The Safer Communities by Chemical Accident Prevention Rule: An Example of the Newly Heightened Prominence of Environmental Justice Concerns in EPA Rulemakings

EPA has just issued the draft Risk Management Program rule, known as the “Safer Communities by Chemical Accident Prevention Rule” (the Proposed Rule), which builds on a prior rulemaking and expands it by addressing both climate change and environmental justice (EJ).

Introduction

Section 112(r) of the Clean Air Act was added by Congress in 1990. It authorized EPA to promulgate regulations and establish programs to prevent accidental releases of extremely hazardous substances and to minimize the consequences of any such releases. These regulations and the accompanying guidance are known as the Risk Management Program. Under this program, certain chemical facilities are required to prepare and implement Risk Management Plans (RMPs). RMPs are to identify the potential effects of a chemical accident, identify steps the facility is taking to prevent an accident, and spell out emergency response procedures should an accident occur.

Background

In the closing days of the Obama administration, EPA finalized amendments (82 FR 4594) to the Risk Management Program (2017 Rule). The 2017 Rule contained numerous new provisions, including mandated performance of an analysis of “safer technology alternatives,” mandated third-party compliance auditing, and “right-to-know” requirements mandating public disclosure of threat and response information.

The regulated community challenged the 2017 Rule and petitioned the Trump EPA to reconsider certain aspects of the rule by issuing a new rulemaking proposal and taking additional comment on the issues raised for reconsideration. To allow EPA time to address the issues raised, the legal challenge was temporarily paused.

EPA moved forward with its reconsideration proceeding which ultimately culminated in the issuance of a new final rule in 2019 (84 FR 69834) (Reconsideration Rule), which addressed most of the articulated concerns and rolled back many of the provisions added by the Obama Administration. However, environmental NGOs, states, and labor organizations challenged the Reconsideration Rule and petitioned the EPA for reconsideration of this rulemaking. EPA denied those petitions for reconsideration, and the same groups subsequently petitioned for court review of that denial.

EPA, at the start of the Biden Administration, found itself in the midst of three RMP lawsuits— the challenges to the 2017 Rule, the challenges to the Reconsideration Rule and the challenges to the denial of the petitions for reconsideration. (The challenge to the 2017 Rule remains inactive pending resolution of challenges to the Reconsideration Rule.)

On January 20, 2021, President Biden issued EO 13990, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” EO 13990 directed federal agencies to review existing regulations and to take action to address priorities established by the current administration, which include bolstering resilience to the impacts of climate change and prioritizing environmental justice. As a result, EPA was tasked to review the current RMP regulations. EPA has just issued the Proposed Rule, which builds on the 2017 Rule and expands it by addressing the Biden Administration’s priorities: climate change and EJ.

The Proposed Rule addresses all of the core elements of RMP—the hazards that should be addressed in an RMP, accident prevention planning and information sharing—and adds new provisions that reflect EJ, employee/labor and climate change concerns.

Environmental Justice

RMPs require an assessment of potential hazards that could result in an accidental release. In an effort to address EJ concerns, the Proposed Rule is requiring “siting evaluations.” Such evaluations would address hazards resulting from the location of industrial processes, equipment, buildings, and proximate facilities, and their effects on the surrounding community.

The threat of power loss must be properly evaluated and managed, and the need for emergency and/or standby power systems must be addressed. This is not only to prevent or mitigate releases of RMP-regulated substances at covered facilities. This is also to ensure the continuity of monitoring for accidental releases during times of natural disaster so that the release information will be available to responders and the neighboring communities.

Aside from planning for accidents resulting from different hazards, EPA is also requiring certain facilities to conduct a “Safer Technology Alternatives Analysis” (STAA) that analyzes the processes utilized at the facilities to determine if safer, alternative processes can be utilized. This requirement applies to petroleum and coal products manufacturing processes; chemical manufacturing processes that are located within one mile of another RMP-regulated facility with these same processes; and all facilities with petroleum and coal products processes using hydrofluoric acid in an alkylation unit regardless of proximity to other facilities. The requirements for this analysis are based on both potential hazard and geography, as densely co-located facilities may present a heightened risk to nearby communities.

Throughout the Proposed Rule, there are provisions that require information to be made public and accessible so that those in the immediate area of the facility can be made aware of the potential hazards at the facility and what the facility is doing to address those hazards. For example, all recommendations resulting from hazard evaluations must be documented, and they either must be implemented or have written justification for why they were not implemented. These recommendations (and any justification for non-adoption) would consequently become available to the public. The Proposed Rule also would require facilities to provide chemical hazard information, names of regulated substances, accident history, and emergency response information upon request of community members located within six miles and to make the information available in the language preferred by the requestor.

Climate Change

The Proposed Rule adds some explicit hazards and risks that, although they may be addressed in existing RMPs, must now be explicitly addressed in all RMPs. The Proposed Rule requires that RMPs address natural hazards, such as extreme weather. Geological hazards must also be addressed. EPA stated that this inclusion will ensure the threats of natural hazards are properly evaluated and managed to prevent or mitigate releases of RMP-regulated substances at covered facilities.

Labor/Employee Concerns

The Proposed Rule contains a number of provisions that EPA included to advance greater employee participation and allow employees—who are often neighbors of the facility—opportunity for decision-making in facility accident prevention requirements.

EPA is specifically proposing to require employers to consult with employees when making decisions on implementing recommendations from hazard analyses, compliance audits and incident investigations. The Proposed Rule contains provisions that provide employees the opportunity to stop work under certain circumstances and to report late or unreported accidents and other areas of RMP non-compliance to EPA and other relevant authorities. Facilities must have a written plan of action to include consultation of employees and their representatives on addressing, correcting, resolving, documenting, and implementing recommendations of hazard analyses, incident investigations and compliance audits, at a minimum. Employees would be expected to offer suggestions and concerns about why a recommendation should be adopted or declined or whether other alternatives should be taken.

Path Ahead

EPA will be accepting public comment on the proposed rule until October 31, 2022 at https://www.regulations.gov/docket/EPA-HQ-OLEM-2022-0174. EPA is also holding three virtual public hearings on the proposed rule on September 26, 27 and 28, 2022. According to the OMB, a final rule is not anticipated until August 2023. Even once a rule is finalized, considering the litigation history of RMP rulemakings, it is likely this rule will be the subject of litigation as well. Any owner or operator of a facility that is subject to RMP needs to take a careful look now to assess the impact of the proposal on their operations.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.