Comments of the BlueGreen Alliance to the The U.S, Occupational Safety and Health Administration (OSHA) Docket Number OSHA-2013-0026 Submitted March 31, 2014 via www.regulations.gov On Executive Order 13650: Improving Chemical Facility Safety and Security and the Modernization of OSHA’s Process Safety Management Standard This document provides the recommendations of the BlueGreen Alliance in response to “Executive Order 13650. Section 6(a) - Solicitation of Public Input on Options for Policy, Regulation and Standards Modernization, (EO-SPI)” as well as in response to OSHA’s Request for Information (RFI) concerning the modernization of its Process Safety Management (PSM) standard and other related issues. The BlueGreen Alliance is a partnership of 10 labor unions and 4 environmental organizations working together to build a cleaner, fairer and more competitive economy. The BlueGreen Alliance believes that the implementation of Executive Order 13650 can dramatically improve five ways to protect the American people and the environment and the economy they share. By: 1. 2. 3. 4. 5. Ensuring and Expanding the Right to Know and the Power to Act; Promoting Prevention through Safer Processes and Chemicals; Enhancing Emergency Response; Improving Inspections of High Risk Facilities; and Promoting Public Engagement; the policies and programs that result from EO 13650 can create safer and more secure chemical facilities and stronger and more resilient communities across the United States. Our comments are organized in six sections, as follows: I. Comments on Agricultural Grade Ammonium Nitrate (AN) Issues II. General Policy Recommendations for Modernization of OSHA’s PSM Standard III. Policy Recommendations Related to OSHA PSM Standard in Response to Specific Questions in the “Solicitation of Public Input” IV. Policy Recommendations Related to Emergency Planning and Response Issues IV. Policy Recommendations Related to EPA’s Risk Management Program (RMP) Rule V. Policy Recommendations Addressing Additional Topics in “Solicitation for Public Input” (EO-SPI). Sections II and III also address the issues raised in OSHA’s Request for Information (RFI) concerning the modernization of its PSM standard. Section VI addresses numerous other issues in OSHA’s RFI. For comments that directly address questions in the Solicitation or the RFI, the relevant parts or page number(s) in those documents are listed in parentheses to assist the agencies in reviewing our recommendations. Numerous comments go beyond the “preliminary options” outlined in the Executive Order’s solicitation for public input and therefore do not have a reference to specific sections of that solicitation or of OSHA’s RFI. In addition to both the broad and specific comments in this document, the BlueGreen Alliance believes that the Workgroup in charge of implementing this Executive Order should assign long-term responsibility for implementation of the mandate of the EO. This responsibility should include ongoing stakeholder communications and participation processes, fora, outreach, training and evaluation for the changes that are made, refinements to the plan to maximize chemical safety, and an annual progress report to the public. I. Comments on Agricultural Grade Ammonium Nitrate (AN) Issues (EO SPI, pp. 9-11). We recommend that: 1. OSHA, EPA, NIOSH, and the Agriculture Department systematically research the technical efficacy, costs, and trade-offs of the several reported AN substitutes or alterations (e.g., physical form, mixing with other salts, substitution by other sources of desired minerals) including any environmental and lifecycle impacts of such changes. 2. EPA list AN as an RMP chemical and require that distribution facilities, to the greatest extent feasible, substitute AN with inherently safer alternatives, or, as a minimum, conform to the requirements of the latest version of NFPA 400, Chapter 11 on AN. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 2 of 22 3. Both agencies develop a vigorous compliance assistance and education campaign to reach the newly regulated parties with the relevant guidance. II. General Policy Recommendations for Modernization of OSHA’s PSM Standard Approximately two decades have passed since OSHA’s PSM standard and EPA’s RMP rules went into effect, and a great deal of experience and knowledge have accumulated in that time. Yet neither rule has been materially updated. The evidence is abundant that best practices to prevent chemical accidents have evolved a great deal since the Clean Air Amendments that triggered these two standards. The Center for Process Safety of the American Institute of Chemical Engineers http://www.aiche.org/ccps, to cite only one example, has published dozens of books and other specialized publications that contain new best practices. Much has also been learned from the investigation of catastrophic incidents by the US Chemical Safety Board, the British Health Safety Executive and similar agencies, as well as from the enforcement experience of OSHA and EPA. This experience needs to be incorporated into the modernized standards. Both rules are therefore due for major review and modernization. The following recommendations address twenty-one major areas where the BlueGreen Alliance believes there should be fundamental changes made to the OSHA PSM standard. 1. Explicitly include as a requirement of the PSM standard the basic management system principle of continual improvement. This principle is at the core of all management system standards, including Recognized and Generally Accepted Good Engineering Practices (RAGAGEPs), ISO quality and environmental management system standards, as well as health and safety management system standards by AIHA/ANSI in the U.S., the International Labor Organizations (ILO), and the British Standards Institute (BSI). 2. Explicitly require, whenever feasible, the maximum use of inherently safer chemicals, technologies and processes (EO-SFI, p. 13, Section m). As part of these efforts: a. Review, adapt and adopt the most effective provisions of the New Jersey Toxic Catastrophe Prevention Act http://www.nj.gov/dep/rpp/brp/tcpa/, the Contra Costa County, BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 3 of 22 California Industrial Safety Ordinance http://cchealth.org/hazmat/iso/ and similar programs. The new regulations should fully recognize the limitations of the provisions of the New Jersey Act and the Contra Costa Ordinance that require consideration but not adoption of inherently safer chemicals practices. b. Require all facilities covered by the OSHA PSM standard to register through the existing database of RMP facilities operated by EPA. Then build from the authority under Section 112(r)(1) of the Clean Air Act to require facilities regulated under PSM and RMP to expand the implementation of inherently safer chemicals. c. Establish a publicly available database repository of proven, promising and experimental inherently safer alternatives to hazardous chemicals, technologies and processes, in collaboration with private sector partners such as chemical industry trade and professional associations, labor, academia, and other interested stakeholders. d. Initiate two or more pilot projects to actively pursue and obtain the implementation of IST in specific processes where the economic and technical feasibility are reasonably well established. Some candidate projects are the elimination of Hydrogen Fluoride (HF) from alkylation processes in refineries, the substitution of chlorine by inherently safer substitutes in both municipal and industrial water treatment processes, and the substitution of the currently used forms of ammonium nitrate by less hazardous substitutes. 3. Recommend to the President and Congress that they establish and implement economic incentives to encourage firms to discover, test, and commercially deploy inherently safer alternatives to hazardous chemical processes. These incentives may entail, for example, tax relief mechanisms, “rewards” for demonstrable risk reductions or others. These incentives could be paid for by substantially increasing penalties for BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 4 of 22 serious violations so the fines reflect the true toll that chemical facilities take on the health and safety of the American people and their environment. 4. Establish requirements to collect and publicly list process safety performance indicators that would be reported by regulated parties and made publicly available in a new format by OSHA for the site, corporate and national levels (EO-SPI, p. 11, Section f). Indicators are an indispensable element for any effective health and safety management system. As the saying goes, “if you don’t measure it, you can’t manage it.” While much attention has been given to the difference between “leading” and “lagging” indicators, we believe that the full range of this spectrum of indicators must be utilized, and that an excessive emphasis on the distinction between them can detract attention from the essential characteristics of effective indicators, as follows: a. Their primary goal and attribute must be their ability to continually drive improvements in safety performance. Indicators can drive improvements at the site, corporate, industry sector or national levels. Indicators will also help to target enforcement efforts to the worst hazards and worst violators, as well as permit the evaluation of the effectiveness of the regulatory and industry efforts to control chemical hazards. b. They must be predictive of the potential for serious incidents, so they can drive improved performance. Whether they are “leading” or “lagging” will depend on the time frame envisioned for the preventive actions. For example, a process failure that leads to an unplanned release which is in turn controlled by a properly-functioning flare is nominally a “lagging” indicator, because the unwanted event (the release) has already occurred. It is also a “leading” indicator, however, in a longer and different time frame, in the sense that correcting the conditions that caused the unplanned flare event can prevent a future system disruption and potentially a more serious event. A similar argument applies to any loss of containment or fire, even if they do not result in human injury or property damage. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 5 of 22 c. They must be frequent enough to possess sufficient statistical ability to be as quantitatively predictive as possible. For this purpose, indicators cannot rely on counts of major incidents alone (i.e., explosions, large fires, fatalities and serious injuries), because these events are too infrequent at the establishment and often even at the company level to yield large enough numbers for meaningful statistical analysis, and thus permit preventive actions likely to have widespread impact, rather than largely “one-off” improvements. d. They must be based primarily on going outside the boundaries of: 1) any of the multiple layers of protection that are part of the hazard control mechanisms for high hazard chemicals, or, 2) the systems that monitor and maintain these layers in proper operating order. These multiple layers nearly always exist to protect against the complex chain of events that typically lead to serious incidents. To take the example above, any unwanted flaring incident reflects a process upset or failure, and should be “counted” as an indicator event, even if the release is adequately controlled by a flare system and does not progress to a serious contaminant release. Another example would be the detection of thinning in piping in excess of predicted behavior under maintenance-monitoring protocols, even if the thinning has not yet resulted in a leak. The thinning should be recorded and “counted” as a significant indicator event because it can be preventive of a major future pipe failure, as well as indicative of a shortcoming in the monitoring protocol (i.e., too infrequent or otherwise inadequate). Arguably, this is a “more lagging” indicator than the earlier example. Other and even “more lagging” indicators can and should also be employed, such as maintenance and safety requests made and completed (or not) on time, corrective actions taken or not taken, number and rate of “out of range” measures of process conditions or controls, and many others, depending on the nature of the hazardous processes and the layers of control. Again, a similar argument would apply to any unplanned loss of containment or fire, even if these events are “controlled” before human injury or property loss. In a nutshell, the indicators must be linked causally to actual or potential harmful outcomes, so that they have predictive power, and they must be frequent enough to be useful for statistically meaningful analysis. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 6 of 22 e. The agency, in collaboration with industry and labor should agree upon one basic set of standardized indicators to be used by all regulated parties, to permit the collection of meaningful national statistical data and benchmarking. This core set of indicators must not exclude the use of other and more specific indicators by individual industry sectors, companies or establishments. f. They must be reported at the site and company levels to upper management, including Boards of Directors and owners/shareholders, to the workforce, and to the public, to permit benchmarking and encourage improvement. While the primary function of indicators is to drive continual improvement in performance; public reporting is a key tool to incentivize and help ensure that such improvements take place. In addition, the Workgroup should investigate the possible establishment of one or more systems (in specific industry sectors) of anonymous reporting of safety problems similar to the Federal Aviation Administration’s Aviation Safety Action Program (http://www.faa.gov/about/initiatives/asap/). The system encourages the reporting of safety-related events anonymously in the aviation industry, even when they may involve mistakes on the part of the reporting employee. OSHA should strive to test a similar model in one or more high-hazard industry sectors, such as refineries. 5. Include in the revised PSM an explicit requirement defining the roles and accountabilities of upper management in a health and safety management system (i.e., Board of Directors, owners of private businesses, etc.), as is the case in the United Kingdom, which has a “best practice” that applies to upper management roles and accountabilities in a management system http://www.hse.gov.uk/pubns/indg417.pdf. 6. Add a new requirement to PSM to perform Process Hazard Analyses (PHAs) at least every three years and to reduce risks identified in PHAs to ALARP, as defined in the United Kingdom’s Health and Safety at Work Act to mean as low as reasonably practicable. This would assure that process hazard analysis (PHA) of a covered process focus on the effectiveness of the controls or the hierarchy of controls. Requiring risk reduction to ALARP is essential to the effective use of the Safety Case and is BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 7 of 22 being used by both the Nuclear Regulatory Commission (NRC) and the National Aeronautics and Space Administration (NASA). 7. Develop and implement mechanisms to substantially enhance the currently very limited degree of workforce participation in all aspects of the management system required by the PSM standard. As well as ALARP and the accountability of upper management, two additional essential elements of the Safety Case should be incorporated in modernizing the PSM standard (EO-SFI, P. 13, Section o): a. A legally-mandated, tripartite decision-making structure in which employers, employees and the government equally share decisionmaking power in making safety decisions. In aviation, the Event Review Committees (ERCs) made up of equal numbers of representatives from management, labor and the FAA who review safety incident reports and recommend corrective actions, by consensus, provide one good model of such a structure. (http://www.faa.gov/about/initiatives/asap/ b. The financial resources that allow for the addition and maintenance of enough highly skilled and experienced, well-compensated government officials to engage on ongoing review of PSM plans and to engage and partner with employers and worker representatives in process safety. 8. Ensure that contract labor who perform construction, maintenance and repair work have the necessary skills and health, safety and job protections and are properly trained in PSM. The National Institute of Environmental Health Sciences (NIEHS Worker Education and Training Program http://tools.niehs.nih.gov/wetp/ should establish the criteria and serve as the leading resource for how this training. 9. Require that safety performance is a key criterion in the selection of firms that are engaged for contract work (i.e. through review of workers’ BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 8 of 22 compensation experience, OSHA citations and fines, written site-specific occupational health and safety plans, employee training). 10.Amend the standard to extend the required use of Recognized and Generally Accepted Good Engineering Practices (RAGAGEPs) to all the components of PSM (RFI, Parts 7 & 8), not only to the few areas that are now explicitly covered by the RAGAGEP requirements (i.e., design aspects of the process hazard analyses and a limited number of pieces of equipment and mechanical integrity issues). A fundamental principle of effective management systems and performance-oriented approaches to regulation is the need to continually improve performance, and this can only be done if regulated facilities employ recognized and up-to-date best practices for all elements of the required management system. The current explicit RAGAGEP requirement in the standard is far too narrow. 11.Require that the RAGAGEPs that underpin all elements of the standard be updated periodically (e.g., under paragraph (d) (3) (ii) of the standard, as well for additional sections of the standard for which the use of RAGAGEPs will be required as discussed above) (RFI, Parts 7 & 8). Best practices evolve with experience, and thus true RAGAGEPs cannot be static. This would ensure, for example, that the most up-to-date best practices are serving as the basis for the 5-year required revisions of Process Hazard Analyses. There may also be instances when the RAGAGEPs would need to be updated more frequently, as when a major event or research reveals previously unknown or under-appreciated catastrophic dangers. The standard should also be revised to require that employers continually keep abreast of developments in the RAGAGEPs that are the basis of their process safety information and their process hazard analyses, by following developments in the consensus standard(s) and other activities from which their RAGAGEPs arise. 12.Develop and implement funding mechanisms based on fees on the regulated parties to cover the costs of inspection and auditing functions, and to ensure an adequate regulatory workforce. Consider a system that rewards safety improvements and that ties fees to the extent of risk. Fee systems are in place under New Jersey’s Toxic Catastrophe Prevention Act as well as under the Industrial Safety Ordinance of Contra Costa County, California. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 9 of 22 13.Ensure sufficient funding for the regulatory agency to sustain an adequate and competent cadre of field, scientific and technical experts, with competitive salaries to ensure a reasonable rate of retention. 14.Add a required element to the PSM standard to address human factors such as fatigue, worker-machine interactions (ergonomic design) and other factors that can optimize the protection of human health and safety as well as overall system performance. The Center for Chemical Process Safety’s (CCPS) Human Factors Methods for Improving Performance in the Process Industries can provide a framework for this requirement. Ensure that this new PSM element does not adopt a “blame the victim” approach based on socalled “behavioral safety.” 15.Remove the PSM inspection exemption from Voluntary Protection Program sites. 16.Modify the PSM standard to require prompt corrective actions whenever shortcomings are identified under any element of the standard (e.g., through audits, inspections, MOC procedures, PHA revisions, etc.). Corrective actions should always follow the hierarchy of controls and seek inherently safer solutions. 17.Establish systems to collect and report to OSHA and EPA more information on process safety incidents especially coded information about the risk factors that lead to them (EO-SFI, p. 13, Section n). The current information gathered through accidents currently reported to the RMP database provides only very crude and insufficient causal or risk factor information, and they need to be enhanced. 18.Investigate the performance of PSM and RMP among small and medium establishments, and develop requirements, guidance and incentives to improve it (EO-SFI, p. 13, Section h). The chemical manufacturing sector includes a very large number of small and medium-sized establishments. These may be traditional manufacturers, but many are also “specialty” chemical firms, often operating under toll or “toll-like” arrangements (i.e., manufacturing for one or a very small number of customers) as part of a BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 10 of 22 supply chain to larger firms that use their chemical products. Experience accumulated in the last decades strongly suggests that a sizable number of catastrophic incidents occur in such small and medium-size establishments, and that their management and even their professional staff are often illinformed about process safety regulations or principles. This effort should not focus narrowly on “highly hazardous chemicals that are not their facility’s primary products,” (see section g, p. 12 of 23, Options document), because the lack of understanding of PSM principles often exists equally for precursor chemicals or their finished products. 19.Explore the use of possible mechanisms to apply principles from product stewardship “in reverse” to the supply chain in the chemical industry. These approaches would entail imposing responsibilities on purchasers of chemicals in the supply chain to ensure that their suppliers are using effective process safety practices. Third-party audit mechanisms could play a role in such schemes, as is the case in the auto industry, which requires that their supply chains meet certain minimum quality and environmental performance standards, as measured by conformance to ISO management system standards. 20.Take advantage of the modernization of the PSM standard to give momentum to the promulgation of I2P2 regulations, which would be, in effect, the application of management system principles to prevention efforts in the broader occupational health and safety arena. The broad acceptance of the performance-based approach which underpins the PSM standard should be exported to this wider arena. The agency should not lose sight of the fact that, despite the well-deserved outrage that catastrophic incidents elicit, the toll of occupational disease deaths and disease from chronic lower-level exposures to toxic substances in workplaces is many orders of magnitude that of the deaths and injuries resulting from major incidents. Moreover, a well-integrated management system that addresses both “routine” toxic substance exposures and catastrophic releases is both possible and desirable, because the underlying principles of hazard identification and analysis, application of controls and corrective actions, monitoring, and continual improvement are identical. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 11 of 22 21.Both OSHA and EPA must conduct vigorous compliance assistance and education campaigns for all changes that are made to the PSM standard and directed to both employers and employees. Ensure that workers in high hazard facilities receive assistance materials and training in their primary languages. . The resources and criteria of the National Institute of Environmental Health Sciences (NIEHS Worker Education and Training Program http://tools.niehs.nih.gov/wetp/ should be employed to ensure effective education and training of all employers and employees. III. Policy Recommendations Related to OSHA PSM standard in Response to Specific Questions in the “Solicitation for Public Input.” 1. The scope of coverage of the PSM standard should be expanded by: a. Extending coverage to all oil and gas production facilities and drilling services, as well as hydraulic fracturing (fracking) operations (OSHA RFI, Parts 3 & 4). b. Expanding coverage to all atmospheric tanks containing gasoline and other hydrocarbons with similarly low flash points, in order to prevent and/or minimize the very serious risks of vapor cloud explosions resulting from overfilling, leakage or other spills from such tanks (OSHA RFI, Part 1). The RAGAGEPs (Recognized and Generally Accepted Good Engineering Standards) acceptable for the control of this hazard must be equivalent to, at a minimum, the hazard controls now required for tank farms adopted by the United Kingdom following the Buncefield disaster (http://www.buncefieldinvestigation.gov.uk/reports/). c. Clarifying the coverage to include all atmospheric tanks with flammable liquids when they are “within or connected to a PSM covered process” (OSHA RFI, Part 1). The rationale is straightforward: a catastrophic event or trigger incident in a covered process can propagate to, or trigger catastrophic consequences in the connected atmospheric tank. This explicit extension of scope would BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 12 of 22 eliminate the lack of clarity that arose with the Meer decision by the OSHRC (1997, OSHRC Docket No. 95-0341). d. Expanding coverage to all “safety-critical equipment” by expanding paragraph (j) as the agency is considering (OSHA RFI, Part 9). The current language of the standard could be legalistically too narrowly interpreted to apply only to a very limited number of pieces of equipment, when many more may be critical to the safety of a process. The revision would be consistent with the original intent of the standard, as well as with modern best practices in process safety. “Safety-critical equipment” would need to be defined with sufficient precision for regulatory purposes. . e. Expanding the coverage of the PSM standard to better address reactive hazards, likely in a new and separate section (OSHA RFI Part 4). There are several actions that the agency should take towards this goal, as follows: i. Implement the 2002 recommendations issued the US Chemical Safety Board, following its study of reactive hazards (http://www.csb.gov/assets/1/19/ReactiveHazardInvestigati onReport.pdf). These recommendations were wide-ranging, including the development of a publicly available database of reactivity information, with the collaboration of the National Institute of Standards and Technology, and relying on data that are now largely held by industry (with the appropriate controls to address potential liability and confidentiality); the adoption of a broader list of reactive substances; and the consideration of reactive chemistry potential for mixtures or specific process conditions. It may also be advisable to adopt requirements that would trigger reactivity hazard analyses when certain conditions exist (e.g., certain mixtures of chemicals, the presence of certain potentially reactive chemical moieties, certain process conditions or other relevant factors that may suggest potential reactive chemistry risks). BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 13 of 22 ii. Investigate the effectiveness, and the possible adoption of all or parts of the approach towards the management of reactive hazards of the New Jersey Toxic Catastrophe Prevention Act (http://www.nj.gov/dep/rpp/brp/tcpa/), which is based on the presence of certain reactive moieties in the substances in the process, as well as other factors. These or other factors could serve to trigger obligations for the conduct of reactivity hazard analyses with tools such as the Reactivity Evaluation Software Tool developed by the Center for Chemical Process Safety (http://www.aiche.org/ccps/resources/chemeondemand/con ference-presentations/ccps-reactivity-evaluation-softwaretool), or the closely related Chemical Reactivity Worksheet of the National Oceanic and Atmospheric Administration (http://response.restoration.noaa.gov/oil-and-chemicalspills/chemical-spills/response-tools/downloading-chemicalreactivity-worksheet.html). f. Assuring that the definition of RAGAGEP explicitly includes consideration of global best practices and recognized engineering standards. See also recommended expansion of RAGAGEP concept discussed in section II, #s 10 and 11 above. g. Incorporate OSHA’s letter of interpretation https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_tab le=INTERPRETATIONS&p_id=28628) to clearly delineate that OSHA intended MOCs to include organizational change. Language such as that found in the Contra Costa County, CA, Industrial Safety Ordinance would eliminate much confusion on the necessity to conduct a Management of Organizational change. That language states: The requirement to conduct a management of change prior to staffing changes for changes in permanent staffing levels/reorganization in operations, maintenance, health and safety, or emergency response. This requirement shall also apply to stationary sources using contractors in permanent positions in operations and maintenance. Prior to conducting BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 14 of 22 the management of change, the stationary source shall ensure that the job function descriptions are current and accurate for the positions under consideration. Staffing changes that last longer than ninety days are considered permanent. Temporary changes associated with strike preparations shall also be subject to this requirement. Employees and their representatives shall be consulted in the management of change. h. Requiring all facilities covered by the OSHA PSM standard to register through the existing database of RMP facilities operated by EPA (EO SFI p. 18). The covered firms would report essential information [e.g., chemical(s) covered and amounts, industry, size of firm, number of employees and contractors, industry code, accident investigation reports, etc.]. This would help both OSHA and EPA to better understand the universe of covered facilities, chemicals, employees, etc., and especially to more effectively prioritize and target enforcement and compliance assistance activities. i. Considering additions to the list of covered PSM chemicals (EO SFE p.14; OSHA RFI, Part 5). To this effect, we urge the agency to: i. Establish a clear administrative mechanism through which different interested parties (labor, management, community organizations, agency staff, etc.) can nominate substances to be added to the list of covered chemicals. Such a mechanism does not exist under OSHA today. This mechanism should define the criteria that would need to be met to include a chemical on the list. The mechanism should consider the experience—however modest-- of the EPA in this arena, because that agency has an existing chemical “nomination” system under its Risk Management Program rule. Ultimately, the mechanisms of both agencies should be harmonized, based on an explicit rationale, and should also seek harmonization, to the extent possible, with similar mechanisms that may exist under the Department of Homeland Security rules for “chemicals of interest” as well as with mechanisms in use by other agencies that address chemical hazards. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 15 of 22 ii. We also support the incorporation of the basic aspects of the other system elements from the CCPS and BSEE documents referenced in the RFI (OSHA RFI, Part 6). IV. Policy Recommendations Related to Emergency Planning and Response Issues 1. Revise paragraph (n) of the PSM standard to require coordination of emergency planning with local emergency response authorities (OSHA RFI Part 11). We support the intent of this recommended change, but are concerned that it may be quite difficult to implement practice, given the variety of emergency response authorities across states and municipalities (states, cities, counties, salaried, volunteer, etc.) and the sometimes questionable ability of employers to coordinate with them. The available information about Local Emergency Planning Committees, for example, is that their performance is highly variable, ranging from the non-existent to the well-funded and effective. We support, however, a requirement for employers to provide all the relevant information to local emergency response authorities in order to permit them to plan responses, ideally in coordination with those employers, as well as the creation of mechanisms so that the establishments that create the catastrophic hazard risks bear the financial burden of planning, rehearsing, and conducting emergency response activities. 2. Improve public input during emergency planning, enhanced public information, alerts and outreach during emergencies. Ensure that the outreach to the community to obtain public input takes into account factors that may hamper successful outreach and participation, such as culture and language, internet and other media access or lack thereof, and others (OSHA RFI Part 6). The lessons learned through the NIEHS minority worker training and EJ training programs. http://www.niehs.nih.gov/careers/hazmat/ should be incorporated to ensure that community members understand: the policy, standards, guidance and compliance programs for: a. process safety, b. risk management planning and c. chemical facility anti-terrorism standards, including provisions to promote inherently safer approaches. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 16 of 22 3. Require improved coordination between fire brigades and facility fire departments including training and incident pre- planning including quarterly reporting to the public fire agency on all incidents that occurred on-site but were handled by plant personnel alone. This information should also be available to the public in a format that is easy-to-access and evaluate. Chemical facilities should provide financial support for public fire agencies, including for training purposes. Strategies should be evaluated to “pre-pay” public fire agencies for emergency response and equipment costs, including payments for overtime to back-fill positions for the duration of an incident, if necessary. 4. Establish a mechanism to measure the costs incurred for both immediate and long- term medical services for affected surrounding communities as a result of a chemical facility incident, and to transfer the burden of those costs to the facilities responsible for them. To do this, a system is needed to track and document both the short and longerterm health status of affected individuals, beginning with those who seek medical attention during—and in the immediate aftermath of—an incident. 5. Ensure that transit districts have developed strategies under emergency planning to respond effectively in the event of an industrial emergency. Ensure that the outreach to the community to obtain public input takes into account factors that may hamper successful outreach and participation, such as culture, language, literacy, income, internet and other media access or lack thereof, and others. 6. Establish systems to effectively monitor air contaminants during unusual events and to communicate this information to health care providers, emergency responders and the public through the full range of potential channels and media, as appropriate. Chemical facilities should bear the costs for the purchase and maintenance of state-of-the-art, real-time air monitoring equipment and communications systems. BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 17 of 22 VI. Policy Recommendations Related to EPA’s Risk Management Program (RMP) Rule 1. Establish a system for OSHA and EPA to conduct joint inspections of high hazard facilities, including joint prior review of RMPs submitted by those facilities under EPA rules. 2. Conduct joint reviews and evaluations of selected Risk Management Programs and Plans by OSHA and EPA and publish the findings. 3. Require an annual Clean Air and other environmental regulation compliance audit to be submitted to relevant state and federal agencies with summary documents posted on website. 4. Develop plan to improve toxic air contaminant monitoring and information sharing with real time data and how to increase the availability of air monitoring data on local and state websites; develop user applications and other electronic tools to make data more accessible. The Texas Air Monitoring Information System (TAMIS) http://www.tceq.texas.gov/agency/data/download-data.html provides a starting framework for an effective air monitoring framework. 5. Clarify reporting thresholds for releases or threatened releases. VII. Policy Recommendations Addressing Additional Topics in Executive Order’s “Solicitation for Public Input” 1. Regarding Options for Collaborating with Private Organizations on External Standards (EO-SFI, Part II, pp. 13-14), to the extent that resources permit, OSHA should participate as an observer in the consensus standard and other institutions listed in the “Options” document, including NFPA 400, NFPA 30, relevant API and CGA standard efforts, as needed, and CCPS efforts, although the latter are not a consensus organization per se. In addition, we recommend that OSHA participate in:  The activities of the AIHA/ANSI Z10 Committee, which is the US National Standard for Occupational Health and Safety Management Systems, and whose content is directly applicable to the projected revision of the PSM standard, as well as the planned development of BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 18 of 22   I2P2, in effect a broader set of management system requirements for all industries and all health and safety hazards.; The developing ISO standard for Occupational Health and Safety Management Systems, now underway; and, Relevant International Code Council (ICC) committees because many of their codes are later adopted into law and regulations in many states and play an important role in shaping working conditions and regulations. Of particular importance while participating in voluntary consensus standard committees, especially those whose secretariats are held by trade organizations (e.g., API, ACC, SOCMA, others), is the need for OSHA to strongly advocate:  Tri-partite balance in the committees, so that no single sector (industry, labor, government) can dominate the outcome;  The importance of including clear “shall” or obligatory language in the resulting standards, so that the minimum acceptable performance for conformance with the standard can be uniformly understood and applied. 2. Investigate the extent to which risk management plans submitted by regulated parties, or their underlying management programs, are systematically evaluated—against a well-defined set of criteria—upon receipt by EPA and prior to any field inspection that may take place. The worst case identified in RMPs, for example needs to be truly worst case reflecting a cascade of safety problems. The results of such an investigation could help inform the extent to which RMPs submitted to the agency could serve as a starting template for the “cases” that would have to be presented if a “safety case” model were to be adopted. They may also provide an important enforcement targeting mechanism even without the adoption of such a model. 3. Re: Expanding the requirements of 1910.109 to cover dismantling and disposal of explosives, blasting agents and pyrotechnics. (OSHA RFI, Part 13). We support the expansion of 1910.109 requirements to cover the disassembly of explosive materials. The Chemical Safety Board investigation of the Donaldson Enterprises facility in Hawaii in 2011, and other incidents, clearly brought to light that there are no current regulations BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 19 of 22 that are applicable to prevent or reduce the very serious risks connected to disassembling explosives. We support the development of such standards and their incorporation into the appropriate sections of 1910.109. 4. Re: Updating 1910.106 and 1910.107 based on the latest applicable consensus standards (OSHA RFI, Part 14): We support the update of both of these standards. Both these standards are based on voluntary consensus standards that are based on knowledge, technology and expertise that is now more than half a century old. This is totally unacceptable. We wholeheartedly support that they should both be modernized as soon as possible, using the most recent versions of these consensus standards as the starting point for modernizing them. 5. Re: Revising paragraph (o) of the PSM standard to require third-party compliance audits (OSHA RFI, Part 12): In principle, we support the consideration by OSHA of the use of third party systems to conduct PSM audits under the standard, with some important caveats. Before implementing such a system the agency must design and test the efficacy of mechanisms to meet the following requirements: a. All auditors must be accredited by recognized auditing organizations. Criteria for accreditation should be issued by USDOL-OSHA and subject to notice and comment. Auditors should have to apply for accreditation and their applications should be subject to notice and comment. b. When a third party auditor is chosen for a workplace that has an authorized employee representative, OSHA should require that the auditor be chosen from among accredited auditors by mutual agreement between the employer and the employee representative. Per the Sallman letter, if employees in a workplace without a collective bargaining agreement choose to designate a representative, the employer should be required to reach mutual agreement with that representative as to whom the auditor will be. c. In addition, OSHA should require that the audit team lead be an employee, representative, or agent of the auditing organization, and BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 20 of 22 have no affiliation with the employer and that, where there is an employee representative, the employer and the employee representative should each choose the same number of members of the audit team. Where there is no employee representative the members of the audit team who are not provided by the third party auditor should be divided equally between salaried and hourly employees. d. OSHA should require that corrective actions taken in response to an audit be done with participation by employees and their representatives. e. OSHA should provide a mechanism for employees and their representatives, where present, to dispute findings of the auditor if they have good reason to believe that an area of the audit was not done in a balanced manner or does not present all sides of a concern. One such mechanism would be to require the auditor to provide a written response to employee challenges to audit findings (or lack of findings) as a condition of maintaining certification and in certain cases to return to a facility to re-examine hazards that employees have alleged were overlooked. f. OSHA should prohibit auditors from having other relationships with the same employer. g. Where OSHA discovers, by investigating a catastrophic event, or some other means that an auditor failed to identify a crucial hazard, the auditor should lose its accreditation until it can demonstrate that the problems that led to the failure have been corrected. h. Moreover, before engaging in any widespread use of third-party audits, we also recommend that the agency carefully research the successes and failures of comparable existing mechanisms in the private sector, including those in the chemical industry (e.g., Responsible Care and ChemStewards), as well as those in place for the supply industry to the major US automobile manufacturers, which are BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 21 of 22 based on auditing against ISO quality and environmental management system standards. Submitted on behalf of the 14 Partners of the BlueGreen Alliance Amalgamated Transit Union American Federation of Teachers Communication Workers of America National Wildlife Federation Natural Resources Defense Council Service Employees International Union Sheet Metal, Air, Rail and Transportation Union Sierra Club Union of Concerned Scientists United Association of Plumbers and Pipefitters United Auto Workers United Food and Commercial Workers United Steelworkers Utility Workers Union of America BlueGreen Alliance Comments on Docket Number OSHA-2013-0026 Page 22 of 22