By C. Max Zygmont and Leland P. Frost

On March 11, 2024, the Environmental Protection Agency’s (EPA) Final Rule was published with revisions to Accidental Release Prevention Requirements: Risk Management Programs (RMP) Under the Clean Air Act (CAA); Safer Communities by Chemical Accident Prevention (SCCAP). The RMP Rule originates from Section 112(r) of the CAA and its implementing regulations (40 CFR Part 68) and is one way that EPA seeks to prevent accidents at facilities that use or hold more than a threshold quantity of certain regulated substances (listed at 40 CFR 68.130).

The revisions include several changes and expansions to the RMP requirements, such as requirements for industry to identify safer technologies and chemical alternatives, additional safeguard measures, more thorough incident investigations, third-party auditing, and facilities to provide more information to nearby communities. EPA determined that over 11,740 facilities (listed at 40 CFR 68.1 Table 1) are impacted by the Final Rule, including: agricultural chemical distributors/wholesalers; chemical manufacturing and wholesalers; food and beverage manufacturing; oil and gas extraction; industries using chemicals for waste or wastewater treatment, refrigeration, or storing chemicals for sale; paper manufacturing; petroleum and coal products manufacturing and wholesalers; electric generation facilities; water and wastewater utilities; warehousing and storage; and other highly regulated industries.

RMP revisions in the Final Rule include, but are not limited to:

• Safer technologies and alternatives analysis (STAA): requiring a STAA for a broader list of facilities, and in some cases, implementation of safeguard measures for certain facilities in industry sectors with high accident rates.
• Employee participation: requiring employee participation, training, and employee decision-making in facility accident prevention, including partial or complete process shutdown in the event of a potential catastrophic release, and allowing employees to anonymously report specific unaddressed hazards.
• Root cause analysis and third-party audits: requiring third-party compliance audits and root cause analysis incident investigation for facilities that have had a prior accident.
• Community notification of RMP accidents: requiring that chemical release information is timely shared with local responders and a community notification system is in place to warn the community of any impending release.
• Emergency response exercises: requiring field exercises every ten years, unless local responders indicate that frequency is infeasible, and requiring reporting for exercises.
• Natural hazards and power loss: emphasizing the requirement for regulated facilities to evaluate risks of natural hazards (meteorological, environmental, or geological phenomena) and climate change, including any loss of power and requiring back-up power for release monitoring equipment.
• Facility siting: defining facility siting requirements for hazard reviews and requiring justification when siting hazard recommendations are not adopted.
• Enhanced information availability: increasing access to RMP facility information for “fence line” communities nearby and requiring chemical hazard information be provided upon request to the public living, working, or spending significant time within six miles of the facility.

As part of the Final Rule, EPA is providing a query tool to allow communities to access RMP information, and EPA plans to update the tool in the coming months to also allow visualization of climate change hazards.

The Final Rule is effective on May 10, 2024, and facilities must comply with these new requirements within three years after that date, though entities have an additional year (a four of total years) to update and resubmit risk management plans. 

As EPA has included “Chemical Accident Risk Reduction” in its list of National Enforcement and Compliance Initiatives, compliance with these new RMP obligations is critical for relevant stakeholders. KMCL attorneys are available for questions and will be tracking the likely challenges to this rule change.

KMCL provides this information for educational purposes only. This article should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers.