Tuesday, December 22, 2015

EPA Sends Accidental Release NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs announced that it had received from the EPA a notice of proposed rulemaking (NPRM) to modernize the accidental release prevention regulations under Clean Air Act. The listing for this rulemaking (RIN: 2050-AG82) in the Fall 2015 Unified Agenda makes it clear that this is being initiated in response to the President’s Executive Order on Improving Chemical Facility Safety and Security (EO 13650).

While the EO is specifically mentioned in the Unified Agenda listing, the EPA’s 2014 request for information (RFI) on their Risk Management Program (almost certainly to be addressed in this NPRM) supporting that EO is not mentioned. We could still see that RFI mentioned in the Preamble to the NPRM (and I really suspect that we will), but I suspect that it was not mentioned in the Unified Agenda is that the RFI was much more wide-ranging in its program coverage than the coverage of this rulemaking.

In identifying the legal basis {42 USC 7412(r)(7)} for this rulemaking, the EPA has made it clear that they are only going to address the RMP regulations pertaining to “release prevention, detection, and correction requirements”. Since the list of covered chemicals triggering the RMP status for facilities is provided under §7412(r)(3), it does not appear that this rulemaking will include any changes to that list.

It also appears that two other potential RMP modifications strongly suggested by public comments to the RFI will not appear in this rulemaking. Those are the inclusion of inherently safer technology (IST) standards based upon the General Duty Clause of §7412(r)(1) or expanding the off-site consequence information sharing requirements of §7412(r)(7)(H).

It will be interesting to see how long this NPRM takes to wend its way through the OIRA process. I expect that it will be months (at least) before this NPRM is published. If RMP program revisions are too controversial it is unlikely that this NPRM will make it through to a final rule before the end of the Obama Administration in January of 2017. This may argue for a more moderate update of the regulations that could possibly get through the regulatory process next year. Otherwise, the ultimate fate of this rulemaking would rest with the on-coming President.

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