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PT Notes

Amendments to EPA's RMP Rule - Employee Participation

PT Notes is a series of topical technical notes on process safety provided periodically by Primatech for your benefit. Please feel free to provide feedback.

EPA has proposed several amendments relating to prevention program provisions. This PT Note addresses additional regulatory requirements for employee participation for regulated facilities with Program 2 and Program 3 processes. EPA is specifically proposing:

  • Requiring employers with Program 3 processes to consult with employees when making decisions on implementing recommendations from process hazards analyses (PHAs), compliance audits, and incident investigations.

  • Providing employees at facilities with Program 3 processes the opportunity to stop work under certain circumstances.

  • Providing opportunities for employees at facilities with Program 2 or Program 3 processes to anonymously report unaddressed hazards that could lead to a catastrophic release, unreported RMP-reportable accidents, or any other areas of RMP non-compliance to EPA and other relevant authorities.

Further details are provided below.

EPA believes that employee participation is a key element of a company's commitment to process safety and can be critical to preventing accidents. EPA notes that employees directly involved in operating and maintaining a process are most exposed to its hazards and these same employees are typically the most knowledgeable about the daily requirements for safely operating the process and maintaining process equipment. Sometimes they may be the only source of process-specific knowledge that has been gained through their unique experiences. Thus, EPA believes that their direct participation and involvement in ensuring and enhancing the safety of process operations are often essential to protecting their own welfare.

EPA notes that employee participation helps to keep communities safe as well because many workplace hazards also threaten public receptors and most accident prevention steps taken to protect workers also protect the public and the environment. A long-standing premise of the RMP rule is that actions that promote worker safety as part of a well-designed process safety management system generally help to protect the public and the environment. 

CSB recently identified ineffective worker participation as a contributing factor to certain catastrophic accidents because workers and their representatives were not properly engaged in process operations to help identify and mitigate hazards and reduce risks. In a number of investigations, CSB found that employee participation programs were inadequate, despite the existence of Federal regulations and industry standards that require such programs. CSB concluded that workers and their representatives play a critical role in hazard identification, risk reduction, and incident prevention.

EPA notes that the existing RMP rule already requires owners or operators of regulated facilities to develop a written plan of action regarding the implementation of employee participation requirements. Owners or operators must consult with employees and their representatives about the conduct and development of PHAs and the development of the other elements of PSM and provide employees and their representatives with access to PHAs and all other information required to be developed under the rule.

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.

EPA believes that further worker involvement in process safety could help prevent and mitigate accidents. Therefore, EPA is proposing to add additional regulatory provisions to the employee participation requirements for owners and operators of regulated facilities with Program 2 and Program 3 processes. EPA is proposing these provisions so that owners and operators without strong employee participation programs will have further measures in place to ensure process safety and to prevent or minimize accidental releases of hazardous substances. EPA believes that, although process industries are aware of the value of worker participation programs, opportunities exist to strengthen these programs and requirements for RMP-regulated facilities in a way that will protect human health and the environment. 

Decisions on Recommendations

EPA notes that although employees may be involved in the development of plans and procedures, they may not be guaranteed ''a seat at the table'' when final decisions are made about process operations they are directly involved in that could threaten their health and safety. EPA realizes that practicable recommendations from hazard evaluations, incident investigations, and compliance audits that may reduce hazards at RMP facilities are not always implemented, for various reasons. The Agency believes that involving directly affected employees in these discussions and decisions will help ensure that the most effective recommendations for reducing hazards and mitigating risks to employees and the public are given the proper consideration. EPA believes that worker involvement helps determine and validate acceptable levels of risks and provides transparency when alternate decisions are made.

EPA states that the CCPS publication, Guide for Making Acute Risk Decisions, indicates that selection of members to analyze decisions, such as a PHA team, should be based on the skills needed to analyze the problem and define solutions and the level of responsibility required to authorize the decision team's recommendations. Stakeholders who may be affected by the risk decision should also be represented. These groups may include production and plant stakeholders, such as those in engineering, operations, maintenance, safety, and health, and environmental managers. Ultimately, the team composition should be appropriate to the level of risk and the complexity of the potential resolution actions.

EPA is proposing to require that the existing RMP requirement for a written plan of action include consultation of employees and their representatives on addressing, correcting, resolving, documenting, and implementing recommendations of PHAs, incident investigations, and compliance audits, at a minimum. EPA expects this would be similar to involving employees in the hazard evaluations under the RMP rule but would go a step further to offer suggestions and concerns about why a recommendation should be adopted or declined or whether other alternatives should be taken. EPA expects this would address safety concerns that threaten the lives of workers and potentially others if a major chemical accident were to occur, as well as involving workers in ensuring items are completed in a timely manner.

Stop Work Authority

EPA chose not to pursue proposing stop work regulations in the 2017 amendments rule, but is revisiting this idea to address an area that may help reduce accidents, particularly for those facilities that have not fully developed a strong prevention program. EPA states that the CSB has argued that any program that does not appropriately enable stop work authority permits risks to occur and accumulate. EPA believes that allowing process operation employees to stop work when witnessing a dangerous activity could help better protect human health and the environment.

EPA notes that the current RMP rule, although not containing explicit requirements for stop work, already addresses many aspects of a stop work authority that provides means to identify and resolve imminent operational risks before they occur. For example, operating procedures developed under the RMP rule address how and under what circumstances a facility should conduct normal and temporary operations, emergency shutdown (including the assignment of a responsible qualified operator to do so), emergency operations, and normal shutdown. Additionally, mechanical integrity requirements ensure equipment deficiencies that are outside acceptable limits are corrected in a safe and timely manner or before further use to assure safe operation.

EPA believes these components create a stop work authority as they address the circumstances and procedures to identify unsafe operations. Furthermore, EPA believes each facility's individual operating procedures and approach to correcting equipment deficiencies give owners and operators the flexibility to design a stop work authority for their process operations that remains adaptable to the procedures already in place.

Notwithstanding the existing requirements, EPA believes a better approach would be to ensure the employees of facilities are aware of authorities to manage unsafe work, one of the last lines of defense to protect human health and the environment from a catastrophic release. Therefore, EPA is proposing to require that the written plan of action regarding the implementation of the employee participation for Program 3 processes include and ensure effective methods are in place so that employees and their representatives 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 established procedures, 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, in accordance with established procedures, based on the potential for a catastrophic release.

Additionally, EPA is proposing to require that stop work authority processes within employee participation plans outline how employers should document and respond, in writing and within 30 days, to employee reports of hazards or employee recommendations to shut down or partially shut down a process.

Accident and Non-Compliance Reporting

EPA notes that accident information submitted within a risk management plan, as required by the 5-year accident history provisions in the RMP rule, includes information that could help states and EPA learn which types of sources are having problems, understand more about accident causes, track trends in chemical accidents and prevention activities, monitor the progress of risk management programs, focus future prevention activities, and avoid overregulation of industry sectors or substances. EPA notes that these important activities depend on accurate and timely information provided by accident reports. Accident history reporting provides an avenue for disseminating valuable information about potential hazards and steps needed to prevent future accidents.

Current accident reporting provisions in the RMP rule require that 5-year accident histories include all accidental releases from covered processes that resulted in deaths, injuries, and significant property damage onsite, and known offsite deaths, injuries, evacuations, sheltering in place, property damage, and environmental damage.

EPA examined RMP accident history reporting from 2004 to 2020, analyzing accidents where either the risk management plan correction date or the full risk management plan submission date was more than 6 months from the date of the accident. This analysis found a 6.7 percent late accident reporting rate (163 out of a total of 2,436 accidents). EPA states that these late submissions may prevent EPA from performing relevant inspections and requiring corrective action to prevent serious harm.

EPA is also concerned about other areas of RMP non-compliance, as compliance with the regulations helps facilities operate and maintain a safe facility and consistently implement recognized good engineering practices that prevent accidents from occurring. EPA inspections have revealed significant non-compliance and an ongoing need for additional compliance assistance to decrease the likelihood of accidents and reduce the risk to human health and the environment.

Furthermore, EPA recognizes that workers have the right to participate in implementing agency inspections and its policy sets out to ensure opportunities for the participation of workers in the Agency's investigative process.

After considering the issues of late reporting of accidents, non-reporting of other compliance issues, and the role workers could play in promoting compliance, EPA is proposing to require that facilities with Program 2 or Program 3 processes include in their employee participation plans explicit language addressing worker participation and reporting, along with information for how to report RMP-reportable accidents or related RMP non-compliance issues. Specifically, EPA is proposing to add additional language to the RMP rule to indicate that written plans should include information for anonymously reporting unaddressed hazards that could lead to a catastrophic release, unreported RMP-reportable accidents, or any other issue of non-compliance with the RMP rule.

EPA is proposing these reporting provisions because it wants to ensure that owners and operators who have not fully developed strong employee participation programs have further measures in place to ensure their commitment to process safety in order to prevent and minimize accidental releases of hazardous substances.

EPA recognizes that workers may often overlook hazards or areas that they know are non-compliant with standards for fear that it will affect their employment. This may particularly be the case for the stop work and accident reporting provisions. Therefore, the Agency is reminding owners and operators that OSHA enforces whistleblower protections provided under various laws and regulations.

EPA is soliciting comments on the proposed amendments and has posed questions regarding them.

If you would like further information, please click here.

To comment on this PT Note, click here.

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