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Regulatory Rollback

  • 1.  Regulatory Rollback

    Posted 07-06-2018 07:08

    In the United States we are experiencing a reversal of some of our safety regulations. We are also witnessing a decline in the size of some of the regulatory and investigative agencies. Examples are: 

    • The rollback of some of the drilling rules that were promulgated following the Deepwater Horizon / Macondo catastrophe.
    • The slow shrinkage of the Chemical Safety Board - a topic that has already been discussed at this site.
    • As has a cutback in EPA activities, also discussed at this site.

    Some of these decisions can be justified on the following grounds.


    • Some regulations are clumsily written and even contain errors. Rewriting them reduces the administrative burden on both regulators and industry.
    • There is a balance between safety and production. It is sometimes useful to rethink the location of the balance point.
    • Regulators have trouble keeping up with new technology - particularly with regard to robotics and sophisticated control systems. Hence, they are adopting a non-prescriptive/performance-based approach, which means that the rules themselves are less detailed

    But most of these regulations were written in response to a specific event, such as Deepwater Horizon/Macondo or Bhopal. There has to be a concern that the likelihood of a recurrence of one of these events is increasing.

    Ian Sutton BSc,MA
    Principal and Author
    Sutton Technical Books
    Ashland VA

  • 2.  RE: Regulatory Rollback

    Posted 07-07-2018 01:00
    Edited by Michael Bruckner 07-07-2018 01:07

  • 3.  RE: Regulatory Rollback

    Posted 07-07-2018 04:00
    There is no denying that the current US administration is bent on rolling back regulations, as well as the size of regulatory agencies.  Even though the CSB is not a regulatory agency, it has historically often advocated changes through its recommendations among state and federal regulatory agencies, as well as companies, standard-setting groups (e.g., NFPA, ASTM), industry associations (e.g., ACC), etc.  So dissolving the CSB will actually "take the pressure off" all these entities.  In that respect its denouement may actually be more effective than just a one-by-one rollback of regulations.

    In my opinion, however, there is something to be said concerning several aspects of regulations:
    • There is a point at which safety regulations attempting to be all-encompassing become too complex to be effectively applied.  One example that is currently advocated by the CSB might be a reactive chemical regulation.  I have personal experience with the reactive chemical regulations adopted by the New Jersey Department of Environmental Protection under their Toxic Catastrophe Prevention Act (TCPA) regulations, and the portion attempting to regulate "reactive functional groups" is simply unworkable, a waste of time and effort for all involved.
    • One of the features of safety regulations for "extremely hazardous chemicals" has been a list of chemicals and regulatory thresholds.  Thus the focus of efforts by the potentially regulated facility has either been to get under the regulatory threshold, or to carve out an exemption to the regulation (e.g., the Meer decision to the OSHA PSM Standard for storage of covered chemicals in atmospheric tanks not part of a process).  While getting under the threshold is potentially a step in inherent safety, it does not necessarily result in an improvement to overall risk.  Again, from my experience, I worked at a facility which used anhydrous ammonia, and kept under the regulatory thresholds by "administrative controls"; this required getting anhydrous ammonia deliveries by tank truck two or three times each day, which substantially increased transportation risk.  Note:  eventually the facility switched to use of aqueous ammonia (concentrations kept below regulatory thresholds), reducing the overall risks, as well as saving money!
    • Unless a facility succeeds in eliminating inventory and/or use of a chemical entirely, without introducing other risks, there is a danger that management will ignore the residual risks of handling chemicals which are below the regulatory threshold.  Also, while the emphasis on safety regulations for "extremely hazardous chemicals" is generally good, it is possible that the risks associated with non-regulated chemicals may not be adequately addressed.  For example, a tank of a non-regulated chemical mixture fails and topples over onto piping for an extremely hazardous chemical, thus causing its release; the possible causes might include inadequate hazard analysis, and inadequate attention to the location and condition of the non-regulated storage tank.

    Richard Rosera BSChemE,MSChemE,MBA
    Rosearray EHS Services LLC
    White Rock NM

  • 4.  RE: Regulatory Rollback

    Posted 07-07-2018 09:46
    I take Mr Rosera's point that when regulations are too specific they can be counterproductive - because it is not possible to anticipate every possible scenario.  Rather I would propose that the regulations should have to components:

    (1) the objective - viz that all corporate actions must be judged on the basis of the predictable likely impact of safety (something that any competent engineer should be able to discern).

    (2) the guidelines - give examples and case studies of how the corporate executives responsible for the company policies led to the disasters.

    In cases where disasters have occurred, the individual guilty parties should be held culpable and punished by appropriate fines and jail time, rather than fining the "corporation" which only harms the small stockholders.  Fines should also be levied against major stockholders (eg hedge funds) who have the capacity to rein in misconduct among the senior management.  The CEO should always be held personally accountable for the unsavory actions of his minions, because they would not have dared to behave criminally unless the CEO had fostered  a corporate culture that tolerated, if not encouraged, unethical conduct.

    Such a regulatory approach would make it difficult for wrong-doers to elude accountability by arguing that they were acting "in compliance" with existing regulations.  Basically, regs that are too detailed imply that that anything not explicitly prohibited is legal.  Better to say instead that anything that could knowingly (within reason) cause harm to the public is presumed to be illegal , and then it is up to the defendants to prove that it was unintended or an honest mistake, publicly accept responsibility in writing, and demonstrate remorse by resigning from their jobs and making sure that their successors change the way their company does business going forward.

    J Kumana
    CEO, Kumana & Associates
    Missouri City (Houston), Tx

  • 5.  RE: Regulatory Rollback

    Posted 07-10-2018 09:01
    Did I overlook a comment that notes that all EPA and other federal and state rules are written with extensive industry input?

    EPA rules are not simply handed down like tablets to Moses. They are written in response to a bill passed by Congress and signed by the President. The Hazardous Rules were written in response to the Resource Conservation and Recovery Act. Others have been written in response to FIFRA and other acts of Congress. The existing information is collected and testing methodologies are developed; then, a draft version of the proposed Rule(s) is published in the Federal Register. Over the next 90 to 120 days, the EPA then receives written and verbal comments (at several public meetings around the country).

    Subsequently, all of the comments are noted and answered in writing in the Federal Register, along with a revised draft version of the rule. This process
    continued for several years regarding the Hazardous Waste Rules published by the EPA. The major commenters were state health departments and environmental agencies and the refining and petrochemical industry.

    Following the publishing of the Final Rules in the Federal Register, many states applied for primacy, which gave them the opportunity to write slightly different rules that were at least as stringent as the EPA Final Rules. Industry has another opportunity for input at this stage. I know that, in Texas, industry has submitted large amounts of data and written comments at every stage of the rule changes.

    Moreover, since the early 1980’s EPA has received requests for updates to the regulations — primarily from industry.

    The federal rule-making process is the reason that the EPA Administrator has recently been sued to enforce the Final Rules. The reason that several of the suits were successful is that enforcing the final rules is the responsibility of the EPA, as described in the Congressional Act that formed the EPA.

    It is hard to understand why industry is constantly complaining about rules that they and their employees had a major hand in writing. The EPA is hardly been a rogue agency, despite some industry comments….

    Caroline Reynolds
    CR Solutions
    2611 West 49th St
    Austin, Texas 78731

  • 6.  RE: Regulatory Rollback

    Posted 07-10-2018 05:20

    There are indeed many problems to do with writing detailed regulations. Companies can be tempted to "game" the system, as Richard Rosera notes. Also, no regulator can have the expertise to develop rules for the vast number of hazardous chemicals manufactured and used by industry. And, as Mr. Kumana says, detailed regulations can provide a means for eluding accountability. 

    All of which is why the philosophy behind process safety management is to make it non-prescriptive and performance-based. In effect, the regulator is saying to industry, "You know more than we do about these chemicals, do what it takes to achieve safe operations". 

    The issue of automation and robotics also encourages a non-prescriptive approach. Technology is moving so fast - particularly in subsea operations - that no regulator can keep up. 

    The catch with a performance-based approach is that we are forced to address the vexed topic of "acceptable risk". That's a subject that probably deserves its own discussion.

    Ian Sutton BSc,MA
    Principal and Author
    Sutton Technical Books
    Ashland VA

  • 7.  RE: Regulatory Rollback

    Posted 07-07-2018 19:06
    We had the chance to quiz Rick Engler (CSB Board Member) during Hazarads Australasia 2018 conference to query as to why US would not adopt the principles from Safety Case regime where "every operator has to demonstrate that they have analysed all hazards in the plant and have taken appropriate measures to protect both workers and public". He mentioned that there were two schools of thought and within US they have not been able to reconcile the differences and hence have retained the black and white written regulations.

    Personally I would prefer that all operators demonstrate that they have measures in place to prevent all hazards to the regulator. If an incident does happen, then as Jimmy has suggested, the executives should be help accountable. A number of states have introduced legislation that the executives be charged for manslaughter should a fatality occur in the workplace.

    Raj Sreenevasan
    P&S Safety Engineers
    Willetton WA

  • 8.  RE: Regulatory Rollback

    Posted 07-10-2018 08:04
    ​Mr Sreenevasan, you ask "why US would not adopt the principles from Safety Case regime where 'every operator has to demonstrate that they have analysed all hazards in the plant and have taken appropriate measures to protect both workers and public' ".  Logic and good sense is the answer.  It is impossible to prove that a team, a company or an industry has even been able to identify all hazards in the plant, let alone analyze the hazards.  Further, "appropriate measures" is a subjective phrase.  I hope that the US never adopts such "rules" - it is impossible to prove, many incidents could not have reasonably been foreseen.

    A couple of very quick examples from my experience: a breaker (electric panel) was wired backward internally (still can't figure how that happened - maybe the first off of a new line, and continuity checks showed it was wired continuously?), and a raccoon managed to get through fences and locked doors and into a substation, killing himself and causing highly localized power loss.  Both very rare incident rates, but if they occurred at just the right point in a reaction process could have resulted in catastrophic problems.  Because these occurred at one place one time, must every plant, every operation, consider this?  And how does one put up enough barriers to prevent occurrence?

    Bruce Bullough
    Portage, MI

  • 9.  RE: Regulatory Rollback

    Posted 07-11-2018 09:17
    The comment from Bruce Bullough shows a common misunderstanding of performance based regulations.  It is not the function of hazard identification in these regulations to predict specific scenarios, and his example of a raccoon caused power loss is a good example that might never be predicted in advance.  But any good hazard identification team should identify an unexpected power loss event affecting a reactor at a critical time and establish that there are suitable measures in place to handle the event safely.  This is required under PSM.

    The USA has many performance-based regulations.  The stress tests applied to the banking system are one example, the drug safety requirements on prescription medicines are another.  In the process industry the PSM regulations and the offshore SEMS regulations are performance based.  What is not in place is a good risk target that is agreed by the community.  What is used instead is a codes based system which has the risk target embedded in prescriptive solutions agreed by the authoring team and voted on by that institution members, but with no risk visibility.  

    So far the regulatory roll-back is not removing performance regulations, it is addressing overly burdensome regulations, mostly prescriptive in nature, that add no safety value.

    Robin Pitblado
    DNV GL (retired)

  • 10.  RE: Regulatory Rollback

    Posted 07-12-2018 05:54

    I think Mr. Pitblado misses a key point in Mr. Bullough's note. Performance based rules are always going to be at the mercy of the group(s) evaluating both the hazards and the effectiveness of the mitigative measures. Large organizations with strong technical support and critical interests at stake will probably usually do a good job. Smaller organizations with less depth, less support and organizations evaluating tangential and less important areas may not tend to evaluate either correctly. Almost all US codes have the option of allowing the organization to prove that a different approach is equally safe. The onerous of that proof is on the organization and the authority having jurisdiction is right to treat any of these with some prudent skepticism. The real world, as Mr. Bullough notes, is often much more dangerous and difficult to analyze correctly than it immediately appears.


    My experience with overly burdensome regulations is usually not in the prescriptive requirements but in the documentation that most organizations find necessary to ensure compliance. And that documentation is likely to only increase in a performance based approach. So perhaps there are some real downsides to that as well.


    Richard Palluzi

    PE, CSP


    Pilot plant and laboratory consulting, safety, design,reviews, and training

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    72 Summit Drive

    Basking Ridge, NJ 07920




  • 11.  RE: Regulatory Rollback

    Posted 07-12-2018 08:18

    Following on from Robin Pitblado's comment, one of the most serious incidents that I was ever involved in had an initiating event that could never realistically have been forecast by even the most thorough hazards analysis team. It was something totally out of left field.


    But the consequences of this initiating event were made much more severe by failures in the safeguards. For example, some of the relief valve headers were plugged with solid materials. This problem is something that a PSM program could be expected to identify.


    The basic idea behind Nicholas Taleb's book Black Swans is that we cannot and should not try to predict the likelihood of highly improbable events. Instead we should accept that such events - "Black Swans" - can occur, and we should build our defenses on that assumption. He is talking about financial systems, but his ideas apply to the process industries. In other words, we should spend more time looking at the right hand side of bow-tie diagrams (or building Event Trees as well as Fault Trees).

    Ian Sutton BSc,MA
    Principal and Author
    Sutton Technical Books
    Ashland VA