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May 2, 2017

The EPA proposed a rule to delay the effective date of amendments to its Risk Management Plan (“RMP”) rule under section 112(r) of the Clean Air Act. If finalized, the proposed rule would push the effective date to Feb. 19, 2019, nearly two years later than the original effective date.

The EPA’s RMP rule requires facilities that produce, process, handle or store hazardous substances in large quantities to prepare an RMP to prevent the accidental release of hazardous air pollutants and minimize the consequences of such releases. RMPs must contain: (1) a hazard assessment; (2) an accident prevention program; and (3) an emergency response program. Facilities must review and update their RMPs every five years. Some facilities must also conduct compliance audits every three years.

In response to several accidents involving hazardous chemicals (most notably the explosion that killed 15 people at the West Fertilizer facility in West, Texas), President Obama signed Executive Order (“EO”) 13650 to enhance the safety and security of chemical facilities and reduce risks associated with hazardous chemicals. EO 13650 required the EPA to review the RMP rule and determine if it should be expanded to address additional substances and hazards and develop a plan to implement such expansion.

On Jan. 13, 2017, in response to EO 13650, the EPA published a final rule amending the RMP rule. Under the RMP rule amendments, facilities are required to: 

  1. Conduct root cause analyses of catastrophic releases or near-miss incidents as part of the facility’s accident-prevention program.  
  2. Use an independent third-party auditor for required compliance audits rather than conducting self-audits.  
  3. Coordinate and conduct notification exercises with local emergency authorities annually.
  4. Conduct emergency response field exercises every 10 years and tabletop exercises every three years.
  5. Provide the public with basic chemical hazard information.
  6. Conduct a public meeting after a reportable accident.  

Additionally, certain facilities (paper, chemical, coal and petroleum products manufacturers) must conduct a “safer technologies and alternatives” analysis as part of their five-year review. The original effective date for the amended RMP rule was March 14, 2017. However, the EPA delayed the effective date as part of its actions implementing the Trump administration’s regulatory “freeze.”

On March 13, 2017, after receiving a petition from several industry groups, new EPA Administrator Scott Pruitt convened a proceeding to reconsider the RMP rule amendments. The EPA must reconsider a rule if a person demonstrates that: (1) it was impracticable to raise their objection within the public comment period; and (2) the objection is of central relevance to the outcome of the rule. The petitioners’ objections focused, in part, on the fact that the ATF’s announcement that the cause of the West Texas explosion was not an accident, but an intentional act, came just two days before the end of the comment period for the RMP rule amendments. The EPA agreed with the petitioners that it was impracticable for them to address the significance of the ATF’s determination prior to the close of the comment period. The EPA also found that the ATF’s conclusion was of central relevance to the RMP rule amendments because the West Fertilizer incident factored prominently in the policy decisions underlying the amendments.

In accordance with its decision to reconsider the RMP rule amendments, the EPA stayed the effective date of the rule. This stay, however, cannot exceed three months. Accordingly, on April 3, 2017, the EPA proposed a rule to further delay the effective date of the RMP rule amendments until Feb. 19, 2019, so that the EPA can fully evaluate the various petitions for reconsideration and take comment on issues in question. The EPA held a public hearing on the proposed delay on April 19, 2017. Comments on the proposed delay are due by May 19, 2017.

For more information, you can access the EPA’s website here.  

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