In its spring 2016 regulatory agenda, the EPA set a December 2016 completion date for its final revisions of regulations implementing Clean Air Act (CAA) Section 112(r), the Risk Management Program (RMP). Since issuing the first RMP rule in 1996, the Agency has revised the requirements at least six times. But the most recent proposed changes (March 14, 2016, FR) may be the most consequential and, accordingly have generated strong responses from industry as well as public interest groups; the latter are most concerned about environmental justice in low-income communities that tend to be closer to RMP facilities than more affluent areas. Industry, meanwhile, has objected to most aspects of the proposal, which it says is impractical and ineffective and undermines security.
Program 2 and Program 3 facilities
The RMP is primarily intended to reduce the risk of accidental releases at facilities with threshold amounts of hazardous chemicals, which could impact off-site public and environmental receptors. Regulated facilities must conduct process hazard assessments that detail the potential effects of such releases and worst-case and alternative accident scenarios; develop prevention programs that include safety precautions and maintenance, monitoring, and employee training measures; and put in place emergency response programs that include procedures for informing the public and local response agencies should an accident occur. Facilities subject to the program are placed into one of three RMPs based on the risk they pose or the accident history of their sector. Approximately 12,500 facilities must comply with RMP requirements, but Program 2 and 3 facilities are considered the highest risk and are the primary targets of the current proposal.
In the proposal, the EPA states its belief that RMP regulations have been effective in preventing and mitigating chemical accidents. However, adds the Agency, despite the RMP and other federal programs designed to prevent industrial accidents, such incidents continue to occur. The EPA notes that RMP data for the last 10 years show that there have been more than 1,500 reportable accidents, about 500 of which had off-site impacts.
The proposed revisions include an additional analysis of safer technology and alternatives for the process hazard analysis for some Program 3 processes; third-party audits and incident investigation root-cause analysis for Program 2 and Program 3 processes; enhancements to the emergency preparedness requirements; and increased public availability of chemical hazard information.
Compromising security
As the Chemical Safety Advocacy Group (CSAG) sees it, the best approach to revising the RMP would be to close gaps in those RMP provisions that have been largely successful. Instead, the CSAG believes the Agency’s proposal would have the effect of stifling innovation by diverting resources to requirements with minimal or no benefits.
But CSAG’s major concern appears to be the proposed requirement that certain Program 2 and Program 3 facilities provide (upon request) Local Emergency Planning Committees (LEPCs) with a considerable amount of new information, including summaries related to the facility’s activities on compliance audits; emergency response exercises; accident history and investigation reports; and any inherently safer technologies implemented at the facility. Formation of LEPCs was required by the Emergency Planning and Community Right-to-Know Act (EPCRA).
“The proposal would convert LEPCs from their statutory role of providing notification of and facilitating response to releases, into a clearinghouse for RMP information and into a regulatory body designed to influence the technologies in use at facilities,” commented the CSAG. “LEPCs are not authorized under EPCRA to have this information and it is outside of their scope/statutory purpose. Moreover, under EPCRA, arguments can be made that this information is automatically publicly available once provided to the LEPCs.”
More importantly, says the CSAG, the requirement is dangerous and irresponsible because it would mandate disclosure of the range of information the EPA suggests should be given on request to LEPCs, “who lack the capability to protect it from those who would do harm, and in fact are required to provide it to the public if requested.”
Direct public access
Interestingly, 57 organizations concerned with environmental justice also found the LEPC provision unacceptable. According to these organizations, grouped as the Environmental Justice Health Alliance (Alliance), any revisions to the RMP should ensure public access to the chemical hazard information needed to “participate fully and effectively in their own protection.” According to the Alliance, this is not accomplished by the proposed LEPC requirement.
“EPA incorrectly assumes that LEPCs are effective entities,” commented the Alliance. “In fact, many LEPCs are inadequately funded, are not required to widely disseminate information, or lack real authority. Many LEPCs are essentially non-functional. Studies have also shown weak communications between LEPCs and the public. EPA’s proposed reliance on LEPCs will ensure the failure of even the marginal information disclosure provisions that are proposed, and does not in any way provide for fair treatment of or meaningful involvement by our communities.”
The Alliance is also concerned that the requirement to conduct a safer technology alternative assessment (STAA)—“virtually the only prevention element presented included in the EPA’s proposal,” according to the Alliance—is mandatory for only 1,455 facilities, just 10 percent of all RMP facilities.
“The proposed rule arbitrarily prejudges which industries have worthwhile alternatives, and which facilities and surrounding communities would benefit from STAAs that may lead to more protective operational measures,” says the Alliance.
Comments on EPA’s proposal are available here in docket EPA-HQ-OEM-2015-0725.