EPA Publishes Accidental Spill Prevention Final Rule
Today, the EPA (finally) published a final rule in the Federal Register (89 FR 17622-17692) on “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention”. The notice of proposed rulemaking (NPRM) was published on August 31st, 2022. The regulations will be effective on May 10th, 2024.
In this post I will be looking at the differences between the final rule and the NPRM.
Hazard Evaluation Changes
The preamble discusses the following changes that were made to the hazard evaluation requirements:
Revising the definition of “natural hazards” at 40 CFR 68.3 to mean meteorological, environmental, or geological phenomena that have the potential for negative impact, accounting for impacts due to climate change.
Revising the hazard evaluation regulatory text at 40 CFR 68.50(a)(5) and 68.67(c)(8) to focus amplifying language on natural hazards rather than “external hazards” and include “exacerbate” as an influence on an accidental release from natural hazards in addition to “cause.” EPA is also removing the description of climate change in this section of regulatory text because the definition of natural hazards at 40 CFR 68.3 now includes accounting for climate change.
Revising 40 CFR 68.50(a)(3) and 68.67(c)(3) to require monitoring equipment associated with prevention and detection of accidental releases from covered processes to have standby or backup power.
Revising 40 CFR 68.52(b)(9) and 68.69(a)(4) to require documentation of removal of monitoring equipment associated with prevention and detection of accidental releases from covered processes during imminent natural hazards.
Revising 40 CFR 68.50(a)(6) and 68.67(c)(5) to correct the technical term of “facilities” to “stationary sources.”
STAA Requirement Changes
The preamble discusses the following changes to the requirements for Safer Technology and Alternatives Analysis (STAA):
Revising 40 CFR 68.67(c)(9) to expand the STAA evaluation to all regulated facilities with Program 3 processes in NAICS codes 324 and 325.
Revising 40 CFR 68.67(c)(9)(ii) to expand the IST/ISD practicability assessment to regulated facilities with Program 3 processes in NAICS codes 324 and 325 that also have had at least one RMP-reportable accident under 40 CFR 68.42 since the facility's most recent PHA.
Adding 40 CFR 68.67(h) to require implementation of at least one passive measure at an applicable facility, or an inherently safer technology or design, or a combination of active and procedural measures equivalent to or greater than the risk reduction of a passive measure.
Third Party Audit Changes
The preamble discusses the following changes to the requirement for 3rd party audits:
EPA is revising the requirements in paragraph (f) of 40 CFR 68.58 and 68.79 that triggered when a third-party audit would be required.
EPA is not finalizing compliance audit language at 40 CFR 68.58(a) and 68.79(a) which proposed auditing for every covered process at a facility.
EPA is also not finalizing compliance audit language at 40 CFR 68.58(h) and 68.79(h) which proposed a 12-month timeline for a third-party audit after a triggering criterion.
Employee Participation Changes
The preamble discusses the following changes to the employee participation requirements:
Revising 40 CFR 68.83(c) to specifically apply only to those employees knowledgeable in the process.
Removing from 40 CFR 68.83(d) the stop work criterion allowing an employee to refuse to perform a task when doing so could reasonably result in a catastrophic release.
Revising 40 CFR 68.83(d) so that the two remaining stop work criteria specifically apply only to those employees knowledgeable in the process.
Removing from 40 CFR 68.83(d) the requirement to document and respond in writing within 30 days of the stop work authority being exercised.
Revising 40 CFR 68.62(b) and 68.83(e) to allow the person reporting an unaddressed hazard, unreported accident, or noncompliance to decide whether or not they wish to make an anonymous report or attribute their identity to the report.
Revising 40 CFR 68.62(b) and 68.83(e) to specify the methods of making a report to the owner and operator and EPA.
Adding a provision to 40 CFR 68.62(b) and 68.83(e) to require the owner or operator to keep a written record of the report of noncompliance.
Adding a provision to 40 CFR 68.62(a)(1) and 68.83(a)(1) for the owner or operator to provide an annual written or electronic notice to employees indicating RMP information is available.
Adding a provision to 40 CFR 68.62(a)(2) and 68.83(a)(2) requiring the owner or operator to provide training on the written employee participation plan.
Revising 40 CFR 68.62(a) and 68.83(a) to add the word “requirements” as a clarifying edit.
Accident and Non-Compliance Reporting Changes
The preamble discusses the following changes to the accident and non-compliance reporting requirements:
Revising 40 CFR 68.62(b) and 68.83(e) to specify the report methods to either or both the owner and operator and EPA.
Revising 40 CFR 68.62(b) and 68.83(e) to let anonymity be decided by the reporter.
Adding a provision to 40 CFR 68.62(b) and 68.83(e) to require the owner or operator to keep a written record of the report of noncompliance.
Adding a provision to 40 CFR 68.62(a)(1) and 68.83(a)(1) for the owner or operator to provide an annual written or electronic notice to employees indicating RMP information is available.
Adding a provision to 40 CFR 68.62(a)(2) and 68.83(a)(2) for training on the written employee participation plan.
Community Response Changes Removed
The preamble notes that the proposed changes to 40 CFR 68.90(b)(1) and 68.95(c) have not been included in the final rule. After broadly discussing the many comments that were received on the topic in the NPMR, the EPA clarified that the proposed changes were “intended only to include details of EPCRA's community emergency response plan requirements into RMP regulatory text for reference, not to ultimately transfer plan development and implementation responsibility to RMP facilities.”
Other Community Response Changes from Proposed Rule
The preamble reports that revisions have been made to the proposed provisions for community notification of RMP accidents and the emergency response exercise program. These include:
Revising 40 CFR 68.90(b)(3) and 68.95(c) to allow other existing notification mechanisms or regulations that satisfy the notification requirements, if applicable.
Revising 40 CFR 68.90(b)(6) and 68.95(a)(1)(i) to specify that the owner or operator should partner with local response agencies to ensure a community notification system is in place, and to document the collaboration.
Removing from 40 CFR 68.96(b)(1)(i) the requirement that Federal and State agencies require consultation when determining a field exercise frequency less than once every 10 years.
Revising 40 CFR 68.95(a)(1)(i) to add the word “potentially” as a clarifying edit.
More Details
This is a complex rulemaking. I will be doing more detailed looks at the emergency planning and emergency response provisions in future blog posts.
Commentary
This rulemaking was long-time in the making. And coming this late in Biden’s first term, this is a rule that a Trump Administration will be quick to overturn. Since some of the compliance measures are going to require expensive capital change to facilities, I would expect many facilities to be slow to implement the changes required by this new rule. Planning will probably move forward, but budgeting for necessary changes will not be done until after the first Tuesday in November.