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The Environmental Protection Agency’s (EPA) Risk Management Program (RMP) Rule is no stranger to change and controversy. Just what the RMP rule entails has been the subject of debate since EPA published the first RMP Amendments in January 2017. Since that time, rules related to RMP requirements have been published, petitioned, delayed, vacated, reissued, and reconsidered.
As the most recent action in the ongoing RMP saga, EPA proposed on August 31, 2022 to strengthen the RMP regulations with the Safer Communities by Chemical Accident Prevention (SCCAP) proposed rule.
RMP was promulgated in 1996 under the Clean Air Act (CAA) Section 112(r)(7) in 40 CFR Part 68. The goal of the RMP program is to prevent accidental releases of toxic substances that can cause serious harm to the public. To do this, the program requires subject facilities to develop and implement an RMP for their specific operations that:
- Identifies the potential effects of a chemical accident.
- Identifies steps the facility is taking to prevent an accident.
- Spells out emergency response procedures should an accident occur.
RMP covers 140 regulated toxic or flammable substances at approximately 11,740 facilities nationwide, including agricultural supply distributors, waste/wastewater treatment facilities, chemical manufacturers and distributors, food and beverage manufacturers, chemical warehouses, oil refineries, and other chemical facilities. One area of industry that is highly impacted but frequently overlooked is facilities with ammonia refrigeration units that hold more than 10,000 lbs. of ammonia. This has become a focus for much recent EPA enforcement.
The proposed SCCAP amendments include a number of requirements that were originally promulgated by the Obama Administration EPA in 2017 and subsequently rescinded during the Trump Administration in 2019, plus several new requirements considering impacts of climate change, environmental justice concerns, employee participation, and enhanced community notification.
|Prevention Program (Subparts C & D)||Natural Hazards & Power Loss||Natural hazards (including those from climate change) and loss of power must be addressed in Program 2 hazard reviews and Program 3 process hazard analyses (PHAs). Justification is required in the Risk Management Plan when hazard evaluation recommendations are not adopted.|
|Prevention Program (Subparts C & D)||Facility Siting||Facility siting should be addressed in hazard reviews and explicitly define the facility siting requirement for Program 2 hazard reviews and Program 3 PHAs. Justification is required in the Plan when facility siting hazard recommendations are not adopted.|
|Prevention Program (Subparts C & D)||Safer Technologies & Alternatives Analysis (STAA)||Considerations for STAA and practicability of inherently safer technologies and designs are required for a) RMP-regulated processes under NAICS code 324 and 325 within one mile of another RMP facility under NAICS code 324 or 325; b) RMP-regulated hydrofluoric acid alkylation processes classified under NAICS code 324. Justification is required in the Plan when STAA recommendations are not adopted.|
|Prevention Program (Subparts C & D)||Root Cause Analysis||A formal root cause analysis incident investigation is required when facilities have an RMP-reportable accident.|
|Prevention Program (Subparts C & D)||Third-Party Compliance Audits||The next scheduled compliance audit must be conducted by a third party when an RMP-regulated facility experiences a) two RMP-reportable accidents within five years; or b) one RMP-reportable accident within five years by a facility with a Program 3 process under NAICS code 324 or 325 within one mile of another RMP facility under NAICS code 324 or 325. Justification is required in the Plan when third-party compliance audit recommendations are not adopted.|
|Prevention Program (Subparts C & D)||Employee Participation||Employee participation is required in resolving PHAs, compliance audits, and incident investigation recommendations and findings. Stop work procedures must be outlined in Program 3 employee participation plans. Program 2 and 3 employee participation plans must also include opportunities for employees to anonymously report RMP-reportable accidents or other non-compliance issues.|
|Emergency Response (Subpart E)||Community Notification of RMP Accidents||Non-responding RMP facilities are required to develop procedures for informing the public about accidental releases. Release notification data must be provided to local responders, and a community notification system must be in place for RMP-reportable accidents.|
|Emergency Response (Subpart E)||Emergency Response Exercises||Field exercises (with mandatory scope and reporting requirements) must be conducted with a 10-year frequency unless local responders indicate that frequency is infeasible.|
|Information Availability (Subpart H)||Enhanced Information Availability||Facilities must provide chemical hazard information upon request to residents living within six miles of the facility in the language requested.|
|Other Areas of Technical Clarification (Subparts A, C, D)||Minor Regulatory Edits||· Require Program 3 process safety information be kept up to date.|
· Make Program 2 & 3 requirements consistent for recognized and generally accepted good engineering practices (RAGAGEP).
· Retain hot work permits for five years.
· Further define “storage incident to transportation” and the retail exemption.
· Require RAGAGEP review in PHAs.
Focus on Environmental Justice
In January 2021, President Biden signed Executive Order (EO) 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis”. EO 13990 directs Federal agencies to “immediately review, and take action to address, Federal regulations promulgated and other actions taken during the last four years that conflict with national objectives to improve public health and the environment; ensure access to clean air and water; limit exposure to dangerous chemicals and pesticides; hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; reduce greenhouse gas emissions; bolster resilience to the impacts of climate change; restore and expand our national treasures and monuments; and prioritize both environmental justice and employment.”
The proposed changes to RMP are an outgrowth of EO 13990 and a February 2022 Government Accountability Office (GAO) report recommending EPA amend the RMP rules to ensure that affected facilities are considering the risks associated with climate change.
According to EPA, RMP facility accidents occur more frequently in predominately minority communities. Persons of color make up 50% of those individuals living within one mile of RMP facilities; low-income individuals comprise 42% of those living within one mile of RMP facilities. Many of these communities live near multiple RMP facilities. These populations are particularly at risk of exposure if an accidental release at an RMP facility occurs.
In line with EO 13990, the intent of the SCCAP proposed rule is to further protect vulnerable communities from chemical accidents, especially those living near facilities with high accident rates. Proposed changes would require RMP-regulated facilities to better consider surrounding communities and the consequences of potential chemical accidents.
If finalized, the SCCAP rule will require RMP facilities to update their programs and plans to consider new data elements, prepare additional reports, and implement or update their notification procedures and field exercises to meet new deadlines:
- Three (3) years after effective date of final rule, facilities must implement provisions for:
- New STAA
- Incident investigation root cause analysis
- Third-party compliance audit
- Employee participation
- Emergency response public notification
- Exercise evaluation reports
- Information availability information
- Four (4) years after effective date of final rule, RMP-regulated facilities must update and resubmit their Risk Management Plans with new and revised data elements.
- Facilities must comply with the revised emergency response field exercise frequency provision by March 15, 2027 or within 10 years of the date of an emergency response field exercise conducted between March 15, 2017 and the date of publication.
The SCCAP proposed rule is likely to be as controversial as its predecessors due to its potential impacts on RMP-regulated facilities across industries. Interested parties should take the time to submit comments by October 31, 2022 during the 60-day public comment period.
In the meantime, KTL will continue to follow and provide updates on the SCCAP proposed rule. KTL has experience working with a broad cross-section of industries impacted by RMP, particularly chemical companies. We have created RMP and General Duty Clause audit protocols and conducted audits and investigation/improvement programs following significant release events. In addition, our team provides Tier II and TRI reporting, writes plans for OSHA and Emergency Response, and routinely works with Local Emergency Planning Commissions (LEPCs) to coordinate emergency response efforts and exercises to keep communities informed and safe.
Regulatory enforcement-driven projects such as those related to RMP require skills in regulatory strategy, negotiations, expert analysis, presentations and testimony—and, equally important—trust and relationship building. KTL can work with companies to:
- Identify/understand/prioritize compliance risks
- Outline steps to improve performance and safe operations
- Define organizational roles and responsibilities
- Streamline compliance methods
- Plan and conduct required tabletop exercises and coordinate with local emergency response
- Implement, monitor, and continually improve performance