EPA's Risk Management Program Rules
The Subcommittee on Environment, Manufacturing, and Critical Materials will hold a hearing on May 7, 2024, at 10:00 a.m. (ET) in 2123 Rayburn House Office Building. The title of the hearing is “EPA’s RMP Rule: Failures to Protect the American People and American Manufacturing.”
Witnesses:- Gentner Drummond, Attorney General, State of Oklahoma, testifying the rules are “openly hostile to America’s oil and gas industry”
- Jatin Shah, Senior Principal Consultant, BakerRisk
- Richard Erstad, Vice President and General Counsel, Hawkins, Inc. on behalf of the Alliance of Chemical Distributors
- James “Jim” Savage, Legislative Representative, United Steelworkers International Union
In the Clean Air Act (CAA) Amendments of 1990, Congress consciously separated responsibilities at a plant using certain chemicals for activities before an accident and after an accident occurred, as well as those activities inside a plant fence line and outside of it. Section 304 of the CAA Amendments of 1990 directed Occupational Safety and Health Administration (OSHA) to take the lead on protecting workers within a facility’s fence line, thinking OSHA was best equipped to handle these issues. By contrast, Congress, in section 301 of the CAA Amendments of 1990, gave the Environmental Protection Agency (EPA) authority to protect the environment and human health beyond the fence-line.
Section 301 of the CAA Amendment of 1990, which created CAA section 112®, was intended to prevent the “unanticipated emission of a regulated substance or other extremely hazardous substance into the ambient air from a stationary source” and to minimize the consequences of those releases. Paragraph (7) of CAA section 112® grants the EPA the authority to issue accidental release prevention, detection, and correction requirements and guidance that has manufacturers prevent and manage those accidental risks through manufacturers’ risk management program (RMP) plans.
The EPA originally issued the RMP regulations in two stages: the list of hazardous substances and quantities in 1994 and the risk management requirements in 1996.10 Subsequently, and until 2017, the EPA modified the original RMP rules five times (twice in 1999, twice in 2000, and once in 2004).
On January 13, 2017, the EPA published amendments to the RMP rule (82 FR 4594). The 2017 amendments rule was prompted by E.O. 13650, “Improving Chemical Facility Safety and Security,” which directed the EPA (and several other Federal agencies) to, among other things, modernize policies, regulations, and standards to enhance safety and security in chemical facilities. The 2017 amendments rule contained various new provisions applicable to RMP-regulated facilities. The 2017 amendments rule addressed prevention program elements for natural hazards, incident investigation root cause analysis, and third-party compliance audits; emergency response coordination with local responders (including emergency response exercises); and availability of information to the public. The EPA received three petitions for reconsideration of the 2017 amendments rule under CAA section 307(d)(7)(B). In December 2019, the EPA finalized revisions to the RMP regulations to reconsider the rule changes made in January 2017 (“2019 reconsideration rule”). The 2019 reconsideration rule rescinded certain information disclosure provisions of the 2017 amendments rule, removed safer technologies and alternative analysis (STAA) requirements added by the 2017 amendments rule, and modified some other provisions of the 2017 amendments rule. The rule changes made by the 2019 are the current RMP regulations until May 10, 2024. There are petitions for judicial review of both the 2017 amendments rule and the 2019 reconsideration rule. The 2019 reconsideration rule challenges are being held in abeyance. EPA has requested that the Court allow this to occur until the resolution of any legal challenges to 2024 RMP rule amendments or 30 days after the deadline to file such challenges if no challenges are filed. The case against the 2017 amendments rule is in abeyance pending resolution of the 2019 reconsideration rule case. As a result of the EPA review, on March 11, 2024, the EPA promulgated final regulations amending its RMP regulations. The revisions, which are scheduled to become effective on May 10, 2024, include several changes to the accident prevention program requirements for natural hazards, power loss, and STAA, as well as enhancements to the emergency response requirements, expansion of public availability of chemical hazard information, third-party audit and record-keeping requirements, and mandatory employee rights and participation.