The U.S. Environmental Protection Agency (EPA) has delayed the effective date of certain amendments to its Risk Management Program (RMP) rule until Feb. 19, 2019.

The RMP rule implements Section 112(r) of the 1990 Clean Air Act amendments, which requires facilities that use extremely hazardous substances to develop a risk management plan. These plans must be revised and resubmitted to the EPA every five years. The RMP rule applies to ammonia refrigeration facilities that use anhydrous ammonia above a 10,000-pound threshold level.

The amendments, which had been scheduled to take effect in March, were originally pushed back to June and have now been delayed again until 2019.

The EPA said it is delaying the effective date because it is conducting a reconsideration proceeding to review objections raised by petitioners to the final RMP amendments rule.

This most recent delay was implemented to allow the EPA to complete the reconsideration process and to consider other issues that may benefit from additional comment.

The delay applies only to amendments that were published Jan. 13 in the Federal Register, which were born out of an executive order issued by former President Barack Obama on Aug. 1, 2013. The order — (EO) 13650: Improving Chemical Facility Safety and Security — was designed to reduce risks associated with hazardous chemicals to owners and operators, workers, and communities by enhancing the safety and security of chemical facilities. Its key areas of emphasis included strengthening community planning and preparedness, enhancing federal operational coordination, improving data management, and modernizing policies and regulations.

The EPA received a petition dated Feb. 28 from the RMP Coalition requesting a reconsideration and request for stay of the amendments. The RMP Coalition consists of seven industry organizations, including the American Petroleum Institute, the Chamber of Commerce, and the National Association of Manufacturers. The coalition said the amendments contain procedural and legal flaws.

“As an agency, we need to be responsive to concerns raised by stakeholders regarding regulations, so facility owners and operators know what is expected of them,” said Scott Pruitt, U.S. EPA Administrator.

THE MOOD IN WASHINGTON

Lowell Randel, vice president, government and legal affairs, Global Cold Chain Alliance (GCCA), said regulatory review and reform is a priority for the Trump administration, and the delay in making the RMP amendments effective is a good example of the broader regulatory reform mood in Washington.

“The RMP rule seemed a bit rushed last year, and we feel there are some issues that might need to be considered further, and hopefully revised, before we get an ultimate effective date,” Randel told The NEWS. “In my estimation, this is going to give the EPA a chance to take a closer look at some of the concerns — both procedural and substantive — that have been raised. I think the EPA is going to take a hard look at it, and we may see another rulemaking before that 2019 date to consider revisions to the final rule.”

According to Randel, the provisions expected to be major topics of reconsideration include:

• Local emergency planning disclosures — “There are concerns it could make some facilities more vulnerable from a domestic security standpoint,” Randel said. “If that information should get into the wrong hands, it could be a liability.”
• Third-party audit trigger — The proposed amendments included a call for third-party audits in cases of an accidental release or facility noncompliance. Randel said this is one of the areas of greatest concern.

“There are onerous independence requirements in the final rule that we think could lead to a shortage of qualified auditors in ammonia industrial refrigeration facilities,” he said.

• Cost/benefit analysis — “An agency has a burden to demonstrate that the benefits are in proportion to the costs as they make regulatory changes,” Randel said. “So, for example, there have been concerns raised as to whether the EPA accurately and thoroughly quantified that the benefits of doing an independent, third-party audit or a root-cause analysis justify the extra costs.”

It’s important to remember that this delay only affects the amendments that were approved in January, Randel said.

“We’re encouraged by the delay and think it is the right policy step to take so those types of issues can be examined, and the final policy becomes as appropriate as possible,” he said. “However, facilities must remember that the underlying RMP stays in effect, and this delay has no bearing on those requirements. Facilities will continue to have the responsibilities they had prior to the amendments.”

STAYING THE COURSE

The implementation delay shouldn’t have a significant effect on what goes on day-to-day in ammonia refrigeration facilities, according to Scott Melton, chief of operations and training, the Ammonia Safety & Training Institute (ASTI).

“We have to keep operating safely without making our safety decisions hinge solely on regulations,” he said. “The best course of action is always to create and maintain a good safety program. Do what’s right for your facility, your people, the neighborhood, and the environment. If you’re doing those things on a regular basis, you don’t need to worry about the regulatory changes until they are finalized.”

The biggest mistake a facility could make, Melton added, would be to sit on its hands and let its safety programs lag while waiting for a final decision on the RMP amendments.

“If you take a wait-and-see approach based on the regulations, you may well be neglecting your facility and your safety plan for many months, and you’ll get burned by that,” he said.  

Gary Smith, ASTI president and co-founder, added that the delay will not stop the constructive progress occurring between industry and government.

“When you have a healthy industrial community, you have a healthy community overall, so government, public safety, and industry should all work together,” he said. “Without the support from all three, your systems weaken, and the whole community can suffer the consequences.”

Smith noted that most of the recommended changes in the executive order center on improving working relationships and sharing information between industry, government, and public safety. The controversial issues center on increasing audit requirements and emergency response joint training between industry and government.

“Let’s not make the delay on RMP differences become the reason for throwing the baby out with the bath water,” he said.

More so than the delay in the implementation of the RMP amendments, Smith said he is concerned about President Trump’s proposed elimination of funding for the chemical safety board. The board provides an in-depth analysis of catastrophic events and breaks them down into their component part, so everyone can learn from them.

“When people understand why a regulation or a requirement exists, they’re much more likely to abide by it,” he said. “The chemical safety board provides information and creates good dialogue. If it’s defunded, the industry is going to lose a really good service.”

DON’T DISCOURAGE AMMONIA’S USE

Caleb Nelson, vice president of business development, Azane Inc., said he doesn’t think anyone is going to make any changes to the way they do business until a final rule actually becomes accepted and effective.

Nelson pointed out that the GCCA expects there could be legal action taken from the industry if the EPA doesn’t reconsider or Congress doesn’t step in and rework or eliminate the amendments.

There are significant challenges with the amendments, he noted.

“One of the biggest apparent challenges is in the requirements around conducting third-party audits after reportable incidents,” Nelson said. “It will be difficult finding qualified auditors because the rule disqualifies anyone who has done business with the company within a two-year period of the audit and would inflict a ban from doing future business with the company for two years after the audit.”

It’s likely, he added, that low-charge ammonia systems that drive the charge below the 10,000-pound threshold quantity level for EPA RMP and Occupational Safety and Health Administration (OSHA) process safety management (PSM) regulations will become increasingly attractive as the burden of RMP/PSM grows heavier.

“It’s interesting to note that the final RMP rule requires an analysis of ‘safer technologies and alternatives’ to look for inherently safer technologies [ISTs],” Nelson said. “A low-charge ammonia system, and specifically one that is in an outdoor package, is a textbook IST in this context. Through the use of a low-charge IST, you would fall well below the 10,000-pound threshold quantity and not be required to adhere to any of these RMP regulations. However, an outdoor low-charge ammonia package is not practical for every facility, and I am concerned they’re making it much harder for industrial ammonia users that are already doing the right things. I’d hate to see the EPA discourage ammonia’s use for companies that are operating large systems safely and responsibly already.”   

Publication date: 8/14/2017

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