February 20, 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 Attn: R. Moure-Eraso 2014 Draft Investigation Report: Tesoro Anacortes Refinery Incident Dear Dr. Moure-Eraso: The American Chemistry Council1 (ACC) is pleased to provide a written response to the U.S. Chemical Safety and Hazard Investigation Board’s (CSB) January 2014 Draft Investigation Report of the Tesoro Anacortes Refinery Incident. Safety has always been a primary concern of ACC members; both ACC and its member companies have been recipients of and benefitted from CSB safety recommendations. We value CSB’s independent and technical insight and utilize the lessons learned from incidents to improve performance as well as standards and practices. The CSB investigation of the Tesoro Anacortes refinery accident and subsequent recommendations will be important to help determine what actions might be warranted based on the root causes of this incident and could ultimately influence the direction of the regulated community. Although CSB’s investigation uncovered deficiencies in Tesoro’s practices, ACC believes the agency was incorrect on several of its recommendations. Specifically, the recommendations pertaining to the implementation of inherently safer systems, ascribing the use of the “Safety Case” approach, and general reference to the incorporation of industry best practices were inappropriate given the findings enumerated in the interim report. 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 $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. americanchemistry.com® 700 Second St., NE Washington, DC 20002 (202) 249.7000 2 The Honorable Rafael Moure-Eraso, Ph.D. February 20, 2014 ACC and our member companies proactively work to continuously improve process safety standards and practices with comprehensive management systems that include consideration of inherently safer technologies. The suggestion that legislation is needed to require the use of the most corrosion resistant materials on the authority of inherently safety technology (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, 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. ACC’s members are committed to chemical safety and recognize IST as a potential tool to achieve this goal. CSB’s recommendation to require 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. Creating IST regulations would be a complex undertaking at best, provide little benefit, and could 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. It is also important to highlight that the main issue leading to the heat exchanger failure was a lack of a robust mechanical integrity program, including routine inspection and testing. Had Tesoro conducted scheduled non-destructive testing on the heat exchangers, which were known to be in hydrogen service, the deficiencies would have been appropriately addressed. To conclude that IST would have prevented this incident on a piece of equipment that has been in service for 40 years is speculative. As was the case in the Chevron Richmond Refinery incident, the actual failure was a gap (or breakdown) in the site’s mechanical integrity program. While ACC shares the CSB’s goals of ensuring that process safety is handled and implemented as safely as possible, ACC has a number of concerns about the recommendations in the January 2014 Draft Investigation Report for Public Comment regarding the establishment of a safety management regulatory framework based on “safety case” principles. 2 In particular, ACC believes that its members, through 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 recommended safety case regulatory regime is not justified by the reasons articulated in the report, nor would the safety case framework actually achieve the desired results and benefits for covered workplaces. ACC also is 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. americanchemistry.com® 700 Second St., NE Washington, DC 20002 (202) 249.7000 3 The Honorable Rafael Moure-Eraso, Ph.D. February 20, 2014 concerned that the drastic changes contemplated by the recommended safety case framework would result in a wide variety of practical problems if implemented.3 The general reference embedded into the recommendations of PHA and IST requiring the analysis and incorporation of “industry best practices” is concerning. “Industry best practices” could involve a multitude of procedures that are not considered Recognized And Generally Accepted Good Engineering Practice (RAGAGEP), resulting in inconsistencies and misinterpretations should a regulatory agency adopt or enforce this generic concept. RAGAGEP, language that is already codified into the framework of OSHA’s PSM and EPA’s RMP, requires the regulated community to define and document what guidelines, standards and principals are used to design, operate and maintain covered processes to sustain and continually improve process safety. The nonspecific inclusion of “industry best practices” undermines the significance of RAGAGEP and is inconsistent with verbiage cited in existing regulations. ACC member companies have standards and work practices in place to manage the integrity of our facilities to reduce the risk to personnel using RAGAGEP. These standards and practices are reviewed and, where warranted, updated as new data becomes available as part of our commitment to safety and continuous improvement. In conclusion, the CSB’s recommendations pertaining to the implementation of inherently safer systems, ascribing the use of the “Safety Case” approach, and general reference to the incorporation of industry best practices are unwarranted. These actions are inadequately justified and, more importantly, would fail to directly address CSB’s findings. ACC recommends that CSB revise the report to eliminate the references to IST and “industry best practices” and focus recommendations to specifically address the agency’s findings. 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 Affairs 3 Refer to comments submitted by ACC on Regulatory Report No. 2012-03-I-Ca, Draft for Public Comment, Chevron Richmond Refinery Pipe Rupture and Fire (December 2013). americanchemistry.com® 700 Second St., NE Washington, DC 20002 (202) 249.7000