EPA Proposes Overhaul to Risk Management Program

March 28, 2016
Michael C. Nines, P.E., LEED AP and Todd D. Kantorczyk, Esq.
MGKF Special Alert

On March 14, 2016, the United States Environmental Protection Agency (“EPA”) published in the Federal Register a proposed rule to overhaul the Risk Management Program (“RMP”) regulations found at 40 C.F.R Part 68.  Approximately 12,500 facilities across the United States that have more than a threshold of regulated substances in a covered process are potentially affected by the proposed RMP rule.  Typical facilities covered by the RMP regulations include petroleum refineries, chemical manufacturers and distributors, water and wastewater treatment systems, food manufacturers, midstream gas plants, and cold storage facilities.  While EPA is not proposing revisions to the list of regulated substances, the proposed RMP rule includes several important changes to the RMP program, described below, for certain regulated facilities.

  • Incident Investigations and Root Cause Analysis: The proposed Rule would require an incident investigation and root cause analysis after any incident that resulted in or could have reasonably resulted in a catastrophic release (including near misses).  Findings would be summarized in a report and submitted to EPA.
  • Third Party Audits:  The proposed Rule would require a facility that has an RMP reportable accident to use an independent third party to conduct its next scheduled audit.  The proposed Rule contains strict criteria for auditor competence and independence, including (1) familiarity with 40 C.F.R. Part 68, (2) experience with the facility type and processes being audited and the applicable recognized and generally accepted good engineering practices, (3) trained or certified in proper auditing techniques, and (4) be a licensed Professional Engineer (“PE”) or include a licensed PE on the audit team.
  • Safer Technology Alternatives Analysis: Certain facilities in three industry categories—paper manufacturing, coal and petroleum products manufacturing, and chemical manufacturing—would be required to evaluate safer technology and alternatives when conducting the process hazard assessment already required by the current RMP rule.
  • Local Coordination: The proposed Rule would require annual coordination with Local Emergency Planning Committees (“LEPCs”) to clarify response needs, emergency plans, roles, and responsibilities.
  • Emergency Response Exercises: The proposed Rule would require facilities to conduct annual tabletop emergency response exercises with a field exercise every five years.  All facilities would also perform notification exercises annually to ensure their emergency contact information is accurate and complete.
  • Information Sharing to LEPC’s: The proposed Rule would add new LEPC disclosure requirements for all RMP facilities.  Specifically, LEPCs would receive Incident Investigation Reports, a summary of inherently safer technology adopted according to a Safer Technology Alternatives Analysis, and emergency response exercise reports. 
  • Information Sharing to Public: Under the proposed Rule, the public would receive chemical hazard information, summaries of emergency response exercises, and LEPC contact information.  The proposed Rule would also require a public meeting for the local community after an RMP reportable accident. 

The EPA’s RMP efforts are being conducted in parallel with the Occupational Safety and Health Association’s (“OSHA”) efforts to revamp its Process Safety Management (“PSM”) program regulations.  OSHA has initiated a Small Business Advocacy Review Panel in order to get feedback on several potential revisions to the PSM standard, which it expects to complete by the end of April 2016.

The EPA has established a 60-day public comment period for the proposed Rule ending on May 13, 2016.  A link to the proposed Rule can be found here.  

For questions concerning the proposed Rule or assistance in submitting a written comments, please contact attorney Todd D. Kantorczyk (484-430-2359) or technical consultants Michael C. Nines (484-430-2350) or William Hitchcock (484-430-2356).

Note:  As of June 2017, EPA Administrator Pruitt delayed effective date of RMP amendments until February 19, 2019. The new timeframe will allow the agency to properly evaluate objections raised by petitions reconsideration.