UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

PUBLIC MEETING

PROPOSED CHANGES TO THE

RISK MANAGEMENT PROGRAM (RMP) RULE

Washington, D.C.

Tuesday, March 29, 20162

1 PARTICIPANTS:

2 Enviro nmental 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 Manageme nt

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 Association3

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 Manufacturers4

1 PARTICIPANTS (CONT'D):

2 MI CHELE 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 * * * * *

11

12

13

14

15

16

17

18

19

20

21

225

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 Mar ch 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 and6

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 requiremen t 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 requi rement 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 inc luding 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 t hen lastly, changes to7

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 call ed, 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 be8

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 gre en 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 t he 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 then9

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 t he 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 qu estions 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 w e'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 fire10

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 as11

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 Thir d

- 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 commen ts 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 1 3650 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 qua lity of compliance audit, as you

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

22 including auditor competence and team12

1 independ ence, 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 proc ess safety activities for13

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 t he 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 c onsequences, 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 o f

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 the14

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 t hink, 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 th e 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 au dit would

21 seem to focus on funding and the evidence

22 gathering needs for subsequent EPA enforcement15

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 sh ould 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 SI MS 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 Offshore16

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 behind17

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 p roposed 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 proces s 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 audito rs. This rule will require18

1 many more auditors than currently are practicing

2 with the corresponding learning curve that

3 acc ompanies 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 re ports 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 rep ort. 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 f actual 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 acceptabl e.

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 per sons 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 eth ical 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 a udit 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 publi c, 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 proper ty 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 conseq uence, or

22 property damage. I submit that this is not an21

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 auditin g

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 for22

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 nearb y 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 f encelines 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 management23

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 feas ibility 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?

1 7 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 systems24

1 and increased oversight. Two ex amples, 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 medic al 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 h igh

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 the25

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 questi on, 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 of26

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 ar e

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 a lso

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 B oard 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 so me 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 c omments.

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 rea lly 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 propos al. 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 supp ort 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 manuf acturers, analyze safer technologies29

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 RM P 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 emerg ency30

1 responders, we have to balance this with

2 protecting sensitive security information that

3 could be used by those with il l 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 enforc ed, 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 b een 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. ERN Y: 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. A nd 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 Ret ired 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 Defe nse Threat Reduction Agency. I'm a former32

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 spr ead

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 Eme rgency 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 and33

1 injured another 160.

2 This tragedy highlighted much of the

3 chemical industry's repeated failure to minimize

4 and safely store toxic mate rials 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 43 8 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 at tackers

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 Security34

1 Council projected that a major attack co uld 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 h ope 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 E PA 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 h igh 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, ma ny 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. Just36

1 give me ten more seconds.

2 Establish a public clearing house for

3 safer alternatives and, starting with the hi ghest

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. Jus t 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 mo rning, 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 for37

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 R elease 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 d evastating 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 th e

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 be39

1 damaged. However, there is no good reason we

2 should have to use our emergency respon se

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 opportun ity

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 chang es 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 faciliti es.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: Tha nk 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 a nd 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. A nd 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 and41

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 pr event

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 of42

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 s tatutory 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.

1 6 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 c lear that EPA itself has not

21 had sufficient time to thoroughly develop all the

22 implications of this proposed rule. We believe43

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 effor t 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 spen ding 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 en tirely 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 dialogue45

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 pla ce. 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 o ther

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

- pro fit 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 an d 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 re garding 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 in cident 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 fo r facilities within their planning

20 area. EPA's proposal will needlessly isolate

21 LAPCs from information regarding successful hazard

22 reduction practices achieved in other48

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 for49

1 communities to access t his 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, o r 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, t his 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 und erstand and meet

22 their responsibilities and that LAPCs become and50

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 ru le 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 s ame 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 fenceli ne 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 prote ct 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 availabl e, and usable by the most vulnerable51

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 th at 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 pro posed 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 of52

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 an nually.

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 pract ice

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. A long 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 w ill 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 a bout EPA's accelerated

21 timeline in this process. We were surprised and

22 disappointed that the Agency sent the RMP proposed53

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 prop osal 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 documen ts 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 extre mely 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 proposed54

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 k nowledgeable 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 a uditors 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 a n 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 ha zardous materials manager55

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 incid ent 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 appro priate 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 at56

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 inspect or 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 h ave 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 emer gency 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 as57

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, Rand el, 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 a mmonia as58

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's59

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 pe troleum 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 w ith 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 business60

1 that they're doing to provide value added servi ces

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 b elieve there's a serious61

1 problem for auditor availability under this

2 independence criteria. It's going to lead to

3 either h igher 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 t o 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 n ew 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 felt62

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 que stions?

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 h earing

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 op portunities 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 w e 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 ap proximately 60 drinking water and wastewater64

1 facilities around the country that put 100,000 or

2 more people at risk. Again, in both categorie s

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 exe mpt 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 th ink 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 the65

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 shou ld 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 publi c 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 requ irements 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 I67

1 think i t 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 oppo sition 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 lo west 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 th e 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 to68

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 perspect ives 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 Homelan d 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 all69

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 Cham ber 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 fol lowing 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, u p 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 administ ration's focus on

21 engaging so

- called outlier facilities that store

22 and distribute chemical

- related products, but are70

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 ent ities 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 se curity of a facility. The Chamber supports

22 limiting access to sensitive security information71

1 to the owners and operators of a facility and t o

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 incent ives 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 profi les 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 sma ller chemical

22 facilities, and could hinder their overall efforts72

1 at improving security. CFATS is mitigating risk

2 through m arket 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 inh erent 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 o r 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 constru ctive 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 fo r 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 answer73

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 s poken,

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 Program s 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 management74

1 program.

2 In justifying the applicability of STA

3 provisions, the Agency cited two reasons for

4 including the paper sector. Fir st, 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 ha ve 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 b e 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 emergen cy 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 v iew.

21 As for our industry being responsible

22 for a relatively large number of accidents, we do75

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 ac cidental 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 th e roughly 15,000 total offsite injuries,

22 paper manufacturing had just two. We fail to see76

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 death s, 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 expertis e

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 cha nge the

22 nature of the audit process and add significant77

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 inj uries. 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 of78

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 requir e

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 com ments. 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 t he hearing now, restart the hearing. My

22 name is Jean Regna. I'm with EPA, Region 2 Office79

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 speaker s 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 resour ces 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 tragic80

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 t he

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 c ost 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 disa ppointment

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 w e

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, EPA82

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 th e 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 "catastrop hic 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 mor e 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 Inher ently safer technology: EPA is not

21 proposing any specific requirements to implement

22 and/or execute the findings from the proposed IST83

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 ana lysis

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 cott age

21 industry of less experienced and qualified

22 auditors. This will be similar to the effect seen84

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 overestima ted 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 rulemaki ng 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 eleme nts 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 i s

22 Eric J. Conn, one of the founding partners of Conn85

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

2 Workplace Safety Pra ctice. 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 p rocess 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 EPA86

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 i t 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 fe el 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 exp ressly 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 audi ts. One of the reasons87

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 1 2 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 c hallenging.

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 sco pe 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 th e 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 requirem ent 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 of89

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 requir ements 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

1 2 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 two90

1 speakers will be Stephanie Herron a nd 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 Amer ica'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 m ore 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 implore91

1 you to please make this data available to

2 communities. It is a basic human r ight 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 o nline

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 go ing down to Louisiana a few92

1 years after Hurricane Katrina. The people there

2 are amazing. They are so vibrant and so

3 resil ient, 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. A nd 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 ar e current plants or legacy93

1 contaminated toxic sites.

2 I know that terrorists or other

3 incidents could easily trigg er 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 em ergencies 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

1 1 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 inc idents. 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 a nalysis.

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 to95

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 competenc y

- based measures related to knowledge,

22 professionalism, and auditing skill.96

1 We are responding to the Notice of

2 Pr oposed 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 be97

1 allowed to use internal auditors provided they are

2 independent of the site being audited an d

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, a nd

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 neede d to perform

20 effective audits. For example, knowledge in

21 mechanical integrity is important to effectively

22 evaluate programs. It is appropriate to include98

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 regardle ss 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 aud its 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 fut ure will have the unintended

21 consequence of reducing the quality of the audit.

22 These individuals will likely have a more complete99

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 u nreviewed

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 informat ion. 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 Delawa re Concerned Residents for Environmental

22 Justice.100

1 MS. FRANKLIN: The what?

2 MS. HERRON: The Delaware Co ncerned

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 ri sk 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 fenc e 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 speaking101

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 Stephani e

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 stu dies 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 commun ities.

21 We also agree with UCSA that in

22 finalizing the rule, EPA should expand the amount103

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 c ommunities 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 f acilities 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 to104

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 f acilities 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 financ ial 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 cl ear 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 rol e 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 m y 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 use106

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 defini tions 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 sc ale

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 onsi te and provide just

- in

- time chlorine gas,

22 eliminating the need for the transportation and107

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 ga s 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 ei ther

22 into sodium hypochlorite or hydrochloric acid,108

1 most commonly known as HCL. For the water

2 industry the sodium hypochlo rite 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 specifi c109

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 scrubber s 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 cust omers 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 expensiv e. 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 i n 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 National111

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 i n

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 a nd paper,

14 refining, chemical manufacturing, wholesalers,

15 iron and steel, pharmaceuticals, fertilizers, coal

16 products, food manufacturing, plastics, cement,

17 energy producers, and utilit ies. 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 busi ness operations and to

22 assure customer confidence.112

1 We understand the charge EPA received

2 from Executive Order 136 50 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 e xplosion 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 tha t 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 in cident 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, it113

1 is an incredible burden to ask manufacturers to

2 still meet all of those new req uirements 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 compete nt

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 hir e 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 compl ete 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 par t of their process hazard114

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 p rocess 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 focu s on the IST distract from115

1 the real issue of security and the overall

2 processes already voluntarily undertaken by

3 manufactu rers 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 volum e 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 re asonable 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 toda y 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 submitting117

1 written comments and working with the EPA on this

2 important regulation.

3 MS. REGNA: Thank you.

4 MS. SHEEHAN: G ood 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 ve ry 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 the118

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 highly119

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, extrem e 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 chemic al 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 chemi cal

22 vulnerability zones are disproportionately120

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 sa fer 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, whi ch 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 technolo gies 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 to121

1 that.

2 MS. REGNA: Thank you. We have now

3 heard from all the registered speakers who chose

4 afternoon speaking time s. 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 d octor. 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 arbitrari ly 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 t o

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 smaller122

1 incidents cannot be used to reli ably 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 whe re 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 pro posed 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 example s. 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, A rizona. 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 Brother s would conduct an alternatives assessment.

22 The Chemical Safety Board has123

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

-- drinki ng

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 of124

1 alternatives assessments. It should facilitate

2 and learn from alternatives assessments, inclu ding

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 barrier s.

7 Second general area: EPA's proposed

8 rule creates needless information bottlenecks that

9 will disenfranchise emergency responders,

10 technology vendors, facility employees, a cademics,

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 p arties 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 bott om 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 disengageme nt.125

1 EPA's approach will isolate LEPCs and

2 responders from successful practices in other

3 jurisdictions. It will o bstruct 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 alter natives 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 lo west 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. Organizin g

20 information first in this manner will dramatically

21 reduce the transaction cost to disseminate the

22 information and RMPs are, in fact, just summary126

1 information, checkboxes, and summaries that can be

2 obviously safely disclosed to the public.

3 Thank you. Any questions?

4 MR. DOSTER: Just o ne 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'v e 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. REG NA: 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 d esk. 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 are127

1 c losing the hearing, the public hearing for the

2 RMP proposed rule.

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22128

1 CERT IFICATE 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; tha t 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 pro ceedings 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, 201 6

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