EPA is proposing a requirement in 40 CFR 68.67(c)(9) for some Program 3 regulated processes to consider and document the feasibility of applying safer technologies and alternatives as part of their PHA. This requirement applies to petroleum and coal products manufacturing processes (classified in NAICS code 324) and chemical manufacturing processes (NAICS code 325) that are located within 1 mile of another RMP-regulated facility with these same processes (classified in NAICS 324 and 325). EPA is also proposing that all facilities with petroleum and coal products processes (in NAICS 324) using hydrofluoric acid (HF) in an alkylation unit (approximately 45 facilities) consider safer alternatives to HF alkylation, regardless of proximity to another NAICS 324- or 325-regulated facility.
Current PHA requirements (40 CFR 68.67) under the RMP rule include some aspects of the hierarchy of controls analysis. As discussed in the proposed regulation that became the 2017 amendments rule, Program 3 processes are required to address process hazards using engineering and administrative controls since 1996. However, as EPA pointed out, owners and operators have no explicit requirement to address inherent safety—the first tier of the hierarchy of controls. EPA proposes expanding upon these requirements by requiring the owners or operators to consider safer technology and alternative risk management measures that could eliminate or reduce risk from process hazards. In addition to engineering and administrative controls, owners and operators of facilities with Program 3 processes covered under this provision would have to consider the application of the following safer technology measures, in the following order:
- inherently safer technology (IST) or inherently safer design (ISD),
- passive safeguards,
- active safeguards, and
- procedural safeguards
In this proposed regulation, EPA does not require facilities to implement identified inherent safety measures; rather, EPA is requiring owners and operators to include an evaluation, including the results of the STAA analysis, as part of the PHA requirements in 40 CFR 68.67(e), and, to document the feasibility of inherent safety measures based on more than cost alone.
Submission of STAA analysis summaries to EPA is discussed in further detail under “STAA technology transfer.” Finally, EPA is proposing that a facility’s STAA team include and document the inclusion of, one member who works in the process and has expertise in the process being evaluated. EPA is also proposing to include a more comprehensive practicability assessment and the STAA evaluation requirements as part of the PHA. As part of this analysis, owners and operators would be required to identify, evaluate, and document the practicability of implementing inherent safety measures, including documenting the practicability of publicly available safer alternatives.
EPA discussed safer technology and alternatives in its proposed RMP rule amendments published in 2016. “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act” (81 FR 13638, March 14, 2016). “Safer technology and alternatives” refers to risk reduction or risk management strategies developed through analysis using a hierarchy of process risk management strategies (or hierarchy of controls). In this context, the hierarchy of controls consists of inherent, passive, active, and procedural controls. STAA involves considering IST or ISD, which refer to strategies that permanently reduce or eliminate hazards associated with the materials and operations of a process. As discussed in EPA/OSHA’s 2015 chemical safety fact sheet, the four (4) major inherently safer strategies are:
- substitution: replacing hazardous materials with less hazardous substances
- minimization: using smaller quantities of hazardous substances
- moderation: creating less hazardous conditions or using less hazardous forms or facility designs to minimize the impact of potential releases of hazardous materials or energy, and
- simplification: designing facilities to eliminate unnecessary complexity and make operating errors less likely
The inclusion of IST/ISD in the RMP regulations is consistent with several CSB investigations that demonstrated that incidents could have been prevented or consequences mitigated by using IST/ISD. EPA solicited comments on requiring IST in the supplemental proposed RMP rule for the initial requirements under CAA 112(r)(7). “Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7)” (60 FR 13526, March 13, 1995)(1995 supplemental proposal). Prior to the 2017 final RMP amendments, however, EPA had never required RMP facilities to conduct an STAA or implement identified IST/ISD. The 2017 amendments rule added a requirement to the PHA for regulated sources in specified industrial sectors to identify and address hazards at least every 5 years. Specifically, owners or operators of facilities with Program 3 regulated processes in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) were required to conduct an STAA as part of their PHA and evaluate and document the practicability of any IST identified. The provision was intended to reduce the risk of serious accidental releases by requiring facilities in these sectors to carefully examine potentially safer technology and designs that they could implement in lieu of, or in addition to, their current technologies. EPA adopted STAA based on recommendations from CSB and other engineering experts and lessons learned from case studies and investigations of accidents. EPA identified the sectors covered by this requirement by using sector-wide accident rates. EPA believes that some of the practicability of implementation will be identified in the course of the PHA and that for many processes, owner/operators will already know if implementing a particular technology is practicable. EPA solicits comments on the industry understanding of the practicability assessment and how this might differ from the findings identified in the PHA, as well as the additional benefit of such a provision In the 2019 rule completing the process of reconsidering the 2017 rule, EPA removed the new regulatory STAA requirement on all facilities in NAICS 322, 324, and 325 that are in the RMP program. “Accidental Release Prevention Requirements: Risk Management Programs Under the CAA” (84 FR 69834, December 19, 2019) (2019 reconsideration rule), EPA analyzed accident history data in the RMP database, both nationally and in states and localities with programs that contained some or all the elements of the prevention program provisions. EPA discusses accident trends overall in Section III.C of this preamble. The analysis suggested that accident rates in jurisdictions that adopted STAA-like programs were not lower than national accident rates. Based on this assessment, EPA stated that STAA regulations would likely not be effective at reducing accidents if applied on a national scale, relative to the pre-2017 program. Instead, EPA decided to take a source-specific, compliance-driven approach, using oversight and enforcement tools to identify sources that would appear to benefit from STAA and to then seek STAA adoption at such sources.