VIA EDOCKET

October 29 , 2014

OSWER Docket

EPA Docket Center

Mailcode 2822

– 1T Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

Attention : Docket ID No. EPA

– HQ

– OEM

- 2014

- 0328

RE: Request for Information Regarding Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

Dear Document Control Officer:

The Society of Chemical Manufacturers and Affiliates (SOCMA) is pleased to offer the following comments concern ing the Agency’s recently proposed request for information ( RFI ) on potential revisions to its Risk Management Program regulations and related programs

. 1

SOCMA is the leading trade association representing the specialty batch and custom chemical

manufactu ring industry. SOCMA’s more than 200 member companies make the products and refine the raw materials that make our standard of living possible. From pharmaceuticals to cosmetics, soaps to plastics and all manner of industrial and construction products, S OCMA members make materials that save lives, make our food supply safe and abundant, and enable the manufacture of literally thousands of other products. Over 70% of SOCMA’s active members

are small businesses.

ChemStewards ® is SOCMA’s flagship environmental, health, safety and security (EHS&S) continuous performance improvement program. It was created to meet the unique needs of the batch, custom, and specialty chemical industry, and reflects the industry’s commitment to

re ducing the environmental footprint left by members’ facilities. As a mandatory requirement for SOCMA members engaged in the manufacturing or handling of synthetic and organic chemicals, ChemStewards is helping participants reach for superior EHS&S perfor mance.

As an organization represent ing well over 200 companies that may be directly affected by actions resulting from President Obama’s August 1, 2013 Executive Order addressing chemical facility safety and security (EO 13650) , SOCMA has actively engaged in the processes generated by that EO. For example, we met multiple times with the Working Group established by the EO,

1 7 9 Fed. Reg. 44604 (J uly 31 , 201 4 ).2

and we submitted comments on the OSHA Process Safety Management (PSM) RFI at the end of March. Any regula tory or policy changes emerg ing from th e current notice and any subsequent rulemaking steps have the potential to dramatically affect the processes, productivity, and growth of many of our member companies. Thus, SOCMA views EPA’s RFI with great interest and appreciates the opportunity to address several of the topics and questions raised by EPA

.

The following comments begin with SOCMA’s overall concerns and recommendations regarding this rulemaking. We then turn to eight of the twelve issues on which E PA, but not OSHA, sought comment. Finally, we address the issues on which OSHA also sought comment.

I. Overall Concerns and Recommendations

SOCMA has several overall concerns with how EPA appears to be approaching many of the topics in question:

 Most gene rally, we question why EPA is aggressively pursuing this rulemaking, given OSHA’s related activity on PSM and the fact that the Executive Order did not specifically direct the Agency to publish an RFI. 2 In fact, the degree of overlap and occasional conflict between the PSM and RMP RFIs only adds to confusion on these matters and decreases regulatory certainty.

 Given th e close relationship between PSM and RMP , EPA writes that it “ha[s]

coordinated clos ely” with OSHA, and that the two a gencies have sought “to minimize regulatory burden and avoid conflicting requirements for regulated facilities.” 3 We contend that several of the possible actions EPA is considering directly contradict those professed goa ls. EPA has solicited comments on twelve issues in addition to those raised by OSHA, and most of the reported accidents discussed in the preamble had no offsite consequences. The inevitable implication is that EPA is trying to “one

- up” OSHA. EPA

is cert ainly moving much more quickly than OSHA can.

 EPA has n o t convincingly demonstrated t hat anything is wrong with the current RMP regulation s. EPA has not provided any evidence that current systems, procedures and reporting under the regulations are unreliable or are not adequate

. The explosion at the

West Fertilizer plant may illustrate failings in the implementation of the Emergency Planning and Community Right

- to

- Know Act (EPCRA) or with OSHA’s interpretation of its explosives and blasting age nts standard, but it does not indicate any shortcomings with the RMP program.

 EPA ’s proposals would exceed its statutory authority in some areas, and would encroach

on OSHA’s in others.

 Some changes being considered, if proposed and adopted, will likely be very costly and drive business offshore. One member writes that training to manage the RMP program costs at least $5,000 per employee, and occasional refresher training only increases costs further. Such expenses are particularly significant for small and medium

- sized

businesses. With changes to RMP, PSM and CFATS all coming in relatively rapid

2 By contrast, the E.O. did require OSHA to publish an RFI. See E.O. 13650 § 6(e), 78 Fed. Reg. 48032 (Aug. 7,
2013).

3 79 Fed. Reg. 44605.3

succession but at different times

, the ir cumulative impact could be substantial. Facilitie s run the risk of having to change the same process three times, as each of these rules is

finalized.

 Similarly, SOCMA questions how EPA could find the staff resources to do some of the things on which it seeks comment, particularly reviewing safety case s ubmissions.

 The changes discussed in the RFI would also certainly consume company resources currently used for voluntary risk reduction efforts

.

 EPA’s transparen cy proposals are e xcessive , would create unintended consequences, and

risk disseminating confidential business information.

 “One s ize d oes not fit all.” EPA ’s proposals do not adequately recognize that different facilities confront vastly different circumstances and that the justifications cited for making certain changes may be completely inapplicable to many of these facilities. This

is particularly true of batch vs. continuous process facilities.

 A prescriptive requirement in RMP for having certain metrics could be difficult to implement and may or may not add value , as wh at works well for some p rocesses or

p lants may no t work well in others

.

SOCMA urges EPA to fundamentally reconsider its RMP rulemaking:

 EPA should focus exclusively on topics within its statutory jurisdiction for which it has

evidence that the current rules are not operating as intended. Rather than create new regulatory obligations, the Agency should consider non

- regulatory actions that could actually help increase process safety, such as (i) promoting the development of better process safety metrics (i.e., lea ding, rather than lagging, indicators) ; (ii) facilitating the

creation of a reactive hazards database ; and (iii) issuing guidance

.

 As required by Section 112(r)(7)(D) , EPA should actively engage with OSHA to
harmonize their RMP and PSM efforts, so that the RMP rule even more “closely tracks” the accident prevention measures contained in the PSM standard and becomes even more “closely aligned in content, policy interpretations, Agency guidance and enforcement.” 4

T he best way for this to occur would be for E PA and OSHA to issue any proposed and final rules concurrently.

II. Specific Issues Not Raised in the OSHA RFI

A. Safer Technology and Alternatives Analysis

The subject of promoting risk reduction through safer technology and alternatives is one which

SOCMA has commented on at length, most recently in the comments we submitted to OSHA on

March 31 5 , and which we attach to these comments. As we noted in our March 31 comments, “[ u ]nder ChemStewards, SOCMA member companies regularly consider ways of making

4 Id.

5 SOCMA Comments filed March 31, 2014 re (i) Executive Order 13650, Section 6(a)

– Solicitation of Public Input on Options for Policy, Regulation, and Standards Modernization (Docket OSHA

- 2013

- 0026) and (ii) Process Safety Management and Prevention of Major Chemical Accidents; Request for Information, 78 Fed. Reg. 73756 (Dec. 9, 2013)

, 79 Fed. Reg. 13006 (Mar . 7, 2014) (Docket OSHA

- 2013

- 0020)

.4

processes as safe as possible, particularly at the design stage.” But, as we stressed , “ while inherent safety is a superficially simple concept, it is truthfully very complex and inherentl y unsuited to regulation. Mandatory [ inherently safer technology ] would wreak economic havoc on regulated facilities.” We remain fervently opposed to any imposition of mandatory IST.

SOCMA previously pointed out that

IST is a process

- relate d engineering concept, not a security one. It is based on the premise that, if a particular chemical process hazard can be reduced, the overall risk associated with that process will also be reduced. In its simplicity, it is an elegant concept, but the r eality is almost never that simple. A reduction in hazard will reduce overall risk if, and only if, that hazard is not displaced to another time or location, or result in the creation of some new hazard. Any IST mandate is bound to create situations

that w ill actually increase or transfer overall risks

.

We continued,

Inherent safety is only successful if the sum total of all risks associated with a process life cycle is reduced. This is rarely a simple calculation, and to some extent it is an irreducibly subjective one (e.g., how does one balance risks of explosion with cancer risks, or the welfare of facility workers vs. that of people living along transportation routes?). “Simple” reduction in hazard may not necessarily result in a reduction of overall risk, and a poorly constructed or incomplete analysis could result in a “safer” alternative producing more harm than good. That is why government agencies and experts who really understand inherent safety have consistently opposed giving government the po wer to mandate it. 6

Furthermore, we noted that

Before agencies could require even consideration of inherent safety, they would need to establish (or adopt) methodologies to compare various alternatives from the standpoint of inherent safety. While it may be feasible to develop a technical consensus me thodology for measuring and comparing inherent safety, none exists at present.

We also p ointed out that EPA had previously declined (during the Clinton Administration) to require facilities to conduct “technology options analyses” to identify inherently safer approaches, even after having been asked to do so. In language repeated in the RFI, 7 the preamble to the 1996 final RMP stated that:

PHA teams regularly suggest viable, effective (and inherently safer) alternatives for risk reduction, which may include featu res such as inventory reduction, material substitution,

6 For example, see the recent testimony of Scott Berger, of AIChE’s Center for Chemical Process Safety, submitted
to the Senate Environment & Public Works Committee on March 6, 2014, available at http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=87b37cc0

- ca9a

- 4510

- 9cd1

- 0866716b9066.

7 See 79 Fed. Reg. 44620 (quoting 61 Fed. Reg. 31674, June 20, 1996).5

and process control changes. These changes are made as opportunities arise, without regulation or adoption of completely new and unproven process technologies

. . . . EPA does not believe that a requirement that sources conduct searches or analyses of alternative processing technologies for new or existing processes will produce additional benefits beyond those accruing to the rule already. 8

SOCMA believes these statements are as true today as they were eighteen years ago.

Significantly, to EPA ’s credit, the RFI discusses the leading authorities on the subject of inherent safety and fairly repeats the ir explanations of the many difficulties involved with attempting to regulate it. T he Agency cites the July 2010 Department of Homeland Security report “Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use

, ” 9 which is the Federal government’s most definitive statement on the topic of IST . The DHS Report explains

that that what is “inherently safer” for some hazards might simultaneously be inherently less safe

for others. The R eport also note s that “there is currently no consensus on either a quantification

method for IST or a scientific assessment method for evaluation of IST options.” 10 The RFI

quotes s imilarly from the 2012 National Academy of Sciences report on “The Use and Storage of Methyl Isocyanate (MIC) at Bayer CropScience,” which concludes that, while inherently safe r process assessments can be valuable in managing process safety, these assessments “will not always result in a clear, well

- defined, and feasible path forward. ” That r eport actually found that “[a]lt hough one process alternative may be inherently safer with respect to one hazard...the process may present other hazards.” 11

The RFI also recognizes that “the varying amount and quality of information available regarding” implementation by industry of safer technologies and alternatives complicate s the assessment of those technologies. Facilities which have not converted to safer processes

may not have sufficient information available 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. 12

EPA appropr iately discusses the only state government which has included inherent safety requirements in its regulations : the NJ T oxic C atastrophe P revention A ct (TCPA) p rogram. A 2010 report by the NJDEP indicated that of 85 IST reports, “approximately 48% of facil ities reported that they had implemented or scheduled to implement IST measures as a result of conducting the IST review.” What the report does not indicate, however, is how many chemical

manufacture r s moved their operations out of state or overseas due t o the IST mandate

. SOCMA’s New Jersey members, many of whom have extensive experience with TCPA, strongly urge EPA not to emulate the New Jersey experience.

8 61 Fed. Reg. 31699 (June 20, 1996)(emphasis added).

9 Available at h ttps://www.aiche.org/sites/default/files/docs/embedded

- pdf/ist_final_definition_report.pdf.

10 79 Fed. Reg. 44620.

11 Id. at 44621.

12 Id.6

O ur members report that the TCPA process i s only as effective as the qualifications and

e xperience of the individuals on both sides of the table. Our members who a re subject to the New Jersey regulation describe scenarios which feature discussions with state officials only about what they read or heard about mo st recently. In testimony before the House Homeland Security Committee, a SOCMA member stated flatly his company’s assessment of the TCPA process as “essentially a paperwork exercise to document, in great detail, steps and

considerations that we take as a normal part of our process.” 13

In conclusion, SOCMA believes that EPA got it right in 1996 : the process hazard analysis requirement of the RMP rule already leads facilities to consider safer alternatives and to implement them when it makes sense to do so

– and so n ew regulatory requirements to consider inherent safety are not necessary . In its May 2014 Report to the President, the Chemical Facility Safety and Security Working Group s aid it would issue an alert on safer technology and alternatives and would work with industries to publicize best practices until May 2015. It also

said that prior to the end of 2016, it would develop v oluntary guidance to make chemical

operators more aware of safer technology, processes and alternative solutions to reduce the

overall risk of their facilities. 14 SOCMA urges EPA to continue to work with the OSHA and DHS to implement these action items. The three agencies should also reach out to the AIChE Center for Chemical Process Safety and the Mary Kay O’Connor Process Safety Center, the leading industry and academic centers of expertise on process safety.

B. Automated Detection and Monitoring

SOCMA has several s erious concerns about potential new or expanded requirements for automated detection and monitoring systems . M any of these we have previously expresse d in

our comments on two rules proposed by EPA in 2012: the National Uniform Emission Standards for Storage Vessel and Transfer Operations, Equipment Leaks, and Closed Vent Systems and

Control Devices (the “Uniform Standards” rule), and the NESHAP for Grou p IV Polymers and Resins; Pesticide Active Ingredient Production; and Polyether Polyols Production (the “3 P’s” Rule). T he proposed Uniform Standards rule included a dramatic expansion of instr umental monitoring requirements that our members found to be t he most potentially costly feature of the

new rule and of greatest concern. A mong other provisions, the rule included requirements for:

 sensory monitoring ;

 Method 21 monitoring of open

- ended valves and lines upon installation, annually, and as requested ;

 m onitoring equipment operating less than 300 hours per year ; and

 monitoring closed vent systems that are “difficult to inspect” annually

.

Additionally, the proposal contained several costly expansions of scope, especially including

r equired monitoring fo r pressure relief devices (PRDs). The 3 P’s rule had similar elements.

13 Oral statement of David C. Pulham, Ph.D, Director of Compliance, Siegfried (USA), Inc., on the Chemical Facility Anti

- Terrorism Act of 2008 (Feb. 26, 2008).

14 Executive Order 13650

— Actions to Improve Chemical Facility Safety & Security

— A Shared Commitment (May 2014), at xvii.7

As we explained in both cases, th e proposed new detection and monitoring requirements are largely unnecessary for batch operations

. They w ould also impose a significant financial bur den

on SOCMA members

– particularly sma ll and medium sized businesses

– and cannot be uniformly imposed on the widely varying universe of batch and specialty chemical facilities.

1. Automated Detection & Monitoring Is Not Needed Generically for

Batch Manufacturing

The nature of our industry reveals why we objected so vociferously to required monitoring for

PRDs

. As we wrote previously :

SOCMA’s member companies typically operate much smaller facilities that produce high

- value products in discrete batches. It is far less likely that pressure relief events at such facilities would even occur, that they would not be identified and controlle d promptly if they did, or that they would, as a result, produce large HAP emissions. 15

Automated monitoring and detection technology is generally designed with large continuous manufacturing processes in mind. It is far less appropriate for small batch processes, which are what SOCMA’s members operate. By the very nature of batch processes, operators frequently open them to add or remove materials , and p rocess instrumentation generally provides alerts for any significant releases. Any significant release from a pressurized system, for example, would cause a drop in pressure that would be immediately detected by pressure monitoring equipment. Unlike large continuous systems, small systems cannot leak very much without that loss of

m aterial impairing the operation or at least being noticed very quickly by the process operator. Expensive monitoring and detection technology is not justified or necessary for such systems.

Moreover, a utoma ted mon itori ng is already required by the Leak Detection and R epair ( LDAR ) provisions of multiple MACT and NSPS rules , as well as many Title V permit s

. Thus, in those

instances where it makes the most sense to require automated monitoring for particular types of processes or particular facilities, EPA and states have required it , or have the power to do so. Such a reasonably tailored approach increases the likelihood that required monitoring is necessary and appropriate , and is preferable to a generic requirement imposed via the RMP rule

.

2. Financial Impact

– Uniform Standards Case Study

In our 3 P’s comments, we said: “Given that pressure relief events are a less significant environmental issue for specialty batch and custom facilities, SOCMA believes that the PRD requirements fail from a cost

- benefit perspective, as the projected costs are particularly alarming.” Using the cost impact estimates of EPA’ s contractor as a reference, we concluded

that

the requirement would have a very adverse impact on our members, approximately 70% of whom are small businesses. To put it mildly, an initial $216,000 investment per

15 SOCMA comments on Group IV Polymers and Resins; Pesticide Active Ingredient Production; and Polyether Polyols Production Comments, p.2 [emphasis added].8

facility

– combined with the subsequent $ 27,000 in annual operation and maintenance costs per facility

– is a significant financial burden.

By way of example, there would be an even greater impact on one SOCMA member ’s facility

. That facility estimate d capital costs for 57 required monitors as being $1.14 million ($20,000/monitor x 57 monitors), and annual operating costs to be $57,000 ($1,000 per monitor).

We note that those figures do not even include the annual recordkeeping and reporting labor hours and costs per facility, and stress the impact th at this requirement will have on even smaller companies.

Th e burden will be magnified even further

– perhaps significantly

– for those companies with

more than one facility. And

, of course, the costs of these new requirements must be considered

in the context of the cumulative costs of complying with other regulations as well

.

As a result of MACT standards and Title V permits, many SOCMA m embers have first

- hand experience with automated monitoring and detection s ystem s . FTIR systems, for example, were described as a “very difficult technology to handle,” and our members have had a variety of

other problems simply trying to operat e the system s

. These difficulties only compound our members’ already high operating costs.

3. One Size Does Not Fit All

The RFI admittedly recognizes what SOCMA has just explained: “the need for and appropriate development of such systems is likely to be highly site

- specific, and

. . . facilities may already have appropriate incentives to deploy such systems where warranted and cost

- effective.” 16 EPA also acknowledges that they may be costly, and that “the decision to invest in such equipment may be influenced by many factors. For example, automated detection and monitoring technologies may not be available for particular chemical hazards, or industry standards may not

address their proper use.” 17 These statements strongly counsel against adding or expand ing detection or monitoring requirements through the RMP rule

.

C. Incident Investigation and Accident History Requirements

1. T he PSM and RMP Standards Already Require Investigation Of Near

Misses

.

The current RMP language, which parallels the PSM language, already requires facilities to

“ investigate each incident which resulted in, or could reasonably have resulted in a catastro phic

release ” of a regulated substance. 18 SOCMA believes that this requirement is adequate, and that there is no need to change it.

16 79 Fed. Reg. 44623.

17 Id

. 18 40 C.F.R. § 68.60(a) (emphasis added)

.9

The RFI presents no evidence that the current RMP language is fail ing to prompt investigation s of near misses

, nor any justification that the rule should require investigation of some broader

universe of what we will call “far

- misses

. ” EPA a sserts that in cases involving incidents that

were not investigated, “only a fortunate break in the chain of events prevented a catastrophic release of a regulated substance from happening.” But the Agency offers no explanation of h ow it knows this to be the case

. EPA also notes cases “where the facility chose not to conduct an investigation because the owner/op erator elected to deco mmi s sion the process involved, or because the process was destr oyed in the incident.” T he Agency acknowledges that an investigation “would have no impact on a decommissioned or destroyed process,” yet

nonetheless contends that other facilities “could potentially benefit from its findings. ” This is highly speculative

– EPA provides no supporting evidence that this would

, in fact

, be the case.

The Agency offers a similar ly unsupported rationale for cases whe re no investigations occurred because “there were no actual or potential off

- site consequences.” Such investigations, EPA writes, “could provide facilities with important information on what problems could lead to an incident, and allow for the facility to address them before a catastrophic release occurs.” Again, EPA provides no supporting evidence when it suggests that requiring these investigations could lead to positive outcomes. The more one broadens the u niverse of “incidents” to be investigated, the more likely it is that these investigations will yield no useful information and will simply

increase the already heavy burden on staff members who are continually striv ing to comply wi th multiple other mandates

.

It appears to SOCMA that EPA i nclude s a s “near miss es ” events where one or more layers of protection failed, and where, if multiple additional layers had failed or other events had happened, a catastrophic release could have occurred. T he regulatory standard for reporting, however, is not whether something could theoretically have resulted in a release ; it is whether it

could “ reasonably have resulted” in such an incident . SOCMA has significant concerns with the idea of broadening the incident investigation requirement to such more speculative “far

- misses.” How is the Agency going to define the new universe of incidents ? Would the standard no longer

be dependent on the magnitude of the event in question? Should all “ far misses” within a faci lity be investigate d , including those which have no connection to an RMP

- covered process? W ould

a scenario where an employee did not wear safety glasses be covered ? The Agency also needs to be careful not to capture events that, whil e appearing to be possible incidents, actually are not. (F or example, cellulosics routinely smolder, but i t certainly should not be considered a “near miss” if they do. )

Significantly, i n its earlier RFI, OSHA did not see fit to question incident investigation s or to rewrite its identically worded rule . As an association representing companies that are tryin g to comply with both OSHA’s PS M standard and RMP, we strongly believe that consistency

between the two rules is desperately needed. I f EPA is not satisfied with how stakeholders are currently interpreting the incident investigation language in RMP , the Agency cou ld issue more detailed guidance in lieu of rewriting its regulation altogether

.10 2. Near

- Miss I ncidents Should Not Be Included in 5

- Year Accident

Histories

As an initial matter, EPA lacks authority to require that 5

- year accident histories include more than actual accidents. Section 112(4)(7)(B)(ii)(I) provides that hazard assessments “shall include a previous release history of the past 5 years.” 19 To be clear : a “near miss” is not a “release.”

Further, w hile noting that “[n]ear

- miss accidents or accidents with only the potential for consequences are not required to be included” in accident history reporting, EPA offers no evidence, and cites no examples of cases, where any suggested change would have made any difference in accident prevention. Indeed, more comprehensive reporting could actually make

five

- year accident histories less informative, because they would increasingly include “accidents” that had no reasonable likelihood of being catastrophic and thus teach no useful

lesso ns.

Finally, a s we previously noted, more than 70% of SOCMA ’s members are small to medium

sized businesses. Many of the EHS&S staff for our members wear multiple hats, and are responsible for compliance with environmental regulations on a broad scale , as well as safety and security regulations. To require recordkeeping for all near

- misses would add to an already significant, cumulative burden that many of these employees are already bearing.

At a minimum, we urge EPA to avoid proposing that facilities include in a 5

- year report any incidents that the facility was not required to in vestigate

.

3. Conclusion

O ne could argue that RMP is a victim of its own success

– because process safety has improved, incidents are increasingly rare and there is not as m uch investigation or reporting as occurred in the past. Rather than lower the thresholds for investigation or reporting simply to maintain some prior level of activity, EPA should take credit for the program’s success and refrain imposing new reporting requirements

.

D. Public Disclosure of Information To Promote Regulatory Compliance and Improve Community Understanding of Chemical Risks

SOCMA agrees with EPA that “[e]nsuring that communities, local planners and local first responders have appropriate facility chemical hazard information is critical to the health and safety of the responders and the local community.” That’s why Congress enacted EPCRA, and that’s why our ChemStewards Management System (CSMS) directly addresses the issue s of

communication with external stakeholders (including neighbors, community organizations, NGOs, government organizations, the media, and the general public) 20 and emergency response

19 42 U.S.C. § 7412(r)(7)(B)(i)(I).

20 The Management System details specific guidelines for successful communication with those affected parties

, including developing “ several methods of regular communication with external stakeholders concerning facility EHS&S efforts and goals ...;[e]nsur [ ing ] that stakeholder dialogue is a two

- way process ...; assign[ing] responsibility11

planning. 21 However, we have significant concerns about attempting to serve these functions via

RMP

.

We are particularly troubled by EPA’s suggestion of providing PHAs to local authorities

. The first question to ask is how useful this would be. PHAs vary from company to company

, depend ing on the type and complexity of the process . F or b atch facilit ies in particular, PHAs can be highly complex . SOCMA seriously questions : whether most local authorities will understand highly technical PHAs ; what EPA thinks they would gain from that effor t ; and whether the desired information could not be provided much more simply and straightforwardly.

Protection of confidential business information is acute ly important to the b atch c hemical industry , which largely competes on the basis of trade secret manufacturing processes

. A “what

if” checklist is a common form of hazard analysis. Applied to a batch procedure, however, it walks the reader through a detailed step

- by

- step description of the process , essentially tell ing the

reader how to make the product the company is producing. T he individual steps of a batch procedure may have to be redacted in order to protect CBI

– thus limiting the utility of providing

PHA s to the local officials in any event

.

There is also limited val ue to making PHAs available more broadly (whether intentionally or accidently) to the public and local officials who probably will not understand or appreciate the sophisticated technical issues involved . Will the public understand how PHAs are conducted and the purpose of the information that comes out of them? Certainly, some members of the public may have an excellent understanding of what PHA s are and the information they contain , while

others might effectively have no idea what they are looking at. Our members are wary of members of the public misinterpreting the information provided. W e are particularly concerned

that members of the public will not make distinctions in ter ms of the relative improbability of various events or the scale of possible consequences, and will instead demand that facilities put

in overly complex and unnecessary safety instrument systems or other procedures to make their

batch facilities as safe as nuclear facilities . This would be unreasonable, particularly for smaller

and medium

- sized companies.

SOCMA is also worried about the willingness of the public to accept the idea of risk prioritization inherent in the PHA process

. F or example, if a facility ranks action item s by priority, as permitted by the rules, will members of the public demand that low priority items be acted upon as quickly as high priority items? It seems bad policy to have risk reduction efforts

driven in part by the outcry of a possibly uninformed public , rather than by an objective

assessment of risk by technical experts who have firsthand knowledge of a facility’s processes

and risks

.

for external communications to a specific individual ...;” and tracking all external communication. ChemStewards Management System , Chapter 3, pp. 4

- 8 (r evised 2011 ).

21 The CSMS lays out in detail an effective emergency preparedness and response program, including “how [the facility] will ensure that everyone (including new employees) knows what to do in an emergency.” It acknowledges the importance of site visitors knowing what to do in an emergency situation, and instructs employees to “[c ] ommunicate with local officials (fire department, hospital, etc.) about potential emergencies at the site and how they can support its response efforts. ” The Emergency Response Plan is expected to describe arrangements with local emergency support providers. CSMS , Chapter 4, pp. 4

- 7

.12

SOCMA is also conce rned that public disclosure of PHAs would have a potential ly chilling or standardizing effect on how PHAs are conducted. Companies might choose to omit information,

or not cover certain scenarios, that they judge to be improbable, rather than running a ri sk of alarming the public by discussing risks that are highly unlikely to materialize . This could mak e PHAs much less informative and useful. SOCMA is concerned that increased public scrutiny of PHAs will inexorably lead to calls for unrealistic “no risk ” outcomes

– which could unnecessarily increase the cost or limit the availability of the many useful products manufactured by our members

.

Again, i t is relevant that OSHA ’s PSM RFI did not raise the issue of making PHAs public. Most

facilities use the same PHA for PSM a nd RMP . Differences in how EPA and OSHA treat PHAs

could leave facilities facing contradictory directives

.

EPA spent years and a huge amount of effort in the late 1990s arguing with industry, the Justice Department and ult imately Congress about the security risks of using the Internet or public reading rooms to disseminate offsite consequence analyses and other RMP information to the public . Terrorism risks are no less real now than they turned out to be in 2001. SOCMA

me mbers do not favor reopening this same debate for PHAs and other process hazard

information . In our view, members of the public who genuinely want to obtain publicly available process hazard information about a facility can do so now if they so desi re

. Expanding the scope to PHAs or other process hazard information of technical nature with limited public

value more broadly will only make it easier to obtain this information remotely and anonymously to the benefit, mos t of all, of malefactors.

E. Additional Stationary Source Location Requirements

The RFI also raises questions about siting , both of the stationary source itself and of occupancies within the stationary source , explaining that siting “can affect the impact of an accidental

release. ” However, the RFI doesn’t acknowledge the significant problems with EPA attempting to regulate s iting under the RMP rule

.

Most important, EPA lacks statutory authority to take siting into account under the RMP program. T he Section 112(r)(1) General Duty Clause does reference “minimizing consequences

of accidental releases which do occur

. ” But the RMP rule is premised on Section 112(r)(7)

, which speaks solely of “the prevention and detection of accidental releases . . . and for response to such releases,” and says nothing about minimizing consequences. Requirements that involve simply moving facilities or processes farther away from people are not authorized by the statute (and do nothing to prevent , detect or respond to releases )

.

Similarly, Section 304(a) of the Clean Air Act Amendments of 1990 gave OSHA , and not EPA, the job of issuing rules “ to prevent accidental releases of chemicals which could pose a threat to employees

. ” 22 In contrast, Section 301 of the Amendments limited the scope of EPA’s authority

to unanticipated emissions “from a stationary source.” 23 The Amendments also instructed EPA

to consult with the Secretary of Labor . . . and . . . coordinate any [RMP] requirements . . . with

22 Pub. L. No. 101

- 549, § 340(a).

23 Id . § 301 (new 42 U.S.C. § 7412(r)(2)(A) (definition of “accidental release”)).13

any requirements established for comparable purposes by the Occupational Safety and Health

Administration. ” 24 Accordingly, SOCMA believes that any accidental r elease requirements regarding o ccupancies within a facilit y are within OSHA’s jurisdiction, and not EPA’s. EPA’s jurisdiction is limited to releases “beyond the fence line

, ” and it should avoid encroach ing on OSHA’ s jurisdiction

.

T he “one size does not fit all” caution that applies to other aspects of the RFI applies to stationary source siting as well. It is difficult to come up with stationary source siting requirement s that will work in all instances . For example, wh at might have made a difference in either preventing or alleviating the 2005 BP Texas City refinery explosions cited in the R FI might have made no difference whatsoever (or again, may have even been counterproductive) in different setting s and circumstances

– and vice

- versa

.

SOCMA also believes EPA and industry would face recurring difficulties trying to determine

what constituted a “new ” covered facilit y, based on the difficulties that concept has occasioned in NSPS and other regulator y programs.

Moreover, SOCMA notes that “ facility siting ” is already addressed in PHAs under the current

rules. 25 We respectfully urge EPA not to expand consideration of that concept under RMP any

further.

F. Emergency Drills and Compliance with Emergency Response Program

Requirements in Coordination with Local Responders

SOCMA members have long been very familiar with the topic of emergency response planning. As we noted in our response to a similar question contained in OSHA’s RFI,

Under ChemStewards, emergency response planning with local officials has always been

a f undamental business practice of SOCMA members. It is also the core purpose of EPCRA, which contains detailed requirements for facilities to notify local emergency planning committees, to cooperate with them in planning, and to file safety data sheets (or l ists thereof) and chemical inventory forms with LEPCs and fire departments. 26 The RMP program 27 and RCRA regulations 28 require many of the same things.

We highlighted EPCRA’s prominent role in this discussion, and we continue to support efforts to

make the EPCRA process work better. However, we believe that it would be bad policy to try to
twist the RMP (or PSM) program s to do what EPCRA (and RCRA) is supposed to do.

In this regard, w e previously commented that,

24 Id . (new 42 U.S.C. § 7412(r)(7)(D)).

25 40 C.F.R. § 68.67(c)(5).

26 See 42 U.S.C. §§ 11002(c), 11003(d), 11021 and 11022.

27 See 40 C.F.R. § 68.95(c) (emergency response plans under RMP; to be coordinated with community emergency response plans developed under EPCRA).

28 See id . §§ 264.37, 265.37 (coordination by hazardous wast e treatment, storage & disposal facilities with local police and fire departments, local and state emergency response teams, and hospitals).14

Given the comprehensive cooperation requirements of EPCRA and the comparable provisions in the RMP and RCRA rules, adding similar requirements to PSM strikes SOCMA as highly redundant. At a minimum, SOCMA believes it is incumbent upon OSHA to demonstrate those other regulations are inadequ ate. (OSHA should also address why it is reasonable to believe that facilities that do not comply with existing law would comply with any new law, either.)

In these earlier comments, we also focused on emergency drills specifically:

SOCMA would be concerned, for example, if there were a new PSM requirement to conduct a drill with local authorities on a specific frequency and mandated terms. SOCMA members conduct drills with local emergency response teams and in many cases, typically on an annual ba sis, but the scenario varies to provide the needed training of both organizations, for example, to conduct training for a fire, spill, or release of a

covered or non

- covered chemical. If a drill was required by PSM for a specific scenario (example, a rele ase or explosion/fire with a covered chemical) that may or not meet the requirements of the other regulations, and could require duplicative drills or exercises.

We continued,

Such duplication would not only burden facilities. The RCRA rules referenced above

state: “ Where State or local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record.” 29 This provision recognizes the unfortunate reality that, even where a facility attempts to coordinate with local authorities, in some cases those authorities simply do not respond

. For example, our members recently cited specific examples of local fire d epartments not responding to

invitations. In many cases, these are volunteer organizations with other, more pressing obligations. Many SOCMA facilities have in fact found this to be the case in trying to meet RCRA emergency response requirements. SOCMA is concerned that any additional coordination requirement imposed under PSM would only further burden such local authorities and impair existing cooperation efforts. At a minimum, the OSHA requirement would need a ‘noncooperation’ clause similar to the on e in the RCRA rules.

The same arguments, of course, apply just as well to EPA.

G. Worst Case Release Scenario Quantity Requirements for Processes Involving Numerous Small Vessels Stored Together

Many SOCMA members have strategically designed their processes so that they are not Program

3 facilities under RMP. While this may have significant efficiency costs or create lost product opportunities, these companies have concluded that the costs of Program 3 compliance are even higher. Many businesses are simp ly too small to be able to justify the necessary in

- house capability or to afford to hire consultants to conduct the more extensive Program 3 analyses

. Such decision

- making i s certainly not unique to RMP; it occurs under PSM, the Chemical

29 Id. §§ 264.37(b), 265(b).15

Facility Anti

- T errorism Standards (CFATS) , and many other regulatory regimes. What’s more, SOCMA suspects that the number of facilities that have chosen to avoid Program 3 is substantial.

S ome indication may be seen from CFATS, where DHS data 30 show that roughly as many companies have changed processes to get out of being regulated by the program th an are subject

to it.

P rogram 3 coverage is triggered wh en the worst

- ca se release of a regulated substance from a single container or other vessel would expose the nearest public receptor to a toxic or flammable endpoint . Thus, o ne of the principal ways of avoiding Program 3 is to reduce the amount of that regulated substance in a single vessel to the point where a toxic or flammable endpoint cannot reach the nearest public receptor . If EPA were to require facilities to aggregate the quantities in

co

- located vessels



### , it could dramatically affect the number of facilities covered by Program 3. The RMP rule already provides that “ any group of vessels that are interconnected, or separate vessels that are located such that a regulated substance could be involved in a potential release, shall be considered a single process 

### .” 31 SOCMA submits that this approach adequately captures the scenario of concern to EPA; i.e., where multiple small containers are stored in sufficiently close proximity that a release from one will trigger releases from others. We urge EPA not to expand the sc ope of Program 3 beyond its current form.

H. Safety Case Model

SO C MA is adamantly opposed to adoption of the “Safety Case” r egulatory m odel. EPA

concedes that adoption of the safety case approach “would require significant changes to the existing regulatory regime for chemical process safety in the United States.” 32 Put another

, more telling way, adoption of the “safety case” model would require a complet e overhaul of how EPA, OSHA and industry have address ed process safety in the U.S. A new safety case approach would require s taff at EPA and OSHA to be come much more expert in process safety

, to make more subjective decisions (including what level of risk is “as low as reasonably practicable”)

, and to take on much greater responsibility if and when they are wrong . EPA was wise to cite the vast disparity in resources, per regulated facility, between EPA and the NRC. 33

Requiring such significant changes would dramaticall y reduce the regulatory certainty that is so vitally important to industry

– and, in particular, to encouraging capital investment and job

creation. This is particularly true for small and medium

- sized b usinesses, whose resources are stretched thin to begin with , and who can less well afford to put capital at risk

. Implementation of the safety case approach would require regulators and industry alike to start over on a clean slate as they struggle to understand new and ambiguous regulatory terms as applied to particular operational situations. What does “as low as reasonably practicable” mean, exactly , in a given

case ? How does one determine what is reasonable and what is p racticable? Depending on the size of the company and facility involved, what is reasonable and practicable can vary greatly

fr om one company to another.

30 CFATS Program Statistics (Oct. 2014), available at http://www.dhs.gov/sites/default/f iles/publications/CFATS

Fact

- Sheet

- October

- 2014

- 508.pdf.

31 40 C.F.R. § 68.3 (definition of “process”).

32 79 Fed. Reg. 44632.

33 Id.16

EPA notes that in its December 2013 Draft Regulatory Report on the Chevron Richmond Refinery Pipe Rupture and Fire, the Chemical Safety Board (CSB) “advocates the safety case approach as a safety management framework for U.S. refineries.” Significantly, w hat EPA

reserved for the small print of a footnote is that “the Board refused to endorse this aspect of the draft report” at its January 15, 2014 meeting regarding the Chevron refinery in Richmond,

California

. T he RFI neglects altogether to point out that, later the same month, the CSB chair cancelled a Board vote on draft recommendations regarding the Tesoro refinery in Anacortes, Washington, to avoid another embarrassing 2

- 1 defeat over the safety case issue. 34

Even the U.S. Steelworkers opposed the CSB’s Chevron recommendation, writing that “ a great deal more work needs to be done before a safety case system can be fully considered as a regulatory model for California or the United States. ” 35 That statement remains true less than a year later. EPA should not promote use of the safety case approach in RMP.

III. Issues Also Addressed by OSHA

SOCMA commented on all of the issues addressed in the RFI that were previously raised in

OSHA’s RFI. For EPA’s convenience, we summarize those comments below. The full text is,
of course, contained in the attached comments to OSHA.

As a general comment applicable to all of the following issues, we again urge EPA to work with OSHA to maintain comparabi lity between RMP and PSM on those issues that both rules address. As a practical matter, that means that EPA should seek to issue its proposed and final rules concurrently with OSHA.

A. Updating the List of Regulated Substances

SOCMA commented on this topic in some detail in our comments we submitted to OSHA earlier this year. We observed that the issue of a ddressing reactivity hazards really should follow from

a decision whether and how to add additional chemicals for the first time to the RMP list of regulated substances (or to PSM and CFATS Appendix A list s) , based on their reactive properties.

In earlier comments to the agencies involved in the Working Group , SOCMA urged that, before they seek to address reactives by revis ing their existing rules (OSHA) or propos ing new rules (EPA and DHS)

, the agencies should “ consider the value of establishing a database of r eactive chemical testing data.” We noted that we had been involved in discussing this concept over the last 20 years and argued that, while “a number of issues raised by the proposal would need to be

worked out

, ... such a dat abase could be of greater utility to a broader universe of entities than any new regulatory approach, and could be established more quickly and at lower cost to the

34 See Center for Public Integrity, “Delay of long

- awaited refinery accident report signals divisions at Chemical Safety Board” (Jan. 30, 2014), available at http://www.publicintegrity.org/2014/01/30/14186/delay

- long

- awaited

refinery

- accident

- report

- signals

- divisions

- chemical

- safety

- board

. See also letter from Board Members Mark

Griffon & Beth Rosenberg to Rep. Rick Larsen (Jan.27, 2014) (“The draft Tesoro report essentially cut and pasted the recommendations for the ‘safety case’ from the report on the Chevron fire.”), available at https://www.documentcloud.org/documents/1010459

- board

- mem bers

- letter

- to

- larsen.html.

35 See Center for Public Integrity, supra.17

f eder al government than a regulatory approach. ”

SOCMA also pointed out that there i s not, in fact, “a method, other than periodically updating the PSM and RMP lists of covered chemicals through rulemaking, that OSHA or EPA could use to expand their lists

. ” We also pointed out that “[t]hese lists were established by rulemaking and

ar e set out in the CFR [, and that

, ] a s integral elements of rules that have the force and effect of law, these lists can only be amended by notice and comment rulemaking.”

In our PSM comments, we suggested that “[t]here could be benefit to conducting ru lemakings to update these lists, since experience has shown that some changes are warranted,” and cited perchloric acid as an example

. We also think EPA could delist the six chemicals for which it has never received an RMP report. To the extent that EPA pursues rulemaking to update the RMP Appendix A list, it should not consider adopting l ists of purportedly reactive chemicals generate d by some arbitrary or abstract feature

. Rather, the Agency should only make changes based on identified problems or patterns of accidents occurring during the 18 years since the RMP rule

went into effect. As we wrote in our earlier comments, “new listin gs and changes to existing listings would have to be supported on a chemical

- by

- chemical basis, and not on the basis of

some third

- party list or action

. ”

In connection with reactive substances specifically, the RFI states that EPA has received reports

of 29 reactive chemical incident s during almost two decades of experience. (We trust that EPA has included these reports within the rulemaking record, or will do so, if it intends to pursue rulemaking on this topic.) The RFI notes that, collectiv ely, these incidents have resulted in only $3 million in offsite property damage, versus $33 million in onsite damage. Since the purview of the RMP program is offsite consequences, SOCMA urges EPA to maintain its focus on chemicals that produced offsite c onsequences.

The statutorily

- established scope of the RMP program must guide EPA more generally if it pursues rulemaking on Appendix A. The statute limits the jurisdiction of the RMP program to “regulated substances.” 36 A chemical substance is conventionally understood to mean matter
that has constant chemical composition and characteristic properties

— i.e., either an element or a compound. Substances cannot be separated into components by physical separation m ethods

, but only by breaking chemical bonds



### . 37 That means, for example, that EPA cannot list “combustible dusts,” “5.1 oxidixers,” “ peroxides

, ” or other types of chemicals a s “regulated

subs tances, ” because they are not “ substances .” Similarly chemical characteristics such as reactivity

, and chemical functional groups

, cannot be included on the RMP list because they

cannot be a “regulated substance.”

B. RAGAGEP

In our earlier OSHA comments, we also addressed the issue of updates to applicable recognized and generally accepted good e ngineering practices (RAGAGEP).

36 See 42 U.S.C. §§ 7412(r)(7)(B), 7412(r)(2)(B).

37 See Wikipedia, “Chemical substance,” available at http://en.wikipedia.org/wiki/Chemical_substance.18

SOCMA focused on two points in particular, and our positions certainly have not changed in the intervening months:

1. Noting that “[i]ndustry would benefit from m ore clarity” from a new RA G AGEP definition, SOCMA “supports further exploration of whether a definition exists or could be crafted that would be an improvement over the status quo, in which RAGAGEP is often defined by enforcement action. Non

- regulatory guidance could also be helpful if it is developed with public input.”

Depending on how a new definition of RAGAGEP is crafted , the specialty batch industry could be negatively impacted, given i t s nature. As we described in the OSHA comments

,

specialty batch plants over multiple sectors are potentially subject to a myriad of varying codes and sections of codes that may be considered RAGAGEP. Many of these plants are very small and do not have co rporate staff who can spend much of their time identifying and tracking changes to codes, standards or practices. A definition of RAGAGEP that was too prescriptive or restrictive would result in many smaller facilities being unable to comply.

We m aintain our belief that “ internal standards can be less restrictive than published standards but still appropriate. ”

2. Regarding the proposal to require evaluation of updates to RAGAGEP, we previously noted that facilities are already required to updat e their determination of what constitutes RAGAGEP at least every five years. We remain concerned about “ a requirement that facilities update their understanding of applicable RAGAGEP essentially on a co ntinuing basis.... T he universe of potentially applicable codes, standards or practices can be substantial, and monitoring changes to them on an ongoing basis is beyond the resources of many batch and specialty companies. ” Furthermore, we continue to believe that an updated standard is not always a be tter standard. SOCMA stands by its earlier conclusion:

Any rulemaking on RAGAGEP should retain the ability of employers to explain why they have chosen not to adopt a newer standard, but have instead concluded that a prior published standard or an intern al standard remains safe

.

C. Third

- P arty Compliance Audits

SOCMA remains oppose d to a requirement that employers hire third parties to conduct compliance audits. A mandate to use third parties who do not understand the specific manufacturing could easily lead to wasteful, unwise and potentially even dangerous conclusions.

SOCMA is particularly opposed to a scenario where the third party audit would be required in addition to the existing self

- audit req uirement. We are also skeptical that th ere is sufficient capability in the consulting community to satisfy this requirement. Finally, we are concerned that, as one SOCMA member recently wrote, the consultants who do audits tend “mostly [to be]

those who have neve r been in the trenches.” We believe that if EPA does require third party19

auditors, they should be required to have had at least 10 years experience actually managing a PSM or RMP program.

We recognize the valid conce rn about auditor independence, and wish to point out that most of

our member companies’ audits are “ completed by internal resources that are not associated with the site's operation. ” We remain willing to explore a requirement that auditors be independent of the facility, without req uiring them to be employed by third parties.

D. Adding New M anagement System Elements

Although we understand the desire to review the PSM standard “ in light of management system

elements that have been identified since th e rule was finalized,” we remain “ concerned about such elements necessarily becoming new compliance requirements. ” In our comments to OSHA, SOCMA pointed out that such new requirements could be highly costly, wasteful, and disruptive. We are particularly concerned about EPA establishing rules regarding topics, like stop

- work authority, that are really in OSHA’s domai n. We continue to support the alternative approach of

a dding new management system elements as a non

- mandatory appendix.

E. Mechanical Integrity

SOCMA remains willing to consider extending mechanical integrity to safety critical equipment identified by th e employer in lieu of addressing such equipment under the General Duty Clause. However, we still would want assurance that employers would really have discretion to define what is or is not considered safety critical equipment.

F. Management of Organi zational Change

SOCMA continues to believe that:

Management of change and its effect on process safety is a very subjective judgment and one that does not lend itself readily to regulation. If effective management systems are in place, change should not be a huge issue unless the company has wholesale

cuts. SOCMA is concerned that companies with low profit margins that cannot make organizational changes due to restrictions in the PSM rule may instead shutter operations prematurely and thus inc rease unemployment.20

IV. Conclusion

SOCMA appreciates the opportunity to provide feedback on this RFI. If you have any questions, please contact me at (202) 721

- 4143 or at mossd@socma.com . Thank you for your

consideration.

Sincerely,

Daniel Moss Senior Manager, Government Relations