Improving safety is always a top priority for chemical manufacturers. But the latest set of chemical plant safety regulations from the Environmental Protection Agency have nonetheless left many wondering if they’ll truly decrease the risk of accidents.
The rules — which were issued in late December and entered into the Federal Registry earlier this month — are part of the Risk Management Program (RMP), and were reportedly inspired by the West Fertilizer Plant explosion in 2013 that killed 15.
However, as Judah Prero, a counsel at Sidley Austin LLP and a former Assistant General Counsel with American Chemistry Council, points out, it’s not clear that these rules would have prevented the West, Texas accident (which was caused by a mix of poor chemical storage practices and arson, according to an investigation by the U.S. Chemical Safety Board).
According to the EPA, the rules aim to:
- Prevent catastrophic accidents by improving accident prevention program requirements.
- Enhance emergency preparedness to ensure coordination between facilities and local communities.
- Improve information access to help the public understand the risks at the facilities.
- Improve third-party audits at such facilities.
Here are some of the issues with the law that Prero says the EPA may need to more clearly define:
This particular piece of the RMP is new. According to Prero, there are two triggers for requiring a third-party audit: Either your plant has had an accident, or you’ve been hit with a non-compliance penalty from a state agency.
Sounds good! But…
Outside-the-industry auditors may not know what to look for.
“The difficulty is that facilities under RMP are very diverse,” Prero says. “It’s not realistic to expect an auditor is going to be familiar with that range of facilities.”
That said, Prero admits that an independent set of eyes can sometimes help catch problems someone intimately familiar with the facility might miss.
Safety Technology Analysis
To help prevent accidents, the rule now requires that manufacturers be on the lookout for safer technologies that could be employed in their facility.
Sounds good! But…
The law doesn’t require that companies buy anything, which takes the teeth out of the rule.
Prero also points out that the definition of “safety” in this context is still vague. For example, if a company decreases the risk of an explosion at their facility by limiting the amount of a certain chemical they’ll hold on site, that then means they have to import more of that dangerous chemical, which in turn shifts the risks to transportation companies. In this case, has that company truly decreased the risk for the public?
As an attorney, Prero also sees the negative impact this provision could have on chemical manufacturers facing lawsuits for safety related issues. Now that the mandate is out there, chemical companies could face negative judgements in litigation situations if they haven’t conducted the required safer technologies assessments. On the other hand, if they did conduct the analysis but didn’t purchase any new technologies — which is not mandated by the law — they could also be judged negatively. It’s a sort of damned if you do, damned if you don’t situation.
Prero says that companies are already frequently on the lookout for safer technologies — either for insurance reasons, industry best practices programs and/or as a company policy.
Enhancing Emergency Preparedness
Prero says that under the new rules, certain facilities will have to communicate and do safety drills with local first responders about once a year.
Sounds good! But…
Results for a regulation like this will obviously vary depending on each community’s economic situation.
“The caveat is that you can provide all the information in the world to local first responders, but if they don’t have support from local governments to respond — such as training, staffing, equipment — what is this going to accomplish in the end?” Prero says.
Despite the various concerns with the EPA’s new rule, which could prompt changes from the incoming administration or even lawsuits from the industry, Prero advises that company executives get ready to roll up their sleeves and start documenting their compliance measures.
“There’s going to be a general learning curve with the new obligations,” he says. “I think the routine part of it is going to be documenting that you’ve done everything you’re supposed to.”