PT Notes
Amendments to EPA's RMP Rule - Technical Clarifications
PT Notes is a series of topical technical notes on process safety provided periodically by Primatech for your benefit. Please feel free to provide feedback.
EPA has proposed several amendments relating to the RMP rule. This PT Note addresses additional regulatory requirements relating to technical clarifications for the rule.
EPA has identified various aspects of the RMP rule that use different terminology for the same requirement in the rule, have outdated definitions, or would be simpler for sources to implement with more discussion in the text of the regulation. Therefore, EPA is proposing some amendments to the regulatory text to simplify implementation for facilities, as well as oversight, thereby improving chemical safety. EPA notes that the proposed amendments do not change the meaning of the RMP rule.
Process Safety Information
RMP regulations require that facilities keep process safety information up to date. However, currently, this requirement is expressed differently for Program 2 and Program 3 processes and in the latter case is not explicit. Therefore, in order to make the regulation more consistent, EPA is proposing to clarify that the requirement to keep process safety information up to date explicitly applies to Program 3 processes.
Compliance With RAGAGEP
The current RMP regulations outline two different, albeit similar, ways to comply with RAGAGEP for Program 2 and Program 3 processes.
For Program 2 processes, the current rule states “The owner or operator shall ensure that the process is designed in compliance with recognized and generally accepted good engineering practices.” (Emphasis added)
For Program 3 processes, the current rule states “The owner or operator shall document that equipment complies with recognized and generally accepted good engineering practices.” (Emphasis added)
EPA is proposing to harmonize these two provisions so that the requirements are identical. EPA has found that the distinction between ''ensure'' for Program 2 processes and ''document'' for Program 3 processes creates confusion. EPA believes that requiring facilities to document compliance, rather than merely ''ensure'' compliance, removes this ambiguity. Additionally, the language for Program 3 refers to ''equipment,'' while the language of Program 2 refers to the ''process.'' EPA favors “process”.
Also, for Program 2 processes, an additional requirement of the current regulation states, “Compliance with Federal or state regulations that address industry-specific safe design or with industry-specific design codes and standards may be used to demonstrate compliance with this paragraph.” EPA is proposing to remove this sentence because, in some cases, Federal or State regulations lag behind current RAGAGEP and thus do not provide the same level of protection.
The new proposed language is “The owner or operator shall ensure and document that the process is designed and maintained in compliance with recognized and generally accepted good engineering practices.”
Retention of Hot Work Permits
The current requirement in the RMP rule to issue a hot work permit, including documentation of necessary fire protection and prevention measures, applies to Program 3 processes. It requires the permit only to be kept on file until completion of the hot work operations. Therefore, it can be difficult during an inspection for implementing agencies to determine if the facility has been conducting hot work in compliance with the requirements of the RMP rule, unless the facility is conducting hot work at the time of the inspection and has hot work permits on file.
Therefore, EPA is proposing to require retention of hot work permits for 5 years after the completion of hot work operations to address this issue.
Storage Incident to Transportation
Currently, the term ''stationary source'' in the RMP rule does not apply to transportation activities, including storage incident to transportation for any regulated substance or any other extremely hazardous substance. A stationary source does include transportation containers connected to loading / unloading equipment or used for storage not incident to transportation, but the term ''storage not incident to transportation'' is not defined in the RMP regulations. Preamble language and responses to frequently asked questions posted on EPA’s website clarify that a container is considered to be in transportation as long as it is attached to the motive power (e.g., truck or locomotive) that delivered it to the site. If the tank car is detached from the motive power, and therefore no longer in transportation, the contents of the tank car must be considered in the threshold determination to assess coverage under the RMP rule.
EPA is proposing additional regulatory language that includes a specified number of hours that a transportation container may be disconnected from the motive power that delivered it to the site before being considered part of the stationary source. EPA believes that this provision would provide clarity for regulated parties and implementing agencies on whether a transportation container used for onsite storage must be incorporated into a facility's risk management plan. EPA is proposing to apply a 48-hour time frame to this term based on the Department of Transportation (DOT), Pipeline and Hazardous Materials Safety Administration, Carriage by Rail regulations, that indicate rail carriers must forward each shipment of hazardous materials promptly within 48 hours after acceptance or receipt. The 48 hours would be the total amount of time, such that a railyard could not move a rail car around in the railyard using a mobile railcar mover to start the clock again.
EPA is also proposing to modify the definition of stationary source to further clarify ''storage incident to transportation'' by adding an explanation to the transportation container language in the stationary source definition. The proposed regulatory text would add examples of what a transportation container could be, such as a truck or railcar, and that for RMP purposes, railyards and other stationary sources actively engaged in transloading activities may store regulated substances up to 48 hours total in a disconnected transportation container without counting the regulated substances contained in that transportation container toward the regulatory threshold.
The proposed revised definition of stationary source is:
Stationary source means any buildings, structures, equipment, installations, or substance-emitting stationary activities which belong to the same industrial group, which are located on one or more contiguous properties, which are under the control of the same person (or persons under common control), and from which an accidental release may occur. The term stationary source does not apply to transportation, including storage incident to transportation, of any regulated substance or any other extremely hazardous substance under the provisions of this part. A stationary source includes transportation containers used for storage not incident to transportation and transportation containers connected to equipment at a stationary source for loading or unloading. A transportation container is in storage incident to transportation as long as it is attached to the motive power that delivered it to the site (e.g., a truck or locomotive); however, railyards and other stationary sources actively engaged in transloading activities may store regulated substances up to 48 hours total in a disconnected transportation container without counting the regulated substances contained in that transportation container toward the regulatory threshold. Transportation includes, but is not limited to, transportation subject to oversight or regulation under 49 CFR part 192, 193, or 195, or a State natural gas or hazardous liquid program for which the State has in effect a certification to DOT under 49 U.S.C. 60105. A stationary source does not include naturally occurring hydrocarbon reservoirs. Properties shall not be considered contiguous solely because of a railroad or pipeline right-of-way.
Retail Facility Exemption
The current definition of ''retail facility'' in the RMP rule is
A stationary source at which more than one-half of the income is obtained from direct sales to end users or at which more than one half of the fuel sold, by volume, is sold through a cylinder exchange program.
EPA believes that the period of sales to end users is unclear in this definition in that it lacks a definite time frame in which to calculate whether more than one half of the facility's direct sales are to end users. EPA believes that specifying a definite period of time would eliminate this uncertainty and allow owners and operators to determine more accurately whether regulated substances in a process are subject to the RMP provisions. EPA also believes that it may reduce the amount of sales documentation that the owner or operator of a regulated facility must provide to establish its status as a retail facility. Therefore, EPA is proposing to adjust the regulatory text to clarify that the definition of ''retail facility'' is one in which more than one half of the ''annual'' income ''in the previous calendar year'' is obtained from direct sales to end users or at which more than one half of the fuel sold over that period, by volume, is sold through a cylinder exchange program. EPA is proposing one year of sales activity because the Agency believes it captures the seasonality of propane sales at propane distribution facilities.
The proposed revised definition of retail facility is:
A stationary source at which more than one half of the annual income (in the previous calendar year) is obtained from direct sales to end users or at which more than one half of the fuel sold, by volume, is sold through a cylinder exchange program.
RAGAGEP
The RMP rule contains requirements to comply with recognized and generally accepted good engineering practices (RAGAGEP) but does not define its meaning. In the absence of a definition, EPA states that initially it looks to the latest version of industry codes, standards, and practices to determine whether an owner or operator has documented compliance with RAGAGEP. EPA believes this application makes sense, because the plain meaning of the phrase is that practices should be ''recognized,'' ''good,'' and ''generally accepted'' and the latest version of RAGAGEP contains industry's most up-to-date assessment of practices that meet these criteria.
EPA is proposing that the RMP rule clarify that the process hazard analysis (PHA) must address any gaps in safety between the codes, standards, or practices to which the process was designed and constructed and the most current version of applicable codes, standards, or practices.
EPA is also proposing to require owners or operators to specify in their risk management plans why PHA recommendations associated with adopting practices from the most recent version of RAGAGEP are not implemented.
In a separate proposed amendment to the RMP rule regarding declined recommendations arising from natural hazard, power loss, and siting hazard evaluations, EPA is proposing to allow facilities to choose from pre-selected categories for not implementing recommendations. These categories are based on OSHA guidance wherein an employer may decline to adopt a PHA recommendation if, based upon adequate evidence, the employer can document that one or more of the following conditions is true:
- The analysis upon which the recommendation is based contains material factual errors.
- The recommendation is not necessary to protect the health and safety of the employer's own employees, or the employees of contractors.
- An alternative measure would provide a sufficient level of protection.
- The recommendation is infeasible.
EPA is proposing to adopt three of these four rationales for not adopting PHA recommendations associated with adopting practices from the most recent version of RAGAGEP.
EPA is not proposing to adopt the rationale that ''The recommendation is not necessary to protect public receptors'' because EPA believes there are many safety measures, such as pipe labeling, training, and some standard operating procedures, that do not directly affect public receptors, but that can have indirect or secondary effects on responders or public receptors. If owners or operators were to screen out recommendations that do not directly affect public receptors, the Agency is concerned that facilities may discount important recommendations.
For this provision, the Agency is also proposing to modify the rationale that ''An alternative measure would provide a sufficient level of protection'' by adding that the safety measures adopted in lieu of the ones recommended by the PHA team must be recognized and generally accepted. EPA believes this will help ensure that facilities do not ignore updated RAGAGEP when making decisions about which PHA recommendations to accept or reject.
Additional Considerations
EPA acknowledges the need for reviewing the list of RMP-regulated substances and the requirement for EPA to periodically review the list. EPA notes that a priority chemical for its upcoming review will be ammonium nitrate. EPA also acknowledges the need for considering expanding fenceline monitoring for RMP-regulated facilities. While EPA is considering both of these issues for a future action, EPA states that they are beyond the scope of the notice of proposed rulemaking. The issues are further discussed in the Technical Background Document.
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