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EHSQ_1_RMP fig 1On December 19, 2019, the U.S. Environmental Protection Agency (EPA) published, and made immediately effective, the final version of the RMP Reconsideration Rule that addressed public comments received on proposed changes to the Risk Management Program (RMP) regulation. The final Reconsideration Rule reverses many of the regulatory changes implemented under the January 30, 2017 RMP rule and modifies the effective date for other RMP requirements that remain in the rule. EPA stated that the RMP Reconsideration Rule:

  • Addressed potential security risks in the 2017 RMP Rule regarding Public Information, Coordination with Emergency Responders (ER), and Public Meeting requirements;
  • Removed changes to Prevention Program elements where safety improvements did not justify the regulatory burden; and
  • Maintained the RMP Level 3 Prevention Program elements consistent with the Occupational Safety and Health Administration (OSHA) Process Safety Management (PSM) Program.

Legal challenges have been filed by a coalition of environmental groups, labor unions, and attorney generals of 14 states, and are consolidated under Air Alliance Houston, et al. v.  EPA (DC Circuit Court of Appeals, Case No. 19-1260). Industry groups such as American Chemistry Council, American Fuel & Petroleum Manufacturers, the American Petroleum Institute, and U.S. Chamber of Commerce filed to intervene on EPA's behalf in the case. Litigation could impact the changes made in the Reconsideration Rule if a court decision determines the level of reversal in the Reconsideration Rule is not defensible.

The impacts of the RMP Reconsideration Rule can be broken into the three groups outlined in Figure 2, based on whether they result from rescinded requirements, modified requirements, or maintained requirements.

Rescinded Prevention Program Changes

The most significant changes from the Reconsideration Rule are those it rescinded from the 2017 RMP Rule. The RMP Reconsideration Rule completely removed requirements for facilities to conduct a third-party audit after an RMP-reportable event and for NAICS 322, 324, and 325 family program Level 3 sites to conduct safer technologies and alternatives analyses. In addition, facilities are no longer required to compile chemical hazard summaries and make them available to the public upon request. Finally, it removed most of the new requirements under the Level 2 and Level 3 Prevention Program elements, including the changes outlined below.

Incident Investigations and Reports

Facilities are no longer required to investigate near-miss events and destroyed processes, complete the report within 12 months of the incident date, or include a schedule to address recommendations. The required details for an incident investigation report revert to the original RMP Rule language and include only the date of the incident, the date the investigation began, a description of the incident, contributing factors, and recommendations.

EHSQ_1_RMP image 1Training

Supervisors are no longer specifically required to be included in the initial or refresher covered process Standard Operating Procedures (SOP) training.

Compliance Audits 

Language specifying that compliance audits must address each covered process has been removed, indicating that a matrix approach may be used. 

Process Safety Information

Language requiring Process Safety Information be maintained up-to-date for Level 3 sites was removed, and the rule reverts to requiring Process Safety Information to be updated before a Process Hazard Analysis.

Hazards Review/Process Hazard Analysis 

Level 2 facilities are no longer required to include the findings from incident investigations; and Level 3 facilities are no longer required to include findings from near-miss incidents.

Modified Requirements

The Reconsideration Rule retained the 2017 RMP requirements summarized below, with modifications where noted. Coordination Efforts with Local Responders

Annual coordination events between all Level 2 and Level 3 sites and their local responders became effective with the DC Circuit Court vacatur in 2018, and this requirement continues under the Reconsideration Rule. However, effective December 19, 2019, the requirement to provide “any other information” was replaced by “other information necessary for developing and implementing the local emergency response plan (ERP).” Responding and non-responding sites must meet annually to ensure local responders are aware of regulated substances, their quantities and risks, and response resources and capabilities; to address changes at the source and in the source's emergency plan; and to address changes in the local community response plan. Sites must provide a copy of their emergency plan and emergency contact information to local response agencies and document these coordination activities. Classified Information Protections

Due to the new limitations on the information that can be requested by response agencies, and to address comments about other categories of classified information, the Reconsideration Rule now states “Disclosure of information classified or protected by the Department of Defense, or other federal agencies, or contractors of such agencies shall be controlled by applicable laws, regulations, or executive orders concerning the release of that classified or restricted information.” The Confidential Business Information (CBI) language from the 2017 Rule was removed because the scope of information requests from local responders has been narrowed, and EPA states in the Final Reconsideration Rule Preamble that facilities are not required to provide CBI to local responders.

EHSQ_1_RMP fig 2Notification Exercises  

All Level 2 and 3 Sites must test their emergency response notification mechanisms once per calendar year to ensure the contact information is accurate. The first notification exercise must be conducted by December 19, 2024, and sites must maintain records of these exercises for the preceding five years. Responding sites can combine the notification exercise with other field or tabletop exercises.

Public Meeting after an RMP-Reportable

Sites must conduct a public meeting within 90 days after only the RMP-reportable incidents with off-site effects, including death, injury, evacuation, shelter in place, or any property/environmental damage that occurs after March 15, 2021. The meeting will address only that incident and must provide the information currently required under 40 CFR 68.42. The requirement to provide chemical hazard summaries at the public meeting has been removed. The date of the public meeting will be reported in the site's Risk Management Plan after the necessary modifications are made to the RMP*eSubmit database.

Emergency Exercises for Responding Facilities 

The Reconsideration Rule maintains the field and tabletop exercise requirements for responding sites in 40 CFR 68.96, but modifies their respective list of activities from “shall” to “should” (see Figures 2 and 3). Facilities must develop their exercise schedule by December 19, 2023, and EPA plans to publish guidance for the emergency response exercises. The timeframe to initiate those exercises is as follows:

  • EHSQ_1_RMP fig 3Conduct first tabletop exercise by December 19, 2026, and at least every three years after; and
  • Conduct field exercise “at appropriate intervals” based on the schedule developed with local public responders.

Sites must develop an evaluation report within 90 days of each field or tabletop exercise that includes any recommendations from the exercise and a schedule to resolve them. In the event of an actual response, sites may use their response to meet the exercise requirement as long as the evaluation report is completed.

Risk Management Plan 

Primarily reverts to the original RMP Rule format, including the date of the last audit, incident investigation, or PHA/Hazard Review, and the expected date to complete any recommended actions. The following new information must be provided in the first required Risk Management Plan update after December 19, 2024:

  • Whether a public meeting has been held following an RMP-reportable incident;
  • Contact information for the Local Emergency Planning Committee (LEPC) with which the facility coordinates emergency efforts and the date of the most recent coordination event;
  • Applicable federal/state emergency plan requirements; and
  • Whether the facility is identified as a responding or non-responding site, and associated activities, see Table 1. 

Maintained Requirements

The Reconsideration Rule maintains without modification the 2017 requirement for Level 2 sites to complete an incident investigation report with a team including personnel with process knowledge and other appropriate knowledge and experience. Other administration changes - such as correcting the list of regulated substances in 40 CFR 68.130, and replacing the term “Materials Safety Data Sheets (MSDS)” with “Safety Data Sheets (SDS)” - were also maintained. The EHSQ_1_RMP Table 1Reconsideration Rule continues to refer to responding sites in 40 CFR 68.90(a) and non-responding sites in 40 CFR 68.90(b). The additional requirements for an ERP remain and include the following:

  • Inform the public and the appropriate federal, state, and local emergency response agencies about accidental releases, following specified procedures;
  • Review and update the ERP as appropriate to incorporate recommendations/lessons from ER exercises and incident investigations, and inform employees of changes; and
  • Develop and implement ERP within three years of determining it is necessary.

Natalie VanLiew, Principal Consultant at Trinity Consultants, presented an on demand webinar on the RMP Reconsideration Rule webinar that reviews EPA's pre-publication version of the Final Reconsideration Rule, the new timing for requirements under this rule, and compliance strategies for companies as they move towards the final stage of the RMP rule changes. Trinity will continue to follow the ongoing litigation on the Reconsideration Rule and will provide updates of court ruling impacts to our client's compliance requirements.