EPA Finalizes Changes to Risk Management Program Requirements;
Companies Must Submit RMP Updates By June 21, 2004

Date: Apr 30, 2004

Following up on revisions proposed last July, the U.S. Environmental Protection Agency (EPA) has finalized several changes to its Clean Air Act Section 112(r) Risk Management Plan (RMP) regulations. 69 Fed. Reg. 18,819 (April 9, 2004). These changes will have an immediate impact on companies that face a June 21, 2004, deadline to submit to EPA an updated RMP that describes their facility's risk management program. These changes are briefly summarized below.

Timelier Accident Reporting

Facilities that have a reportable accident (i.e., one that results in deaths, injuries, or significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in place, property damage or environmental damage) are now required to revise the 5-year accident history section of their RMP within six months of the accident's occurrence (previously, they could wait until the 5-year update). Certain facilities (i.e., Program 2 and 3 sources) must also revise incident investigation information in sections 7 and 8 of their RMP to reflect the date of the investigation of the reportable accident and the expected date of any changes resulting from the investigation. The corrected RMP must be submitted with six months of the date of the accident.

Removal of Off-site Consequences Analysis Information from Executive Summary

As a concession to homeland security concerns, EPA is no longer requiring facilities to include a brief description of the potential off-site consequences of hypothetical worst-case accidental releases in the executive summary of their RMPs. EPA had removed such summaries from its website in the wake of 9/11. Facilities will still be required to provide off-site consequence analysis data in sections 2 through 5 of their RMP.

Updating of Emergency Contact Information

Facilities must correct emergency contact information in the RMP (e.g., name, phone number) within one month of any changes. Previously, facilities could wait until their 5-year update to correct this information.

New Data Elements

EPA has added several new data elements to the RMP. Facilities must provide this information by June 21, 2004, regardless of when their RMP update is due. The new data elements are: e-mail address of emergency contact, purpose and type of submission (e.g., new emergency contact, revised process hazard analysis, de-registration, etc.), and name, address, and telephone number of contractor/consultant, if any, who prepared the RMP.

EPA has also expanded the list of possible causes of accidental releases reported as part of a facility's 5-year accident history to include "uncontrolled/runaway reactions." Previously, the options were: gas release, liquid spill/evaporation, fire, and explosion.

EPA Holds Off on Requesting OSHA Data

Although in the proposed rule EPA requested feedback on whether future RMP submissions should include certain OSHA occupational illness and injury data, the Agency has decided to "reserve judgment" on whether and how to gather such data. This matter may be the subject of a future rulemaking, so companies will want to closely monitor future rulemaking activity by EPA in this area.

Clarification of Deadline for RMP Updates

Facilities are required to fully update and resubmit an RMP at least once every five years. (In certain instances, the RMP may have to be updated prior to the 5-year anniversary, per 49 C.F.R. § 68.190.)

Although a facility may have submitted its initial RMP prior to the original June 21, 1999 deadline, EPA has now clarified that such facilities will have until June 21, 2004 to submit their 5-year updates (as compared to 5 years from the date of the original submission - i.e., early submitters are being given a break). Note: if a facility submitted its 5-year update prior to the issuance of the April 9, 2004, modifications to the RMP rules, then the facility may ask EPA to return its update and the facility may then take until June 21, 2004, to re-submit its update. Importantly, if, since submitting its initial RMP, a facility has updated and resubmitted its RMP for any reason other than the mandatory 5-year update, the facility will have five years from the date of the latest update to satisfy the 5-year update obligation.