Proposed regulations designed to prevent chemical accidents are not justified by the data and could result in consolidation at the retail level, groups representing agricultural chemical dealers are telling the Environmental Protection Agency.
EPA published a proposal in August that would require more than 11,000 facilities nationwide to look closely at facility location and the risks of “natural hazards.” In a small subset of operations, the proposal also calls for safer alternatives to the chemicals the facilities are producing.
The proposed rule essentially revives changes to the Risk Management Program regulations that had been withdrawn by the Trump administration.
“Should the rule be promulgated as proposed, it would impose explicit requirements for companies to consider the potential for hurricanes, floods, and other natural phenomena as they review and revise their process safety programs, emphasizing potential impacts on environmental justice communities,” Beveridge & Diamond, an environmental law firm, said in an analysis.
Communities concerned about nearby chemical operations and environmental groups have called for more stringent regulations, citing both the risks to them of accidental chemical releases and the increased probability of disasters because of climate change.
A 2021 report co-authored by the Union of Concerned Scientists, the Center of Progressive Reform, and Earthjustice found that one-third of RMP facilities in the U.S. are located in areas known to be at risk of inland flooding, coastal flooding, storm surge, and wildfires.
But ag industry groups argue among other things that accident rates have gone down significantly in recent years.
Joint comments submitted by 20 groups — including The Fertilizer Institute, Agricultural Retailers Association and the National Oilseed Processors Association — say “the agency suggests that the mere occurrence of any accidents provides justification for additional regulation.”
But “accidents occur rarely, with only 3% of RMP facilities reporting an accident [from 2016-2020],” they said. “In other words, 97 percent of all RMP facilities had no reportable accidents in the most recent reporting period. That remarkable improvement in process safety results from the existing performance-based framework.”
EPA acknowledged the accident rate reduction but also said in its proposal that about 39% of accidents from 2004-2020 had off-site impacts. The agency also said tighter regulations are needed to address environmental justice concerns
Carlton Waterhouse, EPA“This rule is a critical piece of EPA's work to advance environmental justice as these facilities are often located in communities that have historically borne a disproportionate burden from pollution,” Carlton Waterhouse, the agency’s deputy assistant administrator for the Office of Land and Emergency Management, said at a listening session in September.
ARA, which represents pesticide and fertilizer dealers, warn in separate comments that the increased regulatory burden could mean fewer operations in the long run. In particular, the availability of anhydrous ammonia could be limited.
“If significant additional regulatory requirements are placed on agricultural retailers, many would seriously consider consolidating facilities or getting out of the anhydrous ammonia business altogether,” ARA says. “This would mean reduced availability of a critical fertilizer product, an increase in the price of food, and ultimately it would hurt American agriculture’s ability to produce an abundant and affordable food supply.”
In separate comments, the Kansas Agricultural Retailers Association says more than 25% of RMP-regulated facilities “are for agricultural anhydrous ammonia, our industry will be faced with over 25 percent of the increased compliance costs from the proposal.”
The Kansas group says a facility selling 500 tons of ammonia fertilizer annually with a gross margin of $50 per ton, more than half the facility's gross sales would go toward compliance costs.
“It seems unlikely that this incredible cost increase on one industry is justified by a corresponding increase in process safety and risk management,” the group says. “Add in other costs of doing business, and most facilities would not remain profitable. The industry would, in fact, face closure in many instances and consolidation in the balance.”
The Fertilizer Institute filed its own comments that criticize EPA's proposed consideration of “external events,” which the group says is “overly broad and transmutes the focus of hazard reviews and [process hazard assessments] from the hazards ‘of’ the covered process to the hazards ‘to’ the covered process.”
The hazard analysis requirements would apply somewhat differently to RMP-covered operations depending on their size. The Agricultural Retailers Association says approximately 3,300 bulk agricultural chemical facilities store enough anhydrous ammonia on-site (10,000 pounds or more) to trigger RMP reporting requirements.
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Farmers are now keeping more anhydrous on their farms, yet are exempt from RMP requirements so long as it is being used as a nutrient, ARA says. “The risk of an accidental release from anhydrous ammonia is as great or greater from these non-regulated facilities,” ARA says.
ARA and TFI both tout the ResponsibleAg program, which subjects ag retailers “to comprehensive and extensive regulatory inspections by trained auditors who have completed extensive training by the Asmark Institute,” TFI says. The institute is “a private, not-for-profit organization that serves as a leading national resource center for compliance materials and services.”
“There are 2,600 registered facilities in the ResponsibleAg program, and 4,621 facilities have been audited by third-party auditors to ascertain compliance with applicable regulations,” TFI says. “These audits have covered more than 600,000 safety, environmental and security points, 107,375 identified issues have been corrected, and 910 facilities have achieved full recognition as certified ResponsibleAg facilities.”
One issue on the horizon is the possible inclusion of facilities storing ammonium nitrate in the RMP program.
The Natural Resources Defense Council argues EPA “should expand the RMP to cover production and storage facilities for fertilizer and other highly hazardous chemicals not currently covered,” specifically citing the West, Texas, fertilizer plant explosion in 2013 that killed 15 people.
EPA also cites the Texas blast in the proposal and a recommendation from the federal Chemical Safety and Hazard Investigation Board that fertilizer-grade ammonium nitrate be included on the list of RMP substances. Ammonium nitrate is “a priority chemical for EPA's upcoming review” of RMP substances, the agency said in its proposal.
But the ARA notes that the CSB also concluded that the fire at the West plant, which detonated between 40 to 60 tons of AN, was deliberately set, and that no RMP violations were identified.
“Given that the EPA’s RMP program was designed to address accidental releases of extremely hazardous materials into the air such as anhydrous ammonia, not to address storage-related issues for products like FGAN, ARA opposes adding FGAN to the EPA’s RMP list,” ARA says.
In addition, ARA says, “If EPA is particularly concerned with issues directly related to the operation and maintenance of critical equipment, like failing to perform safety inspections or ensure its mechanical integrity and implementing stringent enforcement to prevent accident[al] hazardous substance releases, it stands to reason the agency would have cited West Fertilizer for RMP compliance violations of existing requirements.”
EPA anticipates publishing a final rule in August.
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