Mark S. Dreux

Partner

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mark.dreux@arentfox.com

Arent Fox LLP / Attorneys at Law

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October 29, 2014

The Honorable Mathy Stanislaus

Assistant Administrator

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

RE: Docket ID No. EPAHQ-OEM-2014-0328

Comments of the National Oilseed Processors Association and the Corn Refiners 

Association on the Environmental Protection Agency’s Request for Information regarding 

potential revisions to the Risk Management Program Regulations and Related Programs.

Mr. Stanislaus,

The National Oilseed Processors Association (NOPA) and the Corn Refiners Association 

(CRA) are pleased to submit these comments to the Environmental Protection Agency’s (EPA) 

Request for Information regarding potential revisions to the Risk Management Program (RMP) 

Regulations and Related Programs (Docket ID No. EPAHQ-OEM-2014-0328). NOPA is a 

national trade association that represents 13 companies engaged in the production of vegetable 

meals and vegetable oils from oilseeds, including soybeans. NOPA’s member companies 

process more than 1.6 billion bushels of oilseeds annually at 63 plants located in 19 states, 

including 57 plants that process soybeans. The oilseed processing plants operated by NOPA 

member companies are frequently subject to the RMP Regulations.
Page 2

CRA is the national trade association representing the corn refining (wet milling) industry

of the United States. CRA and its predecessors have served this important segment of American 

agribusiness since 1913. Corn refiners manufacture sweeteners, ethanol, starch, bioproducts, 

corn oil and feed products from corn components such as starch, oil, protein and fiber. The 

refining operations operated by CRA member companies are frequently subject to the RMP 

Regulations.

We appreciate the opportunity to submit comments on the Request for Information and 

strongly encourage EPA to set aside the amount of time necessary to analyze comments 

submitted in order to provide a reasonable and workable final rule for all affected parties.

A. EPA has failed to establish that the RMP Regulations are in need of revision.

OSHA’s Process Safety Management (PSM) Standard and EPA’s companion RMP 

Regulations have a proven track record of reducing accidental releases of highly hazardous 

chemicals. EPA should present a clearer case that the potential revisions being considered will 

address known hazards and a significant risk of harm. In fact, the dearth of incidents cited by 

EPA strongly implies the existing RMP Regulations are working. It is telling that in OSHA’s 

RFI, the incidents that OSHA described as its basis for considering revisions indicate that 

improper implementation of the current regulations is the problem:

(1) “Formosa failed to properly implement many OSHA-required elements of its 

PSM program.”1(emphasis added)

1

Process Safety Management and Prevention of Major Chemical Accidents, 78 Fed. Reg. 73756, 57 (Dec. 9, 

2013).
Page 3

(2) At the BP Refinery in Texas City, Texas in 2005, “OSHA issued over 300 

citations . . . and [m]any of the citations were for PSM violations, including

failing to properly implement mechanical integrity, training, and standard 

operating procedures.”2(emphasis added)

(3) “[I]nspectors found that Tesoro failed to properly implement its PSM 

program by inadequately testing its equipment and continuing to operate 

failing equipment. As the result of the incident, DOSH issued 44 citations, 36 

of which were PSM citations.”3(emphasis added)

Based on OSHA’s own characterization, none of these tragic incidents appear to be 

attributable to any deficiency of the PSM Standard or RMP Regulations. Without a showing by 

EPA of a factual basis for the potential revisions demonstrating a significant risk of harm, NOPA 

and CRA cannot support revisions to the RMP Regulations at this time.

B. Many of EPA’s potential revisions are unnecessary, as OSHA already has existing 

effective regulations governing the items of concern.

EPA is considering several regulatory revisions that are really focused on safety issues 

already within OSHA’s exclusive jurisdiction. Additional Risk Management Program elements 

such as stop work authority, job hazard analysis, management of contractor services, 

management of organizational changes and occupancy criteria for buildings within a facility 

have been within OSHA’s exclusive purview for decades. For example, concerning stop work 

authority, OSHA has had a regulation in place since 1973 under which employees have the right 

2

Id.

3

Id.
Page 4

to refuse to do dangerous work; refusing to work is an effective form of stop work authority.

4

Concerning contractor safety, OSHA has extensive regulations and policies designed to eliminate 

risks and hazards from the workplace. The PSM Standard requires a host employer to evaluate 

the safety experience of a contractor prior to hiring him or her and to provide training on the 

hazards of the process, the emergency response plan and changes in the process. Moreover, all 

of the other potential hazards in the facilities we represent are regulated by OSHA standards such 

as lockout tagout, confined space, hot work permits, HAZCOM, PPE, hearing conservation and 

respirators. Lastly, OSHA has enforcement authority for its multi-employer policy that requires, 

among other things, the host employer to monitor contractor employees for compliance with 

safety and health regulations. Rather than develop additional unnecessary regulations, EPA 

should defer to OSHA’s expertise in regulating these particular items.

C. RMP works best as a performance-based regulation.

RMP is a performance-based regulation in that the owner/operator selects the means of 

compliance. Many of the proposed changes in this RFI undercut this feature, e.g. requiring 

“redundant power supplies, emergency flares, vents, or scrubbers, etc.” The community and 

EPA itself benefit from the existing performance basis of the RMP Regulations because .... The 

majority of the hazards presented are often more a function of the process utilized and, therefore, 

a prescriptive regulatory approach will fail to properly address site-specific hazards. Therefore, 

EPA should not implement the prescriptive changes as proposed.

4

29 C.F.R. §1977.12(b)(2).
Page 5

Should EPA decide to go forward regardless, NOPA and CRA make the following 

points:

1. “Combustible Dusts” and “Reactives” should not be added to the RMP 

Regulations’’ list of regulated substances because of the complex nature of those 

terms.

EPA asks whether other categories of substances such as “combustible dusts” should be 

added to its coverage provisions. “Combustible dusts” should not be added in part because of 

the complex nature of that term. Combustible dusts include a vast quantity of differing 

compounds, with each resultant dust cloud behaving differently. An attempt to craft a one-sizefits-all regulation to govern combustible dusts would be unmanageable and unwise.

Additionally, in the Preamble to the RMP Regulations’ Final List Rule, EPA stated that 

accidental releases “would not include routine emissions.”5 Given that combustible dust is a 

routine emission and does not fall within the regulatory definition of an accidental release from a 

facility, including combustible dust as part of the list rule is inappropriate.

Should EPA choose to include specific dusts, NOPA and CRA would argue for excluding 

agricultural dust based on its physical and chemical attributes and the effectiveness of OSHA’s 

Grain Handling Facilities Standard.6

The determination whether a particular dust is combustible is a very complex scientific 

assessment and must be done on a dust-by-dust basis. The combustibility assessment must 

5

59 Fed. Reg. at 4490 (“The Agency believes that the definition is clear in specifying that an accidental 

release is an ‘unanticipated emission’ of a regulated substance and that this would not include routine emissions.”

6

29 C.F.R. 1910.272.
Page 6

include the chemical composition of the specific dust, its physical form, the size of its fines, its 

minimum ignition energy, its explosibility index and its maximum unvented explosion pressure. 

The factors for a dust such as sugar or flour are very different than those for metals or plastics. 

As Amy Beasley Spencer, an expert on combustible dust, put it: “Part of the problem with 

regulating dust explosions is the confusion about which dusts can explode and under what 

conditions. Even how much dust is a hazard is still unknown.”7

Given the complexity of this assessment, OSHA has struggled to define “combustible 

dust.” The United Nations working group on the Globally Harmonized System (GHS) has so far 

resisted OSHA’s effort to adopt classification criteria for combustible dust, because 

combustibility of a dust is not an inherent hazard, but only a consequence of the particular form 

of the material, particularly related to particle size. OSHA is continuing to evaluate combustible 

dust and is even considering rulemaking.8 While OSHA does that, EPA should postpone further 

consideration of adding combustible dust to the list of regulated substances.

For a dust to combust, there are five factors that must occur simultaneously. They are 

commonly known as the “Explosion Pentagon” and include the fuel (i.e., the dust), an ignition 

source, oxygen, dispersion of the dust in the correct concentration and confinement of the dust 

7 Dust: When a Nuisance Becomes Deadly, NFPA Journal, Nov/Dec 2008 at 58.

8

See Department of Labor, Semiannual Agenda of Regulations (May 23, 2014), RIN 1218-AC41,

http://resources.regulations.gov/public/ContentViewer?objectId=0900006481710771&disposition=attachment&cont

entType=pdf. 
Page 7

particles. If one factor is missing, then no combustion of that dust can occur. OSHA regulations 

address two of the five factors – fuel (dust) and an ignition source.

OSHA’s Housekeeping Standard,9 which regulates housekeeping practices in the 

workplace, will minimize dust accumulations in the workplace. The Occupational Safety and 

Health Review Commission, as well as several Courts of Appeal, have held that this standard 

extends to combustible dust.10,11

OSHA also regulates ignition sources in the workplace. Section 1910.307(c) requires that 

“equipment, wiring methods and installations of equipment in hazardous locations . . . shall be 

intrinsically safe or approved for the hazardous location . . . .” Other standards require that hot 

work permits for welding, cutting and brazing are issued, that equipment and machinery be 

properly grounded, that power hand tools be UL listed and double insulated, and that forklifts be 

rated for their use in hazardous locations. Adhering to these OSHA standards, the second factor 

in the Explosion Pentagon, ignition source, has been eliminated. Hence, OSHA standards 

adequately address the potential hazards of combustible dust and there is no need for EPA to 

issue additional regulations.

9

29 CFR 1910.22(a)(1) which states that “all places of employment, passageways and storerooms and 

service rooms shall be kept clean and orderly . . . .”

10 Cincinnati Gas & Electric Co., 21 BNA OSHC 1057 (No. 01-0711, 2005).

11 See Con Agra, Inc. v. Occupational Safety & Health Review Comm'n, 672 F.2d 699, 702 (8th Cir. 1982) 

(“[w]e agree that the housekeeping standard is not limited to tripping and falling hazards but may be applied to the 

significant accumulation of combustible dust as was shown in this case”); Bunge Corp. v. Sec'y of Labor, 638 F.2d 

831, 834 (5th Cir. 1981).
Page 8

Furthermore, combustible dust does not “pose a potential threat beyond the fenceline,”12

but only to the workplace, which is the exclusive jurisdiction of OSHA. Unlike flammable 

liquids and flammable gases, confinement is a major factor in its explosive potential. As a 

combustible dust is removed from the confined area and dispersed, the hazard ceases to exist, not 

only because the lack of confinement, but also because as it disperses the dust quickly drops 

below its Minimum Explosible Concentration.

OSHA already has a large number of standards governing combustible dusts.13 In 

addition, the National Fire Protection Association (NFPA) has published guidance documents 

such as NFPA 654 Standard for the Prevention of Fire and Dust Explosions from the 

Manufacturing, Processing, and Handling of Combustible Particulate Solids.

14 In summation, 

12 59 Fed. Reg. at 4486 (explaining why flammable substances posing lesser hazards are included within the 

List Rule.

13 See generally 1910 Subpart D, Walking-working surfaces (1910.22, Housekeeping); 1910 Subpart E, Exit 

routes, emergency action plans, and fire prevention plans (1910.38, Emergency action plans); 1910 Subpart G, 

Occupational health and environmental control (1910.94, Ventilation); 1910 Subpart J, General environmental 

controls (1910.146, Permit-required confined spaces); 1910 Subpart L, Fire protection (1910.157, Portable fire 

extinguishers, 1910.165, Employee alarm systems); 1910 Subpart N, Materials handling and storage (1910.176, 

Handling materials–general, 1910.178, Powered industrial trucks); 1910 Subpart Q-Welding, Cutting and Brazing, 

(1910.252 general requirements for hotwork permits); 1910 Subpart R, Special industries (1910.261, Pulp, paper, 

and paperboard mills, 1910.263, Bakery equipment, 1910.265, Sawmills, 1910.269, Electric power generation, 

transmission, and distribution, 1910.272, Grain handling facilities); 1910 Subpart S, Electrical (1910.307, Hazardous 

(classified) locations); and 1910 Subpart Z, Toxic and hazardous substances (1910.1200, Hazard communication).

14 NFPA has also published several other guidance documents relevant to the controlling the hazards 

associated with dust explosions. They include: NFPA 61 “Standard for the Prevention of Fires and Dust Explosions 

in Agricultural and Food Processing Facilities” (2013 ed.); NFPA 68 “Standard on Explosion Protection by 

Deflagration Venting” (2013 ed.); NFPA 69 “Standard on Explosion Prevention Systems” (2014 ed.); NFPA 70 

“National Electrical Code” (2014 ed.); NFPA 77 “Recommended Practice on Static Electricity” (2014 ed.); NFPA 

499 “Recommended Practice for the Classification of Combustible Dusts and of Hazardous (Classified) Locations 

for Electrical Installations in Chemical Process Areas” (2013 ed.); NFPA 655 “Standard for Prevention of Sulfur 

Fires and Explosions” (2012 ed.); NFPA 664 “Standard for the Prevention of Fires and Explosions in Wood 

Processing and Woodworking Facilities” (2012 ed.).
Page 9

the RMP Regulations are the wrong vehicle for addressing the hazards presented by combustible 

dust.

In the RFI, EPA has also asked whether there should be an exclusion for agricultural dust 

for EPA’s evaluation of combustible dust. NOPA and CRA strongly support anagricultural dust 

exclusion, for three reasons. First, dust explosions, including agricultural dust explosions, are 

workplace, not offsite incidents. Explosions related to agricultural dust require confinement 

typical of a workplace, such as a room, a building or a piece of equipment. Hence, any dust 

incident is a localized, onsite event and falls within OSHA’s exclusive jurisdiction.

Secondly, OSHA already regulates dust at grain handling facilities via its Grain Handling 

Facilities Standard, 29 C.F.R. 1910.272. The requirements in OSHA’s Grain Handling Facilities 

Standard already address the proper and safe handling of agricultural dust. The standard applies 

to a wide range of agricultural products at “grain handling facilities: grain elevators, feed mills, 

flour mills, rice mills, dust pelletizing plants, dry corn mills, soybean flaking operations, and dry

grinding operations of soycake.”15 Moreover, it has specific requirements for housekeeping to 

ensure that the dust is promptly removed from the work area. It also has very specific 

requirements regulating ignition sources in grain facilities. The Grain Handling Facilities 

Standard, in addition to all of the other OSHA standards previously discussed, specifically 

15 29CFR 1910.272(b)(1).
Page 10

addresses two of the five elements in the Explosion Pentagon (fuel (dust) and an ignition source), 

ensuring that agricultural dust is safely managed and that no additional regulation is needed.

Third, since 1980 when OSHA promulgated the Grain Handling Facilities Standard, the 

number of explosions, injuries and fatalities at grain handling facilities has declined significantly.

Between 1976 and 1980, there were approximately 25 explosions, involving 56 injuries and 21 

fatalities. Between 2001 and 2005, there were tremendous reductions in all three categories: 9 

explosions, 8 injuries and 1 fatality.

16 The improving trend of injury and illness data shows that 

OSHA’s grain standard is effective and that an exclusion of agricultural dust is warranted.

Our members also object to expanding the RMP Regulations to cover “reactive 

substances and reactivity hazards,” because of the complex nature of these terms. Reactivity is 

chemical- and process-specific and is far too complex for a national rule. In the initial 

rulemaking for the RMP, EPA recognized the technical complexity of this issue and concluded 

that it was infeasible to write a single national rule for all processes.17 This technical complexity

persists to the present. As a preliminary point, all chemical compounds can be characterized as 

“reactive chemicals,” because all are formed by the reaction of two or more chemical elements, 

16 Data from information compiled by Kansas State University and USDA’s Grain Inspection, Packers and 

Stockyards Administration.

17 See 79 Fed. Reg. at 44611 (“In order to meet the conditions in CAA section 112(r)(3) for the listing of 

substances, EPA sought to determine the common physical-chemical characteristics or properties that would be used 

as criteria to identify a set of chemicals to be listed and to provide the technical basis for these criteria. . . . One 

difficulty (with adding reactive substances and reactivity hazards) is that it is not feasible for national listing 

decisions to take into account process- and site-specific factors, which can vary widely.”).
Page 11

chemical compounds, or both of these. In addition, the hazard presented by a given chemical’s 

reactivity is a function of the operating conditions under which the reaction is taking place.18

In the RFI, EPA has proposed adopting the two lists of reactive chemicals and reactive 

functional groups which New Jersey listed in its Toxic Catastrophe Prevention Act (TCPA).19

NOPA and CRA members do not agree with this approach, because it still fails to address the 

problem acknowledged by EPA – that such an approach does not “take into account process- and 

site-specific factors, which can vary widely.”

20 Furthermore the Clean Air Act Amendments 

require EPA to consider:21

(i) the severity of any acute adverse health effects associated with accidental releases 

of the substance

(ii) the likelihood of accidental releases of the substance; and

(iii) the potential magnitude of human exposure to accidental releases of the substance

EPA has not considered these factors and cannot simply delegate this task to the New 

Jersey legislature.

EPA has also proposed the use of NFPA 400 as a means to address reactives. This 

proposed use of NFPA 400 does not address the technical complexity of the potential reactivity 

of the various chemicals under process conditions. Moreover, NFPA 400 applies to a limited 

universe of chemicals and has very limited guidance on storage, general use and handling.

18 Id.

19 New Jersey Toxic Catastrophe Prevention Act, N.J. Admin. Code § 7:31 6.3.

20 79 Fed. Reg. at 44611.

21 42 U.S.C. §7412(r)(4).
Page 12

Lastly, there is inherent vagueness in the phrases “Unstable (Reactive) Solids and Liquids”22 and 

“Water-Reactive Solids and Liquids”23 in NFPA 400.

In summary, reactivity is a broad and, consequently, vague concept upon which to 

develop meaningful regulation. Therefore, EPA should perform its own assessment of individual 

compounds as the Clean Air Act (CAA) requires and not defer to state legislators, who may not 

possess the expertise available to EPA. Upon completion of the assessment, EPA should then 

finalize the list of specific chemicals via notice-and-comment rulemaking.

2. EPA does not provide any justification for requiring additional management 

systems in the workplace.

EPA’s proposal to require additional risk management program elements without any 

demonstrated need or benefit is improper. There is no evidence presented in the RFI that the 

existing management systems already implemented at many workplaces, including at facilities 

we represent, are deficient in any way. In addition, EPA does not point to any benefit of 

requiring industry to supplement the already existing management systems with those outlined in 

the RFI. 

More importantly, requiring additional management system elements would undermine 

the very purpose of the RMP Regulations. The RMP Regulations were conceived as a 

performance standard, permitting a generous range of methods to comply, because it was 

recognized that certain safety practices or management systems may work at one facility but 

22 National Fire Protection Association's “NFPA 400: Hazardous Materials Code” 2013 ed. Chapter 19, at 79.

23 Id. Chapter 20, at 81.
Page 13

provide no real benefit at another. EPA’s proposal to revise the RMP Regulations in this manner 

contradicts this purpose and would burden many facilities without any real benefit. To this 

point, there is no ideal or perfect management system that will eliminate or significantly reduce 

the occurrence of incidents; it is all a function of good management and timely execution by the 

employer. 

In the RFI, EPA states that it is considering adopting management system elements from 

the Bureau of Safety and Environmental Enforcement (BSEE). This system would create a stop 

work authority, an ultimate work authority and an employee participation plan. EPA’s 

suggestion inappropriately adopts more unnecessary government regulation without any 

improvement in safety. Put simply, there is already sufficient management system support 

provided in the OSH Act and the existing RMP Regulations. Employees already have the right 

to refuse work in light of a hazardous condition that could cause serious bodily injury or death.24

And, employers already have a statutory duty to maintain a safe workplace, which is ultimate 

work authority.

25 Moreover, the RMP Regulations already include a requirement for a written 

employee participation plan.

Additionally, regulating job hazard analysis is an OSHA function. OSHA already has 

rules in place that adequately address job hazards, such as regulations governing personal 

protective equipment, standard operation procedures, hot work permits, confined space entry 

24 See 29 C.F.R. § 1977.12(b)(2).

25 See 29 U.S.C. § 654(a)(1).
Page 14

permits, respirators and hearing conservation. With respect to adding safety requirements for 

contractors, OSHA has numerous safety programs which apply to contractors. PSM requires the 

employer to train the contractor on hazard and evacuation and to evaluate the contractors’ safety 

performance.

EPA has also requested comments on whether Process Hazard Analysis (PHA) and 

hazard review requirements should be clarified or expanded to require that specific scenarios, 

such as natural disasters or power outages, be considered. NOPA and CRA believe that it is not 

necessary or helpful to require that specific scenarios be analyzed; rather, the PHA should 

consider a range of potential conditions that could affect the process. NOPA and CRA believe 

that existing regulations are clear and that current industry practices fully comply with regulation 

as understood by the plain meaning of the text.

Insofar as EPA potentially clarifying or expanding PHA and hazard review requirements 

to include scenarios external to the process such as natural disasters and power outages, the 

section that addresses PHAs, Section 68.67(b), states: “The owner or operator shall use one or 

more of the following methodologies that are appropriate to determine and evaluate the hazards 

of the process being analyzed.” The hazards in question are hazards in the process, i.e. hazards 

associated with and internal to the process itself. No clarification is necessary, because scenarios 

such as natural disasters and power outages, which are external to the process, are clearly not 

required of PHAs, nor should they be.
Page 15

For example, with a natural disaster one could envision a loss of utilities, a loss of raw 

material supply, or a loss of control system power. PHAs address these scenarios and discuss the 

appropriate safeguards. There is no need to create a separate node to address natural disasters. 

EPA appears to be ready to regulate the methodology, keywords and nodes of a PHA, moving 

RMP away from a performance-based regulation. Such a prescriptive approach will not have the 

desired effect.

3. Defining RAGAGEP is unnecessary, and mandatory evaluations of updates to 

RAGAGEP provide no additional safety benefits and would pose an unwarranted 

burden on our members as well as the rest of industry.

The RMP Regulations are intended to be a performance regulation. Performance (i.e.,

compliance) is to be judged by the overall safety of the actions undertaken to achieve the 

processing of highly hazardous chemicals. If an action is deemed “safe,” it should satisfy the 

performance (i.e., compliance) requirements.

“Recognized and generally accepted good engineering practices” (RAGAGEP) are 

deemed as “safe” actions in the processing of highly hazardous chemicals. Any definition of 

RAGAGEP should include all the safe engineering practices utilized by industry, without regard 

to whether the practice has been memorialized in a consensus standard. This means that 

RAGAGEP should not be defined as narrowly as the following:

“Recognized And Generally Accepted Good Engineering Practices” 

(RAGAGEP)--are the basis for engineering, operation, or maintenance activities 

and are themselves based on established codes, standards, published technical 

reports or recommended practices (RP) or similar documents. RAGAGEPs detail 

generally approved ways to perform specific engineering, inspection or 
Page 16

mechanical integrity activities, such as fabricating a vessel, inspecting a storage 

tank, or servicing a relief valve.26

The narrow approach advocated by this definition, which was modeled after the 

definition from CCPS’s Guidelines for Mechanical Integrity Systems27 and was used in OSHA's 

Petroleum Refinery NEP directive (CPL 03-00-010), is a serious problem. The problem with 

this approach is that it fails to recognize that all “established codes, standards, published 

technical reports or recommended practices” originated from the individual practices of 

individual employers at their individual sites. RAGAGEP is not based on established codes, 

standards, etc. as the above definition asserts. Rather, the opposite is true - codes and standards 

are based upon RAGAGEP. Certainly, codes and standards may function as RAGAGEP, but 

they are not the source of RAGAGEP. Therefore, any definition of RAGAGEP must be broad 

enough to include all the safe engineering practices currently being utilized by industry; the 

definition should not be limited to only best practices memorialized by consensus standards.

While RAGAGEP should be defined broadly, it should be enforced only within the 

expressed terms of the Regulations. The RAGAGEP provisions being considered for the RMP 

Regulations are to apply to only a narrow range of items: (1) the process safety information of 

“process equipment”28 and (2) the inspection and testing of specific enumerated pieces of 

26 78 Fed. Reg. 73756, 61.

27 Center for Chemical Process Safety, Guidelines for Mechanical Integrity Systems, pg. 5, Wiley Interscience 

(2006).

28 40 C.F.R. §68.73.
Page 17

“process equipment.”29 Consequently, the RAGAGEP provisions of the Standard should not be 

applied to all items located at a production facility, but only to the process equipment expressly

listed.

4. Mandating expansions of mechanical integrity programs to “safety critical 

equipment” will lead to significant legal challenges without any tangible safety 

benefit.

In its request, EPA has inquired whether it should “amend the mechanical integrity 

provisions of the RMP Regulations to explicitly cover all safety critical process equipment? If 

so, what type(s) of equipment?” NOPA and CRA do not believe that mechanical integrity 

provisions should be expanded to cover all safety critical process equipment for the very reason 

that the term is unclear as to what types of equipment would be considered safety critical 

equipment. EPA has provided no definition of “safety critical equipment” in the RFI. Moreover, 

EPA has failed to publish any data that would corroborate or substantiate the purported 

deficiencies in Sec. 68.73. If EPA is aware of an existing hazard with certain pieces of 

equipment EPA has deemed “safety critical,” it should specify the equipment of concern and 

seek public comment on adding the specific equipment to Sec. 68.73. 

NOPA and CRA cannot support this proposed change. We are concerned that if this 

change is adopted, EPA, and later OSHA, will take the position that any equipment failure that 

contributes to an incident will be interpreted as safety critical and cited as such. We are equally 

29 Id. at (a)(1) through (a)(6).
Page 18

concerned that a “but for” test will naturally evolve and that both EPA and OSHA will use such a 

test as the basis for issuing a violation.

As stated previously, we are very concerned that EPA will move away from 

performance-based regulations towards prescriptive-based regulations and that OSHA will 

follow suit.30 Neither EPA nor OSHA is qualified to be the designer of all relief systems for all 

facilities. Relief and flare studies have been conducted to size the relief systems needed. These 

studies are complex and process-specific and do not lend themselves to a single uniform rule.

Furthermore, elimination of all risk is unobtainable. Acceptable risk is the goal and is a 

function of a risk analysis. As a result, our members do not limit their mechanical integrity 

programs to only those areas required by the RMP Regulations and the PSM Standard. In 

addition to the equipment specified by both PSM and RMP, our members also include the 

equipment that experience and analysis has indicated should be included in an integrity program. 

This may include “safety critical equipment.” There is no need to expand the scope of covered 

equipment beyond what is already presented in Sec. 68.73. The current list is both complete and 

adequate.

5. Mandatory third-party auditing will not be as effective as internal corporate audits.

NOPA and CRA cannot support EPA’s efforts to require employers to use a qualified 

third party for compliance audits. First, the real experts of a facility’s processes, equipment, and 

30 Requiring certain types of covered facilities to install emergency flares, vents or scrubbers in order to 

prevent accidental release resulting from emergency shutdowns suggests that industry currently operates 

independent of any air emission regulations. However, Title V of the Clean Air Act already addresses these 

concerns.
Page 19

hazards are the company’s own employees. Second, many auditors are knowledgeable in the 

elements of process safety; however, given the wide range of the covered processes, there are 

very few third-party auditors who possess sufficient expertise in specific processes. Third, 

problems do not arise from the audit itself, but the failure to implement audit findings.

Employees know their facilities best and have the greatest vested interest in identifying 

safety issues at their worksite. It is the employees who are trained on the proper use of the

equipment, develop the procedures that govern the processes, and are most familiar with the 

areas needing improvement. And, it is the employees’ own jobsite that is made safer by a well 

conducted audit.

To be truly effective, the auditor must know the process being audited, which is why 

compliance audits must be conducted by at least one person knowledgeable in the process. 

There is a dearth of qualified third-party auditors with that level of specialized knowledge. Most 

third party audits lack firsthand knowledge regarding the subtleties of the processes at a facility, 

whereas employee auditors have extensive firsthand knowledge of the processes being audited.

In its PSM RFI, OSHA noted insofar as CSB’s investigation of the 2005 Texas City

incident that “the CSB identified a lack of rigorous compliance audits as a contributing factor 

behind the accident.”31 However, the Texas City incident, while tragic, remains an outlier; and 

was not illustrative of the industry as a whole. This conclusion is supported by data from the 

31 78 Fed. Reg. 73756, 62.
Page 20

Petroleum Refinery Process Safety Management National Emphasis Program (NEP).32 Of the 

1,088 alleged violations of the PSM Standard issued during the Refinery NEP, less than 5 

percent involved compliance audits, and the vast majority of those citations involved the alleged 

failure to implement audit findings.

Third-party audits should not be mandated, as employees are the real experts of the 

processes at their facilities and there is a dearth of qualified third-party auditors who possess 

sufficient expertise in these processes. Lastly, as the example presented by OSHA and the NEP 

enforcement initiative indicates, most problems lie not with the auditors, but with the post-audit 

implementation.

6. Elimination of Program 2 facilities will not improve public safety or the 

environment.

In the RFI, EPA asks “If OSHA restricts its retail exemption to facilities selling regulated 

substances in small containers, should EPA eliminate RMP Program level 2 entirely or 

alternatively, modify Program 2 prevention elements or otherwise change the eligibility criteria 

for Program 2?” While NOPA and CRA member facilities do not fall within Program 2, some of 

our members have corporate divisions with agricultural retail facilities that would be adversely 

affected by the elimination of Program 2. EPA has stated that this would mean that processes 

that were formerly Program 2 would henceforth be subject to the five Program 3 management 

system elements not required under Program 2 (i.e., Management of change, Pre-startup review, 

32 Data received via FOIA request and compiled internally.
Page 21

Employee participation, Hot work permits, and Contractors), as well as the more rigorous 

versions of the seven Program 3 elements for which there are Program 2 analogs (e.g., 

Mechanical integrity under Program 3 vs. Maintenance under Program 2). Given the nature of 

these retail facilities, not one of these program elements would be applicable or even make sense. 

If Program 2 is eliminated, then current Program 2 facilities should be moved to Program 1.

The purpose of the RMP rules is to prevent accidental releases and minimize the potential 

consequences of those releases. If a particular process can be rendered safe by adherence to the 

requirements of Program 2, then the purpose of the rule has been accomplished and the 

community and the environment have been protected. There is no need for any additional 

regulation. Moreover, many companies deal with global competition where their competitors in 

emerging markets have little-to-no regulatory requirements and have an unfair competitive edge 

in which the absence of regulation lowers their cost structures. While the RMP elements may 

change in the near term and the number of Program 2 sites may decrease, Program 2 is still very

important to those facilities and should be continued.

7. EPA should not move the risk from one point in the process to another.

Inherently Safer Technology (IST) is an operation- and site-specific evaluation based on 

engineering judgment, where many variables are considered including hazards, location, 

surrounding populations, exposures, technical feasibility, and economic feasibility. IST is not a 

specific chemical compound or a collection of technologies that can be readily substituted into a 

given process, because each case is unique. From case to case, the results will vary. In short, 
Page 22

IST is a design philosophy. For these reasons, regulating IST is infeasible because there is no 

“one size fits all” answer when it comes to managing risk.

EPA should also recognize that a reduction in hazard does not necessarily result in a 

reduction in risk. Ammonium nitrate is a perfect example of the limitations of this type of 

thinking. If properly handled and stored, ammonium nitrate is one of the most stable, 

nonhazardous compounds in the marketplace, with an NFPA flammability rating of 1 and a heath 

rating of 2. Yet, its improper storage can make it into one of the most potentially dangerous 

compounds in the marketplace even though, in and of itself, it is not particularly hazardous.

Advocates of inherently safer technologies often focus on just the chemicals within the 

process without regard to the processes themselves. This approach incorrectly simplifies the IST 

process and disregards the potential risks in the life cycle of the product. A “safer” compound 

may require additional processing steps, potentially increasing the overall risk of a release.

EPA should reject calls to mandate IST on facilities, because IST is almost impossible to 

measure and would be even more difficult to enforce. Owners and operators of RMP-regulated 

facilities already consider and implement when appropriate the safest, most innovative and cost 

effective technologies available.

8. Regulatory specification of how emergency drills are to be conducted will work 

against the purpose of conducting such drills – to prepare for the unexpected.

In its request for information, EPA asks whether requiring RMP-regulated facilities to 

perform exercises or drills as an element of their emergency response program identified under 

Subpart E of the RMP regulation would improve coordination with community responders and 
Page 23

ensure that facility personnel have practice responding to accidental releases. NOPA and CRA 

support the use of drills, but believe attempting to prescriptively regulate the when, who, where 

and what of a drill could thwart the current practices for drilling.

Because an effective drill program contains too many site-specific variables for the 

development of a useful and effective rule, NOPA and CRA urge EPA not to attempt to regulate 

the scope of an exercise/drill program, the frequency of the drills, and what response scenarios 

should be considered for the exercise/drill program.

9. Automated detection and monitoring technology has not sufficiently evolved to the 

point that it should be mandated as a part of the RMP Regulations.

EPA has asked whether facilities should be required to install monitoring equipment or 

sensors to detect releases of RMP-regulated substances. Our members report that automated 

detection and monitoring can be part of an effective program, but only in certain limited 

situations with certain chemical compounds. Unfortunately, the technology is not fully 

developed. In fact, it is uncertain whether reliable automated detection and monitoring 

technology exists for all regulated substances. Scientists with EPA have acknowledged as much, 

stating:

Few sensors are available for detecting specific HAPs and those that exist have 

often not been tested rigorously with complex mixtures of similar HAPs. While 

data storage has become more accessible, data governance (assessing, managing, 

using, improving, monitoring, and maintenance), processing, and visualization are 

major challenges that still require considerable effort.33

33 Emily G. Snyder et al., The Changing Paradigm of Air Pollution Monitoring, Environmental Science & 

Technology, August 27, 2013, vol. 47, at 11375.
Page 24

In theory, the sooner a release is detected, the quicker the emergency response will be. 

But, automated detection and monitoring does not necessarily guarantee early detection. There 

are huge technical issues in deciding on the placement of area monitors, determining the number 

of monitors required, and compensating for the various and sometimes very harsh weather 

conditions.34 Moreover, the preventive maintenance to ensure the calibration and reliability of 

such monitors is enormous. 

Even a well maintained monitoring program will have repeated false alarms. The sensors 

within such monitors are cross sensitive to many other substances, which will result in alarms for 

non-regulated substances. A release at one facility could activate a downwind monitor, directing 

the emergency response team to the wrong location.35 For example, area fenceline monitors are 

highly dependent on ambient conditions as well as the local surroundings.

Lastly, the resources necessary for a reliable preventative maintenance program for such 

monitors would greatly outweigh any marginal benefits the monitors might provide. Monitors 

must be routinely verified and recalibrated. Depending on the number of monitors a facility is 

34 Id. at 11374-75 (“Work conducted at EPA indicates that many commercially available sensors have not 

been challenged rigorously under ambient conditions, including both typical concentrations and environmental 

factors.”) (citing Williams, R. L. R.; Beaver, M.; Kronmiller, K; Garvey, S.; Zaouak , O. The Air Sensors

Evaluation Project. Presented at Air Sensors 2013 - Data Quality and Applications - Air Sensors

Evaluation Session [On-line], Research Triangle Park, NC, March 20, 2013; Air Sensors 2013).

35 Id. at 11374 (“Data quality is a key issue since data of poor or unknown quality is less useful than no data 

since it can lead to wrong decisions.”).
Page 25

required to install, new personnel would have to be hired and trained just to perform the 

calibration checks.

Automated detection and monitoring may occasionally be a useful tool, but the 

technology is not developed enough to warrant including it in a comprehensive regulatory 

scheme.

10. RMP Regulations should not include the regulation of buffer zones and occupancy 

criteria within a facility.

EPA’s proposal to regulate buffer or setback zones will result in EPA being subject to 

hundreds of lawsuits for regulatory takings. The Fifth Amendment of the U.S. Constitution 

allows the Government to take property, provided “just compensation” is given to the property 

owner. In Lucas v. South Carolina Coastal Council,36 David Lucas purchased two beach front 

lots on the Isle of Palms, South Carolina. Mr. Lucas intended to build single-family homes 

similar to those on adjacent parcels. When Mr. Lucas originally purchased the lots in 1986, they

were not subject to South Carolina’s coastal zone building permit requirements. But, two years 

later, in 1988, the Beachfront Management Act was passed, prohibiting Mr. Lucas from building 

any permanent habitable structures on the two lots. Mr. Lucas filed suit alleging a regulatory

taking. The Supreme Court agreed, holding “when the owner of real property has been called 

upon to sacrifice all economically beneficial uses in the name of the common good, that is, to 

36 505 U.S. 1003 (1992).
Page 26

leave his property economically idle, he has suffered a taking.”37 Here, there are hundreds of 

RMP-regulated plants that have acquired land for expansion; a regulation that reduces the utility 

of that land will constitute a taking.

In addition, requiring facilities to set aside a buffer zone would limit the development and 

expansion of existing facilities. This, in turn, would adversely impact the tax bases of local 

communities, an unnecessary intrusion into local government zoning ordinances. Requiring 

facilities to convert existing property into buffer or safety zones would have a negative impact on 

the local community’s tax base, as these zones would be unproductive if set up beyond existing 

fence lines, and would limit development and expansion of existing facilities if set up inside the 

fence line.

Nor, has the RFI provided an explanation or example of how EPA would establish a 

prescriptive measure such as a buffer zone, that would account for all of the thousands of 

different processes with different chemicals in differing topographies with different public 

receptors and varying amounts of available land upon which to expand. Such a prescriptive 

measure would have arbitrary and harsh consequences and undermine the performance nature of 

process safety.

The RFI lists three examples of incidents (Bhopal, BP Texas City and West Fertilizer) as 

EPA’s justification for seeking additional information concerning stationary source siting. The 

three examples do not support or justify additional regulation. The Bhopal incident occurred in 

37 Id. at 1019.
Page 27

December 1984, which was almost a decade before the advent of the PSM Standard and the 

RMP Regulations and the requirements for siting. The Texas City incident involved trailers and, 

in response, industry issued API 753, which address the placement of trailers to prevent a similar 

recurrence. Current regulations and RAGAGEP have already addressed these two incidents. 

West Fertilizer is an example that, on very rare occasions, a particular owner or operator will not 

follow existing regulations; enforcement against that owner/operator is the appropriate regulatory 

action.

In the RFI, EPA has asked whether it should “establish safety criteria for siting of 

occupancies inside the facility?” EPA’s jurisdiction is limited to releases that affect the 

environment and public health. This question improperly intrudes into areas for which OSHA 

has exclusive jurisdiction. Setting safety criteria for occupancy is at the heart of OSHA’s 

mandate, not EPA’s.

EPA acknowledges the existence of several engineering guidance documents, such as 

American Petroleum Institute (API) Recommended Practice 752, “Management of Hazards 

Associated With Location of Process Plant Buildings,” 3rd Edition, December 2009 and API 

Recommended Practice 753, “Management of Hazards Associated with Location of Process 

Plant Portable Buildings,” First Edition, June 2007. NFPA 36 “Standard for Solvent Extraction 

Plants” addresses siting, as well. Industry guidance documents such as these assist our members 

in meeting the performance requirements of the RMP Regulations. No further regulation is 

needed or warranted in these particular areas.
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11. RMP Regulations should not duplicate existing regulations in terms of emergency 

response and coordination with local responders.

EPA is considering whether the Emergency Response provisions in Subpart E of the 

RMP Regulations should be revised to state more explicitly that owners and operators of RMPregulated facilities must comply with the emergency response program requirements of section 

68.95. Owners/operators would have to comply unless local public responders have the means 

and agree to (1) respond to releases of regulated substances at the facility, and (2) describe what 

facility owners or operators must do to coordinate with local authorities on the development of 

community emergency response plans. Many of these requirements already exist in other 

regulations.

For example, OSHA’s Standard Hazardous Waste Operations and Emergency Response 

regulation38 provides for site control, training, engineering controls, work practices, and personal 

protective equipment for employee protection, monitoring, emergency response plans and 

incident command. Our members would not support another regulatory scheme that may 

conflict with their existing requirements.

12. RMP Regulations should not be expanded to include incident investigation and 

accident history requirements.

EPA is asking (1) whether incident investigations should be expanded to require that a 

root cause analysis for incidents, near misses and process upsets be completed within a specific 

timeframe and (2) what role should the community should play in the investigation and in 

38 29 C.F.R. §1910.120.
Page 29

learning about the findings. EPA is also proposing a timeline for the completion of an incident 

investigation. The proposal overlooks the fact that facilities and incidents differ in complexity, 

making a “one size fits all” approach inappropriate.

At the outset, it is unclear whether EPA is using the term “root cause analysis” as a 

categorical term (like “process hazard analysis” as found in 40 C.F.R. §68.67) or as a more 

specific term (like the listed methodologies in subpart (b)). If the former, then such a proposal 

would be redundant to the requirements of 40 C.F.R. § 68.81(d)(4).39 If the later, then NOPA 

and CRA cannot support adopting such a narrow approach to determining the factors that 

contribute to an incident, particularly when investigating complex incidents that call for a more 

robust quantitative risk analysis. The purpose of the requirement for investigating incidents is to 

mandate that owners and operators conduct effective investigation and determine the 

contributing factors for an incident. The proposal in the RFI to require that all facilities use the 

root cause methodology for all process incidents will undercut this purpose and will result in 

ineffective incident investigations.

For the last two decades owners and operators, using different methodologies and 

techniques, have trained employees to conduct incident investigations and, in the process have 

continually improved the quality of those investigations. Under the proposed revisions, all of 

that knowledge would be lost and owners/operators would have to begin learning a new method 

called “root cause analysis.” The root cause analysis is one of many effective tools by which 

39 Incident investigation. A report shall be prepared at the conclusion of the investigation which includes at a 

minimum: (4) The factors that contributed to the incident.
Page 30

owners and operators conduct incident investigations. Requiring the use of a single methodology

is a “one size fits all” approach to incident investigation. The range and complexity of incidents 

are simply too diverse for such a limited methodology.

Incidents vary in magnitude and complexity that determine the amount of time and the 

size of the team needed to conduct a proper investigation. A uniform rule for conducting 

incident investigations will result in hastily performed investigations and lead to lower quality, 

less effective investigations.

For example, incident investigations of major incidents are frequently very detailed and 

quite lengthy. They often involve testing of metals, equipment, pressure relief devices, electrical 

components and chemical residues. These tests often necessitate outside experts, the 

development of protocols for gathering, handling and preserving the samples correctly, and 

appropriate documentation of the chain of custody on those samples. Following many of these 

incidents, the regulators limit access to the sites where the incident occurred, demand to be 

present for the gathering of samples, to have a role in the development of the protocols and to 

have their own expert present for the tests to be conducted. All of these steps involve a 

significant amount of time and are necessary to have an effective investigation. 

The RFI proposes that near misses and process upsets need to be investigated, but these 

terms frequently are misapplied by regulators who lack familiarity with the particular process 

and the engineering controls designed to ensure the safety of the process. Investigations of near 
Page 31

misses are already required under 40 C.F.R. § 68.81(a).40 Process upsets, on the other hand, may

result in nothing more than slightly off-spec product with no accompanying risk of a 

“catastrophic release of a regulated substance.”

The current rule requires that an incident investigation team be comprised of persons with 

“appropriate knowledge and experience to thoroughly investigate and analyze the incident.” 

Team members are highly trained in very technical areas of science, engineering and process 

safety, all of which are necessary to have an effective investigation. Many investigations require 

the examination of confidential or proprietary information to which only employees have access. 

Other incident investigations involve an examination of the security features of a facility which, 

by law, need to be safeguarded. Given all of this, an effective incident investigation process 

needs to be a closed, internal process for each owner/operator. Section 68.81(f) of the RMP 

Regulations reflects that need, requiring that incident reports be reviewed with only affected 

personnel.

Existing regulations are sufficient to meet the performance aspect of the RMP 

Regulations. No further regulatory guidance is needed with respect to incident investigations.

40 “The owner or operator shall investigate each incident which resulted in, or could reasonably have resulted 

in a catastrophic release of a regulated substance.”
Page 32

13. Identification of the worst-case scenario fails to address the most likely hazards and 

risks and, therefore, does little to improve the protection of human health and the 

environment.

EPA seeks information on whether to revise section 68.25(b) of the RMP Regulations to 

better account for processes involving numerous small vessels stored together, such as on pallets, 

cylinder racks, and in groups. In addition, EPA asks whether it should revise Sec. 68.25 to 

require the owner or operator of a regulated process to consider the potential for worst-case 

release scenarios to involve adjacent facilities or other nearby facilities that are interconnected 

through pipelines.

Worst-case scenarios are a regulatory construct in which an owner/operator is required to 

make a large range of assumptions, such as when the release occurs at ground level, in F 

atmospheric stability class, with the highest daily maximum temperature and when no active 

mitigation measures are available. As a result, the worst-case scenario presents an inaccurate 

representation of the potential consequences of a release. In the last 20 years, we do not know a 

single occurrence of any release consistent with the worst-case scenarios. Inaccurate 

representations of the worst-case scenario do not further the goal of transparency or increase the 

community’s awareness of the realistic concerns of an adjacent facility. Moreover, they do not 

improve the protection of human life or the environment. As EPA acknowledged in the 

Preamble to the Final RMP Regulations, “the worst-case scenario is designed principally to 

support a dialogue between the source and the community on release prevention, and not to serve 
Page 33

as the sole or primary basis for local emergency planning.”41 Given this, the current worst cases 

are more than adequate to initiate a dialogue with the community.

This proposal also presents a significant set of barriers to effective consideration of the 

cascading effects of interconnected facilities. Adjacent facilities may be competitors and, to 

have effective discussions over worst-case scenarios, a wide range of information needs to be 

shared. This will often include proprietary information which a company cannot share with 

competitors, including process chemistry, engineering controls, business confidential 

information and information about the security systems at the facilities covered by the CFATS 

regulations.

Moreover, this proposal expands the definition of “worst-case scenario” to include 

multiple failure scenarios occurring simultaneously at two facilities. The likelihood of 

occurrence of such a failure scenario, along with all of the other assumptions incidental to a 

worst-case scenario, are extremely small and will not produce any useful information.

14. EPA should not require new methods of public disclosure of information already 

available to the public.

EPA is seeking public comment on whether there are additional steps EPA could take to 

improve regulatory compliance through increased information disclosure to the public and local 

authorities. As most of this information is already available to the public as required by section 

41 Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 

112(r)(7), 61 Fed. Reg. 31668, 83 (June 20, 1996).
Page 34

112(r)(7)(B)(iii),42 regulatory compliance will not be improved by these proposed changes. 

EPA, rather than pursuing such changes, should focus its efforts on the proper development and 

implementation of LEPC plans.

EPA also asks whether disclosing compliance audits, PHA or incident investigation 

reports improve emergency planning and response. In the Preamble to the Final RMP 

Regulations, EPA answered this question:

[S]everal commenters made the general argument that right-to-know provisions 

should be strengthened and that the public should be given full access to all risk 

management program information including PHAs and actual operating 

procedures. . . .

EPA agrees that an informed public is a key element of sound chemical 

emergency prevention, preparedness, and response. However, EPA also believes 

that it is essential for the public to focus on the information essential at the local 

level for prevention, preparedness, and response and has decided to maintain its 

proposed requirement that the RMP provide certain information about the risk 

management programs at a source. . . .

EPA believes it would be impractical to require sources to share all 

documentation used for the safe operation of the processes at a source. Not only 

is much of this information likely to be confidential, but significant technical 

expertise and time are necessary to extract, understand, and to make 

meaningful judgments about the adequacy of the information.

43 (emphasis 

added)

42 “Plans prepared pursuant to this subparagraph shall also be submitted to the Chemical Safety and Hazard 

Investigation Board, to the State in which the stationary source is located, and to any local agency or entity having 

responsibility for planning for or responding to accidental releases which may occur at such source, and shall be 

available to the public under section 7414(c) of this title.”

43 61 Fed. Reg. at 31694.
Page 35

PHAs can continue for hundreds of pages with guide words like “more flow” or “less 

flow,” “high temperature” or “low temperature.” Providing this information as it is presented in 

a PHA report would be of no use to emergency responders and, therefore, have no impact on the 

emergency response itself.

For information that the public can best use, most LEPCs already have webpages 

developed for sharing appropriate information with the community. This was one of the very

services the LEPCs were to provide.

15. The use of AEGLs is not needed or justified.

EPA is now considering the use of AEGLs to recalculate RMP TQs and toxic endpoints. 

EPA alleges that using AEGLs to recalculate RMP reporting thresholds would better reflect the 

potential for adverse effects of an accidental release upon individuals in a community, because 

AEGLs take into account the potential exposure of more sensitive individuals, the potential for 

longer periods of exposure, and the potential for serious but reversible injuries. However, if EPA 

requires the use of AEGLs, it will also be changing the toxic endpoints for offsite consequence 

analysis. While the proposed change is consistent with EPA’s stated intent during the initial 

rulemaking that concluded with the existing RMP Regulations, two decades have since passed 

and no worst-case scenario has ever occurred. This confirms that there is no need to replace the 

current endpoint analysis with one that would create even larger circles of potential impact.

In fact, adopting this change would require a huge amount of work with no measurable 

benefit. During the initial RMP rollout, owners/operators prepared worst-case scenarios and 
Page 36

offsite consequence analysis, all of which were shared with their communities. Our members’ 

most common experience was spending two to three days preparing their presentations, 

overheads and handouts for their communities and then no one from the communities appearing 

at the rollout meetings. It resulted in a huge amount of work with no tangible improvement in 

process safety or community awareness. We cannot support this proposed change without a 

further showing by EPA as to the expected benefits.

16. EPA acknowledges that completely replacing the current RMP Regulations (and 

PSM Standard) with a “safety case” approach would require significant changes to 

the existing regulatory regime for chemical process safety in the United States. EPA 

should acknowledge that there is no evidence to support the premise that this 

change would improve the protection of human health and the environment.

The “safety case” regulatory model is a framework for regulating industry where owners 

or operators of industrial facilities must demonstrate to the regulatory agency that the risks have 

been reduced to “as low as reasonably practicable” (ALARP). EPA acknowledges that 

completely replacing the current RMP Regulations (and PSM Standard) with a safety case 

approach would require significant changes to the existing regulatory regime for chemical 

process safety in the United States. Nevertheless, EPA is requesting public comment on whether 

EPA and OSHA should consider these actions.

A successful safety case regime requires highly competent and well resourced, 

independent regulators. The safety case is built on the assumption that the regulator has a large 

staff of highly competent subject matter experts. For the type of detailed engineering review 

which the safety case requires, EPA would need to hire thousands of chemical, mechanical, 
Page 37

electrical and instrumentation engineers and have Congress adjust the Federal pay scale to attract 

and retain highly competent experts so that they could provide the engineering reviews in a 

prompt manner.

EPA has also asked whether selected aspects of the safety case, such as the submission of 

a PHA for review and approval, should be adopted into a proposed rule. This suggestion 

presents the same technical challenges for EPA. The meaningful review of a PHA, which is 

often lengthy and predicated upon the process safety information, would require teams of 

engineers and experts in the specific process. Given current concerns about the Federal Budget 

and recent controversies over the poor performances of large agencies with alleged expertise 

such as the VA Hospital Administration and the CDC, there is no realistic way that such a 

change could be implemented. 

Furthermore, there’s scant evidence to show that safety case works better. In fact, there 

is some evidence that the U.S. system is safer and more effective at preventing releases into the 

environment than the British safety case system. In an article titled “Safety Cases: Lessons from 

the North Sea,” the author discussed an audit of a several facilities operating under the safety 

case framework that found remarkable weakness, noting that the system works poorly with huge 

quality issues. The author stated “that systems critical to the survival of the workforce during 

major accidents were in terrible shape” and that “[s]uch systems failed to some degree in sixtyfour percent of such tests, revealing a ‘picture of inadequate testing and very poor reliability’ for 

a critical component of emergency response.” The author went on to report that there was an 
Page 38

“overreliance on cookie-cutter prototypes of critical documentation,” concluding “[t]his kind of 

reaction is a strong indicator of a weak and ineffective regulatory regime”.

It is precisely this type of evidence that caused NIOSH to reverse its position on the 

safety case and withdraw its original comments submitted to OSHA in response to the PSM RFI. 

Paul Schulte, Director of NIOSH’s Education and Information Division, said that NIOSH 

Director Dr. John Howard “was at a number of scientific conferences where he heard from a 

variety of stakeholders that they had concerns about what we had stated in our March 

comments.”44 “The director called for a re-review of what we had said,” Schulte said. “Upon 

looking at it further, while there are advocates for those positions, we didn’t see that there was 

actually a scientific basis that attested they were more effective than what was currently being 

done. We didn’t want to be in a position of recommending something to OSHA that didn’t have 

a good evidentiary basis.”

17. EPA Should Streamline the RMP Requirements.

EPA has asked whether it should require that RMP submissions be certified by a senior 

corporate official, such as the Chief Executive Officer, Chief Financial Officer, Chief Operations 

Officer, or the equivalent, to ensure corporate-wide awareness and accountability in the RMP 

submission. NOPA and CRA would argue no. RMP submissions are currently reviewed and 

authorized by the personnel most knowledgeable about the data gathering and program 

44 “NIOSH mysteriously backs off support for ‘safety case’ approach,” available at 

http://www.wvgazette.com/article/20140614/GZ01/140619566.