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.