Process Safety Management

EPA

By Lee Vail

On June, 9, 2017, Scott Pruitt signed a final rule  delaying the effective date of the RMP rule until February 19, 2019. The Environmental Protection Agency” (“EPA”) stated that it had received 54,117 public comments, 54,000 of which were part of a mass mail campaign, leaving 108 submissions with unique content. A final rule is expected to be published in the Federal Resister in the near future.

A significant portion of the final rule is dedicated to authority issues: can EPA stay effectiveness during reconsideration? In response to comments, the EPA affirmed that it had authority to delay implementation as required. Specifically the EPA stated:

  • EPA notes that CAA section 112(r)(7)(A) does not contain any language limiting “as expeditiously as practicable” to an outside date (e.g., “in no case later than date X”).
  • A natural reading of the language is that the act of convening reconsideration does not, by itself, stay a rule, but the Administrator, at his discretion, may issue a stay if he has convened a process.
  • The statutory framework for a discretionary rule under CAA section 112(r)(7) differs greatly from the “highly circumscribed schedule” analyzed by the NRDC [Natural Resources Defense Council v. Reilly, 976 F.2d 36 (D.C. Cir. 1992] court. Absent an otherwise controlling provision of the CAA, CAA section 307(d) allows EPA to set reasonable effective date.

Whereas the EPA did not address substantive comments (as reconsideration is another rule making action), it did agree that sufficient issues were raised to justify reconsideration. Specifically the timing of the Bureau of Alcohol, Tabaco, Firearms and Explosives’ (“BATF”) West Fertilizer finding justifies reconsideration:

  • If the cause of the West Fertilizer explosion had been know sooner, the Agency may have possibly given greater consideration to potential security risks posed by the proposed rule amendments. All three of the petitions for reconsideration and many of the commenters discussed potential security concerns with the rule’s information disclosure requirements to LEPC and the public.

In conclusion, the effective date of the RMP revisions, published on January 13, 2017, has been delayed to February 19, 2019.

 

 

 

 

 

epa

By Lee Vail

The EPA updated its web page titled “Frequent Questions on the Final Amendments to the Risk Management Program (RMP) Rule” on Monday, June 12, 2017.  According to the revised Q&A (page 9):

  1. When does the rule become effective?
  2. The effective date of this action has been delayed to February 19, 2019.

It has generally been reported that the EPA sent the rule to the White House Office of Management & Budget (“OMB”) for a pre-publication review of the final rule. Has the EPA tipped its hand?

refinery_sunset_10212716

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

On January 13, 2017, the Environmental Protection Agency (“EPA”) published a final rule revising portions of the Risk Management Program (“RMP”) rule. On April 3, 2017, the EPA proposed to delay the effective date of the changes until February 19, 2019 to allow for a reconsideration of these changes. 82 Fed. Reg. 16146 (Apr 3, 2017). Comments were due by May 19, 2017 and the comment period is now closed. Four hundred and five (405) public comments are available on Regulations.Gov and range from a few sentences in support of a position to detailed comments. Commenters for denial often state that sufficient time and consideration was allotted in the rule making process and comments supporting the delay often focus on a flawed rule-making process that created the changes.

The current delay is set to expire on June 19, 2017 as the original stay is effective for up to three months.[1] Commenters for the delay state that time is needed to correct the apparent flaws. Comments against the delay include citation to an “expressed mandate that regulations promulgated pursuant to §112(r) have an effective date assuming compliance with RMP requirements as expeditiously as practical.” See United Steelworkers Union comments. In proposing extra time to conduct the reconsideration, the EPA suggested that “three months to be insufficient to complete the necessary steps in the reconsideration process.” 82 Fed. Reg. at 16148. In the event EPA chooses to delay all or portions of the revised rule, a central issue will be the amount of time required.

Separate and aside, the Teamsters Union has teamed up with an environmental group and filed a lawsuit alleging that the public has been denied access to emergency response plans as required by the Emergency Planning and Community Right to Know Act (“EPCRA”). In the lawsuit, New Jersey Work Environment Council (NJWEC) et al. v. State Emergency Response Commission (SERC), plaintiffs are seeking access to Emergency Response Plans (“ERP”) developed by the Local Emergency Planning Community (“LEPC”). Whereas the suit is not demanding facility ERPs, the likely source of any information at the LEPC would be facilities. The stayed rule includes provisions that the facility confirm whether the stationary source is included in the community ERP pursuant to 42 U.S.C. 11003 (see stayed rule at 40 CFR 68.180(b)(i)) and increased availability of information to the public (see stayed rule at 40 CFR 68.210). Although the information requested in the lawsuit is not identical to facility information in the stayed rule, it certainly overlaps.

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[1] Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months. Clean Air Act §307(d)(7)(B).

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.