**Mark S. Dreux** Partner 202.857.6405 DIRECT 202.857.6395 FAX mark.dreux@arentfox.com **Ar ent Fox LLP**  / Attorneys at Law Los Angeles, CA / New York, NY / San Francisco , CA / Washington, DC www.arentfox.com

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- 5342 **T** 202.857.6000 **F** 202.857.6395 October 29, 2014

The Honorable Math y S tanislaus Assistant Administrator Office of Solid Waste and Emergency Response U.S. Environmental Protection Agency 1200 Pennsy lvania Avenue, NW Washington, DC 20460 **RE: Docket ID No. EP** **AHQ -**  **OEM -**  **2014 -**  **0328 Comments of the National Oilseed Processors Association and the Corn Refiners**  **Association on the Environmental Protection Agency’s Request for Information regarding potential revisions to the**  **Risk Management Program Regulations and Rela ted Programs**  **.** Mr. Stanislaus, The National Oilseed Processors Association (NOPA) and the Corn Refiners Association (CRA) are pleased to submit these comments to the Environmental Protection Agency ’s (EPA) Request for Information regarding potential revisi ons to the Risk Management Program (RMP) Regulations and Related Programs (Docket ID No. EPAHQ

- OEM

- 2014

- 0328) . NOPA is a national trade association that represents 13 companies engaged in the production of vegetable meals and vegetable oils from oilseeds, including soybeans. NOPA’s member companies process more than 1.6 billion bushels of oilseeds annually at 63 plants located in 19 states, including 57 plants that process so ybeans. The oilseed processing plants operated b y NOPA member companies are freq uently subject to the RMP Regulations.Page 2

CRA is the national trade association representing the corn refining (wet milling) industry of the United States. CRA and its predecessors have served this important segment of American agribusiness since 1913. Corn refiners manufacture sweeteners, ethanol, starch, bioproducts, corn oil and feed products from corn components such as starch, oil, protein and fiber. The refining operations operated by CRA member companies are frequently subject to the RMP Regulations. We appreciate the opportunity to submit comments on the Request for Information and strongl y encourage EPA to set aside the amount of time necessary to analy ze comments submitted in order to provide a reasonable and workable final rule for all affected pa rties. **A. EPA has failed to establish that the RMP Regulations are in need of revision.**  OSHA’s Process Safet y Management (PSM) Standard and EPA’s companion RMP Regulations have a proven track record of reducing accidental releases of highl y hazardous chem icals. EPA should present a clearer case that the potential revisions being considered will address known hazards and a significant risk of harm. In fact, the dearth of incidents cited b y EPA strongl y i mplies the existing RMP Regulations are working. It is telling that in OSHA’s RFI, the incidents that OSHA described as its basis for considering revisions indicate that improper implementation of the current regulations is the problem: (1) “Formosa **failed to properly implement many OSHA -**  **required elements** of i ts PSM program.” 1 (emphasis added)

1 Process Safety Management and Prevention of Major Chemical A ccidents, 78 Fed. Reg. 73756, 57 (Dec. 9, 2013).Page 3

(2) At the BP Refinery in Texas City , Texas in 2005, “OSHA issued over 300 citations . . . and [m]any of the citations were for PSM violations, including **failing to properly implement mechanical integrity, training, and stan dard**  **operating procedures** .” 2 (emphasis added) (3) “[ I] nspectors found that Tesoro **failed to properly implement its PSM program**  by inadequately testing its equipment and continuing to operate failing equipment. As the result of the incident, DOSH issued 44 ci tations, 36 of which were PSM citations.” 3 (emphasis added) Based on OSHA’s own characterization, none of these tragic incidents appear to be attributable to an y deficiency of the PSM Standard or RMP Regulations. Without a showing by EPA of a factual bas is for the potential revisions demonstrating a significant risk of harm, NOPA and CRA cannot support revisions to the RMP Regulations at this time. **B. Many of EPA’s potential revisions are unnecessary, as OSHA already has existing**  **effective regulations gov erning the items of concern.**  EPA is considering several regulatory revisions that are really focused on safet y i ssues alread y within OSHA’s exclusive jurisdiction. Additional Risk Management Program elements such as stop work authority , job hazard analy s is, management of contractor services, management of organizational changes and occupancy criteria for buildings within a facility have been within OSHA’s exclusive purview for decades. For example, concerning stop work authority , OSHA has had a regulatio n in place since 1973 under which employ ees have the right

2 Id.
3 Id.Page 4

to refuse to do dangerous work; refusing to work is an effective form of stop work authority
. 4 Concerning contractor safety , OSHA has extensive regulations and policies designed to eliminate risks and hazards from the workplace. The PSM Standard requires a host employ er to evaluate the safety experience of a contractor prior to hiring him or her and to provide training on the hazards of the process, the emergency response plan and changes in the p rocess. Moreover, all of the other potential hazards in the facilities we represent are regulated by OSHA standards such as lockout tagout, confined space, hot work permits, HAZCOM, PPE, hearing conservation and respirators. Lastly, OSHA has enforcement authority for its multi

- employ er policy that requires, among other things, the host employ er to monitor contractor emplo yees for compliance with safet y and health regulations. Rather than develop additional unnecessary regulations, EPA should defer to OSH A’s expertise in regulating these particular items. **C. RMP works best as a performance**  **- based regulation.**  RMP is a performance

- based regulation in that the owner/operator selects the means of compliance. Man y of the proposed changes in this RFI undercut this feature, e.g. requiring “redundant power supplies, emergency flares, vents, or scrubbers, etc.” The community and EPA itself benefit from the existing performance basis of the RMP Regulations because .... The majority of the hazards presented are often more a function of the process utilized and, therefore, a prescriptive regulatory approach will fail to properly address site

- specific hazards. Therefore, EPA should not implement the prescriptive changes as proposed.

4 29 C.F.R. §1977.12(b)(2).Page 5

Should EPA decide to go forward regardless, NOPA and CRA make the following points: **1. “Combustible Dusts” and “Reactives” should not be added to the RMP**  **Regulations’’ list of regulated substances because of the complex nature of those terms.**  EPA asks whether other categories of substances such as “combustible dusts” should be added to its coverage provisions. “Combustible dusts” should not be added in part because of the complex nature of that term. Combustible dusts include a vast quantity of differing compounds, with each resultant dust cloud behaving differentl y. An attempt to craft a one

- size

fits

- all regulation to govern combustible dusts would be unmanageable and unwise. Additionally , in the Preamble to the RMP Regulations’ Final List Rule, EPA stated that accidental releases “would not include routine emissions.” 5 Given that combustible dust is a routine emission and does not fall within the regulatory definition of an accidental release from a facility , including combustible dust as part of the list rule is inappropriate. Should E PA choose to include specific dusts, NOPA and CRA would argue for excluding agricultural dust based on its phy sical and chemical attributes and the effectiveness of OSHA’s Grain Handling Facilities Standard. 6 The determination whether a particular dust is combustible is a very complex scientific assessment and must be done on a dust

- by

- dust basis. The combustibility assessment must

5 59 Fed. Reg. at 4490 (“The Agency believes that the definition is clear in specifying that an accidental release is an ‘unanticipated emission’ of a regulate d substance and that this would not include routine emissions.”
6 29 C.F.R. 1910.272.Page 6

include the chemical composition of the specific dust, its phy sical form, the size of its fines, its minimum ignition energy, its explosibility index and its maximum unvented explosion pressure. The factors for a dust such as sugar or flour are very different than those for metals or plastics. As Am y Beasley Spencer, an expert on combustible dust, put it: “Part of the problem w ith regulating dust explosions is the confusion about which dusts can explode and under what conditions. Even how much dust is a hazard is still unknown.” 7 Given the complexity of this assessment, OSHA has struggled to define “combustible dust.” The Unit ed Nations working group on the Globally Harmonized System (GHS) has so far resisted OSHA’s effort to adopt classification criteria for combustible dust, because combustibility of a dust is not an inherent hazard, but only a consequence of the particular f orm of the material, particularly related to particle size. OSHA is continuing to evaluate combustible dust and is even considering rulemaking. 8 While OSHA does that, EPA should postpone further consideration of adding combustible dust to the list of reg ulated substances. For a dust to combust, there are five factors that must occur simultaneously. They are commonly known as the “Explosion Pentagon” and include the fuel (i.e., the dust), an ignition source, ox ygen, dispersion of the dust in the correct c oncentration and confinement of the dust

7 Dust: When a Nuisance Becomes Deadly, NFPA Journal, Nov/Dec 2008 at 58.
8 See Department of Labor, Semiannual Agenda of Regulations (May 23, 2014), RIN 1218

- AC41, http://resources.regulations.gov/public/ContentViewer?objectId=0900006481710771&disposition=attachment&cont entType=pdf.Page 7

particles. If one factor is missing, then no combustion of that dust can occur. OSHA regulations address two of the five factors

– fuel (dust) and an ignition source. OSHA’s Housekeeping Standard, 9 which regulat es housekeeping practices in the workplace, will minimize dust accumulations in the workplace. The Occupational Safet y a nd Health Review Commission, as well as several Courts of Appeal, have held that this standard extends to combustible dust. 10 , 11 OSHA als o regulates ignition sources in the workplace. Section 1910.307(c) requires that “equipment, wiring methods and installations of equipment in hazardous locations . . . shall be intrinsically safe or approved for the hazardous location . . . .” Other stand ards require that hot work permits for welding, cutting and brazing are issued, that equipment and machinery be properl y grounded, that power hand tools be UL listed and double insulated, and that forklifts be rated for their use in hazardous locations. A dhering to these OSHA standards, the second factor in the Explosion Pentagon, ignition source, has been eliminated. Hence, OSHA standards adequatel y address the potential hazards of combustible dust and there is no need for EPA to issue additional regulat ions.

9 29 CFR 1910.22(a)(1) which states that “all places of employment, passageways and storerooms and service rooms shall be kept clean and orderly . . . .”
10 Cincinnati Gas & Electric Co., 21 BNA OSHC 1057 (No. 01

- 0711, 2005).
11 See Con Agra, Inc. v. Occupational Safety & Health Review Comm'n, 672 F.2d 699, 702 (8th Cir. 1982) (“[w ]e agree that the housekeeping standard is not limite d to tripping and falling hazards but may be applied to the significant accumulation of combustible dust as was shown in this case”); Bunge Corp. v. Sec'y of Labor, 638 F.2d 831, 834 (5th Cir. 1981).Page 8

Furthermore, combustible dust does not “pose a potential threat beyond the fenceline,” 12 but only to the workplace, which is the exclusive jurisdiction of OSHA. Unlike flammable liquids and flammable gases, confinement is a major factor in its explos ive potential. As a combustible dust is removed from the confined area and dispersed, the hazard ceases to exist, not only because the lack of confinement, but also because as it disperses the dust quickly drops below its Minimum Explosible Concentration. OSHA alread y has a large number of standards governing combustible dusts. 13 In addition, the National Fire Protection Association (NFPA) has published guidance documents such as NFPA 654 Standard for the Prevention of Fire and Dust Explosions from the Man ufacturing, Processing, and Handling of Combustible Particulate Solids
. 14 In summation,

12 59 Fed. Reg. at 4486 (explaining why flammable subst ances posing lesser hazards are included within the List Rule.
13 See generally 1910 Subpart D, Walking

- wo rking surfaces (1910.22, Housekeeping); 1910 Subpart E, Exit routes, emergency action plans, and fire prevention plans (1910.38, Emergency action pla ns); 1910 Subpart G, Occupational health and environmental control (1910.94, Ventilation); 1910 Subpart J, General environmental controls (1910.146, Permit

- required confined spaces); 1910 Subpart L, Fire protection (1910.157, Portable fire extinguishers, 1 910.165, Employee alarm systems); 1910 Subpart N, Materials handling and storage (1910.176, Handling materials

– general, 1910.178, Pow ered industrial trucks); 1910 Subpart Q

- Welding, Cutting and Brazing, (1910.252 general requirements for hotwork permits); 1910 Subpart R, Special industries (1910.261, Pulp, paper, and paperboard mills, 1910.263, Bakery equipment, 1910.265, Sawmills, 1910.269, Electric pow er generation, transmission, and distribution, 1910.272, Grain handling facilities); 1910 Subpart S, Elec trical (1910.307, Hazardous (classified) locations); and 1910 Subpart Z, Toxic and hazardous substances (1910.1200, Hazard communication).
14 NFPA has also published several other guidance documents relevant to the controlling the hazards associated with dust explosions. They include: NFPA 61 “Standard for the Prevention of Fires and Dust Explosions in Agricultural and Food Processing Facilities” (2013 ed.); NFPA 68 “Standard on Explosion Protection by Deflagration Venting” (2013 ed.); NFPA 69 “Standard o n Explosion Prevention Systems” (2014 ed.); NFPA 70 “National Electrical Code” (2014 ed.); NFPA 77 “Recommended Practice on Static Electricity” (2014 ed.); NFPA 499 “Recommended Practice for the Classification of Combustible Dusts and of Hazardous (Classif ied) Locations for Electrical Installations in Chemical Process Areas” (2013 ed.); NFPA 655 “Standard for Prevention of Sulfur Fires and Explosions” (2012 ed.); NFPA 664 “Standard for the Prevention of Fires and Explosions in Wood Processing and Woodw orkin g Facilities” (2012 ed.).Page 9

the RMP Regulations are the wrong vehicle for addressing the hazards presented by combustible dust. In the RFI, EPA has also asked whether there should be an exclusion for agricultural dust for EPA’s evaluation of combustible dust. NOPA and CRA strongly support anagricultural dust exclusion, for three reasons. First, dust explosions, including agricultural dust explosions, are workplace, not offsite incidents. Explosi ons related to agricultural dust require confinement typical of a workplace, such as a room, a building or a piece of equipment. Hence, any dust incident is a localized, onsite event and falls within OSHA’s exclusive jurisdiction. Secondly , OSHA alread y r egulates dust at grain handling facilities via its Grain Handling Facilities Standard, 29 C.F.R. 1910.272. The requirements in OSHA’s Grain Handling Facilities Standard alread y address the proper and safe handling of agricultural dust. The standard appli es to a wide range of agricultural products at “grain handling facilities: grain elevators, feed mills, flour mills, rice mills, dust pelletizing plants, dry corn mills, soy bean flaking operations, and dry grinding operations of soy cake.” 15 Moreover, it ha s specific requirements for housekeeping to ensure that the dust is promptly removed from the work area. It also has very specific requirements regulating ignition sources in grain facilities. The Grain Handling Facilities Standard, in addition to all of the other OSHA standards previously discussed, specificall y

15 29CFR 1910.272(b)(1).Page 10

addresses two of the five elements in the Explosion Pentagon (fuel (dust) and an ignition source), ensuring that agricultural dust is safely managed and that no additional regulation is needed. T hird, since 1980 when OSHA promulgated the Grain Handling Facilities Standard, the number of explosions, injuries and fatalities at grain handling facilities has declined significantl y. Between 1976 and 1980, there were approximately 25 explosions, involv ing 56 injuries and 21 fatalities. Between 2001 and 2005, there were tremendous reductions in all three categories: 9 explosions, 8 injuries and 1 fatality
. 16 The improving trend of injury and illness data shows that OSHA’s grain standard is effective and that an exclusion of agricultural dust is warranted. Our members also object to expanding the RMP Regulations to cover “reactive substances and reactivity hazards,” because of the complex nature of these terms. Reactivity is chemical

- and process

- specifi c and is far too complex for a national rule. In the initial rulemaking for the RMP, EPA recognized the technical complexity of this issue and concluded that it was infeasible to write a single national rule for all processes. 17 This technical complexity persists to the present. As a preliminary point, all chemical compounds can be characterized as “reactive chemicals,” because all are formed b y t he reaction of two or more chemical elements,

16 Data from information compiled by Kansas State University and USDA’s Grain Inspection, Packers and Stockyards Administration.
17 See 79 Fed. Reg. at 44611 (“In order to meet the conditions in CAA se ction 112(r)(3) for the listing of substances, EPA sought to determine the common physical

- chemical characteristics or properties that would be used as criteria to identify a set of chemicals to be listed and to provide the technical basis for these criter ia. . . . One difficulty (with adding reactive substances and reactivity hazards) is that it is not feasible for national listing decisions to take into account process

- and site

- specific factors, which can vary widely
. ” )
.Page 11

chemical compounds, or both of these. In addition, the hazard p resented by a given chemical’s reactivit y i s a function of the operating conditions under which the reaction is taking place. 18 In the RFI, EPA has proposed adopting the two lists of reactive chemicals and reactive functional groups which New Jersey listed in its Toxic Catastrophe Prevention Act (TCPA). 19 NOPA and CRA members do not agree with this approach, because it still fails to address the problem acknowledged by EPA

– that such an approach does not “take into account process

- and site

- specific factors , which can vary widel y. ” 20 Furthermore the Clean Air Act Amendments require EPA to consider: 21 (i) the severit y of an y acute adverse health effects associated with accidental releases of the substance (ii) the likelihood of accidental releases of the substance; and (iii) the potential magnitude of human exposure to accidental releases of the substance EPA has not considered these factors and cannot simply delegate this task to the New Jersey legislature. EPA has also proposed the use of NFPA 400 as a means to address rea ctives. This proposed use of NFPA 400 does not address the technical complexity of the potential reactivity of the various chemicals under process conditions. Moreover, NFPA 400 applies to a limited universe of chemicals and has very limited guidance on s torage, general use and handling.

18 Id.
19 New Jersey Toxic Catastr ophe Prevention Act, N.J. Admin. Code § 7:31 6.3.
20 79 Fed. Reg. at 44611.
21 42 U.S.C. §7412(r)(4).Page 12

Lastl y, there is inherent vagueness in the phrases “Unstable (Reactive) Solids and Liquids” 22 and “Water

- Reactive Solids and Liquids” 23 in NFPA 400. In summary , reactivity is a broad and, consequently , vague concept upon wh ich to develop meaningful regulation. Therefore, EPA should perform its own assessment of individual compounds as the Clean Air Act (CAA) requires and not defer to state legislators, who may not possess the expertise available to EPA. Upon completion of the assessment, EPA should then finalize the list of specific chemicals via notice

- and

- comment rulemaking. **2. EPA does not provide any justification for requiring additional management**  **systems in the workplace.** EPA’s proposal to require additional risk management program elements without any demonstrated need or benefit is improper. There is no evidence presented in the RFI that the existing management s ystems alread y i mplemented at many workplaces, including at facilities we represent, are deficient in any way . In addition, EPA does not point to any benefit of requiring industry to supplement the already existing management s ys tems with those outlined in the RFI. More importantly , requiring additional management sy stem elements would undermine the very purpose of the RMP Regulations. The RMP Regulations were conceived as a performance standard, permitting a generous range of methods to comply, because it was recognized that certain safet y practices or management systems may work at one facility but

22 National Fire Protection Association's “NFPA 400: Hazardous Materials Code” 2013 ed. Chapter 19, at 79.
23 Id . Chapter 20, at 81.Page 13

pro vide no real benefit at another. EPA’s proposal to revise the RMP Regulations in this manner contradicts this purpose and would burden many facilities without any real benefit. To this point, there is no ideal or perfect management system that will elimi nate or significantly reduce the occurrence of incidents; it is all a function of good management and timely execution by the employ er. In the RFI, EPA states that it is considering adopting management sy stem elements from the Bureau of Safety and Environ mental Enforcement (BSEE). This sy stem would create a stop work authority , an ultimate work authority and an employ ee participation plan. EPA’s suggestion inappropriately adopts more unnecessary government regulation without any improvement in safety . P ut simply , there is already sufficient management sy stem support provided in the OSH Act and the existing RMP Regulations. Employ ees already have the right to refuse work in light of a hazardous condition that could cause serious bodily injury or death. 24 And, employ ers already have a statutory dut y t o maintain a safe workplace, which is ultimate work authority
. 25 Moreover, the RMP Regulations alread y i nclude a requirement for a written employ ee participation plan. Additionally , regulating job hazard anal y sis is an OSHA function. OSHA already has rules in place that adequately address job hazards, such as regulations governing personal protective equipment, standard operation procedures, hot work permits, confined space entry

24 See 29 C.F.R. § 1977.12(b)(2).
25 See 29 U
. S
. C
. § 654(a)(1).Page 14

permits, respirators and heari ng conservation. With respect to adding safet y r equirements for contractors, OSHA has numerous safet y programs which apply to contractors. PSM requires the employ er to train the contractor on hazard and evacuation and to evaluate the contractors’ safet y performance. EPA has also requested comments on whether Process Hazard Analysis (PHA) and hazard review requirements should be clarified or expanded to require that specific scenarios, such as natural disasters or power outages, be considered. NOPA and CR A believe that it is not necessary or helpful to require that specific scenarios be anal yz ed; rather, the PHA should consider a range of potential conditions that could affect the process. NOPA and CRA believe that existing regulations are clear and that current industry practices full y c omply with regulation as understood b y the plain meaning of the text. Insofar as EPA potentially clarify ing or expanding PHA and hazard review requirements to include scenarios external to the process such as natural disas ters and power outages, the section that addresses PHAs, Section 68.67(b), states: “The owner or operator shall use one or more of the following methodologies that are appropriate to determine and evaluate the hazards of the process being analyzed.” The h azards in question are hazards in the process, i.e. hazards associated with and internal to the process itself. No clarification is necessary, because scenarios such as natural disasters and power outages, which are external to the process, are clearl y no t required of PHAs, nor should they be.Page 15

For example, with a natural disaster one could envision a loss of utilities, a loss of raw material suppl y, or a loss of control s ys tem power. PHAs address these scenarios and discuss the appropriate safeguards. Th ere is no need to create a separate node to address natural disasters. EPA appears to be ready to regulate the methodology , key words and nodes of a PHA, moving RMP away from a performance

- based regulation. Such a prescriptive approach will not have the de sired effect. **3. Defining RAGAGEP is unnecessary, and mandatory evaluations of updates to**  **RAGAGEP provide no additional safety benefits and would pose an unwarranted burden on our members as well as the rest of industry.**  The RMP Regulations are intended t o be a performance regulation. Performance ( i.e., compliance) is to be judged b y the overall safety of the actions undertaken to achieve the processing of highl y hazardous chemicals. If an action is deemed “safe,” it should satisfy the performance ( i.e., compliance) requirements. “Recognized and generally accepted good engineering practices” (RAGAGEP) are deemed as “safe” actions in the processing of highl y hazardous chemicals. Any definition of RAGAGEP should include all the safe engineering practices u tilized by industry , without regard to whether the practice has been memorialized in a consensus standard. This means that RAGAGEP should **not** be defined as narrowl y as the following: “Recognized And Generall y Accepted Good Engineering Practices” (RAGAGEP)

-- are the basis for engineering, operation, or maintenance activities and are themselves based on established codes, standards, published technical reports or recommended practices (RP) or similar documents. RAGAGEPs detail generall y approved ways to perf orm specific engineering, inspection orPage 16

mechanical integrity activities, such as fabricating a vessel, inspecting a storage tank, or servicing a relief valve. 26 The narrow approach advocated b y this definition, which was modeled after the definition from C CPS’s Guidelines for Mechanical Integrity Systems 27 and was used in OSHA's Petroleum Refinery NEP directive (CPL 03

- 00

- 010), is a serious problem. The problem with this approach is that it fails to recognize that all “established codes, standards, publishe d technical reports or recommended practices” originated from the individual practices of individual employ ers at their individual sites. RAGAGEP **is not based** on established codes, standards, etc. as the above definition asserts. Rather, the opposite is true
- codes and standards are based upon RAGAGEP. Certainly , codes and standards may function as RAGAGEP, but they are not the source of RAGAGEP. Therefore, any definition of RAGAGEP must be broad enough to include all the safe engineering practices currentl y being utilized by industry ; the definition should not be limited to only best practices memorialized by consensus standards. While RAGAGEP should be defined broadly, it should be enforced only within the expressed terms of the Regulations. The RAGA GEP provisions being considered for the RMP Regulations are to appl y to only a narrow range of items: (1) the process safet y i nformation of “process equipment” 28 and (2) the inspection and testing of specific enumerated pieces of

26 78 Fed. Reg. 73756, 61.
27 Center for Chemical Process Safety, Guidelines for Mechanical Integrity Systems , pg. 5, Wiley Interscience (2006).
28 40 C.F.R. §68.73.Page 17

“process equipment.” 29 Cons equently , the RAGAGEP provisions of the Standard should not be applied to all items located at a production facility, but only to the process equipment expressly listed. **4. Mandating expansions of mechanical integrity programs to “safety critical**  **equipment ” will lead to significant legal challenges without any tangible safety**  **benefit.** In its request, EPA has inquired whether it should “amend the mechanical integrit y provisions of the RMP Regulations to explicitly cover all safet y c ritical process equipment ? I f so, what type(s) of equipment?” NOPA and CRA do not believe that mechanical integrity provisions should be expanded to cover all safety critical process equipment for the very reason that the term is unclear as to what types of equipment would be co nsidered safety critical equipment. EPA has provided no definition of “safety critical equipment” in the RFI. Moreover, EPA has failed to publish any data that would corroborate or substantiate the purported deficiencies in Sec. 68.73. If EPA is aware o f an existing hazard with certain pieces of equipment EPA has deemed “safet y critical,” it should specify the equipment of concern and seek public comment on adding the specific equipment to Sec. 68.73. NOPA and CRA cannot support this proposed change. We are concerned that if this change is adopted, EPA, and later OSHA, will take the position that any equipment failure that contributes to an incident will be interpreted as safety critical and cited as such. We are equall y

29 Id. at (a)(1) through (a)(6).Page 18

concerned that a “but for” tes t will naturally evolve and that both EPA and OSHA will use such a test as the basis for issuing a violation. As stated previously , we are very concerned that EPA will move away from performance

- based regulations towards prescriptive

- based regulations and that OSHA will follow suit. 30 Neither EPA nor OSHA is qualified to be the designer of all relief s ys tems for all facilities. Relief and flare studies have been conducted to size the relief systems needed. These studies are complex and process

- specific an d do not lend themselves to a single uniform rule. Furthermore, elimination of all risk is unobtainable. Acceptable risk is the goal and is a function of a risk anal ysis. As a result, our members do not limit their mechanical integrity programs to only those areas required by the RMP Regulations and the PSM Standard. In addition to the equipment specified by both PSM and RMP, our members also include the equipment that experience and anal ys is has indicated should be included in an integrit y program. Thi s may include “safet y critical equipment.” There is no need to expand the scope of covered equipment bey ond what is alread y presented in Sec. 68.73. The current list is both complete and adequate. **5. Mandatory third**  **- party auditing will not be as effectiv**  **e as internal corporate audits.** NOPA and CRA cannot support EPA’s efforts to require employers to use a qualified third part y for compliance audits. First, the real experts of a facility ’s processes, equipment, and

30 Requi ring certain types of covered facilities to install emergency flares, vents or scrubbers in order to prevent accidental release resulting from emergency shutdowns suggests that industry currently operates independent of any air emission regulations. How ev er, Title V of the Clean Air Act already addresses these concerns.Page 19

hazards are the company ’s own employ ees . Second, many auditors are knowledgeable in the elements of process safety ; however, given the wide range of the covered processes, there are very few third

- part y au ditors who possess sufficient expertise in specific processes. Third, problems do not arise from the audit itself, but the failure to implement audit findings. Employ ees know their facilities best and have the greatest vested interest in identifying safet y i ssues at their worksite. It is the employees who are trained on the proper use of the equipment, develop the procedures that govern the processes, and are most familiar with the areas needing improvement. And, it is the employ ees’ own jobsite that is made safer by a well conducted audit. To be trul y effective, the auditor must know the pr ocess being audited, which is why compliance audits must be conducted b y at least one person knowledgeable in the process. There is a dearth of qualified third

- part y auditors with that level of specialized knowledge. Most third part y audits lack firsthan d knowledge regarding the subtleties of the processes at a facility, whereas emplo yee auditors have extensive firsthand knowledge of the processes being audited. In its PSM RFI , OSHA noted insofar as CSB’s investigation of the 2005 Texas City incident that “the CSB identified a lack of rigorous compliance audits as a contributing factor behind the accident.” 31 However, the Texas City incident, while tragic, remains an outlier; and was not illustrative of the industry as a whole. This conclusion is supporte d by data from the

31 78 Fed. Reg. 73756, 62.Page 20

Petroleum Refinery Process Safety Management National Emphasis Program (NEP). 32 Of the 1,088 alleged violations of the PSM Standard issued during the Refinery NEP, less than 5 percent involved compliance audits, and the vast majority of those citations involved the alleged failure to implement audit findings. Third

- part y audits should not be mandated, as employees are the real experts of the processes at their facilities and there is a dearth of qualified third

- part y auditors who possess sufficient expertise in these processes. Lastl y, as the example presented by OSHA and the NEP enforcement initiative indicates, most problems lie not with the auditors, but with the post

- audit implementation. **6. Elimination of Program 2 facilities will no**  **t improve public safety or the environment.**  In the RFI, EPA asks “If OSHA restricts its retail exemption to facilities selling regulated substances in small containers, should EPA eliminate RMP Program level 2 entirel y or alternativel y, modify Program 2 p revention elements or otherwise change the eligibility criteria for Program 2?” While NOPA and CRA member facilities do not fall within Program 2, some of our members have corporate divisions with agricultural retail facilities that would be adversel y aff ected by the elimination of Program 2. EPA has stated that this would mean that processes that were formerl y P rogram 2 would henceforth be subject to the five Program 3 management sy stem elements not required under Program 2 (i.e., Management of change, Pre

- startup review,

32 Data received via FOIA request and compiled internally.Page 21

Employ ee participation, Hot work permits, and Contractors), as well as the more rigorous versions of the seven Program 3 elements for which there are Program 2 analogs (e.g., Mechanical integrity under Program 3 vs. Maintenance under Program 2). Given the nature of these retail facilities, not one of these program elements would be applicable or even make sense. If Program 2 is eliminated, then current Program 2 facilities should be moved to Program 1. The purpose of the RMP ru les is to prevent accidental releases and minimize the potential consequences of those releases. If a particular process can be rendered safe by adherence to the requirements of Program 2, then the purpose of the rule has been accomplished and the communi ty and the environment have been protected. There is no need for any additional regulation. Moreover, many companies deal with global competition where their competitors in emerging markets have little

- to
- no regulatory requirements and have an unfair competitive edge in which the absence of regulation lowers their cost structures. While the RMP elements may change in the near term and the number of Program 2 sites may decrease, Program 2 is still very important to those facilities and should be continued
. **7. EPA should not move the risk from one point in the process to another.**  Inherentl y S afer Technology (I ST) is an operation

- and site

- specific evaluation based on engineering judgment, where man y variables are considered including hazards, location,
surrounding populations, exposures, technical feasibility , and economic feasibility . I ST is not a specific chemical compound or a collection of technologies that can be readily substituted into a given process, because each case is unique. From case to case , the results will vary. In short,Page 22

IST is a design philosophy . For these reasons, regulating I ST is infeasible because there is no “one size fits all” answer when it comes to managing risk. EPA should also recognize that a reduction in hazard does not ne cessarily result in a reduction in risk. Ammonium nitrate is a perfect example of the limitations of this type of thinking. If properl y handled and stored, ammonium nitrate is one of the most stable, nonhazardous compounds in the marketplace, with an NFP A flammability rating of 1 and a heath rating of 2. Yet, its improper storage can make it into one of the most potentially dangerous compounds in the marketplace even though, in and of itself, it is not particularly hazardous. Advocates of inherently safe r technologies often focus on just the chemicals within the process without regard to the processes themselves. This approach incorrectly simplifies the I ST process and disregards the potential risks in the life cy cle of the product. A “safer” compound may require additional processing steps, potentially increasing the overall risk of a release. EPA should reject calls to mandate IST on facilities, because IST is almost impossible to measure and would be even more difficult to enforce. Owners and operators of RMP

- regulated facilities alread y consider and implement when appropriate the safest, most innovative and cost effective technologies available. **8. Regulatory specification of how emergency drills are to be conducted will work**  **against the purpose of con ducting such drills** 

**– to prepare for the unexpected.**  In its request for information, EPA asks whether requiring RMP

- regulated facilities to perform exercises or drills as an element of their emergency response program identified under Subpart E of the RMP regulation would improve coordination with community responders andPage 23

ensure that facility personnel have practice responding to accidental releases. NOPA and CRA support the use of drills, but believe attempting to prescriptivel y regulate the when, who, w here and what of a drill could thwart the current practices for drilling. Because an effective drill program contains too many site

- specific variables for the development of a useful and effective rule, NOPA and CRA urge EPA not to attempt to regulate the scope of an exercise/drill program, the frequency of the drills, and what response scenarios should be considered for the exercise/drill program. **9. Automated detection and monitoring technology has not sufficiently evolved to the**  **point that it should be m andated as a part of the RMP Regulations.**  EPA has asked whether facilities should be required to install monitoring equipment or sensors to detect releases of RMP

- regulated substances. Our members report that automated detection and monitoring can be part of an effective program, but only in certain limited situations with certain chemical compounds. Unfortunatel y, the technology is not full y developed. In fact, it is uncertain whether reliable automated detection and monitoring technology exists for al l regulated substances. Scientists with EPA have acknowledged as much, stating: Few sensors are available for detecting specific HAPs and those that exist have often not been tested rigorously with complex mixtures of similar HAPs. While data storage has become more accessible, data governance (assessing, managing, using, improving, monitoring, and maintenance), processing, and visualization are major challenges that still require considerable effort. 33

33 Em

ily G. Snyder et al., The Changing Paradigm of Air Pollution Monitoring , Environmental Science & Technology, August 27, 2013, vol. 47, at 11375.Page 24

In theory , the sooner a release is detected, the qu icker the emergency response will be. But, automated detection and monitoring does not necessaril y guarantee early detection. There are huge technical issues in deciding on the placement of area monitors, determining the number of monitors required, and compensating for the various and sometimes very harsh weather conditions. 34 Moreover, the preventive maintenance to ensure the calibration and reliability of such monitors is enormous. Even a well maintained monitoring program will have repeated false ala rms. The sensors within such monitors are cross sensitive to many other substances, which will result in alarms for
non - regulated substances. A release at one facility could activate a downwind monitor, directing the emergency response team to the wrong location. 35 For example, area fenceline monitors are highl y dependent on ambient conditions as well as the local surroundings. Lastl y, the resources necessary for a reliable preventative maintenance program for such monitors would greatly outweigh an y m arg inal benefits the monitors might provide. Monitors must be routinely verified and recalibrated. Depending on the number of monitors a facility is

34 Id. at 11374

- 75 (“Work conducted at EPA indicates that many commercially available sensors have not been challenged rigorously under ambient conditions, including both typical concentrations and environ mental factors.”) (citing Williams, R. L. R.; Beaver, M.; Kronmiller, K; Garvey, S.; Zaouak , O. The Air Sensors Evaluation Project. Presented at Air Sensors 2013

- Data Quality and Applications

- Air Sensors Evaluation Session [On

- line], Research Triangl e Park, NC, March 20, 2013; Air Sensors 2013 )
. 35 Id. at 11374 (“Data quality is a key issue since data of poor or unknown quality is less useful than no data since it can lead to wrong decisions.”)
.Page 25

required to install, new personnel would have to be hired and trained just to perform the calibration checks
. Automated detection and monitoring may occasionally be a useful tool, but the technology is not developed enough to warrant including it in a comprehensive regulatory scheme. **10. RMP Regulations should not include the regulation of buffer zones and occup**  **ancy criteria within a facility.**  EPA’s proposal to regulate buffer or setback zones will result in EPA being subject to hundreds of lawsuits for regulatory takings. The Fifth Amendment of the U
. S
. Constitution allows the Government to take propert y, provid ed “just compensation” is given to the property
owner. In Lucas v. South Carolina Coastal Council, 36 David Lucas purchased two beach front lots on the I sle of Palms, South Carolina. Mr. Lucas intended to build single

- family homes similar to those on adja cent parcels. When Mr. Lucas originall y p urchased the lots in 1986, they were not subject to South Carolina’s coastal zone building permit requirements. But, two y ears later, in 1988, the Beachfront Management Act was passed, prohibiting Mr. Lucas from b uilding any permanent habitable structures on the two lots. Mr. Lucas filed suit alleging a regulatory taking. The Supreme Court agreed, holding “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the na me of the common good, that is, to

36 505 U.S. 1003 (1992).Page 26

leave his propert y e conomically idle, he has suffered a taking.” 37 Here, there are hundreds of RMP

- regulated plants that have acquired land for expansion; a regulation that reduces the utility of that land will constitute a taking. In addition, requiring facilities to set aside a buffer zone would limit the development and expansion of existing facilities. This, in turn, would adversel y i mpact the tax bases of local communities, an unnecessary intrusion into local governm ent zoning ordinances. Requiring facilities to convert existing propert y i nto buffer or safet y z ones would have a negative impact on the local community ’s tax base, as these zones would be unproductive if set up beyond existing fence lines, and would limi t development and expansion of existing facilities if set up inside the fence line. Nor, has the RFI provided an explanation or example of how EPA would establish a prescriptive measure such as a buffer zone, that would account for all of the thousands of different processes with different chemicals in differing topographies with different public receptors and vary ing amounts of available land upon which to expand. Such a prescriptive measure would have arbitrary and harsh consequences and undermine the p erformance nature of process safet y. The RFI lists three examples of incidents (Bhopal, BP Texas City and West Fertilizer) as EPA’s justification for seeking additional information concerning stationary source siting. The three examples do not support or justify additional regulation. The Bhopal incident occurred in

37 Id. at 1019.Page 27

December 1984, which was almost a decade before the advent of the PSM Standard and the RMP Regulations and the requirements for siting. The Texas City incident involved trailers and, in respo nse, industry issued API 753, which address the placement of trailers to prevent a similar
recurrence. Current regulations and RAGAGEP have already addressed these two incidents. West Fertilizer is an example that, on very rare occasions, a particular ow ner or operator will not follow existing regulations; enforcement against that owner/operator is the appropriate regulator y action. In the RFI, EPA has asked whether it should “establish safet y c riteria for siting of occupancies inside the facility ?” EPA’ s jurisdiction is limited to releases that affect the environment and public health. This question improperl y i ntrudes into areas for which OSHA has exclusive jurisdiction. Setting safety criteria for occupancy is at the heart of OSHA’s mandate, not EPA’ s. EPA acknowledges the existence of several engineering guidance documents, such as American Petroleum Institute (API ) Recommended Practice 752, “Management of Hazards Associated With Location of Process Plant Buildings,” 3rd Edition, December 2009 and AP I Recommended Practice 753, “Management of Hazards Associated with Location of Process Plant Portable Buildings,” First Edition, June 2007. NFPA 36 “Standard for Solvent Extraction Plants” addresses siting, as well. Industry guidance documents such as th ese assist our members in meeting the performance requirements of the RMP Regulations. No further regulation is needed or warranted in these particular areas.Page 28

**11. RMP Regulations should not duplicate existing regulations in terms of emergency**  **response and coordination with local responders.**  EPA is considering whether the Emergency Response provisions in Subpart E of the RMP Regulations should be revised to state more explicitly that owners and operators of RMP

regulated facilities must comply with the eme rgency response program requirements of section 68.95. Owners/operators would have to comply unless local public responders have the means and agree to (1) respond to releases of regulated substances at the facilit y, and (2) describe what facility owners or operators must do to coordinate with local authorities on the development of community emergency response plans. Man y of these requirements alread y ex ist in other regulations. For example, OSHA’s Standard Hazardous Waste Operations and Emergency Respon se regulation 38 provides for site control, training, engineering controls, work practices, and personal protective equipment for employ ee protection, monitoring, emergency response plans and incident command. Our members would not support another regulator y s cheme that may conflict with their existing requirements. **12. RMP Regulations should not be expanded to include incident investigation and**  **accident history requirements.** EPA is asking (1) whether incident investigations should be expanded to require th at a root cause anal ys is for incidents, near misses and process upsets be completed within a specific timeframe and (2) what role should the community should play in the investigation and in

38 29 C.F.R. §1910.120.Page 29

learning about the findings. EPA is also proposing a timeline fo r the completion of an incident investigation. The proposal overlooks the fact that facilities and incidents differ in complexity , making a “one size fits all” approach inappropriate. At the outset, it is unclear whether EPA is using the term “root cause anal ys is” as a categorical term (like “process hazard anal ys is” as found in 40 C.F.R. §68.67) or as a more specific term (like the listed methodologies in subpart (b)). If the former, then such a proposal would be redundant to the requirements of 40 C.F.R . § 68.81(d)(4). 39 If t he later, then NOPA and CRA cannot support adopting such a narrow approach to determining the factors that contribute to an incident, particularl y when investigating complex incidents that call for a more robust quantitative risk ana ly sis. The purpose of the requirement for investigating incidents is to mandate that owners and operators conduct effective investigation and determine the contributing factors for an incident. The proposal in the RFI to require that all facilities use the root cause methodology for all process incidents will undercut this purpose and will result in ineffective incident investigations. For the last two decades owners and operators, using different methodologies and techniques, have trained employ ees to cond uct incident investigations and, in the process have continually improved the quality of those investigations. Under the proposed revisions, all of that knowledge would be lost and owners/operators would have to begin learning a new method called “root cause anal ysis.” The root cause analysis is one of man y effective tools b y which

39 Incident investigation. A report shall be prepared at the conclusion of the investigation which includes at a minimum: (4) The factors that contributed to the incident.Page 30

owners and operators conduct incident investigations. Requiring the use of a single methodology is a “one size fits all” approach to incident investigation. The range and complexity of incidents are simply too diverse for such a limited methodology
. In cidents vary in magnitude and complexity that determine the amount of time and the size of the team needed to conduct a proper investigation. A uniform rule for conducting incid ent investigations will result in hastily performed investigations and lead to lower quality , less effective investigations. For example, incident investigations of major incidents are frequently very detailed and quite length y. They often involve testing of metals, equipment, pressure relief devices, electrical components and chemical residues. These tests often necessitate outside experts, the development of protocols for gathering, handling and preserving the samples correctly, and appropriate document ation of the chain of custody on those samples. Following many of these incidents, the regulators limit access to the sites where the incident occurred, demand to be present for the gathering of samples, to have a role in the development of the protocols and to have their own expert present for the tests to be conducted. All of these steps involve a significant amount of time and are necessary to have an effective investigation. The RFI proposes that near misses and process upsets need to be investigated , but these terms frequentl y are misapplied by regulators who lack familiarity with the particular process and the engineering controls designed to ensure the safety of the process. Investigations of nearPage 31

misses are alread y r equired under 40 C.F.R. § 68.8 1(a). 40 Process upsets, on the other hand, may result in nothing more than slightly off

- spec product with no accompany ing risk of a “catastrophic re lease of a regulated substance
. ” The current rule requires that an incident investigation team be comprised of persons with “appropriate knowledge and experience to thoroughl y i nvestigate and anal yz e the incident.” Team members are highly trained in very technical areas of science, engineering and process safet y, all of which are necessary to have an effective investigation. Many investigations require the examination of confidential or proprietary information to which onl y e mploy ees have access. Other incident investigations involve an examination of the security features of a facilit y w hich, by law, need to be safe guarded. Given all of this, an effective incident investigation process needs to be a closed, internal process for each owner/operator. Section 68.81(f) of the RMP Regulations reflects that need, requiring that incident reports be reviewed with o nl y a ffected personnel. Existing regulations are sufficient to meet the performance aspect of the RMP Regulations. No further regulatory guidance is needed with respect to incident investigations.

40 “T he owner or operator shall investigate each incident which resulte d in, or could reasonably have resulted in a catastrophic release of a regulated substance.”Page 32

**13. Identification of the worst**  **- case scenario fails to add**  **ress the most likely hazards and risks and, therefore, does little to improve the protection of human health and the**  **environment.** EPA seeks information on whether to revise section 68.25(b) of the RMP Regulations to better account for processes involving numerous small vessels stored together, such as on pallets, cy linder racks, and in groups. In addition, EPA asks whether it should revise Sec. 68.25 to require the owner or operator of a regulated process to consider the potential for worst

- case release scenarios to involve adjacent facilities or other nearb y f acilities that are interconnected through pipelines. Worst

- case scenarios are a regulatory construct in which an owner/operator is required to make a large range of assumptions, such as when the rel ease occurs at ground level, in F atmospheric stability class, with the highest daily maximum temperature and when no active mitigation measures are available. As a result, the worst

- case scenario presents an inaccurate representation of the potential con sequences of a release. In the last 20 years, we do not know a single occurrence of any release consistent with the worst

- case scenarios. Inaccurate representations of the worst

- case scenario do not further the goal of transparency or increase the
commun ity ’s awareness of the realistic concerns of an adjacent facility. Moreover, they do not improve the protection of human life or the environment. As EPA acknowledged in the Preamble to the Final RMP Regulations, “the worst

- case scenario is designed princ ipall y t o support a dialogue between the source and the community on release prevention, and not to servePage 33

as the sole or primary basis for local emergency planning.” 41 Given this, the current worst cases are more than adequate to initiate a dialogue with the community
. This proposal also presents a significant set of barriers to effective consideration of the cascading effects of interconnected facilities. Adjacent facilities may be competitors and, to have effective discussions over worst

- case scenarios, a wide range of information needs to be shared. This will often include proprietary information which a company cannot share with competitors, including process chemistry , engineering controls, business confidential information and information about the s ecurity sy stems at the facilities covered by the CFATS regulations. Moreover, this proposal expands the definition of “worst

- case scenario” to include multiple failure scenarios occurring simultaneously at two facilities. The likelihood of occurrence of s uch a failure scenario, along with all of the other assumptions incidental to a worst
- case scenario, are extremely small and will not produce an y us eful information. **14. EPA should not require new methods of public disclosure of information already**  **availab le to the public.**  EPA is seeking public comment on whether there are additional steps EPA could take to improve regulatory compliance through increased information disclosure to the public and local authorities. As most of this information is already available to the public as required b y s ection

41 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7), 61 Fed. Reg. 31668, 83 (June 20, 1996).Page 34

112(r)(7)(B)(iii), 42 regulatory compliance will not be improved by these proposed changes. EPA, rather than pursuing such changes, should focus its efforts on the proper development and implementation of LEPC pla ns. EPA also asks whether disclosing compliance audits, PHA or incident investigation reports improve emergency planning and response. In the Preamble to the Final RMP Regulations, EPA answered this question: [S]everal commenters made the general argument that right

- to
- know provisions should be strengthened and that the public should be given full access to all risk management program information including PHAs and actual operating procedures. . . . EPA agrees that an informed public is a key element of s ound chemical emergency prevention, preparedness, and response. However, EPA also believes that it is essential for the public to focus on the information essential at the local level for prevention, preparedness, and response and has decided to maintain its proposed requirement that the RMP provide certain information about the risk management programs at a source. . . . EPA believes it would be impractical to require sources to share all documentation used for the safe operation of the processes at a so urce. Not only is much of this information likely to be confidential, but **significant technical expertise and time are necessary to extract, understand, and to make**  **meaningful judgments about the adequacy of the information**
. 43 (emphasis added)

42 “Plans prepared pursuant to this subparagraph shall also be submitted to the Chemical Safety and Hazard Investigation Board, to the State in which the stationary source is located, and to any local agency or entity having responsibility for planning for or respon ding to accidental releases which may occur at such source, and shall be available to the public under section 7414(c) of this title.”
43 61 Fed. Reg. at 31694.Page 35

PHAs can co ntinue for hundreds of pages with guide words like “more flow” or “less flow , ” “high temperature” or “low temperature.” Providing this information as it is presented in a PHA report would be of no use to emergency responders and, therefore, have no impact on the emergency response itself. For information that the public can best use, most LEPCs already have webpages developed for sharing appropriate information with the community . This was one of the very services the LEPCs were to provide. **15. The use of**  **AEGLs is not needed or justified.** EPA is now considering the use of AEGLs to recalculate RMP TQs and toxic endpoints. EPA alleges that using AEGLs to recalculate RMP reporting thresholds would better reflect the potential for adverse effects of an accid ental release upon individuals in a community , because AEGLs take into account the potential exposure of more sensitive individuals, the potential for longer periods of exposure, and the potential for serious but reversible injuries. However, if EPA requi res the use of AEGLs, it will also be changing the toxic endpoints for offsite consequence anal ys is. While the proposed change is consistent with EPA’s stated intent during the initial rulemaking that concluded with the existing RMP Regulations, two decad es have since passed and no worst

- case scenario has ever occurred. This confirms that there is no need to replace the current endpoint anal ys is with one that would create even larger circles of potential impact. In fact, adopting this change would require a huge amount of work with no measurable benefit. During the initial RMP rollout, owners/operators prepared worst

- case scenarios andPage 36

offsite consequence analy sis, all of which were shared with their communities. Our members’ most common experience was s pending two to three day s preparing their presentations, overheads and handouts for their communities and then no one from the communities appearing at the rollout meetings. It resulted in a huge amount of work with no tangible improvement in process safe ty or community awareness. We cannot support this proposed change without a further showing b y EPA as to the expected benefits. **16. EPA acknowledges that completely replacing the current RMP Regulations (and**  **PSM Standard) with a “safety case” approach wou ld require significant changes to**  **the existing regulatory regime for chemical process safety in the United States. EPA should acknowledge that there is no evidence to support the premise that this**  **change would improve the protection of human health and th e environment.**  The “safet y case” regulatory model is a framework for regulating industry where owners or operators of industrial facilities must demonstrate to the regulatory agency that the risks have been reduced to “as low as reasonabl y practicable” (A LARP). EPA acknowledges that completely replacing the current RMP Regulations (and PSM Standard) with a safet y c ase approach would require significant changes to the existing regulatory regime for chemical process safet y i n the United States. Nevertheles s, EPA is requesting public comment on whether EPA and OSHA should consider these actions. A successful safet y case regime requires highly competent and well resourced, independent regulators. The safety case is built on the assumption that the regulator has a large staff of highly competent subject matter experts. For the type of detailed engineering review which the safety case requires, EPA would need to hire thousands of chemical, mechanical,Page 37

electrical and instrumentation engineers and have Congress adjust the Federal pay scale to attract and retain highl y c ompetent experts so that they could provide the engineering reviews in a prompt manner. EPA has also asked whether selected aspects of the safety case, such as the submission of a PHA for review an d approval, should be adopted into a proposed rule. This suggestion presents the same technical challenges for EPA. The meaningful review of a PHA, which is often length y and predicated upon the process safet y i nformation, would require teams of engineer s and experts in the specific process. Given current concerns about the Federal Budget and recent controversies over the poor performances of large agencies with alleged expertise such as the VA Hospital Administration and the CDC, there is no realistic w ay that such a change could be implemented. Furthermore, there’s scant evidence to show that safet y case works better. In fact, there is some evidence that the U.S. s ys tem is safer and more effective at preventing releases into the environment than the B ritish safety case s ys tem. In an article titled “Safety Cases: Lessons from the North Sea,” the author discussed an audit of a several facilities operating under the safet y case framework that found remarkable weakness, noting that the s ys tem works poorly with huge quality issues. The author stated “that s ys tems critical to the survival of the workforce during major accidents were in terrible shape” and that “[s]uch sy stems failed to some degree in sixty

four percent of such tests, revealing a ‘picture of inadequate testing and very poor reliability ’ for a critical component of emergency response.” The author went on to report that there was anPage 38

“overreliance on cookie

- cutter prototypes of critical documentation,” concluding “[t]his kind of reaction is a s trong indicator of a weak and ineffective regulatory regime”. It is precisel y this type of evidence that caused NI OSH to reverse its position on the safet y c ase and withdraw its original comments submitted to OSHA in response to the PSM RFI
. Paul Schulte, Director of NIOSH’s Education and Information Division, said that NI OSH Director Dr. John Howard “was at a number of scientific conferences where he heard from a variet y o f stakeholders that they had concerns about what we had stated in our March comments .” 44 “The director called for a re

- review of what we had said,” Schulte said. “Upon looking at it further, while there are advocates for those positions, we didn’t see that there was actuall y a scientific basis that attested they were more effective than w hat was currentl y being done. We didn’t want to be in a position of recommending something to OSHA that didn’t have a good evidentiary basis.” **17. EPA Should Streamline the RMP Requirements.**  EPA has asked whether it should require that RMP submissions be certified by a senior corporate official, such as the Chief Executive Officer, Chief Financial Officer, Chief Operations Officer, or the equivalent, to ensure corporate

- wide awareness and accountability in the RMP submission. NOPA and CRA would argue no. RMP submissions are currentl y r eviewed and authorized by the personnel most knowledgeable about the data gathering and program

44 “NIOSH mysteriously backs off support for ‘safety case’ approach,” available at http://www .w vgazette.com/article/20140614/GZ01/140619566.