US EPA on May 30, 2018 published a proposed rule to “rescind almost all the requirements added to the accident prevention provisions program” of a 2017 rulemaking that expanded the Clean Air Act Risk Management Plan (RMP)
chemical accident prevention requirements.
The 2017 Final Rule required some chemical facilities to conduct root-cause analysis as part of incident investigations and to contract with an independent third party to perform compliance audits after a reportable release. In addition, owners and operators of facilities in the paper, petroleum, coal, and chemical manufacturing industries must add a safer technology and alternatives analysis (STAA) to their process hazards analysis (PHA) under the new rules.
For a complete list of requirements EPA plans to rescind, see Section 2 of the proposed rule, Summary of the Provisions of the Regulatory Action, here.
In addition to these new accident prevention provisions, EPA “enhanced” the RMP emergency response program by requiring facilities to coordinate with local emergency responders once per year and to conduct annual notification exercises and emergency response exercises regularly.
Read more: Final Rule Alert—EPA Updates RMP Program for Chemical Facilities
Challenges to EPA’s Expanded RMP Regulations
EPA promulgated the 2017 Risk Management Plan rulemaking for chemical facilities in response to an April 2013 ammonium nitrate explosion in West, Texas that killed fifteen, injured 160, and damaged or destroyed 150 buildings.
Industry groups and some states filed a petition for reconsideration, arguing that a Bureau of Alcohol, Tobacco, and Firearms (ATF) report released on May 11, 2017 indicated that the West Texas incident was the result of an intentional criminal act, and not an “accident.” The comment period for the 2017 rule closed on May 13, which prevented commenters from using the ATF’s findings to challenge the new requirements.
Some have since questioned whether ATF’s finding is correct
, noting that ATF relied on “negative corpus” or the process of elimination to determine that the fire was an intentional act. In other words, because no other hypothesized explanation made sense, they determined that the fire was intentionally set. Five years later, no suspects have been named and no arrests have been made. See the full proposed rule here.
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