enforcement actions announced in recent months by EPA included a gas plant, a terminal, and a liquids facility. [6] Accordingly, EPA's modernization efforts are worth a close look by companies across the energy sector. Comments on the proposal are due October 29, 2014.
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[1] 79 Fed. Reg. 44,604 (July 31, 2014), citing 42 U.S.C. § 7412(r).
[2] See 40 C.F.R. Part 68; 79 Fed. Reg. at 44,605 n. 4.
[3] 79 Fed. Reg. at 44,618.
[4] 79 Fed. Reg. at 44,632.
[5] IST options typically include eliminating a chemical or reducing the quantity stored at a facility, substituting a less hazardous substance, or redesigning the process.
[6] See, e.g., EPA Press Release, EPA settlement to help ensure safety of more than a dozen communities near TRANSFLO facilities, July 21, 2014.

Cynthia A. M. Stroman
Washington, D.C.
+1 202 626 2381
cstroman@kslaw.com
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