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From: Cogliano, Gerain

Sent: Thursday, February 18, 2016 2:30 PM

To: 'Jones, Danielle' < Danielle_Y_Jones@omb.eop.gov >
Cc: Farber, Glenn < Farber.Glenn@epa.gov > Subject: EPA response to interagency passback comments on RMP rule
Attachments:

Hi Danielle,

Attached is a revised redline version of the rule that includes the passback comments in the

m argins of the document and EPA’s response. The majority of the comments were incorporated as suggested or with minor modifications. Previous comments on the rule are marked as complete in the document so they now appear in grey in the margins. This version also includes Federal Register format edits.

The following revisions are still pending:

 Update public hearing logistics

 Include a summary of the new RIA section and request for comments

 SBAR panel recommendations in the IRFA summary

Please let me know i f you have any questions or concerns with the attached materials.



## Gerain Cogliano

OLEM's Regulatory Steering Committee Representative

Policy and Regulatory Management Team Leader Policy Analysis and Regulatory Management Staff (PARMS) Office of Program Management (OPM) Office of Land and Emergency Management (OLEM)

EPA West Room 4130 Phone Number: 202

- 566

- 1929 Fax Number: 202

- 566

- 1934 Mail Code: 5103T cogliano.gerain@epa.gov

For ADP information: http://intranet.epa.gov/adplibrary http://intranet.epa.gov/olem/policy/index.htmAttachment: EO 1 2866 Interagency Comments RMP3_EPA response.docx



## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

2 1. T his 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.

Change incorporated.

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

propose d 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).

Change incorporated.

3. On the st ate 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 t erm 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.

Change incorporated.

4. All of EPA’s changes to the OSHA insert on feasibility are acceptable, except on the 5th line where EPA changes “In the enforcemen t context” to “In this enforcement context.” “The” is important here, because feasibility has different meaning in other contexts under the OSH Act, especially rulemaking.

Change incorporated.

5. Page 30, edit: EPA is proposing to modify the definition of ca tastrophic release to be identical to the definition of reportable accidents. Under the new proposal, a catastrophic release also

mean s

...

Changes incorporated with modifications.

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 r equirement to provide sound independent advice

. ”

Change incorporated with modifications.

## Summary of Interagency Working Comments on Draft Language under

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

3 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.

EPA added preamble language requesting comment on this concern.

8. Page 81, Meaning of STAA: Comments are specific to section C, Safer Technologies Assessment
and Alternatives. Section C is addr essed 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

Cente r 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 sepa rate 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 broad er 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 th ink, 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).

EPA agrees with the comment “the challenge will be some of th e processes that improve security may actually impede safety, and the reverse...” EPA has already acknowledged this tension in the preamble. In the IST discussion on page 85 we state:

“Because an option may be inherently safer with regard to some hazards an d inherently less safe with regard to others, the decision process must consider the entire life cycle, the full spectrum of hazards and risks, and the potential for transfer of risk from one impacted population to another.”

Later in the same section:
“Few technologies will be inherently safer with respect to all hazards, and other approaches will usually be required to manage the full range of hazards and risks. As an example, the [DHS] report points out that an IST with respect to a catastrophic release h azard may conflict with methods to minimize other hazards, such as theft or diversion of materials , contamination of product, or degradation of infrastructure. It may not address other hazards at all, or it may
create new hazards.” (emphasis added)

Here EPA is specifically referring to the DHS report prepared by CCPS, and we clearly highlight DHS’ concern.

## Summary of Interagency Working Comments on Draft Language under

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

4 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 acc ident 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 change s 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 feasib le to implement for their particular process.”

Change incorporated with modifications.

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, economic ally 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 red uction 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 cl arity, 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.

Thank you for the clarification. EPA believes that each of the factors listed in the current proposed definition of feasibility should be considered within the perspective of practicability (including economic considerations). Identifying two nuances for economic factors may raise concerns and confusi on for stakeholders. Furthermore, the term “not inconsistent” is not plain language. There are no proposed requirements to implement feasible options. EPA is requesting comment on the proposed definition.

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 upda tes 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.

EPA added a request for comment on this suggestion. See page 144 of the preamble.

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 pr ocedural 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 locat ed: “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 Inherentl y Safer Design alternatives.”

## Summary of Interagency Working Comments on Draft Language under

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

5 Change incorporated with modifications

.

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

Change incorporated.

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.

Change incorporated with modifications. EPA also added additional discussion to clarify
that the int ent of the proposed changes is clarifications.

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

. This illustrates the issue better. These examples are act ually 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 s ubstance. Near misses could also include releases from relief valves, interlocks, blowdown systems and rupture disks.

Change incorporated with modifications.

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

.

Change incorporated.

17. Pag e 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 ap proach

.

Change incorporated.