In the next round of a years-long game of regulatory ping-pong — with potentially catastrophic consequences — the Environmental Protection Agency has issued a proposed revised Risk Management Program (RMP) regulation that is intended to improve the safety of the nation’s chemical facilities. The regulation would restore and enhance many of the provisions of a 2017 Obama RMP regulation that was rescinded and then followed in 2019 by a weak, hollowed-out, industry-friendly revision authored by the Trump administration.
Better protections are urgently needed. Genna Reed, Director of Policy Analysis for the Union of Concerned Scientists, describes the extent of the problem that this regulation is attempting to address:
The EPA estimates that approximately 150 serious accidents occur at regulated industrial facilities every year, resulting in deaths, serious injuries, evacuations, and other related physical and mental health harms. The Coalition to Prevent Chemical Disasters, of which UCS is a member, maintains a running count of chemical releases, fires and explosions that endanger and harm workers and communities in the US: since April 2020 there have been more than 600. In just ten years, there have been over 1,500 reported chemical releases or explosions at facilities regulated under the RMP rule, causing 17,000 reported injuries and 59 reported deaths. About 177 million Americans live in the worst-case scenario zones for chemical disasters and at least one in three schoolchildren attends a school within the vulnerability zone of a hazardous facility. Black, Latinx, Indigenous, and low-income communities are more likely to live at the fenceline of RMP facilities. Not only do they already bear the greatest burden of living next to the worst-polluting facilities, they simultaneously face the looming threat of calamity.
EPA’s Risk Management Program (RMP) regulation, originally issued in 1992, is designed to protect communities surrounding chemical facilities from harmful explosions and chemical releases. The current rule will apply to 12,000 facilities across the country that contain highly hazardous substances. RMP requires chemical operators to develop plans for responding to a worst-case incident such as a major fire, explosion or uncontrolled release that might spread hazardous chemicals into the surrounding community.
In just ten years, there have been over 1,500 reported chemical releases or explosions at facilities regulated under the RMP rule, causing 17,000 reported injuries and 59 reported deaths. About 177 million Americans live in the worst-case scenario zones for chemical disasters and at least one in three schoolchildren attends a school within the vulnerability zone of a hazardous facility.
The current proposal comes almost ten years after the catastrophic 2013 ammonium nitrate explosion at West Fertilizer that killed 15 people and wiped out part of the city of West, Texas. That tragedy and several other chemical plant incidents led to former President Barack Obama’s 2013 Executive Order on “Improving Chemical Facility Safety and Security” which directed EPA to modernize its Risk Management Program. Obama’s Executive Order also directed OSHA to update its Process Safety Management standard, a similar rule which addresses worker safety in chemical facilities. Both the RMP and the PSM standards were mandated by Congress in 1992 in response to a series of chemical plant disasters in the late 1980s and 1990s.
The current proposal contains elements that had been eliminated by the Trump administration such as safer technology and alternatives analysis, new provisions that require chemical facilities to analyze natural disaster hazards in their plans, enhance worker involvement in the development of the program, and require analysis of consequences to local communities when siting new facilities.
Where is OSHA?
Before getting into some of the details of the EPA proposal, let’s consider the Occupational Safety and Health Administration which is also supposed to be issuing a revised standard to protect the safety of chemical plant workers.
Over the 9 years since President Obama issued his Executive Order, EPA has lapped OSHA several times, issuing two final regulations and the current proposal. Meanwhile, OSHA’s progress on updating its PSM standard is barely on the playing field. OSHA put the standard on the agency’s Regulatory Agenda in 2013, conducted a Request for Information and in 2016 completed the small business review (SBREFA) process.
Over the 9 years since President Obama issued his Executive Order, EPA has lapped OSHA several times, issuing two final regulations and the current proposal. Meanwhile, OSHA’s progress on updating its PSM standard is barely on the playing field.
Since then, nothing. Trump put the revised standard on the “Long Term Agenda” — where all unwanted OSHA standards go to rot. Although the Biden administration restored the standard back onto the active Regulatory Agenda, it remains on life support almost ten year after the West tragedy. OSHA will hold a stakeholder meeting this Fall, but there is no proposed in the foreseeable future. And at this rate, it is hard to see OSHA finalizing the standard by the end of a second Biden term.
Now, I have written many, many times about how inherently slow OSHA’s regulatory process is, often taking many years or decades to issue a major standard. There are several reasons: the burdensome requirements of the Occupational Safety and Health Act, new requirements (like SBREFA) imposed by Congress, Court decisions that have significantly added to the complexity and cost of regulatory analyses, and various regulatory Executive Orders over the past 50 years.
Then there is OSHA’s critical lack of resources. OSHA’s budget, for example, is under $700 million while EPA’s budget is around $9.5 billion. Trump sliced OSHA’s standards budget by 10% in 2018 and it still hasn’t recovered to that level.
In addition, OSHA has had other priorities over the past couple of years, primarily COVID-19 and heat. Both are worthy subjects of OSHA’s attention and resources, but Congress has allocated separate funding for OSHA’s COVID activities, and heat, while vitally important, is a huge standard, barely off the starting line. (And then there’s the missing-in-action Workplace Violence standard, which was last seen on the side of a milk carton.)
OSHA has the resources to devote to move PSM forward. It is a large, expensive standard, but arguably a much higher priority to other prioritized OSHA standards like tree care and emergency response. This country has been pretty lucky over the past few years with no major chemical disasters. But that will not last forever. As I’ve told agency leadership and Congressional representatives, OSHA is going to look not only foolish, but tragically incompetent if/when the next major chemical disaster occurs and OSHA hasn’t even gotten a regulatory proposal off the ground a decade (or more) after West.,
What’s In the New EPA Proposal?
I haven’t thoroughly reviewed the new proposal yet (nor have most of the experts that I trust), but there are several features that are noteworthy. A few highlights:
Worker Participation and Stop Work Authority
While both the OSHA PSM standard and EPA’s original RMP regulation have language providing for worker participation in developing and implementing the programs in chemical plants, the language in this proposal goes much further, not only giving workers the opportunity to participate in develop of the plant’s programs, but for some more dangerous facilities — large chemicals plants and refineries — workers will have the ability to shut down operations without fear of retaliation.
The EPA proposal provides a strong rationale for beefing up worker participation:
Employees directly involved in operating and maintaining a process are most exposed to its hazards. These same employees are typically the most knowledgeable about the daily requirements for safely operating the process and maintaining process equipment; they may sometimes be the only source of process-specific knowledge—knowledge that has been gained through their unique experiences. Their direct participation and involvement in ensuring and enhancing the safety of process operations are often essential to protecting their own welfare. Such actions help keep communities safe as well. A long-standing premise of the RMP rule is that actions that promote worker safety as part of a well-designed process safety system generally help protect the public and the environment.
EPA considers these employee participation requirements to be a good basis for promoting a commitment to process safety because workers who are intimately familiar with the process, equipment operation, and possible failure modes and consequences of deviations serve as a mechanism for greater communication and understanding of specific process hazards.
Specifically, the rule would require employers “to consult with employees when making decisions on implementing recommendations from PHAs, compliance audits, and incident investigations; provide employees the opportunity to stop work under certain circumstances; and provide opportunities for employees to report late or unreported accidents and other areas of RMP non-compliance to EPA and other relevant authorities.”
Under the new rule, employees and their representatives would also have authority to:
- Refuse to perform a task when doing so could reasonably result in a catastrophic release.
- Recommend to the operator in charge of a unit that an operation or process be partially or completely shut down, in accordance with procedures established in the rule, based on the potential for a catastrophic release.
- Allow a qualified operator in charge of a unit to partially or completely shut down an operation or process.
Industry, of course, opposes stop-work authority language in the regulation, arguing that employees already have the right to refuse work based on the potential for a catastrophic release.
For more information on stop-work authority, check a recent publication from the United Steelworkers: “Bargaining for Stop Work Authority” addresses the right of workers to stop unsafe work and processes until the potential hazard is thoroughly investigated and abated to the satisfaction of workers, the union and management. The publication is intended to help local unions win effective SWA processes in collective bargaining agreements with management.
Safer Technology and Alternatives Analysis (STAA)
The debate over inherently safer technologies boils down to this: You can hope that all procedures are followed, no equipment malfunctions, and human beings never make a mistake — or you can eliminate or reduce the hazard through “inherently safer” approaches. For example, a wastewater treatment plant might get rid of their tank-cars full of chlorine, and replace them with highly concentrated bleach. Chlorine, if released into the air, creates a highly toxic gas, that can kill people if inhaled.
The proposal to require employer to consider STAA is not new, but it has been changed from the 2017 regulation — and not for the better.
According to EPA,
Inherently safer technology or design means risk management measures that minimize the use of regulated substances, substitute less hazardous substances, moderate the use of regulated substances, or simplify covered processes in order to make accidental releases less likely, or the impacts of such releases less severe.
STAA has been a very controversial topic, strongly opposed by industry. The 2017 amendments rule added a requirement to the Process Hazard Analysis (PHA) for regulated sources in specified industrial sectors. It did not require facilities to implement inherently safer technologies, but rather to identify and address hazards at least every 5 years. (A PHA is a systematic effort designed to identify and analyze hazards associated with the processing or handling of highly hazardous materials in order to help workers and employers make decisions that will improve safety.)
The current proposal would also require certain facilities to “consider and document the feasibility of applying safer technologies and alternatives as part of their Process Hazard Analysis (PHA)” and to “document the feasibility of inherent safety measures based on more than cost alone.”
This is a good thing, but unfortunately, it only applies to a small number of chemical facilities: those that use highly toxic Hydrogen Fluoride and some other facilities to that are located within one mile of another similar facility. According to EPA, that’s only 563 facilities.
The reasoning for this is rather murky and unconvincing. EPA notes correctly that residents located in the middle of a bunch of plants face higher risks than those who may live near only one plant. To that extent, this measure could be seen as an Environmental Justice initiative, providing more protection to communities in areas with densely co-located chemical plants. Or it could be seen as providing inferior protection to the communities located in the vicinity of the thousands of other chemical plants in the country that are not located near other plants.
EPA also does a back-of-the-envelope risk assessment citing chemical plant incident records from 2016-2020 as indicating that a larger number of incidents occurred in closely co-located facilities, than those that occurred in more isolated areas.
And, of course plants located close to each other could present a higher risk as a major explosion in one plant could affect a tank or process in a neighboring plant. (These are called “knock-on” events.) For example, an explosion at the First Chemical Corporation facility in Pascagoula, Mississippi, on October 13, 2002, propelled some of the debris—including one piece weighing over 6 tons—over into an adjacent refinery across the highway where it narrowly missed striking a crude oil storage tank. Scary, but it’s much more common that an explosion and resulting shrapnel impacts tanks in the originating plant regardless of whether there are other plants in the vicinity.
Another reason for the 1-mile limitation was to cut costs. The STAA analysis is the largest cost factor in this regulation.
One major problem with the EPA analysis is that major chemical plant incidents are inherently low probability (but high impact) events, making a short 4-year window impossible to determine accurate and useful accident rates. Ironically, EPA recognizes this problem in explaining the flaws in the Trump administration’s justification for rescinding STAA requirements in 2019 which used accident rates from a relatively small number of incidents to justify weakening the 2017 regulation. EPA states that instead of basing policy on a small number of incidents over short period of time, “it is more appropriate to emphasize in this rulemaking factors like the expert views of [the Chemical Safety Board] and other researchers, case studies, and EPA’s technical judgment.”
Industry associations, of course, oppose STAA, arguing that it would costly, ineffective and “some industries” already adopt inherently safer processes and technologies voluntarily.
Natural Hazard Analysis
For the first time, EPA is seriously addressing climate-related event, proposing to require operators to “include requiring hazard evaluations … to address external events such as natural hazards, including those caused by climate change or other triggering events that could lead to an accidental release.” These include not just hurricanes, tornadoes flooding and temperature extremes, but also earthquakes, landslides, tsunami, and volcanic eruptions. Mother nature is not to be trifled with when it comes to chemical plant safety.
Happily the EPA proposal recognizes that evacuating a chemical plant and then waiting for it to blow up is not a sustainable chemical plant safety program.
This addition is particularly significant as climate change accelerates. Readers may remember that during the heavy rains in the Houston area following Hurricane Harvey in 2017, the Arkema chemical plant was flooded and lost all ability to control the temperature of reactive organic peroxides. The company evacuated the plant and left the chemicals to explode as their temperatures rose. Although the surrounding area had been evacuated, several dozen police officers were sickened by the smoke from the explosions and had to be hospitalized. Happily the EPA proposal recognizes that evacuating a chemical plant and then waiting for it to blow up is not a sustainable chemical plant safety program.
EPA Wants You!
EPA’s virtual public hearings on September 26, 27, and 28 and written comments will be accepted until around the end of October, 60 days after publication in the Federal Register. You can find more information on the hearings here.