americanchemistry.com ® 700 Second St., NE | Washington, DC | 20002 | (202) 249-7000 October 29, 2014

Via Electronic Submission: http://www.regulations.gov

OSWER Docket
EPA Docket Center
Mail Code 2822-1T Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460

Re: Comments on Docket ID No. EPA-HQ-OEM-2014-0328 Request for Information on Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

To the Docket:

The American Chemistry Council 1 (ACC) is pleased to respond to the request for information issued by the U.S. Environmental Protection Agency (EPA) on potential revisions to EPA’s Risk Management Program regulations and related programs. The request for information, Docket ID No. EPA-HQ-OEM-2014-0328 (RFI) was published in the Federal Register on July 31, 2014.

ACC is America’s oldest trade association of its kind, representing companies across the United States engaged in the business of chemistry. ACC supports EPA’s commitment, expressed in the RFI, and the commitment of the President of the United States as expressed in Executive Order (EO) 13650, to prevent chemical accidents and to prevent or minimize the consequences of accidental chemical releases through the implementation of management program elements that integrate technologies, procedures and management practices.

ACC members would be directly affected by EPA’s promulgation of revisions to the existing RMP rule, whether those revisions expand the RMP rule to include additional regulated substances and hazards, update the RMP rule in parallel to the effort undertaken by OSHA to

1 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of chemistry to make innovative products and services that make people’s lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care®, common sense advocacy designed to address major public policy issues, and health and environmental research and product testing. The business of chemistry is an $812 billion enterprise and a key element of the nation’s economy. It is the largest exporting sector in the United States, accounting for 12 percent of U.S. exports. Chemistry companies are among the largest investors in research and development. Safety and security have always been primary concerns of ACC members, and they have intensified their efforts, working closely with government agencies to improve security and defend against any threat to the nation’s critical infrastructure.EPA-HQ-OEM-2014-0328

October 29, 2014 Page 2

americanchemistry.com ® 700 Second St., NE | Washington, DC 20002 | (202) 249.7000 evaluate updates to OSHA’s PSM rule, or change the RMP requirements in any of the various ways explored in the RFI.

While ACC shares EPA’s goals of preventing chemical accidents and preventing or minimizing the consequences of accidental chemical releases, ACC has a number of concerns about the proposed changes identified by EPA in the RFI, as outlined in our attached comments. We believe that the potential changes to the RMP rules considered in the RFI would in many cases represent a drastic departure from the current regulatory framework, in some instances with adverse impacts, and in other instances without corresponding benefits, to chemical accident prevention or workplace or employee safety.

Ultimately, ACC believes that the most influential steps EPA could undertake to improve chemical safety is through increased awareness of existing management and regulatory programs, enhanced training, and enforcement for companies that have not shown themselves to be capable of implementing the rule.

ACC shares a common goal with EPA, OSHA and other stakeholders to create and maintain safe workplaces for our nation’s employees and for our surrounding communities. Thank you for the opportunity to submit these comments on the RFI.

Should you have questions, please contact the undersigned by phone at (202) 249-6426 or by email at Rachel_Meidl@americanchemistry.com

.

Respectfully submitted,

Rachel A. Meidl Director, Regulatory & Technical Affairs American Chemistry Council 700 Second Street, NE Washington, DC 20002 Rachel_Meidl@americanchemistry.com

cc: Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health Stephen M. Richmond, Beveridge & Diamond, P.CComments of the American Chemistry Council on Docket ID No. EPA-HQ-OEM-2014-0328 Request for Information on Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

Rachel A. Meidl Director, Regulatory & Technical Affairs American Chemistry Council 700 Second Street, NE Washington, DC 20002 Rachel_Meidl@americanchemistry.com

Of Counsel Stephen M. Richmond Beveridge & Diamond, P.C.
15 Walnut Street – Suite 400 Wellesley, MA 02481
SRichmond@bdlaw.comi TABLE OF CONTENTS

PAGE

Executive Summary.........................................................................................................................1
I. Comments on Items in OSHA’s RFI Relevant to EPA’s RMP Regulation (Section II.C. of the EPA RFI).............................................................................................6
1. There is no Basis for Updating the List of Regulated Substances...........................6
2. Additional Risk Management Program Elements..................................................10
3. Updates to Applicable Recognized and Generally Accepted Good Engineering Practices.............................................................................................10
4. Safety-Critical Equipment .....................................................................................10
5. Managing Organizational Change .........................................................................10
6. Requiring Third-Party Compliance Audits............................................................11
7. Effects of OSHA PSM Coverage on RMP Applicability......................................11
II. Comments on Additional Items for Which EPA Requests Information ...........................11
1. ACC Strongly Opposes Incorporating Inherently Safer Technology Requirements Into the RMP Regulation................................................................11
2. Requirements for Emergency Drills To Test a Source’s Emergency Response Program Should be Performance Based and Flexible ...........................23
3. Automated Detection and Monitoring for Releases of Regulated
Substances Should Not be Mandated ....................................................................27
4. Stationary Source Location Requirements Should Not be Expanded ...............................................................................................................31
5. Emergency Response Program Requirements Do Not Need to be
Revised ..................................................................................................................34
6. There is No Need to Increase Incident Investigation and Accident History Requirements ............................................................................................36
7. Worst Case Release Scenario Quantity Requirements for Processes Involving Numerous Small Vessels Stored Together Should Not
Be Revised .............................................................................................................40

8. Mandates to increase Public Disclosure of Information Will Raise Security Risks and Will Not Promote Regulatory Compliance or Improve Community Understanding of Chemical Risks.......................................42
9. EPA Should Not Adjust Threshold Quantities and Off-Site Consequence Analysis Endpoints for Regulated Substances Based on Acute Exposure Guideline Level Toxicity Values ...........................................44
10. EPA Has Identified No Basis for Changing the Program 3 NAICS
Codes......................................................................................................................47ii

11. There is No Justification for Adopting the ‘‘Safety Case’’ Regulatory Model ..................................................................................................49
12. Streamlining RMP Requirements ..........................................................................52

III. Conclusion .........................................................................................................................551 Comments of the American Chemistry Council on Docket ID No. EPA-HQ-OEM-2014-0328 Request for Information on Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

Executive Summary

The American Chemistry Council (ACC) is pleased to respond to the request for information issued by the U.S. Environmental Protection Agency (EPA) on potential revisions to EPA’s Risk Management Plan (RMP) regulations and related programs. The request for information, Docket ID No. EPA-HQ-OEM-2014-0328, was published in the Federal Register on July 31, 2014 (herein, the RFI or EPA RFI).

ACC believes that process safety standards in the United States, currently implemented through the Program 3 requirements in the EPA RMP rule 1 and the Occupational Safety and Health Administration (OSHA) process safety management of highly hazardous chemicals (PSM) standard 2 , are strong and effective because they are performance-oriented. The RMP rule and the closely related PSM standard currently provide a framework that is used by ACC members to appropriately address risk evaluations and risk reduction.

Given the diverse nature of the industries regulated by the RMP rule, and of chemical industry operations specifically, ACC knows that a flexible, performance-oriented approach to process safety best protects workers and the environment from risk of harm, including risk of accidental chemical release. Each employer is in the best position to make site-specific and process-specific process safety decisions by evaluating its own equipment, onsite materials and chemicals, expertise, organizational structure, and operations. ACC opposes prescriptive solutions that erode the necessary discretion given to employers to manage their particular risks. Any RMP rule changes that impose a one-size-fits-all approach to process safety are a step backwards, because they limit employers’ ability to address unique, facility-specific issues on
site.

ACC is concerned that many of the options under consideration by EPA would, in practice, weaken the highly effective performance-oriented approach that is currently provided for process safety and chemical management under existing EPA and OSHA programs. ACC cautions EPA against trying to ‘fix’ something not shown to be broken, particularly in an area that is so critical to the management of chemical release risks. The public is best protected by focusing on known risks, not by requiring a focus on hazards, which may pose potential - but not actual - concerns. The problem with hazard reduction mandates is that they force resources to be diverted from identifying and resolving higher level risks by requiring a number of other activities, such as evaluations, and possibly actions, that may not properly address the actual risks posed by individual circumstances.

1 40 C.F.R. Part 68, Chemical Accident Prevention Provisions, Subpart D.

2 29 C.F.R. 1910.119, Process Safety Management.2

ACC is very concerned that EPA has not provided sufficient time to allow interested parties to meaningfully comment on the enormous breadth of the inquiry in the RFI. EPA has asked that commenters provide very specific and detailed information on a very large number of issues, including – for each item – costs and economic impacts. Given that EPA declined to provide an extension to the comment period, ACC has not been able to fully develop responses or data to address many of the issues raised and firmly believes these warrant further discussion and development. EPA simply has not provided the time necessary to submit complete and detailed responses.

ACC opposes new mandates to force the implementation of specific technologies or of hierarchies that prioritize accidental release risks over other risks, such as worker protection risks. The current regulatory framework provides (i) performance requirements through structured process hazard analyses and the application of reasonable and generally accepted good engineering practices, and (ii) well-defined risk evaluation processes that allow facility owners and operators to use site-specific and process-specific conditions to determine the best methods to address identified risks. This site-specific flexibility is critical as those responsible for overall risk management are in the best position to evaluate risks and determine appropriate responses given the complexities of their unique operating environments.

The Clean Air Act (CAA) mandates that EPA consult with the Secretaries of Labor and Transportation and coordinate its RMP requirements with those established for comparable purposes by OSHA and the Department of Transportation. 3 Executive Order 13650 (EO 13650) similarly directed EPA and OSHA to enhance federal coordination on chemical safety and security issues. 4 ACC submitted extensive comments on EO 13650, attached as an appendix and incorporated herein. In furtherance of the direction provided by EO 13650, OSHA published a request for information to support rule development on potential changes to the PSM program in December, 2013 (the OSHA RFI). 5 ACC also submitted extensive comments on the OSHA RFI by letter dated March 31, 2014, attached as Appendix 1 and incorporated herein. The EPA RFI references the CAA requirement to coordinate with OSHA and indicates EPA’s intent to evaluate potential changes to the RMP rule in parallel with OSHA’s evaluation of potential updates to the PSM standard. 6

As set forth in ACC’s comments on EO 13650 and the OSHA RFI, ACC has cautioned OSHA against taking any steps to implement changes to the PSM program that increase burdens on employers without first establishing significant risk of harm through data and science-based analyses, in accordance with the framework set forth in Industrial Union Department v.
American Petroleum Institute

. 7 While the Clean Air Act provides a different basis for EPA’s RMP rulemakings, under the Clean Air Act EPA must coordinate the development of its RMP program with OSHA. Given the parallel nature, comprehensive overlap and duplication that exist between the OSHA PSM requirements and the EPA RMP Program 3 requirements, ACC believes that it is critical for the EPA and OSHA programs to remain consistent. If EPA substantially deviates from the OSHA PSM process, this would conflict with the statutory

3 42 U.S.C. §7412(r)(7)(D).

4 78 Fed. Reg. 48029 (August 7, 2013).

5 78 Fed. Reg. 73756 (Dec. 9, 2013).

6 79 Fed. Reg. at 44605.

7 448 U.S. 607, 642 (1980).3

mandate to coordinate, and would have the potential to cause confusion, disarray and misapplied resources in the regulated community.

The current RMP program requirements are based on principles that provide for strong, time-tested accident-prevention and risk management programs. These principles are as follows:

 Performance-based standards (not prescriptive standards);

 Standards are supported by published scientific data;

 Site actions are based on site-specific risk assessments;

 Site actions address root causes of significant performance issues and incidents ;

 Site actions can generally be supported by cost-benefit analysis;

 Sites are provided adequate time and certainty for implementation;

 Standards provide an appropriate structure for compliance and enforcement activities.

In its assessment of whether to develop additional regulations, EPA has the burden to show that additional regulations are reasonably necessary to address a significant risk of harm that is not currently and adequately addressed by the current regulations. ACC believes that nearly 20 years of experience with the RMP program do not demonstrate a need for significant changes. In the RFI, EPA has not provided such evidence in the key areas of inquiry and ACC does not believe that there is sufficient evidence to justify substantial changes to the RMP rule.

To enhance accidental release prevention and mitigation, EPA should focus primarily on the following actions:

(i) encouraging industry programs that have demonstrated effectiveness in

preventing and mitigating accidental release incidents (e.g., ACC’s Responsible Care®, SOCMA’s ChemStewards®, and NACD’s Responsible Distribution®);

(ii) disseminating guidance and alerts to increase knowledge of identified risks and

industry standards in the regulated community, to assist operators in better identifying and addressing root causes of incidents and to more fully integrate into the RMP program those facilities that may currently be deviating from program requirements;

(iii) developing new and supporting existing resource centers where process safety

experts can share best practices and innovative alternative techniques and approaches; and

(iv) detecting and correcting compliance deficiencies through targeted inspections

and, where appropriate, enforcement.

EPA has taken several significant and useful steps in the direction we are advocating. First, after an investigation by EPA’s Inspector General uncovered significant deficiencies in4

EPA’s RMP inspection program, 8 EPA boosted staff training for employees engaged in RMP inspections, and also required that the supervisors of these inspectors received training so that they were knowledgeable about the program. 9 As this additional training has been provided, EPA has increased the scope and number of RMP inspections, and has increased its enforcement activity in this area. Second, EPA has issued some chemical emergency preparedness and prevention advisories and chemical safety alerts as cautions to the regulated community of various risks that EPA has identified and which it believes should be addressed more thoroughly by industry. 10

While these actions help to promote awareness of chemical release risks and risk reduction approaches, EPA’s own internal reviews indicate that additional data needs to be gathered and analyzed to fully understand the impacts of its program. In EPA’s recent evaluation of its own ability to evaluate the role that its inspections play in reducing risks under the RMP program, 11 EPA identified numerous data flaws that prevented an appropriate assessment of impact. “While EPA has anecdotal reports of general deterrence at RMP facilities, it has not studied the effects of general deterrence in the RMP Program in a systematic way.” 12 Consequently, EPA developed a Performance Data Improvement Plan as part of its final report to improve the accessibility, quality, and usefulness of program data to make it viable for
evaluation in the future. 13

We note that EPA has only recently increased the scope and intensity of its inspections and enforcement, and has not yet developed sufficient data to evaluate the effectiveness of these programs. It is therefore premature for EPA to consider regulatory changes, particularly changes that may have substantial impact on those in the regulated community who are complying fully with the RMP program. Before pursuing any regulatory changes, EPA must first implement its Performance Data Improvement Plan, and collect and evaluate performance data to determine the successes and any weaknesses of the existing program. During this evaluation process, EPA should continue to implement and expand its outreach, educational and inspection programs. Once EPA concludes this evaluation, and if EPA believes it supports any rule changes, EPA should then publish an advance notice of proposed rulemaking to explain the data and conclusions and apply them to the broad range of options raised in the RFI. Without completing these steps, EPA cannot conclude that RMP program changes are reasonably necessary to
address a substantial risk of harm.

Information collected by ACC from its member companies indicates that significant accidental chemical releases and related process safety hazards are rare where employers have

8 Among other things, the Inspector General found that 15 of 37 RMP inspectors in 2010 had inspection credentials without documentation establishing they met minimum training requirements, ten inspectors may not have met requirements for basic and program-specific refresher training, and half of the first-line supervisors nationwide did not meet their minimum training requirements. Further, the vast majority of inspection reports lacked the details to demonstrate that the inspections were effective. See Improvements Needed in EPA Training and Oversight for Risk Management Program Inspections, EPA Office of the Inspector General, Report No. 13-P-0178, (March 21, 2013).

9 Id ., at 10 - 15.

10 See http://www2.epa.gov/rmp/chemical-accident-prevention-publications

11 See OSWER Risk Management Program Evaluation Scoping Project: Scoping Assessment and Performance Data Improvement Plan, Final Report, EPA-100-K-13-012 (July 12, 2013 ).

12 Id ., at 23.

13 Id

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strong PSM programs and comply with EPA’s current RMP regulations. Instead, accidental releases, including those cited throughout the RFI, often involve companies that have disregarded substantial portions of the current RMP rule, or occurred prior to the full implementation of the RMP program. Full compliance with the regulations already in place would certainly substantially reduce the risk of accidental chemical release. ACC believes that EPA should focus its time and resources on increasing RMP training and education efforts, as well as targeted enforcement for companies with a history of noncompliance, rather than increasing burdens on the industry across the board with no clear evidence that this will result in
a reduction of risk.

OSHA’s discussion of chemical release incidents in the OSHA RFI confirms that it is not weaknesses in the current PSM program that raises concerns, but non-compliance with the program as it exists today. OSHA stated in its RFI that the PSM standard has been effective in improving process safety and protecting workers from many hazards associated with uncontrolled chemical releases, but that major incidents have continued to occur. 14 It then cited four incidents, three of which resulted from alleged substantial failures to comply with the
current PSM standard. 15 The fourth involved a company that was not subject to the PSM program at all. Consequently, none of the examples used by OSHA as a basis for concern involved findings that facilities in compliance with the PSM program were contributing to major incidents. Similarly, there is no evidence in EPA’s RFI that the data support substantive changes to the RMP programs at compliant RMP facilities.

ACC has fundamental concerns about many of the proposals in the RFI and we encourage EPA to carefully consider the issues raised in these comments as the Agency reviews the information submitted and considers next steps. EPA should more directly focus its efforts on bringing into the program facilities that are currently in substantial non-compliance with the RMP rule, and on developing non-regulatory tools to help operators share best practices and innovative approaches, and better identify and correct root causes of incidents. ACC looks forward to the opportunity to continue this dialogue with EPA in order to further our shared goals of reducing the risk of accidental chemical release and protecting our employees,
communities and the environment.

14 78 Fed. Reg. 73756, 73757 (Dec. 9, 2013).

15 Id. In the first incident, OSHA alleged the company “failed to properly implement many OSHA-required elements of its PSM program.” In the second incident, OSHA issued over 300 citations: “(m)any of the citations were for PSM violations, including failing to properly implement mechanical integrity, training, and standard operating procedures.” In the third incident, OSHA alleged that the company “failed to properly implement its PSM program”.

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I. COMMENTS ON ITEMS IN OSHA’S RFI RELEVANT TO EPA’S RMP REGULATION (SECTION II.C. OF THE EPA RFI)

Given the extensive overlap between the RMP Program 3 provisions and the PSM standard, EPA has created a section of the RFI, Section II.C, which mirrors many of the issues raised by OSHA in the OSHA RFI. ACC submitted extensive comments on the OSHA RFI, which are attached as Appendix 1 and incorporated herein. These comments reference and incorporate ACC’s comments on the OSHA RFI where appropriate to avoid duplication.

1. THERE IS NO BASIS FOR UPDATING THE LIST OF REGULATED
SUBSTANCES

a. Adding Other Toxic or Flammable Substances

ACC believes no toxic or flammable substances should be added to the extensive list in 40 C.F.R. § 68.130.

Under section 112(r)(3), EPA must review the list of substances subject to RMP requirements every five years. In the 20 years since EPA adopted its original list in 1994, EPA has revised some aspects of that list, but it has never proposed adding any chemicals. Similarly, the Chemical Safety and Hazard Investigation Board (CSB) has never recommended that EPA add any chemicals to the RMP list, other than reactive chemicals (discussed below). This history is significant in that it indicates EPA’s original list of 77 toxic substances and 63 flammable substances does not need to be supplemented.

EPA originally adopted its list of flammables in 1994 based on the flash point and boiling point criteria used by the National Fire Protection Association (NFPA) for its highest flammability hazard ranking (flash point below 73°F (22.8°C) and boiling point below 100°F (37.8°C)), as set forth in NFPA’s Fire Protection Guide on Hazardous Materials , 1984, 8 th ed. 16 These characteristics of chemicals have not changed over time. Before proposing to add any new flammables, EPA must evaluate whether there are changes that warrant inclusion today. What is different today than in 1994? For any differences that EPA does identify, are those substances actually used widely in industry and have they figured significantly in process safety incidents that give rise to accidental release concerns? As ACC indicated in its comments on the OSHA RFI, additions to chemical lists should only be considered following scientific analyses showing a need for the additions.

b. Adding High and/or Low Explosives

ACC believes that EPA should not add high and/or low explosives to the list of regulated substances. The rationale for the 1998 deletion of explosives from the list is equally applicable today.

EPA has twice previously considered whether to include explosives in its list of regulated substances. The initial 1994 list included explosives classified by the Department of

16 See 59 Fed. Reg. 4478, 4480 (Jan. 31, 1984).7

Transportation (DOT) as Division 1.1 in 49 C.F.R. § 172.101, but EPA deleted them in 1998. The initial proposal to list explosives triggered a large number of adverse comments:

More than 100 commenters, primarily explosives distributors and users, objected to the listing of explosives in general. These commenters maintained that explosives are regulated adequately by a number of agencies, including the Bureau of Alcohol, Tobacco, and Firearms (BATF), DOT, OSHA, the Mine Safety and Health Administration (MSHA), and the Department of Defense (DOD). The commenters believe the requirements of the existing regulations serve to prevent accidents and cited the safety record of the explosives industry as evidence. The commenters believe the American Table of Distances, used by BATF to set distances for storage of explosives, provides protection for the community from the effects of an accidental explosion; this table is based on a lower overpressure level than the 3.0 psi used by EPA to set the threshold for explosives and, therefore, is more protective of the public. In addition, a number of commenters said the 5,000-pound threshold proposed by EPA would not restrict the effects of the rule to manufacturers, as suggested by EPA, but would also cover many distribution and use sites. They noted that, for example, blasting may require only a small quantity of high explosive (Division 1.1), but that the entire quantity of explosives on-site used in blasting is treated as a high explosive; the high explosive portion serves to initiate the reaction involving the entire quantity. 17

Nevertheless, EPA originally chose to include explosives, primarily to fill regulatory gaps:

While acknowledging that explosives are regulated by a number of other agencies, EPA maintained that public safety would be enhanced if additional information about explosives, such as hazard assessments, were available to emergency response agencies and local emergency planners under section 112(r). EPA’s primary concern was that there were gaps in the existing regulatory framework in the area of communication with emergency responders and local planners because existing regulations and programs were not comprehensive. EPA noted that public safety would be enhanced by additional coordination between facilities handling explosives and the local emergency planners and responders. 18

Subsequently, however, EPA learned that there were no regulatory gaps to be filled by including explosives in its list of regulated substances:

Subsequent to promulgation of the List Rule, IME [the Institute of Makers of Explosives] provided EPA with additional information about the extent of the regulatory gaps discussed above, including coordination with emergency responders. After additional review of other federal, state, and local laws and regulations for explosives, as well as industry practices for explosives

17 59 Fed. Reg. 4478, 4487 (Jan. 31, 1996).

18 61 Fed. Reg. 16598, 16599 (Apr. 15, 1996).8

manufacturing and storage, EPA has concluded that current regulations and current and contemplated industry practices promote safety and accident prevention in storage, handling, transportation, and use of explosives. As a result, these regulations and practices adequately protect the public and the environment from the hazards of accidents involving explosives. 19

In deciding to delete explosives, EPA noted that all the comments received on the issue supported deletion. 20

The RFI cites CSB’s recent report on the Donaldson Enterprises explosion as a reason for considering adding explosives back into the list of regulated substances. Notably, however, the CSB report did not recommend this action. Instead, CSB recommended that EPA revise its RCRA regulations on disposal of explosives and, in the meantime, issue RCRA guidance. 21 The 1998 CSB report on the Sierra Chemical Company explosion, also cited in the RFI, did not include any recommendations for EPA. 22

One of the issues raised by the RFI relates an alternative to expanding the scope of RMP, by expanding the use of EPCRA information. As EPA noted in the RFI, most explosives are subject to EPCRA requirements:

Even after the removal of high explosives from the RMP list, most forms of explosives (not just high explosives) remain subject to hazardous chemical inventory reporting requirements under EPCRA. The owner or operator of any facility with more than a reporting threshold of any hazardous chemical requiring a safety data sheet (formerly material safety data sheet) under the OSHA Hazard Communication Standard is required to submit safety data sheets to their State Emergency Response Commission (SERC), LEPC, and local fire department, and to annually report their inventory of hazardous chemicals to their SERC, LEPC, and local fire department. This information should better prepare local authorities to respond to emergencies at facilities that handle hazardous chemicals, including explosives. 23

ACC supports improved coordination with LEPCs with respect to information on explosives already being reported.

c. Adding Ammonium Nitrate

While OSHA currently regulates storage of ammonium nitrate under 29 C.F.R. § 1910.109(i), EPA does not regulate ammonium nitrate as part of RMP. ACC recognizes that the 2013 incident at the West Fertilizer Company facility and other incidents create great pressure on

19 Id.; see also 63 Fed. Reg. 640, 641 (Jan. 6, 1998).

20 63 Fed. Reg. 640, 641 (Jan. 6, 1998).

21 CSB, Final Report: Donaldson Enterprises Inc. (2013), Recommendations 2011-06-I-HI-R9 and 2011-06-I-HIR10, http://www.csb.gov/assets/1/19/DEI_Final_01172013.pdf

. 22 CSB, Final Report: Sierra Chemical Co. High Explosives Accident (1998), http://www.csb.gov/assets/1/19/Final_Sierra.pdf

. 23 EPA RFI, 79 Fed. Reg. 44604, 44608 (July 31, 2014).9

EPA to add ammonium nitrate to the list of regulated substances. EPA should not do so without an appropriate economic analyses, as required by applicable Executive Orders and statutes,
however.

EPA should consider that a large percentage of ammonium nitrate is used in agriculture as fertilizer. The RFI acknowledges that approximately 4,000 facilities have reported that theyare bulk agricultural chemical distributors subject to Program 2 requirements, mainly due to onsite quantities of anhydrous ammonia. ACC anticipates that many more facilities, including many family farms, would become subject to RMP requirements if ammonium nitrate were added as a regulated substance.

EPA should conduct appropriate evaluations of the economic impact of adding ammonium nitrate to the list of regulated substances before determining whether to propose that addition. In addition, since ammonium nitrate is a reactive chemical, please see the next section
of these comments for additional concerns.

d. Adding Reactive Substances and Reactivity Hazards

ACC addressed this topic in its comments on the OSHA RFI in section II.B. As noted above, those comments are incorporated here by reference. As with PSM’s list of highly hazardous substances, the RMP list of regulated substance already includes a number of chemicals that are highly reactive. A list-based approach is inherently inadequate to address reactive chemicals, since for pairs of chemicals, which make up the vast majority of reactive substances, extrinsic process and location-specific conditions must be considered in any hazard

assessment.

Before EPA takes any additional steps, it must first conduct a sound scientific analysis and technical evaluation to justify expanding the list of regulated substances to include reactives.Once it does so, it should prioritize reactivity hazards or conditions. Even within the highpriority class of chemicals that are self-reactive or violently reactive with air and/or water, EPA should not categorically add those chemicals to the list of regulated substances without first developing a valid, consistent methodology to identify threshold hazard quantities or concentrations. EPA can most effectively accomplishing its goal of reducing the risk of reactive chemicals by promoting awareness of the existing industry evaluation tools, references, and guidance on how to evaluate reactive hazards.

e. Adding Other Categories of Substances

The RFI suggests the possibility of adding organic peroxides, oxidizers, combustible dusts, or other flammable solids to the list of regulated substances. Many of the points made in the ACC comments on the OSHA RFI, section II.B, also apply to this topic; those points are incorporated here by reference.

EPA should acknowledge that OSHA has struggled even to define “combustible dust.” The United Nations working group on the Globally Harmonized System (GHS) has so far resisted OSHA’s effort to adopt classification criteria for combustible dust, since this is not an inherent hazard but only a consequence of the particular form of the material, particularly related10

to particle size. 24 While OSHA has unilaterally applied hazard communication requirements to combustible dust, it decided to bypass adoption of a definition of that key term altogether 25 while it considers rulemaking. 26

ACC is aware of the nature and risks of combustible dust in the workplace. However, these risks, if not properly addressed, are presented to employees in the workplace, not to offsite public receptors or the environment. EPA has not suggested that it has any evidence of combustible dust presenting a significant risk to public health or the environment. There is therefore no basis for EPA to consider regulating combustible dust under the RMP rule. The risks posed by combustible dust are for consideration by OSHA, not by EPA.

f. Removing Certain Substances From the List or Raising Their Threshold Quantity

ACC has not had sufficient time to develop a response to this item.

g. Lowering the Threshold Quantity for Substances Currently on the
List

ACC is not aware of any listed regulated substances for which the current threshold quantity should be lowered.

2. ADDITIONAL RISK MANAGEMENT PROGRAM ELEMENTS

ACC addressed this topic in its comments on the OSHA RFI. See section II.C of those

comments.

3. UPDATES TO APPLICABLE RECOGNIZED AND GENERALLY
ACCEPTED GOOD ENGINEERING PRACTICES

ACC addressed this topic in its comments on the OSHA RFI. See section II.D of those

comments.

4. SAFETY-CRITICAL EQUIPMENT

ACC addressed this topic in its comments on the OSHA RFI. See section II.E of those

comments.

5. MANAGING ORGANIZATIONAL CHANGE

ACC addressed this topic in its comments on the OSHA RFI. See section II.F of those

comments.

24 See 77 Fed. Reg. 17574, 17704 (Mar. 26, 2012).

25 Id . at 17705

26 See Department of Labor, Semiannual Agenda of Regulations (May 23, 2014), RIN 1218-AC41, http://resources.regulations.gov/public/ContentViewer?objectId=0900006481710771&disposition=attachment&cont entType=pdf

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6. REQUIRE THIRD-PARTY COMPLIANCE AUDITS

ACC addressed this topic in its comments on the OSHA RFI. See section II.H of those

comments.

7. EFFECTS OF OSHA PSM COVERAGE ON RMP APPLICABILITY

ACC addressed the topic of OSHA’s interpretation of its exemption for retail facilities in
the comments on the OSHA RFI. See section II.J of those comments.

As the EPA RFI notes, if OSHA were to alter its interpretation as suggested, most of the stationary sources currently in Program 2 would become subject to Program 3. EPA should conduct appropriate economic analyses of the impact of such a change, as required by applicable Executive Orders and statutes, before OSHA or EPA seeks to propose any amendments to effect that change.

II. COMMENTS ON ADDITIONAL ITEMS FOR WHICH EPA REQUESTS INFORMATION (SECTION II.D. OF THE EPA RFI)

1. ACC STRONGLY OPPOSES INCORPORATING INHERENTLY SAFER TECHNOLOGY REQUIREMENTS INTO THE RMP
REGULATION

“EPA is planning the following steps to advance safer technologies and alternatives:

 Publishing a joint alert with OSHA illustrating the concepts, principles and examples of safer technology and alternatives to make industry more aware of this information, while providing sources of information for further investigation and review

 Publishing a voluntary guidance document with OSHA for operators on how to reduce risks by employing safer technology and alternatives, by offering a more thorough examination of alternative measures and safety techniques, including examples of safer technology and alternatives or practices

 Based on the evaluation of feedback from the alert, guidance, and this RFI, EPA would consider proposing an amendment to the RMP regulations that requires:

o An analysis and documentation of safer technologies and alternative

o Integration of the safer technologies and alternatives analysis into the PHA

o Implementation of safer technologies and alternatives where feasible; EPA would not make any determination regarding the specific analysis, technology, design, or process selection by chemical facility owners or operators.” 27

ACC Strongly Opposes Incorporating an IST Mandate Into the RMP Regulation

ACC and our member companies work continuously to improve process safety standards and practices with comprehensive management systems that include consideration of inherently safer technologies. The business of chemistry has a culture of safety going back many years. The nature of our operations requires it. This culture of safety has created what Labor

27 79 Fed. Reg. at 44621 (For ease of reference, in shaded text placed throughout this submission, ACC has included excerpts from EPA’s RFI for each item to which ACC offers comment).12

Department data reveals is one of the safest industries in the United States. ACC member companies have reduced the number of safety incidents that result in a product spill, fire, explosion or injury by 58% since 1995, and have reduced their recordable injury and illness incidence rates by 80% since 1990. 28 In fact, the total recordable injury rate for the chemical industry as reported by the Bureau of Labor Statistics is substantially lower than the rate for private industry and the rate for all industry including state and local government. 29 This commitment to safety is expressed through Responsible Care®, our Council’s initiative for improving performance; our adherence to, and support for, governmental standards and research; and our longstanding and effective partnerships with local, state and federal government agencies. As a result of this focus on safety, ACC’s Responsible Care® companies have a worker illness and injury rate that is roughly one-fifth that of the U.S. manufacturing sector as a whole, and roughly one-third that of the business of chemistry overall.

Rather than mandating IST reviews, EPA should promote the use of safer alternatives and practices by (1) supporting industry programs that have demonstrated effectiveness (e.g., ACC’s Responsible Care®, SOCMA’s ChemStewards®, and NACD’s Responsible Distribution®), (2) issuing alerts and guidance under EPA’s RMP program to increase awareness of requirements, and to enhance knowledge of industry standards in the regulated community, and (3) supporting existing resource centers where process safety experts can share safer alternative techniques and approaches. These actions would be more effective at addressing risk than what could be accomplished through a rule change that mandates IST. In particular, these actions would focus on reaching facilities with potential risks that currently may operate without good knowledge of the existing regulatory requirements and structure.

ACC believes that a regulatory approach mandating the consideration or adoption of safer technology would be counterproductive. ACC opposes the incorporation into regulatory programs of new mandates to consider or implement inherently safer technologies (IST). As described in the Center for Chemical Process Safety (CCPS) and American Institute of Chemical Engineers (AIChE) Report 30 on the definition of IST, “safer” only has a meaning when placed in proper context—factors such as risk shifting, unintended consequences, feasibility, and economic impact must be considered and may negate any benefits initially assumed to accrue. This broad definition, along with other well-established industry references on IST, illustrates the difficulty of adopting a mandatory regulatory program pursuing “safer alternatives.” Furthermore, every regulatory program has a distinct focus, whether it is employee safety, environmental protection, or security. Therefore, IST mandates under one program cannot account for and may even conflict with other factors that a facility incorporates in its individualized consideration of inherently safer approaches. The facility operators, however, are able to and do consider inherently safer approaches holistically, in order to ensure the highest degree of safety in all respects.

28 See http://responsiblecare.americanchemistry.com/Performance-Results/Safety#worker

. 29 See : http://www.bls.gov/news.release/pdf/osh.pdf , Table 1, Incidence rates of nonfatal occupational injuries and illnesses by case type and ownership, selected industries (BLS, 2012).

30 Center for Chemical Process Safety, The American Institute of Chemical Engineers For Chemical Security Analysis Center Science & Technology Directorate, U.S. Department of Homeland Security, Final Report: Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use (July 2010).13

IST decisions must be process-, site-, and hazard-specific, technically and economically feasible, and avoid shifting risk. Regulation-based mandatory IST policies are not feasible because they do not consider the numerous factors related to processes, facilities and society at large. As such, proposed regulatory approaches have failed to address the potential for trading one risk for another. A regulatory program focused exclusively on eliminating a safety hazard would overlook other important considerations and risks that must be factored into an evaluation of a process change.

EPA understood the complexity of IST decisions when it promulgated the RMP regulations in the 1990s. EPA stated then that it did not believe an IST requirement would produce additional benefits beyond those existing under the general program structure. 31 EPA rightly acknowledged that assessment of inherently safer design alternatives has the greatest benefit in the development of new processes. Industry generally examines new process alternatives in the planning and permitting stages prior to making a capital investment to ensure that the design chosen will be the best fit for the specific planned process. Rationally, industry is motivated to do so in order to minimize the costs of administrative, engineering and pollution controls that would be necessary to mitigate outdated designs. Further, although some existing processes may superficially be judged inherently less safe than other processes, EPA believed that industry could appropriately and safely operate these processes using proper management and hazard controls, without squandering resources searching for unavailable, unaffordable or impractical new process technologies. ACC believes the same considerations apply today.

Inherently safer approaches have been and will continue to be considered by facilities as a matter of course. In fact, one of the key elements under ACC’s Responsible Care Process Safety Code requires ACC member companies to consider safer alternatives as one of many risk reduction measures when conducting a risk assessment. Importantly, the facility operator is in the best position to have a comprehensive picture of what may or may not work and how the facility environment will be impacted by process changes. Companies must be allowed to continue to use all risk management tools and options at their disposal, and the consideration of available options must be placed in the context of the complexities of their unique operating environments. Because of these complexities, regulating the use of “safer alternatives” through rule mandate is not feasible. No single regulatory program addresses the holistic safety and security environment of a given facility. No single agency can fully appreciate the entirety of operational issues across industry sectors, and therefore no single agency should attempt to mandate a particular use of “safe alternatives.”

For example, under RMP, EPA is concerned with preventing accidental releases of hazardous chemicals offsite and mitigating the consequences of such releases. Separately, OSHA’s PSM program is concerned with preventing or mitigating the consequences of catastrophic releases of industrial processes in the workplace. While there may be overlap between these programs, the regulations, by design and intent, do not address the same issues. An analysis of technologies that are intended solely to reduce offsite impacts could certainly result in the selection of different technology options than an analysis of technologies that are

31 See EPA Preamble to Final Rule, Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7), 61 Fed. Reg. 31,668 to 31,730 (June 20, 1996), available at http://www.gpo.gov/fdsys/pkg/FR-1996-06-20/html/96-14597.htm

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intended solely to reduce workplace exposures. Given the differing mandates of the two programs, any “safer approach” requirement that might be proposed to enhance any one of these programs would necessarily be limited in scope and could interfere with implementation of the other program. Taken together, however, the array of existing regulatory programs, currently encourage facilities to consider and implement site-specific safer alternatives where they are appropriate.

ACC’s members and industry are committed to chemical safety and recognize IST as one of many potential tools to achieve this goal. See Multi-Association Letter on IST (attached as Appendix 2); CCPS Executive Director Scott Berger, Comments to US Senate Environment and Public Works Committee Hearing (March 6, 2014) (attached as Appendix 3); CCPS Executive Director Scott Berger, Comments to the EPA Listening Session (February 27, 2014) (attached as Appendix 4). However, requiring the documented use of inherently safer systems analysis is inappropriate and founded upon erroneous suppositions.

IST is a complex concept that requires a holistic risk assessment approach. Current regulatory programs, as well as corporate practices, already encourage facilities to incorporate IST, where and as appropriate. As they exist today, OSHA’s PSM standard, EPA’s RMP Rule, the U.S. Department of Transportation’s (DOT’s) Hazardous Materials regulations under the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the U.S. Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) all require operators to comprehensively examine operations and take necessary steps to make their processes and the environment safe and secure. Creating new IST mandates would require unprecedented complexity while providing little benefit. Indeed, such mandates could actually hinder the federal government’s ability to implement existing safety and security programs by emphasizing IST over other more appropriate process safety and security techniques.

A. Definitions

The term IST encompasses several terms of art, including inherent safety, that are used by experts in the field of process safety. ACC has adopted the definitions of these terms that were developed by DHS’s Chemical Security Analysis Center (CSAC) and CCPS. CSAC and CCPS “produced a short, scientific definition of IST” as follows:

INHERENTLY SAFER TECHNOLOGY DEFINITION

Inherently Safer Technology (IST), also known as Inherently Safer Design (ISD), permanently eliminates or reduces hazards to avoid or reduce the consequences of incidents. IST is a philosophy, applied to the design and operation life cycle, including manufacture, transport, storage, use, and disposal. IST is an iterative process that considers such options, including eliminating a hazard, reducing a hazard, substituting a less hazardous material, using less hazardous process conditions, and designing a process to reduce the potential for, or consequences of, human error, equipment failure, or intentional harm. Overall safe design and operation options cover a spectrum from inherent through passive, active and procedural risk management strategies. There is no clear boundary between IST and other strategies.15

 ISTs are relative: A technology can only be described as inherently safer when compared to a different technology, including a description of the hazard or set of hazards being considered, their location, and the potentially affected population. A technology may be inherently safer than another with respect to some hazards but inherently less safe with respect to others, and may not be safe enough to meet societal expectations.

 ISTs are based on an informed decision process: Because an option may be inherently safer with regard to some hazards and inherently less safe with regard to others, decisions about the optimum strategy for managing risks from all hazards are required. The decision process must consider the entire life cycle, the full spectrum of hazards and risks, and the potential for transfer of risk from one impacted population to another. Technical and economic feasibility of options must also be considered.

CCPS & DHS, Final Report: Definitions for Inherently Safer Technology in Production, Transportation, Storage, and Use at Section 3.1 (July 2010).

This definition highlights that the application of IST analysis is necessarily part of an iterative risk management process. It is one of many tools in the risk management toolbox that should be applied in a unique site-specific continuum of other important risk management tools. As such, the application of IST analysis is not suited for EPA’s rigid command/control/enforce approach to regulatory programs.

Further, inherent safety is an element of plant design, process and transportation safety, and customer applications. While IST has been implemented within our industry for decades, certain high-profile incidents have been the catalyst for agency rationalization that inherent safety could provide benefits by minimizing the consequences of a chemical incident. However, by its very definition, “inherent safety” means safety and security elements that are built into a process in the early stages of its life cycle, thereby limiting the need to add these elements as “layers of safety” as a part of the process risk management program. Process risk management, which is illustrated in Figure 1 below, involves “collective efforts to manage process risks through a wide variety of strategies, techniques, procedures, policies and systems that can reduce the hazard of a process, the probability of an accident, or both.” See CCPS Concept Book, Inherently Safer Chemical Processes, A life Cycle Approach, at 11 (2d ed. 2008).16

B. Inherent Safety Strategies

The strategies used in chemical process engineering to reduce and mitigate risks associated with containment of hazardous chemicals or energy are listed below. It is important to acknowledge that while any one of these strategies may successfully mitigate a discrete risk in a given situation, it is impossible to completely eliminate all process risk. Rather, these strategies are used to successfully manage inherent risks to prevent releases and their consequences.

1. Minimization/Intensification. Using smaller quantities of hazardous substances within the process. This can be accomplished by a variety of means, such as reducing or eliminating in-process storage, using fewer pieces of equipment, or using equipment
that holds smaller volumes.

2. Substitution. Replacing a particular material with a less hazardous substance is sometimes possible if the chemistry of the process will allow it. For example, helium, which does not burn, may be an inherently safer substance compared to hydrogen, which is highly combustible.

3. Moderation/Attenuation. Adopting practices that support less hazardous conditions (such as lower temperature or pressure) or a less hazardous form of material can be17 utilized if the chemistry of the process allows it. An example might be the use of a catalyst to lower the temperature of a reaction required to achieve the same level of
conversion.

4. Simplification/Error Tolerance. Designing to eliminate or tolerate operating errors; making the plant more user-friendly and reliable. A simple example is the redesign of pop tops on aluminum beverage cans so that the tab does not come off when opened, thus eliminating the prospect of the person opening the can (or anyone else) getting cut by the top. An extreme example, Safety Instrumented Systems, eliminates the interaction of the operator with the process altogether.

See id. at 13. It is very important to understand that even when properly implemented, these strategies cannot reduce overall process-related risk to zero. “[T]here are often, and perhaps always, conflicting benefits and liabilities associated with the different options.” See id. at 30. Reducing one hazard may create a new hazard and/or increase the magnitude of an existing hazard. This conflict highlights the need for those making IST decisions to have intimate knowledge of all the hazards associated with a process and its alternatives.

C. History of IST Application

The concept of inherent safety was developed decades ago by an industry chemist. Inherently safer design and technology have long been core elements of process safety, plant design and sound business practices in the chemistry industry. Recent public debate around IST demonstrates a fundamental lack of knowledge about the presence of IST throughout the United States chemical industry. The debate also highlights the potential heterogeneity within the industry regarding the application of IST.

Existing EPA and OSHA regulations also drive consideration of inherently safer approaches without specific regulatory directives. OSHA’s PSM standard and EPA’s RMP rule both require the use of periodic process hazard analyses. These federal programs mirror ACC’s Responsible Care Management System® (RCMS®) for process safety. Under this approach, a PHA is defined as “periodic assessment and documentation of process hazards, and implementation of actions to minimize risks associated with chemical operations, including the possibility of human error.” When EPA promulgated the RMP Rule, some commenters asked EPA to require facilities to conduct “technology options analyses” to identify inherently safer approaches. EPA declined to do so, stating:

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

See EPA Preamble to Final Rule, 61 Fed. Reg. 31,699 (June 20, 1996) (emphasis added). EPA thus recognized that it would be counterproductive to impose an IST mandate.18

D. Rationale For Consideration of IST

Because “inherently safer” is a way of thinking and involves a risk management approach, any prescriptive legislative and regulatory approaches to addressing IST are not practical. The chemical industry can and does consider inherently safer principles as a part of individual company risk management programs and mitigation techniques, including the use of formal risk-assessment and risk-minimization technology, which are already being applied to chemical processes. This approach must consider total risk 32 and the economic burden to potentially regulated facilities – as potential hazard does not always equate to potential risk, and cost could far outweigh potential benefit.

The public is best protected by focusing on risks, not hazards. As the United States Supreme Court explained in the Benzene case, 448 U.S. 607 (1980) (J. Stevens, plurality), accepting the possibility of even deadly consequences (for example when driving a car) is a part of participating in society; the real question is not whether the consequence is serious, but rather the risk, the likelihood that the consequence occurs. While many groups focus only on reducing hazards, the best way to protect workers, community and the environment is to focus on risks, that is, to analyze which hazards are most significant and which threats are most likely. Then company resources for mitigating risk can be, and indeed already are, allocated in the most effective and efficient way. If the focus is only on hazard reduction, the most important risks can be overlooked and resources squandered on less important initiatives. The myriad challenges associated with regulating an operator’s consideration of IST, as listed below, illustrate why it would be virtually impossible to craft an IST regulation that would have any useful benefit:

 Total risk elimination is not possible. Industry must not be required to continually evaluate and implement some form of IST, with no real safety benefit and at a potentially significant cost. No acceptable endpoint can be imposed by regulation for disparate facilities, and without a defined endpoint, industry would be required to continually analyze and modify its processes due to a constantly changing understanding of IST, resulting in a never-ending cycle of modification and increasing cost.

 The regulatory implications of the meaning of “consideration of safer alternatives” are not clear. For example:

o What decision-making criteria will be required for acceptance/rejection of IST at various stages of an IST evaluation process?

o Are economic considerations alone enough to reject an IST solution in favor of some other method of protection (such as instrumented safety systems (active protection))?

32 The total risk approach in this context seeks to minimize risks overall from the transportation, storage and use of
chemicals.19 o When should an IST evaluation process be carried out during the plant life cycle, and in relationship to (potential) scientific developments
behind the IST?

o What level of documentation is necessary to justify a decision?

 It is not possible to delineate the precise role of existing federal/state/local requirements and of existing facility inherently safer measures.

 Trade secret and proprietary information restrictions provide limitations on a company’s ability to modify its processes. See ACC IST Materials, Factors that Affect IST Decision Making & Examples of Limitations of Mandating Inherently Safer Approaches (attached as Appendix 5, Attachment 1).

 It is not feasible to adapt the performance standard based approach to process risk management to a regulatory framework.

 IST raises significant risk-shifting concerns that must be evaluated. How would an agency evaluate risk-shifting in determining what is inherently safer and from where would it draw process knowledge to understand the process
risks that must be considered?

These issues demonstrate that IST requirements should not be mandated in the RMP Rule.

E. Rationale Against Mandatory IST

While certain types of existing processes can accommodate retrofit IST, many cannot. There are now a sufficient number of both theoretical and actual well-intended examples of IST approaches that are meant to solve what appear to be straightforward safety and risk issues, but could or have resulted in trading one risk for another. Thus, mandatory, regulated IST would frequently create risks to workers and the public that did not previously exist, and which may be of greater magnitude than the initial risk. Placing the decision of technology selection into the hands of regulators will never be the answer to the complex questions of if, what, how and when IST should be implemented. It is simply beyond the ability of any single regulatory entity to understand and make good judgments about what would constitute an inherently safer approach in every relevant setting. The administrative decision-making process is not well suited to making decisions based on risks, tradeoffs, and predictions about future risks that are unavoidable in inherently safer approaches.

Even if the burden of making choices was left up to facilities via a “performance-based” requirement, it would be unreasonable to create civil and criminal liability given the inherent uncertainty about future risks. Factors that complicate mandating IST are described in ACC IST Materials, Example of IST scenario involving proprietary information (attached as Appendix 5, Attachment 2), along with examples of the unintended adverse consequences of certain real andtheoretical IST decisions. In particular, ACC has evaluated a state program that imposed ISTrequirements: the New Jersey Toxic Catastrophe Prevention Act.

 New Jersey Toxic Catastrophe Prevention Act20

In 1985, the State of New Jersey enacted the Toxic Catastrophe Prevention Act (TCPA), which required risk reduction plans to look at potential alternative processes, procedures, and equipment that might reduce the risk of a hazardous release in hopes of preventing future hazardous environmental incidents. The TCPA program rules were revised in 2003, and the changes explicitly mentioned and defined inherently safer technologies (IST) as “the principles or techniques incorporated in a newly designed and constructed covered process to minimize or eliminate the potential for an extraordinary hazardous substances accident.” At that time, the New Jersey Department of Environmental Protection (NJDEP) stated that “every IST technique will not be suitable for every process and will rely on the owner or operator’s evaluation of which techniques, if any, will be appropriate for a particular newly design or constructed process.” In 2008, the TCPA program was expanded to require all TCPA facilities to conduct IST reviews on both new and existing processes that contain a listed EHS meeting or exceeding the regulatory threshold. See 40 N.J.R. 2254(a) (May 5, 2008). All TCPA facilities were required to submit IST feasibility reports to the NJDEP by September 2, 2008.

In April 2012, a representative of the NJDEP delivered a presentation based on a study performed by the State of New Jersey. 33 The presentation focused on the initial lot of 85 IST feasibility reports submitted under the TCPA IST program. It was reported that 45 facility reports out of the 85 total (53 percent) indicated they had implemented or scheduled to implement IST measures as a result of their review. Facilities were categorized into six sectors: chemical manufacturing, petroleum refining, food processing, power generation, water or wastewater treatment, and other industrial sectors. Incorporating inherent safety into a chemical manufacturing process is generally considered to be most effective when employed during the new process plant design phase and incorporated as an integral part of the process or final end product. IST becomes increasingly more difficult and, in many cases, prohibitive when dealing with existing processes that are not easily changed without fundamentally altering the process or plant design. Therefore, NJDEP was concerned that the potential IST implementation options would be significantly limited under the TCPA for existing facilities.

As a result, the State of New Jersey created its own definition of IST for New Jersey regulatory purposes, as opposed to using the widely recognized definition developed by the CCPS. NJDEP stretched the definition of IST to include passive, active, and procedural controls as well as to the fundamentals of chemical processing. In NJDEP’s effort to broaden the IST application under the TCPA, it included routine safety improvements that are considered and implemented on a regular schedule by chemical facilities as required by internal maintenance programs and existing federal regulations, such as OSHA’s Process Safety Management of Highly Hazardous Chemicals (PSM) standard. The NJDEP incorrectly defined inherent safety to allow “add-on” safety equipment that is not part of the inherent safety concept as defined by CCPS and others. Of the 205 IST measures implemented under the New Jersey TCPA program, the vast majority were reported under the “simplification” strategy, which New Jersey believed did not necessarily result in elimination of an inherent hazard, but rather made a hazard less intense or less likely to occur by reducing the opportunity for operator error.

33 Iclal Atay and Paul Komosinsky, “Inherently Safer Technology Implementation—Risk Reduction and Risk Shifting,” Process Safety Progress 32, no. 1 (November 28, 2012): 12-16. http://onlinelibrary.wiley.com/doi/10.1002/prs.11547/pdf

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The types of IST implemented under the “simplification strategy” included a variety of routine safety upgrades, such as installing new computer systems, adding remote shutoff valves and alarms, and adding leak detectors and process instrumentation to monitor operating conditions—none of which truly makes a process “inherently” safer. Other changes reported included the upgrading of construction materials, minimizing connections and flanges in process equipment and piping, upgrading to blowout resistant gaskets, increasing wall strength of piping and equipment, and reducing pipe seams and joints to minimize the number of potential release points.

While such safety enhancements are useful and do contribute to managing safety risk (rather than risk elimination or reduction, which are the defining goals of IST) at a chemical facility, they do not make the process “inherently” safer. Such safety upgrades are currently routinely conducted on a regular and voluntary basis when new technology and software become available and when they contribute to reducing process hazards. Moreover, these types of enhancements are currently required to be evaluated under the OSHA PSM standard to address site-specific risks at least every five years when PHAs are revalidated. No “IST consideration” mandate is needed to encourage facilities to consider these types of changes, as they are identified routinely under other regulatory and voluntary programs.

Based on our analysis of the New Jersey IST program, it is difficult to see how nationalizing this program would provide any significant new risk reduction benefit, especially when compared to the enormous burdens it would place on facility owners and the economy. It is unclear how federal regulators would be able to absorb and administer such a complex program without a significant increase in resources and additional budget. In fact, EPA itself has long held that IST requirements are not worth pursuing since it would not produce additional benefits beyond those that already exist in the current RMP Rule structure.

F. Rationale in Favor of Voluntary Safety Management Programs

The chemical industry is committed to continual improvement in its safety programs. For example, ACC and its members already have taken the lead in developing a new paradigm of process safety that not only complements the current regulatory structures (PSM and RMP), but goes beyond the current regulatory requirements to require the broad framework of a safety management system. This system reflects a culture of continuous improvement, all without the intervention of a regulator and under the discretion of the employer, who has better understanding of the specific workplace conditions and the unique site-specific balancing of risks that is necessary to run a sophisticated safety program.

ACC requires each member to achieve certain goals in the Responsible Care® Management System and the RC14001 Technical Specifications, including the following: (1) to make continual progress toward the aim of no accidents, injuries, or harm to human health or the environment; (2) to design and operate facilities in a safe, secure, and environmentally sound manner; (3) to install a culture throughout all levels of member organizations to continually identify, reduce, and manage process safety risks; (4) to support research on the health, safety, and environmental effects of member products and processes; and (5) to communicate product, service, and process risks to our stakeholders. Conformance to these goals and practices is confirmed through voluntary third-party audits conducted on ACC members.22

Specifically, each ACC member must commit to implementing and adhering to the following process safety management practices:

1. Leadership and Culture – Senior management and leadership are committed to establishing and communicating process safety as a core value and enforcing high standards of performance at all levels within the organization. Company leadership also promotes and develops a process safety culture within the organization, encouraging openness to raise concerns and identify opportunities for improvement.

2. Accountability – Process safety roles and responsibilities across the organization are clearly defined and include an expectation to identify, and authority to respond to, process safety concerns. Senior leaders are held accountable for process safety performance, while employees understand the importance of process safety as it applies to their jobs and are responsible for following and contributing to the work processes to achieve improvement in company process safety performance.

3. Knowledge, expertise and training – Process safety competency requirements are established and executed for management, engineering, and operational personnel, as well as contractors and third-party service providers, commensurate with the activities performed.

4. Understanding and prioritization of process safety risks – Member companies identify and understand the hazards and risks of their processes and implement systems fordocumenting and accessing comprehensive and current information on processrelated hazards and risks to enable informed decision-making.

5. Comprehensive process safety management system – Member companies design systems to manage and mitigate identified risks with adequate safeguards. Management of process safety considers passive controls; engineering controls; operational controls; inherently safer approaches; inspection, maintenance, and mechanical integrity programs; management of change procedures; and scenario planning.

6. Information sharing – Member companies establish processes fostering two-way flow of information between management, employees, contractors and other stakeholders to share process safety information, ensuring that experiences from process safety reviews, inspections, audits, and incident and near-miss investigations are shared, as relevant, across the company in a timely manner.

7. Monitoring and improving performance – Senior management and leadership continually monitor process safety performance through routine evaluation of process safety management systems, independent of regulatory audits, to confirm that the desired results are achieved, using appropriate leading and lagging indicators. Results are reviewed at planned intervals to determine progress against process safety performance expectations and to take action to improve performance when needed.

Under the Responsible Care® program, each ACC member is required to demonstrate compliance with each of these elements. This commitment to safety is expressed through23

Responsible Care®, our industry’s initiative for improving performance; our adherence to, and support for, governmental standards and research; and our longstanding and effective partnerships with local, state and federal government agencies.

2. REQUIREMENTS FOR EMERGENCY DRILLS TO TEST A SOURCE’S
EMERGENCY RESPONSE PROGRAM SHOULD BE PERFORMANCE
BASED AND FLEXIBLE

“In order to improve coordination with community responders and ensure that facility personnel have practice responding to accidental releases, EPA is considering requiring RMP-regulated facilities to perform exercises or drills as an element of the emergency response program identified under Subpart E of the RMP regulation.” 34

EPA has provided no data indicating that additional regulatory requirements are needed to promote the effective implementation of the emergency response program under Subpart E of the RMP regulations. The existing requirements, coupled with voluntary programs like ACC’s Responsible Care®, have been sufficient for ACC members to ensure that facility personnel and contractors are trained and able to coordinate with community responders when responding to accidental releases. ACC does believe that additional outreach and education opportunities for stakeholders and the general public would be useful to promote awareness of the benefits of drills in certain circumstances, but does not believe that a one-size-fits-all mandate to perform such drills is appropriate or necessary.

If EPA were to focus its resources in this area on issuing and disseminating guidance on the benefits of emergency drills, ACC believes that these efforts would help to reach those facilities that may not currently perform such drills, or that may not have fully coordinated their response plans with local responders. The target audience in this instance is those facilities that do not currently perform these drills or undertake sufficient coordination efforts. Imposing mandates on facilities that already perform emergency drills or already coordinate adequately with local responders will not enhance safety or reduce the consequences of accidental releases.

EPA’s existing regulations and guidance on emergency drills are sufficiently comprehensive. EPA’s guidance on the emergency response plan requirements under Part 68 of the RMP regulations indicates that the emergency response program developed and implemented at each covered facility should include a section describing the training employees will receive in relevant emergency response procedures, and that owners/operators should keep on hand at the facility records sufficient to demonstrate compliance with the training and maintenance requirements. 35 EPA’s guidance also emphasizes the importance of conducting regular training in order to ensure that the program is as useful as possible in an emergency. Lastly, the guidance recommends that the training procedures in any emergency response plan should:

address the actions to take in response to releases of regulated substances from all covered processes. The training should be based directly on the procedures that you have included in

34 79 Fed. Reg. at 44623.

35 See EPA, General RMP Guidance - Chapter 8: Emergency Response Program (Apr. 2004) (Emergency Response Guidance), available at http://www2.epa.gov/sites/production/files/2013-11/documents/chap-08-final.pdf

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your emergency response plan and must be given to all employees and contractors on site. Individuals should receive training appropriate to their responsibilities:

 If they will only need to evacuate, then their training should cover when and how to
evacuate their location.

 If they may need to activate an alarm system in response to a release event, then their training should cover when and how to use the alarm system.

 If they will serve on an emergency response team, then their training should cover where emergency equipment is deployed, how to use emergency equipment and how the incident command system works.

Emergency Response Guidance at 8-15.

ACC recognizes the usefulness of emergency response training, and of programs that practice emergency response by periodically exercising the program, evaluating performance and making improvements based on observed conditions. ACC members currently devote substantial resources to implementing their emergency response training programs, providing such training and implementation opportunities to employees, often in coordination with designated emergency responders. In addition to the existing regulatory requirements, ACC’s Responsible Care program includes a RCMS® and RC14001® technical specifications that require member companies to establish and maintain procedures to respond to accidents and emergency situations, including consideration of communications and community recovery needs, participation in the development, implementation and maintenance of community emergency preparedness plans, and a process for responding to incidents. The specifications call for periodic tests of these procedures where that is practical, to allow for a policy that is responsive to individual site differences.

Consequently, ACC supports a performance-based approach to emergency response plan implementation and training requirements, in which EPA provides flexibility to sources to tailor their plans and their training to reflect local conditions. It is extremely important that emergency response requirements are not prescriptive, in order to allow for the development and implementation of plans that are truly responsive to the needs and capabilities of each site and
locale.

Emergency Response Drills and Exercises

Drills and exercises of emergency response plans are best designed on a voluntary basis, tailored to individual facility circumstances. Facilities are best equipped to determine the need, frequency, and size of these drills, taking into consideration internal resources and the capabilities of local responders. The costs of conducting an exercise can be significant for many RMP-regulated facilities. An excessive number of drills, if required by regulation, could come at a high cost with only marginal benefit, or could divert resources from other important safety activities. Depending upon the location and size of the facility or process unit involved, and the degree of LEPC and other emergency responder involvement, drills can involve a varying degree of expenses and personnel resources.

For smaller facilities, and those that could be deemed higher risk due to the type of operations they conduct, EPA can better disseminate additional guidance on the value of25

emergency response drills, and the conditions in which they have been found to be effective.
Individual facilities will then be able to determine for themselves the value and nature of these drills, tailored to their individual circumstances.

For those facilities conducting drills, the parameters of a drill should be determined by the facility management, and they should be coordinated with public officials if the risk and response warrants it, and if response agencies are willing. While each facility will keep records of its drills in order to comply with auditing requirements, there should be no new requirements to report the results of these drills to EPA. EPA does not have the resources or site-specific expertise to review and critique such reports, and creating a process to submit such information would likely divert facility resources from more productive safety activities.

When dealing with an actual accidental release, ACC’s member facilities already document their lessons learned and recommendations for future incidents or potential emergency response exercises so that knowledge from each incident can be used to assist in reducing future risks. These internal activities occur within the context of existing regulations and procedures (e.g., the response evaluation or the root cause investigation), so additional requirements for incident recordkeeping and reporting are not necessary.

ACC has not had the time necessary to prepare responses to each question in the Emergency Drills section of the EPA RFI directly. These comments have been offered to raise general concerns only. ACC offers a few supplemental responses below to questions EPA asked in the RFI, but also requests that EPA offer additional opportunity to address the important questions that have been raised.

a. Are RMP-regulated facilities currently exercising their emergency response plans?

ACC members exercise their emergency response plans to fulfill and supplement a variety of requirements, including those of OSHA (29C.F.R. § 1910.38, 29 C.F.R. § 1910.120, and 29 C.F.R. §1910.1200); EPA (40 C.F.R. § 68.95(c), and 33 CFR §§155.1035 and 155.1040); DHS (6 C.F.R. Part 27); and DOT (29 C.F.R. Part 172 Subpart H). In addition, ACC members implement these plans through ACC’s Responsible Care program.

b. What should be the scope of an exercise/drill program?

Individual emergency response plan activities and coordination efforts with local responders and authorities are by their very nature extremely site- and community-specific. Neither of these activities lends itself to prescriptive requirements. The current OSHA emergency response plan provisions contain a list of elements that must be addressed in a plan when employees will be responding to emergencies, and when employees will not be responding to emergencies. 36 Importantly, OSHA has recognized that while elements should be addressed in these plans, the specific decisions on how they should be addressed have been left to facility managers, who are best positioned to evaluate these factors. Similarly, the current RMP regulation does not contain specific prescriptive requirements for the emergency response plan and this is appropriate as it acknowledges the importance of tailored approaches at each site.

36 29 C.F.R. §1910.120(q)(2), and 29 C.F.R. §1910.38.26

The scope of each emergency response drill must vary depending upon the type of incident that is addressed, and the location of the incident. Procedures for responding to an oil spill will be entirely different from procedures for responding to a toxic gas release. The amount of community response support required, if at all, the equipment needed, the involvement of medical personnel, if at all, and whether local employees or outside responders are involved, all vary tremendously depending on these variables. Emergency response planners at individual facilities currently make these determinations based on the risks presented, the potential for an incident, and the need for training.

Community response capabilities and resources also vary substantially from community to community. EPA cannot impose specific community participation mandates in RMP emergency response drill requirements as the capacity of community responders is entirely beyond the control of each facility.

c. Who should be involved in the exercise program?

Please see our response to item b. above.

d. How should lessons learned and recommendations be documented and addressed? What timeframe should be considered for completing such records? How long should records of exercises/drills be
maintained?

This question assumes that EPA will adopt a prescriptive approach to emergency drills, with specific documentation and post-drill evaluation and action requirements. As noted above, ACC does not agree that this approach is appropriate. Whether and the extent to which emergency drills are needed, and the scope and frequency of any drills, should be a site-specific decision, based on an evaluation of the risks and benefits. The provisions for emergency planning and responses that are already required in 29 C.F.R. §1910.120 should be considered adequate. It is reasonable to assume that the every 3 year compliance audit would review and evaluate the adequacy of the response to lessons learned.

e. Should stationary source operators be required to document and address lessons learned and recommendations when they respond to
an actual accidental release?

The RMP rule already contains requirements for Program 2 and 3 facilities to conduct incident investigations. 37 These requirements include timing, scope recommendations, documentation, post-investigation action, and records retention. EPA has offered no information suggesting that additional requirements would reduce the risks of accidental chemical release. No additional requirements should be added to these rule provisions.

f. Should information such as the date of the most recent exercise involving the emergency response plan be required to be reported to EPA in the facility’s RMP?

37 See 40 C.F.R. §§ 68.60 and 68.81.27

The RMP rule is a performance-based regulation. Information about emergency drills may be requested by EPA during a regulatory audit, but mandatory reporting is not consistent or appropriate for performance-based standards. There is no public benefit to this information, as it cannot be evaluated without an understanding of the many variables discussed in our response above. Reporting in a vacuum will likely result in public pressure to hold drills where they may not be needed, or will not be as effective as other emergency response measures, or will be a diversion of both company and local responder resources from more important tasks.

3. AUTOMATED DETECTION AND MONITORING FOR RELEASES OF
REGULATED SUBSTANCES SHOULD NOT BE MANDATED

“While facilities may identify the benefits of installing automated detection and monitoring systems as they conduct their process hazards analysis, or as they develop their emergency response plan, 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. They may also be costly. Nevertheless, the Agency is requesting information on the need for new or expanded requirements for automated detection and monitoring systems that would supplement either the existing process hazard analysis and/or emergency response requirements.” 38

ACC believes that expanding the RMP regulations to mandate automated detection and monitoring systems would be ill advised. Such an expansion would provide little benefit at significant expense, would duplicate existing EPA air program requirements at many locations, may create a false sense of security, and in some circumstances prove impossible to implement.

The appropriateness of the use of automatic detection and monitoring systems is an overwhelmingly site-specific and application-specific determination, and whether such systems would be necessary, effective, and cost-appropriate must be evaluated at each facility to account for variations in site equipment, configuration, location and complexity, as well as extrinsic factors such as weather and climate. Given the abbreviated comment period, there was insufficient time to conduct a cost-benefit and feasibility analysis on whether or not the mandated use of automatic detection systems are appropriate at ACC member sites.

Automatic detection and monitoring of releases due to loss of primary containment presents a large number of very complex technical issues. Many regulated chemicals do not lend themselves to such systems. Designing a system of automatic detection of the chemicals that can be detected can be very problematic when the system will be deployed in existing process areas of a facility. A detector in close proximity to a minor leak is not readily distinguished from a detector that is a further distance from a major leak. Atmospheric conditions, particularly, wind speed and precipitation can have significant impacts. The number of detectors required to detect and evaluate all levels of release quantities and atmospheric conditions can be extremely large, in some cases to the point of impracticality. Most detection systems include complex, sensitive instruments that require high levels of maintenance. Malfunctions and false readings can be fairly common with even the most rigorously maintained systems, causing response and reliability issues which can jeopardize safe operations.

38 79 Fed. Reg. at 44623.28

As EPA highlights in the RFI, decisions to invest in automated detection and monitoring systems are influenced by a number of factors. A few of the factors would apply to an entire industry, others to a facility only, while most others would be specific to a particular process within a facility. There will also be instances where automated detection and monitoring systems are not available for certain processes because the necessary technology hasn’t been developed, is not sufficiently reliable or responsive, or is not yet commercially available. And there will be situations where adding such systems will create new risks, operational and technological, that may or may not be more significant than the risk that is mitigated by adding the systems.

In addition, EPA air rules already often incorporate monitoring and detection programs into current air permits. Many facilities are required through MACT and NSPS standards, and through site-specific permits, to administer monitoring and detection programs, including the use of continuous emission monitoring systems and leak detection and repair programs. EPA has also recently proposed to require fence line monitoring for some refineries. 39

The inherent complexity of an automatic detection and monitoring system, and the variations in site conditions and technological requirements, would necessitate that EPA provide numerous exceptions and exemptions from any new mandate, leading to a muddied pool of regulatory confusion for facilities and the general public alike. 40 In short, it seems unlikely that EPA could tailor a rule across all types of facilities subject to the RMP rule which requires automated detection and monitoring in a manner that would improve safety and ensure transparency in the process, without imposing an undue burden on facilities, high levels of uncertainty about compliance requirements, and confusion among the regulated community and the general public.

Furthermore, many ACC members already incorporate a review of the need and appropriateness of automatic detection and monitoring systems into their current safety programs under the PSM and the RMP Program 3 rules. The need for process monitoring and instrumentation, and for associated alarms and detection hardware, is evaluated through the process hazard analysis, which is used to identify methods to address process hazards.

Under both the RMP and PSM programs, owners and operators must document that their equipment complies with recognized and generally accepted good engineering practices (RAGAGEP). 41 A variety of emergency shutdown systems with robust mechanical integrity programs can constitute RAGAGEP, as can safety instrumented systems. 42 Given that there a number of types of systems equally capable to preventing and detecting accidental releases, it is

39 See Petroleum Refinery Sector Risk and Technology Review and New Source Performance Standards, 79 Fed. Reg. 36880 (June 30, 2014).

40 The EPA proposal for fence line monitoring of refineries reflects these difficulties, in just a single sector. As of the submittal of this comment letter, the fence line monitoring proposal has generated over 12,700 comment letters raising in many cases a myriad of similar concerns.

41 See 29 C.F.R. 1910. 119(d)(3)(ii); 40 C.F.R. 68.65(d)(2).

42 SIS is generally comprised of field sensors which collect information to detect upset or emergency situations, logic solvers that determine which pre-programmed actions are to be taken to avoid hazards based on the field sensor data, and final control elements which implement the selected actions. See OSHA interpretive letter from R. Fairfax to L. Ferson (Nov. 29, 2005) ( https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25164 ).29

imperative that the RMP regulations retain a structure that allows for site-specific flexibility to address the particular requirements of each location and process.

There are several existing PSM and RMP Program 3 requirements which will often result in evaluations of whether a monitoring and detection system is appropriate to address a particular site-specific risk, including ongoing documentation of RAGAGEP as process safety information, five-year PHA revalidations, and three-year compliance audits. In these activities, facilities routinely evaluate site-specific risks and the remedies for such risks may include the adoption of monitoring and detection for particular processes.

Some chemical facilities have in recent years designed monitoring and detection systems into specific processes where it was an appropriate remedy for a particular site-specific risk. Incorporation of a monitoring and detection system at a chemical plant can be an extremely complex and lengthy process, with literally thousands of new sensors and miles of connectors. Costs for such systems can be extraordinarily high, and therefore site-specific evaluations and the balancing of competing risks are critical in any evaluation of the appropriateness and effectiveness of such systems. In ACC’s view, the current PSM and RMP requirements allow for an appropriate balancing and risk evaluation and EPA should not change this approach.

In addition, implementing automated detection and monitoring systems will often require operational or design changes. The most effective time to influence the inherent safety of a chemical process is during the initial design, not after the facility is built and in operation. Any requirement for existing facilities to retrofit and rework existing processes to accommodate a monitoring system creates complex technical compatibility concerns. In the absence of clear evidence that such a mandate is appropriate, ACC opposes this approach.

The selection, design, installation, and maintenance of gas and vapor detection systems is a highly complex topic based on the design, hazards, location, physical properties of the released material, individual consequence analyses, and local operations of each facility. A prescriptive regulatory requirement to install such systems should not be viewed as a panacea or alternative for good facility design and operation. The probabilities of detection success with any particular system in the event of a release will vary, and may be very low due to a number of these unique site-specific factors.

Similarly, the placement and design of detection points and the types of sensor technologies used is also highly variable depending on the physical layout of a facility, the local topography, the types of hazardous materials involved, the elevation(s) of potential releases, local (typical) meteorological conditions and local operating conditions such as process temperatures. The overall reliability of, and confidence in, fixed detection systems in outdoor environments is quite different than fixed detections systems in enclosed or indoor locations, due to environmental considerations, wind (air speed), temperature, and other factors. All sensors have various capabilities and limitations as noted above which impact their life span, ease and frequency of calibration, and replacement cost.

Furthermore, fixed combustible gas detection in many cases is impractical or inappropriate for the detection of minor releases. Flammables typically have a smaller detectable footprint than a similarly sized toxic release due to their relative concentrations of concern. Moderate to large flammable releases can also pose a detection challenge due to the30

rate of area engulfment and vapor travel which leaves very little time for intervention systems (either automated or human intervention) as well as the potential for secondary fires and explosions which may spread rapidly. These flammable releases typically impact on-site employees and contractors, not off site environmental receptors or the community and therefore should be under the purview of OSHA rather than EPA. In addition, combustible gas detection at elevated locations where potential releases may occur is not practical in most cases due to a low reasonable degree of detection success.

Any mandated installation of a new gas or vapor detection system for an existing facility will be a project of substantial cost (in some cases, more than $500,000 for one project involving a single source process). Installation costs are particularly expensive when perimeter monitors are installed due to large distances and the lack of existing power supply and infrastructure at more remote locations. Detections systems at best are a secondary layer of protection which apply only after a primary loss of containment has occurred. Facility owners and operators should be provided with the flexibility to make choices on the allocation of capital expenditures related to risk mitigation decisions in order to apply funds in areas which yield the highest value for prevention and protection results on a site-specific basis.

As noted above, there are many complex variables which can affect the dispersal and detection of airborne releases, and consequently gas or vapor detection systems are not advisable in many settings. For the foregoing reasons, a mandate requiring such systems would be inappropriate and ill advised.

ACC also strongly urges EPA against considering including a new requirement that detection and monitoring systems be linked to automatically notify local responders when they are activated. The potential for false alarms, interferences, and detection system equipment functional failures is significant and ACC members have experienced these issues first hand. The burden that this creates for local emergency responders is excessive and unnecessary. False alarms can be common and the subsequent off-site integrated emergency response creates confusion and lack of confidence in the notification system by all parties and by the public. Current methods of off-site notifications via telephone, radio, email or other existing media are more reliable when well executed, as they are based on the actual facts of each
incident.

ACC further cautions EPA that consideration of testing and inspection requirements for existing leak detection systems should rely on the guidance provided by the equipment manufacturer and left to the local facility for implementation. These procedures should not be imposed in a one-size-fits-all prescriptive regulatory requirement.

ACC has not had the time necessary to prepare responses to each question in the Automated Detection section of the EPA RFI directly. These comments have been offered to raise general concerns only. ACC requests that EPA offer additional opportunity to address the important questions that have been raised.

Rather than modifying the RMP rules to create a mandatory detection and monitoring regime, ACC encourages EPA to maintain its existing RMP requirements, engage in outreach where it believes automated systems add additional risk reduction value, and encourage facilities to participate in voluntary programs, such as ACC’s Responsible Care program, which31

specifically direct participating facilities to consider inspection programs when designing process safety management plans.

4. STATIONARY SOURCE LOCATION REQUIREMENTS SHOULD NOT
BE EXPANDED

“Should EPA amend the RMP rule to include more specific siting requirements as part of the PHA by, for example, establishing buffer or setback zone requirements for new covered stationary sources, or by establishing safety criteria for siting of occupancies inside the facility? Would such requirements provide significant incremental protection over current industry practice based on the references cited above?” 43

EPA should not expand the RMP rule to prescribe specific siting requirements for stationary sources subject to the rule. EPA has not demonstrated that existing requirements are insufficient to manage siting risks. Current PHA requirements, 44 industry guidance, and the principles embodied in RAGAGEP, all address this issue under the current RMP and PSM programs by guiding owners and operators to identify appropriate siting requirements, using a number of individualized factors. Additionally, buffer and setback requirements are already in existence in many communities under zoning or other land use provisions and federal requirements would likely conflict. Specific new EPA requirements would not provide any incremental benefits over current industry practices and OSHA PSM requirements that are already incorporated into the RMP rule.

Due to the shortness of time provided to respond to the EPA RFI, ACC has not been able to fully develop comments on all of the questions raised by EPA in this section of the RFI. The following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will provide an opportunity for further dialogue on these issues.

It is clear that siting considerations, both the location of processes and structures within a facility and the siting of a stationary source itself, can have an effect on the consequences of an accidental release. For this reason, siting is an integral part of the evaluation that occurs in documenting process safety information, conforming to RAGAGEP 45 , and evaluating initial risks in PHAs, 46 and then at least every five years during PHA revalidations.

As OSHA has stated, required siting evaluations often result in conclusions that specific risk mitigation measures unique to a facility must be employed, measures that can be unrelated to
setbacks:

43 79 Fed. Reg. at 44624.

44 S ee 29 C.F.R. 1910.119(e)(2) and (3)(v)), and 40 C.F.R. 68.67(c).

45 RAGAGEP recognizes that there is almost always more than one way to successfully address safety and security issues, and allows analysis and evaluation far beyond the rote application of a single standard to allow onsite professionals to address individual situations and circumstances.

46 See the discussion of ‘How does the PHA address facility siting of all occupied structures?’ in OSHA Guidance
entitled VPP Application Supplement for Sites Subject to the Process Safety Management (PSM) Standard (Revised 2014) ( https://www.osha.gov/dcsp/vpp/psmfinal2014.html ).32

After compiling PSI [process safety information], the employer must use the PSI, as well as other information, to conduct a process hazard analysis (PHA), which must include a facility siting evaluation (1910.119(e)(3)(v)). During the facilitysiting evaluation, the employer must determine whether these equipmentcontaining structures are sufficient to protect employees and equipment from any identified hazards, such as explosions. If the employer finds deficiencies in any of these structures, the employer must address them and document how the deficiencies are resolved (1910.119(e)(5)). This could involve steps such as strengthening, replacing, or relocating the affected structures.

Similarly, if an employer installs or modifies a structure between required PHAs, then the employer must develop and implement a management-of-change (MOC) procedure prior to the installation or modification (1910.119(l)). Like the PHA, the MOC procedure must address the safety and health impacts (1910.119(l)(2)(ii)) of the installation or modification with respect to the structure, occupants, and equipment housed in the structure. Following these evaluations, the employer is then required (1910.119(l)(4)) to update the PSI, including documenting that the new or modified structure complies with RAGAGEP. The employer's PHA team must address the change (i.e., installation or modification of the structure) in its next PHA revalidation (1910.119(e)(6). 47

These same principles and requirements apply equally under the RMP program. 48

Modification of these requirements is not necessary. First, the focus of the RMP program is to prevent releases of regulated substances which may endanger public health and welfare or the environment, whereas the focus of the OSHA PSM program is to protect worker safety and health. While OSHA and EPA may have common goals, their programs have different statutory bases and EPA’s authority does not extend to worker safety and health. EPA recognized this distinction when it issued the original RMP rule. In the preamble discussion to that rule, EPA
stated:

These changes are designed to ensure that OSHA retains its oversight of actions designed to protect workers while EPA retains its oversight of actions to protect public health and the environment and to remove possible interpretations that certain elements of process safety management fail to account for offsite impacts. 49

Consequently, any EPA evaluation of facility siting should be limited to off-site environmental and public health impacts, while on-site concerns are addressed by OSHA.

Second, the decision of where to place a process or building within a facility, or where to locate the facility itself in relation to the community at large, are inextricably linked to the unique characteristics of each physical site, the receptors surrounding the site, the facility’s intended use, the types of processes to be implemented at the facility, the nature of the

47 OSHA interpretive letter from D. Michaels to Sen. D. Vitter (Feb. 1, 2010) ( https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27443 )

48 See 40 C.F.R. 68.65, 68.67 and 68.73.

49 61 Fed. Reg. at 31672.33

substances present, the alternative risk mitigation measures that are employed at that location, and a number of other localized factors. As described above, these site-specific characteristics are appropriately addressed in the current PSM program, specifically in the PSI, PHA and MOC processes. The principles employed in these evaluations and processes, which ACC believes are the appropriate approach to evaluating siting risks, do not lend themselves to specific siting mandates as currently under consideration by EPA.

Indeed, specific siting mandates could very likely result in wasted resources or have a detrimental effect on safety. For example, if EPA were to prescribe particular setback distances for specific chemical manufacturing processes so that buildings where people work during regular business hours were always a minimum distance from certain chemical operations, the prescribed distances would likely become default setbacks, regardless of any other risk characteristics and mitigation measures that might exist for the site. In some circumstances the EPA-prescribed setbacks might be overly conservative and in others it might be insufficient. Such a mandate would likely result in unnecessary constraints on some facility operations, and higher risks in other locations due to an overreliance on the setback mandate. Further, siting retrofits for existing facilities can be a very expensive undertaking at a chemical plant. Moving or strengthening a facility can require capital expenditures in the tens of millions of dollars.

Siting mandates could consequently have a significant impact on chemical facilities, including on existing operations, on expansion plans, and on new facilities. If prescribed setbacks exceed the safe distance determined in a site-specific evaluation, they may very well have unintended, indirect negative effects on owners, their employees and local economies. These could include a loss of jobs if setbacks cannot be achieved and facilities or process lines are forced to shut down or relocate, or employee hardship or disruption if facilities or processes must be relocated to different sites. Mandates could also implicate environmental justice

concerns, 50 particularly if prescribed distances narrow the potential locations for certain types of facilities or process lines, which could create an unnecessary imbalance in the distribution of
these facilities.

In light of these likely unintended negative consequences, EPA should refrain from imposing rigid distance or other siting requirements. Indeed, under the existing PSM standards, facilities already consider siting, along with many other measures, to mitigate the consequences of accidental releases. Moreover, it is self-evident that compliance with siting RAGAGEP in the OSHA PSM context, designed to protect works inside the fence line, necessarily will protect people and the environment located outside the fence line. Instead of pursuing setback mandates, ACC encourages EPA to focus on the protections offered by existing regulatory requirements under the PSM and the RMP Program 3 rules. Facility owners and operators currently have the requirement to evaluate siting risks, and they are afforded the flexibility to address risks using a variety of potential tools and resolutions.

ACC also strongly urges EPA against revising the RMP rule to require consideration of chronic exposure burdens in addition to acute burdens associated with accidental releases. In accordance with the CAA, 51 EPA was directed by Congress to address the severity of acute

50 See Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations, 59 Fed. Reg. 7629 (Feb. 16, 1994)

51 42 U.S.C. §112(r)(4)(A)(i).34

adverse health effects associated with accidental releases, an issue entirely separate from that of chronic exposure risks. EPA cannot simply ignore this directive and develop regulations around
chronic burdens.

The simplest way to illustrate this dichotomy is to consider that a risk assessment in the PHA context involves, in part, identifying the types of chemicals that could be released in an accident, how far they would spread, and how long they would remain. By definition, chronic air pollution burdens will not dissipate over time unless an outside force actively removes the source, so it would be very difficult to build chronic air conditions into this risk assessment model. Perhaps more importantly though, there are regulatory programs already within the CAA that are designed precisely to address chronic exposure burdens, and that is where these issues should continue to be addressed, not in the RMP rules.

Changing the regulations will not improve safety or reduce releases for companies that currently do a good job of managing siting risks at their facilities under the current RMP rule. Companies that know how to fulfill the requirements of the current standards and consistently do so are generally not experiencing a significant number of accidental releases or releases of significant consequences. Expanding siting requirements in the RMP rule will not reduce the risk of accidental releases, or the consequences of releases, at companies that are already fully implementing their programs. Similarly, expanding siting requirements will not reduce such risks at companies that have not already developed strong individual programs or are not currently enrolled in existing industry programs. For companies with these issues, making the requirements more extensive and more prescriptive will not provide additional risk reduction.

5. EMERGENCY RESPONSE PROGRAM REQUIREMENTS DO NOT
NEED TO BE REVISED

“EPA is considering whether the Emergency Response provisions in Subpart E of the RMP regulation should be revised to state more explicitly that owners and operators of RMP-regulated facilities must comply with the emergency response program requirements of section 68.95 unless local public responders both have the means and agree to respond to releases of regulated substances at the facility, and to describe what facility owners or operators must do to coordinate with local authorities on the development of community emergency response plans.” 52

Due to the shortness of time provided to respond to the EPA RFI, ACC has not been able to fully develop comments on all of the questions raised by EPA in this section of the RFI. The following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will provide an opportunity for further dialogue on these issues.

The requirement for coordination with local emergency responders is addressed in multiple interconnected standards and regulations: OSHA (29 C.F.R. § 1910.38, 29 C.F.R. § 1910.120, and 29 C.F.R. § 1910.1200); EPA (40 C.F.R. Part 68 Subpart E); Department of Homeland Security HS (6 C.F.R. Part 27); and Department of Transportation (29 C.F.R. Part 172 Subpart H) regulations. The EPA RFI addresses only one of these. Therefore, as a general point, ACC would urge against changing the regulatory requirements until an evaluation of all of the interrelated programs is performed.

52 79 Fed. Reg. at 44625.35

Facilities provide information on their chemicals to various agencies and response organizations as required by other regulations such as EPA’s Emergency Planning andCommunity Right-to-Know Act (EPCRA) Tier II reporting, and DHS’s Chemical Facility AntiTerrorism System (CFATS). EPCRA was intended to improve the availability of chemical information to members of the local community and to aid emergency first responders. Unfortunately, it appears the entities and processes it established a quarter-century ago have withered away in a great many states and locales. While many active and well-functioning local emergency planning committees (LEPCs) exist today, many others are poorly resourced, or are not well-managed. Charging EPA to revitalize EPCRA presents the most immediate opportunity to improve access to chemical emergency information needed by local emergency responders.

As reflected in Executive Order 13650, and in the action plan created in response to the executive order, 53 there is a significant amount of work that needs to be done to address weaknesses in LEPC resources and training. Rather than adding additional requirements to the RMP program, EPA should work with other government agencies and state/local organizations to strengthen the existing governmental response structure. EPA needs to address these foundational issues first, before any additional requirements to provide emergency response planning information are considered.

With respect to the RMP program, ACC disagrees with EPA’s premise that the existing Emergency Response regulations in 40 CFR Part 68 Subpart E are unclear. ACC believes EPA has clarified its view that the Subpart E requirements allocate responsibility to the facility to ensure there is an adequate emergency response capability. Since 2004, EPA’s guidance on this subpart has stated:

EPA recognizes that, in some cases (particularly for retailers and other small operations with few employees), it may not be appropriate for employees to conduct response operations for releases of regulated substances. For example, it would be inappropriate, and probably unsafe, for an ammonia retailer with only one full-time employee to expect that a tank fire could be handled without the help of the local fire department or other emergency responder. EPA does not intend to force such facilities to develop emergency response capabilities. At the same time, you are responsible for ensuring effective emergency response to any releases at your facility. If your local public responders are not capable of providing such response, you must take steps to ensure that effective response is available (e.g., by hiring response contractors). 54

It is clear from this statement that since at least 2004 EPA has held the view that the facility is ultimately responsible for making certain that an effective emergency response capability is present for its RMP-listed substances.

Given that EPA’s interpretation of the rule requirements has been clear in this area, if EPA now believes that inspections at some facilities indicate emergency response capabilities have not been adequately addressed, this is a matter for EPA to resolve with those facilities. The

53 Actions to Improve Chemical Facility Safety and Security –A Shared Commitment; Report for the President (May 2014).

54 EPA, General RMP Guidance - Chapter 8: Emergency Response Program (Apr. 2004), available at http://www2.epa.gov/sites/production/files/2013-11/documents/chap-08-final.pdf36

fact that some facilities may not be in compliance with EPA’s existing directives is not a rationale for changing the regulations. EPA has ample compliance and enforcement tools to appropriately address individual facility concerns.

Where EPA has experience indicating that the effects of accidental releases were exacerbated by failures in communications between facilities and local public responders, ACC expects that many of these instances likely reflect a failure to conduct the coordination and planning that are currently required, rather than a fault in the rules themselves. EPA guidance on these rule provisions provides ample information to clarify the agency’s position on the responsibilities of responding and non-responding facilities, and to help facilities determine eligibility for status under one of the two categories. 55

The anecdotal evidence that EPA describes in the RFI suggests that the cause of emergency response coordination issues is a lack of enforcement of existing requirements and/or failures in communication between the affected facilities and local public response organizations. Enforcement shortcomings are inherently situation-specific and could turn on any number of factors. These shortcomings are unlikely to be found at ACC member facilities, where the Responsible Care® program is implemented. Responsible Care includes requirements to participate in the development, implementation and maintenance of community emergency preparedness plans, and to develop processes for responding to release incidents. ACC does not believe that additional rule requirements are appropriate to address the unique failings that EPA describes in the RFI. If there is a demonstrated need to strengthen communication and coordination between a facility and local emergency responders, the appropriate place to accomplish this would be under the Emergency Planning and Community Right to Know Act (EPCRA), which is designed to address emergency planning broadly, not through the RMP regulations.

ACC notes that EPA’s RFI discussion mentions a 2008 incident at the Bayer CropScience facility in Institute, West Virginia, and intimates that Local Emergency Planning Committee members may have the authority to access facility property. Under EPCRA, LEPCs are afforded no access rights to private property. ACC members routinely engage in substantive emergency planning activities with LEPCs. These activities can include coordination with LEPCs and other local responders on facility tours and emergency response drills, and individual facilities may incorporate LEPC access into their incident plans, but in all cases such access to private facility property would be on a site-specific basis with advance approval from the facility.

6. THERE IS NO NEED TO INCREASE INCIDENT INVESTIGATION AND

ACCIDENT HISTORY REQUIREMENTS

“The Agency is considering whether broadening the incident investigation and accident history requirements to include clear requirements to investigate near misses and determine root causes of accidents, near misses, and process upsets would promote increased safety. The Agency is requesting information on the appropriateness of requiring root cause investigations of incidents,

55 Id

.37

process upsets and near-misses, and of establishing specific time frames for incident investigations to be completed.” 56

ACC shares EPA’s concern that determining the immediate and systemic causes of incidents is an important component of an effective incident investigation management system, and ACC supports EPA’s efforts to educate industry and the general public about measures that facilities can employ to avoid incidents in the future. However, ACC is concerned that EPA may be overstating the breadth of the problem with respect to the resulting incident investigations, or that it is assuming a widespread compliance gap when the problem is much more limited. The RFI contains several examples to illustrate EPA’s concern about compliance with the current incident investigation requirements, but EPA has not provided any context for the anecdotes and hypotheticals cited or any hard data related to compliance investigations.

ACC members treat incident investigations very seriously. A number of the issues mentioned in the RFI are attributable to only a small number of outlier companies or facilities. When the majority of the regulated community is dutifully complying with RMP requirements, and oftentimes exceeding requirements as part of a voluntary, industry-driven safety program like Responsible Care, there is no need to amend regulations when the proper and most efficient course is to improve enforcement of existing requirements.

Changing the incident investigation requirements will not improve safety or reduce releases for companies that currently do a good job of managing incidents at their facilities. Companies that know how to fulfill the requirements of the current standards and consistently do so are generally not experiencing a significant number of accidental releases or releases of significant consequences. Nor will expanding the RMP rule requirements reduce the risks of accidental releases at companies that have not developed strong individual incident investigation programs or are that are not compliant with current requirements. For companies with these issues, making the requirements more extensive and more prescriptive will not provide
additional risk reduction.

As a preliminary matter, EPA has expanded the scope of its inquiry on this subject to impermissibly consider employee impacts. ACC cautions EPA against attempts to expand RMP requirements outside of those that relate to offsite impacts or impacts on the public. Issues inside the fence line that concern facility employees are certainly very important to ACC and its members, but they remain squarely within OSHA’s domain. Under the CAA and RMP, EPA addresses the prevention of accidental releases of hazardous chemicals that have impacts on the environment or the public, and the mitigation of the consequences of such releases. When EPA suggests in the RFI that RMP requirements could be expanded to consider issues relevant to workers at covered facilities, ACC interprets this to mean that EPA will consider imposing requirements that are potentially outside of its scope. EPA is not permitted to expand RMP to address employee risks, as that is solely within OSHA’s purview.

ACC also cautions against amending regulations to include investigatory requirements for non-covered processes. The RFI presents an example in which it states that “a runaway reaction that is brought under control by operators is a near miss that may need to be investigated to determine why the problem occurred, even if it does not directly involve a covered process.”

56 79 Fed. Reg. at 44626-27.38

RMP requirements, by definition, apply only to covered processes, 57 and EPA’s authority under the rule is limited to covered processes. EPA should proceed with this distinction in mind.

A. Root-Cause Analysis Should Not be Required

ACC does not believe that the RMP regulations should be amended to require root-cause analyses in all incident investigations. The existing regulations already require owners and operators to determine all the factors that contributed to an incident and to resolve any incident findings and recommendations. 58 There is nothing in this language to preclude a root-cause analysis, yet it also provides the necessary flexibility for owners and operators to tailor investigations to the unique factors of each incident. In some cases, it may not be necessary to conduct a root-cause analysis to adequately determine the causes of the incident and the remedial actions necessary to prevent similar incidents in the future, and a requirement to do so would waste time and resources. As an example, where an untrained employee takes an action that results in a release, and there is a PSM-required training that the employee missed which would have prevented the incident, there may be no need for a formal root cause analysis.

Furthermore, root-cause analyses are already conducted routinely under a number of voluntary programs, like ACC’s Responsible Care. It is not the case that amending the RMP regulations is necessary to ensure root-cause analyses take place. There are also a number of recognized industry resources to aid incident investigations of root causes. For example, CCPS offers several resources, including the “Guidelines for Investigating Chemical Process Incidents,” which provides valuable, practical reference tools, and focuses on process-related incidents with real or potential catastrophic consequences. There are also a number of companies that provide excellent root cause failure analysis training. ACC believes that rather than creating new requirements, EPA can immediately increase the quality of incident investigations by subsidizing the distribution of CCPS material free of charge, as it did successfully with the “Essential Practices for Management of Chemical Reactivity Hazards” in
2003.

B. EPA Should Not Impose Requirements for “Near Misses”

ACC opposes amending the regulations to require investigations of “near misses.” While some companies and industries already perform investigations of what could be classified as “near-miss” events voluntarily, it is unrealistic to think that a mandate to conduct these investigations would result in anything other than confusion in the regulated community, among regulators, and in the general public.

First, the term “near miss” is not defined in the RFI, so commenters have no way of knowing what issues or potential incidents EPA is contemplating when it uses this term. The situations that EPA cites as examples of “near misses” could also be described not as “fortunate breaks” but the result of quality training and good safety systems. Therefore, it is unclear how EPA is thinking about what it states are “near misses,” making it very difficult for ACC and other commenters to provide meaningful input.

57 40 CFR § 68.10.

58 40 C.F.R. §§ 68.60(c) and (d); 68.81(d) and (e).39

Second, EPA refers to a near miss with “no actual or potential off-site consequences,” which implies that EPA interprets its RMP authority to include “near misses” that have no reasonable possibility of having offsite consequences. As discussed above, the RMP program is intended to address only offsite consequences of accidental releases, so it appears that what EPA is proposing would directly conflict with OSHA’s PSM authority and would exceed the bounds of the RMP program.

The broader issue here is that even if EPA had attempted to define the term “near miss”, it is inherently situation-specific and not reducible to a singular definition. A “near miss” in one process unit may pose virtually no future risk to public health or the environment, while a “near miss” in another process unit may pose a serious risk. Some situations may involve active processes (i.e., an unplanned upset in a process unit), whereas other situations may involve passive forces (i.e., discovery of ongoing deterioration in a structural element). The breadth and scope of situations that could fall under a “near miss” definition could be staggeringly complex at a larger facility, and there is a very real possibility that the adoption of any definition would result in a significant distraction and harmful diversion of resources for process safety personnel who perform a critical role in managing risks at chemical facilities.

Requiring investigations of near misses would result, primarily, in confusion and unnecessary expense for the regulated community in attempting to determine whether an event that occurred qualifies as a near miss, and secondarily, in confusion for regulators in drawing a line between events that should be investigated as near misses and those that should not be. Furthermore, expanding investigation requirements to include “near misses” would expand the number of investigations that would need to occur, requiring significant additional time and resources to complete, likely diverting safety personnel from the important tasks that they perform, without a commensurate reduction in risks.

C. EPA Should Not Impose Time Limits to Complete Investigations

For similar reasons, EPA should not impose time limits for completing incident investigations because, as EPA points out in the RFI, investigations are highly situation-specific, and can require assistance from outside process experts that are not immediately available. 59 In addition, incidents vary greatly in size and scope, and the corresponding investigations reflect these differences in size and scope. Input from many different parts of an organization can be necessary, outside research can be required, sometimes just interviewing impacted employees on rotating shift schedules can be extremely time intensive. Establishing an arbitrary timeframe to complete an investigation could cause some owners and operators to move too quickly through more complex investigations, resulting in a lower quality conclusion. On the other hand, for investigations that could be completed in a relatively shorter timeframe, a longer regulatory time limit might send the wrong signal and could delay completion of the investigation and the important information contained therein. These are site-specific issues, to be managed as they should be currently under the PSM process, with appropriate attention to the risk posed by the

59 EPA states, as support for the need to impose time limits, that in some extreme cases, it may be impossible to complete an RMP investigation because an entire process has been destroyed. However, it seems highly unlikely that an incident of this magnitude would escape investigation by some federal, state, or local agency (or combination of the three). EPA should not imply, or use as justification for additional regulation, that because an accident won’t be investigated under RMP, it won’t be investigated at all.40

individual subject. Root cause analysis does not fit into a command and control regulatory

structure.

7. WORST CASE RELEASE SCENARIO QUANTITY REQUIREMENTS
FOR PROCESSES INVOLVING NUMEROUS SMALL VESSELS
STORED TOGETHER SHOULD NOT BE REVISED

“EPA seeks information on whether to revise section 68.25(b) of the RMP regulation to better account for processes involving numerous small vessels stored together, such as on pallets, cylinder racks, and in groups. EPA is looking for information on whether including the entire quantity in one location or one process, instead of just the single largest vessel or pipe, would better represent the true worst case scenario quantity, and thereby increase protection to human health and the environment and help prevent future accidents from occurring. EPA also requests comment on whether there are ways of grouping vessels or pipes short of including all the vessels or pipes at a facility that would be appropriate for worst case scenario analysis. EPA is also interested in receiving information on whether worst case scenario requirements should account for the potential cascading effects of separate facilities that are interconnected (e.g., a manufacturer that provides product to an adjacent source through an interconnecting pipeline).” 60

EPA should not revise section 68.25(b) to change existing requirements for calculating worst case release scenarios. The concern raised by EPA appears to arise from a single type of facility that collects and stores a large number of small containers. EPA cites no information and provides no data that indicate the content of small containers raises a risk that would suggest
all RMP facilities must redefine and recalculate their OCAs.

Due to the shortness of time provided to respond to the EPA RFI and the expansive scope of questions raised by the RFI, ACC has not been able to fully develop comments on all of the questions raised by EPA in this section of the RFI. The following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will provide an opportunity for further dialogue
on these issues.

EPA’s comments in the RFI clarify that its concern about quantifying worst case release scenarios arises specifically from warehouses, where large numbers of containers are stored closely together. There is no evidence presented that the contents of small containers stored at all of the roughly 15,000 RMP facilities would have any appreciable effect on the OCA calculation. There is no basis for implementing a rule change that would require every facility subject to RMP to recalculate its OCA in order to address a very specific concern about a single type of facility.

This issue illustrates a problem with EPA’s approach in the RMP RFI where EPA seeks information on very specific operational and technical issues that simply cannot be addressed in a vacuum. These issues have repercussions across a broad cross section of safety and release prevention programs, and they can have serious repercussions that are unrelated to the specific issue at hand. Such issues can vary widely across industries and facilities. Consider the following example:

60 79 Fed. Reg. at 44627.41

[A] regulatory agency determined that facilities should not store more than one week’s requirements for a substance in inventory onsite. At the outset, this could just result in the same inventories being carried at the supplier’s facility, rather than the user’s, or at some less-secure intermediate storage facility. In any event, lower inventories on site typically mean more frequent deliveries of smaller quantities of material. Thus, for example, a process that receives barge containers approximately once per month, may have to shift to rail cars or trucks. Similarly, a process that currently receives railcars might instead have to receive one-ton cylinders, delivered by trucks. Statistically, transportation incidents are lowest for water, intermediate for rail, and highest for truck; thus, a mandate to reduce inventories may require using modes of transportation with a higher frequency of
accidents.

Also, changing from barges to rail cars, or from rail cars to trucks, would require the facility to connect and disconnect shipping containers far more frequently, increasing the potential of operator exposure.

See ACC IST Materials, Factors that Affect IST Decision Making & Examples of Limitations of Mandating Inherently Safer Approaches, at 1-2. This example illustrates the unintended consequences of some safety mandates – a requirement to lower chemical inventories can result in higher risk of transportation incidents.

Similarly, a redefinition of ‘worst case release’ in the RMP rule to include all containers in a single process could result in myriad potentially adverse responses, all unrelated to the calculation of the OCA. Stationary sources could reduce on-site inventories, thereby potentially increasing transportation risks. Companies might move stored container within a plant site, perhaps to less secure locations that are outside of the process at issue. Including small containers in an OCA calculation for a covered process might very well overstate likely worst case results, which would cause concerns with the public. 61 None of these potential results would achieve EPA’s stated goal in the RFI of promoting stronger process safety controls and helping prevent accidents.

EPA needs to refrain from imposing single-size-fits-all requirements across all of the many different types of facilities that are subject to the RMP rules. If there is a concern about a worst case release calculation method in a specific type of facility, EPA should engage in a dialogue with representatives of that facility sector to determine what risks may be posed by the calculation method, what range of steps might be appropriate to address the concern, and what the potential consequences of those steps might be. The comment period on the EPA RFI is far too short to address the potential consequences of changing the calculation methodology across all potential sectors regulated by the RMP rule. In the absence of data indicating that this question raises concerns outside the warehousing sector, EPA should not embark on a rule amendment process that will result in all stationary sources having to recalculation their OCAs.

61 ACC’s has concerns about current guidance on interconnection and colocation. See comments to Section D.12 (Streamlining) below.42

8. MANDATES TO INCREASE PUBLIC DISCLOSURE OF INFORMATION
WILL RAISE SECURITY RISKS AND WILL NOT PROMOTE
REGULATORY COMPLIANCE OR IMPROVE COMMUNITY
UNDERSTANDING OF CHEMICAL RISKS

“Ensuring 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. In response to Executive Order 13650, EPA seeks to find ways to enhance information sharing and collaborative planning between chemical facility owners and operators, tribal and local emergency planning committees and first responders. EPA is interested in identifying ways to make RMP-regulated facility information more readily available to local responders and local communities without creating additional security concerns.” 62

ACC supports efforts to improve communication and appropriate information sharing between regulated facilities, emergency responders, and local communities. However, many of EPA’s suggestions the RFU are ill advised, and in some cases baffling. EPA’s discussion of information access in this section is completely devoid of any mention of the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CISSFRRA), which revised Section 112(r) of the CAA to constrain public access to certain RMP information in order to protect against national security risks. 63 ACC strongly cautions EPA against attempting to establish requirements to make available in a broadly accessible way many of the documents suggested in
the RFI.

Following its initial proposal to provide broad public access to RMP information in the 1990s, Congress enacted CISSFRRA to prevent EPA from widely disseminating certain RMP information. The Department of Justice (DOJ) and the Federal Bureau of Investigation raised substantial concerns to EPA’s initial attempts to provide for broad distribution, centering on fears that providing public access to such information would raise the risk of terrorism-related
incidents. 64 Following a risk evaluation conducted jointly by EPA and DOJ, the agencies concluded that “an increased risk of terrorist and other criminal activity would accompany the release of certain items of OCA information via the internet. That information could be used by terrorists or other criminals for the purpose of targeting or maximizing the results of industrial
chemical releases.” 65 The assessment was limited, and pointedly did not include evaluation of other risks of broad access, such as the risks of industrial espionage or the attention of criminal drug enterprises. 66 EPA now has elaborate rules limiting the dissemination of most portions of
the OCA. 67

The same concerns about the OCA that arise under CISSFRRA will arise in the context of broad dissemination of many other RMP documents that EPA suggests in the RFI should be publicly available on a website in an unrestricted manner, whether in complete or summary form.

62 79 Fed. Reg. at 44628.

63 41 U.S.C. §7412(r)(7)(H).

64 See, i.e., 65 Fed. Reg. 24,834, 24835 (Apr. 27, 2000).

65 65 Fed. Reg. 48108, 48109 (Aug. 4, 2000).

66 Id., at 48111.

67 40 C.F.R. Part 1400.43

 PHAs contain explicit evaluations of risks and vulnerabilities and specific steps that will be adopted to mitigate those risks.

 Compliance audits identify deviations that may address specific risks and vulnerabilities and often contain specific steps that will be adopted to mitigate those issues.

 Incident investigation reports identify specific vulnerabilities that have caused incidents, and then contain root cause analysis that both identify risks and vulnerabilities and describe specific steps that will be adopted to mitigate those risks.

ACC strongly opposes any suggestion that such documents should become widely available in a manner where they would be accessible to those who might want to exploit vulnerabilities or overcome mitigation steps at a chemical plant.

The security issues posed by the broad public disclosure contemplated by EPA are complex and may result in significant increases in site vulnerabilities and risks. There are multiple agencies with jurisdiction over these issues and with long-noted interest in how they are addressed, including, in addition to EPA, the Department of Homeland Security, the Department of Justice, the Federal Bureau of Investigation, the U.S. Coast Guard, and state governments. ACC believes it is imperative for EPA to engage in a broad dialogue with these agencies and with the regulated communities involved before considering rule a rule amendment that would further disseminate critical information about potential vulnerabilities at facilities storing
chemicals.

In any event, there is already substantial information about RMP facilities that is available to the public, either widely disseminated on the internet 68 or through EPA’s files. Contrary to the suggestions in the RFI, ACC does not believe that any there is any connection whatsoever between further dissemination of RMP information and improvements in safety or better regulatory compliance. For facilities that are working hard to comply with the RMP program, additional dissemination of information is likely to increase risks by advertising vulnerabilities and mitigation measures. For facilities that are not currently complying with RMP, there is no logical connection between public dissemination of information and either safety or compliance improvements.

Certainly, given the significant concerns that exist with posting to the internet documents that address security and mitigation measures, EPA should expect that if such a requirement were adopted even for only the executive summary of the RMP, it would be logical for companies to strip all voluntary information from those documents so that they contain only the most basic information required to be compliant. This is exactly the opposite of what EPA should be promoting, which is a broad, integrated approach to managing chemical release risk and safety, and a wide overlapping approach to PSM and RMP program administration.

ACC urges EPA not to expand information dissemination requirements in the RMP program. If EPA believes some additional dissemination is warranted, it must first evaluate specifically what broader dissemination would achieve, and then with that data EPA must engage in the necessary dialogue with security agencies and the regulated community about the very real

68 See, for example, http://www.rtknet.org/db/rmp

.44

security risks of dissemination.

9. EPA SHOULD NOT ADJUST THRESHOLD QUANTITIES AND OFFSITE CONSEQUENCE ANALYSIS ENDPOINTS FOR REGULATED
SUBSTANCES BASED ON ACUTE EXPOSURE GUIDELINE LEVEL
TOXICITY VALUES

“Adopting AEGL–2 values in place of ERPG–2 values to establish new toxic endpoints would have a more direct effect. AEGL–2 values are often, but not always, lower than the existing toxic endpoints. Where the AEGL value is lower than the current toxic endpoint for a particular substance, the new toxic endpoint would likewise be lower, and vice versa. The practical effect of changing toxic endpoints would be to change the off-site consequence analysis distance to endpoint for a given substance and release quantity. For all processes containing substances with new lower toxic endpoints, larger worst case and alternative release scenario zones would result, whereas processes containing substances with new higher toxic endpoints would have smaller offsite consequence zones. If most toxic endpoints were to either decrease or remain the same, another result would likely be that fewer regulated processes would be eligible for Program 1.” 69

EPA is considering recalculating reporting thresholds and toxic endpoints using Acute Exposure Guideline Levels (AEGLs). ACC does not support the recalculation of reporting thresholds, and needs more time to evaluate the rationale and impact of recalculating toxic endpoints.

Due to the shortness of time provided to respond to the EPA RFI and the expansive scope of questions raised by the RFI, ACC has not been able to fully develop comments on all of the questions raised by EPA in this section of the RFI. The following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will provide an opportunity for further dialogue
on these issues.

EPA indicates in the RFI that “(t)he use of AEGLs to recalculate RMP reporting thresholds would better reflect the potential for adverse effects of an accidental release upon individuals in a community... because AEGLs take into account the potential exposure of more sensitive individuals, the potential for longer periods of exposure, and the potential for serious but reversible injuries.” 70 This change would generally result in lower reporting thresholds. ACC believes that EPA has stated a basis for considering whether it is possible to predict adverse effects from releases of certain substances in some populations, but not a basis on which to establish more stringent reporting thresholds for the RMP program.

Pursuant to the Clean Air Act, “[a]t the time any substance is listed” on the RMP Rule regulated substance list, EPA must establish threshold quantities taking into account certain chemical properties and human health impacts. 71 In section D.9 of the RFI, EPA proposes to adjust threshold quantities for currently listed substances, not for new substances. The Clean Air Act does not address the specific criteria to be employed when EPA seeks to revise threshold

69 79 Fed. Reg. at 44630.

70 79 Fed. Reg. at 44629.

71 42 U.S.C.A. §7412(r)(5).45

quantities for substances that were previously listed. While reference to the chemical properties first evaluated when a substance was listed is a good starting point for an amendment, EPA should not conduct this analysis in a vacuum. It should also consider the vast amount of information about the effectiveness of the current threshold quantities that now would be
available.

ACC believes that EPA is asking the wrong questions about reporting thresholds.

The RMP program has been in existence for nearly twenty years. 72 There is consequently substantial information available about the impact of the program, the release histories of facilities subject to the program, and the release histories of facilities not subject to the program. EPA has data that would allow evaluation of RMP reported accidents involving listed substances that have been submitted to the agency over the entire course of the RMP program, and should focus for these purposes on incidents that were reported to have an off-site impact to public receptors where an actual injury or exposure occurred, the release quantities associated with these incidents, consideration of how that correlates to a threshold quantity, the results of EPA investigations of other non-RMP reportable release incidents and quantities where an off –site impact (injury) occurred and was documented, and any other objective incident or performance data that would demonstrates whether the current threshold quantities and corresponding toxic endpoints have been (or have not been) adequate to prevent actual injuries to off-site receptors. The questions that EPA should be posing are not whether it is possible or advisable to reduce reporting thresholds based on theoretical impacts to different members of the population at large.

Instead, EPA should be asking:

 Does program implementation data support a conclusion that there would be a reduction in injuries and damages from accidental releases if reporting thresholds were reduced for all or particular toxic substances?

 Does program implementation data support a conclusion that lower reporting thresholds would reduce the number, magnitude or severity of accidental releases?

 Does program implementation data support a conclusion that there were substantial numbers of releases of RMP-listed toxic substances with adverse consequences, where the releases occurred from facilities or processes that were not subject to RMP?

 Does program implementation data support a conclusion that facilities becoming subject to RMP over time due to increases in chemical inventories experienced a decline in the number, magnitude or severity of accidental releases?

If EPA intends to pursue a rule change adopting different threshold quantities and toxic endpoints, EPA will need to be prepared to publish the results of its evaluation of program implementation data and to show that these data objectively demonstrate there have been off-site injuries or damage associated with use of the current toxic endpoints that illustrates the current threshold quantities are not adequate. This would presumably include the number of reported off site injuries, the substance(s) that were involved, the relative frequency of these events compared to the total number of RMP reportable accidents involving toxics since 1999, and other relevant objective data that illustrates the current use of ERPG-2 values is inadequate. If such data and

72 61 Fed. Reg. 31668 (June 20, 1996).46

trend analyses are not available or are extremely limited, EPA should eliminate this technical
issue from further consideration.

As EPA correctly points out in the RFI, there are both existing ERPG values that are established by the American Industrial Hygiene Association (AIHA), and AEGL values which have been previously managed by the EPA. AIHA is a well-known and respected national organization which is comprised of industrial hygiene, safety, toxicology, and emergency response professionals, and the ERPG process is currently active and will continue to exist to maintain and update applicable ERPG values. Conversely, the EPA AEGL process was a one time, lengthy (15 + years) and relatively slow initiative that has been closed (the last AEGL meeting noted on the EPA website was in April 2010), and as far as ACC is aware, there are no plans to manage and update AEGL values on a longer term basis, therefore they will be static values. ERPGs are formed, reviewed periodically, and updated using a weight of evidence approach. AEGLs are typically based more on the results of a single key study. Both approaches use sound scientific methods with peer review and in many cases, the ERPG -2 and AEGL -2 values (based on a 60-minute duration) are reasonably similar. At these very low relative concentrations (parts per million), it is neither necessary nor appropriate to revise Part 68 to impose an entirely new set of (AEGL) values for RMP calculations, both for threshold quantity and toxic endpoint determinations for WCS and ACS calculations. It is also inefficient and not the best use of limited funds and resources to have two separate organizations maintain and publish independent concentration values for RMP purposes if EPA were to ever consider resurrecting the AEGL committee process.

ACC recommends continuing to use AIHA ERPG values as the primary and broadly recognized “gold standard” for these technical concentrations over the long term as they relate to virtually all normal RMP compliance toxic substance activities. AEGL’s may be appropriate for application to truly unique situations or on a case by case basis for events involving an unusual incident duration or other atypical factors, but they are not appropriate for use in a broad based mandatory manner for all 12,000 + covered RMP facilities.

Furthermore, the current guidance for calculating worst case scenarios is based on a 10minute or 60 minute release time and is a relatively simple, appropriately conservative and wellrecognized practice at sites currently registered under RMP. Alternatively, sites have local technical discretion and options to calculate release times for more realistic alternative scenarios based on site conditions, active engineering controls, and human factors, among others. Adopting AEGL-2 values and a corollary expectation to require updated and new worst case and alternative case scenario calculations within a 10 minute, 1 hour, 4 hour and 8 hour release time for each toxic chemical with these longer durations does not make sense. There is no technical justification for this approach, and it would create increased complexity, confusion, and unjustifiable resource demands for each facility with no specific risk reduction or emergency planning benefits in the large majority of cases. In addition, it would not be technically appropriate or relevant for the calculation of alternative release scenarios, which are generally very short term but more realistic events.

ACC recommends continued use of the ERPG values based on their current definitions and release durations for RMP compliance, rather than adoption of the AEGL values. AEGLs have values for five different exposure durations and this would add unnecessary complexity to this RMP WCS and ACS consequence analysis process, both of which are not precision-based47

calculations to begin with. In addition, ACC does not support consideration of the use of lower toxic endpoint concentrations such as AEGL-1 values rather than ERPG-2 (or AEGL-2) values. There are very substantial differential ranges and effects between the two levels, and in several cases, no AEGL-1 values have been designated. For example, the small set of AEGLs in Table 1 for the listed toxics with a 30 minute duration include a wide range of values and the associated multiplier (the relative difference between AEGL-1 and 2 levels) which would substantially enlarge current endpoints and reduce reporting thresholds with little or no objective off site risk based rationale provided by the EPA based on past incidents or reported injuries. AEGL-1 values are widely recognized to be point of early warning concentrations, such as odors or minor transient and non-permanent effects, and should not be used under any normal circumstances to delineate off-site toxic end point concentrations of significant concern associated with accidental releases. ACC firmly believes that current ERPG -2 (or AEGL-2) concentrations provide adequate protection of public receptors for continued application in the RMP rule given the existing imprecision of RMP modeling, local emergency response processes, and other assumptions.

Table 1: Examples of AEGL Values and Wide Ranges – AEGL 1 and 2

RMP Chemical AEGL-1 (30

minutes) AEGL-2 (30

minutes) AEGL 1/2 -

Multiplier Nitric Acid 0.16 ppm 30 ppm 187.5 Formaldehyde 0.9 ppm 14 ppm 15.5 Hydrogen Chloride 1.8 ppm 43 ppm 24 Hydrogen Fluoride 1.0 ppm 34 ppm 34 Oleum/SO3 0.20 mg/m3 8.7 mg/m3 43.5

In the absence of verifiable data and analysis as described above, ACC does not believe that EPA has a rationale for concluding that downward adjustments to RMP reporting thresholds and even more conservative toxic endpoint concentrations should be pursued. The possible rule changes discussed in the RFI would significantly increase engineering analysis and reporting burdens with no substantive increase in quantifiable protection of the off-site populations mentioned in the RFI. After almost 20 years of RMP related experience and risk related communications at the site level, such changes might also create confusion, including questions about other key existing prevention program efforts, and unwarranted concerns within local communities and their local governments.

10. EPA HAS IDENTIFIED NO BASIS FOR CHANGING THE PROGRAM 3
NAICS CODES

“The RMP national database now contains nearly two decades of accident history reports from covered sources, and the Agency believes that these reports represent a more comprehensive picture of the relative accident risks associated with different industry sectors regulated under the rule than was available to the Agency prior to the rule’s publication. Based on these accident reports, the ten NAICS codes most frequently associated with accidents in RMP-regulated processes are 32411 (petroleum refineries), 325199 (all other basic organic chemical manufacturing), 325188 (all other basic inorganic chemical manufacturing), 22131 (water supply and irrigation systems), 42491 (farm supplies merchant wholesalers), 22132 (sewage treatment48

facilities), 325181 (alkalies and chlorine manufacturing), 311615 (poultry processing), 49312 (refrigerated warehousing and storage), and 32211 (pulp mills).65 The Agency is requesting information on the appropriateness of reevaluating the NAICS industry sectors originally identified to determine program 3 applicability based on the collected RMP data.” 73

EPA has asked for information on the appropriateness of reevaluating the NAICS industry sectors originally identified to determine Program 3 applicability based on collected RMP data. ACC has concerns about using accident data drawn from the RMP national database to rationalize changes in the regulatory program or compliance priorities.

Due to the shortness of time provided to respond to the EPA RFI, ACC has not been able to fully develop comments on all of the questions raised by EPA in this section of the RFI. The following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will provide an opportunity for further dialogue on these issues.

Specifically, ACC is concerned with the validity and reliability of portions of the data in the RMP national database. For example, data collected in 1999-2000 on 15,145 facilities in the
United States that stored or used listed toxic or flammable chemicals believed to be hazardous to the environment or to the health of facility employees or off-site residents was confirmed to contain data entry errors that impacted the number of deaths reported and the location of facilities reported. There were similar concerns about the reliability of the data used to select the NAICS manufacturing processing codes, ambiguity over the size of facilities (as measured by full-time equivalent employees), and the reporting chemicals held onsite—all of which would weigh on the decision to cover a particular type of facility under RMP. More detailed comments on this subject are contained in ACC’s comments on EO 13650, at pp. 32-33, attached as Appendix 6.

As a general matter, as noted in our comments above, ACC believes it is critical for EPA to ensure that there is consistency between the RMP and PSM programs. Coordination between EPA and OSHA on these programs is required by Section 112(r) of the Clean Air Act, which mandates that EPA consult with the Secretary of Labor and coordinate its RMP requirements with those established for comparable purposes by OSHA. 74 EPA also noted this requirement in the RFI, and has indicated its intent to evaluate potential changes to the RMP rule in parallel to OSHA’s evaluation of potential updates to the PSM standard. 75 ACC believes these programs should generally cover the same types of facilities and require risk reduction program implementation in the same manner. However, the OSHA RFI does not indicate that OSHA is considering any expansion or change to the types of facilities subject to the PSM standard. 76 ACC is concerned that this lack of coordination would result in inconsistent regulatory programs and a lack of uniformity among similarly situated facilities.

ACC also notes that EPA identifies a new list of ten NAICS codes in its RFI that are “most frequently associated with accidents in RMP-regulated processes” 77 and has asked if these

73 79 Fed. Reg. at 44631.

74 42 U.S.C. §7412(r)(7)(D).

75 79 Fed. Reg. at 44605.

76 See 78 Fed. Reg. 73756.

77 79 Fed. Reg. at 4463149

codes should be included in the Program 3 requirements. EPA has not clarified whether there is any rationale for concluding that the facilities represented by these codes at which accidents have occurred are currently not subject to PSM. If they are covered by PSM, then there is no reason to list the associated NAICS code, since those facilities are already subject to RMP. 78 If a particular NAICS code includes some facilities that are subject to PSM and others that are not, EPA would need to understand whether the accident reporting frequency is the same at both types of facilities, or if there is a difference.

EPA also does not explain why it is considering ten NAICS codes as opposed to some other number. In evaluating which facilities should be subject to RMP Program 3, EPA should consider the risks posed by classes of facilities that are not subject to PSM, and then should make an informed judgment based on risk to determine which of those facilities warrant inclusion. Ten seems to be an arbitrary number.

EPA also appears to be considering the number of accidental releases without correlating these incidents to severity of risk. The mere fact that a category of facilities has a high frequency of low risk events does not justify requiring adherence to RMP Program 3 requirements. Similarly, there could be a category of facility with a low number of accidental releases that each pose a high degree of risk due to the substances involved, proximity to sensitive receptors, history of injuries, or quantity of hazardous substances released, among other factors. We would expect EPA to want to focus on severity of risk in its conduct of this evaluation, not just on the number of incidents reported.

11. THERE IS NO JUSTIFICATION FOR ADOPTING THE ‘‘SAFETY
CASE’’ REGULATORY MODEL

“EPA requests information on the advantages and disadvantages of adopting a safety case approach to replace the RMP regulation and PSM standard, or alternatively, of incorporating aspects of the approach into current regulations or for selected categories of facilities.” 79

Workplace safety and process safety are top priorities of ACC and its members. To become a member of ACC, a company must commit to the highest standards for protecting health, safety, and the environment through participation in the Responsible Care® program. All ACC members are required to implement the Responsible Care® Process Safety Code of Management Practices, which specifically addresses process safety concepts such as leadership, accountability, and culture in order to drive overall process safety performance improvement. This code complements existing regulatory requirements, such as EPA’s RMP program and
OSHA’s PSM standard.

In the RFI, EPA cites to the advocacy of the U.S. Chemical Safety and Hazard Investigation Board (CSB) in a recent draft regulatory report on the Chevron Richmond refinery pipe rupture and fire to consider adoption of the ‘safety case’ regulatory model or implementation of selected aspects of this approach within the current regulatory framework. While ACC shares the goals of EPA and CSB, ACC has numerous concerns about the recommendations in the CSB’s December 2013 Draft Regulatory Report for Public Comment

78 See 40 C.F.R. 68.10(d)(2).

79 79 Fed. Reg. at 44632.50

(the “Draft CSB Report”) regarding the establishment of a safety management regulatory framework based on “safety case” principles. ACC has similar concerns regarding the CSB’s recommendations to OSHA, which are less defined than those in the Draft CSB Report to the State of California, to the extent that the CSB suggests the implementation of a safety case regime.

The safety case regime described by the CSB starkly conflicts with both OSHA’s performance-based PSM standard and EPA’s RMP standard. In particular, ACC believes that its members, through EPA’s current RMP program, OSHA’s current PSM standard, and voluntary programs such as Responsible Care®, already address the continuous improvement goals detailed in the Draft CSB Report. ACC further believes that the recommended safety case regulatory regime is not justified by the reasons articulated in the Draft CSB Report, nor would the safety case framework actually achieve the desired results and benefits for covered workplaces. ACC is also concerned that the drastic changes contemplated by the recommended safety case framework would result in a wide variety of practical problems if implemented.

ACC submitted detailed comments on the prospect of moving either entirely or in part to a safety case regulatory regime in a response to Draft CSB Report. See ACC’s January 2, 2014 “Comment on Regulatory Report No. 2012-03-I-Ca, Draft for Public Comment, Chevron Richmond Refinery Pipe Rupture and Fire (December 2013)” (hereinafter the “ACC CSB Comments”) (attached as Appendix 7 and incorporated herein). As outlined in detail in those comments, ACC believes that certain recommendations in the Draft CSB Report ultimately would detract from worker safety and create an atmosphere of uncertainty and confusion for employers and regulators alike.

Moreover, a safety case regulatory framework shifts the burden to the regulator to review and evaluate a wide set of site-specific information, which regulators will be ill-equipped to handle, without any objective measures. There would be a need for a dramatic increase in EPA staffing and training to address this change. In addition, when a program provides the regulatory agency with the authority and responsibility to approve specific risk-based decisions, there is a natural inclination among the regulated community to rely upon the approvals to establish minimum sufficiency. The regulatory approval becomes an easy target and there is a reduced incentive to explore beyond that target. This type of ‘command and control’ regime will over time erode the benefits of the current risk-evaluation model under which it is clear that the responsibility lies on facility management to understand and evaluate risks and to make site-specific decisions to manage those risks. The safety case model shifts that responsibility to the government.

ACC believes that the current frameworks of RMP and PSM are better suited to achieve the common goal of improved workplace safety. Under the current well-recognized regulatory framework, which provides employers with the necessary discretion to tailor safety processes to the specific conditions of each worksite, ACC members supplement the RMP elements and implement a program that includes many of the elements in the safety case framework, but they retain the overall responsibility to ensure that their programs adequately manage risk and that they evolve to address newly discovered risks.

In addition to the comments above and those incorporated by reference in the ACC CSB Comments, ACC offers the following to respond in part to the subparts of Question 11:51

11(a). Regarding the length of time it takes to develop and obtain approval of a safety case program for facilities in countries using a safety case regulatory regime, ACC does not believe that the length of time is an important criteria. Instead, we believe that the regulatory approach used and its impact and effectiveness on safety is significantly more important. As discussed in detail in ACC’s CSB Comments, the current risk-based and performance-based approaches in the RMP rule and the PSM rule are much more protective than the safety case approach, which has significant disadvantages. Under the current regulatory framework, which provides employers with the necessary discretion to tailor safety processes to the specific conditions of each worksite, ACC members supplement PSM elements and implement a program that includes many of the elements in the safety case framework, but with the site-specific flexibility provided to allow for local conditions.

ACC is aware of no data that indicate the safety case approach reduces the frequency and severity of accidental releases or near misses, when compared to the existing PSM and RMP programs. If there are such data, EPA should provide this under rulemaking and seek public comment. In the absence of data demonstrating the advantages of a safety case approach, the existing PSM and RMP programs provide a framework for reliable management of accidental
chemical release risks.

EPA has also asked whether entities already incorporate aspects of the safety case. ACC members not only already implement so-called “key features” identified by the CSB as the justifications for the safety case proposal, but, in fact, go beyond what the CSB suggests in its safety case proposal in their compliance with the elements of ACC’s Responsible Care® program, as discussed above.

For example, the CSB states that one of the “key strength[s]” of the safety case regime is that it provides the regulator “with the tools to drive continuous improvement” to reduce risks toAs Low As Reasonably Practical (“ALARP”), rather than “focusing on compliance with activitybased regulatory requirements.” See Draft CSB Report at 43. However, ACC members already implement a wide variety of steps to achieve the goal of continuous improvement and risk reduction to ALARP under the existing regulatory program. These steps include the development and implementation of a comprehensive process safety management system to manage process risks and the development of a safety culture to manage those same risks. ACC members already undergo third-party audits to demonstrate compliance with this program. ACC believes that its members are best situated to take the lead role in developing and overseeing programs suited for their particular facilities, rather than the approach envisioned by the safety case regime where the regulator (without any history or knowledge of a particular facility) must review and oversee the program.

11(b)-(c). EPA has asked what additional resources would be required by EPA andOSHA in order to establish and oversee a safety case regulatory regime for RMP and PSMcovered facilities similar to the NRC’s regulatory approach. ACC notes that chemical facilities differ from nuclear power plants in several important ways and therefore should not be compared in the context of the safety case regime. Regardless, EPA’s current RMP standards are adequate. Limiting the safety case approach to only the most high-risk facilities is likewise irrelevant because the current RMP and PSM and regulations are adequate for chemical facilities.52

11(d). EPA has asked about the economic impacts of moving to a safety case-based regulatory regime for chemical facility safety. ACC predicts that there would be substantial economic impacts, as every chemical facility in the United States would have to completely revamp its safety programs, retrain all of its employees to implement the new program, and then transition to the new programs without creating increased risks of incidents. ACC predicts that this massive reorientation would result in economic impacts on all scales, and likely disproportionately so for smaller businesses. In any case, ACC is convinced that there is no need to change the regulations in this dramatic manner, as the RMP and PSM programs are effective
in their current form.

In summary, ACC believes that the current framework under the RMP and PSM standards with performance-oriented requirements best addresses process safety management objectives. A dramatic shift to an entirely new regulatory framework is neither warranted nor justified.

12. STREAMLINING RMP REQUIREMENTS

“EPA is interested in gathering information on any other areas within part 68 that should be modernized, strengthened, or clarified. In particular, EPA invites comment on any potential revisions to the RMP rule that would make it easier for regulated sources to comply with its requirements.” 80

EPA is soliciting comments on possible revisions to “any other areas within Part 68 that should be modernized, strengthened, or clarified” with an emphasis on potential revisions that would make it easier for regulated sources to comply.

ACC generally supports the concept of regulatory clarification and appreciates that EPA is considering this concept as it considers new rulemaking. ACC is concerned that EPA should not take steps to “modernize” or “strengthen” the RMP rule when there is no clear data-driven
evidence that there is a need.

Under EO 13650, OSHA was tasked to identify issues relating to modernization of the PSM standard, and in the OSHA PSM RFI, OSHA sought information on additional management-system elements that might be added to the PSM standard. As discussed above, ACC does not believe that there is any need to add new process safety elements to the RMP program. More detailed comments on this subject are contained in Appendix 1, ACC’s response to the OSHA PSM RFI, at pp. 11-16.

ACC does not believe that the history of incidents where there have been significant releases of RMP-regulated chemicals indicates that such incidents occurred due to missing RMP elements or due to an RMP standard that is not “modernized.” Instead, ACC believes that a majority of incidents have occurred where existing management system elements that are required by PSM and/or RMP were not fully implemented or performed. Therefore, the existing RMP incident history does not provide evidence of the need for additional elements or expansion of regulatory coverage. Imposing unnecessary added regulations on all covered employers ignores the root problems—that certain companies may not have had fully developed PSM

80 79 Fed. Reg. at 44632.53

and/or RMP programs, or perhaps may have not realized that they were even covered by the PSM and RMP regulatory requirements.

As noted in our comments on several items above, changing regulations that adequately address risks at compliant facilities will not improve safety or reduce releases for those companies that currently do a good job of managing risks at their facilities. Companies that know how to fulfill the requirements of the current standards and consistently do so are generally not experiencing a significant number of accidental releases or releases of significant consequences. Nor will expanding the RMP rule requirements reduce the risk of accidental releases at companies that have not developed strong individual programs, that are not enrolled in existing industry programs, or that are not compliant with current requirements. For companies with those issues, making the requirements more extensive and more prescriptive will not provide additional risk reduction. In fact, such changes have the potential to increase some risks by introducing unnecessary complexity and creating distractions from the implementation of important current programs and requirements.

The assumption that gaps exist in the RMP elements must not be viewed as a rationale to impose additional requirements on companies that are fully complying with the existing programs and adequately addressing risks. Instead, ACC believes that EPA should continue devoting resources to education, outreach and, where appropriate, enforcement, to ensure existing risk-based performance measures already in place are fully implemented.

ACC provides the following abbreviated comments on the subparts to Question 12 of the
RFI:

12(a). Generally, ACC believes that mixtures containing more than a threshold quantity of a substance, but at such a low concentration so as not to constitute a hazard, should not be covered by the RMP rule.

Similarly, ACC believes that EPA and OSHA should clarify the application of interconnection and co-location as those terms are used in the definition of “process” to determine whether there is a single covered process. See 40 CFR 68.3. The interconnection of equipment is currently determined on a case by case basis, using as the guiding principle whether vessels are located such that a regulated substance “could be involved in a potential release”. EPA guidance suggests that interconnection should be applied consistent with guidance written by OSHA, which is in many respects is both unclear and overly conservative. Whether vessels are interconnected or co-located should be performance based, and should be determined using a risk analysis, not simply physical connection or location such that they “could” be involved in a “potential” release. Under OSHA guidance, there is often substantial ambiguity where there is a long physically connected process at a facility, even when the risk of an incident along the entire process is extremely low. The risk posed by current configurations of vessels is currently analyzed at least every five years through the completion of process hazard analyses, and these evaluations should be relied upon to determine whether there is sufficient risk to warrant a
determination of interconnection.

12(b). The RMP submission process has been sufficiently simplified through the introduction of RMP Comp and RMP Submit, coupled with the web-based submittal process. Opportunities to improve or upgrade these programs do exist. For instance, ACC recommends54

including the opportunity to incorporate location-specific meteorological data into the RMP Comp program. A drop-down selection option for state/city, similar to that provided in Tanks 4.0.9d, that would link to local meteorological data, would improve the accuracy of the results from the RMP Comp program.

12(c). Facility-level responsible officials are the correct individuals to certify RMP submittals. Facility-level responsible officials are directly involved in the activities at the facilities and have the appropriate level of technical knowledge of the processes at the facilities to provide certifications. Numerous other regulatory submittals rely on the signature authority of facility-level responsible officials, including EPCRA 313 Toxic Release Inventory reporting; EPCRA 312 Tier II reporting; Title V operating permit compliance certifications and deviation reporting; and Clean Water Act Spill Prevention, Control and Countermeasures plans. Senior corporate officials, such as Chief Executive Officers, Chief Financial Officers, Chief Operating Officers, or the equivalent are often times not involved with the day-to-day functions of the individual facilities, and are not well positioned to provide the type of quality assurance that is sought in a certification of specific facility program implementation details. Requiring senior corporate officials to certify RMP submittals would not provide any improvement in the quality of RMP submittals, and would simply distract senior executives from their broader duties. There is no evidence that we are aware of that would indicate that such a change is warranted.

12(d). The current three-tiered program structure of the RMP is appropriate. Providing different tiers of responsibilities based upon different levels of risk is entirely appropriate for a program that is designed to address risks. EPA has presented no data which would suggest that consolidation of the program levels would solve any particular problem. As noted above, information collected by ACC from its member companies strongly indicates that significant accidental chemical releases and related process safety hazards are rare where covered employers have strong PSM programs and comply with EPA’s current RMP regulations.

If EPA contemplates consolidation of the RMP program structure, EPA must demonstrate why the existing structure has not adequately controlled risks of accidental releases in the past, and in this case that would mean the presentation of data showing that facilities complying with the various program levels currently in effect would have avoided past release incidents if they had been in a different program level. ACC does not believe the data will demonstrate that conclusion and therefore encourages EPA not to change a structure that has worked effectively to
date.

12(e). ACC believes that the elements of the RMP rule are sufficiently clear for implementation by the regulated community. Changing or adding additional elements to the RMP rule would lead to confusion, not clarity, as the two regulations would no longer be consistent. This would also result in different enforcement criteria between the two agencies,
which is counter to the intention of the EO 13650.

12(f). ACC believes that the regulatory terms and definitions contained in section 68.3 of the RMP rule are generally adequate, although there is certainly room for improvement. See our comments above in 12(a) on the concepts of interconnection and co-location.55

III. CONCLUSION

While ACC supports the goals of preventing chemical accidents and preventing or minimizing the consequences of accidental chemical releases, ACC has a number of concerns about the proposed changes identified by EPA in the RFI.

The current PSM and RMP rules are strong and effective because they are performanceoriented and not prescriptive. Given the diverse nature of chemical industry operations, it is clear that a flexible approach to process safety will offer the best protections from accidental chemical release. Many of the suggested change options under consideration by EPA would, in practice, weaken the highly effective performance-oriented approach that is currently provided for process safety and chemical management under existing EPA and OSHA programs. ACC believes it is critical that EPA continue to afford each employer the ability to make site-specific and process-specific process safety decisions.

ACC opposes the development of new mandates to force the implementation of specific technologies or of hierarchies that prioritize accidental release risks over other risks that need to be managed at every site.

Before EPA takes any action to address perceived risks, EPA should complete an evaluation of the effectiveness of current program. EPA has a plan in place to create and evaluate RMP program data but has not fully implemented that plan and therefore has no basis to evaluate the strengths and any weaknesses of the program that exists today.

While EPA evaluates the effectiveness of its current program, EPA should (i) encourage industry programs that have demonstrated effectiveness in preventing and mitigating accidental release incidents; (ii) disseminate guidance and alerts to increase knowledge of risks and industry standards, assist operators in identifying and addressing root causes, and assist with fuller integration of facilities that may currently be deviating from program requirements; (iii) develop resource centers where process safety experts can share best practices and innovative alternative techniques and approaches; and (iv) detect and correct compliance deficiencies through inspections and enforcement.

ACC looks forward to the opportunity to continue this dialogue with EPA and to further our shared goals of reducing the risk of accidental chemical release and protecting our employees, communities and the environment.

# APPENDIX 1

ACC COMMENT ON OSHA RFI (MARCH 31, 2014)DB1/ 78324772.1 March 31, 2014

OSHA Docket Office
Docket No. OSHA-2013-0020
Technical Data Center
Room N-2625 U.S. Department of Labor 200 Constitution Avenue, NW Washington, D.C. 20210

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA-2013-0020, RIN 1218-AC82, 78 Fed. Reg. 73756-73768, Request for Information, Process Safety Management and Prevention of Major Chemical Accidents (December 9, 2013)

To the Docket:

The American Chemistry Council (ACC) 1 is pleased to respond to the U.S. Department of Labor’s (DOL’s) Occupational Safety and H ealth Administration (OSHA or the Agency) Request for Information (RFI), Docket No. OSHA-2013-0020, published in the Federal Register on December 9, 2013 at 78 Fed. Reg. 73756-73768.

ACC is America’s oldest trade association of its kind, representing companies across the United States engaged in the business of chemistry. ACC supports OSHA’s commitment, as expressed in the present RFI on Process Safety Management and Prevention of Major Chemical Accidents, to protect the safety and health of workers, the public, and the environment from chemical accidents. ACC shares OSHA’s goal of ensuring that process safety is handled and implemented as safely as possible, as workplace safety and pr ocess safety are top priorities for ACC and its members. In fact, to become a member of ACC, a company must commit to the highest standards for protecting health, safety, and th e environment through participation in ACC’s Responsible Care® program.

ACC members would be directly affected by OSHA’s promulgation of new Process Safety Management (PSM) standards or changes in en forcement policy. While ACC shares OSHA’s goal of ensuring process safety, ACC has a numbe r of concerns about the proposed candidates

1 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of chemistry to make innovative products and services that make people’s lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care®, common sense advocacy designed to address major public policy issues, and health and environmental res earch and product testing. The business of chemistry is a $770 billion enterprise and a key element of the nation’s economy. It is the largest exporting sector in the United States, accounting for 12 percent of U.S. exports. Chemistry companies are among the largest investors in research and development. Safety and security have always been primary concerns of ACC members, and they have intensified their efforts, working closely with government agenci es to improve security and to defend against any threat to the nation’s critical infrastructure.DB1/ 78324772.1 2 for rulemaking or enforcement changes identified by the Agency in this RFI, as outlined within our comments. We believe that the signaled ch anges represent a drastic departure from the current PSM regulatory framework without co rresponding benefits to workplace or employee safety. ACC believes that the most influential development OSHA could take to improve worker safety is through increased PSM awareness, trai ning, and enforcement for outlier companies.

The American Chemistry Council encourages OS HA to consider the fundamental concerns outlined in the subsequent comments as the Agency proceeds with the next step in the rulemaking process. As an alternative to form al rulemaking, ACC recommends that the Agency evaluate the use of non-regulatory means to help OSHA achieve its goal of creating a safer workplace for our nation’s employees and surrounding communities.

Thank you for the opportunity to submit comments on this matter.

ACC hopes that OSHA will find our contribution he lpful. Should you have questions about our input, please contact me by phone at (202) 249-6426 or by e-mail at Rachel_meidl@americanchemistry.com.

Respectfully submitted,

Rachel A. Meidl Director, Regulatory & Technical Affairs American Chemistry Council 700 Second Street, NE Washington, DC 20002 Rachel_Meidl@americanchemistry.comDB1/ 78324772.1 March 31, 2014

OSHA Docket Office
Docket No. OSHA-2013-0020
Technical Data Center
Room N-2625 U.S. Department of Labor 200 Constitution Avenue, NW Washington, DC 20210

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA-2013-0020, RIN 1218-AC82, 78 Fed. Reg. 73756-73768, Request for Information, Process Safety Management and Prevention of Major Chemical Accidents (December 9, 2013)

To the Docket:

The American Chemistry Council (ACC) is Am erica’s oldest trade association of its kind, representing companies across the United Stat es engaged in the business of chemistry. ACC members would be directly affected by the Occupational Safety and Health Administration’s (OSHA’s) promulgation of new Process Safety Management (PSM) standards or changes in enforcement policy. ACC suppor ts OSHA’s commitment, as expressed in the present Request for Information (RFI) on Process Safety Management and Prevention of Major Chemical Accidents, to protect the safety and he alth of workers, the public, and the environment
from chemical accidents.

Furthermore, ACC shares OSHA’s goal of en suring that process safety is handled and implemented as safely as possible. Workplace sa fety and process safety are top priorities for ACC and its members. In fact, to become a me mber of ACC, a company must commit to the highest standards for protecting health, safety , and the environment th rough participation in ACC’s Responsible Care® program. As a part of this commitment, in 1990, ACC adopted the Responsible Care Process Safety Code of Mana gement Practices, identif ies specific activities that chemical companies must implement as pa rt of their Responsible Care obligations.

ACC and its members continuously focus on EHS improvement. For example, we recently developed and then finalized a new Proce ss Safety Code in November 2012. This code was built off of existing process safety performa nce requirements under Responsible Care and is
further evidence of ACC members’ commitment to safety throughout our chemical processing operations, safety management systems, and lead ership. The Process Safety Code requires companies to develop and implement a comprehensive process safety management system to manage risk and seek opportunities to improve pe rformance, including the consideration of safer alternatives. Companies must understand and priori tize process safety risks and ensure that allDB1/ 78324772.1 2 employees have the required knowle dge, expertise, tools, and traini ng to manage process risks in their operations.

The Process Safety Code is intended to complement existing regulatory requirements, including OSHA’s PSM standard and the Enviro nmental Protection Agency’s (EPA’s) Risk Management Program (RMP) rule. Regulatory standards, by nece ssity, focus on process safety at an individual facility. In contrast, the Process Safety C ode addresses issues at a more universal level, such as across a division or corporation, and includes a company commitment to set expectations regarding process safety, defi ne accountability for process safety performance and allocate adequate resources to achieve pe rformance expectations. These higher-level considerations, contained within the Process Safety Code, are cr itical elements of effective management of process safety.

Further, the Process Safety Code is a mani festation of the leadership that Responsible Care companies will undertake to seek system atic continuous improvement in process safety, drawing from the most current learning and advances. When implemented alongside the integrated Responsible Care management systems, this Process Safety Code will help advance the chemical industry’s commitment to process safety by embedding state-of-the-art concepts within Responsible Care, streng thening process safety leadersh ip, culture, management and ultimately, performance. Implementation of the Process Safety Code is mandatory for all ACC Responsible Care companies.

ACC appreciates the opportunity to subm it our comments in response to OSHA’s RFI on Process Safety Management and Prevention of Ma jor Chemical Accidents. While ACC shares OSHA’s goal of ensuring process safety, ACC has a number of concerns about the proposed candidates for rulemaking or enforcement changes id entified in this RFI. As outlined in detail below, ACC believes that the signaled changes re present a drastic departure from the current PSM regulatory framework without any correspondi ng benefits to workplace or employee safety. PSM, with its performance-orient ed approach encourages flexib ility in problem-solving with accountability for results. This flexibility allows the employer to promote continuous improvement with innovative and efficient work place-specific solutions . Furthermore, ACC believes that these signaled changes to the PSM regulatory framework woul d result in disruption, confusion, and increased costs a nd create an atmosphere of uncertainty for employers, employees and governmental regulators such as OSHA . ACC does support OSHA’s overall goal to improve process safety, but ACC urges OSHA to car efully consider its approach and recognize the many variables and complexiti es inherent in regulating PSM.

I. EXECUTIVE SUMMARY

ACC emphasizes that one of PSM’s greatest strengths is its design as a performanceoriented standard. Given the diverse nature of chemical industry operations, ACC knows that a flexible and performance-oriented approach to pro cess safety best protects workers from risk of harm. 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 this reason, ACC opposes prescr iptive recommendations that will chip away at the necessary discretion given to employers. Any one-size-fits-all approach to PSM would limit employers’ ability to reac t to real facts on the ground.DB1/ 78324772.1 3 ACC fears that suggested change options would, in practice, w eaken PSM’s highly effective, flexible performance-oriented appr oach. Given our concer ns, ACC would like to underscore the importance of maintaining a perf ormance-oriented approach for the following topics:

(1) Employers must be able to shape RAGA GEP for a particular si te based on their own selection of applicable internal standard s, consensus codes, and/or engineering determinations and analyses. Employers must be allowed to consider extrinsic factors that are situational or location-specific in determining which approach among multiple approaches will best achieve the ultimate goal of safety. The concept of RAGAGEP recognizes that there is almost always more than one way to successfully address safety and security issues, and that RAGAGEP s hould include analysis and evaluation far beyond the rote application of consensus st andards to allow onsite professionals to
address individual situations and circumstances.

(2) Employers must be afforded the discre tion to choose between se lf, second-party, and third-party audits. Second-part y and self-audits have many safe ty benefits that are lost with third-party audits, and the use of third-party audito rs should remain a choice for employers, who have the greatest understandi ng of the unique potenti al risks, hazards, and challenges facing their worksites. U nder OSHA’s performance-oriented standard, the primary goal should be safety—not the el evation of one method over another without factoring in site-speci fic considerations.

Next, ACC takes issue with all suggest ed change options where OSHA has not established the existence of signi ficant risk of harm. ACC cau tions OSHA against trying to fix something not shown to be “broken.” As OSHA is well aware, the Occupational Safety and Health Act of 1970 (OSH Act) au thorizes the Secretary of Labor to “promulgate, modify, or revoke any occupational safety or health standard” that is “reas onably necessary or appropriate to provide safe or healthful empl oyment and places of employment.” See 29 U.S.C. §§ 652(8), 655(b). In the landmark U.S. Supreme Court decision, Industrial Union Depar tment v. American
Petroleum Institute (the Benzene case), the Court held that “before he can promulgate any permanent health or safety standa rd, the Secretary is re quired to make a threshold finding that a place of employment is unsafe—in the sense th at significant risks are present and can be eliminated or lessened by a change in practices .” 448 U.S. 607, 642 (1980) (J. Stevens, plurality) (emphasis in original) (“[A] workplace can hardly be considered ‘unsafe’ unless it threatens the workers with a significant risk of harm.”). The Court refused to give OSHA the unchecked “power to impose enormous costs that might produce little, if any, discernible benefit,” explaining that it would be “unrea sonable to assume that Congress intended to give the Secretary the unprecedented power over American industry.” Id. at 645. As OSHA stated in its Preamble to the Final PSM Rule, “ OSHA rulemaking is thus constrained first by the need to demonstrate that the standard will substantially reduce a significant risk of material harm , and then by the requirement that compliance is technologically ca pable of being done and not so expensive as to threaten economic instability or dislocation for the industry. Within these parameters, further
constraints such as the need to find cost-effec tive measures and to respond rationally to all meaningful comment militate against regulator y extremes. Finally, it is axiomatic that significant departures from prior practice must be justified.” See Final PSM Rule, 78 Fed. Reg. 6400 (Feb. 24, 1992) (emphasis added).DB1/ 78324772.1 4 Pursuant to Section 304 of the Clean Ai r Act Amendment of 1990, OSHA promulgated the current PSM standard, which ACC believes ha s been successful in addressing significant risks associated with catastrophic releases of toxic, reactive, fla mmable and explosive chemicals. ACC is concerned by OSHA’s RFI on PSM because we see virtually no reference to findings of significant risk of harm to justify a dramatic potential shift from the PSM standard and other rules (e.g., 29 C.F.R. § 1910.106) already in pl ace. While ACC supports OSHA’s goal of increasing workplace safety through the PSM st andard, ACC cautions OSHA against taking any steps to implement changes that increase burde ns on employers without first establishing the existence of a significant risk of harm th rough data and science-based analyses. ACC understands that OSHA published the present RFI as part of an effort to collect “data and information on its PSM standard” in respons e to the Executive Order 13650 process. See 78 Fed. Reg. 73757 (Dec. 9, 2013). In the meantime, however, ACC will not support any changes to the
current standard without such ri sk analysis from OSHA. The r eal issue, ACC believes, is not with the current PSM standard, but with complia nce deficiencies and demonstrated problems with implementation and enforcement of existing requirements. Changing the regulations alone will not improve safety for companies that know how to fulfill the require ments of the current standards and consistently do so. Change also will not increase the safety of workers at companies that are not in comp liance with existing regulations.

In fact, ACC believes that process relate d safety hazards are extremely rare where covered employers fully comply with OSHA’s current PSM regulations. Instead, safety accidents, including those cited throughout the RFI, often involve outlier companies that disregard some or all aspects of the current PSM standard. Full compliance with the regulations already in place would eliminate the significant risk of PSM hazards. As such, OSHA should focus its time and resources on increasing PSM training and education e fforts, as well as enforcement for companies with a history of nonc ompliance, rather than increasing burdens on the industry across the boar d with no discernible re duction of risk.

Finally, if OSHA decides to proceed with subsequent rulemaki ng after considering stakeholder comments in the present RFI, ACC encourages OSHA to be transparent and allow sufficient opportunity for stakehol der participation in every step of the rulemaking. Specifically, should OSHA decide to re-open th e PSM standard and other regula tions referenced in the RFI, ACC hereby requests that OSHA issue an Adva nce Notice of Proposed Rulemaking (ANPR). Given the broad scope but limited detail within this RFI, an ANPR is necessary to provide
stakeholders with sufficient time and informati on to evaluate the impact of any proposed rule changes. Regarding the required studies and analyses mentioned a bove, OSHA should grant stakeholders sufficient time and opportunity to participate in the OMB -required peer review process for scientific information used in risk assessments. Moreover, A CC is confident that any proposed PSM rule, if enacted, would have a significant economic im pact on a substantial
number of small business entities. In fact, over half of ACC’s membership consists of small business. As such, if rulemaking continues, OSHA would be obligated to convene a Small Business Advocacy Review Panel under the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”), which recognizes the impor tance of protecting th e interests of small businesses when developing regulati ons. In general, ACC looks forward to participating in an open dialogue with OSHA on any rulemaking involving OSHA’s PSM standard, given the
current standard’s vital role in setting process safety polic y and procedures throughout the American chemical community.DB1/ 78324772.1 5 II. RESPONSES TO OSHA RULEMAKIN G TOPICS / CHANGE OPTIONS

A. ACC Comment On Atmospheric Storage Tanks (Change Option 1)

OSHA CHANGE OPTION 1 2

1. Clarifying the PSM Exemption for Atmospheric Storage Tanks Pursuant to paragraph (a)(1)(ii) of § 1910.119, the PSM standard applies to processes involving a flammable liquid or gas on site in one lo cation in a quantity of 10,000 pounds or more. However, paragraph (a)(1)(ii)(B) contains an ex emption for “[f]lammable liquids stored in atmospheric tanks or transferred which are kept below their norma l boiling point without benefit of chilling or refrigeration.”

In Secretary of Labor v. Meer Corporation (1997) (OSHRC Docket No. 95-0341), an administrative law judge ruled that PSM covera ge does not extend to flammables stored in atmospheric tanks, even if the tanks are connect ed to a process. As a result, employers can exclude the amount of flammable liq uid contained in an atmospheri c storage tank, or in transfer to or from storage, from the quantity contai ned in the process when determining whether a process meets the 10,000-pound threshold quantity. The Meer decision was contrary to OSHA’s earlier interpretation [FN2] of pa ragraph (a)(1)(ii)(B), which was that the standard covered all stored flammables when connected to, or in close proximity to, a process.

OSHA believes that revising paragraph (a)(1)( ii)(B) to include flammable liquids in atmospheric storage tanks within or connected to a PSM covere d processes would improve the safety of workers by remedying the issue in PSM enforcement that has existed since the Meer decision. In the questions in this RFI, the Agency requests comment on revising paragraph (a)(1)(ii)(B) to clarify th at the PSM standard covers all stor ed flammables when connected to, or in close proximity to, a process.

Current Rule On Atmospheric Storage Tanks Under 29 C.F.R. § 1910.119(a)(1)(ii) Protects Workers, And OSHA Must Demonstrate Signif icant Risk Before Proposing Any Changes

OSHA’s proposal to revise paragraph (a)(1)(ii )(B) to “improve the safety of workers” is not supported by a sound scientific analysis of any risk posed by the current usage of atmospheric storage tanks, nor a showing that a significant risk of ha rm warrants the reopening of 29 C.F.R. § 1910.119(a)(1)(ii). ACC respectfu lly emphasizes that OSHA must substantiate that the current regulation is insufficient to pr otect workers in covered jobsites. Specifically, ACC believes that the reopening of the PSM standard is not warranted and that workers are fully protected under the current standa rd and other related standards such as 29 C.F.R. § 1910.106.

Moreover, as ACC stated in our written res ponse to the Chemical Safety Board’s (CSB’s) Request for Comments regarding Recommenda tion No. 2001-05-I-DE-1, ACC believes that revisiting Paragraph (a)(1)(ii)(B) to include flammable liquids in atmospheric storage tanks

2 For ease of reference, in text boxes placed throughout this submission, ACC has included excerpts from OSHA’s RFI of each Change Option to which ACC offers comment.DB1/ 78324772.1 6 within or connected to a PSM-cove red process is not needed and has been fully and adequately addressed through the following vehicles:

 Secretary of Labor v. Meer Corporation (1997) (O.S.H.R.C. Docket No. 95-0341);

 OSHA interpretation memorandum distributed to Regional Administrators from the Director of Compliance Programs (Subject: C overage of Stored Fl ammables Under the Process Safety Management St andard, dated May 12, 1997); and

 OSHA letter of interpretation (Subject: Clarif ication of PSM applic ability to processes that are based partly or solely on quantities in connected atmospheric storage tanks, dated February 11, 2003).

Additional regulatory protection for atmospheri c storage tanks is provided in 29 C.F.R. § 1910.106. Under this regulation, atmospheric tanks must be “built in accordance with acceptable good standards of design,” includ ing standards published by Underw riters’ Laboratories, Inc. and
the American Petroleum Institute. See 29 C.F.R. § 1910.106 (regulati ng the design, construction, storage, and other required steps in the handli ng of atmospheric storag e tanks). Among other requirements, this regulation ma kes clear that “[a]tmospheric ta nks shall not be used for the storage of a flammable liquid at a temper ature at or above its boiling point.” See id. It also outlines venting obligations for atmospheric st orage tanks and establishes hazardous areas surrounding tanks “for the purpose of insta llation of electrical equipment under normal circumstances.” OSHA has noted, and ACC rec ognizes, that Section 1910.106 is one of the oldest standards in place. As such, ACC recommends that OSHA undertake an analysis of the current version of NFPA 30, and if necessary an d supported by data, propose changes to Section 1910.106 where technical (not formatting) changes ha ve been made. For additional information on the relationship between NFPA 30 and Section 1910.106, see ACC’s comment to Change Option 14 set forth below (“However, we beli eve that many of the substantive technical requirements in the current vers ion of NFPA 30 are identical, or nearly identical, to the information contained in 29 C.F.R. § 1910.106. ACC does not believe that updating for formatting reasons alone warrants a reopeni ng of the 29 C.F.R. § 1910.106 standard.”).

In addition, other work practices required by OSHA and EPA, such as lockout/tagout, hot work, emergency action plan/HAZWO PER, and confined space, also apply to facilities with atmospheric storage tanks. These regulations pr ovide another layer of protection to atmospheric storage tanks. For example, EPA’s Spill Pr evention, Control, and Countermeasure (SPCC) regulations apply PSM-like elements such as mech anical integrity and operational elements to owners or operators of oil faci lities that could reasonably be e xpected to discharge oil into navigable waters. See, e.g. , 40 C.F.R. § 112.1. In sum, ACC believes that the management of atmospheric storage tanks and associated hazards is adequately covered by existing OSHA standards, namely 29 C.F.R. § 1910.106 and th e additional aforementioned measures.

B. ACC Comments Regarding Chemistry Issues (Change Options 4 & 5)

OSHA CHANGE OPTION 4

4. Expanding PSM Coverage and Requirements for Reactivity Hazards Paragraph (a) of § 1910.119 states th at the standard applies to a ny “process which involves a chemical at or above the speci fied threshold quan tities listed in Appe ndix A,” and to anyDB1/ 78324772.1 7 “process which involves a Category 1 fla mmable gas (as defined in 1910.1200(c)) or a flammable liquid with a flashpoint below 100 °F (37.8 °C) on site in one location, in a quantity of 10,000 pounds (4535.9 kg),” unless the pro cess meets one of the exceptions in § 1910.119(a)(1)(ii)(A) and (B). Appendix A of § 1910.119 contains a list of 137 highly hazardous chemicals that present a potential for a catastr ophic event at or above the listed threshold quantities.

OSHA has long been aware of the need to update the PSM standard to address hazards associated with reactive chemicals. In response to a 1995 chemical explosion that killed five workers at Napp Technologies, Inc., in Lodi, New Jersey, OSHA received a petition to revise its PSM standard to address reactivity hazards. OSHA and the U.S. Environmental Protection Agency (EPA) investigated the Napp Technologies accident and concluded in a jointly issued 1997 report (EPA-550-R-97-002) that the explosion was most likely triggered by an uncontrolled chemical reaction of water, sodium hydrosulfite , and aluminum powder. Aluminum powder and sodium hydrosulfate are relatively stable chemical s, with instability/reactivity ratings [FN3] of one [FN4] and two,[FN5] respectively. However, when both of these chemicals are mixed with water the reaction is extremely hazardous. In 2000, OSHA added an advance notice of proposed rulemaking (ANPRM) for reactive chemicals (R IN 1218-AB63) to its regulatory agenda. However, OSHA removed the item from its regul atory agenda in 2002 and never published the ANPRM. In 2003, the labor unions re-f iled their petition for OSHA to revise its PSM standard to address reactivity hazards.

The CSB has also made a number of recomm endations to OSHA on how the PSM standard could be amended to more comprehensively c ontrol reactive hazards. In a 2002 report, the CSB broadly recommended that OSHA extend PSM covera ge to chemicals based on a class of highly reactive properties, similar to the way the exis ting PSM standard defines a class of flammable liquids or gases. The CSB expl ained that a performance-based approach to evaluating reactive hazards would allow for both a comprehensive anal ysis and flexibility in implementation, but it cautioned that a proper hazard analysis of reactiv e hazards would require expertise in reactivity
hazards.

One approach to regulating reactive hazards is the New Jersey Toxic Catastrophe Prevention Act (TCPA). Enacted in 1986, the TCPA is a New Jers ey statute that contains many process safety elements similar to the PSM standard, but the TCPA differs from PSM by explicitly covering reactive hazards, including reactive mixtures. Un like the PSM standard, which contains only one list of covered hazardous chemicals in Appendix A, the TCPA contains multiple lists. This
includes the List of Individual Reactive Hazardous Substances, as well as a list of Reactive Hazard Substances Mixture Functional Groups. N.J. A.C. 7:31-6.3(a), Table I, Part D, Group I, N.J.A.C. 7:31-6.3(a), Table I, Part D, Gr oup II. These functional groups include certain
molecular structures that have b een identified as highly reactive, ba sed on scientific research and accident history. Under the TCPA, covered facilities must determine if any of the chemicals they are intentionally mixing include components on the Functional Group list. If so, then the facility
must determine the heat of the reaction and the correspondin g threshold quantity for TCPA coverage. This approach takes into account not only certain specific chemicals, but also their overall reactivity in determining the level of coverage.DB1/ 78324772.1 8 In the questions in this RFI, OSHA invites comment on different regulatory approaches to covering reactive hazards, including the approach used in the TCPA.

Appendix A Already Adequately Cover Reacti vity Hazards, And An Expansion Of PSM Coverage And/Or Requirements For Reactivity Hazards Is Unjustified

ACC notes that PSM already covers a number of substances that are highly reactive. As the RFI itself states, a “number of the chem icals listed in Appendix A are highly reactive chemicals based on a variety of metrics, including consensus standard sources, but the list does not cover all highly reactive chemicals.” See 78 Fed. Reg. 73759. In addition to the requirements imparted by this list, evaluation of reactivity also occurs during the Process Hazard Analysis, pursuant to 29 C.F.R. § 1910.119(e)(1 ), which requires employers to “identify, evaluate, and control the hazards involved in the process.”

Beyond these requirements currently in place, reactivity hazards cannot be adequately addressed through regulatory listi ng approaches. ACC agrees with the advice given by CSB in
2002 that “ [u]sing lists of chemicals is an inadequa te approach for regulatory coverage of
reactive hazards . Improving reactive hazard management requires that both regulators and industry address the hazards from combinations of chemicals and process-specific conditions rather than focus exclusively on the inhere nt properties of i ndividual chemicals.” See CSB, Report No. 2001-01-H, Hazard Investigation: Im proving Reactive Hazard Management, at 87 (Oct. 2002) (emphasis added). As the PSM rule is essentially a list-based rule, ACC believes that this statement is as true today as wh en it was published, and that no new data in the intervening 12 years contradicts th is conclusion. For pairs of chem icals, which make up the vast majority of reactive substances, extrinsic pr ocess and location-specific conditions must be considered in any hazard assessment.

ACC supports OSHA’s efforts to reduce any sign ificant risk associated with reactivity. However, ACC believes that befo re OSHA takes any additional steps, OSHA must first conduct a sound scientific analysis and technical eval uation to justify expa nding PSM coverage and requirements for reactives. OSHA must investigate and explain what the risk is of some threshold unacceptable hazardous consequence fro m a reaction—at what quantity/concentration will an explosion occur? Would the potential ex plosion be a significant risk? ACC respectfully recommends that OSHA fulfill its statutory requ irement to demonstrate whether updating the standard is required. Only after OSHA has esta blished through sound scie ntific analysis that reactives impose a substantia l risk and hazard should any rulemaking proceed.

With this in mind, if OSHA completes a ri sk and hazard assessment which justifies a proposal to expand PSM’s covera ge, ACC recommends that OSHA prioritize reactivity hazards by (1) focusing on compounds that are highly hazardous independent of processing technology or conditions (namely, compounds that are strongly self-reactive, or reac t violently with air and/or water), and (2) establishing threshold qua ntities based on a hazard and risk assessments for specific compounds. For example, the Globa lly Harmonized System of Classification and Labelling of Chemicals (GHS) (3rd edition 2009 ) provides a framework from which specific compounds could be identified for evaluation :

 Self-Reactive Substances, Types A to C (but not D, E, F & G)

 Pyrophoric LiquidsDB1/ 78324772.1 9  Substances that, in contact with water, emit flammable gases, Categories 1 & 2.

Other classes of reactives (i.e., runaway reactions and in tentional reactive chemistry) simply are not amenable to a broad regulator y approach. These classes depend on situationspecific factors such as use or proximity to other substances that react; they can only be evaluated through the applicati on of industry tools and resources on the specific technology and conditions in which they are utilized. By contra st, self-reactive s ubstances and substances that
are reactive with air a nd water are more amenable to a list-based rule because they are intrinsically-based hazards, much like the mate rials already covered by PSM Appendix A such as flammables. By intrinsic, we mean that the h azard is not situation- or application-dependent, which is clearly the case with bina ry pair reactive chemicals.

Even within the high-priority class of chemicals that are self-reactive or violently reactive with air and/or water, it is imperative that OSHA not categorically a dopt the aforementioned classes without first developing a valid, consistent methodology to identify threshold hazard quantities or concentrations. ACC is willing to work with OSHA to establish any such methodologies and/or criteria. In fact, ACC already has identifi ed useful consensus standards
and other resources that should be used to identify any reactiv ity hazards (again, only after OSHA first justifies coverage through h azard and risk analyses):

(1) The Center for Chemical Process Safe ty (CCPS), an industry- technology alliance of the American Institute of Chemical Engin eers (AIChE), produced and published, with the financial backing of OSHA, EPA, SOCMA, and ACC, the book “Essential Practices for Managing Chemical Reactivity Hazards” (J ohnson, Unwin and Rudy, 2003), available at https://www.aiche.org/ccps/publications/books /essential-practices-managing-chemicalreactivity-hazards, which provides tools for identification and further evaluation of reactivity hazards. Through th e financial support of the a bove-mentioned organizations,
this book was made available via electronic dow nload free of charge for three years after publication, resulting in more than 12,000 electronic downloa ds. Additionally, CSB gave CCPS an “Exceeds Expectation” rating for its recommendation as a part of CSB’s 2002 study when the book was published.

(2) The National Oceanogr aphic and Atmospheric Admi nistration (NOAA) has also contributed significantly to the management of reactivity hazards through its publication of the “Chemical Reactivity Worksheet” ( now Version 3.0, and soon to be upgraded), available at http://response.restoration.no aa.gov/reactivityworksheet. This electronic worksheet creates potential reaction interaction matrices, as well as for generic classes of chemicals, in a succinct, referenced, and easily transmitted format. This tool is also the centerpiece of CCPS’s Reactivity Mana gement Tool (RMT), available at http://www.aiche.org/ccps/resources/t ools/reactivity-management-tool.

Together, these and other similar resources provide a much more effective means for reactivity hazard management than could ever be accomplished for reactives through a list-based rule. Ultimately, ACC believes that OSHA can most eff ectively accomplish its goal of reactivity risk reduction by promoting awareness of the existi ng industry evaluation t ools, references, and guidance on how to evaluate reactive hazards.DB1/ 78324772.1 10 OSHA CHANGE OPTION 5

5. Updating the List of Highly Hazardous Ch emicals in Appendix A of the PSM Standard Appendix A of § 1910.119 contains a list of 137 highly hazardous chemicals that present a potential for a catastrophic event at or above the threshold quantity of the standard. OSHA compiled the Appendix A list of chemicals from multiple sources, including:

• New Jersey’s Toxic Chemical Prevention Act;

• Delaware’s Extremely Hazardous Substances Risk Management Act;

• The World Bank’s Manual of Industr ial Hazard Assessment Techniques;

• U.S. Environmental Protection Agency’s List of Extremely Hazardous Substances;

*73760 • U.S. Department of Transporta tion’s Emergency Response Guidebook;

• Council of the European Communities’ C ouncil Directive of June 24, 1982, on the Major
Accident Hazards of Certain I ndustrial Activities (82/501/EEC);

• United Kingdom Health and Safety Executive’s A guide to the Control of Major Accident Hazards Regulations 1999 (as amended);

• API’s Recommended Practice 750—M anagement of Process Hazards;

• National Fire Protection Association’s (N FPA) NFPA 49—Hazardous Chemicals Data; and

• Organization Resources Counselors, Inc. ’s Recommendations for Process Hazards Management of Substances w ith Catastrophic Potential.

Every chemical listed in Appendix A appeared in at least one of these sources as warranting a high degree of management control due to it s extremely hazardous properties; most of the chemicals appeared in several of the sources.

Appendix A has remained unchanged since OSHA promulgated the PSM standard in 1992. In the questions in this RFI, OSHA requests publ ic comment on which chemicals, if any, the Agency should add to Appendix A through rulemaking. OSHA further seeks comment on methods for periodically updating Appendix A to ensure adequate protection of workers in PSMcovered facilities when new hazards are disc overed and as technology and advancements in
chemical science evolve.

Before Any Changes Are Made To The List Of Highly Hazardous Chemicals In Appendix A Of The PSM Standard, OSHA Must Undert ake Scientific Analyses And Establish Significant Risk

Appendix A of 29 C.F.R. § 1910.119 contains a list of 137 highly hazardous chemicals, compiled from numerous sources, that present a pot ential for a catastrophic event at or above theDB1/ 78324772.1 11 threshold quantity of the standard. ACC encourages OSHA to amend Appendix A only where actual data warrants the incorpor ation of additional chemicals . To this end, ACC urges OSHA to develop and publish its research and data-gathering methodology for identifying, defining, and quantifying the haza rds associated with a chemi cal. OSHA should use a formal, scientific-based approach to evaluate chem icals and, ultimately, to demonstrate that any proposed changes to the PSM sta ndard are justified and would act ually enhance worker safety.

At present, although OSHA states in the RF I that “Appendix A has remained unchanged since OSHA promulgated the PSM standard in 1 992,” OSHA has provided no justifications for updating the list other than the fact that it has remained unchanged since 1992. See 78 Fed. Reg. 73769. The passage of time, in and of itself, is not a sufficient reason to embark on a new rulemaking and ACC is not aware of any reason or development to just ify the reopening of Appendix A. ACC therefore requests that OSHA id entify any issues with the constitution of the current list before moving forward with any pote ntially unjustified changes. ACC believes that it is OSHA’s duty to perform a significant risk analysis on an industry basis, as well as demonstrate that each chemical the Agency intends to regulate exposes employees to a significant risk of harm. ACC trusts that, by completing these required steps in the rulemaking process, OSHA will be able to more efficiently focus its resources on the workplaces and hazards that pose the most potential risk.

ACC notes that many chemicals that are not specifically listed by na me in Appendix A of 29 C.F.R. § 1910.119 are covered under 29 C.F.R. § 1910.119(a)(1)(ii) through processes that involve a Category 1 flammable gas (as define d in 29 C.F.R. § 1910.1200(c), and further defined in Appendix B to 29 C.F.R. § 1910.1200 regarding physical hazard criteria). Only highly
hazardous chemicals that were intended to be addressed by the regulation or that have been identified and justified using scientific methods that define purported hazards and concerns
should be included on the list. D iluting the list with chemicals that have not been demonstrated to represent high hazards will reduce the overall e ffectiveness of any process safety program.

In sum, ACC believes that the existing list in Appendix A of 29 C.F.R. § 1910.119 is comprehensive, and adding additional chemicals s hould be approached with caution. If incident data supports the need for rulemaking on highl y hazardous chemicals, ACC would be happy to
collaborate with OSHA to esta blish revision criter ia and help ensure that updates are technologically feasible and cost-effective and, most importantl y, actually enhan ce the safety of
workers.

C. ACC Comments Regarding Additional Management System Elements (Change Option 6)

OSHA CHANGE OPTION 6

6. Revising the PSM Standard To Require Additional Management-System Elements Executive Order 13650 requires OSHA to “identify issues related to modernizing the PSM standard.” When OSHA promulgated the PSM standard in 1992, the standard adopted management-system elements based on best practic es from industry at the time. However, best practices have continued to evolve since 1992 and additional management-system elements may now be recognized to be necessary to prot ect workers. In this RFI, OSHA seeks publicDB1/ 78324772.1 12 comment on additional management-system elements that would increase worker protection if required under the PSM standard.

The Center for Chemical Process Safety (CCPS) is an example of a safety organization that recommends additional management-system elem ents. CCPS specifies in its Risk Based Process Safety (RBPS) program 20 different ma nagement-system elements, a number of which
are not included in the PSM standard.

 One such RBPS element is “Measurement and Metrics,” described by CCPS as a system for establishing indicators to track the effec tiveness of the management system.[FN6] In this element, the employer typically uses metrics to track leading and lagging safety indicators, and to identify opportunities for improvement.

 Another RBPS element is “Management Revi ew and Continuous Improvement,” which CCPS describes as “the ongoing ‘due diligence’ review by management that fills the gap between day-to-day work activities a nd periodic formal audits.” [FN7]

 A third RBPS element is “Process Safety Competency,” which CCPS explains “encompasses three interrela ted actions: (1) Continuously improving of knowledge and competency, (2) ensuring that appropriate in formation is available to people who need it, and (3) consisten tly applying what has been learned.” [FN8]

OSHA also is considering adopting management-s ystem elements from safety standards that other federal agencies promulgated since 1992. For example, the Bureau of Safety and Environmental Enforcement’s (B SEE) Revisions to Safety a nd Environmental Management Systems (SEMS II) final rule (78 FR 20423; 04/05/2013), which revised a number of requirements in 30 CFR 250, Subpart S, contains management-system elements not included in the PSM standard. In its SEMS II Fact Sheet (A pril, 2013) [FN9], BSEE de scribes three of the
main additional elements as follows:

• Developing and implementing a stop work author ity that creates proce dures and authorizes any and all offshore industry personnel who witne ss an imminent risk or dangerous activity to stop work.

• Developing and implementing an ultimate work authority that requires offshore industry operators to clearly define w ho has the ultimate work authority on a facility for operational safety and decision-making at any given time.

• Requiring an employee participation plan th at provides an envir onment that promotes participation by offshore industry employees as well as their management to eliminate or mitigate safety hazards.

OSHA invites public comment on any additi onal management-system elements, or on expanding existing elements, including those elements discussed in this RFI to improve worker protection in facilities covered under the PSM standard. The Agency requests that commenters submit data and information on management-system elements from consensus standards, safety organizations, federal standards, or other source s that could increase worker safety if OSHA expanded the PSM standard to include the elements.DB1/ 78324772.1 13 Additional Management-System Elements Need Not And Should Not Be Added To
OSHA’s PSM Standard

OSHA is soliciting comments on a possible revision to the PSM standard to require additional management-system elements that w ould “modernize” the scope of PSM. Yet OSHA has not provided any evidence indicating that the existing PSM regulatio n has not adequately included the process safety elements necessary to develop an effective performance-based PSM system. In the present RFI, OSHA cited incidents where existing management system elements were not adequately performed. These examples, however, demonstrate a problem with implementation and enforcement; they do not constitute evidence of the need for additional
elements or expansion of regulatory coverage. Imposing unnecessary added regulations on all covered employers ignores the root problems—that certain outlier companies have chosen not to address the regulation in its entirety through the implementation and maintenance of existing regulatory PSM elements, or perhaps do not reali ze that they are covere d by the regulation.

When EPA promulgated 40 C.F.R. Part 68, it aligned Section 68.15 of the RMP rule (requiring facilities to develop a management system) with Section 1910.119 PSM elements. Here with management-system elements, OSHA should consider EPA’s precedent and maintain consistency between PSM and RMP program elements. Although th ere are significant differences between RMP and PSM, there is a br oad level of consistency that needs to be maintained between the two programs. For example, employers have enacted compliance programs based on the overlapping philosophies in management of change and RMP. Consistency would drastically reduce the burde n on employers complying with two distinct

programs.

OSHA notes in the RFI that CCPS recommends additional management-system elements such as Conduct of Operations and PSM Metrics, as well as performing periodic Management Reviews of PSM programs. Each of these CCPS additional elements are supportive management tools, which are applied to improve the efficacy of the existing elements in the OSHA PSM standard. They do not create a work product of th eir own, and therefore ar e inappropriate in the performance-based PSM standard. ACC agrees that these types of cultural process safety elements may lend themselves to individual or ganizational continuous improvement actions. However, such elements are not well suited for prescriptive regul ation or to support (consistent, rational) enforcement actions by government agenci es. They would be in effectual and confusing as PSM elements, and, as such, should not be added to the current regulations.

Furthermore, lagging PSM metric indicator collecti on and evaluation should not be required by regulation. While la gging indicators may provide in sight into an organization’s process safety performance, there are limits to how this data can be utilized as a meaningful measurement and comparison point. Organiza tions like ACC, ICCA, API, AFPM, and CCPS have been working to standardize and harmonize pr ocess safety metric collection and analysis to provide consistency in reporting; however, this standardization ha s not yet come to fruition and may not be achievable. If it existed, ACC woul d support a single, global, and harmonized set of process safety lagging indicators that could be applied by chemical ma nufacturers worldwide. The advantages of a single scheme are numerous and include si mplified reporting and benchmarking, teachable experiences that can be disseminated across all facilities, continuous process safety improvement, and mitigation and elimination of risks. However, such aDB1/ 78324772.1 14 harmonized set of metrics does not exist at this po int, and even if such a set is developed, ACC does not see the need for its inclusion as a regulation.

In addition, leading PSM metrics cannot be effectually regulated. Even more than lagging metrics, leading metrics do not lend th emselves to standardization and cannot be successfully employed across organizations or industr ies, as they tend to be very specific to an organization and often to an indivi dual site and are not, by definiti on, specific to one root cause. By way of comparison, occupational safety lagg ing metrics such as days away and total recordable injuries—which ACC and other organi zations still have struggled to standardize across the industry—tend to be numerical and quantitative in nature, whereas leading indicators such as behavioral-based audits, employee obser vations, and employee participation in safety committees are extremely subjective and site-speci fic. These metrics cannot and should not be universally applied or regulated.

Also in the RFI, OSHA noted that the Bur eau of Safety and Environmental Enforcement (BSEE) included additional management systems elements, such as (1) stop work authority, (2) ultimate work authority, and (3) employee participation plans, in the offshore Safety and Environmental Management System (SEMS) re gulation. OSHA seeks comment on including these concepts in the PSM standard. ACC does not believe that these examples support adding management-system elements to the PSM standard. OSHA emphasizes the offshore industry in all three examples. Offs hore platforms are substantially different from onshore facilities, with different issues and challenges. The isolated nature and minimal management staffing of
offshore industries does not closel y correlate to land-based chem ical facilities, which have adequate staffing, communicati ons, and geographic proximity to make ultimate operating authority clear and effective w ithout any need for additional re gulatory elements. Moreover, identification of stop work aut hority is already required in ex isting PSM regulation Section F— Operating Procedures (1)(i)(D)—and does not need to be repeated in a separate element. In sum, ACC believes that the existing PSM manageme nt-systems elements required by OSHA in 29 C.F.R. § 1910.119 represent the key components needed for a successful PSM program, and additional requirements suggested by OSHA in the present RFI would not provide any corresponding safety benefits and are not amenable to regulatory implementation.

D. ACC Comments Regarding RAGAGEP (Change Options 7 & 8)

OSHA CHANGE OPTION 7

7. Amending Paragraph (d) of the PSM Standa rd To Require Evaluation of Updates to Applicable RAGAGEP

Paragraph (d)(3)(ii) of § 1910.119 requires employe rs to document that covered equipment complies with RAGAGEP. “For existing equipm ent designed and constructed in accordance with codes, standards, or practi ces that are no longer in general use,” paragraph (d)(3)(iii) of § 1910.119 further requires employers to “determi ne and document that the equipment is designed, maintained, inspected, tested, and ope rating in a safe manner.” However, the PSM standard does not require employers to evaluate updates to applicable RAGAGEP or to examine new RAGAGEP after evaluating and documenti ng compliance with either § 1910.119(d)(3)(ii) or (iii).DB1/ 78324772.1 15 Through extensive collaboration and evaluation of incidents, many safety organizations periodically update their standard s to improve work practices a nd protect workers against newly
identified hazards. Since the practices constituting RAGAGE P under the PSM standard are constantly changing as a result of this pro cess, evaluating updates to applicable RAGAGEP ensures that employers base a facility’s PSM program on the most up-to-date and accurate safety information available.

An accident that occurred at a Formosa Plastics facility in Point Comfort, Texas, on October 6, 2005, illustrates the importance of evaluating update s to applicable RAGAGEP. A trailer towed by a forklift became snagged and pulled a small drain valve out of a strainer in a liquid propylene system at the facility. Escaping propy lene rapidly vaporized, causing a series of explosions and fires that injure d 16 workers. According to the CS B’s investigation report on the incident (CSB Report No. 2006-01-I-TX), Formosa and the company that sold the plant design failed to evaluate updates to applicable RAGAGEP for fireproofing structural steel that supports critical safety systems. The CSB concluded in its report that had Formosa fireproofed the steel according to more recent RAGAGEP, then “the cons equences of this incident would likely have been less severe.” OSHA invites public comment on the best approach to revising paragraph (d)
of *73761 the PSM standard to require employers to evaluate updates to applicable RAGAGEP could help prevent or mitigate accidents lik e the October 6, 2005, Formosa explosion, and increase worker protection in PSM-covered facilities.

ACC Submits That OSHA Need Not Amend PSM To Explicitly Require Employers To Document Their Evaluations Of Updates In Codes And Standards Under RAGAGEP

A strict mandate to evaluate all updates to codes and standards would be extremely costly to implement and impractical, with little or no corresponding risk reduction. Employers should not be forced to re-document their safety eval uations every time an update to a standard is published. PSM-covered equipment or processes do not become “less safe” merely because a code or standard is updated. ACC believes that current OSHA regulations adequately protect worker safety and already ensure that employers examine all pertinent sa fety updates applicable to “recognized and generally accepted good engineeri ng practices,” also known as RAGAGEP.

ACC has strong legal and practical concerns regarding any government requirement that employers evaluate standards and codes, many of which are privately published, each time they are updated. As explained in OSHA’s recent presentation to the Global Congress on Process Safety:

Incorporation of consensus standa rds by reference has benefits to both OSHA and the regulated comm unity. However, OSHA must incorporate a specific version of a standard. When the consensus standard is updated, OSHA’s incorp orated standard becomes dated and can only be updated thro ugh the rulemaking process.
Commenters on OSHA’s ANPRM real ized this, and this resulted in a different approach, the introduction of the RAGAGEP concept.DB1/ 78324772.1 16 See Lisa Long, James Lay, P.E., Michael Marsha ll, P.E. & Jeffrey Wanko, P.E., C.S.P, OSHA Presentation to 9th Global Congr ess on Process Safety: RAGAGEP 101 (April 28–May 1, 2013) (referred to below as “RAGAGEP 101”). As OS HA stated in Part I Question 8 of the present RFI, any required evaluation of all potentially applicable consensus standards is problematic given “difficulties in obtaining relevant codes and standards” a nd “potential confusion on which codes were required by OSHA in a given situation.” See 78 Fed. Reg. 73761. For these reasons, OSHA explained in the Preamble to the Final PSM Rule (Feb. 24, 1992) that the “Agency did not intend to incorporate by reference into th e [RAGAGEP] standard all of the codes and standards published by these consensus groups. As noted above, the purpose of this proposed provision is to make sure that process equipment is inspected a nd tested properly, and that the inspections and tests are performed in accordan ce with appropriate codes and standards,” including internal standards. See 57 Fed. Reg. 6390. Clearly, OSHA never intended employers to be bound by all codes and standards publis hed by consensus groups through RAGAGEP; by extension, employers should not be bound to evaluate all upda tes to consensus codes and
standards. RAGAGEP eliminates the need for c overed employers to document their evaluation of every applicable standard and code amen dment by creating a broader, all-encompassing
standard based on RAGAGEP. Inherent in th e concept of RAGAGEP is an ongoing evaluation
of all pertinent safety updates that together make up “recognized and generally accepted good engineering practices.”

Indeed, the legal and practical implications of such a mandate would be exceptionally problematic, considering the hundreds of continua lly updated codes and standards that may be applicable to a particular work site’s RAGAGEP. Would employers be required to evaluate in writing even minor changes to standards? Would employers be required to evaluate changes that have no effect on safety? If so, how could OS HA justify this tremendous burden? If not, how would OSHA distinguish, monitor, and enforce the evaluation of changes that affect safety from changes with no safety consequences? Wh at would happen if th ere was a significant disagreement within the consensu s organization that had issued a specific standard or set of standards, or where there was continuing internal review and appeal of a standard—what would OSHA’s enforcement position be? Given thes e ambiguities, ACC is strongly opposed to OSHA’s proposal to explicitly require employers to document their evalua tion of all updates in
codes and standards.

Furthermore, constant monitoring and eval uation of updates to all codes and standards that may apply to RAGAGEP would impose a significant economic burden on industry. Consensus standards are not typi cally free to the public, and subscriptions to all potentially applicable standard publications represent a signifi cant cost, especially to small businesses. In addition, the task of evaluating all updates (including minor updates and updates where prior practices remain safe) would be extremely tim e-consuming for any company, and unjustifiably expensive for smaller enterprises. Lastly, this requirement could encourage unnecessary and excessive updates to consensus standards, cr eating (1) economic disincentives for affected employers to support the activities of the sta ndard developers and (2 ) substantial economic incentives for those who financially benefit fr om continual updates. By contrast, OSHA has provided no data to show that co ncrete benefits and enhanced wo rker safety would result from imposing this requirement.DB1/ 78324772.1 17 Importantly, the current PSM framework alread y has mechanisms in place to ensure that processes are safe on an ongoing basis, even if e quipment was originally designed or constructed to comply with standards or practices no longe r in use. Under 29 C. F.R. § 1910.119(d)(3)(iii), “[f]or existing equipment designed and construc ted in accordance with codes, standards, or practices that are no longer in general use, the employ er shall determine and document that the equipment is designed, maintained, inspec ted, tested, and operating in a safe manner .” (Emphasis added.) Employers have the duty to ensure that equipment is operated in a safe manner, regardless of the codes and standard s originally employed. Moreover, 29 C.F.R. § 1910.119(j)(4), which focuses on mechanical inte grity, mandates inspection and testing be performed on process equipment as frequently as required by “appli cable manufacturers’ recommendations and good engineer ing practices, and more frequently if determined to be necessary by prior operating experience” and by following “recognized and generally accepted good engineering practices.”

The bottom line is that current PSM requireme nts already ensure that employers consider pertinent safety updates applicab le to RAGAGEP. In fact, OS HA clarified in a Letter of Interpretation that after the employer makes a baseline safety determination (with corresponding documentation of the determination) under 29 C. F.R. § 1910.119(d)(3)(iii), other PSM elements address continuing safety:

Generally speaking, OSHA intended for the employer determination and documentation required by 29 CFR 1910.119(d)(3)(iii) to be completed prior to the implementation of the original PHA or startup of a PSM-covered process. Therefore, once an employer is in compliance with this requirement, there is no additional requirement per 29 CFR 1910.119(d)(3)(iii) for future determinations/documentation simply because a code or standard related to the covered equipment has been revised. After the employer has made this baseline determination and documentation, other PSM elemen ts such as management of change, mechanical integrity, PHA-revalidation, pre-startup safety review, etc., are intended to address on-going safe operation and maintenance of PSM-covered equipment

.

See OSHA Letter of Interpretation to Mr. Durham Regarding Section 1910.119(d)(3)(iii) (dated Jan. 20, 2001 and corrected June 2, 2005) (emphasi s added). ACC believe s that steps listed above—including management of change, mech anical integrity, PHA-revalidation, and prestartup safety review—appropriate ly require employers to eval uate process safety of all equipment under current standards. Adding a new requirement of employers to document that they have evaluated all updates to safety codes is unnecessary, unjustified, and overly
burdensome.

Finally, ACC would like to highlight that RAGAGEP is a large and diverse subject—not a single code, standard, practice, or update. As OSHA has stated, the PSM standard outlines a management system framework “upon which employers build.” See RAGAGEP 101. The employer’s responsibility for selecting and impl ementing actions to manage risk is a key component of the entire foundation of the PSM framework:DB1/ 78324772.1 18 The PSM standard is not prescriptive because of the number and types of industries, facilities, ch emicals, and technologies covered by the standard. Employers have latitude to develop and initiate the required management systems in a manner that is flexible and
takes into account the attributes of their covered processes and equipment while still achieving safe operations.

. . . . Because OSHA is not in a position to be expert in any industry, use
of RAGAGEP is critical to the su ccess of a performance standard such as PSM. Using the collective wisdom and experience of industry experts, RAGAGEP help s achieve safe operations throughout industries using hi ghly hazardous chemicals.

Id. OSHA has acknowledged that employers have the di scretion and responsibil ity to select “the appropriate RAGAGEP with which to comply.” Id. Ultimately, there is no single code, standard, or methodology that woul d be congruous to the diverse nature of chemical industry operations.

OSHA CHANGE OPTION 8

8. Clarifying the PSM Standard by Adding a Definiti on for RAGAGEP The term “recognized and generally accepted go od engineering practices” (RAGAGEP) appears in paragraphs (d)(3)(ii) and (j )(4)(ii) of § 1910.119, but the PS M standard does not contain a definition for the term. For guidance purposes , OSHA’s Petroleum Refinery NEP directive (CPL 03-00-010) provides one example of a RA GAGEP definition from CCPS’s Guidelines for Mechanical Integrity Systems:

Recognized And Generally Accepted Good Engi neering Practices” (RAGAGEP)—are the basis for engineering, operation, or maintenance activiti es and are themselves based on established codes, standards, published t echnical reports or recommended practices (RP) or similar documents. RAGAGEPs detail generally appr oved ways to perform specific engineering, inspection or mechanical integrity activities, su ch as fabricating a vesse l, inspecting a storage tank, or servicing a relief valve.

Although the CCPS’s definition of RAGAGEP is not an official OSHA definition, it is consistent with OSHA’s intent when it promul gated the standard. In its PSM proposal, OSHA would have required employers to follow comm only accepted consensus standards and industry codes. 55 FR 29150, 29155 (July 17, 1990). In prom ulgating the final rule, OSHA changed the requirement that employers comply with applic able published codes to the requirement that they comply with “recognized and generally accepted good engineering practices.” In making this change, OSHA explained that RAGAGEP w ould include codes and standards published by organizations such as NFPA, ASTM, and ANSI, as well as “appropriate internal standards.” 57 FR at 6390-91. OSHA made the change in re sponse to comments expressing a number of concerns about the proposed language. These included comments about employers’ difficulties in obtaining relevant codes and standards, poten tial confusion on which codes were required byDB1/ 78324772.1 19 OSHA in a given situation, the possibility that codes and standards could become outdated, and the inability of employers to use more stringent internal standards. OS HA believed it was clear from the context of this change that it intende d “appropriate internal st andards” to be those employers developed when published codes and sta ndards were unavailable or outdated, or that were more stringent than published standa rds. 57 FR at 6390-91. However, OSHA did not
include a definition of RAGAGE P in the standard itself.

In this RFI, OSHA invites public comment on whether the Agency should clarify the PSM standard by including an exp licit definition of RAGAGEP in § 1910.119 to assist employers in complying. OSHA requests that commenters speci fy if the Agency should adopt the CCPS’s definition of RAGAGEP in § 1910.119, or any ot her appropriate definition, and whether
inclusion of a definition woul d increase worker protection and enhance process safety.

To Best Achieve The Goal Of Workplac e Safety, RAGAGEP Must Be PerformanceOriented And Allow Employers To Evalua te And Individualize Their Own Internal
Standards

To best protect workplace safety, “rec ognized and generally accepted good engineering practices” must remain a fluid concept that allo ws employers to tailor PSM to the realities and challenges of their particular worksites. RAGAGEP cannot be a single document, code, standard, or practice. Inst ead RAGAGEP must include both industry consensus guidance and appropriate internal standards that have been evaluated and adopted by employers, leaving room for determinations by onsite engineers.

The inclusion of internally developed standa rds in this definition is a key feature that allows RAGAGEP to be a valuable process safety tool. By allowing employers to tailor industry consensus guidance documents, RAGAGEP adapts to the highly unique demands of complex chemical equipment and operations. RAGAGEP r ecognizes the reality of chemical operations— that there is no one singular way to solve a given problem that pr ovides similar levels of risk reduction for the diverse set of equipment, processe s, and chemicals utilized in the United States, even across a single chemical company. Covered employers must be able to tailor consensus guidance to situations presented at their individual workplaces . Even standards with highly prescriptive, consequence-only methods (such as API 753) contain language that permits, and even encourages, tailoring through detailed first-principal-based engineering analyses. Any “all or nothing” RAGAGEP definition woul d be as ineffectual as it is unjustified; instead, employers
must be allowed discretion in the manner a nd extent of adopting specific parameters.

Under RAGAGEP, employers are responsible for appropriately analyzing and evaluating safety issues and addressing them through adopt ion of existing industry consensus standards, guidance, and/or appropriate inte rnal standards tailored to the unique facts presented in that workplace. To effectively protect workers a nd the public, RAGAGEP must be a performanceoriented standard. As OSHA itself recently explained:

The PSM standard is not prescriptive because of the number and types of industries, facilities, ch emicals, and technologies covered by the standard. Employers have latitude to develop and initiate the required management systems in a manner that is flexible andDB1/ 78324772.1 20 takes into account the attributes of their covered processes and equipment while still achieving safe operations.

See RAGAGEP 101. Under RAGAGEP, employers mu st be allowed to consider extrinsic
factors that are situational or location-specific in determinin g which approach among multiple approaches (not all of which are published in consensus documents) will best achieve the ultimate goal of safety.

RAGAGEP provides employers with both the responsibility a nd accountability to identify and implement proper standards and monito r onsite safety. Part of the justification for making employers responsible for developing RAGAGEP is the recognition of the unique expertise of employers’ engineers and other spec ialists. These onsite sp ecialists apply their knowledge and skills to evolving si tuations presented in the part icular workplace. To best protect worker safety, employers , with the support of their e ngineers and other professionals, must decide which “recognized and generally accepted good engineering practices” may be applicable to the individual workplace by an alyzing the specific c onditions and challenges presented.

ACC notes that although the phrase “appropria te internal standards” is used throughout the present RFI, OSHA has not defined this phrase through gui dance or rulemaking. In the original Preamble to the Final PSM Rule, OS HA specifically and repeatedly stated that RAGAGEP “would include appropriate internal standards of a f acility, as well as codes and standards published by NFPA, ASTM, ANSI, NFPA, etc.” See 57 Fed. Reg. 6390 (Feb. 24, 1992). OSHA further explained that:

Several rulemaking participants . . . suggested that if this provision is to be truly performance-orie nted, employers should have the flexibility to follow internal standards and manufacturers’ recommendations as well as applicable codes and standards. OSHA agrees with these rulemaki ng participants. Since the phrase “recognized and generally accep ted good engineering practices” would include both appropriate inte rnal standards and applicable codes and standards, the Agency has decided to use this phrase in this provision of the final rule.

Id. at 6390-91. As OSHA stated in the Preamble to the Final Rule, RAGAGEP was included in the final PSM rule because, at its core, RAGAGEP provided employers with the flexibility to use appropriate internal standards and/or consensus codes—consistent with the goal of making PSM a performance-oriented standard. Nowhere in the Preamble to the Final Rule did OSHA prioritize consensus codes and standards over internal standards. Moreover, in a recent Letter of Interpretation, OSHA acknowledged that consensus standards are me rely one factor that should be considered among other fact ors in developing RAGAGEP:

The PSM standard is a performan ce-oriented standard. When not specified, the employer has flexibility in complying with the requirements of PSM, including reco gnized and generally acceptedDB1/ 78324772.1 21 good engineering practices. With respect to SIS [safety instrumented systems], OSHA do es not specify or benchmark [ANSI/ISA’s 1996] S84.01 as the on ly recognized and generally accepted good engineering practice. Based on input from stakeholders, OSHA stated in the PSM final rule (see F.R., Volume 57, No. 36, pg 6390) that it did not intend to incorporate by reference into PSM all the codes and standards published by consensus groups. Therefore, in evaluating whether an employer's engineering practices with respect to SIS complies with PSM, OSHA would consider among other factors , whether the employer meets the requirements of S84.01.

OSHA Letter of Interpretation fr om Directorate of Enforcement Programs Richard E. Fairfax to Ms. Ferson (dated Mar. 23, 2000 and correct ed June 2, 2005) (emphasis added).

Despite the clear inclusion of appropriate internal sta ndard in RAGAGEP, OSHA has recently taken a more restrictive position on this i ssue, namely that internal standards will be deemed “appropriate” only where (1) they are based on sound engineering principles; (2) the existing consensus standard is outdated and no longer reflects a consensus on good engineering practices; (3) the internal standards fill gaps le ft by the consensus standards or apply general consensus standards to particular types of pro cess equipment; or (4) the internal standards are more protective than consensus standards. See Petition for Discretionary Review, Sec’y v. BP Prods. N. Am., Inc. , No. 10-0637 at 15 n.10 (O.S.H.R.C. Sept. 5, 2013) (citing Sec’y PostHearing Br. 90-91; 57 Fed. Reg. at 6390). ACC strongly opposes OSHA issuing “factors” that have enforcement consequences without first presenting and proposing them to the regulated community through proper notice (which would include OSHA’s rationale for proposing each of the above factors) and an opportunity to co mment on that rationale and other issues.

Moreover, ACC strongly opposes factors (2) an d (4). ACC opposes factor (2) because it implies that an existing consensu s standard should be applied in the first instance (taking away the employer’s discretion to dete rmine whether to apply a consen sus standard or create an internal standard). In addition, factor (2) w ould place an impossible burden on an employer to show that a particular consen sus document no longer reflects a “consensus” on good engineering practices. Among other hurdles, “recognized and generally accepted good engineering practices” vary drastically from worksite to worksite, as explai ned above. Further, ACC opposes factor (4)—the purpose of applyi ng “internal standards” is so that an employer is given the ability to adopt and tailor existing standards to the facts presented by an individual workplace. ACC believes that “appropriate” internal standards should be no less protective than a consensus standard, but it is unacceptable for OSHA to requi re an employer to show that the internal
standard is more protective. Internal st andards are an alternative means of compliance that provide (at least) an equivalent level of protection comp ared to consensus standards. Use of an internal standard does not signal that an “exception” to a consensu s standard is required, but that the employer best situated to understand onsite safety has decided to take an alternative approach. In fact, having to make a “more protective” showing would act as a disincentive against undertaking a more exhaus tive review of specific workplace safety issues, which occurs when an employer seeks to create its own internal standards.DB1/ 78324772.1 22 Along the same lines, any definition of RAGAGEP should recognize the importance of fundamental engineering skills and engineering analyses. Engineers must apply systemic thinking and engineering pr inciples to the equipment, processes, and chemicals at issue to reach a performance threshold. In sum, the concep t of RAGAGEP recognizes that there is almost always more than one way to successfully addre ss safety and security issues, and that this necessarily involves analysis and evaluation far beyond the rote appl ication of consensus standards to allow onsite professionals to e ffectively address indi vidual situations and circumstances. As an example, while constructi on of unfired pressure vessels per ASME Code Section VIII is a very prescriptive methodology, the selection of construction materials, and the performance of such equipment under normal, transient (startup and shutdown), and upset conditions, cannot be accomplished through the app lication of any consensus standard. Such an analysis requires detailed, process-specific information (such as potential contaminants, temperature of utilities, local environmental cond itions—salt air, extreme temperature, etc.). Application of first-principle sc ience and engineering are vital to the success of such a design, regardless of the consensus st andard to which the vessel is ultimately constructed.

Finally, ACC cautions OSHA against trying to fix something that it has not shown to be “broken” through an analysis of significant risk. ACC also fears that any overly prescriptive or narrow definition of RAGAGEP, and particularly its inclusion of “a ppropriate internal standards,” will be a disincentive to employers to carefully evaluate the individual risks presented in their workplace and addressing them through tailored engineering practices.

E. ACC Comments Regarding Mechanical In tegrity (Change Option 9)

OSHA CHANGE OPTION 9

9. Expanding the Scope of Paragraph (j) of the PSM Standard To Cover the Mechanical Integrity of Any Safe ty-Critical Equipment Paragraph (j) of § 1910.119 requires employers to implement an ongoing mechanical-integrity program with respect to their PSM-covered pr ocesses. For processing, storing, or handling highly hazardous chemicals, employers must use equipment designed, constructed, installed,
and maintained to minimize the risk of an uncontrolled release. Elements of an effective mechanical-integrity program include: Identifying and categorizing equipment and instrumentation; inspecting a nd testing their frequency; ma intaining procedures; training maintenance personnel; having criteria for accep table test results; documenting test and inspection results; and documenting manufact urer recommendations for equipment and
instrumentation.

Paragraph (j)(1) states that the mechanical-integri ty requirements of the PSM standard apply to: Pressure vessels and storage tanks; piping sy stems (including piping components such as valves); relief and vent systems and devices; emergency shutdown systems; controls (including monitoring devices and sensors, alarms, and inte rlocks); and pumps. In the preamble to the PSM final rule, OSHA explained th at “if an employer deems additi onal equipment to be critical to a particular process, that employer should co nsider that equipment to be covered by this paragraph and treat it accordingl y” (57 FR 6389, February 24, 1992) . In light of the limited list of covered equipment in paragraph (j)(1), OSHA addresses hazards associ ated with other typesDB1/ 78324772.1 23 of safety-critical equipment thr ough citations for violations of S ection 5(a)(1) of the OSH Act.

Revising paragraph (j) to explic itly apply the mechanical-integrity requirements of the PSM standard to all equipment the employer identifies as critical to process safety-critical equipment, in addition to the equipment currently listed in the standard, would provi de industry with proper notice regarding coverage of such equipment. OSHA invites comment on whether the addition of this provision to paragraph (j) will increase worker safety and whethe r any further clarifying revisions would be recommended to ease implementation.

The Current PSM Standard Already Requires Em ployers To Include All-Safety-Critical Equipment In Their Mechanical Integrity Programs

ACC needs OSHA to provide more inform ation and identify the “safety-critical equipment” purportedly not covered by the ex isting standard—equipment that, according to OSHA, is addressed through use of the General Duty Clause, before it can offer comprehensive comments on this issue. In addition, OSHA ha s yet to publish any data supporting any purported deficiency in Paragraph (j). If OSHA has data regarding the cause of process safety incidents to justify an expansion of the list in Paragraph (j), ACC requests th at such information be published before any rulemaking continues.

Based on the experiences of our members, AC C strongly believes th at the six categories currently listed in Paragraph (j) of the standard sufficiently cover safety-critical equipment involved in the handling of highl y hazardous chemicals. As OSHA recognizes in its RFI, the Preamble to the Final PSM Rule clearly explaine d that employers have a duty to include other safety-critical equipment in their mechanical integrity programs. See 57 Fed. Reg. 6389 (“[I]f an employer deems additional equipment to be critical to a particular proces s, that employer should consider that equipment to be covered by this paragraph and treat it a ccordingly.”). Thus, by extension as part of this duty, the employer ha s the responsibility to understand, identify, and define safety-critical equipment.

ACC endorsed a risk-based approach to mech anical integrity in its Responsible Care Process Safety Code. While developing the ne w Process Safety Code, ACC recognized that process safety hazards may vary by company, by process technology, and by the complexity of the facility. Even within a singl e company, risk differs drastically based on a variety of factors such as the equipment used. The existing regulat ion has adequate language in the process safety information, mechanical integrity, and process hazar d analysis sections to include other processsafety-critical equipment if identified.

ACC believes that a risk-based approach, similar to what is required under ACC’s Process Safety Code, already exists in the curr ent PSM and satisfactorily protects mechanical integrity safety. No further expansion is need ed. Furthermore, any expanded list of covered equipment that is not risk-based could result in an undesired situation in which resources such as money, time, and expert attention are pulle d from critical site-specific equipment to address less-critical equipment listed in Paragr aph (j) for all sites regardless of actual risk.

Finally, ACC notes that OSHA’s RFI did not offer any specific examples or a definition of “critical.” Any definition should be based on what the empl oyer deemed to be reasonablyDB1/ 78324772.1 24 foreseeable, and not the hindsight of comp liance officers. 29 C.F.R. § 1910.119 covers process safety management of highly hazardous chemi cals. As such, all mechanical integrity requirements under this regulation mu st be restricted to process-safety-critical equipment.

F. ACC Comments Regarding Management Of Change (Change Option 10)

OSHA CHANGE OPTION 10

10. Clarifying Paragraph (l) of the PSM Sta ndard With an Explicit Requirement That Employers Manage Organizational Changes Paragraph (l) of § 1910.119 requires employers to es tablish and implement wr itten procedures to manage change, including all modifications to equipment, technology, pro cedures, raw materials, and processing conditions other than replacements in kind. Temporary changes are subject to the management-of-change requirements of the stan dard. Employers must properly identify and review all PSM-covered changes before implementation.

The existing standard does not explicitly st ate that employers must follow management-ofchange procedures for organizational changes,[FN 10] such as changes in management structure, budget cuts, or personnel changes; however, as noted in a March 31, 2009, Memorandum for Regional Administrators from Richard Fairfax,[ FN11] it is OSHA’s position that paragraph (l) covers organizational changes if the changes have the potential to affect pr ocess safety. Since the original promulgation of the PSM rule, it has be come well established in the safety community that organizational changes can have a prof ound impact on worker safety and, therefore, employers should evaluate organizational chan ge like any other change. Illustrating the significant hazards that organizational change s can produce, the CSB identified a lack of organizational management of change as a sign ificant factor behind the 2005 BP Texas City Refinery accident that killed 15 workers a nd injured over 170 others (CSB Report No. 2005-04- I-TX). OSHA invites comments on whether revising *73762 paragraph (l) to clarify that the PSM standard’s organizational management-of-cha nge requirements will increase worker safety.

Paragraph (L) Need Not Be Amended To “E xplicitly” Require That Employers Manage Organizational Changes

ACC believes that reopening the PSM standard to include an explicit requirement that employers manage and address organizational changes is not warranted. As previously expressed in ACC’s written response to CSB’s Request for Comments regarding Recommendation No. 2005-04-I-TX-R9, current OSHA standards and other publications sufficiently address the PSM coverage of management of change.

To start, the issues raised in Change Opti on 10 have been fully and adequately addressed through OSHA’s interpretation memorandum refere nced in the RFI (Subject: Management of Organizational Change (MOC), dated March 31, 2009). Therein, OSHA provided guidance and interpretation regarding when 29 C.F.R. § 1910.119(l) on MOC must be considered for organizational changes:

The MOC provisions of the PSM st andard apply only to changes, including organizational changes, that impact safety in PSMDB1/ 78324772.1 25 covered processes. . . . 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 procedure. . . . [I]f organizationa l changes necessitate changes to process chemicals, technology, equipment, procedures, or facilities, an MOC procedure would be required to ensure that the resulting changes are managed and implemented in a manner that assures continued safe oper ations. (Emphasis added.)

See id. (emphasis added). Through this interpre tation, OSHA recognized that organizational changes connected to other existing PSM elem ents (including, but not limited to, operator training, operating procedures, mechanical integr ity, and hazard evaluations) may require an
MOC evaluation and communication of relevant changes to affected workers. Beyond this, as OSHA recognized in its interp retation memorandum, “management changes that do not impact PSM covered processes are not affected by the MOC provisions of the PSM standard.”

OSHA had good reason for clearly limiting PSM MOC provisions’ coverage to those changes that impact safety in PSM covered pr ocesses. Organizationa l change can present complex fact-intensive scenarios that cannot easily be addressed through an expanded or prescriptive regulatory require ment. Any explicit requirem ents beyond the current PSM MOC performance-based criteria may create conflicts with existing site-level Human Resources (HR) policies and labor management agreements, as well as business-level staffing decisions and organizational redesign. At many sites, comp anies may operate both covered and non-covered processes where organizational changes may impact one, both, or neither type of processes.

Similarly, “replacements in kind” may not be consistent with the organizational change requirements. For example, if a process safety te chnician retires and ther e are no gaps in process safety technician services/activities, the f acility should not be required to complete a management-of-change form as long as the f acility plans on hiring a new process safety technician and training that employee to the level of the retired employee; however, the elimination of the process safety technician po sition altogether may warra nt inclusion. If the process safety technician retires and there is, fo r example, a gap until a replacement is hired and trained, the facility should conduct an MOC to en sure that the safety t echnician activities are being temporarily transferred to other qualified employees and completed. There should be no gaps in carrying out safety activities. Co mpanies must ensure ongoing compliance with all existing regulatory obligations. Thus, consistent with the performance-ba sed standard, facility owners should be provided with sufficien t latitude to shape their MOC programs.

Personnel changes, including changes in staffi ng levels or staff experience, can similarly be a complex and a highly variable subject from site to site within a single company, much less across different companies and industry segmen ts. Indeed, personnel changes are based on a multitude of factors, including, but not limited to , local organizational structures, leveraged offsite technical support from the parent co mpany and/or a corporate function such as engineering, the use of a supplemental workforce such as contractor serv ices, and service level agreements between companies with an industria l park layout. Staffing levels and expertise needs within the line organization can also fl uctuate based on the life cycle of production operations at a given site—for example, when a new unit is constructe d and brought on line orDB1/ 78324772.1 26 when an obsolete unit has been permanently de-invent oried and idled. It is the responsibility of the employer to define specific personnel needs and their levels of experience and competency in order to meet all operating object ives and commitments, including regulatory compliance. The adoption of any qualitative or pres criptive requirements for staffing and experience as part of the MOC element would infringe upon the role and obligations of the opera ting entity in this arena.

ACC believes that MOC requirements for or ganizational changes must have limits. See generally Preamble to the Final PSM Rule, 57 Fed. Reg. at 9393 (Feb. 24, 1992). For example, mergers and acquisitions (M&As), in which two separate operating entities are joined under one common set of internal policies and operating practic es, typically are managed at an enterprise or business (corporate) level. Du ring the M&A process, a transiti onal period typically is set to integrate the two organizations ; however, both entities, as well as the newly formed joint company, must meet all applicable regulatory requirements for exis ting operations at all times. As a result, additional regulatory requirements in this area woul d not add to existing compliance requirements defined in the current OSHA PSM st andard. If OSHA were to expand enforcement in arenas such as M&As, ACC w ould have concerns regarding OSHA injecting itself into private
business decisions.

Similarly, “budget cutting,” the act of ad justing organizational operating plans and associated expenditures based on strategic fi nancial (business) obj ectives, should not be considered a policy change. Instead, budget cuts are part of the overall business or financial strategic planning processes. Throughout time periods in which budget cuts are enacted, companies have the continued responsibility to ensure ongoing compliance with all existing regulatory obligations.

Recognizing that organizational change can cause permanent or tran sitory modifications in workload, roles and responsibilities, and the manner in which work is done, ACC in 2003 developed a voluntary guide, “Man agement of Safety and Health During Organizational Change: A Resource and Tool Kit for Orga nizations Facing Change.” Th is resource and tool kit is intended for use by the safety and health pr ofessional or manager in a facility facing organizational change. It describe s a process that may be used to plan for and manage safety and health during organizational change, and provides useful worksheets and checklists. The process in this guide represents only one option for managing safety and health during organizational change. It can be adapted as appropriate for th e facility and integrated into any overall plant effort to plan and implement the change.

In summary, ACC believes the subject of organizational change is complex and should not be made more difficult by an unnecessary rule revision, . As OSHA stated in its 2009 memorandum, OSHA currently has adequate tools and authority to evaluate organizational change elements, as they relate to process safety systems under the existing MOC element of the PSM standard. Further expans ion to MOC language involving organizational change would either be redundant or overly and unnecessarily pr escriptive and thereby ineffective. Either way,expansion would not improve process safety. If OSHA has additional data based on PSMrelated inspection results or incidents suggesti ng otherwise, OSHA should share that data with the public before it proposes any regulatory change. Finally, resources such as CCPS’s “Guidelines for Managing Process Safety Ri sks During Organizational Change” and ACC’s “Management of Safety and Health During Organi zational Change: A Resource and Tool Kit forDB1/ 78324772.1 27 Organizations Facing Change” are examples of av ailable tools that can assist companies in evaluating and addressing organiza tional change elements consistent with OSHA’s approach.

G. ACC Comments Regarding Emergency Planning (Change Option 11)

OSHA CHANGE OPTION 11

11. Revising Paragraph (n) of the PSM Standa rd To Require Coordination of Emergency Planning With Local Emergency-Response Authorities Paragraph (n) of § 1910.119 requires employers to establish and implemen t an emergency-action plan in accordance with § 1910.38, OSHA’s Emer gency Action Plans (EAP) standard, and to meet applicable requirements in paragraphs (a), (p), and (q) of § 1910.120, the Agency’s Hazardous Waste Operations and Emergency Re sponse (HAZWOPER) standard. While some OSHA standards, such as § 1910.146, Permit-Requi red Confined Spaces, require employers to coordinate emergency planning with local emer gency-response authori ties, the existing PSM
standard does not contain such a requirement. Existing §§ 1910.38 and 1910.120 do not require coordination of emergency planni ng with outside par ties if the employer c hooses to evacuate employees from the danger area when an emergenc y occurs that does not permit employees to assist in handling the emergency.

When emergency responders and other workers do not have adequate information or employer
coordination about hazardous chemi cals in a facility, th ey are at elevated risk of death and serious injury. On April 17, 2013, an ammonium nitrate explosion at the West Fertilizer Company storage and distribution fa cility in West, Texas, killed at least 15 people—the majority of whom were firefighters responding to a fire at the facility—and in jured over 160 others.[FN12] OSHA believes that revising para graph (n) of the PSM standard to require facilities to coordinate emerge ncy planning with local emerge ncy-response auth orities could help prevent or mitigate similar accidents by allo wing first responders to develop the appropriate strategies in advance of thei r arrival and seeks comment on the appropriate mechanism and corresponding language to incorporate such coor dination requirements into paragraph (n).

PSM Should Not Be Amended To Include Additi onal Coordination With Local Emergency Response Authorities

ACC believes that the requirement for coor dination with local emergency responders is already adequately addressed in multiple interconnected standards and regulations: OSHA (29 C.F.R. § 1910.38, stating that an emergency action plan must include at a minimum “[p]rocedures for reporting a fire or other emergency,” 29 C.F.R. § 1910.120, and 29 C.F.R. § 1910.1200); EPA (40 C.F.R. § 68.95(c)); DHS (6 C.F. R. Part 27); and DOT (29 C.F.R. Part 172 Subpart H) regulations. Adding a requirement to the PSM standard will simply add one more layer of confusion to the already difficult-to-navigate suite of fede ral requirements that Executive
Order 13650 was intended to address and redu ce. Moreover, if the communication and coordination between a facility and local emerge ncy responders needs to be strengthened, the appropriate place to do so is in the Emerge ncy Planning and Community Right to Know (EPCRA), not through the PSM standard. C ongress gave the federal EPA, not OSHA, jurisdiction over this issue.DB1/ 78324772.1 28 Currently, many ACC member companies already provide info rmation regarding hazardous chemicals to various agencies and or ganizations as required by other regulatory requirements such as EPA’s Risk Management Plan, EPCRA, and Department of Homeland Security’s Chemical Facility Anti-Terrorism System (CFATS). ACC supports OSHA working with other government agencies and state/local organizations to access this information. OSHA should not revise the PSM standard to duplicate reporting requirements that already exist under other federal agencies.

H. ACC Comments Regarding Third-Party Co mpliance Audits (Change Option 12)

OSHA CHANGE OPTION 12

12. Revising Paragraph (o) of the PSM Sta ndard To Require Third-Party Compliance
Audits Paragraph (o)(1) of § 1910.119 requires employers to audit the PSM program in their facilities for compliance every three years. Paragraph (o)(2) further require s that the audits “be conducted by at least one person knowledgeable in th e process.” However, § 1910.119 does not require employers to use a third party in conducting the compliance aud its. According to CCPS, “Third party auditors (typically, consulting compan ies who can provide experienced auditors) potentially provide the highest de gree of objectivity.” [FN13 Guidelines for Risk Based Process Safety, CCPS. http://www.aiche.org/ccps.]

It is notable that BSEE’s Safe ty and Environmental Management Systems (SEMS) standard, 30 CFR 250, Subpart S, requires audits conducted by an independent third party, subject to approval by BSEE, or by designated and qualified personnel if the employer implements procedures to avoid conflicts of interest. In addition, BSEE’s SE MS II revisions to the standard require that, by June 4, 2015, the team lead for compliance aud its must be independent and represent an accredited audit service provider. In the preamble to its SEMS II final rule, BSEE discussed its third-party-auditing requirements as follows:

Consistent audits performed by well trained and expe rienced auditors are cri tical to ensuring that SEMS programs are successfully implemented and maintained on the OCS. As a result, we are adopting industry best practices related to SEMS audits and auditor qualifications. Industry is already voluntarily adopting thes e practices in many deepwater ope rations. We believe that the application of these requirements to all OCS operations will result in more robust and consistent SEMS audits. (78 FR 20430; 04/05/2013.)

In its investigation report on the 2005 BP Texas City Refinery explosion, the CSB identified a lack of rigorous compliance a udits as a contributing factor behind the accident. As the CSB noted in its report, the resulting settlement agreement [FN14] between OSHA and BP required BP to retain a third-party compliance auditor w ith PSM expertise, subject to approval by OSHA, to assess the company’s PSM pr ogram. OSHA is aware that third- party compliance auditors exist and are already utilized by some of the PSM regul ated community. In the questions in this RFI, OSHA seeks comment on whether revising para graph (o) of the PSM standard to require employers to use a qualified third party for comp liance audits would increase worker protection through a more rigorous and obj ective PSM auditing process.DB1/ 78324772.1 29 OSHA is also seeking comment on increasing th e required frequency of compliance audits. In addition, the Agency is seeking comment on re quiring specific timeframes for responding to deficiencies found in the compliance audit process.

The Mandated Use Of Third-Party PSM Au ditors And The Increased Frequency Of Audits Are Both Overly Burdensome And Unjustified

ACC opposes an industry-wide mandated use of third-party auditors for PSM audits.
OSHA has not demonstrated that current co mpliance auditing practi ces are deficient or negatively impact worker health or safety. Moreover, mandating third- party auditors would impose significant costs to companies, often while compromising the quality of the audits given the complexity of certain worksite-specific pr ocesses. OSHA can certa inly require its own inspectors to be certified auditors, or even a ugment its own inspection e fforts with third-party auditors. However, this burden should not be shif ted to the private sector; the use of third-party auditors should remain a choice for employers , who have the greatest understanding of the unique potential risks, hazards, and challenges facing their worksites. ACC members, for example, vary greatly in their d ecisions to use either third-part y auditors, second- party auditors (company auditors not directly responsible for th e area being audited), or self-auditors for PSM compliance. ACC members consider their particul ar operations, equipment, onsite materials and chemicals, expertise, and organizational structur e to determine which method is best suited to increase safety. 3 In short, OSHA has not substantiate d any alleged underlying problem with the current system, nor has OSHA established the effi cacy of third-party audits over second-party or self-audits across the industry, to warr ant an unnecessary and highly burdensome change

.

In fact, second-party and self -audits have many safety benefi ts that are lost with thirdparty audits. Company-led audits can be far more effective in actually addressing issues uncovered during an audit, due to the company auditor’s intimate knowledge of the organization and how it functions. Using common audit questi ons and a standardized scoring system across the company also allows for the ready comparison of results across sites, including consistent report-writing and recommendation-tracking across the company. In ACC members’ experiences with PSM audits, using internal resources broa dens PSM management system education while leveraging the auditor’s deta iled knowledge of the organization and how it
functions.

Many ACC members have found that company auditors have been more effective in identifying, understanding, and then taking appropr iate actions to ensure that management resolves issues uncovered during an audit, as compared to temporary, unaffiliated contractors. Audit programs are just one element of a comp any’s safety management system, and company auditors are more likely to take ownership of the aud it report process, revisit action items with the site, or advocate inte rnally for additional resources on a continuous basis. In addition, many companies also have or implement a continuous improvement department/process that considers audits, metrics, and incident investigation fi ndings in a holistic manne r—these elements would

3 As part of the Responsible Care® program, all ACC members undergo voluntary third-party Responsible Care audits; these audits are separate from and different than OSHA PSM audits, which require review of all process safety management elements.DB1/ 78324772.1 30 be absent with third-party aud its. It is worth noting that so me ACC members use third-party auditors merely to confirm the findings of second- party auditors or self-a uditors. Ultimately, it should be the responsibility and choice of each ow ner/operator to decide how best to complete the compliance certifications thr ough use of self, second, or thir d-party review, given the unique characteristics of the company.

OSHA’s National Emphasis Program (NEP) inspections have not demonstrated that company-led audits are cause for concern due to any alleged incapability of the audit team or deficiency in the audit protocols used. In March 2011, the DOL provided an update at the 7th Global Congress on Process Safety sponsored by AI ChE, explaining that onl y 4% of the citations for the Refinery NEP were for PSM Compliance A udits. To support the need for a change in regulation in its RFI, OSHA cited to the CSB Baker Panel’s review of a single company and its finding that the company’s flawed internal audits contributed to an incident. See 78 Fed. Reg.
73762. OSHA should focus its effort s on the outlier employers that do not comply with current PSM auditing requirements and improve targeted enforcement practices rather than promulgating an unnecessary and prescriptive regulation applic able to everyone. As previously stated, changing the regulations alone will not improve safety for companies that already fulfill the requirements of the current standards and cons istently do so. To improve the quality and effectiveness of audits, ACC recommends that OSHA develop practical non-mandatory materials (such as guidance and training) for these outlier employers. At present, ACC has observed a dearth of information regarding auditing on OSHA’s website.

Moreover, the CSB BP Texas City Report (Mar. 20, 2007) does not mention any issues with the audit team; rather, CSB identifie d significant problems with management implementation of the audit team recommendations. In fact, Section 8.3 of the Report stated that a “review of compliance audits at the Texas City refinery revealed that many of the process safety system deficiencies causal to the ISOM incident had been previously identified by BP
auditors .” (Emphasis added.) These flaws would not be corrected or eliminated by use of a third-party audit team. Likely for this r eason, the CSB Report did not contain a formal
recommendation that OSHA revise its PSM au diting requirement. Th e data supporting the methodology on how audits are performed by co mpanies from OSHA, CSB, or the EO13650 Working Group is not compelling, and certainly does not warrant the tremendous cost of requiring the use of th ird-party auditors.

Unquestionably, the mandated use of third-part y auditors would be extremely costly to industry. Contractors have hourly rates of up to $500 per auditor for conducting PSM audits, not including payment for travel, expenses, and pr eparation time, as well as additional costs for certain expertise. ACC has investigated the cost of third-party PSM audits for its members. See Exhibit 1, ACC, Third-Party PSM Audit Analysis (Mar. 2013). Indeed, ACC roughly estimates that the cost of a single third-party PSM complia nce audit for a medium-sized company could be as high as $33,600 to $112,000 per audit. Id. By contrast, the primary cost for self and secondparty audits is the opportunity cost of a company’s PSM and other technical staff, which averages $12,300 per self or second party audit for medium-sized companies. Id. Thus, thirdparty audits cost anywhere from $21,300 to $99,700 more per audit than second-party audits for medium-sized companies. This range is based solely on hourly rates, a nd, in reality, is most likely a low estimate—the comparison assumes that the number of hours spent on a single audit is identical for each type of aud it (self, second, and third-party). However, as will be explainedDB1/ 78324772.1 31 later in this section, ACC member s report that third-party audits are lengthier than self and second-party audits. Thus, ACC belie ves that the true cost of thir d-party audits is significantly higher than $21,300 to $99,700. Even more, as expl ained in the attached exhibit, “[m]any companies have several facilities that would need to be audited each year. Thus, this cost would be multiplied several times over. Given that the ma jority of PSM-regulated facilities are at small and medium-sized companies, this pr esents a significan t cost burden.” Id. Again, there is no proof that this cost yields an increase in corr esponding safety benefits. In fact, as explained above, second-party and self-audits have many safety benefits th at are lost with third-party
audits.

Also, third-party auditors do not significantly lessen the bur den of onsite engineers, who frequently must accompany third-party auditors and engage in the extremely time-consuming activity of explaining basic onsit e procedures already known to in ternal staff. As explained above, this leads to intra-company productivity and opportunity losses, in addition to the cost of hiring third-party auditors. Over all, third-party audits are lengthier and involve larger audit teams, without necessarily yielding corresponding safety benefits. Lengthier audits present logistical challenges and loss of efficiency at a pl ant, occupying those involved in plant safety for extensive periods of time and cons uming a much greater amount of pl ant resources. All told, the annual costs would be dispr oportionate to the benefit.

Furthermore, ACC has serious security concer ns with third-party audits that are not present with self or second-part y audits. Third-party auditors would be granted, by regulatory mandate, unprecedented access to intimate details of a company’s operations. The required use of third-party auditors exposes a company’s intellectual property to financial and even security risks. Allowing external personn el to review technical detail s, company confidential business information, and trade secrets may impact a comp any’s otherwise protected intellectual property and discourage innovation. More broadly, ACC rema ins skeptical regarding the qualifications of third-party auditors. If third-party audits ar e eventually required, ACC would want additional information regarding any manda tory threshold qualifications and background checks. Right now, based on ACC members’ experiences, there is a dearth of quality third-party contractors
available for PSM audits.

ACC opposes increasing the frequency of audits , or any such measure for similar reasons, including lack of compelling reas ons to do so. As described in greater detail directly above, PSM audits are extremely intensive by nature . Due to the high volume of PSM program elements that are reviewed, each audit represen ts a burden on the employer. Against this, OSHA has offered no persuasive supporting data to justify any such cha nge. Moreover, revising Section 1910.119(o) to require specific mitigation timefra mes will not increase worker safety. The current performance-based requirements in Se ction 1910.119(o) provide PS M-covered facilities the flexibility to address the deficiency in an appropriate timeframe to prevent worker injuries. Appropriate mitigation timeframes are dependent on the specific industry and facility, as well as the degree of hazard that is posed by the deficien cy. No two audits and no two recommendations are identical, as some can be im plemented prior to completion of the audit while others may take years, requiring significant capital investment for safe and eff ective implementation. In fact, requiring specific timeframes may have adverse sa fety impacts, such as encouraging “quick fixes” and under-prioritizing mo re urgent projects to meet deadlines. Instead, it should be acceptable for companies to have a written action plan for items requiring mitigation measures.DB1/ 78324772.1 32 In conclusion, ACC firmly believes that OSHA must provide owners/operators the
discretion to choose the audit method most suited to their un ique operations. OSHA has not established that the required use of a third-party for PSM audits would increase safety industrywide compared to the company audits now being conducted. OSHA should not overlook the plethora of benefits that stem from company audits, which are missing entirely from third-party
audits. If OSHA has data that shows that some outlier companies are not conducting robust audits, ACC suggests that OSHA provide additional guidance, information, t ools, and/or training materials on how to conduct quality audits.

I. ACC Comment On Revising 29 C.F.R. §§ 1910.106 And 107 To Incorporate NFPA 30 (Change Option 14)

OSHA CHANGE OPTION 14

14. Updating §§ 1910.106 and 1910.107 Based on the Latest Applicable Consensus
Standards OSHA is considering updating its Flammable Li quids standard and Spra y Finishing standard. OSHA first published these standards in 1974 an d based the requirements on NFPA consensus standards from the 1960s. The format and requiremen ts of the standards are significantly out of date, and need updating based on the latest app licable consensus standards.[FN17] OSHA seeks recommendations on updates that should be cons idered and comments on how such updates will lead to increased worker protection.

OSHA Must Demonstrate Significant Risk Before Revising 29 C.F.R. §§ 1910.106 And 107 To Incorporate The Current Version Of NFPA 30

ACC understands that the current version of 29 C.F.R. § 1910.106 is based on the 1971
version of NFPA 30. ACC has undertaken a deta iled side-by-side evaluation of 29 C.F.R. § 1910.106 and the current version of NFPA 30 (2012). Th ere are, as noted in the RFI, significant formatting changes. However, we believe that ma ny of the substantive technical requirements in the current version of NFPA 30 are identical, or n early identical, to the information contained in 29 C.F.R. § 1910.106.

ACC does not believe that updating for formatting reasons alone warrants a reopening of the 29 C.F.R. § 1910.106 standard. Instead, OS HA should perform its own comprehensive comparison, identify changes that OSHA consider s substantive, and propo se, if appropriate, changes to 29 C.F.R. § 1910.106 based on its an alysis, noting the differences from current requirements and the reasons for a proposed change.

J. ACC Comments Regarding PSM Exemptio n For Retail Facilities (Change Option 16)

OSHA CHANGE OPTION 16

16. Changing Enforcement Policy of the PSM Exemption for Retail Facilities The PSM standard contains an exemption fr om coverage for retail facilities at 29 CFRDB1/ 78324772.1 33 1910.119(a)(2)(i). Although the term “retail facility” is not defi ned, the Preamble to the Final
PSM standard noted that chemicals in retail facil ities are generally in small packages, containers, and allotments, and gives the example of gasoline stations as a type of facility that would typically qualify for the exempti on. 57 FR 6356, 6369 (February 24, 1992).

Other Federal Government agencies have explicit defi nitions of retail facilities. In particular, the U.S. Department of Commerce, wh ich is responsible for the development of the North American Industry Classification System (NAICS) that orga nizes businesses into sp ecific industrial sectors for economic and statistical purposes, ch aracterizes retail trade as follows:

The Retail Trade sector comprises establishments engaged in retailing merchandise, generally without transformation, and rende ring services incidental to the sale of merchandise. The retailing process is the final step in the distribution of merchandise; retailers are, therefore, organized to sell merchandise in sm all quantities to the general public.

North American Industry Classification Syst em Manual (“NAICS Manual”), Sector 44-45—
Retail Trade.
OSHA has stated that this NAICS Manual definition applies in interpreting the retail exemption. In a November 8, 1995, memo from Enforcemen t Programs director Richard Fairfax to Acting Region 10 Administrator Richard S. Terrell, OSHA distinguished retail end users from
wholesale end users:

[T]he “retail facilities” exception is intended to a pply to an establishment in the retail trade as
delineated in the Standard Industr ial Classification (SIC ) Manual. With exceptions, retail trade establishments sell merchandise to the general public for personal or household consumption. On the other hand, wholesale trade esta blishments may sell similar me rchandise for exclusive use by industry . . . Income derived fr om selling [merchandise] to i ndustry may not be counted as
“income obtained from direct sale s to end users” for the purpos e of qualifying for the “retail facilities” exception under paragraph 1910.119(a)(2)(i).

Notwithstanding this general statement, OSHA has also issued letters saying that a facility that is primarily engaged in selling anhydrous ammoni a product to farmers (a wholesale operation under the NAICS definition) could qualify for the § 1910.119(a)(2)(i) retail -facilities exemption. For example, the January 26, 2001 letter from Richar d Fairfax to J.D. Varn III of Varnco, Inc. which states that a facility selling 75% of its anhydrous ammonia to farmers qualifies for the retail exemption because the farmers we re the “end users” of the product.

Applying the retail-facility exemption in this wa y is inconsistent with the normal meaning of “retail” and the preamble’s explanation of th e purpose of the exemption. As stated in the preamble, OSHA chose to exclude retail faci lities from PSM coverage because the limited container, package, or allotment sizes of the chemicals typically found at these facilities do not present the same safety hazards as those encounte red at establishments working with large, bulk quantities of materials. Facilities selling large or bulk quantities of materials would typically fall into Sector 42—Wholesale Trade of the NAICS sy stem, which includes faci lities that sell or arrange the purchase or sale of raw and intermediate material s and supplies used in production. As a result of increased workplace hazards asso ciated with large, bulk quantities of highlyDB1/ 78324772.1 34 hazardous chemicals, OSHA believes that only retail -trade facilities list ed in NAICS sectors 44 and 45 that sell highly hazardous chemicals in sma ll containers, packages, or allotments to the general public qualify for the retail-facili ties exemption in 29 CFR 1910.119(a)(2)(i).

*73764 In light of OSHA’s inconsistent statements on the application of the retail exemption, the Agency is inviting comment on what the exem ption should cover and whether OSHA’s current enforcement policy adequately addresses workpl ace hazards associated w ith these facilities.

OSHA Needs To Analyze The Data And Assess The Risk, If Any, Posed By Exempted
Retail Facilities Before It Cons iders Revising The PSM Standard

ACC understands OSHA’s concerns regarding its inconsistent position on what facilities
fall within the retail-facilities ex emption. As with manufacturing a nd storage facilities, if OSHA believes that retail facilities present a significan t risk of harm—and OSHA establishes significant risk through its data review and analyses—the Agency should propose specific amendments to
the PSM standard to cover the “retail facilities” associated with such risk. In the meantime, OSHA enforcement should be based on existing la w. Any expansion of coverage for retail facilities should proceed, if justified, through rulemaking and not through enforcement efforts.

K. ACC Comments Regarding Enforcement Policy For Appendix A (Change Option 17)

OSHA CHANGE OPTION 17

17. Changing Enforcement Policy for Highly Hazardous Chemicals Listed in Appendix A of the PSM Standard Without Specific Concentrations Appendix A of the PSM standard lists highly haza rdous chemicals and threshold quantities that must be met to establish PSM coverage. Alt hough Appendix A provides specific concentrations for 11 of its listed chemicals, the standard is si lent on concentrations for the remaining 126 listed chemicals. For example, Appendix A lists hydrog en peroxide at concentrations of 52% by weight or greater, but the appendix does not pr ovide a specific concentration for hydroxylamine. OSHA has issued interpretation letters taking a variety of positions re garding coverage of
chemicals that have no listed concentration. Under one such approach, OSHA considers PSM coverage to apply if threshold quantities of such chemicals are present at commercial grade. As noted in a 1994 Letter of Interp retation from Compliance Programs Deputy Direction H. Berrien Zettler to Mr. Luc Hamelin of IVACO, Inc., OS HA defined commercial grade to mean “a typical
maximum concentration of the chem ical that is commercially avai lable and shipped.” The letter added that, to determine commercial grade c oncentrations, an employer may refer to any published catalogue of chemicals for commercial sales.

In 1999, an explosion at Concept Sc iences, Inc. in Allentown, Penns ylvania, killed five people as the company was attempting to produce concentr ated hydroxylamine. A U.S. District Court dismissed a subsequent criminal indictment relate d to this incident based on inconsistencies in OSHA’s statements regarding coverage of hydr oxylamine. The Court pointed out that the PSM standard is ambiguous with respect to concentrati ons of Appendix A chemicals. It concluded that in light of a series of OSHA letters that were themselves inconsistent, no reasonable person in the defendant’s position could determine how a chemical is covered by the standard. U.S. v.DB1/ 78324772.1 35 Ward, 21 BNA OSHC 1882, 1884 (2001). In light of this, OSHA believes it is important to issue
a clear and authoritative statement about PSM c overage of chemicals for which Appendix A does not include a specific concentration.

With respect to the commercial grade approach, OSHA also realizes th at it is difficult to determine the maximum commercial grade of many of the highly hazardous chemicals listed in Appendix A. In addition, the maximum commercial grade of a chemical may change over time due to technological innovation or changes in industry. Furthermore, even where the concentration of a PSM-listed highly hazardous ch emical falls below the correctly determined maximum commercial grade, the chemical may still present a hazard because substances in a mixture retain their original properties. For example, a solu tion of any concentration of hydroxylamine can form pure hydroxylamine crysta ls, which can rapidly decompose and cause fires or explosions.

An interpretative approach that is consistent with the regulatory language and that addresses this concern is the approach currently used by EP A under the Risk Management Program (RMP). Similar to OSHA’s list of highly hazardous chem icals in Appendix A of the PSM standard, the EPA RMP provides a list of toxic substances in 40 CFR 68, Appendix A—Table of Toxic Endpoints. However, in contrast to OSHA ’s “commercial grade” policy for PSM-listed chemicals, EPA considers a mixture containing an RMP-listed substance to be covered if the concentration is greater than one percent and the calculated we ight of the substance in the mixture is greater than the th reshold quantity.[FN20] With a fe w exceptions, this rule does not apply in cases where the operator can demonstrate that the partial pressure of the substance in the mixture is less than 10 mmHg.

OSHA invites comment on whether it should adop t the EPA’s policy for RMP-listed substances as a simpler and more practical approach to addressing hazards associated with Appendix A
chemicals that do not have liste d concentrations. If OSHA adopt s this policy, the Agency would
consider a PSM-listed chemical in a mixture to be covered if th e concentration of the chemical were greater than one percent and the calculated weight of the chemical in the mixture were greater than the threshold quantit y. OSHA believes this represents a more practical, consistent, and straightforward approach to coverage of Appendix A chemicals under the PSM standard.

OSHA Must Undertake Scientific Analyses And Establish Signific ant Risk Before Any Enforcement Changes Are Made For Appendix A Chemicals

PSM Appendix A lists highly hazardous chemi cals and threshold quantities that must be met to establish coverage. Although Appendix A provides specific concentrations for 11 of its listed chemicals, the standard does not addres s concentrations for the remaining 126 listed
chemicals. ACC recommends that OSHA use a fo rmal scientific-based approach to evaluate
chemicals so that OSHA can demonstrate that a ny proposed changes to the PSM standard would actually enhance worker safety.

ACC agrees with OSHA that the language in the standard addressi ng mixtures containing listed chemicals is unclear and requires clarific ation. However, ACC does not agree that OSHA should adopt the approach used by EPA in the RMP. It would not be feasible to use the EPA 1%
concentration criteria in OSHA’s PSM sta ndard because there are multiple additionalDB1/ 78324772.1 36 requirements to establish a full EPA RMP Prev ention Program (Program 3) in the EPA RMP rule. These additional criteria, such as off-site injury and di stances to toxic or flammable endpoints for worst-case rele ase assessments, are related to off-site impacts and are outside of OSHA’s jurisdictional scope. In addition, these supplemental crit eria substantiate that the mixture poses an off-site hazard. Although EPA policy requires evaluation of all mixtures greater than 1%, only those mixtur es that have concentrations la rge enough to be a potential offsite hazard require establishment of a fu ll EPA RMP Prevention Program (Program 3).

Instead, ACC encourages OSHA to clarify the requirements for chemicals listed in Appendix A without specific concen trations. In particular, mixt ures containing more than the threshold quantity as set forth in Appendix A, but are at such a low concentration so as not to constitute a hazard, should be identified as outside the scope of PSM’s coverage.

III. CONCLUSION

As reiterated throughou t these comments, ACC believes that OSHA has not established
the existence of substantial risk of harm in this RFI to jus tify reopening its PSM regulation (and related regulations, such as 1910.106). In fact, ba sed on the experiences of our members, ACC believes that compliance with the standards alread y in place manages process safety risk. The current PSM regulation is not the real issue— instead, PSM-related safety accidents, including those cited throughout the RFI, consistently invo lve outlier companies that are not in compliance with some or all aspects of the current PSM re gulation. ACC believes that the most valuable step OSHA could take to improve worker safety is through increased PSM awareness, training, and enforcement of existing regulations. Propos ed changes to OSHA’s PSM regulation will not improve safety for companies that have already created a safe environment through fulfillment of the current standards and consistently do so over time. It also will not increase the safety of workers at companies that aren’t in compliance with existing regulations.

Certain proposed changes repr esent a drastic departure from the current PSM regulatory framework, without any showing of a corresponding benefit to wor kplace or employee safety. In particular, ACC opposes prescriptive recommenda tions that will chip away at the discretion given to employers through the performance-oriented PSM standard. Indee d, as explained in the Preamble to the Final Rule, the current standard received much support precisely because of its performance-oriented nature, which is built upon industry’s knowledge and capability to address all manner of site-specific safety concerns. See 57 Fed. Reg. at 6360 (Feb. 24, 1992). For all of these reasons, ACC disagrees with the RFI’s pro posed changes that mandate a one-size-fits-all approach, thereby limiting employers’ ability to react to the real facts on the ground. For example, employers must be able to shape RAGA GEP applicable to a particular site based on internal standards, consensus codes, and/or engi neering determinations and analyses. Given the diverse nature of chemical industry operati ons, ACC knows that a flexible and performanceoriented approach to RAGAGEP will best prot ect workers from risk of harm. Similarly, considering the numerous benefits of company-led audits over third-party audits, employers must
be afforded the discretion to choose between self, second-party, and third-party audits. Ultimately, each employer is in the best positi on to make these and other similar safety decisions, by evaluating its own equipment, onsite materials and chemicals, expertise, organizational structure, and operations.DB1/ 78324772.1 37 ACC supports OSHA’s overall goal of improving process safety and appreciates the vital role of OSHA’s PSM standard in effectuating th is goal. ACC therefore urges OSHA to carefully consider its approach, recognizi ng that there are many variables and complexities inherent in regulating PSM.

Nonetheless, after considering ACC’s comments and those of others, if OSHA decides to proceed with a formal rulemaking, ACC believes it should do so by first issuing an ANPRM and presenting appropriate data and analyses to supp ort any proposed revisions to the PSM standard. OSHA should also convene a SBREFA panel, and grant stakeholders sufficient time and opportunity to participate in the OMB-required peer review process.

We hope that OSHA will find our contribution helpful. Should you have questions about our input, please contact me by phone at (202) 249-6426 or by e-mail at Rachel_meidl@americanchemistry.com. Thank you for the opportunity to submit comments on
this matter.

Respectfully submitted,

Rachel A. Meidl Director, Regulatory & Technical Affairs American Chemistry Council 700 Second Street, NE Washington, DC 20002 Rachel_Meidl@americanchemistry.com

Of Counsel:
Jonathan L. Snare Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 jsnare@morganlewis.com

# EXHIBIT 1

THIRD-PARTY PSM AUDIT ANALYSIS
ACC COMMENT ON OSHA DOCKET NO. OSHA-2013-0020**BACKGROUND**

In OSHA’s Request For Information (RFI) on potential revisions to its Process Safety Management Stan ard (PSM) (12/9/13), the agency requests comments on revising paragraph (o) of the PSM require third

- party compliance audits. Currently, many facilities conduct PSM compliance audits using expertise from within their own companies (self sultants (third

- party audits).

**CHALLENG ES OF MANDATING THIRD** 

**- PARTY AUDITS**  Because significant process safety and engineering expertise resides within companies regulated by PSM, self or second

- party audits have been an effective tool for monitoring compliance with the PSM
rule since 1992. Curre ntly, companies typically only engage a consultant to conduct third when the expertise to conduct a comprehensive and thorough audit does not exist in wise unavailable. Beyond the higher cost of hiring a consultancy, there are

tions.

 Consultants may not be as familiar with a facility or process or may be inexperienced. Some pr cess safety consultants are not trained to do “compliance” audits. Audits by inexperienced or
under

- experienced consultants are unlikely to improve safety.

 Audits can be technically challenging, including PHAs, evaluation of mechanical integrity, etc. It may be challenging to match the specific skills required with an audit

 It is not clear that there is a sufficient number of audits of roughly 10,000 PSM

- regulated facilities

 If there are issues, companies need an audit team that is able and willing to dig deep and go the extra mile to identify potential safety issues.

 Exclusive use of third

- party auditors would limit learning opportunities for self or second
auditors that can take back lessons learned to their own facilities.

**PROCESS SAFETY AUDITS** A typical process safety audit team consists of 3 engineering specialties in addition to regulatory requirements. These professionals work at other man facturing facilities throughout the company and can also include corporate EH&S personnel. The comp
sition of the audit team may depend on the type of process and materials at the facility, in addition to other variables. A typical audit includes the following elements.

 Preparation in advance of the audit (1

 Audit (1

- 2 weeks depending on facility

1 Second

- party auditors are company auditors not directly responsible for the area being audited.

2 There are approximately 30,000 PSM

- regulated facilities. Each of the 30,000 facilities is audited once every three years. Thus, approximately 10,000 PSM

- regulated facilities

March 2014 © Am erican Chemistry Council, Inc. In OSHA’s Request For Information (RFI) on potential revisions to its Process Safety Management Stan ard (PSM) (12/9/13), the agency requests comments on revising paragraph (o) of the PSM standard to

party compliance audits. Currently, many facilities conduct PSM compliance audits using expertise from within their own companies (self

- audits or second

- party 1 audits) or by bringing in co

**PARTY AUDITS** Because significant process safety and engineering expertise resides within companies regulated by

party audits have been an effective tool for monitoring compliance with the PSM ntly, companies typically only engage a consultant to conduct third

- party audits when the expertise to conduct a comprehensive and thorough audit does not exist in

- house or is othe wise unavailable. Beyond the higher cost of hiring a consultancy, there are several important consider

Consultants may not be as familiar with a facility or process or may be inexperienced. Some pr cess safety consultants are not trained to do “compliance” audits. Audits by inexperienced or are unlikely to improve safety.
Audits can be technically challenging, including PHAs, evaluation of mechanical integrity, etc. It may be challenging to match the specific skills required with an audit

It is not clear that there is a sufficient number of qualified process safety consultants to conduct regulated facilities 2 each year. If there are issues, companies need an audit team that is able and willing to dig deep and go the extra mile to identify potential safety issues.

party auditors would limit learning opportunities for self or second
auditors that can take back lessons learned to their own facilities.

A typical process safety audit team consists of 3

- 6 technical pr ofessionals with backgrounds in various engineering specialties in addition to regulatory requirements. These professionals work at other man facturing facilities throughout the company and can also include corporate EH&S personnel. The comp

audit team may depend on the type of process and materials at the facility, in addition to other variables. A typical audit includes the following elements.

Preparation in advance of the audit (1

- 2 days) 2 weeks depending on facility size/complexity)

company auditors not directly responsible for the area being audited.

regulated facilities. Each of the 30,000 facilities is audited once every three regulated facilities are audited each year. 

# Considerations for OSHA PSM RFI
**Third**

**- Party Audit Requirement** 

American Chemistry Council

Am erican Chemistry Council, Inc. In OSHA’s Request For Information (RFI) on potential revisions to its Process Safety Management Stan dstandard to party compliance audits. Currently, many facilities conduct PSM compliance audits using audits) or by bringing in co nBecause significant process safety and engineering expertise resides within companies regulated by

party audits have been an effective tool for monitoring compliance with the PSM party audits
house or is othe rseveral important consider aConsultants may not be as familiar with a facility or process or may be inexperienced. Some pr ocess safety consultants are not trained to do “compliance” audits. Audits by inexperienced or

Audits can be technically challenging, including PHAs, evaluation of mechanical integrity, etc. It

qualified process safety consultants to conduct

If there are issues, companies need an audit team that is able and willing to dig deep and go the

party auditors would limit learning opportunities for self or second

- party

ofessionals with backgrounds in various engineering specialties in addition to regulatory requirements. These professionals work at other man ufacturing facilities throughout the company and can also include corporate EH&S personnel. The comp oaudit team may depend on the type of process and materials at the facility, in addition to

regulated facilities. Each of the 30,000 facilities is audited once every three 

# Considerations for OSHA PSM RFI **Party Audit Requirement**

American Chemistry Council

March 2014March 2014 © Am erican Chemistry Council, Inc.  Post

- audit review and report (1

- 2 days)

 Travel time and expense (varies)

The length of time to conduct the actual audit depends on the size and complexity of the facility being audited. Based on discussions with ACC members, below are so me rough assumptions on the length of an audit and audit team sizes for small, medium, and large industrial chemical manufacturers:

Hours per
auditor Number of

auditors Total audit

hours Small (fewer than 50 employees) 40 3 120 Medium (50

- 300 employees) 40 5 200 Large (more than 300 employees) 80 6 480

Consultants vary considerably in both skill and cost. Hourly fees for consultants range from $150

- $500 per hour. These hourly rates are nearly 3

- 9 times higher than the median hourly rate for chemical indu stry engineers that would likely participate in third

- party audits. Thus, the cost of a single third

- party compliance audit for a medium

- sized company could be as high as $33,600 to $112,000. Even offsetting this with the opportunity cost of c ompany personnel involved in self or second

- party audits, the cost per audit remains high at $21,300 to $99,700. This range is based solely on hourly rates. Due to limitations regarding the timing of this submission, this number assumes that the number of hours spent on a single audit is identical for each type of audit (self, second, and third

- party). However, ACC members report
that third

- party audits typically are lengthier than self or second

- party audits. Thus, the true cost of
third

- party audits is g reater than $21,300 to $99,700 per audit. In addition, the range of $ 21,300 to $99,700 merely represents the cost per audit. Many companies have several facilities that would need to be audited each year. Thus, this cost would be multiplied several times over. Given that the majority
of PSM

- regulated facilities are at small and medium

- sized companies, this presents a significant cost
burden.

Third

- Party (Low) Third

- Party (High)

Number of Auditors 4 4

Hours to Conduct Audit Activities 224 224

Pre

- audit preparation 8 8

On

- site audit 40 40

Post

- audit report writing 8 8 Average hourly wage $150 $500

Travel time and costs n/a n/a

Total Cost of Third

- Party PSM Audit $33,600 $112,000

**CONCLUSION**
While perhaps well

- intentioned, the required use of third

- party audits is unlikely to improve safety for reasons cited above. In addition, the requirement will add a significant cost burden to companies that have qualified and appropriate techn ical expertise on staff already, particularly to small and mid

- size
facilities.

# APPENDIX 2

MULTI-ASSOCIATION LETTER ON ISTJanuary 2 3 , 2014

President of the United States

The White House
1600 Pennsylvania Ave., NW
Washington, D.C. 20500

T o the President of the United States and the Interagency Working Group on Improving Chemical Facility
Safety and Security :

We appreciate the serious and important task the Interagency Working Group (IWG) has been given in
implementing Executive Order (EO) 13650

– Improving Chemical Facility Safety and Security . The safety
and security of our facilities, our employees, and our communities is paramount, which is why many of
our organizations have actively participated in the listening sessions for the EO and have offered many

comments and recommendations.

While it is encouraging to see several options in the IWG’s recent repor t that c ould help create a more
unified and effective approach to addressing safety, we are concerned that the report's focus on “ safer

alternatives ” could derail the overall effort.

We believe opportunities exist to further improve safety and security and will continue to offer our
expertise to assist the Working Group

, but we strongly oppose any proposal that will create a federal
require ment to assess or implement so

- called I nherently S afer T echnologies (IST)

.

IST decisions are extremely complex and cannot be and should not be determined by any governmental
agency. The potential for creating unintended consequences is high, and the Environmental Protection
Agency ( EPA ) has long held that IST requirements would n ot produce additi onal benefits beyond those
that already exist in the current Risk Management Plan (RMP) program structure. 1

Inherently safer approaches to manufacturing processes have been and will continue to be considered
by facilities as a matter of course , and the facility operators

— not the government

— a re in the best
position to understand the full ramifications of implementing IST . No one regulatory program or
government agency can properly address the broad range of factors such as risk shifting, t echnical
efficacy, cost, and product quality that a facility must consider and address when choosing appropriate
safety and security measures , much less all of the different site

- specific scenarios for the approximately

12,000 facilities that could be impa cted by an IST requirement under the RMP

. In addition, decisions by
government officials to require alternatives could impose new risks

, such as more hazardous materials in
transportation

, if facilities must reduce inventories of certain substances.

1 Federal Register Volume 61, Number 120, FR Doc o: 96

- 14957 (Thursday, June 20, 1996): Pages 31668

- 31730, http://www.gpo.gov/fdsys/pkg/FR

- 1996

- 06

- 20/html/96

- 14597.htmOpera tors need to take an all

- inclusive approach when looking at the safety profile of a facility, and they

must factor in the requirements of the numerous overlapping regulatory programs that help shape this
approach. EPA, the Occupational Safety and Health Administration, the U.S. De partment of
Transportation , the U.S. Department of Homeland Security (DHS) , and the Bureau of Alcohol, Tobacco,
Firearms and Explosives all have existing regulatory programs that require operators to examine their
operations and make them as safe and secure as possible. To attempt to overlay an IST requirement

would negatively impact all of these various safety and security programs and create an impossible

b ureaucratic burden

.

The current performance

- based regulations in place t oday and in the marketplace itself already provide
strong incentives for companies to consider and adopt “safer alternatives” such as IST. These programs
allow facility operators to use all of the risk management tools and options at their disposal, while
considering the complexities of their unique operating environment. A dding a new regulatory
requirement focused on IST is not only unwarranted but potential ly detrimental. A t a minimum it would
divert scarce federal agency resources away from th e primary o bjective of the EO

— n amely, to identify and engage “outlier” facilities. At worst, IST would overwhelm federal agencies with thousands of
complex evaluations

, without requisite staff expertise to properly review the submissions. One EPA official has already said such an approach would be “monumentally difficult” for the Agency to
accomplish. 2

The IWG can help create a safer and more secure regulatory envi ronment by addressing shortfalls
through options that will improve coordination between government agenc ies and enhance outreach

, while recognizing opportunities to better implement existing regulatory programs

. Pursuing options

related specifically to IST would ultimately jeopardize the success of the EO by both distracting attention
from much needed improvements and threatening to create unnecessary and duplicative regulat ory requirements that would not contribute to enhancing safety and security.

We remain steadfast in our commitment to safety and helping the IWG pursue opportuniti es that will
improve the effectiveness of current regulatory programs.

Sincerely,

Agricultural Retailers Association
American Chemistry Council
American Forest and Paper Association

American Fuel & Petrochemical Manufacturers

American Petroleum Institute

The Chlorine Institute

2 Larry Stanton, director of EPA's Office of Emergency Management, as quoted by Dave Reynolds, “EPA Looks To New Jersey Program As Possible Model for IST Requirements,” Inside EPA ( December 2, 2013), http://insideepa.com/Risk

- Policy

- Report/Risk

- Policy

- Report

- 12/03/2013/epa

- looks

- to

- new

- jersey

- program

- as

possible

- model

- for

- ist

- requiremen ts/menu

- id

- 1098.htmlThe Fertilizer Institute

Institute of Makers of Explosives
International Liquid Terminals Association

National As sociation of Chemical Distributo rs
National Association of Manufacturers
Society of Chemical Manufacture r s and Affiliat es
U.S. Chamber of Commerce

cc: The Honorable Eric H. Holder, Jr., Attorney General
The Honorable Thomas J. Vilsack, Secretary of Agriculture
The Honorable Thomas E. Perez, Secretary of Labor
The Honorable Anthony Foxx, Secretary of Transportation

The Ho norable Jeh Johnson, Secretary of Homeland Security
The Honorable Gina McCarthy, Administrator, Environmental Protection Agency

# APPENDIX 3

CCPS EXECUTIVE DIRECTOR SCOTT BERGER
COMMENTS TO U.S. SENATE ENVIRONMENT
AND PUBLIC WORKS COMMITTEE HEARINGComments to US Senate Environment and Public Works Commi ttee Hearing, Thursday March 6, 2014

By Scott Berger, CCPS Executive Director

O n behalf of the Center for Chemical Process Safety of the American Institute of Chemical Engine e rs

AIChE
120 Wall St New York, NY 10005

646

- 495

- 1370 scotb@aiche.org

Good morning . I am Scott Berger, Executive Director of the Center for Chemical Process Safety (CCPS), a Technological Community of the American Institute o f Chemical Engineers (AIChE). CCPS has published over 100 books and other reference documents which guide the implementation of process safety technology and management systems. However, m y comments today are specifically di rected towards the topic of Inherently Safer Technologies (IST)

.
By way of background, the topic of Inherently Safer Design (ISD), which we believe is a more technically

accurate term, has been discussed in CCPS and AIChE conferences and other for u ms since the 1970s. CCPS has published two editions of a book dedicated to ISD (1996, 2009) and included ISD in two books on Engineering Design (1993, 2012)

. In 201 0 , o ur unique expertise in ISD led the Departm ent of Homeland Security (DHS) to request CCPS to lead a team o f IST/ISD technical experts to formally define IST and ISD. Since the language of the EO refers to IST, we will use this term for consistency.

IS T is

, and long has been

, one important tool in the broader toolbox used by c hemical e ngineers to design safe processes. It is so i ngrained in the design process that c hemical e ngineers often do not even realize they are doing it. This was certainly my personal experience

. I never heard the term IST ( or ISD ) before the early 1990s, yet once I heard it, I recognized that I had learned these principles as an undergraduate in the 1970s and had been using the m since my first industrial assignments

.

The formal definition of IS T that CCPS developed for DHS is key to understanding the role it should play in future efforts to improve process safety. A copy of the final DHS report may be found at the CCPS
website at http://www.aiche.org/ccps/publications/books/inherently

- safer

- chemical

- processes

- life

cycle

- approach

- 2nd

- edition

. I would like to highlight and comment on the key elements of the
definition:

• “ Inherently Safer Technolo gy (IST), also known as Inherently Safer Design (ISD), permanently eliminates or reduces hazards to avoid or reduce the consequences of incidents. ”

Specifically, IST is one way to mitigat e hazards that can cause process safety incidents, i.e. fires, explosions, and toxic releases.

• “ IST is a philosophy applied to the design and operation life cycle, including manufacture, transport, storage, use, and disposal. ”

IST is not a specific technol ogy or group of technologies that can be substituted. Each case is unique, and adopting the IST philosophy typically leads to different results from case to case.

• “ There is no clear boundary between IST and other strategies. ”As we can readily see from th e NJ TCPA program, IST can go well beyond the simpl e replac ement of one substance with a safer one or one reaction with another. Elements of IST can be applied at the process control level, the procedural level, and even the emergency response level. The bottom line is that IST is an integral part of developing a safe design and not separate from the desired goal of safe design

• “ ISTs are relative: A technology can only be described as inherently safer when compared to a different technology, including a d escription of the hazard or set of hazards being considered, their location, and the potentially affected population. ”

One technology may be inherently safer than another with respect to some hazards but inherently less safe with respect to others . Also, even if the technology is safer, it m ay not be safe enough to meet societ y’s expectations.

• “ Because an option may be inherently safer with regard to some hazards and inherently less safe with regard to others, we must make decisions about the optimum strat egy for managing
risks from all hazards. ”

The choice of technology is rarely cut and dry . It depend s on the relative importance of the range of hazards, where in the lifecycle different hazard s occur, and the potential for shifting risk from one potentiall y affected population to another. Technical and economic feasibility also play a significant role

Based on this definition of IST, it is clear that several existing regulatory provisions already address IST:

• 29CFR § 1910.119 (a): The setting of thresholds for coverage under this regulation is an incentive to reduce hazardous inventory, a key principle of IST

• 29CFR § 1910.119 (e): The activity of p rocess hazard analysis prompts the broad

- based hazard analysis team to determine safeguards and process modificati ons, including IST, to address the hazards identified, implement them, and review the analysis every 5 years

• 29CFR § 1910.119 (m): When incidents occur, the company must identify the causes and implement safeguards and process modifications, including IST, t o address eliminate these

causes

• 40CFR §68.10: The setting of thresholds for coverage under this regulation is an incentive to
reduce hazardous materials inventory, a key principle of IST

• 40CFR §68.12 and related : The performance of worst case analysis drives engineers to seek IST alternatives to reduce potential consequences

• 40CFR §68.50 and related: The activity of process hazard analysis prompts the broad

- based hazard analysis team to determine safeguards and process modifications, including IST, to
ad dress the hazards identified, implement them, and review the analysis every 5 years

• 40CFR §68.60 and related: When incidents occur, the company must identify the causes and implement safeguards and process modifications, including IST, to address these caus es

• 40CFR §68.155: Every 5 years, the facility is required to submit plans to improve safety

Considering that the application of inherently safer design methodology is so tightly integrated into the overall work of process development, any regulatory action related to IST which go es beyond these existing provisions would likely require that regulatory authorities conduct a detailed expert review of the complete set of design documents

, essentially validat ing the design decisions made

. Without significantly g reater regulatory resources, s uch a detailed review is clearly impractical.As I hope I’ve made clear, AIChE and CCPS support the use of IST as part of the overall engineering

process

. W e strongly support increasing the education of chemical engineers a nd other scientists and engineers involved in process design and technology selection in t he philosophy and art of IST

.
To this end, AIChE was pleased to receive a recommendation from the US Chemical Safety and Hazard Investigation Board asking us to work to modify the undergraduate chemical engineering curriculum to improve the knowledge of process safety among BS graduates. In 2012, the CSB voted to declare this
recommendation “ closed, exceeding recommended action

. ”

AIChE and CCPS are also pleased to support the continuing process safety education of experienced chemical engineers through a variety of courses, including one on IST.

# APPENDIX 4

CCPS EXECUTIVE DIRECTOR SCOTT BERGER
COMMENTS TO THE EPA LISTENING SESSIONComments to the EPA Listening Session, February 27, 2014, Newark, NJ

By Scott Berger, CCPS Executive Director

On behalf of the Center for Chemical Process Safety of the American Institute of Chemical Engineers

AIChE
120 Wall St New York, NY 10005

646

- 495

- 1370 scotb@aiche.org

Good afternoon. I am Scott Berger, Executive Director of the Center for Chemical Process Safety (CCPS), a Technological Community of the American Institute of Chemical Engineers (AIChE). My comments today are specifically di rected towards the topic of Inherently Safer Technologies (IST) which was solicited in the Request for Information.

By way of background, the topic of Inherently Safer Design (ISD), which we believe is a more technically accurate term, has been discussed in CCPS and AIChE conferences and other forums since the 1970’s. CCPS has published two editions of a book dedicated to ISD (1996, 2009) and included ISD in two books on Engineering Design (1993, 2012). In 2010, our unique expertise in ISD led the Depart ment of Homeland Security (DHS) to request CCPS to lead a team of IST/ISD technical experts to formally define IST and ISD. Since the language of the EO refers to IST, we will use this term for consistency.

IST is, and long has been, one important tool in the broader toolbox used by chemical engineers to design safe processes. It is so ingrained in the design process that chemical engineers often do not even realize they are doing it. This was certainly my personal experience. I never heard the term IST (or ISD) before the early 1990’s, yet once I heard it, I recognized that I had learned these principles as an undergraduate in the 1970’s and had been using them since my first industrial assignments.

The formal definition of IST that CCPS developed for D HS is key to understanding the role it should play in future efforts to improve process safety. A copy of the final DHS report is attached for reference. I would like to highlight and comment on the key elements of the definition:

 “Inherently Safer Techn ology (IST), also known as Inherently Safer Design (ISD), permanently eliminates or reduces hazards to avoid or reduce the consequences of incidents.”

Specifically, IST is one way to mitigate hazards that can cause process safety incidents, i.e. fires,

exp losions, and toxic releases.

 “IST is a philosophy applied to the design and operation life cycle, including manufacture, transport, storage, use, and disposal.”

IST is not a specific technology or group of technologies that can be substituted. Each case is unique, and adopting the IST philosophy typically leads to different results from case to case.

 “There is no clear boundary between IST and other strategies.”

As we can readily see from the NJ TCPA program, IST can go well beyond the simple replacement of one substance with a safer one or one reaction with another. Elements of ISTcan be applied at the process control level, the procedural level, and even the emergency

response level. The bottom line is that IST is an integral part of developing a safe design and not separate from the desired goal of safe design

 “ISTs are relative: A technology can only be described as inherently safer when compared to a different technology, including a description of the hazard or set of hazards being considered,
thei r location, and the potentially affected population.”

One technology may be inherently safer than another with respect to some hazards but inherently less safe with respect to others. Also, even if the technology is safer, it may not be safe enough to mee t society’s expectations.

 “Because an option may be inherently safer with regard to some hazards and inherently less safe with regard to others, we must make decisions about the optimum strategy for managing
risks from all hazards.”

The choice of technolog y is rarely cut and dry. It depends on the relative importance of the range of hazards, where in the lifecycle different hazards occur, and the potential for shifting risk from one potentially affected population to another. Technical and economic feasibil ity also play a significant role

Based on this definition of IST, it is clear that several existing regulatory provisions already address IST:

 29CFR § 1910.119 (a): The setting of thresholds for coverage under this regulation is an incentive
to reduce hazardous inventory, a key principle of IST

 29CFR § 1910.119 (e): The activity of process hazard analysis prompts the broad

- based hazard analysis team to determine safeguards and process modifications, including IST, to eliminate the hazards identified, impl ement them, and review the analysis every 5 years

 29CFR § 1910.119 (m): When incidents occur, the company must identify the causes and implement safeguards and process modifications, including IST, to eliminate these causes

 40CFR §68.10: The setting of thresholds for coverage under this regulation is an incentive to reduce hazardous inventory, a key principle of IST

 40CFR §68.12 and related: The performance of worst case analysis drives engineers to seek IST alternatives to reduce potential consequences

 4 0CFR §68.50 and related: The activity of process hazard analysis prompts the broad

- based hazard analysis team to determine safeguards and process modifications, including IST, to eliminate the hazards identified, implement them, and review the analysis ever y 5 years

 40CFR §68.60 and related: When incidents occur, the company must identify the causes and implement safeguards and process modifications, including IST, to eliminate these causes

 40CFR §68.155: Every 5 years, the facility is required to submit plan s to improve safety

Considering that the application of inherently safer design methodology is so tightly integrated into the overall work of process development, any regulatory action related to IST which goes beyond these existing provisions would likely require that regulatory authorities conduct a detailed expert review of the complete set of design documents, essentially validating the design decisions made. Without significantly greater regulatory resources, such a detailed review is clearly impracti cal.As I hope I’ve made clear, AIChE and CCPS support the use of IST as part of the overall engineering

process. We strongly support increasing the education of chemical engineers and other scientists and engineers involved in process design and techno logy selection in the philosophy and art of IST.

To this end, AIChE was pleased to receive a recommendation from the US Chemical Safety and Hazard Investigation Board asking us to work to modify the undergraduate chemical engineering curriculum to improve the knowledge of process safety among BS graduates. In 2012, the CSB voted to declare this recommendation “closed, exceeding recommended action.”

AIChE and CCPS are also pleased to support the continuing process safety education of experienced
chemical e ngineers through a variety of courses, including one on IST.

# APPENDIX 5

ACC IST MATERIALS1

**Attachment 1: Factors that Affect IST Decision Making & Examples of Limitations of Mandating Inherently Safer Approaches** 

**A. Factors that Affect IST Decision Making** 

1. Initial design vs. retrofitting

. Implementing IST will often require other operational
or des ign changes. For example, to maintain operational productivity and reliability when utilizing the “ Minimization/Intensification” IST approach often requires a technology change such as advanced automation and controls, shifting a batch process to continuo us process, or other technologies. Implementing

“ Substitution ” or “ Moderation/Attenuation “ often requires entirely different processes or equipment. The most effective time to influence the inherent safety of a chemical process is during the initial design , not after the facility is built and in operation. 1 In the case of material substitution, for example, t he design of the process equipment is often closely tied to the properties of the substance chosen. Retrofitting into an existing process may not wor k for this reason, just as a car will not run properly if kerosene is substituted for gasoline.

2. Regulatory obstacles . In some cases, laws or rules do not permit the use of inherently safer methods. An example is the Federal mandate to phase out
chloroflu orocarbons (CFCs) as refrigerants. See example in section B below.

3. Risk/risk tradeoffs . Inherent safety is not always as simple or obvious as it might
sound. As the CFC example suggests, m any inherently safer approaches involve trading one risk (stratos pheric ozone destruction) against the potential of another (fire hazards to employees and others). See example in section B below.

Industry has long championed the use of IST. Furthermore, industry considers IST along with
all other alternatives for r educing potential security vulnerabilities. However, in some cases, what is inherently safer from one perspective may actually be more dangerous from another. In public debate, advocates of inherent safety frequently speak of reducing onsite inventories, or reducing or eliminating storage, of hazardous materials. Any shift in the way one stores hazardous materials has the potential, however, to create different, potentially greater risks
elsewhere.

Say, for example, that a regulatory agency determined tha t facilities should not store more than one week’s requirements for a substance in inventory onsite. At the outset, this could just result in the same inventories being carried at the supplier’s facility, rather than the user’s, or at some
less

- secure int ermediate storage facility. In any event, lower inventories on site typically mean more frequent deliveries of smaller quantities of material. Thus, for example, a process that receives barge containers approximately once per month, may have to shift to r ail cars or trucks.

1 See Bollinger at 56.2

Similarly, a process that currently receives railcars might instead have to receive one

- ton cylinders, delivered by trucks. Statistically, transportation incidents are lowest for water, intermediate for rail, and highest for truck; th us, a mandate to reduce inventories may require using modes of transportation with a higher frequency of accidents.

Also, changing from barges to rail cars, or from rail cars to trucks, would require the facility to connect and disconnect shipping containe rs far more frequently, increasing the potential of
operator exposure. 2

The challenge, in any case, is to adopt the concept of total risk, where one seeks to minimize
risks overall from transportation, storage and use. A focus on inventories examines the risk of storage only, neglecting the risks involved in transportation and use. When the offsetting of
risks are different

– e.g., ozone protection vs. exposure risks

– they are even more difficult to balance. In many cases, there is simply no single righ t answer.

1. Balancing known risks against unknown future risks . Oftentimes, the new risks of an inherently safer approach are not initially evident. Consider the examples in Section B
below.

2. Inherently safer does not translate to safe . As counterintuitive as it may sound, an inherently safer approach is not necessarily safer than a less inherently safe approach. See example in Section B below. This example highlights several issues. First, a less inherently safe system can attain a high degree of safety if sufficient resources and effort are devoted to that task. Second, an inherently safer system can still be unsafe if sufficient resources and effort are not devoted to it, as may happen if people become complacent.

3. Inherent safety does not come off

- th e

- shelf . Most processes that use hazardous materials do so because we simply have not yet discovered the next generation of chemistry to make the relevant product cost

- effective using safer approaches. This is
because the feature of the material that mak es it essential in the marketplace also makes it hazardous (e.g., chlorine). Chemistry businesses are continually looking for methods to make products that provide the benefits people want and need using processes that are inherently safer; however, this is a product

- by

- product, plant

- by

- plant undertaking.

2 Two final comments on the subject o f inventory reduction: First, m uch of the productivity growth in the United States recently has been attributable to inventory reduction. Inventory ties up money, requires capital, etc., which businesses don't want. The notion that inventories can easil y be reduced significantly across the board more than they have been would seem to be slightly unrealistic. Second, inventories may be required to meet short

- term or seasonal needs, in cases where the product cannot be produced as
fast as it is needed (e. g., ammonia used for fertilizer in the spring). For many producers and consumers, it becomes increasingly challenging to match sales and production levels as inventory levels are reduced.3

4. Inherent safety does not lend itself to government mandates . The foregoing features of inherently safer approaches explain why placing the decision of technology selection into the hands of a regulator is a flawed idea. Example after example demonstrates that even the most well intended government requirements can have serious adverse effects, as illustrated in the examples that follow in section B.

**B. Examples of IST Approaches with Adverse Consequences** 

**I nherent Trade** 

**- Offs** 

Suppose under mandatory IST, a facility is ordered to reduce the volume of chemicals it stores on site, or replace a particular chemical with a less hazardous alternative. Has safety been
enhanced? Because of the inherent trade

- offs, t he answer is, “it depends.”

 Is it “safer” to reduce the volume stored if this requires more frequent shipments through the community around the plant?

 Is it “safer” to substitute a new chemical if its use requires higher pressures or temperatures and inc reases the danger of an explosion?

 Who will make these judgments? Politicians? Federal policymakers? Local officials? Plant Experts?

**Examples of IST Strategies**

**1. Substitution** 

 While Twitchell splitting would be a substitute for the dangers regarding the high pressure splitting (no use of high pressure steam and no high temperatures), it has many disadvantages, such as the necessity to use sulfuric acid, low energy efficiency, and very low product quality.

 An example carried out at one ACC company was re placement of a common
chlorsulforic

- acid sulfonation process by a continuous SO 3
- sulfonation process. This eliminated chlorsulforic acid, (which can be problematic, creating HCl gas upon contact with water, for example). The new process (burn sulfur to S O 2 in a converter to make
SO 3 out of the SO 2 , then react SO 3 with the fatty alcohols [mostly] in a column, and neutralize the product) is relatively capital intensive, but efficient. It has the additional advantage that no chloro

- compounds are present in the final product. While, this new process is inherently safer, it had adverse economic ramifications. There were many layoffs and the closure of a plant in the US, because the new process required fewer personnel (due to concentration on fewer, larger p lants). The company also decided to later shift production off

- shore to avoid high costs of more conversions (as well as pollution control).4

 In 2004, when Washington, D.C. switched to chlorination in lieu of chlorine, the new process caused lead in older pipes to leach into water. This resulted in a public health crisis, and required the replacement of pipes throughout the city as well as enhanced testing. DC’s process still requires chlorine to “purge” the water lines each year so that they provide clea n, safe water for its residents.

 ReVAP technology is used for reduction of risk in hydrofluoric acid alkylation processes at refineries. The technology is hailed as an IST for the reduction of HF acid volatility, but it comes with significant tradeoffs. I t costs a significant amount of money and includes major modification and new equipment to be installed. By its design intent, any leaks from the process will now be a liquid that makes it easy to collect and treat, but it can also result in increased oper ator exposure to leaks. The additional chemical added to the process also has a negative impact of potentially increased corrosion rates due to the possible increased moisture content in the acid. When HF acid mixes with water at
certain concentrations, i t becomes corrosive. Some believe the ultimate alterative to HF acid alkylation is sulfuric acid alkylation, but there is a clear risk tradeoff. Sulfuric acid is more corrosive and results in higher incidents of operator exposure than in HF plants.

Moreove r, there is an increased need for disposal of spent sulfuric acid and more shipments of virgin acid, increasing the amount of deliveries per day which raises the potential for transportation incidents as well as worker health and safety exposure
incidents.

**2. Minimization** 

 Application of minimization as an IST strategy can oftentimes lead to risk

- shifting. For example, minimizing the inventory of a hazardous chemical (such as chlorine) by switching from one ton to 160 pound cylinders means that more

connectio ns/disconnections are required for a given production rate. Thus, the lower inventory may mean a shorter plume should the entire quantity of the cylinder be accidentally released, but the smaller cylinders put the operator at risk 12 times more
often beca use of the increased likelihood of exposure when hooking and unhooking a cylinder. Additionally, use of smaller containers (or smaller volumes of any chemical) necessitate more frequent transportation and delivery, which also increases the
likelihood of a n incident, as well as increasing transportation costs and the opportunity for theft and diversion. Which is the inherently safer option? It could be either one, depending upon perspective and other considerations (e.g., location of the operation
relativ e to a sensitive population).

 Risk shifting can occur in the conversion of one large process to several small processes. This conversion requires capital investment, reduces yields (as a rule of thumb, smaller processes have lower yields) and therefore ma y increase the amount of waste/hazardous waste produced. For example, one company considered the suggestion made by local5

authorities to reduce the storage of hazardous products on site by transporting them ‘just in time’ by truck from storage in trailers (because the regulations that apply for tanks do not apply for trailers). The company had to decide if it preferred storage of hazardous products on site with minimized transportation, or minimized storage on site with maximized transportation. Neither o ption is without inherent risks to site employees and the surrounding communities.

 While sodium hypochlorite is less hazardous than elemental chlorine, it poses a safety risk for accidental chemical mixing, which can result in the release of elemental chlo rine. In addition, sodium hypochlorite requires the shipment and handling of 7

- 10 times more product by volume than elemental chlorine, impacting worker safety, transportation risks, and environmental considerations in the local community. Each facility

– working

with its local communities and other stakeholders

– needs to determine which measures will most effectively and efficiently address safety and security while continuing to provide safe drinking water. Decisions depend on local circumstances and should

continue to be made at the local level.

**3. Other** 

 Regulatory Obstacles

While the CFC phase

- out was broadly supported, some of the replacement substances that are available are actually more hazardous (i.e., have higher toxicity or flammability) than

CF Cs. This is inherently less safe for people working in the vicinity.

Risk Trade Offs

Is it inherently safer to use a solvent that is highly flammable or one that is a possible carcinogen? In another example, a 1990 Federal Clean Air Act requirement for oxygenates in fuels solved helped mitigate one pollution challenge even as it created others because the tradeoffs weren’t adequately considered in advance.

 Balancing Known Risks Against Future Risks

- Polychlorinated biphenyls (PCBs) originally were champ ioned as an inherently safer means of insulating electrical equipment. PCBs gained widespread use because of their remarkable insulating capacity and their flame

- retardant nature, reducing the risk of fires in such places as office buildings, hospitals, f actories, and schools. The benefits were well recognized throughout society, but unfortunately, in the late 1960s, PCBs were detected in the environment. Public opinion shifted dramatically and by 1977, all sales of PCBs were
discontinued because of envi ronmental persistence and concerns about potential toxicity.6

- Underground storage tanks (USTs) became the universal mode of storing flammable materials in high

- traffic areas because they were regarded as an inherently safer means of storage. Decades pass ed before people realized the extent to which USTs could cause groundwater contamination.

- Airbags in cars have proven to be lifesavers and of great benefit to society, yet it took many years to recognize that the one

- size

- fits

- all approach to air bags c ould also have deadly effects. While extremely beneficial to adults when used in conjunction with seatbelts, airbag proved deadly to small children and changes had to be adopted to mitigate these risks.

 Inherent Safety Does Not Translate to Safe

- Most expe rts would agree that automobiles are inherently safer than airplanes

– they travel on the ground, move at 1/10 the speed, operate where the ambient temperature and pressure are conducive to life, carry only a few people and less fuel, and in most
cases of system failure, can be stopped safely. And yet statistics demonstrate that air travel is clearly safer than automobile travel.7

**Attachment 2. Example of IST scenario involving proprietary information.**

This example illustrates issues that may arise as a result of focusing on facility risk versus total
risk , i.e., the overall risk from manufacturing, transporting, storing, and using chemicals. In some cases it is not the best approach to focus solely on the risk at a facility as the determining
factor in an IST review.

In this example, Company B initiates an IST review of their site operation and makes recommends regarding the best strategy for reducing site risk in order to comply with an internal company request. Although in this case the mandate is int ernal and the recommendation was not ultimately implemented, the analysis and potential result is similar to what could occur if IST is federally mandated.

**The Players:**

Company A

– A multinational chemical company with greater than 5000 employees and many manufacturing sites, one of which is located in a sparsely populated area of a southwestern state. Company A is certified under the Responsible Care ® Management System.

Company B

– A multinational petrochemical company with greater than 10,000 employees a nd many manufacturing sites. Company B also has a facility in a sparsely populated area located less than 50 miles from Company A’s facility. A small town (<15,000 population) is located near this facility. Company B practices Responsible Care ® and is a ctively pursuing certification to the Responsible Care ® Management System.

Company C

– A small single

- owner chemical processing firm consisting of approximately 30 employees located at a facility on the outskirts of a very large Midwestern city.

**The Scenar io:** 

Company A produces a Poison Inhalation Hazard (PIH) chemical at its facility and ships the material by truck approximately 50 miles to Company B. Company B stores the PIH in a specially designed 10,000 gallon tank prior to use. Shipments are regulate d such that larger inventories of the PIH are not required to maintain production of Company B’s ultimate end product. Company B’s production process is a multi

- stage process. The PIH material is consumed in the first step of the process to produce a rel atively non

- hazardous intermediate. Company B has no other significant usage of highly hazardous toxic materials on

- site. Company B has a mature Process Safety Management program in place at the facility to manage
the PIH.

Company B conducts a high level risk assessment at their facility that recommends performing an inherently safer technology review for evaluating options for reducing on

- site PIH storage.

**Results of Company B’s IST Review:**8

Company B approached the problem by researching each of the desi gn methods listed below that could potentially be applied to the process. Each method was assessed for technical, operational, and financial feasibility.

Minimization/Intensification

– Storage of the PIH had previously been optimized based on Just

In

- Time supply principles by Company B to limit the quantity stored on

- site. Shipments are limited to truck quantities and the maximum on

- site storage is limited to 10,000 gallons. There

is no in

- process storage as the PIH is consumed in the first step of the p rocess. Reduction of on

site storage could potentially lead to unplanned shutdowns due to loss of raw material, which would create production and safety problems for the facility. The possibility of producing the
PIH on

- site was also investigated, but th e scale of equipment needed to produce the PIH would
have increased on

- site storage. The IST review determined that there was no technically feasible option for further reducing the on

- site storage of the PIH material.

Substitution

– Se veral options for r ep lacing the PIH with a less hazardous material were investigated. However, all of these options required processing a liquid or solid material. After careful research and laboratory analysis, it was determined that existing process equipment
could not h andle liquids or solids. In addition, none of the options investigated could meet the cost and quality requirements necessary to sustain the business.

Moderation/Attenuation

– The reaction involving the PIH is run at low temperature and pressure.
There i s no room for moderation of these process conditions.

Simplification

– Simplification of the process was investigated and found to be feasible in the form of eliminating the first step of the multi

- stage process in favor of purchasing the
intermediate dire ctly. From a cost perspective, this option required additional storage for the intermediate material and a slight increase in the cost to acquire the intermediate. However, this was not considered financially infeasible. The IST review team recommended the simplification option as the best alternative to reduce risk at the facility.

**Total Impact**

The simplification recommendation required Company B to review options to obtain the
intermediate material rather than manufacture the intermediate from the PIH and other raw materials. Unfortunately, the intermediate material is a proprietary substance and not available on the open market for purchase. Therefore, Company B explored the option of contracting with a separate company to toll the intermediate using Company B’s proprietary process to convert the PIH into the intermediate. Company C was chosen as the best option for tolling the intermediate based on availability of equipment, location, cost, and other factors.

This option requires shipment of the PIH for several hundred miles to Company C’s facility. Due to logistical considerations, Company C must receive the PIH material in railcar quantities (approximately 4 times the capacity of trucks) and stage multiple railcars for each production9

run. The ra ilcars must pass near several heavily populated areas en route to Company C’s site, which is also in a heavily populated area. Company C does not have storage facilities and instead feeds the reactor straight from the railcars during the production run. Company C has not been previously subject to PSM or RMP requirements. The site has an employee with safety and environmental responsibility, but this individual also has responsibility as the process engineer and operations manager. Other technical resou rces are limited.

In terms of facility risk, this option satisfies the goal of significantly reducing (or eliminating) the risk posed by the PIH material at Company B’s site. Since potential IST legislation and resulting rules would likely apply at the fa cility level, this should be a satisfactory response for Company B. However, the resulting situation may significantly increase the risk to people by forcing larger PIH package size quantities in transport, shipments over significantly greater distances, and storage and processing of a PIH in a more heavily populated area by a company that may not have sufficient expertise and programs in place to effectively manage the hazards. The total risk for the resulting situation would increase significantly from the initial scenario.

IST rules may also apply to Company C. However, since Company C is not the owner of the proprietary process it is not in a position to modify the process. Forcing IST implementation on Company C would put Company C out of business.

Fortunately in the case listed here IST consideration was an exercise to determine whether better options were available than the original scenario, rather than a mandatory implementation of IST.

# APPENDIX 6

ACC COMMENT ON EXECUTIVE ORDER 13650DB1/ 78326798.1

March 31, 2014

OSHA Docket Office
Docket No. OSHA

- 2013

- 0026
Technical Data Center
Room N

- 2625 U.S. Department of Labor 200 Constitution Avenue, NW Washington, DC 20210

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA

- 2013

- 0026, Request for Public Comment, ―Section 6 of Executive Order 13650: Improving Chemical Facility Safety and Securi ty‖

To the Docket:

The American Chemistry Council 1 (ACC) is pleased to respond Executive Order 13650, Section 6(a)

– Solicitation of Public Input on Options for Policy, Regulation, and Standards Modernization, Docket No. OSHA

- 2013

- 0026.

ACC is America‘s oldest trade association of its kind, representing companies across the United States engaged in the business of chemistry. ACC supports the Executive Order (EO) Working Group‘s commitment, as expressed in the present Section 6(a) options , to enhance the safety and security of workers, the public, and the environment from accidents at chemical facilities. ACC shares the EO Working Group‘s goal of ensuring that process safety is handled and implemented as safely as possible, as workplace s afety and process safety are top priorities to the ACC and its members. In fact, to become a member of ACC, a company must commit to the highest standards for protecting health, safety, and the environment through participation in the Responsible Care® pr ogram.

ACC members would be directly affected by the EO Working Group‘s request for public comment on improving chemical facility safety and security. While ACC shares the EO Working Group‘s goal of ensuring process safety, ACC has a number of concerns a bout the proposed candidates for rulemaking or enforcement changes identified in Section 6(a), as outlined in our comments. We believe that the signaled changes ultimately represent a drastic departure from the current regulatory framework, particularly f or Process Safety Management

1 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of chemistry to make innovative products and services that make people’s lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care®, common sense advocacy designed to address major public policy issues, and health and environmental research and product testing. The business of chemistry is a $770 billion enterprise and a key element of the nation’s economy. It is the largest exporting sector in the United States, accounting for 12 percent of U.S. exports. Chemistry companies are among the largest investo rs in research and development. Safety and security have always been primary concerns of ACC members, and they have intensified their efforts, working closely with government agencies to improve security and defend against any threat to the nation’s critic al infrastructure.DB1/ 78326798.1 2

(PSM), 29 C.F.R. § 1910.119, without corresponding benefits to workplace or employee safety. Ultimately, ACC believes that the most influential step the EO Working Group could undertake to improve worker safety is through incr eased PSM awareness, training, and enforcement for outlier companies.

Chemical operations and process safety management are inherently complex, and ACC looks forward to working with the EO Working Group, as well as the Occupational Safety and Health
Admin istration (OSHA), the Environmental Protection Agency (EPA), and other agencies, to ensure that any policy changes are informed by the daily challenges that chemical employers face. ACC encourages the EO Working Group to consider the fundamental concerns outlined in the subsequent comments as the agencies proceed with the next step in the EO process. As an alternative to rulemaking, ACC recommends that agencies including OSHA, EPA, and others
evaluate the use of non

- regulatory means to help the EO Working Group achieve its goal of creating a safer workplace for our nation‘s employees and surrounding communities.

Thank you for the opportunity to submit comments on this matter.

We hope that the EO Working Group will find our contributions helpful. Should y ou have questions, please contact me by phone at (202) 249

- 6426 or by e

- mail at Rachel_meidl@americanchemistry.com.

Respectfully submitted,

Rachel A. Meidl Director, Regulatory & Technical Affairs American Chemistry Council
700 Second Street, NE Washington, DC 20002 Rachel_Meidl@americanchemistry.comDB1/ 78326798.1

March 31, 2014

OSHA Docket Office
Docket No. OSHA

- 2013

- 0026
Technical Data Center
Room N

- 2625 U.S. Department of Labor 200 Constitution Avenue, NW Washington, DC 20210

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA

- 2013

- 0026, Request for Public Comment,

― Section 6 of Executive Order 13650: Improving Chemical Facility Safety and Security‖

To the Executive Order Working Group:

The American Chemistry Council (ACC) is America‘s oldest trade association of its kind, representing companies across the United States engaged in the business of chemistry. ACC members would be directly affected by any potential adjustments to existing risk management practices, or changes that affect chemical facility safety and security. 2 ACC supports the (EO) Working Group‘s stated goal of improving safety through risk management practices. W orkplace safety and process safety also are top priorities to ACC and its members. In fact, t o become a member of ACC, a company must commit to the highest standards for protecting health, safety, and the environment through participation in the Responsible Care®

program. As a part of this commitment, in 1990, ACC adopted the Responsible Care Proce ss Safety Code of Management Practices, which identified specific activities that chemical companies implemented as part of their Responsible Care obligations.

ACC and its members continuously focus on improvement, developing a new Process Safety Code as part of the Responsible Care program, which was finalized in November 2012. This code was built on existing process safety performance requirements under Responsible Care and is further evidence of ACC members‘ commitment to safety throughout our chemica l processing operations, safety management systems, and leadership. The Process Safety Code requires companies to develop and implement a comprehensive process safety management system to manage risk and seek opportunities to improve performance, includin g the consideration of safer alternatives. Companies must understand and prioritize process safety risks and see that all employees have the required knowledge, expertise, tools, and training to manage process risks in their operations.

2 ACC submits this comment concurrently with our comment to Occupational Safety and Health Administration (OSHA) regarding the Request for Information (RFI) on Process Safety Management (PSM) and Prevention of Major Chemical Accidents. See ACC Comment on OSHA Docket No. OSHA

- 2013

- 0020 (Mar. 31, 2014) (attached hereto as Exhibit 1). The present comment has been tailored to the Executive Order (EO) Working Group‘s solicitation of public input in significant ways, but, where issues corresp ond, the comment also overlaps substantially with our submission to OSHA Docket No. OSHA

- 2013

- 0020.DB1/ 78326798.1 2

The Process Safe ty Code is intended to complement regulatory requirements, including
the Occupational Safety and Health Administration‘s (OSHA‘s) Process Safety Management (PSM) standard and the Environmental Protection Agency‘s ( EPA‘s) Risk Management Program (RMP) stand ard. Regulatory standards, by necessity, focus on process safety at an individual facility. In contrast, the Process Safety Code addresses issues at a more universal level, such as across a division or corporation, and includes a company commitment to s et expectations regarding process safety, define accountability for process safety performance and allocate adequate resources to achieve performance expectations. These higher

- level considerations, contained within the Process Safety Code, are critical e lements of effective management of process safety.

Further, the Process Safety Code is a manifestation of the leadership that Responsible Care companies will undertake to seek systematic continuous improvement in process safety, drawing from the most curr ent learning and advances. When implemented alongside the integrated Responsible Care management systems, this Process Safety Code will help advance the chemical industry‘s commitment to process safety by embedding state

- of

- the

- art concepts within Respons ible Care, strengthening process safety leadership, culture, management and, ultimately, performance. Implementation of the Process Safety Code is mandatory for all ACC Responsible Care companies.

ACC appreciates the opportunity to submit our comments i n response to the EO Working Group‘s solicitation of public input. As with OSHA‘s PSM Request for Information (RFI), however, we have a number of significant concerns about proposed options for rulemaking or enforcement changes. Even so, ACC is encourage d that the EO Working Group recognized in Section 6(a) that the ― purpose of this document is to provide preliminary options as a starting point for additional stakeholder discussion‖ and that you ―anticipate that the options may change significantly.‖ See Section 6(a) at 2. Moreover, we appreciate your clarification that ―this effort does not supersede official or standard processes for agency actions, such as notice and comment rulemaking.‖ See id. Chemical operations and PSM are inherently complex, an d ACC looks forward to working with the EO Working Group, as well as OSHA, EPA, and other agencies, to ensure that any policy changes are informed by the daily challenges that chemical employers
face.

I. EXECUTIVE SUMMARY

ACC believes that process safety standards in the United States are strong and effective precisely because they are performance

- oriented. Given the diverse nature of chemical industry operations, ACC knows that a flexible approach to process safety best protects workers from risk
of har m. 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, ACC opposes prescriptive reco mmendations that will chip away at the necessary discretion given to employers. Any one

- size

- fits

- all approach to process safety would limit employers‘ ability to address real facts on the ground.

ACC fears that several suggested change options would, in practice, weaken the highly effective performance

- oriented approach to process safety. Given our concerns, ACC would like to underscore the importance of maintaining a performance

- oriented approach for the following topics:DB1/ 78326798.1 3

(1) ACC opposes incorporation o f mandates to consider or implement ―i nherently safer technologies‖ (IST) into regulatory safety programs. Inherently safer approaches or safer alternatives have been and will continue to be considered by facilities as a matter of course. However, only f

acility operators know whether IST is appropriate given the complexities of their unique operating environments, and no one program will work for all facilities. Furthermore, every regulatory program has a distinct focus, whether it is employee safety, en vironmental protection, or security. Therefore, IST mandates under one program cannot account for other factors that a facility incorporates in any consideration of inherently safer approaches. The facility operators, however, are able to
and do consider inherently safer approaches holistically, in order to ensure the highest degree of safety in all respects.

(2) ACC wholly opposes changing PSM or RMP to a safety case regulatory regime. The safety case framework would be a drastic overhaul of the current system. Against this, no real data establishes its value in the context of process safety for the chemica l industry. ACC believes that shifting responsibility to approve safety decisions from employers to inspectors, who inevitably will be less familiar with the jobsites, would detract from worker safety.

(3) ACC believes that the mandated use of third

- part y auditors would be overly burdensome and unjustified. Employers must be afforded the discretion to choose among
self

- audits, second

- party audits, and third

- party audits. Company

- led audits can be far more effective in actually addressing issues uncovere d during an audit, due to the company auditor‘s intimate knowledge of the organization and how it functions.

ACC knows that workers and the public are best protected by allowing employers onsite to make decisions on these and other process safety topic s, considering the myriad of site

- specific factors presented.

Next, ACC members take process safety very seriously and we disagree with any presumption that the U.S. chemical industry has a poor safety history. ACC acknowledges the public‘s fear of chem ical operations and ―worst

- case scenarios,‖ given their complexities; however, through compliance with the already enacted versions of PSM and RMP, chemical facilities have a strong safety track record. For example, ACC companies have a worker safety

rate that is five times better than the U.S. manufacturing sector as a whole. Additional regulation generally has not been justified and would be unnecessary.

As such, ACC takes issue with any suggested change options where the EO Working Group has not es tablished the existence of significant risk of harm. ACC cautions the EO Working Group against trying to fix something not shown to be ―broken.‖ As the United States Supreme Court explained in its landmark decision, Industrial Union Department v. America n Petroleum Institute (the Benzene case), ―before he can promulgate any permanent health or safety standard, the Secretary is required to make a threshold finding that a place of employment
is unsafe

— in the sense that significant risks are present and can be eliminated or lessened by a change in practices.‖ 448 U.S. 607, 642 (1980) (J. Stevens, plurality) (―[A] workplace can hardly be considered  ̳unsafe‘ unless it threatens the workers with a significant risk of harm. ‖).

In Benzene , the Court refused to give OSHA the unchecked ―power to impose enormous costsDB1/ 78326798.1 4

that might produce little, if any, discernible benefit,‖ explaining that it would be ―unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry.‖ Id. at 645.

ACC agrees that the public is best protected by focusing on established risks, not hazards. As the Supreme Court explained in the Benzene

, accepting the possibility of even deadly consequences (for example, drivin g a car) is a part of participating in society. The real question is not whether the consequence is serious, but rather the existence of risk

— i.e., the likelihood that the consequence occurs. While many groups focus only on reducing hazards, the best way to protect workers, the community, and the environment is to focus on real risks. The EO Working Group should determine what hazards/threats are most significant and likely. This would allow the EO Working Group and agencies to allocate resources in the most effective and efficient way.

In addition, ACC emphasizes that changing regulations alone will not improve safety for companies that know how to fulfill the requirements of the current standards and consistently do so. Change also will not increas e the safety of workers at companies that are not in compliance with existing regulations. In fact, ACC believes that process

- related safety hazards are extremely rare where covered employers fully comply with current regulations. Instead, safety
acciden ts, including those cited throughout the EO Working Group‘s solicitation of public input and OSHA‘s RFI, often involve outlier companies that fail to comply with some or all aspects of the current standards. As such, the EO Working Group should focus its time and resources on increasing training, outreach, and education efforts, and encourage agencies to increase enforcement for companies with a history of noncompliance, rather than increasing burdens on the industry across the board.

Overall, ACC encou rages the EO Working Group to reach out to affected employers and
trade associations. Public/private partnership could help to achieve many of the goals and objectives of the EO. Moreover, interactions with affected groups, including the ACC, would
allow the EO Working Group and agencies to obtain a broad perspective on emerging safety
trends.

II. RESPONSES TO WORKING GROUP’S PROPOSED OPTIONS

Option 1 : ―Improving the Safe and Secure Storage, Handling, and Sale of
Ammonium Nitrate‖

1(e) How should the agencies evaluate the implementation of safer alternatives and best practices for AN, and what are the best methodologies for accomplishing this? Safer alternatives and practices involve improving safety by reducing or eliminating hazards inherent
in indus trial processes. These alternatives and practices may involve reducing the amount of a hazardous substance kept on

- site, or entirely eliminating the hazardous chemical by utilizing an alternative chemical pathway or safer intermediate chemicals. Promotin g the use of safer alternatives and practices could occur through industry programs (e.g. Responsible Care, ChemStewards, and Responsible Distribution), by issuing alerts and guidance under EPA‘s RMP program and OSHA‘s PSM standard to increase knowledge of industry standards, through development and broad availability of a resource center where process safety expertsDB1/ 78326798.1 5

share safer alternative techniques, and through potential rulemaking. Several stakeholders also have suggested incorporating ―inherently safe r technologies‖ into risk and process safety programs and the agencies are requesting additional information on how this concept would be defined, accomplished, and measured. In addition, the agencies are requesting comment on the potential costs and bene fits of implementing such an approach as opposed to other approaches.

ACC addresses the implementation of safer alternatives and best practices below in its comment on Option 2(I)(m).

1(f) Should the agencies examine the use of third

- party audits and de velop targeted guidance for industries that need assistance in understanding safe practices for handling AN? Third party audits are inspections conducted by appropriate independent auditors (retained by a chemical facility) who make process safety and regu latory compliance recommendations. According to the Center for Chemical Process Safety (CCPS), ―Third party auditors (typically, consulting companies who can provide experienced auditors) potentially provide the highest degree of objectivity.‖ The U.S. De partment of the Interior, Bureau of Safety and Environmental Enforcement‘s (BSEE) Safety and Environmental Management Systems (SEMS) standard, 30 CFR 250, Subpart S, requires audits conducted by an independent third party, subject to approval by BSEE, or b y designated and qualified personnel if the employer implements procedures to
avoid conflicts of interest. 3

The Mandated Use Of Third

- Party Auditors Would Be Overly Burdensome And Unjustified

ACC cautions against the mandated use of third

- party auditors . Further, ACC is skeptical of any assertion that third

- party auditors provide the ―highest degree of objectivity,‖ or are more
effective overall than self or second

- party audits. ACC believes that instead of taking steps to require any audits through re gulation, the EO Working Group should focus on targeted non

regulatory approaches such as increased PSM awareness, training, and enforcement for outlier companies, or those requiring additional assistance. In addition, the EO Working Group could

encourage voluntary audits by consultants or groups such as Center for Chemical Process Safety (CCPS) , ACC, American Fuel & Petrochemical Manufacturers (AFMP) , and others, as well as participation in programs such as OSHA Voluntary Protection Program (VPP) to provide supplemental gap analysis and guidance. These tools may help outlier organizations that are not aware of and/or lack the resources to be in full compliance with existing regulations. Adding new regulations, by itself, would not improve process sa fety performance for such companies.
ACC maintains that the mandated third

- party audits is unjustified and, depending on the facility, may not best achieve the goals of safety, education, and understanding.

As explained in ACC‘s response to OSHA‘s PSM RFI (Exhibit 1 at Change Option 12),
the use of self

- auditors, second

- party auditors (company auditors not directly responsible for the area being audited), or third

- party auditors should remain a choice for employers, who have the greatest understanding o f the unique potential hazards and challenges facing their worksites.

3 For ease of reference, in text boxes placed throughout this submission, ACC has included excerpts from the EO Working Group‘s ―Solicitation of Public Inp ut on Options for Policy, Regulation, and Standards Modernizations‖ to
which ACC offers comment.DB1/ 78326798.1 6

ACC members vary greatly in their decisions to use certain types of PSM auditors. ACC members consider their own particular operations, equipment, onsite materials and chemicals,

exper tise, and organizational structure to determine which method is best suited to increase safety.

Second

- party and self

- audits have many safety benefits that are lost with third

- party audits. Company

- led audits can be far more effective in actually addressing issues uncovered during an audit, due to the company auditor‘s intimate knowledge of the orga nization and how it functions. Using common audit questions and a standardized scoring system across the company also allows for the ready comparison of results across sites, including consistent report

- writing
and recommendation

- tracking across the compa ny. In ACC members‘ experiences with PSM audits, using internal resources broadens PSM management system education while leveraging the auditor‘s detailed knowledge of the organization and how it functions.

Many ACC members believe that, in reality, co mpany auditors have been more effective in identifying, understanding, and then taking prompt, appropriate actions to ensure that management resolves issues uncovered during an audit, as compared to temporary, unaffiliated contractors. Audit programs are just one element of a company‘s safety management system, and company auditors are more likely to take ownership of the audit report process, revisit action items with the site, or advocate internally for additional resources on a continuous basis. In
add ition, many companies also have or implement a continuous improvement department/process that considers audits, metrics, and incident investigation findings in a holistic

manner

— these elements would be absent with third

- party audits. It is worth noting th at some ACC members use third

- party auditors merely to confirm the findings of second

- party or self

auditors. Ultimately, ACC believes that it should be the responsibility and choice of each owner/operator to decide how best to complete audits given the u nique characteristics of the

company.

OSHA‘s own National Emphasis Program (NEP) inspections have not demonstrated that

company

- led audits are cause for concern due to any alleged incapability of the audit team or deficiency in the audit protocols used. In March 2011, the Department of Labor provided an update at the 7th Global Congress on Process Safety sponsored by the American Institute of Chemical Engineers (AIChE), explaining that only 4% of the citations for the Refinery NEP were for PSM Compliance Audits. To support the need for a change in regulation in its RFI, OSHA merely cited to the Chemical Safety Board (CSB) Baker Panel‘s review of a single company and its finding that the company‘s flawed internal audits contributed to an incident.
See 78 Fed. Reg. 73762 (Dec. 9, 2013). As previously stated, c hanging the regulations alone will not improve safety for companies that know how to fulfill the requirements of the current standards and consistently do so. To improve the quality and effectivenes s of audits, ACC recommends that agencies, including OSHA, develop practical non

- mandatory materials (such as guidance and training) for these outlier employers. At present, ACC has observed a dearth of information regarding auditing on OSHA‘s website.

Moreover, the CSB BP Texas City Report (Mar. 20, 2007) does not mention any issues with the audit team; rather CSB identified significant problems with management implementation of the audit team recommendations. Section 8.3 of the CSB BP Texas City
R eport stated that a ―review of compliance audits at the Texas City refinery revealed that manyDB1/ 78326798.1 7

of the process safety system deficiencies causal to the ISOM incident had been previously identified by BP auditors.‖ These flaws would not be corrected or elim inated by use of a third

party audit team. Likely for this reason, the CSB BP Texas City Report did not contain a formal recommendation that OSHA update its PSM auditing requirement. The data supporting the methodology on how audits are performed by comp anies is not compelling, and certainly does
not warrant the tremendous cost of third

- party auditors through regulatory mandate.

Unquestionably, the use of third

- party auditors is extremely costly. Contractors have hourly rates of up to $500 per auditor for conducting PSM audits, not including payment for travel, expenses, and preparation time, as well as inflated costs for certain expertise. ACC has investigated the cost of third

- party PSM audits for its members. See Exhibit 1, ACC Comment
to OSHA Chan ge Option 12 and the exhibit therein entitled Third

- Party PSM Audit Analysis

. Indeed, ACC roughly estimates that the cost of a single third

- party PSM compliance audit for a
medium

- sized company could be as high as $33,600 to $112,000 per audit. Id. By c ontrast, the primary cost for self and second

- party audits is the opportunity cost of a company‘s PSM and other technical staff, which averages $12,300 per self or second

- party audit for medium

- sized companies

. Id. Thus, third

- party PSM audits cost anywhere from $21,300 to $99,700 more per
audit than second

- party audits for medium

- sized companies. This range is based solely on hourly rates, and, in reality, is most likely a low estimate

— the comparison assumes that the number of hours spent on a single audit is identical for each type of audit. However, as will be explained later in this section, ACC members report that third

- party audits are lengthier than
self/second

- party audits. Thus, ACC believes that the tru e cost of third

- party audits is significantly higher than $21,300 to $99,700. Even more, as explained in Exhibit 1, ―[m] any companies have several facilities that would need to be audited each year. Thus, this cost would be multiplied several times over. Given that the majority of PSM

- regulated facilities are at small
and medium

- sized companies, this presents a significant cost burden.‖ Id. Again, there is no proof that this cost yields corresponding safety benefits.

Also, third

- party auditors do no t significantly lessen the burdens of onsite engineers and other support personnel, who frequently must accompany third

- party auditors and engage in the extremely time

- consuming activity of explaining basic onsite procedures already known to
internal staff . This leads to intra

- company productivity and opportunity losses, in addition to the direct cost of hiring third

- party auditors. Overall, third

- party audits are lengthier and involve larger audit teams, without necessarily yielding corresponding safety benefits. Lengthier audits present logistical challenges and loss of efficiency at a plant, occupying those involved in plant safety for extensive periods of time (possibly adversely impacting a plant‘s safe operation) and consuming a much greater amount of plant resources. All told, the annual costs would be disproportionate to the benefit.

Furthermore, ACC has serious security concerns with third

- party auditors not present
with second

- party and/or self

- audits. Third

- party auditors would be granted unprecedented access to intimate details of a company‘s operations. The required use of third

- party auditors exposes a company‘s intellectual property to financial and even security risks. Allowing external personnel to review technical details, company confidential business information, and trade secrets may impact a company‘s otherwise protected intellectual property and discourage innovation. More broadly, ACC remains skeptical regarding the qualifications of third

- partyDB1/ 78326798.1 8

auditors. Right now, based on ACC members‘ experiences, there is a dearth of quality third

party contractors available for PSM audits.

In conclusion, ACC firmly believes that owners/operators should have the discretion to choose the audit method most suited to their unique operatio ns. This Working Group should not overlook the plethora of benefits that stem from company audits, which are missing entirely from
third

- party audits. Given these legitimate concerns, ACC suggests that the EO Working Group consider and analyze alternate routes to reinforce the efficacy of audits such as additional guidance, information, tools, and/or training materials on how to conduct quality audits. For outlier facilities or those requiring additional assistance in the safe use and handling of
ammoniu m nitrate, the use of targeted non

- regulatory approaches such as increased Section 1910.109(i) awareness, training, and enforcement would be the most productive way to improve the safety of workers, the surrounding community, and the environment.

Option 2(I) : ―Process Safety Improvement and Modernization

– Policy, Regulatory, or Guidance Options by the Agencies‖

2(I)(a) Should EPA and OSHA modernize, clarify, and harmonize the PSM and RMP programs through rulemaking, policy change, or guidance de velopment? If so, please provide specific suggestions. The agencies are considering whether to initiate rulemakings for updating the PSM standard and RMP rule. EPA and OSHA have collaborated on implementation of these programs, and are considering a numb er of options for modernization of regulations, policy, and guidance that would maintain parallel requirements and ensure harmony between the regulations. Although some of these specific options are discussed below, EPA and OSHA seek input on any
additiona l opportunities to modernize, clarify, or harmonize these programs.

Rulemaking Should Not Proceed Without First Establishing The Existence Of Significant Risk; Harmonization Of PSM And RMP Would Be Confusing And Ineffectual

A collaborative effort on the part of OSHA, EPA and industry to clarify regulatory expectations through guidance documents would be more appropriate than attempting to ―modernize‖ standards that are still adequate as written through rulemaking. This collaborative
effort should ini tially identify what part(s), if any, of these standards is ―outdated,‖ and the basis for such determination. Merely passing additional regulations would fail to address the problem of outlier companies that are unfamiliar with the PSM and RMP standards. Instead of rulemaking, ACC encourages education, training, a wareness efforts, and enforcement for these outlier companies, or those requiring additional assistance.

A. General Comments And Concerns Regarding Future Rulemaking

As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Executive Summary)

, the Occupational Safety and Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to ―promulgate, modify, or revoke any occupational safety or health standard‖ that is ―re asonably necessary or appropriate to provide safe or healthful employment and places of employment.‖
See 29 U.S.C. §§ 652(8), 655(b). In Benzene , the U.S. Supreme Court held that ―before he can promulgate any permanent health or safety standard, the Secre tary is required to make a threshold finding that a place of employment is unsafe

— in the sense that significant risks areDB1/ 78326798.1 9

present and can be eliminated or lessened by a change in practices.‖ 448 U.S. 607, 642 (1980) (J. Stevens, plurality) (―[A] workplace can hardly be considered  ̳unsafe‘ unless it threatens the workers with a significant risk of harm

. ‖ (emphasis added)). The Court warned that accepting the possibility of deadly consequences

— for example when driving a car

— is a tradeoff for participating i n society. The real question is not whether the consequence is serious, but rather the likelihood that the consequence occurs (i.e., the risk). Hazards are always present, even at
the best

- managed facilities, and to improve safety, agencies must shift fo cus to risk. Ultimately,

t he Supreme Court refused to give OSHA the unchecked ―power to impose enormous costs that might produce little, if any, discernible benefit,‖ explaining that it would be ―unreasonable to assume that Congress intended to give the S ecretary the unprecedented power over American industry.‖ Id. at 645. The Court specified that risk, not consequence, should be the basis for any proposed changes to the standard.

Pursuant to Section 304 of the Clean Air Act Amendment of 1990 (CAAA), OS HA promulgated the current PSM standard, which ACC believes has been successful in addressing significant risks associated from catastrophic releases of toxic, reactive, flammable and explosive chemicals. As explained in our comment to OSHA ( see Exhibit 1 ), ACC now is concerned by OSHA‘s RFI on PSM because we see virtually no reference to findings of significant risk to justify such a dramatic shift from the PSM standard and other rules (e.g., 29 C.F.R. § 1910.106) already in place. While ACC supports OSH A‘s stated goal of increasing workplace safety through the PSM standard, ACC cautions OSHA against taking any steps to implement changes that increase burdens on employers without first establishing significant risk of harm through
data and science

- based a nalyses. ACC understands that OSHA published its recent RFI as part of an effort to collect ―data and information on its PSM standard‖ in response to the Executive Order 13650 process. See 78 Fed. Reg. 73757. In the meantime, however, ACC would not

supp ort any changes to the current standard without such risk analysis from OSHA. The real issue, ACC believes, is not with the current PSM standard, but with compliance deficiencies and demonstrated problems with implementation and enforcement of existing PS M requirements. Changing the regulations alone will not improve safety for companies that know how to fulfill the requirements of the current standards and consistently do so.

ACC believes that process

- related risks are well managed and controlled where covered employers fully comply with OSHA‘s current PSM regulations. Instead, safety accidents, including those cited throughout OSHA‘s RFI and EO Section 6(a), often involve outlier companies that fail to comply with some or all aspects of the current PS M standard. Ultimately, compliance with the regulations already in place minimizes the significant risk of PSM hazards. As such, ACC believes that OSHA should focus its time and resources on increasing PSM training and education efforts, as well as enfor cement for companies with a history of noncompliance, rather than increasing burdens on the industry across the board with no
discernible reduction of risk.

If any agency decides to proceed with subsequent rulemaking, ACC encourages transparency and sufficient opportunity for stakeholder participation in every step of the rulemaking. Specifically, the agency should issue an Advance Notice of Proposed Rulemaking (AN PR) to provide stakeholders with sufficient time to evaluate the impact of such broad and weighty rule changes. Regarding the required studies and analyses mentioned above, the agency should grant stakeholders sufficient time and opportunity to participat e in the OMB

- requiredDB1/ 78326798.1 10

peer review process for scientific information used in risk assessments. Moreover, ACC is confident that any proposed revisions to the PSM rule, if enacted, would have a significant economic impact on a substantial number of small bu siness entities. In fact, over half of ACC‘s membership consists of small businesses. As such, if rulemaking is anticipated, the agency would be obligated to convene a Small Business Advocacy Review Panel under the Small Business Regulatory Enforcement F airness Act of 1996 (SBREFA), which recognizes the importance of protecting the interests of small businesses when developing regulations.

B. Comments Regarding Harmonization

While both the PSM standard and EPA‘s Risk Management Plan Rule, 40 C.F.R. §
68. 150

- 196 (RMP Rule), are intended to decrease the likelihood of accidental releases, ACC cautions against the harmonization of OSHA‘s PSM and EPA‘s RMP Rule. In 1990, Congress passed the CAAA Section 304, which required the Secretary of Labor to promulgate a chemical process safety standard to prevent accidental releases of chemicals that could pose a threat to employees . The CAAA requires that the standard include a list of highly hazardous chemicals with associated threshold quantities, including toxic, flammable, highly reactive, and explosive
substances.

Likewise, upon passing the CAAA, Congress required the EPA Administrator to publish regulations and guidance for chemical accident prevention at facilities using extremely hazardous substances to pre vent accidental releases that impact the surrounding community and
environment . The CAAA identifies specific duties for EPA relative to the prevention of accidental releases, mandating the development of a list of chemicals and associated threshold quanti ties, along with a Risk Management Plan. EPA also passed the RMP Rule to implement CAAA Section 112(r), 42 U.S.C. § 7412(r). The RMP Rule, which built upon existing industry codes and standards, requires companies of all sizes that use certain flammable and toxic substances to develop a Risk Management Program and conduct a hazard assessment that details the potential effects of an accidental release on the surrounding community and environment.

To comply with both PSM and RMP rules, operators of covere d processes must carefully examine the list of regulated substances, as well as both the EPA and OSHA thresholds for these substances. Because OSHA and EPA promulgate their rules separately, the two programs‘ lists
of substances and thresholds differ. In some cases, one program may list a substance that the other program does not, and where EPA and OSHA do list the same substances their triggering thresholds may differ significantly. The threshold quantities are different because the targeted population is different. OSHA‘s PSM standard works to prevent accidental releases of highly hazardous chemicals that may pose a risk to employees, while EPA‘s RMP Rule focuses on preventing releases that may impact the surrounding community and environment. ACC fea rs that merging the lists would create confusion, and would likely cover too few facilities under PSM and too many facilities under the RMP Rule. I n the 20

- plus years since the implementation of these regulations, industry has become familiar with the lis ts and established how to address discrepancies between them.DB1/ 78326798.1 11

2(I)(b) How should OSHA clarify the exemption for retail facilities under PSM? OSHA‘s RFI explains this option in further detail

OSHA Should Not Change Enforcement Policy For Retail Facility PSM Exemption

As explained in ACC‘s response to OSHA‘s RFI ( Exhibit 1 at Change Option 16)

, OSHA should not change its enforcement policy for the retail facility PSM exemption. ACC understands OSHA‘s concerns regarding the ill

- defined PSM exemption for retail facilities. Simply altering enforcement policies without changing the regulation‘s lan guage on coverage, however, would amount to regulation by enforcement. ACC categorically discourages any such
back

- door rulemaking by imposing new substantive requirements through enforcement and without the opportunity for stakeholders to have any input (as would be the case through Administrative Procedure Act (APA) rulemaking) . As with manufacturing and storage facilities, if OSHA believes that retail facilities present a significant risk of harm

— and OSHA establishes significant risk through studies an d analyses

— it should amend the standard to include coverage
of so

- called ―retail facilities‖ associated with such risks. In sum, OSHA should continue analyzing hazards and risks for retail establishments as required for rulemaking, and should not merely p ursue a change in enforcement policy for retail facilities.

2(I)(c) Should OSHA adopt EPA’s RMP policy for determining PSM coverage of concentrations of PSM

- listed chemicals (replacing OSHA’s existing interpretation that applies the concept of

maximum con centration commercially available to determine threshold quantities of covered chemicals)? The Executive Order refers to this issue as the commercial grade exemption. OSHA‘s RFI explains this in further detail.

OSHA Must Undertake Scientific Analyses And Establish Significant Risk Before Any Enforcement Changes Are Made, And EPA Criteria Would Be Ineffectual For OSHA

OSHA‘s PSM Appendix A lists highly hazardous chemicals and threshold quantities that must be met to establish coverage. Although Appendix A provides specific concentrations for 11 of its listed chemicals, the standard does not address concentrations for the remaining 126
listed chemicals. As explained in ACC‘s response to OSHA‘s RFI ( Exhibit 1 at Change Option 17)

, ACC recommends that OSHA use a formal scientific

- based approach to evaluate chemicals so that OSHA can demonstrate that any proposed changes to the PSM standard are justified, and that the modifications to enforcement would actually enhance worker safety. ACC further urges OSHA and EPA to develop and publish their research and data

- gathering methodology for identifying, defining, and quantifying the hazards associated with a chemical. OSHA and EPA should use a formal, scientific

- based approach to evaluate chemicals and, ultimately, to demonstrate that any proposed additions to the list of covered chemicals are justified and would actually enhance worker safety.

ACC agrees with OSHA that the language in the standard addressing mixtures containing
list ed chemicals is unclear and requires clarification. However, ACC does not agree that OSHADB1/ 78326798.1 12

should adopt the EPA‘s policy, or that a change in enforcement policy is justified. It would not be feasible to use the EPA 1% concentration criteria in OSHA‘s PSM standard because there are multiple additional requirements to establish a full EPA RMP Prevention Program (Program 3) in the EPA RMP Rule. These additional criteria, such as off

- site injury and distances to toxic or flammable endpoints for worst

- case rel ease assessments, are related to off

- site impacts and are not within OSHA‘s scope. In addition, these supplemental criteria substantiate that the mixture poses an off

- site hazard. Although EPA policy requires evaluation of all mixtures with a greater
tha n 1% concentration, only those mixtures that have concentrations large enough to be a potential off

- site hazard require establishment of a full EPA RMP Prevention Program (Program 3).

Instead, in its response to OSHA‘s RFI, ACC encouraged OSHA to clarify the requirements for chemicals listed in Appendix A without specific concentrations. In particular, mixtures containing more than the threshold quantity as set forth in Appendix A in the mixture,
but are at such a low concen tration so as not to constitute a hazard, should be explicitly identified as outside the scope of PSM‘s coverage.

2(I)( e) Should EPA, OSHA, and PHMSA initiate rulemaking, policy changes, or guidance to account for human factors in process safety, managem ent of change, facility operating procedures, incident investigation, training, process hazard analysis, and other elements? If so, please provide specific recommendations on how the agencies should better address these? OSHA‘s RFI discusses and requests c omment on additional management

- system elements.

Additional Steps Need Not Be Taken To Account For Human Factors

ACC notes that OSHA interpretation letters, along with existing regulatory language, are clear regarding how to ―account for human factors.‖ Additional rulemaking is not necessary. Beyond OSHA, tools exist to help employers account for human factors. For example, CCPS

, Mary Kay O‘Connor Process Safety Center (MKOPSC) , and consulting companies all provide guidance and training on hu man factors and how to address them within existing process safety elements. ACC strongly believes that no additional rulemaking can occur without a showing of need, and no such need exists here where effective information and training already is utilized
and available.

2(I)( g) Would it be beneficial for the agencies to develop and publish guidance for employers or operators on conducting root

- cause analysis following significant incidents or releases? Root

cause analysis involves identifying the system ic causes of incidents as opposed to the immediate causes. EPA, OSHA, and PHMSA plan to determine what level of root

- cause analysis is appropriate and feasible.

ACC Cautions Against Publishing Guidance And, If Published, Encourages Industry Input

ACC does not believe that new guidance is required on conducting root

- cause analysis following significant incidents or releases. Although not explicitly required, root

- cause analyses are already conducted under PSM for incident investigations under Section 1 910.119(m) as well as Responsible Care. Further, numerous private sector resources are available for root

- cause methodology training.DB1/ 78326798.1 13

Moreover, ACC notes that we discourage imposing any new substantive requirements through enforcement or guidance wit hout the benefit of APA notice and comment. If the EO Working Group develops guidance on root

- cause analyses, ACC would appreciate the opportunity to provide input. ACC believes that we would have valuable input based on the practical experiences of our members.

2(I)(h) Would it be beneficial for OSHA to develop and publish PSM guidance for small businesses, particularly those that handle highly hazardous chemicals that are not the employer’s primary product? Small businesses often lack the resources and expertise of larger businesses for PSM elements such as training and process hazard analysis, and may require additional consultation or guidance from OSHA in order to meet PSM requirements. Businesses that handle highly hazardous chemicals that are not the facility‘s primary product may similarly lack PSM expertise and require special guidance.

Similarly Here, ACC Cautions Against Any Rulemaking Through Guidance And Encourages Industry Input

First, ACC again notes that it categorically o pposes any such back

- door rulemaking by imposing new substantive requirements through enforcement or guidance. No guidance can be given the weight of rules, which allow the opportunity for stakeholders to have any input through APA rulemaking . If OSHA un dertakes an effort to develop and publish PSM guidance, ACC would appreciate the opportunity to provide input. OSHA also should collaborate with other trade organizations and groups such as CCPS and MKOPSC. ACC believes that OSHA would
benefit from these groups‘ input to understand the practical challenges that employers face.

2(I)( f) Should EPA, OSHA, and PHMSA initiate rulemaking, policy changes, or guidance to use existing leading and lagging indicators to better evaluate performance over time? If so, please provide recommendations on how the agencies may address this and what indicators are most meaningful. An indicator is any metric that can be used, modeled, or trended to predict future events. Lagging indicators may include frequency of injuri es or incidents. Leading indicators include frequency of maintenance orders, frequency of maintenance orders completed late vs.

on

- time, number of equipment inspections, or percentage of sampled management of change orders that satisfy regulatory/internal compliance. OSHA‘s RFI also discusses and requests
comments on this issue.

Additional Management

- System Elements, Particularly Those Based On Leading And Lagging Indicators, Need Not And Should Not Be Added

OSHA noted in the RFI that CCPS recommends additional management

- system elements such as Conduct of Operations, PSM Metrics, and performing periodic Management Reviews of PSM programs. As explained in ACC‘s response to OSHA‘s RFI ( Exhibit 1 at Change Option 6)

, each of these CCPS additional elements are supportive management tools, which are applied to improve the efficacy of the existing elements in the OSHA PSM standard. They do not create a work product of their own, and therefore are inappropriate in the performance

- based PSM
standard. ACC agrees that these types of cultural process safety elements may lend themselvesDB1/ 78326798.1 14

to individual organizational continuous improvement actions. However, such elements are not well suited to prescriptive regulation or to consistent, rational enforcement b y government agencies. They would be ineffectual and confusing as regulatory requirements, and, as such, should not be added to the current regulations.

ACC also notes that no agency has provided any evidence indicating that the existing PSM regulation has not adequately included process safety elements necessary to develop an effective performance

- based PSM system, and ACC believes that no such evidence e xists. OSHA‘s RFI cited incidents where existing management system elements were not adequately performed. These examples, however, demonstrate a problem with implementation and enforcement; they do not constitute evidence of the need for additional elem ents. Imposing unnecessary added regulations on all covered employers ignores the root problems

— that certain outlier organizations have chosen not to address regulations already in place in their entirety through the implementation and maintenance of exis ting regulatory process safety management elements, or perhaps do not realize that they are covered by the regulation.

Furthermore, lagging PSM metric indicator collection and evaluation should not be required by regulation. While lagging indicators ma y provide insight into an organization‘s past process safety performance, there are limits to how this data can be utilized as a meaningful measurement and comparison point. Organizations like ACC, International Council of Chemical Associations (ICCA), Am erican Petroleum Institute (API), AFPM and CCPS have been working to standardize and harmonize process safety metric collection and analysis to provide consistency in reporting; however, this standardization has not yet come to fruition and may not
be achi evable. ACC would support a single, global, harmonized set of process safety lagging indicators that can be applied by chemical manufacturers worldwide when such a set is developed. The advantages of a single scheme are numerous and include simplified re porting and benchmarking, teachable experiences that can be disseminated across all facilities, continuous process safety improvement, and mitigation and elimination of risks. However, such a harmonized set of metrics does not exist at this point, and eve n if such a set is developed, ACC does not see the need for a regulatory requirement.

In addition, leading PSM metrics cannot be effectually regulated. Even more than for lagging metrics, leading metrics simply do not lend themselves to standardizatio n and cannot be successfully employed across organizations or industries, as they tend to be very specific to an organization and often to an individual site. By way of comparison, occupational safety lagging metrics such as days away and total recordable injuries

— which ACC and other organizations still have struggled to standardize across the industry

— tend to be numerical and quantitative in nature, whereas leading indicators such as behavioral

- based audits, employee observations, and employee participati on in safety committees are extremely subjective and site

- specific. These metrics cannot be universally applied or regulated. In sum, ACC believes that the existing PSM management

- systems elements required by OSHA in 29 C.F.R. § 1910.119 represent the ke y components needed for a successful PSM program, and additional requirements suggested by OSHA in its RFI would not provide any corresponding safety benefits and are not amenable to regulatory implementation

. Finally, ACC notes that when EPA promulgated 40 C.F.R. Part 68, the EPA aligned Section 68.15 of the RMP rule (requiring facilities to develop a management system) with § 1910.119 PSM elements. ACC believes that OSHA should consider the EPA‘s precedent andDB1/ 78326798.1 15

maintain consistency between PSM and RMP p rogram elements. This would drastically reduce the burden on employers complying with two distinct programs.

2(I)( j) Should inspector and compliance officer training be expanded to include best practices and to improve process safety beyond regulatory requirements? EPA, OSHA, USCG, and PHMSA recognize that specialized training would allow inspectors and compliance officers to go beyond enforcement and recommend additional best practices to regulated entities to protect their workers, the surrounding com munity, and the environment. USCG already plans to enhance training and provide additional guidance to shippers of products.

ACC Cautions That Training Beyond Regulatory Requirements Would Lead To Inconsistency In Enforcement

While in theory this concept sounds like an attractive option, ACC believes that training that does not specifically support inspection and compliance functions (i.e., training beyond regulatory requirements) will only serve to confuse the issue and dilute already scarce resou rces. There are many other, more efficient avenues for companies to obtain Good Engineering Practice information than as a part of an enforcement or inspection visit. Agencies should consider adding such training only as it supports their primary functio n of inspection and compliance.

ACC also would like to note the distinction between inspection/regulatory compliance and improvement beyond regulations. Due to the nature of performance

- based regulations, if any training is conducted, there must be cle ar separation between (1) regulatory expectations and (2) continuous improvement and best practices. Without clear separation, some regions may insist on and/or enforce a ―best practice‖ that is not in fact required, while other regions may take
a differe nt approach or focus on a different practice that they think is ―best.‖ Ultimately, only the employer, which has intimate knowledge of its own facilities, knows what constitutes ―best practices.‖ This is the reason that PSM, for example, was written as a performance

- oriented standard in the first place. Programs such as VPP have been successful in promoting best practices and improvements beyond regulatory compliance; however, even these programs have had difficulties with consistency of requirements fro m region to region. The confusion (not to mention subsequent litigation) that would come from trying to combine enforcement/compliance with continuous improvement would be a counterproductive distraction.

2(I)( l) Should EPA, OSHA and PHMSA evaluate the i mplementation of a “safety case” regulatory model to reduce risks in complex industrial processes as low as reasonably practicable? This option could be used to replace, or in the environmental context supplement, existing PSM and RMP safety requirements w ith a system that requires employers to 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. The safety case regulatory model provides employers with increased flexibility and allows regulators to set health and safety standards that are proportionate to the risk involved. For example, a description of the United Kingdom‘s safety case regulation can be found at http://www.hse.gov.uk/comah/

. The agencies recognize this would be a major departure from the current regulatory model, and it would likely require legislative action to implement.DB1/ 78326798.1 16

ACC Believes That A Safety Case Regulatory Regime Would Detract From Safety And Is Wholly Unjustified

ACC has strong concerns regarding the establishment of a safety management regulatory framework based on ―safety case‖ principles. ACC disagrees with the E O Working Group‘s
statement that the ― safety case regulatory model provides employers with increased flexibility and allows regulators to set health and safety standards that are proportionate to the risk involved.‖
ACC believes that the safety case frame work would not actually achieve the desired safety benefits for covered workplaces. A s fully explained in our January 3, 2014 comment to the CSB in response to CSB Regulatory Report No. 2012

- 03

- I

- Ca (attached hereto as Exhibit 2) (CSB Report), 4 ACC believes that its members, through OSHA‘s current PSM standards and voluntary programs such as Responsible Care, already address the continuous improvement goals set forth in the CSB Report to justify the safety case regime. We have significant conce rns that the drastic changes that would come with a safety case framework would result in a wide variety of practical problems if implemented. As outlined in detail below in Subsections A to F, ACC believes that a safety case regime ultimately would detra ct from worker safety and create an atmosphere of uncertainty and confusion for employers and regulators alike.

A. ACC Has Significant Legal Concerns (Including Due Process Concerns) Regarding Any Recommendation To Implement New Requirements Without
Rulemaki ng

A safety case regime would not be a mere addition to or engagement of current process safety management regulations. It would be a complete overhaul of the current method used, despite the lack of any evidence that a safety case program would provide any process safety improvement over the existing regulations. ACC appreciates the EO Working Group‘s comment
that ― agencies recognize this would be a major departure from the current regulatory model, and it would likely require legislative action to impl ement.‖ ACC has s ignificant legal concerns, including due process concerns, with any recommendation to implement safety case requirements without rulemaking. Specifically, the CSB Report included the following recommendation: ―Ability to adapt and imple ment safety requirements in response to newly identified hazards, advances in technology, lessons learned from major accidents, and improved safety codes without the need for new rule

- making .‖ See Exhibit 2, CSB Report at 90 (emphasis added); see also id. at 89 (―The safety case provides the adaptability necessary to keep current with improving standards and advancing technology, without requiring lengthy and often unproductive rulemaking on the part of the regulator .‖ (emphasis added)); id. at 48 (―The

cu mbersome rulemaking process and lack of flexibility that has resulted in stagnant and static OSHA standards can be contrasted with the structure of the safety case regulatory regime, which facilitates adaptability and enables the regulator to improve indus try safety performance and practices without requiring a major rule change .‖ (emphasis added)).

The CSB press release issued on December 16, 2013 in connection with the release of the CSB Report provided further clues as to this approach: ―Under a saf ety case system, changing safety standards, new technologies, and findings from accident investigations are required to be

4 Although the present comment to Option 2(I)(l) is tailored to the EO Working Group‘s specific solicitation for public input, much of the comment is based on ACC‘s previously submitted comment to the CSB. See Exhibit 2.DB1/ 78326798.1 17

incorporated by facilities.‖ The CSB further stated in this press release that one of the justifications for this approach was that it had issued a number of process safety regulations from its investigations, yet ―none of these important regulatory recommendations have been implemented.‖ See CSB Press Release (Dec. 16, 2013). In effect, the CSB approach would grant unprecedented lee way in setting requirements beyond the current legislative checks and balances, and would open the door for short

- circuiting the rulemaking process altogether.

This recommended back

- door rulemaking is of grave concern to ACC and the general public. AC C members would be faced with the obligation to implement ―advances in new technology‖ without any regulator having to determine through APA rulemaking whether there is significant risk and without having to establish the necessary feasibility requirements . ACC members would then be obligated to follow these new requirements without the opportunity to participate in the APA rulemaking process (and presenting any input and/or practical issues with any such proposal). ACC has the same concerns regarding the obligation to implement ―improved safety codes‖ or ―changing safety standards‖ without the regulator establishing the need for such requirements under APA rulemaking.

The CSB Report also suggested that any employer subject to the recommended safety

ca se framework, if implemented, would automatically be required to follow a wide variety of new requirements without the opportunity to participate in any transparent rulemaking process, and without clear direction as to which of the new technology, accident , or safety recommendations would actually have to be implemented by employers. If this regime were implemented without rulemaking, employers would not know who sets deadlines for implementation and compliance. Also unclear is what agency would enforce t he regime and actually evaluate compliance with these recommendations. Furthermore, ACC cannot be required to follow each prescriptive requirement from consensus standards without the opportunity to participate in the rulemaking process. Without proper r ulemaking procedures, employers would not know who would decide what consensus standards, if any, would need to be followed, or what recommendations in the CSB Report are mandatory, given the CSB‘s lack
of enforcement mechanisms.

ACC completely disagre es with the discussion in Appendix B to the CSB Report wherein the CSB contended that the safety case regime would somehow allow changes to process safety requirements without APA notice and comment rulemaking. See Exhibit 2, CSB Report at 105

- 06. It is one thing for an agency to issue guidance to provide more details on compliance to existing regulatory requirements, and yet another to suggest (as the CSB does in its Report) that completely new substantive requirements, based on new technology, incident investigation reports, and safety codes (such as consensus standards) could be imposed on employers without the opportunity and due process rights to participate in its development. ACC further disagrees with the CSB‘s conclusion in Appendix B that the sa fety case regime (as proposed by the CSB) is somehow consistent with the Regulatory Flexibility Act and its underlying principles. The purpose of the Regulatory Flexibility Act is to ensure adequate opportunity to participate in transparent rulemaking. S ee 5 U.S.C. §§ 601 et seq.DB1/ 78326798.1 18

B. A Safety Case Regulatory Regime Represents A Drastic Policy Change From The Current Regulatory Framework With No Corresponding Benefits For Workplace Safety

The CSB Report described the safety case regulatory regime as a ― rigorous prescriptive and goal

- setting regulatory approach applied globally both onshore and offshore.‖ See Exhibit 2, CSB Report at 9. Under this regime, ―[a] written case for safety, known as the safety case report, is generated by the duty holder and is generally rigorously reviewed, audited, and enforced by highly technically competent inspectors with skil l sets familiar to those employed by the industries they oversee.‖ See id. Moreover, ―[i] n order for the facility to begin operation or remain in operation, the regulator must  ̳accept‘ the facility‘s safety case report.‖ See id. at 39. This CSB‘s propo sed framework would shift the burden to the regulator to review and evaluate a
wide set of site

- specific information, which regulators will be ill

- equipped to handle, without any real objective measures. As fully explained in our comment to the CSB ( see E xhibit 2), ACC believes that the current framework of PSM is better suited to enhance workplace safety. In fact,
under the current well

- recognized regulatory framework, which provides employers with the necessary discretion to tailor safety processes to t he specific conditions of each worksite, ACC members supplement the PSM elements and implement a p rogram that includes many of the elements in the safety case framework.

Under OSHA‘s PSM standard, an employer team with expertise in engineering and proc ess operations must address the hazards of the process, identification of prior incidents that had potential for catastrophic consequences, e ngineering and administrative controls (and their interrelationships and the consequences of their failures, includ ing a qualitative evaluation of possible safety and health effects on employees), facility siting, and human factors. See 29 C.F.R. § 1910.119(e)(3). After notice and comment rulemaking, OSHA modified Subsection 1910.119(e) ― so that employers are not required to implement every recommendation offered by a Process Hazard Analysis Team ,‖ although employers must consider all recommendations. See Preamble to Process Safety Management of Highly Hazardous Chemicals, Explosives and Blasting Agents, 57 Fed. R eg. 6356

- 01 ( Feb. 24, 1992 ) (PSM Preamble) (emphasis added). As clearly stated in the PSM Preamble, ―[i]t is critically important that a PHA Team have freedom to make broad recommendations, at risk of being wrong . . . . [W]hen a team recommendation is
i ncorrect, the employer can analyze it and then document in writing why the recommendation is not being adopted or is being adopted with modification.‖ See id. (emphasis added). OSHA intentionally delegated the responsibility to evaluate and reject or imp lement site

- specific recommendations to the employer. The employer, after all, is most familiar with the site, safety concerns, and practical hurdles to and consequences of operational changes.

In contrast to the current OSHA programs, under the propo sed safety case regime, regulators who are not intimately familiar with technical aspects of the worksite or involved in process safety analyses would make the ultimate decision to accept or reject a safety program. Again, the CSB Report‘s safety case reg ime requires up

- front ―acceptance‖ from ― highly technically competent inspectors with skill sets familiar to those employed by the industries they oversee.‖ See Exhibit 2, CSB Report at 9. General industry knowledge from inspectors, however, may not be e nough; ACC respectfully submits that individual facilities, with onsite safety experts and engineers who are intimately familiar with the jobsites, have the most sophisticated understanding of site

- specific safety conditions. ACC is concerned that a safet yDB1/ 78326798.1 19

case regulatory regime ultimately would rob employers of the necessary discretion over how best to handle safety on their particular worksites. Prior acceptance by inspectors with unknown backgrounds who are unfamiliar with the jobsites would impede emp loyers‘ ability to make safety decisions quickly and effectively. ACC believes that shifting responsibility to approve safety decisions from employers to inspectors, who inevitably will be less familiar with the jobsites, would be ill

- advised.

C. Employ ers

— Not Regulators

—Are In A Better Position To Implement Many Of The Elements Of The Safety Case Regime

The CSB justifies its recommendations for the safety case regulatory framework based on an assumption that the current PSM framework is ―reactive‖ and ―activity based,‖ and that the PSM has become static and does not address the development of new technologies, new safety approaches, and ―advancing best practices.‖ See Exhibit 2, CSB Report at 9. The CSB contends that the current system is so focused on specific tasks and activities that it does not drive the
achievement of continuous risk reduction. See id. Thus, the CSB advances the argument (relying on an unsupported third

- party report) that the PSM system is a ―minimum cost‖ and ―compliance based approach,‖ in which employers purportedly take the approach that if it is not a ―regulatory requirement,‖ then they will not actually comply. See id. at 30. The CSB also raises the concern that the PSM regulatory framework does not direct employers to develop a holistic safety management system approach to process operations. See id. at 29

- 32.

In the alternativ e, the CSB outlines what it describes as the ―key features‖ of an ―effective major accident prevention‖ approach such as the safety case regime: (1) duty holder safety responsibility, including a written case for safety; (2) continuous Risk Reduction to A s Low As Reasonably Practical (― ALARP‖); (3) adaptability and continuous improvement; (4) active workforce participation; (5) Process Safety Indicators that drive performance; (6) regulatory assessment, verification and intervention; and (7) an independent , competent, well

funded regulator. See id. at 36.

ACC strongly disagrees with these purported observations and conclusions. The chemical industry, without the direction of regulators, continues to challenge its understanding of process safety throu gh the ongoing development of hazard identification and analysis tools. For example, the industry has gone beyond the requirements of PHA through enhanced
self

- analytical processes with layer of protection analyses (―LOPAs‖), fault tree and event tree

ana lyses, as well as full

- blown quantitative risk analyses.

Since promulgation of the Process Hazard Analysis (PHA) and PSM, the chemical industry continues to strive for improvement. For example, ACC and its members already have taken the lead in develop ing a new paradigm of process safety that not only complements the current regulatory structures (PSM and RMP), but goes beyond the current regulatory requirements to require the broad framework of a safety management system. This system
results in a cult ure of continuous improvement, all without the intervention of a regulator and under the discretion of the employer, who has better understanding of the specific workplace conditions. ACC requires each member to achieve certain goals in the Responsible Ca re ® Management System and the RC14001 Technical Specifications, including the following: (1) to make continual progress toward the aim of no accidents, injuries, or harm to human health or theDB1/ 78326798.1 20

environment; (2) to design and operate facilities in a safe, s ecure, and environmentally sound manner; (3) to install a culture throughout all levels of member organizations to continually identify, reduce, and manage process safety risks; (4) to support research on the health, safety,
and environmental effects of me mber products and processes; and (5) to communicate product, service, and process risks to our stakeholders. Conformance to these goals and practices is confirmed through voluntary third

- party audits conducted on ACC members.

Specifically, each ACC membe r must commit to implementing and adhering to the following process safety management practices:

(1) Leadership and Culture

– Senior management and leadership are committed to establishing and communicating process safety as a core value and enforcing hi gh standards of performance at all levels within the organization. Company leadership also promotes and develops a process safety culture within the organization, encouraging openness to raise concerns and identify opportunities for improvement.

(2) Acco untability

– Process safety roles and responsibilities across the organization are clearly defined and include an expectation to identify, and authority to respond to, process safety concerns. Senior leaders are held accountable for process safety perform ance, while employees understand the importance of process safety as it applies to their jobs and are responsible for following and contributing to the work processes to achieve improvement in company process safety performance.

(3) Knowledge, expertise an d training

– Process safety competency requirements are established and executed for management, engineering, and operational personnel, as
well as contractors and third

- party service providers, commensurate with the activities performed.

(4) Understandin g and prioritization of process safety risks

– Member companies identify and understand the hazards and risks of their processes and implement systems for documenting and accessing comprehensive and current information on process

- related
hazards and risks to enable informed decision

- making.

(5) Comprehensive process safety management system

– Member companies design systems to manage and mitigate identified risks with adequate safeguards. Management of process safety considers passive controls; engineering controls; operational controls; inherently safer approaches; inspection, maintenance, and mechanical integrity programs; management of change procedures; and scenario planning.

(6) Information sharing

– Member companies establish processes fostering two

- way flow of information between management, employees, contractors and other stakeholders to share process safety information, ensuring that experiences from process safety reviews, inspections, audits, and incident and near

- miss investigations are shared, as relevant, across the company in a timely manner.

(7) Monitoring and improving performance

– Senior management and leadership continually monitor process safety performance through routine evaluation of process safety management systems, independent of regulatory audits, to confirm that the desired results are achieved, using appropriate leading and lagging indicators. Results areDB1/ 78326798.1 21

reviewed at planned intervals to determine progress against process safety performance expectations and to take action to i mprove performance when needed.

Under the Responsible Care ® program, each ACC member is required to demonstrate compliance with each of these elements. Thus, members not only already implement so

- called ―key features‖ identified by the CSB as the just ifications for the safety case proposal, but, in fact, go beyond what the CSB suggests in its safety case proposal.

For example, the CSB states that one of the ―key strength[s]‖ of the safety case regime is that it provides the regulator ―with the tools to drive continuous improvement‖ to reduce risks to ALARP, rather than ―focusing on compliance with activity

- based reg ulatory requirements.‖ See Exhibit 2, CSB Report at 43. Yet, ACC members already implement a wide variety of steps to achieve the goal of continuous improvement and risk reduction to ALARP; those steps include the development and implementation of a comp rehensive process safety management system to manage process risks and the development of a safety culture to manage those same risks. In fact, ACC members already undergo voluntary audits to demonstrate compliance with this program. ACC believes that it s members are best situated to take the lead role in developing and overseeing programs suited for their particular facilities, rather than the approach envisioned by the safety case regime where the regulator (without any history or knowledge of a particu lar facility) must review and oversee the program. Further, ACC does not agree with the CSB regarding the need to completely redesign the approach to process safety where ACC members already have a program in place addressing the ―key features‖ cited by t he CSB to justify the safety case regime.

D. Regulators’ Review Of Subjective Criteria Without Objective Benchmarks Under The Recommended Safety Case Framework Would Be Difficult To Implement And Follow

The safety case regime described in the CSB Report would require inspectors to review a safety case for ―acceptance‖ through use of subjective criteria that lack objective benchmarks. Although the report calls for ― highly technically competent inspectors with skill sets familiar to those employed by the industries they oversee,‖ inspectors‘ ability to accurately evaluate these factors, and to do so consistently across local offices of regulators and facilities, is questionable.
These factors are inherentl y subjective and difficult to review without extensive training and knowledge of the site, the organization, and its history.

Allowing inspectors to evaluate such subjective criteria raises practical issues over what various regulators will require. Currently, the standard that would be imposed by investigators for approval is vague and provides little notice of what constitutes compliance. For example, the anticipated application of the ALARP standard by regulators is extremely unclear

—how will
ins pectors evaluate whether a facility has satisfied the ―reasonably practical‖ standard? Will different offices of the regulatory agency have differing positions on what is required to be in compliance with these inherently subjective factors? How would an inspector be able to ascertain ALARP standards without a roadmap for tracing the unit‘s assessment process for each element under question? An employer, and not a regulator, is in the best position to know what is reasonably practical within the framewor k of its own risk evaluation process, experience, incident history, engineering assessment, and other self

- analytical tools.DB1/ 78326798.1 22

Along the same lines, the CSB does not explain what standard a regulator must follow before an employer‘s safety case is ―accepte d.‖ Unless quantified and/or delineated criteria are published, the regime will be ineffective and provide little notice as to what is actually required of employers. There will be a strong risk that disparate, incongruous ―acceptable‖ solutions will
exi st, depending on the individual inspectors involved, simply because there are no set standards. In short, the safety case framework purports to be a prescriptive regime that requires employers to meet a minimum benchmark of acceptability, yet the CSB Repo rt fails to set forth any clear benchmarks or articulate how such benchmarks would actually be developed and ultimately
communicated to stakeholders.

This uncertainty created by the CSB proposal raises legal issues as well. A regulation is ―unconstit utionally vague under the due process clause of the Fifth or Fourteenth Amendments if it  ̳forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.‘‖ G a. Pac. Corp. v. Occupational Safety & Health Review Comm’n , 25 F.3d 999, 1005 (11th Cir. 1994) (citation omitted) (finding the phrase ―obstructs forward view‖ to be insufficiently defined, and therefore unconstitutionally vague); see also Diamond Roofing Co. v. Occupational Safety & Health
Review Comm’n , 528 F.2d 645, 649 (5th Cir. 1976) (―[A]n occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires.‖). Simply put, ACC believes that the elements o f the safety case regime that an employer is required to follow before the safety case is ―accepted‖ by the regulator (to allow the employer to use or operate its facility) are unacceptably subjective and unclear. The entire essence of the CSB proposal fo r safety case is succinctly stated on page 37 of the Report: ―the onus is on the duty holder [i.e., employer] to prove to the regulator that the company‘s processes, methodologies used to assess risks, and reasoning for choosing one control over another h ave substantially reduced risks to as low as reasonably practicable (ALARP), or equivalent. ‖ See Exhibit 2, CSB Report at 37 (emphasis added). In practical reality, employers would simply not have notice as to what is required of them. Employers

— includi ng ACC members

— would be subject to oversight by a regulator (no matter how well trained) with less of an understanding of the wide range of complex issues at a particular site at stake in the development of the appropriate process safety.

E. No Agency Should Move Forward With A Safety Case Regime Without A

Realistic Cost Assessment

Finally, ACC emphasizes the huge financial and personnel commitments necessary to implement a safety case regime, not to mention the resource commitment required to ensure that such a regime is in any way effective. For example, the CSB Report stated that the safety case regime could only succeed if the relevant state or federal agency undertook significant commitments to its implementation, including:

 an ―independent, w ell

- funded, well

- staffed, technically competent regulator‖; and

 a compensation system to ensure that the regulator can attract employees ―with the necessary skills and experience to ensure regulator technical competency.‖
See Exhibit 2, CSB Report at 90

- 9 1 (outlining recommendations to California and OSHA). A safety case program could only work if fully staffed with experts to implement the regime‘sDB1/ 78326798.1 23

procedures and set its limits, including staff with appropriate technical backgrounds and industry experien ce to evaluate and approve Safety Case Plans.

Yet, similar upfront inspection goals have failed due to resource limitations, such as, for example, the inability of the EPA to conduct proactive audits of RMPs. See Exhibit 2, CSB Report at 62

- 63 (the ―E PA has not effectively implemented the audit and inspection elements‖ of RMP; according to IG report, 50 percent of high

- risk RMP sites have never received an on

- site inspection and over 65 percent of all RMP sites have never received an on

- site inspection since the program began in 1999). ACC understands that there are approximately 14,000 RMP sites in the United States, and, of note, ACC believes that the number of refineries and other facilities envisioned to be covered under the CSB‘s proposed safety c ase regime would be even greater. At the end of the day, ACC believes that the lack of staff sufficiently trained to properly evaluate and enforce such complex regulatory requirements would lead to a chaotic and ineffective regulatory regime, and would do om this program to failure.

F. ACC Has Seen No Persuasive Justification For A Safety Case Regulatory Regime

ACC has seen no persuasive evidence to support the view that a safety case regime would be safer than enforcement of the current regulation. To move forward with a safety case regime, agencies should establish what deficiencies in the current regulations, if any, the safety case regime would address. ACC remains skeptical that quantitative, scientifically

- based support for the safety case regime exists.

For example, the CSB Report maintains that ―r egulatory approaches similar to the safety case regulat ory regime, which require risk reduction to ALARP or equivalent, have been implemented in the nuclear sector by the Nuclear Regulatory Commission (NRC) and the aerospace sector by NASA.‖ See Exhibit 2, CSB Report at 11; see also id. at 34

- 35 (explaining

t hat (1) the NRC has adopted a performance

- oriented regulation with a license requirement that includes overall goals to reduce risks to as low as reasonably achievable, or ALARA, and (2) NASA utilizes the goal of a safety system that reduces risk to as saf e as reasonably practicable, or ASARP). Drawing conclusions for chemical facilities and refineries from NASA‘s and/or the NRC‘s experiences with safety case regimes, however, is inappropriate. NASA and the NRC deal with extremely narrow and specific tech nologies, equipment, and operations, involving high consequence of failure on a scale completely different than that presented by the chemical industry. NASA‘s and NRC‘s coverage is in sharp contrast to the broad

- base and wide range of
facilities of ACC m embers, with vast differences in size, scope and operation. What might work in a narrowly defined operation, such as NASA‘s role in space exploration or the NRC‘s role in oversight of the nuclear power industry, simply would not work in the environment wi thin which ACC members operate.

Moreover, the incidents listed in the CSB Report as justifications for the imposition of the safety case regime largely involve accidents that are in dispute and/or otherwise inapplicable and insufficient to support t he shift to this completely different regulatory approach. For example, the CSB Report Appendix A lists ―Significant Petroleum Refinery Incidents in 2012,‖
yet ACC remains skeptical that this list appropriately captures so

- called significant petroleum
ref inery incidents. Based on information provided by our members, we understand that severalDB1/ 78326798.1 24

incidents listed are minor or highly disputed. ACC would like more information regarding how the list was compiled and the extent to which it influenced policy and/ or supported an argument for a safety case regime. ACC believes that these incidents cannot support the imposition of the burdensome safety case regulatory regime.

2(I)( m) Should the agencies evaluate the implementation of safer alternatives and best practices, and what are the best methodologies for accomplishing this? Safer alternatives and practices involve improving safety by reducing or eliminating hazards inherent i n industrial processes. These alternatives and practices may involve reducing the amount of a hazardous substance kept

on

- site, or entirely eliminating the hazardous chemical by utilizing an alternative chemical pathway or safer intermediate chemicals. Pr omoting the use of safer alternatives and practices could occur through industry programs (e.g. Responsible Care, ChemStewards, and Responsible Distribution), by issuing alerts and guidance under EPA‘s RMP program and OSHA‘s PSM
standard to increase knowle dge and awareness of industry standards, through development and broad availability of a resource center where process safety experts share safer alternative techniques, and through potential rulemaking. Several stakeholders also have suggested incorporat ing ―inherently safer technologies‖ into risk and process safety programs and the agencies are requesting additional information on how this would be defined, accomplished, and measured. In addition, the agencies are requesting comment on the potential co sts and benefits of implementing such an approach as opposed to other approaches. 5

While ACC Encourages Voluntary Consideration Of Inherently Safer Technologies, ACC Strongly Opposes Its Incorporation Into Regulation

ACC and our member companies proact ively work to continuously improve process safety standards and practices with comprehensive management systems that include consideration of inherently safer technologies. Process safety is only one part of safety. The business of chemistry has a cultur e of safety going back many years. The nature of our operations requires it. This culture of safety has created what Labor Department data reveals is one of the safest industries in the United States. As a result, ACC‘s Responsible Care companies
have a worker safety rate that is five times better than the U.S. manufacturing sector as a whole, and nearly three times better than the business of chemistry overall. ACC member companies have reduced the number of safety incidents that result in a product sp ill, fire, explosion or injury by 58% since 1995. This commitment to safety is expressed through Responsible Care®, our industry‘s initiative for improving performance; our adherence to, and support for, governmental standards and research; and our longst anding and effective partnerships with local, state and federal government agencies. ACC believes that the EO Working Group should promote the use of safer alternatives and practices by (1) encouraging industry programs (e.g., Responsible Care,
ChemStewar ds, and Responsible Distribution), (2) issuing alerts and guidance under EPA‘s RMP program and OSHA‘s PSM standard to increase knowledge of industry standards, and (3) developing resource centers where process safety experts can share safer alternative tec hniques and approaches. These suggestions would be far more effective and address site

- specific needs better than what could be accomplished through additional regulation.

5 The comment to Option 2(I)(m) also applies to Option 1(e), which asks for input regarding safer alternatives and best practices for ammonium nitrate.DB1/ 78326798.1 25

ACC believes that a regulatory approach focusing on safer alternatives would be

c ounterproductive. The EO Working Group is charged with examining best practices to reduce safety and security risks in the production and storage of hazardous chemicals, including the use of safer alternatives. To meet this charge, instead of incorporati ng safer alternatives, the EO Working Group should involve throughout its efforts stakeholders who possess the requisite knowledge and experience to help identify best chemical risk management practices and to establish the definition and scope of what is considered a ―safer‖ alternative, when compared to an existing process or chemical. As described in the CCPS and AIChE Report 6 on the definition of IST, ―safer‖ only has a meaning when placed in proper context

— factors such as risk shifting,
unintended con sequences, feasibility, and economic impact must be considered. This definition, along with other well

- established industry references on IST, should be used in the EO Working Group‘s discussions of safer alternative best practices.

In addition, the sugg estion that legislation is needed to require the use of IST irrespective of the cost, risks, or an engineering analysis raises concerns. IST decisions must be process

and/or site

- specific, feasible, and avoid shifting risk. In many cases, regulation

- bas ed mandatory IST policies are not feasible because they do not consider the numerous factors related to processes, facilities and society at large. As such, many proposed regulatory approaches have failed to address the potential for trading one risk for another. A regulatory program focused exclusively on eliminating a safety hazard would overlook other important considerations for a process change. While IST is a widely recognized chemical engineering philosophy, no methodology or relative comparisons are available to apply IST to a regulatory framework.

EPA understood the complexity of IST decisions when it promulgated the regulations for the RMP Rule. EPA stated that it did not believe that an IST requirement would produce additional benefits beyon d those existing under the general program structure. 7 EPA acknowledged that assessment of inherently safer design alternatives has the greatest benefit in the development of new processes. Industry generally examines new process alternatives to
avoid th e addition of more costly administrative or engineering controls to mitigate a design that may be more hazardous in nature. Although some existing processes may be superficially judged to be inherently less safe than other processes, EPA believed these pr ocesses could be safely operated through management and control of the hazards without spending resources searching for unavailable or unaffordable new process technologies. If EPA is considering changing its view, stakeholder input would be essential.

Inherently safer approaches or safer alternatives have been and will continue to be considered by facilities as a matter of course. In fact, one of the key elements under ACC‘s Responsible Care Process Safety Code requires ACC member companies to consider safer alternatives as one of many risk reduction measures when conducting a risk assessment. The facility operator is in the best position to have a comprehensive picture of what may or may not

6 Center for Chemical Process Safety , The American Institute of Chemical Engineers For Chemical Security Analysis Center Science & Technology Directorate, U.S. Department of Homeland Security, Final Report: Definition for Inherently Safer Technology in Production, Transportation, Storage, an d Use (July 2010).

7 See EPA Preamble to Final Rule, Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7), 61 Fed. Reg. 31,668 to 31,730 ( June 20, 1996), available at http://www.gpo.gov/fdsys/pkg/FR

- 1996

- 06

- 20/html/96

- 14597.htm

.DB1/ 78326798.1 26

work and how the facility environment will be impacted by pr ocess changes. Companies must be permitted to continue to use all risk management tools and options at their disposal, and the consideration of available options must be placed in the context of the complexities of their unique operating environments. Be cause of these complexities, regulating the use of ―safer alternatives‖ is not feasible. No one regulatory program addresses the holistic safety and security environment of a given facility. No agency can fully appreciate the entirety of a facility‘s ope rations, and therefore no agency can effectively regulate use of ―safe alternatives.‖

For example, EPA, under RMP, is concerned with preventing accidental releases of hazardous chemicals offsite and mitigating the consequences of such releases. Separately, OSHA‘s PSM is concerned with preventing or mitigating the consequences of catastrophic releases of industrial processes in the workplace. While it is important to recognize that there may be overlap between the programs, they, by design, do no t address the same issues. Therefore, any ―safer approach‖ requirement that might be proposed to enhance any one of these programs would have to be limited in scope. Taken together for individual employers, however, the array of existing regulatory progr ams encourages facilities to consider and implement site

specific safer alternatives where necessary.

In the end, ACC‘s members and industry are committed to chemical safety and recognize IST as one of many potential tools to achieve this goal. See Multi

- Association Letter on IST (attached hereto as Exhibit 3); CCPS Executive Director Scott Berger, Comments to US Senate Environment and Public Works Committee Hearing (March 6, 2014) (attached hereto as Exhibit 4); CCPS Executive Director Scott Berger, Comm ents to the EPA Listening Session (February 27, 2014) (attached hereto as Exhibit 5). Recommendations to require the documented use of inherently safer systems analysis is inappropriate and founded upon erroneous suppositions. IST is a complex concept th at requires a holistic risk assessment approach. Current regulatory programs, as well as corporate practices, already encourage facilities to incorporate IST. As they exist today, OSHA‘s PSM standard, EPA‘s RMP Rule, the U.S. Department of Transportation ‘s (DOT‘s) Hazardous Materials regulations under the Pipeline and Hazardous Materials Safety Administration (PHMSA), and the U.S. Department of Homeland Security‘s (DHS) Chemical Facility Anti

- Terrorism Standards (CFATS) all require operators to comprehens ively examine operations and take all steps necessary to make the processes and environment safe and secure. Creating complex new IST regulations would provide little benefit and may hinder the federal government‘s ability to implement existing safety and security programs by emphasizing IST over other potentially more appropriate process safety and security techniques.

A. Definitions

The term IST encompasses several terms of art, including inherent safety, that are used by experts in the field of process safety. ACC has adopted the definitions of these terms that were developed by DHS‘s Chemical Security Analysis Center ( CSAC ) and CCPS. CSAC and
CCPS ― produced a short, scientific definition of IST‖ as follows:

INHERENTLY SAFER TECHNOLOGY DEFINITION

I nherently Safer Technology (IST), also known as Inherently Safer Design (ISD), permanently eliminates or reduces hazards to avoid or reduce the consequences ofDB1/ 78326798.1 27

incidents. IST is a philosophy, applied to the design and operation life cycle, including manuf

acture, transport, storage, use, and disposal. IST is an iterative process that considers such options, including eliminating a hazard, reducing a hazard, substituting a less hazardous material, using less hazardous process conditions, and designing a pro cess to reduce the potential for, or consequences of, human error, equipment failure, or intentional harm. Overall safe design and operation options cover a spectrum from inherent through passive, active and procedural risk management strategies. There i s no clear boundary between IST and other strategies.

 ISTs are relative: A technology can only be described as inherently safer when compared to a different technology, including a description of the hazard or set of hazards being considered, their locat ion, and the potentially affected population. A technology may be inherently safer than another with respect to some hazards but inherently less safe with respect to others, and may not be safe enough to meet societal expectations.

 ISTs are based on an i nformed decision process: Because an option may be inherently safer with regard to some hazards and inherently less safe with regard to others, decisions about the optimum strategy for managing risks from all hazards are required. The decision process mus t consider the entire life cycle, the full spectrum of hazards and risks, and the potential for transfer of risk from one impacted population to another. Technical and economic feasibility of options must also be considered.

CCPS & DHS, Final Report: Def initions for Inherently Safer Technology in Production, Transportation, Storage, and Use at Section 3.1 (July 2010).

Further, inherent safety is an element of plant design, process and transportation safety, and customer applications. While IST has been implemented within our industry for decades, certain high

- profile incidents have been the catalyst for agency rational ization that inherent safety could provide benefits by minimizing the consequences of a chemical incident. However, by its very definition, ―inherent safety‖ means safety and security elements that are built into a process in the early stages of its life cycle, thereby limiting the need to add these elements as ―layers of safety‖ as a part of the process risk management program. Process risk management, which is illustrated in Figure 1 below, involves ―collective efforts to manage process risks through a wide variety of strategies, techniques, procedures, policies and systems that can reduce the hazard of a process, the probability of an accident, or both.‖ See CCPS Concept Book, Inherently Safer Chemical Processes, A life Cycle Approach, at 11 (2d ed. 20 08).

B. Inherent Safety Strategies

The strategies used in chemical process engineering to reduce or eliminate risks associated with containment of hazardous chemicals or energy are listed below:

1. Minimization/Intensification . Using smaller quantities of hazardous substances within the process. This can be accomplished by a variety ofDB1/ 78326798.1 28 means, such as reducing or eliminating in

- process storage, using fewer pieces of equipment, or using equipment that holds smaller volumes.

2. Substitution

. Replacing a pa rticular material with a less hazardous substance is sometimes possible if the chemistry of the process will allow it. For example, helium, which does not burn, is an inherently safer source of buoyancy for blimps than hydrogen, which is highly combustibl e. Likewise,

water

- based paints are inherently safer than oil (solvent)

- based paints.

3. Moderation/Attenuation . Adopting practices that support less hazardous conditions (such as lower temperature or pressure) or a less hazardous form of
material can be utilized if the chemistry of the process allows it. An example might be the use of a catalyst to lower the temperature of a reaction required
to achieve the same level of conversion.

4. Simplification/Error Tolerance

. Designing to eliminate or tolerate oper ating errors; making the plant more user

- friendly and reliable. A simple example is the redesign of pop tops on aluminum beverage cans so that the tab does not come off when opened, thus eliminating the prospect of the person opening the can (or anyone el se) getting cut by the top. An extreme example, Safety Instrumented Systems, eliminates the interaction of the operator with the process altogether.

See id. at 13. It is important to understand that even when properly implemented, these strategies

canno t reduce process

- related risk to zero, and that ―there are often, and perhaps always, conflicting benefits and liabilities associated with the different options.‖ See id. at 30. Reducing one hazard may create a new hazard and/or increase the magnitude of an existing hazard. This highlights the need for those making IST decisions to have intimate knowledge of all the hazards associated with a process and its alternatives.DB1/ 78326798.1 29

Figure 1. Process Risk Management Lifecycle. Source: CCPS Concept Book, Inherently Safer Chemical Processes, A life Cycle Approach (2d ed. 2008)

C. History Of IST Application

The concept of inherent safety was developed decades ago by an industry chemist. Inherently safer design and technology have long been core elements of process safety, plant design and sound business practices in the chemistry industry. Recent public deb ate around IST demonstrates a fundamental lack of knowledge about the presence of IST throughout the United States chemical industry. The debate also highlights the potential heterogeneity within the industry regarding the application of IST.

EPA and OSHA regulations also drive consideration of inherently safer approaches. OSHA‘s PSM standard and EPA‘s RMP Rule both require the use of PHA. These federal

ACTIVITIES STEPS

1. Identify hazards and assess risk against risk management objectives. If necessary to further reduce risk, apply Steps 2

- 5.

2. Apply inherently safer strategies to the hazards and design of the entire plant 2.a. Eliminate the hazards altogether

2.b. Reduce the absolute magnitude of severity or impacts of an incident

2.c. Reduce the likelihood
of an incident or
escalation of an incident AVOID HAZARDS

3. Apply inherently safer strategies to the design of layers of protection 3.a. Use passive safeguards for prevention, control, and mitigation

3.b. Use active safeguards for prevention, control, and mitigation APPLY PASSIVE
SAFEGUARDS REDUCE SEVERITY

REDUCE LIKELIHOOD

APPLY ACTIVE
SAFEGUARDS

3.c.. Use procedures for prevention, control and mitigation APPLY PROCEDURAL
SAFEGUARDS

1 st order IS 2nd order IS Layers of Protection Inherent Safety (IS) 4. Iterate through inherent safety and layers of protection safeguards until risks are tolerable per objectives in Step 1. CONSIDER HAZARDS
UNTIL GOALS ARE METDB1/ 78326798.1 30

programs mirror ACC‘s Responsible Care management system for process safety, on which
those two re gulations are modeled. Under this approach, a PHA is defined as ―periodic assessment and documentation of process hazards, and implementation of actions to minimize risks associated with chemical operations, including the possibility of human error.‖ Whe n EPA promulgated the RMP Rule, some commenters asked EPA to require facilities to conduct ―technology options analyses‖ to identify inherently safer approaches. EPA declined to do so, stating:

PHA teams regularly suggest viable, effective (and inherentl y safer) alternatives for risk reduction, which may include features such as inventory reduction, material substitution, and process control changes. These changes are made as opportunities arise, without regulation or adoption of completely new and

unpro ven 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 alrea dy.

See EPA Preamble to Final Rule, 61 Fed. Reg. 31,699 (June 20, 1996) (emphasis added). EPA thus recognized how unwise it would be for government to make judgments about what constitutes inherently safer approaches.

D. Rationale For Consideration Of IST

Because ―inherently safer‖ is a way of thinking and involves a risk management approach, any legislative and regulatory approaches to addressing IST cannot be prescriptive. The chemical industry can and does consider inherently safer principles as a part of individual company risk management processes and mitigation techniques, including the use of formal risk

assessment and risk

- minimization technology, which are already being applied to chemical processes. This approach must consider total risk 8 an d the economic burden to potentially regulated facilities

– as potential hazard does not always equate to potential risk, and cost could far outweigh potential benefit.

The public is best protected by focusing on risks, not hazards. As the United States Supreme Court explained in the Benzene case, 448 U.S. 607 (1980) (J. Stevens, plurality), accepting the possibility of even deadly consequences (for example when driving a car) is a part of participating in society; the real question is not whether the con sequence is serious, but rather the risk, the likelihood that the consequence occurs. While many groups focus only on reducing hazards, the best way to protect workers, community and the environment is to focus on risks, that is, to analyze which hazards are most significant and which threats are most likely. Then resources can be allocated in the most effective and efficient way. If the focus is only on hazard reduction, the most important risks are overlooked and resources squandered on less important initiatives. The challenges associated with regulating employers‘ consideration of IST include the following:

8 The total risk approach in this context seeks to minimize risks overall from the transportation, storage and use of
chemicals.DB1/ 78326798.1 31

 Acknowledging that risk elimination is not possible in all cases. W ithout such acknowledgement, industry would be required to continually attemp t to evaluate and implement some form of IST, with no real safety benefit and at a potentially significant cost. It is conceivable that without proper definition of an acceptable endpoint, industry could be required to continually modify processes due to a constantly changing understanding of IST, resulting in a never

- ending cycle of modification and increasing

cost.

 Clarifying regulatory implications of the meaning of ―consideration of safer alternatives.‖ For example:

o What decision

- making criteria will be required for acceptance/rejection of IST at various stages of an IST evaluation process? Are economic considerations alone enough to reject an IST solution in favor of some other method of protection (such as instrumented safety systems (active protec tion))?

o When should an IST evaluation process be carried out during the plant life cycle, and in relationship to (potential) scientific developments behind the IST?

 Establishing the role of existing federal/state/local requirements and of existing facility inherently safer measures.

 The limitations for a company‘s ability to modify processes due to trade secret and proprietary information issues. See ACC IST Materials, Factors that Affect IST Decision Making & Examples of Limitations of Mandating Inherentl y Safer Approaches (attached hereto as Exhibit 6, Attachment 1).

 Adapting the process risk management approach to a regulatory framework.

 Risk

- shifting from one potentially exposed population to another. How would the agencies envision evaluating risk

- sh ifting in determining what is inherently safer?

The EO Working Group will need to address these issues and questions if it is to develop and advocate a regulatory framework with any IST requirements.

E. Rationale Against Mandatory IST

While certain types o f existing processes can accommodate retrofit IST, many cannot. There are now a sufficient number of both theoretical and actual, well

- intended examples of IST approaches that are meant to solve what appear to be straightforward safety and risk issues, but could or have resulted in trading one risk for another. Thus, mandatory, regulated IST would frequently create risks to workers and the public greater than before. P lacing the decision of technology selection into the hands of regulators will never be t he answer to the complex questions of if, what, how and when IST should be implemented. It is simply beyond the ability of any single regulatory entity to understand and make good judgments about what would constitute an inherently safer approach in every relevant setting. The administrative decision

making process is not well suited to making decisions based on risks, tradeoffs, and predictions about future risks that are unavoidable in inherently safer approaches.

Even if the burden of making choices was left up to facilities via a ―performance

- based‖ requirement, it would be unreasonable to create civil and criminal liability for facilities‘ inability to have 100% foresight about future risks, or to make the right choices when there are no right

answ ers. Factors that complicate mandating IST are described in ACC IST Materials, Example of IST scenario involving proprietary information ( attached hereto as Exhibit 6, Attachment 2),DB1/ 78326798.1 32

along with examples of the unintended adverse consequences of certain real and theoretical IST
decisions.

2(I)( n) How should EPA and OSHA use RMP accident data to identify trends and use the information to develop guidance or regulatory changes, compliance priorities, and technical assistance? If so, what are the ways that this might be done? RMP covered facilities are required to submit accidental release data to EPA when a release meets certain criteria, such as causing

on

- or off

- site injuries or significant property damage. OSHA and EPA are interested in
recommendations on how best to analyze this data, and what trends may be developed to indicate industry safety performance. Data are available from EPA via the Freedom of Information Act.

ACC Knows Of No Complete And Accurate Data Set From Which To Identify Trends And Justify Regulation

In December 2007, a Final Report was issued for Cooperative Agreement R

‐ 83033301 between the Risk Management and Decision Processes Center within the Wharton School of the University of Pennsylvania, and the U.S. Environmental Prot ection Agency Office of Emergency Management. The study, entitled ―Accident Epidemiology and the RMP Rule: Learning from a Decade of Accident History Data for the U.S. Chemical Industry,‖ culminates some 15 years of research on the RMP Rule in close coope ration with the Office of Emergency Management (OEM) at the EPA. The report describes analysis undertaken by an interdisciplinary team of researchers on accident history data collected under the Clean Air Act Section 112(r) (which was enacted as part of t he Clean Air Act Amendments of 1990 and is referred to as the ―Risk Management Program‖ or ―RMP Rule‖).

The EO asks how EPA and OSHA can use RMP accident data to identify trends to justify the development of guidance, regulatory changes, compliance prio rities and/or technical assistance. ACC reviewed the report and found no valid EPA RMP data trends that would justify a shift in RMP or PSM program management. Moreover, the study had limitations on the data collection process that would likely bias the results of the quantitative analysis and compromise the conclusions. For example, the study confirmed that the first wave of filings 9 contained ―data entry errors by responding facilities‖ in the number of deaths reported and how
the location of a facilit y was reported. There were similar challenges to the validity and reliability of the data surrounding understanding and selection of North American Industry Classification System (NAICS) manufacturing processing codes, ambiguity of size of facility (as

me asured by full

- time equivalent employees ), and the reporting chemicals held onsite

— all of which would ultimately impact whether or not a facility is covered under RMP. These matters regarding key data elements raise concerns about the quality of data obtained under RMP*Info (the database resu lting from the study) in the initial submissions in 1999

- 2000 and could be interpreted in dissimilar manners, leading to under

- or over

- reporting of hazardousness. Thus,

9 Data were collected in 1999

- 2000 on 15,145 facilities in the U nited States that stored or used listed toxic or flammable chemicals believed to be hazardous to the environment or to health of facility employees or off

- site residents of host communities. A second major set of data under the RMP Rule became available in 2004

- 2005, covering 12,065 facilities, of which some 10,500 were facilities that also filed in 1999

- 2000, allowing, therefore, a comparative assessment for these facilities of accident trends over the 10

- year period 1995

- 2005.DB1/ 78326798.1 33

ACC cautions the agencies from using EPA RMP accident data drawn from the RMP*Info
da tabase to rationalize regulatory changes or compliance priorities.

Option 2(II) : ―Process Safety Improvement and Modernization

– Options for Collaborating with Private Organizations on External Standards‖

2(II) (p) What opportunities exist for EPA, OSH A, and NPPD to work with industry associations to leverage industry programs and improve process safety and security through the industry programs and consensus standards, and encourage best practices, as well as to improve regulatory efficiency, especiall y for small businesses? The working group is aware of many different industry programs aimed at improving chemical safety and security. Federal agencies could work with industry members to identify existing programs that might be worth leveraging and/or e xpanding, as well as to identify potential areas where industry

- led programs could be developed to improve chemical safety and security.

ACC Strongly Encourages The EO Working Group To Connect With Industry And
Review Continuous Improvement Programs Such As ACC’s Responsible Care Program

ACC encourages the EO Working Group and agencies to reach out to affected employers, trade associations such as ACC, and organizations like CCPS and MKOPSC for input on process safety issues. These entities have great insight on the day

- to

- day challenges and realities faced by the chemical industry. ACC believes that this will allow agencies to engage in dialogue with industry, and obtain a broad perspective on emerging trends.

ACC believes there is ample opportunity for EPA, OSHA and DHS to leverage continuous improvement programs such as ACC‘s Responsible Care Program. Such a public/private partnership could help to achieve many of the goals and objectives of the EO, including the facilitation of security plan revie ws and approvals, sharing industry practices and reaching outlier facilities. ACC believes there would be a considerable advance in the state of chemical safety and security through the leveraging of such programs. Moreover, there are several examples wh ere we have had success in this area, including the designation of the Responsible Care Security Code as a Qualified Anti

- Terrorism Technology under DHS‘s SAFETY Act and recognition by the United States Coast Guard of the Security Code as an
Alternative Se curity Program under the Maritime and Transportation Security Act (MTSA). EPA, OSHA and DHS could recognize facility compliance with certified industry programs in a way that substantially expedites compliance and implementation of the regulatory programs while maintaining the integrity of the process. Such an approach would be consistent with the goals and objectives of the EO by helping to streamline the regulatory process, focus enforcement, and reach outliers that need assistance.

Numerous opportuniti es exist throughout the year to participate in sharing industry security practices through industry conferences, workshops and summits. Some examples include the DHS Chemical Sector Security Summit, which is held every July in Baltimore, Maryland. This e vent consistently draws between 300

- 500 participants. The program includes a mix of technical and policy topics. Industry shares security practices on such topics as personnel safety, background check procedures, theft and diversion prevention techniques , and alternativeDB1/ 78326798.1 34

security plans. Other similar venues include the annual ACC ChemSECURE Conference; the annual AFPM Security Conference; and the ASIS International 60th Annual Seminar and Exhibit. DHS could play a more significant role in these events b y providing lessons learned from the CFATS compliance process and the voluntary protection program

— keeping in mind that protected and sensitive security information must be maintained at all times.

2(II)(q) In which consensus standard groups should EPA and OSHA participate to stay current on industry best practices and improve chemical process safety? For example, NFPA

- 400 consolidates fundamental safeguards for the storage, use, and handling of hazardous mat erials in all occupancies and facilities, including ammonium nitrate; ANSI K61.1/CGA G

- 2.1 addresses the safety requirements for the storage and handling of anhydrous ammonia, including standards for the design, construction, repair, alteration, location, installation, and operation; and CCPS is an initiative of the American Institute for Chemical Engineers and is a

non

- profit organization that addresses process safety within the chemical, pharmaceutical, and petroleum industries. EPA and OSHA seek ideas o n additional consensus standard groups for potential participation.

ACC Encourages Active Participation In Groups Like CCPS And MKOPSC But Cannot Endorse Specific Consensus Standards

ACC hesitates to recommend specific consensus standards that EPA and OSHA should participate in to stay current on industry best practices and improve chemical process safety. This is because there is no single code, standard, or methodology that would be congruous to the diverse nature of chemical industry operations. Em ployers consider a wide range of standards, and it ultimately is the employer‘s responsibility to select which standards to follow to best manage risk based on the employer‘s intimate knowledge of its particular operations.

Instead, ACC encourages activ e participation in groups like CCPS and MKOPSC by OSHA personnel. This recommendation applies to both agency headquarters and regional administrators alike. ACC believes that this will allow agencies to engage in dialogue with industry, and obtain a broa d perspective on emerging trends.

Option 3 : ―Coverage of Additional Hazardous Chemicals or Categories of Chemicals under Process Safety and Security Regulations‖

3( a) Should OSHA and EPA initiate rulemaking to cover additional hazardous chemicals under

t he PSM standard and RMP rule? If so, how should the agencies identify these chemicals? OSHA‘s RFI contains a detailed discussion of this option. The list of highly hazardous chemicals in the PSM standard has remained unchanged since the standard was initi ally published, and the regulated substances originally listed in the RMP rule have been narrowed without the addition of any substances. OSHA‘s RFI also discusses and requests comments on
this issue. 3( b) Is there a method, other than periodically updat ing the PSM and RMP lists of covered chemicals through rulemaking, that OSHA and EPA could use to expand their lists of covered
chemicals? As noted above, the list of highly hazardous chemicals in the PSM standard has remained unchanged since the standard was initially published, and the regulated substancesDB1/ 78326798.1 35

originally listed in the RMP rule have been narrowed without the addition of any substances. OSHA‘s RFI also discusses and requests comments on this issue.

The Existing Lists Are Comprehensive And Should Not Be Amended Without Scientific Analysis Establishing Significant Risk

At present, although OSHA stated in its RFI that ― Appendix A has remained unchanged since OSHA promulgated the PSM standard in 1992,‖ OSHA has provided no further justificati ons for updating the list. See 78 Fed. Reg. 73769. As explained in ACC‘s response to OSHA‘s RFI ( Exhibit 1 at Change Option 5)

, ACC is not aware of any significant change or development to justify the opening of the standard. ACC therefore requested in its comment to OSHA‘s RFI that OSHA identify any issues with the current rule before moving forward with any potentially unjustifi ed changes. ACC believes that it is OSHA‘s duty to perform a significant risk analysis on an industry basis, as well as demonstrate that each chemical the agency intends to regulate exposes employees to a significant risk of harm. ACC trusts that, by

com pleting these required steps in the rulemaking process, OSHA would be able to more efficiently focus its resources on the workplaces and hazards that pose the most potential risk.

ACC hereby expresses the same concerns for any change in regulated substa nces listed in the EPA‘s RMP Rule. ACC is not aware of significant changes that would justify the opening of
the RMP standard. ACC encourages action from OSHA and EPA only where actual data warrants the incorporation of additional chemicals . ACC urges t he agencies to develop and publish its research and data

- gathering methodology for identifying, defining, and quantifying the hazards associated with a chemical. EPA and OSHA should use a formal, scientific

- based approach to evaluate chemicals and, ultima tely, to demonstrate that any proposed changes to the PSM or RMP standard are justified and would actually enhance worker safety.

For OSHA, ACC notes that many chemicals that are not specifically listed by name in Appendix A of 29 C.F.R. § 1910.119 are co vered under 29 C.F.R. § 1910.119(a)(1)(ii) on processes which involve a Category 1 flammable gas (as defined in 29 C.F.R. § 1910.1200(c), and further defined in Appendix B to 29 C.F.R. § 1910.1200 regarding physical hazard criteria). Only highly hazardous chemicals that were intended to be addressed by the regulation or that have been identified and justified using scientific methods that define purported hazards and concerns should be included in the list. Diluting the list with a large range of chemical s that do not represent high hazards will reduce the overall effectiveness of any process safety program.

In sum, ACC believes that the existing lists in the PSM and RMP are comprehensive, and adding additional chemicals should be approached with caution through the rulemaking process.
If incident data supports the need for rulemaking on highly hazardous chemicals

, ACC would be happy to collaborate with EPA and/or OSHA to establish revision criteria and help ensure that updates are technologically feasib le and cost

- effective and, most importantly, actually enhance environmental and/or worker safety.

3(c) What additional chemicals should NPPD consider adding to the existing CFATS COI list? NPPD could consider adding additional chemicals to the list of CF ATS COI to expand CFATS coverage to potential high

- risk chemical facilities that might not currently be identified based on the existing list of CFATS COI. This could include, among other things, coverage of toxic and poisonous chemicals under CFATS.DB1/ 78326798.1 36

The Existing List In Appendix A Is Comprehensive, And DHS’s National Protection And Programs Directorate ( NPPD) Should Only Add Chemicals After Establishing Risk Based
On Scientific Data

On November 20, 2007, DHS published in the Federal Register the Fina l Rule on the Appendix A List of Chemicals of Interest (COI) and Screening Threshold Quantities (STQ). In determining the list of COIs in the final Appendix A, DHS did not rely on any single, existing list as its sole source. Instead, DHS used multiple s ources, so it could obtain a more complete picture of the universe of facilities that may qualify as high

- risk. Further, in identifying the chemicals and STQs, DHS sought to strike a balance between being sufficiently inclusive and being overly restrictiv e. DHS determined the list of COIs for preliminary screening purposes by considering specific security issues for each chemical

— based on the belief that each chemical would have the potential to create significant harm to human life if intentionally relea sed into the atmosphere; stolen and diverted; and/or contaminated.

Based on its analysis, DHS has included more than 300 COIs on Appendix A, covering a broad range of chemicals used in commerce across the United States. Based on this list, more than 40,00 0 Top Screens submittals were voluntarily submitted to DHS by the chemical industry and analyzed, resulting in more than 7,000 facilities being preliminarily identified as potentially high

- risk chemical facilities and subject to CFATS regulations. However , numerous of the preliminarily high

- risk facilities made material changes to their operations, resulting in a significant reduction and/or elimination of COIs below the CFATS screening thresholds, thus dropping the facilities out of the program. Today, t he number of high

- risk chemical facilities covered by the CFATS regulation is approximately 4,300.

In general, ACC believes that the initial work of DHS in determining the current list of Appendix A chemicals of interest addresses the vast majority of che micals that should be considered for CFATS regulation. While ACC generally agrees that a periodic review of the Appendix A list should be conducted, we recommend that a robust, risk

- based, scientific, and economic analysis be the basis for reviewing such lists. Stakeholder input must also be
considered to ensure that risks are considered in the context of real

- world factors, including potential impacts to the nation‘s economy, in addition to public health and safety.

DHS should amend Appendix A only where actual data warrants it. To this end, DHS should develop and publish its research and data

- gathering methodology for identifying, defining, and quantifying the threat associated with a specific chemical. DHS should use a formal, scientific, risk

- based a pproach to evaluate chemicals and, ultimately, to demonstrate that any proposed changes to the COI list is justified and would actually enhance chemical facility security.

It is DHS‘s obligation to perform a risk analysis on an industry sector basis, as we ll as demonstrate that each chemical the agency intends to regulate presents a significant risk of terrorism. By completing these required steps in the rulemaking process, DHS will be able to more efficiently focus its resources on the facilities and chem icals that pose a security risk.

In sum, the existing list in Appendix A is comprehensive. Adding additional chemicals should be approached with caution. If DHS determines that the scientific data supports the needDB1/ 78326798.1 37

for rulemaking on COIs, DHS should es tablish revision criteria and help ensure that updates are technologically feasible and cost

- effective and, most importantly, actually enhance the security
of chemical facilities.

Since launching CFATS in June 2007, DHS has accumulated a wealth of informat ion regarding the chemical holdings, inventory levels, and types of security issues being addressed by high

- risk chemical facilities across the United States. ACC recommends that DHS use this information to help inform the revision of Appendix A and consi der dropping those COIs from the list that are rarely or have never have been found to trigger CFATS coverage. Likewise, COIs that are not commonly found at the listed STQs should be candidates for removal from the Appendix A list of COIs.

3(d) Should DHS attempt to harmonize security requirements at chemical facilities exempt from CFATS with the requirements applicable to CFATS

- regulated facilities and, if so, how? Certain chemical facilities are either exempt from coverage under CFATS or are subject to a dditional security regulations under other regulatory programs. Harmonization of appropriate standards might increase consistency in requirements and reduce any duplicative or conflicting regulatory requirements.

CFATS Should Be Harmonized With Other Sa fety And Security Programs, While Maintaining The MTSA Exemption

ACC agrees that DHS should and could do more to improve regulatory efficiency and effectiveness while minimizing burden on the CFATS community by harmonizing the CFATS program with other saf

ety and security programs. However, policymakers should maintain the MTSA exemption for maritime facilities. This will maintain consistency across our nation‘s ports by eliminating duplication and ensuring that MTSA

- covered facilities deal exclusively wi th Coast Guard inspectors and are not burdened with multiple inspections by multiple agencies, including DHS.

Areas that should be explored include the Alternate Security Program, the Transportation Worker Identification Credentialing program, and inspecto r training and coordination. Improved agency tools for data exchange and cross coordination of covered facility information between Federal and State agencies, if done properly, would help DHS with its identification and outreach to potential outlier site s, thus eliminating duplicative requests for information from the universe
of chemical facilities.

Option 4 : ―Chemical Reactivity Hazards‖

4(a) Should OSHA and EPA initiate rulemaking, policy changes, or guidance to cover chemical reactivity hazards under the PSM standard and RMP rule? If so, what definitions, terms, and conditions should be used to best define hazards that can lead to reacti ve incidents? The U.S. Chemical Safety and Hazard Investigation Board (CSB) has recommended that OSHA extend PSM coverage and EPA extend RMP coverage to chemicals based on a class of highly reactive properties, similar to the way PSM defines a class of fla mmable liquids or gases. A number of
the chemicals listed in the regulations are highly reactive chemicals based on a variety of metrics, including consensus standard sources, but the lists do not cover all highly reactive chemicals. OSHA‘s RFI also disc usses and requests comments on this issue.DB1/ 78326798.1 38

4(b) Should EPA, OSHA, and NPPD develop a definition of high risk chemical reactivity hazards for future rulemaking, policy changes, or guidance, and if so, what should be the basis of that definition? Currently, there is no consistent definition for reactivity or reactive chemicals. Various consensus groups (such as the NFPA and CCPS) and state laws (New Jersey‘s Toxic Catastrophe Prevention Act and Delaware‘s Hazardous Chemicals Act) utilize many different
techn iques for defining and protecting against reactive chemical hazards, but there is no consensus on the best approach to regulate reactive chemical hazards in the United States.

Current Regulations Already Adequately Cover Reactivity Hazards And Expansion Is Unjustified

ACC believes that reactivity hazards cannot be adequately addressed through regulatory listing approaches beyond those requirements currently in place. ACC agrees with the advice given by CSB in 2002 that ―[u]sing lists of chemicals is an inadequate approach for regulatory coverage of reactive hazards. Improving reactive hazard management requires that both regulators and industry address the hazards from combinations of chemicals and process

- specific
conditions rather than focus exclusive ly on the inherent properties of individual chemicals.‖ See CSB, Report No. 2001

- 01

- H, Hazard Investigation: Improving Reactive Hazard Management, at 87 (Oct. 2002) (emphasis added). As the PSM rule is essentially a list

- based rule, ACC believes
that thi s statement is as true today as when it was published, and that no new data in the intervening 12 years contradicts this conclusion. For pairs of chemicals, which make up the vast majority of reactive substances, extrinsic process and location

- specific co nditions must be considered in any hazard assessment.

ACC supports efforts to reduce any significant risk associated with reactivity. Before any additional rulemaking step is taken by any agency, however, ACC requests sound scientific analysis and te chnical evaluation to justify expanding PSM coverage and requirements for reactives. Any agency should investigate and explain what the risk is of some threshold unacceptable hazardous consequence from a reaction

— at what quantity/concentration will an

exp losion occur? Would the potential explosion be a significant risk? Only after the regulatory body has established through sound scientific analysis that reactives impose a substantial risk and hazard should any rulemaking proceed.

As explained in ACC ‘s response to OSHA‘s RFI ( Exhibit 1 at Change Option 4) and w ith this background in mind, ACC has several recommendations regarding any later expansion of regulatory coverage for reactivity hazards, which could only occur after undergoing a risk and
hazar d analysis. If and only if such an assessment occurs and justifies an expansion of coverage, ACC would recommend that the agency prioritize reactivity hazards by (1) focusing on compounds that are highly hazardous independent of processing technology or c onditions (namely, compounds that are strongly self

- reactive, or react violently with air and/or water), and (2) establishing threshold quantities based on a hazard and risk assessment for that compound. For example, the Globally Harmonized System of Clas sification and Labelling of Chemicals (GHS) (3rd ed. 2009) provides a framework from which specific compounds could be identified
for evaluation :

 Self

- Reactive Substances, Types A to C (but not D, E, F & G)

 Pyrophoric LiquidsDB1/ 78326798.1 39

 Substances which, in contact with water, emit flammable gases, Categories 1 & 2.

Other classes of reactives (i.e., runaway reactions and intentional reactive chemistry) simply are not amenable to a broad regulatory approach. These classes depend on situation

specific factors such a s use or proximity to other substances that react; they can only be evaluated through the application of industry tools and resources on the specific technology and conditions in which they are utilized. By contrast, self

- reactive substances and substance s that
are reactive with air and water are more amenable to a list

- based rule because they are intrinsically

- based hazards

— for example, much like materials already covered by OSHA‘s PSM Appendix A such as flammables. By intrinsic, we mean that the hazard is not situation or application dependent, which is clearly the case with binary pair reactive chemicals.

Even within the high

- priority class of chemicals that are self

- reactive or violently reactive with air and/or water, it is imperative that the rule making body not categorically adopt the aforementioned classes without first developing a valid, consistent methodology to identify threshold hazard quantities or concentrations. ACC is willing to work with any agency to establish any such methodologies a nd/or criteria. In fact, ACC already has identified useful consensus standards and other resources that should be used to identify any reactivity hazards (again, only after the agency first justifies coverage through hazard and risk analyses):

(1) Specifically, CCPS, an industry

- technology alliance of AIChE, produced and published, with the financial backing of OSHA, EPA, Society of Chemical Manufacturers and Affiliates ( SOCMA) and ACC, the book ―Essential Practices for Managing Chemical
Reactivit y Hazards‖ (Johnson, Unwin and Rudy, 2003), available at https://www.aiche.org/ccps/publications/books/essential

- practices

- managing

- chemical

reactivity

- hazards , which provide tools for identification and further evaluation of reactivity hazards. Through t he financial support of the above

- mentioned organizations, this book was made available via electronic download free of charge for three years after publication, resulting in more than 12,000 electronic downloads. Additionally, CSB gave CCPS an ―Exceeds E xpectation‖ rating for its recommendation as a part of the CSB‘s 2002 study when the book was published.

(2) Furthermore, the National Oceanographic and Atmospheric Administration (NOAA) has also contributed significantly to the management of reactivity hazards through its publication of the Chemical Reactivity Worksheet (now Version 3.0, and soon to be upgraded), available at http://response.restoration.noaa.gov/reactivityworksheet . This electronic worksheet creates potential reaction interaction matric es, as well as for generic classes of chemicals, in a succinct, referenced, easily transmitted format. This tool is also the centerpiece of CCPS‘s Reactivity Management Tool (RMT), available at http://www.aiche.org/ccps/resources/tools/reactivity

- manageme nt

- tool

. Together, these and other similar resources provide a much more effective means for reactivity hazard management than could ever be accomplished for reactives through a list

- based rule. Ultimately, ACC believes that the EO Working Group can mos t effectively accomplish its goal of reactivity risk reduction not through regulation, but by promoting awareness of the existing industry evaluation tools, references and guidance on how to evaluate reactive hazards.DB1/ 78326798.1 40

Option 7 : ―Coverage of Bulk Storage of Flammable Liquids under Process Safety and Security Regulations‖

7(b) Should OSHA clarify the PSM standard’s exemption, through regulation, for atmospheric storage tanks, and, if so, what should the exemption cover? In Secretary of Labor v. Meer Corporation (1997) (OSHRC Docket No. 95

- 0341), an administrative law judge ruled that PSM coverage does not extend to flammables stored in atmospheric tanks, even if the tanks are connected to a process. As a result, employers can exclude the amount of fl ammable liquid contained in an atmospheric storage tank, or in transfer to or from storage, from the quantity contained in the process when determining whether a process meets the 10,000

- pound threshold quantity. The Meer decision was contrary to OSHA‘s i nterpretation of this aspect of the PSM standard, which was that the standard covers all stored flammables when connected to, or in close proximity to, a process. The CSB recommended that OSHA address relevant hazards through rulemaking. OSHA‘s RFI discu sses and requests comment on this issue.

The Current Rule On Atmospheric Storage Tanks Under 29 C.F.R. § 1910.119(a)(1)(ii) Protects Workers, And OSHA Must Demonstrate Significant Risk Before Enacting Any Changes

As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Change Option 1), ACC believes that OSHA must demonstrate, through a sound scientific analysis of any risk posed by the current usage of atmospheric storage tanks, that a significant risk warrants the reopening of 29 C.F.R. § 1910.119(a)(1)(ii). Before moving forward with any regulation, OSHA must substantiate that the current regulation is insufficient to protect workers in covered jobsites. Indeed, ACC believes that the reopening of the standard is not warranted and that workers are fully protected under the current standard and other related standards such as 29 C.F.R. §
1910.106.

Moreover, as ACC has already stated in our written response to CSB‘s Request for Comments regarding Recommendatio n No. 2001

- 05

- I

- DE

- 1, ACC believes that revisiting Paragraph (a)(1)(ii)(B) to include flammable liquids in atmospheric storage tanks within or
connected to a PSM

- covered process has been fully and adequately addressed through the following vehicles:

 Secr etary of Labor v. Meer Corporation (1997) (O.S.H.R.C. Docket No. 95

- 0341);

 OSHA interpretation memorandum distributed to Regional Administrators from the Director of Compliance Programs (Subject: Coverage of Stored Flammables Under the Process Safety Mana gement Standard, dated May 12, 1997); and

 OSHA letter of interpretation (Subject: Clarification of PSM applicability to processes that are based partly or solely on quantities in connected atmospheric storage tanks, dated February 11, 2003).

29 C.F.R. § 1910.106 provides additional regulatory protection for atmospheric storage tanks. Under this regulation, atmospheric tanks must be ―built in accordance with acceptable good standards of design,‖ including standards published by Underwriters‘ Laboratories, Inc. and
the American Petroleum Institute. See 29 C.F.R. § 1910.106 (regulating the design, construction, storage, and other required steps in the handling of atmospheric storage tanks). Among otherDB1/ 78326798.1 41

requirements, this regulation makes clear that ―[a]tmo spheric tanks shall not be used for the storage of a flammable liquid at a temperature at or above its boiling point.‖ See id. It also outlines venting obligations for atmospheric storage tanks and establishes hazardous areas surrounding tanks ―for the p urpose of installation of electrical equipment under normal circumstances.‖

In addition, other work practices required by OSHA and EPA, such as lockout/tagout, hot work, emergency action plan/HAZWOPER, and confined space, also apply to facilities with

at mospheric storage tanks. These regulations provide another layer of protection to atmospheric storage tanks. For example, EPA‘s Spill Prevention, Control, and Countermeasure (SPCC) regulations apply PSM

- like elements such as mechanical integrity and oper ational elements to owners or operators of oil facilities that could reasonably be expected to discharge oil into navigable waters. See, e.g. , 40 C.F.R. § 112.1. In sum, ACC believes that the management of atmospheric storage tanks and associated hazards is adequately covered by existing OSHA standards, namely 29 C.F.R. § 1910.106 and the additional aforementioned measures.

7(c) Should OSHA update its Flammable Liquids and Spray Finishing standards to reflect the
latest consensus standards? OSHA first p ublished these standards in 1974 and based the requirements on NFPA consensus standards from the 1960s. The format and requirements of the standards may therefore be out of date, and could be updated based on the latest applicable
consensus standards. OS HA‘s RFI discusses and requests comment on this issue.

OSHA Must Demonstrate Significant Risk Before Revising 29 C.F.R. §§ 1910.106 And 107 To Incorporate The Current Version Of NFPA 3 0

ACC understands that the current version of 29 C.F.R. § 1910.106 is based on the 1971 version of National Fire Protection Association (NFPA) 30. As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Change Option 14), ACC has undertaken a detailed si de

- by

- side evaluation of 29 C.F.R. 1910.106 and the current version of NFPA 30 (2012). There are, as noted in the RFI, significant formatting changes. However, many of the substantive technical requirements in the current version of NFPA 30 are identical , or nearly identical, to the information contained in 29 C.F.R. § 1910.106.

ACC does not believe that updating the PSM regulations for formatting reasons alone warrants a reopening of the 29 C.F.R. § 1910.106 standard. Instead, OSHA should perform its own comprehensive comparison, identify changes that OSHA considers substantive, and propose, if appropriate, changes to 29 C.F.R. § 1910.106 based on its analysis, noting the differences from current requirements and the reasons for change.

Option 8 : ― Process and Hazardous Chemical Security‖

8(a) What options should NPPD consider to incorporate economic and mission criticality into
the CFATS risk

- tiering methodology? Currently, facilities are determined to be high risk chemical facilities subject to CFATS based solely on risks associated with consequences to
human life.DB1/ 78326798.1 42

ACC Strongly Encourages Transparency In Risk

- Tiering Methodology And Engaging Industry For A Com plete Understanding Of Criticality

ACC agrees that the risk

- based tiering structure will allow DHS to focus and prioritize its efforts on the highest

- risk facilities. Additionally, ACC supports the framework of four risk

based tiers of high

- risk facilit ies, ranging from high (Tier 1) to low (Tier 4). DHS uses a variety of factors in determining in which tier facilities will be placed, including information about the public health and safety risk, economic impact, and mission critical aspects of the give n chemicals and Threshold Quantities (TQs) of the chemicals. However, ACC remains concerned about the lack of transparency in the factors that DHS uses to determine risk. ACC strongly recommends that DHS improve the transparency of its risk determination process and more fully engage the CFATS

- regulated community during the process.

DHS should clarify what criteria are used for determining economic criticality and mission criticality for CFATS coverage and risk

- tiering purposes. ACC believes that econo mic criticality should be determined based on truly national impacts to the nation as a whole. While impacts to the local economy/workforce are important, the scale of the CFATS program should address those issues that have a potential catastrophic effect on the national economy, which would more likely be the target of terrorism.

Mission criticality should be clarified to address national defense and significant effects on critical infrastructure that could pose a catastrophic effect on our ability to pro vide essential government services to the public, including emergency response, health care, electricity and
flow of commerce.

Stakeholders, including the regulated industry, must be included in every step of the process for determining economic criticali ty. DHS must recognize the complexity of estimating potential economic or mission impacts stemming from the loss of certain manufacturing (or other) capacity. Accordingly, to accomplish an effective analysis of economic and mission criticality, DHS must engage facility owners early on to provide a sufficiently clear picture of the chemical industry as a system. The rationale and basis for determining criticality must be transparent and based on sound economic principles that are widely recognized within the industry.

Option 9 : ―Identifying Facilities Covered under Existing Process Safety and Security Regulations‖

9(b) How can DHS most effectively identify entities that have not submitted required CFATS’ Top

- Screens? DHS believes that it has received CFAT S Top

- Screens from the majority of facilities that should have submitted them, but like any regulatory program that relies in part on
self

- reporting, 100% compliance is difficult to achieve. The expansive and dynamic nature of
the business communities tha t use CFATS COI further increases the difficulty of doing so under CFATS. Nevertheless, DHS is committed to pursuing all reasonable measures to identify potential high

- risk chemical facilities that are not among those that have already complied with
initi al CFATS requirements, and we will continue to work to get those facilities into compliance.DB1/ 78326798.1 43

ACC Recommends Significant Outreach To Industry As Well As Intergovernmental Cooperation

DHS has undertaken efforts to better identify outlier facilities that should have submitted Top Screens but failed to do so. The administration needs to strengthen coordination with other federal entities, such as EPA, Coast Guard, and state and local authorities.

When implementing a new regulatory program like CFATS, sig nificant outreach to the regulated community is a key element of success. Stakeholders need to ensure that chemical safety and security regulations are being implemented fully and properly and that the agency and department officials have the necessary re sources to do their jobs. In addition, federal officials at all levels need to work together, share information, and coordinate their activities across all regulatory programs. In addition to the cadre of CFATS inspection personnel, Protective Security A dvisors should be leveraged to provide a local resource for informing members of the community about their regulatory obligations. DHS should establish a close relationship with state and local emergency response organizations such as the State Fire Marsh alls Office.

III. CONCLUSION

Based on the experiences of its members, ACC believes that compliance with the standards already in place adequately manages process safety risks. ACC observes that agencies and the EO Working Group have yet to publish sufficient data to justify many suggested changes to current regulations, and ACC remains skept ical that any such data exists. ACC encourages OSHA and other agencies to conduct sound scientific analyses of any risk allegedly posed by current regulations before moving forward with costly and ineffective changes, which may detract from worker safety by diverting resources, as well as creating an atmosphere of
confusion.

In fact, ACC believes that the current set of regulations are not the real issue

— instead, process safety

- related accidents consistently involve outlier companies that disregard s ome or all aspects of the current PSM regulation. ACC believes that the biggest step agencies could take to improve worker safety is through increased process safety awareness, training, and enforcement for these outlier companies. Proposed changes to re gulations will not improve safety for companies that have already created a safe environment through fulfillment of the current applicable OSHA, EPA, and other standards. Consequently, ACC encourages the EO Working Group and agencies to reach out to affec ted employers, trade associations such as ACC, and organizations like CCPS and MKOPSC for input on process safety issues. These organizations and others have helpful insight on the day

- to

- day challenges and realities faced by the chemical industry.

Give n the diverse nature of chemical industry operations, ACC knows that a flexible and performance

- oriented approach to process safety will best protect workers from risk of harm. Each employer is in the best position to make process safety decisions by eval uating its own equipment, onsite materials and chemicals, expertise, organizational structure, and operations. Agencies such as OSHA should capitalize on the chemical industry‘s knowledge and capability
to address all manner of site

- specific safety concer ns.DB1/ 78326798.1 44

As such, ACC would like to underscore the following:

(1) ACC reemphasizes our opposition to mandating the incorporation of ―i nherently safer technologies‖ (IST) into safety programs. Inherently safer approaches or safer alternatives have
been and will continue to be considered by facilities as a matter of course. However, only facility operators know whether IST is appropriate given the complexities of their unique operating environments

— no one program will work for all facilities.

(2) ACC strongly opposes replacing PSM or RMP with a safety case regulatory regime. The safety case framework would be a drastic overhaul of the current system. Against this, no real data establishes its value in the context of process safety for the chemical industry. ACC believes that shifting responsibility to approve safety decisions from employers to inspectors, who inevitably will be less familiar with the jobsites, would detract from worker safety.

(3) ACC believes that the mandated use of third

- party auditors would be overly burdensome and unjustified. Employers must be afforded the discretion to choose among self

audits, second

- party audits, and third

- party audits. Company

- led audits can be far m ore effective in actually addressing issues uncovered during an audit, due to the company auditor‘s intimate knowledge of the organization and how it functions.

ACC supports the EO Working Group‘s overall goal of improving chemical facility safety and security and appreciates the vital role of the EO Working Group and agencies in effectuating this goal. Given the many site

- specific variables and complexities within the chemical industry, ACC urges the EO Working Group to carefully consider its approach . To best achieve its goals, ACC believes that the EO Working Group should consider non

- regulatory approaches with input and support from ACC and other organizations focused on chemical safety.

ACC hopes that the EO Working Group will find these comments helpful. Should you have questions about ACC‘s input, please contact me by phone at (202) 249

- 6426 or by e

- mail at Rachel_meidl@americanchemistry.com . Thank you for the opportunity to submit comments on
this matter.

Respectfully submitted,

Rachel A. Meidl Director, Regulatory & Technical Affairs American Chemistry Council 700 Second Street, NE Washington, DC 20002 Rachel_Meidl@americanchemistry.comDB1/ 78326798.1 45

Of Counsel:
Jonathan L. Snare Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW Washington, DC 20004 jsnare@morganlewis.com

# Exhibits to ACC Comment **on E xecutive**  **O rder**  **13650**
**have been removed but are attached as appendices to** 
**ACC’s Comments on the EPA RFI.**

# APPENDIX 7

ACC COMMENT ON DRAFT CSB REPORT FOR
CHEVRON RICHMOND REFINERY PIPE RUPTURE AND FIRE (DECEMBER 2013)January 3, 2014

SUBMITTED VIA E

- MAIL

U.S. Chemical Safety and Hazard Investigation Board Office of Congressional, Public, and Board Affairs 2175 K Street, NW, Suite 650 Washington, DC 20037 By electronic submission: chevroncomments@csb.gov

Attn: R. Moure

- Eraso

Interim Investigation Report: Chevron Richmond Refinery Pipe Rupture and Fire Regulatory Report

Dear Dr. Moure

- Eraso:

The American Chemistry Council 1 (ACC) is pleased to provide a written response to the U.S. Chemical Safety and Hazard Inves tigation Board‘s (CSB) December 16, 2013, Regulatory Report of the Chevron Richmond Refinery Fire.

As you know, ACC and its member companies have a considerable interest in the CSB‘s work.

Safety has always been a primary concern of ACC members; both ACC and its individual companies have been recipients of and benefitted from CSB safety recommendations. We value CSB‘s independent and technical insight and we utilize the lessons learned from incidents to improve performance as well as standards and pra ctices. The CSB investigation of the Chevron Richmond refinery accident and subsequent recommendations will be important to help determine what actions might be considered based on the root causes of this incident and will ultimately influence the directio n of the regulated community in that regard.

ACC‘s comments focus on the agency‘s recommendations concerning the safety case regulatory regime. We have a number of strongly held concerns regarding the potential implementation of the safety case regime which we have highlighted in our attached comment letter.

1 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of chemistry to make innovative products and services that make peopl e's lives better, healthier and safer. ACC is committed to improved environmental, health and safety performance through Responsible Care®, common sense advocacy designed to address major public policy issues, and health and environmental research and prod uct testing. The business of chemistry is a $760 billion enterprise and a key element of the nation's economy. It is the largest exporting sector in the U.S., accounting for 12 percent of U.S. exports. Chemistry companies are among the largest investors in research and development. Safety and security have always been primary concerns of ACC members, and they have intensified their efforts, working closely with government agencies to improve security and to defend against any threat to the nation’s critical infrastructure.2

ACC also supports the separate comments filed by the American Petroleum Institute and the
American Fuel & Petrochemical Manufacturers.

We hope that CSB will find our contribution helpful. Should you have questions about our input, please contact me by phone at (202) 249

- 6426 or by e

- mail at Rachel_meidl@americanchemistry.com

.

Regards,

Rachel A. Meidl Director, Regulatory & Technical Af fairs American Chemistry Council 700 Second Street, NE Washington, DC 20002

Jonathan L. Snare Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004January 3, 2014

U.S. Chemical Safety and Hazard Investigation Board
2175 K St reet, NW Washington, DC 20037

By electronic submission: chevroncomments@csb.gov

Re: Comment on Regulatory Report No. 2012

- 03

- I

- Ca, Draft for Public Comment, Chevron Richmond Refinery Pipe Rupture and Fire (December 2013)

The American Chemistry Coun cil (―ACC‖) is America‘s oldest trade association of its kind, representing companies across the United States engaged in the business of chemistry. ACC appreciates and supports the U.S. Chemical Safety and Hazard Investigation Board‘s (―CSB‘s‖) efforts t o protect the safety and health of workers, the public, and the environment
from industrial chemical accidents

. Furthermore, ACC shares the CSB‘s goals of ensuring that process safety is handled and impl emented as safely as possible. CSB incident investig ations can play a key role in understanding accidents at chemical facilities and refineries and ensuring that similar accidents are prevented in the future.

W orkplace safety and process safety are top priorities of ACC and its members. To
become a memb er of ACC, a company must commit to the highest standards for protecting health, safety, and the environment through participation in the Responsible Care® program. All
ACC members are required to implement the Responsible Care® Process Safety Code of
Man agement Practices, which specifically addresses process safety concepts such as leadership, accountability and culture in order to drive overall process safety performance improvement. This code complements existing regulatory requirements, such as the Oc cupational Safety and Health Administration‘s (― OSHA‘s‖) Process Safety Management (―PSM‖) standard and the Environmental Protection Agency‘s (― EPA‘s‖) Risk Management Plan (―RMP‖) rule

.
While ACC shares the CSB‘s goals as described above, ACC has a num ber of concerns about the recommendations in the CSB‘s December 2013 Draft Regulatory Report for Public Comment (the ―CSB Report‖) to the State of California regarding the establishment of a safety management regulatory framework based on ―safety case‖ pri nciples

. 2 In particular, ACC believes that its members, throu gh OSHA‘s current PSM standard and voluntary programs such

as Responsible Care®, already address the continuous improvement goals detailed in the CSB Report. ACC further believes that the recom mended safety case regulatory regime is not justified by the reasons articulated in the CSB R eport, nor would the safety case framework actually achieve the desired results and benefits for covered workplaces. ACC also is concerned that the drastic change s contemplated by the recommended safety case framework would result

2 ACC has similar concerns regarding the CSB‘s recommendations to OSHA, which are less defined than those to California, to the extent that the CSB suggests the implementation of a safety case regime. The safety case regime described by the CSB starkly conflicts with OSHA‘s performance

- based PSM standard.2

in a wide variety of practical problems if implemented. As outlined in detail below, ACC believes that certain recommendations in the CSB Report ultimately would detract from worker
safe ty and create an atmosphere of uncertainty and confusion for employers and regulators alike.

A. The CSB’s Proposed Safety Case Regulatory Regime Represents A Drastic Policy Change From The Current Regulatory Framework With No Corresponding Benefits For Workpl ace Safety

The CSB Report describes the safety case regulatory regime as a ― rigorous prescriptive and goal

- setting regulatory approach applied globally both onshore and offshore.‖ See CSB Report at 9. Under this regime, ―[a] written case for safety, kno wn as the safety case report, is generated by the duty holder and is generally rigorously reviewed, audited, and enforced by highly technically competent inspectors with skill sets familiar to those employed by the industries they oversee.‖ See id. Moreo ver, ―[i] n order for the facility to begin operation or remain in operation, the regulator must  ̳accept‘ the facility‘s safety case report.‖ See id. at 39.

This proposed framework shifts the burden to the regulator to review and evaluate a wide
set of site

- specific information, which regulators will be ill

- equipped to handle, without any objective measures. ACC believes that the current framework of PSM is better suited to achieve the CSB Report‘s purported justification of improved workplace safety. U nder the current well

recognized regulatory framework, which provides employers with the necessary discretion to tailor safety processes to the specific conditions of each worksite, ACC members supplement the PSM elements and implement a p rogram that incl udes many of the elements in the safety case framework. For more details, see Section C below.

Under OSHA‘s PSM standard, an employer team with expertise in engineering and process operations must address the hazards of the process, identification of pr ior incidents that had potential for catastrophic consequences, e ngineering and administrative controls (and their interrelationships and the consequences of their failures, including a qualitative evaluation of possible safety and health effects on employ ees), facility siting, and human factors. See 29 C.F.R. § 1910.119(e)(3). After notice and comment rulemaking, OSHA modified Subsection 1910.119(e) ― so that employers are not required to implement every recommendation offered by a Process Hazard Analysis Team ,‖ although employers must consider all recommendations. See Preamble to Process Safety Management of Highly Hazardous Chemicals, Explosives and Blasting Agents, 57 Fed. Reg. 6356

- 01 ( Feb. 24, 1992 ) (―PSM Preamble‖) (emphasis added). As clearly stat ed in the PSM Preamble, ―[i]t is critically important that a PHA Team have freedom to make broad recommendations, at risk of being wrong . . . . [W]hen a team recommendation is incorrect, the employer can analyze it and then document in writing why the re commendation is not being adopted or is being adopted with modification.‖ See id. (emphasis added). OSHA intentionally delegated the responsibility to evaluate and reject or implement site

- specific recommendations to the employer. The employer, after al l, is most familiar with the site, safety concerns, and practical hurdles to and consequences of operational changes.

In contrast to the current OSHA (as well as California OSHA) programs, under the proposed safety case regime, regulators who are not i ntimately familiar with technical aspects of the worksite or involved in process safety analyses would make the ultimate decision to accept or reject a safety program. Again, the CSB Report‘s safety case regime requires up

- front3

―acceptance‖ from ― highly technically competent inspectors with skill sets familiar to those employed by the industries they oversee.‖ See CSB Report at 9. General industry knowledge from inspectors, however, may not be enough; ACC respectfully submits that individual facilities, with onsite safety experts and engineers who are intimately familiar with the jobsites, have the most sophisticated understanding of site

- specific safety conditions. ACC is concerned that a safety case regulatory regime ultimately would deprive employers the necessary discretion over how best to handle safety on their particular worksites. Prior acceptance by inspectors with unknown backgrounds who are unfamiliar with the jobsites would impede an employers‘ ability to make safety decisions quickly and ef fectively. ACC believes that shifting responsibility to approve safety decisions from employers to inspectors, who inevitably will be less familiar with the jobsites, would be ill

- advised.

In addition to practical and efficacy concerns, the safety case regime outlined in the CSB Report represents a major policy shift that would create significant legal issues if implemented by the State of California as recommended by the CSB. See CSB Report at 90

- 91. If implemented in California first, without an y corresponding change to the federal system, the end result will be two completely different regulatory regimes governing process safety. On one hand, for the federal system, ACC members are (and would continue to be) subject to OSHA‘s PSM standard, whic h is a performance

- based standard; yet, if California agreed to implement the CSB‘s recommendations, ACC members in that state would be subject to a completely different regulatory regime. See CSB Report at 90

- 91. Section 18 of the Occupational Safety an d Health Act of 1970 (―OSH Act‖), 29 U.S.C. § 667, allows states to develop and operate their own safety and health programs in the workplace with approval and monitoring from OSHA. OSH Act Section 18(a) permits states to assert their own standards in the absence of federal laws: ―Section 18(a) has been consistently interpreted by OSHA and the courts to bar the exercise of state jurisdiction over issues addressed by an OSHA standard, even where the state law may arguably be more stringent or where OSHA ha s not explicitly addressed a provision.‖ N.J. State Chamber of Commerce v. New Jersey , 653 F. Supp. 1453, 1464 (D.N.J. 1987) (citations omitted) (holding that a federal OSHA asbestos training program preempted a New Jersey program).
ACC does not believe that California would have the legal authority to implement such a drastic change to the regulatory requirements for process safety

— a change that is completely different from the federal regulation. If California did take steps to implement these recommen dations, such a proposal likely would be pre

- empted by federal OSHA. Simply put, any goal

- oriented safety case regulatory regime in California would be on dubious legal footing, given OSHA‘s preemption of this area of law through the performance

- based PSM standard.

Moreover, state plan state programs must be ― at least as effective in providing safe and healthful employment and places of employment as the standards promulgated [by federal OSHA].‖ OSH Act Section 18(c)(2) (emphasis added). Thus, under th e OSH Act, federal OSHA establishes the baseline for worker safety that state plan states must meet or exceed. Here, ACC does not believe that the safety case regime is as effective as the federal PSM program, and the CSB has cited little to no statistica l or other evidence establishing that a safety case regime would be as effective as the PSM. In fact, the CSB Report itself laments that ―[u]nfortunately, there have been few objective studies conducted on the impact of the safety case regulatory approach on safety performance onshore and offshore.‖ See CSB Report at 109. Indeed, the ACC has identified studies that seriously call into question the efficacy of the safety4

case regimes. See, e.g. , Nancy Leveson, MIT White Paper on the Use of Safety Cases i n Certification and Regulation (2011) (see sections on Potential Limitations of Safety Cases, Experience with Safety Cases, and Practical Considerations in the Use of Safety Cases). The CSB Report itself acknowledges many of these widely documented proble ms with the implementation of the safety case regime. See CSB Report, Appendix B at 110

- 12. Thus, any safety case regime implemented by the State of California would be subject to legal challenges
under Section 18 of the OSH Act on that basis as well. Note that additional legal issues with the safety case regime, such as the use of vague and subjective evaluative criteria and the lack of objective benchmarks for employers to follow, and the resulting lack of notice to employers for compliance purposes, are discussed in greater detail below.

Finally, ACC believes that the CSB has grossly underestimated the budget and personnel resources necessary to implement a safety case regime, not to mention the resource commitment required to ensure that such a r egime is in any way effective. The CSB Report does state that the safety case regime could only succeed if the relevant state or federal agency undertook significant commitments to its implementation, including:

 an ―independent, well

- funded, well

- staff ed, technically competent regulator‖; and

 a compensation system to ensure that the regulator can attract employees ―with the necessary skills and experience to ensure regulator technical competency.‖
See CSB Report at 90

- 91 (outlining recommendations to C alifornia and OSHA). The CSB essentially admits that the program could only work if fully staffed with experts to implement the regime‘s procedures and s et its limits, including staff with appropriate technical backgrounds and industry experience to evalu ate and approve Safety Case Plans. Yet, at the same time, the CSB acknowledges that programs with similar upfront inspection goals have failed due to resource limitations, such as, for example, the inability of the EPA to conduct proactive audits of RMPs.
See CSB Report at 62

- 63 (the ―EPA has not effectively implemented the audit and inspection elements‖ of RMP; according to IG report, 50 percent of high

- risk RMP sites have never
received an on

- site inspection and over 65 percent of all RMP sites have nev er received an on

site inspection since the program began in 1999). ACC understands that there are approximately 14,000 RMP s ites in the United States, and ACC believes that the number of refineries and other
facilities envisioned to be covered under the CSB‘s proposed safety case regime would be even greater. Taking these numbers as a baseline, ACC finds it difficult to believe that there is any realistic way for the federal government to find and hire sufficiently trained inspectors to handle
the duties envisioned by the CSB. This same concern applies equally to the CSB‘s proposal for California, as the same resource constraints would apply in proportion to the number of covered
sites in that state. 3 At the end of the day, ACC believes that the lack of staff sufficiently trained to properly evaluate and enforce such complex regulatory requirements would lead to a chaotic and ineffective regulatory regime, and would doom this program to failure.

In summary, ACC believes that the current framework un der the PSM standard with performance

- oriented requirements best addresses process safety management objectives. A dramatic shift to an entirely new regulatory framework is neither warranted nor justified. At this point, OSHA is in the process of underta king a review of PSM to follow up on Executive Order

3 ACC notes that it already implements a program that involves third

- party audits under its Responsible Care ® program (in addition to the continuous and ongoing efforts on process s afety undertaken by ACC members at their facilities), as discussed in more detail in Section C of this letter.5

No. 13650 (August 1, 2013) through the Request for Information (―RFI‖) on Process Safety Management and Prevention of Major Chemical Accidents (RIN 1218

- AC82) issued on December 9, 2013. ACC looks forwa rd to participating in the RFI and working with OSHA on these issues in a transparent Administrative Procedure Act (―APA‖) rulemaking process in the
near future.

B. Regulators’ Review Of Subjective Criteria Without Objective Benchmarks
Under The Reco mmended Safety Case Framework Would Be Practically Difficult To Implement And Follow

The safety case regime described in the CSB Report would require inspectors to review a safety case for ―acceptance‖ through use of subjective criteria that lack objectiv e benchmarks. Although the Report calls for ― highly technically competent inspectors with skill sets familiar to those employed by the industries they oversee,‖ inspectors‘ ability to accurately evaluate these factors, and to do so consistently across loc al offices of regulators and facilities, is questionable. These factors are inherently subjective and difficult to review without extensive training and knowledge of the site, the organization, and its history.

Allowing inspectors to evaluate such s ubjective criteria raises practical issues over what various regulators will require. Currently, the standard that would be imposed by investigators for approval is vague and provides little notice of what constitutes compliance. For example, the anticip ated application of the As Low As Reasonably Practical (―ALARP‖) standard by regulators is extremely unclear

– how will inspectors evaluate whether a facility has satisfied the ―reasonably practical‖ standard? Will different offices of the regulatory agen cy (such as Cal

OSHA under the proposed recommendations) have differing positions on what is required to be in compliance with these inherently subjective factors? Would the State of California or OSHA be willing to define the criteria for what is reasona bly practical, and publish this for use among all the facilities to ensure that consistent criteria are applied? How would an inspector be able to ascertain ALARP standards without a roadmap for tracing the unit‘s assessment process for each
element under question? An employer, and not a regulator, is in the best position to know what is reasonably practical within the framework of its own risk evaluation process, experience, incident history, engineering assessment, and other self

- analytical tools.

Alo ng the same lines, the CSB does not explain what standard a regulator must follow before an employer‘s safety case is ―accepted.‖ Unless quantified and/or delineated criteria are published, the regime will be ineffective and provide little notice as to wh at is actually required of employers. There will be a strong risk that disparate, incongruous ―acceptable‖ solutions will exist, depending on the individual inspectors involved, simply because there are no set standards. In short, the safety case framewo rk purports to be a prescriptive regime that requires employers to meet a minimum benchmark of acceptability, yet the CSB Report fails to set forth any clear benchmarks or articulate how such benchmarks would actually be developed and ultimately
communicat ed to stakeholders.

This uncertainty created by the CSB proposal raises legal issues as well. A regulation is ―unconstitutionally vague under the due process clause of the Fifth or Fourteenth Amendments if it  ̳forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.‘‖ Ga. Pac. Corp. v.6

Occupational Safety & Health Review Comm’n , 25 F.3d 999, 1005 (11th Cir. 1994) (citation omitted) (finding the ph rase ―obstructs forward view‖ to be insufficiently defined, and therefore unconstitutionally vague); see also Diamond Roofing Co. v. Occupational Safety & Health
Review Comm’n , 528 F.2d 645, 649 (5th Cir. 1976) (―[A]n occupational safety and health
standar d must give an employer fair warning of the conduct it prohibits or requires.‖). ACC believes that the elements of the safety case regime that an employer is required to follow before the safety case is ―accepted‖ by the regulator (to allow the employer t o use or operate its facility) are unacceptably subjective and unclear. The essence of the CSB proposal for safety case is succinctly stated on page 37 of the Report: ―the onus is on the duty holder [i.e., employer] to prove to the regulator that the com pany‘s processes, methodologies used to assess risks, and reasoning for choosing one control over another have substantially reduced risks to as low as reasonably practicable (ALARP), or equivalent. ‖ See CSB Report at 37 (emphasis added). In practical re ality, employers would simply not have notice as to what is required of them. Employers

– including ACC members

– would be subject to oversight by a regulator (no matter how well trained) with less of an understanding of its particular site on the wide ra nge of complex issues at stake in the development of the appropriate process safety.

ACC submits that it is impractical for the CSB to expect California (or any other regulatory agency, federal or state) to be in a position to issue sufficient guidance to enable stakeholders to understand what would be expected of them for compliance purposes under this regime. Rather, ACC believes that if such a proposal were enacted, the result would be confusion, inconsistent application, and delays for stakeholders before taking necessary steps forward in process safety (as any decision such as the follow

- up to a process hazard analysis (―PHA‖) or a Management of Change would be subject to review by the regulator under this system). Ultimately, any discretion prese nt in the current performance system under PSM would
be eliminated , along with the flexibility normally envisioned with performance

- oriented regulatory systems.

C. Employers

– Not Regulators

– Are In A Better Position To Implement Many
Of The Elements Of Th ese Recommendations

The CSB justifies its recommendations for the safety case regulatory framework based on an assumption that the current PSM framework is ―reactive‖ and ―activity based,‖ and that the
PSM has become static and does not address the develo pment of new technology, new safety approaches, and ―advancing best practices.‖ See CSB Report at 9. The CSB contends that the current system is so focused on specific tasks and activities that it does not drive the achievement
of continuous risk reducti on. See id. Thus, the CSB advances the argument (relying on an unsupported third party report) that the PSM system is a ―minimum cost‖ and ―compliance based approach,‖ in which employers purportedly take the approach that if it is not a ―regulatory requi rement,‖ then they will not actually comply. See id. at 30. The CSB also raises the concern that the PSM regulatory framework does not direct employers to develop a holistic safety management system approach to process operations. See id. at 29

- 32.

In the alternative, the CSB outlines what it describes as the ―key features‖ of an ―effective major accident prevention‖ approach such as the safety case regime: (1) duty holder safety responsibility, including a written case for safety; (2) continuous Risk Reduction to ALARP; (3) adaptability and continuous improvement; (4) active workforce participation;7

(5) Process Safety Indicators that drive performance; (6) regulatory assessment, verification and intervention; and (7) an independent, competent, well

- fun ded regulator. See CSB Report at 36.

ACC strongly disagrees with these purported observations and conclusions. The chemical industry, without the direction of regulators, continues to challenge its understanding of process safety through the ongoing development of hazard identification and analysis tools. For example, the industry has gone beyond the requirements of PHA through enhanced
self

- analytical processes with layer of protection analyses (―LOPAs‖), fault tree and event tree analyses, as well as full

- blown quantitative risk analyses.

Since promulgation of the PHA and PSM, the chemical industry continues to strive for improvement. For example, ACC and its members already have taken the lead in developing a new paradigm of process safety tha t not only complements the current regulatory structures (PSM and RMP), but goes beyond the current regulatory requirements to require the broad framework of a safety management system. This system results in a culture of continuous improvement, all witho ut the intervention of a regulator and under the discretion of the employer who has better understanding of the specific workplace conditions. ACC requires each member to achieve certain goals in the Responsible Care ® Management System and the RC14001 ®
Te chnical Specifications, including the following: (1) to make continual progress toward the aim of no accidents, injuries, or harm to human health or the environment; (2) to design and operate facilities in a safe, secure, and environmentally sound manner; (3) to install a culture throughout all levels of member organizations to continually identify, reduce, and manage process safety risks; (4) to support research on the health, safety, and environmental effects of member products and processes; and (5) to communicate product, service, and process risks to our stakeholders. Conformance to these goals and practices is confirmed through third party audits conducted on
ACC members.

Specifically, each ACC member must commit to implementing and adhering to the following process safety management practices:

(1) Leadership and Culture

– Senior management and leadership are committed to establishing and communicating process safety as a core value and enforcing high standards of performance at all levels within t he organization. Company leadership also promotes and develops a process safety culture within the organization, encouraging openness to raise concerns and identify opportunities for improvement.

(2) Accountability

– Process safety roles and responsibili ties across the organization are clearly defined and include an expectation to identify, and authority to respond to, process safety concerns. Senior leaders are held accountable for process safety performance, while employees understand the importance of process safety as it applies to their jobs and are responsible for following and contributing to the work processes to achieve improvement in company process safety performance.

(3) Knowledge, expertise and training

– Process safety competency requirement s are established and executed for management, engineering, and operational8

personnel, as well as contractors and third

- party service providers, commensurate with the activities performed.

(4) Understanding and prioritization of process safety risks

– Mem ber companies identify and understand the hazards and risks of their processes and implement systems for documenting and accessing comprehensive and current information

on process

- related hazards and risks to enable informed decision

- making.

(5) Comprehen sive process safety management system

– Member companies design systems to manage and mitigate identified risks with adequate safeguards. Management of process safety considers: passive controls; engineering controls; operational controls; inherently safe r approaches; inspection, maintenance, and mechanical integrity programs; management of change procedures; and scenario planning.

(6) Information sharing

– Member companies establish processes fostering two

way flow of information between management, empl oyees, contractors and other stakeholders to share process safety information, ensuring that experiences from process safety reviews, inspections, audits, and incident and near

- miss investigations are shared, as relevant, across the company in a timely man ner. (7) Monitoring and improving performance

– Senior management and leadership continually monitor process safety performance through routine evaluation of process safety management systems, independent of regulatory audits, to confirm
that the desired results are achieved, using appropriate leading and lagging indicators. Results are reviewed at planned intervals to determine progress against process safety performance expectations and to take action to improve performance when needed.

Under the Re sponsible Care ® program, each ACC member is required to demonstrate compliance with each of these elements. Thus, members not only already implement so

- called ―key features‖ identified by the CSB as the justifications for the safety case proposal, but, in fact, go beyond what the CSB suggests in its safety case proposal.

For example, the CSB states that one of the ―key strength[s]‖ of the safety case regime is that it provides the regulator ―with the tools to drive continuous improvement‖ to reduce risks to ALARP, rather than ―focusing on compliance with activity

- based regulatory requirements.‖ See CSB Report at 43. Yet, ACC members already implement a wide variety of steps to achieve the goal of continuous improvement and risk reduction to ALARP; those steps include the development and implementation of a comprehensive process safety management system to manage process risks and the development of a safety culture to manage those same risks. ACC members already undergo third

- party audits to demonstrate compliance with this program. ACC believes that its members are best situated to take the lead role in developing and overseeing programs suited for their particular facilities, rather than the approach envisioned by the safety case regime where the regul ator (without any history or knowledge of a particular facility) must review and oversee the program. Further, ACC does not agree with the CSB regarding the need to completely redesign the approach to process safety where ACC members already have a

progra m in place addressing the ―key features‖ cited by the CSB to justify the safety case regime.9

D. The ACC Has Significant Legal Concerns (Including Due Process Concerns) Regarding The Recommendations To Implement New Requirements
Without The Need For Rulemak ing

ACC is concerned that the safety case regulatory regime opens the door for backdoor rulemaking without the required notice and comment. Specifically, the CSB Report includes the following recommendation: ―Ability to adapt and implement safety requi rements in response to newly identified hazards, advances in technology, lessons learned from major accidents, and improved safety codes without the need for new rule

- making .‖ See CSB Report at 90 (emphasis added); see also id. at 89 (―The safety case pro vides the adaptability necessary to keep current with improving standards and advancing technology, without requiring lengthy and often unproductive rulemaking on the part of the regulator .‖ (emphasis added)); id. at 48 (―The cumbersome rulemaking process and lack of flexibility that has resulted in stagnant and static OSHA standards can be contrasted with the structure of the safety case regulatory regime, which facilitates adaptability and enables the regulator to improve industry safety performance and

p ractices without requiring a major rule change .‖ (emphasis added)). 4

The CSB press release issued on December 16, 2013 in connection with the release of the Report provides further clues as to this approach: ―Under a safety case system, changing safet y standards, new technologies, and findings from accident investigations are required to be incorporated by facilities.‖ The CSB further states in this press release that one of the justifications for this approach is that it has issued a number of proces s safety regulations from its investigations, yet ―none of these important regulatory recommendations have been implemented.‖ See CSB Press Release (Dec. 16, 2013). In effect, the CSB approach would grant unprecedented leeway in setting requirements beyo nd the current legislative checks and balances, and opens the door for short

- circuiting the rulemaking process altogether.

This recommended back

- door rulemaking is of grave concern to ACC and the general public. ACC members would be faced with the obl igation to implement ―advances in new technology‖ without any regulator having to determine through APA rulemaking whether there is significant risk and without having to establish the necessary feasibility requirements. ACC members would then be obligate d to follow these new requirements without the opportunity to participate in the APA rulemaking process (and presenting any input and/or practical issues with any such proposal). ACC has the same concerns regarding the obligation to implement

4 The CSB goes on to argue that the safety case ―essentially provides the regulator with the tools to recognize more rigorous standards and pract ices that exist and drive a company to implement those practices to further reduce risks, as well as work with industry to improve existing standards and practices if necessary. It also enables companies to implement new, more efficient or safer technolog ies that do not necessarily meet strict prescriptive regulation, but that drive risk reduction.‖ See CSB Report at 48. In addition to the obvious concern of ACC that the CSB‘s proposition would end

- run the current APA regulatory requirements (creating a number of legal and due process issues discussed throughout this comment), ACC notes that its members already take steps to implement ―new,‖ ―more efficient,‖ and ―safer‖ technologies under the current regulatory regime, without any regulatory requirement to do so. Moreover, as discussed in Section B herein, ACC is greatly concerned regarding the inherent confusion of the safety case regime as to exactly what would be required in terms of such ―new,‖ ―more efficient,‖ and ―safer‖ technologies, and exactly how the benchmark for compliance would be determined and justified.10

―improved saf

ety codes‖ or ―changing safety standards‖ without the regulator establishing the need for such requirements under APA rulemaking.

The CSB Report suggests that any employer subject to the recommended safety case framework, if implemented, would automati cally be required to follow a wide variety of new requirements without the opportunity to participate in any transparent rulemaking process, and without clear direction as to which of the new technology, accident, or safety recommendations would actually h ave to be implemented by employers. If this regime were implemented without rulemaking, employers would not know who sets deadlines for implementation and compliance. Also unclear is what agency would enforce the regime and evaluate compliance with these recommendations. Furthermore, ACC cannot be required to follow each prescriptive requirement from consensus standards without the opportunity to participate in the rulemaking process. Without proper rulemaking procedures, employers would not know who wo uld decide what consensus standards, if any, would need to be followed, or what recommendations in the CSB Report are mandatory, given the CSB‘s lack of enforcement mechanisms.

ACC completely disagrees with the discussion in Appendix B to the CSB Repor t wherein the CSB contends that the safety case regime would allow changes to process safety requirements without APA notice and comment rulemaking. See CSB Report at 105

- 06. It is one thing for an agency to issue guidance to provide more details on comp liance to existing regulatory requirements, and yet another to suggest (as the CSB does in its Report) that completely new substantive requirements, based on new technology, incident investigation reports, and safety codes (such as consensus standards) cou ld be imposed on employers without the opportunity and due process rights to participate in its development. ACC further disagrees with the CSB‘s conclusion in Appendix B that the safety case regime (as proposed by the CSB)
is somehow consistent with the Regulatory Flexibility Act and its underlying principles. The purpose of the Regulatory Flexibility Act is to ensure adequate opportunity to participate in transparent rulemaking. See 5 U.S.C. §§ 601 et seq.

E. The Basis And Justifications For The Applica tion Of The Safety Case Regulatory Regime Are Not Applicable To ACC Members’ Workplaces

The incidents listed in the CSB Report as justifications for the imposition of the safety case regime largely involve accidents that are in dispute and/or otherwise ina pplicable and insufficient to support the shift to this completely different regulatory approach.

For example, the CSB Report Appendix A lists ―Significant Petroleum Refinery Incidents in 2012,‖ yet ACC remains skeptical that this list appropriately cap tures so

- called significant petroleum refinery incidents. Based on information provided by our members, we understand that several incidents listed are minor or highly disputed. ACC would like more information regarding how the list was compiled and the extent to which it influenced policy and/or supported an argument for a safety case regime. ACC believes that these incidents cannot support the imposition of the burdensome safety case regulatory regime.

Moreover, the CSB Report maintains that ―r egulat ory approaches similar to the safety case regulatory regime, which require risk reduction to ALARP or equivalent, have been implemented in the nuclear sector by the Nuclear Regulatory Commission (NRC) and the11

aerospace sector by NASA.‖ See CSB Report at 1 1; see also id. at 34

- 35 (explaining that (1) the NRC has adopted a performance oriented regulation with a license requirement that includes overall goals to reduce risks to as low as reasonably achievable, or ALARA, and (2) NASA utilizes the goal of a saf

ety system that reduces risk to as safe as reasonably practicable, or ASARP). Drawing conclusions for chemical facilities and refineries from NASA and/or the NRC‘s experiences with safety case regimes, however, is inappropriate. NASA and the NRC
deal wit h extremely narrow and specific technologies, equipment, and operations, involving high consequence of failure on a scale completely different than that presented by the chemical industry. NASA and NRC‘s coverage is in sharp contrast to the broad

- base and wide range of facilities of ACC members, with vast differences in size, scope and operation. What might work in a narrowly defined operation such as NASA‘s role in space exploration or the NRC‘s role in oversight of the nuclear power industry simply woul d not work in the environment within which ACC members operate.

CONCLUSION

While ACC supports the general goals articulated in the CSB Report, ACC has major concerns with the implementation of a safety case regulatory regime which, as previously no ted, would represent a drastic and unnecessary change in policy from the current regulatory framework in place governing process safety. ACC strongly believes that the recommended safety case regime would create significant practical problems as well as l egal issues without any corresponding benefit in workplace safety.

Instead, ACC recommends that the CSB present its concerns regarding the current framework in the ongoing RFI issued by OSHA (as triggered by Executive Order No. 13650 ―Improving Chemica l Facility Safety and Security‖) to review the PSM standard. OSHA will have ample opportunity to undertake such a review and analysis of the current PSM framework in this transparent APA rulemaking process before any effort is made to promulgate an entire ly new regulatory approach such as the recommended safety case system.

Finally, given our strongly held concerns, ACC believes that before any regulatory agency considers the merits of such a dramatic shift, sufficient objective data would need to be

ga thered and analyzed before determining what regulatory approach makes sense consistent with such objective data and the demonstrated need for any type of new regulatory regime. ACC hopes that the CSB will proceed deliberately in this regard and continue to allow interested parties the opportunity to comment and work together constructively on this effort consistent
with our comments.

Respectfully submitted,

Rachel A. Meidl Director, Regulatory & Technical Affairs12

American Chemistry Coun cil
700 Second Street, NE Washington, DC 20002 Rachel_meidl@americanchemistry.com

Jonathan L. Snare Counsel for American Chemistry Counsel Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, D C 20004 jsnare@morganlewis.com