In May 2014, the federal Working Group convened pursuant to Presidential Executive Order (EO) 13650Improving Chemical Facility Safety and Security (August 1, 2013)-issued a status report to the President detailing its activities to reduce risks associated with hazardous chemicals and improve safety and security at chemical facilities in the United States.  The EO was a response to the chemical facility accidents that have occurred in the US over the last decade, including the West Texas explosion last year. The Working Group, which includes representatives from the Departments of Environmental Protection (US EPA), Transportation (DOT) and Homeland Security (DHS), the Occupational and Safety and Health Administration (OSHA) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), was directed under the EO to identify ways to:

  • improve coordination among agencies;
  • enhance information sharing and public access to chemical information;
  • modernize (and expand) safety and security regulations and standards for chemical facilities; and
  • identify best practices for production, use and storage of potentially harmful chemicals.

The report outlines the Working Group’s approach to each of these.

The Working Group’s plan demonstrates some efforts to reduce burdens on regulated facilities.  For example, with respect to the elements of improved coordination and enhanced information sharing, the report details the plan to develop a centralized reporting database which may benefit chemical facilities by eliminating duplicative reporting and enhance agency access to facility information to improve response efforts in case of an emergency.

However, the report’s action plan for modernizing safety and security regulations and polcies demonstrates the expanded scope and heightened standards that regulated chemical facilities can expect to see as final products of the EO’s directives. To illustrate, under OSHA’s proposed modernization of its Process Safety Management (PSM) standards, the plan is to revise the regulations to “clarify” the “retail facility” exemption and eliminate the “oil and gas” exemption thereby increasing the number of subject facilities and to expand the list of chemicals (and concentrations) subject to the program, including incorporating (among others) reactive chemicals such as ammonium nitrate.  OSHA further intends to seek authority to strengthen its civil and criminal penalties for violations of PSM.

Similarly, the report details the Working Group’s plan for modernizing US EPA’s Risk Management Program (RMP) and the intent to propose new requirements under the RMP requiring automated detection and monitoring systems and implementation of the “newest available technologies”, requiring independent third-party audits, imposing “stop work” authority for employees, increasing contractor safety requirements, and enhancing emergency planning obligations with State and local responders. Additionally, under the expected revisions to both the PSM and RMP programs, the Working Group is proposing that facilities consider “safer technology and alternatives” –which appears to be code for evaluation of “inherently safer technology” requirements.  Such requirements could limit the amount of chemicals permitted to be stored or maintained on-site as well as require companies to evaluate substitutions or eliminate use of certain chemicals–all of which could impact production and costs.

The Working Group’s report further articulates plans to strengthen DHS’ Chemical Facility Anti-Terrorism Standards (CFATS) program by expanding its coverage and enhancing DHS’s enforcement authority.  The proposal includes covering ammonium nitrate under the standards and eliminating the exemption for water and wastewater treatment facilities.  It further would allow DHS to issue orders requiring immediate shutdown of facilities and imposition of civil penalties, instead of requiring the agency to first issue an order to correct the violation.

The Working Group expects to solicit comments and regulated entity input on many of the changes to the scope and authority of the programs within the next year.  Accordingly, it is imperative that chemical facilities remain vigilant and involved in the activities of the Working Group to ensure their voice is heard.   Further updates on the Working Group will be detailed on this blog.