UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

 PUBLIC MEETING

 PROPOSED CHANGES TO THE

 RISK MANAGEMENT PROGRAM (RMP) RULE

 Washington, D.C.

 Tuesday, March 29, 2016
 2

 1 PARTICIPANTS:

 2 Environmental Protection Agency:

 3 JAMES C. BELKE

 Chemical Engineer

 4 Office of Emergency Management

 5 ELIZABETH BOSECKER

 Office of Emergency Management

 6

 BRIAN DOSTER

 7 Office of General Counsel

 8 KATHLEEN FRANKLIN

 Office of Emergency Management

 9

 PATRICIA GIOFFRE

 10 Office of Emergency Management

 11 KIM JENNINGS

 Office of Emergency Management

 12

 EILEEN MAYER

 13 Office of Emergency Management

 14 JEAN REGNA

 EPA Region 2

 15 Office of General Counsel

 16 Speakers:

 17 STEVE ARENDT

 ABS Group

 18

 WILLIAM ERNY

 19 American Chemical Council

 20 PETER LODAL

 Eastman Chemical Company

 21

 TIM HUNT

 22 American Forest & Paper Association
 3

 1 PARTICIPANTS (CONT'D):

 2 RICK HIND

 Greenpeace

 3

 LOWELL RANDEL

 4 Global Cold Chain Alliance

 5 JENNIFER GIBSON

 NACD

 6

 YOGIN KOTHARI

 7 Union of Concerned Scientists

 8 MATTHEW J. EGGERS

 U.S. Chamber of Commerce

 9

 DAVID HALPERIN

 10 Attorney and Counselor

 11 JESSICA HODGE

 Earth Justice

 12

 JERRY SLOMINSKI

 13 U.S. Public Interest Research Group

 14 MATTHEW HODGES

 American Fuel & Petrochemical Manufacturers

 15

 ERIC CONN

 16 Conn Maciel Carey PLLC

 17 TRISHA SHEEHAN

 Moms Clean Air Force

 18

 RON CHITTIM

 19 API

 20 DANIEL CROCE

 Chlorum Solutions

 21

 KELLY RAYMOND

 22 National Association of Manufacturers
 4

 1 PARTICIPANTS (CONT'D):

 2 MICHELE ROBERTS

 Environmental Justice Health Alliance

 3

 STEPHANIE HERRON

 4 Delaware Concerned Residents for Environmental

 Justice

 5

 PAUL ORUM

 6 Consultant

 7 PETER MONTAGNA

 The Auditing Roundtable

 8

 9

 10 * * * * *

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 12

 13

 14

 15

 16

 17

 18

 19

 20

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 22
 5

 1 P R O C E E D I N G S

 2 (9:05 a.m.)

 3 MR. BELKE: We're now convening the

 4 public hearing on the proposed changes to EPA's

 5 Risk Management Program regulation. My name is

 6 Jim Belke. I'm with the Office of Emergency

 7 Management in EPA's Office of Land and Emergency

 8 Management. And I'll be the chair for this

 9 session of the panel.

 10 Thank you for being here today. Joining

 11 me on the panel this morning are, to my left, Mr.

 12 Brian Doster from EPA's Office of General Counsel,

 13 and to my right, Ms. Elizabeth Bosecker, also

 14 from EPA's Office of Emergency Management. We're

 15 here today to discuss your comments, to listen to

 16 your comments, not discuss, on EPA's proposed

 17 changes to the RMP regulation.

 18 On March 14th, 2016, EPA published in

 19 the Federal Register proposed changes to the RMP

 20 rule under Section 112(r) of the Clean Air Act.

 21 The proposed revisions included several changes to

 22 the accident prevention emergency response and
 6

 1 information availability provisions of the rule.

 2 These include an additional requirement

 3 to conduct a safer technology and alternatives

 4 analysis, as part of the Process Hazard Analysis

 5 or PHA for Program 3 processes in certain selected

 6 industrial sectors; a new requirement to conduct a

 7 third-party compliance audit for the next

 8 scheduled compliance audit occurring after any RMP

 9 reportable accident in a Program 2 or Program 3

 10 process; an additional requirement to conduct a

 11 root cause analysis within the incident

 12 investigation after incidents and near misses at

 13 Program 2 and 3 processes; enhanced emergency

 14 preparedness requirements including a new

 15 requirement for annual emergency response

 16 coordination with a local emergency planning

 17 organization; a new requirement for an annual

 18 notification drill for Program 2 and 3 facilities

 19 and a new requirement for an annual exercise for

 20 Program 2 and 3 facilities; increased availability

 21 of chemical hazard information to local responders

 22 and the public; and then lastly, changes to
 7

 1 certain regulatory definitions and data required

 2 to be submitted in a risk management plan.

 3 If you would like more details about the

 4 proposed regulation there are handouts available

 5 at the registration desk that provide additional

 6 sources of information about the rule and how to

 7 get a copy of the rule.

 8 Before we get started, I want to go

 9 through a couple of housekeeping items and ground

 10 rules that will help make today's hearing go more

 11 smoothly. First, be sure you've checked in at the

 12 registration desk up front, even if you're not

 13 planning to speak today. And if you

 14 pre-registered to speak today but didn't sign in

 15 when you arrived, please step out now and

 16 register.

 17 I will call up the speakers, generally

 18 two at a time. And the speaker's table is here in

 19 the front of the room. When you're called, please

 20 come to the speaker's table. And when I call you

 21 to speak please state your name and spell it for

 22 the court reporter. Your comments will be
 8

 1 transcribed and included in the record of comments

 2 on the proposed rule.

 3 Each speaker will have five minutes to

 4 give their comments. We have a timer to my right

 5 that will help you know how much time you have

 6 left to speak. When you start speaking the time

 7 begins, and you will see a green light. When the

 8 light turns from green to yellow, that means you

 9 have one minute left in your time. And then when

 10 the light turns from yellow to red, that means

 11 your five minutes are up. And you should stop

 12 speaking.

 13 We're here to listen to you today.

 14 However, a panel member may ask you questions to

 15 clarify your comments. But it's not intended that

 16 we engage in any sort of discussion of the rule.

 17 That's not the purpose of the hearing, just to

 18 listen to your comments and possibly to ask

 19 clarifying questions.

 20 If I call two people to the speaker's

 21 table, both speakers please stay at the table

 22 until each has given their comments. And then
 9

 1 I'll call the next two speakers, and so on.

 2 If you've brought a written copy of your

 3 testimony, please give that to the staff at the

 4 registration desk out front. We will put any

 5 written comments submitted today into the official

 6 docket for the proposed rule. We also have

 7 comment cards available out front. If you would

 8 like to submit written comments today, you can do

 9 that.

 10 And also, of course, if you'd like to

 11 comment in writing after today's hearing, you can

 12 do that. Comments must be received, however, by

 13 May 13th of 2016.

 14 If you have questions during the day,

 15 please see the staff at the registration desk and

 16 somebody will assist you. Restrooms are available

 17 down the hallway outside the hearing room.

 18 However, since we're in a secure government

 19 building, you'll need to be escorted while you're

 20 outside this room. So assigned staff is available

 21 outside the hearing room for that purpose.

 22 In the event of an emergency or fire
 10

 1 drill, please exit the hearing room and turn left

 2 to the main entrance, walk outside at a safe

 3 distance away from the building, and await further

 4 instructions.

 5 Again, thank you for taking the time

 6 today to share your comments on EPA's proposal.

 7 And we'd like to get started with our first two

 8 speakers. So can I call up Mr. Steve Arendt and

 9 Mr. Peter Lodal? And, Mr. Arendt, you'll go

 10 first.

 11 MR. ARENDT: Okay. My name is Steve

 12 Arendt, A-R-E- N-D-T, and I'm with ABS Group of

 13 companies, headquartered in Houston, Texas.

 14 I've been involved with the RMP

 15 rulemaking efforts ever since the 1990 Clean Air

 16 Act Amendments came out, involved with leading the

 17 Kanawah Valley Safety Street exercise back in

 18 1993, helping a number of communities and

 19 stakeholder groups receive and to deliver RMP

 20 communication exercises in the late 90s.

 21 I've been involved in examining the BP

 22 North American Refineries for the Baker Panel as
 11

 1 an independent third party looking at PSM

 2 effectiveness following the refinery disaster in

 3 Texas City. And I helped stand up the Center for

 4 Offshore Safety Independent Third-Party Auditor

 5 Program where we were the first certificated

 6 company to practice as an independent third-party

 7 auditor for that. So we have some experience and

 8 standing for our comments and concerns.

 9 I'm concerned that the proposed

 10 compliance audit element changes will not have the

 11 desired accident prevention value that has been

 12 proposed. During the EO 13650 process, I

 13 commented on the need that any changes to rules

 14 needed to be based on compelling need, sufficient

 15 benefits to offset costs and to be feasible to

 16 implement and enforce. And I don't think that the

 17 proposed changes to this element meet this test.

 18 And I think it will also have unintended

 19 consequences that could decrease process safety.

 20 The quality of compliance audit, as you

 21 know, is a function of a variety of things,

 22 including auditor competence and team
 12

 1 independence, as well as the protocol, the

 2 sampling of strategy that's used, and other

 3 factors.

 4 Competence should address auditing

 5 skills, process safety expertise, particularly

 6 with the area of this rule, and industry domain

 7 expertise. Independence of thought and ethical

 8 conduct of audits is vital to generating

 9 discerning results that can be used to correct

 10 systemic compliance problems and improve process

 11 safety program effectiveness.

 12 Now, EPA's proposed requirements for

 13 independence go beyond the pale, in my opinion, in

 14 seeking to achieve high quality results.

 15 Preventing companies from participating in audits

 16 because they previously worked in any process

 17 safety capacity for a facility in the past three

 18 years will seriously limit the pool of expert

 19 auditors willing and able to do prevention program

 20 audits.

 21 Attempting to prevent companies to

 22 assist facilities in process safety activities for
 13

 1 three years following an audit prevents people who

 2 may be having some of the best insights into how a

 3 company can improve to actually helping with

 4 improvement.

 5 The proposed revisions for companies

 6 like ourselves who do these audits to prevent

 7 employees from taking future employment with

 8 companies that they audit is problematic, and

 9 frankly, probably illegal in several states.

 10 Now, these statements may seem a little

 11 harsh. I think a lot of the ideas that you have

 12 proposed to improve audit quality effectiveness

 13 have some value. But these will require

 14 adjustment to maximize their effectiveness, and to

 15 minimize unintended consequences, and frankly

 16 should more closely align with examples in the

 17 SIMS 2 regulation and the COS independent

 18 third-party program.

 19 Finally, if EPA does not correct some of

 20 the proposed changes, on one hand it's fortunate

 21 that the provisions would only be invoked for

 22 cause by an enforcement concern or following the
 14

 1 occurrence of five year history event.

 2 In the past ten years, there've been

 3 over 2,300 five year history events reported. But

 4 many of those, I don't think, would appear to rise

 5 to the level of needing an independent third-party

 6 audit and would be a wasteful use of accident

 7 prevention resources.

 8 I think EPA needs to make the case of

 9 whether it's trying to improve audits, improve

 10 corrective actions, or both, or whether it's

 11 concerned with improving the effect of a

 12 corrective action addressing root causes following

 13 a five year history event.

 14 If you proceed down in this direction,

 15 it should recast these provisions into a new

 16 element for which they apparently are being used

 17 for, codified enforcement audits following a five

 18 year history event. If a facility has a five year

 19 event, it'll do a root cause analysis and take

 20 corrective action. The conduct of an audit would

 21 seem to focus on funding and the evidence

 22 gathering needs for subsequent EPA enforcement
 15

 1 activities, and improper use of these compliance

 2 audit elements in a management system that's

 3 designed to promote learning and improvement. If

 4 EPA wants to better ensure learning and corrective

 5 action, it should focus its efforts on the

 6 incident investigation element, not the audit

 7 element.

 8 I acknowledge EPA's efforts to find ways

 9 to help improve chemical plant safety and

 10 security. And I appreciate the opportunity to add

 11 my voice to the stakeholders and to respond to

 12 this rulemaking. And I'll be submitting written

 13 comments and will be available to answer

 14 questions. Thank you.

 15 MR. BELKE: Thank you. Just one

 16 clarifying question. You mentioned that you

 17 recommend that the EPA align its requirements with

 18 the SIMS 2. And you used another example, and I

 19 missed that example.

 20 MR. ARENDT: The Center for Offshore

 21 Safety --

 22 MR. BELKE: Oh, Center for Offshore
 16

 1 Safety.

 2 MR. ARENDT: -- Independent Third-Party

 3 Auditor Program.

 4 MR. BELKE: Thank you. Questions?

 5 (No audible response)

 6 MR. BELKE: Okay, Mr. Lodal?

 7 MR. LODAL: My name is Pete Lodal, last

 8 name is spelled L-O-D-A-L. I am the group leader

 9 of the Process Safety Services Section for Eastman

 10 Chemical Company's Tennessee Manufacturing

 11 operations in Kingsport, Tennessee. I'm also the

 12 chair of the American Chemistry Council's Process

 13 Safety Committee. And I appreciate the

 14 opportunity to speak with you this morning.

 15 I too would like to speak about the

 16 third-party audit requirements in the proposed

 17 amendment. As currently written, this will

 18 require significant additional resource

 19 expenditures, both in labor and money, to perform

 20 such audits, in my opinion, with little or no

 21 benefit. And so I offer the following comments.

 22 First, the implicit assumption behind
 17

 1 this new requirement appears to be a belief that

 2 company audits, either first or second-party,

 3 cannot be relied upon to provide objective,

 4 independent analysis of the health of the

 5 company's RMP program.

 6 Yet, EPA is requiring that companies

 7 certify the qualifications of such auditors in

 8 writing. If the companies cannot be trusted to

 9 perform their own audits effectively, how can they

 10 be credibly tasked with determining what a third-

 11 party can do?

 12 Additionally, these third parties will

 13 be unknown to the companies that hire them,

 14 inasmuch as the proposed regulation will not allow

 15 use of auditors who have worked for the company

 16 previously. So in effect, the companies will be

 17 flying blind in their selection and evaluation

 18 process with no previous work output to guide

 19 their evaluation process.

 20 ACC and others have noted in previous

 21 comments to the EPA of the shortage of qualified

 22 process safety auditors. This rule will require
 18

 1 many more auditors than currently are practicing

 2 with the corresponding learning curve that

 3 accompanies training new auditors.

 4 The prohibition of the use of

 5 attorney-client privilege in the development of

 6 audit output, along with the requirement that all

 7 draft audit reports be made public, will severely

 8 hamper if not destroy the collaborative effort

 9 needed for a third-party audit to be effective.

 10 The strong inference here is that

 11 anything that changes from preliminary drafts to

 12 the final report has been changed due to undue or

 13 inappropriate influence that the company has on

 14 auditors. Given that there is no future business

 15 interest on the part of the auditors to preserve,

 16 what is their motivation for ever changing their

 17 findings?

 18 Industry recognizes the rig EPA to

 19 access the final audit report. Prohibiting the

 20 use of ACP when an auditor is hired, vetted and

 21 paid for by the company is entirely inappropriate,

 22 in my opinion.
 19

 1 Further, the prohibition in the rule

 2 against a company issuing a response at the same

 3 time that the audit report is issued prevents the

 4 company from correcting factual errors or

 5 presenting evidence that the auditors either

 6 missed or were not aware of, which could markedly

 7 change the audit's recommendations. And this,

 8 frankly, is not acceptable.

 9 Why is a professional engineering

 10 license being required for at least one member of

 11 the audit team? There are numerous examples of

 12 effective audits being conducted by persons other

 13 than engineers or engineers who, for whatever

 14 reason, have chosen not to pursue their PE. What

 15 is the demonstrated benefit? The assumption that

 16 PE holders will be more ethical is disingenuous.

 17 EPA's proposed appeal process also has

 18 no independence. A company may appeal to the EPA,

 19 and EPA will consider that appeal, but if it

 20 rejects it, the audit is considered final. There

 21 is no ability for a company to make their case to

 22 an independent entity.
 20

 1 I would also like to thank EPA for

 2 giving us access to the RMP data from 2004 to 2013

 3 in a timely manner. It was very helpful. Thank

 4 you, Jim. Using this data for the ten year

 5 period, 2004 to 2013, only 27 of the 2,291

 6 incidents, 1.17 percent, involved worker

 7 fatalities. None involved responder deaths. And

 8 only two incidents involved fatalities of members

 9 of the public, either on or offsite. In fact,

 10 more than 90 percent of the reported incidents had

 11 no fatalities, no injuries, no hospitalizations,

 12 no evacuation, no shelter in place, and no

 13 property damage. Requiring a third-party audit

 14 for 2,291 incidents appears to be a grossly

 15 disproportionate response to what the data would

 16 indicate.

 17 If this data going forward is similar to

 18 the recent ten years, the thrust of these

 19 requirements will be to audit more than 200

 20 facilities per year for incidents that involve no

 21 fatalities, injuries, offsite consequence, or

 22 property damage. I submit that this is not an
 21

 1 effective use of anyone's resources, industry's or

 2 EPA's.

 3 Combined with the need to identify and

 4 train a large number of third-party auditors who

 5 have no industry experience and who are also

 6 willing to forego any future use of their auditing

 7 skills in RMP covered industries, under penalty of

 8 prosecution, makes this request one that will be

 9 nearly impossible to fulfill.

 10 Thank you for the opportunity to address

 11 the Committee.

 12 MR. BELKE: Thank you. I have no

 13 questions.

 14 SPEAKER: No questions.

 15 MR. BELKE: Thanks to both of you. Our

 16 next two speakers are Ms. Jessica Hodge and Mr.

 17 Bill Erny. If you could both come up please? Is

 18 there a Ms. Jessica Hodge here? Oh, sorry. And,

 19 Ms. Hodge, if you're ready, you'll go first.

 20 MS. HODGE: Sure. My name is Jessica

 21 Hodge, H-O-D- G-E. And I work for Earth Justice,

 22 an environmental law firm. And thank you for
 22

 1 giving us the opportunity to testify today.

 2 For years, Earth Justice has worked with

 3 a coalition of groups and individuals that live in

 4 refinery communities around the country. And many

 5 of them do not have the resources to come to DC

 6 and testify today. So we are going to work with

 7 them to make sure they know about the comment

 8 period and provide some written testimony.

 9 This pending rulemaking on risk

 10 management is of crucial importance to millions of

 11 Americans who live in fear of a catastrophic event

 12 at nearby chemical facilities or oil refineries.

 13 Many of these communities have both chemical

 14 facilities, oil refineries and other major

 15 polluters in close proximity. And people live on

 16 the fencelines of these facilities.

 17 The community groups and community

 18 members that I work with live in the shadows of

 19 these massive oil refineries in places like Port

 20 Arthur and Houston, Texas, Wilmington, California,

 21 and Shreveport, Louisiana. They are concerned

 22 about the inadequate safety and risk management
 23

 1 plans in place at these facilities and oil

 2 refineries around the United States.

 3 EPA has taken an important step

 4 proposing certain high risk plants assess the

 5 feasibility of safer technologies. But as the

 6 neighbors of these sites, they must have full

 7 access to the information in these assessments.

 8 This draft rule does not go far enough

 9 to prevent disasters before they happen and misses

 10 a huge opportunity to make the plants better and

 11 safer neighbors by not only researching but

 12 requiring inherently safer technologies.

 13 More emphasis needs to be put on

 14 prevention. If the rule does not have a major and

 15 enforceable focus on prevention, why would a lot

 16 of these industries have the same emphasis?

 17 In the Chemical Safety Board

 18 investigations of major refinery incidents, they

 19 site a corporate safety culture that may have

 20 tolerated serious and longstanding deviations from

 21 good safety practices. They have recommended time

 22 and time again the use of inherently safer systems
 24

 1 and increased oversight. Two examples, in 2010

 2 the Tesoro Refinery explosion in Anacortes,

 3 Washington, which left seven workers dead, and the

 4 Chevron Refinery explosion in 2012 which sent

 5 15,000 people to seek medical treatment for

 6 respiratory distress.

 7 The Chemical Safety Board found in both

 8 Chevron and Tesoro investigations that the

 9 incidents could have been prevented if inherently

 10 safer materials of construction had been used.

 11 These are just a few a many examples of the need

 12 to make these facilities safer.

 13 A few improvements we would like to see

 14 in the final rule is to require all RMP facilities

 15 conduct and submit alternatives, begin pilot

 16 programs to require inherently safer technologies

 17 in a subset of facilities that are extremely high

 18 risk, and to ensure the protection of

 19 disproportionately at- risk populations in

 20 underserved communities through training,

 21 community outreach, and increased resources for

 22 these communities, engage workers in the
 25

 1 assessment process. And those are just some of

 2 our recommendations. Once we have finished our

 3 full analysis, we will submit a much more

 4 extensive set of comments.

 5 So thank you so much.

 6 MR. BLEKE: Thank you. Just one

 7 clarifying question, you mentioned that you think

 8 that a subset of facilities should be required to,

 9 I think you said conduct and submit an IST. And

 10 you used the phrase extremely high risk. Did you,

 11 in your following comments will you provide

 12 information on what you view as that category of

 13 facilities?

 14 MS. HODGE: We will, we will.

 15 MR. BELKE: Thank you. Okay, Mr. Erny?

 16 MR. ERNY: Okay, can you hear me okay?

 17 Is this clear? Yes.

 18 All right. So good morning. My name is

 19 Bill Erny; it's E-R-N-Y. I'm a senior director

 20 with the American Chemistry Council in our

 21 Regulatory and Technical Affairs Department.

 22 And I also want to thank the members of
 26

 1 the panel today to give us the opportunity to be

 2 able to express some of our thoughts and comments

 3 about the proposed rule.

 4 As many of you may know, ACC members are

 5 engaged in the business of chemistry to produce

 6 critical products used by Americans in their

 7 everyday lives. ACC member companies are a major

 8 contributor of the US economy and are also

 9 committed to the safety and health of their

 10 workers, their products and processes, and most

 11 importantly to the communities in which they

 12 operate. So much so that in 1988 the ACC Board of

 13 Directors implemented Responsible Care, the gold

 14 standard of the Chemical Safety Continuous

 15 Improvement Program.

 16 Compliance with Responsible Care is

 17 mandatory for all members of the ACC. Performance

 18 data shows that companies who implement

 19 Responsible Care outperform their peers through

 20 implementation and verification of safety and

 21 product performance codes that ensure all members

 22 of ACC have effective management systems in place.
 27

 1 Today I'd like to provide some initial

 2 thoughts about the RMP proposed rule.

 3 Unfortunately, due to the scheduling of this

 4 hearing at the front end of the comment period, I

 5 will be unable to provide any detailed comments.

 6 I would, however, like to, in that regard, suggest

 7 that EPA consider a second hearing, perhaps toward

 8 the end of the comment period after stakeholders

 9 have had a chance to really go through this very

 10 comprehensive rulemaking.

 11 However, with that said, I would like to

 12 maybe discuss a few maybe higher level concerns

 13 with what we've seen in the proposal. First off,

 14 I would like to say that we certainly support the

 15 overall goal of the rule, the goal of enhancing

 16 process safety under the Risk Management Program.

 17 Specifically we support some of the improved

 18 coordination suggestions for the local community

 19 and with the local emergency response providers.

 20 We also support many of the provisions

 21 that enhance some of the training and exercises

 22 that are being proposed within the rule.
 28

 1 However, we also have several concerns

 2 about what we've seen thus far. EPA is proposing

 3 to mandate third-party audits. You've already

 4 heard a pretty good bit about this already.

 5 We'd like to say that, you know, the

 6 current -- we are ACC, and we've looked at this

 7 issue. We're aware that there are a couple of

 8 high profile accidents that have had auditing

 9 practices involved in the findings. However, for

 10 the most part we are not aware of significant

 11 issues with the current auditing practices.

 12 For example, findings from OSHA's PSM

 13 National Emphasis Program for refineries and

 14 chemical plants, which began in 2007 and ongoing

 15 today, have found no significant issues with

 16 current auditing practices. Of the total PSM

 17 compliance issues identified under the NEP, OSHA

 18 attributed less than five percent to compliance

 19 audits.

 20 Also EPA is proposing a new requirement

 21 at some program Level 3 facilities, including

 22 chemical manufacturers, analyze safer technologies
 29

 1 and alternatives, perform a feasibility analysis,

 2 and document those findings in recommendations.

 3 Safer alternative analyses are highly

 4 complex, resource intensive, and very specific to

 5 particular technologies. In fact, EPA understood

 6 this complexity when it promulgated the RMP rule

 7 back in '96 when it stated that itself didn't

 8 believe that requiring sources to conduct searches

 9 or analyze alternative processing technologies

 10 would produce additional benefits beyond those

 11 accruing to the rule itself.

 12 ACC agreed with EPA's assessment back in

 13 '96. And we don't believe that the circumstances

 14 have changed so dramatically to require a change

 15 from the '96 policy.

 16 In the wake of the terrorist attacks

 17 recently in Europe, one overarching concern that

 18 we have with this proposed rule is the expansion

 19 of public access to site- specific chemical hazard

 20 information. While our members support efforts to

 21 improve communications and appropriate information

 22 sharing with local communities and emergency
 30

 1 responders, we have to balance this with

 2 protecting sensitive security information that

 3 could be used by those with ill intent.

 4 MR. BELKE: Sir, I'm going to have to

 5 ask you to conclude your --

 6 MR. ERNY: Yes. So sort of in summary

 7 here, we believe that EPA's cumulative proposal

 8 and the revisions will impose substantial burden

 9 on the regulated community while adding minimal

 10 benefit to accidental chemical release prevention.

 11 When correctly implemented and enforced, the

 12 current RMP requirements are highly effective in

 13 minimizing the risk of accidental chemical

 14 releases.

 15 Over the past 20 years that the RMP rule

 16 has been in place, reportable accidents have

 17 steadily declined. Based on EPA's data, the

 18 numbers of accidents RMP facilities have had have

 19 decreased from 473 in '98 to 123 in 2013, nearly a

 20 75 percent reduction over that time.

 21 MR. BELKE: And we're going to have to

 22 stop right there.
 31

 1 MR. ERNY: Thanks for this opportunity

 2 to comment.

 3 MR. BELKE: Thank you. Thanks to both

 4 of you. Any questions for --

 5 (No audible response)

 6 MR. BELKE: Next two speakers will be

 7 Mr. David Halperin and Mr. Jerry Slominski, if you

 8 could both come up? You're David Halperin? Mr.

 9 Jerry Slominski? We're checking on Mr. Slominski.

 10 Okay, we're going to move along. Mr. Halperin,

 11 you have five minutes.

 12 MR. HALPERIN: Good morning. Thank you

 13 very much for the work you've done on this

 14 process. And also, thank you for allowing

 15 citizens to address you on it.

 16 I submitted a written comment yesterday,

 17 and I have copies of that here today. It is from

 18 me but also from Retired Army Lieutenant General

 19 Russell Honore, who is the commander of Joint Task

 20 Force Katrina, and also from Retired Army Major

 21 General Randy Manner, who is Acting Director of

 22 the Defense Threat Reduction Agency. I'm a former
 32

 1 staff member of the National Security Council and

 2 the Senate Intelligence Committee. And I will

 3 draw on that statement for these brief remarks.

 4 In 2006, Senator Barack Obama said that

 5 America's hazardous chemical facilities are

 6 "stationery weapons of mass destruction spread

 7 across our country." In that light, the EPA's

 8 rule, proposed rule, unfortunately evokes a

 9 notorious prescription from the Cold War, duck and

 10 cover.

 11 Emergency preparedness is the focus of

 12 the rule, and it is critical. But even more

 13 essential is prevention of a chemical disaster in

 14 the first place. And in this regard, this rule

 15 falls short.

 16 For decades, our country has failed to

 17 squarely address this security problem which puts

 18 millions of our citizens at risk. The President

 19 took an important step with the EO in 2013, the

 20 Executive Order. The President initiated this

 21 process in part, as you know, because of the

 22 explosion in West Texas which killed 15 people and
 33

 1 injured another 160.

 2 This tragedy highlighted much of the

 3 chemical industry's repeated failure to minimize

 4 and safely store toxic materials and our

 5 government's failure to create comprehensive and

 6 fair rules to protect against such incidents.

 7 Since West Texas, there have been 430

 8 chemical there have been 438 chemical incidents

 9 and 82 more deaths. In the future, there could be

 10 more accidents, more chemical incidents resulting

 11 from accident, natural disaster, or from a

 12 terrorist attack.

 13 In 2013, the National Infrastructure

 14 Protection Center warned that chemical plants

 15 could be terrorist targets. Security experts have

 16 warned of the relative ease with which attackers

 17 could defeat security at some plants. And the

 18 potential for cyber attacks makes the challenge

 19 even more serious.

 20 The EPA has identified 466 chemical

 21 facilities in the US that each put 100,000 people

 22 or more at risk. In 2005, the Homeland Security
 34

 1 Council projected that a major attack could set up

 2 a deadly gas cloud that could kill 17,000 people.

 3 This is a national security issue. The

 4 Administration, including the EPA, must treat it

 5 like one with the kind of urgency that we give to

 6 weapons of mass destruction issues overseas.

 7 I don't see how President Obama, who

 8 offered such a clear perspective on the danger,

 9 would want to read that his EPA final rule was

 10 considered too weak by environmental justice

 11 groups representing communities living near these

 12 hazardous facilities, by Unions representing

 13 America's workers, or by national security experts

 14 like General Manner and General Honore.

 15 There surely would be scrutiny of an EPA

 16 rule if one day we did have a major chemical

 17 catastrophe, which I hope we do not. The

 18 pesticide plant in Bhopal, India, which killed

 19 20,000 people, was owned by a US company, Union

 20 Carbide. If that plant had been located in the US

 21 and 20,000 people had died here, we would have

 22 fixed this problem a long time ago.
 35

 1 Please let's not wait for such a

 2 tragedy. The EPA has authority to require

 3 chemical plants to move to inherently safer

 4 technologies. And this approach is consistent

 5 with what the administration developed for its

 6 CFATS legislation in 2009. Safer technologies are

 7 available. And since 2001, hundreds of facilities

 8 have switched.

 9 The proposed rule takes an important

 10 first step by mandating that certain high risk

 11 chemical plants conduct safer technology analysis.

 12 And it's encouraging that you've asked for public

 13 comment on whether prevention measures should be

 14 stronger. The answer, many of us will tell you

 15 today, is yes.

 16 The final rule should require all RMP

 17 facilities to assess safer technologies. The

 18 proposed rule exempts 87 percent of those. It

 19 should require all facilities to share their safer

 20 alternatives analysis with the EPA and with nearby

 21 communities and other interested parties.

 22 I see I'm just about out of time. Just
 36

 1 give me ten more seconds.

 2 Establish a public clearing house for

 3 safer alternatives and, starting with the highest

 4 risk facilities, require chemical plants to move

 5 to safer alternatives. We understand that there

 6 are major challenges to do this organizationally.

 7 And technology, we understand it will cost the

 8 industry money. But this must be done, because it

 9 is time finally to protect the American people

 10 from these hazards. Thank you.

 11 MR. BELKE: Thank you. Just one

 12 question, Mr. Halperin. You mentioned some

 13 statistics in your remarks. You said 82 fatalities

 14 at chemical plants since West Texas. Do you have

 15 information that you can submit to the docket --

 16 MR. HALPERIN: Yes, we will. Thank you.

 17 MR. BELKE: All right, thank you. Mr.

 18 Slominski, you have five minutes.

 19 MR. SLOMINSKI: Good morning, my name is

 20 Jerry Slominski, and I'm the Federal Legislative

 21 Director for the US Public Interest Research

 22 Group. I'd like to first thank the EPA for
 37

 1 holding this hearing this morning. My last name

 2 is spelled S-L-O-M-I-N-S-K-I.

 3 The EPA's proposed rule, the

 4 modernization of the Accidental Release Prevention

 5 regulations under the Clean Air Act, makes some

 6 very positive changes. But it is a missed

 7 opportunity to take steps that will truly prevent

 8 chemical disasters from devastating our

 9 communities.

 10 Chemical plants put communities across

 11 our country in danger every day. Nationwide,

 12 there are over 100 million people who live in the

 13 danger zones around chemical plants and

 14 refineries. The EPA acknowledges that in the last

 15 ten years more than 1,500 accidents were reported

 16 by risk management plan facilities.

 17 These accidents are responsible for

 18 causing nearly deaths, some 17,000 people being

 19 injured or seeking medical treatment, almost

 20 500,000 people being evacuated or sheltered in

 21 place, and costing more than $2 billion in

 22 property damages.
 38

 1 An evaluation by the Coalition to

 2 Prevent Chemical Disasters found that, since the

 3 April 12, 2013, disaster in West Texas, there had

 4 been more than 430 chemical incidents resulting in

 5 82 deaths.

 6 President Obama recognizes the

 7 seriousness of this problem and has been a leader

 8 on this issue. In his 2008 book, Change We Can

 9 Believe In, he wrote that we must "secure our

 10 chemical plants by setting a clear set of federal

 11 regulations that all plants must follow, including

 12 improving barriers, containment, mitigation, and

 13 safety training, and, wherever possible, using

 14 safer technology such as less toxic chemicals."

 15 When he issued Executive Order 13650

 16 after the West Texas disaster, it was a resounding

 17 call for safety improvements. This proposed rule

 18 that followed from the Executive Order, however,

 19 focuses more on response measures than prevention.

 20 Emergency response to chemical disasters

 21 is undoubtedly crucial. Without it, lives will be

 22 lost, people will be injured, and property will be
 39

 1 damaged. However, there is no good reason we

 2 should have to use our emergency response

 3 capabilities 430 times in three years,

 4 particularly when there are often safer chemicals

 5 and technology that could prevent an incident.

 6 This rule misses a crucial opportunity

 7 to require chemical plants to switch to safer

 8 chemicals and technology where they are available

 9 and affordable. If that were a requirement, we

 10 wouldn't need to put our communities and first

 11 responders in harm's way so frighteningly often.

 12 There are three areas where the rule can

 13 immediately be improved. And we respectfully ask

 14 you to make these changes to make our communities

 15 safer. First and most importantly, the rule

 16 should require all risk management plan facilities

 17 to switch to inherently safer chemicals and

 18 technology where available and affordable.

 19 Second, the rule requires a subset of

 20 facilities to conduct safer alternatives analyses.

 21 This rule should apply to all risk management plan

 22 facilities.
 40

 1 Third, all facilities, safer

 2 alternatives analyses should be made available to

 3 the EPA and the public so our decision makers and

 4 communities know how the facilities in their midst

 5 can be safer.

 6 Thank you for the opportunity to speak

 7 today.

 8 MR. BELKE: Thank you, sir. Any

 9 questions?

 10 (No audible response)

 11 MR. BELKE: Okay. Thanks to both of

 12 you. Our next two speakers will be Mr. Ron

 13 Chittim and Mr. Yogin Kothari. Mr. Chittim, you

 14 go first, and please state and spell your name for

 15 the court reporter.

 16 MR. CHITTIM: Sure. My name is Ron

 17 Chittim, C-H-I- T-T-I-M. And I'm a senior policy

 18 advisor for the American Petroleum Institute. The

 19 API represents more than 600 companies involved in

 20 all aspects of the oil and natural gas industry as

 21 well as service and supply companies that support

 22 all segments of the industry. As such, API and
 41

 1 our members are significantly impacted by the EPA

 2 RMP regulations.

 3 On April 17th, 2013, the citizens of

 4 West Texas lost family members, neighbors, and

 5 friends to a preventable explosion. In response

 6 to that incident, Executive Order 13650 was

 7 issued.

 8 As EPA has acknowledged, the executive

 9 order requires the working group to carry out a

 10 number of tasks whose overall aim is to prevent

 11 chemical accidents such as the explosion that

 12 occurred at the West Fertilizer facility in West

 13 Texas on April the 17th, 2013.

 14 We believe it is regrettable that, with

 15 this proposed rule, EPA has not moved to protect

 16 the citizens of the US from another preventable

 17 explosion and has not met the primary objective of

 18 the executive order.

 19 For example, no proposal in this rule

 20 improves the safe and secure storage, handling,

 21 and sale of ammonium nitrate. In this proposal,

 22 EPA appears to be proposing a wish list of
 42

 1 regulations arguably unrelated to the executive

 2 order or the West Texas tragedy.

 3 Furthermore, it seems that EPA is intent

 4 on pushing these changes through as quickly as

 5 possible to avoid any subsequent review by the

 6 next administration. For example, the recently

 7 concluded SBREFA process is evidence of EPA's rush

 8 to regulate.

 9 The SBREFA process requires EPA to, when

 10 appropriate, modify its proposed rule based on the

 11 findings of the SBREFA panel as noted in its

 12 statutory required report. Yet, EPA submitted a

 13 proposal to OMB two months prior to the issuance

 14 of the SBREFA panel's final report, thus not

 15 meeting its statutory obligations under SBREFA.

 16 The EPA appears to be inviting not only

 17 Congressional review of agency rulemaking but

 18 court challenges as well.

 19 Moving on to the substance of the

 20 proposed rule, it is clear that EPA itself has not

 21 had sufficient time to thoroughly develop all the

 22 implications of this proposed rule. We believe
 43

 1 that not only did EPA underestimate the economic

 2 cost of the proposal, we think many of the

 3 proposed changes can lead to unintended

 4 consequences.

 5 For example, in an effort to ensure

 6 compliance with new safer alternative technology

 7 analysis regulations, PHA teams may be distracted

 8 from identifying and addressing the hazards of

 9 existing processes by spending too much time

 10 assessing potential alternatives, alternative

 11 technologies that they are not experienced with.

 12 Another example involves third-party

 13 auditors where it is entirely foreseeable that

 14 compliance audits will suffer as a result of the

 15 proposed rule. There is already a shortage of

 16 qualified third-party auditors. And EPA's

 17 independence criteria may cause third-party

 18 auditing consulting firms to exit the auditing

 19 business, because the criteria would preclude them

 20 from providing other potentially more lucrative

 21 services to the industry, all this leading to an

 22 even greater scarcity of qualified auditors.
 44

 1 The API and its member companies support

 2 performance based RMP regulations that are

 3 reasonable and that are applied and enforced in a

 4 manner consistent with the applicable statutory

 5 scope. And we believe both the EPA RMP and OSHA

 6 PSM regulations have been successful in preventing

 7 incidents over the past decades.

 8 To best serve the public and the

 9 regulated community, API recommends that EPA, one,

 10 defer changes to the RMP program requirements to

 11 OSHA, recognizing that workplace safety and health

 12 regulations should be led by the OSHA rulemaking

 13 process.

 14 Two, work with OSHA and industry to

 15 evaluate and develop scientific and industry-wide

 16 performance data to support any new or revised

 17 regulatory requirements.

 18 And three, following any finalization of

 19 OSHA's safety or health standards, issue

 20 harmonized RMP program revisions at that point.

 21 API appreciates EPA's efforts to provide

 22 an opportunity to engage in this dialogue
 45

 1 regarding the RMP proposed regulations. Thank

 2 you.

 3 MR. BELKE: Thank you. Just one

 4 question for you, Mr. Chittim. In your comments,

 5 I understood you to say that you thought that the

 6 PHA teams were not appropriate to do the safer

 7 technologies analysis. Does that --

 8 MR. CHITTIM: That's correct.

 9 MR. BELKE: -- fairly summarize it?

 10 MR. CHITTIM: Yes.

 11 MR. BELKE: Do you have, do your written

 12 comments have a recommendation on where that would

 13 appropriately be done? Or is it just that you

 14 object to the analysis?

 15 MR. CHITTIM: We think it's most

 16 appropriate in the initial design phase where it's

 17 easier to implement safer alternatives when a

 18 process is being developed and not later down the

 19 road as a bolt on or a modification of a process

 20 that's already in place. And we don't believe the

 21 PH team is the right place to do it in the base

 22 case.
 46

 1 MR. BELKE: Thank you. Any other

 2 questions?

 3 SPEAKER: No.

 4 MR. BELKE: Okay, Mr. Kothari, you have

 5 five minutes.

 6 MR. KOTHARI: My name is Yogin Kothari.

 7 It's spelled Y-O-G-I-N, last name, K-O-T-H-A-R-I.

 8 Thank you for this opportunity to speak on the

 9 proposed changes to the EPA's Risk Management

 10 Program rule. My name is Yogin Kothari. I'm here

 11 on behalf of the Center for Science and Democracy

 12 at the Union of Concerned Scientists. With more

 13 than 450,000 members and supporters across the

 14 country, we are a non-partisan, non- profit group

 15 dedicated to improving public policy through

 16 rigorous and independent science. The Center for

 17 Science and Democracy at UCS advocates for

 18 improved transparency and integrity in our

 19 democratic institutions, especially those making

 20 science based public policy decisions. We are

 21 glad to see that the EPA has finally proposed a

 22 long awaited revision to the RMP rule.
 47

 1 While we do think there are some parts

 2 of the proposal that could and will reduce risks

 3 associated with and improve emergency response to

 4 catastrophic chemical facility incidents, we

 5 strongly recommend that the proposal be

 6 significantly strengthened to prevent chemical

 7 facility accidents and better help communities,

 8 local emergency planning committees, and first

 9 responders understand and meaningfully respond to

 10 the potential risks they face.

 11 The EPA proposal regarding public access

 12 to information is not an improvement over the

 13 status quo. The revised list of information that

 14 would be publicly available lacks the inclusion of

 15 summaries of incident investigation reports, and

 16 safer technology, and alternatives analyses.

 17 This information would only be available

 18 to LAPCs upon request and is limited to

 19 information for facilities within their planning

 20 area. EPA's proposal will needlessly isolate

 21 LAPCs from information regarding successful hazard

 22 reduction practices achieved in other
 48

 1 jurisdictions. It will also isolate LAPCs from

 2 the benefit of information provided via other

 3 informed constituencies, including technology

 4 vendors, facility employees, academics, government

 5 agencies, and the general public.

 6 Providing public access to this

 7 information will help communities and first

 8 responders better prepare for and understand the

 9 dangers that they face as well as help communities

 10 hold the operators accountable for improving

 11 safety at their facilities.

 12 The Agency also fails to improve proper

 13 public access to information. EPA suggests that

 14 facilities can use "a variety of ways, including a

 15 website, other Internet platforms, the local

 16 library, a local government office, or even the

 17 facility itself to disseminate information to the

 18 public."

 19 But this patchwork fails to provide

 20 sufficient access to information, much of which

 21 facilities already submit to the EPA. As a result

 22 the EPA can and should make it easier for
 49

 1 communities to access this information as well as

 2 make it more actionable and usable.

 3 Secondly, EPA must take more steps to

 4 improve emergency preparedness and planning for

 5 communities that live in the fear of risks from

 6 chemical disasters. A significant number of LAPCs

 7 remain ineffective. Many LAPCs are inadequately

 8 funded, are not required to widely disseminate

 9 information, or lack real authority.

 10 Further, studies have shown weak

 11 communication between LAPCs and the public. Many

 12 facilities fail to fully take responsibility for

 13 emergency planning and coordination that is

 14 essential to meet their legal responsibility under

 15 the Clean Air Act to "provide a prompt emergency

 16 response to a release of regulated substances."

 17 Together, this results in a less prepared

 18 community that faces serious potential hazards

 19 plus a financial burden.

 20 We expect EPA to take a leadership role

 21 in ensuring that facilities understand and meet

 22 their responsibilities and that LAPCs become and
 50

 1 remain effective and collaborate with community

 2 groups in making information and resources

 3 available to them for emergency preparedness. Our

 4 third major concern lies with the EPA's proposed

 5 accident prevention requirements. The proposed

 6 rule should be strengthened to encourage

 7 facilities to transition to inherently safer

 8 technologies and design. While we understand that

 9 availability and feasibility are not always the

 10 same in a final rule, they Agency should expand

 11 the STAA requirements.

 12 The RMP rule remains the major defense

 13 against catastrophic disasters. The public,

 14 particularly fenceline communities, other poorer

 15 neighborhoods, and communities of color who

 16 already bear the greatest burden of living next to

 17 polluting and high risk facilities, look to the

 18 EPA to protect their health and safety. The RMP

 19 will only be an effective tool for public health

 20 and safety if the essential information in the

 21 accountability tools is easily accessible,

 22 available, and usable by the most vulnerable
 51

 1 populations.

 2 The EPA can make a real difference here

 3 by increasing access to information, reducing

 4 risks, and saving lives. We urge the EPA to not

 5 extend the deadline for public comment and

 6 encourage the Agency to expedite the finalization

 7 of a strong rule that truly makes a difference in

 8 the communities across the country.

 9 I appreciate the opportunity to voice

 10 our concerns and provide input for the necessary

 11 revisions to the proposed RMP rule. Thank you.

 12 MR. BELKE: Thank you. Questions?

 13 (No audible response)

 14 MR. BELKE: Thank you, both. Our next

 15 two speakers will be Ms. Jennifer Gibson and Mr.

 16 Lowell Randel. Ms. Gibson, you'll go first. And

 17 please state and spell your name for the court

 18 reporter.

 19 MS. GIBSON: Good morning, my name is

 20 Jennifer Gibson, typical spelling of Jennifer,

 21 Gibson, G-I-B-S-O-N. I'm vice president of

 22 Regulatory Affairs for the National Association of
 52

 1 Chemical Distributors, NACD.

 2 NACD and its over 400 member companies

 3 are vital to the chemical supply chain, providing

 4 products to more than 750,000 end users annually.

 5 NACD members are leaders in health, safety,

 6 security, and environmental performance through

 7 implementation of responsible distribution, a

 8 third- party verified management practice

 9 established in 1991 as a condition of membership.

 10 On behalf of NACD, I appreciate the

 11 opportunity to provide input on potential changes

 12 to the Risk Management Program. Along with one of

 13 our members, Allied Universal Corporation, NACD

 14 participated in the recent Small Business Advocacy

 15 Review process. I am pleased to present NACD

 16 views today. And we will also submit more

 17 detailed written comments for the docket.

 18 I need to say, however, that while NACD

 19 appreciates the opportunity to provide input, we

 20 are highly concerned about EPA's accelerated

 21 timeline in this process. We were surprised and

 22 disappointed that the Agency sent the RMP proposed
 53

 1 rule to the Office of Management and Budget on

 2 December 21st, less than two weeks after the

 3 deadline for small entity representatives to

 4 submit comments to the Small Business Advocacy

 5 Review panel and two months before the Small

 6 Business Review panel submitted its

 7 recommendations to EPA.

 8 Further, EPA has provided a mere 60 days

 9 to comment on a complex proposal that will have a

 10 major impact on regulated facilities. In this

 11 proposal, EPA seeks comments on more than 70

 12 explicit topics. In addition, there are almost

 13 300 supporting documents for the proposal,

 14 including a 147 page regulatory impact analysis.

 15 EPA has denied multiple requests for an

 16 extension of the comment period, including NACD's.

 17 This is extremely disappointing, as it will limit

 18 our ability to conduct a thorough analysis of the

 19 proposal, and its likely impacts, and to provide

 20 the most comprehensive comments possible.

 21 So on behalf of NACD, I'll now share

 22 several comments and concerns about the proposed
 54

 1 rule itself. Regarding the third-party auditor

 2 requirement, NACD questions whether this is

 3 actually necessary. This condition seems based on

 4 the assumption that internal auditors may be

 5 biased or lenient which is not necessarily the

 6 case.

 7 There is no guarantee that a third-party

 8 auditor will be more effective than an internal

 9 auditor. In order to be effective, an auditor

 10 must be both knowledgeable about a facility's

 11 operations and available to conduct the audit

 12 which will be extremely difficult under EPA's

 13 proposed stringent criteria.

 14 EPA's proposal that auditors must be

 15 licensed professional engineers is unprecedented

 16 and will severely limit the number of individuals

 17 who are eligible to perform these audits. Being a

 18 PE does not make an individual qualified to

 19 perform an RMP audit nor does it provide the

 20 credentials or ethics needed to perform RMP

 21 audits. In many cases, a chemist, chemical

 22 engineer, or certified hazardous materials manager
 55

 1 could be better qualified.

 2 This problem created by the PE

 3 requirement is exacerbated by EPA's proposed

 4 independence and impartiality requirements for

 5 auditors, under which an auditor cannot have any

 6 relationship with the company within the past

 7 three years. If EPA does elect to pursue the

 8 third-party auditor requirement, the Agency must

 9 provide some more flexibility on the criteria for

 10 these auditors so they will be available.

 11 For the incident investigation and root

 12 cause analysis, NACD is concerned that this

 13 proposal is far too broad. While we certainly

 14 support the concept of root cause analysis, these

 15 may not be appropriate for every incident and

 16 particularly every near miss.

 17 Expanding this requirement to near

 18 misses beyond those for catastrophic releases

 19 would create an enormous burden. The term near

 20 miss incident is difficult to define across the

 21 board at a national level. A near miss at one

 22 location might not be considered a near miss at
 56

 1 another location because of differing operations.

 2 Without a clear definition of near miss, the

 3 determination would be left to each individual

 4 inspector which would result in confusion, a lack

 5 of certainty, and uneven enforcement.

 6 NACD supports the concept of the local

 7 coordination and the field exercises. These are

 8 very important measures that would -- I think they

 9 would have truly have prevented a West Texas

 10 incident.

 11 One thing we would like EPA to keep in

 12 mind is that these organizations have very limited

 13 resources. They have many demands on their time.

 14 And we're concerned about facilities being put in

 15 a position of non-compliance, because they can't

 16 get the local emergency responders to come and do

 17 these exercises with them. So we would urge EPA

 18 to recognize documentations of attempts by

 19 facilities to get the coordination with these

 20 groups.

 21 So we will follow-up with written

 22 comments. And in order for these to be as
 57

 1 comprehensive as possible, we urge EPA to

 2 reconsider its decision regarding an extension of

 3 the comment period. Thank you.

 4 MR. BELKE: Thank you. Just one

 5 question. In your comments on near miss, do you

 6 intend to submit a proposed definition for us to

 7 consider in your written comments?

 8 MS. GIBSON: We haven't decided that

 9 yet. If we can come to an agreement among our

 10 association members, we will definitely consider

 11 that.

 12 MR. BELKE: Thank you. Mr. Randel?

 13 MR. RANDEL: Good morning. My name if

 14 Lowell Randel, L-O-W-E-L-L, Randel, R-A-N-D-E-L.

 15 Thank you for the opportunity to provide public

 16 comment today. I represent the Global Cold Chain

 17 Alliance and the International Institute of

 18 Ammonia Refrigeration.

 19 These are important industries in the

 20 food supply chain providing logistics services,

 21 cold storage warehousing, food manufacturing. And

 22 the bulk of our members use anhydrous ammonia as
 58

 1 their primary industrial refrigerant. Most of

 2 them have over the 10,000 pound threshold

 3 quantity. I might also add that many of our

 4 members are small businesses.

 5 I'll echo some of the comments you've

 6 heard before. While we appreciated the

 7 opportunity to participate in SBREFA small

 8 business panel, we do have concerns with the

 9 timing of when the proposed rule was sent to OMB

 10 and that that was done prior to the completion of

 11 the small business panel report.

 12 Again, appreciate the opportunity to be

 13 here and provide our comments. Some of these you

 14 will have heard already regarding third-party

 15 audits. We have some significant concerns that

 16 the independence requirements will lead to a

 17 further shortage of qualified auditors.

 18 In our view, qualification of the

 19 auditors is more important than the

 20 "independence." So we don't feel that the

 21 in-house audits are necessarily worse or more

 22 biased than third-party audits. And that's
 59

 1 particularly true when you have a difficult time

 2 finding auditors who are familiar with the process

 3 to be audited.

 4 We have a unique industry. We're not

 5 like the petroleum industry. We're not

 6 manufacturing chemicals. We have a closed-loop

 7 process. We feel it is critical that people

 8 familiar with our types of facilities be the ones

 9 that do the audit. And as such, a lot of those do

 10 happen in-house.

 11 We do have third-party auditing firms

 12 that conduct audits for our industry. But I will

 13 say, I was just at a meeting with about 1,500 of

 14 our industry members, had the opportunity to speak

 15 with many of them about the proposed rule. Some

 16 of those were firms that conduct third-party

 17 audits. And I asked how many of your clients do

 18 you just perform audits for? The answer was zero.

 19 So you're basically disqualifying the

 20 most qualified of our industry's auditors because

 21 of the independence requirements. They would have

 22 to either stop doing all of the current business
 60

 1 that they're doing to provide value added services

 2 to their clients or decide to do audits.

 3 Outside that, there would be a vacuum,

 4 we believe, of auditors that are familiar with our

 5 industry and our processes which, again, goes to

 6 our feeling that the qualification of the auditor

 7 is more important than the "independence."

 8 I would echo some of the concerns about

 9 the PE requirement. While PEs no doubt have

 10 talents, they may not be the best to audit. We

 11 feel that years of experience with a certain type

 12 facility and industry is a more important

 13 qualifier.

 14 The number of audits, either being led

 15 or as a part of a team for an audit within the

 16 particular type of facility and industry, as well

 17 as involvement or membership in the related

 18 standard writing body or RAGA gap development body

 19 for that particular industry in question, would be

 20 more relevant for the qualification of the

 21 auditors.

 22 Again, we do believe there's a serious
 61

 1 problem for auditor availability under this

 2 independence criteria. It's going to lead to

 3 either higher costs in having to bring people in

 4 from far away to get that qualification or, you

 5 know, this is going to in particular have a

 6 hardship on small businesses.

 7 I do want to touch on near misses in

 8 root cause analysis in a broader point of many of

 9 our members. We've established a culture of

 10 report everything. And our fear is, because of

 11 some of these new requirements, people may tend to

 12 document that it's less than 100 pounds rather

 13 than report, for fear that they would have to do

 14 additional things like the root cause analysis or

 15 go through the independent audit criteria. So I

 16 urge the Agency to think about the unintended

 17 consequences of the disincentive for reporting

 18 under 100 pounds in our case for the threshold

 19 quantity.

 20 One last point on information sharing,

 21 the public meeting requirement, we've tried this

 22 in our industry, talked to many members. We felt
 62

 1 that those were not well attended and that 30 days

 2 is not sufficient time after an accident. Thank

 3 you.

 4 MR. BELKE: Thank you. Any questions?

 5 (No audible response)

 6 MR. BELKE: Okay, thank you both. At

 7 this time, we're going to take a short recess. So

 8 right now it's 10:07. Let's start the hearing

 9 again in 15 minutes at, we'll say, 10:20. I'm

 10 sorry, yes, 10:23.

 11 (Recess)

 12 MS. JENNINGS: If everyone could get

 13 settled? Let me just say that we have a new

 14 panel. My name is Kim Jennings. I'm going to be

 15 the panel chair. To my left is Patty Gioffre.

 16 She is with the Office of Emergency Management, as

 17 am I, and to my right is Kathy Franklin.

 18 So our first two speakers are Rick Hind

 19 and M.J. Eggers, so if they would please come up

 20 to the speaker table? And once again announce

 21 your name and the spelling.

 22 MR. HIND: My name is Rick Hind,
 63

 1 R-I-C-K, H-I-N-D. I'm the Legislative Director of

 2 Greenpeace, and I'm here on behalf of Greenpeace

 3 and approximately a quarter million members of

 4 Greenpeace around the United States. Thank you

 5 for this hearing today. I wish there were more

 6 opportunities for community folks to participate,

 7 but we will encourage people to get you written

 8 comments.

 9 I'm going to leave you written material

 10 today. It's a report that we released in February

 11 with an addition. It's a report about facilities

 12 that are also known as chlorine bleach-making

 13 facilities. Sixty-three million people in the

 14 United States are put at risk by these chlorine

 15 facilities, 86 of them are in our report. But the

 16 proposed rule for safer alternatives assessments

 17 exempts almost half of them, approximately 44

 18 percent of them, and some of these facilities put

 19 whole cities at risk. In addition the safer

 20 alternatives assessment in the rule would exempt

 21 water facilities, so we've attached a list of

 22 approximately 60 drinking water and wastewater
 64

 1 facilities around the country that put 100,000 or

 2 more people at risk. Again, in both categories

 3 these facilities put a million people at risk in

 4 major cities like Los Angeles, Miami, Houston,

 5 Dallas, Detroit, Minneapolis, and other places.

 6 So it really doesn't make sense to exempt them in

 7 our view. And, in fact, the NAICS code that you

 8 assigned the paper industry, citing the accident

 9 prone nature of the industry, while that industry

 10 is not safe at all, I think the fact is that you

 11 cite more accidents at water treatment facilities.

 12 So we'd like to see that expanded in the most

 13 prevention-oriented piece of this proposed rule.

 14 We also appreciate that you have asked

 15 for comment on implementing inherently safer

 16 technologies, and we think that that should be not

 17 just an option. It should be in your final rule

 18 as you even cost out. That may be the third

 19 option that's the most expensive, but the savings

 20 are enormous, the savings even for the companies.

 21 And, in fact, in your assessment we would

 22 encourage that the companies look at many of the
 65

 1 cost benefits and the reduced liability,

 2 regulatory obligations, and, in fact, chemical

 3 costs that are reduced.

 4 Also regarding these assessments, we

 5 think that it's really unhelpful to not have them

 6 sent to EPA. If they're being done, the EPA

 7 should be receiving them and they should be made

 8 public, and they should be done within 18 months.

 9 Four years seems like an awful long time to wait

 10 for an assessment like this that would be so key

 11 to motivating the facilities and helping the

 12 Agency to require implementation of any safer

 13 alternatives.

 14 I also want to associate myself with

 15 other comments by public interest groups today

 16 about expanding information availability in terms

 17 of having LEPCs and emergency responders having to

 18 ask for information. That information should be

 19 provided, and a Website seems like the perfect way

 20 to do that. A clearinghouse for safer

 21 alternatives as well would be an excellent

 22 addition.
 66

 1 Another area that you mentioned that

 2 you're not going to weigh into with the rule is

 3 the area of siting and buffer zones. If you're

 4 not engaging in prevention requirements like IST,

 5 you really need to have these buffer zones. You

 6 also need a heck of a lot more money, billions in

 7 terms of emergency response costs.

 8 And lastly, a lot of times industry and

 9 other opponents to the IST requirements, for

 10 example, often cite risk shifting. We want to

 11 bring to your attention the fact that risk

 12 shifting is happening. It's a Wild West out

 13 there. There are facilities that will be

 14 increasing risk in the very near term across the

 15 United States. Part of that risk will be through

 16 railcars, but chlorine will be on the move in more

 17 places starting April 1 thanks to Olin Chemical

 18 Corporation than it was before April 1.

 19 And lastly we noticed a lot of the

 20 comments -- or I should say footnotes -- in the

 21 proposed rule, that reference the Center for

 22 Chemical Process Safety and others as well. But I
 67

 1 think it should be made clear that that is an

 2 industry- funded organization and there's some

 3 conflict of interest. And so we would urge you to

 4 take with a grain of salt their consistent

 5 opposition to requirements of inherently safer

 6 technology even though they embrace it as a

 7 voluntary measure.

 8 Also we've noticed that in trade

 9 associations you kind of get the lowest common

 10 denominator, but when we met with Dow Chemical in

 11 2009, they gave us legislative language on

 12 requiring inherently safer technology and it was

 13 conditional. We didn't agree with it, but we

 14 think it was a positive step. And since then

 15 they've sold their entire chlorine unit, which

 16 represents something like $5 billion, the largest

 17 chlorine production in the United States. Of

 18 course, that's now held by Olin Corporation, which

 19 is shifting those risks without any regulation by

 20 you or any requirement to adopt safer

 21 alternatives.

 22 Thank you very much for allowing me to
 68

 1 come today and speak.

 2 MS. JENNINGS: Thank you very much.

 3 Next speaker?

 4 MR. EGGERS: My first name's Matthew,

 5 M-A-T-T-H-E-W, last name is Eggers, E-G-G-E-R-S.

 6 The J was from middle name, John. So good

 7 morning. My name is Matthew Eggers. I'm an

 8 Executive Director of National Security and

 9 Emergency Preparedness at the U.S. Chamber of

 10 Commerce. The Chamber welcomes the opportunity to

 11 offer its initial perspectives on EPA's proposed

 12 rule concerning expanding the risk management

 13 program or RMP mandates.

 14 The Chamber provides these views while

 15 being especially mindful of the chemical

 16 facilities' anti-terrorism standards program even

 17 though separate from RMP, which we support. CFATS

 18 is a relatively new example of public-private

 19 partnership in the context of Homeland Security.

 20 U.S. Businesses are devoting billions of dollars

 21 towards measures approved by DHS to make chemical

 22 facilities more secure and resilient in all
 69

 1 hazards' context. As the Executive Order on

 2 Chemical Facility Safety and Security is

 3 implemented and as EPA's rulemaking is being

 4 considered, the Chamber wants to ensure that

 5 productive and longstanding relationships between

 6 the government and the private sector are

 7 maintained and improved. The Chamber urges EPA to

 8 consider the following points:

 9 First, we request that EPA extend the

 10 comment deadline to 90 days and 60 days for the

 11 RMP and information collection request or IRC

 12 provisions, respectively, up from 60 days and 30

 13 days. Although I would add as a footnote we did

 14 receive a denial letter yesterday to our chagrin.

 15 The time allotted to respond to the Agency is

 16 insufficient for companies to collect and assess

 17 data and prepare suitable comments. A cursory

 18 glance suggests that EPA is seeking information on

 19 a vast array of issues.

 20 Second, the administration's focus on

 21 engaging so- called outlier facilities that store

 22 and distribute chemical- related products, but are
 70

 1 not part of the established chemical industry or

 2 participants in the local emergency planning

 3 committees or LEPCs, is constructive. The Chamber

 4 believes that the interagency working group should

 5 increase outreach to these outliers by enlarging

 6 compliance resources and improving the

 7 effectiveness of LEPCs.

 8 Third, the Chamber values the work that

 9 government entities and industry have done

 10 together to develop and implement the national

 11 chemical security program. Our organization,

 12 however, has concerns that the new RMP regulations

 13 could harm considerable gains that Chamber members

 14 and DHS have achieved since CFATS's inception.

 15 Any proposed policy or legislation should not

 16 conflict or overlap with existing federal security

 17 regulations, including CFATS and the Maritime

 18 Transportation Security ACT or MTSA.

 19 Fourth, terrorists and other bad actors

 20 should not be allowed to have keys to unlock the

 21 security of a facility. The Chamber supports

 22 limiting access to sensitive security information
 71

 1 to the owners and operators of a facility and to

 2 DHS, not to any third party that is not mutually

 3 agreed to by the regulated entity and government

 4 authorities. Any new policy proposal or law that

 5 would weaken controls on sensitive information

 6 would be a step in the wrong direction.

 7 Fifth, the rulemaking would possibly

 8 require chemical facilities to assess or implement

 9 inherently safer technologies or ISTs, or I should

 10 say or safer technologies and alternatives as the

 11 proposed rule also calls them. The

 12 performance-based CFATS program already provides

 13 chemical facilities with incentives to implement

 14 enhanced safety measures, improve processes, and

 15 substitute safer chemicals. CFATS allows

 16 facilities to move to a lower risk tier or out of

 17 the program if risk profiles are reduced and

 18 vulnerabilities are minimized. Further, taking

 19 the next step in mandating the adoption of

 20 government-selected ISTs would be unduly

 21 burdensome, particularly for smaller chemical

 22 facilities, and could hinder their overall efforts
 72

 1 at improving security. CFATS is mitigating risk

 2 through market solutions. Roughly 3,000

 3 facilities have changed processes or inventories

 4 in ways that have enabled them to be excluded from

 5 the program. CFATS is helping facilities reduce

 6 inherent hazards. Companies do not rely on

 7 regulatory mandates, but on their managers'

 8 expertise to mitigate risk, including where risk

 9 can be lessened without reducing product quality

 10 or transferring risk to some other point in the

 11 supply chain.

 12 In short, the Chamber views DHS's risk

 13 performance- based approach for developing a site

 14 security plan as constructive because it refrains

 15 from mandating preferred solutions to site

 16 security, recognizes the uniqueness of a

 17 facility's circumstances, and emphasizes a

 18 public-private sector effort for selecting and

 19 implementing strong and effective measures and

 20 practices at chemical facilities.

 21 Thank you for giving me a chance to

 22 convey the Chamber's views. I'm happy to answer
 73

 1 any questions.

 2 MS. JENNINGS: Thank you. Anyone have

 3 any questions? All right. Thank you to both

 4 speakers. So we have one remaining registered

 5 speaker, Mr. Tim Hunt, and he will be the last

 6 registered speaker for the morning session. So if

 7 there are additional speakers who have not spoken,

 8 but would like the opportunity this morning to

 9 speak, please go to the registration desk and

 10 register and we can have you speak this morning.

 11 Thank you. Mr. Hunt, the floor is yours.

 12 MR. HUNT: Thank you. My name's Timothy

 13 Hunt, T-I- M-O-T-H-Y, H-U-N-T. Thank you for the

 14 opportunity to speak today. I'm the Senior

 15 Director for Air Quality Programs at the American

 16 Forest and Paper Association. America's paper and

 17 wood products manufacturing industry is committed

 18 to operating safe facilities. I'm here speaking

 19 to you regarding EPA's proposal to require safer

 20 technology and alternatives analysis, STAA, and

 21 for the paper manufacturing industry and

 22 third-party audits as part of the risk management
 74

 1 program.

 2 In justifying the applicability of STA

 3 provisions, the Agency cited two reasons for

 4 including the paper sector. First, sources

 5 involved in complex manufacturing operations have

 6 the greatest range of opportunity to identify and

 7 implement safer technology; and second, RMP

 8 facilities in this sector have a relatively large

 9 number of accidents, deaths, injuries, and

 10 property damage. Let me speak to each of these.

 11 AF&P member companies make paper, which

 12 we feel should not be considered a complex

 13 process, essentially a production process that has

 14 existed for more than 50 years. Furthermore, in

 15 EPA's technical background document in the section

 16 on emergency coordination, EPA divides facilities

 17 into simple and complex entities. Paper

 18 manufacturing facilities are not listed as complex

 19 in the background document and correctly so in our

 20 view.

 21 As for our industry being responsible

 22 for a relatively large number of accidents, we do
 75

 1 not agree with EPA's reasoning to support this

 2 claim. Calculating an industry's accident rate by

 3 accidents per facility makes any direct or

 4 apples-to-apples comparison difficult. Our

 5 facilities are very large and often employ several

 6 hundred to over a thousand employees.

 7 Consequently the probability of an accident at a

 8 large facility with many employees is higher than

 9 the probability at a small facility with fewer

 10 employees. We suggest that EPA recalculate this

 11 value, using accidents per hours worked or

 12 accidents per number of full-time workers, which

 13 are similar to the Occupational Safety & Health

 14 Administration and the Bureau of Labor Statistics

 15 calculations for incident rates.

 16 Section 112(r) of the Clean Air Act aims

 17 to prevent accidental releases of regulated

 18 substances into the offsite ambient air. Our

 19 industry had the lowest number of injuries offsite

 20 than in any other NAICS code reported in the rule.

 21 Of the roughly 15,000 total offsite injuries,

 22 paper manufacturing had just two. We fail to see
 76

 1 how this indicator of relative safe operation was

 2 used in the decision to require STA for this

 3 industry. In the preamble EPA presents data for

 4 onsite incidences, which we believe is the primary

 5 purview of OSHA, and we will look into the

 6 information in the docket with respect to those

 7 incidents.

 8 In summary, our preliminary evaluation

 9 reveals a much lower level of risk of accidents,

 10 deaths, injuries, and property damage compared to

 11 other sectors. Our facilities already implement

 12 the safest, most innovative, and cost effective

 13 technologies. We believe that paper manufacturing

 14 should be removed from the sectors requiring STAA.

 15 In addition, AF&PA opposes EPA's

 16 proposed requirement for third-party audits as we

 17 believe company employees have much more expertise

 18 on the facilities' processes than a third-party

 19 auditor and, therefore, would conduct a much more

 20 thorough audit. Moving to an exclusive use of

 21 third-party auditors is likely to change the

 22 nature of the audit process and add significant
 77

 1 additional costs and time without justifiable

 2 benefit.

 3 Lastly, we are disappointed that EPA

 4 denied our request for a 30 day extension on the

 5 comment period. Given the complexity and

 6 magnitude of issues in this proposed rule and the

 7 impact it will have on all members of the RMP

 8 regulated community, it will be very challenging

 9 to effectively address all legal and technical

 10 aspects of the proposal, including the many

 11 requests for comment called out by EPA in the

 12 proposal.

 13 In conclusion, AF&PA members are

 14 committed to minimizing and safeguarding the use

 15 of hazardous chemicals. AF&PA members are close

 16 to achieving our Better Practices, Better Planet

 17 2020 goal for a 25 percent improvement in incident

 18 rates from 2006 to 2020 with a long-term vision of

 19 zero injuries. Initiatives implemented by our

 20 industry result in a decrease in injuries on the

 21 job. AF&PA members implemented worker training,

 22 increased automation, and a host of
 78

 1 injury-prevention measures and safeguards. This

 2 allowed them to reduce their incidence rates by 24

 3 percent between 2006 and 2012. We are currently

 4 evaluating data for our industry's performance

 5 since 2012. We believe that EPA should not impose

 6 safer technology and alternatives analysis on the

 7 paper manufacturing industry nor require

 8 third-party audits.

 9 Thank you for your time and

 10 consideration, and we look forward to providing

 11 more detailed comments at the close of the comment

 12 period.

 13 MS. JENNINGS: Thank you very much. Any

 14 comments? So we have no additional registered

 15 speakers or speakers that have asked to talk this

 16 morning or provide 5 minutes of comments. So,

 17 therefore, we are going to take a recess until

 18 1:00 p.m. Thank you.

 19 (Recess)

 20 MS. REGNA: Good afternoon. We're going

 21 to start the hearing now, restart the hearing. My

 22 name is Jean Regna. I'm with EPA, Region 2 Office
 79

 1 of Regional Counsel. With me on the panel is

 2 Brian Doster of the Office of General Counsel,

 3 Kathleen Franklin of the Office of Emergency

 4 Management, and Eileen Mayer also of the Office of

 5 Emergency Management. Our first two speakers are

 6 Matt Hodges and Eric Conn.

 7 MR. HODGES: Good afternoon. My name is

 8 Matthew Hodges and I am speaking on behalf of the

 9 American Fuel & Petrochemical Manufacturers. AFPM

 10 is a trade association whose members include more

 11 than 400 companies that encompass virtually all

 12 U.S. refining and petrochemical manufacturing

 13 capacity. We invest significant resources in the

 14 communities in which we operate, and our goal is

 15 to create a culture and environment where safety

 16 is never compromised for any reason.

 17 The existing risk management program

 18 when correctly implemented is already very

 19 effective in identifying and reducing risks and

 20 preventing offsite impacts. EPA acknowledges this

 21 in their RMP rulemaking proposal issued in

 22 response to Executive Order 13650 and the tragic
 80

 1 West, Texas incident. Unfortunately, the current

 2 proposal will not fulfill its intended purpose of

 3 preventing a future West, Texas incident from

 4 occurring.

 5 The West, Texas incident was caused by

 6 improper storage of ammonium nitrate and the

 7 facility's inappropriate handling of reactive

 8 hazards, yet neither of these problems is

 9 addressed by EPA in this rulemaking. Instead EPA

 10 is proposing measures that are inefficient,

 11 counterproductive, and ultimately ineffective in

 12 improving facility safety. If promulgated, EPA's

 13 proposal will increase security vulnerabilities,

 14 conflict with other agencies, and cost the

 15 regulated community millions of dollars in

 16 resources annually that could be better used for

 17 making substantive safety and security

 18 improvements.

 19 We contend that the regulatory process

 20 is being expedited without providing affected

 21 parties the appropriate time and materials to

 22 properly evaluate its impact and associated costs.
 81

 1 As of last week, the docket was missing some of

 2 the following documents: Documents on the

 3 regulatory flexibility analysis, comments from

 4 within EPA and other agencies on the proposed

 5 rule, specifically comments from DHS addressing

 6 security concerns and sharing of sensitive data,

 7 and details on OSHA's process safety management

 8 rulemaking, which has significant overlap with

 9 EPA's RMP rule. Without this information, it is

 10 impossible for our members to provide meaningful

 11 comments to the Agency. We express disappointment

 12 that EPA has already rejected requests to extend

 13 the comment period even before accepting testimony

 14 at this public hearing.

 15 Of the elements of this proposal that we

 16 believe will run counter to effective risk

 17 management, these will include the following:

 18 First, overlap between OSHA and EPA: There is

 19 insufficient discussion regarding how EPA and OSHA

 20 intend to keep requirements for OSHA's 14 safety

 21 process elements and EPA's 12 program elements

 22 aligned. In the original RMP rulemaking, EPA
 82

 1 recognized several important policy reasons to

 2 maintain clarity and consistency between the PSM

 3 and RMP program requirements. Our members are

 4 concerned that the policy objectives of clarity

 5 and consistency will be undermined as EPA moves

 6 into what we have always understood to be OHSA's

 7 jurisdiction; for instance, the definition of

 8 "catastrophic release," which now includes onsite

 9 consequences such as property damages and

 10 injuries. Historically, OSHA has jurisdiction

 11 when an incident occurs inside the fence line, and

 12 EPA has jurisdiction when there is an offsite

 13 consequence. Having two overlapping, but

 14 different regulations will increase compliance

 15 costs significantly, but more fundamentally it is

 16 more likely to jeopardize facility safety than to

 17 improve it. This violates the Memorandum of

 18 Understanding between OSHA and EPA established and

 19 amended in 1990 and 1991.

 20 Inherently safer technology: EPA is not

 21 proposing any specific requirements to implement

 22 and/or execute the findings from the proposed IST
 83

 1 studies. However, our membership contends there

 2 is no other reason to require such an analysis

 3 unless the Agency intends to require

 4 implementation. Coupled with the vague definition

 5 of "feasibility," this aspect of the proposal will

 6 only create confusion and misinformation while

 7 creating avenues to implement IST without

 8 considering the costs and impacts of such

 9 implementation in a cost benefit analysis of the

 10 rulemaking. It is paramount that EPA eliminate

 11 this requirement and focus instead on the elements

 12 of the safer technology and alternatives analysis

 13 that are already contained within RMP, such as

 14 through the five-year process hazard analysis and

 15 threshold quantity requirements.

 16 Third-party audits: Our membership is

 17 concerned that EPA's requirement for third-party

 18 audits will only diminish the quality of audits by

 19 excluding those auditors that are the most

 20 knowledgeable and instead promote a cottage

 21 industry of less experienced and qualified

 22 auditors. This will be similar to the effect seen
 84

 1 in 2004 when EPA updated the recordkeeping and

 2 reporting requirements of the regulation in an

 3 attempt to address poor quality RMPs being

 4 prepared by third-party contractors.

 5 Finally our membership is concerned with

 6 EPA's cost benefit analysis. We contend that EPA

 7 has significantly underestimated the cost of

 8 third-party audits by hundreds of thousands of

 9 dollars and has overestimated the benefits of

 10 their proposal by double counting the benefits

 11 that accrue from OSHA's PSM program.

 12 In closing, our membership recommends

 13 that EPA coordinate the rulemaking process with

 14 OSHA to ensure alignment between these programs,

 15 which is critical for our industry. We also

 16 strongly advise that EPA consider the inclusion of

 17 these problematic elements that we have

 18 highlighted as inefficient and counterproductive

 19 to preventing and minimizing accidental releases.

 20 Thank you.

 21 MR. CONN: Good afternoon. My name is

 22 Eric J. Conn, one of the founding partners of Conn
 85

 1 Maciel Carey and Chair of the law firm's national

 2 Workplace Safety Practice. I'm speaking today on

 3 behalf of several of our clients in the petroleum

 4 refining and petrochemical manufacturing space.

 5 Our clients operate facilities that house numerous

 6 RMP- and PSM- covered processes. Although we have

 7 serious concerns about many elements of the RMP

 8 proposal, I'm here today to talk only about the

 9 proposals that would affect the three-year

 10 compliance audit element of the rule.

 11 Specifically, EPA has included language

 12 to amend the scope of the compliance audit

 13 requirement to now require a facility to audit all

 14 process units for all RMP program elements every

 15 three years. Since the birth of RMP and PSM

 16 before that, regulated facilities with multiple

 17 covered processes were allowed, indeed encouraged,

 18 by OSHA, EPA, and consensus standard-making

 19 organizations to use representative unit sampling

 20 to perform a compliance audit -- one audit to

 21 comply with both regulations.

 22 While my clients are pleased to see EPA
 86

 1 acknowledge that this is a new requirement, one

 2 that should be promulgated through the rulemaking

 3 process, we are concerned that such a significant

 4 change that will undoubtedly result in a

 5 significant increase in the cost of compliance was

 6 slipped into the rule without reviewing it with

 7 small business representatives through the SBREFA

 8 process and with no discussion or justification in

 9 the preamble or the cost benefit analysis. More

 10 importantly, however, we feel strongly that this

 11 proposal will diminish the quality of compliance

 12 audits at significant cost. Diminishing the

 13 quality of compliance audits obviously would

 14 diminish the impact on process safety, risk

 15 management, and employee safety.

 16 Almost universally my clients in the

 17 refining and petrochemical industry follow OSHA

 18 and EPA guidance, both of which expressly endorse

 19 on their Website the industry publication by the

 20 Center for Chemical Process Safety. That guidance

 21 recommends representative unit sampling for

 22 effective compliance audits. One of the reasons
 87

 1 for this approach is that management systems under

 2 PSM and RMP -- for example, management of change

 3 or emergency response planning -- are implemented

 4 the same site-wide and do not differ from process

 5 to process. Representative sampling provides an

 6 accurate assessment of all covered processes and

 7 allows for a deeper, more thorough look into these

 8 compliance systems.

 9 Under EPA's new proposal, a facility

 10 with 30 covered processes would now have to audit

 11 12 RMP program elements in 30 processes, which

 12 effectively means a records review, a physical

 13 review, and interviews related to 420 regulatory

 14 elements every three years. Combine that with the

 15 new compliance audit triggers for every RMP

 16 incident and near miss, and my clients will be in

 17 continuous audit mode. My clients also estimate

 18 that the cost to perform an RMP audit will

 19 increase under this approach from approximately

 20 $150,000 per audit to more than $1 million for

 21 larger facilities without adding any additional

 22 safety value or worse, a negative value.
 88

 1 Furthermore, having two overlapping, but

 2 different regulatory regulations will increase

 3 compliance costs significantly. More

 4 fundamentally, as EPA recognized when it issued

 5 the RMP rule, it is more likely to jeopardize

 6 facility safety. When there are conflicting

 7 requirements, compliance becomes more challenging.

 8 OSHA does not agree with this compliance audit

 9 approach historically and so far as we know still

 10 today. Accordingly, with this new compliance

 11 audit proposal's proposed scope and many other

 12 elements of this proposal, the two agencies will

 13 no longer be aligned and compliance with the

 14 regulatory requirements of PSM will no longer

 15 comply with RMP. It is the responsibility of the

 16 federal government to align the two rulemaking

 17 processes and these two regulations.

 18 My clients are also deeply concerned

 19 about EPA's proposed requirement for independent,

 20 third-party compliance audits. We believe this

 21 amendment will diminish the quality of RMP

 22 compliance audits by restricting the pool of
 89

 1 eligible auditors and driving away the most

 2 knowledgeable auditors. Specifically, my clients

 3 have serious concerns that EPA has put such rigid

 4 requirements around the independence of auditors

 5 that it will automatically disqualify the vast

 6 majority of competent, experienced auditors from

 7 an already limited auditing pool. Furthermore,

 8 the best qualified auditors who are not

 9 automatically disqualified will decline to audit

 10 because the value to a consultant of an audit --

 11 approximately $40,000 as compared to hundreds of

 12 thousands or millions of dollars in other

 13 consulting services -- they would then be

 14 precluded from offering.

 15 In conclusion we encourage EPA to more

 16 clearly acknowledge the change in scope of the

 17 compliance audit requirement, factor in the cost

 18 of this expansion in your cost benefit analysis,

 19 and eliminate the proposal that would diminish the

 20 pool of effective auditors.

 21 Thank you.

 22 MS. REGNA: Thank you. Our next two
 90

 1 speakers will be Stephanie Herron and Peter

 2 Montagna.

 3 MS. HERRON: Hi. My name's Stephanie

 4 Herron. Thank you for the opportunity to comment.

 5 In 2006 then Senator Barack Obama said that

 6 America's hazardous chemical facilities are

 7 stationary weapons of mass destruction spread out

 8 all across the country. In my hometown of

 9 Wilmington, Delaware, we probably have a dozen or

 10 more of them. Some are within a mile of my

 11 apartment and several are within a mile of my

 12 office. And I don't even know the exact number of

 13 them, let alone the chemicals that each one is

 14 processing and emitting or what the dangers are.

 15 Without this critical information, how

 16 can I protect myself from the dangers if I don't

 17 know what they are? How can my neighbors with

 18 young children protect their families from the

 19 long-term dangers of smaller levels of exposure

 20 over an extended period of time, and how can my

 21 elderly neighbors get out in the event of a

 22 catastrophic event or major release? I implore
 91

 1 you to please make this data available to

 2 communities. It is a basic human right to live in

 3 a healthy and safe environment, but it's nearly

 4 impossible to do that without the ability to know

 5 what's going on around you.

 6 How crazy is it that there are online

 7 databases where you can see if any of your

 8 neighbors have committed crimes, but you can't go

 9 online and see what the chemical company or trains

 10 being stored or processed right in your backyard

 11 -- literally in your backyard -- in parts of my

 12 city and state are processing? That doesn't make

 13 sense to me. We count on you, the Environmental

 14 Protection Agency, to protect us. We need a

 15 centralized database on EPA's Website where

 16 community members can go and look up any facility

 17 covered under the risk management plan under this

 18 rule and see what's being processed or stored

 19 there, what the potential dangers are, and what to

 20 do in the event of an emergency.

 21 I had a life-changing experience several

 22 years ago. I was going down to Louisiana a few
 92

 1 years after Hurricane Katrina. The people there

 2 are amazing. They are so vibrant and so

 3 resilient, but they shouldn't have to be that way

 4 because what's happening to them -- has happened

 5 and is still happening -- is just not fair that

 6 they have to be so resilient. This massive loss

 7 of life and property that was caused by Hurricane

 8 Katrina could have been mitigated significantly,

 9 if not entirely, by just better planning and

 10 listening to what experts and engineers have been

 11 warning about for several years before that. What

 12 happened in New Orleans when I was there really

 13 stuck with me because it reminded me so much of my

 14 own city. Delaware has the lowest average

 15 elevation of any state and by 2100 between 8 to 11

 16 percent of our whole state is estimated to be

 17 permanently inundated. Several areas in my city

 18 will be inundated entirely. And because hazardous

 19 chemical facilities, refineries, and wastewater

 20 treatment plants need to locate near water, many

 21 of the areas that are most vulnerable to flooding

 22 in Wilmington are current plants or legacy
 93

 1 contaminated toxic sites.

 2 I know that terrorists or other

 3 incidents could easily trigger a chemical disaster

 4 that would kill me and hundreds or thousands of my

 5 neighbors and that's definitely concerning, but

 6 it's the compounding dangers of sea level rise and

 7 chemical emergencies that really keeps me up at

 8 night. I shudder to think about what life will be

 9 like for some of my young cousins or future nieces

 10 or nephews if we don't make major changes to clean

 11 up our act now. Emergency preparedness is

 12 critical, and I know this because I live in a

 13 state and a city that has dozens of different

 14 hazardous facilities. I honestly don't even know

 15 what to do in the event of an emergency. I don't

 16 know if we have an emergency or evacuation plan.

 17 So I thank you for focusing your attention on

 18 responding to a disaster, but even more central is

 19 the prevention of chemical disasters in the first

 20 place.

 21 This rule as proposed falls short of

 22 what's needed to prevent future disasters.
 94

 1 Without more emphasis on prevention, many more

 2 resources are going to be needed to be dedicated

 3 to the future loss of life resulting from

 4 incidents. EPA must require facilities to move to

 5 inherently safer technologies -- require. This

 6 would make chemical facilities less attractive to

 7 terrorists, protect workers, and protect the

 8 community of like-minded families living nearby.

 9 EPA has the authority to require facilities to

 10 transition to inherently safer technologies and

 11 safer cost effective alternatives and in many

 12 cases they're widely available. There's no excuse

 13 for not making this transition. As proposed the

 14 rule exempts 87 percent of RMP facilities from

 15 having to conduct the safer alternatives analysis.

 16 MS. FRANKLIN: I had a question. Did

 17 you state what organization you're with?

 18 MS. HERRON: I'm just a resident of

 19 Wilmington.

 20 MS. FRANKLIN: Okay, thank you.

 21 MR. MONTAGNA: Dear panel, I want to

 22 start by thanking you for this opportunity to
 95

 1 speak about EPA's proposed changes to the risk

 2 management program. My name is Peter Montagna,

 3 and I serve on the Board of Directors for the

 4 Auditing Roundtable. I'm joined today by Scott

 5 Rois, a fellow Board member. The Auditing

 6 Roundtable is a nonprofit organization dedicated

 7 to the development and professional practice of

 8 environmental health and safety auditing. Our 700

 9 plus members represent EHS auditors in industry,

 10 consulting, and government. Every member agrees

 11 to abide by the Auditing Roundtable's Code of

 12 Ethics. Auditor competence and objectivity are at

 13 the foundation of that code.

 14 The Auditing Roundtable and the

 15 Institute for Internal Auditors together created

 16 the Board of EHS Auditor Certifications or BEAC in

 17 1997. BEAC is an independent, nonprofit

 18 organization that issues professional

 19 certifications related to EHS auditing.

 20 Applicants for BEAC certification must pass

 21 competency-based measures related to knowledge,

 22 professionalism, and auditing skill.
 96

 1 We are responding to the Notice of

 2 Proposed Rulemaking to amend the risk management

 3 plan, particularly the section related to

 4 compliance audits. As stated in the proposed

 5 rules, EPA can already require any of the proposed

 6 regulatory changes in a consent decree, and the

 7 examples cited show that mechanism is working.

 8 Our position is that companies must determine

 9 their own policies, procedures, and programs for

 10 performing audits, including auditor

 11 qualifications, audit frequency, and the

 12 management of action items regardless of the

 13 circumstances under which the audit is done.

 14 The RMP standard is performance based.

 15 Many of its elements require developing effective

 16 programs to address hazards. The approach we

 17 suggest is consistent with other elements, such as

 18 risk assessment, contractor management, and

 19 incident investigation. A company's auditing

 20 procedures should assess risk and match audit team

 21 member qualifications, whether internal or

 22 external to the company. Companies should be
 97

 1 allowed to use internal auditors provided they are

 2 independent of the site being audited and

 3 qualified through knowledge and experience in both

 4 process safety and auditing skills.

 5 Third-party auditors, particularly those

 6 serving as lead auditors, should hold BEAC

 7 certified professional EHS auditor or certified

 8 process safety auditor designation to demonstrate

 9 that they have met the generally accepted

 10 benchmarks for professionalism, competency, and

 11 the ability to effectively audit risk management

 12 programs.

 13 We see no value in requiring the audit

 14 team include a professional engineer.

 15 Requirements for professional engineering

 16 licensure do not specifically include process

 17 safety or auditing skills.

 18 Given the nature of RMP requirements,

 19 subject matter experts are often needed to perform

 20 effective audits. For example, knowledge in

 21 mechanical integrity is important to effectively

 22 evaluate programs. It is appropriate to include
 98

 1 experts, again internal or external, on audit

 2 teams provided they work under the direction of a

 3 certified or internally qualified lead auditor

 4 regardless of auditor qualifications.

 5 The frequency of audits should be based

 6 on the company's risk assessments and audit

 7 procedures. Companies should document the

 8 conditions under which a triennial audit is

 9 adequate for the protection of their employees and

 10 the surrounding community and when more frequent

 11 audits need to be done. Action items from

 12 compliance audits must be managed, and company

 13 procedures related to audits should address how

 14 corrective actions are managed through completion

 15 in a timely manner.

 16 Prohibiting a qualified individual from

 17 auditing a facility when they have performed work

 18 at that facility in the past three years and

 19 prohibiting them from working at the facility for

 20 three years in the future will have the unintended

 21 consequence of reducing the quality of the audit.

 22 These individuals will likely have a more complete
 99

 1 understanding of the technology being audited and,

 2 therefore, have a better understanding and

 3 capability of performing an audit. Third-party

 4 auditors will need to choose between auditing and

 5 consulting, thus reducing the number of qualified

 6 auditors available to perform audits.

 7 Lastly, we strongly oppose the proposal

 8 to submit draft reports to the Agency prior to

 9 review by either internal or external experts.

 10 Auditors will report out any unanswered questions

 11 whether or not it is applicable or a noncompliance

 12 issue. Publishing an incomplete and unreviewed

 13 audit will cause confusion and controversy.

 14 Please feel free to contact me at BEAC

 15 or the Auditing Roundtable should you have any

 16 questions or need further information. We again

 17 thank you for your time and will answer any

 18 questions you may have.

 19 MS. REGNA: Thank you.

 20 MS. HERRON: Sorry, I am with the

 21 Delaware Concerned Residents for Environmental

 22 Justice.
 100

 1 MS. FRANKLIN: The what?

 2 MS. HERRON: The Delaware Concerned

 3 Residents for Environmental Justice in addition to

 4 just being a community member. You asked me about

 5 a group, an organization?

 6 MS. FRANKLIN: Okay. I couldn't

 7 understand what you said, but --

 8 MS. HERRON: The Delaware Concerned

 9 Residents for Environmental Justice.

 10 MS. FRANKLIN: Okay, thank you.

 11 MS. REGNA: Thank you. Our next two

 12 speakers are Michele Roberts and Daniel Croce.

 13 MS. ROBERTS: Thank you for this

 14 opportunity to speak on the proposed changes to

 15 the EPA's risk management program rule. My name

 16 is Michele Roberts, National Co- Coordinator of

 17 the Environmental Justice Health Alliance,

 18 otherwise known as EJHA. We are a collaborative

 19 of fence line groups, of over 30 fence line

 20 groups, located in 13 states. Delaware Concerned

 21 Residents for Environmental Justice is one of our

 22 community members here with us. I'm here speaking
 101

 1 on behalf of the other 30 plus groups who were not

 2 able to be here.

 3 We're the ones who most often shelter in

 4 place and lose our lives, cultures, health, and

 5 communities to these at- times "avoidable

 6 disasters." That said, we believe this rule must

 7 stand firm on a firm foundation of precaution as

 8 opposed to being risk based. We're glad to see

 9 the EPA has finally proposed a long-awaited

 10 revision to the RMP rule. While we do think some

 11 parts of the proposal could and will reduce risk

 12 associated with and improve emergency response to

 13 catastrophic chemical facility incidents, we

 14 strongly recommend that the proposal be

 15 significantly strengthened to better help our

 16 communities, local emergency planning committees

 17 or otherwise known as LEPCs, and first responders

 18 to understand and meaningfully respond to the

 19 potential risk they face like you heard Stephanie

 20 speak to.

 21 The first major area of concern in the

 22 EPA's proposal is availability of information,
 102

 1 which is not an improvement over the status quo.

 2 A revised list of information that would be

 3 publically available lacks the inclusion of

 4 summaries of incident investigation reports and

 5 safer technology and alternative analysis. This

 6 information would only be available on request

 7 only to LEPCs and only within their planning area.

 8 This stonewalls the access to this material. We

 9 agree with our friends, the Union of Concerned

 10 Scientists and folks like Paul Orum, Dr. Paul

 11 Orum, that in designing the rule this way, EPA

 12 incorrectly assumes that LEPCs are effective

 13 entities. In fact, as many of our communities

 14 have testified, LEPCs are inadequately funded and

 15 are not required to widely disseminate information

 16 and lack real authority. Further studies have

 17 also shown weak communications between LEPCs and

 18 the public, and you've heard that time and time

 19 again in the public testimonies during the

 20 listening sessions from our communities.

 21 We also agree with UCSA that in

 22 finalizing the rule, EPA should expand the amount
 103

 1 and type of information publically available in

 2 the RMP. This means that EPA should include

 3 summaries of incident investigation reports and

 4 safer technology and alternative analysis, both of

 5 which can help communities and first responders

 6 better prepare for and understand the dangers they

 7 face as well as help communities hold operators

 8 accountable.

 9 Like our friends at UCSA, the Agency

 10 also fails to improve public access to

 11 information. EPA suggests that facilities can use

 12 a variety of ways, including a Website and other

 13 Internet platforms, the local library, a local

 14 government office, or even the facility itself to

 15 disseminate information to the public. But this

 16 patchwork fails to provide sufficient access to

 17 information, much of which facilities already

 18 submit to EPA. We agree as a result that EPA can

 19 and should make it easier for communities to

 20 access the information as well as make it more

 21 actionable and usable.

 22 Secondly, EPA must take more steps to
 104

 1 improve emergency preparedness and planning for

 2 communities that live in the fear of risk from

 3 chemical disasters. That is too much of a stress

 4 to our communities. As I have already mentioned,

 5 a significant number of LEPCs remain ineffective.

 6 Further, many facilities fail to take full

 7 responsibility for emergency planning and

 8 coordination. Together this results in a less

 9 prepared community that faces serious potential

 10 hazards plus financial burdens.

 11 While we appreciate EPA requiring more

 12 coordination and notification between P2 and P3

 13 facilities with local emergency response agencies,

 14 the Clean Air Act is clear that facilities should

 15 provide a prompt emergency response to a release

 16 of regulated substances. Therefore, EPA should

 17 follow the law and ensure that facilities play a

 18 greater role in the response. We also expect EPA

 19 to take leadership in assuring that facilities

 20 understand their responsibilities with LEPCs.

 21 I'll have my comments for you on the

 22 third concern, EPA's proposed accident prevention.
 105

 1 We also suggest you evaluate safer alternatives to

 2 better protect communities like Mossville,

 3 Louisiana; Manchester; Houston; Crossett,

 4 Arkansas; Richmond, California; Wilmington,

 5 Delaware; Delaware City; Charleston, West

 6 Virginia. The RMP rule will only be an effective

 7 tool for public health and safety if the essential

 8 information and accountability tools are easily

 9 available and accessible to our vulnerable

 10 communities.

 11 I have my comments. My apologies for

 12 going over, but our communities have suffered way

 13 too long. And so, therefore, just as long as they

 14 have suffered, I apologize I had to take more

 15 time. Thank you.

 16 MS. REGNA: Thank you.

 17 MR. CROCE: My name is Daniel Croce,

 18 C-R-O-C-E. Thank you for the opportunity to

 19 appear here today. I'm CEO of Chlorum Solutions,

 20 and I'd like to present what I believe is an

 21 inherently safer technology alternative to be

 22 taken into consideration for companies that use
 106

 1 and store large amounts of chlorine gas.

 2 With the evolving global and more

 3 importantly domestic threat of terrorism, it is

 4 important for the RMP STAA definitions and

 5 requirements to apply more broadly than is

 6 considered in the proposed rule today,

 7 specifically with regard to the transportation and

 8 storage of liquid chlorine. The large scale

 9 transport and storage of chlorine products close

 10 to urban centers could make it an attractive

 11 target for extremist organizations. As recent

 12 history has shown, the availability of large

 13 quantities of liquid chlorine at water treatment

 14 plants and wastewater plants and many other

 15 industrial facilities could allow terrorists to

 16 deploy a chemical weapon in a highly populated

 17 area without having to manufacture or transport it

 18 themselves.

 19 Our company builds and operates

 20 small-scale chlorine plants that can be placed

 21 onsite and provide just-in-time chlorine gas,

 22 eliminating the need for the transportation and
 107

 1 storage of liquid chlorine. Our equipment

 2 produces chlorine gas that can be used by any

 3 industry that utilizes the gas or liquid chlorine

 4 in their process, including water treatment,

 5 chemical manufacturers, and any other industry

 6 that it may apply. In contrast to users who store

 7 liquid chlorine in one- ton or railcar containers,

 8 our technology has that at any one point in time

 9 no more than 20 pounds of chlorine gas present in

 10 the entire process that we use, the very large

 11 difference in terms of risk. Additionally, should

 12 a rupture occur in the piping, the plan has an

 13 emergency shutdown system and stops the plant from

 14 producing more chlorine and leaking out into the

 15 environment.

 16 Finally, our plants do not compress

 17 chlorine or liquefy it for storage, thereby

 18 eliminating the most dangerous process in the

 19 production of chlorine. Under our process, excess

 20 chlorine gas produced that is not immediately used

 21 in the customer's process is transformed either

 22 into sodium hypochlorite or hydrochloric acid,
 108

 1 most commonly known as HCL. For the water

 2 industry the sodium hypochlorite can be used as

 3 backup to guarantee continuous supply to any

 4 planned stoppages for plant maintenance or

 5 unplanned maintenance.

 6 For these reasons we believe our

 7 technology to be safe with little to no risk in

 8 its operation and to surrounding areas, including

 9 highly populated areas. With this on-demand

 10 production of chlorine gas, our system also

 11 eliminates any national security threat associated

 12 with the transportation, storage, and

 13 transformation of liquid chlorine.

 14 Our technology used for the production

 15 of chlorine gas is the membrane technology. It is

 16 the newest technology available and very common in

 17 the chlorine industry. The difference is that

 18 we've scaled it down to a very small plant that

 19 can be located onsite. Our capacities start as

 20 low as 6,000 pounds per day of chlorine gas and

 21 can be scaled to any size necessary. The plant is

 22 modular and can be adapted to each specific
 109

 1 customer's need and consumption and can be

 2 increased later on if capacity needs to be

 3 increased.

 4 Membrane technology is an

 5 environmentally safe technology. It doesn't

 6 produce any toxic effluents, such as older mercury

 7 technology plants. These mercury plants are being

 8 phased out by the chlorine industry. So the

 9 effluents we produce are any of the impurities

 10 that are present in the salt, so it's basically

 11 salt water as the effluent we produce.

 12 In addition to providing a safer

 13 technology, there can be cost benefits provided by

 14 our plants. Chlorine leak prevention systems can

 15 be very expensive. In some cases emergency

 16 scrubbers can cost in excess of $20 million. Also

 17 specialized containment facilities and facility

 18 installation of sensors and emergency declaration

 19 plans can amount to a lot. For water treatment

 20 plants that use sodium hypochlorite, we could

 21 produce a cheaper product in the chlorine gas than

 22 the sodium hypochlorite they currently use today.
 110

 1 So at Chlorum Solutions we provide the

 2 entire package, meaning we develop, build, and

 3 operate the onsite plants. We provide all the

 4 investments. None of our customers need to invest

 5 in this. We supply the product we produce on an

 6 on-demand basis. The cost can vary depending on

 7 the plant size; generally the larger the plant,

 8 the less expensive. However, taking into

 9 consideration the entire cost of preventing leaks

 10 and handling dangerous chemicals, I believe we

 11 have a cheaper, more effective cost product.

 12 Just to finalize, I want to say that

 13 this isn't a new concept. We have a plant

 14 operating. We don't have any plants in the U.S.,

 15 but we have a plant operating on a water treatment

 16 facility in Brazil and building a second facility

 17 in Uruguay.

 18 MS. REGNA: Thank you very much. Our

 19 next two speakers will be Kelly Raymond and Trisha

 20 Sheehan.

 21 MS. RAYMOND: Good afternoon. My name

 22 is Kelly Raymond and on behalf of the National
 111

 1 Association of Manufacturers and its 14,000

 2 members, I'm pleased to offer the following

 3 remarks on the Environmental Protection Agency's

 4 proposal to update the accidental release

 5 prevention requirements, risk management programs

 6 under the Clean Air Act, Section 112(r)(7).

 7 The NAM is the largest industrial trade

 8 association representing small, medium, and large

 9 manufacturers in every industrial sector and in

 10 all 50 states. While we are still reviewing the

 11 proposed changes, this regulation has garnered a

 12 tremendous amount of concern for manufacturers in

 13 numerous sectors, including pulp and paper,

 14 refining, chemical manufacturing, wholesalers,

 15 iron and steel, pharmaceuticals, fertilizers, coal

 16 products, food manufacturing, plastics, cement,

 17 energy producers, and utilities. Chemicals are an

 18 essential part of our everyday lives and

 19 manufacturers prudently engage in risk management

 20 planning and invest in security as a necessary

 21 component of their business operations and to

 22 assure customer confidence.
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 1 We understand the charge EPA received

 2 from Executive Order 13650 following the incident

 3 in West, Texas three years ago; however, we fear

 4 the new requirements, which pose substantial

 5 challenges for manufacturers, still may not have

 6 prevented the explosion that occurred there.

 7 Take, for instance, the proposal's new requirement

 8 that a post-incident audit must determine a root

 9 cause to further prevent similar future incidents,

 10 that audits be completed by third parties, that

 11 these investigations be completed within a

 12 12-month time period. Using West, Texas as an

 13 example, the root cause analysis for this 2013

 14 incident is still not entirely known. The U.S.

 15 Chemical Safety and Hazard Board needed three

 16 years to complete its final report, which still

 17 offers three possible scenarios as causes. It's

 18 unrealistic to expect that these investigations

 19 may always be completed within that 12- month

 20 timeframe or that the root cause may always be

 21 found. Especially in scenarios where a facility

 22 or process is decommissioned after an incident, it
 113

 1 is an incredible burden to ask manufacturers to

 2 still meet all of those new requirements such as

 3 paying for a root cause analysis for a process

 4 they no longer perform.

 5 Requiring a third-party analysis itself

 6 is a difficult provision as access to competent

 7 auditors in rural areas where the entire firm has

 8 no relationship with the company for the past

 9 three years and will not have a relationship with

 10 them for the following three years will be

 11 incredibly hard to come by. Manufacturers fear

 12 that these third-party firms may not be as common

 13 as EPA believes as it part of most facilities'

 14 usual business practices to hire auditing firms to

 15 help them improve their processes and examine

 16 risks. How this provision may affect the access

 17 to auditors for the voluntary assessments

 18 manufacturers already complete as part of their

 19 best business practices has our members concerned.

 20 In addition the new program requirements

 21 that facilities consider inherently safer

 22 technologies as part of their process hazard
 114

 1 assessment and complete a feasibility analysis for

 2 any known IST, manufacturers believe it will, in

 3 fact, categorically improve safety. IST may not

 4 eliminate all risks associated with a process, and

 5 some apparently inherently safer options may

 6 introduce new hazards that are of greater concern

 7 than those eliminated. For example, a reduced

 8 quantity of a hazardous chemical at a plant can

 9 lead to a greater risk in transportation systems

 10 or at the originating plant. Risk shifting such

 11 as this and other considerations of IST ignore the

 12 commitment manufacturers already exhibit to

 13 improving safety at every phase of operations.

 14 Decisions about IST involve complex process safety

 15 issues that require a holistic approach. Reducing

 16 this burden to only those facilities that fall

 17 under certain NAICS codes, in fact, reduces

 18 concern among manufacturers very little as the EPA

 19 opens the door in their proposal for future

 20 rulemakings where it suggested that switching to

 21 an IST may be mandated. Manufacturers believe

 22 initiatives that focus on the IST distract from
 115

 1 the real issue of security and the overall

 2 processes already voluntarily undertaken by

 3 manufacturers to consider the best practices.

 4 And while manufacturers support strong

 5 relationships with the local emergency responders

 6 in the protection of the communities that we are a

 7 part of, we are greatly concerned by information

 8 sharing provisions that go beyond the providing of

 9 necessary information to first responders and

 10 instead provide significant information on

 11 facility operations and chemicals to the general

 12 public. Out of that same Executive Order that EPA

 13 is operating under, the Department of Homeland

 14 Security promulgates the chemical facility

 15 antiterrorism standards, which deem that many of

 16 these facilities meet additional regulatory

 17 provisions in order to put in place security

 18 measures to reduce the risks associated with the

 19 identified chemicals. Manufacturers see reason

 20 for concern as they are asked to safeguard

 21 chemical information under one regulation, but

 22 share it with the general public under another.
 116

 1 The NAM continues to urge the Agency to

 2 provide additional time to consider the

 3 implications of this large volume of information,

 4 which is complex and technical in nature. Though

 5 many of these topics were raised in the 2014 RFI,

 6 they are presented in broad context and even then

 7 a 90 day comment period was provided.

 8 Manufacturers are looking now at a 250 page

 9 proposal, 288 supporting documents, 147 pages of

 10 regulatory impact analysis, 154 page debriefer

 11 report, not to mention EPA states in the proposed

 12 rule that you should go back and review the RFI in

 13 full as many discussions held within that document

 14 won't be covered in the proposed rule. There is

 15 no reasonable justification for providing the

 16 public only 60 days to provide meaningful and

 17 deliberative comments on the proposed rule.

 18 Thank you for the opportunity to speak

 19 today on this important issue. Manufacturers are

 20 committed to protecting the environment and the

 21 health and safety of their workers and

 22 communities. We look forward to submitting
 117

 1 written comments and working with the EPA on this

 2 important regulation.

 3 MS. REGNA: Thank you.

 4 MS. SHEEHAN: Good afternoon. Thank you

 5 for the opportunity to allow us to speak with you

 6 today. My name is Trisha Sheehan, S-H-E-E-H-A-N,

 7 and I'm the Deputy Field Manager for Moms Clean

 8 Air Force. We are an organization of over 600,000

 9 members nationwide, advocating for our children's

 10 health.

 11 But I come to you today as also a mom.

 12 This is my son, Liam. He's 5 years old. And in

 13 2012 my family was exposed to vinyl chloride after

 14 a train had derailed. I know what it's like to

 15 watch my children suffer from the health impacts

 16 from being exposed to a toxic chemical. My 5 year

 17 old suffers from nosebleeds and short-term memory

 18 loss from his exposure to the vinyl chloride. The

 19 fear of one of us having cancer from the accident

 20 is very real and always at the forefront of my

 21 mind. As the mom of school aged children, I think

 22 a lot about my kids' school and not just the
 118

 1 academic school, but the bricks and mortar

 2 physical school and how it affects their growth

 3 and development.

 4 Children heading to school the day of

 5 the accident were also exposed to the toxic vinyl

 6 chloride. School should be a safe place to learn

 7 and grow. We know that one in ten schoolchildren

 8 in the U.S. live within one mile of a dangerous

 9 chemical facility. There are more than 12,000

 10 facilities in the U.S. that store large enough

 11 quantities of hazardous chemicals that they're

 12 required to file an emergency plan with the EPA.

 13 These facilities are places like oil refineries,

 14 water treatment plants, bleach manufacturers,

 15 wastewater plants, chemical manufacturing

 16 facilities, pulp and paper mills, and any other

 17 site where large quantities of dangerous chemicals

 18 are stored. The fertilizer plant in West, Texas,

 19 which exploded in 2013 killing 15 people, injuring

 20 hundreds, and destroying three schools, is one

 21 example of such a facility.

 22 Such sites may be storing highly
 119

 1 flammable chemicals as in West, or they may be

 2 storing highly toxic chemicals such as chlorine

 3 gas, which is used as a disinfectant at some water

 4 treatment plants. In case of a leak due to an

 5 accident, an equipment failure, extreme weather,

 6 or terrorism, some of these plants could harms

 7 hundreds of thousands of people over many square

 8 miles. Nearly 10,000 schools are sited within one

 9 mile of a hazardous chemical facility. These

 10 schools are in all 50 states and impact 4.6

 11 million children.

 12 Of course, these dangers are not

 13 relevant only to schools. As Michele stated

 14 earlier, the communities where we live are also at

 15 risk and the risk burden falls disproportionately

 16 on communities of color and poor communities.

 17 According to a 2014 report from the Environmental

 18 Justice and Health Alliance for Chemical Policy

 19 Reform, more than 134 million Americans live in

 20 the danger zones near 3,400 of the facilities in

 21 EPA's program. Residents in these chemical

 22 vulnerability zones are disproportionately
 120

 1 African-American or Latino, have higher rates of

 2 poverty compared to the U.S. as a whole, and have

 3 lower housing values, incomes, and educational

 4 levels. The disproportionate danger is sharply

 5 magnified in the fence line areas nearest the

 6 facilities. Many safer alternatives to hazardous

 7 chemicals exist, but because facilities aren't

 8 required to use safer chemicals or technologies

 9 when available, they continue to do what they're

 10 doing, which involves placing millions of children

 11 at risk where they learn and play.

 12 We are asking the EPA to require

 13 hazardous chemical facilities to use safer

 14 chemicals and technologies where feasible because

 15 all kids deserve a healthy, safe school for

 16 learning, playing, and growing.

 17 MR. DOSTER: Hi. I have just one

 18 clarifying question. What community are you from?

 19 You mentioned exposure, but you didn't mention

 20 where.

 21 MS. SHEEHAN: It was in Paulsboro, New

 22 Jersey. We lived in the community adjacent to
 121

 1 that.

 2 MS. REGNA: Thank you. We have now

 3 heard from all the registered speakers who chose

 4 afternoon speaking times. If there are additional

 5 people who have not spoken, but would like to,

 6 please go to the registration desk.

 7 MR. ORUM: So, good afternoon. My name

 8 is Mr. Paul Orum, not doctor. It's O-R-U-M. And

 9 I'm going to be very blunt right up front. I

 10 think this rule is very poorly done. It sort of

 11 embarrasses me to come and say that, but it's

 12 simply arbitrarily limiting and does not show any

 13 understanding of cost effective information

 14 management; however, specific improvements are

 15 achievable.

 16 First general area: EPA's proposal to

 17 require alternatives assessments from just three

 18 industry sectors is, as I said, arbitrary and

 19 incomplete. EPA exempts many high- hazard

 20 facilities based on two faulty assumptions.

 21 First, EPA uses routine incident rates in

 22 selecting industry sectors, but frequent smaller
 122

 1 incidents cannot be used to reliably predict

 2 infrequent catastrophic events, especially in an

 3 era of terrorism. It's like looking under the

 4 streetlight for lost keys because that's where the

 5 light is rather than where the keys might be.

 6 Second, EPA arbitrarily prejudges which

 7 industries have worthwhile alternatives; many

 8 opportunities are thereby obscured. Just a few

 9 examples: The proposed rule notes four companies

 10 that adopted demonstrably safer alternatives --

 11 Columbus Manufacturing, Abilene Products, Souza

 12 Dairy, and Metal Finishing Technologies were the

 13 examples. But based on their industry codes, EPA

 14 would not require any of them to conduct an

 15 alternatives assessment. For example, Hill

 16 Brothers Chemical manufactures bleach near

 17 Phoenix, Arizona. One mile away DPC Industries

 18 repackages and manufactures bleach. Each facility

 19 uses railcars of chlorine gas in enormous

 20 undeniable vulnerability zones, but only Hill

 21 Brothers would conduct an alternatives assessment.

 22 The Chemical Safety Board has
 123

 1 investigated many serious incidents at facilities

 2 that would not conduct alternatives assessments,

 3 for example, the DPC Industries' facility I just

 4 mentioned. Entire industry sectors would be

 5 exempt despite well-known alternatives -- drinking

 6 water you've heard about, wastewater, power

 7 plants, secondary aluminum smelters that replace

 8 chlorine gas with nitrogen, semiconductor

 9 manufacturers that use less concentrated

 10 hydrofluoric acid, pool service companies that

 11 substitute chlorine gas with chlorine tabs,

 12 various food processors that substitute anhydrous

 13 sulfur dioxide with sodium bisulfite. This is

 14 just a few from research I've done. None of them

 15 would be required to do an alternatives

 16 assessment. And regardless of industry sector,

 17 EPA proposes to exempt all program level 2

 18 facilities, which can include facilities that

 19 bring in chlorine gas by the railcar and have

 20 readily available alternatives.

 21 Basically EPA should not set itself up

 22 as a gatekeeper to prejudge the outcomes of
 124

 1 alternatives assessments. It should facilitate

 2 and learn from alternatives assessments, including

 3 both successes and barriers. I know I won't get

 4 to it in the 5 minutes here, but I do provide in

 5 my written comments some specific ways you can get

 6 out of assessing those barriers.

 7 Second general area: EPA's proposed

 8 rule creates needless information bottlenecks that

 9 will disenfranchise emergency responders,

 10 technology vendors, facility employees, academics,

 11 insurers, communities, general public, most

 12 government agencies, and just about everybody

 13 else. EPA cannot succeed in its mission without

 14 the informed interactions of many parties and

 15 should facilitate rather than artificially impede

 16 those interactions. For example, the community

 17 meetings will include information about responding

 18 to incidents at the bottom of the prevention

 19 hierarchy, but not information about preventing

 20 accidents through safer technologies. It's hard

 21 to imagine how that's not a recipe for frustration

 22 and disengagement.
 125

 1 EPA's approach will isolate LEPCs and

 2 responders from successful practices in other

 3 jurisdictions. It will obstruct vendors of

 4 technologies from readily learning whether covered

 5 facilities have evaluated their technologies. It

 6 will inhibit employees and contractors from

 7 learning about alternatives analyzed at their

 8 workplaces. It will impede academic researchers

 9 from vetting crosscutting analyses. It will

 10 prevent EPA from maximizing lessons learned

 11 through efficient lowest cost information

 12 management. It will deter EPA from setting goals

 13 under the Government Performance and Results Act.

 14 It will reduce the integrity of information by

 15 decreasing data use in comparisons, and so on and

 16 so forth.

 17 EPA should first use -- and I'll wrap up

 18 -- the RMP national database to organize

 19 information and then disseminate it. Organizing

 20 information first in this manner will dramatically

 21 reduce the transaction cost to disseminate the

 22 information and RMPs are, in fact, just summary
 126

 1 information, checkboxes, and summaries that can be

 2 obviously safely disclosed to the public.

 3 Thank you. Any questions?

 4 MR. DOSTER: Just one question just to

 5 clarify. I think you're well known to many in the

 6 room, but do you represent an organization?

 7 MR. ORUM: I'm not representing an

 8 organization today. I've done consulting work for

 9 a number of groups -- the Center for American

 10 Progress and the Coming Clean Report that was just

 11 mentioned by Michele Roberts are examples.

 12 MS. REGNA: Thank you. Again at this

 13 time we've heard from all the registered speakers.

 14 If there are additional people who have not

 15 spoken, but would like to, please go to the

 16 registration desk. At this time we'll take a

 17 short recess then. At this time we have no

 18 additional speakers. We will be on an extended

 19 adjournment, but we'll be available if there are

 20 additional people who wish to speak.

 21 MS. JENNINGS: I want to thank everyone

 22 for your comments. It is now 6:30 and we are
 127

 1 closing the hearing, the public hearing for the

 2 RMP proposed rule.

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 1 CERTIFICATE OF NOTARY PUBLIC

 2 I, Carleton J. Anderson, III do hereby

 3 certify that the forgoing electronic file when

 4 originally transmitted was reduced to text at my

 5 direction; that said transcript is a true record

 6 of the proceedings therein referenced; that I am

 7 neither counsel for, related to, nor employed by

 8 any of the parties to the action in which these

 9 proceedings were taken; and, furthermore, that I

 10 am neither a relative or employee of any attorney

 11 or counsel employed by the parties hereto, nor

 12 financially or otherwise interested in the outcome

 13 of this action.

 14 /s/Carleton J. Anderson, III

 15 Notary Public in and for the Commonwealth of

 16 Virginia

 17 Commission No. 351998

 18 Expires: November 30, 2016

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