The U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy signed the long-awaited final rule bolstering requirements of the Risk Management Plan (RMP) facility accident prevention program found under the Clean Air Act.
EPA initiated this rulemaking under President Obama’s Executive Order 13650, “Improving Chemical Facility Safety and Security,” which he issued on August 1, 2013 in response to the West Fertilizer incident in West, Texas. The rule significantly overhauls the RMP program, strengthening various requirements on facilities to reduce risks of accidents.
Of the approximately 12,500 facilities that currently have RMPs filed with EPA, 1,466 are chemical manufacturing facilities. EPA estimates that implementation of the rule will come at an annualized cost of over $131 million, but was “unable to quantify” specific reductions in damages that would occur. Rather, they provided data on total damages that currently occur at RMP facilities each year.
Although this rule is currently scheduled to be effective 60 days after publication in the Federal Register, the incoming Trump Administration and Congress are expected to block the rule. The RMP rule could also be a prime candidate for formal disapproval under the Congressional Review Act, an action that would block a future administration from developing a “substantially similar” rule.
In his capacity as Oklahoma Attorney General, Trump’s intended nominee for EPA Administrator Scott Pruitt indicated in comments to EPA that the rule would be catastrophic to national security, stating that “compiling that information and making it easily accessible also aids those who might seek to cause an intentional release for nefarious purposes, by providing those bad actors with information that would help them both select a target and exploit any security vulnerabilities their target might have.”
The final 372-page rule, which is strikingly similar to the proposed version, seeks to enhance facilities’ accident prevention programs, strengthen emergency preparedness requirements, and increase coordination and information between facilities and both local emergency responders and the public.
Industry groups, including TCC, commented to EPA that the rule would come at a significant cost with few benefits, and could even cause additional damage by making too much information available to those with potentially malicious intentions.
For a summary of the rule’s elements, see below. TCC will provide a more comprehensive analysis of the rule after conducting an in-depth review of the rule.
Here is a specific run down of the final rule elements:
- Accident Prevention Program Revisions
- Root cause analysis. The rule requires all facilities with Program 2 or 3 processes to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that could have reasonably resulted in a catastrophic release (near-miss).
- Third-party audit. The rule requires regulated facilities with Program 2 or 3 processes to contract with an independent third-party, or assemble an audit team led by an independent third-party, to perform a compliance audit after the facility has an RMP reportable accident. Regulations currently authorize self-audits.
- Safer Technology & Alternatives Analysis (STAA) and Inherently Safer Technology (IST). The rule adds an element to the process hazard analysis (PHA), which is updated every five years. Specifically, owners or operators of facilities with Program 3 regulated processes, including chemical manufacturers, are required to conduct a STAA as part of their PHA, and to evaluate the practicability of any IST identified. This element alone is estimated by EPA to be a $70 million annualized cost.
- Emergency Response Enhancements
- Coordination with LEPCs. The rule requires that owners and operators of facilities with Program 2 or 3 processes are required to coordinate with the local emergency response agencies at least once a year to determine how the source is addressed in the community emergency response plan and to ensure that local response organizations are aware of the regulated substances at the source, their quantities, the risks presented by covered processes, and the resources and capabilities at the facility to respond to an accident release of a regulated substance. The rule will also require that certain information relevant to emergency response planning be shared with LEPCs during these annual meetings.
- Annual notification exercises. All facilities with Program 2 or 3 processes are required to conduct notification exercises annually to ensure that their emergency contact information is accurate and complete.
- Field exercises and tabletop exercises. All facilities subject to the emergency response program requirements are required to conduct field exercises and tabletop exercises. Although the frequency of these exercises are to be determined in consultation with the local emergency response officials, at a minimum, full field exercises must be conducted at least once every ten years, and tabletop exercises must be conducted at least once every three years.
- Enhanced Availability of Information
- Publicly available information. The rule requires all facilities to provide certain basic information to the public, upon request. The owner or operator of the facility is also required to provide ongoing notification of availability of information elements on a company website, social media platforms, or through some other publicly accessible means.
- Public meetings. The rule requires all facilities to hold a public meeting for the local community within 90 days of an RMP reportable accident.