On May 17, 2018, EPA’s Administrator signed a proposed rule requesting public comment on several proposed changes to the final RMP Amendments issued on January 13, 2017. EPA is proposing to rescind amendments relating to:
- safer technology and alternatives analyses,
- third-party audits,
- incident investigations,
- information availability, and
- several other minor regulatory changes
EPA is also proposing to modify amendments relating to local emergency coordination, emergency exercises, public meetings, and to change the compliance dates for these provisions. EPA is proposing these changes to address:
- potential security risks associated with new information disclosure requirements introduced in the final Amendments rule,
- concerns about unnecessary regulations and regulatory costs concerns that EPA did not coordinate its rulemaking with OSHA,
- the timing of the finding by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) that arson caused the West Fertilizer incident, and other issues.
Comments on the proposed rule must be received on or before 60 days after the date of publication in the Federal Register.
For your convenience, a pre-publication copy of the proposed rule is available. While we have taken steps to ensure the accuracy of this pre-publication version of the law, it is not the official version for purposes of public comment. Please refer to the official release in a forthcoming Federal Register publication and Docket No. EPA-HQ-OEM-2015-0725.
A pre-publication copy of the proposed rule: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act
A public hearing on the proposed rule will be held in Washington, DC on June 14, 2018, at William J. Clinton East Building Room 1153 (Map Room), 1201 Constitution Ave. NW, Washington DC 20460. For more information and to register, please see: Public Hearing on the Proposed Changes to the Risk Management Program (RMP) Rule.
EPA proposes to rescind almost all the requirements added to the accident prevention provisions program of Subparts C (for Program 2 processes) and D (for Program 3 processes). These include rescission of all requirements for third-party compliance audits (§§ 68.58, 68.59, 68.79 and 68.80), safer technology and alternatives analysis (§ 68.67(c)(8)) for facilities with Program 3 regulated processes in North American Industrial Classification System (NAICS) codes
- 322 (paper manufacturing),
- 324 (petroleum and coal products manufacturing), and
- 325 (chemical manufacturing)
and rescinding the words “for each covered process” from the compliance audit provisions in §§ 68.58 and 68.79.
EPA also proposes to rescind in § 68.50(a)(2), the requirement for the hazard review to include findings from incident investigations. For incident investigations (§§ 68.60 and 68.81), EPA proposes to rescind:
- requirements for conducting root cause analysis for incident investigations;
- for the incident investigation report to have specified added data elements,
- a schedule to address recommendations,
- a 12-month completion deadline, and
- for § 68.60 only, five-year record retention (EPA notes that the existing rule’s five-year record retention requirement at § 68.200 will still apply); and
- for investigating any incident resulting in catastrophic releases that also leads to the affected process being decommissioned or destroyed.
In §§ 68.60 and 68.81, EPA also proposes to rescind 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 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 a 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 provision 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.
Alternatively, EPA proposes to rescind all of the above changes to Subparts C and D except for the requirement in § 68.50(a)(2) for the hazard review to include findings from incident investigations, the term “report(s)” in place of the word “summary(ies)” in § 68.60, the requirement in § 68.60 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, the requirements in §§ 68.54 and 68.71 for training requirements to apply to supervisors responsible for process operations and minor wording changes involving the description of employees operating a process in § 68.54, and the two changes that would revise the term “Material Safety Data Sheets” to “Safety Data Sheets (SDS)” in §§ 68.48 and 68.65.
EPA proposes to rescind the following definitions in § 68.3:
- active measures,
- inherently safer technology or design,
- passive measures,
- practicability, and
- procedural measures related to amendments to requirements in § 68.67;
- root cause related to amendments to requirements in § 68.60 and § 68.81, and
- third-party audit pertaining to amendments to provisions in §§ 68.58 and 68.79 and added §§ 68.59 and 68.80.
EPA proposes to modify the local emergency response coordination amendments by deleting the phrase in § 68.93(b), “…and any other information that local emergency planning and response organizations identify as relevant to local emergency response planning” or alternatively replace it with the phrase “… and other information necessary for developing and implementing the local emergency response plan.”
EPA would retain the requirement for owners or operators to provide the local emergency planning and response organizations with the stationary source’s emergency response plan if one exists, emergency action plan, and updated emergency contact information, as well as the requirement for the owner or operator to request an opportunity to meet with the local emergency planning committee (or equivalent) and/or local fire department as appropriate to review and discuss these materials.
EPA also proposes to incorporate appropriate classified information and CBI protections to regulated substance and stationary source information required to be provided under § 68.93. EPA is proposing to modify the exercise program provisions of § 68.96(b), by removing the minimum frequency requirement for field exercises.
EPA proposes to establish a more flexible scope and documentation provisions for both field and tabletop exercises by only recommending, and not requiring, items specified for inclusion in exercises and exercise evaluation reports, while still requiring documentation of both types of exercises.
EPA would retain the notification exercise requirement of § 68.96(a) and the provision for alternative means of meeting exercise requirements of § 68.96(c).
Alternatively, EPA is considering whether to fully rescind the field and tabletop exercise provisions of § 68.96(b). Under this alternative proposal, EPA would retain the notification exercise provision of § 68.96(a), but revise it and § 68.93(b) to remove any reference to tabletop and field exercises, while also modifying the provision in § 68.96(c) for alternative means of meeting exercise requirements so that it applies only to notification exercises.
EPA proposes to rescind the requirements for providing to the public upon request, chemical hazard information and access to community emergency preparedness information in § 68.210 (b) through (d), as well as rescind the requirement to provide the “other chemical hazard information such as that described in paragraph (b) of this section” at public meetings required under § 68.210 (e).
EPA will retain the requirement in § 68.210 (e) for owner/operator of a stationary source to 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.
EPA will retain the change to § 68.210 (a) which added 40 CFR part 1400 as a limitation on RMP availability (addresses restrictions on disclosing RMP offsite consequence analysis under CSISSFRRA) 5, and the provision for control of classified information in § 68.210 (f).
EPA proposes to delete the provision for CBI in § 68.210 (g) because the only remaining information required to be provided at the public meeting is the source’s five-year accident history, which § 68.151(b)(3) prohibits the owner or operator from claiming as CBI.
EPA proposes to rescind requirements to report in the risk management plan any information associated with the repealed provisions of third-party audits, incident investigation, safer technology and alternatives analysis, and information availability to the public.
EPA proposed to slightly modify the emergency response contact information required by § 68.180(a)(1) to be provided in a facility’s RMP. EPA proposes to delay the rule’s compliance dates in § 68.10 to one year after the effective date of a final rule for the emergency coordination provisions, four years after the effective date of a final rule for emergency exercises, two years after the effective date for the public meeting provision and five years after the effective date of the final rule for those remaining risk management plan provisions added as the result of the Amendments rule or changed by the Reconsideration rule.
Under the current proposal, owners and operators would be still be required to have exercise plans and schedules meeting the requirements of § 68.96 in place within four years of the effective date of a final rule, but would have up to one additional year to perform their first notification drill, up to three additional years to conduct their first tabletop exercise and no specified deadline for the first field exercise, other than that established by the owner or operator’s exercise schedule in coordination with local response agencies.
The CFR amendatory language that appears at the end of this Federal Register notice (see PART 68—CHEMICAL ACCIDENT PREVENTION PROVISIONS) proposes changes to the regulatory text that would have included changes from the final RMP Amendments rule if it was in effect. For an easier review of the proposed changes, EPA has provided a copy of 40 CFR part 68 with the Amendments govern regulatory text changes in redline/strikeout format, which is available in the rulemaking docket.6 C.