# National Association of SARA Titl e III Program Officials

Concerned with the Emergency Planning and Community Right

- to

- Know Act

October 28, 2014 Electronically Submitted

Re: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

Docket No. EPA

- HQ

- OEM

- 2014

- 0328

The National Association of SARA Title III Program Officials (NASTTPO) is made up of members and staff of State Emergency Response Commissions (SERCs), Tribal Emergency Response Commissions (TERCs), Local Emergency Planning Committees (LEPCs), various federal agencies, and private industry. Members include state, tribal, or local government employees as well as private sector representatives with Emergency Planning and Community Right to Know (EPCRA) program responsibilities, such as health, occupational safety, first response, en vironmental, and emergency management. The membership is dedicated to working together to prepare for possible emergencies and disasters involving hazar dous materials

.

This is obviously a complex and lengthy Request for Information. NASTTPO does not

ha ve information to provide on all elements. The bulk of our input will come on the

issues listed in Section II

– D of the Request. We have also noted several items that we believe are high

- priority that EPA should be move rapidly to adopt

.

Section II

– C

– 6: Third

- Party Compliance Audits

We believe that the current requirement for owner/operator compliance audits under the current regulation are not effective. The problems are the lack of a definition of qualifications for the auditor, guarantees of independence of the auditor, the lack of specific response requirements to audit findings, the lack of specific standards against which to audit, and the lack of a requirement for a written report and certification by the

auditor.

While we agree that t hird

- party compliance audits are the most effective approach because of the independence and hopeful objectivity of third

- party auditors, this is the most expensive approach for the regulated industry. Also, absent definition of the other

factors noted ab ove, we do not believe that mandating third

- party auditors alone will be effective to a presumed objective of reducing accidents. In order to encourage the use of

third

- party auditors we propose that the frequency of audits may be extended if they are

use d. Also, we believe that any new process must be audited within two years of when the process is put into operation.

1We suggest the following:

- EPA should clarify that all covered processes must receive a full audit of all aspects of the RMP submittal ev ery three years.

- The qualifications of the auditor must be stated in a written report of the audit, which is to be signed and certified by the auditor.

- The audit report must describe how the independence and objectivity of the auditor is protected by writt en corporate policies and organizational structure

unless a third

- party auditor is used.

- Companies that use a third

- party auditor and evaluate all aspects of regulated processes (inclusive of inherently safer technology as discussed below) would be

allowed to audit every five years provided that the audit occurred in the year prior to any RMP update.

- A copy of the auditor’s report shall be kept by the facility to be accessed by EPA or State inspectors. The report shall automatically be provided to the fire department and LEPC with jurisdiction over the facility.

- The audit of the emergency response and coordination requirements must include an interview with a responsible official of the fire department and LEPC with jurisdiction over the facility. The audi t findings on this topic shall be shared with

this official and the LEPC chair who shall have at least two weeks to comment if they wish. Any such comments must be included as an appendix to the audit

report.

- The audit must expressly identify whether corr ective actions are required. The facility shall , within 60 days, prepare a response and strategic plan to address any corrective action identified in the report.

- If corrective actions have not been taken within one year of the audit report, that

fact sh all be documented in a written report prepared by the facility and shared with the local fire department and LEPC.

- Ideally EPA would also create an on

- line report to be filed as a supplement to the facility’s RMP that would capture corrective actions not corrected within one

year.

Section II

– C

– 7: Effect of OSHA PSM Coverage on RMP Applicability

We believe that EPA has done a good job in evaluating this issue and identifying the choices. It is our view that EPA should eliminate Program 2 as that ac t will reduce confusion and have the effect of improving human and environmental safety. By placing the very few current Program 2 facilities into Program 3 a much more level playing field and greater degree of certainty will be created. We recommend tha t EPA take this action if OSHA modifies its retail exemption.

**Page 2** Our view on this topic is based primarily on the belief that water and wastewater treatment facilities with large quantities of regulated chemicals are not inherently safer

than similar industr ial facilities with the same chemicals. They should, therefore, be

treated the same and be classified as Program 3 if not eligible for Program 1 . Whether or not these facilities are located in a State with federally

- delegated OSHA program should

make no difference.

Section II

– D

– 1: Safer Technology and Alternatives Analysis

We do not believe that requiring some sort of safer technology analysis is feasible as a regulatory requirement. EPA has done a good job in pointing out the reasons why this is

true and the difficulties that would be encountered. While we believe that accident investigations are useful, the sort of “20

- 20 hindsight” recommendations on safer technology found in accident investigation reports do not typically flow from a safer

te chnology analysis conducted without the focus on a specific accident.

More fundamentally, our concern is that a safer technology analysis will not prevent all

accidents. We do not believe that human factors such as an operational bias towards productio n rather than safety, or failures to manage change, adequately training for employees and the failure to follow standards can be eliminated by this analysis. We are also quite concerned that the use of a safer technology analysis will be used as a

substitu te for appropriate emergency preparedness and accident prevention programs.

We agree with EPA’s proposed steps to advance safer technologies. Nonetheless, we suggest that incentives be provided to adopt the recommendations that EPA will provide.

As we noted in the section on audits, a facility that adopts these recommendations and

conducts third

- party audits to determine when these recommendations should be adopted for both new processes and as part of corrective actions, should receive some benefit.

We believe that benefit should reflect the likelihood that these facilities will benefit from the analysis and reduce the likelihood of accidents.

The benefit we have in mind is that a third

- party auditor would include a section on the

auditor’s review of public accident investigation reports of similar facilities and similar processes along with materials on safer technology analysis made available by EPA and OSHA. The auditor would identify corrective actions based upon that review. If the facility ado pted the recommended corrective actions, the frequency of audits should be

extended.

Also, we believe that a facility adopting a strategic plan to incorporate safer technology recommendations should have an extended period of time to install those

recom mendations. We would allow two years for this process before a facility would have to file the corrective actions supplement to their RMP for safer technology

recommendations.

Section II

– D

– 2: Emergency Drills to Test a Source’s Emergency Response P rogram or Plan

**Page 3** No emergency response program or plan can be considered adequate without frequent exercises and drills to identify gaps and inform program and plan improvements. EPA must require exercises and drills. These exercises and drills must includ e local first responders and the scenarios being exercised must be based upon realistic accident scenarios. EPA should take this action at the earliest possible opportunity.

We believe that facility employees will always respond to an accident even if th eir plan is to run away. It’s absurd in our view to allow a facility that brings hazardous chemicals to a community to have no responsibility to deal with accidents that have the potential to impact the community.

An emergency plan should be required o f all Program 2 and 3 facilities. It is our position that few of these facilities now routinely exercise in conjunction wi th local emergency responders and that the coordination obligation is ineffective.

In our view coordination is more than simply te lling the community what chemicals a facility possesses. It should mean that a facility must create and adapt emergency plans and procedures that reflect the capabilities of the local first responders and the characteristics of the community. In other w ords, facilities have a responsibility to work with the community to respond to accidents involving the hazardous chemicals the facility has brought to the community. That responsibility should require a facility to work with the community to fill capabil ity and preparedness gaps.

At a minimum EPA should require all Program 2 and 3 facilities to prepare and coordinate an emergency r esponse plan and exercises/drills that incorporate these

elements :

- How many employees are routinely present in the areas wit h hazardous

chemicals?

- If “just running” is the intended plan who makes the decision to run, who is responsible for determining if every one gets out, where do they go and who is responsible for the final “head count” so that first responders don’t risk the ir lives trying to rescue people that aren’t in danger.

- How are first responders notified that an accident has occurred and that an evacuation is underway?

- How are neighboring facilities or vulnerable institutions such as schools notified

of the accident a nd informed on whether they should take protective actions such

as “shelter

- in

- place” or evacuation?

- Exercises must include communications, coordination with local first responders, and neighbors as appropriate. All activities, such as evacuations and not ification procedures, should be drilled.

- What is the plan if an injured employee cannot evacuate?

**Page 4** - We support the use of PREP or other recognized exercise protocols for facilities that develop an emergency response plan and anticipate a substantial employee response to accidents.

- Exercises or drills of notification, communication and evacuation plans should be conducted annually for all facilities ; however, full

- scale exercises of all plan elements need only be conducted every three years for those facilitie s that develop emergency response plans

.

- After action reports identifying planning gaps must be prepared for all exercises.

- Corrective action to address planning gaps identified in after action reports shall be addressed by the facility within six months . A follow

- up report discussing how the gaps were addressed shall be prepared by the facility within this six month period and shall be shared with the first responders and others that participated in the exercise/drill.

Section II

– C

– 3: Automated Dete ction and Monitoring for Releases of Regulated

Substances

We believe this is inherently an issue that should be addressed by SERCs and, more importantly, LEPCs. While notice to the community and first responders is obviously critical, automation of these systems can be problematic and expensive. As a result, this should be a requirement that dovetails with the emergency plan coordination requirement.

It should be made clear that coordination includes the obligation for a facility to adapt its plans to t he needs and capabilities of the community.

There are several situations in which a facility might be required to create rapid or automated notification systems. These will chiefly involve accidents where vulnerable institutions should take action to pro tect themselves because first responders lack the capacity to take preemptive actions or when the accident may have such an immediate impact that time is of the essence. Examples include the protection of students at schools in close proximity to regulate d facilities or when water intakes or ventilation equipment must be closed to prevent adverse consequences.

Section II

– C

– 5: Compliance with Emergency Response Program Requirements in Coordination with Local Responders

As is obvious from the comment s above, this is our biggest concern with the existing program and should be highest priority for action by EPA.

Facilities should be required to prepare an emergency response plan and develop

emergency response capability unless first response agencies e xpressly and in writing have certified that they have the capability and agree to respond to releases of regulated substances at the facility. If the local first response agencies do not provide such a certification then facilities should be required to p rovide an effective response either using its own employees, mutual aid or contractors. An effective response means a

**Page 5** response that will timely mitigate a release so that harm to neighboring facilities, the public and environment is minimized.

The plan s for a facility’s emergency plans, along with any mutual aid agreements or contractors, shall be provided to the LEPC and fire department with jurisdiction over the facility. Both the fire department and LEPC may provide comments to the facility and

thes e comments shall be made available to inspectors evaluating whether the facility has complied with the regulatory requirement.

Section II

– C

– 7: Worst Case Scenario Quantity Requirements ...

We believe that EPA should amend the regulation so that numer ous small containers stored together are considered for purposes of determining the worst case scenario. All such containers stored in one area should be counted. Barriers or other control systems designed to prevent releases or protect containers from d amage may be used to reduce the quantities counted.

Section II

– C

– 8: Public Disclosure of Information ...

We are pleased to see that EPA is considering options to make information available to the public. We believe that the proposals suggested by EPA would be effective in

im proving communication regarding hazards between facilitie s and communities.

Our view is that the RMP executive summary sho uld be posted on the Web by the facility unless arrangements have been made to have the executive summary posted by the LEPC or SERC. To make this effective, EPA must better define the elements of the executive

summary so that the name of the chemical

, a summary description of the process in

which the chemical is used and a description of the facility ’ s accident prevention program

are include d. Critically, EPA must require that the executive summary include contact information at the facility from which additional information can be obtained. The facility may provide the opportunity for a member of the public to review a copy of their RMP or a referral to the LEPC or EPA reading room.

Thank you.

Timothy R Gablehouse Director, Government Relations

410 17 th St, Ste 1375

Denver CO 80202 (303) 572

- 0050

**Page 6**