I have received numerous calls and e-mails asking how this fetilizer facility with reportedly 52,000 pounds of NH3 was only a Program 2 RMP under EPA's RMP rule. Here is the answer...
The facility must have been utilizing a PSM exemption called "retail facilities" in that the standard (1910.119(a)(2)(i). This exemption states that if the facility's sales of the Highly Hazardous Chemical (HHC) are over 50% of the business's revenue then that HHC is exempted from falling under OSHA's PSM standard. Here is how OSHA worded this in their 2005 LOI:
OSHA considers an establishment to be qualified under the PSM "retail facilities" exemption, if that establishment receives more than half of its income from the direct sales of the PSM-covered highly hazardous chemical (HHC) to end users. The income referenced above applies to the income obtained from the sales of PSM-covered HHCs, and not the total sales of the establishment. For example, establishment A distributes and sells HHC X to a chain of supply stores and to homeowners (end users). Establishment A obtains 60% of its income from the sale of HHC X to the chain of supply stores - these supply stores are not the direct end users or consumers. The other 40% of the income obtained from the sale of HHC X is from sales to homeowners. Since establishment A's income from homeowners (end users) is less than 50%, establishment A does not qualify for the PSM retail exemption. In addition, if establishment A sells other products besides PSM-covered chemicals, the income derived from the sale of the other products is not part of the determination of whether establishment A qualifies for the retail exemption.
Now this OSHA exemption ALSO PLAYS A ROLE in how a facility falls under EPA's Risk Management Programs. 40 CFR Part 68 states the following as to how a facility determines its applicability to it's RMP Program eligibility and you will see 1910.119 plays a role in this determination:
§ 68.10 Applicability.
(b) Program 1 eligibility requirements. A covered process is eligible for Program 1 requirements as provided in § 68.12(b) if it meets all of the following requirements:
(1) For the five years prior to the submission of an RMP, the process has not had an accidental release of a regulated substance where exposure to the substance, its reaction products, overpressure generated by an explosion involving the substance, or radiant heat generated by a fire involving the substance led to any of the following offsite:
(ii) Injury; or
(iii) Response or restoration activities for an exposure of an environmental receptor;
(2) The distance to a toxic or flammable endpoint for a worst-case release assessment conducted under subpart B and § 68.25 is less than the distance to any public receptor, as defined in § 68.30; and
(3) Emergency response procedures have been coordinated between the stationary source and local emergency planning and response organizations.
(c) Program 2 eligibility requirements. A covered process is subject to Program 2 requirements if it does not meet the eligibility requirements of either paragraph (b) or paragraph (d) of this section.
(d) Program 3 eligibility requirements. A covered process is subject to Program 3 if the process does not meet the requirements of paragraph (b) of this section, and if either of the following conditions is met:
(1) The process is in NAICS code 32211, 32411, 32511, 325181, 325188, 325192, 325199, 325211, 325311, or 32532; or
(2) The process is subject to the OSHA process safety management standard, 29 CFR 1910.119.
So as we can see from the EPA rule, a facility that claims the "retail exemption" under OSHA's PSM AND it does not all under any of those listed NAICS codes then the facility does NOT have to be managed as a Program 3 RMP (the highest level of process safety = FULL Prevention and ER programs identical to PSM). This facility, having reported 52,000 pounds of NH3 in their process, and due to it's close proximity to "public receptors" would not have qualified for a Program 1 RMP (as shown in the table below). So as stated above, the facility reported their program as a "Program 2"; which actually appears to be correct - AS LONG as 50% of their actual NH3 sales were to "end users".
PLEASE NOTE: this is JUST AN ASSUMPTION, as we know the facility's RMP stated they were a Program 2 process and this is the ONLY rationale for it being a Program 2. ALSO, PLEASE KEEP IN MIND, it is my professional opinion from my training experience as a "Cause and Origin" investigator from many years ago that this tragic explosion was NOT ammonia vapor or an ammonia storage tank that was involved in this explosion. Rather, my position at this very early stage of the investigation, is that the explosion may have been Ammonium Nitrate. We now, as of 4/19/13, have Dallas ABC news reporting they know that the business was mixing and storing Ammonium Nitrate in the building that was on fire. This is all-important BECAUSE Ammonium Nitrate does NOT fall under OSHA’s PSM nor EPA’s RMP rules! I am not an expert in explosives, nor OSHA's 1910.109 standard so I can not discuss the regualtory requirements around the handling and storage of Ammonia Nitrate. CLICK HERE to see my photo and video analysis of this explosion.
Here is a comparrison of the three (3) program levels in EPA's RMP rule. Remember this fertilizer plant was a Program 2 RMP.
Here are the RMP requirements for the different Program Levels.
PLEASE NOTE this is NOT the first time we have lost FF's in Ammonium Nitrate explosion!!! In 1988, we lost six professional firefighters in Kansas City, KS when they were fighting a fire at a construction site when Ammonia Nitrate exploded. CLICK HERE (pdf) for this USFA investigation report.