“From this day forward, a new vision will govern our land.” President Donald J. Trump
President Trump just reversed the Obama administration’s rejection of the Keystone XL pipeline. Regardless of my concerns about hydrocarbon consumption, as a safety professional, I have to welcome the news, knowing as I do that pipelines are the safest way to move hazardous materials from place to place, both in terms of impact on the environment and human safety. There are a number of other initiatives by the previous administration that we may expect to see reversed, either by executive order, presidential memoranda, or by action of the Republican-controlled Congress in the form of a joint resolution under the Congressional Review Act of 1996, where Congress has 60 legislative days to disapprove any new federal regulation.
One of those eleventh hour regulations that is likely to get some scrutiny is the Amended Risk Management Planning Rule, published by the EPA in the Federal Register on January 13, 2017.
Why amend the RMP Rule?
Faced with the horror of 15 dead as a result of the West Fertilizer Company ammonium nitrate explosion on April 17, 2013, the public turned to the regulatory community and asked, “How could you let this happen?” Federal, state, and local agencies all looked to one another, insisting that it wasn’t in their own jurisdiction. Neither of the two key federal regulations on process safety, OSHA’s Process Safety Management Standard (PSM) and the USEPA’s Risk Management Planning Rule (RMP) even listed ammonium nitrate as a chemical of concern. Fed up with the lack of cooperation between federal agencies, President Obama issued Executive Order 13650 on August 1, 2013, directing several federal agencies to work together to develop an integrated approach to improving process safety and in particular, to improve the “safe and secure storage, handling, and sale of ammonium nitrate.”
The agencies—particularly OSHA, the USEPA, and the Department of Homeland Security—went to work, holding joint public hearings and receiving public comments. (An interesting note: although the EPA received 67,467 letters and signatures, they dismissed most of these as “mass mail campaigns.” They only considered 235 submissions as having “unique content.”) I attended one and I am sure that many of you did as well. The amended rule that the USEPA just published was the result.
What the amended RMP Rule will do
The amended RMP Rule includes changes in three areas:
- Accident Prevention Program
- Emergency Response
- Availability of Hazard Information to the Public
There are three changes to the Accident Prevention Program. The first is a requirement for facilities in Program 2 or Program 3 to conduct root cause analysis as part of any required incident investigation. The second is a requirement for facilities in Program 2 or Program 3 to contract with “qualified” and “independent” third-party auditors to perform a compliance audit within 12 months of an RMP reportable accident or determination by the USEPA that a third-party audit is required. This compliance audit would re-start the every-three-year clock for compliance audits, which can otherwise be conducted in-house. An individual consultant (but not their firm) is prohibited from working for the facility in any capacity other than as an auditor for the two years before and two years after the “independent” third-party audit.
The third change is a requirement for covered facilities in paper manufacturing (NAICS 322), petroleum and coal products manufacturing (NAICS 324), and chemical manufacturing (NAICS 325) to conduct a Safer Technology and Alternatives Analysis as part of their process hazard analysis and to evaluate any inherently safer technology identified.
There are three changes to Emergency Response requirements. The first is that facilities in Program 2 or Program 3 become responsible for ensuring that their Local Emergency Planning Committee (LEPC) has addressed their facility in its community emergency plan at least once a year. Second, facilities in Program 2 or Program 3 are required to conduct emergency notification exercises at least once a year. Third, facilities are required to conduct tabletop exercises at least once every 3 years and full field exercises at least once every 10 years. Nothing in the amended rule, however, compels emergency responders to participate in these exercises.
In regard to making hazard information available to the public, there are two new requirements. Facilities are required to provide certain basic information on request and notify the public of that availability through the internet, and facilities are required to hold a public meeting for the local community within 90 days of an RMP reportable accident.
What the amended RMP Rule won’t do
When President Obama issued Executive Order 13650, there were a few things that many people expected to see happen.
Many expected to see ammonium nitrate added to the list of regulated chemicals that trigger RMP and PSM. It wasn’t. A facility like West Fertilizer is no more covered now than it was in 2013.
Many expected to see the lists of regulated chemicals covered by RMP and the list of regulated chemicals covered by PSM merged and consolidated. The lists in the two regulations remain unchanged, with different chemicals on the lists of each agency. While there is some overlap, chemicals that are common to both sets of lists often have different threshold quantities.
Many expected to see the differences between RMP and PSM resolved, so that compliance with one automatically conferred compliance with the other. Instead, these amendments exacerbate the differences between the two regulations, making compliance more, not less, difficult.
Is it a good regulation?
The amended RMP rule doesn’t do what it we expected it to do and much of what it does is outside of the expected scope. But…is it a good regulation anyway?
In regard to the accident prevention program, all three changes things I would like to see done more often. A good root cause analysis of an incident will always be more valuable than a superficial investigation of direct causes. Likewise, it is easy to see the utility of bringing a fresh set of eyes in to conduct a compliance audit. Finally, who can argue against using inherently safer technology? These can be terrific things when done voluntarily by people skilled in doing them. But the regulations do not define how these are to be done and what constitutes compliance. Instead, inspectors will be in a position of substituting their technical judgment for the technical judgment of personnel at the facility, and previously useful tools will simply become compliance chores, with no more value than other compliance chores.
In regard to emergency response, the changes represent a means to address a longstanding problem with LEPCs: they don’t have the resources to meet their mandate. The changes don’t provide resources, they simply shift the burden from the public committees to facilities. Meeting with LEPCs, conducting annual notification drills, triennial tabletop drills, and decennial full field drills are wonderful aspirations. When facilities have managed to coax their emergency response providers to participate, the efforts invariably receive high praise. The facilities I work with, however, complain bitterly about their inability to engage their emergency responders in drills. Conducting these drills without the participation of emergency responders is a waste.
In regard to making hazard information available to the public, the change represents a step backward. When the USEPA first set about developing the RMP Rule, it intended for there to be key difference between its regulation and PSM. OSHA does not require any kind of filing or registration of PSM-covered processes. The USEPA, on the other hand, requires covered facilities to register with them and it originally intended to post all registration information on the internet, to be available to the public. There were many concerns raised that posting hazard information to public was akin to giving terrorists instructions on how to attack chemical facilities. The 1993 World Trade Center bombing was finally enough to convince the USEPA that making chemical hazard information freely available to the public was a bad idea, and so the regulation did not include this requirement when it was promulgated in 1996. Now it’s 20 years later and apparently they’ve forgotten.
Read the regulation and then contact your federal legislators
The question, then, is whether this is a regulation that should be reversed? I don’t subscribe to the philosophy that all regulations are bad regulations, so I will not say that it should be tossed out solely because it is a new regulation.
The devil is in the details and there are a lot of details in this amended regulation—more than can be reviewed in a blog. If you are in a facility with an RMP-covered process, you should look at the amendment published by the EPA in the Federal Register. There is a summary at the beginning, followed by almost a hundred pages of discussion of the comments, but the revised regulations in the last 10 pages will be the most important. Read them.
Then, after you’ve read the amendments to the regulation, decide if you think it is a good idea or not and let your legislators know. If you believe our industry will be safer as result of these changes, you should let them know so that they can defend the new regulation. If you believe that this regulation isn’t an improvement for safety, then you should let them know so they can apply the Congressional Review Act. Once the 60 days have passed, it will be very difficult to do anything about it and the next blogs will be about how to cope with new regulations.
Regardless of where you stand, contact your legislators. Send a well-reasoned explanation of what you would like to see them do, and why. Don’t send a rant, don’t send a form letter, and don’t stray to other topics. It doesn’t take very many letters, calls, or e-mails with “unique content” to represent a flood of interest in the eyes of a legislator. It will be interesting to see what happens.