Safety case recommendations flawed, says ACC
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January 30, 2014
Safety case recommendations flawed, says ACC

The chemical industry is pushing back against a recommendation by the U.S. Chemical Safety Board (CSB) that a new safety framework be imposed on facilities such as petroleum refineries.  The framework, called the safety case system, would be added to current national regulations (and state-based versions of those regulations), primarily OSHA’s process safety management (PSM) program, and EPA’s risk management program (RMP). 

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But the safety case system would substantially change the obligations of both the regulated entity and the regulatory inspector. 

Comparison with PSM

For example, the PSM standard requires that chemical-based hazards be identified, evaluated, and controlled.  But there are no more specific requirements about how far risks should be reduced, how effective the controls must be, or which hierarchy of controls should be followed.  Under a safety case regime, a facility would need to make a case to a regulator that major hazards are being controlled and risks reduced as low as reasonably practicable (ALARP). 

One key element of the safety case regime is that the regulator be represented in this process by “highly technically competent inspectors with skill sets familiar to those employed by the industries they oversee.”  The safety case approach has been adopted by other countries, including Australia, Norway, and the United Kingdom.

Highly competent inspectors

In comments on CSB’s recommendations, the American Chemistry Council (ACC) expressed concerns about multiple aspects of the safety case system, including the difficulty of transitioning to a new regulatory framework and the vagueness of requirements that facilities would need to meet to make a compliant case.  But the ACC seems most concerned about providing inspectors with the authority to stop a facility from operating if the case being made is not strong enough. 

“In contrast to the current OSHA [program], under the proposed 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,” said the ACC.  “The CSB report's safety case regime requires up-front ‘acceptance’ from highly technically competent inspectors with skill sets familiar to those employed by the industries they oversee.  General industry knowledge from inspectors, however, may not be enough; ACC respectfully submits that individual facilities, with on-site 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 employer’s 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.”

Additional resources

The ACC adds—and the CSB concedes—that acquiring inspectors with the skill sets needed to make a safety case would require substantial new funding.  The ACC notes that because of lack of funding, the EPA has not performed on-site inspections at 65 percent of the 14,000 facilities covered by the RMP, which has been in effect since 1999.  According to the ACC, the number of facilities that would be subject to the envisioned safety case program 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,” says the ACC.

In response, the CSB acknowledges that regulatory agencies would need “additional resources” to run a safety case program.   The CSB also points out that the regulator would need to show that any new requirements under the safety case program are reasonably practicable, either by demonstrating that it is already a best practice somewhere, or that it is reasonable with respect to the hazard being controlled. 

CSB’s summary of comments and responses to those comments

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