North America

U.S. Cold Chain Industry Welcomes Reversal of Obama Safety-Rule Amendments

The Global Cold Chain Association (GCCA), a U.S.-based trade group representing industrial operators using ammonia refrigeration, said it supports a final rule issued by the U.S. Environmental Protection Agency (EPA) on November 21 that rescinds most of the changes made to the Risk Management Program (RMP) by the Obama Administration.

At least one environmental group has pushed back against the new rule, and the GCCA expects opponents to consider legal challenges to the rulemaking.

The RMP, launched by the EPA in 1999, covers a set of safety requirements that facilities using what are considered dangerous chemicals, including ammonia, must follow. In 2017, the Obama Administration, in one of its final regulations, amended the RMP with a series of new requirements related to third-party audits, safer technology analysis, information sharing and engaging with emergency responders, among other areas.

After the Trump Administration took office in January 2017, the EPA issued a series of delays to the effective date of the RMP amendments and began a rulemaking process to reconsider the changes made by the Obama Administration. “GCCA has been an active participant throughout the rulemaking process,” the group said on its website.

The new “Reconsideration Rule,” which takes effect upon publication in the Federal Register, rescinds almost all the requirements added in 2017 to the accident prevention program provisions of the RMP regulation, said the GCCA.  The rescission of the third-party audit provisions is a major accomplishment and was one of GCCA’s top priorities for the rulemaking.

“Industry welcomes the finalization of the RMP Reconsideration Rule and appreciates EPA’s recognition that several provisions included in the RMP Amendments Rule at the end of the Obama Administration were unnecessarily burdensome,” said Lowell Randel, Vice President of Government and Legal Affairs for GCCA.  “In particular, industry is pleased that EPA has rescinded the provisions related to independent third-party audits.”

The GCCA called the elimination of the third-party audit provisions “a major accomplishment” and “one of GCCA’s top priorities for the rulemaking.”

The EPA, in its “RMP Reconsideration Final Rule Fact Sheet,” said its new rule will ”better address potential security risks, reduce unnecessary and ineffective regulatory burdens on facilities and emergency responders, harmonize rather than conflict with the Occupational Safety and Health Administration’s (OSHA) Process Safety Management standard, address the concerns of stakeholders, and save Americans roughly $88 million a year.”

However, in an op-ed article published in the New York Times on December 6, Ana Parras, co-executive director of Texas Environmental Justice Advocacy Services, wrote, “This regulatory rollback gives chemical plants across the country a free pass, in pursuit of greater profits, to operate in a way that endangers families and workers.”

Provisions eliminated

In rescinding the 2017 amendment’s requirement to hire a third-party to conduct a compliance auditafter an RMP-reportable accident, the EPA said in a fact sheet that it was “unnecessary.” 

The EPA also rescinded a 2017 requirement to assess “theoretically safer technology and alternative risk management measures applicable to eliminating or reducing risk from process hazards.” The agency said this was “not practical to implement or necessary given that the evidence does not demonstrate reduction inaccidents,” adding that it was “the costliest provision of the RMP Amendments.”

Another 2017 requirement eliminated under the new rule was one to conduct and document a “root-cause analysis” after an RMP-reportable accident or a “near miss.”The EPA said this was rescinded “to maintain consistency” with Occupational Safety and Health Administration’s PSM (process safety management) standard. “Many facilities may already use root cause analysis forincident investigations,” the agency said.

The EPA also rescinded a provision of the 2017 rule requiring information about chemicals used by a facility to be made public by request. This will remove “the significant risk” thatreleased information “could pose a security/terrorism threat.” However, the final rule allows local emergency responders to obtain “other information necessary for developing and implementing the local emergency response plan.”

The new rule retained the requirement – which took effect September 21, 2018 –  that facilities must coordinate annually with local response organizations and document coordination activities.

The EPA also retained the requirement for “annual notification drills,” but changed the compliance date from March 15, 2021, to five years after the date of publication of the new rule in the Federal Register. Similarly, the requirement to perform field and “tabletop” exercises was delayed from March 15, 2021, to four years after publication in the Federal Register. The frequency of field exercises was changed from at least once a decade to a schedule established by an owner/operator and local emergency response officials.

The EPA also modified the 2017 requirement to hold a public meeting after an incident to only those incidents that have offsite impacts, vs. those with onsite impactsonly.

The EPA said it is prioritizing inspections and enforcement “on high risk facilities and recently entered into the largest-ever settlement in the history of enforcing the RMP rule, valued at approximately $150 million, in 2018.”

Industry … appreciates EPA’s recognition that several provisions included in the RMP Amendments Rule at the end of the Obama Administration were unnecessarily burdensome.

Lowell Randel, GCCA