## COMMENTS OF THE

CHEMICAL SAFETY ADVOCACY GROUP

A CCIDENTAL 

## R ELEASE 

## P REVENTION 

## R EQUIREMENTS 

## : R ISK 

## M ANAGEMENT 

## P ROGRAMS 

## U NDER T HE


## C LEAN 

## A IR 

## A CT 

## , S ECTION 

## 112( r )(7)

D OCKET 

## I D 

## N O



## . EPA

– HQ

– OEM

– 2014

– 0328

79 F EDERAL 

## R EGISTER 

## 44,604 (J ULY 

## 31, 2014)

S UBMITTED O CTOBER 29, 2014

## E XECUTIVE 

## S UMMARY

The Chemical Safety Advocacy Group (CSAG) supports the efforts of the

U.S. Environmental Protection Agency (EPA or the Agency) to implement the Clean Air Act’s Risk Management Program (RMP), which, like so many other Clean Air Act standards, is performance

- oriented. CSAG also supports EPA’s decision to issue a request for information before proposing any changes to regulatory requirements. Request for Information Regarding Accidental Release Prevention Requirements: Risk Management Programs Under the Clea n Air
Act, Section 112(r)(7)

, 79 Fed. Reg. 44,603 (July 31, 2014) (RFI). We appreciate the opportunity to participate in this process and provide these comments on the RFI

.

CSAG is a coalition of companies that is focused solely on supporting appropri ate implementation of the RMP rules and the Occupational Safety & Health Administration’s (OSHA) Process Safety Management (PSM) rules. CSAG members include companies in the refining, oil and gas, chemicals, and general manufacturing sectors with operatio ns throughout the United States that are subject to the RMP rule. Our diverse membership, representing companies across multiple industry sectors, makes CSAG uniquely situated to provide meaningful input to the Agency as it considers potential steps to im prove chemical safety and security. It is from this perspective that CSAG developed these comments and seeks to aid EPA in fulfilling its goal of continuing to implement an effective RMP rule designed to prevent and

detect accidental releases.

As EPA co nsiders appropriate actions in conjunction with any actions that may be taken by OSHA, it is important to take into account the effects of any regulatory changes in terms of

the resources demanded both of the federal government and of regulated entities. EPA’s (and OSHA’s) focus should be on increased inspection and enforcement of the existing regulations

— as, in general, recent and past incidents are more reflective of failures to implement and enforce existing requirements, rather than failure of the regulations themselves.

The following points highlight CSAG’s key comments:

• The current RMP regulation is well structured and appropriate

, such that recent individual incidents are not indicative of regu latory flaws. While it is natural to react to recent incidents, including the tragic incident in West, Texas, by concluding that changes to regulations will prevent future occurrences, a critical first step is to ensure compliance with the current regulat ions, which have been through extensive public input and implemented over more than 15 years. Based on the experience of CSAG member companies, it is likely that recent incidents result not from flaws in the RMP regulations, but rather, from failures to

f ully implement and comply with existing regulatory requirements. To the extent EPA is responding to Executive Order 13650 1 following the West, Texas incident, any changes should be focused on what the Chemical Facility Safety and Security Working Group ha s identified as “potentially noncompliant facilities, often referred to as outliers,” 2 which are

1 Exec. Order No. 13650, Improving Chemical Facility Safety and Security , 78 Fed. Reg. 48,029 (Aug. 7, 2013).

2 Chemical Facility Safety and Security Working Group, Executive Order 13650 Actions to Improve Chemical Safety and Security

– a Shared Commitment, Report for the President at 15 (May 2014).Executive Summary

– Comments of the Chemical Safety Advocacy Group EPA Risk Management Program Request for Information October 29, 201 4

E

- 2 | Page “those facilities that knowingly or unknowingly do not comply with facility reporting regulations.” 3

• Effective implementation of the RMP rule (in coordination with PSM) is derived from

risk

- based and performance

- oriented regulation, rather than inflexible prescriptive

limits. Prescriptive, continual analysis and auditing requirements shift resources away from actual maintenance and operational safety activitie s, thereby reducing a facility’s ability to address effectively the unique hazards associated with each complex process. In fact, EPA recognized this very issue when promulgating the final 1996 RMP rule, noting that “Congress clearly recognized that a ‘on e

- size

- fits

- all’ approach may not be appropriate for [the RMP rule]. . ..” 4

• Although CSAG believes that EPA should first ensure implementation and enforcement of the current regulations, any changes to Part 68 should at least await action by OSHA

to maint ain coordination and consistency. This is particularly true where proposed changes go beyond the specific regulated actions articulated in Clean Air Act

Sections 112(r)(7) and (8). At this time, scientific and economic data would need to be developed to support even targeted modifications to the existing regulations, much less any significant changes or adoption of entirely new regulatory provisions. As Executive Order 13650 notes, efforts should be made to “reduce duplicative efforts.” 5 Of course, EPA has been following this approach since the original promulgation of the RMP rule, noting in the preamble to the final 1996 rule that “[t]o the extent possible, covered sources will not face inconsistent requirements” across agencies. 6

• Harmonizing the RMP rule with both industry standards and OSHA’s PSM standard is critical, particularly with respect to operational management of compliance. In fact, Congress instructed as much. Section 112(r)(7)(C) provides that any RMP regulations shall

“to the maximum e xtent practicable” be consistent with the recommendations and standards established by the American Society of Mechanical Engineers (ASME), American National Standards Institute (ANSI), and the American Society of Testing Materials (ASTM). 7 In addition, S ection 112(r)(7)(D) directs the Administrator to consult with the Secretary of Labor and Secretary of Transportation and coordinate any requirements established for “comparable purposes” by OSHA or Department of Transportation (DOT). 8

• OSHA must retain ove rsight of employee safety within the facility, while EPA’s authority is directed to potential offsite impacts. EPA has appropriately made clear that “OSHA retains its oversight of actions designed to protect workers while EPA retains its

3 Id . at 29 n.26.

4 61 Fed. Reg. 31,668, 31,675 (June 20, 1996).

5 Exec. Order No. 13650, § 5, 78 Fed. Reg. at, 48,031.

6 61 Fed. Reg. at 31,670.

7 42 U.S.C. § 7412(r)(7) (C).

8 Id . at § 7412(r)(7)(D).Executive Summary

– Comments of the Chemical Safety Advocacy Group EPA Risk Management Program Request for Information October 29, 201 4

E

- 3 | Page oversight of acti ons to protect public health and the environment.” 9 To the extent any future regulations proposed by EPA overlap with or go further, stepping into OSHA’s authority to “promulgate . . . permanent health or safety standard[s],” they risk overstepping EPA’s legal authority and should be judged by the standard applied to OSHA’s regulations ( i.e., r equiring that regulations be necessary to address a “significant risk of harm.” 10

• Congress intended the RMP regulations to:

• be reasonable, practicable, and implementable;

• recognize that the most efficient and cost

- effective approaches are typically developed within the industry rather than by government mandate;

• allow for differences among industries and sources within industries; and

• take into account the v oluntary actions sources are and will be implementing in developing regulatory requirements.

In evaluating its Section 112(r) regulatory provisions, EPA must recognize the resources that have already been spent and its statutory obligation to ensure tha t its regulations under Section 112(r)(7) are “reasonable.” Unlike other statutory provisions, where EPA is directed to achieve reductions based on “maximum achievable” standards, the RMP regulations must be “reasonable” and any guidance “appropriate.” 11 Such an approach is also consistent with Congress’ dual purposes for the Clean Air Act

— protecting and enhancing the Nation’s air resources and promoting the N ation’s productive capacity. 12

• Congress further elucidated the need for reasonableness in the requirements by providing that the regulations and appropriate guidance drive prevention and detection of releases “to the greatest extent practicable.” Congress also recognized the importance of flexibility in ensuring the most effective approach, by man dating that the regulations recognize differences in size, operations, processes, class, and categories of sources as well as the voluntary actions of sources to prevent and respond to releases.

The detailed comments that follow provide technical, legal, a nd policy support for the points outlined above. CSAG would be pleased to answer any questions regarding these

comments.

9 61 Fed. Reg. at 31,672.

10 See generally Indus. Union Dep’t, AFL

- CIO v. Am. Petroleum Inst. , 448 U.S. 607, 608 (1980).

11 42 U.S.C. § 7412(r)(7)(B).

12 Id

. at § 7401(b)(1).

### T ABLE OF 

### C ONTENTS

Page

I. Any Decision to Propose Addition of a Regulated Substance to the List Must Be Based on a Proper Analysis Under the Statut e.............................................

... ...... 2

A. Any decision to propose adding a chemical to the list at Subpart E (or to change a threshold quantity (TQ)) must be based on an evaluation of the regulatory criteria, using sound scientific analysis, consistent with the factors listed in Clean

Air Act Section 112(r)(4).

... ............................................................... ...... 3

B. Delisting decisions should be based on the statutory and regulatory criteria

........ . ...... 4

II. The Additional Risk Management Program Elements Discussed in the RFI Are Better Left for Industry to Implement on a Facility

- Specifi c Basis Rather than Codifying Them i n Prescriptive Regulations.

............................................. ... ...... 5

A. The listed elements are appropriately left to companies for implementation under the RMP’s performance

- oriented regulations ( e.g. , as part of Recognized and Generally Accepted Good Engineering Practice (RAGAGEP).

..................... . ...... 6

B. Prescriptive, additional program elements will not promote the Clean Air Act’s goal of preventing, detecting, and mitigating the consequences of accidental releases and could preven t or deter distinctly different operators and facilities from implementing those practices that work best.

.................................... . ...... 7

C. Given that in many cases, the proposed elements under consideration fall within the primary purview of OSHA and have been ad dressed in OSHA’s RFI, EPA should defer to OSHA’s direction to ensure consistency between the RMP and PSM programs and to prevent duplication of efforts.

................................. .. ...... 10

III. A Definition and Operator Evaluation Requirement for RAGAGEP Will Likely Re

Allocate Safety Resources to Less Valuable Activities, Will Not Aid in Risk Management or Prevention of Accidental Releases, and Should Not Be Proposed

. ... .. ...... 11

IV. Modification of the Mechanical Integrity (MI) Requirements or Expansion of the

RMP Rule to Include Additional “Safety Critical” Terminology is Unwarranted as Doing So Will Create Uncertainty Without Promoting Release Prevention and Risk Management.

...................................................................................... ...... 12

A. Amending the MI provisions of the RMP rule to explicitly cover all safety critical process equipment is unnecessary and counterproductive

. ............... .... ...... 12

1. The current scope of the MI requirements, supported by RAGAGEP and effective agency enforcement, is appropriately tailored to performance

oriented risk management and the prevention and detection of accidental

releases

. ................................................................................. .. ...... 12

2. The scope of the MI rule is complemented by engineering analysis and existing industry standards, obviating the need f or expanding the RMP language. In fact, use of the term “safety critical” may likely detract attention from maintaining other equipment and, if overused , lose any narrowing

effect

. ............................................................................................. ...... 13

3. Sufficient evidence regarding the need for such additional regulatory language has not been presented.

................................................... ... ...... 13

4. With limited resources, EPA should focus on ensuring implementation of the key provisions already in the regulatio n.

.......................................... .. ...... 13ii Page

B. EPA should not propose amendments to explicitly cover all “safety

- critical” equipment.

................................................................................. ... ...... 14

V. A Management of Organizational Change (MOOC) Requirement Would Be Overly Broad, Causing a Deleterious Shift in Resources, and Current Regulations Are

Sufficient to Add ress RMP

- Covered Processes.

............................................ ...... 14

A. Management of change (MOC) coverage of process safety

- related organizational changes is currently addressed in sufficient detail under the RMP program

...... .. ...... 14

B. Additional organizational changes in the MOC requirement are not necessary

..... ...... 15

VI. EPA Should Not Propose A Third P arty Compliance Audit Requirement

. .............. ...... 16

A. Under a performance

- based standard, this requirement would not further the Act’s goals of prevention and detection of accidental releases, under which each operator should have the ability to use the best auditor available, regardless of

whether the audito r is internal or external

.............................................. ... ...... 16

B. In general, company

- led audits can be far more effective in addressing issues uncovered during the audit process than third party audits

. ........................... . ...... 16

C

. Current auditing practices demonstrat e that the existing performance

- orient ed regulatory structure works

. ............................................................... ... ...... 17

D

. Requiring more frequent compliance audits would strain available resources, result in fewer health and safety personnel to support other maintenance,

v erification, and compliance reviews, and reduce ability to focus on closing audit findings

. .................................................................................... ... ...... 17

VII. The Safer Technologies/Alternatives Analysis Identified in the RFI Would Create Significant Operational and Regulatory Challenges for Operators Without Any Indication of a Simultaneous Increase in Accidental Release Prevention Compared With the Current Regulatory Requirement

. ................................................ . ...... 18

A. EPA considered and appropriately rejected a stand

- alone inherently safer technology (IST) requirement when it adopted its original RMP rule

. ............ ... ...... 1 9

B. Implementation of a mandatory prescriptive safer technology and alternatives analysis requirement would be unworkable

. ........................................... .. ...... 21

VIII. Mandatory Automated Detection and Monitoring Presents a Significant Danger of False Alarms Without a Corresponding Reduction in Risk

. ............ ... ............... ...... 2 2

A. Automated notification of alarms and sensor activation could inadvertently cause

false alar ms and responses and consequently remove resources from where they are needed in the event of an actual emergency

. ....................................... . ...... 2 2

B. Additional alarm and monitoring systems, to the extent necessary, are more appropriately addressed through PSM pr ocesses including PHAs, or other

process

- specific regulatory standards. Separately addressing these issues under the RMP rule may create confusion and conflict

. ....................................... ...... 2 3

C. The existing MI program adequately addresses inspection, testing, and

maintenance o f these systems.

.......................................... . .................. ...... 2 3

IX. Additional Stationary Source Location and Facility Siting Requirements Would Limit the Ability of Industry and the Agency to Address This Issue Through RAGAGEP and Further Limit Facility Development and Expansion

... .................. ...... 2 3

A. Existing RMP elements and recognized industry guidance are effective at regulating on

- site facility siting

. ......................................................... .. ...... 2 4iii Page

B. Establishing prescriptive buffer or setback zone requirements for new covered stationary sources, or developing safety criteria for siting of occupancies inside facilities, would limit new facilities and existing facility expansions without providing for appropriate operator analysis under the RMP’s performance

oriented approach and RAGAGEP

. ...................................................... . ...... 2 4

C. Existing RMP elements are effective in driving industry performance, and the addition of further specificity may limit the development of best practices on this

issue

. ........................................................................................... ...... 2 5

X. Although Covered Facilities Should and Do Coordinate With Emergency Responders in Appropriate Cases, a New Emergency Response Coordination Element is Unnecessary

. ................................. . ....................................... . ...... 2 5

A. An entirely new element is not required to address this issue because the existing emergency response coordination requirements are clear and enforceable

........... ...... 25

B. EPA should be cognizant that its emergency response requirements do not apply in a vacuum. Any revisions to emergency respo nse requirements should be considered in concert with similar requirements in other regulatory programs

..... . ...... 26

C. In certain cases, the local outside response agency may end up not being

available for such activities at all facilities

. ............................................. . ...... 27

XI. The Current Industry Practice With Respect to Incident Investigation Adequately Addresses the Goals of the Clean Air Act Without Additional Prescriptive Language

. ...... 2 8

A. The RMP program purposely requires investigations for only a subset of

incidents

. ...................................................................................... ...... 28

B. Current industry practice exceeds incident investigation regulatory requirements and further weighs against the addition of new requirements

........................ .. ...... 29

XII. Proposing Expanded Public Disclosure Requirements Would Be Inappropriate Because They Would Not Result in Greater Accident Prevention As Pertinent Information Is Already Available

. ........................................................... ...... 29

A. Much information is already publicly available onli ne, particularly with respect to major incidents and enforcement

........................................................ ...... 30

B. Public availability of information would not further increase the risk management goals of preventing and detecting accidental releases

................... ...... 30

C. Increasing public availability of information could provide a roadmap for would

be terrorists through dissemination of sensitive security information, creating a potential threat to the Nation's energy supply

. .......................................... . ...... 31

XIII. Use of Acute Exposure Guideline Levels (AEGLs) for Threshold Quantity / Endpoints Calculations Would Not Further the Goals of the Risk Management Program

. ....................................................................................... ... ...... 31

A. The Clean Air Act does not require use of AEGLs in establishing TQs f or the RMP Program

. .............................................................................. . ...... 31

B. The existing TQ and endpoint calculations are effective in driving industry performance. EPA should not change these long

- standing requirements without

a showi ng that they are inadequate

. ...................................................... .. ...... 32

XIV. There Is No Reasonable Basis to Conclude That Basing Program 3 Applicability On Risk Management Program Accident History Data Would Do Anything to

Promote the Clean Air Act Goal of Accidentiv Page

Prevention

............................................................ ........................... ...... 32

A. Any revision to the RMP Program 3 applicability provisions must be based on data that shows the current requirements are inadequate and that the proposed changes would remedy the inadequacy

. ................................................... ...... 32

B. Any revision to NAICS codes should be substantiated by a rational methodology, valid data, and reasonable assumptions

. ................................................... ...... 33

C. EPA should ensure consistency with OSHA PSM requirements in considering changes to applicability requirements

. .................................................... ...... 33

XV. EPA Should Not Propose to Adopt the Safety Case Regime Because it Would Create Significant Financial Burdens for Facilities Without Any Simultaneous Improvement in Accident Prevention

. ....................................................... ...... 34

XV I

. Conclusion

....................................................................................... ...... 36DETAILED TECHNICAL, LEGAL, AND POLICY COMMENTS 13

CSAG is a coalition of companies that is focused on supporting appropriate implementation of the RMP program as well as the OSHA PSM rules. CSAG members include companies in the refining, chemicals, oil and gas, and general manufacturing sectors that have been actively engaged in the development and implementation of industry best practices for many years. Our member companies strive for safe operations based on a fundamental commitment to their employees, neighbors, and customers. As owners and operator s of RMP

covered facilities, CSAG members receive extensive input from their employees, business partners, regulators, community leaders, and other stakeholders, regarding, among other things, the challenges they face in implementing controls while maintai ning reliability and availability. For these reasons, CSAG is uniquely qualified to provide a comprehensive perspective on how promulgation of many of the potential amendments to the RMP rule discussed in the RFI would affect industry, the most effective means of achieving the Clean Air Act’s risk management goals, and how any potential rulemaking, to the extent necessary, should be structured to best reflect the evolving industry landscape.

CSAG supports EPA’s overall effort to improve risk management thr ough the Agency’s existing, performance

- oriented standard. That said, a broad

- based expansion of the RMP regulations in a manner that does not meaningfully further accident prevention and release detection is not justified

, where industry is already imple menting and developing relevant best practices pursuant to the RMP’s performance

- driven provisions or simply as part of daily operation. CSAG is available to be a resource to EPA to help inform any decision to propose rule changes that the Agency may cons ider necessary, but we urge EPA to ensure that any proposed changes are (1) supported by technical data and analysis and (2) consistent with its obligations under the Clean Air Act to be reasonable, practicable, and implementable.

To that end, these comm ents are organized as follows:

• First, we address items in OSHA’s RFI relevant to EPA’s RMP regulation, including proposed updates to the list of regulated substances, potential additional elements to the RMP rule, proposed changes to recognized and gener ally accepted good engineering practices (RAGAGEP) and mechanical integrity (MI) requirements, management of organizational change, and third party compliance audits

.

• Second, we respond to many of EPA’s request s for comments regarding additional items,

in cluding safer technology and alternatives analysis, automated detection and monitoring for releases, compliance with emergency response program requirements in coordination with local responders, incident investigation requirements, public disclosure of RM P information, the use of acute exposure guideline level (AEGL) toxicity values in threshold quantities and

off

- site consequence endpoints, the determination of Program 3 applicability based on accident history data, and the safety case regulatory model.

13 CSAG has reviewed and commented on several aspects of the RFI. The information provided in these comments reflects initial positions of CSAG. Due to the breadth of issues raised in the RFI, CSAG addresses several, but not all, of the issues raised. C SAG may provide additional information to EPA on these and other issues should the Agency elect to proceed with a proposal.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

2 | Page I. A ny Decision to Propose Addition of a Regulated Substance to the List Must Be Based on a Proper Analysis under the Statute.

EPA requests comment regarding whether the list of regulated substances set forth at

40 C.F.R. Section 68.130 should be modified by : 14

• Adding other toxic or flammable substances;

• Adding high and/or low explosives;

• Adding ammonium nitrate;

• Adding reactive substances and reactivity hazards;

• Adding other categories of substances;

• Removing certain substances from the list or raising thei r threshold quantities (TQ); and

• Lowering the TQs for substances currently on the list. 15

Subparagraphs (3) through (5) of Section 112(r) establish es requirements for identifying an initial list of substances to be regulated under the RMP rule, as well as r equirements to ensure that the list is maintained and updated. With regard to the latter, the Clean Air Act allows EPA to revise the list on its own motion or based on a petition and provides for review of that list at least every five years. 16 Clean Air Act Section 112(r)(4) provides that the following criteria shall be considered when evaluating substance listings: “(i) the severity of any acute adverse health effects associated with accidental releases of the substances; (ii) the likelihood of accidenta l releases of the substance; and (iii) the potential magnitude of human exposure to accidental

releases of the substance.” 17 These criteria are intended to ensure that the regulated substance list is focused on prevention of accidental releases from chemic als that are “known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the environment,” or are otherwise “extremely hazardous” under Clean Air Act

Section 112(r)(3). 18

EPA regulations implement ing these statutory provisions further ensure that the list is updated as information and facts change. For example, the RMP rule provides the requirements for filing a petition to modify the list and establishes procedures for EPA’s consideration of such petitions. 19 These administrative mechanisms provide for adjustment to the regulated substance list. In particular, where there has been increased industry focus following major incidents like those cited in the RFI, these provisions provide a mechanism for ensuring that appropriate changes to the list are brought to the attention of EPA for consideration under the statutory

factors set forth in the Clean Air Act.

14 79 Fed. Reg. 44,604, 44,607 (July 31, 2014).

15 Id.

16 See 42 U.S.C. § 7412(r)(3).

17 42 U.S.C. § 7412(r)(4).

18 Id

. 19 See 40 C.F.R. § 68.120.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

3 | Page For these reasons, CSAG believes that significant revisions to the list are unwarranted. I n addition, it is important to recognize the value of a list that includes only those chemicals that clearly meet the statutory criteria as over

- expansion of the list could be counterproductive, reducing the focus on important chemicals with catastrophic p otential. It is evident that the drafters of the Clean Air Act were sensitive to this issue by not only providing for additions to the list, but also providing for the deletion of substances from the list. 20

A. Any decision to propose add ing a chemical to the list at Subpart E (or to change a threshold quantit y (TQ)) must be based on an evaluation of the regulatory criteria, using sound scientific analysis, consistent with the factors

listed in Clean Air Act Section 112(r)(4).

The RFI identifies a range of chemicals and categories for consideration for potential addition to the regulated substances list. The RFI does not, however, provide an adequate description and analysis of these chemicals to support the need for updating the RMP regulated

substance list. As noted above, Section 112(r)(4) provides that the following criteria shall be considered when evaluating substance listings: “(i) the severity of any acute adverse health effects associated with accidental releases of the substances; (ii) the lik elihood of accidental releases of the substance; and (iii) the potential magnitude of human exposure to accidental

releases of the substance.” 21 EPA regulations further elaborate on what is required to support a change to the list under these factors by es tablishing the following supporting data requirements for petitions for modification:

[T]he petition must include sufficient information to scientifically support the request to modify the list. Such information shall include: (i) A list of all support

do cuments; (ii) Documentation of literature searches conducted, including but not limited to, identification of the database(s) searched, the search strategy, dates covered, and printed results; (iii) Effects data (animal, human, and environmental test data) indicating the potential for death, injury, or serious adverse human and environmental impacts from acute exposure following an accidental release . . .; and (iv) Exposure data or previous accident history data, indicating the potential

for serious advers e human health or environmental effects from an accidental

release. 22

While CSAG recognizes that these data requirements are set forth in the context of consideration of a petition for modification to the regulated substance list, we believe that they provide a useful construct to allow stakeholders to assist in thoughtfully evaluating the need

— on a chemical

specific basis

— for modifications to the list initiated by EPA . EPA should develop this scientific

information and analysis of any individual chemi cal that it would add to the list of regulated substances as part of any proposal for modifications to the list.

20 42 U.S.C. § 7412(r)(3).

21 42 U.S.C. § 7412(r)(4).

22 40 C.F.R. § 68.120(g)(6).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

4 | Page B. Delisting decisions should be based on the statutory and regulatory criteria.

Clean Air Act Section 112(r)(3) provides that the list of substa nces regulated are those,

“ which, in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health or the

environment .” 23 In addition, Congress directed EPA to cons ider:

(i) the severity of any 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. 24

Similarly, Section 68.120(c) of the RMP regulations provides:

A substance may be deleted from the list if adequate data on the health and

environmental effects of the substance are available to determine that the substance, in the case of an accidental release, is not known to cause and may not be reasonably anticipated to cause death, injury, or serious adverse effects to

human health or the environment. 25

EPA has indicated that six specific substances

— arsenous trichloride (CASRN 7784

- 34

- 1) , cyanogen chloride (CASRN 506

- 77

- 4), sulfur tetrafluoride (CASRN 7783

- 60

- 0), tetramethyl lead (CASRN 75

- 74

- 1), chlorine monoxide (CASRN 7791

- 21

- 1) and ethyl nitrite (CASRN 109

- 95

- 5)

— have no indication of releases. 26

One key piece of evidence to support a delisting could well be the lack of RMP reports for a chemical, as this is a clear indicator of the “likelihood of accidental releases” of the substance as provided in the statute. At the same time, it is important for EPA to appropriately

document its e valuation of the other statutory factors and Section 68.120(c)’s criterion that in the case of an accidental release, the substance may not reasonably be anticipated to cause death, injury or serious adverse health or environmental effects.

For example, i t may be that the reason that a substance has not been included in RMP reports is in part due to the fact it is a listed substance. I t is possible that such a substance would be used in greater quantities or in a different manner if it were not a listed substance. For these reasons, it is important for any proposal to include a complete evaluation of the factors th at EPA has considered, including those required by the statute.

23 42 U.S.C. § 7412(r)(3) (emphasis added).

24 42 U.S.C. § 7412(r)(4)(A).

25 40 C.F.R § 68.120(c).

26 79 Fed. Reg. at 44,613.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

5 | Page II. The Additional Risk Management Program Elements Discussed in the RFI Are

Bet ter Left for Industry to Implement on a Facility

- Specific Basis Rather than Codifying Them in Prescriptive Regulations.

EPA requests information on whether the following elements should be added or incorporated into the RMP requirements:

• Measurements and metrics;

• Management review and continuous improvement;

• Process safety competency;

• Stop work authority;

• Ultimate work authority;

• Conduct of operations;

• Process safety culture; and

• Job safety analysis. 27

The first three identified elements

— Measurements and Metrics, Management Review and Continuous Improvement, and Process Safety Competency

— are taken from the Risk Based Process Safety Program recommended by the Center for Chemical Process Safety (CCPS), and were also identified as potential new management sys tem elements by OSHA in its RFI. 28 The

next two identified elements

— Stop Work Authority and Ultimate Work Authority

— were also identified by OSHA and are safety standards promulgated by the Bureau of Safety and Environmental Enforcement (BSEE). 29 The final three elements

— Conduct of Operations, Process Safety Culture, and Job Safety Analysis

— were not identified for comment in the OSHA

RFI. 30

EPA also seeks comment on whether the following specific examples of management system elements currently contained within the RMP regulations should be modified, clarified

, or strengthened:

• Contractor safety practices and oversight;

• Process hazard analysis (PHA) review components pertaining to failure scenarios or damage mechanisms;

• Frequency, specificity, and triggers for PHA update and review; and

• Clarification of when pre

- startup review for modified sources is required. 31

EPA more generally requests information on any other management system elements or on potentially modifying, clarifying

, or expanding existing eleme nts that would improve the

27 See 79 Fed. Reg. at 44,615

- 16.

28 Id. at 44,615.

29 Id.

30 Id. at 44,615

- 16.

31 Id . at 44,616.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

6 | Page protection of human health and the environment. 32 As a general matter, it would be counterproductive for EPA to add specific prescriptive requirements or program elements into the integrated, risk

- based management system approac h of RMP and PSM. Such a move would actually decrease safety by forcing entities to engage in “check

- the

- box” paperwork exercises mandated by regulations rather than identifying and managing the specific risks in their processes. Even though several of t he program elements mentioned by EPA are drawn from the latest CCPS publications on risk

- based process safety management, imposing those elements on

all industries, facilities, and processes is antithetical to the CCPS risk

- based approach, and it

would mov e the regulatory system backwards to a more standards

- and stick

- based approach, rather than focusing on performance.

A. The listed elements are appropriately left to companies for implementation under the RMP’s performance

- oriented regulations ( e.g. , as p art of Recognized and Generally Accepted Good Engineering Practice (RAGAGEP)).

The stated purpose of Section 112(r) is to “prevent the accidental release and to minimize the consequences of any such release of any substance listed pursuant to paragraph (3) or any other extremely hazardous substance.” 33 EPA has reiterated this purpose in prior RMP rulemakings:

The intent of section 112(r) is to prevent accidental releases to the air and mitigate the consequences of such releases by focusing prevention measu res on chemicals that pose the greatest risk to the public and the environment”; and “the purpose of the risk management program and RMP effort is to prevent accidents and facilitate local level dialogue about the risks, prevention measures, and emergency response effort in place and at the source. 34

Any revisions to the RMP requirements should therefore align and further these accident prevention and response purposes. As noted above, Congress intended the RMP regulations to

be “reasonable” in addition t o practicable and implementable. Reasonableness requires that proposed regulation amendments be necessary to address a “significant risk of harm.” Congress also recognized the importance of flexibility in achieving effective approaches that recognize

inh erent differences in size, operations, processes, class, and categories of sources and the voluntary actions of these different types of facilities to prevent and respond to releases.

The safety practices associated with the elements delineated above, ho wever, do not further these goals in that they are redundant to measures already undertaken by industry and undermine the important flexibility inherent in the current RMP program. Measures such as those suggested in the RFI are most appropriately left fo r companies to implement under the current RMP rule’s performance

- oriented regulations, such as the obligation to implement RAGAGEP. For instance, the current rule requires owners and operators to “document that

32 Id.

33 42 U.S.C. § 7412(r)(1).

34 61 Fed. Reg. 31,668, 31,669, 31,678 (June 20, 1996).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

7 | Page equipment complies with recognized and gene rally accepted good engineering practices,” 35 and further requires the owner or operator to “determine and document that the equipment is designed, maintained, inspected, tested and operating in a safe manner.” 36

B. P rescriptive

, additional program elements w ill not promote the Clean Air Act’s goal of preventing, detecting, and mitigating the consequences of accidental releases and could prevent or deter distinctly different operators and facilities from implementing those practices that work best.

These requi rements are implemented by operators using a variety of practices, many of which may directly track the proposed elements in whole or in part. For example, facilities may already follow industry

- specific recommended practices for process safety performanc e indicators ( e.g. , American Petroleum Institute (API) Recommended Practice 754

– Process Safety Performance Indicators for Refining and Petrochemical Industries) to develop and implement site

- specific process safety metrics that align with and meet the go als of the measurements and metrics element EPA suggests. The same can be said for management review and continuous improvement, process safety competency, stop work and ultimate work authority, conduct of operations, job safety analysis, contractor safet y requirements, and the other elements EPA is considering.

Importantly, where individual companies are implementing these additional elements it is, because they have made case

- specific determinations that those specific elements (as applied

to their fac ilities) help them meet the objectives of the RMP and PSM programs

— namely, to protect workers or prevent accidental releases . Companies not implementing one or more of these elements (or implementing them in a different manner) may be doing so because of their

own case

- specific analyses.

CSAG is concerned that a regulatory approach that simply looks to what some facilities are doing as best practices and codifies them into prescriptive requirements would be short

sighted and contrary to the evergreen app roach of the PSM and RMP regulatory constructs. Such an approach would risk shifting the RMP program from a performance

- based standard with flexible concepts such as RAGAGEP and a facility/ Local Emergency Planning Committee (LEPC) coordination and feedba ck loop, to a prescriptive, check

- the

- box program. The result of such a shift would be to discourage companies from looking for new and improved best practices and from incorporating changes based on what they learn from successes and failures along the

w ay.

EPA recognized this concern when it promulgated the RMP rule. In that rulemaking, EPA responded to comments requesting that EPA codify model plans for specific industries under RMP Program 2 by stating, “EPA is also concerned that codifying the mode l plans could

35 40 C.F.R. § 68.65(d)(2).

36 Id. at § 68.65(d)(3).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

8 | Page stifle innovation in safety practices.” 37 Similarly, in responding to comments requesting a single risk management program, EPA responded:

In establishing section 112(r)(7) requirements, however, Congress clearly recognized that a “one

- size

- f its

- all” approach may not be appropriate for these regulations and directed EPA to consider these factors [differences in size, operations, processes, class and categories of sources] in the development of the accident prevention regulations. 38

CSAG agrees with these principles and believes that a less prescriptive, performance

- oriented standard would be more effective in promoting the Clean Air Act’s goal of preventing and detecting accidental releases.

Implementation of RMP requirements is purposefully de signed to be flexible. EPA has previously touted such flexibility in prior RMP rulemakings: “EPA notes that sources have the flexibility to implement appropriate accident prevention measures based on the hazards and risks

discovered in the hazard review o r process hazard analysis.” 39 This flexibility in designing and implementing safety and risk management under the items listed in EPA’s RFI is best enacted and supported by proper site implementation and competent agency enforcement of current RMP requirem ents. For example, the regulations’ flexibility allows for a facility to change the metrics chosen for emphasis from time to time, thereby allowing new focus ( i.e., “fresh eyes”) through this rotational approach. By mandating all metrics, all the time, t he effectiveness of each metric would likely be diluted, by either requiring too many so they become meaningless or not enough such that companies fail to consider their facilities’ most appropriate metrics from time to time to ensure they most effectively drive performance enhancements and reduce overall risk.

A “one

- size

- fits

- all” approach to issues like “safety culture,” process safety measurement, stop and ultimate work authority, and contractor oversight, among others , undermines the flexibility associ ated with developing and implementing industry best practices. Establishing a prescriptive approach to these issues would prevent distinctly different operators and facilities from implementing practices that work best for their specific processes and cul tures . It could

also have the perverse effect of increasing risk in certain circumstances by forcing the proverbial square peg into a round hole.

As facilities currently implement a mix of many (if not most or all) of the elements being reviewed in the RFI in their existing programs, tailored to the particular needs of the facility and community, the existing RMP elements already capture the concern s raised by EPA’s proposed elements, and enshrining the proposed elements into the RMP regulations would add a layer of redundancy while eliminating the valuable flexibility of the program. To that end, it does not promote the Clean Air Act’s goal of prev enting and detecting accidental releases to simply capture discrete items that industry is already implementing as part of ongoing improvement and

37 61 Fed. Reg. at 31,679.

38 Id . at 31,675.

39 Id

. at 31,678.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

9 | Page best practice. Taking a “kitchen sink” approach to the RMP rule by adding numerous elements

and activities w ill not prevent, and may actually lead to an increase in, accidental releases.

Indeed, CSAG is unaware of industry data or evidence to show that adding such new elements to the RMP rule is necessary to prevent, detect

, or mitigate accidental releases. EP A

should not propose to add any new elements without a threshold determination and showing that the elements are necessary to prevent, detect, or mitigate the consequences of accidental releases. Any proposed action without such a showing would be unsuppo rted, unwarranted by the facts,

and not reasonable. 40

For example, CSAG does not believe that the addition of a new RMP element to require periodic safety culture assessments would meaningfully strengthen the safety culture incentives that already exist. While safety culture surveys can be a helpful tool for companies to evaluate potential opportunities to improve PSM processes and management structures, regulati ng safety culture would be unworkable and likely even counterproductive. Safety culture surve ying is a particularly difficult concept to regulate because the information such surveys provide depends on a range of factors

, including the vehicle used to administer the survey, the participation rate, and employee perspectives regarding the survey pro cess.

In addition, survey responses are subjective and are often inconclusive in the absence of a statistically significant sample group or comparison to a meaningful benchmark. Such factors are necessarily industry

- and facility

- specific. For example, a survey requirement for a facility with 100 employees would be of different utility than a facility with 2,000 employees. Moreover, the timing of safety culture surveys in relation to other issues, such as labor negotiations, has the potential to inappro priately influence survey results. In light of this variability and absence of data or evidence to show the such a new element is necessary or would be helpful to prevent, detect, or mitigate accidental releases, EPA should not develop a proposal

for a sa fety culture assessment requirement.

In addition, one of the most important and valuable uses of the safety culture survey is having the ability to detect and analyze specific instances of lowered morale in the workforce ( e.g. , in response to industry inci dents, community issues), so that the operator can respond effectively and quickly through employee support programs and other outreach

efforts. Requiring scheduled safety culture surveys risks creating employee fatigue in providing accurate and thoughtfu l responses, thereby reducing the ability of operators to accurately poll employees when this information is most needed.

40 See 5 U.S.C. § 706(2).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

10 | Page C. Given that in many cases , the proposed elements under consideration fall within the primary purview of OSHA and have been address ed in OSHA’s

RFI

, EPA should defer to OSHA’s direction to ensure consistency between the RMP and PSM programs and to prevent duplication of efforts.

A key directive of Executive Order 13650 was to “streamline reporting requirements, and

reduce duplicative efforts” in order to enhance information collection and sharing across agencies. 41 Similarly, Clean Air Act Section 112(r) directs EPA to closely coordinate its regulations with OSHA and other agencies to avoid inconsistent requirements. 42 EPA followed

this key aspect of its statutory directive in promulgating its RMP rule, electing to mirror the language in OSHA PSM elements in its requirements for Program 3 sources. The preamble to

that final rule provides:

[T]oday’s rule builds on existing programs and standards. For example, EPA has coordinated with Occupational Safety and Health Administration (OSHA) and the Department of Transportation (DOT) in developing this regulation. To the extent possible, covered sources will not face inconsiste nt requirements under these agencies’ rules. 43

* * *

Measures taken by sources to comply with OSHA PSM for any process that meets OSHA’s PSM standard are sufficient to comply with the prevention program requirements of all three Programs. . . . EPA and OS HA are working closely to coordinate interpretation and enforcement of PSM and accident prevention

programs. 44

Moreover, EPA noted that the extent that its Program 3 requirements differed from the PSM

standard was to :

ensure that OSHA retains its oversight of actions designed to protect workers while EPA retains its oversight of actions to protect public health and the environment and to remove possible interpretations that certain elements of process safety management fail to account for offsite impacts. 45

These are key guiding principles that apply equally today and that should be considered by EPA in its assessment of whether revisions to RMP program elements are necessary.

41 Exec. Order No. 13650, § 5, 78 Fed. Reg. at 48,031.

42 See 42 U.S.C. § 7412(r)(7)(B)(i) (“The Administrator shall utilize the expertise of the Secretaries of Transportation and Labor in promulgating such regulations.”) ; see also Id. § 7412(r)(7)(D) (“In carrying out the authority of this paragraph, the Administrator shall consult with the Secretary of Labor and the Secretary of Transportation and shall coordinate any requirements under this paragraph with any requiremen ts established for comparable purposes by the Occupational Safety and Health Administration or the Department of Transportation.”)

43 61 Fed. Reg. at 31,670.

44 Id. at 31,671.

45 Id . at 31,672.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

11 | Page In particular, any proposed new elements that are revisions to existing PSM eleme nts or potential new PSM elements should be considered in close consultation with OSHA to ensure that “one accident prevention program to protect workers, the general public, and the environment will satisfy both OSHA and EPA.” 46 Furthermore, because the p roposed additional RMP elements under consideration closely overlap with PSM issues, it is appropriate for OSHA to take the lead in developing the regulatory response, with appropriate input from and

consultation with EPA.

III. A Definition and Operator Evalua tion Requirement for RAGAGEP Will Likely Re

Allocate Safety Resources to Less Valuable Activities, Will Not Aid in Risk Management or Prevention of Accidental Releases, and Should Not Be Proposed.

EPA requests comment on whether specific updates are approp riate to the RMP requirement that owners or operators “document that equipment complies with recognized and generally accepted good engineering practices.” 47 Specifically, EPA seeks input regarding whether the Agency should modify the rule to include a def inition of RAGAGEP, and additionally whether operators should be required to evaluate updates to RAGAGEP applicable

to their facilities. 48

A prescribed RAGAGEP definition will limit operator flexibility in addressing site

specific hazards and would be incon sistent with the goals of Section 112(r). The current concept of RAGAGEP is aligned with the performance

- oriented nature of the RMP rule and provides flexibility to operators in implementing industry guidance and internal practices applicable to

individua l operations. Any effort to more specifically define this term will significantly limit operator flexibility in addressing site

- specific hazards. RAGAGEP cannot be a single document, code, standard, or practice. It has been widely recognized that RAGAGE P should include industry consensus and guidance, as well as appropriate internal operator standards. 49

Simultaneously, not all industry codes and standards can be considered “recognized and generally accepted.” Although newly

- drafted codes and recommend ed practices may form a starting point from which an operator derives its individual RAGAGEP based on engineering analysis, such documents do not become RAGAGEP until they have been the subject of broad industry review and acceptance.

RAGAGEP should rema in a flexible concept that allows employers to tailor RMP activities to the unique hazards and complexities of each facility. A static definition of RAGAGEP is contrary to the performance

- oriented nature of the regulation, which allows operators flexibili ty in meeting the goals of the Clean Air Act in preventing and detecting accidental releases through hazard assessment and design and maintenance of a safe facility based on the specific nature of the facility’s equipment.

46 Id.

47 79 Fed. Reg. at 44,617.

48 Id.

49 See e.g., BP Prod s. N. Am., & BP

- Husky Ref., LLC, O.S.H.R.C. 10

- 0637, 2013 OSAHRC 73 at p. 15 (Aug. 16, 2013).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

12 | Page The approach of allowing internal ly

- developed standards to serve as RAGAGEP is an important regulatory tool in preventing and minimizing the impacts of accidental releases. In fact, even some highly prescriptive industry standards contain language that provide employers

with discretion i n determining what is best suited for their facility ( e.g. , API Recommended Practice 578, Material Verification Program for New and Existing Alloy Piping Systems, provid ing various actions “for consideration” by the facility with respect to material

examin ation, rather than setting specific requirements or inspection percentages). Through RAGAGEP, operators are responsible for appropriately analyzing and evaluating safety risks and reducing them through appropriate means. A prescribed definition of RAGAG EP may detract from an operator’s ability and willingness to make facility

- specific determinations that achieve the ultimate goal of safety.

IV. Modification of the Mechanical Integrity (MI) Requirements or Expansion of the RMP Rule to Include Additional “Safety Critical” Terminology is Unw arranted as Doing So Will Create Uncertainty Without Promoting Release Prevention and Risk Management.

A. Amendin g the MI provisions of the RMP rule to explicitly cover all safety critical process equipment is unnecessary and counterproductive.

1. The current scope of the MI requirements, supported by RAGAGEP and effective agency enforcement, is appropriately tailored t o performance

- oriented risk management and the prevention and

detection of accidental releases.

The current regulation governing the MI element of the RMP program applies to the following process equipment:

• Pressure vessels and storage tanks;

• Piping syste ms (including piping components such as valves);

• Relief and vent systems and devices;

• Emergency shutdown systems;

• Controls (including monitoring devices and sensors, alarms, and interlocks); and

• Pumps. 50

As recognized in the RFI, this rule covers the majority of equipment that can reasonably be considered to be safety critical process equipment. 51 Moreover, industry’s use of RAGAGEP as applied to individual facilities and effective agency enforcement further ensure the adequacy of the existing regulati ons in the context of MI.

50 40 C.F.R. § 68.73(a).

51 See 79 Fed. Reg. at 44,617.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

13 | Page 2. The scope of the MI rule is complemented by engineering analysis and existing industry standards, obviating the need for expanding the RMP language. In fact, use of the term “safety critical” may likely

detract attention from mai ntaining other equipment and, if overused, lose any narrowing effect.

The equipment listed in the existing MI rule is in many cases not the only equipment that companies treat in accordance with MI requirements. Specifically, companies use engineering

ana lyses and RAGAGEP as applied to their individual facilities, to consider additional equipment under their individually

- tailored MI programs. These practices, in addition to the existing rule, ensure that each company considers the appropriate safety criti cal equipment in accordance with MI requirements, without the need for a prescriptive requirement expanding the RMP language. CSAG is concerned that a prescriptive expansion of equipment that is designated as “safety critical” could actually dilute the me aning and urgency associated with the

term.

3. Sufficient evidence regarding the need for such additional regulatory language has not been presented.

T he RFI states that “during some compliance inspections EPA has observed that facilities have failed to app ly mechanical integrity program measures to certain additional types of equipment and systems that could reasonably be judged to be critical to process safety.” 52
CSAG does not believe that this statement, and the general examples in the preamble, justify proposing additional language on this issue . CSAG is unaware of any evidence to support the claim that expanding the scope of Section 68.73 to cover all safety

- critical equipment would make it more likely that accidental releases would be prevented, nor d oes the RFI identify any accidental releases that occurred as a result a company’s failure to treat non

- covered “safety

critical” equipment in accordance with MI requirements. Instead, the RFI only notes that certain equipment could reasonably be judged t o be critical.

4. With limited resources, EPA should focus on ensuring implementation of the key provisions already in the regulation.

CSAG believes that EPA’s efforts are better spent ensuring compliance with the mechanical integrity provisions of the exis ting regulations. Specifically, CSAG believes that more vigorous compliance assistance and outreach, as well as targeted, strategic approaches to inspection would likely result in more significant improvements to process safety than a prescriptive rule ex pansion.

52 79 Fed. Reg. at 44,617.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

14 | Page B. EPA should not propose amend ments to explicitly cover all “safety

- critical” equipment.

The RFI states that EPA is interested in receiving information on whether the RMP rule should be expanded to cover the mechanical integrity of any safety

- criti cal equipment. EPA notes the PSM standard categories of equipment encompass most safety

- critical equipment within regulated processes. Further, EPA questions whether additional types of equipment and systems that could reasonably be judged to be critical to process safety should be covered, providing computer software systems that interact with process components, electrical power systems, and other utility systems that interact with pumps, valves, or control systems as examples. 53 EPA specifically asks i f it should amend the mechanical integrity provisions of the RMP rule to explicitly cover all safety critical process equipment.

The mechanical integrity provisions of the rules appropriately address the equipment that should be included and an expansio n of the rule is not appropriate. Further, “safety

- critical” can only be evaluated with respect to the facility processes at issue. Complex differences between facilities, processes, and equipment types mean that a given piece of equipment at one facilit y may not be safety

- critical, whereas at another facility it is. Determining the equipment that is safety

- critical is therefore most appropriately left to the judgment of individual operators and

facilities.

Finally, CSAG is unaware of any information su pporting a conclusion that the scope of the list of equipment covered under ‘‘Mechanical Integrity’’ in Section 68.73 has affected decisions regarding maintenance, functionality, or integrity of process components that would not typically be considered ‘‘m echanical’’ components, such as electrical components and computer systems. In fact, the designation of Section 68.73 as “Mechanical Integrity” conforms to the corresponding OSHA PSM requirements that are generally understood to address components that ar e not purely mechanical in nature. As discussed in the introduction to these comments, it is important to maintain consistency between RMP and PSM requirements.

V. A Management of Organizational Change (MOOC) Requirement Would Be Overly Broad, Causing a Del eterious Shift in Resources, and Current Regulations Are

Sufficient to Address RMP

- Covered Processes.

A. Management of change (MOC) coverage of process safety

- related organizational changes is currently addressed in sufficient detail under the RMP program.

EP A’s Chemical Accident Prevention provisions require owners and operators to implement procedures to manage certain changes “that affect a covered process.” 54 The current MOC provisions therefore may be applied to any changes to procedures that could impact

53 Id

. 54 40 C.F.R. § 68.75.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

15 | Page process safety in RMP

- covered processes. For example, in a standard interpretation letter regarding parallel language in the PSM rule, OSHA’s Director of Enforcement explained :

The PSM standard requires employers to develop and implement MOC procedures to address the safety and health impact of contemplated changes, including organizational changes, as they relate to process chemicals, technology, equipment, procedures and facilities.

* * *

Some organizational changes such as changes resulting from mer gers, acquisitions, reorganizations, staffing changes, or budget revisions may affect PSM at the plant level and would therefore trigger a PSM MOC procedure.” 55

T his memorandum reflects that the existing language is sufficient to cover organizational changes that affect covered processes. Moreover, the current approach effectively addresses the accident prevention goal of the RMP rule without creating unnecessary challenges in interpretation or ineffective resource allocation.

B. Additional organizationa l changes in the MOC requirement are not

necessary.

T he RFI does not show that there are sufficient industry safety performance problems that would justify expanding the scope of organizational changes considered in the MOC requirement beyond those already covered. For example, there is no reason to believe that inclusion of minor personnel changes, such as changes in individual staffing positions, in the MOC requirement would support the statutory purposes. Indeed, expanding the already broad coverage of changes captured by the current rule language would be overkill.

EPA generally does not have the authority to intervene in personnel decisions or how those decisions are implemented. Implementing such a requirement would place a significant

burden on o perators across industry, while disproportionately affecting small businesses. EPA needs to develop additional analysis of how the MOC process may be applied to organizational changes in order to improve process safety if EPA decides to proceed with a pro posed rule addressing this element.

55 See Mem. from Richard E. Fairfax, Director of Enforcement Programs, OSHA to Regional Administrators (Mar. 31, 2009), available at https://www.osha.gov/pl s/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28628 (citing

29 C.F.R. § 1910.119(l)(1)) (last visited Oct. 28, 2014).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

16 | Page VI. EPA Should Not Propose A Third P arty Compliance Audit Requirement

A. Under a performance

- based standard, this requirement would not further the goals of prevention and detection of accidental releases, under which each

oper ator should have the ability to use the best auditor available, regardless

of whether the auditor is internal or external.

As noted above, the central purpose of the RMP provisions is to detect, prevent, and mitigate the accidental release of hazardous sub stances. Under a performance

- based standard, the requirement that audits be conducted by a third party would not promote these statutory goals because it may prevent operators from using the best auditor available. In many cases, the unique nature of fac ilities and industrial processes will mean that the most qualified auditors are internal, while in other cases they may be external to the facility but within the same company or in others, may be a third party. Legislative debate on the development of th e Clean Air Act, Section 112(r) standard supports an approach that allows for facilities to use the most appropriate

auditors

. 56

In many cases, third party audits are actually less effective than internal audits due to the

third party auditor’s lack of inst itutional knowledge about a facility and/or lack of expertise in the field. This may be particularly true where third party auditors are incentivized to promote their expertise in every equipment category and RMP

- covered process in order to maximize

busin ess opportunities, which may also give rise to conflicts of interest. These points were brought into sharp relief just a few years ago when a third party audit failed to stop a cantaloupe

borne Listeria outbreak that resulted in numerous deaths and illnes ses and which occurred days

after a third party auditor gave the facility a “superior” rating. 57

B. In general, company

- led audits can be far more effective in addressing issues uncovered during the audit process than third party audits.

Company

- led audits can be far more effective in addressing issues uncovered during the audit process due to the internal auditor’s intimate knowledge of the organization and how it functions. Because company

- led audits facilitate sharing of information and findings across the company, these audits may

, in turn

, lead to revisions of internal safety measures, and result in greater safety improvements and benefits to human health and the environment and thus further the purpose of the Clean Air Act and the RMP rule. While CSAG re cognizes that third party audits may offer an objective, “fresh” examination of a facility’s operations, the same goals can be effectively accomplished through use of cross

- facility or cross

- operational employee auditors.

56 See S. R EP

. N O . 101

- 228, at 248 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3632 (“audits are the responsibility

of th e owners and operators of these facilities.”); see also id . 1990 U.S.C.C.A.N. at 3627 (“Each of the elements of the accident prevention program . . . should be audited . . . by company personnel (other than those directly responsible for the process unit) or outside consultants . . ..”); see also id. 1990 U.S.C.C.A.N. at 3521 (“self

- audits seems to be indicated.”).

57 See U.S. House of Representatives, Committee on Energy and Commerce, Report on the Investigation of the Outbreak of Listeria monocytogenes in Cantaloupe at Jensen Farms , (Jan. 10, 2012) available at https://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/analysis/20120110Listeria.pd

f.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

17 | Page Utilizing employees from a separa te facility to perform internal audits is common industry practice.

Finally, the role and utility of internal auditing is also recognized more broadly. For example, the U.S. Government Accountability Office generally allows the use of internal auditing an d has published Government Auditing Standards that recognize the independence of internal audits, provided that certain control and ethical considerations are met. 58

In addition, w hile there are competent third party auditors, CSAG is concerned that a sufficiently deep pool of competent third party auditors will not exist if such audits are required on an industry

- wide basis. Any such shortage could foreseeably result in an audit process that fails to achieve the rig or of the audits that are performed under the current regulations, thus thwarting the RMP’s purpose of increased detection and prevention of accidental releases. CSAG therefore encourages EPA not to require the use of an auditor that is potentially less

e ffective than an auditor the company would otherwise choose.

C. Current auditing practices demonstrate that the existing performance

oriented regulatory structure works.

Under the current regulation, many companies already choose to use independent third party auditors to conduct or participate in the auditing process. Instead of being a comment on the efficacy of this decision, this choice appropriately reflects the flexibility of the RMP rule according to the specific needs of the company. A mandate to require the use of third party auditors, on the other hand, would frustrate this flexibility and impose significant costs on companies that are not justified by industry safety performance data. Indeed, no data has been shown that any such costs are warr anted because no evidence has been provided to support the

idea that third party audits would result in greater risk management improvements or that any RMP auditing failures could not be fixed simply through more effective implementation and

enforcement o f current RMP audit requirements.

D. Requiring more frequent compliance audits would strain available resources, result in fewer health and safety personnel to support other maintenance, verification, and compliance reviews, and reduce ability to focus on c losing audit findings.

Many companies already conduct more frequent assessments of their PSM programs. Mandating increased frequency, however, would likely not result in greater safety performance across industry. Without evidence demonstrating a clear c orrelation between increased auditing and greater accident detection and prevention, such a requirement would strain and divert

available resources. It would be especially burdensome and costly for small operators who typically begin with far fewer resour ces. CSAG therefore encourages EPA to focus on implementation and enforcement of the current RMP audit provisions and tracking closure of

58 U.S. Government Accountability Office, Government Auditing Standards , GAO

- 12

- 331G a t 39 (Dec. 2011) (“[I]nternal auditors who work under the direction of the audited entity’s management are considered independent for the purposes of reporting internally if the head of the audit organization meets all of the following criteria . . ..”).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

18 | Page action items from those audits, rather than proposing more particular requirements and frequency provisions that will undoubtedly strain resources at the expense of efficiency and safety.

VII. The Safer Technologies/Alternatives Analysis Identified in the RFI Would Create Significant Operational and Regulatory Challenges for Operators Without Any

Indication of a Simultaneou s Increase in Accidental Release Prevention Compared With the Current Regulatory Requirement.

In response to a petition requesting that the A gency use its Clean Air Act Section 112(r)(7)(A) rulemaking authority to “require the use of inherently safer techn ologies, where feasible, by facilities that use or store hazardous chemicals,” the RFI seeks comment regarding “possible approaches to promoting risk reduction through safer technology and alternatives.” 59

The RFI outlines concepts relating to inherently s afer technology (IST) based on materials published by CCPS, describing IST as a “philosophy and an iterative process, including eliminating a hazard, reducing a hazard, substituting a less hazardous material, using less hazardous process conditions, and de signing a process to reduce the potential for, or consequences of, human error, equipment failure, or intentional harm.” 60

P roponents of IST often fail to acknowledge many of the challenges posed by the implementation of the concept, as recognized by sub ject

- matter experts in this area. For example, the CCPS notes in Inherently Safer Chemical Processes, 2 nd ed., that “inherent safety should not be seen as an end in itself, or even the preferred strategy to reduce risk. Rather, it

must be seen as one str ategy to be employed to reach a risk reduction target.” 61 These materials provide that there is no clear boundary between IST and other strategies, that ISTs are relative and can only be described as inherently safer when compared to a different technology , including a description of the hazard or set of hazards being considered, their location, and the potentially affected population.” 62

CSAG strongly opposes the introduction of a safer technologies/alternatives analysis requirement under the RMP rule. CSAG believes that EPA’s evaluation of potential changes to the existing regulatory requirements as they relate to equipment maintenance and selection should focus on documented shortcomings that can be addressed by specific measures and that

are consisten t with Section 112(r) . Moreover, the Clean Air Act requires that any additional measures be reasonable and practicable, cost effective, and flexible enough to account for the performance

- based nature of the RMP construct and the wide array of entities reg ulated under

the standard.

By definition, the goal of process safety under RMP is risk management. This means managing an acceptable risk and managing risk to within acceptable limits, not elimination of all risk, which is generally not practical and li kely not even possible. The current RMP rule intrinsically recognizes the concept of risk management and the need for practical, cost

- effective

59 79 Fed. Reg. at 44,620.

60 Id

. 61 CCPS, Inherently Safer Chemical Processes: A Life Cycle Approach

, ( 2 d ed. 200 9 ).

62 79 Fed. Reg. at 44,620.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

19 | Page regulations by establishing a tiered program that scales facility cost and regulatory burden to the risk posed by the particular facility. In the absence of such a guiding principle, all covered facilities would necessarily be subject to Program 3 requirements. When faced with comments regarding the tiered approach, EPA explained:

EPA disagrees that the Clean Air Act requires all covered processes to comply with the same detailed risk management program. 63

* * *

EPA established the tiered approach to acknowledge that different industries pose different potential risks to human health and the environment and that elements of other regulatory programs may serve to prevent accidents. 64

EPA cannot meet the Clean Air Act regulatory thresholds with regard to a safer technologies/alternatives analysis at this time. 65

A. EPA considered and appropriately rejected a stand

- alo ne inherently safer technology (IST) requirement when it adopted its original RMP rule.

EPA was presented with this same regulatory policy issue when it adopted the original substantive RMP rule in 1996. In that rulemaking, EPA correctly explained:

EPA do es not believe that a requirement that owners or operators conduct searches or analyses of alternative process technologies for new or existing processes will produce significant additional benefits. Many commenters, including those who support these anal yses, indicated that an assessment of inherently safer design alternatives has the most benefit in the development of new processes. Industry generally examines new process alternatives to avoid the addition of more costly administrative or engineering co ntrols associated with a design that may be more hazardous in nature. Although some existing processes may be judged to be inherently less safe than others, EPA believes most of these processes can be safely operated through management and control of the hazards without spending resources searching for unavailable or unaffordable new process technologies. Application of good PHA techniques often reveals opportunities for continuous improvement of existing processes and operations without a separate analys is of alternatives. EPA encourages owners or operators to continue to examine and adopt viable alternative processing technologies, system safeguards, or process modifications to make new and existing processes and operations inherently safer. Through th e process and prevention program information in the

63 61 Fed. Reg. at 31,675.

64 Id . at 31,688.

65 See 42 U.S.C. § 7412(r)(7)(B) (specifying “reasonable” regulations that recognize differences in facilities and the voluntary actions of sources to prevent and respond to releases).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

20 | Page RMP, sources can demonstrate, and users of the RMP information can observe and promote, progress toward safer processes and operations. 66

Nothing presented in the RFI changes this analysis. While the RFI does mention that certain jurisdictions have implemented IST requirements, no benefits associated with these requirements are identified. CSAG is not aware of evidence suggesting that these programs have provided any additional benefit in preventing or de tecting accidental releases. To the contrary, the RFI actually discusses additional reasons for not adding a safer technologies and alternatives analysis requirement. For example, the RFI explains:

• “A July 2010 Department of Homeland Security (DHS) repor t prepared by CCPS . . . stated that there is no clear boundary between IST and other strategies, that ISTs are relative and can only be described as inherently safer when compared to a different technology , including a description of the hazard or set of hazards being considered, their location, and the potentially affected population. . . . This report also noted that there is currently no consensus on either a quantification method for IST or a scientific assessment method for evaluation of IST options

. ” 67

• “A 2012 National Academy of Sciences report found that while inherently safer process assessments can be valuable components of process safety management, inherently safer process assessments will not always result in a clear, well

- defined, and feasible path forward . Although one process alternative may be inherently safer with respect to one hazard

— toxicity of byproducts, for example

— the process may present other hazards, such an increased risk of fire or more severe environmental impacts. Choosing be tween options for process design involves considering a series of tradeoffs . . ..” 68

• “An additional complication to assessing safer technologies and alternatives is the varying amount and quality of information available regarding their implementation by i ndustry. While some facilities have converted to processes considered to be inherently safer, other facilities may not have had sufficient information to effectively assess the impacts from changing existing processes to ones considered inherently

safer. The differences that exist among chemical facilities, in terms of chemical process, facility layout, and ability to finance implementation, may challenge mandatory implementation of safer technologies and alternatives at regulated

entities .” 69

CSAG also ag rees with EPA’s assertion that certain elements of alternatives analysis exist within the RMP’s current regulatory construct. For example, it is common industry practice for sources to conduct hazard analyses that consider alternatives during the project review process. That said, it is well known that early adopters of new technologies often suffer

66 61 Fed. Reg. at 31,674.

67 79 Fed. Reg. at 44,620 (emphasis added).

68 Id. at 44,621 (emphasis added).

69 Id. (emphasis added).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

21 | Page poor performance or outright failure. In many cases it is far safer to make incremental improvements to tried

- and

- true technology.

B. Implementation of a mandat ory prescriptive safer technology and alternatives analysis requirement would be unworkable.

As noted in the excerpts from EPA’s RFI above, a prescriptive regulatory requirement of safer technology and alternatives analysis implemented and enforced by EPA would be

unworkable and would risk becoming a mere paperwork exercise. Because of the complex nature of IST decisions and the variability of these decisions across industries, individual facilities, and even individual units, implementation of IST is best left to industry to implement. Codification of an IST requirement would lead to prescriptive implementation that is likely to result in a bureaucratic bottleneck for the following reasons:

• IST does not exist in absolute terms, but is instead a comparativ e analysis that depends on the selection of and relative importance given to relevant factors. For example, a compound that is initially thought to be “safer” may require additional processing steps or transportation of larger quantities of chemicals that could potentially increase the overall risk of a release. Accordingly, what is “safer” is not a straightforward analysis. Instead, the relevant analysis is comparative safety between chemical or technology options.

• Further complicating this inquiry is t he fact that there is no generally accepted methodology for making IST assessments. 70

• Even if IST assessments were more straightforward and there was a consensus methodology, government regulation of IST assessments would still be unworkable

because of the site

- and operation

- specific elements involved. These variables include surrounding populations, exposures, hazards, location, and technical and economic feasibility, which vary by industry and facility.

• EPA administration of such a requirement would requ ire agency expertise that does not currently exist. For example, EPA would need to have expertise in metallurgy to evaluate determinations regarding comparative material suitability in terms of risk reduction in a specific set of operating conditions.

Fo r the reasons set forth above, implementation of a regulatory requirement under the RMP rule that operators engage in a safer technology and alternatives analysis would create significant challenges for both the Agency and the regulated community, without a simultaneous improvement in accident prevention and detection.

70 See id. at 44,620 (citing July 2010 DHS report prepared by the CCPS).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

22 | Page VIII. Mandatory Automated Detection and Monitoring Presents a Significant Danger of False Alarms Without a Corresponding Reduction in Risk.

The RFI request s comment on potentially expanding the requirements for automated detection and monitoring systems. 71 These potentially expanded requirements include: requiring facilities to install monitoring equipment or sensors to detect releases of RMP regulated

substa nces, including automated mechanisms to notify, alert and warn local responders and the surrounding public of a release or incident, and requirements regarding the frequency of testing for monitoring equipment and sensors. 72 As an initial matter, EPA itsel f notes, and CSAG concurs, that automatic monitoring systems may not be available for all particular chemical hazards and that industry standards may not address their proper use. 73 This fact alone presents complications for any standard mandating use of t hese devices. More broadly, mandating automated testing and monitoring is contrary to a risk

- based management system approach.

A. Automated notification of alarms and sensor activation could inadvertently cause false alarms and responses and consequently rem ove resources from where they are needed in the event of an actual emergency.

The potential for false alarms and the resulting resource drain would place a significant burden on the operator and responding third parties. Industry experience with these typ es of monitors is that they can be unreliable because they can be heavily influenced by a wide range of innocuous, unavoidable variables such as wind speed/direction, humidity, and ambient

temperature. Adding such complexity to existing systems would resu lt in false positives, and of even more concern, false negatives. In addition, such a requirement would complicate operating, maintenance, and testing procedures and create a false sense of safety. For example, industry experience has revealed significan t evidence that the addition of more alarms can actually decrease operator response time and thereby effectively increase risk. In fact, companies routinely engage in alarm objective analyses to combat this problem. At the same time, no data has been pro vided to show that there would be any corresponding benefit to the implementation of automated detection and monitoring systems at the level described that outweighs the potentially significant safety, health, and economic costs.

As the RFI provides, the current RMP rule already “specifically requires a facility’s hazard analysis to address engineering and administrative controls applicable to the hazards and their interrelationships, such as appropriate application of detection methodologies to provide

e arly warning of releases.” 74 Mandating the use of specific automatic detection technology removes the flexibility afforded to operators in selecting an effective form of detection system with no apparent safety benefit where operators are already required to apply “appropriate” detection methodologies.

71 See Id . at 44,623

- 24.

72 Id.

73 Id. at 44,623.

74 79 Fed. Reg. at 44,623; see also 40 C.F.R. § 68.67.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

23 | Page B. Additional alarm and monitoring systems, to the extent necessary, are more appropriately addressed through PSM processes including PHAs, or other

process

- specific regulatory standards. Separately addressin g these issues under the RMP rule may create confusion and conflict.

In many cases, alarm and monitoring systems have already been required by process

specific regulations or through identification of need by facilities as part of PHAs under the PSM

standa rd. To the extent that additional alarm and monitoring systems are needed, they will be identified and implemented as part of the regular PHA process or as part of process

- specific regulatory standards. In many cases, such standards comprehensively regul ate the conduct of monitoring, operation, and maintenance of continuous monitoring systems, mandate a quality control program for monitoring, require a performance evaluation for continuous monitoring systems, provide the circumstances under which an alter native monitoring method may be used, and provide for reduction of monitoring data. 75 EPA should not address these issues under the RMP rule, as it would likely create confusion and conflict.

C. The existing MI program adequately addresses inspection, testing, and maintenance of these systems.

The RMP’s MI program currently addresses inspection, testing, and maintenance of the monitoring systems discussed in the RFI. 76 To this end, testing of monitoring equipment itself is already effectively and effici ently conducted in conjunction with facility procedures pursuant to industry practice and RAGAGEP. For these reasons, CSAG recommends that the RMP regulations not be modified to require the use of automated monitoring, and that EPA focus on implementation and enforcement of the current RMP requirements which effectively cover the

issues EPA seeks to address.

IX. Additional Stationary Source Location and Facility Siting Requirements Would Limit the Ability of Industry and the Agency to Address This Issue Throug h RAGAGEP and Further Limit Facility Development and Expansion.

The RFI seeks comment regarding whether the A gency should “amend the RMP rule to include more specific siting requirements as part of the PHA by, for example, establishing buffer

or setback zo ne requirements for new covered stationary sources, or by establishing safety criteria for siting of occupancies inside the facility.” 77 EPA specifically seeks input on whether such requirements would “provide significant incremental protection over curren t industry practice.” 78

75 See, e.g., 40 C.F.R. § 63.8.

76 See

, e.g. , 40 C.F.R. § 68.73(d)(2) (“Inspection and testing procedures shall follow recognized and generally accepted good engineering practices.”); Id . § 68.73(d)(3) (“The frequency of inspections and tests of process equipment shall be consiste nt with applicable manufacturers’ recommendations and good engineering practices, and more frequently if determined to be necessary by prior operating experience.”).

77 79 Fed. Reg. 44,624.

78 Id

.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

24 | Page As noted above, the goal of process safety under EPA’s RMP rule is risk management. This means managing an acceptable risk, not eliminating all risk, as evidenced by the Act’s statutory directive to minimize the likelihood of the oc currence of a release and to minimize the impact of releases that do occur, including response requirements. 79 In light of this construct, any stationary source location and facility siting requirements promulgated by EPA to implement

the statute must be d esigned to balance reduction of risk with consideration of costs and impacts to regulated entities. To date, EPA has allowed for siting considerations to be included under performance

- based elements of the RMP program, including RAGAGEP and the requiremen t to consider facility siting in PHAs. Any modification of the existing construct would be

inconsistent with a risk

- based management system approach.

A. Existing RMP elements and recognized industry guidance are effective at regulating on

- site facility sitin g.

With respect to on

- site facility siting, 40 C.F.R. Section 68.67(c) provides that as part of a PHA, the facility shall address “stationary source siting.” While EPA has not provided guidance on meeting this requirement, the RFI correctly notes that it is common practice for operators to use industry codes guidance on siting considerations. 80 Such guidance includes API Recommended Practices 752 and 753, CCPS 2003 Guidelines for Facility Siting and Layout, and CCPS 2012 Guidelines for Evaluating Process P lant Buildings for External Explosions and Fires, and Toxic Releases. Furthermore, the RFI does not demonstrate that existing facility siting requirements under OSHA’s PSM standard have “failed to account for offsite impacts,” as set

forth in the rule’s r egulatory history, particularly given that OSHA’s regulations are focused on employees located within the employer’s facility fence line. 81

B. Establishing prescriptive buffer or setback zone requirements for new covered stationary sources, or developing saf ety criteria for siting of occupancies inside facilities, would limit new facilities and existing facility expansions without providing for appropriate operator analysis under the RMP’s performance

- oriented approach and RAGAGEP.

Prescriptive location and s iting requirements are contrary to the performance

- based objective of the RMP program. Moreover, such requirements would fail to take into account the differences in facilities as required by statute. 82 Under current regulations, companies routinely analy ze risk associated with siting decisions and are held to compliance with RAGAGEP in such analyses. Rigid requirements would remove this flexibility and could fail to account for differences that could disproportionately impact certain facilities. For exa mple, a uniform setback requirement could have an entirely different practical impact on an existing facility in a developed area than on a greenfield site. Thus, while a setback may be “reasonable” with respect to certain facilities, it may be cost

- prohi bitive and/or inappropriate with respect to others.

79 See 42 U.S.C. § 7412(r)(1).

80 See 79 Fed. Reg. at 44, 624.

81 See 29 C.F.R. § 1910.119(e)(3)(v); 57 Fed. Reg. 6356, 6377 (Fed. 24, 1991).

82 See 42 U.S.C. § 7412(r)(7)(B)(i).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

25 | Page Moreover, such an approach could have unintended consequences that would actually serve to increase risk as a whole. For example, a setback requirement that discourages expansion at an existing facilit y could lead to the construction of a new facility in another area in a more distant location. This change in business approach could lead to the transportation of raw materials, intermediates, and/or products across increased distances, potentially creat ing

substantial additional risk.

C. Existing RMP elements are effective in driving industry performance, and the addition of further specificity may limit the development of best practices

on this issue.

In addition to the challenges discussed above, prescr iptive requirements could have the harmful consequence of limiting the development of best practices in the context of source location and facility siting decisions. Thus, instead of creating an evergreen approach that considers industry developments in t echnology, best practices, and knowledge over time, prescriptive setback or buffer requirements could stunt this development and create a false sense

of risk reduction.

X. Although Covered Facilities Should and Do Coordinate With Emergency Responders in Appr opriate Cases, a New Emergency Response Coordination Element is Unnecessary.

As the RFI notes, Subpart E of the RMP regulations covers facility requirements for

emergency response. 83 These requirements differ between sources whose employees will not

respon d to accidental releases, and sources whose employees will respond to accidental

releases. 84 Both types of sources, however, are required to notify and coordinate response actions with the local fire department and/or local emergency response agencies, and to be included in the community emergency response plan. 85

A. An entirely new element is not required to address this issue because the existing emergency response coordination requirements are clear and

enforceable.

The RFI request s comment and information o n whether these requirements should be revised to clarify what steps RMP facilities should take in order to properly comply because “EPA has often found that facilities are either not included in the community emergency plan or have not properly coordinate d response actions with local authorities.” 86 C urrent EPA regulations provide , however, that sources not intending to provide their own response capabilities must: 1) be “included in the community emergency response plan developed under 42 U.S.C. 11003;” 2 ) for sources with only regulated flammable substances above a TQ coordinate response actions with the local fire department; and 3) ensure that “[a]ppropriate

83 See 79 Fed. Reg. at 44,625; 40 C.F.R. §§ 68.90, 68.95.

84 Id

. 85 See 40 C.F.R. §§ 68.90, 68.95.

86 79 Fed. Reg. at 44,625.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

26 | Page mechanisms are in place to notify emergency responders when there is a need for a response.” 87

A ccordingly, EPA’s statement that certain facilities are not in community emergency plans or have not properly coordinated response actions would appear to be a violation of EPA’s current rules and enforceable as such. CSAG believes that promulgation of ad ditional requirements is likely to increase the regulatory burden of only those companies that already comply with the emergency response requirements. It seems likely that additional regulations would have little, if any, effect on companies that already fail to comply with existing regulatory requirements. Instead, compliance improvements for these “outlier” companies can best be obtained through competent enforcement of the existing rules. Facilities typically coordinate emergency response

activities w ith local responders.

CSAG supports facilities’ coordination with local emergency response authorities and inclusion in the community emergency plan. Facilities typically do and should coordinate emergency response activities with local responders both wh ere the operator’s employees respond in coordination with these responders or don’t respond directly to accidental releases. CSAG believes, however, that the existing RMP requirements are effective in driving industry coordination with local emergency res ponse, and that any gaps should be addressed by proper site implementation of the current RMP and competent enforcement. To that end, community emergency response plan requirements already are addressed in Chapter 8 of EPA’s General Guidance on Risk Manag ement Programs for Chemical Accident Prevention (40 CFR Part 68)

, EPA 555

- B

- 04

- 001, (Mar. 2009).

B. EPA should be cognizant that its emergency response requirements do not apply in a vacuum. Any revisions to emergency response requirements

should be consider ed in concert with similar requirements in other regulatory programs.

In addition to emergency response requirements in the RMP rule, similar requirements exist in other regulatory programs, including the Emergency Planning and Community Right to

Know Act (EPCRA) and OSHA and DHS chemical facility and anti

- terrorism standard regulations. For example, OSHA rules set forth requirements for emergency action plans, as well as requirements for hazardous waste operations and emergency response. 88 EPA has recognized the desire to avoid inconsistent or duplicative regulatory requirements in implementing the RMP program, stating, “EPA believes that owners and operators can indicate in their Program and RMP how compliance with other particular regula tions and standards satisfies Program or RMP elements, thereby, avoid duplication.” 89 In fact, commenters to the original proposed RMP rule were particularly concerned about duplicative requirements in the context of emergency response requirements. EPA e xplained:

Many of the commenters were particularly concerned with the potential for increased duplication of emergency planning requirements at the state and Federal

87 40 C.F.R. § 68.90.

88 29 C.F.R. §§ 1910.38; 1910.120.

89 61 Fed. Reg. at 31,688.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

27 | Page levels that would require expenditure of additional resources without improving

source emergency response capabilities.

* * *

EPA has decided to adopt the emergency response requirements found in the statute, without additional specific planning requirements. This action is consistent with the Agency’s effort to develop a single Federal approach for emergency response planning. . . . EPA believes that plans developed to comply with other EPA contingency planning requirements and the OSHA Hazardous Waste and Emergency Operations (HAZWOPER) rule (29 CFR 1910.120) will meet requirements for the emergency response program provided that they address the elements in section 68.95(a). 90

EPA should consider these other requirements and objectives for consistency when evaluating the sufficiency of its emergency planning requirements, and should ens ure that any changes that the Agency considers are consistent with and complementary to these other regulatory programs.

C. In certain cases, the local outside response agency may end up not being

available for such activities at all facilities.

In additio n to generally seeking information on compliance with emergency response program requirements and coordination with local responders, the RFI seeks information on potential requirements to conduct emergency drills to test a source’s emergency response

prog ram or plan. 91 CSAG has concerns with such additional prescriptive requirements in the context of a performance

- based regulation. Rather, CSAG notes that its members conduct emergency response drills on a voluntary basis as part of their obligation and de sire to comply with the objectives of the RMP program. These voluntary actions, however, are best left to individual companies to determine how they are implemented. For example, in areas where multiple facilities are located, the local response agency ma y not be available to conduct expanded activities such as drills and site visits for all facilities within the area, as has been suggested as possible additional emergency response requirements. 92

Instead, current industry practice is to coordinate with l ocal responders on a broader basis. Through this approach, companies are able to train and drill with local responders across a broader geographic area, thereby easing the burden on the response agency covering the immediate area, as well as providing opp ortunities for sharing information and best practices. A prescriptive requirement for emergency response drills would strain the resources of the local response agency while putting facilities at compliance risk for issues outside of their control.

90 61 Fed. Reg. at 31,697

- 98.

91 79 Fed. Reg. at 44,622.

92 Id

.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

28 | Page XI. The Current Industry Practice With Respect to Incident Investigation Adequately Addresses the Goals of the Clean Air Act Without Additional Prescriptive Language.

EPA has requested comment on the Agency’s consideration of “whether broadening the

incident inves tigation and accident history requirements to include clear requirements to investigate near misses and determine root causes of accidents, near misses, and process upsets would promote increased safety.” 93 Additionally, EPA seeks “information on the

appro priateness of requiring root cause investigations of incidents, process upsets and near

misses, and of establishing specific time frames for incident investigations to be completed.” 94

A. The RMP program purposely requires investigations for only a subset of

incidents.

Current EPA RMP regulations require that owners or operators “investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release.” 95 In addition, OSHA’s PSM standard requires incident investigations for “ea ch incident which resulted in, or could reasonably have resulted in a catastrophic release of a highly hazardous chemical in the workplace.” 96 Notably this divide in requirements reflects the distinctions in regulatory focus between the RMP and the PSM pro grams. Namely, the RMP program focuses on risk mitigation to the general public, while the PSM standard focuses on minimization of risks to employees in the workplace. EPA clearly recognized this distinction and the relative nature of incident investigat ion under the RMP program when it finalized the RMP regulation:

EPA has modified the OSHA definition of catastrophic release, which serves as the trigger for an incident investigation, to include events ‘‘that present imminent and substantial endangerment to public health and the environment.’’ As a result, this rule requires investigation of accidental releases that pose a risk to the public or the environment, whereas the OSHA rule does not. EPA recognizes that catastrophic accidental releases primarily affect the workplace and that this change will have little effect on incident investigation programs already established. However, EPA needs to ensure that deviations that could have had only an offsite impact are also addressed. 97

Despite this limitation , as a practical matter PSM and RMP regulations maintain substantial overlap in applicability ( e.g. , RMP Program 3 is required for facilities triggering PSM requirements). Accordingly, incident investigations are already required in a much wider range

of situations than would be apparent based solely on the text of the RMP rule. Broad coverage under the PSM standard and the distinction in regulatory scope weighs against the promulgation of additional prescriptive requirements for incident investigations i n the RMP rule.

93 Id . at 44,626

- 27.

94 Id . at 44,627.

95 40 C.F.R. §§ 68.60; 68.81.

96 29 C.F.R. § 1910.119(m).

97 61 Fed. Reg . at 31,673 (emphasis added).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

29 | Page B. Current industry best practices further weigh against the addition of new requirements.

Current industry best practice already ensures that the Clean Air Act’s goal of preventing and detecting accidental releases is met without the need for regulatory change. First, current industry practice is to investigate all incidents and any near miss that could have resulted in a catastrophic release. For example, even where a specific failure of engineering or administrative

controls does not resul t in an accidental loss of containment, facilities typically will conduct an investigation of the near miss in order to prevent any recurrence. Second, current industry practice is to use a recognized and accepted methodology to conduct incident investiga tions ( e.g. , root cause, TapRoot).

While these methodologies may vary from facility to facility as well as based on the severity or complexity of an event, companies use engineering judgment to select an appropriate and effective incident investigation met hodology. For example, the root cause analysis approach that is common in industry is driven by best practice and does not need further regulatory modification. Finally, under the current industry approach, all action items are tracked to completion, mea ning that setting specific, prescriptive time frames for investigations will not aid in the prevention of accidental releases. A need for prescriptive incident investigation requirements has not been demonstrated and such requirements would only hinder in dustry flexibility in applying incident investigation techniques that are appropriate on a case

- specific

basis.

In light of the incident investigation requirements under the OSHA PSM standard and current industry best practices, additional prescriptive req uirements would not advance the goals of the Clean Air Act and would likely discourage industry judgment and best practice in crafting incident investigation techniques that are most effective in individual cases. Because facilities

and incidents differ i n complexity, a one

- size

- fits

- all approach to incident investigation is

unsuitable.

In addition, CSAG believes that requiring closure of incident investigations and action items on a mandatory timeline is unworkable and counterproductive. For example, establishing a prescriptive time frame for both high

- and low

- risk action items or high

- and low

- capital items will serve to strain facility resources and thereby undermine the operator’s ability to perform effective risk management. Moreover, many action s items have to be coordinated with turnaround schedules and/or organizational or procedural changes. Rushing the process would lead to poor outcomes and unintended consequences.

XII. Proposing Expanded Public Disclosure Requirements Would Be Inappropriate

Bec ause They Would Not Result in Greater Accident Prevention As Pertinent Information Is Already Available.

EPA requests comment on the potential expansion of public disclosure requirements under the RMP on the theory that it would promote regulatory complian ce and improveDetailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

30 | Page community understanding of chemical risks. 98 By way of example, the Agency describes a process by which operators might post on a company website “unrestricted ( i.e. , non

- off

- site consequence analysis) RMP information, such as the facility’s RMP executive summary, emergency contact information, identity of the LEPC, or links to the local emergency response plan and/or the facility’s most recent EPCRA Tier II report.” 99

A. Much information is already publicly available online, particularly with respect to major incidents and enforcement.

Expanded public disclosure requirements do not result in greater accident prevention. Although EPA notes that the RMP rule was published before many of today’s information

sharing technologies were invented, th ese innovations have resulted in most or much of the information identified for potential required public disclosure being available through online sources, such as EPA’s website, the OSHA enforcement database, and the Safety Data Sheet (SDS) database. Th is is particularly true with respect to data relating to accidental releases and

related enforcement.

B. Public availability of information would not further increase the risk management goals of preventing and detecting accidental releases.

CSAG is unaw are of any data or factual basis for the position that adding new obligations to public disclosure requirements would materially improve safety performance or the RMP’s statutory goals of accident prevention and detection. The current disclosure requireme nts have aided the RMP rule’s improvement of safety performance standards while not being so overly broad as to threaten the disclosure of particularly sensitive information or present unduly burdensome obligations on operators.

C. Increasing public availa bility could provide a roadmap for would

- be terrorists through dissemination of sensitive security information, creating a potential threat to the Nation's energy supply.

Congress has recognized the need to limit information associated with the RMP Program when competing security interests exist. For example, EPA initially designed an electronic RMP form for publication on the Internet to allow for public access. 100 “However, the Federal Bureau of Investigation and other representatives of the law enforceme nt and intelligence communities raised concerns that releasing the OCA portions of RMPs via the Internet would enable individuals anywhere in the world anonymously to search electronically for industrial facilities in the U.S. to target for purposes of cau sing an intentional industrial chemical release.” 101 In response to these concerns, on August 5, 1999, the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA) was enacted. CSISSFRRA revised Clean Air

98 See 79 Fed. Reg. 44,628.

99 Id

. 100 65 Fed. Reg. 48,108 (Aug. 4, 2000).

101 Id . at 48,109.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

31 | Page Act Section 112(r) to include new provisions that restrict public access to off

- site consequence analysis information in RMPs in light of national security concerns. 102

Similarly, much of the information which might potentially be subject to expanded public disclosure obligati ons consists of sensitive security information. Federal law prohibits the disclosure of “information obtained or developed in ensuring security,” if disclosing the information would “(A) be an unwarranted invasion of personal privacy; (B) reveal a trade s ecret or privileged or confidential commercial or financial information; or (C) be detrimental to transportation safety.” 103 Multiple agencies and stakeholders retain jurisdiction over security issues associated with information contained in operators’ RMPs , including the Transportation Security Administration, the Department of Justice, the Department of Homeland Security, the Federal Bureau of Investigation, the U.S. Coast Guard, and state governments. The unilateral requirement to widely disclose such in formation under the RMP rule presents obvious terrorism

related risks, including the potential to make information public regarding significant process vulnerabilities by which the nation’s energy supply could be disrupted.

XIII. Use of Acute Exposure Guideline Levels (AEGLs) for Threshold Quantity / Endpoints Calculations Would Not Further the Goals of the Risk Management Program.

EPA requests comment on the use of AEGL toxicity values to calculate TQs, including whether the RMP would be made more protective by revising the rule to incorporate AEGL

- 1 or

AEGL

- 2 as the basis for TQs and toxic endpoints. 104 The Agency additionally seeks input regarding potential economic impact and effect on small entities based on these changes. 105

A. The Clean Air Act does not requir e use of AEGLs in establishing TQs for the RMP Program.

Section 112(r)(5) of the Clean Air Act provides that EPA “shall establish by rule, a threshold quantity for the substance, taking into account the toxicity, reactivity, volatility, dispersibility, com bustibility, or flammability of the substance and the amount of the substance which, as a result of an accidental release, is known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to human health.” 106 EPA impleme nted this requirement when it promulgated its listing rule in 1994. 107 That rule appropriately relied upon Immediately Dangerous to Life and Health (IDLH) values developed by the National Institute of Occupational Safety and Health to establish the best est imates of TQs for listed substances in accordance with the statutory mandate. 108

102 Id.

103 49 U.S.C. § 40119(b)(1); 49 C.F.R § 15.5(a); 49 C.F.R. § 1520.5(a).

104 79 Fed. Reg. 44,628

- 31.

105 Id . at 44,631.

106 42 U.S.C. § 7412(r)(5).

107 59 Fed. Reg. 4478 (Jan. 31, 1994).

108 Id . at 4486.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

32 | Page While the RFI is correct that AEGLs provide additional information regarding the impacts of exposures of chemicals to populations, the regulatory landscape is vastly different

t han it was during the initial listing rulemaking. EPA now has nearly 20 years of data generated through operation of the RMP program that can be used to check the appropriateness of the initial TQ values for compliance with Clean Air Act Section 112(r)(5) . EPA has noted that importance of accident history, stating in the RMP rule preamble, “the unique circumstances surrounding past accidents can provide a reality check on the theoretical modeling and worst

case scenario claims . . ..” 109 Only if EPA demons trates through a review of this data that the existing TQs are inadequate for one or more chemicals, does it make any sense to look to alternative exposure values, such as AEGLs, to revise TQs for those individual chemicals.

CSAG believes that a wholesale revision of TQs without such an analysis would unnecessarily expand the cost and scope of the RMP program without the expectation of an accordant benefit.

B. The existing TQ and endpoint calculations are effective in driving industry performance. EPA should not change these long

- standing requirements without a showing that they are inadequate.

Existing RMP TQ and endpoint calculations are effective in driving industry performance, and should be supported by proper site implementation and agency guidan ce. CSAG is not aware of information supporting the position that use of AEGL levels would more significantly focus operators on prevention and detection of accidental releases than the current TQ calculations.

XIV. There Is No Reasonable Basis to Conclude Tha t Basing Program 3 Applicability On Risk Management Program Accident History Data Would Do Anything to Promote

the Clean Air Act Goal of Accident Prevention.

EPA requests comment on the appropriateness of “reevaluating the [North American Industry Classifi cation System (NAICS)] industry sectors originally identified to determine [RMP] Program 3 applicability based on the collected RMP data.” 110

A. Any revision to the RMP Program 3 applicability provisions must be based on data that shows the current requireme nts are inadequate and that the proposed changes would remedy the inadequacy.

As an initial matter, CSAG believes that modification to long

- standing applicability provisions for the RMP program should occur only if the current provisions are the cause of

a ccidental releases that otherwise would be prevented by revisions to the applicability provisions. The RFI appears to suggest that because new information may be available, it should necessarily be incorporated into the applicability regulations. To the extent that is the RFI’s premise, it is flawed. When EPA promulgated the RMP rule, it recognized that it did not have all of the information needed to match SIC codes with every facility that should be covered under the rule. For that reason, EPA decided to add coverage under the PSM standard as a

109 61 Fed. Reg. at 31,675.

110 79 Fed. Reg. at 44,631.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

33 | Page separate criterion for RMP Program 3 applicability. 111 This additional criterion makes sense because it helps to ensure that facilities that should be covered under RMP Program 3 are included irrespective of indu strial classification code.

B. Any revision to NAICS codes should be substantiated by a rational methodology, valid data, and reasonable assumptions.

A review of data contained in the RMP database reveals significant concerns regarding the reliability, a ccuracy, and comprehensiveness of the information on which a proposal to modify the RMP rule might be based and, consequently, the need for additional information. For example, the availability of statistically reliable data appears to vary significantly by EPA Region. Furthermore, EPA would need to address shortcomings in the underlying assumptions relating to selection of NAICS processing codes, as well as ambiguity in facility size and chemical reporting, which would weigh on the decision to cover a pa rticular type of facility under RMP. For example, EPA will need to consider the extent to which facilities in its list of

ten NAICS codes are already subject to RMP and/or PSM program requirements. To the extent that facilities in newly identified NAICS codes are already subject to PSM requirements, and accordingly RMP Program 3 requirements, the inclusion of additional NAICS codes would not have any meaningful effect. In addition, EPA has not provided sufficient information about how

it considered the f requency or severity of events to select NAICS codes for requesting information regarding potential addition to the list. Any such analysis needs to factor in several variables including the number of facilities in the sector, the severity of the releases in terms of

off

- site impacts, and the frequency of significantly

- severe releases. For example, some NAICS codes may include a number of facilities that are one or more orders of magnitude greater than another. It is not evident, however, how EPA’s ident ification of NAICS codes takes such a

factor into account.

Sufficient data would need to be presented to support the suggestion that consideration of ten NAICS codes is an appropriate methodology for determining Program 3 applicability (and as yet, it ha s not been). CSAG suggests that to the extent EPA seeks to pursue this approach, it should develop reasoned analysis as to what is the appropriate consideration given to NAICS data in determining RMP applicability, based on reliable underlying information

.

C. EPA should ensure consistency with OSHA PSM requirements in considering changes to applicability requirements.

An additional issue that must be addressed in any change to the NAICS code applicability provisions is consistency with PSM applicability. To date, OSHA has not indicated that it is considering a similar modification to the PSM standard’s applicability pr ovisions. As discussed previously, it is imperative that EPA’s RMP rule be consistent with OSHA’s PSM standard as required under Section 112(r) of the Clean Air Act. As a result, applicability of the two programs should parallel one another in order to c reate certainty for the regulated community

111 61 Fed. Reg. at 31,676.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

34 | Page and to the extent they do not, there must be a reasoned explanation for the distinction based on consideration of congressional intent for consistency between the programs.

XV. EPA Should Not Propose to Adopt the Safety Case Regime Because it Would Create Significant Financial Burdens for Facilities Without Any Simultaneous Improvement in Accident Prevention.

EPA requests comment on whether the agency, together with OSHA, should consider taking steps to replace the current RMP regulation and PSM standard with the “safety case” regulatory model utilized in the United Kingdom and elsewhere. 112 In the alternative, EPA requests comment on whether these agencies could implement selected aspects of the safety case approach within the current regulatory framework. 113

As a starting point, CSAG members and other Section 112(r) and PSM

- regulated entities have invested tremendous resources in compliance with these regulatory programs. Replacing these programs with an entirely new regulatory regime would need to be supported by information that shows the “safety case” is consistent with the statute. It is plain from the statutory provisions in Section 112(r)(7)(B)(ii)(I)

- (iii) that Congress was not contemplating the “safety case” as the framework for the RMP regulations. Implementing the safety case is effectively counter to the provisions that Congress explicitly adopted, indicating that regardless of the relative merits of adopting it, to do so requires statutory amendment. Whe re the language of the statute is clear, EPA must follow its provisions. Adopting the safety case would be a wrong interpretative turn that the Agency should not take. 114

Moreover, information would need to be provided to demonstrate that a factual basis t hat the safety case is as or more effective than the framework that Congress set forth in Section 112(r) as a legal matter and as a policy matter that it is more effective in reducing the frequency or severity of process safety incidents, including the RMP standard. 115 It is worth noting, and EPA would need to address, that even CSB Draft Regulatory Report No. 2012

- 03

- I

- CA , which the RFI identifies as supporting adoption of the safety case regime, recognizes that “there have been few objective studies conduc ted on the impact of the safety case regulatory approach on safety performance.” 116 It is also important to recognize that the justification offered by the CSB in support of the safety case is limited almost entirely to the context of offshore operations.

In addition, the safety case has not found meaningful support among other government actors, which makes questionable any adoption by EPA in the face of plain congressionally established program elements in Section 112(r). For example , the National Instit ute of Occupational Safety and Health, (NIOSH), an agency whose purpose is the prevention of

112 See 79 Fed. Reg. at 44,632.

113 Id

. 114 See Util. Air Regulatory Grp. v. EPA , 134 S. Ct. 2427, 2446 (2014)

. 115 Even if the safety case is at least as effective, any implementation would need to occur under Section 112(l) of the statute since the core federal program does not contemplate the safety case.

116 See CSB, Draft Regulatory Report, Chevron Richmond Refinery Pipe Rupture and Fire , Report No. 2012

- 03

- I

CA, at 108 (Dec. 2013) (CSB Report).Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

35 | Page workplace illness and injuries

, affirmatively withdrew its support for the safety case in

June 2014. 117 Similarly, a May 2014 report to the President from by the Ch emical Facility Safety and Security Working Group notes that

, “ o verwhelmingly, nearly all comments received regarding the adoption of the safety case regulatory model were negative[.]” 118

Academic examination of the safety case has offered valuable insight i nto the mixed results of this regulatory approach. Massachusetts Institute of Technology Professor Nancy Leveson has compiled historical analysis of the safety case regime, concluding that a fundamental flaw with the safety case is the program’s failure t o address worst

- case analysis. 119
Based on Leveson’s review, operator analysis under the safety case “is often limited to what is likely or expected, and doesn’t include what could be catastrophic,” thereby in practice ignoring the possibility of low probab ility/high consequence events based on incorrect assumptions about how the system will operate. 120 According to Leveson, “[e]ffective safety analysis requires considering worst cases.” 121

As Leveson’s research makes clear, the weight of the available evidence indicates that the safety case does not offer superior protection against accidental releases. In fact, the poor implementation of safety case rules has been faulted in accident reports in the United Kingdom. 122 Leveson cites the United Kingdom’s Nimrod R eview, an independent investigation into a 2006 accident involving the Royal Air Force “Nimrod” maritime reconnaissance aircraft

which resulted in 14 fatalities. 123 The Nimrod Review exposed significant failings in the safety case regime and concluded that the safety case has “led to a culture of ‘paper safety’ at the expense of real safety . . . [and] does not represent value for money.” 124 Importantly, the Nimrod Review notes that “[m]any of these criticisms of safety cases are not new,” and that while “[s] afety cases were intended to be an aid to thinking about risk,” they have “become an end in

themselves.” 125

In addition to the flawed aspects of the safety case identified above, the adoption of such a fundamentally distinct regulatory regime would result in significant uncertainty in the regulatory environment as owners, operators, employees, and regulator s undertake the process of implementing and adapting to a new or partially

- new regulatory approach. Further, the costs of

117 See Comments of NIOSH on OSHA ’s Process Safety Management and Prevention of Major Chemical Accidents; Request for Information , (June 6, 2014), Docket No. OSHA

- 2013

- 0020

- 010 5.

118 See Chemical Facility Safety and Security Working Group

, Executive Order 13650, Actions to Improve Chemical Facility Safety and Security

– A Shared Commitment, Report for the President , at 85 (May 2014).

119 Nancy Leveson, The Use of Safety Cases in Cer tification and Regulation

, J. S YS

. S AFETY , (Nov./Dec. 2011)

available at http://www.system

- safety.org/ejss/past/novdec2011ejss/spotlight1_p1.php (last visited Oct. 29, 2014).

120 Id

. 121 Id

. 122 Id

. 123 Id

. 124 See Charles Haddon

- Cave, The Nimrod Review, An independent review into the broader issues surrounding the loss of the RAF Nimrod MR2 Aircraft XV230 in Afghanistan in 2006 , HC 1025, London: The Stat ionery Office Limited, at 533 (Oct. 28, 2009) available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229037/1025.pdf

. 125 Id

.Detailed Comments of the Chemical Safety Advocacy Group EPA Risk Management Program R equest for Information October 29, 2014

36 | Page such a transition, and the poten tial for diminished safety performance during this transition, would be significant as resources are marshalled to understand and implement entirely new requirements. Absent a clear benefit in safety performance from implementing the safety case regime, t hese risks are unacceptable.

Any proposal to implement or incorporate the safety case framework will necessarily introduce potentially unmanageable new costs into process safety regulation. As the CSB acknowledges, the successful implementation of the saf ety case regime requires an “independent,

well

- funded, well

- staffed, technically competent regulator” and “[a] compensation system to ensure the safety case regulator has the ability to attract and retain a sufficient number of employees with the necessary skills and experience to ensue regulator technical competency.” 126
Accordingly, any state or federal agency tasked with implementing the safety case would bear tremendous costs in upgrading its workforce and infrastructure to effectively implement this

nov el and unproven regime. Further, the cost borne by industry, including a vast number of small businesses, would be no less. Indeed, it is an open question whether many owners or operators would be able to bear the significant financial burdens of the who lesale implementation of an unfamiliar and untested regulatory scheme which demands a tremendous

allocation of new resources.

XVI. Conclusion

CSAG appreciates the opportunity to offer the foregoing information and looks forward to discussing these issues with E PA and OSHA as the implementation of the Executive Order proceeds. Please contact Shannon S. Broome ( shannon.broome@kattenlaw.com ), Chuck Knauss ( chuck.knauss@kattenlaw.com ), or Matt Paulson ( matt.paulson@kattenlaw.com ) with any questions regarding these comments.

126 CSB Report at 91.