Executive Order can enhance safety by focusing on underlying issues

On April 17, 2013, an ammonium nitrate explosion occurred at the West Fertilizer Company storage and distribution facility in West, Texas, eighteen miles north of Waco in rural Texas. Tragically, fifteen people were killed, more than 160 were injured, and more than 150 buildings were damaged or destroyed. Investigators have confirmed that ammonium nitrate was the trigger for the explosion, but the cause of the initial fire is as yet unknown and still under investigation.

Despite the fact that the West Fertilizer Company is regulated by seven different state and federal government agencies, the plant was last inspected by Occupational Safety and Health Administration (OSHA) in 1985. OSHA officials said the facility was not on their “National Emphasis Plan” for inspections because it was not a manufacturer, had no record of a major accident, and the Environmental Protection Agency did not consider it a major risk.

The tragic accident at West underscores the importance of looking for ways to enhance the implementation of existing regulations and coordination between agencies as well as reaching out beyond the chemical manufacturing industry to ensure that the small facilities located in remote, rural communities understand their regulatory obligations and safety standards under which they should operate. It also underscores the importance of a well informed and trained local emergency response community.

The accident also served as the impetus for Executive Order 13650 (EO), signed by President Obama last August. The EO wisely notes that measures can be taken by the federal government utilizing existing regulatory authority to enhance safety and security in coordination with chemical facility owners and operators.  It also created the Chemical Facility Safety and Security Working Group (the Working Group) to facilitate interagency, industry and broad stakeholder collaboration.  As we have pointed out in our letter to President Obama, ACC agrees that several opportunities exist to enhance safety and security throughout the industry.

Over the past few weeks the Working Group has held several listening sessions to discuss key issues with a wide variety of stakeholders.  During these sessions ACC has offered numerous recommendations during various listening sessions as well as in the recent written comments we submitted to the Working Group urging the federal government to improve the effectiveness of existing regulatory programs, increase the coordination amongst the agencies that oversee security and safety, and step up outreach and coordination efforts with the regulated community as well as with emergency responders and local communities.

Practical security regulations and industry programs currently in place

Numerous regulatory programs in place today, which require chemical facility operators to take a hard look at their operations and do what it takes to make them safer and more secure, are as follows:

  • The Occupational Safety and Health Administration’s (OSHA) Process Safety Management of Highly Hazardous Chemicals (PSM) standard,
  • The U.S. Environmental Protection Agency’s (EPA) Risk Management Plan (RMP) Rule,
  • The U.S. Department of Transportation’s (DOT) Haz Mat regulations under the Pipeline and Hazardous Materials Safety Administration (PHMSA), and
  • The U.S. Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS).

In addition to these initiatives, ACC’s Responsible Care® program requires our members to develop sound process safety and emergency response plans which are crucial to minimizing the chance of an incident occurring.

Under the program, ACC members work with emergency responders and communities to coordinate response plans; to maintain dialogue about relevant risks and their impact on human health, safety, security, and the environment; and to continually improve industry performance. As part of this commitment, ACC recently adopted a new Process Safety Code which is intended to enhance operational safety throughout member company operations.

ACC members continue to build on our safety efforts through partnerships with government organizations, and we continually look for ways to enhance safety by improving the effectiveness of regulations, as well as look for better ways to share best practices and lessons learned.

The EO directs the Working Group to develop options that take advantage of private sector initiatives that will help improve how the federal government oversees the management of chemical safety and security.  We believe that increased regulatory recognition and the leveraging of industry performance improvement programs, such as ACC’s Responsible Care® program, are essential components for advancing the effectiveness of the current federal approach.  By recognizing private sector initiatives, the federal government can incentivize the creation of similar safety and security improvement programs across the chemical sector, thus expanding its reach to “outlier” facilities, including small and medium size operations such as the West Fertilizer Company.

Better Coordination with Local Officials

Regulatory requirements and industry programs alone will not guarantee safety.  Sharing chemical information and emergency response plans with those who have a need to know is critical, and under Responsible Care members are obligated to work closely with local emergency planning groups, fire departments, and local law enforcement to understand the risks and to be prepared.  There are also existing laws, such as the Emergency Planning and Community Right-To-Know Act (EPCRA) that mandate such information be shared.  ACC strongly supports the efforts under the EO to address improved coordination between agencies that possess this information and collaboration with local first responders and emergency planning committees.

However, the need for localities and the public to have critical information must be met without releasing sensitive facility security information or confidential business information to the general public.  Any proposal concerning enhanced information sharing must address the real life concern that sensitive facility security information or confidential business information, if provided broadly, could be used by those who wish to do us harm and potentially jeopardize community safety and security.

“Safer alternatives” mandates unnecessary

As we and others have told the Working Group, we believe the misplaced attention to proposals related to “safer alternatives” will ultimately distract from work on many other pieces of the EO that have yet to be addressed and will lead to unnecessary and duplicative regulatory obligations that do not enhance safety or security.

We pointed out in our comments that any new regulatory requirement focused on “safer alternatives” would at a minimum divert federal agency resources away from the primary objective of the EO – namely, to engage facilities that may have previously been “off the radar” and that truly need help with security and safety measures.  At worst, it would create a regulatory quagmire where federal agencies are deluged with thousands of complex IST evaluations and lack the expertise, manpower, and authority to make a meaningful difference. One EPA official has already described such a requirement as “monumentally difficult.”

We also have explained that evaluating and attempting to mandate “safer alternatives” also comes with numerous pitfalls. For one, what does “safer” mean? Who decides which factors go into the decision process for determining “safety?” For example, the Clean Air Act only permits EPA to evaluate safety relative to accidental emissions into the ambient air, and, more to the point, no one agency could ever have the authority or capability to review all of the potential safety and security measures that could be employed at chemical facilities.

The current performance based regulations in place today and the marketplace itself already provide strong incentives for companies to consider and adopt “safer alternatives.”  These programs allow facility operators to use all of the risk management tools and options at their disposal, while considering the complexities of their unique operating environment.  Adding a regulatory component that specifically addresses “safer alternatives” as part of the EO is not only unwarranted but potentially harmful, as it would create regulatory confusion and continue to stretch agency and facility management resources.

Focus on delivering tangible results

Ultimately, ACC and our members have the primary responsibility to ensure the safety and security of our employees and neighbors. The chemical industry proudly holds one of the strongest safety records in the entire U.S. manufacturing sector. And we are confident we can reach the proposed safety goals through our companies’ continual devotion to the management and control of hazards through existing regulations, industry best management practices and robust safety programs.

Rather than developing new regulatory programs that will create additional complexity and no tangible benefits, the Working Group must stay focused on better coordination among federal, state, and local agencies, as well as improved enforcement and compliance assistance of existing regulations.  Additionally, increased attention and resources should be given to outreach, education, and training in order to improve regulatory effectiveness and ensure that “outliers” are fully aware of their regulatory obligations.

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