Chemical Facility Safety and Security Working Group Issues Report Summarizing Progress on Improving Chemical Facility Safety and Security
Lynn L. Bergeson
Bergeson & Campbell, P.C. - Washington Office
|June 10, 2014|
In April 2013, an explosion destroyed a fertilizer plant in West, Texas, killing 15. In response to this and other recent catastrophic and fatal incidents at chemical facilities, President Obama on August 1, 2013, issued Executive Order (EO) 13650 -- Improving Chemical Facility Safety and Security. The purpose of the EO is to enhance the safety and security of chemical facilities and reduce risks associated with hazardous chemicals to facility workers and operators, communities, and responders.
The EO promised a thorough review of and presaged changes to the myriad regulatory programs applicable to chemical facilities. The first detailed glimpse into the possible changes in store for the chemical industry was revealed on June 6, 2014, when the working group charged with implementing EO 13650 issued a status report on its recommendations and activities. The status report indicates that federal agencies are taking a robust evaluation of their regulatory programs for the chemical industry. There is much anticipated regulatory action detailed in the report.
EO 13650 charged several federal agencies, including the U.S. Environmental Protection Agency (EPA), the U.S. Department of Labor (DOL), and the U.S. Department of Homeland Security (DHS), to identify ways to improve the safety of chemical facilities and to prevent repeats of the recent spate of accidents. The EO specifically directed these agencies to undertake four actions: update policies, regulations, and standards to enhance safety and security in chemical facilities; work with stakeholders to identify best practices to reduce safety and security risks in the production and storage of potentially harmful chemicals; improve coordination with state, local, tribal, and territorial partners; and enhance federal agency coordination and information sharing. The EO established a Chemical Facility Safety and Security Working Group (Working Group) to oversee this effort. On June 6, 2014, the Working Group released a status report to the President, entitled Actions to Improve Chemical Facility Safety and Security - A Shared Commitment.
Summary of Status Report
The report summarizes the Working Group's progress, focusing on actions to date, findings and lessons learned, challenges, and short- and long-term priority actions. The report is a milestone, not an endpoint. While the report describes many activities the Working Group has undertaken to improve chemical facility safety and security, it also makes clear that much additional work is necessary. The federal agencies charged with implementing the EO now transition to the implementation of the recommendations in the report, an effort that likely will significantly impact the chemical industry.
The report identifies priority actions, captured in a consolidated action plan. These actions fall into five thematic areas:
- Modernizing Policies and Regulation;
- Strengthening Community Planning and Preparedness;
- Enhancing Federal Operational Coordination;
- Improving Data Management; and
- Incorporating Stakeholder Feedback and Developing Best Practices.
The report addresses the stakeholder input and actions taken by the Working Group in each of these five thematic areas. While that information is helpful, what likely will be of most interest to stakeholders is the action plan in the report detailing how federal agencies intend to revise the policies and regulations applicable to the chemical industry. The Working Group issued an exhaustive list of revisions to these policies and regulations. Many of these actions will broaden the scope of and result in additional regulatory requirements to key chemical management regulatory programs, which likely will result in significant changes to the daily operations of chemical facilities. We summarize these recommend policies and regulatory action items below.
Modernizing Policies and Regulations
Process Safety Management Standard -- The report states that the Occupational Safety and Health Administration's (OSHA) Process Safety Management (PSM) standard will be "modernized" to improve safety and enforcement. Within one year, the report promises that OSHA will take the following actions:
- Clarify confusing and misunderstood policies. This will include revising the current interpretation of the exemption for "retail facilities" to reflect accurately the original intent of the exemption. OSHA will also revise the current interpretation of chemical concentrations by the PSM standard to describe more clearly what is covered and "align with better established practices."
- Initiate a Small Business Regulatory Enforcement Fairness Act (SBREFA) to solicit small business views on updating the PSM standard.
- Clarify the PSM standard to incorporate lessons learned from enforcement, incident investigation, advancements in industry practices, root cause analysis, process safety metrics, enhanced employee involvement, third-party audits, and emergency response practices.
- Address ammonium nitrate hazards by covering reactive chemical hazards under the PSM and/or adding ammonium nitrate specifically to the PSM list of highly hazardous chemicals.
- Expand the scope of the PSM standard by adding substances or classes of substances to the PSM list of highly hazardous chemicals and provide more expedient methods for updating this list.
- Broaden the coverage and requirements for reactive chemical hazards.
- Eliminate the PSM exemption for oil and gas drilling and servicing operations.
- Continue to harmonize the PSM with EPA's Risk Management Program regulation.
- Require an analysis of safety technology and alternatives.
- Require coordination between chemical facilities and emergency responders to ensure that first responders know how to use chemical information to respond safely to accidental releases, including exercises and drills.
Risk Management Plan (RMP) Regulation -- The report states that within one year EPA will update its RMP regulation under the Clean Air Act (CAA). EPA will issue a request for information (RFI) and begin the regulatory process to modernize the RMP by strengthening or clarifying existing requirements. EPA will also consider adding new prevention and emergency response program elements to the RMP. Other actions EPA is considering include:
- Revising the mechanical integrity requirements of safety equipment.
- Adding new requirements for automated detection and monitoring systems, or adding performance measures for facilities already using these systems.
- Requiring facilities subject to the RMP to track process events and near misses and to conduct root cause analyses of them.
- Requiring employees to implement a stop work authority for employees who witness an activity that creates a threat of danger and providing clearly defined requirements to establish an ultimate authority on the facility for operational safety and decision making.
- Strengthening contractor safety requirements.
- Establishing mechanisms to implement the newest available technologies and methods.
- Requiring compliance audits be conducted by an independent auditor.
- Establishing new performance measurement and management review requirements.
- Clarifying what is required for a process hazard analysis (PHA) to be updated and revalidated, requiring revalidated PHA more frequently than every five years, and requiring certain events such as an incident to trigger PHA revalidations prior to the next scheduled revalidation.
- Clarifying emergency planning requirements to ensure effective coordination with community responders and ensuring facility personnel practice the plans.
- Enhancing disclosure of key elements of a facility's RMP and program.
- Incorporating examination of the use of safer technology alternatives into the PHA.
- Using the Acute Exposure Guideline Levels (AEGL) to recalculate RMP reporting thresholds and toxic endpoints for off-site consequence analyses.
Enhancing Ammonium Nitrate Safety and Security -- Within one year, the report states that OSHA will revise its standard for regulating ammonium nitrate storage. OSHA will update its 29 C.F.R. Section 1910.109 standard and/or regulate ammonium nitrate storage separately under its own comprehensive PSM standard. OSHA will also:
- Form an OSHA Alliance with the fertilizer industry, emergency response organizations, and other Working Group agencies to develop solutions to promote best practices for ammonium nitrate safety.
- Consider if EPA should issue complementary regulations to ensure the safe handling of ammonium nitrate.
- Promulgate a final rule to implement the Safe Handling of Ammonium Nitrate provisions in the Consolidated 2008 Appropriations Act.
- Solicit feedback through a Chemical Facility Anti-Terrorism Standards (CFATS) Advance Notice of Proposed Rulemaking (ANPR) on potential modification of the CFATS regulations to address ammonium nitrate.
- Update the Chemical Advisory: Safe Storage, Handling, and Management of Ammonium Nitrate.
Promoting Safety Technology and Alternatives -- Within one year, the Working Group will issue an alert on safer technology and alternatives and work with industries to publish examples of best practices. Before the end of fiscal year (FY) 2016, the Working Group will develop voluntary guidance to make chemical operators aware of safer technology, processes, and alternative solutions. The Working Group will then consider potential modification of RMP and/or PSM requirements to include specific safer alternatives analysis and documentation of actions taken to implement feasible alternatives.
Strengthening the CFATS Program -- The report promises that several actions to improve the CFATS program will be taken over the next year. These are:
- Soliciting public comment on an ANPR on potential updates to the list of chemicals of interest (COI) and other aspects of the CFATS regulation.
- Improving the methodology used to identify and assign risks tiers to high-risk chemical facilities.
- Coordinating chemical facility security activities and exploring ways to increase harmonization among chemical facility security regulatory programs.
- Identifying those facilities that should have submitted a CFATS Top-Screen but failed to do so.
- Working with Congress to secure long-term CFATS authorization, to streamline the CFATS enforcement process to allow DHS to close down a facility for violations, and to eliminate the exemption for water and wastewater treatment facilities.
Developing Guidance and Outreach Programs to Help Industry Understand Process Safety and Security Requirements and Best Practices -- By the end of FY 2016, the Working Group intends to take the following actions:
- Publishing an EPA alert to help improve public safety and oil and gas storage facilities where unauthorized public access has resulted in fatal incidents.
- Developing joint EPA/OSHA guidance on process safety terminology.
- Issuing a fact sheet on existing resources detailing how to conduct root cause analyses.
- Developing guidance for PSM at small businesses and storage facilities.
- Consolidating best practices for process safety and metrics from OSHA's Voluntary Protection Program (VPP) facilities.
- Consolidating best practices for process safety and metrics from OSHA's Voluntary Protection Program (VPP) facilities.
- Developing guidance for PSM at explosive facilities.
- Issuing best practice guidance for CFATS risk-based performance standards.
- Developing a comprehensive regulatory fact sheet covering EPA, OSHA, and DHS programs.
- Publishing a checklist of federal regulations in coordination with industry associations that stakeholders can use to determine regulations applicable to their facilities.
Safe Drinking Water Act Revisions -- According to the report, federal agencies will engage with state drinking water administrators to encourage them to revisit existing source water assessments, review and update existing plans using information available through the various chemical regulatory programs, and determine whether adequate warning, preparedness, and preventive measures are in place.
Increasing OSHA Penalties -- The Obama Administration will work with Congress to strengthen the Occupational Safety and Health Act's monetary and criminal penalties.
Amending the Safe Explosives Act (SEA) -- The Bureau of Alcohol, Tobacco and Firearms (ATF) will work with Congress to explore whether the SEA should be amended to require submission of security information on workers who handle explosives but are not covered by existing laws. ATF will also seek authority to conduct background checks in the same manner as currently allowed for employees. ATF will also work closely with explosives industry associations to develop best practices, procedures, and/or regulations to improve communication with fire authorities.
The regulatory actions summarized above are but one of five broad areas in which the Working Group is taking action. The report demonstrates a thorough analysis of applicable regulatory programs and promises significant changes to the scope and detail of those programs.
The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
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