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01.13.2020 Legal News

EPA Revises Controversial RMP Regulations

EPA recently issued a final rule containing much-debated revisions to the Clean Air Act 112(r) Risk Management Program (“RMP”).  The rule rescinds or modifies a substantial number of existing requirements, including requirements relating to alternatives analyses, third-party audits, incident investigations, information availability and emergency response.  The rule reduces the burden imposed on industry under prior RMP regulations.

Procedural History

The RMP regulations found at 40 CFR Part 68 are designed to prevent or minimize the consequences of accidental chemical releases.  They apply to stationary sources of air pollution that use, manufacture, or store more than a threshold quantity of a regulated substance in a process.  Covered facilities must implement qualifying RMP technologies, procedures, and management practices to minimize risks to the community from accidental chemical releases.

Amendments to the RMP regulations have been controversial, to say the least.  The first amendments (“Obama Rules”) were issued as a final rule on January 13, 2017, just a few days before the inauguration of President Trump and after a contentious rulemaking process.  Before the Obama Rules could take effect, EPA received three petitions for reconsideration.  Effective March 14, 2017, the Obama Rules were delayed by a series of Executive Orders to March 21, 2018, June 19, 2018, and then February 19, 2019.  A federal court intervened and vacated the delays last year, making the Obama Rules the final RMP regulation.  However, on May 20, 2018, the Trump EPA proposed revised RMP regulations that rescinded or modified large portions of the Obama Rules.  That proposed rule has now been issued as a final rule (“Trump Rules”).

The Trump Rules

The Trump Rules essentially gut the controversial provisions of the Obama Rules.  In the preamble to the final rule, EPA said that, after considering the Obama Rules, it determined that “a better approach is to improve the performance of a subset of facilities by achieving greater compliance with RMP regulations instead of imposing additional regulatory requirements on the larger population of facilities that is generally performing well in preventing accidental releases.” 

The Trump Rules first rescind all new prevention program requirements in the Obama Rules.  These are:

  • Third-party auditing;
  • Safe technology and alternative analysis;
  • Review of “Incident Investigation” findings by Hazard Review procedures;
  • Statement of “supervisor” roles from covered training (initial and refresher);
  • Inclusion of “near miss” and “destroyed processes” in Incident Investigations; and
  • Requiring compliance audits to address “each covered process,” which prohibited the matrix approach.

The Trump Rules explain that the revisions have been made because EPA is trending toward a compliance-driven, not enforcement-led, approach to all EPA rulemakings.

The Obama Rules required owners and operators to perform emergency response exercises.  Those requirements have been modified.  Notification Exercises need only be performed as appropriate, with the first one to be conducted by December 19, 2024, and annually thereafter, rather than by March 15, 2021, as proposed.  Tabletop Emergency Response Exercises are still required every three years, but the first such exercise in not required to be performed until December 21, 2026.  Field Exercises are no longer subject to a minimum frequency of once every ten years, and there is no deadline for consulting with local responders.  Companies still have to develop exercise plans and schedules before December 19, 2023, but more flexibility in the scope and enforcement of those plans and schedules is allowed.

Finally, the Trump Rules curtail Information Disclosure in the RMP.  Information Disclosure regulations govern procedures and measures for emergency response after an accidental release of a regulated substance.  The Trump Rules delete requirements for providing to the public (upon request) chemical hazard information and community emergency preparedness information. The new regulations modify requirements in 40 CFR 68.210(e), requiring a public meeting only after an accidental release covered by the RMP -- not after just any “accident.”  The obligation to produce confidential business information is also removed.

Recommended Action

In the preamble EPA says the final rule is a “reasonable and practicable” approach to compliance.  Companies subject to the RMP regulations should undertake compliance audits to be certain the new requirements are incorporated into their RMP Prevention, Emergency Exercises, and Information Disclosures programs, and the rescinded requirements are deleted. 

84 Fed. Reg. 69834 (Dec. 19, 2019)