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Stakeholder Input Sought on Options to Improve Chemical Facility Risk Management

January 8, 2014

On January 3, 2014, the multiagency working group tasked with improving chemical facility safety and security announced that it is seeking stakeholder input on a list of preliminary options to improve risk-management practices at facilities with on-site chemicals. President Obama created the Chemical Facility Safety and Security Working Group in Executive Order 13650, issued in the wake of the April 2013 ammonium-nitrate explosion in West, Texas. The Working Group includes, among others, the Occupational Safety and Health Administration (OSHA), the Department of Homeland Security (DHS), the Environmental Protection Agency (EPA), and the Department of Justice (DOJ). Key initiatives being considered by the Working Group include addressing through additional rulemaking the safe storage, handling, and sale of ammonium nitrate; expanding the list of chemicals subject to the agencies' respective chemical facility security and process safety programs; and targeting upstream oil and gas operations for more robust enforcement.

Section 6(a) of EO 13650 requires the Working Group to "modernize[] key policies, regulations, and standards" in three 90-day phases. Having completed the first phase, requiring the Working Group to "develop options for improved chemical facility safety and security that identif[y] improvements to existing risk management practices," the Working Group has now begun the second phase by engaging "key stakeholders to discuss the options and other means to improve chemical risk management." (In the third phase, the Working Group will "develop a plan for implementing practical and effective improvements to chemical risk management.") Stakeholders wishing to participate in the second phase should comment on the public docket by March 31, 2014, or participate in one of the Working Group's listening sessions (five are now scheduled for January 2014).

Stakeholder input on programs administered by Working Group agencies

The document soliciting stakeholder input (PDF) summarizes federal regulatory regimes governing those involved in chemical production, chemical storage, or agricultural supply. Stakeholders may comment on aspects of the following programs:

  • OSHA seeks input regarding many standards, including Process Safety Management (PSM) (29 C.F.R. § 1910.119), Flammable and Combustible Liquids (29 C.F.R. § 1910.106), Spray Finishing Using Flammable and Combustible Materials (29 C.F.R. § 1910.107), and Explosive and Blasting Agents (29 C.F.R. § 1910.109). In December, OSHA issued a "request for information," which overlaps much of the information sought under Section 6(a).
  • EPA seeks input regarding regulations promulgated under the Emergency Planning and Community Right to Know Act (40 C.F.R. parts 355, 370) as well as the Risk Management Program (RMP) rule (40 C.F.R. § 68).
  • The U.S. Coast Guard, a DHS agency, seeks input regarding maritime critical infrastructure under the authority provided in the Maritime Transportation Security Act (46 U.S.C. § 70101).
  • DHS's National Protection and Programs Directorate seeks input regarding the Chemical Facility and Antiterrorism Standards (CFATS) (6 C.F.R. part 27) and its rulemaking under the Secure Handling of Ammonium Nitrate program (6 U.S.C. §§ 488–488i).
  • The Bureau of Alcohol, Tobacco, Firearms, and Explosives, a DOJ agency, seeks input on best practices for materials used in explosives.

Stakeholder input on options to improve risk-management practices

The Working Group also presents the preliminary options identified during the first phase of Section 6(a) and seeks stakeholder input, with particular focus on the following:

  • examples of successful implementation of the proposed or similar options;
  • benefits of the proposed options;
  • potential limitations or unintended consequences of the proposed options;
  • how to implement the proposed options with an eye toward increasing benefits, reducing costs, or both; and
  • other options that could achieve similar results.

The many proposed options include strengthening ammonium-nitrate regulations; revamping OSHA's PSM and EPA's RMP regulations; harmonizing terminology and definitions across agency jurisdictions; cooperating with industry associations and developers of consensus standards; updating covered chemicals under PSM, RMP, and DHS's CFATS; extending the reach of the PSM and RMP regulations to upstream oil and gas operations; expanding CFATS to consider risks beyond those to human life; and identifying covered facilities that have yet to comply with CFATS.

This list of options is not exhaustive. For more detail, stakeholders involved in chemical production, chemical storage, and agricultural supply activities should consult the Working Group's Section 6(a) solicitation document and stay current on the Working Group's progress by consulting the its website.

For more information, please contact the professional(s) listed below, or your regular Crowell & Moring contact.

Daniel W. Wolff
Partner – Washington, D.C.
Phone: +1.202.624.2621
Warren Lehrenbaum
Partner – Washington, D.C.
Phone: +1.202.624.2755
Evan D. Wolff
Partner – Washington, D.C.
Phone: +1.202.624.2615