On February 25, 2016, the EPA proposed revisions to its Risk Management Program (RMP) rule. Click here to see the proposed rule. The rule revisions are required by Executive Order 13650, which called for additional improvements on chemical facility safety and security. Click here to see Executive Order 13650. While the proposed rule does not change the applicability thresholds, it does include significant changes to the current requirements.
- Incident Investigations: All facilities with a Program 2 or 3 process would be required to conduct a Root Cause Analysis (RCA) as part of the incident investigation after a “catastrophic release” or a near-miss. The proposal would change the current “imminent and substantial endangerment” definition of “catastrophic release” to “a major uncontrolled emission, fire, or explosion, involving one or more regulated substances that results in deaths, injuries, or significant property damage on-site, or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage.” Proposed Rule, p. 31. Current regulations only require that the incident investigation identify the “factors that contributed to the incident,” language that the agency believes has resulted in missed opportunities to fix systemic root causes after incidents and near misses.
- Third-Party compliance audits: EPA is proposing to require independent third-party compliance audits after an RMP-reportable accident or agency findings of significant noncompliance with the RMP rule at a Program 2 or 3 facility. The final audit report must be submitted to the agency, and it must include any adjustments made by the auditor to any draft reports provided to the owner or operator for their review or comment. The rule prohibits claiming the audit report and related records as attorney-client communications or attorney work-product even if the auditors are managed by attorneys.
- Safer Technology and Alternatives Analysis: EPA is mandating consideration of potentially safer technology and alternatives as part of the RMP-required PHA for Program 3 processes in the following industries: petroleum and coal products manufacturing, chemical manufacturing, and paper manufacturing. The consideration has to include, in order of preference, Inherently Safer Technology (IST) or Inherently Safer Design (ISD), passive measures, active measures, and procedural measures. A feasibility analysis would be required for any IST or ISD considered.
- Emergency Response Program Coordination with Local Responders: The proposal clarifies the difference in emergency response requirements applicable to responding facilities (facilities that use their own employees/resources to respond to an emergency) and non-responding facilities (facilities that rely on local responders). EPA would also require facilities to meet with local responders at least annually to coordinate emergency response needs and responsibilities.
- Facility Exercises: The rule would require Program 2 and 3 facilities, whether they are responding facilities or non-responding facilities, to conduct notification exercises annually. Responding facilities would also have to conduct field and tabletop exercises, at least every 5 years for the former and annually for the latter (except during the year that a field exercise occurs). The owner or operator would be required to prepare an exercise report, which would be provided to local responders and made available to the public.
- Information availability: Under the proposal, RMP facilities would now be required to provide certain information beyond the Risk Management Plan itself to local emergency responders and LEPCs upon request. The agency also proposes that more information be made available to the general public. However, some information would still be off-limits, such as Offsite Consequences Analysis and confidential business information. Finally, owners and operators of a facility that has an RMP reportable accident would be required to conduct a public meeting within 30 days of the accident.
There are indications in the proposed rule that EPA may not be done with RMP revisions. In addition, OSHA is expected to issue revisions to its own PSM rules in response to Executive Order 13650. Click here to see OSHA’s Request for Information. Therefore, owners and operators should review their current compliance programs for both RMP and PSM to ensure they are well-positioned for future changes. This is especially true given that EPA recently added “Reducing Risks of Accidental Releases at Industrial and Chemical Facilities” as a new National Enforcement Initiative starting on October 1, 2016.
The RMP proposal is expected to garner a lot of attention from both industry and Non-Governmental Organizations. According to EPA, the 2014 Request for Information on RMP revisions received 579 public comments plus 99,713 letters and signatures from various mass mail campaigns. See Docket ID. EPA-HQ-OEM-2014-0328-0001. The RFI responses already show that industry is concerned about investigation of near misses and regulation of IST/ISD. Owners and operators should review the proposed rule and offer comments before the deadline. Comments on the RMP Proposed Rule will be due 60 days after publication in the Federal Register.
 An activity involving RMP-regulated substances is eligible for Program 1 requirements if it has not had an accidental release with offsite impacts in the last five years and would not affect the public in the case of a worst-case release. Program 3 requirements apply to a process that (1) does not meet Program 1 requirements, and (2) is subject to the OSHA PSM rule or classified as one of ten specified NAICS codes. Processes not eligible for Program 1 or 3 have to meet Program 2 requirements.
 The rule would define “inherently safer technology or design” as “risk management measures that minimize the use of regulated substances, substitute less hazardous substances, moderate the use of regulated substances, or simplify covered processes in order to make accidental releases less likely, or the impacts of such releases less severe.” Proposed Rule, p. 213.
 For an agency primer on safer technology and alternatives, see http://www.epa.gov/rmp/chemical-safety-alert-safer-technology-and-alternatives.