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by Lee Vail

The Environmental Protection Agency (“EPA”) published a Request for Information (“RFI”) on July 31, 2014 relating to possible changes to the Risk Management Program (“RMP”) rules codified at 40 C.F.R. Part 68. See 79 Fed. Reg. 44604 (July 31, 2014). On June 19, 2015, OSHA, the EPA, and the Department of Homeland Security held a webinar to provide an update to agency actions in response to Executive Order 13650 titled “Improving Chemical Facility Safety and Security.” In that webinar, the agencies announced that they were planning to divide up the common issues, with OSHA and EPA addressing concerns separately. On February 25, 2016, EPA disclosed its proposed changes via a Pre-Publication Copy.

One of the most significant proposed changes is the requirement for certain facilities to conduct a safer technology and alternatives analysis (“STAA”) as part of a Process Hazard Analysis (“PHA”) to evaluate the feasibility of any inherently safer technology (“IST”) identified. Under the proposal, facilities must comply with this requirement within four years from the publication of the final rule and is limited to processes in NAICS 322 (e.g. paper manufacturer), 324 (e.g. petroleum refining), and 325 (e.g. chemicals manufacturer).

The EPA is also proposing to require mandatory third-party audits following an accident meeting the five-year accident history criteria. Further, under the proposed rule, the EPA can also require a third-party audit based on non-compliance with the compliance audit requirements. The owner or operator may appeal this decision to the EPA Regional Administrator. Where a third-party audit is required, the proposal includes detailed independence requirements and the necessity to add a Professional Engineer to the team. Responses to audit findings are required with 90 days along with a schedule for implementation. The responses and schedule must be submitted to the owners’ audit committee of the Board of Directors. This proposed change is also effective four years after publication of the final rule.

Other proposed changes include:

  • Mandatory root cause as part of an incident investigation after a catastrophic or near-miss (catastrophic) release;
  • Mandatory annual coordination with local emergency response agencies;
  • Annual notification exercises;
  • “Responding facilities” that have an RMP reportable accident would have to conduct a full field exercise within a year of the incident;
  • Enhanced availability of chemical hazard information (such as a facility website);
  • The Risk Management Plan and other information including compliance audits, investigation reports, and where required, a summary of IST shall be available to the LEPC; and
  • Public meetings after an RMP reportable accident.

Comments are due within 60 days after the date of publication in the Federal Register.