EPA Adds Extensive New Amendments to its Risk Management Program in Final Rule

March 22, 2024

Environmental Law

On March 11, 2014, the Environmental Protection Agency (EPA) published in the Federal Register amendments to the Risk Management Program (RMP) rule (Final Rule). Going into effect on May 10, 2024, EPA’s Final Rule, named the “Safer Communities by Chemical Accident Prevention” Rule, includes over 70 pages of changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, expansions to the public availability of chemical hazard information, and several points of clarification to certain regulatory definitions. EPA’s purpose in publishing this Final Rule is to improve chemical process safety; assist in planning, preparedness, and response to RMP-reportable accidents; and improve public awareness of chemical hazards at chemical sources.

To Whom Does the Final Rule Apply?

The Final Rule applies to all 11,740 regulated RMP facilities subject to the chemical accident prevention provisions under the Code of Federal Regulations, Title 40, Part 68 and creates more rigorous requirements for Program 2 and Program 3 facilities. Any owner or operator of a facility that has more than a threshold quantity of a regulated substance in a process must comply with these requirements in addition to the Final Rule. (40 CFR §§ 68.1, 68.10.)

What Amendments Did EPA Make to the RMP Rule?

The RMP rule implements section 112(r) of the 1990 Clean Air Act amendments to improve chemical accident prevention at facilities by requiring facilities that use extremely hazardous substances to develop a Risk Management Plan. In the Final Rule, EPA supplemented the RMP rule with major changes, most notably:

  • Requiring monitoring equipment associated with prevention and detection of accidental releases from covered processes to have standby or backup power and requiring documentation of removal of said equipment during imminent natural hazards. (40 CFR §§ 68.50(a)(3), 68.52(b)(9), 68.67(c)(3), and 68.69(a)(4).)
  • Expand the safer technologies and alternatives analysis (STAA) evaluation to all regulated facilities with Program 3 processes in NAICS codes 324 and 325. (40 CFR § 68.67(c)(9).)
  • Requiring implementation of at least one passive measure at an applicable facility, an 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. (40 CFR § 68.67(h).)
  • Requiring the owner or operator to investigate specific factors that contributed to an incident for incidents that meet the accident history reporting requirements under 40 CFR section 68.42. Paragraph (h)(1) would require that a report be prepared at the conclusion of the investigation and completed within 12 months of the incident. Paragraph (h)(2) would require specific factors to be investigated, including the initiating event, direct and indirect contributing factors, and root causes. (40 CFR §§ 68.60(h) and 68.81(h).)
  • Expand the types of scenarios triggering a third-party audit. An accidental release meeting the criteria in 40 CFR section 68.42(a) from a covered process and any time an implementing agency exercises its discretion to require a third-party audit would now trigger a third-party audit. (40 CFR §§ 68.58(f) and 68.79(f).)
  • Including several changes to employee training, stop work criteria, related documentation. (40 CFR §§ 68.83(c) and 68.83(d).)
  • Allowing the person reporting an unaddressed hazard, unreported accident, or noncompliance to decide whether or not they wish to make an anonymous report or attribute their identity to the report. (40 CFR §§ 68.62(b) and 68.83(e).)
  • Requiring the owner or operator to keep a written record of the report of noncompliance. (40 CFR §§ 68.62(b) and 68.83(e).)
  • Specifying that the owner or operator should partner with local response agencies to ensure a community notification system is in place, and to document the collaboration. (40 CFR §§ 68.90(b)(6) and 68.95(a)(1)(i).)
  • Expanding the population eligible to submit information requests to include members of the public residing, working, or spending significant time in a 6-mile radius from the fenceline of the facility, as opposed to just those residing in a 6-mile radius, as well as the list of information required to be available upon request to include declined recommendations reported under 40 CFR sections 68.170(e)(7) and 68.175(e)(7)-(9).
  • Adding a compliance date to 40 CFR section 68.10 to require standby or backup power for air monitoring and control equipment by three years after the effective date of the final rule (May 10, 2024).

What Should My Facility Do in Response to the Final Rule?

Facilities subject to the RMP Rule should familiarize themselves with the Final Rule and make necessary changes and updates to their Risk Management Plan to remain in compliance. The Final Rule provides a three-year grace period for compliance for several of the new changes. Facilities should anticipate costly changes and updates, as EPA estimates that the Final Rule will cost between $260 to $300 million to implement, with STAA implementation accounting for the largest share of new compliance costs ($169 to $205 million).

Downey Brand is working with clients on their RMP programs and the changes required by the Final Rule. We continue to monitor regulatory developments affecting compliance standards to ensure the best outcomes for our clients. Please contact us with any questions.