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PT Notes

Synopsis of EPA's Proposed Amendments to the RMP Rule

PT Notes is a series of topical technical notes on process safety provided periodically by Primatech for your benefit. Please feel free to provide feedback.

This PT Note provides a synopsis of the U.S. Environmental Protection Agency’s (EPA’s) proposed amendments to its Risk Management Program (RMP) regulation in response to Executive Order 13650.

Comments on the proposed amendments also are provided.

Future PTNotes will provide details on each of the proposed amendments.

Incident Investigation Root Cause Analysis

Key requirements:

• Require that root causes be identified rather than “factors that contributed to the incident”.
• Investigate incidents even if the process is destroyed or decommissioned following or as the result of an incident.
• Investigate near misses but let owners or operators decide what is meant by a near miss.

• Include additional information in incident investigation reports.
• Complete an incident investigation report within 12 months of an incident. For very complex incident investigations, EPA is allowing an extension of time if the implementing agency approves.
• Include information on root causes in the RMP accident history.

• These are minor changes.
• Many companies probably meet these requirements already.
• There should be a requirement to address the hierarchy of controls when developing recommendations to address the findings of incident investigations.

• Perform third-party compliance audits if there has been an accidental release meeting the five-year accident history criteria or if an implementing agency has determined there is a heightened risk for an accident based on information about the facility.
• Owners and operators must determine and document the competency, independence, and impartiality of their third-party auditors. The auditor must be a licensed Professional Engineer (PE) or the audit team must include a licensed PE. Also, auditors must be experienced with the facility type and processes being audited.
• Owners or operators must determine an appropriate response to each of the findings in the audit report, and develop and provide to the implementing agency a findings response report with a defined content as soon as possible, but no later than 90 days after receiving the final audit report.
• Owners or operators must immediately provide a copy of required documents from the findings response report, when completed, to the owner’s or operator's audit committee of the Board of Directors, or other comparable committee, if one exists.

• Third-party auditors must have written policies and procedures to ensure that all personnel comply with the competency, independence, and impartiality requirements.
• Third-party auditors must prepare and submit an audit report with a defined scope and content including a certification by the auditor or supervising audit manager. The report must include a summary of the owner’s or operator’s comments on any draft report provided by the auditor to the owner or operator and any adjustments made by the auditor.
• Third-party auditors must complete and submit an audit report within 12 months of when the third-party audit is required, or within three years of completion of the previous compliance audit, whichever is sooner.
• Third-party auditors must submit audit reports to the implementing agency at the same time, or before, it provides it to the owner or operator.
• Audit reports and related records must be retained by third-party auditors for a period of 5 years.
• Audit reports and related records cannot be claimed as attorney-client communications or as attorney work products.
• Owners or operators must implement the schedule and address deficiencies identified in the audit findings response report, and document the action taken to address each deficiency, along with the date completed.
• Owners or operators must retain defined records at the stationary source for five years.
• Owners or operators must provide draft third-party audit reports to the implementing agency upon request for reports up to five years old.

• EPA has backed off from requiring third-party auditors for all compliance audits.
• The requirement that the auditor be a PE or there be a PE on an audit team may be difficult to meet and is unnecessary to meet EPA’s stated goal of employing ethical auditors.
• Imposing a requirement that auditors must be experienced with the facility type and processes being audited is a mistake. It will lead to cognitive biases such as mindsets. Auditors should be familiar with a range of facilities and processes.
• Submission of audit reports to the implementing agency and to company audit committees of the Board of Directors are notable requirements.
• Also notable is the requirement to communicate to the implementing agency any revisions to draft audit reports based on comments from owners or operators.
• Effectively, this requirement removes part of the regulatory burden from EPA enforcing the RMP rule in the face of process safety accidents or deficient process safety programs.

• Certain owners or operators of facilities are required to conduct a safer technology and alternatives analysis (STAA) as part of process hazard analysis (PHA), and to evaluate the feasibility of any inherently safer technology (IST) or inherently safer design (ISD) identified.
• The STAA must include, in the following order of preference: IST or ISD, passive measures, active measures, and procedural measures. The owner or operator may evaluate a combination of risk management measures to reduce risk.
• Owners or operators must determine the feasibility of implementing any IST or ISD considered.

• Owners or operators must document the results of the feasibility analysis as part of the current PHA requirements, which requires the owner or operator to document actions to be taken and the resolution of recommendations.
• Owners or operators may use any available method or guidance to conduct their STAA.

• The requirement is confined to owners or operators of facilities with Program 3 regulated processes in paper manufacturing, petroleum and coal products manufacturing, and chemical manufacturing based on RMP incident rates. Including some manufacturing sectors and excluding others may be difficult to justify.
• No clear description is provided as to what a STAA entails.
• There is no current guidance available on what constitutes a STAA.
• EPA’s focus in this requirement is on the performance of an inherent safety review for which precedent and guidance exists.
• Incorporation of STAA into PHA is poor practice. It would result in an inadequate consideration of safer technology and alternatives. STAA should be performed as a separate study in advance of PHA. The hierarchy of controls should be addressed within PHA when risk reduction measures are proposed as recommendations and when they are resolved.

• Many process safety incidents have involved issues relating to stationary source siting. A case can be made that it should be EPA’s greatest concern in the RMP rule.
• All processes posing the danger of catastrophic releases should be provided with the capability to quickly and safely shut down the process.

• Non-responding facilities must confirm that adequate local public emergency response capabilities are available, notification mechanisms are in place, and the local responders have accepted the responsibility.
• Responding facilities are required to provide emergency response when local public emergency response capabilities are not adequate, or if local responders have declined to accept the responsibility.
• Owners or operators of a stationary source with a Program 2 or 3 process must coordinate at least annually, and more frequently if necessary, with local response authorities to ensure that appropriate resources and capabilities are in place to respond to an accidental release of a regulated substance.

• Owners or operators must document coordination activities with local authorities.
• Notification procedures must include notifications to Federal, Tribal, and state agencies.
• Emergency response plans must be updated at least annually, or more frequently if necessary, to incorporate recommendations and lessons learned from emergency response exercises and/or incident investigations, or other available information.

• Facilities with any Program 2 or Program 3 process are required to perform annually an exercise of the source's emergency response notification system to ensure facility personnel understand how to initiate the notification system and to test the emergency contact information to ensure it is up-to-date.
• Owners or operators must conduct an emergency response field exercise involving the simulated accidental release of a regulated substance at least once every five years and within one year of any accidental release meeting the five-year accident history criteria including tests of various aspects of the emergency response plan.
• Owners or operators must conduct annually an emergency tabletop exercise involving the simulated accidental release of a regulated substance, except during years when field exercises are conducted, including tests of various aspects of the emergency response plan.

• Owners or operators must document notification exercises and maintain a written record of each exercise conducted for a period of five years.
• Owners or operators must provide copies of the report to local response officials, and make the report available to the public.
• Facility emergency response programs should include procedures for performing appropriate notifications to Federal and state emergency response agencies, as well as the public and local emergency response agencies.
• Owners or operators must coordinate with local public emergency response officials in planning and conducting exercises, and invite local officials to participate in exercises.
• Owners or operators must evaluate each exercise and prepare a written report with defined content within 90 days of the exercise.
• Owners or operators must update the emergency exercise program at least annually, and more frequently if necessary to incorporate recommendations and lessons learned from emergency response exercises, incident investigations, or other available information.
• Owners or operators must provide schedules of exercises and copies of exercise reports to local response officials, and to make exercise reports available to the public. Exercise reports must be maintained for five years.

• The coordination requirements should prevent situations where neither regulated stationary sources nor local authorities are prepared to appropriately respond to accidental releases at the source.
• Emergency response drills or exercises are a critical aspect of an emergency response program. They were considered for inclusion in the RMP rule that was promulgated in 1996 but did not make it into the final rule. Their inclusion is overdue.
• Conducting a field exercise every five years for a single accident scenario is not likely to ensure people are ready to respond effectively to an emergency. More frequent field exercises likely would be needed.

• Owners or operators must develop summaries of specific chemical hazard information for all of their regulated processes and provide this information, upon request, to the LEPC or local emergency response officials including:
  • Names and quantities of regulated substances held in a process.
  • Accident history information.
  • Summaries of compliance audit reports.
  • Summaries of incident investigation reports.
  • Summary of the inherently safer technology or inherently safer design identified for a process.
  • Information on emergency response exercises conducted.

• Owners or operators must distribute chemical hazard information for all regulated processes to the public in an easily accessible manner specifically, as applicable:
  • Names of regulated substances held in a process above TQs.
  • Safety Data Sheets (SDSs) for all regulated substances held above TQs at the facility.
  • Facility's accident history.
  • Summary information concerning the source's emergency response compliance.
  • Summary information on emergency response exercises.
  • LEPC contact information.

• Owners or operators of a stationary source must hold a public meeting to provide required information, as well as other relevant chemical hazard information, within 30 days of any accident subject to reporting under the five-year accident history criteria.

• Owners or operators must update the LEPC/local emergency response summary information every calendar year, including all applicable information that was revised since the last submission, and provide this information upon request.
• Owners or operators must update and submit chemical hazard information every calendar year, including all applicable information that was revised since the last update.
• Facilities must report in their RMP the location or means of public access to the information to be disclosed.
• Owners or operators asserting a Confidential Business Information (CBI) claim for information requested by an LEPC or local emergency response official should submit a sanitized version to the LEPC or emergency response officials, and submit to EPA both the sanitized version and a version containing the CBI along with a substantiation of the CBI claim at the time it is asserted.
• Owners or operators asserting CBI must submit a sanitized version of the chemical hazard information to the public.

• Provision of some of the required information may be controversial. For example, the value to LEPCs of summary information on audits and inherently safer technology can be challenged.

• Revisions to the requirements for Risk Management Plans address modernization, efficiency, effectiveness, and consistency.
• Revisions to language used in the RMP rule make clarifications and technical corrections.

• The revisions are essentially routine. None is controversial.

• Compliance with emergency response coordination activities is required within one year of the effective date of the final rule.
• Up to three years is provided for the owner or operator of a non-responding stationary source to develop an emergency response program following an LEPC or equivalent's written request to do so.
• Compliance with new provisions, unless otherwise stated, is required within four years after the effective date of the final rule.
• One additional year (i.e. five years after the effective date of the final rule) is provided to correct or resubmit risk management plans to reflect new and revised data elements.

• Four years for compliance with requirements for third-party compliance audits, root cause analyses, safer technology and alternatives analysis (STAA), emergency response exercises, and the information availability provisions can be viewed as too long to address these critical items. A case could be made that compliance should be as soon as possible and no later than a specified time interval.

• Updates to the List of Regulated Substances
  • Adding other toxic or flammable substances
  • Adding high and/or low explosives
  • Adding ammonium nitrate
  • Adding reactive substances and reactivity hazards
  • Adding other categories of substances
  • Removing certain substances from the RMP list or raising their threshold quantity
  • Lowering the threshold quantity for substances currently on the list

• Additional Risk Management Program Elements
  • Measurements and Metrics
  • Management Review and Continuous Improvement
  • Process Safety Competency
  • Stop Work Authority
  • Ultimate Work Authority
  • Conduct of Operations
  • Process Safety Culture
  • Job Safety Analysis

• Recognized and generally accepted good engineering practices (RAGAGEP)
• Mechanical Integrity of Safety-Critical Equipment
• Management of Organizational Changes
• Automated Release Detection and Monitoring
• Worst-Case Release Scenario for Multiple Small Vessels
• Threshold Quantities and Off-Site Consequence Analysis Endpoints
• NAICS Codes Based on RMP Accident History Data
• Safety Case Regulatory Model

• The proposed amendments to EPA’s RMP rule are only modest changes.
• The proposed amendments likely will have minimal impact on improving process safety at facilities.
• A significant number of administrative requirements have been introduced that will burden companies.
• Many important items in EPA’s RFI are not addressed in the proposed amendments.

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