May 28, 2024 EPA’s RMP Rule Changes Create Compliance Concerns

Recent amendments require planning ahead of compliance deadlines.

By Paul Jacobson, Spencer Fane LLP

The U.S. Environmental Protection Agency (EPA) recently amended its Risk Management Plan regulation (RMP Rule), which applies to facilities holding threshold quantities of regulated substances. As background, these facilities must assess their potential release impacts, take steps to prevent releases, plan for emergency response to releases, and summarize this information in a risk management plan.

Facilities potentially subject to the RMP Rule include chemical manufacturers; water treatment systems; chemical and petroleum wholesalers and terminals; food manufacturers; agricultural chemical distributors; and more.

EPA’s recent amendments add new elements to the above framework and require significant preparation. Some of the key changes are as follows.

Hazard Evaluation Amplifications

The amendments require facilities to address and plan for natural hazards, including those caused by climate change. The amendments define “natural hazard” and provide a list of examples. EPA calls this merely an amplification of a pre-existing requirement.

Hazard evaluations must address power failure and standby or emergency power systems. Again, EPA calls this an amplification of pre-existing requirements. Also, control or monitoring equipment used to prevent and detect accidental releases must be equipped with standby or backup power.

The amendments clarify that siting evaluations must address the placement of processes, equipment, buildings, and hazards posed by proximate facilities, and accidental release consequences posed by proximity to public receptors.

Submitted RMPs must identify and justify rejected hazard evaluation recommendations on natural hazards, power loss, and siting.

STAA and Practicability Assessments

Program 3 processes in the petroleum refining and chemical manufacturing sectors must conduct Safer Technologies and Alternatives Analysis (STAA), examining the availability of “inherently safer technology or design” (IST / ISD), and passive, active, and procedural measures. A narrower subset of facilities must also document the practicability of the IST / ISD considered and implement at least one safeguard considered. Also, facilities subject to STAA must provide, in RMPs, basic information on IST/ISD considered and categories of safer design implemented.

Root Cause Analysis

The amendments require a Root Cause Analysis as part of incident investigations for accidents meeting five-year accident history eligibility. Root cause is defined as “a fundamental, underlying, system-related reason why an incident occurred that identifies a correctable failure(s) in management systems and, if applicable, in process design.” EPA did not define “near miss.”

Third-Party Compliance Auditing

The amendments require a third-party compliance audit after a qualifying release, or when the implementing agency determines conditions “could lead” to an accidental release. A qualifying release is one accidental release from a covered process meeting the five-year accident history eligibility. If an agency makes a “could lead” determination or a qualifying release occurs, then the next required audit, which are required every three years, must be a third-party audit. Third-party auditors must meet competency and independence requirements.

Employee Participation

Program 3 processes must consult with knowledgeable employees on recommendations and findings from PHAs, compliance audits, or incident investigations. Program 3 processes must provide employees that are knowledgeable in a process the authority to recommend that an operation or process be shut down based on potential for catastrophic release, and qualified and knowledgeable operators must have authority to shut down an operation or process. Program 2 and 3 processes must allow employees to anonymously report unaddressed hazards that could lead to a catastrophic release, unreported RMP-reportable accidents, or other RMP noncompliance.

Emergency Response

Non-responding facilities must maintain and implement procedures for informing the public and emergency response agencies about accidental releases. Both responding and non-responding facilities must partner with local response agencies to ensure that a community notification system is in place. They must provide to local first responders timely data and information detailing nature of a release whenever a release occurs that necessitates a response. Also, for responding facilities, the amendments revise the required frequency of field exercises to at least every 10 years.

Public Information Availability

The amendments require facilities to provide a variety of chemical hazard information to a subset of the public, upon request. The subset consists of those persons residing, working, or spending significant time within a six-mile radius of the facility. Facilities must also provide ongoing notice on a company website or other public means that this information is available.

Most of the above provisions are required by May 2027, with a minority required by May 2028. Notably, EPA’s position appears to be that the hazard evaluation amplifications discussed above are currently enforceable.

Paul Jacobson is an attorney in the Kansas City, Missouri, office of Spencer Fane LLP. His private practice focuses on guiding businesses through their environmental and workplace safety legal challenges involving the EPA, OSHA, state environmental and workplace safety agencies, and private third parties. For more information, visit spencerfane.com.

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