EPA poised to strengthen chemical facility risk management program regulations

Background: RMP

• Under Section 112(r) of the Clean Air Act, the EPA must publish regulations and guidance regarding chemical accident protection at facilities nationwide. The agency has implemented this regulation via the Risk Management Program (RMP) rule, codified at 40 CFR Part 68. The regulations apply to stationary sources of pollution (and not to transportation) from which an accidental release of a hazardous chemical may occur. The rule (and implemented regulations) contain a variety of actions that stationary source owners and operators must take to prevent or reduce the severity of any releases of specified chemicals into the environment.
• In general, the RMP rule requires that certain stationary sources (often chemical manufacturing or other facilities) that use extremely hazardous substances develop risk management plans to reduce the severity of chemical accidents. The program currently covers about 12,000 different facilities nationwide.
• These risk management plans must contain three major pieces of information: (1) the potential effects of a chemical accident at the facility; (2) the steps the facility is taking to prevent an accident; and (3) the emergency response actions required if an accident occurs. The facility must provide these plans to local emergency response teams to ensure an appropriate response if an accident occurs.
• The RMP rule is applicable to facilities that hold more than a specified threshold amount of a substance on the List of Regulated Substances ( 40 CFR 68.130). Most threshold quantities are 10,000 pounds or greater, but some are as low as 500 pounds for extremely hazardous substances.
• The agency initially issued the RMP regulation in two stages, beginning with the list of regulated substances in 1994 and a greater RMP rule in 1996. The rule received additional modifications in 2017, which included additional analysis of safer technology and alternatives for some processes as well as updated regulations concerning third-party audits and root cause analysis.

Background: Accident prevention rules history

• The 2017 rule was prompted by Executive Order (EO) 13650 issued on August 1, 2013. The EO charged the EPA (and other agencies) to modernize policies and regulations surrounding the safety and security in chemical facilities. The agency received three separate petitions for reconsideration of the 2017 amendments, which it then used to finalize a 2019 rule. The reconsideration rule most notably removed most of the new accident protection requirements included in the 2017 rule, in addition to making modifications to other aspects of the 2017 changes. Like the 2017 rule, the 2019 rule also received petitions on the changes.
• On January 20, 2021, newly elected President Biden released EO 13990, which directed federal agencies to review a wide array of Trump Administration-released rules to determine whether they comported with the plans of the new administration. The agency held several virtual public listening sessions on the rule in June and July 2021 in addition to nearly 28,000 public comments on any proposed changes of the rule (mostly in the form of mass comment campaigns or form letters).

Changes in the 2022 proposed rule

• On August 31, 2022, the EPA announced a proposed rule that would yet again revise the RMP, with a focus on modernizing policies and amending the regulations changed post-2017 as well as additional emphasis on improving the country’s resilience to the impacts of climate change and prioritizing environmental justice. The rule, Safer Communities by Chemical Accident Prevention (SCCAP), also aimed to increase communications with communities with environmental justice concerns, public health advocates, and other stakeholders throughout the process.
• Some of the major changes proposed in the SCCAP rules focus on preventing chemical accidents from occurring (or reducing their likelihood) in the first place. This includes confirmation that facilities must address both natural hazards and power loss when conducing hazard reviews and analyses, as well as requiring a justification in a facility’s risk management plan when it does not adopt a hazard evaluation recommendation. In a similar lane, the agency also noted that facility siting should be addressed in hazard reviews and analyses, and would similarly require a justification when facilities diverge from recommendations in their risk management plans.
• The agency also proposed changes to the safer technologies and alternatives process (STAA) for facilities. The proposed rule would require a STAA and practicability review for certain RMP-covered processes for facilities covered by North American Industrial Classification System (NAICS) codes 324 (Petroleum and Coal Products Manufacturing) and 325 (Chemical Manufacturing). The changes would also require STAAs for all facilities in NAICS 324 that use hydrofluoric acid (HF) in an alkylation unit and consider safer alternatives to HF. The agency would also require justifications when facilities diverge from the STAA recommendations.
• When facilities experience an RMP-reportable event, the EPA is also now proposing to require root causes analyses as part of general incident investigation. This is aimed at reducing accidents that occur repeatedly within the same process. The agency noted that, facilities that do report accidents often report multiple accidents, which indicates “a failure to properly address circumstances leading to subsequent accidents.”
• The rule will also add additional third-party audit requirements for facilities that have experienced issues with RMP-related incidents. Under the proposed rule, the EPA will require any compliance audits to be conducted by a third party if a facility experiences two or more RMP-reportable events in five years, or one reportable event if the facility is classified under NAICS 324 or 325 and is sited close to another RMP-regulated facility.
• The rule will also require additional employee participation in resolving process hazard analyses as employees are the most exposed to the hazards and are typically the most knowledgeable about a safe operating process. The EPA recognized that these employees may sometimes be the “only source of process-specific knowledge” and can help keep communities safe.

Selected comments on the proposed rule

• The proposed rule attracted almost 58,000 comments, with the majority coming in the form of mass comment campaigns or form letters. The EPA posted a total of 374 on the agency’s Regulations.gov docket for the proposed rule.
• Sen. Shelley Moore Capito (R-WV) and Rep. Cathy McMorris Rodgers (R-WA) submitted comments asserting “serious concerns” over the proposed rule. The crux of the comment’s argument asserts that the agency’s rule exceeds the scope of the 2017 rule, does little to improve workplace safety, and will drastically raise fuel costs. The comment also targets the EPA’s decisions regarding HF alkylation, arguing that it will “significantly impede domestic gasoline production.”
• Earthjustice submitted a voluminous comment (in addition to many different appendices) that stated t the agency should further strengthen the proposal to a final rule to reduce chemical disasters around the country. The comment noted that although the agency has proposed new and expanded safety measures, these measures must be improved to better protect health and safety surrounding chemical facilities.
• The attorneys general of New York, California, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin (and the county attorney for Harris County in Texas) submitted comments that also generally supported the rule. However, like Earthjustice, the attorneys general stated that the agency should strengthen the rule, particularly focusing on environmental justice concerns and HF alkylation STAAs in the future.

OIRA review and future publication

• On September 25, 2023, the Office of Information and Regulatory Affairs (OIRA) began reviewing the SCCAP rule. OIRA review typically takes about 90 days to complete, however the agency took over 140 days to review the regulation before finalizing its review on February 15, 2024. This means that the EPA will likely publish the finalized rule in the coming weeks, first as a pre-publication version and then in the Federal Register.
• This additional review time could mean that the agency has introduced significant changes from the proposed rule (or that OIRA is just busy and de-prioritized the review of the rule). If this is the case (and even if the rule is mostly consistent with the proposed version), the rule could face significant challenges at the court level. Both industry and environmentalist groups have identified that the fastest way to effect change from the agency is rarely via petitioning for specific rulemakings, but instead to sue to block or enforce a specific rule.
• If a group sues over the rule, the initial venue for filing could play a significant role in whether the EPA is restricted from temporarily restricting the rule. Groups challenging the ruling (either to strengthen or to restrict it) will likely consider the general ideological leanings of any venue that they file in as a strategic element to either keep the rule open or block it (at least temporarily) from being applied.
• The rule may also attempt to implement some lessons that the agency learned in the wake of the East Palestine train derailment. Although the rule would likely not cover the derailment (as it covers stationary sources of pollution), the significant increase in public interest in stronger chemical safety regulations since the derailment may actually push the agency to go further than the proposed rule.
• The agency expects the rule to cost approximately $75 million per year to implement. The rule does not have any expected monetizable benefits, however the agency stated that it estimates the yearly costs from RMP facility accidents at $477 million per year, which could be partially mitigated by the rule changes. There are also likely some non-monetizable health benefits in the rule, including reduced injuries and health effects, property damage, or productivity.

To contact the author of this analysis, please email Walker Livingston ( [email protected]).

To contact the editor of this analysis, please email Patricia Iscaro ( [email protected]).

Key Documents and Dates

• OIRA rule page and review completion page
• Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention (August 31, 2022)
• Comments on proposed rule
• Regulatory Impact Analysis
• Fact Sheet for Regulated Facilities: Safer Communities by Chemical Accident Prevention (August 2022)
• RMP SCCAP Proposed Rule Summary Presentation (September 2022)