EPA publishes the FINAL RMP Rule (Rescinded Amendments)

The Environmental Protection Agency (EPA) has revised regulations designed to reduce the risk of accidental releases of hazardous chemicals. These regulations are part of the EPA’s Risk Management Program (RMP), which the Agency established under authority in the Clean Air Act and recently amended on January 13, 2017. After a process of reconsidering several parts of the 2017 rule, EPA has concluded 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. For this and other reasons, EPA is rescinding recent amendments to these regulations that we no longer consider reasonable or practicable relating to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and several other minor regulatory changes. EPA is also modifying regulations relating to local emergency coordination, emergency response exercises, and public meetings. In addition, the Agency is changing compliance dates for some of these provisions. This final rule is effective TODAY (December 19, 2019)

The purpose of this action is to make changes to the Risk Management Program regulations (40 CFR part 68) to reduce chemical facility accidents without disproportionately increasing compliance costs or otherwise imposing regulatory requirements that are not reasonable or practicable. This rule addresses issues raised in three petitions for EPA to reconsider amendments EPA made to the RMP regulations in 2017 and other issues that EPA believed warranted reconsideration.

On January 13, 2017, the EPA issued a final rule (82 FR 4594) amending 40 CFR part 68, the chemical accident prevention provisions under section 112(r) of the CAA (42 U.S.C. 7412(r)). The 2017 rule addressed various aspects of risk management programs, including prevention programs at stationary sources, emergency response preparedness requirements, information availability, and various other changes to clarify and otherwise technically correct the underlying rules. This rulemaking is known as the “Risk Management Program Amendments” or “RMP Amendments” rule.

Prior to the RMP Amendments rule taking effect, EPA received three petitions for reconsideration of the rule under CAA section 307(d)(7)(B), two from industry groups [2] and one from a group of states.[3] Under that provision, the Administrator is to commence a reconsideration proceeding if, in the Administrator’s judgement, the petitioner raises an objection to a rule that was impracticable to raise during the comment period or if the grounds for the objection arose after the comment period but within the period for judicial review. In either case, to convene a proceeding for reconsideration, the Administrator must also conclude that the objection is of central relevance to the outcome of the rule.

In a letter dated March 13, 2017, the Administrator responded to the first of the reconsideration petitions received by announcing the convening of a proceeding for reconsideration of the RMP Amendments.[4] As explained in that letter, having considered the objections raised in the petition, the Administrator determined that the criteria for reconsideration had been met for at least one of the objections. This action addresses the issues raised in all three petitions for reconsideration, as well as other issues that EPA believed warranted reconsideration.

Summary of the Provisions of the Regulatory Action

The major provisions of this rule include rescinding amendments made to the Risk Management Program in 2017 relating to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and several other minor provisions. EPA is also modifying regulations relating to local emergency coordination, emergency response exercises, and public meetings after an accident, changing the compliance dates for some of these provisions and modifying risk management plan and air permit requirements relating to rescinded or modified provisions.

Chemical Accident Prevention Provisions

This action rescinds almost all the requirements added in 2017 to the accident prevention program provisions of Subparts C (for Program 2 processes) and D (for Program 3 processes). EPA is RESCINDING ALL REQUIREMENTS for third-party compliance audits (§§ 68.58, 68.59, 68.79 and 68.80), safer technology and alternatives analysis (STAA) (§ 68.67(c)(8)) for facilities with Program 3 regulated processes in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) and removing the words “for each covered process” from the compliance audit provisions in §§ 68.58 and 68.79. This action also RESCINDS THE REQUIREMENT IN § 68.50(A)(2) FOR THE HAZARD REVIEW TO INCLUDE FINDINGS FROM INCIDENT INVESTIGATIONS. For incident investigations (§§ 68.60 and 68.81), this action rescinds the following requirements added in 2017:

Conducting root cause analysis;
Added data elements for incident investigation reports, including a schedule to address recommendations and a 12-month completion deadline, and
Investigating any incident resulting in a catastrophic release that also results in the affected process being decommissioned or destroyed.

In §§ 68.60 and 68.81, EPA is also removing text “(i.e., was a near miss)” that EPA added in 2017 to describe an incident that could reasonably have resulted in a catastrophic release. In § 68.60, EPA is retaining the term “report(s)” instead of replacing with the word “summary(ies)” and is retaining 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.

This action REMOVES THE LANGUAGE added to the Program 2 (§ 68.54) and Program 3 (§ 68.71) training requirements, which more explicitly included supervisors and others involved in operating a process. This action also rescinds minor wording changes in § 68.54 describing employees involved in operating a process. EPA is also RESCINDING

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 revised the term “Material Safety Data Sheets” to “Safety Data Sheets (SDS)” in §§ 68.48 and 68.65.

This action RESCINDS 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 related to amendments to requirements in §§ 68.58 and 68.79 and added in §§ 68.59 and 68.80.

Emergency Response Provisions

This action MODIFIES THE LOCAL EMERGENCY RESPONSE COORDINATION AMENDMENTS by replacing the phrase in § 68.93(b) that requires facilities to share information that local emergency planning and response organizations identify as relevant to local emergency response planning with revised language pertaining to sharing information necessary for developing and implementing the local emergency response plan.

EPA is RETAINING 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),
the 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 is also incorporating appropriate classified and restricted information protections to regulated substance and stationary source information required to be provided under § 68.93 and revising the existing classified information provision of § 68.210 to incorporate protections for restricted information identical to those in § 68.93. Restricted information includes Sensitive Security Information (SSI), Protected Critical Infrastructure Information (PCII), Chemical-terrorism Vulnerability Information (CVI), and any other information restricted by Federal statutes or laws.

This action is MODIFYING THE EXERCISE PROGRAM PROVISIONS of § 68.96(b), by REMOVING THE MINIMUM FREQUENCY REQUIREMENT FOR FIELD EXERCISES.

EPA is also establishing 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.

This action RETAINS THE NOTIFICATION EXERCISE REQUIREMENT of § 68.96(a) and the provision for alternative means of meeting exercise requirements of § 68.96(c).

Public Information Availability Provisions

This action RESCINDS 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 the requirement to provide specific chemical hazard information at public meetings required under § 68.210(e).

This action MODIFIES THE REQUIREMENT in § 68.210(e) [now redesignated as § 68.210(b) because former paragraphs (b) through (d) are rescinded] for the owner/operator of a STATIONARY SOURCE TO HOLD A PUBLIC MEETING TO PROVIDE ACCIDENT INFORMATION required under § 68.42(b) by ONLY REQUIRING A PUBLIC MEETING following the occurrence of a risk management plan (or RMP [5] ) reportable accident with offsite impacts specified in § 68.42(a) (i.e., known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage). This is a modification to the RMP Amendments rule that required a public meeting after any accident subject to reporting under § 68.42, including accidents that resulted in on-site impacts only.

EPA will RETAIN THE REQUIREMENT that public meetings required under § 68.210(e) [now redesignated as § 68.210(b)] occur WITHIN 90 DAYS OF AN ACCIDENT.

EPA will also retain the change to § 68.210(a) that added 40 CFR part 1400 as a limitation on RMP availability (part 1400 addresses restrictions on disclosing RMP offsite consequence analysis information under CSISSFRRA),[6] and the provision for control of classified information in § 68.210(f) [now redesignated as § 68.210(c)], with a modification to address restricted information under the provision (e.g., PCII, SSI, and CVI). This action deletes 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.

Risk Management Plan

This action RESCINDS REQUIREMENTS TO REPORT IN THE RISK MANAGEMENT PLAN any information associated with the rescinded provisions of third-party audits, incident investigation, safer technology and alternatives analysis, and information availability to the public (except that pertaining to the public meeting requirement now in § 68.210(b)).

The list of RMP registration information in § 68.151(b)(1) excluded from being claimed as CBI, IS MODIFIED BY THE FINAL RULE to also exclude from CBI claims, whether a public meeting was held following an RMP accident, pursuant to § 68.210(b). This public meeting reporting is to be included in the RMP under § 68.160(b)(21). This action also slightly modifies the emergency response contact information required by § 68.180(a)(1) to be provided in a facility’s RMP.

Compliance Dates

This action requires compliance with the revised emergency response coordination requirements on the EFFECTIVE DATE OF THE FINAL RULE.

This action RETAINS THE COMPLIANCE DATE FOR PUBLIC MEETINGS established in the final Amendments rule and therefore requires that the owner or operator comply with the revised public meeting requirements following any RMP reportable accident with offsite impacts specified in § 68.42(a) that OCCURS AFTER MARCH 15, 2021.

This action DELAYS THE RULE’S COMPLIANCE DATES in § 68.10 and § 68.96 as follows:

Emergency response exercises:
1. Planning and Scheduling. Owners and operators will be required to have exercise plans and schedules meeting the requirements of §§ 68.93 and 68.96 in place by December 19, 2023;
2. Notification exercise. Perform first notification exercise by December 19, 2024;
3. Perform first tabletop exercise by December 21, 2026; and
4. Field exercise. There is no specified deadline to perform the first field exercise, other than that established by the owner or operator’s exercise schedule in coordination with local response agencies; and
Updating risk management plan provisions for the following, only for initial RMP submissions or when re-submission or update for an existing RMP is required under § 68.190:
1. Reporting under § 68.160(b)(21) after December 19, 2024, whether a public meeting required by § 68.210(b) occurred; and
2. Reporting after December 19, 2024, emergency response program information specified in § 68.180 as revised by the January 13, 2017 final Amendments rule and this final rule.

For a detailed review of the changes from the regulatory text (which has the Start Printed Page 698382017 Amendments rule changes incorporated), EPA has provided a copy of 40 CFR part 68 with changes shown in redline/strikeout format, which is available in the rulemaking docket.[7]

Here is a summary of what actually changed in the rule:

PART 68—CHEMICAL ACCIDENT PREVENTION PROVISIONS

1. The authority citation for part 68 continues to read as follows:

Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661–7661f.

§ 68.3 [Amended]

2. Amend § 68.3 by removing the definitions “Active measures”, “Inherently safer technology or design”, “Passives measures”, “Practicability”, “Procedural measures”, “Root cause” and “Third-party audit”.

3. Amend § 68.10 by:

Revising paragraphs (b), (d), and (e);
Redesignating paragraphs (f) through (j) as paragraphs (g) through (k); and
Adding new paragraph (f).

The revisions read as follows:
§ 68.10 Applicability.
…

(b) By [DATE 1 YEAR AFTER THE EFFECTIVE DATE OF THE FINAL RULE], the owner or operator of a stationary source shall comply with the emergency response coordination activities in § 68.93.
…

(d) By [DATE 4 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], the owner or operator shall have developed plans for conducting emergency response exercises in accordance with provisions of § 68.96.
(e) After [DATE 2 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE] the owner or operator of a stationary source shall comply with the public meeting requirement in § 68.210(b) for any accident meeting the five-year accident history requirements of § 68.42 that occurs after [DATE 2 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
(f) By [DATE 5 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], the owner or operator shall comply with § 68.160 (b)(21) of the risk management plan provisions of subpart G of this part promulgated on [PUBLICATION DATE OF FINAL RULE] and with § 68.180 of the risk management plan provisions of subpart G of this part promulgated on January 13, 2017.

4. Amend § 68.12 by:

a. In paragraph (b):

1. In the introductory text removing the text “68.10(b)” and adding “68.10(g)” in its place;

2. In paragraph (4) second sentence, removing the text “68.10(b)(1)” and adding “68.10(g)(1)” in its place;
…

b. In paragraph (c) introductory text by removing the text “68.10(c)” and adding “68.10(h)” in its place;
c. In paragraph (d) introductory text by removing the text “68.10(d)” and adding “68.10(i)” in its place.

5. Amend § 68.50 by revising paragraph (a)(2) to read as follows:
§ 68.50 Hazard review.

(a)

…
(2) Opportunities for equipment malfunctions or human errors that could cause an accidental release;

6. Amend § 68.54 by revising the first sentence in paragraphs (a) and (b), paragraph (d), and removing paragraph (e) to read as follows:

§ 68.54 Training.

(a) The owner or operator shall ensure that each employee presently operating a process, and each employee newly assigned to a covered process have been trained or tested competent in the operating procedures provided in § 68.52 that pertain to their duties.

(b) Refresher training. Refresher training shall be provided at least every three years, and more often if necessary, to each employee operating a process to ensure that the employee understands and adheres to the current operating procedures of the process.
…

(d) The owner or operator shall ensure that operators are trained in any updated or new procedures prior to startup of a process after a major change.

7. Amend § 68.58 by revising paragraph (a) and removing paragraphs (f) through (h) to read as follows:

§ 68.58 Compliance audits.

(a) The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart at least every three years to verify that the procedures and practices developed under this subpart are adequate and are being followed.

8. Remove § 68.59 (Third Party Audits)

9. Amend § 68.60 by:

Revising paragraph (a);
Removing paragraph (c);
Redesignating paragraph (d) as paragraph (c)
In the newly designated paragraph (c):
1. Revising the paragraph introductory text, and paragraphs (1) and (3);
2. Removing paragraphs (4) through (6);
3. Redesignating paragraphs (7) and (8) as paragraphs (4) and (5); and
4. Revising the newly designated paragraphs (4) and (5);
Redesignating paragraphs (e) through (g) as paragraphs (d) through (f); and
Revising newly redesignated paragraph (f). The revisions read as follows:

§ 68.60 Incident investigation. (a) The owner or operator shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release.
…

(1) Date of incident;

…

(3) A description of the incident;

(4) The factors that contributed to the incident; and,

(5) Any recommendations resulting from the investigation.

(f) Investigation summaries shall be retained for five years.

10. Amend § 68.65 by revising the first sentence of paragraph (a) and revising the note to paragraph (b) to read as follows:

§ 68.65 Process safety information.

(a) In accordance with the schedule set forth in § 68.67, the owner or operator shall complete a compilation of written process safety information before conducting any process hazard analysis required by the rule.

(b) * * *

Note to paragraph (b): Safety Data Sheets (SDS) meeting the requirements of 29 CFR 1910.1200(g) may be used to comply with this requirement to the extent they contain the information required by paragraph (b) of this section.

11. Amend § 68.67 by:

Revising paragraphs (c)(2);
Amending (c)(6) by adding the word “and” at the end of the paragraph;
Amending paragraph (c)(7) by removing “, and” and adding a period at the end of the paragraph; and
Removing paragraph (c)(8).

The revisions read as follows:

§ 68.67 Process hazard analysis.

…

(c)

…

(2) The identification of any previous incident which had a likely potential for catastrophic consequences;

12. Amend § 68.71 Training by removing paragraph (d).

13. Amend § 68.79 by revising paragraph (a) and removing paragraphs (f) through (h) to read as follows:

§ 68.79 Compliance audits.

(a) The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart at least every three years to verify that procedures and practices developed under this subpart are adequate and are being followed.

14. Remove § 68.80 (Third Party Audits)

15. Amend § 68.81 by revising paragraphs (a) and (d) to read as follows:

§ 68.81 Incident investigation.

(a) The owner or operator shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release.

…

(d) A report shall be prepared at the conclusion of the investigation which includes at a minimum:

(1) Date of incident;

(2) Date investigation began;

(3) A description of the incident;

(4) The factors that contributed to the incident; and,

(5) Any recommendations resulting from the investigation.

16. Amend § 68.93 by revising paragraph (b) and adding paragraphs (d) and (e) to read as follows:

§ 68.93 Emergency response coordination activities.

…

(b) Coordination shall include providing to the local emergency planning and response organizations: The stationary source’s emergency response plan if one exists; emergency action plan; and updated emergency contact information. For responding stationary sources, coordination shall also include consulting with local emergency response officials to establish appropriate schedules and plans for field and tabletop exercises required under § 68.96(b). The owner or operator shall request an opportunity to meet with the local emergency planning committee (or equivalent) and/or local ire department as appropriate to review and discuss those materials.

…

(d) Classified information. The disclosure of information classified by the Department of Defense or other Federal agencies or contractors of such agencies shall be controlled by applicable laws, regulations, or executive orders concerning the release of classified information.

(e) CBI. An owner or operator asserting CBI for information required under this section shall provide a sanitized version to the local emergency planning and response organizations. Assertion of claims of CBI and substantiation of CBI claims shall be in the same manner as required in §§ 68.151 and 68.152 for information contained in the RMP required under subpart G. As provided under § 68.151(b)(3), an owner or operator of a stationary source may not claim five- year accident history information as CBI. As provided in § 68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute.

17. Amend § 68.96 by:

Revising the first sentence of paragraph (a);
Revising paragraph (b)(1)(i) and (ii);
Revising paragraph (b)(2)(i) and (ii); and
Revising paragraph (b)(3).

The revisions read as follows:

§68.96 Emergency response exercises.

(a) Notification exercises. At least once each calendar year, the owner or operator of a stationary source with any Program 2 or Program 3 process shall conduct an exercise of the source’s emergency response notification mechanisms required under § 68.90(b)(3) or § 68.95(a)(1)(i), as appropriate, before [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE] and annually thereafter.

…

(b)(1)

(ii) Scope. Field exercises should include: Tests of procedures to notify the public and the appropriate Federal, state, and local emergency response agencies about an accidental release; tests of procedures and measures for emergency response actions including evacuations and medical treatment; tests of communications systems; mobilization of facility emergency response personnel, including contractors, as appropriate; coordination with local emergency responders; emergency response equipment deployment; and any other action identified in the emergency response program, as appropriate.

(b)(2)

(i) Frequency. As part of coordination with local emergency response officials required by § 68.93, the owner or operator shall consult with these officials to establish an appropriate frequency for tabletop exercises, and shall conduct a tabletop exercise before [DATE 7 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE] and at a minimum of at least once every three years thereafter.

(ii) Scope. The exercise should include discussions of: Procedures to notify the public and the appropriate Federal, state, and local emergency response agencies; procedures and measures for emergency response including evacuations and medical treatment; identification of facility emergency response personnel and/or contractors and their responsibilities; coordination with local emergency responders; procedures for emergency response equipment deployment; and any other action identified in the emergency response plan, as appropriate.

(3) Documentation. The owner/ operator shall prepare an evaluation report within 90 days of each exercise. The report should include: A description of the exercise scenario; names and organizations of each participant; an evaluation of the exercise results including lessons learned; recommendations for improvement or revisions to the emergency response exercise program and emergency response program, and a schedule to promptly address and resolve recommendations.

18. Amend § 68.160 by revising paragraph (b)(21) and removing paragraph (b)(22) to read as follows:

§ 68.160 Registration.

…

(b)

…

(21) Whether a public meeting has been held following an RMP reportable accident, pursuant to § 68.210(b).

19. Amend § 68.170 by revising paragraph (i) to read as follows:

§ 68.170 Prevention program/Program 2.

…

(i) The date of the most recent compliance audit, the expected date of completion of any changes resulting from the compliance audit.

20. Amend § 68.175 by:

Revising paragraph (e) introductory text and paragraphs (e)(1), (5) and (6);
Removing paragraph (e)(7); and
Revising paragraph (k).

The revisions read as follows:

§ 68.175 Prevention program/Program 3.

…

(e) The date of completion of the most recent PHA or update and the technique used.

(1) The expected date of completion of any changes resulting from the PHA;

…

(5) Monitoring and detection systems in use; and

(6) Changes since the last PHA.

…

(k) The date of the most recent compliance audit and the expected date of completion of any changes resulting from the compliance audit.

21. Amend § 68.180 by revising paragraph (a)(1) to read as follows:

§ 68.180 Emergency response program and exercises.

(a)

…

(1) Name, phone number and email address of local emergency planning and response organizations with which the stationary source last coordinated emergency response efforts, pursuant to § 68.10(g)(3) or § 68.93.

22. Amend § 68.190 by revising paragraph (c) to read as follows:

§ 68.190 Updates.

…

(c) If a stationary source is no longer subject to this part, the owner or operator shall submit a de-registration to EPA within six months indicating that the stationary source is no longer covered.

23. Amend § 68.210 by:

Removing paragraphs (b), (c), (d), and (g);
Redesignating paragraph (e) and (f) as paragraphs (b) and (c); and
Revising newly redesignated paragraph (b).

The revision reads as follows:

§ 68.210 Availability of information to the public.

…

(b) Public meetings. The owner or operator of a stationary source shall hold a public meeting to provide information required under § 68.42 (b), no later than 90 days after any accident subject to reporting under § 68.42. * *

24. Amend § 68.215 by revising paragraph (a)(2)(i) to read as follows:

§ 68.215 Permit content and air permitting authority or designated agency requirements.

(a)

…

(2)

…

(i) A compliance schedule for meeting the requirements of this part by the date provided in § 68.10(a) through (f).

CLICK HERE for the full CFR Announcement

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