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From: Jones, Danielle [mailto:Danielle_Y_Jones@omb.eop.gov] 

Sent: Tuesday, February 16, 2016 5:49 PM

To: Cogliano, Gerain <Cogliano.Gerain@epa.gov>

Subject: EO 12866 Interagency Review: EPA's Modernization of the Accidental Release Prevention 

Regulations Under Clean Air Act 

Attachment:

EO 12866 

Interagency Comments RMP 3.docx

Gerain,

Attached are the passback comments for the EPA's Modernization of the Accidental Release Prevention 

Regulations Under Clean Air Act. Please let me know if the program area would like to set up calls with 

the interagency reviewers to discuss.

Best,

Danielle

Danielle Y. Jones

Policy Analyst

Office of Management and Budget

Phone: (202) 395-1741 | djones@omb.eop.gov
Attachment: EO 12866 Interagency Comments RMP 3.docx

Summary of Interagency Working Comments on Draft Language under 

EO12866/13563 Interagency Review. Subject to Further Policy Review.

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1. This reviewer recommends that EPA solicit comment on whether large water/wastewater 

facilities regulated under RMP should be required to conduct STAA. The potential consequences 

of accidents at water supply and wastewater treatment facilities are likely to be high, even if 

frequency of accidents are relatively low. Stakeholders (including some industry experts familiar 

with this sector) have pointed out that these facilities present high risks and have relatively low 

cost safer alternatives, and it would be valuable to give industry and NGO experts an 

opportunity to provide EPA with input and data on whether or not this sector should be 

included. 

2. This reviewer recommends that EPA take comment on whether the documentation of feasibility 

proposed by EPA for the STAA is adequate or if commenters have suggestions for how it could 

be modified to ensure that it adequately (could reference the Contra Costa County 

requirements as an example that commenters could look to).

3. On the state plan sentence (p. 35 in the new draft), EPA made some additional editorial 

changes, which are acceptable but as a result the sentence is pretty clunky. In addition, and this 

was omitted from our comments last time by oversight, the correct statutory term is “OSHA 

approved,” not “OSHA delegated.” We request the sentence be revised as follows:

State and local government employees at facilities in states under Federal OSHA authority are 

not covered by the OSHA PSM standard, unlike as opposed to state and local government 

employees at facilities in states with covered by OSHA delegated approved State Plans.

4. All of EPA’s changes to the OSHA insert on feasibility are acceptable, except on the 5th line 

where EPA changes “In the enforcement context” to “In this enforcement context.” “The” is 

important here, because feasibility has different meaning in other contexts under the OSH Act, 

especially rulemaking.

5. Page 30, edit: EPA is proposing to modify the definition of catastrophic release to be identical to 

the definition of reportable accidents. Under the new proposal, a catastrophic release also 

means...

6. Page 73, Please insert this sentence prior to “EPA also seeks comment regarding potentially 

relevant and applicable consensus standards and protocols that might apply to the audits and be 

built and/or incorporated by reference into the rules.” “EPA believes that these credentials also 

generally (always?) include an ethical requirement to provide sound independent advice.”

7. Page 80, regarding Third Party Reports: EPA could require production of such reports despite 

the existence of the attorney client privilege. Instead of the current regulatory language which 

makes these materials potentially available to third parties in litigation, why not state that these 

materials are available to EPA and implementing agencies without regard to the applicability of 

an attorney client privilege? This achieves EPA's purpose without making this information 

potentially available to the public. EPA does not have the authority to waive attorney client 

privilege for non-governmental parties. 
Summary of Interagency Working Comments on Draft Language under 

EO12866/13563 Interagency Review. Subject to Further Policy Review.

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8. Page 81, Meaning of STAA: Comments are specific to section C, Safer Technologies Assessment 

and Alternatives. Section C is addressed from a purely scientific perspective, the concept of 

inherently safer technology focuses on mitigating a specific hazard (or several closely related 

hazards). EPA references a definition that was jointly developed and published by CSAC and the 

Center for Chemical Process Safety. But what they don’t highlight is the report states that IST is 

not the panacea for safer processes. The broader term “safer design strategies”, which in our 

opinion has not been defined correctly by EPA, addresses four separate strategies: procedural, 

active, passive and inherent, inherent being the most intensive to implement (usually). As 

mentioned above, the four points they ascribe to safer design strategies are really part of IST. If 

section C would focus on the broader concept of safer design, and include each of those four 

factors underneath, it might make the discussion clearer.

 In addition to my points above, I think Section C will potentially create a conflict between this 

new rule and the CFATS. This, I think, should be a major concern. And from a purely scientific 

standpoint, the language in section C seems to create intractable challenges between two rules. 

The challenge will be some of the processes that improve security may actually impede safety, 

and the reverse. CFATS has already begun to explore the infusion of IST into the CFATS 

methodology, and in fact, a number of facilities have started to employ IST principals (mostly 

substitution).

9. Page 98: After the deleted text “EPA believes that only qualified facility personnel should choose 

the best measures that can reduce the risk of an accident at the facility.” Please insert the 

following sentence “While EPA believes that facilities should look for additional opportunities to 

increase safety, we believe that the facility owners or operators are in the best position to 

identify which changes are feasible to implement for their particular process.” Text borrowed 

from earlier page. Can replace deleted text. Or use the ending alone: “we believe that the 

facility owners or operators are in the best position to identify which changes are feasible to 

implement for their particular process.”

10. Page 99, comment A155: This reviewer still recommends: Feasible means capable of being 

accomplished in a successful manner within a reasonable period of time, economically 

practicable, and not inconsistent with other economic, environmental, legal, social, and 

technological factors. Environmental factors include consideration of risks transferred to other 

locations, populations, or ecological systems, if a new risk reduction measure is adopted.

EPA requests to know why this is better than EPA’s definition. It includes all of EPA’s 

definition, but it includes more specificity because it requires the IST approach to be 

“economically practicable.” This provides useful clarity, It is hard to imagine why a company 

should adopt a method that was not “economically practicable.” The absence of such words 

could imply that the other factors could overwhelm the economic factor. 

11. Page 141, regarding Submission Dates and Updates: This appears to add an annual requirement 

to several provisions that don’t currently require annual updates. Since this information is 

provided only upon request, it would lower the burden to require updates only on request, 

especially since this is expected rarely. 

For example under68.58 compliance audits are only required to be updated every three 

years. Exercises may not be done annually. 
Summary of Interagency Working Comments on Draft Language under 

EO12866/13563 Interagency Review. Subject to Further Policy Review.

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12. EPA responded to several questions about whether to refer to STAA instead of IST with the 

answer that “We believe the current regulation already incorporates the other elements of the 

STAA (PHA already considers active, passive and procedural measures and therefore already 

accounts for these elements)” (e.g., page 11, comment 7). I would like to follow up with a

request to make that clear on page 11 of the executive summary by saying the following in the 

text where comment 7 was located: “The current PHA requirement includes consideration of 

active, passive, and procedural measures. The proposed modernization effort continues to 

support the analysis of those measures and adds consideration of Inherently Safer Technologies 

and Inherently Safer Design alternatives.”

13. In the acronym section in the beginning, DOI should be spelled out as “Department of the 

Interior”.

14. Page 31, recommended edit: EPA seeks comment on the proposed revision to the catastrophic 

release definition, whether it is consistent with the current definition and whether it should be 

limited to loss of life; serious injury; significant damage; or loss of offsite property.

15. Page 45, recommended edit statement found in slide #27 of 11/19 powerpoint presentation. 

This illustrates the issue better. These examples are actually examples of “near misses”, but still 

illustrate that this definition was too broad for the SERs. An example would be a transformer 

explosion that could have impacted nearby regulated process equipment causing it to lose 

containment of a regulated substance. Near misses could also include releases from relief 

valves, interlocks, blowdown systems and rupture disks.

16. Page 89: corrected link to footnote: M. McCoy. November 9, 2009. Clorox to Stop Using 

Chlorine. Chemical & Engineering News. http://pubs.acs.org/cen/news/87/i45/8745notw2.html.

http://cen.acs.org/articles/87/i45/Clorox-Stop-Using-Chlorine.html.

17. Page 142, recommended edit: EPA also seeks comment on whether to require less information to 

be shared (e.g., limit incident investigation information to incidents with offsite impacts). Some 

SERs suggested that information be limited to a one page summary of each significant chemical 

hazard and suggested including only the following elements:, identifying the name of the 

substance, its properties, its location, and recommended firefighting and emergency response 

measures. EPA seeks comment on this narrowed approach.