In what it describes as a “groundbreaking” report, the U.S. Chemical Safety Board (CSB) strongly urges the EPA to amend its risk management program (RMP) regulations to require that facilities with threshold amounts of high-risk chemicals conduct inherently safer technology (IST) analyses and use the hierarchy of controls when establishing safeguards for identified process hazards.  Until such an amendment is in effect, the CSB further recommends that the EPA use its authority under the Clean Air Act’s (CAA) general duty clause (GDC) to require facilities to meet the IST analysis and hierarchy of controls requirements. 

These recommendations, which could compel major capital investments by companies, result primarily from CSB’s investigation of a fire and explosion at the Tesoro refinery in Anacortes, Washington, in April 2010, which resulted in seven deaths.  According to the CSB, the immediate cause of the accident was a “long-term undetected high temperature hydrogen attack (HTHA), which led to vessel rupture and a massive release of highly flammable hydrogen and naphtha.”

Hierarchy of controls

An IST approach to risks posed by chemicals and chemical processes involves reducing quantities of hazardous chemicals handled or stored, substituting less-hazardous chemicals for extremely hazardous ones, or otherwise modifying the design of processes to reduce or eliminate chemical hazards.  IST decisions are partnered with the hierarchy of controls, wherein the most desirable measure is elimination of the hazard, followed in order of decreasing preference, by substitution, engineering controls, administrative controls, and personal protective equipment.

RMP

In the report, the CSB notes that the existing RMP requirements cover areas such as process safety information, standard operating procedures, training, mechanical integrity, compliance audits, incident investigations, management of change, and prestart-up reviews.  Each covered facility is required to submit an RMP to the EPA for all covered processes and update and resubmit these plans at least every 5 years or whenever a major accident occurs or the emergency contact information changes.  However, the RMP regulations at 40 CFR Part 68 do not require the use or implementation of IST or the hierarchy of controls. 

Reliance on inspections

The CSB states that the Tesoro incident and accidents at other facilities could have been prevented if inherently safer materials of construction (e.g., piping that was less susceptible to corrosion) had been used.  Instead, the Tesoro facility relied on inspections to identify hazards even though the kind of corrosion that led to the incident is extremely difficult to find with standard inspections. 

GDC

Until the EPA issues a new rule under Part 68 or another CAA part to require the IST approach to chemical risk, the CSB urges that the Agency use its authority under the GDC (CAA Section 112(r)(1)).  Among other things, the GDC states that owners and operators (O/O) of stationary sources producing, processing, handling, or storing extremely hazardous substances “have a general duty to identify hazards which may result from accidental releases using appropriate hazard assessment techniques, to design and maintain a safe facility taking such steps as are necessary to prevent releases, and to minimize the consequences of accidental releases which do occur.”

Referring to a letter an EPA official sent to Congress, the CSB says the EPA has acknowledged that it has the authority to require application of IST through the GDC.  “Despite its acknowledged authority it do so, to date the EPA has not required industries to implement IST through either the creation of new rule or enforcement of the General Duty Clause,” says the CSB. 

New Jersey example

The CSB suggests that actions taken by the EPA to write an IST rule could follow the example of New Jersey, the only state that currently implements and enforces IST requirements.  Under the state’s Toxic Catastrophe Prevention Act, the O/O of a covered facility must complete an IST review and submit it to the state’s Department of Environmental Protection.  The report must identify available IST alternatives that minimize or eliminate the potential release of an extraordinarily hazardous substance.  The O/O is required to implement only feasible IST alternatives.  If IST is not implemented, the facility must provide a written justification using a qualitative and quantitative evaluation of environmental, public health and safety, legal, technological, and economic factors.  If the O/O decides to implement the IST, a schedule for doing so must be provided.

The CSB report