The most recent Environmental Protection Agency (“EPA”) Regulatory Agenda shows a further delay for the agency to finally promulgate long-awaited changes to its Chemical Accident Prevention Program, also known as the Risk Management Program (“RMP”). After Obama made major changes, the Trump EPA delayed them and now seeks to reverse them. Want to understand this complicated saga and learn what to expect? Read on.
The rules used to be clear
EPA’s RMP and OSHA’s Process Safety Management program (“PSM”) each seek to prevent accidental releases of certain hazardous chemicals and to minimize the consequences of such releases. EPA’s focus is on hazards to the surrounding community, whereas OSHA is concerned about employee safety. Initially, EPA and OSHA harmonized the two programs’ detailed operational requirements. As a result, facilities covered by both regulations typically could implement one program to comply with both rules.
OSHA moved first to make change but stalled out
More recently, however, the two agencies have been taking separate actions. In response to an Obama era initiative focusing on chemical accidents, OSHA was first to consider changes to its program. In 2013, OSHA sent out requests for information on PSM, but its efforts soon stalled. In 2018, the changes became a “Long-Term Action” with a “To Be Determined” action date. In fact, the initiative was dropped altogether from OSHA’s most recent regulatory agenda.
Obama’s EPA tried to make big changes
Meanwhile, the Obama-era EPA also moved forward with changes to its RMP rules, finalizing revisions on January 13, 2017 (“Final RMP Amendments”). The Final RMP Amendments made changes to the RMP regulations by requiring:
- Root cause analyses for any incident investigation
- An independent third-party compliance audit for facilities with an RMP reportable accident
- Select industries to evaluate safer technology and alternatives as part of the process hazard analysis
- Annual meetings with local emergency response agencies
- Annual emergency notification exercises
- Full-field exercises with local emergency response agencies at least every 10 years and tabletop exercises every three years
- A public meeting within 90 days after a reportable accident
- Enhanced availability of chemical hazard information to the public
- Additional information in the Risk Management Plan
Trump’s EPA delayed the changes until court intervention
Upon taking office, however, the Trump administration almost immediately challenged and delayed the new RMP requirements. After the new EPA received multiple petitions to reconsider and stay the Final RMP Amendments, it published a final rule on March 16, 2017 that delayed the Final RMP Amendments from taking effect for three months. On June 14, 2017, EPA promulgated another rule, further delaying the effective date to February 19, 2019 (the “Delay Rule”).
Environmental organizations challenged the 20-month Delay Rule in court. On August 17, 2018, the D.C. Circuit Court of Appeals held that the EPA Delay Rule violated the unambiguous statutory 90-day stay limitation for reconsideration of a rule. It tossed out the EPA’s Delay Rule stating that the EPA may not “sidestep the mandated statutory process for revising or repealing a rule on the merits.” The Court issued its mandate on September 21, 2018, and according to EPA, the effective date of the Final RMP Amendments was December 3, 2018.
Although the Final RMP Amendments are in effect, several of the new provisions of the rule always had delayed compliance deadlines. This has postponed a number of changes that companies eventually may have to implement. The following provisions have delayed compliance deadlines:
- Root cause analyses (March 15, 2021)
- Third party compliance audits (March 15, 2021)
- Safer technology assessments (March 15, 2021)
- Emergency response exercises (March 15, 2021)
- Public information (March 15, 2021)
- Risk Management Plan revisions (March 14, 2022).
Trump seeks to rescind and further delay Obama’s RMP
Meanwhile, EPA proposed new changes to the RMP rules on May 30, 2018. These would effectively rescind most of the Final RMP Amendments and extend compliance deadlines for other remaining provisions. A public hearing on the proposed rule was held on June 14, 2018, and the EPA extended the period for public comments until August 23, 2018.
The new changes proposed by EPA would rescind the following requirements of the Final RMP Amendments:
- Root cause analyses
- Third party compliance audits
- Safer technology assessments
- Public information requirements
- Field emergency exercises every 10 years (exercises still required, but frequency determined by local emergency responders).
In addition, compliance dates would be extended for the following:
- Emergency response coordination–one year after effective date of final rule)
- Emergency response exercise–plans and schedules due four years after the effective date of final rule
- Notification exercises—five years after the effective date of a final rule
- Risk Management Plan changes—five years after effective date of final rule
- Public meetings—two years after effective date of final rule
The most recent EPA regulatory agenda indicates the final rule is to be published in August 2019, substantially later than originally planned. If delayed still further, companies will start to be concerned that they will need to start planning to address the provisions for which compliance is due in 2021. Of course, any further delay could create even more uncertainty, depending on the outcome of the 2020 presidential elections.
As for OSHA, there is currently no word on whether OSHA will amend its PSM rules to be consistent with the EPA changes. We will continue to monitor the developments of this story as it unfolds. Stay tuned to Safety Law Matters for further updates.
Questions in the meantime about your environmental compliance? Contact your Husch Blackwell attorney or Amy Wachs for assistance.
Tracey Oakes O’Brien was a contributing author of this content.