EPA Amends Risk Management Program Requirements to Protect At-Risk Communities from Chemical Accidents

On March 1, 2024, the U.S. Environmental Protection Agency (EPA) released its “Safer Communities by Chemical Accident Prevention Rule” (SCCAP Rule), amending the Risk Management Program (RMP) “to further protect vulnerable communities from chemical accidents, especially those living near facilities in industry sectors with high accident rates.” The rule implements sweeping amendments to the RMP. It reflects the culmination of three public hearings, many comments on EPA’s proposed rule issued in August 2022, and the efforts of many spanning administrations going back to President Obama. EPA notes that the final rule includes new safeguards such as identifying inherently safer technologies and chemical alternatives, requiring implementation of safeguard measures in certain cases, more thorough incident investigations, and third-party auditing. EPA states that these updates “should benefit nearby communities by reducing the frequency of chemical releases and their adverse effects.” EPA has posted a pre-publication version of the final rule. The final rule will take effect 60 days after publication in the Federal Register.

Final Changes in the SCCAP Rule

EPA’s fact sheet for regulated facilities includes a helpful summary of the following changes in the final rule. EPA uses an asterisk (*) to indicate provisions that have not been addressed in prior RMP rules.

Prevention Program (Subparts C and D)

• Natural hazards and power loss*: (1) Adding amplifying regulatory text to emphasize that natural hazards (including those that result from climate change) and loss of power are among the hazards that must be addressed in Program 2 hazard reviews and Program 3 process hazard analyses; (2) Requiring back-up power for release monitoring equipment; and (3) Requiring a justification in the Risk Management Plan when hazard evaluation recommendations are not adopted.*

• Facility siting: (1) Emphasizing that facility siting should be addressed in hazard reviews and explicitly defining the facility siting requirement for Program 2 hazard reviews and Program 3 process hazard analyses; and (2) Requiring a justification in the Risk Management Plan when facility siting hazard recommendations are not adopted.*

• Safer technologies and alternatives analysis (STAA): Requiring (1) an STAA evaluation for all Program 3 North American Industry Classification System (NAICS) 324 and 325 processes; (2) a practicability assessment of inherently safer technologies and designs (inherently safer technology (IST)/inherently safer design (ISD)) considered for processes (a) in Program 3 NAICS code 324 and 325 within one mile of another Program 3 NAICS code 324 or 325 process, (b) with hydrofluoric acid alkylation processes classified under NAICS 324, and (c) having one RMP accident since the facility’s most recent process hazard analysis; (3) implementation of at least one passive measure at the facility, or IST/ISD, or a combination of active and procedural measures equivalent to or greater than the risk reduction of a passive measure for the same facilities required to conduct the practicability assessment; and (4) a justification in the Risk Management Plan when STAA recommendations are not adopted.*

• Root cause analysis: Requiring a formal root cause analysis incident investigation when facilities have had an RMP-reportable accident.

• Third-party compliance audits: (1) Requiring the next scheduled compliance audit to be a third-party audit when facilities have had an RMP-reportable accident; and (2) Requiring a justification in the Risk Management Plan when third-party compliance audit recommendations are not adopted.*

• Employee participation*: (1) Requiring employee participation in resolving process hazard analyses, compliance audit, and incident investigation recommendations and findings; (2) Outlining stop work procedures in Program 3 employee participation plans; (3) Requiring Program 2 and Program 3 employee participation plans to include opportunities for employees to report anonymously RMP-reportable accidents or other related RMP non-compliance issues; and (4) Requiring training on employee participation plans.

Emergency Response (Subpart E)

• Community notification of RMP accidents*: (1) Requiring non-responding RMP facilities to develop procedures for informing the public about accidental releases; (2) Requiring release notification data to be provided to local responders; and (3) Partnering with local responders to ensure a community notification system is in place for notification of RMP-reportable accidents.

• Emergency response exercises: (1) Requiring a ten-year frequency for field exercises unless local responders indicate that frequency is infeasible; and (2) Requiring mandatory scope and reporting requirements for emergency response exercises.

Information Availability (Subpart H, Section 68.210)

• Enhanced Information Availability*: New requirements for the facility to provide chemical hazard information upon request to the public living, working, or spending significant time within six miles of the facility, in at least the two most common languages in the community. Under the previous regulation, facilities were not required to provide this information.

Other Areas of Technical Clarification (Subparts A, C, D)

The final rule makes minor regulatory edits to clarify:

• Program 3 process safety information should be kept up to date;

• Program 2 and Program 3 requirements should be consistent for recognized and generally accepted good engineering practices (RAGAGEP);

• Hot work permits should be retained for three years;

• Fiscal or calendar prior year sales should be used to qualify for the retail facility exemption; and

• RAGAGEP should be reviewed in process hazard analyses to determine gaps in safety.

Compliance Dates for the Changes

EPA is requiring regulated sources to comply with:

• New STAA, incident investigation root cause analysis, third-party compliance audit, employee participation, emergency response public notification, exercise evaluation reports, and information availability provisions three years after the effective date of the final rule;

• Revised emergency response field exercise frequency provision by March 15, 2027, or within ten years of the date of an emergency response field exercise conducted between March 15, 2017, and August 31, 2022; and

• Updates and resubmission of risk management plans with new and revised data elements four years after the effective date of the final rule.

Commentary

Many will welcome the final rule as an important step in protecting vulnerable communities from chemical accidents, especially those proximate to facilities in industries with the highest accident rates. The many changes introduced by issuance of the final rule must be implemented over a three-year period and are not trivial. According to EPA, annual compliance costs are around $300 million, and likely higher. Not everyone will be pleased, and challenges to the final rule are likely, as the rulemaking has had a unique, contentious history. This is especially true given EPA’s enforcement priorities for fiscal years 2024-2027, which include compliance with chemical accident regulations.