EPA’s Proposed Amendments to RMP Burdensome on Industry
“This is part of the back and forth of what the Obama Administration did, and the Trump Administration pulled back. Now the pendulum has swung back,” said Lowell Randel, director of government affairs for IIAR.
EPA has said the proposed amendments seek to improve chemical process safety and assist in planning, preparedness, and responding to RMP-reportable accidents. The agency also said the changes will improve public awareness of chemical hazards at regulated sources.
“Some of the proposed changes are reasonable and would be relatively easy to implement, but others would require significant resources to implement,” said Peter Jordan, senior principal engineer at MBD Risk Management Services Inc.
IIAR has several concerns over the amendments and is leading a coalition, providing comments and recommendations to the rule maker and highlighting stakeholders’ concerns.
COMPETING PRIORITIES
Randal noted that EPA is currently in the process of implementing the AIM Act, with the goal of phasing down the use of hydrofluorocarbons (HFCs), a common industrial refrigerant, but is also potentially discouraging the use of ammonia with its proposed rule.
“There are seemingly some competing priorities. On the one hand, they have the priority for phasing down HFCs, and in our mind, the most effective way to do that in the refrigeration sector is to have people move to natural refrigerants. That primarily is going to be ammonia,” Randel said. “At the same time, they’re looking at increasing the burdens on an ammonia facility and that is sending a conflicting message.”
In its comments to EPA, IIAR noted that ammonia, which is subject to the RMP, is the most efficient and effective alternative for facilities considering a change from HFCs. “We are concerned that placing additional burdens on facilities choosing ammonia could dissuade some companies from moving away from HFCs and moving to natural refrigerants like ammonia. We urge the agency to consider the unintended consequences the Proposed Rule may have on moving facilities away from HFCs to ammonia,” IIAR said in the comments, which were also signed by the American Frozen Food Institute, Global Cold Chain Alliance, North American Meat Institute, and Refrigerating Engineers and Technicians Association.
What’s more, IIAR is also concerned with the seemingly perpetual rulemaking related to the Risk Management Program. The industry has been subject to back-and-forth changes over the last several years, which has challenged facilities’ understanding and planning for compliance. The Occupational Safety and Health Administration is also moving forward with potential changes to Process Safety Management. Randel urged EPA and OSHA to communicate as they move forward to avoid inconsistencies that could further complicate compliance.
NATURAL HAZARDS AND POWER LOSS
One of the new additions to the proposed rule would require an evaluation of natural hazards, including those resulting from climate change, and power loss when conducting hazard reviews and process hazard analyses, and justification when hazard evaluation recommendations are not adopted. “The Biden Administration is trying to add climate change to all rulemakings. The way they are doing that with RMP is with natural hazards and the potential for power loss,” Randel said.
The proposed rule also has a requirement for pollution control or monitoring equipment to have backup or standby power systems. “This would presumably include ammonia detectors. In addition, there appears to be a requirement for perimeter monitoring with backup power,” Jordan said, adding that not many facilities have perimeter monitoring.
In its comments, IIAR noted that requiring outside “perimeter monitor technologies” would not be a worthwhile expense or result in any actionable information and should be deleted from the provision.
THIRD-PARTY AUDITS
The proposed regulation would create a third-party audit for facilities after two accidental releases within a five-year period, after one RMP-reportable accident for certain facilities, or if an inspector feels like there is a risk. “We think that is way too subjective,” Randel said.
The proposal also restricts which auditors could be used, restricting audits to only non-associated third parties, which would have a negative impact on facilities’ options. Randel said the restriction would disproportionately adversely affect businesses and facilities in remote areas because qualified “independent” auditors will be difficult to find, driving up audit costs. In its comments to EPA, IIAR wrote, “The use of any qualified auditor should be at the discretion of the facility, including those who may be associated with the company, for such audits. This approach is consistent with the performance-based nature of the regulation.” The association believes all qualified auditors, third-party or otherwise, should be allowed to conduct audits.
INFORMATION SHARING
Under the proposed rule, facilities would be required to provide chemical hazard information, names of regulated substances, accident history, and emergency response information for residents within six miles of the facility upon request as well as make it available in the language preferred by the requestor. In a fact sheet, EPA said it is “promoting environmental justice through increased availability of information.”
Randel said increasing how much and what types of information facilities must share is a concern. “These are critical infrastructure facilities and there are security concerns with providing a lot of facility-sensitive information to the general public. We feel like the proposal potentially makes some of those critical structure facilities more vulnerable,” he said. “From my perspective, we’re in a less stable world than we would all like to be in, so we don’t want to make it even easier for someone who wants to be disruptive to our critical infrastructure.”
STOP WORK PROVISIONS
Employees would have a stop work provision, enabling employees 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, and allow a qualified operator in charge of a unit to partially or completely shut down an operation or process.
“A typical refrigeration system has an emergency stop button and facilities will have procedures which authorize trained employees to use it, but it sounds like the stop work procedures goes well beyond these procedures,” Jordan said.
While employees should not be required to do something that they know is dangerous or could lead to a catastrophic release, and they should have the ability to stop action that would lead to a potentially dangerous situation, Randel said there are problems with the proposed rule. Employees need to be trained and qualified to make an informed and reasonable judgment on whether some action might lead to a release, whether catastrophic or not.
“PSM and RMP already require employees to be trained and qualified for whatever their job duties include. This provision could unintendedly encourage an employee to inappropriately refuse to perform a task that is within the scope of their assigned responsibility,” IIAR wrote in its comments.
The rule would also require an anonymous reporting mechanism, which is new. IIAR shared with EPA that anonymous reports can be very challenging and require someone to judge the validity of the report. “It is often necessary to clarify the concern in order to adequately address it. Potential exists for complaints from anonymous employees who may not fully understand the operation of the system in question or other factors,” according to IIAR’s comments. “Facilities having to address anonymous reports by misinformed persons could result in a large burden on the operation to appropriately address a complaint.”
HOT WORK PERMITS
Another new requirement of the proposed rule is that facilities retain hot work permits for five years. “Currently, there is no requirement to save hot work permits,” Jordan said. While retaining hot work permits for some period of time is helpful, IIAR believes that five years is too long and would be overly burdensome. “We recommend that a one-year retention requirement is more appropriate,” IIAR wrote in the comments.
EPA’S TIMELINE
As EPA works towards its final rule, it will consider stakeholder comments. “These are proposed changes. EPA has to go through a formal comment period, and EPA must formally respond to the comments,” Jordan said.
Randel anticipates a final rule to be published in 2023 but said facilities will have time to prepare for mandated compliance deadlines, which are generally phased in over several years. “You’ll have some time to get your systems in place,” he said.
It is early to put a cost estimate on compliance, Randel said “it is obvious that these additional burdens will have a cost to regulated facilities.”
