EPA proposes to rescind Risk Management Program Amendments Rule
In the May 30, 2018 Federal Register, EPA published a proposed rule to rescind the Risk Management Program Amendments rule issued in January 2017. The rulemaking is consistent with other EPA efforts to undo rules issued during the twilight of the prior administration.
The Risk Management Program (RMP) is authorized by Section 112(r)(7) of the Clean Air Act and is designed to prevent accidental releases from industry and protect responders. The RMP rules require certain sources to conduct a worst-case scenario analysis and accident history review, coordinate with local responders, conduct a hazard assessment, document a management system, and implement a prevention program and emergency response program for covered processes and chemicals. Process sources are covered under one of three different prevention programs, with Program 1 applicable to processes with minimal requirements to Program 3 applicable to processes covered by the OSHA Process Safety Management (PSM) standard. The RMP and PSM programs are, in theory, parallel programs. Approximately 12,500 facilities have Risk Management Plans.
The RMP Amendments Rule
On January 13, 2017, EPA promulgated its final Risk Management Program Amendments Rule. The rule established additional requirements related to prevention programs, emergency response, and information availability. The rule was delayed as part of the Trump administration’s regulatory freeze. In early 2017 two industry groups and a coalition of states filed petitions for reconsideration. The current proposal is the culmination of the reconsideration process. EPA is proposing to rescind almost all the new requirements contained in the Amendments Rule.
Rationale: Failure to coordinate with OSHA
EPA’s primary reason for its proposal to rescind the Amendments Rule is that the agency agreed with the petitioners that it failed to coordinate with OSHA and DOT in developing the new requirements. Specifically, EPA finalized the Amendments Rule before OSHA had finished a review of potential changes to the PSM requirements. As summarized in the proposal to rescind: “EPA believes it did not give sufficient weight to the value of coordination with OSHA and focused too much on its legal authority to proceed independently.”
EPA provided a secondary rationale for rescinding the pubic information provisions. These provisions would have increased requirements for consulting with local responders and making certain information available on company websites and social media. EPA now believes that the public information provisions may have inadvertently opened the door to the disclosure of security-sensitive information.
The proposal to rescind the RMP Amendments Rule is likely to be viewed favorably by the regulated community, particularly companies with facilities already subject to the PSM program. From a compliance perspective, having two industrial safety programs with different requirements is challenging. Importantly, EPA does not appear to be basing its proposal on the merits of the specific provisions but on the potential conflicts with the PSM program. It remains to be seen how EPA and OSHA will coordinate on these issues moving forward.
The public comment period on the proposal to rescind the Risk Management Program Amendments Rule closes on June 29. A copy of the proposal is available here.