Risk Proposal Contested as Stanislaus Stresses Merits

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By Brian Dabbs

Feb. 26 — The Environment Protection Agency put forth for public review on Feb. 25 a heavily anticipated proposal to revise risk management guidelines, a step the agency touted as key to averting loss of life and widespread property damage due to chemical facility disasters.

Many stakeholders told Bloomberg BNA on Feb. 26 they are continuing to review the details of the 250-page proposal. The document, however, hit tentative opposition from industry, as well as public health and environment advocates, in the immediate wake of its release.

Still, the proposal strikes a compromise that reflects roughly 2 1/2 years of EPA outreach to stakeholders, Mathy Stanislaus, assistant administrator of the EPA's Office of Land and Emergency Management, told Bloomberg BNA in a Feb. 26 phone interview.

Broad Engagement

“From my perspective, it’s pretty unique that we’ve done all this engagement even prior to a proposed rule,” said Stanislaus, who identified the proposal as a high priority. “This is deliberative and sequential and a fairly comprehensive process.”

The proposal, titled Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, was developed following a comment period, a report to the president, a request for information and meeting by a Small Business Regulatory Enforcement Fairness Act panel. The revision aims to prevent disasters during chemical plant operations, ensure effective preparedness and response, and strengthen information sharing, Stanislaus said. EPA moved ahead with the proposal in order to implement President Barack Obama's Executive Order (E.O.) 13650, which addressed chemical storage insecurity in the wake of the 2013 fertilizer plant explosion in the town of West, Texas.

The agency says RMP facilities reported 1,500 accidents over the past 10 years, including nearly 60 deaths and $2 billion in property damage.

Industry Contests Safer Technology Language

EPA officials conducted thorough consultations with the chemical industry over the past nearly three years, a number of associations told Bloomberg BNA. Those groups pledged to work with the agency as the rulemaking process continues to unfold.

The safer technology language in the proposal, however, sparked measured criticism from industry.

“While we have not had a chance to fully review EPA’s proposal, we are concerned that the Agency is looking to pursue new requirements that will create unnecessary and potentially detrimental complexity to RMP, particularly the requirements related to compliance audits and safer alternatives analysis,” said the American Chemical Council in a Feb. 26 statement sent to Bloomberg BNA. “We plan to provide the Agency with more detailed comments and recommendations on these issues and others when the proposal is published in Federal Register in the coming weeks.” The National Association of Chemical Distributors echoed that concern.

EPA spokesman George Hull told Bloomberg BNA the proposal won't formally enter the Federal Register for at least three business days.

Loose Language on Alternatives

The proposal calls on industry to conduct Safer Technology and Alternatives Analysis (STAA) through “any available methodology or guidance,” while also allowing comparable alternatives.

Industry members, led by the Chamber of Commerce, lashed into the safer technology requirements in comments following the EPA's 2014 request for information . The RFI fetched roughly 99,000 comments.

Stanislaus, however, defended that language in the proposal, saying that provision builds on best practices.

“It would require those facilities with the highest frequency of accidents to conduct that analysis to identify whether there are any opportunities to bring to bear safer technologies or other alternatives,” Stanislaus said. “And we are obviously going to be having conversations with all the stakeholders, including industry.”

Cumulative Burden on Industry?

EPA implementation of Obama's executive order runs alongside efforts to revise the Occupational Safety and Health Administration's process safety management standard and the Department of Homeland Security's chemical facility antiterrorism standards.

In an interview with Bloomberg BNA on Feb. 26, Society of Chemical Manufacturers and Affiliates Director of Government Relations Dan Moss cautioned that the collective requirements could pose serious challenges to industry.

“Something that I think is not taken into account enough, but something we've repeatedly urged to be addressed, is the cumulative impacts of multiple rules, especially from a small and medium sized business perspective,” Moss said. “I can assure you that on a collective basis, it becomes fairly overwhelming very quickly.”

Moss also said the agency should focus more on ensuring compliance with existing legal requirements, rather than introducing new mandates. Industry isn't complying in full with existing requirements on third-party auditing, local coordination and information sharing, he said.

Disaster Coalition's Harsh Complaint

The Coalition to Prevent Chemical Disasters championed the safer technology language in a Feb. 26 statement released to Bloomberg BNA by Greenpeace spokesman Rick Hind. The proposal is an “important step” but falls short in several key areas, the group said.

“It will be a tragic missed opportunity if in the final rule EPA allows [chemical facilities] to conceal the results of their assessments from the residents, schools and hospitals near these facilities (as proposed by the agency), and fails to prevent future disasters by requiring the use of safer alternatives for all hazardous facilities where they are feasible,” said the coalition.

Right to Know v. Security

The proposals would not require facilities to send their STAA to EPA or reveal that analysis to the public, nor would it establish a “publicly-accessible clearinghouse” for safer technology alternatives, the statement said.

In an interview with Bloomberg BNA on Feb. 26, science director for the Center for Health, Environment & Justice, Stephen Lester, said health advocates may need to reach out directly to industry to convey the importance of public disclosure.

“It's personally disappointing that the public is further cut out from this information,” said Lester, whose organization is a Coalition to Prevent Chemical Disasters member. “EPA needs to keep an open mind. Maybe we need to have an open discussion with these companies. Maybe we can cut the EPA out of the picture.”

Lester said such a route has worked in similar situations involving consumer products, and it could potentially work in the chemical facility context.

Stanislaus Touts Coordination, Local Prep

The proposal does, in fact, include critical mechanisms to strengthen coordination and information sharing among first responders, said Stanislaus in the interview with Bloomberg BNA. The proposal promotes comprehensive alignment with local response preparedness officials, he said.

“A major component of that is supporting local responders, ensuring that they have been consulted and coordinated … that there is a real understanding of who is going to respond,” said Stanislaus. “There have been instances where that coordination did not happen and the local response organizations we’re not fully aware that they were expected to respond.”

The third-party auditing language in the proposal also brings “rigor” and “independence” to the safety assessment process, he said.

To contact the reporter on this story: Brian Dabbs in Washington at bdabbs@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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