EPA Issues New Rules Requiring the Development and Submission of Response and Risk Management Plans

The Accidental Release and Risk Management Rules
These rules were authorized by the Congress in its 1990 amendments to the Clean Air Act, in particular Section 7412 (r) (7). The Congress was concerned by the occurrence of “multiple high-profile” chemical accidents that caused substantial harm to workers, the communities and the environment. The law also created the Chemical Safety Board. The initial release prevention rules were issued in 1996 and apply to “stationary facilities” that store or use listed hazardous substances in amounts above a regulatory threshold. The list of hazardous substances and their threshold quantities can be found at 40 CFR 68.130. A few years later, EPA proposed significant changes to the existing rules, located at 40 CFR Part 68. See the March 16, 2016, notice of proposed rulemaking (81 FR 13638). EPA issued its final rule on January 13, 2017, shortly before the change in Presidential administrations. The new administration promptly issued a “reconsideration rule” which extensively revised the 2017 amendments in 2019. (See 84 FR 69834 (December 19, 2019), which set the stage for the 2024 amendments.) As this recitation of a tangled administrative history demonstrates, these rules have been very controversial. EPA reports that to date, almost 8,000 facilities have submitted RMPs (risk management plans) with EPA, which attests to their effectiveness.

Why are these rules so controversial? The “new” rules are complex and may be very difficult to satisfy. EPA has reinstated a number of provisions the 2019 rule jettisoned, including: the regulatory definitions of “active measures”; “inherently safer technology or design”; “natural hazard” to include climate change impacts; “passive measures”; “root cause”; and “third-party audit”. Section 68.210 strengthens the rule making chemical hazard information publicly available pursuant to regulatory deadlines; the use of third-party auditors is mandatory in the case of certain chemical releases ; and employee participation regarding the review of incident reports will be subject to new and expanded requirements. Also, emergency response exercises must be scheduled and timely documented. Safer technology and alternatives analysis (STAA) will be required for facilities classified as Program 3 facilities, and the expanded definition of “natural hazards” to include climate change factors may complicate this inquiry.

It should be acknowledged that a highly complex program published in nearly 40 pages of the Code of Federal Regulations is bound to create difficulties in compliance. The fundamental RMP rule is Section 68.150. Pursuant to this rule, the owner or operator of the regulated facility must prepare and submit to EPA a single RMP that includes the data required by Sections 68.155 through section 68.185, and a registration must be included in the RMP package. A Hazard Assessment, described as being a “worst case release scenario,” must also be prepared. Any incident report generated by a potentially catastrophic release must include a “root cause” analysis. Generally, each RMP must be updated every five years.

The New Clean Water Act Facility Response Rules.
A few days after EPA’s Chemical Accident Prevention and Response Rules were published, another set of Facility Response Plan rules were published by EPA in the Federal Register. See 89 FR 21924.( March 28,2024). These new rules are authorized by Sections 311 (j)(5), and Section 501(a) of the Clean Water Act (CWA). As noted above, the effective date of these rules is May 28, 2024, but the obligation to file response plans is generally June 1, 2027.

The CWA Facility Response Plans are concerned with the “worst case” discharges of CWA hazardous substances applicable to onshore facilities that, because of their location, could reasonably be expected to cause substantial harm to the environment by discharging these substances into or on “navigable waters,” adjoining shorelines or to the exclusive economic zone. “Navigable Waters” are defined for these rules by 40 CFR Section 120.2, which was revised in a response to the U.S. Supreme Court’s 2023 ruling in Sackett v. EPA. EPA has listed the relevant hazardous substances and their regulatory quantities in 40 CFR Parts 116 and 117. The Clean Water Act was amended by the Oil Pollution Act of 1990 to grant these regulatory powers to EPA. The current oil spill prevention or SPCC rules were promulgated several years ago—see 40 CFR Part 112—and may have been a model for these rules. The SPCC rules include provisions for the development of SPCC response plans for facilities whose location could reasonably be expected to cause substantial damages to the environment in the event of a major oil spill. These new rules resulted from a settlement of litigation bought by the NRDC against EPA because of the agency’s failure to timely develop these hazardous substance spill rules after the SPCC rulemakings were concluded. Subchapter D of EPA’s Water Program Rules has been amended by adding a new Part 118 governing Facility Response plans. EPA has promulgated regulatory criteria for owners and operators of facilities to determine if they are now subject to these rules, and the requirement to prepare and submit Facility Response Plans. Section 118.11 also lists the required contents of an RMP. The “worst case discharge” rule, which sets the criteria for determining if there is the possibility of a “worst case discharge” is located at Section 118.10. In addition, the owner or operator has the responsibility to conduct training, drills and exercises.

Summation
Both new rules may be challenged in court. However, the regulated community should take time to carefully analyze these rules and their impact on facilities before these rules take full effect.