The Honorable Dr. David Michaels
Assistant Secretary of Labor
U.S. Department of Labor
Occupational Safety & Health Administration 200 Constitution Avenue

Washington, D.C. 20210

Dear Assistant Secretary Michaels,

March 13, 2014

We the undersigned organizations are writing to formally submit comments in response to Docket Number OSHA-2013-0020 – Process Safety Management and Prevention of Major Chemical Accidents. The organizations sending this letter represent thousands of facilities across the nation covered by Process Safety Management (PSM) regulations. In addition, the International Institute of Ammonia Refrigeration (IIAR) is an ANSI accredited standards writing body whose standards are used as Recognized and Generally Accepted Good Engineering Practices (RAGAGEP). The questions posed in the RFI are of great interest to our organizations and member companies and we appreciate the opportunity to provide comment.

Below are our specific comments on the sections most relevant and applicable to our organizations and members:

1. Clarifying the PSM exemption for atmospheric storage tanks

We recommend that OSHA provide clarification regarding the proposals related to storage tanks. It is unclear whether the atmospheric storage tank definition would apply to ammonia refrigeration in that storage vessels in the process could be pulled into other storage tank definitions/requirements. The main portion of the proposed change is in regards to flammable liquids, and the concerning language is “include flammable liquids in atmospheric storage tanks within or connected to a PSM covered processes”. “Connected to” may incorporate vessels that are part of a covered process, thus being redundant to the current PSM standard. We believe the revised language is intended to apply to fuel storage tanks in open areas but may have further reaching applicability than intended without specifics listing what vessels would be covered and what “connected to” or “adjacent to” means. There are very few ambient conditions that would result in close to atmospheric pressure conditions for ammonia. The current PSM regulations cover vessels and their protection very well.

Atmospheric storage tanks could apply to nurse tanks or charging tanks ammonia facilities use for system charging/unloading or special storage during large system maintenance pump downs. We would not recommend this practice and applicability to PSM processes as it would lead to unneeded burdens placed on facilities (ie: could require MOC for temporary hook-ups to the process with P&IDs, etc for a routine practice). Thus, we recommend that OSHA outline what specific industries would be captured under the expanded definition of atmospheric storage tanks. We suggest the addition of language clarifying that ammonia refrigeration systems are specifically excluded from any “atmospheric tank” regulations.

6. Revising the PSM Standard to Require Additional Management-System Elements

Revising the PSM Standard to require additional management-system elements raises a number of questions and concerns. Because the PSM Standard is supposed to be a performance-based, we are opposed to requiring specifying management-system metrics required by those subject to the standard. Requiring facilities to use and share metrics is more prescriptive than a performance-based standard should mandate.

In addition, the PSM Standard already includes management practices in almost all elements. For example, CCPS – RBPS does not appear to really have 20 separate management systems. Rather, it appears that they have broken out portions of existing PSM elements and subdivided them. “Process Safety Culture”, “Process Safety Competency”, and “Stakeholder Outreach” RBPS elements are already being incorporated into the Employee Participation portion of PSM programs. For those truly unique elements included in RBPS, not all of them may apply to facilities with ammonia refrigeration systems.

CCPS primarily focuses on the production of chemicals and the processes used to create chemicals, thus the CCPS should not be used as an applicable source for all PSM processes. We believe this would stifle innovation and some industry best practices are not applicable to all other industries. While we recognize continuous improvement and metrics can be useful tools, we are concerned that they cannot effectively be a measure of compliance or non-compliance. Therefore, we do not feel continuous improvement and metrics should be added to the PSM standard.

The IIAR’s PSM and Risk Management Program Guidance contains a sample Management-System document which provides management system guidance directly applicable to the ammonia refrigeration industry. Adding the requirement for more complex management processes has the potential to occupy resources that would otherwise be applied to improving compliance with existing requirements while adding little value towards safety.

Should such additional management system elements ultimately be required, it would be important to coordinate the requirements between PSM and RMP. When the EPA was developing their Accidental Release Prevention Requirements (40 CFR Part 68), the initial drafts for the Risk Management Program (RM Program) contained substantial differences with the PSM Standard which had been issued four years earlier. Facilities were rightfully worried that they would have to maintain two separate, distinct programs: A PSM program to comply with the OSHA requirements and a Risk Management Program to comply with the EPA requirements. Numerous comments to the EPA convinced them to include program elements in the RM Program which are essentially identical to the PSM program elements.

Section 68.15 of the Risk Management (RM) Program Rule requires facilities to develop a Management System. The precedent set in 1992 to keep PSM and RM Program elements identical if at all possible should apply in the case of the Management Systems.

While we do not endorse the addition of management system elements, should OSHA move forward with the proposal, we strongly recommend that OSHA adopt the following language from Section 68.15 to avoid duplication of effort by facilities implementing PSM and RM Program requirements:

(a) The owner or operator of a stationary source with processes subject to Program 2 or Program 3 shall develop a management system to oversee the implementation of the risk management program elements.

(b) The owner or operator shall assign a qualified person or position that has the overall responsibility for the development, implementation, and integration of the risk management program elements.

(c) When responsibility for implementing individual requirements of this part is assigned to persons other than the person identified under paragraph (b) of this section, the names or positions of these people shall be documented and the lines of authority defined through an organization chart or similar document.

7. Amending Paragraph (d) of the PSM Standard to Require Evaluation of Updates to Applicable Recognized and Generally Accepted Good Engineering Practices (RAGAGEP)

We strongly believe that IIAR standards represent the most applicable RAGAGEP for the ammonia refrigeration industry. These standards should be the primary source material for OSHA inspectors in ammonia refrigeration facilities. With that said, we also believe that facilities should maintain the flexibility to define the RAGAGEP for their facilities.

The addition of a requirement to evaluate updates to applicable RAGAGEP is not necessary. The Management of Change (MOC) and Process Hazards Analysis (PHA) sections of PSM and RMP are sufficient to identify risks without a stand-alone requirement for evaluation of RAGAGEP. The Formosa Plastics incident used as an example is a situation where a Process Hazards Analysis Revalidation should adequately identify appropriate RAGAGEP for incident prevention. Furthermore, it is likely impractical for covered facilities to update all processes to maintain conformance with current standards without any other changes in design. The MOC and PHA elements coupled with Employee Participation and Pre- Startup Safety Review are adequate for identification of new hazards created by process changes or to identify hazards based on incidents since the last PHA Revalidation. Adoption of requirements of a revised code or standard at a specific facility should still be left to the determination of the facility. The expectation is that any PHA update would include a review of current IIAR standards from the lens of what has changed relative to the existing installation.

There would be a significant and unwarranted regulatory burden if process owners are required to continuously research and evaluate updated RAGAGEP to determine the differences between the codes and standards at the time of construction and current codes, standards or white papers, which are not necessarily in alignment. Justification would be required to document why each change in code or standard should not be implemented for the existing facility. Even the model codes and standards do not require revisions for existing facilities to meet the most current requirements. Small changes in the model codes and standards can have a significant cost impact to implement for an existing system with little or no benefit for reducing injuries, fatalities, and property damage. This requirement would discourage construction of ammonia refrigeration systems covered by PSM due to the risk and uncertainty about the extent and frequency of mandated system modifications which could potentially be capital intensive and cause business interruptions.

8. Clarifying the PSM Standard by Adding a Definition for RAGAGEP

We agree that adding a definition for RAGAGEP could be useful to help owners better understand requirements under the standard. A definition for RAGAGEP may also be helpful in reducing the instances of OSHA inspectors citing standards that are not as applicable to a given type of facility. For example, there have been occasions where OSHA inspectors have applied American Petroleum Institute (API) standards to ammonia refrigeration facilities. Better defining RAGAGEP can reduce the misapplication of standards by inspectors and facilitate better understanding and application by facility owners. A definition of RAGAGEP should include methods and “whys”, but not go so far as how to do something like inspect, which becomes a maintenance procedure. A definition of RAGAGEP should not take away the ability of a facility to identify which RAGAGEP they are applying to their operations.

While the CCPS definition appears consistent with what IIAR has developed within its suite of standards, there is still some concern about potential confusion regarding which codes are required by OSHA in a given situation. There is also concern about the application of manufacturer’s recommendations within RAGAGEP. While OSHA has a tendency to look to manufactures recommendations for industry standards for mechanical integrity, it is important to understand that manufactures recommendations should not automatically be considered industry standards or RAGAGEP because they can be motivated by factors other than the reductions in injuries, fatalities, and property damage.

9. Expanding the Scope of Paragraph (j) of the PSM Standard to Cover the Mechanical Integrity of any Safety-Critical Equipment

Conceptually, the proposal to expand the coverage of the Mechanical Integrity element to all safety- critical equipment seems reasonable. For the ammonia refrigeration industry, covered facilities already must identify components, controls and PM frequency for them in accordance with OEM recommendations. In addition, IIAR is currently working on IIAR 6 that will be designed to specify the mechanical integrity requirements for all safety-critical equipment in an ammonia refrigeration system.

However, for such a change to be effective, a workable definition of “safety-critical” must be developed. The determination of what is safety-critical can be subject to broad interpretation. For example, the loss of any utility within the control of the owner could be construed to represent a significant risk to the process, even when the process is designed to safely shutdown on a loss of utilities. However, there would likely be no special requirement for the utilities out of control of the owner.

10. Expanding the Scope of Paragraph (l) of the PSM Standard with an Explicit Requirement that Employees Manage Organizational Changes

There is some merit in expanding the Management of Change requirements to include organization changes, as long as there is clear guidance on what organizational changes qualify. We believe that the majority of organizational changes do not rise to the level of requiring inclusion in Management of Change.

The following “Tip” is contained in the management of change section of the IIAR’s PSM and RMP Program Guidelines and can provide some useful perspective on what organizational changes should be included in management of change programs:

Tips: Modify these definitions and add additional definitions applicable to your facility. For example, you might modify the definition of a “change” to include operating and maintenance staffing changes such as cutbacks in the staffing of operations or maintenance personnel or to address labor issues such as work stoppages (e.g. strikes).

If organizational changes are included, “replacements in kind” should be exempted from the management of change requirements to address normal transitions which occur at a typical facility provided that actual staffing levels or reporting requirements do not change. For example, if a Refrigeration Technician retires the facility should not be required to complete the management of change form if they plan on hiring a new Refrigeration Technician and training him to replace the Technician that left. However, the elimination of a Refrigeration Technician position may warrant inclusion. In the spirit of performance based standards, facility owners should be given a sufficient level of flexibility to design their own programs to meet the requirement.

11. Revising Paragraph (n) of the PSM Standard to Required Coordination of Emergency Planning with Local Emergency-Response Authorities

Coordination with local emergency planning and response authorities is an important aspect of safety. As a result, such coordination is already specifically required in the RMP Rules. Enforcement of this issue is linked through Hazard Communication, Emergency Action and HAZWOPER Standards. The coordination with local agencies (i.e. LEPC, Fire Department, Police, etc.) is required by the EPA’s Chemical Accident Prevention Provisions (40 CFR Part 68.95(c)). An argument can be made that the issue of coordination is well covered through EPA and that adding a requirement to PSM is redundant.

Coordination with emergency planning/ LEPC is required under EPA and confined spaces are listed in the CFR, both of which OSHA highlights in the PSM RFI. The PSM performance standards allow the facilities to define how the EAP/ERP are addressed. Thus, we do not see a direct benefit of OSHA adding this recommendation into the PSM code. If anything, we believe OSHA should reference other federal codes applicable to emergency response such that there is not a burden created if one code is updated while another is not. This could cause contradiction and complexity/confusion for implementation. We believe the proposed change is a duplication of efforts by regulatory bodies and should be avoided.

It should also be noted that some facilities may not be in an area with a LEPC that could/would assist in an event which would also impose and unnecessary burden on facilities. Additionally, there may be circumstances wherein facility personnel are more trained and qualified through HAZWOPER training and practice than the LEPC. While we recognize inclusion of the LEPC for a covered process facility is mostly beneficial it may not always be the most beneficial course of action for a facility depending on experience and training.

Clearly define a reasonable level of coordination with planning and response authorities presents a significant challenge. If facilities are “required” to coordinate their response activities, OSHA must recognize that despite the best efforts of facilities sometimes the coordination is a “one-way” street. It

is very difficult at times to get the local responders to visit each PSM-covered facility regardless of the urgency and the number of the invitations provided. If a facility can demonstrate that they provided appropriate information to the off-site responders and contacted them on a regular basis that should be sufficient to demonstrate that they have attempted to encourage coordination with these responders.

In addition, there needs to be a recognition of the ability of industrial response team that deals with fire, bomb threats, boiler alarms, etc. A trained operator should be allowed to engage the plant’s emergency shut-down procedure while working with the same PPE that they would be using when opening the system for repairs (APR, full skin protection, ammonia monitor, and gloves).

The following information from the emergency planning and response section of the IIAR’s PSM and RM Program Guidelines provides a useful perspective on the issue of coordination:

10. Coordination with Off-Site Responders

The following elements of the emergency plan are coordinated with off-site responders:

(1) Procedures that will be followed to inform the local emergency response agencies about emergencies at the facility

(2) Procedures that will be followed to conduct search and rescue operations

(3) First aid and emergency medical procedures that will be followed to treat accidental human exposures

(4) Procedures that will be followed to respond to accidental ammonia releases

(5) Amount and type of emergency equipment that is available on-site and through outside agencies

(6) Training and drills that will be conducted with outside agencies

(7) Decontamination and clean-up procedures

(8) (Insert Additional Elements if Applicable)

To address the above, the following procedures will be followed to verify that our emergency plan is coordinated with off-site responders:

(1) Copies of the Emergency Plan will be sent to each of the off-site responders for their review and comments whenever changes are made to the plan.

(2) Representatives from each of the off-site responders will be invited to tour the facility and talk with facility personnel to review the Emergency Plan on an annual basis.

(3) Off-site responders will be invited to participate in any related training and drills with facility personnel.

(4) (Insert Additional Procedures if Applicable)

Tips: Expand and/or modify this section to reflect the procedures followed to coordinate the emergency action and/or response plan with off-site responders. For example, insert additional procedures if applicable.

All facilities are encouraged to develop written or oral arrangements of responsibilities regarding emergency response activities with their local emergency response agencies. These arrangements should address the following issues:

•   names and/or titles of primary and secondary contacts;

•   telephone numbers and pager numbers for 24-hour contact; and

•   a brief description of major responsibilities of each party.

  12. Revising Paragraph (o) of the PSM Standard to Require Third-Party Compliance Audits

  Compliance audits are useful tools for evaluating a facility’s safety. However, we are concerned about the intended definition of “third-party”. We strongly believe that third-party audit should not be limited to hiring outside personnel to perform the audit. Outside consultants have their place, but facilities should have the flexibility to utilize internal safety experts from other facilities or corporate headquarters to perform audits.

  Third party doesn’t necessarily equate to more qualified or independent auditors. Often third parties are motivated to generate work for themselves as a result of an audit. When the PSM regulation was first implemented there were many contractors that developed auditing capabilities as a way of generating business. Often the internal auditor is more familiar with the process and the inherent risks. Internal audit teams are often more thorough than a third party and share best practices from other facilities. Using internal auditors develops the auditing experience and expertise in house where it is more accessible as opposed to losing it to a third party. Process owners should have the ability to identify the resources required to conduct audits whether it be by independent internal resource or a third party.

  Requiring facilities to hire outside auditors also has the potential to put small businesses at a disadvantage. Hiring auditors can be a costly process. If a small business has access to qualified internal auditors, they should have the flexibility to use them.

  Should OSHA move forward with this proposal, we strongly encourage the use of a definition similar to the one used in Section 6.6.4 of IIAR Bulletin #110:

  This inspection should be carried out by a person who has the training and knowledge for this task, for example:

•   An employee of the owner, competent to perform inspections and who is independent of the daily operating responsibilities for that installation

•   An independent organization or individual competent to perform inspections

•   An inspector from the insurance company who is licensed to write pressure

  vessel insurance

 A licensed inspector from the jurisdiction where the pressure vessel or shell-and- tube heat exchanger is located.

We are opposed to the agency defining certification requirements for third-party auditors. Requirements for the credentials of the auditors has some merit, but due to the breath of the PSM standard, a single standard is not recommended (i.e. Oil refinery is much different than a refrigeration system). The performance based concept in PSM should be applied here, where the employer sets the standard for the “qualifications” of the auditors.

In addition, certification is not required for PHA Team Leaders. The PHA process and the audit process are equivalent and equally important activities, therefore there should not be added qualifications to perform an audit. The following requirements are consistent with those for PHA team leaders and should be applicable to auditors:

“One member of the audit team must be knowledgeable in the Process Safety Management requirements and in auditing techniques.”

We are opposed to the requirement to mandate specific time frames to respond to issues identified during an audit since no two audits and no two recommendations are identical. Some recommendations can be implemented before the audit is completed, others may take years, and significant capital investments, to fully implement. Having a written action plan and showing action on items should be acceptable.

We believe that requiring audits every three years is an appropriate timeframe. Auditing more frequently than every three years is an extra burden on the process owner since there is time and expense associated with the auditing process whether it is internal or external. Audits are disruptive to the normal operation of the process since the operating staff must also prepare and participate in formal audits. This is particularly true of smaller entities whose staff’s handle multiple responsibilities. Increasing the frequency of auditing to annual or bi-annual is no more likely to improve compliance than the current three year requirement.

In addition to responses directly related to questions raised in the RFI, we would also like to address the importance of investments in training and safety. Currently, penalties associated with citations result in payments going directly to the U.S. Treasury. Under this system, funds associated with citations are purely punitive and end there. In some cases, companies look at this as a “cost of doing business” and merely pay the associated fines. We strongly believe that these resources would be better placed by directing them to investments in training and upgrading safety programs. Such a mechanism would facilitate a greater engagement between companies and the agency in addressing deficiencies and developing stronger safety programs.

Education and improved training programs have been proven to be effective in improving the safety record of ammonia facilities. Developing a system that would allocate some of the funds identified through OSHA citations back into safety programs would be very effective in eliminating ammonia releases and insuring a safer workplace. These programs may include worker safety training, basic operator education programs, first responder equipment upgrades and training and required plant facility upgrades. We strongly encourage OSHA to consider implementing a consent decree type process similar to the Environmental Protection Agency that would allow OSHA and facilities to identify ways to invest dollars related to citations that will have a direct impact in improving safety. Such a

process will result in a better trained workforce, stronger safety programs, increased capacity of emergency responders and enhanced relationships with the agency.

We appreciate the opportunity to respond to the RFI and urge you to consider the comments and recommendations included in this response. If you have questions about our submission please contact Lowell Randel at 703-373-4300 or [email protected].

Sincerely,

American Frozen Food Institute
American Meat Institute
Global Cold Chain Alliance
International Association of Refrigerated Warehouses International Institute of Ammonia Refrigeration Refrigerating Engineers and Technicians Association