Background
On May 18, 2018, the EPA issued a pre-publication version of a proposed rule revising the agency’s previous amendments to the RMP rule, which is intended to reduce the likelihood of catastrophic incidents resulting from the storage and handling of highly hazardous materials. Originally initiated in response to President Obama’s August 2013 executive order on improving industrial facility safety following an explosion at a fertilizer facility in West, TX, a final rule was issued by EPA updating the RMP with new requirements in early 2017. At the time, the EPA stated that the rule updates “could further protect human health and the environment from chemical hazards through advancement of process safety management based on lessons learned.” 82 Fed. Reg. 4595 (Jan. 13, 2017). The rule was challenged by industry groups and numerous state attorneys general who argued that the revisions were unnecessarily burdensome and could effectively worsen safety and threaten facility security. Following the change in administration, the EPA delayed the effective date of the rule until February 19, 2019, indicating that the agency needed additional time to reconsider the proposed changes. The proposed rule is the result of this reconsideration and includes the following proposed modifications.
Safer technology and alternatives analyses (§ 68.67(c)(8))
EPA has proposed rescinding the requirement for safer technology and alternatives analysis in its entirety. The proposed rule also removes relevant inherent safety definitions in § 68.3, including “active measures,” “inherently safer technology or design,” “passive measures,” “practicability” and “procedural measures.”
Third-party audits (§§ 68.58, 68.59, 68.79 and 68.80)
The proposed rule rescinds the requirement to utilize third parties in conducting audits, and has removed the words “for each covered process” from the compliance audit provisions in §§ 68.58 and 68.79
Incident investigations (§§ 68.60 and 68.81)
EPA has proposed rescinding requirements for: (1) conducting root cause analysis for incident investigations; (2) the incident investigation report to have specified added data elements, including a schedule to address recommendations, a 12-month completion deadline, and for § 68.60 only, a five-year record retention (though the existing rule’s five-year record retention requirement at § 68.200 will still apply); and (3) investigating any incident resulting in catastrophic releases that also results in the affected process being decommissioned or destroyed. EPA has further proposed to remove the clarifying text “(i.e., a near miss)” that was added to describe an incident that could reasonably have resulted in a catastrophic release. In § 68.60, EPA proposes to change the term investigation “report(s)” to “summary(ies)” and rescind the requirement for Program 2 processes to establish an incident investigation team consisting of at least one person knowledgeable in the process involved and other persons with experience to investigate an incident. EPA also proposes to rescind the requirement that a hazard review include findings from incident investigations, although also includes as an alternative for consideration, maintaining this requirement.
Information availability (§ 68.210)
The proposed rule would remove the requirements for providing to the public, upon request, chemical hazard information and access to community emergency preparedness information in § 68.210(b)-(d), as well as rescind the requirement to provide the “other chemical hazard information such as that described in paragraph (b)” at public meetings. The rule would retain the requirement that the owner or operator hold a public meeting to provide accident information required under § 68.42(b) no later than 90 days after any accident subject to reporting under § 68.42, and would also retain controls and restrictions on confidential business information (CBI) and RMP disclosure.
Emergency response preparedness (§ 68.93)
The proposed changes to RMP maintain requirements relating to local emergency coordination, emergency drills, and public meetings with some revisions. Specifically, the proposed rule would delete a phrase in § 68.93(b), currently requiring operators to provide “any other information that local emergency planning and response organizations identify as relevant to local emergency response planning.” Alternatively, the rule proposes replacing it with narrower language allowing access to “other information necessary for developing and implementing the local emergency response plan.” The rule would retain the requirement for owners and operators to provide the local emergency planning and response organizations with the stationary source’s emergency response plan, emergency action plan, and updated emergency contact information. The rule also maintains the requirement for the owner or operator to request an opportunity to meet with the local emergency planning committee and/or local fire department to review these materials. EPA proposes to incorporate appropriate classified information and CBI protections to regulated substances and stationary source information required to be provided under § 68.93. Changes have also been made to the compliance dates for meeting these provisions. EPA is considering whether to modify or rescind requirements relating to field and tabletop emergency response drill exercises.
Other changes
EPA proposes to rescind employee training requirements (§§ 68.54 and 68.71) that would apply to supervisors responsible for process operations as well as rescind minor wording changes involving description of employees operating a process in § 68.54. EPA proposes to rescind the requirement in § 68.65 for the owner or operator to keep process safety information up-to-date and the requirement in § 68.67(c)(2) for the process hazard analysis to address the findings from all incident investigations required under § 68.81, as well as any other potential failure scenarios. EPA will retain two changes that would revise the term “Material Safety Data Sheets” to “Safety Data Sheets (SDS)” in §§ 68.48 and 68.65.
Separate agency efforts
The shift away from more stringent process safety requirements in environmental and safety policy at the federal level is reflected both in this proposed revision announced by EPA as well as a stalled effort by the Occupational Safety and Health Administration (OSHA) to promulgate revisions to its Process Safety Management (PSM) standard, originally proposed in 2014. OSHA has since indicated that the agency is pausing its rulemaking in order to consider public comments.
Some western states, however, have undertaken localized efforts to strengthen process safety regulations through related regulatory schemes. California promulgated a new Refinery PSM rule in 2017 and has initiated enforcement under the more stringent rules at certain covered facilities. In addition to requirements originally proposed by EPA’s update, including strict inherent safety and incident investigation provisions, the California Refinery PSM rule includes a damage mechanism review element and significantly broadens the scope and applicability of the regulations by removing the threshold quantity trigger and broadening the definition of “process.” California’s rule also establishes new definitions for Recognized and Generally Accepted Good Engineering Practices (RAGAGEP) and inherent safety. Following California’s lead, Washington State Department of Occupational Safety and Health (DOSH) initiated the informal stages of its rulemaking process on Refinery PSM regulations using the California Refinery PSM rule as an initial draft. DOSH is currently holding regular stakeholder meetings to seek input on the changes before issuing a proposed rule.
While the proposed rule’s less-stringent requirements will be welcomed by industry, there remain differences with OSHA’s PSM standard, which was virtually identical until EPA’s changes were issued in 2017. Most facilities that are subject to one of these two rules also meet the applicability requirements for the other. Industry groups expressed concern that changes to one without the other would have introduced confusion into implementing programs that have been in place since the rules’ inception in the early 1990s. Companies, particularly those owning western refineries, will still contend with implementing accident prevention regulations that are no longer consistent with each other. Although EPA’s recent action may lessen that burden, companies may still face challenges designing and executing fit-for-purpose compliance programs with variations from state to state and between facility types. Tracking the various rulemaking efforts and working with experienced professionals in the process safety field to develop corresponding compliance programs will be important to ensure all legal requirements of these changing programs are met.
A copy of the pre-publication version of the Proposed RMP Reconsideration Rule and more information on its history can be accessed here.
Client Alert 2018-116
