Obama Issues Executive Order On Chemical Facility Safety

One small but critically important sub-category of chemical incidents consists of those that can produce mass casualties, usually when a cloud of toxic or superheated gases are spewed out by a fire or explosion. Given America’s fragmented approach to hazardous materials regulation, it’s no surprise that separate regulatory programs have grown up to address these concerns—leading inevitably to overlaps and gaps in coverage.

The separations between these programs have proven hard to span. However, on August 1 President Obama issued an Executive Order (E.O. 13650) designed to bring together federal efforts, to improve the effectiveness and efficiency of efforts to prevent and mitigate chemical catastrophes.

What Are the Primary Catastrophe-Prevention Programs?

The primary regulatory approaches to chemical catastrophe prevention at fixed facilities are the following:

Worker safety – Department of Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA) Chemical Process Safety Management Standard (PSM), addressing:

Each onsite process that involves more than threshold amounts of any of 129 listed highly hazardous chemicals (0-15,000 pounds depending on the chemical), or more than 10,000 pounds of any flammable liquids or gases.
Process hazard analysis, and review of associated training, procedures and equipment.
Upgrades shown necessary to routine and emergency response procedures.

Environmental safety – Environmental Protection Agency (EPA) Accidental Release Prevention (ARP) program under Clean Air Act, addressing:

Any onsite “stationary source” (essentially, a process) that involves more than threshold amounts of any of 77 listed toxic substances (500-20,000 pounds depending on the chemical), or more than 10,000 pounds of any of 63 listed flammable substances.
Process hazard analysis, and offsite consequence analysis (OCA) in pessimistic release scenarios, leading to Risk Management Program (RMP) reflecting upgrades shown necessary to routine and emergency response procedures.

Facility security – Department of Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program, addressing:

Any facility (“chemical facility”) with more than a screening threshold quantity (STQ; 100 grams to 20,000 pounds) of any of 320 chemicals of interest.
“Top-Screen” information submission, followed by DHS review and tentative risk determination, followed by detailed Security Vulnerability Assessment and Site Security Plan applying risk-based performance standards, if required by DHS.

Community right-to-know and emergency response planning – EPA Emergency Planning and Right-to-Know Act (EPCRA) program, including State Emergency Response Commission (SERC), Tribal Emergency Response Commission (TERC) and Local Emergency Planning Committees (LEPCs), addressing:

Any facility with more than threshold planning quantity (TPQ) of any of 355 listed extremely hazardous substances (EHSs), or any other hazardous chemical onsite in quantity exceeding 10,000 pounds.
Facility submission of inventory of covered chemicals, and emergency contact information, LEPC prepares local emergency response plan, under SERC/TERC and EPA oversight.

In addition to these explicitly facility-based programs, the US Department of Transportation (DOT) regulates transportation of hazardous materials, including onsite handling and security planning requirements at facilities involved in shipments (shippers, transporters and receiving facilities).

What Does Executive Order 13650 Require Agencies To Do?

The Executive Order creates a new working group plus additional coordination mechanisms, and sets a series of deadlines for agency action:

Establishes Chemical Facility Safety and Security Working Group, co-chaired by DHS, EPA and DOL; including DOT, Department of Justice (DOJ) and Department of Agriculture; and directed to consult with other security and environmental agencies and the White House.
Within 45 days, Working Group is to establish a pilot program within DHS, EPA and DOL to “validate best practices and to test innovative methods for Federal interagency collaboration regarding chemical facility safety and security”.
Within 90 days:

DHS is to assess the feasibility of sharing CFATS information with SERCs/TERCs and LEPCs.
DOJ’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is to assess the feasibility of sharing data related to explosive materials with SERCs/TEPCs and LEPCs.
Working Group is to consult with the federal Chemical Safety Board to determine whether any specified inter-agency memorandum of understanding (MOU) related to post-incident inspections should be revised.
Working Group is to analyze ways to improve agency data collection and information sharing.
Working Group is to meet with stakeholders and develop options for improvements to agency and facility risk management (including outreach, public and private guidelines, and regulations).
Respective lead agencies are to review and recommend additional chemical listings under ARP, CFATS, and PSM, and DOL to review existing exemptions under PSM.
Working Group is to develop regulatory and legislative proposals for improved handling of ammonium nitrate.

Within 135 days, Working Group is to develop a plan to support state and local regulators and emergency responders, and facilities with chemicals, to improve chemical facility safety and security.
Within 180 days, Working Group is to propose streamlining and enhancement to agency data collection and information sharing.
Within 270 days, the Working Group is to “create comprehensive and integrated standard operating procedures for a unified Federal approach for identifying and responding to risks in chemical facilities”.

What Will This Mean For Organizations That Handle Chemicals?

The overlaps and gaps between ARP and PSM have long caused confusion and frustration for organizational and facility-level operating and compliance personnel. DHS’ more recent CFATS program has added further complications. If the Working Group performs its many tasks successfully, coordination and consistency should improve – although it’s unlikely that requirements will actually be reduced. If your organization handles any chemicals subject to any of these regulatory programs, let alone if any of your facilities is required to comply with any of their requirements, you should track the Working Group’s activities closely, and participate if it’s feasible to do so.

Self-Assessment Checklist

Do any of my organization’s facilities manage chemicals subject to ARP, PSM and/or CFATS?

If so, does any facility comply with:

One of those programs?
More than one of those programs?

Has the organization developed organizational-level and/or facility-level programs for chemical risk assessment and handling consistent with requirements of ARP, PSM and/or CFATS?

Where Can I Go For More Information?

Executive Order No. 13650 (8/1/13), as published in the Federal Register (8/7/13)
DHS CFATS program
EPA ARP program
EPA EPCRA program
OSHA PSM webpage

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with EH&S requirements. These include:

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Environmental Compliance: A Simplified National Guide, Greenhouse Gas Auditing of Supply Chains and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com.

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