United Steelworkers Comments to **Docket ID Number**  **EPA -** **HQ -**  **OEM -** **2014 -**  **0328 Accidental Release Prevention Requirements: Risk Management Programs Under the**  **Clean Air Act, Section 112(r)(7); Rule Modernization Under Executive Order 13650; Request for**  **Information**
October 29, 2014
The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) represents approximately 3 0,000 workers in the petroleum and chemical industry and hundred s of thousands of men and women whose workplaces use and store large quantities of industrial chemicals. Our members are well aware of the hazards and the potential for widespread damage to critical infrastructure and the communities where they work and live. USW members are the highly

skilled and highly

- trained workers who operate and maintain oil and chemical facilities. They would be hurt first and worst when employers and regulations do not do enough to prevent catastrophic releases and explosions. It is for this reason that our union strongl y supports President Obama’s Executive Order 13650 on Improving Chemical Facility Safety and Security

. USW believes that strong government standards are necessary to protect against catastrophic incidents. Updates and additions to the agencies’ standards should not rel y on voluntary recommendations for industry

. Our members’ experience with voluntary initiatives is that they do not work. Too many facilities opt out and leave workers and communities at risk. **Update t** **he List of Regulated Substances** There are other potentially hazardous substances that are not covered by acurrent standard that could be well served by inclusion into the risk management plan (RMP ) process. S ome explosives, including ammonium nitrate and combustible dusts which are both highly hazardous substances and need to be regulated to a higher degree than is currently on the books. Reactive substances are another hazard that should be covered on the list of chemicals. Reactive chemicals have been an issue for many years. Labor unions petitioned OSHA in 19952

and again in 2003 to take action on these chemicals by c losing loopholes in process safety management (PSM) . The Chemical Safety B oard has also recommended that OSHA extend PSM coverage and EPA extend RMP coverage to include reactive chemicals. USW agrees with this recommendation. The agencies should harmonize the lists of chemicals that are covered under each agency ’s policies. The EPA’s RMP list of Regulated Toxic Substances contains 77 toxic chemicals and 63 flammable substances. OSHA’s PSM Programs lists 137 chemicals considered Highl y Hazardous, Toxic or Reactive. Currently, too many dangerous chemicals are not listed and therefore are not reportable under RMP. An example of one such chemical is 1,2

- Butadiene. While its close cousin, 1,3

- Butadiene, is reportable under EPCRA 313 (TRI) and by definition, under the Process Safety M anagement standard, it is not listed as an RMP chemical. The threshold quantity

f or some chemicals should be reviewed to see if they are currently

too high and that a lower quantity value makes more sense because of the potential for catastrophic events from a smaller amount of the substance. **Define and**  **Require Evaluation**  **of Updates**  **to Applicable**  **Recognized and**  **Generally Accepted Good Engineering Practices (RAGAGEP)**  This continues to be an issue with industry and the regulators; what constitutes RAGAGEP? This needs definition s o that everyone understands what it means and then it can be a practice that may help improve industry

. A repository

of RAGAGEP references should be maintained by the regulator so companies have an up to date list. The RMP should be amended to include a clear definition of RAGAGEP; engineering, operation, or maintenance activities based on published codes, standards, technical reports or recommended practices or similar documents, including, but not limited to published consensus standards, codes and guidelines developed by the American In stitute of Chemical Engineers (A IChE), American National Standards Institute (ANSI), American Petroleum Institute (API), American Society o f Heating, Refrigeration, and Air Conditioning Engineers (ASHRAE), American S ociety o f Mechanical Engineers (ASME), American Society o f Testing and Materials(ASTM), Center for Chemical Process Safety (CCPS), National Fire Protection Association (NFPA), and Instrument Society of America (I SA). RAGAGEP should specifically identify no grandfathering. If a piece of equipment needs repairs or replacement, it must comply with current RAGAGEP, not the RAGAGEP at the time it was originall y installed. **Extend Mechanical Integrity Requirements To Cover Any Safety -**  **Critical Equipment** The scope of RMP should be expanded to cover the mechanical integrity of any s afety

- critical element. Itcurrentl y covers pressure vessels, storage tanks, piping systems (including valves),3

relief/vent systems and devices, emergency shutdown systems, controls (including monitoring devices, sensors, alarms, interlocks) and pumps. A necessary

expansion should include all safety critical equipment such as all components of a safety integrated system (SI S) and defined so as to not allow exceptions. This may include what are normall y considered utilities (steam, water, air, nitrogen lines for example) as these systems are required to operate to maintain the stability o f the facility

. Itshould also be expanded to firefighting water lines and fire suppression equipment, whi ch are currently not covered, along with electric sources, lines and backup generators, motor control centers, distributed control system ancillary

buildings, cables, and control centers. This expanded coverage would help ensure that systems designed to protect the workers and equipment is in fully

operational condition and this in turn protects the communities from catastrophic events. **Require Owners and Operators To Manage Organizational Changes** Organizational changes can have as significant an impact on operational changes as an equipment modification, or design change. All aspects of an operation should be managed to safeguard against every possible system failure that may l ead to undesired consequences. Not having enough personnel to adequatel y operate a process is a failure. Not having the correct or necessary personnel involved is a failure. Just as you do a review for any change not in kind for equipment you should also do a review for any changes in personnel. This includes changes in duties or responsibilities as well as changing numbers of personnel. The employer should be required to develop, implement and maintain written procedures to manage organizational changes prior to reducing staffing levels or making other changes that could affect safe operation of the process . The areas to which these procedures wi ll appl y include, but are not limited to, operations, engineering, maintenance, health and safety, and emergency

response. This requirement will also appl y to employers using contractors in permanent positions.

 Issues to be addressed include the experience levels of employees involved in the process before and after the proposed change, in order to ensure that the change will not compromise employee health and safety, the safety o f operations and maintenance and the effectiveness of emergency operations and response.
 The rationale for the decision to implement or not implement the change; and the actions required to make the change. Identify the makeup of the team responsible for assessing the proposed change and the factors to be evaluated by the team.
 Prior to conducting the assessment, the employer wi ll ensure that the job function descriptions are current and accurate for all positions potential ly affected by the change.4

**Require Third -** **Party Compliance Audits** In principle, we support the consideration by EPA of the use of third party s ystems to conduct RMP audits under the standard. W e believe that the following requirements are necessary to insure safety:

 EPA should require that RMP’s be audited by accredited auditing organizations. Criteria for accreditation should be issued by EPA and subject to notice and comment.
 Auditors should have to apply for accreditation and their applications should be subject to notice and comment.
 When a third party

a uditor is chosen for a workplace that has an authorized employee representative, EPA should require that the auditor be chosen from among accredited auditors by

mutual agreement between the employer and the employee representative.
 EPA should provide a mechanism for employees and their representatives to review the findings and give employees and their representatives the opportunity to raise any concerns or questions they may have with the audit. The auditor wi ll be required to provide a written response to employee or employee representatives’ questions to audit findings (or lack of findings) as a condition of maintaining certification and in certain cases to return to a facility to re - examine hazards that employees have alleged were overlooked.
 EPA should provide a mechanism for the community to review the findings and ensure the community

does not have unanswered concerns . Onc e such mechanism would be to require the auditor to provide a written response to community questions to audit findings (or lack of findings) as a condition of maintaining certification and in certain cases to return to a facility

to re
- examine hazards presented by the community

.  EPA should prohibit auditors from having other relationships with the same employer. For example the employer should be prohibited from hiring auditors who have previousl y been consultants or contractors because they would b e in the position of evaluating the work they

had previously

done for the employer. The auditor should be prohibited from being a consultant or contractor to the employer after the audit because this could provide an incentive to find hazards that the emp loyer would have to pay them to fix.
 Where EPA discovers, by investigating a catastrophic event, or some other means that an auditor failed to identify

a crucial hazard, the auditor should lose its accreditation until it can demonstrate that the problems that led to the failure have been corrected. Third party

a udits can give the perspective of an ‘outside view’ but can also turn into a ‘cottage industry ’ to satisfy

a requirement. C are needs to be given to designing the process so that the audits do not j ust serve to fill a requirement but to discover and identify shortcomings that can be remedied. **Safer Technology and Alternatives Analysis** The EPA has the ability

to enforce inherently

s afer technology

( IST) now under section 119 of the Clean Air Act. Require, whenever feasible, the maximum use of inherently s afer chemicals, technologies and processes. D ocument how facilities have considered IS T, whether or not it has been implemented and the reason why or why not.5

The use of IST should be encouraged through economic incentives to companies who look for alternatives that reduce the threat of a catastrophic event to the community a s well as workers and the facility . A repository of potential substitute materials and alternative processes should be maintained so companies would have a resource to reference for review of latest technologies. The USW supports the chemical security coalition letter sent to EPA in July o f 2012 and is encouraged by

the agencies willingness to take more comment, but frustrated to see this process spread over such a long timeframe. In its simplest form, IS T is the reduction of a potential hazard. It should be at the top of every facilities list. Safer alternatives include methods that reduce or eliminate the potential for death, injury, or serious adverse effects to human health or the environment of a worst
- case release of a substance. Methods that achieve this obje ctive may include: alternate substances, formulations, and processes; modification of pressures, temperatures, or concentrations; and the reduction or elimination of handling of a substance through improvements in inventory c ontrol or efficiency

. A safer alternatives analysis should require covered facilities to review methods that reduce the potential for death, injury, and serious adverse effects to human health and the environment that the facility

i dentified in its off

- site consequences analysis and that are generall y recognized as available in the facility ’s industry

. The anal ys is should include: the degree to which each method could reduce the potential consequences for death, injury, and serious adverse effects to human health, infrastructure, and the environment; the technical feasibility, costs (including capital and operational costs), avoided costs (including savings and potential liabilities), personnel implications, and applicability o f implementing each available method; and any other informati on that the owner or operator of the covered chemical facility considered in conducting the assessment. There are many examples of successes and current regulations having some impact but a requirement needs to be established mandating facilities to estab lish a process to conduct an anal ys is of safer alternatives as a routine component of their Risk Management Plans. EPA should view the RMP program as a source of information on solutions that are developed through the responsibilities of covered facilitie s to demonstrate knowledge of their processes and common alternatives. EPA should not await or rely on any external expert compilation of alternatives; rather, the RMP program should generate the solutions. **Incident Investigation and Accident History Req uirements**  In cident investigations can be a valuable tool for learning from lagging indicators. The goal should be identifyingand correcting all root causes so that the event or a similar one cannot be repeated. S haring the results can give a leading tool to others to identify c ontributing factors at their facility

and correct them before a catastrophic event takes place. To that end, the employer will investigate all incidents that resulted in, or could reasonabl y have resulted in, a major incident. The employer will develop, implement and maintain written procedures for promptly investigating and reporting any incident that result s in, or could6

reasonabl y have resulted in, a major incident. The employer wi ll initiate the incident investigation as promptl y as possible, but no later than 48 hours following an incident. Written procedures wi ll provide for effectivel y conducting a root cause analysis that wi ll provide information sufficient for the employer to reduce the risk of a recurrence or similar incidents. An incident investigation team wi ll be established and wi ll, at a minimum, consist of a person with expertise in the process involved; a person with expertise in the employer's root cause anal ys is method; and a person with expertise in overseeing the investigation and anal ys is. The incident investigation team wi ll also include employee and employee representatives. If the incident involved the work of a contractor, an employee of that contractor wi ll also be included on the investigation team. As a result of the investigation, recommended corrective actions wi ll be implemented by the employer to reduce the risk of a recurrence or similar incident. Recommended corrective actions scheduled for implementation wi ll be documented with completion dates. Recommended corrective actions not implemented or scheduled, wi ll be documented as to why they were not implemented or what was done to give the same level of protection. Any recommendation that is not able to be implemented promptly following the investigation wi ll have documented interim measures to assure safe operation until the fixes can be made. The report wi ll be provided to and reviewed with all operating, maintenance, and other personnel, including employees of contractors where applicable, whose work assignments are within the facility

where the incident occurred and whose job tasks are relevant to the incident findings. The report wi ll also be provided to employee representatives. In cident investigation reports wi ll be retained for the life of the process unit

. Sharing incident investigation results with the communities where they are located would be beneficial to both parties. It would help the community b etter understand not only the hazards associated with the process but also the challenges. It would also allow the operator to better understand the safety concerns of the community. **Public Disclosure**  **of Information**  **To Promote**  **Regulatory Compliance**  **and Improve**  **Community Understanding of Chemical Risks** Making unrestricted RMP information publicly available would increase compliance, as it enables communities to hold facilities accountable. The public can more readily g auge whether facilities are complying with regulatory requirements and whether safety measures are being implemented. It also gives facilitie s greater incentive to strengthen safety measures and to comply with regulations. Communities also need information on safer alternatives that can reduce or remove chemical hazards altogether. EPA should require facilities that deregister from the RMP program to provide basic information about how they were able to do so. While some facilities may h ave closed or moved, others may h ave changed chemicals or processes. Vital information on safer alternatives should not be corralled in individual company websites; it should be in organized and searchable public databases.7

**Measurements and Metrics** There is an old saying, “you don’t fix what you don’t measure”. Process safety metrics or indicators will only

diminish the number of tragic incidents if they are properly

se lected, used to stimulate improvement and result in safer refineries and chemical plants with fewer incidents and catastrophes. Properl y chosen metrics would not only include items that command our attention, but those that are the most foretelling. The refining and related chemical industries have not yet achieved a level of process safety commensurate with the risks posed by their facilities. N either have they achieved the improvements intended by OSHA and EPA decades ago. These failures continue to put workers, the communities surrounding their workplaces and the environment at unacceptable risk. They criteria for publically

reporting must low enough that the public receives relative information on incidents and near misses which have an impact on the community

. If events do not meet the reporting criteria, they will not be investigated or even identified as an event. Opportunities to learn will be lost. Opportunities to identify other potential areas of concern will not occur. Unnecess ary risks will remain. The next time this ty pe of event is investigated may be after a catastrophic failure or loss of life. The opportunity to learn from a leading indicator will have turned into a tragic lesson learned from a lagging indicator. Transparency

i s an issue. S erious events taking place in the nation’s petrochemical industry are not being reported to key stakeholders as identified by a C SB recommendation (“create performance indicators for process safety in the refinery and petrochemi cal industries”, [CSB2005

- 04

- I

- TX

- R6b]) following the BP Texas City refinery explosion and fire. It is an unspoken guideline that what happens inside the fence at a refinery stays inside the fence. It isn’t publically

reported. There are numerous fire s and spills each ye ar that are not reported because no one outside the facility i s aware of them. When the public can see flames climbing higher than the distillation column that is burning, it is difficult to say nothing happened. When a fire is on a s eal or pump or an electrical fire, no one except those inside the facility know anything about it. There is a need of external pressures to move the refining industry to improve unsafe conditions. One of the elements that will contribute to improving s afety in these facilities is public pressure. We have seen it with other industries; airline and nuclear for example. Public pressure drove those two industries to be under the auspices of a separate government regulating authority

. The public demanded that those industries be operated in a safe manner, one that protected the public. And it came from events that raised the public’s awareness and they demanded something be done. Neighbors have to be able to identify the facility

n ext to them so they c an determine if it is working to improve or not. B linded metrics data that do not identify af acility do not enable stakeholders to recognize facilities with issues that may c oncern them. Abroad, unidentified look at the industry

will not be a driver for improvement. M etrics data need to be publicl y reported in a format that is easily accessible and identifiable. If the public was aware of the number and amount of hazardous chemicals released as well as the number of equipment failures8

and fires that had the potential to get much worse and affect the public, they would put pressure on the industry

to do a better job with process safety

. Without public scrutiny we would not have seen the recent change in offshore regulations. Public pressure is a direct cause of the restructuring of government oversight of that industry

. The refining industry

needs that same kind of pressure. **The “Safety Case” Regulatory Model** The safety case needs a well

- qualified, full y funded regulator to review and evaluate the c ompany written plans. W e do not have the regulatory work force required to operate in this manner, nor is that a reality in the near future. Italso requires a flexible and fast acting regulatory

process that can make necessary r ule changes in an expeditious manner. That has not been the case in the U.S. and it does not appear that it will change anytime soon. There are elements of the safety case that could be written into existing U.S. regulations to bolster the safety in our highl y hazardous facilities. The revised PSM rules being developed in California have some safety c ase like elements included in the draft. Whether these rule changes are made or not, the number of compliance offers must be increased and their qualifications in PSM must be improved. **Training and Engagement of Workers and Communities Must be S**  **trengthened** The involvement of facility employees is critical to ensuring that stakeholders with much at risk and deep experience and knowledge are full y engaged in planning and implementation to protect our nation's infrastructure. Workers and their representatives need to have the right to participate in inspections and alternatives assessments. Both workers and communities must have adequate education and training to participate in and review alternatives assessments, and participate in inspections and decisions. All too often, workers are at jeopardy for voicing an opinion that differs from their supervisors’ opinion. Therefore EPA must adopt strong protections for whistleblowers , including increasing the time limit for reporting a complaint

. The employees that participate in Process Hazard Anal ys es (PHA) and on inherently s afer technology teams must have specific knowledge and experience in the process. We recognize the importance of the workforce to identify chemical hazards and understand safe work practices. However, specific training on proces s safety and risk management are an essential underpinning of the larger system of safety, particularly m ethods that are trul y preventative. EPA must ensure worker competencies to understand all component elements of the RMP, including the advanced capacity to competently p articipate in process hazard assessments and safer alternatives assessments. Future training priorities must include building worker and community c ompetencies to participate in safer alternatives assessment and the implementations of safer alternatives. This review must include front line workers and their representatives.9

As a model, here is language from the draft of the California revised PSM standard: (1) Initial training. Each employee involved in the operation or maintaining of a process, and each employee prior to working in a newl y assigned process, shall be trained in an overview of the process and in the operating procedures, as specified in subsection (f). The training shall include material on the specific safety and health hazards, procedures, and safe practices applicable to the emplo yee's job tasks. (2) Refresher and supplemental training. At least every three ye ars, and more often if necessary, refresher and supplemental training shall be provided to each operating or maintenance employee and other employees in order to ensure safe operation of the facility

. The employer, in consultation with employees involved in operation or maintenance of a process, shall determine the appropriate frequency and content of refresher training

. (3) Training certification. The employer shall ensure that each employee involved in the operation or maintenance of a process has received, understood and successfull y completed training as specified by this subsection. The employer, after the initial or re fresher training, shall prepare a certification record containing the identity o f the employee, the date(s) of training, the means used to verify that the employee understood the training, and the signature(s) of the person administering the training. (4) The employer shall establish and implement employee testing procedures to ensure competency

in job skill levels and work practices that protect employee safety and health. Respectfully submitted

Kim Nibarger , USW H&S Specialist