Get Prepared for Major Changes to the Risk Management Program Regulations!

On July 31, 2014, the U.S. Environmental Protection Agency (U.S. EPA) published potential revisions to the Risk Management Program (RMP) regulations, which are codified at 40 CFR Part 68.  U.S. EPA issued a Request for Information (RFI) to solicit and obtain information on specific regulatory elements regarding RMP and its closely-related standard regulated under the Occupational Safety and Health Administration’s (OSHA’s), Process Safety Management of Highly Hazardous Chemicals (29 CFR §1910.119; often referred to as PSM.  This action stems from an executive order signed by President Obama on August 1, 2013 that directed the Chemical Facility Safety and Security Working Group to carry out a number of tasks with the overall goal to prevent chemical accidents such as the explosion that occurred at West Fertilizer in West, Texas on April 17, 2013. To underscore the severity of the West incident, and one (1) of the major driving forces behind the RFI, please visit OSHA’s website to review the associated citations.

Part of the executive order requires U.S. EPA to “review the chemical hazards covered by the Risk Management Program (RMP) and the Process Safety Management Standard (PSM) and determine if the RMP or PSM can and should be expanded to address additional regulated substances and types of hazards.”  Since the OSHA PSM standard and U.S. EPA RMP regulation are closely aligned in content, policy interpretations, Agency guidance, and enforcement, this RFI will allow U.S. EPA to evaluate potential updates to the RMP regulations in parallel to OSHA’s evaluation of potential updates to the PSM standard.  U.S. EPA has divided the topics covered by the RFI into two (2) categories: those addressed in parallel to the OSHA RFI, and additional topics not addressed by OSHA.

Let’s start with those topics that are being addressed in parallel to the OSHA RFI.

Updating the List of Regulated Substances

U.S. EPA is requesting information pertaining to modifying the list of regulated substances by the following:

• Adding other toxic or flammable substances
• Adding high and/or low explosives
• Adding ammonium nitrate
• Adding reactive substances and reactivity hazards
• Adding other categories of substances
• Removing certain substances from the list or raising their threshold quantity (TQ)
• Lowering the TQ for substances currently on the list

Each topic is discussed in the subsections below.

Adding Other Toxic or Flammable Substances

U.S. EPA is interested in determining whether there are other substances that meet the established toxicity or flammability criteria, are in commerce, and are present in quantities that would pose a risk to the community if accidentally released. Such substances could be added to the regulatory programs, triggering the need for facilities to comply with applicable RMP requirements.

Adding High and/or Low Explosives

Due to the West Fertilizer explosion, U.S. EPA is reconsidering if explosives should be included on the RMP list, specifically ammonium nitrate.  High explosives were listed on the RMP list in 1994 but were later removed in 1998.

Adding Ammonium Nitrate

The explosion at West Fertilizer has highlighted the explosive properties of ammonium nitrate under certain conditions, such as heat, shock, contamination, and confinement.  The accident at West Fertilizer also highlighted the adverse impact to the surrounding community if it decomposes and detonates.  U.S. EPA could list ammonium nitrate on the RMP list with a high threshold in order to prioritize process safety requirements where large amounts of ammonium nitrate are stored.

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Adding Reactive Substances and Reactivity Hazards

Currently, the RMP list does not address reactive chemicals.  However, U.S. EPA is considering listing chemicals based on the hazards of their reaction byproducts.  One such example is chlorosilanes that produce hydrochloric acid upon release to the air.  One approach that U.S. EPA is evaluating with respect to handling reactive substances is the approach used in the New Jersey Toxic Catastrophe Prevention Act (TCPA).

The New Jersey TCPA contains a list of individual reactive hazardous substance and also a list of reactive hazard substances mixture functional groups.  The New Jersey TCPA takes into account the certain specific chemicals and their overall reactivity in determining the level of coverage needed.

Another approach being evaluated by U.S. EPA is the National Fire Protection Association (NFPA) Hazardous Materials Code.  This Code specifies storage, use, and handling requirements for various categories of hazardous materials.

Adding Other Categories of Substances

U.S. EPA is determining if substances that are not traditionally classified as highly toxic, flammable, or explosive could cause or contribute to serious accidents.  These types of substances could cause death, injury, or serious adverse effects to human health or the environment in the event of an accident.  Such examples of these substances include, but are not limited to, organic peroxides, oxidizers, combustible dusts or other flammable solids.

Removing Certain Substances from the List or Raising their TQ

U.S. EPA is determining whether certain substances should remain on the RMP list.  There are six (6) RMP-regulated substances s that have never had a RMP Plan submitted by a facility:

1. Arsenous Trichloride
2. Cyanogen Chloride
3. Sulfur Tetrafluoride
4. Tetramethyl Lead
5. Chlorine Monoxide
6. Ethyl Nitrite

These six (6) substances, along with toluene diisocyanate (TDI) and 1,3-pentadiene, are being evaluated to see if they should remain on the current RMP list.  TDI is only reactive under certain conditions, and 1,3-pentadiene was originally listed due to a typographical error for its boiling point.

Lowering the TQ for Substances Currently on the RMP List

U.S. EPA is interested in receiving information regarding the TQs for the currently RMP regulated substances.  They are interested in knowing if the current TQs are protective of human health and the environment, if there would be any economic impacts of lowering TQs, and are there any special circumstances that involve small entities that should be considering when lowering the TQs.

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Revising Additional RMP Elements

U.S. EPA is interested in receiving and reviewing information regarding the management system elements that were identified in the OSHA RFI, but with a focus on the applicable the RMP requirements.  U.S. EPA is considering incorporating three (3) elements taken from the Risk Based Process Safety Program by the Center for Chemical Process Safety: (1) measurements and metrics, (2) management review and continuous improvement, and (3) process safety competency.  The first element, measurements and metrics, would require a facility to establish performance and efficiency indicators to track the effectiveness of the risk management system and to identify opportunities for improvement of its elements and work activities.  An example of a measurement and metrics indicator may be to track the frequency of process upsets and near-miss accidents.

The second element, management review and continuous improvement, would focus on the “due diligence” of management reviews that fill the gap between day-to-day work activities and formal audits.  This element would not rely on a formal audit to identify deficiencies.

The third element, process safety competency, would focus on organizational learning so that process knowledge can be applied to situations in order to effectively manage risk.  Three (3) activities would be involved: continuously improve knowledge and competency; ensuring appropriate information is available to those who need it; and consistently applying lessons learned.

U.S. EPA is also interested in gathering comments on other management-system programs, such as a stop work authority and ultimate work authority.  These programs would allow workers to stop work when witnessing an activity that creates a threat of danger, and sets definition around who has the ultimate authority on the facility for operational safety and decision making.

Defining and Requiring Evaluation of Updates to Applicable Recognized and Generally Accepted Good Engineering Practices

There are references to recognized and generally accepted good engineering practices (RAGAGEP) within 40 CFR Part 68, Subpart D.  U.S. EPA is soliciting information from facilities as to what their definition of RAGAGEP is, what sources are covered under RAGAGEP, and if the facility evaluates updates to its selected RAGAGEP.  U.S. EPA could potentially add a specific definition of RAGAGEP to the RMP rules and require a re-evaluation or update the facilities selected RAGAGEP.

Extending Mechanical Integrity Requirements to Cover Any Safety-Critical Equipment

U.S. EPA is gathering information on whether the scope of the mechanical integrity provisions of the RMP rule should be extended to cover the mechanical integrity of any safety-critical equipment, and whether additional mechanical integrity requirements should be added to the rule.  U.S. EPA has noted during compliance inspections that facilities have failed to apply mechanical integrity program measures to certain systems that could be deemed critical to process safety.  Some examples identified were computer software systems that interact with process components, electrical power systems, and other utility systems that interact with pumps, valves, or control systems.

Requiring Owners and Operators to Manage Organizational Changes

OSHA’s PSM standard includes management-of-change procedures for equipment and some situations for organizational changes.  The RMP rule contains almost identical management-of-change procedures as the PSM standard; therefore, U.S. EPA is interested in information regarding how facilities handle organizational change in context of process safety.

Requiring Third-Party Audits

Currently, neither OSHA nor U.S. EPA requires the use of a third-party auditor to conduct compliance audits.  However, one finding from the 2005 BP Texas City Refinery explosion has prompted OSHA and U.S. EPA to re-consider third-party auditing.  The finding was that BP lacked rigorous compliance audits.  U.S. EPA is considering requiring that owners and operators employ third-party auditors to conduct compliance audits.  U.S. EPA is gathering information from facilities on current audit practices.

Effects of OSHA PSM Coverage on RMP Applicability

U.S. EPA is re-evaluating Program 2 eligibility, which is dependent on OSHA’s PSM standard.  OSHA is considering restriction of eligibility for its retail exemption to facilities selling small containers, packages, or allotments to the general public.  If OSHA restricts the above-mentioned exemption, and U.S. EPA requires all RMP-covered water and wastewater treatment plants that are not eligible for Program 1 to comply with Program 3, then only approximately 200 RMP-covered processes nationwide would remain eligible for Program 2.  Under this scenario, U.S. EPA is considering modification of the Program 2 eligibility criteria, or eliminating Program 2 altogether.  If Program 2 is eliminated, then all formerly Program 2 processes would comply with Programs 1 or 3 requirements.

Now that we’ve covered what U.S. EPA is including in the RFI that is in parallel with OSHA’s RFI on the PSM standard, let’s take a look at the information U.S. EPA is considering outside of the OSHA RFI.

Safer Technology and Alternatives Analysis

Historically, U.S. EPA has not mandated the use of safer technology and alternatives.  However, under the current RFI, U.S. EPA is evaluating how to assess safer technologies and alternatives.  It realizes that this undertaking gets complicated due to the varying amount and quality of information available regarding safer technologies and alternatives implementation by industry.  U.S. EPA is planning to complete the following in regards to safer technologies and alternatives:

• Publishing a joint alert with OSHA to detail the concepts, principles, and examples of safer technology and alternatives.  This publication would raise awareness for industry and provide sources of information for further investigation and review.
• Publishing a voluntary guidance document with OSHA for operators to gain knowledge on how to reduce risks through the use of safer technology and alternatives.  The publication would also offer a more thorough examination of alternative measures and safety techniques.
• Based on feedback from the above-mentioned publications and the information received from the RFI, U.S. EPA is considering an amendment to the RMP rules to require the following:
  • Analysis and documentation of safer technologies and alternatives
  • Integration of the safer technologies and alternatives analysis into the Process Hazard Analysis (PHA)
  • Implementation of safer technologies and alternatives where feasible.

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

Currently, under 40 CFR Part 68 Subpart E, RMP-covered facilities are required to coordinate emergency response actions with the local emergency planning and response agencies.  Facilities that fall under Program 2 or Program 3 are also required to develop and implement an emergency response program if facility personnel will respond to accidental releases.  If facility personnel will not be responding to accidental releases, then coordination with community emergency planners and responders is required.  U.S. EPA refers to other Federal programs, specifically the Oil Pollution Prevention regulation (40 CFR Part 112), that require exercises and drills as a requirement of their emergency response program.  U.S. EPA is considering a similar requirement for the RMP regulation.  U.S. EPA is interested in obtaining information on this requirement, such as what should the frequency of such drills be, who should be involved in the drills and/or exercises, and are these types of drills already going on at facilities.

Automated Detection and Monitoring for Releases of Regulated Substances

The current RMP regulations have requirements regarding process hazards and equipment maintenance and inspection.  However, the current regulations do not address detection methods, early warning signals, and incident notifications.  U.S. EPA does recognize that such methods and systems may not be available for particular chemical hazards and may be costly.  They are still interested in obtaining information on how facilities currently handle continuous detection and monitoring for chemical hazards.

Additional Stationary Source Location Requirements

U.S. EPA is contemplating adding more specific requirements to the RMP rules to address stationary source siting.  U.S. EPA feels that both the siting of processes within a stationary source and the siting of the stationary source itself can affect the impact of an accidental release.  U.S. EPA is considering adding such requirements as establishing buffer or setback zones for new covered stationary sources or establishing safety criteria for siting of occupancies inside a facility.

Compliance with Emergency Response Program Requirements in Coordination with Local Responders

If a facility subject to RMP rules falls within Program 2 or Program 3, the facility has two (2) emergency response options.  Either the facility has employees who will respond to an accidental release or the facility’s employees will not respond to an accidental release.  During more recent U.S. EPA inspections of site RMP programs, it has found that facilities are not included in the community emergency plan or have not properly coordinated response actions with local authorities.  U.S. EPA is considering revising the current provisions in Subpart E to more explicitly state the requirements regarding coordination with local authorities.

Incident Investigation and Accident History Requirements

U.S. EPA feels that incident investigations and accident history reporting can provide valuable information about potential hazards and prevent future events.  It does recognize that the current requirements for incident investigation and accident history reporting are somewhat limited.  U.S. EPA is considering broadening the current RMP regulations to include clear requirements to investigate near misses and determine root causes of accidents, near misses, and process upsets.  U.S. EPA is specifically looking for feedback regarding time frames of such investigations, current practices regarding incident investigations, how to disseminate lessons learned across industry, and economic impacts of broadening the RMP rules to require root cause analysis and incident investigations.

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

The current RMP rules, specifically §68.25(b) requires the owner or operator to determine a worst-case release quantity.  The current rules states that “the worst case release quantity shall be the greater of the following: (1) For substances in a vessel, the greatest amount held in a single vessel, taking into account administrative controls that limit the maximum quantity; or (2) For substances in a pipe, the greatest amount in a pipe, taking into account administrative controls that limit the maximum quantity.”  U.S. EPA believes that for most cases the current requirements yield a reasonable estimate of worst case releases.  However, there are certain facilities, such as chemical warehouses, where large numbers of regulated containers are stored closely together that may need a different approach for determining the worst case release.  U.S. EPA is considering revising the RMP rule to account for such a scenario.

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

U.S. EPA is seeking feedback on if disclosing more information to the public and local authorities would improve compliance.  U.S. EPA has some suggestions such as listing unrestricted RMP information on a company’s website as a means to disclose more information to the public.  U.S. EPA is interested in ways for facility information to more readily available for local emergency planning committees and first responders.

TQs and Off-site Consequence Analysis Endpoints for Regulated Substances Based on Acute Exposure Guideline Level Toxicity Values

U.S. EPA is considering the recalculation of RMP reporting thresholds and toxic endpoints for off-site consequence analyses based on the use of Acute Exposure Guideline Levels (AEGLs), which are developed by the National Advisory Committee (NAC) for AEGLs for Hazardous Substances.  This methodology could better reflect the potential for adverse effects of an accidental release upon a community.  The current TQs are based on the Immediately Dangerous to Life and Health (IDLH) value developed by the National Institute of Occupational Safety and Health (NIOSH).

U.S. EPA is considering the recalculation of the IDLH-based TQs for the following:

• The IDLH is based on response of healthy male workers and does not take into account the exposure of more sensitive individuals, such as the elderly, pregnant women, children, or people with health problems.
• The IDLH is based on a maximum 30-minute exposure period, which may not reflect actual exposures to accidental airborne releases.
• The IDLH may not reflect the concentration that could result in serious but reversible injury because the IDLH values were designed to protect workers against concentrations that would prevent death or irreversible health effects or other effects that would prevent escape from an accidental release.

AEGLs represent threshold exposure limits for the general public and applicable to emergency exposures ranging from 10 minutes to eight (8) hours.  U.S. EPA feels that the use of AEGLs would better reflect the potential for adverse effects of an accidental release and is soliciting feedback on this approach.

Program 3 North American Industry Classification System (NAICS) Codes Based on RMP Accident History Data

The current Program 3 facilities apply to a specified list of NAICS codes.  Since the current RMP database now contains nearly 20 years of accident history reports from covered sources, U.S. EPA feels that these reports give a more representative picture of what industry sectors are most frequently associated with accidents.  U.S. EPA is soliciting feedback on Program 3 applicability based on the accident history reports.  The 10 NAICS codes most frequently associated with accidents in RMP-regulated processes are the following, in no particular order:

• 32411: Petroleum Refineries
• 325199: All Other Basic Organic Chemical Manufacturing
• 325188: All Other Basic Inorganic Chemical Manufacturing
• 22131: Water Supply and Irrigation Systems
• 42491: Farm Supplies Merchant Wholesalers
• 22132: Sewage Treatment Facilities
• 325181: Alkalies and Chlorine Manufacturing
• 311615: Poultry Processing
• 49312: Refrigerated Warehousing and Storage
• 32211: Pulp Mills.

The “Safety Case” Regulatory Model

The “safety case” regulatory model is a structure for regulating high-risk industries where facilities are required to demonstrate to the regulator that they have reduced risks to a level that is “as low as reasonably practicable” (ALARP).  This approach has been utilized for the chemical and refining industries outside of the United States and for nuclear reactor facilities regulated by the U.S. Nuclear Regulatory Commission (NRC).  U.S. EPA realizes that completely replacing the current RMP regulation (and PSM standard) with the safety case model would be a significant undertaking.  However, U.S. EPA is requesting information regarding the advantages and disadvantages of such a program.

Streamlining RMP Requirements

U.S. EPA is interested in gathering information on any other areas of 40 CFR Part 68 that has not been already covered in the RFI.  U.S. EPA invites any comments on modernizing, strengthening, or clarifying the RMP regulations.

From the looks of this RFI, some significant changes to the RMP regulations are in the works.  U.S. EPA is soliciting feedback so if you have some, now is the time to let them hear it…all of it, the good, the bad, and the ugly! The RFI was published in the Federal Register on July 31, 2014, and you have until October 29, 2014 to provide feedback and comments. Now is the time to voice your opinions!