Risk Management Plan (RMP) Final Rule Stayed by USEPA – Its Future Uncertain

  • Disaster in West, Texas
  • CSB issues recommendations for the USEPA
  • USEPA issues RMP final rule to address West, Texas disaster
  • Stay of RMP final rule is requested and granted, its future in doubt.

The early evening fire at the West Fertilizer Company in the city of West, Texas on April 17, 2013 drew the attention of residents as local emergency responders rushed to the scene.  At 7:50 PM, about 20 minutes after the fire started, between 20 and 30 tons of ammonium nitrate stored at the facility exploded, taking the lives of 12 emergency responders and 3 private citizens.  More than 260 people were injured.  The explosion leveled a sizeable portion of the city of West, Texas, with total losses exceeding $250 million.  In 2016, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) determined the initial fire to have been intentionally set.

Investigation Report- Final: West Fertilizer Company Fire and Explosion

As a result of its investigation, the Chemical Safety Bureau (CSB) recommended that USEPA develop guidance documents for local emergency planning committees (LEPC’s) and fire departments which explain how information reported to them under Emergency Planning and Community Right-to-Know Act (EPCRA) Tier I and II provisions should be used for emergency planning.  The CSB also recommended that USEPA revise its Risk Management Plan (RMP) requirements to include ammonium nitrate on its List of Regulated Substances.  On January 13, 2017, USEPA issued a final rule revising it RMP requirements.  The rule change did not, however, include the addition of ammonium nitrate to the RMP’s List of Regulated Substances.  It did include, however, several new requirements for accident prevention and enhanced emergency planning and communication.  These new requirements will apply to all RMP facilities.

The core of the new RMP requirements include the following:

  • Although a facility’s Risk Management Plan currently must be publicly available at a Federal Reading Room, or through a Freedom of Information Act request, the new rule requires disclosure of relevant information to the public and the LEPC upon request. This information will include:
    • chemical hazard information,
    • accident history,
    • dates of past emergency response exercises,
    • emergency response program information,
    • and LEPC contact information
  • RMP facilities will be required to coordinate planning and response activities with the LEPC annually, and provide the LEPC with the following information:
    • emergency response plan, if one exists,
    • emergency action plan,
    • updated emergency contact information, and any other information that local emergency planning and response organizations identify as relevant to local emergency response planning.
  • After an RMP related accident, the facility will need to provide a public meeting within 90 days of the accident.
  • Also, after an RMP related accident, the facility will need to complete a root cause analysis and issue a report within 12 months of the accident.
  • Covered RMP facilities will also need to adopt and implement a Safer Technology and Alternatives Analysis (STAA) withing its process hazard analysis (PHA) procedures.
  • Each PSM facility will also need to conduct an independent third-party compliance audit on the following occasions:
    • every two-years
    • when USEPA determines that conditions exist which could lead to an RMP incident.
    • after each PSM incident

Issued final on January 13, 2017, the rule changes were to go into effect on March 14, 2017.  However, on February 28, 2017 the RMP Coalition, a coalition of industry organizations including the American Chemistry Council, the American Petroleum Institute, The Chamber of Commerce of the United States of America and others, petitioned USEPA for reconsideration and a stay of the new rule pending judicial review.  On March 16, 2017, USEPA granted a 90-day stay of the rule, pushing back the effective date to June 19, 2017.

The RMP Coalition objected to several of the new requirements in the RMP regulation, as well as the lack of an adequate public comment period.  The group believes that the current RMP rules have worked well and that USEPA is using the tragedy in West, Texas to expand its authority, and in doing so, increasing the compliance burden of regulated facilities, all without actually addressing the specific issues that caused the West, Texas tragedy.  The RMP Coalition’s specific objections are summarized below.

  • The new information disclosure requirements pose a significant security risk to RMP facilities and are of a much larger scope that the current RMP information requirements.
  • As required by law, USEPA failed to include a full cost-benefit analysis of the rule changes in the proposed rule, thus depriving the regulated community the opportunity to comment on the costs and benefits of the rule change.
  • The new independent third-party compliance audit requirement is triggered by the obscure discretion of USEPA and, as written, would impose an overwhelming compliance function on regulated facilities.
  • Additionally, a compliance audit is currently permitted to be done on a representative sample of covered RMP processes. However, this rule change will require a compliance audit on each covered process.
  • The legal rationale for both the third-party audit and new STAA requirements should be reconsidered. The group is questioning USEPA’s legal rationale and inadequate time was provided for review and comment on USEPA’s legal rationale.
  • The USEPA published thousands of pages of supporting documentation for the final rule on the same day as the final rule. The documentation was not available for review during the comment period, but should have been provided.

So the effective date of the rule is delayed until June 19, 2017, but its fate is ultimately in doubt.  Resolutions have been introduced into the House and Senate seeking to kill the rule altogether through the Congressional Review Act.  (Last month, Congress killed OSHA’s new recordkeeping rule using this process.) In the current political environment, it would be reasonable to expect that this RMP final rule may never actually become effective.