Monday, March 21, 2016

RMP NPRM: Inherently Safer Reviews

This is part of a continuing series of blog posts about the EPA’s recently published notice of proposed rulemaking (NPRM) for revisions of their Risk Management Program. Earlier posts in this series include:

IST Discussion

There is a lengthy discussion in the NPRM preamble about the use of safer technology and alternative (STAA). It defines STAA as “risk reduction strategies developed through analysis using a hierarchy of process risk management strategies (or hierarchy of controls), which consists of those which are inherent, passive, active, and procedural.” The detailed discussion addresses topics like:

EPA’s past approach to STAA;
Public input on STAA;

STAA Revision Overview

In this NPRM the EPA is only proposing to make STAA revisions to Program 3 facilities in the following North American Industrial Classification System (NAICS) sectors:

• NAICS 322 - paper manufacturing
• NAICS 324 - petroleum and coal products manufacturing; and
• NAICS 325 - chemical manufacturing;

Changes would be made to the PHA requirements in §68.67 to require analysis of potential safer technology and alternatives that would include, in the following order of preference: IST or ISD, passive measures, active measures, and procedural measures. That analysis would include a requirement to evaluate the feasibility of implementing any of the measures considered.

The EPA is not currently considering requiring facilities to implement feasible STAA measures. It notes:

“While EPA believes that sources should look for additional opportunities to increase safety, we believe that the facility owners or operators are in the best position to identify which changes are feasible to implement for their particular process.”


The NPRM would add a number of new definitions to §68.3. Those definitions would include:

Process Hazard Analysis

Changes would be made to §68.67(c) by adding sub-paragraph (8) requiring covered facilities to “address safer technology and alternative risk management measures applicable to eliminating or reducing risk from process hazards”. Included in sub-paragraph would be language to:

Specify that the analysis include, in the following order of preference: IST or design, passive measures, active measures, and procedural measures;
Determine the feasibility of the IST or ISD considered


The NPRM notes that there is already plenty of guidance in existence concerning how to evaluate STAA. These include:

• CCPS, 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2nd ed., American Institute of Chemical Engineers, CCPS New York, Wiley;
• Contra Costa Hazardous Materials Program, 2011. ISS Checklist;

Not Being Addressed in NPRM

In addition to not requiring STAA implementation in this NPRM there are two other areas related to inherently safer design that are not being addressed. They are:

The EPA is requesting comments on all three areas for potential consideration in future rulemakings.


As I have mentioned on a number of occasions IST (or now STAA) is a very complex and technical topic. Many environmental and safety advocates have taken a relatively hard line that IST (in particular substitution of ‘safer chemicals’) should be mandated by the EPA and there is a petition (mentioned above) for the EPA to do just that. Industry, on the other hand, has taken an almost equally hardline that they are already doing IST analysis and any requirement to implement IST by bureaucrats could force them out of business.

The EPA is trying to tread an interesting line between those two semi-fixed positions. In not specifically requiring implementation they have acknowledged the very real basis for industry’s concern that requiring specific process changes is well beyond the EPA’s technical expertise. On the other hand requiring industry to identify IST and conduct a feasibility analysis could end up forcing more facilities to voluntarily adopt IST for business reasons.

If a facility has a catastrophic accidental release on a process where a facility has formally identified a feasible IST that was not implemented, they should certainly expect that the EPA would require that implementation in the inevitable consent agreement that would culminate the accident investigation. More importantly, any lawyer representing injured parties from such an accident would certainly point to the company’s assessment of a ‘feasible IST’ that was not implemented as proof that the company was derelict in their duty to operate a safe facility.

If adopted, this rulemaking will certainly result in a number of facilities that will make significant process changes; most with the surprised intent to increase the profitability of the facility by lowering process and/or insurance costs. There will be some number, one would hope that it would be small, that would look at the increased potential liability of not implementing a costly IST project as a reason to shut down the facility. Many people (probably not including the displaced workers) might argue that those facilities should be shutdown.

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