As previously detailed, the Presidential Executive Order (EO) 13650Improving Chemical Facility Safety and Security (August 1, 2013) directs a Working Group of federal agencies, 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),  to identify ways 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 chemical facility accidents that have occurred in the US over the last decade, including the West Texas explosion last year.  To advance the objectives of the EO, the Working Group’s recent status report detailed several actions that are under consideration, including the expansion of OSHA’s Process Safety Management Program (PSM) and US EPA’s Risk Management Program (RMP).  In this regard, OSHA issued a Request for Information (RFI) in connection with its PSM program earlier this year seeking comment on its proposed expansion.  On July 31, 2014, US EPA followed suit and issued an RFI related to its RMP program, which was published in the Federal Register.  The RFI seeks public input on revisions to the RMP program that are being considered to expand its scope.  Comments or submittals under the RFI will be accepted through October 29, 2014.

The RFI outlines in more detail potential changes and concepts to the RMP that were touched on in the Working Group’s status report. Generally, these changes, if adopted, would significantly expand the RMP’s regulated substances and scope.  These revisions include the potential:

Expansion of the Regulated Substances List:

  • Expansion to include explosives: US EPA asks for comments on the types of explosives that should be covered and at what threshold quantity.
  • Expansion to include Ammonium Nitrate (AN) (the material involved in the West Texas explosion): US EPA asks for comments on whether expansion should be limited to AN fertilizer and whether it should create an exemption for farmers that utilize AN fertilizer similar to its ammonia exemption.
  • Expansion to include reactive substances: asking for comment on types of substances to be covered and threshold quantities.
  • Expansion through lowering of the threshold quantity for existing regulated substances.

Implementation of new management system elements:

  • While not fully fleshed out in the RFI, US EPA is considering requiring facilities to conduct job safety analyses or safety culture assessments on a regular basis.  US EPA is asking for comments on the success of such programs, the costs and the frequency that they should be employed.
  • US EPA is also considering requiring facilities to conduct regular third-party or independent audits and is asking for comments on the success of such programs, the costs and the frequency with which such audits should be required.
  • US EPA also believes that the mechanical integrity requirements should be expanded to cover safety-critical equipment and that facilities should be required to manage operational changes to ensure safety is not compromised.
  • The agency also asks whether facilities should be required to employ automated detection and monitoring systems for releases.  It asks for information on the benefits of such systems, what threshold protocols should be in place for such systems and their costs.

Elimination of Exemptions:

  • US EPA is considering elimination of the “retail” exemption similar to the proposed revisions under OSHA’s PSM.
  • Further, US EPA is considering eliminating the exemption for wastewater and water facilities given their use of regulated substances.
  • It is also considering the elimination of  its Program 2 requirements which would require existing covered facilities to comply with either Program 1 or Program 3 requirements.

Consideration of Safer Technologies and Alternatives:

  • US EPA’s concept on this issue is not fully articulated in the RFI.  However, it is clear that US EPA is considering requiring facilities to consider safer technologies and alternatives in some manner.  US EPA asks for input on whether there should be mandatory requirements like those that have been employed in some states (like NJ), but also notes that it is considering more voluntary evaluation options as well. US EPA is further considering whether to tier any mandatory requirements that might be adopted, employing only mandatory safer technology requirements  for certain types of high-risk facilities (although it asks for input on what facilities would qualify as high risk).  It is also looking for comments on whether it should require facilities to develop a plan that evaluates alternatives, provides a justification for and/or an economic analysis for alternative selections and whether such a plan should be subject to US EPA approval.  It is further asking for comment on the standard, if mandatory requirements are imposed, for when safer alternatives should be employed, when are they considered cost effective, when are they considered less risk.  It is also asking for input on the structure of these requirements and how they should be enforced by the agency.  US EPA further asks for input on whether safer technology or alternative plans or analyses should be disclosed to local communities and whether communities should have input into the alternatives selection.  Overall, this section of the RFI raises concerns for subject chemical facilities and may result in imposition of significant new process requirements for covered facilities that can impact production and costs.

Emergency Drills to Test Emergency Response:

  • Again, US EPA asks for comments on mandating such drills, costs for conducting and the frequency in which they should be undertaken.

 Specific Siting Requirements for Facilities:

  • US EPA is also asking whether it should impose both internal siting requirements (i.e., requirements on the location of structures in proximity to stationary source) and external siting requirements (i.e., location of stationary source to facility boundaries or buffer zones).  It is asking for comment on potential siting requirements, the standards to be imposed, whether they should be applicable to only new facilities or also to existing facilities and if so, how to implement.  It further asks whether federal siting requirements would over step into state and local zoning processes and the potential costs for implementing siting obligations.

Since the RFI is not an actual proposal and EPA has not yet determined which, if any, changes to the RMP should be made, there is a real opportunity for regulated facilities or potentially regulated facilities to weigh in during the 90-day comment period to influence the scope of the final requirements.  It is also an opportunity to provide information on why certain aspects being considered by US EPA may not be feasible or cost effective for regulated facilities and to communicate with US EPA before its plans are more fully fleshed-out.