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EPA is Considering Amendments to its Chemical Risk Management Program (RMP) Rule that Would Impose Burdensome Additional Requirements on both Covered Facilities and Facilities Not Currently Covered by the RMP Rule

Date: Jul 29, 2014

On August 1, 2013, reacting to a number of high-profile incidents and the constant drumbeat from the Chemical Safety Board, President Obama signed Executive Order 13650, entitled Improving Chemical Facility Safety and Security. Among other things, EO 13650 directs EPA and OSHA to consider possible changes to existing chemical safety regulations. OSHA and EPA appear to be interpreting EO 13650 as a directive to substantially expand the scope and requirements of OSHA’s Process Safety Management (PSM) Standard and EPA’s Risk Management Program (RMP) Rule.  On July 24, EPA released a pre-publication copy of a request for information (RFI) on potential revisions to the RMP regulations designed to do just that (RFI is expected to be published in the Federal Register any day; comments will be due to EPA 90 days following publication).  This follows on the OSHA RFI regarding PSM initially published in the December 9, 2013 Federal Register (with an extension on March 7, 2014).

In its RFI, EPA essentially asks for input on an expanded version of the issues raised by OSHA’s RFI--

Items in OSHA’s RFI relevant to EPA’s RMP regulation

1. Update the List of Regulated Substances

a. Adding Other Toxic or Flammable Substances

b. Adding High and/or Low Explosives

c. Adding Ammonium Nitrate

d. Adding Reactive Substances and Reactivity Hazards

e. Adding Other Categories of Substances – including “combustible dust”

f. Removing Certain Substances from the List or Raising their Threshold Quantity

g. Lowering the Threshold Quantity for Substances Currently on the List

2. Additional Risk Management Program Elements, including expansion of existing elements

3. Define and Require Evaluation of Updates to Applicable Recognized and Generally Accepted Good Engineering Practices

4. Extend Mechanical Integrity Requirements to Cover Any Safety-Critical Equipment

5. Require Owners and Operators to Manage Organizational Changes

6. Require Third-Party Compliance Audits

7. Effects of OSHA PSM Coverage on RMP Applicability

plus some additional issues that fall within EPA’s sole jurisdiction--  

Additional Items for which EPA Requests Information

1. Safer Technology and Alternatives Analysis

2. Emergency Drills to Test a Source’s Emergency Response Program or Plan

3. Automated Detection and Monitoring for Releases of Regulated Substances

4. Additional Stationary Source Location Requirements

5. Compliance with Emergency Response Program Requirements in Coordination with Local Responders

6. Incident Investigation and Accident History Requirements

7. Worst Case Release Scenario Quantity Requirements for Processes Involving Numerous Small Vessels Stored Together

8. Public Disclosure of Information to Promote Regulatory Compliance and Improve Community Understanding of Chemical Risks

9. Threshold Quantities and Off-site Consequence Analysis Endpoints for Regulated Substances Based on Acute Exposure Guideline Level Toxicity Values

10. Program 3 NAICS Codes Based on RMP Accident History Data (Program 3 is the highest risk level)

11. The “Safety Case” Regulatory Model

12. Streamlining RMP Requirements

For example, in questions that suggest expanding the scope of the chemicals subject to the RMP Rule, EPA goes beyond OSHA’s wildest dreams and asks about including the generic category of “combustible dusts.”  Is it possible that EPA will come up with a meaningful definition of the term “combustible dust” that has so far evaded OSHA and the five NFPA committees working on the issue?

In addition to discussing the “need” to incorporate several new management system elements into PSM and RMP, EPA suggests that there is insufficient specificity as to what is required by the Process Hazard Analysis (PHA) provisions applicable to higher risk facilities or the hazard review provisions applicable to medium risk facilities. EPA also suggests that the 5 year update period for PHAs should be shortened, and certain events should trigger an earlier update.  This appears to be part of a strategy for adopting ambiguous, performance-based standards “in cooperation” with industry and then converting them into something more like specification standards when industry has less ability to oppose them.

Similarly, in the areas beyond OSHA’s apparent authority, EPA is asking whether it should adopt requirements for the use of “inherently safer technology” without specifying what that means (e.g., type of analysis, required remedial measures). If EPA manages to get that requirement in place, it seems likely that EPA will later find the efforts of the regulated community inadequate in this area, just as it now does with the PHA requirements, and will then specify the required analysis and remedial actions for inherently safer technology.  In addition, EPA is suggesting that it would require greater public disclosure of the site’s RMP information.

EPA is suggesting it should require emergency response drills that, in general, we believe are already conducted pursuant to the OSHA HAZWOPER and emergency evacuation plan requirements for sites with a potential for emergency releases of hazardous chemicals. The agency seems to also be suggesting that a facility would have to be equipped and staffed to respond to an emergency release unless it was able to confirm that the local public responders have that capability and agree to respond. That raises issues similar to the OSHA emergency response requirements applicable for entries into permit-required confined spaces. Many sites take the position that the local fire department will respond in the event of an emergency.  However, the local fire department can say it will respond, but actual response time depends on the status of staff and equipment, and other concurrent demands for its services.

EPA is also asking whether it should specify requirements for the installation and maintenance of automated detection and monitoring equipment rather than leaving those decisions to the affected site, whether it needs to specify what information must be collected and analyzed in an incident investigation, and whether it must explicitly mandate the investigation of near misses.     

EPA indicated that it is considering lowering the threshold quantity (TQ) of certain toxic chemicals triggering coverage under the RMP Rule. EPA suggests the current approach is not adequately protective because the current TQs are based on what a healthy worker can tolerate for 30 minutes (known as “Immediately Dangerous to Life and Health” or “IDLH” Levels) with no serious irreversible effect rather than the impact on more sensitive individuals, such the elderly, pregnant women, children or people with various health problems.  EPA requests input on the use of Acute Exposure Guideline Levels (AEGL) and Emergency Response Planning Guidelines (ERPG) in recalculating TQs.  Finally, EPA is suggesting that it now has nearly 20 years of historical accident data from sites covered by its RMP Rule and is in a better position to assign industrial sectors to different risk categories and tiers of requirements based on that data. 

There is much more to the EPA notice than can be summarized in the space of this article. If we can be of assistance in identifying issues or developing comments for you or your trade association, please contact Lawrence Halprin at 202-434-4177 or halprin@khlaw.com, or Trent Doyle at 202-434-4161 or doyle@khlaw.com.