U.S. EPA Updates RMP Rule

U.S. EPA Largely Rescinds The 2017 Risk Management Plan Rule Changes

On December 19, 2019, the U.S. Environmental Protection Agency (U.S. EPA) issued the final rule rescinding most of the significant amendments to the Accidental Release Prevention Requirements under the Clean Air Act Risk Management Program (RMP) Reconsideration Rule. In January 2017, U.S. EPA had finalized to the rule, found at Title 40, Code of Federal Regulations, Part 68 (40 CFR Part 68). Following challenge petitions and a change in the Administration, U.S. EPA proposed to rescind or modify most of the January 2017 amendments during May 2018.  The December 2019 final rule took effect immediately. The following paragraphs present the rescinded requirements, the requirements that remain unchanged or modified from the 2017 amendments, and anticipated activities and approaches for facilities covered by this Rule to demonstrate compliance.

 Rescinded Requirements from the 2017 Amendments

Key 2017 RMP Rule Amendments that were rescinded by the December 2019 final rule include:

• Requirement that facilities with Program 2 or 3 processes hire a third party to conduct a compliance audit after a triggering event, such as an RMP reportable accident;
• Requirement that certain facilities with Program 3 processes perform Safer Technologies and Alternatives Analysis – specifically Program 3 regulated processes in North American Industry Classification System (NAICS) codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing);
• 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 a schedule for completion of actions on recommendations within 12 months;
• Requirement to include findings from incident investigations in hazard reviews; and
• Requirement that facilities make certain chemical hazard information for their regulated processes available to any member of the public upon request.
• Requirement to include process supervisors in required training programs.

Modified Requirements from the 2017 Amendments

This rule update modified certain requirements relating to local emergency coordination, emergency response exercises, and public meetings after an accident; modified risk management plan and air permit requirements relating to rescinded or modified provisions; and changed the compliance dates for some of these provisions.

The following requirements became effective when the final rule was issued on December 19, 2019:

• Opportunities for equipment malfunctions or human errors that could cause an accidental release must be addressed in the Hazard Reviews (40 CFR §.50).
• Training requirements apply to employees with process operational responsibilities (40 CFR 68.54).
• Incident investigations and reports are required for catastrophic releases or incidents that could have resulted in a catastrophic release and such incidents must be included in the Process Hazard Analysis (40 CFR §68.67 and §68.81).
• Third-party audits are no longer required, but compliance audits are required every 3 years (40 CFR §68.79).

Risk Management Plans must provide additional data fields, including dates of compliance audits – and the expected completion date of changes resulting from the compliance audit – for Program 2 and 3 processes, contact information for response organizations coordinating with the facility, exercises conducted, and any required public meetings.

Finally, these requirements include future compliance dates or timelines based on applicability of the requirement:

• Regulated facilities must consult with local emergency response officials to establish appropriate schedules and plan for field and tabletop exercises (Timeline in 40 CFR §68.10, with content in 40 CFR §68.93 and §68.96).
• Notification exercises will be required annually, beginning December 19, 2024 (40 CFR §68.93).
• Regulated facilities must hold a public meeting within 90 days following the occurrence of a reportable accident with offsite impacts – but hold classified information in accordance with regulations concerning its release (40 CFR §68.210).
• Facilities no longer subject to RMP must “de-register” with U.S. EPA within six months (40 CFR §68.190).

Effects on Industrial Facilities

Two overall themes were noted by U.S. EPA from the modified requirements:

• This Reconsideration Rule re-harmonizes U.S. EPA’s RMP and the Occupational Safety and Health Administration’s (OSHA) Process Safety Management standard in an effort to prevent or minimize the consequences of accidental chemical releases, notably the incident investigation and root cause analysis requirements.
• This rule update makes changes to the RMP regulations to reduce chemical facility accidents without disproportionately increasing compliance costs or otherwise imposing regulatory requirements that are not reasonable or practicable for the whole of the regulated universe of facilities. Instead, U.S. EPA’s Office of Enforcement and Compliance Assurance has identified RMP as a national compliance initiative for the next several years, with the expectation of a focused enforcement effort by state agencies and U.S. EPA.

Key facility Environmental, Health, and Safety (EHS) takeaways from the rule update include:

• Consider conducting your RMP compliance audit at the same time as the Process Safety Management (PSM) compliance audit. The relatedness of the data in both rules may provide a benefit.
• For Program 2 facilities, conduct refresher training under 40 CFR §68.54(b) for process operators to re-start your three-year cycle in advance of your three-year compliance audit cycle. Documentation of training will be reviewed carefully under the agency compliance initiative mentioned above.
• For Program 2 facilities, the facility should look at its version of change management and pre-start up procedure documentation in terms of the “major” change¹.  The flow of information from procedure to training will also be reviewed carefully under the agency compliance initiative mentioned above.
• Conduct an exercise program before the compliance of December 2023 – this allows time to correct data collection failures before regulatory reporting deadlines.
• Test the notification system with an exercise before the compliance date in December 2024. Two benefits arise: one, it allows the facility time to can correct deficiencies, and two, in the event of an incident before the compliance date, that system may enhance the response by the facility, the responding agencies, and the the response contractors (if any).
• Develop a process for public meetings and communication after a qualifying incident. If your facility has a qualifying incident after March 2021, the facility must conduct a public meeting within 90 days of the incident.  Managing the incident and follow-up will require the bulk of the facility EHS team’s attention, so planning the process reduces stress.  Facilities should also note that this requirement’s compliance date is offset from the remaining deadlines that occur on annual anniversaries of the rule publication date.

U.S. EPA has published the compliance dates for elements of the rule in its Rule Summary.

Choose a Partner Who is Committed to Quality

Whether we’re advising you at the start of a project or preparing an RMP update for submission to the U.S. EPA, ALL4 will deliver excellence and quality in everything we do. That starts with understanding your needs and, as a project progresses and your goals evolve, tailoring our work to reflect that evolution. Taking steps early to enhance the quality of our service makes everyone more flexible and resilient, establishes trust, helps us better serve our clients, and ultimately contributes to your ongoing success.  For more information on RMP or PSM please contact Mark Robinson at mrobinson@all4inc.com or 470.893.2880.

¹ 40 CFR §68.3 Major change means introduction of a new process, process equipment, or regulated substance, an alteration of process chemistry that results in any change to safe operating limits, or other alteration that introduces a new hazard.
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