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In March 2024, the Environmental Protection Agency (“EPA”) issued its final rule amending its Risk Management Program regulations (also referred to as, “Part 68”). These amended regulations went into effect on May 10, 2024. The amendments modified several of the requirements for stationary sources that comply with the Risk Management Program through Programs 2 or 3. In the preamble, EPA explained that “[t]he  major provisions of this rule included several changes to the accident prevention program requirements, as well as enhancements to the emergency response requirements, and improvements to the public availability of chemical hazard information.” 89 Fed. Reg. 17622, 17623 (Mar. 11, 2024). The amendments also include heightened standards for certain manufacturers. Below is a summary of the major changes made through these amendments:

  • The new regulations added definitions for “active measures,” “inherently safer technology or design,” “natural hazard,” “passive measures,” practicability,” “procedural measures,” “root cause,” and “third-party audit.” 40 C.F.R. § 68.3.
  • They seek greater continuity across Program 2 and Program 3 requirements. For example, the new regulations amended the Program 2 recognized and generally accepted good engineering practices (“RAGAGEP”) requirements to mirror the Program 3 requirements more closely by requiring documentation and not allowing owner/operators to rely on compliance with Federal or state regulations to meet RAGAGEP standards. 40 C.F.R. § 68.48(b). Additionally, the new regulations create an “employee participation” requirements for Program 2 owner/operators that are similar to those for Program 3. Compare id. § 68.62 with id. § 68.83.
  • For both Programs 2 and 3, the new regulations require the hazard review to identify (1) any needed standby or emergency power systems, and clarifying that “monitoring equipment associated with prevention and detection of accidental releases from covered processes has standby or backup power to provide continuous operation,” id. §§ 68.50(a)(3); 68.67(c)(3); (2) natural hazards that can cause or exacerbate accidental releases, id. §§ 68.50(a)(5), 68.67(a)(8); and (3) “[s]tationary source siting, including the placement of processes, equipment, and buildings within the facility, and hazards posed by proximate stationary sources, and accidental release consequences posed by proximity to the public and public receptors,” id. §§ 68.50(a)(6), 68.67(a)(5).
  • EPA also direct Program 2 and 3 owner/operators to update operating procedures to address “[d]ocumentation when monitoring equipment associated with prevention and detection of accidental releases from covered processes is removed due to safety concerns from imminent natural hazards.” Id. §§ 68.52(b)(9); 68.69.
  • The rule reimplements the requirement that the triennial audit must be conducted by a third-party if ordered by an implementing agency or if the source has had an accidental release 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. Id. §§ 68.58(f); 68.79. The specific requirements for third-party audits were re-added from the pre-2019 regulations. Id. §§ 68.59; 68.70.
  • The 2024 regulations require that incident reports for releases that result in “deaths, injuries, or significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage” must be completed within 12 months of the incident and must include direct and indirect factors that contributed to the incident, including root cause analyses. Id. §§ 68.60(h); 68.81(h).
  • The new regulations also include additional requirements for certain sources that use Program 3, namely petroleum and coal product manufacturers and chemical manufacturers. These sources must “consider and document, in the following order of preference, inherently safer technology or design, passive measures, active measures, and procedural measures. A combination of risk management measures may be used to achieve the desired risk reduction.” Id. § 68.67(c)(9)(i).

Additionally, if the petroleum and coal product manufacturers and chemical manufacturers are within one mile of another petroleum and coal product manufacturer or chemical manufacturer, if they have had an accident that resulted in “ “deaths, injuries, or significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage” since the last hazard analysis; or if petroleum or coal product manufacturers have a hydrofluoric acid alkylation covered process, the manufacturers must also (1) “determine and document the practicability of the inherently safer technologies and designs considered,” id. § 68.67(c)(9)(ii); and (2) implement at least one passive measure, inherently safer technology or design, or a combination of active and procedural measures equivalent to or greater than the risk reduction of a passive measure, id. § 68.67(h).

  • EPA also made a handful of changes to the emergency response requirements for Programs 2 and 3. Namely,
    • Responding stationary sources must conduct field exercises with local emergency response officials before March 15, 2027, and at least every 10 years after that. § 68.96(b)(1)(i).
    • Non-responding and responding stationary sources must have appropriate mechanisms in place to notify emergency responders, including providing timely data and information detailing the current understanding and best estimates of the nature of the accidental release. This can be done through notification mechanisms designed to meet other Federal, State, or local notification requirements. Id. §§ 68.90; 68.95.
    • Non-responding stationary sources must also “maintain and implement, as necessary, procedures for informing the public and the appropriate Federal, State, and local emergency response agencies about accidental releases and partnering with these response agencies to ensure that a community notification system is in place to warn the public within the area potentially threatened by the accidental release. Documentation of the partnership shall be maintained.” Id. § 68.90. Similar requirements are included for responding stationary sources. Id. § 68.95.
  • EPA made some modifications to what must be included in the source’s Risk Management Plan (“RMP”). For example, the RMP must include recommendations were declined from natural hazard, power loss, and siting hazard evaluations and justifications. Id. §§ 68.170(e)(7); 68.175(e)(8). See also id. § 68.175(e)(7), (9).
  • Finally, the regulations impose a new duty on owners and operators to make certain Part 68 information available to nearby residents and workers. Under 40 C.F.R. § 68.210, the owner or operator must provide upon request information on the regulated substances at the facility and its emergency response procedures, as well as additional specific information detailed in the regulations. This information must be available to those living, working, or spending significant amounts of time within 6 miles of the facility and must be available in English and at least two other commonly spoken languages of the affected population. The owner/operator must notify the public through its website, social media, or other means that the information is available and how to get access to the information. § 68.210

While the regulations went into effect on May 10, 2024, most of the new requirements do not need to be implemented until May 10, 2027. Id. § 68.10(g)-(i). The regulations provide more precise deadlines for the different provisions.

A coalition of states and chemical industry groups are currently challenging the regulations in the D.C. Circuit Court of Appeals, alleging that they exceed the EPA’s authority.

These regulations will require significant groundwork to ensure that sources have completed full risk analyses as required. For additional questions regarding Part 68, please contact Louis Buatt and Emily von Qualen and visit our Environmental Regulatory practice page.

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