New Jersey is an Equal Opportunity Employer l Printed on Recycled Paper and Recyclable

DEPARTMENT OF ENVIRONMENTAL PROTECTION

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 Pennsylvania 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-HQ-OEM-2014-0328

To Whom It May Concern:

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

opportunity to respond to the Request for 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 safety 

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. In 1998, the 

Department readopted the TCPA Program rules and incorporated the 40 CFR Part 68 rules by

reference with specified changes. The Department received delegation as the implementing 

agency for the Risk Management Program regulations on July 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 Safety 

Engineers conduct compliance inspections and audits at the subject facilities every one to three 

years.
Page 2 of 19

 
COMMENTS OF THE NJDEP ON THE POTENTIAL REVISIONS TO THE RISK 

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 currently 

regulate toxic and flammable substances. The TCPA Program rules incorporate by 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 TCPA Program than under the Federal program. Listed 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 

TCPA 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 “any 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 substance 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 (LC5). 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 SHI criterion for selecting substances is the specific SHI value of 1,388, 

which reflects the equilibrium vapor concentration and ATC of a 36 percent aqueous solution of 

hydrogen chloride (hydrochloric 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 1551
USEPA’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 (LC50) of 2.0 grams per cubic meter (g/m3) 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 49 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 LC50 of 1.27 

g/m3and a vapor pressure of 115 torr at 25 degrees Celsius. The SHI for 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 56 substances meet the TCPA SHI criterion but not the USEPA criteria. For 

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 LC50

of 5.2 g/m3, it does not meet the second part of the USEPA criteria.

Finally, 30 substances meet the USEPA criteria but not the TCPA SHI criterion. For 

example, carbon disulfide meets the USEPA criteria with an LC50 of 1.0 g/m3and a vapor 

pressure of 360 torr at 25 degrees Celsius, but its SHI of 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 permanent 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 

substances contained in mixtures, where the concentration of the regulated substance is below 

one percent by 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. In general, 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 rules since EHSs are generally 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. In addition, as reported in its October, 2002 publication, the United 

States Chemical Safety 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. On August 20, 2013, the CSB 

released a video safety message calling for regulatory coverage of reactive chemicals. The 

safety message also describes other serious reactive chemical accidents investigated by 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 Synthron 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 directly 

responsible for the off-site harm, some amount of the reactive hazard substance 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: “Reactive 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 hazardous 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 react 

if they are unintentionally exposed to air or water. In the 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 beyond the property boundary of the stationary source. 

In developing its list of reactive Extraordinarily Hazardous Substances that are likely to 

cause unintentional reactions, the Department reviewed existing lists of reactive substances 
compiled 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 type and degree of hazard (from the lowest level of 1 to the highest 

level of 4) posed by 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 

themselves, 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 combined 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 lists, 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 lists at 49 CFR 172.101 were then further evaluated in light of their 

chemical composition and their potential impact on the health and safety of the public. To 

accomplish this, the Department reviewed L. Bretherick’s Handbook of Reactive Chemical 

Hazards (Sixth 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 by themselves or when reacted with other 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 physical 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 retained the 

substances that present a severe hazard to the public. Those substances containing a listed 

functional group are listed 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 by 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 

substances 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 included on this list the following 

chemicals that contain the dithionite functional group: calcium dithionite, 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 beyond an assumed property 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 property line for facilities in New Jersey. A pressure of 2.3 psi was 

chosen because damage to nearby 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 threshold quantities for unintentional 

reactions:

W= (D/24)3*(1024/E)

Where W = threshold quantity (TQ) of reactive hazard substance (pounds)

D = distance to property 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 TNT equivalency method is an industry accepted method described in consequence 

analysis literature. The TNT equivalency method is used by USEPA in its guidance document for 

the performance of an offsite consequence analysis for flammable substance explosions. 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 explosion 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 28% for the heat of 

combustion was selected because the ratio of energy of explosion to heat of combustion for 

many highly reactive substances, such as TNT, is 28%. 

By applying this equation, the Department calculated the threshold quantity of each 

individual reactive hazard substance. Although there was some variation in the resulting values, 

the Department assigned 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 hydrosulfite, 

and potassium hydrosulfite) 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 established 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 I at N.J.A.C. 7:31-

6.3(a). 

The second reactive hazard substance catastrophic scenario the Department considered 

involves intentional mixtures. In 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 

catastrophic 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 typically occur at many 

facilities and the resources involved with testing or determining the heat of reaction, the 

Department limited coverage of the TCPA rules to intentional mixtures that are products, 

byproducts, or reactants containing the same functional 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 inherently unstable, 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 added five additional functional groups that were 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 Labs.

Intentional mixtures involving at least one chemical that contains 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 values in Table II by 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% yield 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 mixture 
presents minimal risk to public health and safety 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. Lowering the Threshold Quantity for Substances Currently on the List

The threshold quantities assigned to the toxic New Jersey TCPA EHSs were established 

to attain the TCPA statutory goal and were individually set by using the TCPA threshold 

determination method. Each threshold quantity 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 beyond the property 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 property boundaries in New 

Jersey. Each threshold quantity has been calculated using dispersion modeling and mortality 

curves that directly reflect the acute toxicity concentration (ATC) of the respective substance, 

and its equilibrium vapor pressure at 20 degrees Celsius for substances that are normally liquids.

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 to 

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. Thus, 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 46 out of 49 cases 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 

state’s high population density in areas surrounding those industrial sites, which the TCPA 

threshold determination method takes into account. A TCPA threshold quantity release modeled 

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 determination method shows the potential 

for 606 persons to suffer from acutely toxic effects with statistically 108 fatalities. From the 46

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 by the release of the TCPA threshold quantity of the same substance.
The TCPA requires facilities 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 facility when determining threshold quantity applicability, 

regardless of where or how the EHS is stored. This prevents 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 safety information, standard operating procedures, process hazard analysis/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 is similar to implementing process safeguards and layers 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 that 

requires the ongoing implementation of elements such as a management system, standard 

operating procedures, training, and management of changes, or in other words, a risk 

management program, to make it work effectively. 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 property 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 extraordinarily hazardous substances 

as regulated activities. Under the TCPA program rules, the inventory used to determine 

threshold quantity applicability is the greatest of the instantaneous static inventory 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 processes generates, or is capable of 

generating, an EHS at threshold quantities over a one-hour period of time. One group that may

be affected by 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 

federally regulated substance, these owners and operators come under the purview of the TCPA 

rules solely because ozone is a state-regulated EHS generated by their processes. Another 

example is the regulation of hydrogen sulfide at petroleum refineries. The hydrogen sulfide is 

generated at a high rate, but the instantaneous static inventory within vessels or piping is 

relatively low; however, a large release could occur if equipment fails before the process is shut 

down.
II.D.1. Safer Technology and Alternatives Analysis

In 2008, the Department adopted rule amendments to require all TCPA facilities to 

conduct inherently safer technology (IST) reviews. Inherent safety technology evaluation is a 

well-established concept that was introduced by process safety experts almost forty years ago. 

Incorporating the IST approach to the risk management programs can be more effective in risk 

minimization.

Generally, IST could be considered as changes that are integral to the process or product

which are not easily 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 for facilities that have been in operation for several years. Therefore, a broader 

definition of IST was used that would apply the IST 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 inherently safer in their operation by being more reliable, faster 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 any device. Active protection 

means using engineering controls such as instrument controls, safety interlocks, and emergency 

shutdown systems to detect 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 

incident.

Performing an IST review is probably most cost effective when designing new processes. 

However, as stated by the Center for Chemical Process Safety (CCPS) in Inherently Safer 

Chemical Processes - A Life Cycle Approach at page 251, “It is never too late to consider 

inherently safer alternatives”. Major enhancements to the inherent safety of plants which have 

been operating for many years have been reported (CCPS, 1993a2; Wade, 19873; Carrithers et al., 

19964).” Also, continuing to perform IST evaluations in the later stages of a facility’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 IST evaluation to be performed on 

the same schedule as the process hazard analysis (PHA) with risk assessments revalidations and 

updates. The PHA revalidation is required every five years, 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 ISTs 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 IST rules did not mandate the implementation of any IST measures that were 

identified as a result of the IST review. However, of the 85 initial IST reports that were 

submitted to the Department, 45 facilities chose to implement a total of 205 IST measures. Two 

water treatment facilities replaced chlorine with sodium hypochlorite (bleach).

 The ISTs that were selected for implementation by the facilities were analyzed to 

determine whether they would result in any risk shifting. Out of the 205 IST measures, except 

for the substitution of chlorine with bleach at the two water treatment facilities, none of the other 

203 IST 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 chlorine. The following Tables 1 and 2 and Figures 1 and 2 summarize the results of 

the initial IST reviews at 85 facilities.

Table 1. Summary of IST Implementation by Industry Sector

Industry 

Sector

Number

of 

Facilities 

in Sector 

Number 

of 

Facilities 

with IST

Number of IST 

Measures 

Implemented

Percent of 

Facilities 

Implementing 

IST

Average 

Number of IST 

Measures 

Implemented 

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

Power Generation 6 1 1 16.7 1.0

Water and Wastewater 13 7 16 53.8 2.3

Other 9 3 10 33.3 3.3

Total 85 45 205 52.9 4.6
2

15

24

121

7

36

0

20

40

60

80

100

120

140

S

u

b

stitutio

n

Minimiz

atio

n

M

o

d

eratio

n

Sim

plific

atio

n

L

o

c

atio

n, Sitin

g,

Tra

n

s

p

ortatio

n

Oth

er

N

u

m

b

er of IS

T

Figure 1. Number of IST Measures Implemented or Scheduled 

by Type 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 

improved

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

Power 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 Type

N

u

m

b

er of IS

T
II.D.6. Incident 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 

beyond permitted levels, or in other words, a near miss. The AIChE-CCPS provides definitions 

and examples of process safety near misses in two of its publications: the CCPS book, 

Guidelines for Investigating Chemical Process Incidents, Second Edition, March 2003, page 61; 

and Process Safety Leading 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 beyond pre-established critical control limits. 

- Activation of layers of protection such as relief valves, interlocks, rupture discs, 

blowdown systems, halon systems, vapor release alarms, and fixed vapor spray systems. 

- Activation of emergency shutdowns. 

Table 3 below summarizes the incidents reported to the New Jersey Department of 

Environmental Protection between 2002 and 2011. Each year, 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 reported averaged less than 1 per facility. 

Table 3. EHS Incidents Reported in TCPA Annual/Triennial Reports 

Calendar

Year 

Total # 

of 

Incidents 

Reported 

# of Near 

Misses 

(no 

release) 

# of 

Facilities 

that 

Reported 

Ave. # of 

Incidents 

per 

Facility 

Max. # 

of 

Incidents 

Reported 

by a 

Facility 

# of 

Facilities 

that 

Reported 

an 

Incident 

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 year, 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 actually occurred

based on data seen at Dow Chemical. A recent study (Nesmith et al., 2012) 5reported by Dow 

Chemical, illustrated in Figure 3 below, shows that a well-managed near miss system is expected 

to help identify problems at the early 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)6on 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 employed 3500 people. The data between 1985 and 1997 shows that their 

lost time injuries decreased from about 230 per year to about 30 per year. During the same 

period, their near miss reporting rate went from zero to 0.5 near misses per person per year.

 The 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 by the TCPA Program rules may be misleading to people who are not directly

involved in the process.

II.D.11. The “Safety 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 to 
performing a process hazard analysis, facilities must conduct a risk assessment pursuant to the 

requirements of N.J.A.C. 7:31-4.2. For each release scenario that has an offsite impact which 

could potentially result in a fatality 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. If the likelihood of release occurrence meets or exceeds the specified likelihood 

criterion, feasible risk reduction measures must be evaluated and implemented. Feasible is 

defined at N.J.A.C. 7:31-1.5 as “capable of being successfully accomplished, taking into account 

environmental, public health and safety, 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

The Department determined that the distinction between Program 2 covered processes 

and Program 3 covered processes does not necessarily relate to the potential risks presented by 

these processes. For example, some Program 2 processes can show much worse offsite impacts 

than Program 3 covered processes. Additionally, some critical Program 3 elements, such as hot 

work permit, employee 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. Even 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. Accordingly, 

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. Any facility with a 

threshold quantity of an EHS must implement a Program 3 risk management program. However,

the risk management program for a simpler process such as a storage area will be significantly 

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 engineering and 

operating practices for any facility that handles hazardous substances, regardless of the extent of 

the potential offsite consequences of a release. This is substantiated in numerous process safety 

management references, such as Loss Prevention in the Process Industries by Frank P. Lees, and 

publications by the Center for Chemical Process Safety of the American Institute of Chemical 

Engineers. Also, pursuant to the OSHA Process Safety Management standard, 29 CFR 

1910.119, elements that were not included under Program 2 such as management of change, risk 

assessment, hot work permits, contractors, and employee participation are an important part of a 

comprehensive risk management program and must be implemented at all facilities subject to the 

OSHA rules. 

In Guidelines for Developing Quantitative Safety Risk Criteria, Center for Chemical 

Process Safety of the American Institute of Chemical Engineers, March 2007, CCPS discusses 

implementing a process safety management system 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, stakeholder outreach, compliance with 
standards, 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 Approach, 

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 Reduction of Toxic Material Inventory. In J.L. Woodward (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., Dowell, 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.