IIAR

The Environmental Protection Agency (EPA) completed it multi-year effort to revise the Risk Management Program (RMP) regulation with the publication of a Final Rule on Friday, January 13, 2017. The rulemaking was initiated as a part of President Obama’s Executive Order on Improving Chemical Facility Safety and Security, which came in response to the fertilizer plant explosion in West, Texas in 2013. IIAR played an active role engaging with EPA on its proposed revisions to RMP and led an industry coalition expressing concerns with several of EPA’s proposals along the way.

The Final Rule includes some improvements over the Proposed Rule, several of which IIAR suggested through various public comments, oral testimony and input through the small business advocacy rule process. While the Final Rule is improved, significant concerns remain with several provisions.

Below is a summary of the major provisions included in the Final Rule.

THIRD PARTY AUDITS

One of the proposed provisions that created the most concern from industry was the requirement for independent third party audits after a reportable accident. The changes to the Final Rule address some of the concerns raised by IIAR and its coalition partners. For example, the PE requirement has been eliminated and retirees will not qualify to lead third party audit teams. However, the fundamental nature of the new policy has not changed and IIAR continues to have concerns with the requirement to force independent third party audits and that third-party firms doing work outside auditing would be disqualified if they had conducted business with the company within two years of the audit in question.

iNCIDENT INVESTIGATION AND ROOT CAUSE ANALYSIS

The incident investigations and root cause analysis provisions are largely unchanged. Most of the revisions deal with definitions, including important guidance on the term “near miss”.

SAFER TECHNOLOGIES AND ALTERNATIVES ANALYSIS

The biggest change to the Safer Technologies and Alternatives Analysis provision in the Final Rule is the shift from evaluating the “feasibility” to the “practicability” of implementing identified inherently safer technologies. This is an improvement, as some identified technologies may be feasible to implement, but not be practical.

LOCAL COORDINATION AND EMERGENCY RESPONSE 

The Final Rule removes several burdens on regulated facilities and emphasizes the importance of coordination between LEPCs/local responders and facilities to work out the details of response exercises.

INFORMATION SHARING

The Information Sharing provisions are improved in the Final Rule by relying on coordination between facilities and LEPCs/local responders to determine information sharing needs. It also eliminates the requirement of public posting of chemical hazard information and making such information available upon request. The extension of the time period to 90 days for a public meeting after a reportable accident is also an improvement.

COMPLIANCE DATES

The Final Rule maintains the same compliance date schedule as the Proposed Rule. The effective date of the Final Rule is March 14, 2017. The table below shows the compliance dates for the various requirements.

POTENTIAL CHALLENGES TO THE FINAL RULE

While EPA did make some improvements to the Final Rule, significant concerns remain with several provisions. Because the rule was finalized late in the Obama Administration, there is a possibility for the Republican Congress to use the Congressional Review Act (CRA) to disapprove of the regulation. The CRA allows for the House and Senate to pass a resolution by a simple majority that would completely eliminate the Final Rule. IIAR recently joined a coalition letter urging Congress to use the CRA to stop the RMP Final Rule and efforts are underway to advance CRA legislation.

Congressman Markwayne Mullin (R-OK) has introduced House Joint Resolution 59, which would disapprove of the RMP Final Rule. Senator James Inhofe (R-OK) has introduced a similar resolution, Senate Joint Resolution 28, in the Senate. The resolution must be passed and signed into law within 60 legislative days of the Final Rule. Successful use of the CRA would also bar the EPA from proposing substantially similar changes to RMP in the future.

The CRA has only been used successfully once, to disapprove of an OSHA ergonomics rule at the beginning of the George W. Bush Administration. Because the Republicans control both chambers of Congress and the White House, the CRA becomes a viable option. However, Congress is looking at a large number of regulations finalized during the end of the Obama Administration as potential targets for the CRA, and it is unclear whether the RMP rule will make the final cut.

In addition to the CRA, an industryled RMP Coalition, of which IIAR is a member, has submitted a Petition for Review to the EPA. The petition outlines industry’s concerns with the Final Rule and requests EPA to delay implementation pending a further review of the regulation. On March 13th, EPA Administrator Scott Pruitt issued a 90 delay of the effective date and cited the Petition for Review in the order. The delay will give the new policy officials within the Trump Administration time to consider the concerns that have been raised regarding the Final Rule. It is also expected that industry will pursue legal action to challenge the Final Rule.

SUMMARY

The EPA’s Final Rule to revise the Risk Management Program, while an improvement over the Proposed Rule, contains several troublesome provisions that will place additional burdens on IIAR members. Members are encouraged become more aware of the Final Rule’s provisions and understand the impacts that it may have on their facilities. IIAR will continue to be actively involved with coalition partners to explore actions such as the CRA to mitigate the potential negative impacts on the industry and will keep members informed as the process moves forward.