EPA Announces Chemical Safety Milestones
To celebrate the one-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, EPA Administrator Scott Pruitt announced on June 22, 2017, that the Agency has met its first-year statutory responsibilities under the law. This includes the following actions:
- Issuing a rule to establish EPA’s process and criteria for identifying high-priority chemicals for risk evaluation and low-priority chemicals not requiring risk evaluation. http://www.epa.gov/assessing-and-managing-chemicals-under-tsca/prioritizing-existing-chemicals-risk-evaluation
- Issuing a rule to establish EPA’s process for evaluating high-priority chemicals to determine whether they present an unreasonable risk to health or the environment. https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-evaluations-chemicals-under-tsca
- Issuing a rule to require industry reporting of chemicals manufactured or processed in the U.S. over the past 10 years. https://www.epa.gov/tsca-inventory/tsca-inventory-notification-active-inactive-rule
- Releasing scope documents for the initial ten chemicals for risk evaluation under the amended law. https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/risk-evaluations-chemicals-under-tsca#ten
- Releasing guidance for external parties interested in submitting draft risk evaluations to the EPA for consideration. https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/guidance-assist-interested-persons-developing-and
Join Kestrel at the 30th annual EHS Seminar next week to hear A.W. Armstrong present on Using a Data-Driven Method of Accident Analysis: A Case Study of the Human Performance Reliability (HPR) Process.
June 5-8, 2017
Moody Gardens Convention Center
Kestrel Presentation: Thursday, June 8 at 8:30 a.m.
Kestrel Booth: #611
The Role of Human Error in Occupational Incidents
The concept of human error and its contribution to accidents and incidents have received considerable research attention in recent years. When an accident/incident occurs, investigation and analysis of the human error that led to the incident often reveals vulnerabilities in an organization’s management system.
This recent emphasis on human error has resulted in an expansion of knowledge related to human error and the most common factors contributing to incidents. Kestrel’s Human Performance Reliability (HPR) process helps to classify human error—with the additional step of associating the control(s) that failed to prevent the incident from occurring. This process allows organizations to identify how and where to focus resources to drive safety performance improvements.
In this presentation, A.W. describes Kestrel’s method for identifying the most frequent human errors and most problematic controls and presents a case study wherein HPR was applied to a large petroleum refining company.
Catch Up with Kestrel
In addition to the presentation on June 8, Kestrel’s experts will also be available in the exhibit hall (booth #611) to discuss HPR, as well as our holistic approach to the management of process safety.
We welcome the opportunity to meet with you, learn more about your needs, and discuss how Kestrel helps our clients:
- Improve occupational and process safety performance
- Manage EHS and quality risks
- Achieve regulatory compliance assurance
See you at booth #611 in Galveston!
EPA Proposes to Delay RMP Rule Effective Date to 2019
On Friday, March 31, 2017, U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt announced a proposed rule to further delay the effective date of the Obama Administration’s Risk Management Program (RMP) final rule until February 19, 2019. This will give the agency time to reconsider the final RMP rule published on January 13, 2017.
Industry organizations have raised serious concerns about the final rule. The proposal to further delay the effective date of the amendments will allow the Agency time to evaluate these objections and consider other issues that may benefit from the additional public input.
EPA Puts Risk Management Program Rule on Hold
This January, the much anticipated final RMP amendments were published in the Federal Register. According to the EPA, these amendments are intended 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 RMP facilities
- Improve third-party audits at RMP facilities
As Kestrel indicated in a recent article when the final RMP amendments were published, RMP faces an uncertain future under the Trump Administration. It is not clear at this point whether the final RMP rule will actually be implemented as published—or at all.
We are seeing the first wave of that uncertainty demonstrated. EPA received a petition dated February 28, 2017, from the RMP Coalition requesting a reconsideration and request for a stay for the RMP rule amendments. After a proceeding for reconsideration on March 13, 2017, EPA’s Administrator signed a final rule that provides a three-month (90-day) administrative stay of the effective date of the RMP rule amendments, delaying the effective date of the final rule to June 19, 2017. This stay is intended to allow the EPA to revisit these important issues and consider alternative approaches.
Last year, we came to you with breaking news about Toxic Substances Control Act (TSCA) reform taking hold, as the U.S. House of Representatives passed the TSCA Modernization Act of 2015 (H.R. 2576) on June 23, 2015.
Almost one year later—and approximately 40 years since the Act’s inception—President Obama signed the Frank R. Lautenberg Chemical Safety Act (FRL-21) into law on June 22, 2016, amending the nation’s primary chemical management law. A historic bipartisan achievement, this Act gives the USEPA immediate authority to begin evaluating the risk of any chemical it designates as “high priority”.
TSCA was developed to ensure that products are safe for intended use by providing the USEPA authority to review and regulate chemicals in commerce. Despite its intention, TSCA has proven to be rather ineffective in providing adequate protection and in facilitating U.S. chemical manufacturing and use. More than 80,000 chemicals available in the U.S. have never been fully tested for their toxic effects on health and the environment. In fact, under TSCA, the USEPA has only banned five chemicals since 1976.
According to a blog by USEPA Administrator Gina McCarthy, “While the intent of the original TSCA law was spot-on, it fell far short of giving EPA the authority we needed to get the job done.”
And that is where FRL-21 takes over, strengthening the foundation built by TSCA to ensure that chemical safety remains paramount.
FRL-21 remains consistent with the 2009 Principles for TSCA Reform. The USEPA outlines the following key regulatory changes in its Q&A briefing on the Act.
Evaluates the safety of existing chemicals in commerce, starting with those most likely to cause risks. This is the first time that all chemicals in commerce will undergo risk-based review by the USEPA. The Agency is charged with creating a risk-based process to determine which chemicals should be prioritized for assessment. High-priority chemicals may present an unreasonable risk to health or the environment due to potential hazard and route of exposure. A high-priority designation, in turn, triggers a risk evaluation to determine the chemical’s safety. This prioritization ensures that those chemicals that present the greatest risk will be reviewed first.
Evaluates new and existing chemicals against a new risk-based safety standard. Under the law, the USEPA will evaluate chemicals based purely on the health and environmental risks they pose. The evaluation must also include considerations for vulnerable populations (e.g., children, elderly, immune-compromised). FRL-21 further repeals the requirement that the Agency apply the least burdensome means of adequately protecting against unreasonable risk from chemicals. Costs and benefits will not be factored into the evaluation.
Empowers USEPA to require the development of chemical information necessary to support these evaluations. In short, the Agency has expanded authority to demand additional health and safety or testing information from manufacturers and/or to conduct risk evaluations on a chemical. USEPA may also expedite the process through new order and consent agreement authorities.
Enforces clear and enforceable deadlines that ensure timely review of prioritized chemicals and timely action on identified risks. Strict deadlines are designed to keep the USEPA’s work on track and to ensure compliance by manufacturers. For example, the Agency must have 10 ongoing risk evaluations within the first 180 days and 20 ongoing risk evaluations within 3.5 years. When unreasonable risks are identified, USEPA must then take final risk management action within two years. Action, which may include labeling, bans, and phase-outs, must begin no later than five years after the final regulation.
Increases public transparency of chemical information by limiting unwarranted claims of confidentiality. The USEPA must review and make determinations on all new confidentiality claims for chemical identity, as well as review past confidentiality claims to determine if they are still warranted. This will allow companies to preserve their intellectual property and competitive advantage, while still providing transparency to the public.
Provides a source of funding for the USEPA to carry out these changes. The USEPA can collect up to $25 million annually in user fees from chemical manufacturers and processors when they:
- Submit test data for USEPA review
- Submit a pre-manufacture notice for a new chemical
- Manufacture or process a chemical that is the subject of a risk evaluation
- Request that the USEPA conduct a chemical risk evaluation
For companies, the most immediate impacts of FRL-21 will be on the new chemicals review process, as the USEPA has to approve any new chemical or significant new use of an existing chemical before manufacturing can commence and chemicals can enter the marketplace. This process will help provide regulatory certainty throughout the supply chain—from raw material produces to retailers. And, in the end, the risk evaluations will help ensure that manufacturers are able to bring new chemicals to the market in a safe and efficient way.
As for the general public, FRL-21 creates a new standard of safety to protect the public and the environment from unreasonable risks associated with chemical exposure. For the first time in 40 years, it provides assurance and greater confidence that chemicals are being used safely.
An ever-growing area of concern across the industry is the appropriate management of hazardous materials and waste. The number of government regulations concerning hazardous materials handling alone is significant—from the U.S. Environmental Protection Agency (USEPA) and Occupational Safety and Health Administration (OSHA), to the Department of Transportation (DOT), Department of Homeland Security (DHS), Drug Enforcement Agency (DEA), and Nuclear Regulatory Commission (NRC). Under these laws, the disposal of hazardous material in the sewer system, stormwater system, on the ground, or in regular trash is regulated by a number of prohibitions.
In addition to these regulations, there are international codes for hazardous materials —developed by the International Fire Code (IFC)/International Building Code (IBC) and operationalized by local officials—that apply across the industry. Kestrel has found that more and more facilities, particularly those in retail warehousing, are being subjected to the requirements of these codes.
Local fire marshals have the responsibility to inspect facilities and ensure that hazardous materials are properly managed and stored. Although local requirements may vary, most local laws have closely adopted the IFC/IBC requirements for hazardous materials management.
The IFC/IBC requirements reference hazardous material as it relates to hazard classes—a significant difference compared to some of the other hazardous materials regulations across the U.S. Applicability and specific requirements are based on:
- Hazard class of the chemical
- Volume of the chemical
- How the chemical is used
- How the chemical is stored
- Building occupancy
Depending on these things, the local fire marshal may require the facility to develop a Hazardous Materials Management Plan (HMMP), conduct a Hazardous Materials Inventory, and/or submit a Hazardous Materials Permit.
The purpose of a Hazardous Materials Management Plan (HMMP) is to describe the company’s procedures for storing, using, managing, and disposing of hazardous materials in a safe manner.
The information requested for an HMMP is different than that required for Tier II reporting under Section 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA). The purpose of the Tier II form is to provide state and local officials and the public with information on the general hazard types and locations of hazardous chemicals at the facility.
Notable differences between Tier II and HMMP include the following:
- Classifications and regulations are different.
- Volumes that trigger an HMMP are much lower.
- Use and storage of the chemical, as well as the occupancy of the building, influence the requirements for an HMMP.
Beyond the HMMP, a company may need to conduct a Hazardous Materials Inventory, which requires defining hazard classes for chemicals at the facility and may need to apply for a Hazardous Material Permit under the authority of the local fire marshal.
While there may be variations by the local authority, in general, the Plan and Inventory include the following:
|Hazardous Materials Management Plan (HMMP)||Hazardous Materials Inventory|
Hazard Classes and MAQs
Hazard classes, as required in the Hazardous Materials Inventory, are listed in IFC Appendix E. They include physical hazards and health hazards, and typically have a number of associated subcategories. A hazard class is not listed on a Safety Data Sheet (SDS). The classes include:
- Compressed Gases
- Flammable and combustible liquids
- Flammable solids
- Combustible dust and powders
- Organic Peroxides
- Pyrophoric materials
- Unstable materials
- Water reactive materials
- Cryogenic materials
- Toxic materials
The MAQ for a hazardous material will determine occupancy requirements and required controls (sprinkler systems, temperature controlled storage etc.). The MAQs are located in:
- IBC Table 307.1(1) and IFC Table 5003.1.1(1) for physical hazard hazardous materials
- IBC Table 307.1(2) and IFC Table 5003.1.1(2) for health hazard hazardous materials
- IFC Tables 5003.1.1(3) and (4) for outdoor control area MAQ
Note that the IBC and IFC are both involved to determine the hazard classification and the associated storage limits and requirements.
Companies with hazardous materials must manage their hazardous materials safely. To ensure that they are meeting the IFC/IBC requirements, it is beneficial for companies to:
- Check with the local fire marshal to determine what needs to be done to meet local requirements, including engineering design requirements.
- Prepare and maintain a facility map identifying storage areas, sprinkler systems, emergency plans, etc. and document it in an HMMP.
- Contact vendors/installers of sprinkler systems and other equipment to ensure that the systems are designed for their intended use. The installer is a good resource for what would be allowed in a particular area and what the limitations of the system might be. This should be verified by qualified engineers.
- Conduct a Hazardous Materials Inventory, if required, to define hazard classes. This may require outside assistance to appropriately classify chemicals.
- Complete any special Hazardous Materials Permits, if required.
- Comply with the conditions of a Permit and with the technical specifications for activities such as maintenance; recognize and manage any changed conditions.
- Regularly inspect and audit the systems for compliance.
Managing hazardous materials is a part of doing business safely. Satisfying local fire marshal requirements will further help ensure that the company, the environment, and the surrounding community remain unharmed.