Background

On May 30, 2018, EPA published the proposed Risk Management Program (RMP) Reconsideration Rule (83 FR 24850), which makes significant changes to the RMP Final Rule finalized on January 13, 2017 (82 FR 4594). The proposed Reconsideration Rule removes significant program element changes in the areas of Process Hazard Analysis (PHA), Compliance Audits, Incident Investigation, and Public Information Access. In addition, the proposed rule revises the compliance timelines for several remaining emergency response exercise activities. Significant changes to the RMP regulations retained in the Reconsideration Rule include new emergency response activities and the requirement to hold a public meeting after occurrence of an incident that meets the five-year accident definition in 40 CFR 68.42. The public comment period for these changes was extended to August 23, 2018.

Updates to the RMP regulations were driven by Executive Order 13650, issued August 1, 2013, in response to multiple catastrophic incidents, including the April 2013 West Texas Fertilizer Company explosion, which required multiple agencies to review and update their process safety regulations. EPA published a Request for Information on July 31, 2014; proposed rule on March 14, 2016; and final rule on January 13, 2017, with an initial effective date of March 14, 2017. With the change in Administration, the effective date of the final rule was initially delayed through an Executive Order and then further delayed until February 19, 2019, upon determination that the final rules met the criteria for reconsideration. A key point in the decision for reconsideration was the May 11, 2016 determination by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) that the West Texas Fertilizer explosion was an intentional, criminal act. Reconsideration petitions noted that neither the Chemical Safety Board investigation report, issued January 28, 2016, nor the BATF report was available during the public comment period and that the West Texas Fertilizer incident was a key consideration in issuance of Executive Order 13650 requiring updates to the RMP rule.

EQ Summer 2018 Article 4 Image 1

New RMP Program Requirements Removed in the Reconsideration Rule

The recently proposed rule eliminates multiple changes to program elements that had been required in the January 13, 2017 final rule, including requirements for the following:

  • Third-party audit after a five-year accident or upon agency determination of unsafe conditions
  • Safer Technology and Alternatives Analysis (STAA) and Inherently Safer Technology and Design (ISTD) review for RMP program level 3 sites in NAICS families 322, 324, and 325
  • Program level 3 Process Safety Information to be kept “up to date,” not just updated before a Process Hazard Analysis (PHA)
  • Review of Near Miss activities in program level 3 PHAs
  • Public access to chemical hazard summaries for RMP-subject chemicals onsite
  • Root-cause analysis as part of incident investigation reports

In addition, EPA removed the following changes from the proposed rule language but retained them as potential alternatives in the Reconsideration Rule:

  • Expanding the training requirements pertaining to Standard Operating Procedures and applicable Safe Work Practices to include employees in supervisory roles
  • Including incident investigation findings in RMP program level 2 Hazard Reviews
  • Establishing program Level 2 incident investigation reports and team member qualifications

EPA's decision on these potential alternatives will consider comments received during the public notice period and will be discussed in the preamble to the Reconsideration Final Rule, once published. Industry representatives should review the final rule and the preamble to determine if any of the alternative modifications are finalized to be certain of the changes in compliance requirements.

New RMP Program Requirements Retained in the Reconsideration Rule

While the proposed Reconsideration Rule reverses many of the January 2017 RMP Final Rule components, it retains several significant changes that will become effective if the rule is finalized:

  • Requirement for facilities to hold a public meeting within 90 days of an incident meeting the definition of a five-year accident that provides the information listed in 40 CFR 68.42(b)
  • Emergency response notification, coordination, and exercise requirements
  • Submittal of subject sites' RMP summaries to the CDX RMP*eSubmit database of information associated with these new requirements

With respect to the remaining requirements in the January 2017 Rule, EPA is proposing the following alternatives:

  • Clarification that the public meeting would be required to address only the most recent five-year accident
  • Inclusion of the site's Emergency Response exercise schedule in the public meeting
  • Submittal, if requested by emergency responders, of “other information necessary to develop or implement the local emergency response plan” as part of the information-sharing requirements of the emergency response coordination exercises
  • Complete removal of the field and tabletop exercises in 40 CFR 68.95(b)

Again, facilities should review the Reconsideration Rule once finalized, and its preamble, to determine if any of these alternatives are enacted in order to ensure compliance with future RMP requirements.

Emergency Response Requirements

The most significant provisions being retained from the January 2017 changes relate to new, more stringent emergency response requirements.

EQ Summer 2018 Article 4_RMP chart

  • Emergency response coordination is required at least annually for non-responding and responding sources
  • The emergency response program must be reviewed and updated “as appropriate”
  • Response to an actual accidental release can be used as acoordination, tabletop, or field exercise if the associated response and exercise evaluation report requirements are met within 90 days of the event.
  • All Level 2 and 3 sites must conduct annual tests of emergency response notification mechanisms, starting within five years of the effective date of the final rule.
  • For responding sites, tabletop exercises are required within seven years of the initial final rule effective date and at least every three years thereafter. Tabletop exercises should include discussions (instead of tests) of notification and emergency response steps, including equipment and contractor deployment
  • For responding sites, field exercise requirements are required at “appropriate intervals” and should include tests of notification and emergency response steps, including equipment and contractor deployment.

For more details on the RMP Reconsideration Rule, view our recorded webinar here. For training on RMP / PSM requirements, register online for Trinity's Understanding and Application of RMP and PSM Requirements course visit www.trinityconsultants.com/training .

LATE BREAKING NEWS! DC Court Vacates RMP Delay Rule

On August 17, 2018 the DC Circuit Court vacated the RMP Delay Rule, impacting the effective date of the January 2017 Final Rule provisions. The court held that EPA was inconsistent in its actions and did not have statutory authority for a delay beyond 90 days. Furthermore, the court held that the EPA failed to adequately disprove the prior factual findings made as part of the Amendments. In addition, this decision allows some provisions of the amendments to become effectively immediately, impacting industry in the short term:

  1. Facilities to conduct 3 year compliance audits to cover all elements of each covered process (Original Effective Date: March 14, 2017); and
  2. Facilities to coordinate with local responders on Emergency response activities (Original Effective Date March 14, 2018).

The effective date of this decision continues to evolve, as the court listens to arguments from both sides on the timing of the vacate issuance. In addition, parties involved will be allowed time to file petitions for rehearing which may further delay the vacate issuance.

Parties involved will be allowed time to file petitions for rehearing and the government has 45 days to respond. If the court grants a response, it could likely add at least another 30 days until the mandate issues. One other potential impact for Program Level 3 facilities (NAICS codes 322, 324, and 325 only) is the timing for implementing the Safer Technology Alternatives Analysis (STAA) provision. It is uncertain whether affected facilities will need to incorporate STAA into their PHA if it occurs before 2021.

Trinity will continue to follow the RMP Rule legal case proceeding. Any questions regarding the Reconsideration Rule or the January 2017 Final Rule, please reach out to Ms. Natalie VanLiew at (913) 894-4500 or at nvanliew@trinityconsultants.com .