EPA Considers Revising Risk Management Plan Rules to Prevent Ammonium Nitrate Releases

The U.S. Environmental Protection Agency (EPA) is evaluating whether or not to add ammonium nitrate to the list substances regulated under its Risk Management Plan (RMP).  EPA's announcement comes as a request for information, which often signals a federal agency's intent to pursue notice-and-comment rulemaking. Ammonium nitrate (AN), a chemical that is used as both a fertilizer and as an explosive, is used in the highly explosive Ammonium Nitrate-Fuel Oil (AN-FO). This is one of the most popular explosives for a variety of applications such as quarrying, mining and in construction.  Among the key questions is whether EPA should reconsider listing explosives on its RMP list. The RMP list of covered chemicals consists of 77 toxic substances and 63 flammable substances. However, the list doesn’t include AN.  EPA is requesting information on how to best address the safe storage, handling and risk management of AN. Currently, AN is not a listed substance under the RMP regulation. EPA's RMP rule (40 CFR 68) seeks to prevent and mitigate accidental releases of listed toxic and flammable substances.  Requirements under the RMP rule include development of a hazard assessment, a prevention program, and an emergency response program. EPA listed high explosives on the RMP list in 1994 but removed them in early 1998, in a settlement of litigation with the Institute of Makers of Explosions, which had challenged the listing, claiming that it is already sufficiently regulated by other federal agencies. Ammonium Nitrate Rules Already ‘On the Books’ EPA already regulates ammonium nitrate under the Emergency Planning and Community Right-to-Know Act (EPCRA), Sections 311 and 312. Those provisions require owners or operators of facilities covered by the Occupational Safety and Health Administration (OSHA) to submit a material safety data sheet (MSDS) for each “hazardous chemical” to state/local emergency response commissions and local fire Department; an emergency and hazardous chemical inventory form also must be submitted annually. The Department of Transportation (DOT) also regulates transportation of ammonium nitrate under its Hazardous Materials Regulations. Ammonium nitrate is listed in DOT’s Hazardous Materials Table 49 CFR 172.101. In addition, the Bureau of Alcohol, Tobacco, and Firearms (ATF) of the Department of the Treasury regulates the storage and handling of AN as an explosive material (either as part of an explosive or as a blasting agent) (27 CFR 555.201-224). What is more, OSHA regulates the storage, handling, and transportation of AN when it is used in explosives, water slurries, gels or blasting agents (29 CFR part 1910.109 (a)-(h), (k)) or when stored on-site with explosives or blasting agents.  OSHA issued its own RFI in December 2013 seeking, among other things, comments on potential revisions to its Process Safety Management Standard (29 CFR 1910.119), as well as its Explosive and Blasting standard, to improve its approach to preventing hazards associated with AN.  (AN is not currently covered by OSHA's PSM standard.) Next Steps As OSHA develops its approach to improve workplace safety associated with ammonium nitrate hazards, EPA will consider if additional action is needed to complement OSHA regulations. Specifically, EPA will decide whether the coverage provided to ammonium nitrate facilities is sufficient or whether ammonium nitrate should be included in its RMP regulation. A recent Government Accountability Office (GAO) report recommends that EPA and OSHA, respectively, consider revising their related regulations to cover ammonium nitrate and jointly develop a plan to require high-risk facilities with ammonium nitrate to assess the risks and implement safeguards to prevent accidents involving this chemical.  The GAO states that “While much can be achieved under current regulations, OSHA and EPA’s regulations contain gaps with respect to ammonium nitrate that may allow unsafe facilities to operate and poor planning to persist.” The agency’s Request for Information comes one year after President Obama issued Executive Order 13650: Improving Chemical Facility Safety and Security, which was intended to address gaps in U.S. chemical security rules following a major ammonium nitrate explosion in West, Texas.  In furtherance of this Executive Order – and as previously report by AGC – EPA, OSHA and ATF issued a Chemical Advisory: Safe Storage, Handling, and Management of Ammonium Nitrate, EPA 550-S-13-001, on the hazards of ammonium nitrate storage, handling and management. While the 2014 request for information is not a formal rule proposal, the momentum is swinging in the direction of an eventual proposed rule. As an alternative to expanding the scope of the RMP, EPA has solicited public input on expanding the use of EPCRA information (such as better integration of information on explosive hazards into local emergency plans) and other governmental and industry programs (including voluntary programs) to address any safety gaps.  AGC will monitor EPA action on these topics evolve and report on any new developments. Comments and other information in response to the RFI must be submitted to the RFI docket by Oct. 29, 2014. Please contact Leah Pilconis, senior environmental advisor to AGC, at pilconis@agc.org if you have questions.