Here is an inside look at what EPA is considering in their revisions of their Risk Management Plan (RMP) rule. These items are ONLY being CONSIDERED and DISCUSSED and are in NO WAY concrete changes that have been agreed upon. Here are the six KEY areas currently in discussion:
- Third-party audits (applies to the next scheduled audit after an accident)*
- Incident Root Cause Analysis (only for facilities with accidents/near misses)*
- Safer Alternatives Analysis (applies to a subset of Program 3 in certain NAICS codes)*
- Coordinating Emergency Response Program Requirements with Local Responders
- Emergency Response Exercises for Program 2 and 3 processes*
- Information Sharing for all program levels*
*New Proposed Requirement
1) Third-party audits (applies to the next scheduled audit after an accident)
Current Requirements:
Facility owners/operators that have Program 2 or 3 processes MUST perform compliance audit(s) every three years.
Issue to Address:
Self-auditing may be insufficient to ensure compliance with RMP requirements and promote safe stationary source operation and accident prevention.
- Chemical Safety Board (CSB) and EPA have identified a lack of rigorous compliance audits which failed to identify key safety deficiencies as a contributing factor in several accidents (i.e., BP Texas City refinery and Citgo Corpus Christi refinery).
- Third-party audits are required by other federal programs to ensure safe operations. For example, the Bureau of Safety and Environmental Enforcement (BSEE) promulgated revisions to their Safety and Environmental Management Systems (SEMS II) requirements, following the BP Deepwater Horizon spill, to ensure the safe operations of offshore oil and natural gas drilling and production facilities.
- Industry recognizes the benefits of third-party auditing programs and has established programs and standards for third-party audits for many facilities subject to the RMP rule. Some industry groups, such as SOCMA and the Center for Offshore Safety (COS), require certain types of third-party audits for their members.
- Research shows that without sufficient safeguards to ensure auditor independence, auditors are more likely to provide lenient or biased audit reports that can fail to accurately identify problems and violations by the regulated entity.
Proposed revisions require all Program 2 and Program 3 facilities to conduct a third-party audit in lieu of a compliance audit following an RMP reportable accident. The scope of the third-party audit shall be the same as the compliance audit (i.e., audit prevention program implementation for all covered processes).
- The third-party audit shall be completed:
- within 12 months of an RMP reportable accident, OR
- within 3 years of completion of the previous compliance audit, whichever is sooner.
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- Note: This audit and its schedule are independent of the incident investigation requirement and its schedule.
Criteria and standards for third-party auditor competence include:
- knowledgeable with the requirements of the RMP Prevention program requirements;
- experienced with the facility type and processes being audited and the applicable recognized and generally accepted good engineering practices (RAGAGEP);
- trained or certified in proper auditing techniques; AND
- be a licensed Professional Engineer (PE), or include a licensed PE on the audit team.Independence and impartiality requirements for third party auditors and audit teams include:
- Acting impartially when performing all third-party audit activities;
- Receiving NO financial benefit from the outcome of the audit, apart from payment for auditing services;
- Not having conducted past research, development, design, construction services, or consulting* for the owner or operator within the last 3 years (including any “associated” third-party auditors);
- Not providing other business or consulting services to the owner or operator, including advice or assistance to implement the findings or recommendations in an audit report, for a period of at least 3 years following submission of the final audit report;
- Ensuring all personnel involved on the audit team sign and date a conflict of interest statement certify that the audit followed the requirements of the rule and contains not false statements; and
- Ensuring ALL personnel involved in the audit do NOT accept future employment* with the owner or operator of the facility for a period of at least 3 years following submission of the final audit report.
- Examples of independence and impartiality requirements:
| MEETS | DOES NOT MEET |
|
Auditor who has audited otherfacilities owned by parent company |
Retired employee who participated in a corporate retirement plan |
| Representative on Board of Directors for a consultant firm | |
| Qualified auditors who are associated with the company |
Q&A
Will auditors who meet these requirements be available and is there data on the pool of auditors that may be available?
It is not expected that a lot of facilities will need to hire an independent auditor since the requirement only applies after a reportable accident occurs. There are firms that do process safety auditing but there is not a database or number of auditors available. EPA will take comment regarding providing additional flexibility in the criteria if an auditor who meets the criteria cannot be found.
Can EPA set up an industry sharing option (like OSHA’s VPP auditors that use qualified personnel from other facilities or from a different plant) instead of 3rd party for-profit auditing firms?
EPA will not be establishing an industry sharing program for third-party auditors. EPA would not be opposed to industry organizing such a sharing option among themselves.
Can EPA provide a training program for internal or external auditor to become certified?
EPA will not be establishing a certification program for third-party auditors.
Will EPA consider other options for third-party compliance audits?
EPA will be taking comments on all the options proposed, including the independence and competence criteria and whether these need to be further defined or more flexible or adjusted for maximum auditing effectiveness and efficiency (including a timeframe for independence criteria).
2) Incident Investigations & Root Cause Analysis
Current Requirements:
Facility owners/operators of Program 2 and Program 3 processes MUST conduct incident investigations following an incident that resulted in or could have resulted in a catastrophic release (includes a “near miss”).
Issue to Address:
Strengthening incident investigation requirements to identify the underlying reasons for a chemical accident which would lead to preventing future accidents and ensuring compliance.
- Eliminates the risk of reoccurrence of a particular accident and similar accidents that could result from the same system-wide root causes
- Current catastrophic release definition (includes a “near miss”) not well defined and misinterpreted.
- CSB, industry good safety practices/guidance, EPA and state and local programs have all cited support for root cause investigations
Proposed Revisions:
- Propose revisions to “catastrophic release” definition to be consistent with reportable accidental release, (i.e. an accident with deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage)
- Applies to a catastrophic release (i.e., an RMP reportable accident) or an incident that could reasonably have resulted in a catastrophic release (i.e. a near miss)
- As part of incident investigation , the owner or operator MUST complete a root cause investigation (i.e. identify the fundamental reasons why an incident occurred and the correctable failures in management systems).
- EPA would propose to define “root cause” as a fundamental, underlying, system-related reason why an incident occurred that identifies a correctable failure(s) in management systems.
- A report MUST be completed within 12 months (unless extension approved, in writing, by implementing agency)
- Investigation report would include:
- Date, time, location of incident;
- Date investigation began;
- Incident description in chronological order with relevant facts;
- Regulated substance involved, duration of event;
- Consequences, if any, of event (i.e., death, injuries, # evacuated, # sheltered in place, environmental damage);
- Emergency response actions taken;
- Initiating event, direct and indirect contributing factors, and root causes;
- Root causes shall be determined by conducting an analysis for each incident using a recognized method
- Can use any recognized method or approach.
- Many are explained in CCPS’ Guidelines for Investigating Chemical Process Incidents.
- Examples include logic trees, causal factor charting, checklists, root cause trees
- Recommendations and a schedule for addressing them
- No requirement to submit report to EPA, however, facility MUST keep reports for 5 years.
- EPA expects that corrective actions from investigation should be addressed in a reasonable time frame and will, as it does in enforcing all other existing requirements, use enforcement discretion to determine if the facility was implementing recommendations in a timely manner.
Rule currently requires incident investigations for near misses:
§68.60(a) The owner or operator shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release.
§68.81(a) The owner or operator shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release of a regulated substance.
EPA is proposing to add the term “near miss” to mean incidents which could reasonably have resulted in a catastrophic release. Examples include:
- Events or unsafe situations that under slightly different circumstances could have resulted in a catastrophic release or had reasonable potential to escalate
- Runaway reactions, fires, explosions, or vapor cloud releases that did not result in impacts
- Some process upsets, such as:
- Excursions of process parameters beyond pre-established critical control limits;
- Activation of layers of protection such as relief valves, interlocks, rupture discs, blowdown systems, halon systems, vapor release alarms, and fixed vapor spray systems; and
- Activation of emergency shutdowns.
EPA will coordinate with OSHA and other agencies as appropriate on explaining the term “near-miss” by continuing staff-level collaboration during rule development and the interagency review process.
3) Safer Alternatives Analysis (applies to a subset of Program 3 in certain NAICS codes)
Current Requirements:
Facility owners/operators of Program 3 processes at facilities in NAICS codes 322 (paper manufacturing), 324 (petroleum & coal products manufacturing), and 325 (chemical manufacturing) MUST develop a PHA to identify, evaluate, and control process hazards involving regulated substances.
Issue to Address:
Many RFI comments urged EPA to incorporate safer technologies into the Risk Management Program to prevent or minimize the effects of chemical accidents
- Center for Chemical Process Safety (CCPS) guidelines support the use of safer technologies to improve chemical safety and reduce risk of chemical accidents
- Various CSB investigations and EPA inspections have indicated that incorporating IST measures could have prevented serious accidents
- Inherently safer technologies are more robust and reliable measures and should be used, if feasible, to improve safety
- There are many opportunities for making processes safer and should be seriously considered
- Advances in IST and safer alternatives
- Adopted by some state and local governments
- Adopted by some companies
- Strengthening PHA requirements to incorporate the full hierarchy of hazard controls could prevent or minimize the effects of chemical accidents on the local communities, the environment, and consumers as well as employees at the facility.
- Proposed Revisions would apply to Pprogram 3 facilities in NAICS codes
- 322 (paper manufacturing),
- 324 (petroleum & coal products manufacturing), and
- 325 (chemical manufacturing)
- Requires owner/operator to analyze, as part of PHA, potential safer technologies, and alternatives.
- Consider, in the following order of preference, inherently safer technology or design, passive measures, active measures, and procedural measures.
- A combination of risk management measures may be used to achieve the desired risk reduction.
- Inherently safer technologies are those measures that reduce or eliminate the hazards and include minimization, substitution of less hazardous chemical, moderation of the process, and simplification of the process/procedures.
- Determine the feasibility of inherently safer technologies and designs considered.
- The PHA would include a description of how the analysis was done, findings and recommendations, and this information should be documented and retained at the facility.
- EPA is not specifying a prescribed level of risk reduction and analysis can be done using existing PHA methods (currently in regulations) or other recognized methods for analyzing safer technology and alternatives.
- EPA would propose to define feasible to mean:
- Capable of being successfully accomplished within a reasonable time, accounting for economic, environmental, legal, social, and technological factors.
- Owner/operator would not be required to implement any prescribed technology, however, EPA is taking comment on whether implementation should be required.
4) Emergency Response Local Coordination
Current Requirements:
Facilities with Program 2 and Program 3 processes MUST develop an emergency response program, except when the community emergency response plan addresses toxic substances at the facility, or owner/operator has coordinated response actions for flammable substances with local fire department.
Issues to Address:
States and locals have indicated that some RMP facilities have NOT adequately coordinated with Local Emergency Planning Committees (LEPCs) and local emergency responders.
- CSB accident investigations have identified poor coordination between RMP facilities and local responders
- Provisions intended to clarify existing RMP coordination requirement and supplement existing EPCRA requirements for local emergency planning
- EPCRA requires LEPC to develop local emergency plan
- RMP requires regulated facilities to coordinate with local responders and if necessary develop facility emergency response program & plan
Proposed revisions require facilities to:
- Coordinate ANNUALLY with the LEPC/emergency responders and ensure response capabilities exist
- Document coordination with:
- names & contact information for individual(s) involved,
- dates of coordination, and
- any conclusions/next steps.
- LEPC/emergency responders can request facility prepared emergency response program [Note: EPA will take comment on whether procedures are needed to ensure that the request from the LEPC is reasonable and what criteria should be considered in those procedures. ]
Q&A
What is “coordination”?
Facility and local responders meet & discuss response needs, capabilities, and roles:
- Determine resources needed to appropriately respond to regulated substance releases at facility
- Determine resources available from facility & local responders
- Identify capability gaps and develop plans to address
- Decide whether facility or local responders will respond to releases of regulated substances
- Assign response action roles and responsibilities
What are the outcomes of “coordination”?
- “Non-responding” source – coordination indicates that local public response capabilities are adequate to respond, appropriate notification mechanisms are in place, and local authorities have not requested that owner develop ER program
- “Responding” source – outcome of coordination indicates that local public response capabilities are not adequate to respond, or local authorities request that owner develop ER program. As a result, facility MUST develop an emergency response program according to Section 68.95 and respond to accidental releases of regulated substances at the facility.
What if LEPC is not active?
The facility should coordinate with available local emergency responders (e.g., fire department) which meet the requirements for this proposal.
Can a facility use external responders other than local public responders?
Yes, RMP facilities may meet their emergency response program obligations using response contractors, mutual aid agreements, etc.
5) Emergency Response Exercises
Current Requirements:
NO RMP requirement for facilities to exercise their emergency response program or plan.
Issues to Address:
CSB accident investigations indicate that poor emergency response planning and execution by RMP facility owners/operators has increased the severity of accidents. Requiring exercises are likely to improve emergency response by facilities and community responders and reduce the consequences of an accident on the community.
Proposed Revisions Applies to all Pprogram 2 and Program 3 processes:
- REQUIRE facilities to TEST their emergency response program through notification, tabletop, and field exercises
- REQUIRE “responding” and “non-responding” facilities to conduct ANNUAL notification exercise
- REQUIRE “responding” facilities to conduct field exercise every FIVE (5) years and tabletop exercise ANNUALLY in interim years and invite local responders to participate
Field exercise scope:
- test procedures for notification, evacuation, medical treatment, communications systems, emergency response personnel mobilization (including contractors, if appropriate), coordination with local responders, equipment deployment, and other actions identified in ER program as appropriate
Tabletop exercise scope:
- same as field exercise without actual mobilization of personnel & equipment.
Emergency Response Exercises – Documentation Requirements
- Prepare exercise evaluation report within 90 days of each exercise.
- Report to include:
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- Description of exercise scenario
- Names and organizations of participants
- Evaluation of exercise results including lessons learned
- Recommendations for improvement or revisions to exercise program
- Schedule to promptly address and resolve recommendations
5) Information Sharing
Current Requirements:
Facility RMP MUST be made available to the public and LEPC/first responders (data restrictions apply based on security concerns).
Issue to Address:
- LEPCs, first responders, and members of the public have indicated that Chemical facility information and data-sharing efforts, at the local level, needs significant improvement
- Improve access and understanding,
- Ensure greater transparency without compromising security
- LEPCs and first responders need access to the most relevant and actionable chemical hazard and risk information for their needs, in a user-friendly format, to better support planning and preparedness efforts
- Community residents and organizations need basic information regarding chemical risks at facilities, presented in a clear and consistent manner
Proposed revisions ADD NEW disclosure elements for all facilities:
- To LEPCs and responders
- To general public
- Public meetings
The information should be conveyed WITHOUT revealing CBI or trade secret information.
Any summary information should adequately explain the findings, results, or analysis being provided while avoiding technical jargon.
Information Sharing – LEPC
- Provide summaries of chemical hazard information:
- Information on regulated substances-names and quantities of regulated substances held in a process
- Five-year accident history information (reported under §68.42)
- Compliance audits
- Summary information would include:
- Date of the report;
- Name and contact information of auditor and facility contact person;
- Brief description of the findings and how those findings are being addressed; and
- Schedule for addressing each of the findings, as applicable.
- Summary information would include:
- Incident investigation reports (with root cause findings)
- Summary information would include:
- Description of the incident and events leading up to it, including a timeline;
- Brief description of the process involved;
- Names and contact information of personnel on the investigation team;
- Direct, contributing, and root causes of the incident;
- On-site and offsite impacts;
- Emergency response actions were taken; and
- Recommendations; and schedule for implementing recommendations, as applicable.
- Summary information would include:
IST implemented or planned to be implemented, if applicable
Note: facilities are NOT required to implement IST; however, if they do, it is useful information for LEPCs/first responders to have in their local emergency planning efforts
Summary information would include:
- The RMP process ID and process description, if provided, of the process affected;
- Brief description of the IST or ISD and which IST/ISD type of measure best characterizes it: minimization, substitution, moderation or simplification;
- Name of the RMP regulated substance(s) whose hazard, potential exposure or risk was or will be reduced as a result of the implementation and whether the substance is listed as a toxic or flammable. If the chemicals affected are a mixture of flammables, the name “flammable mixture” may be used rather than the individual flammable substance names; and
- Date of implementation or planned implementation.
- Drill/exercise reports
- Summary information would include information on emergency response exercises required under §68.96, including:
- Schedules for upcoming exercises and
- Reports for completed exercises as described in §68.96(b)(3).
- Provide chemical hazard information:
- Regulated substances information. Names and quantities of regulated substances held in a process.
- Safety data sheets (SDS) for all regulated substances located at the facility.
- Five-year accident history information (reported under §68.42)
- Emergency response program.
- Summary information would include:
- Whether the source is a responding stationary source or a non-responding stationary source;
- Name, organizational affiliation, phone number, and e-mail address of local emergency response organizations with which the owner or operator last coordinated emergency response efforts; and
- For “responding stationary sources,” procedures for informing the public and local emergency response agencies about accidental releases;
- Exercises, Summary information would include information on emergency response exercises required under §68.96, including:
- Schedules for upcoming exercises,
- Reports for completed exercises as described in §68.96(b)(3), and
- Any other related information.
- LEPC contact information, including:
- LEPC name,
- phone number,
- web address, and
- email addresses of LEPC contacts, as available.
- Summary information would include:
Provide information in an easily accessible manner. This includes a format for scientific terms and ideas. Any of the examples below will meet this requirement.
Examples include:
- Posting on a company website,
- Posting on public file sharing website,
- Posting on social media website, or
- Placing a file at a public library or local government office.
Q&A
What is an easy format for scientific terms and ideas?
EPA means an easily accessible format (see the previous slide).
Why share this information with the public?
- To improve the public’s awareness of risks to the community and to know what actions to take in the event of an accidental release,
- To provide assurance to the community that the facility is adequately prepared to properly handle a chemical emergency should it arise,
- To avoid unnecessary public alarm when exercises are conducted.
NOTE: The proposed provisions would not alter the amount of information shared with the public.
What about security?
Facility owners or operators should not disclose classified, sensitive, or confidential information. Information classified by the Department of Defense or other Federal agencies or contractors of such agencies MUST be controlled in accordance with applicable laws concerning the release of classified information. Sensitive information refers to offsite consequence analysis (OCA) information. The proposed rule will require that OCA information be controlled in accordance with the requirements of 40 CFR Part 1400 (existing regulations governing RMP OCA information, which were published in 2000). Confidential information means confidential business information (CBI), and the proposed rule will contain specific instructions for control of CBI in submissions to LEPCs and in information available to the public. Control of CBI is not a new requirement, as the existing rule already contained instructions relating to submission of CBI within an RMP.
How frequently are public meetings to be held?
Public meetings are to be held every 5 years or 30 days after an RMP reportable accident. (EPA is taking comment on this timeframe)
Why require public meetings?
To discuss the chemical hazard information that would be provided to the public. Public meetings can provide opportunities for facilities to engage the public to address concerns and explain how facilities address risks and prevent accidents.
Why require public meetings 30 days after an RMP reportable accident?
To share appropriate information about the accident with the local community, and Describe the actions taken to prevent a reoccurrence
When and where should public meetings be held?
Meetings can be held just about anywhere that space is available. Local public libraries, fire stations, city halls, and other public venues may allow space to be used for free. If multiple facilities want to hold their public meetings together, that is also acceptable, as long as all the pertinent information is relayed to the public. Public meetings can be held in concurrence with a regularly scheduled LEPC meeting that is open to the public.
How should an owner or operator notify the public about a meeting?
Methods of notifying the public about a public meeting can include:
- Publishing a notice in a local paper,
- Social media, and/or
- Fliers in public places, like the local library.