Member Article

On Nov. 20, 2019, United States Environmental Protection Agency (EPA) Administrator Andrew Wheeler signed the Risk Management Program Reconsideration Rule (Reconsideration Rule), which finalized changes to the 2017 Risk Management Program Amendments.

The Reconsideration Rule reflects EPA’s reconsideration of its 2017 Amendments based on objections from three petitions and based on its own review. The Reconsideration Rule was effective on Dec. 19, 2019, and it applies to the same facilities subject to the chemical accident prevention requirements, including certain stationary sources.

In January 2017, EPA issued the Risk Management Program Amendments. The amendments addressed various aspects of risk management programs at stationary sources including accident prevention for Program 2 and Program 3 processes, emergency response preparedness requirements, information availability, and various clarifications and technical corrections of the underlying rules. Two advocacy groups and an 11-state consortium petitioned EPA for reconsideration of the 2017 amendments. EPA considered the petitions, and in May 2018, it published a proposed rulemaking to reconsider the amendments. After a lengthy process, EPA finalized its Reconsideration Rule rescinding certain aspects of the 2017 Risk Management Program Amendments, including:

• Requirement that facilities with Program 2 or 3 processes hire a third party to conduct a compliant audit after a triggering event (i.e., after a RMP reportable accident; due to conditions at the facility that could lead to an accidental release; or when a previous third-party audit failed to meet competency or independence requirements);
  
  
• Requirement that certain facilities with Program 3 processes assess theoretically safer technology and alternative risk management measures applicable to eliminating or reducing risk from process hazards; consider inherently safer technology methods, such as chemical substitution and process redesign, to reduce risk; and evaluate the practicability of any inherently safer technologies and designs considered;
  
  
• Requirement that facilities with Program 2 or 3 processes conduct and document a root cause analysis as part of an incident investigation of a catastrophic release or a near miss; and
  
  
• Requirement that facilities make specified chemical hazard information for all regulated processes available to any member of the public upon request.
  
  

EPA outlined a number of factors that led to these changes. First, it found automatically triggered third-party audits were unnecessary when EPA retains the ability to require audits under appropriate circumstances. Second, EPA found the Safer Technologies and Alternatives Analysis was impractical, extremely costly, and resulted in no net impact on safety because there was no requirement for facilities to implement any of the technologies considered. Third, the incident investigation and root cause analysis were inconsistent with the Occupational Safety and Health Administration’s (OSHA) Process Safety Management standard. By eliminating this inconsistency, the Reconsideration Rule re-harmonizes EPA and OSHA in an effort to prevent or minimize the consequences of accidental chemical releases. Finally, EPA found compelling release of chemical hazard information to the public upon request could pose a security/terrorism threat. Certain chemical hazard information is still available, albeit through more restricted conditions and under different programs, such as the Emergency Planning and Community Right-to-Know Act. 

The Reconsideration Rule also modifies certain regulations relating to local emergency coordination, emergency response exercises, and public meetings after an accident, changing the compliance dates for some of these provisions and modifying risk management plan and air permit requirements relating to rescinded or modified provisions.

The Reconsideration Rule has drawn criticism, and a number of environmental advocacy groups have already sued the Trump administration in an effort to halt the rollbacks contained in the new rule.

If you have any questions regarding these changes, please contact your Dinsmore attorney.