On May 10, 2024, extensive revisions recently adopted by the Environmental Protection Agency (EPA) to the Risk Management Program (RMP) regulations (40 CFR Part 68) will take effect. The revisions, dubbed by EPA as the “Safer Communities by Chemical Accident Prevention Rule,” reinstate certain Obama-era provisions previously rolled back under the Trump administration. However, the revisions also enlarge some of these provisions and add significant new requirements, including some that reflect the current administration’s focus on climate change and environmental justice.

The revisions require owners and operators of subject facilities to achieve compliance with most of the substantive requirements within three years (i.e., by May 10, 2027). RMP plans must be updated to reflect new applicable requirements and resubmitted to EPA within four years (i.e., by May 10, 2028). For certain other requirements (regarding emergency response field exercises), the compliance deadline is potentially shorter or longer than these three- and four-year periods, depending on the date of the facility’s most recent field exercise.

Once the rule takes effect, court challenges by both business interests and environmental groups are expected. However, given the unknown outcome of such challenges and the breadth and potential costs of the new requirements, potentially impacted facilities should begin assessing the applicability of the revisions now.

Background

The RMP regulations implement Section 112(r) of the 1990 Clean Air Act Amendments (42 U.S.C. 7412(r)), which direct EPA to develop regulations to improve the prevention of chemical accidents at stationary facilities or activities (for brevity, referred to here simply as “facilities”) that use or store “regulated substances” that EPA has identified as presenting the greatest risk of harm from accidental releases. In particular, the owner and operator of a facility with one or more “processes” that manufactures, uses, stores, or handles such a regulated substance in excess of substance-specific threshold quantities must develop and implement a risk management program for all such processes, and document that program in a risk management plan submitted to EPA.

RMP requirements are generally similar to, and in some respects will overlap with, requirements under the Process Safety Management (PSM) program administered by the Occupational Safety and Health Administration (OSHA). However, while OSHA’s PSM regulations focus on workplace safety, the RMP regulations focus primarily on minimizing the public impacts of accidental releases through prevention and emergency response.

Notable New or Changed RMP Requirements

Release Prevention

• Expanded Hazard Evaluation: In pursuit of EPA’s goal of mitigating climate change impacts, the hazard evaluation required by the RMP regulations will now be required to identify “natural hazards” (defined to include, among others, hazards due to climate change) that could cause or exacerbate an accidental release. The revisions also now spell out the “facility siting” issues that must be considered in the hazard evaluation as including not just “the placement of processes, equipment, and buildings with the facility,” but also any hazards “posed by proximate stationary sources, and accidental release consequences posed by proximity to the public and public receptors” (40 CFR §68.67 as revised). When recommendations from the hazard evaluation regarding natural hazards or facility siting are not adopted, the facility’s Risk Management Plan would be required to include a justification.
• Back-Up/Standby Power will now be required for monitoring equipment for release prevention and detection. Also, the revisions require the hazard evaluation to consider the appropriateness of back-up power for a process. Where a facility decides not to implement backup power, the facility’s Risk Management Plan must include a justification.
• Safer Technology and Alternatives Analysis (STAA), Inherently Safer Technologies and Designs (IST/ISD): In some of the most contentious new components of the revisions, STAA evaluations must now be performed for RMP-subject processes in petroleum and coal products manufacturing (North American Industry Classification System (NAICS) code 324) and chemical manufacturing (NAICS code 325). The revisions also will require Inherently Safer Technologies and Designs (IST/ISD) assessments for several facility categories: a NAICS code 324 or 325 facility located within one mile of another NAICS code 324 or 325 facility; a petroleum refinery with hydrofluoric acid alkylation processes; and a NAICS code 324 or 325 facility that, since the facility’s most recent process hazard analysis, have had an accident for which the RMP requires reporting. Further, a facility subject to the IST/ISD requirement will now be required to implement at least one “practicable” passive measure or similarly protective active or procedural measure(s) after each STAA.
• Root Cause Analysis: A formal root cause analysis incident investigation is required when a facility has had an RMP-reportable accident.
• Third-Party Compliance Audits: When a facility has an RMP-reportable accident, the next scheduled compliance audit must be performed by a third-party that meets certain criteria for competence and independence. And as a new element, a justification is required in the RMP when a third-party compliance audit recommendation is not adopted.
• Employee Participation: The revisions mandate that facility owners and operator provide their employees not only with training in the risk management plan and broad access to related materials but also with participation in risk assessment and management planning. In particular, employee participation and consultation are required in resolving process hazard analyses, compliance audits, and incident investigation recommendations and findings. The revisions will also require employees to be able to stop work under certain circumstances. Employees must also be provided opportunities to report unaddressed hazards, unreported accidents, or RMP non-compliance to the facility owner, operator, and/or to EPA.

Emergency Response

• Community Notification: Owners or operators will be required to provide release notification data to local first responders. Owners or operators are also required to partner with local response agencies to ensure a community notification system is in place for notification of RMP-reportable accidents and to document the collaboration.
• Emergency Response Exercises: Field exercises are required every 10 years unless local responders indicate that frequency is infeasible. The revisions also set standards for owners and operators to report upcoming emergency response exercises and prepare post-exercise evaluations.

Information Availability

• Enhanced Information Availability: A facility must provide chemical hazard information upon request to the public living, working, or spending significant time within 6 miles of the facility, as determined by certain factors specified in the revisions. The information must be provided in at least the two most common languages in the community. EPA has also said that it intends to update its online tool to provide public access to risk management plans “to allow visualization of climate change hazards.”

Technical Clarifications

• The revisions also make technical clarifications to the RMP, including, but not limited to, retention of hot work permits for three years and ensuring the use of “recognized and generally accepted good engineering practices” review in process hazard analyses to determine gaps in safety.

Compliance Dates

• For most substantive new requirements – (including STAA, incident investigation root-cause analysis, third-party compliance audits, employee participation, emergency response public notification, exercise evaluation reports, and public availability of information): within three years after the effective date of the final rule (i.e., by May 10, 2027)
• Increased frequency for emergency response field exercises: by March 15, 2027, or within 10 years of the date of an emergency response field exercise conducted between March 15, 2017, and August 31, 2022.
• Update and resubmit risk management plans with new and revised data elements: within four years after the effective date of the final rule (i.e., by May 10, 2028).

While the future of the RMP revisions remains subject to likely legal challenges, what is clear is that the RMP revisions package makes an already complex program that much more so. Although the outcome of expected legal challenges is unknown, subject facilities would be well-advised to review the final regulations now and begin assessing potential impacts on their operations and activities.

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