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PT Notes

Overview of EPA's Proposed Changes to the RMP Rule

PT Notes is a series of topical technical notes on process safety provided periodically by Primatech for your benefit. Please feel free to provide feedback

On August 31, 2022, the Environmental Protection Agency (EPA) published a proposed rule in the Federal Register ( 87 FR 53536) to amend its Risk Management Program (RMP) rule inviting comments on or before October 31, 2022. Virtual public hearings: will be held on September 26, 27, and 28, 2022.

For a history of recent regulatory actions with regard to the RMP rule to place the proposed amendments in context, please see the Appendix.

EPA believes many of the proposed amendments will better focus new prevention program elements on particular classes of facilities than the 2017 amendments rule, and promote more information availability, employee participation, and emergency response measures than the 2019 reconsideration rule.

Some of the proposed rule changes focus enhanced prevention measures, such as Safer Technology and Alternatives Analysis (STAA) and third-party auditing, on individual sources and classes of sources with a history of accidental releases. EPA believes that many if not most sources are likely to respond to this approach of triggering requirements based on accident history by undertaking enhanced prevention measures to comply with the rule and avoid accidents. However, EPA also believes that some sources may try to evade these enhanced accident prevention requirements by avoiding reporting incidents that trigger additional requirements. EPA believes employee participation, public information availability, and emergency response measures in the amended rule will make it more difficult to evade the accident history-triggered requirements by leveraging workers and the public in facility oversight.

EPA notes that it has coordinated with OSHA throughout the development of the proposed amendments to ensure they are consistent with the intent and meaning of OSHA’s Process Safety Management (PSM) standard to avoid inconsistencies between the two regulatory programs.

Here is a summary of key proposed amendments. Future PT Notes will elaborate on them.

Definitions

EPA is proposing adding definitions for these terms:

Active measures

Inherently safer technology or design

Natural hazard

Passive measures

Practicability

Procedural measures

Root cause

Third-party audit

EPA is proposing revised definitions for these terms:

Retail facility

Stationary source

Hazard Evaluation Amplifications

EPA is seeking to emphasize that some hazards should be explicitly addressed by facilities. EPA is proposing adding regulatory text to emphasize that natural hazards (such as extreme temperatures, high winds, floods, earthquakes, and wildfires) and loss of power are among the hazards that must be addressed in hazard reviews and process hazard analyses (PHAs). EPA also is proposing to emphasize the intent of the requirement to consider facility siting to ensure it is properly incorporated in siting hazard evaluations.

Additionally, EPA is proposing that recommendations resulting from hazard evaluations for natural hazards, loss of power, and siting evaluations that were not adopted, together with the justification for those decisions, be included in a facility's risk management plan.

Safer Technologies and Alternatives Analysis (STAA)

EPA is proposing a requirement for some Program 3 regulated processes to consider and document the feasibility of applying safer technologies and alternatives as part of their PHA. In addition to engineering and administrative controls, owners and operators of facilities with Program 3 processes covered under this provision would have to consider the application of the following safer technology measures, in the following order: inherently safer technology (IST) or inherently safer design (ISD), passive safeguards, active safeguards, and procedural safeguards.

EPA is also proposing that all facilities with petroleum and coal products processes (in NAICS 324) using hydrofluoric acid (HF) in an alkylation unit consider safer alternatives to HF alkylation.

Root Cause Analysis

EPA is proposing a requirement for all facilities with Program 2 and/or 3 processes to conduct a root cause analysis as part of an incident investigation for an RMP-reportable accident. The root cause analysis requirements include specific elements, the use of a recognized investigation method, and the completion of investigations within 12 months.

Third-Party Compliance Audits

EPA is proposing to adopt the independent third-party compliance audit provisions as outlined in the 2017 amendments rule with modifications to account for EPA's recent review of the current RMP rule. Modifications have been made to the conditions that require a third-party audit and auditor independence requirements have been removed to allow more flexibility in choosing auditors.

EPA is also proposing that Program 2 and 3 facilities that are required to conduct third-party compliance audits list in their risk management plans, for each process, audit findings that the owner or operator chooses to decline.

Employee Participation

EPA is proposing to add additional regulatory provisions to the employee participation requirements of the RMP rule for owners and operators of regulated facilities with Program 2 and Program 3 processes. Specifically, EPA is proposing to require employers to consult with employees when making decisions on implementing recommendations from PHAs, compliance audits, and incident investigations; provide employees the opportunity to stop work under certain circumstances; and provide opportunities for employees to report late or unreported accidents and other areas of RMP non-compliance to EPA and other relevant authorities.

Emergency Response

EPA is proposing adding a requirement for those RMP facilities designated as a non-responding facility to develop and implement, as necessary, procedures for informing the public and the appropriate Federal, State, and local emergency response agencies about accidental releases of RMP-regulated substances and ensure that a community notification system is in place to warn the public within the area threatened by a release.

EPA also is proposing that these notification procedures be made available by the facility, upon request, to the public living in close proximity (approximately within 6 miles) to RMP facilities to help ensure that members of the public are aware of the steps the facility has taken to notify them when a release occurs.

EPA is proposing an amendment applicable to responding facilities to ensure that a community notification system is in place in order to quickly and efficiently warn the public within the area that could be threatened by a release.

EPA is proposing a requirement for facilities to provide necessary entities with initial RMP accidental release information during releases of regulated substances in order to ensure that information is available to the public and the appropriate Federal, State, and local emergency response agencies. Specifically, EPA is proposing that whichever method is used to detect accidental releases, the facility, regardless of responding status, must ensure that the public is promptly notified by the method outlined in the facility's emergency response plan in coordination with local responders.

EPA is proposing to explicitly state the required provisions of the community response plan in the RMP regulatory text in order to ensure that RMP-regulated facilities understand how their facility's processes could impact the larger community emergency response plan, and the facility's role in coordination on the required plan provisions.

EPA is proposing revisions to require all facilities with Program 2 and Program 3 processes and subject to the emergency response program requirements of the responding stationary source, at a minimum, to conduct field exercises involving a simulated accidental release of a regulated substance once every 10 years, unless local responders indicate that frequency is infeasible. EPA is also proposing an amendment to require that the current recommended field and tabletop exercise evaluation report components be mandatory.

EPA also is proposing an amendment to require that the current recommended exercise evaluation report elements be mandatory rather than recommended.

Information Availability

EPA is proposing an amendment to allow the public to request specific chemical hazard information if they reside within 6 miles of a facility.

EPA also is proposing to restore several provisions from the 2017 amendments rule that relate to the availability of information to the public for community members living within 6 miles of a facility.

Other Areas of Technical Clarification

EPA has identified various aspects of the RMP rule that use different terminology for the same requirement, have outdated definitions, or would be simpler for sources to implement with more discussion in the text of the regulation. The intent of EPA’s proposed changes to the regulatory text is to simplify implementation for facilities as well as oversight, thereby improving chemical safety. These changes are discussed by EPA in the 2022 proposed amendments rule.

EPA is soliciting comments on all these proposed amendments, and related issues, and has posed questions regarding each one.

Future PT Notes will elaborate on the proposed amendments.

If you would like further information, please click here.

To comment on this PT Note, click here.

EPA’s proposed amendments can be found here.

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Appendix: Recent History of the RMP Rule

In August, 2013, President Obama issued Executive Order 13650, “Improving Chemical Facility Safety and Security” following several catastrophic chemical facility incidents in the United States.

In July, 2014, prompted by EO 13650, EPA issued a Request for Information (RFI) on the Risk Management Program (RMP) rule. The RFI sought comment on potential revisions to the RMP regulations and related programs to modernize EPA’s regulations, guidance, and policies.

In March, 2016, EPA published the Proposed Rule: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act and the final rule was published in January, 2017.

In December, 2019, EPA finalized revisions to the RMP regulations to reconsider the changes from the 2017 amendments rule under the Trump administration. The 2019 reconsideration rule rescinded provisions, removed most new requirements added by the 2017 amendments rule, and modified other provisions. .

Both the 2017 amendments rule and the 2019 reconsideration rule are the subject of petitions for judicial review.

In January, 2021, Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis”, was issued by President Biden. As a result of EO 13990, EPA was tasked with reviewing the current RMP regulations.

EPA held virtual public listening sessions in 2021 and solicited public comments on the adequacy of the revisions to the RMP regulations completed since 2017. Subsequently, on August 31, 2022, EPA published a proposed rule to amend its Risk Management Program (RMP) rule.

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