chem

By R. Lee Vail, P.E., Ph.D.

On February 28, 2017, the EPA received a petition from the “RMP Coalition” for reconsideration and a request for a stay from the amendments to the RMP rule. The RMP Coalition consists of several affected industry trade groups, manufacturing groups, and the Chamber of Commerce of the United States of America. The petition asserts that:

  • the Local Emergency Planning Committee (“LEPC”) disclosure requirements are open ended, will result in a significant security risk, and that EPA failed to give notice that it may alter the final rule being open-ended;
  • the EPA changed the third-party audit criteria to include an arbitrary trigger that is subject to the whims and imagination of an agency, and EPA did not properly notice or address this change;
  • the EPA did not include information on its cost-benefit findings as required by Michigan v. EPA, 135 S.Ct. 2699 (2015);
  • the scope of the three year audit was expanded to include all covered process without providing notice of the change or the rational;
  • the EPA failed to explain claimed statutory authority to expand the rule;
  • numerous supporting documents were not available during the comment period; and
  • the EPA should reconsider the amendment “in light of the revelations that the West, Texas, incident was an intentional act.”

On March 13, 2017, Scott Pruitt, Administrator of the EPA, convened a proceeding for reconsideration of the RMP rule amendments and signed a letter that administratively delayed the effective date of the rule for 90 days.

plant

By Lee Vail, P.E., Ph.D.

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule . On January 13, 2017, the EPA published a new final rule.  This is the final article in a series that addresses five major changes: root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information. The subject of this discussion is the changes to the emergency response preparedness requirements.

In proposing extensive additions to §68.210, the EPA concluded that Local Emergency Response Committees (“LEPC”) and the public needed additional information about covered facilities and that rule should mandate automatic submission and posting of such information. Instead, the revised rule facilitates the transmission of information to those that request it.

During the comment period, LEPC’s insisted that they neither had the capacity to accept the mandated submission of information nor ever had difficulty acquiring the information they needed. As a result, as part of the emergency response coordination  revisions, LEPCs may request any relevant information. The discussion of relevant information in this section of the preamble pretty well follows the list given in the discussion of the emergency response section:

The LPEC or local emergency response officials may request such as accident histories, portions of incident investigation reports relevant to emergency response planning, incident investigation reports, records of notification exercises, field and tabletop exercise evaluation reports, or other information relevant to community emergency planning.

The EPA then adds:

For example, this may include requesting information on changes made to the facility that affect risk such as incorporating safer alternatives.

82 Fed. Reg. at 4667.

Similarly, rather than requiring that a faculty distribute specific chemical hazard information to the public, owners and operators must notify the public of the availability of such information. See 40 C.F.R. 68.210(c). Among the advantages touted for this approach was that the facilities would be informed about who requested the information (at least the initial recipient). The information available through such requests is limited to “only information that could improve community awareness of risk.” 82 Fed. Reg. at 4669. EPA explicitly rejected comments that Safer Technology and Alteration Analysis (“STAA”), incident investigations, and third party audit reports should also be available to the public.

The revised rule requires that facilities must hold a public meeting follow an incident that meets the accident reporting criteria found in §68.42 (five year update criteria). Information communicated during the public meeting includes the same information included in the five year accident history (e.g., on and offsite impacts, root cause, etc.), as well as the information listed in §68.210(b) that is already available upon request. This public meeting must occur within 90 days of such an incident.

Finally, the EPA also added a requirement that RMPs shall be available to the public consistent with 40 CFR Part 1400. This appears to be little more than a cross reference to notify the public that RMPs are available in federal reading rooms.

On January 26, 2017, the EPA delayed the effective date of several regulations, including these changes to the RMP rule. Whereas this rule is now expected to go in effect on March 21, 2017, this rule is subject to Congressional Review Act and could be undone by that process.

To sign up for Lee Vail’s Process Safety Management e-Alert, send an email to client_services@keanmiller.com

chem

By Lee Vail, P.E., Ph.D.

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule . On January 13, 2017, the EPA published a new final rule.  This a fifth in a planned series that will address five major changes: root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information. The subject of this discussion is the changes to the emergency response preparedness requirements.

The changes to the emergency response section of the rule begin with adding a definition for “responding stationary sources” and for “non-responding stationary source.” The primary effect of this addition is that responding stationary sources must comply with 40 CFR 68.95 (i.e., develop an emergency response plan and all that goes with it) and non-responding stationary sources must be included and rely on the community emergency response plan and/or coordinate response actions with the local fire department. The final rule dropped the requirement that non-responding facilities confirm the adequacy of local public emergency response capabilities as a condition of being designated a non-responding stationary source. In addition, the EPA decided not to finalize provisions that would allow a Local Emergency Response Committee (“LEPC”) to require a facility “to develop an emergency response program in accordance with §68.95 upon receiving a written request to do so.” By declining to add that proposal, the decision to designate the response status remains with the facility.

New coordination requirements were added in §68.93 that require that the owner or operator attempt to coordinate with local responders at least annually (local responders are not required to coordinate). In addition, the owner or operator shall provide local authorities with information:

  • about the regulated substances at the source (quantities, risks, and emergency response resources and capabilities), and
  • emergency response plans, emergency action plans required under 29 CFR 1910.38, updated emergency contact information, and any other relevant information. “Such information could include accident histories, portions of incident investigation reports relevant to emergency response, incident after action reports, records of notification exercises, field and tabletop exercise evaluation reports, etc.”

Finally, the new rule added “Facility Exercises” requirements. All Program 2 and 3 sources must “conduct an exercise of the stationary source’s emergency response notification mechanisms.” §68.96(a). Responding stationary sources must conduct emergency response field and tabletop exercises. The frequency of these exercises shall be established in consultation with emergency response officials with the interval being no more than 3 years between tabletop and 10 years between field exercises. The EPA decided not to include a requirement that a facility conduct a field exercise within one year of a §68.42 release. Flexibility was incorporated into the rule to allow the owner or operator to take credit for an equivalent exercise performed to satisfy other regulatory requirements (§68.96(c)(1)) or responding to a real accidental release (§68.96(c)(2)) as long as the exercise requirements are otherwise met.

On January 26, 2017, the EPA delayed the effective date of several regulations, including these changes to the RMP rule. Whereas this rule is now expected to go in effect on March 21, 2017, this rule is subject to Congressional Review Act and could be undone by that process.

chem

By R. Lee Vail, P.E., Ph.D.

Effective January 17, 2017, the Occupational Safety and Health Administration (OSHA) issued new instructions concerning its National Emphasis Program (NEP) as it relates to chemical process subject to Process Safety Management (PSM). See Directive Number CPL-03-00-021. PSM requirements are codified at 29 CFR 1910.119.   Prior NEPs were implemented for Petroleum Refining in 2007 and 2009 and ended in 2011. With the new instructions, refining is back on the list. NEP Inspections are divided up into Programmed and Unprogrammed Inspections, each of which has its own trigger or criteria.

Unprogrammed Inspections: These inspections are initiated as the result of a complaint, referral, accidents, or catastrophes.

Initiating Event NEP Application Limits/Expansion
Complaint/referral related to PSM Standard

Follow CEMP NEP

 

Inspection of contractor and host

If initiated by contractor, normally limited to complaint/referral items/subject and contractor questions
Complaint/referral not related to PSM Standard Normally limited to specific (non-PSM) issue OSHA may decide to expand to include CEMP NEP if the facility has not been inspected under PSM NEP.
Accident/Catastrophe that involves PSM Standard Follow CEMP NEP Includes an incident investigation
Accidents/Catastrophe that does not involve PSM Standard Normally limited to specific (non-PSM) issue OSHA may decide to expand to include CEMP NEP if the facility has not been inspected under PSM NEP.

Programmed Inspections: The process is initiated by creation of a list of targeted facilities based on a number of factors: facilities subject to EPA’s Risk Management Program (RMP), previously OSHA cited facilities, facilities with SIC codes identified as explosive/pyrotechnincs, and other sources of available information. Approved facilities participating in OSHA Voluntary Protection Program (VPP) or Consultation Safety and Health Achievement Recognition Program (SHARP) and facilities that have had a NEP inspection in the last three years are removed from the list. Please note that VPP status does not prevent the possibility of an unprogrammed inspection. The final list is randomized and OSHA established the following annual inspection objectives.

Category Facility Type Inspection Target
1 Facilities likely to have ammonia refrigeration 25% of Programmed
2 Petroleum refineries 30 per year
3 Chemical Manufacturing 45% of Programmed
4 Other PSM Covered Facilities 30% of programmed

Otherwise, the new NEP instructions explain the process and expectations of a NEP inspection and should be considered carefully in the event of an inspection. The NEP provides a good overview of the areas to be investigated and the limitations that an employer should expect. Careful notice should be taken of the process and these expected limitations as the NEP instructions also include off-ramps to expand the investigation under certain circumstance.

The United States Environmental Protection Agency in Washington DC. (Photo by: Loop Images/UIG via Getty Images)

By R. Lee Vail, P.E., Ph.D.

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule. On January 13, 2017, the EPA published a new final rule.  This is fourth in a planned series that will address five major changes: root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information. This week we will examine a requirement added to the Process Hazard Analysis (PHA) element: Safer Technology and Alternatives Analysis (STAA).

This requirement is mandatory to industries in three North American Industry Classification System (NAICS) codes: 322 (Pulp and Paper), 324 (Petroleum Refining), and 325 (Petrochemical). The added requirements are few: perform an analysis and determine the practicality for any identified inherently safer technologies or designs. The analysis must be structured to consider risk reduction according to the following hierarchy, all of which are newly defined terms: inherently safer technology or design, passive measures, active measures, and procedural measures.  Much of the rest is left up to the owner/operator, including whether to implement the findings.

The EPA replaced the word “feasible” with the word “practical” in the final rule but kept the same definition in an effort not to confuse or conflict with the concept of feasibility in OSHA rules. Whereas the dictionary definitions indicate that the meaning of the words is very similar, practical always seems like something smart to do; feasible just meant it was possible.

As said above, the additions to the rule relating to STAA are few. Most of the important “takeaways” can be found in the preamble:

  • Owners are in best position to define “economic and social value.”[1]
  • Cost and loss of profits can be considered.[2]
  • No timeframe for implementation.[3]
  • An evaluation of practicality includes the owners’ risk tolerance.[4]
  • Need only consider commercially viable chemical substitutions.[5]
  • More time allowed for complex practicality evaluation.[6]
  • Analysis can consider cost/benefit, customer needs, and business concerns.[7]
  • None or multiple safeguards may be appropriate.[8]
  • Facilities alone have the expertise to make decisions.[9]

In summary, the STAA requirements just require certain industries to perform a STAA and determine the practicality of possible changes. Although there is no requirement to automatically submit the analysis to an agency, once the documents exist, they of course could be demanded by an agency or another party in a law suit. Whereas this rule is expected to go in effect on March 14, 2017, this rule is subject to Congressional Review Act and could be undone by that process.

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[1] EPA does not believe that we should further define ‘‘economic or social factors’’ in the rule because further specificity of these terms would likely be too prescriptive and would not encompass all the possible conditions and outcomes that might be encountered when determining the practicability of an IST or ISD considered in the STAA. EPA expects that facility owners and operators will use their expertise and make reasonable judgments when considering the appropriate meaning of economic or social factors so that any decisions regarding possible implementation of IST is not driven towards changes that would cause unintended adverse consequences.  82 Fed. Reg at 4636.

[2] Cost is a consideration when determining whether a risk management measure can be successfully accomplished and because EPA is not requiring implementation of any IST, we see no reason to exclude this factor from a practicability determination.  82 Fed. Reg, at 4637.

[3] EPA also disagrees that incorporating consideration of a reasonable timeframe will allow facilities to avoid implementation. EPA is not requiring IST implementation and we acknowledge that there may exist practical limits on whether some projects or process designs can be done to enhance safety.  82 Fed. Reg. at 4637.

[4] Management response to hazard evaluation studies and recommended options involve risk management considerations that are developed based on a facility’s risk tolerance criteria.  82 Fed. Reg. at 4647.

[5] EPA expects that facilities will only evaluate chemical substitutes that have already been shown to be commercially viable and does not expect facility owners or operators to expend a major effort on hypothetical or untested chemical substitutes or uses.  82 Fed. Reg. at 4647.

[6] EPA allows that where a practicability evaluation is complex and resource intensive and may not be completed within the four-year compliance timeframe from the final rule or within the five years between PHA reviews, a facility should document during their PHA review that the IST is under consideration and that the practicability of implementing the technology is unknown and still undergoing evaluation.  82 Fed. Reg. at 4648.

[7] EPA disagrees that the practicability determination does not allow facilities to take into account costs and benefits and the effect on the full supply chain. The STAA requirements do not require any implementation of any particular IST. EPA expects that facility owners or operators will seriously consider the merits and consequences of ISTs for their facilities and use their expertise and judgment to ensure safety while not severely affecting the economic viability of their businesses. Facilities can consider the effects in their supply chain (downstream and upstream) when evaluating potential IST options.  82 Fed. Reg. at 4648.

[8] EPA recognizes that for any particular hazard point, any one of the four types of safeguards may not exist or may not be practicable for a variety of reasons. EPA also recognizes that facilities may wish to employ more than one safeguard.  82 Fed. Reg. at 4649.

[9] EPA agrees that the facility is in the best position to decide what safeguards or risk reduction measure can be employed to eliminate or reduce process hazards. Facilities must consider safeguards, in the following order of preference: IST, passive, active or procedural measures; however, the rule does not automatically require the facility to implement the measures preferentially in that order.  82 Fed. Reg. at 4649.

chem

By R. Lee Vail, P.E., PH.D.

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule . On January 13, 2017, the EPA published a new final rule. This is third in a planned series that will address five major changes: root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information. Last week the blog concerned audit privilege; this week I focus on conditions that trigger a third party audit and new audit finding implementation requirements.

Condition requiring a third party audit: Unchanged from the proposal, third-party audits are required anytime the facility has an incident that meets the five-year accident history criteria as described in §68.42(a). The five-year report criteria remained unchanged: significant on site impacts or known off-site impacts. Usually these events are associated with significant incidents.

In the proposal, the EPA added a second criterion based on an agency finding of non-compliance. This condition was replaced in the final rule with a different criterion: an agency finding of a condition that could lead to an accidental release.[1] The agency could also demand the owner repeat third-party audits that fail to meet competency or independence criteria. See 40 CFR 68.79(f)(2). The deficient condition finding could be based on factors including mechanical integrity deficiencies, smaller incidents that could have been bigger incidents, or smaller incidents that occurred more than once.

Conditions at a stationary source that could lead to an accidental release may include, but are not be limited to, significant deficiencies with process equipment containing regulated substances, such as unaddressed deterioration, rust, corrosion, inadequate support, and/or other lack of maintenance that could lead to an accidental release. The presence of small ‘‘pinhole’’ releases, that do not meet the criteria in § 68.42(a) for RMP- regulated accidental releases, could also constitute conditions that could lead to a larger accidental release of a regulated substance. The occurrence of several prior accidental releases that did not meet the reporting criteria in § 68.42(a) at or from a facility could also constitute conditions which could lead to potentially more severe accidental releases. These releases may be a potential indicator that an owner or operator is not complying with RMP prevention program requirements and would benefit from a third-party audit to prevent future accidental releases.
82 Fed. Reg. 4594, 4616 (Jan. 13, 2017)

Of concern, a smaller incident that “could lead to a larger accidental release of a regulated substance” sounds eerily similar to a “near miss.” Whereas a “near miss” would result in an incident investigation, there is no discussion in the preamble that a “near miss,” should result in a third-party audit.

Third party audit findings: The new rule vastly expanded the “implementation” requirements formally located at §68.79(d) with a new paragraph (f). Effectively the term “promptly determined” has been replaced with a 90 day maximum period. Further, in addition to a certification by the third party auditor, a separate certification is required by a senior corporate official that that a compliant audit was performed and that deficiencies have been, or are in the process of being corrected according to a schedule. Although similar to a Title V certification, the corporate official audit certification cannot be delegated to a responsible official. The audit report, responses to findings, certifications, and schedule must be submitted to the audit committee of the Board of Directors.

Next week we will examine inherently safer technology.

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[1] The agency preliminary determination must provide written notice describing the basis for the notice. The process includes an opportunity for the owner to provide additional information to the agency prior to a final determination. The final determination is appealable to the EPA Regional Administrator.

chem

By Lee Vail, Ph.D., J.D.

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the Risk Management Plan Program (“RMP”) Rule.  On January 13, 2017, the EPA published a new final rule.  This a second in a planned series that will address five major changes:  root cause analysis for near misses, third-party audits, inherently safer technology, emergency response, and availability of information.  The third party audit provisions are so significant that I must split it up into two topics, starting with privilege.

The proposed rule contained several provisions that reminded me of the poster hung for all to see in George Orwell’s 1984:  Big Brother Is Watching You.  Promulgation of the proposal would have resulted in submission of potentially flawed draft reports prepared by individuals with no prior knowledge of the facility that would end up in the regulating agency’s hands no later than the facilities; draft reports had to be retained.  For some reason, the EPA believed it was necessary to receive raw, unfiltered, and potentially incorrect conclusions.  Fortunately, all of this was dropped.  Interestingly, and to the alarm of many, the EPA also proposed to add:

The audit report and related records shall not be privileged as attorney-client communications or attorney work products, even if written for or reviewed by legal staff.  81 FR, 13638, 13707 (Mar 14, 2016)

In the final rule, the EPA deleted this provision limiting attorney-client privilege.  Ultimately, the EPA dropped this provision as they:

recognizes that the ultimate decision maker on questions of evidentiary privileges are the courts. Therefore, this rule does not contain a specific regulatory provision prohibiting assertion of these privileges.  81 Fed. Reg. at 4614.

I expect that the EPA did not remove the provision because they found public comments persuasive.  Ultimately they probably received good counsel that inclusion of the provision would have help naysayers strike down the rule. The EPA added, in no uncertain terms how they feel above screening internal deliberations based on privilege:

With regard to information that arguably should be protected under evidentiary privileges, EPA’s view is that the third-party audit reports and related records under this rule, like other documents prepared pursuant to part 68 requirements, such as process safety information, PHAs, operating procedures and others, are not documents produced in anticipation of litigation. With respect to the attorney-client communication privilege specifically, the third-party auditor is arms-length and independent of the stationary source being audited. The auditor lacks an attorney-client relationship with counsel for the audited entity. Therefore, in EPA’s view, neither the audit report nor the records related to the audit report provided by the third-party auditor are attorney-client privileged (including documents originally prepared with assistance or under the direction of the audited source’s attorney).  Id.

Given our litigious society, I would always consider conducting an incident investigation under attorney-client privilege.  I see no reason not to conduct future audits under privilege, but there is no certainty that a court would uphold the privilege (is there ever?).  The EPA reminds us in footnote #32 that they have authority to demand records under Section 114 of the CAA.  If maintaining control of a draft report is important to you (which it should), make sure you have and follow a retention policy that requires destruction of all draft reports.  Make sure to keep the support for the final report.  Contracts with third parties should include the return of all information, materials and drafts.

Next week:  the rest on third-party audits!

12

By R. Lee Vail, P.E., Ph.D.

On November 18, 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule “revising and updating its general industry standards on walking-working surfaces to prevent and reduce workplace slips, trips, and falls, as well as other injuries and fatalities associated with walking-working surface hazards.” 81 Fed. Reg. 82494 (Nov. 18, 2016) .  Regulations related to Walking-Working Surfaces are located at 29 C.F.R. 1010 Subpart D. Included in the rule are requirement relating to floors, ladders, stairways, runways, dockboards, roofs, scaffolds, and elevated work surfaces and walkways. The new rule incudes:

  • new design, performance, and use requirements for fall protection system to reflect advances in technology and industry best practices;
  • added flexibility to utilize personal protection systems (e.g., fall arrest, travel restraints, and work positioning systems) in lieu of guardrails;
  • harmonization of general industry and construction system and equipment requirements;
  • incorporation of provisions from recently adopted standards, included but not limited to requirements from Appendix C (Mandatory) of the Powered Platforms for Building Maintenance; and
  • incorporation of requirements from national consensus standards (e.g., Workplace Walking/Working Surfaces and Their Access, ANSI/ASEE A1264.1-2007, Personal Fall Systems, ANSI/ASSE Z359.1-2007, and Window Cleaning, ANSI/IWCA 1-14.1-2001.

This rule generally becomes effective and enforceable on January 17, 2017. Several of the requirements are not effective until a later date.

12

By R. Lee Vail

The Occupational Safety and Health Administration (“OSHA”) published a Request for Information (“RFI”) on December 9, 2013 concerning possible changes to the Process Safety Management (“PSM”) program codified at 29 C.F.R. 1910.119. See 78 Fed. Reg. 73756 (Dec. 9, 2013). Likewise, the Environmental Protection Agency (“EPA”) published an RFI on July 31, 2014 relating to possible changes to the similar Risk Management Program (“RMP”) rules codified at 40 C.F.R. Part 68. See 79 Fed. Reg. 44604 (July 31, 2014). In lieu of making some changes through rulemaking, OSHA chose to revise older policies. On June 5, 2015, OSHA issued an interpretation letter that addresses the method of determining whether chemical in a mixture exceeded a threshold quality.

In response, the American Chemical Council and the National Association of Chemical Distributors filed suit challenging the policy. On July 7, 2016, OSHA and the parties settled the suit and agreed to a revised policy. On July 18, 2016, OSHA rescinded and replaced that policy with a modified policy.

Whereas the general policy did not substantially change, OSHA agreed that certain aqueous solutions were not covered by PSM. These include:

  1. Ammonia, Anhydrous (CAS 7664-41-7);
  2. Dimethylamine, Anhydrous (CAS 124-40-3);
  3. Hydrogen Cyanide, Anhydrous (CAS 74-90-8);
  4. Methylamine, Anhydrous (CAS 74-89-5);
  5. Hydrochloric Acid, Anhydrous/ Hydrogen Chloride (CAS 7647-01-0);
  6. Hydrofluoric Acid, Anhydrous/ Hydrogen Fluoride (CAS 7664-39-3).

Special emphasis was placed on the case of Hydrogen Chloride and Hydrogen Fluoride. Both were listed twice under the same CAS Number and Threshold Quantity. In settling the suit, OSHA agreed that these chemical were effectively only listed once in the anhydrous (without water) form. In addition, OSHA determined that that “aqueous mixtures of hydrogen bromide (at concentrations below 63%) and mixtures of alkylaluminum (at any concentration) will fall within the partial pressure exemption under all normal handling and storage conditions.”

Otherwise, OSHA’s proposed revisions to PSM are still pending and the EPA is evaluating comments from its proposed rule. Stay tuned for more developments.

12

By Scott D. Huffstetler

Today, the Occupational Safety and Health Administration (“OSHA”) announced a final rule that will make information regarding workplace injuries and illnesses available online.  OSHA already requires many employers to keep a record of injuries and illnesses, but little or no information about worker injuries and illnesses at individual employers is made public.  The new regulation requires workplaces with 20-249 employees in high hazard industries (such as agriculture, forestry, construction and manufacturing) and workplaces with more than 250 employees to upload injury and illness data or summaries to OSHA on an annual basis.  OSHA will, in turn, post data from these submissions on a publicly accessible website.  The new regulation also incorporates OSHA’s existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.  Most parts of the final rule becomes effective August 10, 2016.  To access the final rule, click here.