New Jersey is an Equal Opportunity Employer **l** Printed on Recycled Paper and Recyclable D EPARTMENT OF E NVIRONMENTAL P ROTECTION
CHRIS CHRISTIE BOB MARTIN Governor Commissioner
KIM GUADAGNO Lt. Governor Bureau of Release Prevention PO Box 420, Mail Code 22

- 03D Trenton, NJ 08625

- 0420 Tel: (609) 633

- 0610 Fax: (609) 633

- 7031 October 1, 2014
OSWER Docket, EPA Docket Center Mail Code 2822

- 1T Environmental Protection Agency 1200 Pennsy lvania Avenue NW Washington, D.C. 20460 Attention Docket ID No. EPA

- HQ

- OEM

- 2014

- 0328

Re: Accidental Release Prevention Requirements Request for Information Docket ID No. EPA

- H Q

- OEM

- 2014

- 0328 To Whom It M ay

Concern : The New Jersey Department of Environmental Protection (“Department”) appreciates this opportunity

to respond to the Request fo r Information on potential revisions to the Environmental Protection Agency ’s Risk Management Program regulations, 40 CFR Part 68, in response to Executive Order 13650. The Department is one of the first regulatory agencies in the country

with process saf

et y management rules and has implemented an accidental release prevention program since 1986 following the adoption of New Jersey ’s Toxic Catastrophe Prevention Act (“TCPA”) on January 8, 1986. The initial TCPA Program rules at N.J.A.C. 7:31 were adopted in 1988. In1998, the Department readopted the TCPA Program rules and i ncorporated the 40 CFR Part 68 rules by reference with specified changes. The Department r eceived delegation as the implementing agency for the Risk Management Program regulations on Ju ly 3, 2001. Currently , the Department oversees compliance at 93 facilities subject to the TCPA Program rules. These facilities encompass a wide range of industries such as chemical manufacturing, petroleum refining, water and wastewater treatment, refrigeration/cold storage, power generation , and chemical warehouse/distribution. These facilities handle 67 regulated substances with a total registered quantity of 265,173,702 pounds. The TCPA Program’s Chemical Safet y Engineers conduct compliance inspections and audits at the subject facilities every one to three ye ars.Page **2** of **19**COMMENTS OF THE NJDEP ON THE POTENTIAL REVISIONS TO THE RI SK MANAGEMENT PROGRAM AT 40 CFR 68 The following comments are organized into sections as outlined in the RFI using the same paragraph numbers
II. C. 1.a . Adding Other Toxic or Flammable Substances The TCPA Program rules and the Federal Risk Management Program rules currentl y regulate toxic and flammable substances. The TCPA Program rules incorporate b y reference the EPA list of regulated flammable substances at the EPA 10,000

- pound threshold with no changes. However, there are more toxic substances regulated as Extraordinarily Hazardous Substances ( EHSs ) under New Jersey ’s T CPA P rogram than under the Federal program. L isted below are the toxic substances on the TCPA EHS list that are not regulated toxic substances under the Federal program. The basis for the selection criteria used for listing substances is found in the TCP A definition of extraordinarily hazardous substance (EHS). The current TCPA list is comprised of toxic substances at threshold quantities that meet the statutory definition of an EHS, which is “ an y substance . . . in sufficient quantities . . . such that its release into the environment would produce a significant likelihood that persons exposed will suffer acute health effects resulting in death or permanent disability .” The selection criterion used by the Department in 1988 for including substances on the EHS list, the Substance Hazard Index (SHI), fulfills the statutory

requirement to regulate substances having significant potential for lethal acute toxicity

and high volatility

. The Substance Hazard Index (SHI ) is a single value computed for a substanc e based on the following two factors combined as a ratio: equilibrium vapor concentration at 20 degrees Celsius divided by

the Acute Toxicity

Concentration ( ATC ) or the lethal concentration to five percent of the exposed population ( LC 5 )

. The greater the volatility and the greater the acute toxicity (that is, the lower the acute toxicity concentration), the greater the SHI of a substance will be. The TCPA SHIcriterion for selecting substances is the specific SHI value of 1,388, which reflects the equili brium vapor concentration and ATC of a 36 percent aqueous solution of hy drogen chloride (hy drochloric acid). All substances regulated under TCPA are as hazardous as this substance, which in itself is highly hazardous and regulated as an EHS.
SUBSTANCES ON THE TCPA EHS LIST THAT ARE NOT ON THE USEPA TOXIC SUBSTANCES LIST (Note: Substances with asterisks are also listed on the EPA flammable substances list.)

NAME OF EHS CAS NUMBER SHI ACETALDEHYDE* 00075

- 07

- 0 6579 ALLYL CHLORIDE 00107

- 05

- 1 13384 BORON TRIBROMIDE 10294

- 33

- 4 1447 BROMINE CHLORIDE 13863

- 41

- 7 10000 BROMINE PENTAFLUORIDE 07789

- 30

- 2 45132 CARBON MONOXIDE 00630

- 08

- 0 1751 (10% by volume or greater)CARBONYL FLUORIDE 00353

- 50

- 4 27778

CHLORINE PENTAFLUORIDE 13637

- 63

- 3 175439 CHLORINE TRIFLUORIDE 07790

- 91

- 2 104167 CHLOROPICRIN 00076

- 06

- 2 6579 CHLOROPRENE 00126

- 99

- 8 1419 CYANOGEN* 00460

- 19

- 5 28571 DIAZOMETHANE 00334

- 88

- 3 100000 DICHLOROACETYLENE 07572

- 29

- 4 346260 DICHLOROSILANE* 04109

- 96

- 0 36765 DIETHYLAMINE 00109

- 89

- 7 1493 DIMETHYLAMINE* 00124

- 40

- 3 4975 ETHYL MERCAPTAN* 00075

- 08

- 1 2100 ETHYLAMINE* 00075

- 04

- 7 8157 HEXAFLUOROACETONE 00684

- 16

- 2 36364 HYDROBROMIC ACID (conc. 62% or greater) 10035

- 10

- 6 2105 HYDROGEN BROMIDE (anhydrous) 10035

- 10

- 6 20000 ISOPROPYLAMINE* 00075

- 31

- 0 8103 KETENE 00463

- 51

- 4 588235 METHACRYLALDEHYDE 00078

- 85

- 3 6316 METHYL BROMIDE 00074

- 83

- 9 38462 METHYL DICHLOROSILANE 00075

- 54

- 7 1548 METHYL FLUOROACETATE 00453

- 18

- 9 39277 METHYL FLUOROSULFATE 00421

- 20

- 5 92105 METHYL IODIDE 00074

- 88

- 4 18716 METHYL VINYL KETONE 00078

- 94

- 4 389254 METHYLAMINE* 00074

- 89

- 5 10000 NITROGEN DIOXIDE (10% by volume or greater) 10102

- 44

- 0 141398
NITROGEN TETROXIDE 10% by volume or greater) 10544

- 72

- 6 141398
NITROGEN TRIFLUORIDE 07783

- 54

- 2 5000 NITROGEN TRIOXIDE 10544

- 73

- 7 141398 OSMIUM TETROXIDE 20816

- 12

- 0 95943 OXYGEN DIFLUORIDE 07783

- 41

- 7 6666667 OZONE 10028

- 15

- 6 2083333 PENTABORANE 19624

- 22

- 7 750000 PERCHLORYL FLUORIDE 07616

- 94

- 6 25974 PHOSPHORUS TRIFLUORIDE 07783

- 55

- 3 1890 PROPYLAMINE 00107

- 10

- 8 1413 SELENIUM HEXAFLUORIDE 07783

- 79

- 1 200000 STIBINE 07803

- 52

- 3 333333 SULFUR MONOCHLORIDE 10025

- 67

- 9 1864 SULFUR PENTAFLUORIDE 05714

- 22

- 7 738158 SULFURYL FLUORIDE 02699

- 79

- 8 3311 TELLURIUM HEXAFLUORIDE 07783

- 80

- 4 1000000 TETRAFLUOROHYDRAZINE 10036

- 47

- 2 20000 THIONYL CHLORIDE 07719

- 09

- 7 73680 TRICHLOROSILANE* 10025

- 78

- 2 25155 TRIFLUOROCHLOROETHYLENE* 00079

- 38

- 9 11547 TRIMETHOXYSILANE 02487

- 90

- 3 9474 TRIMETHYLAMINE* 00075

- 50

- 3 4022 VINYL TRICHLOROSILANE 00075

- 94

- 4 1551USEPA’s criteria for selecting substances differ from TCPA’s Substance Hazard Index

(SHI) criterion. USEPA used two separate criteria, one representing substance toxicity , and the other representing volatility

. The USEPA criteria are not based on a specific substance, but are designed to limit the list to a practical number of the most hazardous substances. The USEPA criteria for selecting substances are a median lethal concentration (L C 50 ) of 2.0 grams per cubic meter (g/m 3 ) or lower in all but the case of chloroform , and a vapor pressure of 10 torr or higher at 25 degrees Celsius. A total of 4 9 substances meet both TCPA’s and USEPA’s selection criteria. For example, a substance such as acrylonitrile is listed by USEPA because it has an L C 50 of 1.27 g/m 3 and a vapor pressure of 115 torr at 25 degrees Celsius. The SHIfor acrylonitrile is 1,896 and, therefore, it is listed in the TCPA regulations. Additionally , there are five substances listed as mixtures on the TCPA and EPA toxic lists that have different specified concentrations. A total of 5 6 substances meet the TCPA SHIcriterion but not the USEPA criteria. F or example , boron tribromide was selected for the TCPA list because it has an SHI of 1,447. It has sufficient vapor pressure, 55 torr, to meet the first part of the USEPA criteria, but with an L C 50 of 5.2 g/m 3 , it does not meet the second part of the USEPA criteria

. Finally , 30 substances meet the USEPA criteria but not the TCPA SHIcriterion . For example, carbon disulfide meets the USEPA criteria with an L C 50 of 1.0 g/m 3 and a vapor pressure of 360 torr at 25 degrees Celsius, but its SHIof 1,236 falls just below the TCPA SHI criterion of 1 , 388. These 30 substances are included in the Table I, Part B list because the TCPA program must regulate all federally regulated toxic substances. The TCPA toxic substances that are not also on the USEPA toxic substances list, but which meet the SHI criteria, represent hazards at least as severe as those of substances on the USEPA list. The benefits of their continued inclusion as EHSs are significant reductions of scientifically

supported estimates of potential deaths or perm anent disability in the communities surrounding these existing sites. In addition, owners or operators in New Jersey may come under the purview of the TCPA rules because of their EHS mixtures. Under the Federal program , certain amounts of regulated subst ances contained in mixtures , where the concentration of the regulated substance is below one percent b y weight or its partial pressure is less than 10 millimeters of mercury, need not be considered when determining whether more than a threshold quantity is present at the stationary source. The TCPA rules require that the amounts of EHSs contained in mixtures at a concentration at or above the acute toxicity concentration must be considered when determining whether more than a threshold quantity is present. Ingeneral, the acute toxicity concentration of an EHS is much less than one percent. However, the stricter requirement for determining thresholds for EHSs in mixtures should have very little effect on the scope of stationary sources subject to the rule s since EHSs are generall y stored at much higher concentrations. The different concentration cutoffs may affect whether equipment in a downstream process is subject to the rules.II. C. 1. d

. Adding Reactive Substances and Reactivity Hazards In 2003, the Department added certain reactive hazard substances as extraordinarily hazardous substances at Table I, Part D at N.J.A.C. 7:31

- 6.3 , thus making them subject to the TCPA rules at listed threshold quantities. Investigations of the accidents at two New Jersey companies, Napp Technologies in 1995 and Morton International in 1998, identified reactive substances as contributors to the root cause of these accidents and raised concerns about reactive hazards to a national level. Inaddition, as repo rted in its October, 2002 publication, the United States Chemical Safet y Board (CSB) concluded that of the 167 incidents that occurred between 1980 and 2001, over 50% involved reactive hazards. On April 22, 2014 , the CSB released the preliminary

findings of its investigation into the April 17, 2013, West Fertilizer explosion and fire in West, Texas which resulted in at least14 fatalities, 226 injuries, and widespread community

damage. The CSB’s investigation focuses on shortcomings in existing regulations , standards, and guidance at the federal, state , and county level. O n August 20, 2013 , the CSB released a video safet y m essage call ing for regulatory coverage of reactive chemicals. The safet y message also d escribe s other serious reactive chemical accide nts investigated b y the CSB since its 2002 study . These include a December 19, 2007, explosion and fire at T2 Laboratories in Jacksonville, Florida; a January 31, 2006, explosion at the Sy nthron chemical manufacturing facility in Morganton, North Carolina ; and an April 12, 2004, toxic release at MFG Chemical in Dalton, Georgia. Reactive substances are those that can cause a dangerous release of heat, energy , toxic vapors , or gases when exposed to conditions that may occur in either normal or abnormal situations. Although an explosion or fire involving a reactive hazard substance is more directl y responsible for the off

- site harm, some amount of the reactive hazard substan ce will be released into the environment. Examples of reactive substances include spontaneously combustible materials, water reactive substances, and flammable solids. The term reactive hazard substance is defined at N.J.A.C. 7:31

- 1.5 as follows: “Reacti ve hazard substance” or “RHS” means an EHS that is a substance, or combination of substances, which is capable of producing toxic or flammable EHSs or undergoing unintentional chemical transformations producing energy and causing an extraordinarily

hazardo us accident risk. RHSs are identified at N.J.A.C. 7:31

- 6.3(a), Table I, Part D, Group I (List of Individual Reactive Hazard Substances)

. The Department considered the circumstances under which a reactive hazard substance could be classified as an EHS and cause a catastrophic accident , and determined that there are two likely

scenarios. The first scenario involves unintentional reactions caused by the inherent properties of the chemical itself. These chemicals may be unstable or self

- reacting , or may

r eact if they are unintentionally

exposed to air or water. Inthe second scenario, the accident is caused by the intentional mixing of two or more chemicals in a process. In order to identify the chemicals that may

be involved in each scenario, the Department reviewed several technical sources to determine which chemicals or chemical functional groups, as defined at N.J.A.C. 7:31

- 1.5, have the potential to cause these unintentional and intentional reactions that would impact the public bey ond the propert y boundary of the stationary

source. In developing its list of reactive E xtraordinaril y H azardous S ubstances that are likel y to cause unintentional reactions, the Department reviewed existing lists of reactive substancescompiled by nationally

recognized fire protection and emergency response agencies. The Department first reviewed the National Fire Protection Association (NFPA) lists of substances contained in the NFPA’s Fire Protection Guide to Hazardous Materials (Thirteenth Edition). The NFPA Section 704, Identification of the Hazards of Materials for Emergency Response , categorizes substances by the t ype and degree of hazard (from the lowest level of 1 to the highest level of 4) posed b y the substance. Chapter 7 of that document discusses instability hazards and defines each of the four degrees of hazard associated with unstable materials. The Department focused on the NFPA level 4 unstable substances and substances that NFPA classifies as water reactive substances. The NFPA level 4 unstable substances are defined as materials which in themselve s, without an initiating force, are readily capable of detonation , explosive decomposition , or explosive reaction at normal temperatures and pressures. The water reactive substances release energy when combi ned with water , causing an explosive reaction. The Department also reviewed the lists of spontaneously combustible, flammable solids, and dangerous when wet materials on the United States Department of Transportation’s (USDOT) Hazardous Materials Table at 49 CFR 172. The Department focused on these li sts, 49 CFR 172.101, Class 4, Divisions 4.1, 4.2, and 4.3, because of their potential to be involved in a hazardous chemical reaction. The NFPA level 4 unstable substances and the list of water reactive substances , as well as the three USDOT Class 4 lis ts at 49 CFR 172.101 were then further evaluated in light of their chemical composition and their potential impact on the health and safet y of the public. To accomplish this, the Department reviewed L. Bretherick’s Handbook of Reactive Chemical Hazards (S ixth Edition, 1999 ), recognized as an authoritative source on the reactive hazards of chemicals. Bretherick’s handbook lists specific classes of chemicals which contain functional groups that present an inherent hazard b y themselves or when reacted with o ther chemicals. As defined at N.J.A.C. 7:3

- 1.5, these functional groups represent chemical compounds that have similar structural, molecular features which impart similar phy sical characteristics or reactive properties to the compounds in that group (e. g. peroxides, halites, n

- nitroso compounds). The Department reviewed the chemical composition of each of the unstable substances listed on the NFPA level 4 list, water reactive substances list , and the USDOT Hazardous Materials Table Class 4.1, 4.2 , and 4.3 lists to determine whether they contained one of the functional groups. By comparing the list of functional groups to the NFPA level 4 unstable substances, the water reactive substances , and the substances on the three USDOT lists, the Department retaine d the substances that present a severe hazard to the public. Those substances containing a listed functional group are list ed as EHSs at Table I, Part D, Group I, List of Individual Reactive Hazard Substances at N.J.A.C. 7:31

- 6.3(a). In addition to the chemical classes identified b y Bretherick, the Department reviewed accident histories involving reactive hazards to identify additional functional groups to be regulated. The Department then reviewed the NFPA and USDOT lists to select additional substance s that should be added to the list of individual reactive hazard substances at Table I, Part D, Group I. As a result of this review, the Department include d on this list the following chemicals that contain the dithionite functional group: calcium dithion ite, sodium dithionite, and potassium dithionite. These dithionites were selected because of their accident history and their reactive, spontaneous decomposition and explosive properties.Along with each reactive hazard substance listed in Table I, Part D, Group I, the

Department developed a threshold quantity which , if met, would trigger coverage under the TCPA program. The thresholds are based on the amount of reactive hazard substance needed to impact the public bey ond an assumed propert y boundary of 100 meters using an overpressure value of 2.3 pounds per square inch (psi). The 100 meters represents an average distance from the covered process to the propert y line for facilities in New Jersey

. A pressure of 2.3 psi was chosen because damage to nearb y buildings and other structures severe enough to cause serious personal injuries has been documented at that overpressure. Using these values, the Department used the TNT equivalency method equation to calculate threshol d quantities for unintentional reactions:

W= (D/24) 3 *(1024/E) Where W = threshold quantity (TQ) of reactive hazard substance (pounds) D = distance to propert y line (100 meters = 328 feet) 24 = the scaled distance for the mass of TNT that results in a blast overpressure of 2.3 psi (feet/pound 1/3 ) E = energy

of explosion of the reactive hazard substance (calories/gram) 1024 = the energy

of explosion for TNT (calories per gram) The TN T equivalency

method is an industry

accepted method described in consequence anal ys is literature. The TNT equivalency method is used by

USEPA in its guidance document for the performance of an offsite consequence analy sis for flammable substance explosion s. In the TNT equivalency

method, the explosive energy of a reactive hazard substance is related to an equivalent amount of TNT. For this equation, the Department originally intended that the energy

of explosion be used to estimate the threshold quantity. The energy of explosion is the amount of energy released when a substance explodes. However, the energy of explosion for many

selected chemicals was not available in the technical sources the Department used. Therefore, the Department estimated the e xplosion energy

of each reactive hazard substance by applying 28% to the value of the heat of combustion or 100% to the value of the heat of decomposition of the substance, which were values that were readily

available in technical sources. The value of 2 8% for the heat of combustion was selected because the ratio of energy of explosion to heat of combustion for many highl y reactive substances, such as TNT, is 28%. By appl yi ng this equation, the Department calculated the threshold quantity of each indivi dual reactive hazard substance. Although there was some variation in the resulting values, the Department assign ed the same threshold quantity of 2500 pounds to all but three reactive hazard substances, which were all dithionite compounds

. The threshold quantity

calculation for these three chemicals

— calcium dithionite, sodium dithionite, and potassium dithionite (also known as calcium hydrosulfite, sodium hy drosulfite, and potassium hy drosulfite) resulted in threshold quantity values that were much higher than those calculated for the other Group I chemicals. However, the multiple hazards of reactivity ,spontaneous decomposition, and explosivity of these chemicals , coupled with their accident history , required that they be listed with a threshold quantity that was lower than values derived from the actual calculations. Therefore, the Department establish ed the threshold quantity of each of these three dithionite compounds at 5000 pounds. The list of individual reactive hazard substances and their regulated thresholds is provided at Table I, Part D, Group Iat N.J.A.C. 7:31

- 6.3(a). The second reactive hazard substance catastrophic scenario the Department considered involves intentional mixtures. I n determining when intentional mixtures would be covered under TCPA, the Department first considered requiring facility owners or operators to obtain the heat of reaction (  H) for each of their intentional reactions to determine the potential for a catastr ophic accident. For exothermic reactions, which are chemical reactions that release heat,  H is a negative value. Generally , a higher negative  H results in a greater impact from an accident. Because of the large number of intentional reactions that ty picall y occur at many f acilities and the resources involved with testing or determining the heat of reaction, the Department limit ed coverage of the TCPA rules to intentional mixtures that are products, by products , or reactants containing the same function al groups that were used to select the individual reactive hazard substances listed in Table I , Part D, Group I. These functional groups were chosen for the Department’s initial listing of reactive hazard substance mixtures because they are inherentl y uns table, increasing the potential for a catastrophic accident when mixed or blended with other chemicals. These functional groups are listed at Table I, Part D, Group II at N.J.A.C. 7:31

- 6.3(a). The Department add ed five additional functional groups that w ere not included in Bretherick’s list to Table I , Part D, Group II. The chemicals in these functional groups are known to have an accident history , although none are included in the NFPA and USDOT lists. These five functional groups are listed in Table I , Part D, Group II as numbers 6, 40, 41, 42, and 43. Subsequently , in 2008 , the Department added functional group number 44, organometallics, following the catastrophic explosion at T2 L abs. Intentional mixtures involving at least one chemical that conta ins a Group II listed functional group must be tested to determine the  H of that reaction. Once the  H is known, the threshold quantity is determined by referencing Table II at N.J.A.C. 7:31

- 6.3(c). The Department calculated the threshold quantity value s i n Table II b y using the same TNT equivalency

equation used for unintentional reactions described above (328 feet distance to overpressure endpoint, and 2.3 psi overpressure endpoint value) , but with  H as the heat of reaction with a 100 % yi eld factor. Using 100% of the heat of reaction as the estimate for the energy of explosion is a conservative, but reasonable assumption since the reaction and explosion are occurring in a confined process vessel. The results of these calculations rounded off to the nearest 100 pounds are listed in Table II at N.J.A.C. 7:31

- 6.3(c). Table II contains the threshold quantities for ten  H ranges from

- 100 calories/gram to

- 1000 calories/gram of RHS Mixture. Threshold quantities for each  H range are listed in Table II and decrease as the negative  H, and the potential consequence, increases. Mixtures having  H values of less than

- 100 calories/gram are not covered under the TCPA program, because the Department has determined that an accidental release of the mixturepre sents minimal risk to public health and safet y and the environment. Any RHS Mixture having a  H of more than

- 1000 calories/gram presents a high level of risk to the public and is regulated at a threshold of 2400 pounds of RHS Mixture.

II. C. 1. g
. Lo wering the Threshold Quantity for Substances Currently on the L ist The threshold quantities assigned to the toxic New Jersey TCPA EHSs were established to attain the TCPA statutory goal and were individually set b y using the TCPA threshold determination method. Each threshold quantit y established under this method is that quantity whose potential release over a one hour period at a point 100 meters from the point of release is estimated to result in a death bey ond the propert y boundary . This method assumes a population density of 10,000 persons per square mile, a value chosen to reflect the average population density of New Jersey

cities. The 100 meter distance between the point of potential release and the site boundary

was chosen as representative of distances to propert y boundaries in New Jersey

. Each threshold quantity has been calculated using dispersion modeling and mortalit y curves that directly

reflect the acute toxicity

concentration (ATC) of the respective substance, and its equilibrium va

por pressure at 20 degrees Celsius for substances that are normally liquid s
. USEPA determines the threshold quantity of a substance by

a method different from that used by the TCPA program. While substances regulated by both programs represent a hazard t o the community

at specific acute toxicity

concentrations, each substance in the TCPA program is assigned a unique threshold value. The TCPA program determined the threshold value as the quantity whose release would disperse as a cloud covering an area having a specified population density to result in a consequence of death or permanent disability . In contrast, the USEPA method ranks substances by a toxicity

/volatilization rate ratio into classes to which arbitrary threshold values have been assigned. T hus, USEPA assigns the same threshold value to several substances with disparate characteristics. As a result of the differences in threshold quantity determination, the TCPA threshold quantity is lower than the USEPA threshold quantity in 4 6 out of 4 9 c ases where the toxic substance is listed on both the existing TCPA list (Table I, Part A) and the USEPA list (Table I , Part B). The existing TCPA threshold quantity values are appropriate for New Jersey because of the number of small , congested industrial sites in New Jersey handling such substances and the s tate’s high population density in areas surrounding those industrial sites, which the TCPA threshold determination method takes into account. A TCPA threshold quantity release mod eled by this method would result in the potential for 15 persons to suffer from acutely toxic effects with, statistically , one fatality . By comparison, the average USEPA threshold quantity of a substance when modeled by the same TCPA threshold determinati on method shows the potential for 606 persons to suffer from acutel y toxic effects with statistically 108 fatalities. From the 4 6 toxic substances listed by both TCPA and USEPA for which the TCPA threshold quantity is lower , the USEPA threshold quantity , if released, based on the same acute toxic effect criteria, would potentially

affect as many

as 11,426 persons, as compared to 15 persons potentially affected b y the release of the TCPA threshold quantity of the same substance.T he TCPA requires faciliti es that have an EHS at or above a threshold quantity at the facility to have a risk management program (RMP). Therefore, a facility must count the total aggregate quantity

of an EHS at the facilit y when determining threshold quantity applicability, regard less of where or how the EHS is stored. This prevent s facilities from segregating inventory of an EHS solely

for the purpose of evading the rules. Every process having an EHS must implement an RMP; however, the depth and complexity of complying with each of the elements of the RMP will vary depending on the complexity of the individual process. For example, the level of detail of risk management program documentation for elements such as process safet y information, standard operating procedures, process hazard analy sis/risk assessment, maintenance requirements, and training will be less complex for a storage area than for a complex reaction process. Separation of equipment and/or processes could be considered an inherently safer method, but the concept i s similar to implementing process safeguards and lay ers of protection , such as installing detection and automatic shutdown systems, mitigation systems, or adding inhibitors to reactive substances . The separation of equipment is an administrative method th at requires the ongoing implementation of elements such as a management s ystem, standard operating procedures, training, and management of changes, or in other words , a risk management program , to make it work effectivel y . Also, separating equipment or inventory to fall below regulatory

threshold requirements should not be done without careful consideration. For example, location in relation to the propert y line, the public, other equipment, and other stored materials must be considered so that applicable codes and standards are being followed and that the risk of an accidental release is not increased. However, for insignificant amounts handled at a separate section of a facility , the facility should implement risk management program requirements at a level of detail appropriate for inconsequential amounts. Finally , threshold quantity applicability under the EPA rules is determined only by the instantaneous static inventory of a regulated substance in a process. The TCPA statute explicitly includes both “generation” and “storage and handling” of extraordinaril y hazardous substances as regulated activi ties. Under the TCPA program rules, the inventory used to determine threshold quantity

applicability is the greatest of the instantaneous static invent ory of the EHS contained and stored, the hourly generation rate of the EHS, or the amount of the EHS that can be released in one hour from any EHS equipment

. Several owners or operators are subject to the TCPA Program rules because one or more of their pr ocesses generates, or is capable of generating, an EHS at threshold quantities over a one

- hour period of time. One group that may be affected b y this if their processes are capable of generating ozone at threshold quantities is New Jersey

water purveyors using ozone to disinfect potable water. Because ozone is not a f ederally regulated substance, these owners and operators come under the purview of the TCPA rules solely

because ozone is a s tate

- regulated EHS generated b y their processes. Another example is the regulation of hy drogen sulfide at petroleum refineries. The hy drogen sulfide is generated at a high rate, but the instantaneous static inventory within vessels or piping is relativel y low; however, a large release could occur if equipment fails bef ore the process is shut down.II. D .1 . Safer Technology and Alternatives Anal ys is

In 2008, the Department adopted rule amendments to require all TCPA facilities to conduct inherentl y safer technology (IST) review s. Inherent safet y technology evaluation is a well

- established concept that was introduced b y process safety experts almost forty ye ars ago. In corporating the IS T approach to the risk management programs can be more effective in risk minimization. Generally , I ST could be considered as changes that are integral to the process or product which are not easil y defeated or changed without fundamentally changing the process or plant design. However, the TCPA program recognized the fact that the potential for such changes would be limited f

or facilities that have been in operation for several y ears. Therefore, a broader definition of I ST was used that would apply the IS T concept to passive, active , and procedural controls as well as to the fundamentals of the process. To enhance an overall risk management program, the general strategy for reducing risk by

reducing the frequency

and/or consequence of potential accidents can be classified into four categories in decreasing order of reliability: reducing or eliminating the hazard, passive controls, active controls , and procedural controls. When considering alternative approaches to these controls, selections or modifications can be made that are inherentl y safer in their operation by being more reliable, fast er to respond, or simpler in operation

. For example, procedural controls can be replaced with active or passive controls; active controls can be replaced with passive controls, etc

. Passive protection means minimizing the hazard by process and equipment design features that reduce the frequency or consequence of the hazard without the active functioning of an y device. Active protection means using engineering controls such as instrument controls, safet y interlocks, and emergency shutdown sy stems to detec t and correct process deviations. Procedural protection means using administrative controls such as operating procedures, administrative checks, emergency response, and other management approaches to prevent incidents or to minimize the effects of an inci dent

. Performing an IST review is probably most cost effective when designing new processes. However, as stated b y the C enter for C hemical P rocess S afet y (CCPS) in Inherentl y Safer Chemical Processes

- A Life Cy cle Approach at page 25 1 , “It is never too late to consider inherently

safer alternatives ” . Major enhancements to the inherent safet y of plants which have been operating for man y ye ars have been reported (CCPS, 1993a 2 ; Wade, 1987 3 ; Carrithers et al., 1996 4 ).” Also, continuing to perform IST evalu ations in the later stages of a facilit y’s life cycle is valuable because new technologies may be available that were not available when the facility initially was designed and constructed. For this purpose , the TCPA program rules require an IS T evaluation to be p erformed on the same schedule as the process hazard anal ys is (PHA) with risk assessments revalidations and updates. The PHA revalidation is required every five y ears, and updates are required for changes to the process. Because of this broader approach to IST that was used in the rules, many of the I STs that were identified for implementation are in the passive, active , and procedural controls category

.There are several cases also where changes that are inherent to the fundamentals of the process

were made. The TCPA I ST rules did not mandate the implementation of any I ST measures that were identified as a result of the I ST review. However, of the 85 initial I ST reports that were submitted to the Department, 45 facilitie s chose to implement a total of 205 IST measures. Two water treatment facilities replaced chlorine with sodium hy pochlorite (bleach)

. The I STs that were selected for implementation by the facilities were anal yz ed to determine whether they

wou ld result in any

risk shifting. Out of the 205 IST measures, e xcept for the substitution of c hlorine with bleach at the two water treatment facilities , none of the other 203 I ST measures had potential for shifting risk to another location outside the facility or to transportation. Risk shifting did not occur at the water treatment facilities that substituted chlorine with sodium hypochlorite because one facility used bleach that is generated on site , and the other facility

continued to use the same supplier that both manufactures bleach and repackages c hlorine. The following T ables 1 and 2 and Figures 1 and 2 summarize the results of the initial I ST reviews at 85 facil i ties. **Table 1. Summary of IST Implem entation by Industry Sector**  Industry Sector Number

of Facilities in Sector Number

of Facilities with IST Number of IST

Measures I mp lem ented Percent of

Facilities Im plem enting IST Average

Number of IST Measures Im plem ented per Facility Chemical Mfg. 39 20 113 51.3 5.7 Petroleum Refinery 4 2 6 50.0 3.0 Food Processing 14 12 59 85.7 4.9 Pow er Generation 6 1 1 16.7 1.0 Water and Wastew ater 13 7 16 53.8 2.3 Other 9 3 10 33.3 3.3 Total 85 45 205 52.9 4.62 15 24 121

7 36

0 20 40 60 80 100 120 140SubstitutionMinimizationModerationSimplificationLocation,Siting,TransportationOther**N u** **m b** **e r** **o f** **I S** **T**

**Figure 1. Number of IST Measures Implemented or Scheduled by**  **T yp**  **e of IST Strategy Table 2.**  **Summary of Simplification IST Implementation by Industry Sector**

Industry Sector Automation,

controls Valve

access, operability Sensors,

alarms Sensors,

shutdown Equipment

design Operating

procedure im proved Passive

leak limiting Chemical 14 7 7 1 26 3 0 Refinery 0 0 1 0 1 2 0 Food 15 1 6 2 13 2 5 Pow er 0 0 0 1 0 0 0 Water 2 0 1 0 5 1 0 Other 1 0 2 2 0 0 0 Total 32 8 17 6 45 8 5 0 5 10 15 20 25 30 35 40 45 50

Automation, controls Valve

access, operability Sensors,

alarms Sensors,

shutdown Equipment

design Operating

procedure improved Passive leak

limiting **Figure 2. Number of Simplification IST Measures** 

**Implemented by**

**T yp**  **e N** **u m** **b e** **r o** **f I** **S T** II. D

. 6

. In cident Investigation and Accident History Requirements Regulated facilities located in New Jersey are required to submit a summary of EHS accidents and potential catastrophic events annually to the Department

. The term potential catastrophic event means an incident during which no EHS was released or no EHS was released bey ond permitted levels , or in other words , a near miss. The AI ChE

- CCPS provides definitions and examples of process safet y near misses in two of its publications: the CCPS b ook, Guidelines for Investigating Chemical Process Incidents, Second Edition, March 2003, page 61; and Pr ocess Safety

L eading and Lagging Metrics

– You Don’t Improve What You Don’t Measure, January

2011, page 36. Some of the examples include the following:

- Excursions of process parameters bey ond pre

- established critical control limits.

- Activation of lay ers of protection such as relief valves, interlocks, rupture discs, blowdown sy stems, halon sy stems, vapor release alarms, and fixed vapor spray s ys tems.

- Activation of emergency shutdowns. Table 3 below summarizes the incidents reported to the New Jersey D epartment of Environmental Protection between 2002 and 2011. Each ye ar , less than fifty percent of the facilities reported that they had one or more incidents. Most of the incidents reported involved the release of an EHS. The number of near misses repo rted average d less than 1 per facility

.

**Table 3**  **. EHS Incidents Reported in TCPA Annual/Triennial Reports** Calendar Year Total #

of In cidents Reported # of Near

Misses (no release) # of

Facilities that Reported Ave. # of

In cidents per Facilit y Max. #

of In cidents Reported by a Facilit y # of

Facilities that Reported an In cident Max.

Quantity Released (lbs.) *See Note 1 2002 169 13 90 1.9 30 34 42,717 2003 209 12 79 2.6 58 34 8,900 2004 199 5 87 2.3 53 24 75,000 2005 267 25 76 3.5 82 24 51,666 2006 298 37 72 4.1 93 28 63,704 2007 327 39 80 4.1 97 28 7,219 2008 244 18 67 3.6 67 25 122,000 2009 209 12 68 3.1 54 24 7,600 2010 220 20 77 2.9 68 21 54,800 2011 228 9 79 2.9 89 22 17,955 *Note 1: Each ye ar, the maximum quantity of an EHS released was a Flammable Substance or Flammable Substance Mixture.This may not be an accurate representation of the near misses that have actuall y occurred based on data seen at Dow Chemical. A recent study (Nesmith et al., 2012) 5 reported b y Dow Chemical , illustrated in Figure 3 below, shows that a well

- managed near miss sy stem is expected to help identify

problems at the earl y stages and eliminate causal factors, reducing the probability of having major accidents/releases.

Figure 3 : One of Dow Chemical’s North American Sites (Nesmith et al., 2012)
Another study

published by

Jones et al. (1999) 6 on Norsk Hydro shows the benefits of investigating near misses. Norsk Hydro is an offshore drilling and on

- shore refining company in Norway

. They

started to implement a near miss program in 1985 at their off

- shore drilling facility where they

employ ed 3 500 people. The data between 1985 and 1997 shows that their lost time injuries decreased from about 230 per y ear to about 30 per ye ar. During the same period, their n ear m iss reporting rate went from zero to 0.5 near miss es per person per year. Th e cause for not reporting near misses could be a misunderstanding of the reporting requirements , or a company culture that does not encourage the reporting of near misses. It may also be a concern with perception because the term used for near misses in the TCPA Program rules is “potential catastrophic events.” A list of potential catastrophic events in the annual report required b y the TCPA Program rules may be misleading to people who are not directly involved in the process.

II.D. 11

. The “Safet y Case” Regulatory Model The overall goal of the TCPA rules is the prevention of catastrophic releases of toxic, flammable, and reactive Extraordinarily Hazardous Substances (EHSs). In addition toperforming a process hazard anal ys is, facilities must conduct a risk assessment p ursuant to the

requirements of N.J.A.C. 7:31

- 4.2 . F or each release scenario that has an offsite impact which could potentially

result in a fatalit y or permanent disability as determined following the procedure outlined at N. J.A.C. 7:31

- 4.2(c), the owner or operator must evaluate the release likelihood. I f the likelihood of release occurrence meets or exceeds the specified likelihood criterion, feasible risk reduction measures must be evaluated and implemented. Feasible is d efined at N.J.A.C. 7:31

- 1.5 as “capable of being successfull y accomplished, taking into account environmental, public health and safet y, legal, technological, and economic factors.” In this way , the rules lead to minimization of the risk of EHS releases. The TCPA Program rules do not require that the consequences or likelihood be reduced to an “acceptable risk” level.

II.D. 12

. Streamlining RMP Requirements
T he Department d etermined that the distinction between Program 2 covered processes and Program 3 covered processes does not necessarily relate to the potential risk s present ed b y these process es . For example, some Program 2 processes can show much worse offsite impacts than Program 3 covered processes. Additionall y, some critical Program 3 elements, such as hot work permit, emplo yee participation, contractors, and management of change should be required for Program 2 covered processes because these elements are important for an effective risk management program. Also, applicability of the TCPA Program rules is not triggered by a particular level of acceptable frequency of serious accidents. Ev en if a particular industry does show a lower number of reported incidents than other industries, individual facilities within that industry may have higher rates of incidents or more severe potential consequences. Accordingl y, the Department deleted the Program 2 requirements , and compliance with the Act and TCPA Program rules is triggered only by the quantities of EHSs at a facility . An y facility with a threshold quantity

of an EHS must implement a Program 3 risk management program. However , the risk m anagement program for a simpler process such as a storage area will be significantl y less onerous than one for a complex process at a refinery or at a chemical manufacturing facility

. The Program 3 elements and rule requirements are recognized as good eng ineering and operating practices for any facility that handles hazard ous substances, regardless of the extent of the potential offsite consequences of a release. This is substantiated in numerous process safet y management references, such as Loss Preventi on in the Process Industries by Frank P. Lees, and publications by

the Center for Chemical Process Safet y of the American Institute of Chemical Engineers. Also, pursuant to the OSHA Process Safety Management standard, 29 CFR 1910.119, elements that were n ot included under Program 2 such as management of change, risk assessment, hot work permits, contractors, and employ ee participation are an important part of a comprehensive risk management program and must be implemented at all facilities subject to the O SHA rules. In Guidelines for Developing Quantitative Safet y Risk Criteria, Center for Chemical Process Safet y of the American Institute of Chemical Engineers , March 2007, CCPS discusses implementing a process safet y management s ys tem with 20 elements for high risk activities at a facility

. In addition to the Program 3 elements required under 40 CFR 68, CCPS recommends implementing elements such as process safety culture, stakeh older outreach, compliance withstandards, conduct of operations, measurements and metrics, and management review and

continuous improvement.

**References :** 
1. Center for Chemical Process Safety (2009), Inherently Safer Chemical Processes

- A Life Cycle App roach , New York: American Institute of Chemical Engineers.
2. Center for Chemical Process Safety (1993a) , Guidelines for Engineering Design for Process Safety , New York: American Institute of Chemical Engineers

. 3. Wade, D.E. (1987). Reduction of Risks by Redu ction of Toxic Material Inventory. In J.L. Woodw ard (Ed.) Proceedings of the International Symposium on Preventing Major Chemical Accidents, February 3

- 5, 1987, Washington, D.C. (2.1

- 2.8.) New York: American Institute of Chemical Engineers.
4. Carrithers, G.W., Dow ell, A.M., and Hendershot, D.C. (1996). It’s never too late for process safety. In International Conference and Workshop on Process Safety Management and Inherently Safer Processes. October 8

- 11, 1996, Orlando FL (pp. 227

- 241)

. New York: American Institute of Chemical Engineers.
5. Nesmith G., Keating J.T., and Zacharias L.A. (2012). “Process Safety Near Misses in Dow Chemical: a Proactive Program to Improve Process Safety Performance,” 2012 AIChE Spring Meeting, April 1

- 4.
6. Jones S., Kirchsteiger C., Bjerke W. (1999), “The importance of near miss reporting to further improve safety performance.” J. Loss Prevention Process Ind., 12 (1), 59.