GCPS 2013 __________________________________________________________________________

Near Misses Private or Public Concern?

Jay Brabson, P.E.

Accidental Release Prevention Program State of Delaware
715 Grantham Lane
New Castle, DE 19720
Jay.Brabson@state.de.us

Prepared for Presentation at

American Institute of Chemical Engineers
2013 Spring Meeting
9th Global Congress on Process Safety
San Antonio, Texas
April 28 May 1, 2013
UNPUBLISHED

AIChE shall not be responsible for statements or opinions contained

in papers or printed in its publications

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Near Misses Private or Public Concern?

Jay Brabson, P.E.

Accidental Release Prevention Program State of Delaware
715 Grantham Lane
New Castle, DE 19720
Jay.Brabson@state.de.us
Keywords: Near Miss, RMP, Incidents, Regulation, Regulator, PSM

Abstract
Near miss incidents include those releases and/or fires that do not result in significant
employee injury or costs. In many cases there are federal reporting requirements that
include reports to the National Response Center (NRC). Loss of containment releases are
often near misses for catastrophic incidents and provide evidence of process safety
program weaknesses. Facilities have an interest in conducting incident investigations to
find root causes, lessons learned, and make safety improvements. Small sites often do
not have the expertise to conduct good investigations while some large sites may tend to
blame operator error rather than admit management system errors or process design
issues [9].
This paper explains 2002 amendments of the Delaware requirement to report releases.
The amendment adds the reporting of flammable gas releases and expands the existing
written follow up report requirements to explain the facts and circumstances leading to
the release and the measures proposed to prevent the future releases and remedy any
deficiencies in the prevention program. Having this public examination of near miss
investigations puts pressure on both industry and our regulatory program to seek root
causes and make practical improvements in site process safety programs without adding
any substantial regulatory burden to industry.

1. Introduction
There is a positive story concerning improvements to industry process safety
management (PSM) programs and adoption of better safety cultures at large chemical
companies, small manufacturing sites and even oil refineries. Yes, there are still near
miss accidental and environmental releases occurring and the Chemical Safety Board
(CSB) has their hands full investigating continuing catastrophic accidents. As the CSB
can attest, many of these releases occur at small sites, often not even involving extremely
hazardous substances (EHS) [1]. And unfortunately, there are still many releases
occurring at refineries and other PSM covered sites. But these releases should not hide
the fact that better process safety programs and safety management cultures have
improved process safety at most of the facilities that are regulated under the Occupational
Safety and Health Administration (OSHA) PSM program and the Risk Management

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Program (RMP) under the Environmental Protection Agency (EPA). Some facilities,
especially large corporations, are adopting process safety program elements even when
there is no regulatory requirement it just makes good business sense. But, with
accidental releases still occurring and attracting media attention or environmental
concerns, there continues to be discussion of potential new regulatory initiatives or new
regulations.
In the real world of resource constraints, there are not enough regulatory resources and
expertise to adequately cover the universe of stakeholders subject to regulatory
requirements now, let alone the many sites covered under only general duty
requirements due to low quantity or no EHS onsite. This story is about working smarter
as regulators to deploy regulatory resources into process safety issues that need attention.
How does this relate to near misses?
Most accidental releases reported under EPA federal rule 40 CFR Part 355 Emergency
Planning and Notification are near misses involving no injuries and no significant
equipment damage. There is also a recognition that if catastrophic releases are at the top
of the pyramid, serious near misses include minor injuries as well as minor equipment
damage[2][3]. There are numerous papers and studies explaining the importance of
doing good incident investigations on accidents and near misses as a means for
improving process safety programs.
This paper explores the concept of applying
regulatory resources to accidental releases, most of which are near misses, in order to
improve the overall process safety of all manufacturing facilities including those not
directly covered by process safety regulations.

2.

Finding an appropriate regulatory tool

The EPAs federal rule 40 CFR Part 355 is not a useful tool for tracking and preventing
accidental releases [4] due to its emphasis on trigger reporting and emergency
notification. Reporting chemical substances released above a certain quantity may be of
some value to various community right-to-know entities, but this information alone,
reported to the NRC without further investigation has limited utility as a means to
determine a facilitys ongoing process safety performance.
We are fortunate in
Delaware to have a state regulation entitled Report of Discharge of a Pollutant or an Air
Contaminant, promulgated in 1991, that mirrors and expands upon these federal reporting
regulations [5]. In 2002 the regulation was amended to update reporting quantities. At
that time we made several additional changes that make this Delaware regulation a useful
tool for investigating release incidents by our Accidental Release Prevention program.
Amendments included:
Adding RMP flammables and Delaware explosive substances (reporting quantity
of 1000 pound release within 15 minutes to an hour).
Adding a general duty to provide a written follow-up report, regardless of the
substance or quantity as requested if there is concern for public health or safety
or environmental welfare.
Adding, beyond the 40 CFR Part 355 written follow-up report requirements, two
report requirements; facts and circumstances leading to the release and the

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measures proposed to prevent the future releases and remedy any deficiencies in
the prevention program.
While this may sound like a lot, these amendments only build on federal requirements
already in place. Assuming facilities conduct incident investigations after accidental
releases anyway, Delaware requirements do not add to the existing federal regulatory
burden. We knew from experience that accidental releases occur at manufacturing sites
using a variety of hazardous substances and we simply wanted to ensure that good quality
incident investigations with practical recommendations for improvement were being
conducted.
This idea is not anything new under the sun [6]. The Center for Chemical Process Safety
(CCPS) of the American Institute of Chemical Engineers (AICHE) has a fee based
private and confidential project; the Process Safety Incident Database (PSID) for sharing
incident information among members with a focus on lessons learned from the
incident[7].
While many industry leaders recognize the value of these incident
investigations, there are also many manufacturers that are not members of CCPS [8].
This paper suggests there is a place for regulators representing interests of workers, the
public and the environment, to review a subset of incident investigations for all facilities,
after reportable releases of hazardous substances.

3.

Results

These written follow-up reports submitted after reportable incidents and accidental
releases allow the ARP program (and potentially air and water environmental programs)
to get a better idea of the quantity released, what happened, and the incident investigation
recommendations. This includes facilities both large and small that might have a release
involving any of over 1100 hazardous substances.
With this Delaware regulatory
reporting regulation in place for over 10 years we have found a reduction in releases,
improvements to process equipment and design and improvements to process safety
programs. Admittedly, improvement in safety programs can be hard to measure and
antidotal based on inspection reports, compliance audits, and recommendations.
Measurable reductions in reportable releases include reductions to 4 or 5 per year in
2003-2005 down to 2 per year by 2010-2012. (This ignores oil refinery flaring reports
which can number over 100 per year.) Would this have been the result even if there were
no regulatory hazardous substance release reporting program? Maybe, as noted earlier,
many facilities see the value in improving their process safety programs and safety
culture. However, common sense suggests that having facility incident investigation
reports and recommendations open to review by regulators is a strong motivator for
facilities to conduct quality incident investigations and allocate dollars for equipment
improvements in the face of tight facility budgets. Anecdotally, we know from
experience that just having a regulator show up to review an incident and the
accompanying investigation recommendations catches upper managements attention.
And, where appropriate, we have added to a facilitys recommendations providing
technical recommendations for further improvements to process safety programs,
equipment and management control systems. We have even had some cases where
facilities, particularly smaller sites, use this written follow-up report as sent to regulators

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to increase leverage for having recommendations implemented and resources deployed

by corporate executive management [9].
It has been my experience as a process safety regulator in a small state that many of the
covered facilities we inspect have well documented process safety programs. During full
RMP inspections it can take days of reviewing documentation to find even minor
recommendations for improvements. Near miss incidents involving accidental releases
of EHS are opportunities for both the facility and our program to uncover weaknesses and
holes in process safety programs. We have also helped smaller sites find best process and
equipment practices particularly when they have no real engineering staff. As regulators
we see a variety of processes and can share non-confidential best practices we observe
in our inspections. We have found this reporting tool to be a win-win for both industry
and the regulators representing the public and environment.

4.

Observations

Clearly, complex manufacturing processes increase the probability of accidental releases,

and there is evidence that chemical companies and petro-chemical companies with more
complex processes lead to a greater risk of accidental releases. Upon reviewing the EPA
nationwide database for risk management plan submissions on their Chemical Data
Exchange (CDX) webpage, simpler manufacturing processes involving chlorine (most
often used for water treatment) and ammonia (most often used in refrigeration or
fertilizers) have approximately seven percent of facilities with reportable accidents. They
make up 70% of the total RMP submissions and not surprisingly, the total report of
accidents is also about 7 percent for all facilities. The chart below shows that the much
smaller universe of chemical and petro-chemical facilities report higher accident rates (20
and 38 percent respectively when I checked in 2012) [10].

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Also, as evidenced by past CSB accident data, many small (and some larger) sites may
not recognize certain risk and safety issues when dealing with substances not categorized
as EHS including dust, reactive substances, and flammables.
And finally, we find that no matter how good the process safety program, outdated
process designs and older equipment can contribute to accidental releases. At this time in
2013, most refineries have improved process safety programs. But while equipment has
been replaced and updated, much of the piping and associated supports and some
equipment and process designs are over 30 years old with associated lean maintenance
crews. Refineries may have good pressure vessel and pipe testing programs. They may
relentlessly look for root causes after incidents and provide good recommendations. But
like an old house or an old car, there is always something ready to fail due to age (wear
and tear), corrosion or vibration.
In making this point in the past, people asked me for concrete examples. I want to share
an interesting example of a robust process safety program at a Delaware facility that was
still having accidental releases/near misses. It involved a recent ammonia refrigeration
inspection. A review of all Delaware ammonia releases reported to the NRC from 2005
through 2012 indicated a total of 10 reportable ammonia releases. Of those 10, six
came from just one particular site. There are 15 separate sites in Delaware using
ammonia, and 13 of those sites have ammonia refrigeration. Six out of 10 releases from
one site would certainly not be expected. This particular ammonia refrigeration facility
has two different sites in Delaware. We generated a facility report card through a
review of the Delaware required incident reports database which indicated that of those 6
releases, 5 came from just one of the four separate ammonia systems at this one site. Not
surprisingly, these five releases came from the oldest of the four refrigeration systems.
(See graph below)

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During our inspection we found an organized process safety program led by competent
facility and corporate PSM experts with good management support. They appeared to
have a good mechanical integrity program with well trained and knowledgeable
refrigeration engineers. We gave them this report card on near miss accidental releases
to review and recommended their PSM team discuss releases and incidents associated
with this system and explore options for improvements. After review, the PSM
committee and corporate managers budgeted over 600k for process safety improvements.
This case is further evidence that older process equipment can lead to accidental releases
despite good process safety programs. This is an interesting local case study that could
have national applicability the idea that there is outdated equipment and process
designs out there that could potentially be preemptively targeted for inspection based on a
history of accidental releases reported to the NRC.
The above example represents the core message of this paper; promoting industry process
safety improvements through the use of near miss reportable accidental releases to
measure a sites performance and the use of incident investigations to improve process
safety programs. Continuous process safety improvement is not only a public and
environmental mandate; it is a sound corporate investment. Delawares ARP program
works with industry to reduce accidental releases in the spirit of partnership,
performance, and efficiency.
Federal regulators continue to be focused on regulatory compliance and enforcement with
limited interest in partnerships and limited technical or practical processing knowledge.
Their inspection programs are governed by high profile accidents, emphasis programs,
and worst case scenarios as reported in RMP submissions.
Therefore, based on our experience, state and local governments have an important role
to play in this process safety improvement story. Being closer to the action so to speak,
local government can play an important role in developing constructive safety
partnerships with industry. However, states embarking on such a path need to be sure to

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hire regulators with sufficient industry experience to genuinely make governmentindustry partnerships work successfully. The CSB would appear to agree that local
jurisdictions have a better track record. In their August 28, 2008 investigation report on
the Bayer CropScience, LP release in Institute, West Virginia they make an eloquent two
page recommendation (recommendation 8.3) to the Kanawha-Charleston Health
Department to establish a Hazardous Chemical Release Prevention Program [11].

5.

Conclusion

There are still accidental releases occurring, both many near misses and occasional
catastrophic accidents. There is room for continuous improvement and near miss
incident investigations are a powerful tool for process safety improvement whether used
by regulators or facilities. Based on the EPA risk management plan accident data
presented earlier, some releases and accidents appear to be due to process complexity; an
issue not directly addressed as part of a typical Process Hazard Analysis (PHA). This is
an issue that might yield additional insight in further study. Why does risk analysis on all
the parts of processes not result in an overall elimination of releases? Are there subtle
interactions or intersecting variables in complex processes that are not adequately
covered in a typical risk analysis? Are mechanical integrity program staffing and
resource allocations legitimate questions for PHA? Or, are there just black swan
accidents that defy risk analysis [12]?
Facilities with older equipment and outdated process designs also have more releases.
There is evidence this is the case in spite of high-quality PSM programs. Facilities need
to step back and take an honest look at where their near miss accidents are occurring over
time. Sometimes improving the process safety program isnt enough engineers need to
point out the need for capital improvements based on real performance data.
Finally, in a world of limited resources and technical knowledge, regulatory programs
representing the public should be identifying ways to utilize resources that encourage
sustainable process safety improvements. Statistically, there will always be those
facilities at lowest end of the bell curve that need some level of enforcement to encourage
compliance with regulations. But the good news is that most facilities have taken process
safety seriously and developed quality PSM and RMP programs. Regulators should
wake up to the fact there is a bell curve of facility performance and consider using near
miss accidental releases to measure process safety program performance. Reviewing
near miss incident investigations for reportable releases is much less technically and
resource oriented than full scale multi-day, week or month inspections. Taking into
account the limited manufacturing experience of many process safety regulators, this
represents a better use of resources and technical abilities.

6. References
[1]

John W. Herber, Smaller Companies Struggle with Process Safety, Process

Safety Progress (2012), 346-349

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[2]

[3]
[4]

[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]

James R. Phimister, Ulku Oktem, Paul Rl Kleindorfer, and Howard Kunreuther,

Near-Miss Management Systems in the Chemical Process Industry, Risk
Management and Decision Processes Center Operations and Information
Management the Wharton School of Management, University of Pennsylvania,
2003
Heinrich, H.W., Industrial Accident Prevention, New York, McGraw-Hill,
1931.
Environmental Protection Agency (EPA), 40 CFR Parts 300 and 355 extremely
hazardous substances list and threshold planning quantities; emergency planning
and release notification requirements, first published Federal Register 52:77, pp.
133378-13410, 22 April, 1987
State of Delaware, Administrative Code 1203 Effective date April 1, 1991,
Revised December 11, 2002 and July 11, 2004
Riwik U., Kuwait National Petroleum Co., Risk-Based Approach to near miss,
Hydrocarbon Processing October 2002.
CCPS Process Safety Incident Data Base (PSID) Project
http://www3.aiche.org/PSID/PDF/PSID.pdf (accessed December 2012)
Process Safety Performance Indicators for the Refinery and Petrochemical
Industries, ANSI/API Recommended Practice 754 First Edition, April 2010
Jay Brabson, P.E., Regulatory Initiative for Improving Industry Process Safety
Performance, Process Safety Progress (2010), 305-307
EPA Central Data Exchange https://cdx.epa.gov/ (Accessed January 2012)
U.S. Chemical Safety and Hazardous Investigation Board, Report No. 2008080WV, Pesticide Chemical Runaway Reaction Pressure Vessel Explosion,
January 2008
John W. Murphy and Jim Conner, Beware of the Black Swan: The Limitations
of Risk Analysis for Predicting Extreme Impact of Rare Process Safety
Incidents, Process Safety Progress (2012), 330-333.