Risk Management Program

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 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.







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.


[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).

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

By Lee Vail

On March 14, 2016, Environmental Protection Agency (“EPA”) proposed changes to the RMP Rule . On December 21, 2016, the EPA disclosed its changes via a Pre-Publication Copy.

In the proposed rule, the EPA essentially agreed that the scope and trigger for post incident investigation was not universally understood or applied. The final rule includes an explicit requirement to include a “root cause” analysis “of catastrophic releases and near miss events and to have the findings of these investigations integrated into the PHA.” The EPA chose not to change the definition of catastrophic release, but instead added guidance to “clarify” which release would be considered catastrophic (including near misses) and which would not. The EPA added that incidents in nearby non-RMP regulated units could be a near miss. Incident investigations must be complete within a twelve month period.

EPA also declined to add a definition for the term “near miss,” although added the circular comment that it was “an example of an event that could reasonably have resulted in a catastrophic release.” Whereas the agency decided not to require classification for events within the five year accident report, the root cause requirement also applies to decommissioned or destroyed processes.

The EPA retained the requirement for certain facilities to conduct a safer technology and alternatives analysis (“STAA”) as part of a Process Hazard Analysis (“PHA”). The EPA revised the evaluation criteria from “feasibility” to “practicability” of any inherently safer technology (“IST”) identified. This requirement is limited to processes in NAICS 322 (e.g. paper manufacturer), 324 (e.g. petroleum refining), and 325 (e.g. chemicals manufacturer).

The revised rule retained mandatory third-party audits following an accident meeting the five-year accident history criteria or based on non-compliance with the compliance audit requirements. In the final rule, the EPA modified some of the independence requirements and eliminated the necessity that the team include a Professional Engineer. Facilities may engage a third party firm or hire a third-party individual to lead a team of employees or other non-independent individuals. EPA deleted the requirement that the auditor keep copies of records (including drafts). Audits can be conducted under attorney client privilege.

These and other changes will be further examined in future blogs. So please stay tuned.


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.

pumps and piping system inside of industrial plant at night

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

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).  At the time of this writing, the respective comment periods have closed and we are waiting to see new proposed regulations. This is the third article in a series of articles concerning these potential rulemaking actions.

Both OSHA PSM and EPA RMP rules require use of recommended and generally acceptable good engineering practices (“RAGAGEP”) in relationship to equipment construction, inspection, and testing.  See 29 C.F.R 1910.119(d)(3)(ii) and (j)(4)(ii) and 40 C.F.R 68.65(d)(2) and 68.73(d)(2).  In the RFIs, OSHA and  EPA requested comment as to whether employers or “owner or operators” (hereafter “owners”) should be required to evaluate updates to applicable RAGAGEPs.  Although many comments addressed this question, this article will compare comments from three organizations:  the United Steelworkers, the American Petroleum Institute (“API”), and the U.S. Chemical Safety Board (“CSB”).

One of the elements of PSM and RMP is “Process Safety Information” or “PSI.”  Within this element, employers or owners must document the “design codes and standards employed” in constructing the facility.  See 29 C.F.R 1910.119(d)(3)(i)(F) and 40 C.F.R 68.65(d)(1)(vi). As a general matter, buildings are constructed consistent with then existing building codes.  If you have had the pleasure of remodeling a home, you know that remodeled work may be required to meet current codes per city ordinances or state regulation.  As part of the RFI, OSHA and the EPA sought comment as to the need to require consideration of updates as part of an employer’s PSM or owner’s RMP program.

Both PSM and RMP require that the employer or owner document that equipment meets RAGAGEP.  See 1910.119(d)(3)(ii) and 68.73(d)(2).  RAGAGEP for existing equipment is typically based on the date of construction.  For existing equipment built to older codes, both programs require documentation “that the equipment is designed, maintained, inspected, tested, and operated in a safe manner.”  See 1910.119(d)(3)(iii) and 68.73(d)(3).   The question posed by OSHA and the EPA is whether facilities, presumably including unmodified facilities, should consider updated standards or codes any time a code or standard is updated.  By requiring updates to RAGAGEP, unmodified “safe” equipment could require modification or replacement to remain compliant.

Both OSHA’s RFI and the CSB’s comments discuss one accident to justify their position that updates to the standards and codes relied upon as RAGAGEP should be evaluated.  The cited incident involved a propylene explosion resulting from a release caused by a forklift that snagged a drain line.  According the CSB’s comments:

Had fireproofing material been used on the steel structure supporting the pressure relief valves and emergency vent piping, the consequences of this incident would likely have been less severe.  However, the designs for the unit were never updated to incorporate the latest RAGAGEP.  The likelihood of these types of incidents can be significantly reduced if operators are required to evaluate updates to applicable RAGAGEP after compliance with either §1910.119(d)(3)(ii) or (iii)

CSB Comments to OSHA, p. 18 (Mar. 31, 2014).  Also see, CSB Comments to the EPA, p. 23 (Oct. 28, 2014).

According to the final CSB report on the accident, the incident occurred in the Olefins II unit at a facility in Texas.[1]  The  CSB final report indicated that although the Olefins II unit was designed in 1996, it was based on a design from the mid-1980s and allegedly did not consider American Petroleum Institute (“API”) Publication 2218, “Fireproofing Practices in Petroleum Plants” (July 1988).[2]  Here the issue was a unit that was actually designed in 1996 but allegedly did not consider a standard developed eight years prior.  The CSB’s recommendation in the final report is much narrower than the question posed in the OSHA RFI or the CSB comment provided.  It stated:

Evaluate the applicability and use of current consensus safety standards when designing and constructing a chemical or petrochemical process plant.  This should include reviewing and updating earlier designs used for new facilities.[3]

The CSB’s comment in its report addresses the need to consider available RAGAGEPs at the time the unit is designed and built.  The United Steelworkers’ comments appear be more consistent with the narrower concern enunciated in the CSB’s final report:

Again, the intent was the ability to upgrade to new practices without having to rewrite the standard.  Grandfathering is not used anywhere in the standard but we often hear that as an excuse for not bringing equipment up to newer RAGAGEP qualifications when it must be replaced or modified.

United Steelworkers comments to OSHA, p. 4 (Mar. 31, 2014) (emphasis added).  In short, the Steelworkers do not appear to assert that updated RAGAGEP should be applied to unmodified equipment, but rather to equipment that is being replaced or modified.

The API comments question the need for using updated RAGAGEP on unmodified equipment. According to the API:

The issuance of an updated edition of an industry document (i.e., RAGAGEP) does not mean a previous version was necessarily unsafe because it was designed to a previous version of an industry standard at the time of installation.

API comments to OSHA, p. 9 (March 31, 2014).  Additionally, API expresses concern about the practicality of such a requirement:

Not all consensus standards are free to the public and subscriptions to all potentially applicable standards publications represent a significant cost, especially to small businesses.  In addition, the task of evaluating all standards updates would be extremely time-consuming for any sized company, and unjustifiably expensive for smaller enterprises.


The RFI seeks comments on the requirement to evaluate updates of codes and standards.  The CSB concludes that employers and owners should be required to consider updates.  This leaves open the question, can an employer evaluate or consider an update but conclude that, for whatever reason, it is not reasonable to alter their existing equipment?  This question is particularly relevant to equipment that has not been modified. Under what circumstances does the employer or owner need to modify existing and unmodified pieces of equipment?  Such ambiguity is troubling especially in view of the CSB’s comments that RAGAGEPs should “not be couched in permissive language.”  CSB comments to the EPA, p. 23 (Oct. 29, 2014).  In essence, the CSB’s comments could be read as advocating that RAGAGEPs should not allow an owner or operator to evaluate, consider, and then reject. When OSHA and the CSB say evaluate and consider, will the employer or owner have the option to stay with the status quo?  What time limits would apply to any such evaluation requirement?  What type of documentation of such consideration would be required? All of these are questions that may arise in the future rulemaking actions in these dockets.


[1] CSB Case Study,  (June 2006), found at http://www.csb.gov/assets/1/19/Formosa_Report.pdf (last visited Mar. 17, 2015).
[2] Id., at p. 8.
[3] Id., at p. 13.









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

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).  At the time of this writing, the respective comment periods have closed and we are waiting to see new proposed regulations.

Perhaps one of the more interesting issues is the atmospheric storage tank exemption from the PSM rules.  In a prior administrative decision, Secretary of Labor v. Meer Corporation (1997) (OSHRC Docket No. 95–0341), an administrative law judge ruled that PSM coverage does not extend to flammables stored in atmospheric tanks, even if the tanks are connected to a process.  OSHA, in its RFI, requested information to support a decision to clarify the rule to include atmospheric storage tanks connected to a process.  Although many comments concerning the subject were submitted to OSHA, comments from two organizations were particularly interesting and make for an interesting contrasting exercise:  the Chemical Safety Board (“CSB”) and the National Fire Protection Association (“NFPA”).

The RMP rule does not have the same atmospheric storage tank exemption, per se.  Applicability of RMP is based on having a threshold quantity of a specific substance (e.g., butane and pentane)[1] or a mixture of materials of regulated substances, if that mixture has a NFPA rating of 4.  See 40 CFR 68.115(b)(2).  An NFPA 4 rating is given to any liquid or gaseous material that is liquid while under pressure and a flash point below 73 °F and a boiling point below 100 °F.[2]  RMP also excludes naturally occurring hydrocarbons which includes condensates and crude oil.  40 C.F.R. 68.115(b)(2)(iii).  Thus many materials that are exempt under OSHA based on the atmospheric storage tank exemption are also exempt under RMP, albeit on a different basis.  Generally, flammable liquids that are stored in atmospheric storage tanks are not regulated substances under RMP.

In developing its comments, the CSB provided three brief examples of incidents involving atmospheric storage tanks: one involved an incident during maintenance of the vessel, a second involved an incident at a tank attached to a process, and the third involved an incident involving a tank connected to a ship.  Taking the “facts” as presented, the first incident appears to have involved poor maintenance practices of an out-of-service tank (disconnected from the process).  As such, neither the first or third examples involve tanks connected to or in the proximity of a process.

The second incident, as described, involved the overpressure of a tank that was connected to a process.  According to the CSB, the petroleum refinery made changes in the process without going through management of change (and therefore failed to consider the impact of the change).  Indeed, OSHA issued four “serious” citations for the PSM violations, including one concerning management of change.  Unfortunately, CSB does not explain why the addition of atmospheric tanks would have created a greater duty to comply than regulations that already existed.

When its comments are viewed in total, it is apparent that the Chemical Safety Board (“CSB”) advocates a position that goes well beyond the removal of the exemption. The crux of the CSB comments is that atmospheric storage tanks need greater regulation whether or not they are connected to or in close proximity to a process.  This conclusion can be gleaned from their examples, two of which appear to be unrelated to processes and a third in which the incident occurred in violation of existing regulations.  To wit, the CSB suggest the regulation of atmospheric tanks that are not connected to processes, such as those found in terminals and tank farms.  To emphasize this opinion, the CSB offers an alternative to the elimination of the atmospheric storage tank exemption at §1910.119(a)(1)(ii)(B): revision of the Flammable Liquids standard (§1910.106) to include PSM type elements.[3]

The CSB cites the preamble of the 1992 rule as suggesting “that the rationale for exempting [atmospheric storage tanks] described in paragraph (a)(1)(ii)(B) was that they were already regulated by OSHA’s Flammable Liquids standards (at 29 CFR §1910.106).”  CSB Comments, Docket No. OSHA-2013-0020, Mar. 31, 2014, page 1.  Although the CSB noted that the OSHA Flammable Liquid Standard was based on NFPA 30, they also state that it has been significantly revised since used as a basis for the OSHA standard.  Perhaps foremost, the CSB states that the standard was never intended to prevent or minimize consequences of catastrophic release.

The NFPA offered an interesting contrast to the comments from the CSB.  The NFPA is a nonprofit organization committed to the development of consensus standards recognized by CSB, OSHA, EPA and others.  These standards are considered recognized and generally accepted good engineering practices (“RAGAGEP”).  According to the NFPA, “the provisions for atmospheric aboveground storage tanks in NFPA 30 have not changed appreciably since the standard was issued in 1969.”  NFPA Comments, Docket No. OSHA-2013-0020, page 2.  The NFPA further concludes “that an atmospheric above ground storage tank that complies with NFPA 30 presents minimal risk of fire exposure to adjacent process, regardless of absence or presence of interconnection” and that there is no value to eliminating the atmospheric storage exemption for tanks that comply with NFPA 30.  Id. at 3.

This creates an interesting question: what compels a facility to comply with NFPA 30?  This interesting question relates to another request posed by OSHA in the RFI: should OSHA clarify the PSM standard by adding a definition of RAGAGEP? If acted upon, OSHA may end up defining NFPA 30 as a RAGAGEP.  Either way, OSHA could sustain or eliminate the above ground storage tank exemption; narrow it, as suggested by the NFPA, by exempting tanks complying with NFPA 30; or update the Flammable Liquids standard to reflect the current NFPA 30, coupled with additional PSM type analysis.

There is one final consideration not brought up in these two comments.  OSHA PSM applicability is based on having a threshold of a flammable gas or a flammable liquid in a quantity of 10,000 pounds or more at any time within a process.  See 29 C.F.R. 1910.119(a)(ii).  Although the language in the rule could be clearer, subsequent OSHA guidance clarifies that one does not aggregate the weight of flammable liquid to flammable gas to make a PSM applicability determination.[4]  Many facilities exist where the only flammable liquids on site are contained in atmospheric storage tanks.  These facilities may process a lot of flammable gas, but never have a significant inventory (i.e., 10,000 pounds of flammable gas).  If the atmospheric storage exemption is removed, many facilities will become subject to PSM, not because the risk associated with a process, but because there is an atmospheric storage tank attached to the process.  If the OSHA Flammable Liquids standard and NFPA 30 address the risk associated with such storage, some, including the NFPA, would question the added benefit of removing the exemption (as the otherwise “attached” process does not constitute a risk per OSHA’s criteria for applicability).

In conclusion, whereas some commenters believed that regulation of atmospheric tanks should be expanded and updated, most believe that an update of NFPA 30 would be beneficial.  Disagreement exists as to whether atmospheric storage tanks should be regulated under OSHA Flammable Liquid standard or PSM.  Given that atmospheric storage tanks are already regulated (under OSHA’s Flammable Liquids standard), the primary effect of removing the exemption would be to capture connected processes that would otherwise not be covered.


[1] It should be noted that hexane (C6H14) is not a RMP regulated material as a flammable liquid.  Whereas pentane has a vapor pressure of 15.57 psia (i.e., above atmospheric pressure), hexane has a vapor pressure of 4.956 psia (i.e., below atmospheric pressure) and is otherwise liquid at atmospheric pressure. Normal-hexane has a boiling point of 155.7 °F and a flash of -7 °F.  Whereas normal hexane is not a flammable mixture under RMP, it is a flammable liquid under OSHA PSM (due to the flash point being less than 100 °F).

[2] NFPA 704, Chapter 6, Table 6.2, found at https://law.resource.org/pub/us/cfr/ibr/004/nfpa.704.2007.pdf (last visited March 10, 2015).

[3] Interestingly, the American Petroleum Institute (“API”) agrees with updating 29 C.F.R 1910.106 to be consistent with NFPA 30, so long as “proposed changes undergo the typical notice and comment rulemaking process.”  See API comments, March 31, 2015, p. 13.

[4] OSHA Standard Interpretation; letter from H. Berrien Zettler, Deputy Director, Directorate of Compliance Programs, to John Anicello, Airco Gases, Interpretation number 21406, dated Feb. 15, 1994, found at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=21406 (last visited Mar. 2, 2015).




By Lee Vail

Both OSHA’s Process Safety Management (“PSM”) and EPA’s Chemical Accident Prevention regulations are regulatory programs developed to address process safety in the “Process Industry.” A “Process” is defined broadly and includes any activity that uses, stores, manufactures, handles or moves hazardous chemicals. Since the definition is broad, it includes much more than refineries and chemical plants, and unless exempt, includes any facility with an inventory of hazardous chemicals above an established threshold.

PSM, which was promulgated in 1992 under authority of the Section 304 of the Clean Air Act (“CAA”), is administrated by the Occupational Safety and Health Administration. PSM regulations are codified at 29 CFR 1910.119. In addition to other requirements, the EPA’s Chemical Accident Prevention regulations (colloquially referred to as the Risk Management Program or “RMP”) require the development of a Risk Management Plan (confusingly also abbreviated as “RMP”). RMP (the program) was promulgated in 1996 under Section 114(r) of the CAA and the Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA”) by the Environmental Protection Agency (“EPA”). RMP regulations are codified at 40 CFR Part 68. Although different regulations developed by different agencies under separate authority, these programs contain a lot of overlap.





There is only one level of PSM applicability; either you are in or out. Processes are subject to PSM if they contain the threshold amount of a Chemical found in Appendix A to the rule, or if it has more than 10,000 pounds of a flammable gas or liquid. See 29 CFR 1910.119(a). PSM applicability has five important exceptions: non-refrigerated storage of flammable liquids in atmospheric storage tanks, fuels used for workplace consumption, retail facilities, oil and gas well drilling or servicing operations, and normally unoccupied remote buildings.

A “covered process” under RMP is a process that contains more than a threshold quantity, as listed in 40 CFR 68.130, using calculation methods listed in §68.115. If a process is covered, requirements will be based on classification with one of three “program” levels. Program 3 applicability is the most demanding, the Program 2, with Program 1 being the least demanding. Applicability criteria for the three programs is found at 40 CFR 68.10.

For more information, contact Lee Vail.

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