October 29 , 2014

U.S. Environmental Protection Agency

Attn: Mr. James Belke 1200 Pennsylvania Avenue NW Washington, D

. C

. 20460

Submitted el ectronically to docket number: EPA

- HQ

- OEM

- 2014

- 0328

Re : Request for Information (RFI) on Accidental Release Pre vention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

Mr. Belke :

The American Coatings Association (ACA) is pleased to submit these comments to the Environmental Protection Agency ( EPA or Agency ) in response to the re quest for information (RFI) on potential amendments to Risk Management Programs (RMP) under the Clean Air Act (CAA) Section 112(r)(7) as part of President Obama’s Executive Order 13650

, Improving Chemical Facility Safety and Security (E.O. ).

ACA is a vo luntary, non

- profit trade association working to advance the needs of the paint and coatings industry and the professionals who work in it. The organization represents paint and coatings manufacturers, raw materials suppliers, distributors, and technical p rofessionals. ACA serves as an advocate and ally for members on legislative, regulatory and judicial issues, and provides forums for the advancement and promotion of the industry through educational and professional development services. ACA’s membership r epresents over 90% of the total domestic production of paints and coatings in the country. A number of ACA’s members have

RMP

- regulated facilities.

While the E.O. does not require EPA to publish this RFI, EPA has decided to gather input on potential new amendments to Section 112(r)(7) since the E.O. tasks the Working Group to develop options for improved chemical facility safety and security that identify improvements to existing risk management practices. 1 Also, the E.O. required the Occupational Safety and Health Administration (OSHA) to publish an RFI on Profess Safety Management (PSM) modernization, which closely aligns with the RMP regulation ; so, this RFI will allow EPA to evaluate potential changes to the RMP regulation “in parallel to OSHA’s evaluation of potential updates to the

PSM standard

. ” 2

ACA shares the E

. O

. Working Group’s goal of ensuring people both inside and outside of

chemical facilities are safe and avoid catastrophic chemical accidents. However, as EPA

1 79 Fed. Reg. 44605 (July 31, 2014).

2 Id.2

considers policy options for potential rulemaking, ACA encourages the Agency to consider its input on several of the proposed modernizations in this RFI. Overall, ACA believes that EPA

should concentrate its efforts on increasing awareness of existing regulatory programs, improving training and educa tional programs, and e nhancing enforcement . ACA s trongly discourages EPA from ado pting wide

- scal e c hanges to RMP regulation s without adequate justific ation or a demonstrated need , based on data and evidence, that the current regulations do not protect human health or the environment, and that these proposed changes address a

substantial risk of harm.

ACA also notes that any substantive changes to any of the programs under review would require

that EPA engage in an appropria te rulemaking process. To allow stakeholders the opportunity and time to adequately respond to any specific proposed changes to the RMP regulations , ACA

urges EPA to , following this RFI and before issuing a Proposed Rule, issue an Advanced Notice of Propos ed Rulemaking (ANPR ). Of note , EPA formally denied ACA’s request for extending

the RFI comment deadline by 90 days. Given the level of detailed information EPA is requesting from the public on over 380 questions and the massive scope of this RFI, both EPA and

stakeholders would benefit from an ANPR in order understand the potential financial impacts of these numerous proposed amendments and properly evaluate all of the options p resented in the

RFI.

EPA propose s 17 topics as potential candidates for policy changes , six of which overlap with

OSHA’s RFI for PSM modernization

. 3 ACA has already responded to a number of these issues in its comments submitted on March 31, 2014 for the OSHA RFI on PSM Modernization 4 and

for the Working Group’s Solicitation of Public Input on Options for Policy, Regulation, and

Standards Modernization

. 5 Below are the topics in EPA’s RFI that ACA has chosen to provide

feedback on

. ACA encoura ges EPA to consider these comments as it assesses these p olicy options an d begins the rulemaking process.

ACA remains hopeful that with continued collaboration between EPA and all interested stakeholders, EPA can create policies that, unlike a number of the proposals listed in this RFI,

are tailored to address significant risks of harm to human health and the environment, supported by evidence to increase safety, and do not yield unintended consequences, disregard existing industry practices, or have adverse economic impacts on chemical facilities. For all of th ese proposed amendments, ACA stresses the importance of EPA refraining from imposing significant, costly new requirements for facilities without evidence that the current RMP regulations inadequately protect human health and the environment and without evi dence that these proposals will directly improve chemical facility safety and security.

3 Updating the list of regulated substances that, in the case of an accidental release, are known to cause or may reasonably be anticipated to cause death, injury or ser ious adverse effects to the human health and environment; adding risk management program elements; defining and requiring evaluation of updates to RAGEGEP; extending mechanical integrity requirements to cover any safety critical equipment; requiring owners and operators to manage organizational changes; requiring third

- party compliance audits.

4 See http://www.regulations.gov/#!documentDetail;D=OSHA

- 2013

- 0020

- 0093

. 5 See http://www.regulations.gov/#!documentDetail;D=OSHA

- 2013

- 0026

- 0083

.3

TOPICS THAT OVERLAP WITH OSHA RFI ON PSM MODERNIZATION

Topic #1: Updating the List of Regulated Substances

The Agency solicits recommendations on whether and how to update the RMP

- regulated

substances listed in 40 CFR 68.130 by 1) adding other toxic or flammable substances; 2) adding high and/or low explosives; 3) adding ammonium nitrate; 4) adding reactive substances and reactivity hazards; 5) adding other categor ies of substances; 6) removing certain substances from the list or raising their TQ ; and/or 7) lowering the TQ for substances currently on the list. In particular, to address hazards associated with reactive chemicals, EPA proposes several approaches to ac complishing this, including New Jersey’s Toxic Cata strophic Prevention Act

.

As ACA discussed in its comments in the OSHA RFI, ACA cautions against the adoption of

third

- party list s of chemicals or adding new categories of chemicals to the list of regulat ed

substances. Adopting third

- party standards, which are often updated, into federal regulations is in

violation of the Administrative Procedures Act because when a third party organization updates a standard industry will have to comply with , this creates an updat ed federal regulation without proper notice and opportunity for comment. In addition, ACA urges EPA to implement a

chemical

- specific risk assessment when determining whether it is necessary to add a chemical to the list of regulated substances

. A ny other chemical managem ent system would take an overly expansive approach and further complicate a complex progr am, which will not increase chemical facility safety.

Further, ACA recommends that EPA demonstrate that a new chemical should be added to t he list

of regulated substances , and use the prescribed administrative process for each new chemical it considers adding , and t o include the specific threshold quantities

. Also, EPA should enumerate and base any proposed new chemical on objective, scie nce

- based criteria a nd analyses showing

the need for additions

. This will allow potentially regulated manufacturers to provide substantive

comment s on the relevant information prior to any changes to the RMP regulations.

Topic #2 : Addit ional Risk Management Program Elements

The Agency proposes to add additional risk management elements to enhance the protection of human health and the environment. In particular, EPA is asking the public to consider three

elements from the Risk Based Pro cess Safety Program

— measurements and metrics, management review and continuous improvement, process safety competency

— as well as two additional management system elements that were identified by OSHA in their review of safety standards: stop work authority and ultimate work authority. EPA also asks for ideas for other management system elements (i

. e. conduct of operations, process safety culture).

When deciding to add management system elements

, ACA urges EPA to base its decisions on

evidence that the se ad ditions will increase chemical facility safety rather than arbitrarily adding elements or updates. As ACA discussed in the OSHA RFI, EPA has not shown that adding additional management systems will provide a measurable benefit. Because a number of ACA

memb ers noted that their facilities already set internal standards and self

- evaluate, they question whether federally

- mandated measurements and metrics will increase safety. EPA should focus its4

efforts on improved enforcement of existing management system ele ments rather than adding to regulatory complexity. Or, if EPA is going to impose new risk management program elements, it needs to be clear about what its minimum expectations are in order to be effective.

Further, ACA strongly cautions EPA against incor porating such third party standards into their regulatory and compliance frameworks. Adopting or otherwise incorporating third party standards, which are frequently updated, into federal regulations violates administrative practice, particularly since when a third party safety organization updates or modifies one of its standards, it could then impose a compliance requirement on industry. In addition, such third party standards are not freely available to industry in the same manner as properly promulgated regulations, and often impose extensive barriers to both participating in the organization’s process as well as to obtaining the organization’s standards and other materials.

Topic #3 : Define and Require Evaluation of Updates to Applicable Recognized and

Generally Accepted Good Engineering Practices

EPA seeks comment on how to revise the RMP regulation to require employers to monitor changes and evaluate updates to applicable recognized and generally accepted good engineering practices (RAGAGEP). ACA woul d like to echo the comments it made in the OSHA RFI in that

ACA believes imposing a strict mandate to evaluate codes and standards updates would be costly with little corresponding risk reduction, and that the implications of this mandate would be

difficul t to comply with given that hundreds of continually updated standards may be applicable to a workplace’s RAGAGEP. ACA notes that OSHA has previously addressed this issue in a Letter of Interpretation that suggests existing PSM requirements already ensure t hat employers consider safety updates applicable to RAGAGEP. 6

EPA also solicits input on how to define RAGAGEP. Similar to the PSM standard, OSHA already considered and denied this request durin g the 1992 rulemaking process. In the Preamble

to the Final P SM Standard

, OSHA stated:

Many rulemaking participants disagreed with this proposed provision (e.g., Ex. 3: 12, 53, 64, 87, 97, 121; Tr. 722

- 23, 796

- 97, 2177). Some commenters were concerned that the Agency would incorporate by reference all of the codes applicable to testing and inspection such as those published by the National Fire Protection Association (NFPA), the American Society for Testing and Materials (ASTM), the American National Standards Institute (ANSI), etc. These

commenters asserted that it would be difficult for an employer to obtain all such standards and decide which standards the Agency intended for them to use. They also stated that some of the standards may conflict with each other.

And further

The codes and standards contained in p roposed paragraph (j)(3)(ii) were examples of what the employer could use for inspection and testing of process equipment.

6 OSHA Letter of Interpretation to Mr. Durham regarding 1910.119(d)(3)(iii) (dated January 20, 2001 and corre cted June 2, 2005)

.5

The Agency did not intend to incorporate by reference into the standard all of the codes and standards published by these consensus g roups. As noted above, the purpose of this proposed provision is to make sure that process equipment is inspected and tested properly, and that the inspections and tests are performed in accordance with appropriate codes and standards. The phrase suggested by rulemaking participants: "recognized and generally accepted good engineering practices" is consistent with OSHA's intent. The Agency also believes that this recommended phrase would include appropriate internal standards of a facility, as

well as codes and standards published by NFPA, ASTM, ANSI, NFPA, etc. Accordingly, proposed paragraph (j)(3)(ii) has been redesigned as paragraph (j)(4)(ii) in the final rule, and has been revised to read as follows: Inspection and testing procedures shall follow recog nized and generally accepted good engineering practices. 7

Based on the reasoning above, there is no need for EPA (or OSHA) to amend the regulations to require following a third

- party safety standard when complying with RAGAGEP. Rather, ACA

believes RAGAGE P should include industry consensus guidance and appropriate internal standards that have been adop ted and evaluated by employers. If EPA does intend to establish a definition for RAGAGEP, the Agency must define RAGAGEP through the rulemaking process,

and permit for stakeholders to comment on this proposed definition. In its definition, EPA should include examples and clearly define its expectations concerning RAGAGEP.

Topic # 4: Extend Mechanical Integrity Requirements to Cover Any Safety

- Critical Equipmen t

EPA solicits information on whether the scope of the mechanical integrity provisions of the RMP rule should be expanded to cover any safety

- critical equipment and whether additional requirements should be added. One of the examples EPA provides is that emergency shutdown systems are a type of process equipment covered under the RMP rule’s mechanical integrity provisions, but the rule “does not explicitly require all covered sources to install emergency shutdown systems.” 8

When deciding to expand the sc ope of what categories of equipment the mechanical integrity requirements should apply to, ACA encourages EPA to demonstrate how additional types of equipment would result in improved safety in a chemical facility rather than arbitrarily adding

elements . I n particular, requiring that every covered source install emergency shutdown systems could potentially impose exorbitant costs on facilities that do not have these systems in place with little beneficial value in preventing accidents. In some cases, requir ing emergency shutdown is not the safest approach for a facility to respond to a chemical incident. Each employer should

have the flexibility to make site

- specific and process

- specific decisions, so ACA discourages

E PA f rom impos ing overly prescriptive solutions that would take away this discretion and

pote ntially result in increase d safety risks.

7 57 Fed. Reg. 6356 ( Feb. 24, 1992 ); 57 FR 7847 ( March 4, 1992 )

-- Process Safety Management of Highly Hazardous Chemicals, Explosives and Blasting Agents, Section 3: Summary and Explanation of the Final Rule: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=PREAMBLES&p_id=1041

8 79 Fed. Reg. 44617.6

Topic #5 : Require Owners and Operators to Manage Organizational Changes

Like the OSHA RFI, EPA proposes to revise the RMP regulations to clarify that employers must follow management of ch ange (“MOC”) procedures for organizational changes. As ACA discussed in its comments to OSHA, a L etter of Interpretation dated March 31, 2009, Deputy Assistant Secretary Donald G. Shalhoub and Dire ctorate of Enforcement Programs Richard E.

Fairfax stated:

The PSM standard requires employers to develop and implement written MOC procedures to address the safety and health impacts of contemplated changes, including organizational changes, as they relate to process chemicals, technology, equipment, procedures a nd facilities (29 CFR 1910.119(l)(1)). Some organizational changes, such as changes resulting from mergers, acquisitions, reorganizations, staffing changes, or budget revisions, may affect PSM at the plant level and would therefore trigger a PSM MOC proced ure. Some examples

of these include:

 personnel changes, including changes in staffing levels, staff experience, or contracting out that directly impact PSM covered processes; and

 policy changes such as budget cutting that impact PSM covered

processes. 9

Thi s L etter of I nterpretation already explains to facilities that the current requirement could include organizational changes such as personnel and budget changes. EPA even discusses how the RMP rule’s management of change requirements are “virtually identic al” to the PSM

Standard. 10 Therefore, ACA maintains that EPA should not modify its management of change requirements for Program 3 processes (section 68.75)

. E xpansion of management of change procedures would be overly and unnecessarily prescriptive, and E PA has not explained how this

would incre ase protections for human health and the environment.

Topic #6 : Require Third

- Party Compliance Audits

EPA seeks comments on whether requiring that employers use third

- party compliance auditors

would further prot ect human health and the environment. EPA discusses how the RMP’s regulations are “almost identical in language” to the PSM Standard with regards to compliance

audits. 11 EPA states that there “may be advantages” to third

- party compliance audits and sites

BS EE’s Safety Environmental Management Systems standard that requires independent third

party audits. ACA maintains its opposition to explicitly requiring third party compliance audits

in both the PSM Standard and the RMP rule.

9 OSHA Letter of Interpretation regarding 29 CFR 1910.119 (l) Management of O rganizational Change (dated March 31, 2009 ). https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28628

10 79 Fed. Reg. 44618.

11 Id.7

First, the quality and rigo r of a compliance audit depends on the auditor’s training, familiarity

with the process being audited , and experience, rather than whether the auditor is a third party or

not . The current RMP rule requires that audits be conducted by “at least one person

k nowledgeable in the process,” and many coatings industry facilities employ and util ize employees with expertise and who have worked in the facility for years who understand the actual level of employee involvement in compliance, and are familiar with the f acility’s practices. Requiring all facilities to utilize third parties instead of their own, experienced employees will alter the existing market balance where only truly qualified auditors thrive, by artificially spiking demand for third party services.

Second, requiring that compliance audits be performed by third parties will lengthen the audit ing process, impacting deadlines and creating delays in proper evaluation of a facility’s RMP program. Third, the RFI does not propose or list any standards tha t third parties would need to follow in conducting audits or specific accreditation requirements. Accrediting auditors will not

in itself guarantee that they will either have a deep understanding of the facility being inspected or process risks.

And finall y, mandating that facilities hire third parties to perform compliance audits of their

RMP programs will significantly increase costs for employers. For example, ACA estimates that these types of audits could cost some of its member companies approximately $10,000 per facility. Companies with multiple facilities across the country would be forced to forego their own, internal resources and expertise to hire third parties to perform the same audits. In some cases, ACA understands that such contractors may hav e hourly rates of up to $500 per hour per

auditor for conducting RMP or PSM audits, not including travel expenses. Most importantly,

EPA has not demonstrated that company

- led audits are inherently deficient, nor has the Agency provided examples of flawed i nternal audits that have contributed to an incident.

Therefore, ACA urges EPA to not revise the current standard on compliance audits. Keeping the current standard will allow facilities to use third parties on a voluntary basis, and also have the

freedom to use their own qualified, appropriate personnel to perform these compliance audits.

ADDITIONAL ITEMS FOR WHICH EPA REQUESTS INFORMATION

Topic # 1: Safer Technology and Alternatives Analysis

EPA discusses that, historically, the Agency has encouraged covered sources to examine and adopt alternative processing technologies or modifications to make them inherently safer. 12 The general duty clause under the RMP rule states that owners and operators “should try to substitute

less hazardous substances for e xtremely hazardous substances or minimize inventories when possible.” 13 Now, EPA asks for feedback on a potential amendment that would require the use of inherently safer technologies (ISTs) where feasible and change the general duty clause to “make

clear t hat the duty to prevent releases of extremely hazardous substances includes the use, where

12 79 Fed. Reg. 44620.

13 Id.8

feasible, of safer technologies.” 14 This requirement would include analysis and documentation of ISTs, integration of ISTs analysis into the PHA, and implement ISTs w here feasible.

As ACA stated in its comments on the Working Group’s Solicitation of Public Input on Options for Policy, Regulation, and Standards Modernization, ACA believes that a flexible approach to process safety best protects workers from risk of ha rm. Each employer is in the best position to

make site

- specific process safety decisions by evaluating its own equipment, onsite materials and chemicals, expertise, organizational structure, and operations. For these reasons, ACA cautions against prescript ive recommendations that will chip away at the necessary discretion given to employers. Additionally, it would be very subjective and difficult to prescribe in regulations what is “feasible” for a facility. Any one

- size fits all approach to process safety would limit employers’ ability to react to real facts on the ground.

In regards to incorporating ISTs into safety programs, only facility operators know whether IST is appropriate given the complexities of their unique operating environments, and no one program will work for all facilities. The E.O. Working Group should promote the use of safer alternatives and practices by (1) encouraging industry programs, (2) issuing alerts and guidance under EPA’s RMP program and OSHA’s PSM standard to increase knowle dge of industry standards, and (3) developing resource centers where process safety experts can share safer alternative techniques and approaches. These suggestions would be far more effective, much less cumbersome on facilities, and would address site

- spe cific needs than what could be accomplished through regulation.

Topic #2: Emergency Drills To Test a Source’s Emergency Response Program or Plan

In the RFI, EPA seeks comment on whether to require RMP regulated facilities to conduct drills

as an element of the emergency response program. EPA lists several other regulations that require exercises and drills, and that industry guidelines recommend conducting drills. ACA members have noted that OSHA already requires drills for a number of safety regulations, and many companies perform drills on their own as they are appropriate to the risk. In this regard, mandating emergency drills may not be appropriate for every facility and for every kind of emergency response plan.

ACA recommends, in lieu of a federal ma ndate that prescribes how a facility should drill , that EPA p rovide guidance on the number and types of drills facilities should perform, and facilities can work with local emergency response personnel to decide what exercises, t ests , and frequency

are mos t appropriate in order to ensure safety to human health and the environment

. ACA discourages prescriptive requirement s in order to allow for facility operators and owners to develop plans that are appropriate to the needs of each facility and local responders

.

Topic #3: Automated Detection and Monitoring for Releases of Regulated Substances

EPA requests information on the need for new or expanded requirements for automated detection and monitoring systems that would supplement either the process hazard analysis and/or

emergency response r equirements. In particular, EPA proposes to require covered facilities to

14 Id.9

install monitoring equipment or sensors to detect release of RMP regulated substances or the

conditions that could lead to such a release.

In the RFI, EPA discusses the potential ( not demonstrated ) benefits of this option and does not explain why the current regulations are inadequate. EPA even acknowledges that “the need for

a n appropriate deployment of such systems is likely to be highly site

- specific, and that facilities may already have appropriate incentives to deploy such systems where warranted and cost

effective.” 15 EPA also says, “ automated detection and monitoring techn ologies may not be available for particular chemical hazards, or industry standards may not address their proper use. They may also be costly .” 16 ACA a gree s with EPA’s conc erns with this proposal and do es not support mandating that every facility install a utomated detection and monitoring systems, particularly since EPA has not demonstrated that the current regulations and practices are inadequate in protecting human health and the environment.

Topic #6: Incident Investigation and Accident History Requir ements

The Agency is considering expanding the RMP requirements for incident investigation and accident history to include “clear requirements to investigate near misses and determine root causes of accidents, near misses, and process upsets,” arguing th is would promote safety. 17 ACA is concerned with the potential challenges that will be created by adding “near misses” into requirements for accident history reporting and investigation. For example, what constitutes a “near miss” could be highly subjectiv e and may result in facilities under

- reporting (where they would normally err on the side of recording) because the incident may not fall under the regulatory definition of a “near miss

. ” How EPA defines a “near miss” and times when reporting is required c ould easily lead to confusion, additional unnecessary paperwork, and disruptive to facilities’ current internal practices for reporting near misses.

Topic #7: Worst Case Scenario Quantity Requirements for Processes Involving Numerous

Small Vessels Store d Together

In the RFI, EPA seeks information on whether to revise RMP to better account for processes involving numerous small vessels stored together such as on cylinder racks, and would like to

know whether the worst

- case scenario requirements should a ccount for the potential effects of separate facilities that are interconnected. ACA is concerned that this revision to the RMP rule is not necessary to increase the protection of human health and the environment. ACA also argues

that aeroso ls are already highly regulated with robust protective requirements, so any potential

amendment to the RMP rule should clarify that aerosols would not fall under this new provision

.

Topic #11: The Safety Case Regulatory Model

And finally, EPA offers the Safety Case r egulatory model as an alternative to PSM and RMP regulations for chemical facility safety and security. EPA requests information on the advantages and disadvantages of replacing the current PSM and RMP programs with the Safety Case model,

15 79 Fed. Reg. 44623

16 Id.

17 79 Fed. Reg. 44627.10

which is used in other countries such as Australia and the UK. EPA explains that in the model, “operators must present to regulators a structured argument, supported by a body of evidence that provides a compelling, comprehensible and valid case that a system is safe for a given application in a given operating environment.” 18

As ACA commented in response to the Solicitation of Public Input on Options for Policy, Regulation, and Standards Modernization, ACA opposes completely changing PSM or RMP to a safety case regulatory r egime because the safety case framework would be a drastic overhaul of the current system , and there is no real data that establishes its value in the context of process safety for the chemical industry. ACA believes that shifting responsibility to approve safety decisions from employers to inspectors, who inevitably will be less familiar with the job sites,

would detra ct from worker safety.

For additional information or questions, please contact ACA’s Javaneh Nekoomaram at jnekoomaram@paint.org ; or David Darling at ddarling@paint.org

.

Respectfully Submitted,

Javaneh Nekoomaram, Esq. David Darling Counsel, Government Affairs Senior Director, Environmental Affairs

18 79 Fed. Reg. 44632.