Calling for Backup: Power Loss Under EPA's New Process Safety Regulations

In the October 2022 edition of my monthly EHS newsletter, The Cubical, I reported on how facilities would be required to address power loss scenarios under proposed amendments to EPA's Risk Management Plan ("RMP") Rule. These provisions were driven by concerns about climate change. In support of the proposed amendments, EPA had cited a recent report from the U.S. Department of Energy which opined that "an increase in extreme weather events has led to an increase in power outages in recent years." In the Agency's view, this conclusion justified a requirement for affected facilities to consider standby or emergency power systems when conducting process hazard evaluations.

The final rule to implement the amendments moves beyond merely requiring facilities to consider backup power systems. The final rule now requires backup power systems in certain circumstances. In particular, the final rule requires affected facilities to ensure that "monitoring equipment associated with prevention and detection of accidental releases ... has standby or backup power to provide continuous operation."

This language raises an important question. When is a monitoring system "associated with prevention and detection of accidental releases?" The answer may be relatively straightforward for systems designed to prevent accidental releases. For example, a system designed to prevent the release of hydrofluoric acid at an oil refinery would presumably be the very kind of system to which this language applies.

The answer to this question may start to get a little murkier for systems designed to detect releases. What about monitoring systems that are capable of detecting and measuring particular hazardous substances, but which are not necessarily installed for the explicit purpose of preventing and detecting accidental releases? An example of such a system might be a network of area monitors to detect and measure benzene for the purpose of ensuring compliance with OSHA exposure standards. Such monitors may not have been installed with the explicit purpose of detecting accidental releases. But, if data from these monitors are used to determine the direction of a benzene release plume or to estimate how much benzene has been released, would these systems then be "associated with the detection of accidental releases?"

It is too early to say how these questions may be resolved. That being said though, EPA's "ace in the hole" is always the General Duty Clause. EPA may take the broad view that any monitoring equipment that is, or can be, used to measure the quantity of, or make assessments about the direction of, accidental releases should have backup power. Even if EPA can't make this argument stick under the new power loss provisions, the Agency may still be able to make it fit within the broad boundaries of the General Duty Clause.