High Risk, Questionable Reward

December 9, 2014

On July 31, 2014, the U.S. Environmental Protection Agency (EPA) published a request for information (RFI) on various changes to the Risk Management Program (RMP) under Section 112(r)(7) of the Clean Air Act, including completely replacing the current RMP rule and its sister regulation, the Process Safety Management (PSM) standard, with a new framework for regulating high-risk industries. The comment period associated with the RFI closed on October 29, 2014. EPA has published over 570 comments submitted by industry members, state and local agencies, public citizens, and non-governmental organizations in response to the RFI. This Client Alert analyzes the bulk of those comments for common themes that illustrate anticipated areas for programmatic revision. It further identifies certain ideological conflicts which must be resolved before any final rule can issue with broad-based support.

RFI Background

In response to Executive Order 13650, entitled "Improving Chemical Facility Safety and Security," was issued August 1, 2013 in response to several recent major chemical accidents, including the explosion at the West Fertilizer Facility in West, Texas. The Executive Order required numerous federal agencies to form a Chemical Facility Safety and Security Working Group (Working Group) to identify how to reduce the incidence of major chemical incidents at chemical facilities. On May 1, 2014, the Working Group issued its report to the President recommending a number of initiatives, including modernizing the RMP and PSM standards by May 1, 2015. EPA and the Occupational Safety and Health Administration (OSHA) both issued RFIs intended to assist in determining whether and how to modernize the RMP and PSM standards. Following-up on publication of the Working Group's report and OSHA's RFI, which signals that OSHA may apply an expanded PSM program to ammonium nitrate, reactive chemicals, and oil and gas drilling, servicing, and production facilities, EPA published its own RFI intended to improve and/or expand its RMP rule.

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