On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the RMP Rule . On December 21, 2016, the EPA disclosed its changes via a Pre-Publication Copy.
In the proposed rule, the EPA essentially agreed that the scope and trigger for post incident investigation was not universally understood or applied. The final rule includes an explicit requirement to include a “root cause” analysis “of catastrophic releases and near miss events and to have the findings of these investigations integrated into the PHA.” The EPA chose not to change the definition of catastrophic release, but instead added guidance to “clarify” which release would be considered catastrophic (including near misses) and which would not. The EPA added that incidents in nearby non-RMP regulated units could be a near miss. Incident investigations must be complete within a twelve month period.
EPA also declined to add a definition for the term “near miss,” although added the circular comment that it was “an example of an event that could reasonably have resulted in a catastrophic release.” Whereas the agency decided not to require classification for events within the five year accident report, the root cause requirement also applies to decommissioned or destroyed processes.
The EPA retained the requirement for certain facilities to conduct a safer technology and alternatives analysis (“STAA”) as part of a Process Hazard Analysis (“PHA”). The EPA revised the evaluation criteria from “feasibility” to “practicability” of any inherently safer technology (“IST”) identified. This requirement is limited to processes in NAICS 322 (e.g. paper manufacturer), 324 (e.g. petroleum refining), and 325 (e.g. chemicals manufacturer).
The revised rule retained mandatory third-party audits following an accident meeting the five-year accident history criteria or based on non-compliance with the compliance audit requirements. In the final rule, the EPA modified some of the independence requirements and eliminated the necessity that the team include a Professional Engineer. Facilities may engage a third party firm or hire a third-party individual to lead a team of employees or other non-independent individuals. EPA deleted the requirement that the auditor keep copies of records (including drafts). Audits can be conducted under attorney client privilege.
These and other changes will be further examined in future blogs. So please stay tuned.