Wednesday, January 8, 2014

EO 13650 §6(a) RFI – EPA Improvements

This is another in a series of posts addressing the recent request for information (RFI) from the EO 13650 Working Group. That RFI addressed requirements in §6(a) of the Improving Chemical Safety and Security Executive Order (EO 13650) for the Working Group to “develop options for improved chemical facility safety and security that identify improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations”. Earlier posts in the series include:

EPA Accomplishments

The RFI addresses EPA accomplishments in chemical safety regulation in two principal areas; Emergency Planning and Community Right to Know Act (EPCRA) and their Risk Management Program (RMP).

At the community level EPCRA ensures that local fire departments, the agency most likely to respond to chemical emergencies, get the needed information to properly respond to a chemical emergency. The RFI notes (pg 4): “Local fire departments receive this information and should [emphasis added] use it to understand the chemical present at facilities in their community and what to do to respond to an accident at the facility.” The EPA has no legal authority to influence or evaluate the community planning process.

The RFI also addresses the availability of the chemical safety information for the public, stating that: “Additionally, the information about chemicals in the community is made available to the public.” This is technically true, but since 9-11 this information, while available at ‘local’ EPA reading centers, is not available from the EPA on the internet. Many community activist organizations, however, have stepped in and placed the information on their web sites.

The RMP program addresses chemical process safety with the emphasis on preventing process upsets or accidents from affecting the local public. The RFI notes that: “EPA conducts chemical plant safety inspection and enforcement efforts at covered facilities based upon this rule.” It does not address, however, how frequently such inspections are actually done with the limited inspection staff available to the EPA or its allied State agencies.

Suggested Areas for Improvements

EPA has identified 7 categories of areas for improvement (pgs 4-5):

• Updating the list of regulated substances;
• Exploring options for improving coverage of reactive substances, reactivity hazards, and explosive chemical hazards;
• Expanding inspector training to include best practices and improve chemical safety beyond regulatory requirements;
• Further enhancing EPA software tools for emergency responders (e.g., the suite of software products called Computer Aided Management of Emergency Operations (CAMEO));
• Evaluating the implementation of best practices and lessons learned such as the “safety case” regulatory model to reduce risk in complex industrial processes;
• Identifying ways to use safer alternatives as mechanisms to reduce chemical risk; and
• Evaluating opportunities for increasing worker involvement and labor-management cooperation in hazard investigations.

Only one of these categories applies to the EPCRA program; the improvements to CAMEO. All of the remainder deal with RMP issues. Part of the reason for that is that Federal agencies are greatly restricted in the requirements that they can place on State and local agencies for fear of establishing ‘unfunded mandates’ that the local jurisdictions cannot afford to implement.

One area that both EPA programs fail to address is the issue of chemical ‘accidents’ caused by deliberate actions. While DHS clearly has the responsibility of preventing terrorist attacks on facilities, that responsibility does not currently extend to preventing actions by disgruntled employees or contractors. Additionally, the response to or mitigation of the consequences of chemical releases from such incidents is not within the area of expertise found within DHS. The extent of the area affected by a deliberate release can be much greater than the current ‘worst case scenario’ planning required under EPCRA.

Some Suggestions

While the CSB has been calling for EPA to cover reactive chemical hazards for more than a decade now, there is no clear consensus of how the agency is supposed to define such potential hazards, much less regulate them. Probably the most hazardous of these reactions, as a general class, are the self-accelerating decomposition reactions (SADR). If EPA were to initially restrict itself to requiring chemical manufacturing facilities to identify potential SADR reactions and methods to limit reaching the critical process upsets (usually temperature) that start such reactions, it will have gone a long way to reducing community risk from reactivity hazards.

The biggest potential improvement to EPCRA (short or regulating the planning activities of State and local agencies which clearly will not happen) would be to have an active requirement for covered facilities to document response drill activities that include local emergency response personnel. That way the regulatory onus will be placed on the facilities that EPA can regulate.

To get around the problem of a too small inspection force (Congressional action would be needed to significantly expand it, and Congressional action is beyond the scope of the President’s EO) the EPA could require RMP covered facilities to submit an annual report on their drill activities in support of the EPCRA drill activity I’ve described above. This would not necessarily ensure the quality of such drills, but at least an effort would be made at most covered facilities.

Public Comments

This is a reminder that the whole purpose of this RFI is to get public feedback on these proposed ideas. The RFI requests the public to respond to these specific proposals for areas of improvement. That response should address the following (pg 9):

• Examples of where implementation of the same or similar options has been successful;
• Information or data that would characterize the positive impacts the options might have, including additional benefits;
• Potential limitations or unintended consequences of the options described;
• Methods for implementing the options, including methods for potentially increasing benefits or reducing costs; or
• Alternatives to the options that could achieve substantially the same result.

Comments need to be submitted by March 31st, 2014. They may be submitted via the Federal eRulemaking Portal (; Docket #OSHA-2013-0026). This Docket is now operational.

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