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PT Notes

EPA RFI - Effects of PSM Coverage on RMP Applicability

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On July 24, 2014, the U.S. Environmental Protection Agency (EPA) announced a Request for Information (RFI) seeking comments on potential revisions to its Risk Management Program (RMP) regulations and related programs to modernize its regulations. Multiple issues were addressed in the RFI.

One of the issues addresses the effects on RMP applicability of a change that the Occupational Safety and Health Administration's (OSHA) may make in coverage requirements for retail facilities in the Process Safety Management (PSM) standard.

EPA's RMP rule has requirements for three different Program levels. RMP Program 2 applies to processes not eligible for Program 1 or subject to Program 3, whereas Program 3 applies to processes not eligible for Program 1 and either subject to OSHA's PSM standard under Federal or state OSHA programs or classified in one of ten specified NAICS codes.

EPA notes in the RFI that approximately 5,360 RMP facilities have reported Program 2 processes. Approximately 4,000 (75 percent) of these are bulk agricultural chemical distributors. These facilities generally store large quantities of anhydrous ammonia, as well as other agricultural chemicals, for distribution or sale. The presence of anhydrous ammonia above an RMP threshold quantity (TQ) in a process normally would make that process subject to EPA RMP Program 3 requirements, assuming it did not qualify for Program 1, as well as the OSHA PSM standard. However, these facilities generally claim that they are exempt from the OSHA PSM standard, and therefore eligible for RMP Program 2, based on the exemption in the OSHA PSM standard for retail facilities.

OSHA's RFI requested information on whether OSHA should change its enforcement policy for retail facilities. OSHA believes that only retail-trade facilities listed in NAICS sectors 44 and 45 that sell highly hazardous chemicals in small containers, packages, or allotments to the general public qualify for the retail facility exemption. If OSHA were to change its policy in this way, EPA believes that virtually every bulk agricultural chemical distribution facility process currently claiming Program 2 eligibility under the RMP regulation would henceforth be subject to Program 3, unless the process were to meet Program 1 eligibility criteria.

Of the remaining (i.e., non-agricultural) Program 2 processes, over 70 percent are water or wastewater treatment facilities located in states without Federally-delegated, state-run occupational safety and health programs. These facilities are generally not subject to OSHA PSM requirements because they are operated by state or municipal government employees, who are not subject to Federal OSHA standards in states without delegated OSHA programs. Federal OSHA regulates only private employers.

It is a peculiarity of the RMP rule that two identical RMP-covered water or wastewater treatment plants – one located in a state with a state-delegated OSHA program and the other in a state without a state-delegated OSHA program – are subject to different levels of accident prevention requirements under the RMP rule. Non-PSM-covered water and wastewater treatment facilities are not classified as Program 3, by definition.

Water and wastewater treatment facilities are covered under the RMP regulation owing to the presence of large quantities of highly toxic substances, such as chlorine and sulfur dioxide. Processes in private-industry sectors involving similar quantities of these chemicals virtually always are subject to Program 3 as a result of their risk to nearby receptors.

EPA is interested in receiving public comment on whether RMP-covered municipal water and wastewater plants that are not eligible for Program 1 should also be subject to RMP Program 3, regardless of whether or not they are located in a state with a Federally-delegated OSHA program.

Other than bulk agricultural chemical distributors and water and wastewater treatment facilities, there are fewer than 400 RMP facilities currently reporting Program 2 processes to EPA. Of these, EPA believes that approximately half are either non-agricultural bulk chemical distributors that would also become Program 3 in the event that OSHA were to restrict eligibility for its PSM retail exemption, or processes that incorrectly reported as Program 2 in their RMP (i.e. processes that are actually already subject to Program 3).

If OSHA were to restrict eligibility for its retail exemption as discussed, and EPA were to require all RMP-covered water and wastewater treatment plants not eligible for Program 1 to comply with Program 3, EPA believes that there would be approximately 200 RMP-covered processes nationwide that would remain eligible for Program 2. In light of these facts, EPA invites comment on whether it should modify Program 2 eligibility criteria, or alternatively, eliminate Program 2 and require all formerly Program 2 processes to comply with Program 3 or Program 1 requirements.

Questions posed by EPA on this issue include:

  1. Do you currently operate a facility with Program 2 covered processes? Please indicate what type of Program 2 process your facility operates. Do you implement accident prevention measures that go beyond RMP Program 2 for this process? If so, why? What additional prevention elements do you use? Do you believe Program 2 requirements are necessary for the safe operation of this process? Do you have any Program 2 processes that may be adequately managed under Program 1? Please explain the basis for your views.
  2. Do you operate a water or wastewater treatment plant that is subject to the RMP regulation? If so, what level of accident prevention requirements do you believe are warranted for such facilities? If you operate a Program 2 process at a water or wastewater treatment plant, how much additional burden would be involved in implementing the additional RMP elements required for Program 3 processes?
  3. Should RMP-covered municipal water and wastewater plants that are not eligible for Program 1 always be subject to RMP Program 3, regardless of whether or not they are located in a state with a Federally-delegated OSHA program? Why or why not?
  4. If OSHA restricts its retail exemption to facilities selling regulated substances in small containers, should EPA eliminate RMP Program level 2 entirely or, alternatively, modify Program 2 prevention elements or otherwise change the eligibility criteria for Program 2? If so, why?
  5. Would eliminating Program 2 simplify rule compliance for the regulated universe and improve human and environmental health and safety, or does the current three-tiered prevention program framework under the RMP rule provide an appropriate level of protection?
  6. What would be the economic impacts of modifying or eliminating Program 2? Are there any special circumstances involving small entities that EPA should consider with respect to modifying or eliminating Program 2?

Further details on this issue are provided in EPA's RFI which can be accessed by clicking here.

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