EPA’s chemical plant safety proposal satisfies no one

It is usually hard to make everybody happy, but sometimes it’s just as hard to make anybody happy.

That appears to be the case with an Environmental Protection Agency proposal to overhaul a 25-year-old regulation intended to minimize chemical plant accidents, protect workers and the public, and shine light on industry practices that could lead to disaster. That regulation is called the Risk Management Program (RMP).

EPA’s proposed changes would require new measures for some of the 12,700 chemical plants and refineries covered by RMP that use any of hundreds of specific high-risk chemicals such as chlorine and phosgene.

For example, the Feb. 22 proposal would require them to consider inherently safer process designs, a concept that chemical companies have long opposed. It also would require industry to hire third-party contractors to perform independent safety audits after an incident and companies to thoroughly investigate and discover the root cause of plant accidents.

In written comments to EPA, chemical companies strongly object to the proposal, even claiming it would violate their constitutional rights. They want EPA to withdraw the plan.

Safety advocates are also criticizing the proposal, but for far different reasons. For them, EPA’s plan falls short of protecting workers and communities and has too many loopholes that would allow companies to continue business as usual. They add that even if the proposal is finalized, EPA lacks the resources to enforce the new provisions.

The impetus for EPA’s planned regulatory action is a string of highly visible fatal accidents in recent years involving chemicals.

Ironically, the proposal is based on provisions in the Clean Air Act that grew out of earlier plant accidents. In 1990 amendments to that law, Congress included RMP provisions to address community fears of chemical plant incidents after accidents at Union Carbide facilities in Bhopal, India, in 1984 and in Institute, W.Va., the following year.

EPA’s proposal responds to an August 2013 executive order from President Barack Obama, which came in response to several refinery accidents and arrived just months after an ammonium nitrate fertilizer explosion in West, Texas. The Texas accident killed 15 people, mostly firefighters who were unaware of what they faced when they ran into the burning retail farm supply warehouse. Consequently, EPA’s planned changes include new provisions intended to aid emergency responders as well as improve plant safety.

Obama’s directive called for a half-dozen federal agencies to examine their health and safety regulations. Yet over the past three years, there has been little progress on the President’s order. EPA’s proposal marks the first formal regulatory action to emerge from it.

Among key provisions, EPA would for the first time require larger regulated facilities, such as chemical plants and refineries, to consider adopting safer alternative technologies when analyzing their manufacturing processes as prescribed by RMP regulation every five years. Installation would not be mandatory, but companies would have to at least consider introducing safer alternatives, such as less hazardous substitute chemicals.

Also for the first time, companies that have accidents would have to bring in independent, third-party auditors to conduct the safety audits that are regularly required under RMP, rather than conduct audits themselves, as they do now.

If companies experience an accident—or have a near-miss, as defined in the proposal—they would be they would be required to analyze the root cause of the episode and prepare incident reports. The investigation and reports would have to consider the underlying cause that led to the accident, not just the specific immediate cause, EPA stresses in its proposal.

None of this material would be available to the public, but it could be viewed by local emergency planners and responders. The proposal also would require greater communication between emergency planners and facility owners and would call for joint on-the-ground and tabletop exercises to prepare for accidents.

EPA’s proposal would give local emergency planners new authorities, including the power to review company-supplied data. But some groups question this provision, noting that emergency planning operations have been historically underfunded and understaffed.

Several emergency planning organizations, such as the Oklahoma Hazardous Materials Emergency Response Commission, warn that they would have difficulty conducting more exercises or assessing company-supplied information without more funding. Nonetheless, the state commission applauds EPA’s recognition of the importance of emergency planning in its proposal.

The American Chemistry Council, an industry association, opposes all the proposal’s provisions with the exception of the root-cause investigation requirements. In lengthy comments, the chemical manufacturers’ group says EPA is overstepping its authority. In particular, the association says, requiring third-party audits would violate companies’ constitutional protections under the Fifth Amendment for due process if violations are found. That’s because the requirement would hand over EPA’s enforcement authority to the third party conducting the audit, ACC argues.

Overall, ACC and a host of other regulated industries say RMP is working well and call the proposal unnecessary.

Community groups, meanwhile, point to EPA figures showing that, in the past decade, some 1,500 accidents have occurred at RMP-covered facilities, causing 60 deaths, 17,000 injuries, and $2 billion in property damage.

The Coalition to Prevent Chemical Disasters, an organization of roughly 120 community and environmental organizations and labor unions, notes that EPA’s proposal would exempt 87% of facilities now covered by RMP from new requirements because they don’t use any covered chemicals in quantity large enough to trigger regulation. The coalition and other community groups want all RMP facilities included in the proposed changes, and they want all the company-generated material made public.

Sparking many provisions in EPA’s proposal were accident reports from the Chemical Safety Board. Generally, the independent investigation board’s review of the proposal is positive, but it seeks changes too. Specifically, CSB points to cases in which companies considered inherently safer technologies—and in-house engineers even recommended them—but management failed to implement the changes, and an accident resulted. The board recommends EPA toughen its planned regulatory language to require implementation to “the greatest extent feasible.”

CSB also notes that, since 2002, it has recommended that EPA add several highly reactive chemicals to its list of substances regulated under RMP. The agency has not done so in its proposal.

As a result, CSB notes, sites that handle ammonium nitrate—the reactive substance involved in the Texas accident—would continue to be exempt from RMP. CSB cited 32 similar accidents worldwide going back to 1916 in its report on the West accident. Collectively, these ammonium nitrate accidents have killed 1,477 people.

Obama’s executive order also calls for significant improvement in the Department of Labor’s process safety management regulation. This rule is directed at companies using large amounts of potentially dangerous chemicals in production processes. Like RMP, it is also 25 years old and has been criticized as ineffective and a hindrance to safety, even by the Occupational Safety & Health Administration, which implements and enforces it.

However, OSHA is far behind EPA in acting on the presidential directive. It intends to hold a meeting with small business stakeholders this month to begin to examine options. EPA held a similar meeting with small business representatives on RMP nearly a year ago. OSHA officials would not project when a proposal might emerge.

The RMP and the process safety management regulation are often seen as coupled, industry officials tell EPA. They anticipate difficulty in complying with both given that changes to OSHA’s rule have not even been proposed. Consequently, they are urging EPA to wait for OSHA to move before finalizing the RMP changes.

EPA officials say the agency intends to finalize the RMP regulation in December.

Others say this is unlikely. More likely, despite accidents and three years of discussions, meetings, and reports, any attempt at bringing the 25-year-old safety regulations into the 21st century will wait for a new President to take office in January 2017.