The global COVID-19 health crisis has created an unprecedented situation with respect to operating companies in the chemical/processing sector.  While the health crisis has created travel restrictions, social distancing orders, and remote working conditions, operations continue in this sector and the risks of hazardous materials have not abated.  As a result, the prospect of managing process safety and risk management under these circumstances must continue, including process safety risks with a reduced workforce onsite and/or the unavailability of key contractors.  What can we expect for enforcement from EPA and OSHA during this period? EPA has just issued guidance and OSHA is expected to release similar guidance very soon.

EPA issued a notice on March 26, 2020 describing their enforcement policy during the COVID-19 crisis (EPA Press Release and Guidance Memo).  In addition to EPA’s environmental regulations, this notice also applies to the Risk Management Program (RMP) Rule (40 CFR 68).  So how do the contents of this EPA policy affect RMP-covered processes in your facility?  The EPA notice states:

…At the EPA, we are cognizant of potential worker shortages due to the COVID-19 pandemic as well as he travel and social distancing restrictions imposed by both governments and corporations or recommended by the Centers for Disease Control and Prevention to limit the spread of COVID-19. The consequences of the pandemic may affect facility operations and the availability of key staff and contractors…

This statement indicates that EPA understands that certain tasks required by their regulations may be delayed or not possible.  The notice goes on to say:

  1. Entities should make every effort to comply with their environmental compliance obligations.
  2. If compliance is not reasonably practicable, facilities with environmental compliance obligations should:
    1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
    2. Identify the specific nature and dates of the noncompliance;
    3. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
    4. Return to compliance as soon as possible; and
    5. Document the information, action, or condition specified in a. through d.

This indicates that EPA expects compliance obligations to be completed normally and an alternative option is not practical.  For any deviation, EPA expects each compliance delay to be analyzed individually and documented, including the reason why the COVID-19 crisis has impacted your facility.  This caveat is not a blanket waiver of compliance requirements during the crisis.  Finally, EPA goes on to say:

… The EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment… and … Nothing in this temporary policy relieves any entity from the responsibility to prevent, respond to, or report accidental releases of oil, hazardous substances, hazardous chemicals, hazardous waste, and other pollutants, as required by federal law, or should be read as a willingness to exercise enforcement discretion in the wake of such a release.

This statement indicates that completing activities intended to prevent the releases of hazardous materials covered by the RMP Rule, and the process safety incidents that can result, will not be tolerated during the COVID-19 crisis.

So what does all of this mean to the onsite management of RMP programs (and OSHA PSM programs as well) while the working and operational conditions at RMP-covered facilities are affected by the COVID-19 crisis?   Actually, very little will change.  The regulators will have basically the same expectations as before the health crisis, with a few considerations.  Some examples:

  • Would EPA accept the delay of important mechanical integrity program tasks such as pressure vessel external or internal inspections, or the thickness measurements of the same equipment? Not likely if the in-house and/or contractors can maintain the proper social distancing between personnel while performing these tasks.  Simply claiming that the desired contractor is a third party and they are not allowed onsite during the crisis would not likely to be considered acceptable.  Some short delays might be acceptable while personnel who would normally perform inspection, testing, and preventive maintenance (ITPM) activities who are ill or have tested positive for the virus are replaced temporarily, but simply forgetting about scheduled ITPM work will not be acceptable, particularly if the facility keeps operating.
  • Would EPA accept the delay of a programmatic RMP/PSM activity such as a PHA or an audit that comes due during the crisis? With many businesses adapting to virtual means of collaboration, it is entirely possible to conduct a PHA or audit remotely.  It will take some adaptation by facility personnel to get used to doing this type of work virtually, but it can be done, and has been done in the past. Organizations are adopting these processes during the COVID-19 pandemic and showing that these tasks can be completed remotely. It is very likely that EPA will expect companies and facilities to explore these options and prove conclusively that they cannot perform these types of activities virtually before accepting a delay in compliance dates.
  • Would EPA accept the delay of required training? Remote, web-based training has become both technically possible and a popular way to present training in recent years.  Unless there are compelling circumstances, EPA would likely expect regulatory required training to be conducted virtually, unless the required participants cannot be provided with online access to participate.
  • Would EPA allow not following the MOC procedure during the COVID-19 crisis? This is not likely at all.  If operations, including project and maintenance functions, can continue during the health crisis, then essential RMP/PSM programs such as MOC can also continue.
  • Would EPA allow the continued deferral of RMP/PSM tasks and activities that were already overdue before the COVID-19 crisis struck the U.S.? As with ITPM tasks that have lengthy basic intervals, EPA would likely not accept an excuse for further delay if the task or activity should have been completed well before the COVID-19 crisis began in earnest in the U.S.  Examples include updates of process safety information following a turnaround on a unit that occurred in early or mid -2019, or the implementation of new “shall” provisions in a relevant RAGAGEP that was published in 2018.

In summary, short delays in some required RMP and PSM activities might be acceptable to EPA while a facility adapts to the working conditions caused by the health crisis, e.g., a brief period of relief on the deadlines for conducting PHAs, audits, or some ITPM tasks that are less critical.  However, the delay must be convincingly shown to have been caused by COVID-19 working situations and companies should follow the EPA guidance above.  Companies are urged to address all elements of compliance and to determine if any activities or deadlines will be compromised, and to make alternate plans accordingly.  It is likely to be difficult for EPA or OSHA to allow non-compliant situations where alternatives are available even during the intense situation we are facing.

For further information see EPA’s website at and www.epa.gov/coronavirus and OSHA’s COVID-19 page: https://www.osha.gov/SLTC/covid-19/standards.html#directives