EPA Proposed Rule Making Changes to Clean Air Act Risk Management Program

On August 31, 2022, EPA published a proposed rule, Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Safer Communities by Chemical Accident Prevention. The proposed rule aims to address several changes and amplifications to the accident prevention program requirements, enhancements to the emergency preparedness requirements, increase the public availability of chemical hazard information, and provide changes and clarity to definitions currently lacking. The proposed rule applies to a variety of industries, including but not limited to chemical manufacturing.


Below is a summary of the key changes and additions within the proposed rule. A table that identifies the full scope of proposed changes and additions can be found here.


Subpart C – Program 2 Prevention Program

40 CFR § 68.58 Compliance audits.

The proposed rule revises paragraph (a), advising that a third-party audit may be required under added paragraph (f) of this section. Additionally, the proposed rule adds paragraphs (f), (g), and (h) to this section. Paragraph (f) states that a third-party audit is required when one or more of the following apply: (1) two accidental releases have occurred within five years, meeting the criteria in § 68.42(a) from a covered process at a stationary source; (2) one accidental release as occurred within five years meeting the criteria in § 68.42(a) from a covered process at a stationary source in NAICS code 324 or 325, located within one mile of another stationary source in NIACS code 324 or 325; or (3) an implementing agency requires a third-party audit due to conditions at the stationary source that could lead to an accidental release of a regulated substance or when a previous third-party audit failed to meet the competency or independence requirements of § 68.59(c).


40 CFR § 68.59 Third-party audits.

Section 68.59 is added in its entirety. The 2019 reconsideration rule rescinded third-party compliance audit requirements, but EPA seeks to reinstate these requirements stating it found there “are likely no legitimate reliance interests associated with the 2019 reconsideration rule’s elimination of these requirements.” EPA has ensured that the proposed section is consistent with existing OSHA PSM requirements.


40 CFR § 68.62 Employee participation.

The proposed rule adds § 68.62 in its entirety and addresses employee participation in Program 2 prevention programs. Paragraph (a) of this section requires the owner or operators to “develop a written plan of action regarding the implementation of the employee participation required [by paragraphs (b) and (c) of this section].” Paragraph (b) requires the owner or operators “to develop and implement a process to allow employees and their representatives to anonymously report unaddressed hazards that could lead to a catastrophic release, unreported RMP-reportable accidents, or any other non-compliance with 40 CFR part 68.” Paragraph (c) states that the owner or operator must “provide to employees and their representative’s access to the hazard reviews and to all other information required to be developed under this rule.”


Subpart D – Program 3 Prevention Program

40 CFR § 68.79 Compliance audits.

The modifications to this section mirror those in 40 CFR § 68.58 detailed above.


40 CFR § 68.80 Third-party audits.

The modifications to this section mirror those in 40 CFR § 68.59 detailed above.


40 CFR § 68.83 Employee participation.

The modifications to this section mirror those in 40 CFR § 68.62 detailed above.


Subpart E – Emergency Response

40 CFR § 68.90 Applicability.

The proposed rule amends paragraph (b)(1) to extensively detail all components required within the facility’s community response plan, which under the current regulation is only referenced as “the community response plan developed under 42 U.S.C. 11003.” The proposed rule also revises paragraph (b)(3) to include specific relevant information that should be included when notifying emergency responders that there is a need for a response, whereas the current regulation states only that “appropriate mechanisms” to notify must be in place. The proposed rule further adds paragraph (b)(6), requiring that “the owner or operator maintains and implements, as necessary, procedures for informing the public and the appropriate Federal, state, and local emergency response agencies about accidental releases of RMP-regulated substances and ensure that a community notification system is in place to warn the public within the area potentially threatened by the release.”


40 CFR § 68.95 Emergency response program.

Paragraph (c) is completely rewritten to address issues with responding facilities notifying the public of releases. The revision requires facilities to provide necessary entities with initial RMP accidental release information during the release of regulated substances to efficiently convey such information to the public and the appropriate federal, state, and local emergency agencies. This information includes the regulated substance released, the estimated time the release began, the estimated quantity of the substance already released, the potential quantity to be released, and the potential consequences of the release on human health and the environment.


Subpart G – Risk Management Plan

40 CFR § 68.160 Registration.

The proposed rule adds paragraph (b)(22), which requires adding the method of communication and location of the notification of a chemical hazard to the public residing within six miles of the stationary source to the registration form included in the RMP.


Subpart H – Other Requirements

40 CFR § 68.210 Availability of information to the public.

The proposed rule amends § 68.210, adding paragraphs(d), (e), and (f). Paragraph (d) details the chemical hazard information a facility must provide to any requesting member of the public residing within six miles of the stationary source. This information includes (1) regulated substance information, (2) SDS for all regulated substances at the facility, (3) five-year accident history, (4) the emergency response program, (5) a list of the scheduled and required exercises, and (6) LEPC contact information. Paragraph (e) dictates that the company must provide ongoing notification on its website, social media platforms, or through other publicly accessible means. Such notifications should convey that the information in paragraph (d) is available and accessible to community members living within 6 miles of the RMP facility. Paragraph (f) requires that the owner or operator of the facility provide the information outlined in paragraph (d) within 45 days of receiving the request.