By R. Lee Vail, P.E., Ph.D. and Lauren J. Rucinski

On August 30, 2017 the D.C. Circuit denied environmental and labor groups’ request to stay the Tump EPA’s final rule delaying the Obama-era amendments to the EPA’s Risk Management Program (“RMP”) rule. The RMP rule implements Section 112(r) of the Clean Air Act and requires facilities that use extremely hazardous substances to develop and update a Risk Management Plan.

In June, the EPA Administrator Scott Pruitt signed a final rule to further delay the effective date of the RMP rule amendments until February 19, 2019 (“the Delay Rule”).  The delay allows EPA to conduct a reconsideration proceeding to review objections raised by petitioners to the final RMP amendments rule.[1]

Environmental and labor groups challenged the Delay Rule in the D.C. Circuit and then moved to stay the Delay Rule until the court takes full review of it. The groups’ motion requests a stay of the stay of the RMP rule until the court can review the merits of the Delay Rule—which stays the RMP rule. Try to say that five time fast. In any event, the D.C Circuit denied the groups’ motion to stay the Delay Rule. In denying the request for a stay, the D.C. circuit held that the environmental and labor groups had not “satisfied the stringent standards for a stay pending court review.”[2] Thus the Delay Rule will remain in effect while the D.C. Circuit reviews the merits of the groups’ challenge.

***************************************************

[1] 82 Fed. Reg. 27133 (June 14, 2017).

[2] The Court also denied EPA’s motion for additional briefing time on the merits of the groups’ challenge.

By Maureen N. Harbourt

Just a quick reminder that in 2007, the Louisiana State Police (“LSP”) adopted regulations requiring special reporting requirements for persons “engaged in the transportation of hazardous materials by railcars, vessels, or barges, or the temporary storage of hazardous materials in any storage vessel not permanently attached to the ground” if that activity is within “a parish affected, or projected to be affected, by a Category 3 or higher hurricane for which a mandatory evacuation order has been issued.”  LAC 33:V.11103.  Hazardous materials are those materials listed in 40 C.F.R. Part 355, Appendix A.  Temporary storage is defined as storage in a portable container, and excludes any storage in pipelines or any other storage vessel permanently attached to the ground.

At the present time (11 a.m, CST, August 25, 2017),  Hurricane Harvey is a Category 2 storm with maximum sustained winds of 110 mph; but, it is projected that Harvey will strengthen to a Category 3 Hurricane by the time of landfall, which is projected to occur between Corpus Christi and Houston, Texas, late evening on August 25, 2017.  It is also projected that the hurricane will affect southwest and south central Louisiana parishes.  In fact, the Governor of Louisiana has issued an executive order that puts the entire State of Louisiana under a declaration of emergency.  Yesterday evening, Cameron Parish entered a mandatory evacuation order for all areas of the parish south of the Intracoastal Waterway, effective at 6 a.m., CST, August 25, 2017.   We are not aware of any mandatory evacuation orders for any other Louisiana parishes at this time.  The following is a link to all parish emergency response offices which will provide contact information to inquire about any orders issued: http://gohsep.la.gov/about/parishpa.

If a mandatory evacuation order is issued for any Louisiana parishes due to a Class 3 or higher category hurricane, the rules (LAC 33:V.11105) require the following:

  • Notification shall be given to the DPS, via electronic submittal, to the 24-hour Louisiana Emergency Hazardous Materials Hotline email address at emergency@la.gov within 12 hours of a mandatory evacuation order issued by the proper parish authorities.
  • For persons engaged in the transportation activities noted above, the report must include the following information:
    • the exact nature of, and the type, location, and relative fullness of the container (i.e., full, half-full, or empty) of all hazardous materials that are located within a parish subject to the evacuation order;
    • the primary and secondary contact person’s phone, e-mail, and fax number; and
    • whether the facility will be sufficiently manned such that post-event assessments will be performed by company personnel (as soon as safely practicable) and that any releases and/or hazardous situations will be reported in accordance with existing Louisiana Department of Environmental Quality (LDEQ) and State Police reporting requirements.
  • For those materials that are stored, it shall be necessary to only report those hazardous materials that were not reported in the annual SARA inventory report (40 CFR Parts 312/313) and those that are in excess of what is typically stored at the facility.

In addition to the notification to the LSP, “within a reasonable period of time” persons subject to the rule “shall perform a post-event assessment of those hazardous materials that were actually present in the affected area and to what degree, if any, those materials were compromised by said event and their current condition.”  Such information must be available for review by both the LSP and the LDEQ shall have access to this information.

louisiana

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

At the very end of 2016, the Fifth Circuit Court of Appeals vacated two Occupational Safety and Health Administration (“OSHA”) citations for alleged violations of Process Safety Management (“PSM”) regulations. In that case, the Court held that OSHA was barred from issuing a citation for the failure to act on Process Hazard Analysis (“PHA”) findings/recommendations that remained open beyond the six month statute of limitations provided in 29 U.S.C.A. §658(c) of the Occupational Safety Health Act of 1970. See, Delek Ref., Ltd. v. Occupational Safety & Health Review Comm’n, 845 F.3d 170, 179 (5th Cir. 2016).

Conversely, violations of the Clean Air Act are recognized to be subject to the general federal five-year statute of limitations established by 28 U.S.C. § 2462. See Nat’l Parks & Conservation Ass’n, Inc. v. Tennessee Valley Auth., 502 F.3d 1316, 1322 (11th Cir. 2007). Consistent with this, the “duration of violation” factor under the Environmental Protection Agency (“EPA”) “Combined Enforcement Policy for Clean Air Act Sections 112(r)(1), 112(r)(7) and 40 C.F.R. Part 68 ” reaches its maximum at 60 months. At first glance, it would appear that the Delek decision might have little or no impact on RMP penalties, but that would be incorrect.

Some RMP violations are not continuing violation.

In considering PHA recommendations, the Fifth Circuit concluded:

Just as a single violation “occurr[ed]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.

Id. at 176–77.

RMP has the exact same requirements, albeit at 40 C.F.R. 68.67(e) and 40 C.F.R. 68.79(d). Aligning RMP with PSM based on Delek, no duration of violation factor should apply to violations of §68.67(e) or §68.79(d). Further, this ruling could apply to other RMP provisions that only require compliance by a particular date. For example, this case strengthens the argument that the failure to conduct a specific Management of Change (“MOC”) is a one day violation and not subject to “duration of violation” factor. Delek could similarly affect other RMP requirements.

Prior PHA’s might not be a basis of violation.

Consider the following example. A facility conducts a PHA in 2010, and a second five years later in 2015. Also assume that a recommendation from the 2010 PHA remains open seven years later in 2017. Any single violation based on the 2010 PHA is time barred five years after the facility failed to act promptly or timely. If for argument sake, prompt and timely is considered two years, the five year statute of limitation bars enforcement of the omission by 2017. Further, the EPA might have issues with citing a violation of the open issue based on the 2015 PHA as it may not yet be past the prompt or timely criteria.

Time will tell to what degree Delek will impact the existing RMP penalty policy. Regardless, it could have an impact.

refinery1a

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

At the very end of 2016, the Fifth Circuit Court of Appeals vacated two Occupational Safety and Health Administration (“OSHA”) citations against an employer that allegedly failed to timely resolve open findings and recommendations from Process Hazard Analysis (PHA). The 2008 citation related to multiple PHAs that occurred over a decade (with the last being 2005) and a 2005 compliance audit. In doing so, the Court narrowed these process safety management requirements to no more than addressing and resolving the findings in a timely manner:

Neither Section 1910.119(e)(5) nor (o)(4) mandates that the employer actually remedy the issues addressed in a PHA or audit recommendation. See 29 C.F.R. § 1910.119(e)(5), (o)(4). Subsection (e)(5) directs the employer to “address” the findings from a PHA and to “resolve[ ]” them in a timely manner. Likewise, subsection (o)(4) directs employers to “determine and document an appropriate response” to the audit compliance findings.

Delek Ref., Ltd. v. Occupational Safety & Health Review Comm’n, 845 F.3d 170, 178 (5th Cir. 2016)

This case followed AKM LLC dba Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012), where the Court concluded the obligation to create a record was a onetime event and that OSHA was barred from citing a facility six months after that record should have been created. In considering PHA recommendations, the Fifth Circuit concluded:

Just as a single violation “occurr[ed]” in Volks when the company failed to create the records within the prescribed time-period, so too a violation of subsections (e)(5) and (o)(4) “occur[s]” within the meaning of Section 658(c) when an employer does not “promptly” or “timely” do as Section 1910.119 directs.

Id. at 176–77.

OSHA’s argued that the “address and resolve” obligation was continuous and that any failure was a continuing violation. Arguably, if the violation is continuing, a violation accrues on the first non-timely day and every day thereafter. According to the holding in this case, six months after that first non-timely day, OSHA is barred from issuing a citation. So what is timely? The Fifth Circuit noted that OSHA has historically placed this timely obligation at 1 – 2 years.

The Secretary has, on at least one occasion, taken the position that a response to PHA and audit recommendations is “timely” when it is done within “one to two years.” See Secretary of Labor v. BP Prods. N. Am., Inc., 2013 WL 9850777, at *37 (OSHRC Aug. 12, 2013). We need not address this issue here, however, because the Secretary has not argued that the citations underlying Items 4 and 12 would be timely under the interpretation of Section 658(c) we now adopt, even if Section 1910.119’s references to “timely” or “prompt” action afforded an employer more than one or two years to resolve open PHA or audit recommendations.

Id. at 177.

As such, if two years is timely, a citation issued within two years of the PHA recommendation would be premature; a citation issued after two and a half years would be barred. Such will likely place OSHA in a quandary . . . in order to argue that similar PHA citations are not time barred, OSHA may need to provide more time to “address and resolve.” Even then, an action becomes barred six months after whatever OSHA defines as timely. Only a six month window exists where OSHA can issue a citation with the big question being “where does the window start?”

This decision could have a much broader effect. For example, is the failure to conduct a pre-startup review no longer citable six months after startup?

chemical_plant

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

The EPA received three petitions asking it to delay and reconsider amendments to the RMP rule. First, the “RMP Coalition” submitted a petition dated February 28, 2017. On March 13, 2017, the Chemical Safety Advocacy Group also submitted a petition, followed by a third petition from a group of eleven states. 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.

On April 3, 2017, EPA proposed to further delay the effective date of changes to the rule until February 19, 2019. 82 Fed. Reg. 16146 (Apr 3, 2017). In proposing extra time to conduct the reconsideration, the EPA determined “three months to be insufficient to complete the necessary steps in the reconsideration process.” 82 Fed. Reg. at 16148. The EPA noted that it would take time to “prepare the necessary comment solicitations to help focus commenters on issues of central relevance to [their] decision-making.” Id. Further “a separate Federal Register notice published in the near future will specifically solicit comment on the range of issues under reconsideration.” 82 Fed. Reg. at 16149.

Such a further delay would have the effect of also delaying provisions that don’t kick in until later years. “Compliance with all of the rule provisions is not required as the rule does not become effective.” Id. EPA would later “amend the compliance dates as necessary when considering future regulatory action.” Id.

Comments are due by May 19, 2017 on the proposed delay to February 19, 2019.

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.