1

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:

Gerain,

Attached are the passback comments for the EPA's Modernization of the Accidental Release P revention 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.govAttachment: 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.

2 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, ev en 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 t o 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 STA A 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 draf t), 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 delega ted.” 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 facilitie s 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 impor tant 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. U nder the new proposal, a catastrophic release also

mean s

...

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

mate rials 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.

3 8. P age 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
inhe rently 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 i s 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, inhe rent 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
fact ors 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

s tandpoint, 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 c an 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 posit ion 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 ident ify 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 reductio n 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 expe cted 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.

4 12. EPA responded to several questions about whether to refer to STAA instead of IST with the
answer that “We bel ieve 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 eff ort 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 los s 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 b road 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, b lowdown 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 informat ion 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

.