RMP Rule Update: Effective May 10, 2024
It is here. On March 11, 2024, the Safer Communities by Chemical Accident Prevention (SCCAP) RMP rule changes were published in the Federal Register. This has started the clock on new Risk Management Program requirements that will become effective on May 10, 2024. However, many new requirements have deferred compliance dates written into the law, so compliance will not be required for 3 or 4 years. This blog aims to summarize the rule changes and provide insight into how Resource Compliance will help provide a solution to each requirement.
Definitions
Title 40 §68.3 contains definitions for words and terms that are used throughout the RMP regulation. This section has been expanded to include new and revised definitions.
Resource Compliance Solution: No specific actions are required for the new definitions, but you can expect Resource Compliance to be familiar with the terms and their proper application.
Effective Date: May 10, 2024
Applicability
Title 40 §68.10 has been amended to provide compliance due dates for each of the new requirements. Unless specifically listed in this section, compliance is required on May 10, 2024. Some requirements, however, have deadlines of March 15, 2027, May 10, 2027, or May 10, 2028. The “effective date” for each new requirement is listed in the sections below.
Resource Compliance Solution: Resource Compliance will have a compliance solution for each new requirement available before the effective date. For contracted clients, your account manager will be reaching out to you ahead of time to ensure no deadlines are missed.
Effective Date: May 10, 2024
Program 2 Prevention Program
Subpart C (Title 40 §68.48 – §68.62) has been revised in various areas. These changes parallel the changes to Subpart D (Title 40 §68.65 – §68.85) so they are not summarized here. Refer to the sections addressing Process Safety Information, Process Hazard Analysis, Operating Procedures, Compliance Audits, Incident Investigation, Employee Participation, and Hot Work Permits.
Resource Compliance Solution: No specific solution will be provided since Resource Compliance does not have any clients subject to RMP Program 2. The solutions for Program 3 Prevention Program will be easy to adapt to Program 2 in the future, if necessary.
Effective Date: Varies
Process Safety Information
Title 40 §68.65 has been altered as indicated by the underlined text below.
(a) The owner or operator shall complete a compilation of written process safety information before conducting any process hazard analysis required by this part and shall keep process safety information up to date. The compilation of written process safety information is to enable the owner or operator and the employees involved in operating the process to identify and understand the hazards posed by those processes involving regulated substances. This process safety information shall include information pertaining to the hazards of the regulated substances used or produced by the process, information pertaining to the technology of the process, and information pertaining to the equipment in the process.
(d)(2) The owner or operator shall ensure and document that the process is designed and maintained in compliance with recognized and generally accepted good engineering practices.
Resource Compliance Solution: Resource Compliance will work with clients to modify their written process safety information policy. These changes are consistent with Resource Compliance’s best practices and will not require a change in the consultation that we provide. We will make slight modifications to our client’s policies to ensure their written procedures are consistent with the new requirements.
Effective Date: May 10, 2024
Process Hazard Analysis
Title 40 §68.67 contains several noteworthy changes to the PHA requirements. Paragraph (c) previously listed seven areas that must be addressed in a PHA. That list has been expanded to ten items and two of the existing items have been expanded to provide additional clarification.
Engineering and Administrative Controls
PHAs were previously required to address engineering and administrative controls and their interrelationships, but (c)(3) has been expanded to include the following requirement:
The owner or operator shall ensure monitoring equipment associated with prevention and detection of accidental releases from covered processes has standby or backup power to provide continuous operation
Resource Compliance Solution: While facilities have until 2027 to comply with this requirement, effective immediately, Resource Compliance will ensure that all future PHAs ask the following question (or equivalent): What if standby or backup power is not provided to monitoring equipment associated with the prevention and detection of accidental releases?
Relative to ammonia refrigeration systems, ANSI/IIAR 9-2020 §7.4.7.2 requires that “A means shall be provided for monitoring the concentration of an ammonia release in the event of a power failure.” Informative Appendix A states that “One possible means of monitoring ammonia concentration resulting from a leak during a power failure is a portable ammonia monitoring device.” Therefore, it is Resource Compliance’s position that a portable ammonia detector would satisfy this new requirement.
Effective Date: May 10, 2027
Stationary Source Siting
Additional verbiage has been added to (c)(5) as it relates to stationary source siting.
Stationary source siting, including the placement of processes, equipment, and buildings within the facility, and hazards posed by proximate stationary sources, and accidental release consequences posed by proximity to the public and public receptors
Resource Compliance Solution: Resource Compliance PHAs have always included a subsystem (node) addressing “Facility Siting”. Our PHA templates have questions to address each of these requirements, so no changes will be required.
Effective Date: May 10, 2024
Natural Hazards
Title 40 §68.67(c)(8) is a new addition to the PHA section and requires that PHAs shall address “Natural hazards that could cause or exacerbate an accidental release.”
Resource Compliance Solution: California’s parallel CalARP Regulation has long required that PHAs address external events, including seismic events. As such, every Resource Compliance PHA has a subsystem (node) addressing external events in which the effects of earthquakes, floods, fires, etc. are analyzed. As such, no changes will be required.
Effective Date: May 10, 2024
Safer Technology and Alternative Risk Management Measures
Title 40 §68.67(c)(9) will require PHAs to address safer technologies and alternative risk management measures applicable to eliminating or reducing risk from process hazards. This requirement is only applicable to covered processes in NAICS codes 324 (Petroleum and Coal Products Manufacturing) and 325 (Chemical Manufacturing).
Resource Compliance Solution: Resource Compliance does not currently have many clients subject to RMP with covered processes in NAICS codes 324 and 325. Therefore, no compliance solution will be provided to most Resource Compliance clients relative to (c)(9). For those clients who will need assistance with this requirement, we will be reaching out to you directly.
Effective Date: May 10, 2027
Gaps in Safety
Title 40 §68.67(c)(10) is a new requirement that PHAs address “Any gaps in safety between the codes, standards, or practices to which the process was designed and constructed and the most current version of applicable codes, standards, or practices.”
Resource Compliance Solution: Relative to ammonia refrigeration systems, it is Resource Compliance’s position that ANSI/IIAR 9-2020 Standard for Minimum System Safety Requirements for Existing Closed-Circuit Ammonia Refrigeration Systems is the industry consensus for the minimum safety requirements that must be adhered to for existing systems. Standard 9 requires facilities to perform a Minimum System Safety Evaluation (MSSE) every five years. Therefore, performing an MSSE would satisfy this requirement for an ammonia refrigeration system.
For non-refrigeration covered processes, Resource Compliance template PHAs will be reviewed and modified where necessary to include questions that will analyze the system against the current standards relevant to the covered process.
Effective Date: May 10, 2024
Operating Procedures
Title 40 §68.69(a)(4) has been expanded as the underlined text below indicates.
Safety systems and their functions, including documentation when monitoring equipment associated with prevention and detection of accidental releases from covered processes is removed due to safety concerns from imminent natural hazards.
Resource Compliance Solution: To comply with the expanded requirement, SOPs for clients subject to RMP will require revision. Thankfully, we do not anticipate situations where monitoring equipment associated with the prevention and detection of accidental releases will be removed due to safety concerns from imminent natural hazards, such as floods, tornados, etc. Therefore, we expect the modifications required for each SOP will be minimal.
Effective Date: May 10, 2024
Compliance Audits
The compliance audit paragraph has undergone a major revision, in that third-party audits are now required when a release has occurred that meets the five-year accident history criteria. It is beyond the scope of this blog to summarize all of the third-party audit requirements (there are many of them). However, those subject to RMP must understand that per Title 40 §68.80(c)(2)(ii), the third-party auditor shall “Receive no financial benefit from the outcome of the audit, apart from payment for auditing services.” This will mean that the audit will be performed by a consultant who has no interest in future consulting work at the facility.
Resource Compliance Solution: Resource Compliance will modify our annual contract language to exclude third-party audits since we will be ineligible to lead such an activity. We will, however, participate in the third-party audit as a member of the audit team, if requested.
Resource Compliance will perform third-party auditing services on a case-by-case basis if we are uninterested in performing future work at the facility.
Effective Date: May 10, 2027 – The third-party audit provisions are not effective until 5/10/27 which means a facility that has a release that requires inclusion in the five-year accident history could perform their next audit on or before 5/9/27 to avoid the third-party audit requirement.
Incident Investigation
Title 40 §68.81 has been amended relative to incident investigations of accidents that meet the criteria for five-year accident history. There are two additional requirements for these investigations:
(1) The report shall be completed within 12 months of the incident, unless the implementing agency approves, in writing, an extension of time; and (2) The report in paragraph (d) of this section shall include factors that contributed to the incident including the initiating event, direct and indirect contributing factors, and root causes. Root causes shall be determined by conducting an analysis for each incident using a recognized method.
Resource Compliance Solution: Resource Compliance will continue to provide incident investigation services such as release calculations, investigation report writing, and determination of incident causes. Incident investigation reports are typically completed within a few months, so the 12 month deadline for five-year accident history incidents does not present any concerns.
Resource Compliance employees who lead investigations will be trained in a recognized root cause analysis methodology. The training will be completed prior to the effective date of this requirement.
Effective Date: May 10, 2027
Employee Participation
Title 40 §68.83 has been significantly expanded. The current law includes three paragraphs, but the modified rule has six paragraphs, with several subsections.
Annual Written Notice
Title 40 §68.83(a)(1) is a new requirement that “An annual written or electronic notice shall be distributed to employees and their representatives indicating that the plan is readily available to view and how to access the information.”
Resource Compliance Solution: Resource Compliance will prepare an electronic notice that will be distributed to our primary client contact. The client will be responsible for distributing the notice to employees who work at the site or for physically posting the notice at the site.
Effective Date: May 10, 2027
Training
Title 40 §68.83(a)(2) will require employee participation training to be provided.
“Training shall be provided as often as necessary to ensure employees and their representatives, and management involved in the process, are informed of the details of the plan.”
Resource Compliance Solution: Resource Compliance will publish a web-based employee participation training video before the effective date. This video can be utilized in conjunction with site-specific training to satisfy the requirements.
Effective Date: May 10, 2027
Recommendation Resolution
Title 40 §68.83(c) will require employees to be involved in the resolution of recommendations resulting from PHAs, compliance audits, and incident investigations.
“The owner or operator shall consult with employees knowledgeable in the process and their representatives on addressing, correcting, resolving, documenting, and implementing recommendations and findings of process hazard analyses under §68.67(e), compliance audits under §68.79(d), and incident investigations under §68.81(e).”
Resource Compliance Solution: Recommendation resolution is a primary focus of most compliance meetings led by Resource Compliance. As such, it is Resource Compliance practice to document recommendation resolutions through the EPWriter records, PSMWriter recommendation resolution, and related events features. No changes to Resource Compliance best practices will be necessary.
Effective Date: May 10, 2027
Employee Authorities
Title 40 §68.83(d) introduces new authorities that must be given to employees knowledgeable in the process. If an employee believes that there is potential for a catastrophic release, that employee may recommend that the process be partially or completely shut down. If the employee is designated a “qualified operator”, the employee will have the authority to partially or completely shut down the process. The verbiage for the new authority is included below.
“(d) The owner or operator shall provide the following authorities to employees knowledgeable in the process and their representatives:
(1) Recommend to the operator in charge of a unit that an operation or process be partially or completely shut down, in accordance with procedures established in § 68.69(a), based on the potential for a catastrophic release; and
(2) Allow a qualified operator in charge of a unit to partially or completely shut down an operation or process, in accordance with procedures established in § 68.69(a), based on the potential for a catastrophic release.”
Resource Compliance Solution: All good employers welcome their employees’ insights and concerns related to potential catastrophic releases. As such, we believe that these authorities have already been granted in most cases. To clarify that the authority has been given, each SOP will be modified to prescriptively assign the authorities listed above.
Effective Date: May 10, 2027
Reporting Unaddressed Hazards
Title 40 §68.83(e) will require that employers develop a process to allow employees to report unaddressed hazards or noncompliance with the RMP rule. The process must provide a means for reporting to facility management or the EPA (or both). Reporting can be anonymous or with attribution. When a report is submitted to facility management, a copy of the report must be maintained for three years.
Resource Compliance Solution: Resource Compliance will develop an electronic system for client employees to submit concerns regarding compliance with the RMP rule. Clients may choose to use the system, or use the system as a model to develop their own.
Effective Date: May 10, 2027
Hot Work Permit
Title 40 §68.85(c) has been slightly amended. Whereas the current law requires hot work permits to be retained until the completion of hot work operations, after the effective date, hot work permits must be kept for three years following completion of hot work operations.
Resource Compliance Solution: Resource Compliance will work with clients to modify their written hot work policy. If utilizing PSMWriter, a client can retain hot work records indefinitely. If hot work permits are stored at the facility, it will be the client’s responsibility to retain the records for three years.
Effective Date: May 10, 2024
Emergency Response Applicability
Title 40 §68.90(b) addresses the responsibilities for non-responding facilities. This paragraph has been revised in two ways.
First, §68.90(b)(3) has been expanded as the underlined text below indicates.
Appropriate mechanisms are in place to notify emergency responders when there is a need for a response, including providing timely data and information detailing the current understanding and best estimates of the nature of the accidental release. The owner or operator may satisfy the requirement in this paragraph (b)(3) through notification mechanisms designed to meet other Federal, State, or local notification requirements, provided the notification meets the requirements of this paragraph (b)(3), as appropriate;
Second, §68.90(b)(6) will be new requirement for non-responding facilities:
The owner or operator maintains and implements, as necessary, procedures for informing the public and the appropriate Federal, State, and local emergency response agencies about accidental releases and partnering with these response agencies to ensure that a community notification system is in place to warn the public within the area potentially threatened by the accidental release. Documentation of the partnership shall be maintained in accordance with § 68.93(c).
Resource Compliance Solution: Currently, when an emergency is reported, it is Resource Compliance best practice to advise the client to provide their best estimates on the nature of the release and any known details. Therefore, the additional requirements in (b)(3) are consistent with our current best practices.
The requirements in Title 40 §68.90(b)(6) for informing the public and government agencies to ensure that a community notification system is in place will be incorporated into the annual coordination activities that are already required. During the annual coordination, Resource Compliance will recommend that clients inquire about the availability of a notification system.
Effective Date: May 10, 2027
Emergency Response Program
For responding facilities, Title 40 §68.95 has been modified similarly to §68.90. Paragraphs §68.95(a)(1)(i) will now include a requirement to ensure a public notification system is in place and §68.95(c) will be modified to clarify that notification systems designed to meet other regulations are acceptable, provided they comply with all requirements of the paragraph.
Resource Compliance Solution: The same solutions will be applied here as were described in the previous section for non-responding facilities.
Effective Date: May 10, 2027
Emergency Response Exercises
For responding facilities, Title 40 §68.96(b)(1)(i) has been expanded to clarify that the first emergency response field exercise must be performed before March 15, 2027, and at least every 10 years thereafter. The law provides an allowance for a longer interval between exercises if the local emergency response agencies deem the 10 year frequency impractical. When that is the case, the facility must consult with the agency on the appropriate emergency response exercise frequency.
Resource Compliance Solution: For responding facility clients, Resource Compliance will ensure that they are apprised of these new requirements.
Effective Date: March 15, 2027
Risk Management Plan
Various changes to Subpart G “Risk Management Plan” have been made (Title 40 §68-160-175) to require the submission of information relating to other SCCAP RMP rule changes.
Resource Compliance Solution: RMPs are submitted through the EPA’s CDX portal. Therefore, the EPA will be responsible for updating the portal to include the required information prior to the effective date. Resource Compliance will continue to use the CDX portal for all RMP submissions.
Effective Date: May 10, 2028
Availability of Information to the Public
Subpart H “Availability of Information to the Public” has been substantially expanded to require covered process information to be made available to the public upon request.
Chemical Information
Title 40 §68.210(d) will require the following information to be provided “upon request by any
member of the public residing, working, or spending significant time within 6 miles of the fenceline of a stationary source”:
- Names of the regulated substances held in covered processes;
- Safety data sheets for all regulated substances located at the facility;
- Five-year accident history information;
- Emergency response program information:
- Whether the stationary source is a responding stationary source or a non-responding stationary source;
- Name and phone number of local emergency response organizations with which the owner or operator last coordinated emergency response efforts; and
- For stationary sources that respond to emergency response events, procedures for informing the public and local emergency response agencies about accidental releases;
- A list of scheduled emergency response exercises, excluding dates, required occurring within one year from the date of request;
- LEPC name, phone number, and web address as available; and
- A list of declined PHA recommendations and justifications under PHA subsection §68.175(e)(7) through (9).
Resource Compliance Solution: Resource Compliance will amend our annual contract language to provide this service, upon request, twice per year.
Effective Date: May 10, 2027
Languages
Title 40 §68.210(e) will require that “The information shall be made available in English or in at least any two other commonly spoken languages by the population potentially affected, as requested.”
Resource Compliance Solution: When requested, Resource Compliance will provide the information in English-only. It will be the client’s responsibility to translate the information, if necessary.
Effective Date: May 10, 2027
Notification
Title 40 §68.210(f) will require the facility to “provide ongoing notification on a company website, social media platforms, or through other publicly accessible means” that the information is available upon request. The wording of the law is:
(f) Notification of availability of information. The owner or operator shall provide ongoing notification on a company website, social media platforms, or through other publicly accessible means that:
(1) Information specified in paragraph (d) of this section is available to the public residing, working, or spending significant time within 6 miles of the stationary source upon request. The notification shall:
(i) Specify the information elements, identified in paragraph (d) of this section, that can be requested; and
(ii) Provide instructions for how to request the information including verification of presence within 6-miles (e.g., email, mailing address, and/or telephone or website request); and
(2) Identify where to access information on community preparedness, if available, including shelter-in-place and evacuation procedures.
Resource Compliance Solution: Resource Compliance will offer a website where clients opt to have their business listed indicating that the Chemical Information listed above is available upon request along with the instructions for requesting the information.
Effective Date: May 10, 2027
Timeframe
Title 40 §68.210(g) will require facilities to “provide the requested information under paragraph (d) of this section within 45 days of receiving a request”.
Resource Compliance Solution: When hired to provide this information, Resource Compliance will do so within 45 days of the request.
Effective Date: May 10, 2027
Recordkeeping
Title 40 §68.210(h) will require the facility to maintain records of the “members of the public requesting chemical hazard information for five years.”
Resource Compliance Solution: As with all other RMP documentation, Resource Compliance will assist clients with organizing and maintaining these records when the records are provided.
Effective Date: May 10, 2027
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