The Nickel Report

On Wednesday, June 16, 2021, EPA held the first of two public “listening sessions” to inform its review of the Risk Management Program (RMP) regulations pursuant to Executive Order 13990.  According to Carlton Waterhouse, EPA Deputy Assistant Administrator for the Office of Land & Emergency Management (OLEM), the listening sessions are “a first step in considering improvements to the RMP rule, so EPA can better address the impacts of climate change on facility safety and protect communities from chemical accidents, especially vulnerable and overburdened communities living near RMP facilities.”

In the June 16 session, EPA heard perspectives on potential revisions to the RMP program under the current administration, and invited the submission of written comments to the regulatory docket established for the RMP review effort by July 15, 2021.  Comments submitted by that date will inform any future regulatory proposal EPA issues revising the current RMP program.

The current RMP regulations are themselves the product of review and revision undertaken by EPA at the direction of President Trump in the early days of his administration.  The history of RMP program changes, including those proposed (and eventually finalized) by the previous administration, are described in a previous Nickel Report post available here.  It is now widely speculated that EPA could well undertake another reversal of course, potentially re-instating a number of controversial requirements that were finalized in the final days of the Obama administration and subsequently repealed—such as requirements for compliance auditing (including third party compliance audits), incident investigation and root cause analysis, and Safer Technologies and Alternatives Analysis (STAA).

The principal themes offered by public commenters during the June 16 listening session foreshadow issues that will likely be addressed in any future EPA proposal to revise the current RMP regulations, including:

• Environmental Justice. A number of commenters requested that EPA take into consideration the potential impacts of chemical incidents on environmental justice populations living in close proximity to RMP facilities.  These commenters stated that in many areas of the country, environmental justice populations face disproportionate risk from RMP facilities, and requested that EPA consider regulatory revisions to address cumulative risks to fenceline communities posed by RMP facilities in close geographic proximity to each other.  OLEM Deputy Assistant Administrator Waterhouse  stated at the outset of the session that environmental justice will in fact be a “critical feature” of the work that EPA does in reviewing the RMP rule.
• Inherent Safety. Several commenters, including the U.S. Chemical Safety Board (which is tasked under Clean Air Act Section 112 with making recommendations to EPA on its RMP regulatory program) requested that EPA revise the RMP regulations to require that facilities undertake an evaluation of inherently safer systems and mandate that regulated facilities implement risk reduction measures identified under a hierarchy of hazard controls analysis (e.g., chemical substitution, process re-design, etc.).  The RMP final rule issued in 2016 would have required a Safer Technologies and Alternatives Analysis (STAA) to be conducted on new and existing processes as part of a facility’s Process Hazard Analysis every five years and for facilities to determine the practicability of the inherently safer technologies considered.  But this requirement was rescinded in 2019, due to EPA’s finding that STAA costs are disproportionate to their benefits.  If the Biden EPA re-instates a STAA requirement—particularly in a more stringent form that would require facilities to implement the findings of their STAA analysis—the Agency will have to address this cost/benefit finding in the administrative record from the prior rule.
• Planning for Climate-Related Impacts. A number of commenters called for inclusion of new requirements for facilities to incorporate planning for climate-related events (e.g., extreme weather, sea level rise) into their RMPs, and that EPA mandate certain incident mitigation measures—such as backup power supplies—as part of the RMP regulations.
• Prescriptive v. Performance-Based Regulations. A number of representatives of the regulated community pointed out that the RMP program has long been performance-based—requiring facilities to focus on continual improvement and implementation of lessons learned—and that this program has been working effectively to reduce occurrences of chemical incidents over time.  These commenters requested that EPA refrain from pursuing a more prescriptive approach, noting that insufficient regulation is not the cause of chemical accidents.  Rather, several comments suggested that EPA focus its resources on targeted enforcement and compliance assistance for the small percentage of RMP facilities responsible the majority of significant incidents in recent years.

Since 2014, Hunton attorneys have led RMP advocacy efforts on behalf of industry coalition the Chemical Safety Advocacy Group (CSAG). CSAG provided critical input on the Obama administration EPA’s 2016 proposed rule, filed a successful petition prompting the Trump administration EPA to reconsider the 2017 final rule, and submitted comments on the 2018 reconsideration rule—many of which directly influenced the outcome of the 2019 final RMP reconsideration rule.  CSAG has an established track record as a voice of reason on issues such as the relative costs and benefits of EPA’s RMP regulatory proposals, the importance of safeguards for facility security-sensitive information, and the appropriateness of other program elements (e.g., STAA, third party audits, certain incident investigation and root cause analysis requirements)—all of which will be important issues in any future RMP rulemaking coming out of the Executive Order 13990 review process.

EPA’s next listening session is scheduled to occur on July 8, 2021 from 4:00 to 8:00 p.m. EST.