Updated RMP Rule likely delayed until at least 2019!

I’ve delayed updating the templates that reflect the proposed EPA RMP changes for several reasons. Our patience has been well-rewarded:

The EPA has proposed to further delay the effective date to February 19, 2019. This action would allow the Agency time to consider petitions for reconsideration of this final rule and take further regulatory action, which could include proposing and finalizing a rule to revise the Risk Management Program amendments. This action would allow the Agency time to consider petitions for reconsideration of this final rule and take further regulatory action, which could include proposing and finalizing a rule to revise the Risk Management Program amendments.


Comments. Written comments must be received by May 19, 2017.

Public Hearing. The EPA will hold a public hearing on this proposed rule on April 19, 2017 in Washington, DC.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OEM-2015-0725, at http://www.regulations.gov.

As always, I’ll keep you up to date on any changes to the PSM/RMP rules AND appropriate RAGAGEP.

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Why OSHA’s Statute of Limitations doesn’t really matter in PSM/RMP

You may have recently heard a headline that OSHA is losing their right to cite you for something that happened more than six months ago. I’ve heard a disturbing amount of people tell me that this means that many PSM issues can be ignored, because – as long as they “get away” with it for six months – they are uncitable. From the vantage point of safety, this is absurd thinking. Taking such a risk, simply because you are unlikely to be caught, would be the equivalent of not wearing your seatbelt because you aren’t particularly likely to get in a car accident in any given drive. The difference is that when things go wrong in Process Safety, the results are usually far worse than the average car accident.

That said, let’s set aside SAFETY for a second, and look at where this idea comes from:

The Occupational Safety & Health Act of 1970 states in 29USC658(c) that “No citation may be issued under this section after the expiration of six months following the occurrence of any violation.”

Years ago, however, OSHA proposed and published a rule stating that “ongoing obligations” required some records to be kept longer – specifically injury and illness records. They stated, in part: “The OSH Act’s statute of limitations does not define OSHA violations, or address when violations occur, nor does the language…preclude continuing recordkeeping violations.” OSHA has actually issued several citations for items that were past the six month statute of limitations, in once case for an ongoing MOC violation that occurred over twelve years ago.

OSHA lost several court cases with this “ongoing violation” issue. The House recently passed a CRA resolution to throw out this rule. Assuming the CRA continues, OSHA will not only continue to lose in court, but they will be barred from issuing a “substantially similar” rule in the future. This has led to a widespread belief that PSM violations that occurred over six months ago will no longer be citable. While that may be technically true, the reality is that they will still be citable as long as OSHA does the legwork to write the citations correctly.

For my example, let me use one of the most common problems I see in Compliance Audits: A recommendation (from PHA or former Compliance Audit) from well over a year ago regarding the identification of surface corrosion on ammonia piping that recommends an increased frequency of inspections and/or remediation of the protective coating.

If that recommendation was unaddressed, in the past OSHA would often cite the PHA or Compliance Audit element from which the recommendation came. Assuming that they are now limited to six months, and the recommendation is older than that, OSHA can NO LONGER cite you for that violation.

Super. Congratulations… But, if OSHA could cite you for not following up on the recommendation, then it’s likely because the pipe is still showing signs of corrosion. That being the case, they CAN cite you for a 1910.119(j)(5) deficiency because the pipe IS rusted during the inspection.

Put a simpler way – they can use the violation from the past to lead them to a violation occurring in-the-moment. Nearly ALL PSM citations can be rewritten to in-the-moment violations.

Furthermore, although the old recommendation can’t be used for a citatable situation directly, it is PROOF POSITIVE that the employer was AWARE of the hazard.

Worse yet, most EPA violations are only subject to the 28USC2462 five-year statute of limitations. It’s not like an OSHA CSHO or AD can’t pick up a phone and call the local EPA office.

TLDR: The end result of OSHA losing their ability to cite for something in PSM that happened over six months ago: Nothing, really.

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How to get Willful OSHA Citations & Fines

The incident we are discussing today is from a recent ruling in the United States Court of Appeals, Seventh Circuit where they recently denied a petition for review in the case of “DANA CONTAINER, INC. v. SECRETARY OF LABOR.” While this particular citation concerns “Permit Required Confined Spaces,” the lessons are applicable to all OSHA rules.

The case arose after toxic fumes in a large container knocked out a man who was working inside it. From the ruling:

In the cold early morning hours of January 28, 2009, one of Dana’s supervisors, Bobby Fox, was on the third shift along with former employee Cesar Jaimes. Fox was working on a trailer and encountered a problem with a clogged valve just as he was about to begin the mechanical cleaning process. Disregarding the safety rules, he entered the tank prior to cleaning it, without attaching himself to the retrieval device or following the entry permit procedures. After a short while, Jaimes looked inside, saw Fox unconscious in a pool of chemical sludge, and called the Summit Fire Department. The firefighters hoisted him out, rinsed off the chemical residue, and transported him to the hospital. Fox was diagnosed with “Syncope and Collapse, Toxic Effect of Unspecified Gas, Fume, or Vapor” (i.e., fainting).

While the employee was rescued by the local fire department, his employer, Dana Container, was cited for Willful violations by OSHA and has been fighting those citations – through an Administrative Law Judge (ALJ), then the OSHA Review Commission and now through the Circuit Court.

Here is a proven three-step plan to get Willful OSHA citations

1)  Have a supervisor break the rules: The employer tried to prove that the unsafe actions were “unpreventable employee misconduct” such that the employer was unaware of the issue. OSHA is required to prove that the employer knew about the problem.

In this case, the supervisor’s knowledge can be imputed to the employer… This path for imputing knowledge is common in employment law. When an employee is acting within the scope of her employment, her knowledge is typically imputed to the employer… Conduct is “within the scope of employment when [it is] ‘actuated, at least in part, by a purpose to serve the [employer],’ even if it is forbidden by the employer.” Here, Fox knew that he was violating the rules when he entered the dirty tank in order to kick loose a stuck valve so that he could then drain the tank. His act was in furtherance of Dana’s tank cleaning business.

2) Have a track-record of failing to follow your own safety programs: OSHA was able to show that the employer should have been able to foresee the supervisor misconduct because they knew (or should have known) there were long-standing issues with their program:

There was evidence showing that nearly all of the tank entry permits at Dana’s Summit facility contained errors or omissions. Some indicated that the entries had exceeded the maximum duration of 20 minutes by over an hour. Others had other flaws: for example, they lacked the requisite air monitoring results; they failed to show the duration for which the permit was valid; they indicated that employees had not reviewed material safety data sheets (or had no information about review); and they failed to name either the entrant or the entry attendant. Whether these errors and omissions occurred because the employees were violating entry procedures or if they reflected only recording problems, there is no evidence that the Facility Manager followed up on the deficiencies. The Commission was therefore justified in concluding that there was a failure to enforce Dana’s safety program… The Commission was entitled to find that the uncorrected permit violations exhibited a pattern of disregard for the rules at Dana. Even in the face of a robust written program, lax disregard of the rules can send a message to employees that a company does not make safety a priority. In such an environment, conduct such as Fox’s is reasonably foreseeable… Dana’s effort to persuade us that the Commission erred by rejecting the “unpreventable employee misconduct” defense also falls short. To use the defense an employer must show that it took steps to discover violations of its safety rules and that it effectively enforced the rules when violations were discovered.

3) Have a shaky track record on enforcement of your own policies: Dana cited a OSHA Review Commission case holding that an employer can demonstrate that the willful conduct of its supervisory personnel should not be imputed to the employer if the employer can demonstrate a good faith effort to comply with the standard.

The Commission…found that although, on the one hand, Dana had work rules that were communicated to its employees and had submitted evidence of three instances of disciplinary action, on the other hand the facility manager had never disciplined an employee for improperly completing permits or for the violations apparent on the face of the permits. The Commission concluded that Dana had therefore failed to take action when violations of safety rules were plain, as would have been required in a good faith effort.

Working backwards, you can avoid willful citations by:

  1. Establishing clear, compliant policies on OSHA rules.
  2. Requiring Supervisors to be responsible for the implementation of our policies, the enforcement of those policies and the documentation of our adherence to those policies.
  3. Requiring the Safety Department to periodically audit the compliance to our policies of field supervisors and personnel.

P.S. Bonus: It’s never a good idea to get in the news:

“A local TV news crew broadcast the rescue that morning, and OSHA inspector Jami Bachus happened to see it before heading to work. She volunteered to inspect Dana’s facility and did so, arriving at the Summit station within three hours of the accident.”

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Authorized Personnel Only

Found a funny sign on the internet and someone wanted it for their very own. Here’s my version of the traditional Machinery Room Door Sign:

Update: At the request of a friend, here’s another:



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Why does my PSM program make me review the PHA during any equipment/facility MOC?

Nearly two years ago, I changed the Management of Change Written Plan template in my PSM programs to make a few changes:

  • Removed the “minor change” and “major change” categories.
  • Explicitly require a Process Hazard Analysis review during all equipment/facility MOC’s.
  • Explicitly require a Pre-Startup Safety Review (PSSR) before startup for all equipment/facility MOC’s and suggesting that it be conducted by someone other than the person that performed the MOC procedure.

These changes are related and they were made for a few reasons, which broadly break into three categories:

  1. PSM Guidance History
  2. Lessons Learned from Audits, Citations, and Incidents
  3. Plan Simplification

PSM Guidance History: There are two main ongoing issues with the NH3 refrigeration industry’s understanding of MOC. The first is the fiction that there are “minor” and “major” categories of changes in the PSM/RMP rules. It seems that the example written plan provided in the first edition of the IIAR Compliance Guidelines has been so internalized into our industry that people have stopped looking at the actual regulations or guidance documents from OSHA & the EPA. Essentially, the IIAR guidance splits changes into either “minor” or “major” based on whether they invalidate the PHA. If they do invalidate the PHA, they are “major” changes, and if they don’t, they are “minor” changes. This (arguably useful) fiction is NOT present in the PSM/RMP MOC rules.

Here’s the relevant IIAR guidance on “minor” changes:

“When processes undergo minor changes (e.g., minor rerouting of a piping run), information is typically added to a PHA file to reflect the change, even though the validity of the PHA is not affected by the modification.”

Here’s the relevant IIAR guidance on “major” changes:

“A major change is a modification which has significant impact on process conditions or system parameters and was not addressed by a previous Process Hazard Analysis (PHA) study.”

If that’s your policy, then the IIAR is already telling you that the PHA should be reviewed during the change. Why? How could you possibly know if the change “was not addressed by a previous PHA study” or whether the “Validity of the PHA is not affected by the modification” without reviewing the PHA?

Since the IIAR guidance (and experience) tell us we have to review the PHA as part of the change, there is little benefit to the IIAR scheme of “minor” and “major” changes. You can’t justifiably determine which category the change falls into until after you’ve reviewed the PHA. Unfortunately, that’s not what was happening…

Lessons Learned: PSM covered facilities have a LONG history of failing to properly manage changes. You would be stunned to see some of the changes that occur in covered processes without undergoing an adequate MOC procedure – or without any MOC at all. We’ve seen entire machine rooms added with no PHA review because the facility felt that the change was a “minor” change. The reality of implementing the IIARs guidance was that people were deciding if a change was “minor” or “major” based on their gut feeling of the size/complexity of the change – They weren’t actually reviewing the PHA to make this determination. The IIAR scheme acted as a “shortcut” for many facilities as they tried to jam ever larger & more complex changes into the “minor” category.

Furthermore, we found that almost none of these poorly performed MOC procedures were being caught by the facility. Since one person was in charge of (and administering) the entire program, there was essentially NO oversight. Adding the PSSR at the end of the equipment / facility MOC procedure provided a degree of oversight.

Simplification: Removing the “minor” and “major” categories meant that all equipment / facility changes followed the same procedural steps. Each equipment / facility change now requires the “Responsible Person” to review the relevant PHA section(s). Please note that this is not a full-scale team-based exercise – it’s the “Responsible Person” reading through the relevant section(s) and making a determination based on their expertise. Obviously, as in all other cases, if the “Responsible Person” is encouraged to seek any operational or engineering expertise they might lack. If the PHA section(s) appears unaffected by the change, then that’s the end of the issue until the regularly scheduled PHA revalidation. If, however, the PHA section(s) appears to be affected, then they need to be revalidated by a team meeting the requirements of 1910.119(e) & 40CFR§68.75.

Also, added at this time were individual component PSSR sheets. That is, for each common type of equipment in an NH3 refrigeration system, a sheet was created that allowed you to quickly document the Pre-Startup Safety Review. These sheets covered various required PSI items as well as IIAR Bulletin 109 items that have been commonly requested and IIAR Bulletin 110 inspection & maintenance items. Since, this PSSR is required (by the Written Plan) for every equipment / facility change, they provide a oversight function as well as meeting the regulatory requirements.

All of these changes are made to improve the MOC & PSSR process.

To meet the requirements of the MOC element 1910.119(l)(2)(ii) you have to “assure that the following considerations are addressed prior to the change: …Impact of change on safety and health.” If you haven’t read this OSHA MOC guidance recently, I highly commend it to you:

An MOC procedure is required anytime a change per the requirements of 1910.119(l) is considered. An MOC procedure is a proactive management system tool used in part to determine if a change might result in safety and health impacts. OSHA’s MOC requirement is prospective.

The standard requires that an MOC procedure be completed, regardless of whether any safety and health impacts will actually be realized by the change. The intent is, in part, to have the employer analyze any potential safety and health impacts of a change prior to its implementation. Even if the employer rightly concludes there would be no safety and health impacts related to a change, 1910.119(l)(1) still requires the employer to conduct the MOC procedure.

The MOC requirements are important because many large incidents have occurred in the past when changes have been made and the employer either did not consider the safety and health impacts of the change, or did not appreciate (wrongly concluded) the potential consequences of the change before it was too late. Therefore, it is not only required, but important that the employer conducts an MOC procedure on each change, even those changes the employer believes will have no safety or health impacts. (OSHA, Refinery PSM NEP, 2007)

It is the word prospective in the above text that is most important. You can think of the dictionary-like definition of “a study that starts with the current condition and follows it into the future.” You could also think of those men and women who panned for gold in the western territories of the US during the 19th century.  Like them, you are looking through a lot of mundane things to find the rare oddity – that unique nugget – that can cause trouble.  In an MOC the nugget is a hazard that needs a safeguard – either a new one, or one you already have but haven’t yet applied to the discovered hazard.

Where do you document the hazards you’ve found and the safeguards you’ve put in place? The Process Hazard Analysis!

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What questions should I expect during a ChemNEP inspection?

A friend in the industry recently went through an OSHA ChemNEP inspection on their NH3 Refrigeration System. Over the years, I’ve had the pleasure of working with many of their team members and have audited several of their facilities. They use an older version of the PSM/RM Program templates that I currently offer. They were kind enough to provide the (paraphrased) Dynamic List questions they were asked by the inspector.

What follows are those questions and my thoughts on how those questions are addressed in the current templates. Furthermore, there are often some additional questions you can ask to ensure you can document compliance with the PSM/RMP rules if you are asked these questions.

Black text concerns the question that was asked. Colored text are my thoughts on the responses for people that use the templates I provide.

Primary / Generic Question Pool

 Do EAP procedures include small and large release plan?

This is a difficult one to answer as we don’t include the Emergency Action Plan (which could include evacuations due to Bomb Threats, Terrorism, Fires, Earthquakes, Floods, etc.) or Emergency Response Plan in our PSM templates. (There are usually pre-existing S&H documents that can be modified to include the covered process rather than re-inventing the wheel.) What we DO provide are the “element guideline” and a template to get you started on your 1910.119(n) required “procedure for handling small releases” with the guidance that large releases are going to handled under the Emergency Action / Response Plan. We DO check that the EAP/ERP covers large releases in PHA’s and Compliance Audits and make appropriate recommendations when they address the issue. Is your PSM covered process integrated into your EPA/ERP?


 Are Initial PHA and subsequent PHA (Revalidations) completed every five years?

The template program directs the client to do this and the PHA revalidation schedule (and other routine PSM tasks) is included in the MI-EL1 Mechanical Integrity Schedule. Are you providing this at the frequency required in the PSM system?


 Are PHA, Incident Investigations and Compliance Audit recommendations properly addressed?

The templates provide compliant tools, a central location for all recommendations and an easy-to-use tracking sheet but it’s up to the client to address these items. Furthermore, the template Management System includes policy on how these recommendations are resolved. We have always made ourselves available for assistance and we’re fairly aggressive in closing out any contractor issues with the assistance of the Engineering / Service departments. Are you implementing the “Implementation Policy: Resolution of Recommendations” section which includes guidance on when it is appropriate to justifiably decline a recommendation? Have you provided adequate documentation to prove you have addressed the recommendations?


Has the employer fully implemented MOC procedures including updating PSI, operating procedures and training?

The templates provide streamlined MOC policies/procedures for Personnel, Documents/Procedures, Car-Seal and Equipment Changes. Are these procedures being implemented as necessary and are they being adequately documented to prove it?


Has employer defined the safe upper and lower operating limits?

We document this robustly in our templates and have recently made further improvements in the templates (Dec2016-Jan2017) which make it even simpler for updated programs. If you are using older versions of these templates, please consider updating the SOPs – perhaps as part of a regularly scheduled review program. If you break the work up, most facilities can make these changes fairly easily internally.


NH3 Specific PSM Questions

How were the ventilation calculations developed and what standards were used?

This should be provided by your installing contractor/engineering firm. The templates include an example of “compliant” documentation on this and we’ve seen that OSHA/EPA find it acceptable in the field. A common issue here is that an engineering document is provided that is not clear to non-engineers. Also common is that the document doesn’t provide the design basis RAGAGEP or states a RAGAGEP that is different than the one stated elsewhere in the program for design basis RAGAGEP.


When was your most recent ammonia charge? How do you verify ammonia purity?

If your contractor provided the NH3 they should be able to help answer this. The template PSM program includes a ROSOP QA (Quality Assurance) SOP that addresses this. You should demand and store a Certificate of Analysis during NH3 charging. As for ongoing purity tests, our MI program templates directs you to perform the NH3 purity test for water per IIAR Bulletin 110. Are you doing this at the frequency required in the RAGAGEP/PSM system? Are you documenting it adequately?


Show me a low side vessel data label that shows MDMT (This was answered using the U1A and MAWP and MDMT information). Verification of current operating conditions was also required.

Your installing contractor/engineering firm should provide this info but it’s up to you to run within the limits. Are you checking this during routine walkthroughs? Do your SOPs show acceptable ranges for operation and are these ranges inside the acceptable design window provided in the PSI?


Show me the process for draining oil from your system. How many oil pots are in the system? Is there a separate SOP for each oil pot, who drains the oil pots, have the operators been trained on the procedure and can you verify the equipment specific training?

Note that this is a “show me” type question so it’s imperative that the operators asked this question refer to the appropriate SOP. Template SOPs provide equipment specific oil drain SOP Procedural Sections. Can you document that your operators have received and understood this training? If contractors are providing the service, can they document that their technicians have received and understood the training? Are you (or your contractors) providing it at the frequency required in the RAGAGEP/PSM system? Are you documenting it adequately?


Is there external corrosion or ice build up on the refrigeration equipment? What is the frequency of removing ice on liquid pumps? What is the frequency of the PM? Is each asset maintained individually or as a group and when was the PM completed?

This is addressed in our MI program templates during walk-through’s as well as on each individual ITPMR which asks about excessive ice build-up. Are you implementing the walk-through and ITPMR at the frequency required in the RAGAGEP/PSM system? Are you documenting it adequately?


Are system logs used to document system conditions? The focus was on the continuous monitoring of the control system as well as the alarming and who receives the alarms.

If you use a modern control system (such as AEC) you likely have adequate logging. Walk-through documentation could help prove compliance. Are you implementing the walk-through at the frequency required in the RAGAGEP/PSM system Are you documenting the walk-through adequately? Hopefully you have addressed the alarm system in an SOP (either the System 101 ROSOP or the NH3/Vent ROSOP) so you have documented what happens to alarms. These questions should have been asked in the PHA.


With the exception of evaporators, condensers and associated piping is all equipment in a machinery room? What design codes and standards were used?

The first question directly out of IIAR 2-2014 which changed the rules a bit on equipment outside of a machinery room. It’s been roughly 3 years since that RAGAGEP came out and we are now seeing the question pop up RIGHT ON SCHEDULE. If you haven’t already compared your system to the 2014 IIAR 2, it would be appropriate to conduct a Gap Analysis (perhaps in conjunction with the PHA revalidation) to see where you stand. The template system documents the RAGAGEP itself clearly in a letter in the PSI.


Are machinery room doors and wall penetrations designed to be tight fitting with no gaps or openings. The focus was on door closers and gaskets around the perimeter of the doors. Verification that signage was on each door identifying restricted access was also required.

I’ve never seen this go as deep as door gaskets – frankly, we’ve always interpreted this far looser. Machinery rooms are designed to be negative-pressure areas (compared to other parts of the building) so this has not usually been a major concern. We certainly have seen it cited before where pipe penetrations through the machinery room wall were not sealed. Ask your technicians & safety people to look at this. Signage that meets IIAR 2 should have been evaluated as part of your PSSR, PHA and Compliance Audits.


Is access to the machinery room restricted to authorized personnel? How does the facility manage access, does the fire department have access, for the automatic door access where are these located, who has keys to the doors.

This is an issue you should have addressed in PHAs if you followed our PHA what-if checklist template. If you haven’t, there’s no reason not a do a quick mini-PHA on the issue.


How are the facility ammonia detectors tested and inspected? What is the frequency? Who inspected? What calibration procedures were used? Verification of the last two PM’s conducted.

This was a significant point of contention for this inspection (in part) because they used an older version of the template which does not include recent revisions (over the past two years) to improve the MI performance of the template program. The current template includes: 1) Integrated MI procedures into the SOPs & 2) ITPMRs (Inspection, Testing & Preventative Maintenance Records) for standardized MI documentation. Are you implementing the ITPMRs at the frequency required in the RAGAGEP/PSM system? Are you documenting it adequately?


Posted in Compliance, General Information, Inspections, Mechanical Integrity, NEP, Operator Training, OSHA, SOP Development, Training | Tagged , , , , , , , , | Comments Off on What questions should I expect during a ChemNEP inspection?

Update: Congressional Review Act & RMP Rule

The EPA’s RMP Rule update is NOT part of the initial 5 regulations that the House has decided to disapprove via the Congressional Review Act. (Bloomberg)


…and here it is!

US Rep. Markwayne Mullin (R-Okla.) introduced Congressional Review Act legislation to revoke the US Environmental Protection Agency’s amended risk management programs rule amendments that became final on Jan. 13 and would go into effect on Mar. 14.

“Predictably, the Obama administration continued to issue harmful and overreaching regulations until the bitter end. EPA’s RMP rule is no exception,” he said on Feb. 2.

The program is intended to reduce the risk of accidental releases that could affect areas close to manufacturing plants, Mullin said. But EPA exceeded its jurisdictional limits by encroaching on Occupational Safety and Health Administration (OSHA) regulated areas and making a rule final that not only fails to enhance safety, but may in fact compromise national security, he contended.

He introduced H.J. Res. 59 soon after the American Petroleum Institute, American Fuel & Petrochemical Manufacturers, US Chamber of Commerce, and 18 other business groups asked leaders of the 115th Congress to use the CRA to disapprove EPA’s final risk management practices rule covering accidental chemical releases (OGJ Online, Jan. 26, 2017).


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While there are Executive Branch delays to the EPA’s new RMP updates, another possibility is that congress can use the Congressional Review Act to nullify the changes. This week, a group of associations joined in a letter requesting exactly that.

Multi-Association Letter to Hill Leadership Urging CRA Resolution for EPA Risk Management Program (RMP) Rule

Dear Congressional Leaders:

As leading trade associations representing diverse sectors of the U.S. economy, we write to express our deep concern with a recent Environmental Protection Agency (EPA) rule, Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act (“RMP rule”).1 The final RMP rule not only imposes significant new costs without identifying or quantifying the safety benefits that will be achieved through these new requirements, it may actually compromise the security of our facilities, emergency responders, and our communities. For these reasons, we believe it is appropriate that Congress disapprove the final RMP rule under the Congressional Review Act.

Safety is the first priority of our members and a core value embedded in the culture of our industries. In fact, data from the Bureau of Labor Statistics confirms that our industries are among the safest in the United States. Our companies routinely go above and beyond regulatory requirements for safety programs, demonstrating a commitment to safety and expending the resources necessary to continually improve safety performance. Our industries have a history of open communication and partnership with the communities that surround our facilities as well as local, state, and federal authorities. Community Advisory Panels (CAPs) and Local Emergency Planning Committees (LEPCs) have been in place for more than three decades, and these partnerships continue to be the foundation for open communication, information sharing, and coordinated emergency planning and preparation in our communities while safeguarding specific security plans.

The current RMP regulations include requirements that have produced and will continue to drive continuous safety improvements, provide robust protection for our employees and the public, and are not in need of revision.

Unfortunately, EPA’s final RMP rule fails to identify any meaningful safety benefit and may actually increase security risks given the rule’s expanded public information disclosure requirements. It is not just industry that has this concern. White House Office of Management and Budget records show that during interagency review the Department of Homeland Security officials, and others, repeatedly raised security concerns with the RMP rule. In fact, one official stated that “[h]aving facilities share this information would be precedent setting—currently the [Chemical Facility Anti-Terrorism Standard (CFATS)], [Process Safety Management (PSM)], and [Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)] (licensee/permittee) programs do not share this level of detail with the public due to security concerns.” As demonstrated in a Department of Justice report released prior to the terrorist attacks of 9/11, it is well known that terrorists have considered using chemical releases from facilities as a weapon. Federal regulations should not make it easier for sensitive information to wind up in the hands of criminals and terrorists.

Beyond security concerns, it is unclear what, if any, safety benefits the final RMP will provide. As you know, the risk management program is intended to reduce risk beyond a facility’s fence line, while the Occupational Safety and Health Administration’s (OSHA’s) Process Safety Management (PSM) program addresses risk within the fence line. Despite this clear legal distinction, the majority of the purported benefits from the EPA rule revisions come from OSHA-regulated areas within the fence line.

The lack of identifiable and quantifiable benefits stands in stark contrast to the clear costs associated with this rule. Whether it be the requirement of third-party auditor participation that will reduce the pool of qualified auditors, changing well-established audit procedures already designed to maximize safety effectiveness, or imposing ineffective requirements to consider “inherently safer technology/design,” the final rule includes a litany of costly changes that have not been shown to increase safety.

Our associations support sensible regulations that can be shown to improve safety and security. Unfortunately, the final RMP rule fails this basic test. For this reason, we recommend that Congress disapprove the regulation under the Congressional Review Act. Doing so will protect national security and allow EPA to reconsider what, if any, revisions to the RMP regulations are needed to reduce the risk of an accidental release. We stand ready to work with you and the incoming Administration on this important issue.

Agricultural Retailers Association
American Chemistry Council
American Coatings Association
American Forest & Paper Association
American Fuel & Petrochemical Manufacturers
American Petroleum Institute
Corn Refiners Association
Environmental Technology Council
The Fertilizer Institute
Global Cold Chain Alliance
International Association of Refrigerated Warehouses
International Institute of Ammonia Refrigeration
International Liquid Terminals Association
Institute of Makers of Explosives
International Warehouse Logistics Association
Louisiana Chemical Association
National Association of Chemical Distributors
National Association of Manufacturers
Society of Chemical Manufacturers and Affiliates
U.S. Chamber of Commerce
The Vinyl Institute

(Link to PDF)

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OSHA replaces the ChemNEP inspection protocol

Since 2011, Ammonia Refrigeration facilities with 10,000lbs. or more of Anhydrous Ammonia have been subject to ChemNEP inspections under CPL 03-00-14. OSHA has replaced this program with a new program that makes some changes:

  • Merges the Petroleum and Chemical NEPs into a single Program1
  • Targets EPA Risk Management Program level 1 & 2 as well as Program 3
  • Requires “State Plan” adoption

The details of the new program are posted in the new CPL 03-00-021 which is available on the OSHA website or, if you use our templates, in the References section of the Google Drive shared folders. Here are some highlights of the new inspection program:

  • Ammonia Refrigeration (as the sole HHC) is a “Category 1” facility which is supposed to represent 25% of all PSM inspections.
  • If you have an additional covered chemical such as chlorine, the facility may also fall under “Category 4” which is supposed to represent 40% of all PSM inspections.
  • Directs OSHA CSHOs to access the facility’s EPA RMP database information before the inspection.
  • Inspection must include the host employer AND the contract employer
  • Inspection should review ALL OSHA inspection history and abatement verification – must review last six years worth.
  • Inspections will request documents are provided:

Documents Requested Prior to Identifying the Selected Unit(s):

* OSHA 300 logs for the previous three years for the employer and the process-related contractors.

* All contract employee injury and illness logs as required by 1910.119(h)(2)(vi).

* A list of all PSM-covered process/units in the complex.

* A list of all units and the maximum intended inventories of all chemicals (in pounds) in each of the listed units.
* A summary description of the facility’s PSM program.

* Unit process flow diagrams.

* Process narrative descriptions.

* Host employer’s program for evaluating contract employer’s safety information.

* Host employer’s program/safe work practices for controlling the entrance/exit/work of contractors and their workers in covered process areas.

* Emergency Action Plan; and Emergency Response Plan if the facility is also required to comply with 29 CFR 1910.120(q).

* Host employer’s program for periodically evaluating contractor performance.

Documents Requested After the Selected Units are Identified:

* Piping and instrumentation diagrams (P&IDs) including legends.

* Unit electrical classification documents.

* Descriptions of safety systems (e.g., interlocks, detection or suppression systems).

* Design codes and standards employed for process and equipment in the Selected Unit(s).

* A list of all workers (i.e., hourly and supervisory) presently involved in operating the Selected Units(s), including names, job titles, work shifts, start date in the unit, and the name of the person(s) to whom they report (their supervisor).

* The initial process hazard analysis (PHA) and the most recent update/redo or revalidationfor the Selected Unit (s); this includes PHA reports, PHA worksheets, actions to address findings and recommendations promptly, written schedules for actions to be completed, and documentation of findings and recommendations.

* Safe upper and lower operating limits for the Selected Unit(s).

* A list by title and unit of each PSM incident report; all PSM incident reports for the Selected Unit.

* Contract employer’s safety information and programs (this will be requested from the host employer after it is determined which contractor(s) will be inspected).

* Contractor employer’s documentation of contract workers’ training, including the means used to verify employees’ understanding of the training (this will be requested from the respective contractor employer(s) after it is determined which contractor(s) will be inspected).

* Other documents as specified in the Dynamic Lists.

  • During the walk-around, the CHSO is to observe potential hazards including, but not limited to, pipe work at risk of impact, corroded or leaking equipment, unit or control room siting and trailer location, relief devices and vents that discharge to atmosphere, and ongoing construction and maintenance activities; and solicit input from workers / worker representatives / contract employees.
  • Inspections are focused on Dynamic List questions just like the ChemNEP. Failure to correctly address the questions from the list may broaden the inspection to areas outside the questions. When CSHOs expand the inspection beyond the Dynamic List, they can pull questions from:

* Prior ChemNEP Dynamic List questions
* Old Petroleum NEP (CPL 03-00-010) questions
* CPL 2-2.45 PQV (CPL 2-2.45a) questions
* CCPS Guidelines for Hazard Evaluation Procedures, 3rd Edition

Note that this guidance specifically includes the CCPS book “Guidelines for Hazard Evaluation Procedures, 3rd Edition” which focuses on PHAs. We have long counseled using the CCPS guidance to better understand what a successful PSM program looks like from both a design perspective as well as an implementation one.

Coupled with the EPA’s announcement that they have begun implementing their enforcement initiative, there has never been a better time to consider a thorough 3rd party Compliance Audit.

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Trump Regulatory Freeze likely to delay EPA RMP Updates

According to a memo from Reince Priebus ( Regulatory Freeze Memo 012017 ) the EPA RMP updates are likely to be delayed:

With respect to regulations that have been published in the OFR but have not taken effect, as permitted by applicable law, temporarily postpone their effective date for 60 days from the date of this memorandum, subject to the exceptions described in paragraph 1, for the purpose of reviewing questions of fact, law, and policy they raise. Where appropriate and as permitted by applicable law, you should consider proposing for notice and comment a rule to delay the effective date for regulations beyond that 60-day period. In cases where the effective date has been delayed in order to review questions of fact, law, or policy, you should consider potentially proposing further notice-and-comment rulemaking. Following the delay in effective date: (a) for those regulations that raise no substantial questions of law or policy, no further action needs to be taken; and (b) for those regulations that raise substantial questions of law or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director.

As these regulations likely fall into category “b” above, we’ll have to see what “further appropriate action” consists of in the weeks and months ahead.

**012617 Update – EPA posted a memo on delayed implementation.

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