August 12, Docket OSHA ; Comments on Review of Process Safety Management (PSM) Standard Hydrochloric and Hydrofluoric Acids

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1 K E L L E Y D R Y E & W AR R E N LLP A LI MIT E D LIA BI LIT Y P ART N ER SHI P N E W Y O R K, NY L O S A N G E L E S, CA C H I C A G O, IL S T A M F O R D, CT P A R S I P P A N Y, NJ WASHINGTON HARBOUR, SUITE K STREET, NW WASHINGTON, DC ( ) F A C S I M I L E ( ) w w w. k e l l e y d r y e. c o m B R U S S E L S, B E L G I U M A F F I L I A T E O F F I C E M U M B A I, I N D I A VIA REGULATIONS.GOV William Perry, Director Directorate of Standards and Guidance Occupational Safety & Health Administration U.S. Department of Labor Room N Constitution Avenue, N.W. Washington, D.C Re: Docket OSHA ; Comments on Review of Process Safety Management (PSM) Standard Hydrochloric and Hydrofluoric Acids Dear Director Perry: On behalf of the Specialty Steel Industry of North America ( SSINA ), 1 the Steel Manufacturers Association ( SMA ), 2 and the American Iron and Steel Institute ( AISI ), 3 we submit the following comments regarding the Occupational Safety & Healthy Administration s ( OSHA s) review of the Process Safety Management ( PSM ) standard. We appreciate OSHA s most recent policy pronouncement clarifying that hydrochloric ( HCl ) and hydrofluoric ( HF ) 1 SSINA is a voluntary trade association representing virtually all of the North American production of specialty steel products, including stainless, electrical, tool, magnetic, and other alloy steels. 2 SMA is the primary trade association for scrap-based electric arc furnace carbon steelmakers, whose facilities comprise the nation s largest recyclers and account for 75% of the steel producing capacity of the United States today. The organization consists of 28 North American companies that operate over 125 facilities and employ approximately 60,000 people, and indirectly generate over 300,000 additional jobs. SMA also has a wide range of Associate Member companies worldwide that provide goods and services to the steel industry. 3 AISI serves as the voice of the North American steel industry in the public policy arena and advances the case for steel in the marketplace as the preferred material of choice. AISI also plays a lead role in the development and application of new steels and steelmaking technology. AISI is comprised of 19 member companies, including integrated and electric furnace steelmakers, and approximately 125 associate members who are suppliers to or customers of the steel industry.

2 Page Two acids (aqueous mixtures) are not covered by the PSM program. 4 The steel industry has a long history of safe use of aqueous solutions of HCl and HF acids and supports their continued exclusion. However, if OSHA were to seek to include aqueous forms of HCl and HF acids on the list of PSM chemicals, as requested in our petition filed in January 2016, we request that OSHA adopt concentration limits for these acids consistent with those adopted under the U.S. Environmental Protection Agency ( EPA ) Risk Management Program ( RMP ) (37% for HCl acid and 50% for HF acid). Our requested action reinforces OSHA s stated intent to improve coordination with EPA on chemical risk management and consistency between the PSM and RMP programs, pursuant to President Obama s August 1, 2013, Executive Order 13650, Improving Chemical Facility Safety and Security ( E.O ). This request also is consistent with Congress intent to focus the PSM program on highly hazardous substances, as well as the protective purposes of the PSM standard enunciated in the July 2016 memorandum. I. BACKGROUND The July 2016 memorandum amends long-standing policy regarding the concentration of a chemical that must be present in a process for the purpose of determining whether the chemical is at or above the threshold quantity listed in Appendix A of the PSM standard. 5 In replacing the maximum commercial grade policy applicable to the 126 chemicals listed in Appendix A without specified concentration limits, and adopting instead a one percent test, the July 2016 memorandum states that the one percent test [is] similar to that adopted by EPA under the RMP program. The memorandum explains that both the PSM and RMP programs share the same goals and are intended to prevent, or ameliorate the effects of, catastrophic releases of hazardous chemicals. In the July 2016 memorandum, OSHA concluded that the approach taken by EPA for the RMP program is the appropriate policy, explaining that: EPA addressed the concentration at which a dilute solution of a substance may pose a hazard sufficient to require a determination whether a threshold quantity is present in a process. 59 Fed Reg EPA concluded that, for a few chemicals, it could determine specific cut-off concentrations below which the chemicals need not be considered in determining whether a threshold quantity is present. The remaining substances, EPA found, could reasonably be considered to be hazardous in concentrations at or above one percent, if present in a process at the threshold quantity, unless the partial pressure of the substance was less than 10 millimeters 4 See Memorandum dated July 18, 2016, from Thomas Galassi, Director of OSHA Enforcement Programs, Process Safety Management of Highly Hazardous Chemicals and Covered Concentrations of Listed Appendix A Chemicals ( July 2016 memorandum). 5 The July 2016 memorandum rescinds and revises determinations made in a June 5, 2015, memorandum ( the June 2015 memorandum ), most notably with respect to the applicability of the PSM program to HCl and HF acids.

3 Page Three of mercury (10 mm Hg). Ibid. Accordingly, the EPA rule includes a provision requiring that if a listed substance with no specified cut-off concentration is present in a mixture at a concentration of one percent or greater by weight, the threshold quantity of the substance must be determined unless the owner or operator can demonstrate that the partial pressure of the substance under all conditions in the process is below 10 mm Hg. 40 C.F.R (b)(1). (emphasis added) For these reasons, the new enforcement policy for the PSM program, detailed in the July 2016 memorandum, adopted the general RMP approach to chemical concentration limits. However, the new OSHA policy did not adopt as well the specific concentration limits established by EPA for several chemicals, including HCl and HF acids. Instead, the July 2016 memorandum left in place OSHA letters of interpretation that concluded that the PSM standard does not cover HCl and/or HF in aqueous solutions or aqueous mixtures. II. EPA ADOPTED CONCENTRATION LIMITS FOR HCL AND HF ACIDS AFTER DETERMINING THAT SUCH AQUEOUS MIXTURES DO NOT POSE A HAZARD As made clear in the July 2016 memorandum (and the quote above), the RMP concentration limits were adopted by EPA after a detailed vetting process, including notice-andcomment rulemaking. In the final RMP rulemaking, EPA modified the one percent mixture exemption, for some substances: to reflect the amount of the regulated substance that may reasonably be anticipated to cause an effect of concern in an accidental release. The Agency has reassessed the concentration at which certain dilute solutions of regulated substances may pose a hazard to the community, sufficient to warrant treatment as a regulated substance, for purposes of determining whether a threshold quantity is present in a process. As part of this modification, EPA has decided to provide specific cut-off concentrations for certain chemicals. These chemicals, in mixtures or solutions with concentrations below the specified cut-off, will not have to be considered in determining whether a threshold quantity is present. 59 Fed. Reg. 4,477, 4,488 (Jan. 31, 1994). For HF and HCl acids specifically, EPA established the listed concentrations based on the partial pressures of these substances in water solution. Id. 6 6 The RMP concentration limit for aqueous HCl acid originally was set at 30% in 1994, and was subsequently raised to 37% percent in a 1997 rulemaking. 62 Fed. Reg. 45,130 (Aug. 25, 1997). EPA determined that increasing the HCl concentration limit was protective of the public health in several respects, including that HCl solutions at concentrations higher than 37% have a higher partial pressure of hydrogen chloride, which may indicate a greater capacity to release hydrogen chloride and have hydrogen chloride affect offsite communities. 62 Fed. Reg. 27,992, 27,994 (May 22, 1997).

4 Page Four Accordingly, EPA s program restricts the one percent test to those for which a concentration limit was not deemed appropriate. The test is not applicable to those chemicals, such as aqueous HCl and HF acids, for which alternate RMP concentration limits were adopted. To ensure consistency between the RMP and PSM programs, ease the compliance burden, and avoid confusion within the regulated community consistent with the mandate of E.O , the concentration limits for aqueous HCl and HF acids adopted by EPA for the RMP should be incorporated into the PSM program, if these solutions are to be covered at all. Failure to do so, while adopting the one percent test, would be arbitrary, at odds with the rationale underlying the July 2016 memorandum, and contrary to the purposes of the PSM program. III. THE PSM PROGRAM SHOULD FOCUS ON HIGHLY HAZARDOUS CHEMICALS Congress directed OSHA to develop a process safety standard designed to protect employees from hazards associated with accidental releases of highly hazardous chemicals in the workplace. 57 Fed. Reg. 6,356, 6,400 (Feb. 24, 1991) (emphasis added). For that reason, EPA made clear in proposing adoption of the 37% concentration limit for HCl acid that the goal of the accidental release provisions is to prevent accidental releases and minimize the consequences of releases by focusing on those chemicals and operations that pose the greatest risk. 62 Fed. Reg. at 27,993. Similarly, OSHA s PSM program is intended to protect employees by preventing or minimizing the consequences of chemical accidents involving highly hazardous chemicals. 57 Fed. Reg. at 6,356. In developing the PSM rule, OSHA acknowledged that other programs, such as OSHA s general industry standards and Hazard Communication standard, focus on routine or daily exposures [to hazardous chemicals] and while in many cases they also address emergencies such as spills they do not address the precautions necessary to prevent large accidental releases that could result in catastrophes. Id. at 6,357. The PSM rule heavily emphasizes the relationship between PSM and the EPA RMP, including the intent to address the likely potential for catastrophic consequences in the workplace. Id. at 6,358. In adopting the original PSM rule, OSHA was guided by principles that apply equally today: Id. at 6,399. OSHA has long followed the teaching that section 3(8) of the Act requires that before it promulgates any permanent health or safety standard, [it must] 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. [citing Industrial Union Dept, AFL- CIO v. American Petroleum Inst., 446 U.S. 607, 642 (1980) (plurality) (emphasis in original).] As a result, OSHA is precluded from regulating insignificant safety risks or from issuing safety standards that do not at least lessen risk in a significant way.

5 Page Five The PSM and RMP rulemakings make clear that certain chemical mixtures do not pose a significant risk that warrants coverage under these programs. For aqueous HCl and HF acids, the long history of safe use, under existing standards of care, demonstrates that there is no significant risk of a catastrophic incident to workers (or the surrounding community) from mixtures of these substances at the concentration limits established under the RMP program. In fact, we are not aware of any history at steel mills or otherwise of any significant (let alone catastrophic ) incidents involving these acids at the long-standing maximum commercial grade concentration standard of the PSM program. IV. CONCLUSION For these reasons, if aqueous HCl and HF acids are to be covered under the PSM program, we urge OSHA to adopt the 37% concentration limit for HCl acid and the 50% concentration limit for HF acid identified in the EPA RMP program (40 C.F.R , Table 1). These concentration limits have been shown through rulemaking and long history of safe use to be protective of human and worker health and not to pose a hazard that warrants coverage under the RMP (or PSM) program. By OSHA s own logic, expressed in the July 2016 memorandum and as directed by E.O , and to effectuate the intent of Congress, that same consideration should be extended to the PSM program. For further information or to discuss these comments, please contact John Wittenborn at or JWittenborn@KelleyDrye.com, or Joe Green at or JGreen@KelleyDrye.com. Respectfully submitted, John L. Wittenborn Joseph J. Green Counsel to the Steel Manufacturers Association, the Specialty Steel Industry of North America, and the American Iron and Steel Institute