COMMENTS OF THE 

CHEMICAL SAFETY ADVOCACY GROUP

ACCIDENTAL RELEASE PREVENTION REQUIREMENTS:

RISK MANAGEMENT PROGRAMS UNDER THE 

CLEAN AIR ACT, SECTION 112(r)(7)

DOCKET ID NO. EPA–HQ–OEM–2014–0328

79 FEDERAL REGISTER 44,604 (JULY 31, 2014)

SUBMITTED OCTOBER 29, 2014
EXECUTIVE SUMMARY

The Chemical Safety Advocacy Group (CSAG) supports the efforts of the 

U.S. Environmental Protection Agency (EPA or the Agency) to implement the Clean Air Act’s 

Risk Management Program (RMP), which, like so many other Clean Air Act standards, is 

performance-oriented. CSAG also supports EPA’s decision to issue a request for information 

before proposing any changes to regulatory requirements. Request for Information Regarding 

Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air 

Act, Section 112(r)(7), 79 Fed. Reg. 44,603 (July 31, 2014) (RFI). We appreciate the 

opportunity to participate in this process and provide these comments on the RFI. 

CSAG is a coalition of companies that is focused solely on supporting appropriate 

implementation of the RMP rules and the Occupational Safety & Health Administration’s 

(OSHA) Process Safety Management (PSM) rules. CSAG members include companies in the 

refining, oil and gas, chemicals, and general manufacturing sectors with operations throughout 

the United States that are subject to the RMP rule. Our diverse membership, representing 

companies across multiple industry sectors, makes CSAG uniquely situated to provide 

meaningful input to the Agency as it considers potential steps to improve chemical safety and 

security. It is from this perspective that CSAG developed these comments and seeks to aid EPA 

in fulfilling its goal of continuing to implement an effective RMP rule designed to prevent and 

detect accidental releases.

As EPA considers appropriate actions in conjunction with any actions that may be taken 

by OSHA, it is important to take into account the effects of any regulatory changes in terms of 

the resources demanded both of the federal government and of regulated entities. EPA’s (and 

OSHA’s) focus should be on increased inspection and enforcement of the existing regulations—

as, in general, recent and past incidents are more reflective of failures to implement and enforce 

existing requirements, rather than failure of the regulations themselves.

The following points highlight CSAG’s key comments:

• The current RMP regulation is well structured and appropriate, such that recent

individual incidents are not indicative of regulatory flaws. While it is natural to react to 

recent incidents, including the tragic incident in West, Texas, by concluding that changes to 

regulations will prevent future occurrences, a critical first step is to ensure compliance with 

the current regulations, which have been through extensive public input and implemented 

over more than 15 years. Based on the experience of CSAG member companies, it is likely 

that recent incidents result not from flaws in the RMP regulations, but rather, from failures to 

fully implement and comply with existing regulatory requirements. To the extent EPA is 

responding to Executive Order 136501 following the West, Texas incident, any changes 

should be focused on what the Chemical Facility Safety and Security Working Group has 

identified as “potentially noncompliant facilities, often referred to as outliers,”2 which are 

 1 Exec. Order No. 13650, Improving Chemical Facility Safety and Security, 78 Fed. Reg. 48,029 (Aug. 7, 2013). 2 Chemical Facility Safety and Security Working Group, Executive Order 13650 Actions to Improve Chemical 

Safety and Security – a Shared Commitment, Report for the President at 15 (May 2014).
Executive Summary – Comments of the Chemical Safety Advocacy Group

EPA Risk Management Program Request for Information

October 29, 2014

E-2 | Page

“those facilities that knowingly or unknowingly do not comply with facility reporting 

regulations.”3

• Effective implementation of the RMP rule (in coordination with PSM) is derived from 

risk-based and performance-oriented regulation, rather than inflexible prescriptive 

limits. Prescriptive, continual analysis and auditing requirements shift resources away from 

actual maintenance and operational safety activities, thereby reducing a facility’s ability to 

address effectively the unique hazards associated with each complex process. In fact, EPA 

recognized this very issue when promulgating the final 1996 RMP rule, noting that 

“Congress clearly recognized that a ‘one-size-fits-all’ approach may not be appropriate for 

[the RMP rule]. . ..”4

• Although CSAG believes that EPA should first ensure implementation and enforcement 

of the current regulations, any changes to Part 68 should at least await action by OSHA 

to maintain coordination and consistency. This is particularly true where proposed 

changes go beyond the specific regulated actions articulated in Clean Air Act 

Sections 112(r)(7) and (8). At this time, scientific and economic data would need to be 

developed to support even targeted modifications to the existing regulations, much less any 

significant changes or adoption of entirely new regulatory provisions. As Executive Order 

13650 notes, efforts should be made to “reduce duplicative efforts.”5

 Of course, EPA has 

been following this approach since the original promulgation of the RMP rule, noting in the 

preamble to the final 1996 rule that “[t]o the extent possible, covered sources will not face 

inconsistent requirements” across agencies.6

• Harmonizing the RMP rule with both industry standards and OSHA’s PSM standard is 

critical, particularly with respect to operational management of compliance. In fact, 

Congress instructed as much. Section 112(r)(7)(C) provides that any RMP regulations shall 

“to the maximum extent practicable” be consistent with the recommendations and standards 

established by the American Society of Mechanical Engineers (ASME), American National 

Standards Institute (ANSI), and the American Society of Testing Materials (ASTM).7 In 

addition, Section 112(r)(7)(D) directs the Administrator to consult with the Secretary of 

Labor and Secretary of Transportation and coordinate any requirements established for 

“comparable purposes” by OSHA or Department of Transportation (DOT).8

• OSHA must retain oversight of employee safety within the facility, while EPA’s 

authority is directed to potential offsite impacts. EPA has appropriately made clear that 

“OSHA retains its oversight of actions designed to protect workers while EPA retains its 

 3 Id. at 29 n.26. 4 61 Fed. Reg. 31,668, 31,675 (June 20, 1996).

5 Exec. Order No. 13650, § 5, 78 Fed. Reg. at, 48,031.

6 61 Fed. Reg. at 31,670.

7 42 U.S.C. § 7412(r)(7)(C). 8 Id. at § 7412(r)(7)(D).
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oversight of actions to protect public health and the environment.”9 To the extent any future 

regulations proposed by EPA overlap with or go further, stepping into OSHA’s authority to 

“promulgate . . . permanent health or safety standard[s],” they risk overstepping EPA’s legal 

authority and should be judged by the standard applied to OSHA’s regulations (i.e., requiring 

that regulations be necessary to address a “significant risk of harm.”10

• Congress intended the RMP regulations to:

• be reasonable, practicable, and implementable;

• recognize that the most efficient and cost-effective approaches are typically 

developed within the industry rather than by government mandate;

• allow for differences among industries and sources within industries; and 

• take into account the voluntary actions sources are and will be implementing in 

developing regulatory requirements. 

In evaluating its Section 112(r) regulatory provisions, EPA must recognize the resources that 

have already been spent and its statutory obligation to ensure that its regulations under 

Section 112(r)(7) are “reasonable.” Unlike other statutory provisions, where EPA is directed 

to achieve reductions based on “maximum achievable” standards, the RMP regulations must 

be “reasonable” and any guidance “appropriate.”11 Such an approach is also consistent with 

Congress’ dual purposes for the Clean Air Act—protecting and enhancing the Nation’s air 

resources and promoting the Nation’s productive capacity.12 

• Congress further elucidated the need for reasonableness in the requirements by 

providing that the regulations and appropriate guidance drive prevention and detection 

of releases “to the greatest extent practicable.” Congress also recognized the importance 

of flexibility in ensuring the most effective approach, by mandating that the regulations 

recognize differences in size, operations, processes, class, and categories of sources as well 

as the voluntary actions of sources to prevent and respond to releases.

The detailed comments that follow provide technical, legal, and policy support for the 

points outlined above. CSAG would be pleased to answer any questions regarding these 

comments.

 9 61 Fed. Reg. at 31,672. 

10 See generally Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 608 (1980). 11 42 U.S.C. § 7412(r)(7)(B). 12 Id. at § 7401(b)(1).
TABLE OF CONTENTS

Page

I. Any Decision to Propose Addition of a Regulated Substance to the List Must Be 

Based on a Proper Analysis Under the Statute................................................ ......2

A. Any decision to propose adding a chemical to the list at Subpart E (or to change a 

threshold quantity (TQ)) must be based on an evaluation of the regulatory 

criteria, using sound scientific analysis, consistent with the factors listed in Clean 

Air Act Section 112(r)(4). .................................................................. ......3

B. Delisting decisions should be based on the statutory and regulatory criteria......... ......4

II. The Additional Risk Management Program Elements Discussed in the RFI Are 

Better Left for Industry to Implement on a Facility-Specific Basis Rather than 

Codifying Them in Prescriptive Regulations. ................................................ ......5

A. The listed elements are appropriately left to companies for implementation under 

the RMP’s performance-oriented regulations (e.g., as part of Recognized and 

Generally Accepted Good Engineering Practice (RAGAGEP). ...................... ......6

B. Prescriptive, additional program elements will not promote the Clean Air Act’s 

goal of preventing, detecting, and mitigating the consequences of accidental 

releases and could prevent or deter distinctly different operators and facilities 

from implementing those practices that work best. ..................................... ......7

C. Given that in many cases, the proposed elements under consideration fall within 

the primary purview of OSHA and have been addressed in OSHA’s RFI, EPA 

should defer to OSHA’s direction to ensure consistency between the RMP and 

PSM programs and to prevent duplication of efforts. ................................... ......10

III. A Definition and Operator Evaluation Requirement for RAGAGEP Will Likely ReAllocate Safety Resources to Less Valuable Activities, Will Not Aid in Risk 

Management or Prevention of Accidental Releases, and Should Not Be Proposed...... ......11

IV. Modification of the Mechanical Integrity (MI) Requirements or Expansion of the 

RMP Rule to Include Additional “Safety Critical” Terminology is Unwarranted as 

Doing So Will Create Uncertainty Without Promoting Release Prevention and Risk 

Management....................................................................................... ......12

A. Amending the MI provisions of the RMP rule to explicitly cover all safety 

critical process equipment is unnecessary and counterproductive. ................... ......12

1. The current scope of the MI requirements, supported by RAGAGEP and 

effective agency enforcement, is appropriately tailored to performanceoriented risk management and the prevention and detection of accidental 

releases. ................................................................................... ......12

2. The scope of the MI rule is complemented by engineering analysis and 

existing industry standards, obviating the need for expanding the RMP 

language. In fact, use of the term “safety critical” may likely detract attention 

from maintaining other equipment and, if overused, lose any narrowing 

effect. ............................................................................................. ......13

3. Sufficient evidence regarding the need for such additional regulatory 

language has not been presented. ...................................................... ......13

4. With limited resources, EPA should focus on ensuring implementation of the 

key provisions already in the regulation. ............................................ ......13
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B. EPA should not propose amendments to explicitly cover all “safety-critical” 

equipment. .................................................................................... ......14

V. A Management of Organizational Change (MOOC) Requirement Would Be Overly 

Broad, Causing a Deleterious Shift in Resources, and Current Regulations Are 

Sufficient to Address RMP-Covered Processes. ............................................ ......14

A. Management of change (MOC) coverage of process safety-related organizational 

changes is currently addressed in sufficient detail under the RMP program........ ......14

B. Additional organizational changes in the MOC requirement are not necessary..... ......15

VI. EPA Should Not Propose A Third Party Compliance Audit Requirement............... ......16

A. Under a performance-based standard, this requirement would not further the 

Act’s goals of prevention and detection of accidental releases, under which each 

operator should have the ability to use the best auditor available, regardless of 

whether the auditor is internal or external................................................. ......16

B. In general, company-led audits can be far more effective in addressing issues 

uncovered during the audit process than third party audits............................. ......16

C. Current auditing practices demonstrate that the existing performance-oriented 

regulatory structure works................................................................... ......17

D. Requiring more frequent compliance audits would strain available resources, 

result in fewer health and safety personnel to support other maintenance, 

verification, and compliance reviews, and reduce ability to focus on closing audit 

findings. ....................................................................................... ......17

VII. The Safer Technologies/Alternatives Analysis Identified in the RFI Would Create 

Significant Operational and Regulatory Challenges for Operators Without Any 

Indication of a Simultaneous Increase in Accidental Release Prevention Compared 

With the Current Regulatory Requirement. ................................................. ......18

A. EPA considered and appropriately rejected a stand-alone inherently safer 

technology (IST) requirement when it adopted its original RMP rule. ............... ......19

B. Implementation of a mandatory prescriptive safer technology and alternatives 

analysis requirement would be unworkable. ............................................. ......21

VIII. Mandatory Automated Detection and Monitoring Presents a Significant Danger of 

False Alarms Without a Corresponding Reduction in Risk. .............................. ......22

A. Automated notification of alarms and sensor activation could inadvertently cause 

false alarms and responses and consequently remove resources from where they 

are needed in the event of an actual emergency. ........................................ ......22

B. Additional alarm and monitoring systems, to the extent necessary, are more 

appropriately addressed through PSM processes including PHAs, or other 

process-specific regulatory standards. Separately addressing these issues under 

the RMP rule may create confusion and conflict. ....................................... ......23

C. The existing MI program adequately addresses inspection, testing, and 

maintenance of these systems. ............................................................. ......23

IX. Additional Stationary Source Location and Facility Siting Requirements Would 

Limit the Ability of Industry and the Agency to Address This Issue Through 

RAGAGEP and Further Limit Facility Development and Expansion..................... ......23

A. Existing RMP elements and recognized industry guidance are effective at 

regulating on-site facility siting. ........................................................... ......24
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B. Establishing prescriptive buffer or setback zone requirements for new covered 

stationary sources, or developing safety criteria for siting of occupancies inside 

facilities, would limit new facilities and existing facility expansions without 

providing for appropriate operator analysis under the RMP’s performanceoriented approach and RAGAGEP. ....................................................... ......24

C. Existing RMP elements are effective in driving industry performance, and the 

addition of further specificity may limit the development of best practices on this 

issue............................................................................................ ......25

X. Although Covered Facilities Should and Do Coordinate With Emergency 

Responders in Appropriate Cases, a New Emergency Response Coordination 

Element is Unnecessary........................................................................... ......25

A. An entirely new element is not required to address this issue because the existing 

emergency response coordination requirements are clear and enforceable........... ......25

B. EPA should be cognizant that its emergency response requirements do not apply 

in a vacuum. Any revisions to emergency response requirements should be 

considered in concert with similar requirements in other regulatory programs...... ......26

C. In certain cases, the local outside response agency may end up not being 

available for such activities at all facilities. .............................................. ......27

XI. The Current Industry Practice With Respect to Incident Investigation Adequately 

Addresses the Goals of the Clean Air Act Without Additional Prescriptive Language. ......28

A. The RMP program purposely requires investigations for only a subset of 

incidents. ...................................................................................... ......28

B. Current industry practice exceeds incident investigation regulatory requirements 

and further weighs against the addition of new requirements.......................... ......29

XII. Proposing Expanded Public Disclosure Requirements Would Be Inappropriate 

Because They Would Not Result in Greater Accident Prevention As Pertinent 

Information Is Already Available............................................................ ......29

A. Much information is already publicly available online, particularly with respect 

to major incidents and enforcement........................................................ ......30

B. Public availability of information would not further increase the risk 

management goals of preventing and detecting accidental releases................... ......30

C. Increasing public availability of information could provide a roadmap for wouldbe terrorists through dissemination of sensitive security information, creating a 

potential threat to the Nation's energy supply............................................ ......31

XIII. Use of Acute Exposure Guideline Levels (AEGLs) for Threshold Quantity / 

Endpoints Calculations Would Not Further the Goals of the Risk Management 

Program........................................................................................... ......31

A. The Clean Air Act does not require use of AEGLs in establishing TQs for the 

RMP Program. ............................................................................... ......31

B. The existing TQ and endpoint calculations are effective in driving industry 

performance. EPA should not change these long-standing requirements without 

a showing that they are inadequate......................................................... ......32

XIV. There Is No Reasonable Basis to Conclude That Basing Program 3 Applicability 

On Risk Management Program Accident History Data Would Do Anything to 

Promote the Clean Air Act Goal of Accident 
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Prevention....................................................................................... ......32

A. Any revision to the RMP Program 3 applicability provisions must be based on 

data that shows the current requirements are inadequate and that the proposed 

changes would remedy the inadequacy.................................................... ......32

B. Any revision to NAICS codes should be substantiated by a rational methodology, 

valid data, and reasonable assumptions.................................................... ......33

C. EPA should ensure consistency with OSHA PSM requirements in considering 

changes to applicability requirements..................................................... ......33

XV. EPA Should Not Propose to Adopt the Safety Case Regime Because it Would 

Create Significant Financial Burdens for Facilities Without Any Simultaneous 

Improvement in Accident Prevention........................................................ ......34

XVI. Conclusion....................................................................................... ......36
DETAILED TECHNICAL, LEGAL, AND POLICY COMMENTS13

CSAG is a coalition of companies that is focused on supporting appropriate 

implementation of the RMP program as well as the OSHA PSM rules. CSAG members include 

companies in the refining, chemicals, oil and gas, and general manufacturing sectors that have

been actively engaged in the development and implementation of industry best practices for 

many years. Our member companies strive for safe operations based on a fundamental 

commitment to their employees, neighbors, and customers. As owners and operators of RMPcovered facilities, CSAG members receive extensive input from their employees, business 

partners, regulators, community leaders, and other stakeholders, regarding, among other things, 

the challenges they face in implementing controls while maintaining reliability and availability. 

For these reasons, CSAG is uniquely qualified to provide a comprehensive perspective on how 

promulgation of many of the potential amendments to the RMP rule discussed in the RFI would 

affect industry, the most effective means of achieving the Clean Air Act’s risk management 

goals, and how any potential rulemaking, to the extent necessary, should be structured to best 

reflect the evolving industry landscape.

CSAG supports EPA’s overall effort to improve risk management through the Agency’s 

existing, performance-oriented standard. That said, a broad-based expansion of the RMP 

regulations in a manner that does not meaningfully further accident prevention and release 

detection is not justified, where industry is already implementing and developing relevant best 

practices pursuant to the RMP’s performance-driven provisions or simply as part of daily 

operation. CSAG is available to be a resource to EPA to help inform any decision to propose 

rule changes that the Agency may consider necessary, but we urge EPA to ensure that any 

proposed changes are (1) supported by technical data and analysis and (2) consistent with its 

obligations under the Clean Air Act to be reasonable, practicable, and implementable. 

To that end, these comments are organized as follows: 

• First, we address items in OSHA’s RFI relevant to EPA’s RMP regulation, including 

proposed updates to the list of regulated substances, potential additional elements to the RMP 

rule, proposed changes to recognized and generally accepted good engineering practices 

(RAGAGEP) and mechanical integrity (MI) requirements, management of organizational 

change, and third party compliance audits.

• Second, we respond to many of EPA’s requests for comments regarding additional items, 

including safer technology and alternatives analysis, automated detection and monitoring for 

releases, compliance with emergency response program requirements in coordination with 

local responders, incident investigation requirements, public disclosure of RMP information, 

the use of acute exposure guideline level (AEGL) toxicity values in threshold quantities and 

off-site consequence endpoints, the determination of Program 3 applicability based on 

accident history data, and the safety case regulatory model.

 13 CSAG has reviewed and commented on several aspects of the RFI. The information provided in these comments 

reflects initial positions of CSAG. Due to the breadth of issues raised in the RFI, CSAG addresses several, but not 

all, of the issues raised. CSAG may provide additional information to EPA on these and other issues should the 

Agency elect to proceed with a proposal.
Detailed Comments of the Chemical Safety Advocacy Group

EPA Risk Management Program Request for Information

October 29, 2014

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I. Any Decision to Propose Addition of a Regulated Substance to the List Must Be 

Based on a Proper Analysis under the Statute. 

EPA requests comment regarding whether the list of regulated substances set forth at 

40 C.F.R. Section 68.130 should be modified by:

14 

• Adding other toxic or flammable substances;

• Adding high and/or low explosives;

• Adding ammonium nitrate;

• Adding reactive substances and reactivity hazards;

• Adding other categories of substances;

• Removing certain substances from the list or raising their threshold quantities 

(TQ); and

• Lowering the TQs for substances currently on the list.15

Subparagraphs (3) through (5) of Section 112(r) establishes requirements for identifying 

an initial list of substances to be regulated under the RMP rule, as well as requirements to ensure 

that the list is maintained and updated. With regard to the latter, the Clean Air Act allows EPA 

to revise the list on its own motion or based on a petition and provides for review of that list at 

least every five years.16 Clean Air Act Section 112(r)(4) provides that the following criteria shall 

be considered when evaluating substance listings: “(i) the severity of any acute adverse health 

effects associated with accidental releases of the substances; (ii) the likelihood of accidental 

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

releases of the substance.”17 These criteria are intended to ensure that the regulated substance 

list is focused on prevention of accidental releases from chemicals that are “known to cause or 

may reasonably be anticipated to cause death, injury, or serious adverse effects to human health 

or the environment,” or are otherwise “extremely hazardous” under Clean Air Act 

Section 112(r)(3).18 

EPA regulations implementing these statutory provisions further ensure that the list is 

updated as information and facts change. For example, the RMP rule provides the requirements 

for filing a petition to modify the list and establishes procedures for EPA’s consideration of such

petitions.19 These administrative mechanisms provide for adjustment to the regulated substance 

list. In particular, where there has been increased industry focus following major incidents like 

those cited in the RFI, these provisions provide a mechanism for ensuring that appropriate 

changes to the list are brought to the attention of EPA for consideration under the statutory 

factors set forth in the Clean Air Act. 

 14 79 Fed. Reg. 44,604, 44,607 (July 31, 2014). 15 Id. 16 See 42 U.S.C. § 7412(r)(3). 17 42 U.S.C. § 7412(r)(4). 18 Id. 19 See 40 C.F.R. § 68.120.
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EPA Risk Management Program Request for Information

October 29, 2014

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For these reasons, CSAG believes that significant revisions to the list are unwarranted. In 

addition, it is important to recognize the value of a list that includes only those chemicals that 

clearly meet the statutory criteria as over-expansion of the list could be counterproductive, 

reducing the focus on important chemicals with catastrophic potential. It is evident that the 

drafters of the Clean Air Act were sensitive to this issue by not only providing for additions to 

the list, but also providing for the deletion of substances from the list.20

A. Any decision to propose adding a chemical to the list at Subpart E (or to 

change a threshold quantity (TQ)) must be based on an evaluation of the 

regulatory criteria, using sound scientific analysis, consistent with the factors 

listed in Clean Air Act Section 112(r)(4).

The RFI identifies a range of chemicals and categories for consideration for potential 

addition to the regulated substances list. The RFI does not, however, provide an adequate 

description and analysis of these chemicals to support the need for updating the RMP regulated 

substance list. As noted above, Section 112(r)(4) provides that the following criteria shall be 

considered when evaluating substance listings: “(i) the severity of any acute adverse health 

effects associated with accidental releases of the substances; (ii) the likelihood of accidental 

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

releases of the substance.”21 EPA regulations further elaborate on what is required to support a 

change to the list under these factors by establishing the following supporting data requirements 

for petitions for modification:

[T]he petition must include sufficient information to scientifically support the 

request to modify the list. Such information shall include: (i) A list of all support 

documents; (ii) Documentation of literature searches conducted, including but not 

limited to, identification of the database(s) searched, the search strategy, dates 

covered, and printed results; (iii) Effects data (animal, human, and environmental 

test data) indicating the potential for death, injury, or serious adverse human and 

environmental impacts from acute exposure following an accidental release . . .; 

and (iv) Exposure data or previous accident history data, indicating the potential 

for serious adverse human health or environmental effects from an accidental 

release.22

While CSAG recognizes that these data requirements are set forth in the context of consideration 

of a petition for modification to the regulated substance list, we believe that they provide a useful 

construct to allow stakeholders to assist in thoughtfully evaluating the need—on a chemicalspecific basis—for modifications to the list initiated by EPA. EPA should develop this scientific 

information and analysis of any individual chemical that it would add to the list of regulated 

substances as part of any proposal for modifications to the list.

 20 42 U.S.C. § 7412(r)(3). 21 42 U.S.C. § 7412(r)(4). 22 40 C.F.R. § 68.120(g)(6).
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EPA Risk Management Program Request for Information

October 29, 2014

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B. Delisting decisions should be based on the statutory and regulatory criteria.

Clean Air Act Section 112(r)(3) provides that the list of substances regulated are those, 

“which, in the case of an accidental release, are known to cause or may reasonably be 

anticipated to cause death, injury, or serious adverse effects to human health or the 

environment.”23 In addition, Congress directed EPA to consider: 

(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.24

Similarly, Section 68.120(c) of the RMP regulations provides:

A substance may be deleted from the list if adequate data on the health and 

environmental effects of the substance are available to determine that the 

substance, in the case of an accidental release, is not known to cause and may not 

be reasonably anticipated to cause death, injury, or serious adverse effects to 

human health or the environment.25

EPA has indicated that six specific substances—arsenous trichloride (CASRN 7784-34-

1), cyanogen chloride (CASRN 506-77-4), sulfur tetrafluoride (CASRN 7783-60-0), tetramethyl 

lead (CASRN 75-74-1), chlorine monoxide (CASRN 7791-21-1) and ethyl nitrite (CASRN 109-

95-5)—have no indication of releases.26 

One key piece of evidence to support a delisting could well be the lack of RMP reports 

for a chemical, as this is a clear indicator of the “likelihood of accidental releases” of the 

substance as provided in the statute. At the same time, it is important for EPA to appropriately 

document its evaluation of the other statutory factors and Section 68.120(c)’s criterion that in the 

case of an accidental release, the substance may not reasonably be anticipated to cause death, 

injury or serious adverse health or environmental effects. 

For example, it may be that the reason that a substance has not been included in RMP 

reports is in part due to the fact it is a listed substance. It is possible that such a substance would 

be used in greater quantities or in a different manner if it were not a listed substance. For these 

reasons, it is important for any proposal to include a complete evaluation of the factors that EPA 

has considered, including those required by the statute. 

 23 42 U.S.C. § 7412(r)(3) (emphasis added). 24 42 U.S.C. § 7412(r)(4)(A). 25 40 C.F.R § 68.120(c). 26 79 Fed. Reg. at 44,613.
Detailed Comments of the Chemical Safety Advocacy Group

EPA Risk Management Program Request for Information

October 29, 2014

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II. The Additional Risk Management Program Elements Discussed in the RFI Are 

Better Left for Industry to Implement on a Facility-Specific Basis Rather than 

Codifying Them in Prescriptive Regulations.

EPA requests information on whether the following elements should be added or 

incorporated into the RMP requirements: 

• Measurements and metrics;

• Management review and continuous improvement;

• Process safety competency;

• Stop work authority;

• Ultimate work authority;

• Conduct of operations;

• Process safety culture; and

• Job safety analysis.27

The first three identified elements—Measurements and Metrics, Management Review and 

Continuous Improvement, and Process Safety Competency—are taken from the Risk Based 

Process Safety Program recommended by the Center for Chemical Process Safety (CCPS), and 

were also identified as potential new management system elements by OSHA in its RFI.28 The 

next two identified elements—Stop Work Authority and Ultimate Work Authority—were also 

identified by OSHA and are safety standards promulgated by the Bureau of Safety and 

Environmental Enforcement (BSEE).29 The final three elements—Conduct of Operations, 

Process Safety Culture, and Job Safety Analysis—were not identified for comment in the OSHA 

RFI.30

EPA also seeks comment on whether the following specific examples of management 

system elements currently contained within the RMP regulations should be modified, clarified,

or strengthened:

• Contractor safety practices and oversight;

• Process hazard analysis (PHA) review components pertaining to failure scenarios 

or damage mechanisms;

• Frequency, specificity, and triggers for PHA update and review; and

• Clarification of when pre-startup review for modified sources is required.31

EPA more generally requests information on any other management system elements or on 

potentially modifying, clarifying, or expanding existing elements that would improve the 

 27 See 79 Fed. Reg. at 44,615-16. 28 Id. at 44,615.

29 Id. 30 Id. at 44,615-16. 31 Id. at 44,616. 
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EPA Risk Management Program Request for Information

October 29, 2014

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protection of human health and the environment.32 As a general matter, it would be 

counterproductive for EPA to add specific prescriptive requirements or program elements into 

the integrated, risk-based management system approach of RMP and PSM. Such a move would 

actually decrease safety by forcing entities to engage in “check-the-box” paperwork exercises 

mandated by regulations rather than identifying and managing the specific risks in their 

processes. Even though several of the program elements mentioned by EPA are drawn from the 

latest CCPS publications on risk-based process safety management, imposing those elements on 

all industries, facilities, and processes is antithetical to the CCPS risk-based approach, and it 

would move the regulatory system backwards to a more standards- and stick-based approach, 

rather than focusing on performance. 

A. The listed elements are appropriately left to companies for implementation 

under the RMP’s performance-oriented regulations (e.g., as part of 

Recognized and Generally Accepted Good Engineering Practice 

(RAGAGEP)).

The stated purpose of Section 112(r) is to “prevent the accidental release and to minimize 

the consequences of any such release of any substance listed pursuant to paragraph (3) or any 

other extremely hazardous substance.”33 EPA has reiterated this purpose in prior RMP 

rulemakings: 

The intent of section 112(r) is to prevent accidental releases to the air and mitigate 

the consequences of such releases by focusing prevention measures on chemicals 

that pose the greatest risk to the public and the environment”; and “the purpose of 

the risk management program and RMP effort is to prevent accidents and 

facilitate local level dialogue about the risks, prevention measures, and emergency 

response effort in place and at the source.34 

Any revisions to the RMP requirements should therefore align and further these accident 

prevention and response purposes. As noted above, Congress intended the RMP regulations to 

be “reasonable” in addition to practicable and implementable. Reasonableness requires that 

proposed regulation amendments be necessary to address a “significant risk of harm.” Congress 

also recognized the importance of flexibility in achieving effective approaches that recognize 

inherent differences in size, operations, processes, class, and categories of sources and the 

voluntary actions of these different types of facilities to prevent and respond to releases. 

The safety practices associated with the elements delineated above, however, do not 

further these goals in that they are redundant to measures already undertaken by industry and 

undermine the important flexibility inherent in the current RMP program. Measures such as 

those suggested in the RFI are most appropriately left for companies to implement under the 

current RMP rule’s performance-oriented regulations, such as the obligation to implement 

RAGAGEP. For instance, the current rule requires owners and operators to “document that 

 32 Id. 33 42 U.S.C. § 7412(r)(1). 34 61 Fed. Reg. 31,668, 31,669, 31,678 (June 20, 1996).
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equipment complies with recognized and generally accepted good engineering practices,”35 and 

further requires the owner or operator to “determine and document that the equipment is 

designed, maintained, inspected, tested and operating in a safe manner.”36 

B. Prescriptive, additional program elements will not promote the Clean Air 

Act’s goal of preventing, detecting, and mitigating the consequences of 

accidental releases and could prevent or deter distinctly different operators 

and facilities from implementing those practices that work best.

These requirements are implemented by operators using a variety of practices, many of 

which may directly track the proposed elements in whole or in part. For example, facilities may 

already follow industry-specific recommended practices for process safety performance 

indicators (e.g., American Petroleum Institute (API) Recommended Practice 754 – Process 

Safety Performance Indicators for Refining and Petrochemical Industries) to develop and 

implement site-specific process safety metrics that align with and meet the goals of the 

measurements and metrics element EPA suggests. The same can be said for management review 

and continuous improvement, process safety competency, stop work and ultimate work authority, 

conduct of operations, job safety analysis, contractor safety requirements, and the other elements 

EPA is considering. 

Importantly, where individual companies are implementing these additional elements it 

is, because they have made case-specific determinations that those specific elements (as applied 

to their facilities) help them meet the objectives of the RMP and PSM programs—namely, to 

protect workers or prevent accidental releases. Companies not implementing one or more of 

these elements (or implementing them in a different manner) may be doing so because of their 

own case-specific analyses. 

CSAG is concerned that a regulatory approach that simply looks to what some facilities 

are doing as best practices and codifies them into prescriptive requirements would be shortsighted and contrary to the evergreen approach of the PSM and RMP regulatory constructs. 

Such an approach would risk shifting the RMP program from a performance-based standard with 

flexible concepts such as RAGAGEP and a facility/ Local Emergency Planning Committee 

(LEPC) coordination and feedback loop, to a prescriptive, check-the-box program. The result of 

such a shift would be to discourage companies from looking for new and improved best practices 

and from incorporating changes based on what they learn from successes and failures along the 

way. 

EPA recognized this concern when it promulgated the RMP rule. In that rulemaking, 

EPA responded to comments requesting that EPA codify model plans for specific industries 

under RMP Program 2 by stating, “EPA is also concerned that codifying the model plans could 

 35 40 C.F.R. § 68.65(d)(2). 36 Id. at § 68.65(d)(3).
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stifle innovation in safety practices.”37 Similarly, in responding to comments requesting a single 

risk management program, EPA responded:

In establishing section 112(r)(7) requirements, however, Congress clearly 

recognized that a “one-size-fits-all” approach may not be appropriate for these 

regulations and directed EPA to consider these factors [differences in size, 

operations, processes, class and categories of sources] in the development of the 

accident prevention regulations.38

CSAG agrees with these principles and believes that a less prescriptive, performance-oriented 

standard would be more effective in promoting the Clean Air Act’s goal of preventing and 

detecting accidental releases.

Implementation of RMP requirements is purposefully designed to be flexible. EPA has 

previously touted such flexibility in prior RMP rulemakings: “EPA notes that sources have the 

flexibility to implement appropriate accident prevention measures based on the hazards and risks 

discovered in the hazard review or process hazard analysis.”39 This flexibility in designing and 

implementing safety and risk management under the items listed in EPA’s RFI is best enacted 

and supported by proper site implementation and competent agency enforcement of current RMP 

requirements. For example, the regulations’ flexibility allows for a facility to change the metrics 

chosen for emphasis from time to time, thereby allowing new focus (i.e., “fresh eyes”) through 

this rotational approach. By mandating all metrics, all the time, the effectiveness of each metric 

would likely be diluted, by either requiring too many so they become meaningless or not enough 

such that companies fail to consider their facilities’ most appropriate metrics from time to time to 

ensure they most effectively drive performance enhancements and reduce overall risk.

A “one-size-fits-all” approach to issues like “safety culture,” process safety measurement, 

stop and ultimate work authority, and contractor oversight, among others, undermines the 

flexibility associated with developing and implementing industry best practices. Establishing a 

prescriptive approach to these issues would prevent distinctly different operators and facilities 

from implementing practices that work best for their specific processes and cultures. It could 

also have the perverse effect of increasing risk in certain circumstances by forcing the proverbial 

square peg into a round hole. 

As facilities currently implement a mix of many (if not most or all) of the elements being 

reviewed in the RFI in their existing programs, tailored to the particular needs of the facility and 

community, the existing RMP elements already capture the concerns raised by EPA’s proposed 

elements, and enshrining the proposed elements into the RMP regulations would add a layer of 

redundancy while eliminating the valuable flexibility of the program. To that end, it does not 

promote the Clean Air Act’s goal of preventing and detecting accidental releases to simply 

capture discrete items that industry is already implementing as part of ongoing improvement and 

 37 61 Fed. Reg. at 31,679. 38 Id. at 31,675.

39 Id. at 31,678.
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best practice. Taking a “kitchen sink” approach to the RMP rule by adding numerous elements 

and activities will not prevent, and may actually lead to an increase in, accidental releases.

Indeed, CSAG is unaware of industry data or evidence to show that adding such new 

elements to the RMP rule is necessary to prevent, detect, or mitigate accidental releases. EPA 

should not propose to add any new elements without a threshold determination and showing that 

the elements are necessary to prevent, detect, or mitigate the consequences of accidental releases. 

Any proposed action without such a showing would be unsupported, unwarranted by the facts, 

and not reasonable.40 

For example, CSAG does not believe that the addition of a new RMP element to require 

periodic safety culture assessments would meaningfully strengthen the safety culture incentives 

that already exist. While safety culture surveys can be a helpful tool for companies to evaluate 

potential opportunities to improve PSM processes and management structures, regulating safety 

culture would be unworkable and likely even counterproductive. Safety culture surveying is a 

particularly difficult concept to regulate because the information such surveys provide depends 

on a range of factors, including the vehicle used to administer the survey, the participation rate, 

and employee perspectives regarding the survey process. 

In addition, survey responses are subjective and are often inconclusive in the absence of a 

statistically significant sample group or comparison to a meaningful benchmark. Such factors 

are necessarily industry- and facility-specific. For example, a survey requirement for a facility 

with 100 employees would be of different utility than a facility with 2,000 employees. 

Moreover, the timing of safety culture surveys in relation to other issues, such as labor 

negotiations, has the potential to inappropriately influence survey results. In light of this 

variability and absence of data or evidence to show the such a new element is necessary or would 

be helpful to prevent, detect, or mitigate accidental releases, EPA should not develop a proposal 

for a safety culture assessment requirement.

In addition, one of the most important and valuable uses of the safety culture survey is 

having the ability to detect and analyze specific instances of lowered morale in the workforce 

(e.g., in response to industry incidents, community issues), so that the operator can respond 

effectively and quickly through employee support programs and other outreach 

efforts. Requiring scheduled safety culture surveys risks creating employee fatigue in providing 

accurate and thoughtful responses, thereby reducing the ability of operators to accurately poll 

employees when this information is most needed. 

 40 See 5 U.S.C. § 706(2).
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C. Given that in many cases, the proposed elements under consideration fall 

within the primary purview of OSHA and have been addressed in OSHA’s 

RFI, EPA should defer to OSHA’s direction to ensure consistency between 

the RMP and PSM programs and to prevent duplication of efforts. 

A key directive of Executive Order 13650 was to “streamline reporting requirements, and 

reduce duplicative efforts” in order to enhance information collection and sharing across 

agencies.41 Similarly, Clean Air Act Section 112(r) directs EPA to closely coordinate its 

regulations with OSHA and other agencies to avoid inconsistent requirements.42 EPA followed 

this key aspect of its statutory directive in promulgating its RMP rule, electing to mirror the 

language in OSHA PSM elements in its requirements for Program 3 sources. The preamble to 

that final rule provides: 

[T]oday’s rule builds on existing programs and standards. For example, EPA has 

coordinated with Occupational Safety and Health Administration (OSHA) and the 

Department of Transportation (DOT) in developing this regulation. To the extent 

possible, covered sources will not face inconsistent requirements under these 

agencies’ rules.43

* * * 

Measures taken by sources to comply with OSHA PSM for any process that meets 

OSHA’s PSM standard are sufficient to comply with the prevention program 

requirements of all three Programs. . . . EPA and OSHA are working closely to 

coordinate interpretation and enforcement of PSM and accident prevention 

programs.

44

Moreover, EPA noted that the extent that its Program 3 requirements differed from the PSM 

standard was to:

ensure that OSHA retains its oversight of actions designed to protect workers 

while EPA retains its oversight of actions to protect public health and the 

environment and to remove possible interpretations that certain elements of 

process safety management fail to account for offsite impacts.45 

These are key guiding principles that apply equally today and that should be considered by EPA 

in its assessment of whether revisions to RMP program elements are necessary.

 41 Exec. Order No. 13650, § 5, 78 Fed. Reg. at 48,031. 42 See 42 U.S.C. § 7412(r)(7)(B)(i) (“The Administrator shall utilize the expertise of the Secretaries of 

Transportation and Labor in promulgating such regulations.”); see also Id. § 7412(r)(7)(D) (“In carrying out the 

authority of this paragraph, the Administrator shall consult with the Secretary of Labor and the Secretary of 

Transportation and shall coordinate any requirements under this paragraph with any requirements established for 

comparable purposes by the Occupational Safety and Health Administration or the Department of Transportation.”) 

43 61 Fed. Reg. at 31,670. 44 Id. at 31,671. 45 Id. at 31,672.
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In particular, any proposed new elements that are revisions to existing PSM elements or 

potential new PSM elements should be considered in close consultation with OSHA to ensure 

that “one accident prevention program to protect workers, the general public, and the 

environment will satisfy both OSHA and EPA.”46 Furthermore, because the proposed additional 

RMP elements under consideration closely overlap with PSM issues, it is appropriate for OSHA 

to take the lead in developing the regulatory response, with appropriate input from and 

consultation with EPA. 

III. A Definition and Operator Evaluation Requirement for RAGAGEP Will Likely ReAllocate Safety Resources to Less Valuable Activities, Will Not Aid in Risk 

Management or Prevention of Accidental Releases, and Should Not Be Proposed.

EPA requests comment on whether specific updates are appropriate to the RMP 

requirement that owners or operators “document that equipment complies with recognized and 

generally accepted good engineering practices.”47 Specifically, EPA seeks input regarding 

whether the Agency should modify the rule to include a definition of RAGAGEP, and 

additionally whether operators should be required to evaluate updates to RAGAGEP applicable 

to their facilities.48

A prescribed RAGAGEP definition will limit operator flexibility in addressing sitespecific hazards and would be inconsistent with the goals of Section 112(r). The current concept 

of RAGAGEP is aligned with the performance-oriented nature of the RMP rule and provides 

flexibility to operators in implementing industry guidance and internal practices applicable to 

individual operations. Any effort to more specifically define this term will significantly limit 

operator flexibility in addressing site-specific hazards. RAGAGEP cannot be a single document, 

code, standard, or practice. It has been widely recognized that RAGAGEP should include 

industry consensus and guidance, as well as appropriate internal operator standards.49 

Simultaneously, not all industry codes and standards can be considered “recognized and 

generally accepted.” Although newly-drafted codes and recommended practices may form a 

starting point from which an operator derives its individual RAGAGEP based on engineering 

analysis, such documents do not become RAGAGEP until they have been the subject of broad 

industry review and acceptance. 

RAGAGEP should remain a flexible concept that allows employers to tailor RMP 

activities to the unique hazards and complexities of each facility. A static definition of 

RAGAGEP is contrary to the performance-oriented nature of the regulation, which allows 

operators flexibility in meeting the goals of the Clean Air Act in preventing and detecting 

accidental releases through hazard assessment and design and maintenance of a safe facility 

based on the specific nature of the facility’s equipment.

 46 Id. 47 79 Fed. Reg. at 44,617. 48 Id.

49 See e.g., BP Prods. N. Am., & BP-Husky Ref., LLC, O.S.H.R.C. 10-0637, 2013 OSAHRC 73 at p. 15 (Aug. 16, 

2013).
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The approach of allowing internally-developed standards to serve as RAGAGEP is an 

important regulatory tool in preventing and minimizing the impacts of accidental releases. In 

fact, even some highly prescriptive industry standards contain language that provide employers 

with discretion in determining what is best suited for their facility (e.g., API Recommended 

Practice 578, Material Verification Program for New and Existing Alloy Piping Systems, 

providing various actions “for consideration” by the facility with respect to material 

examination, rather than setting specific requirements or inspection percentages). Through 

RAGAGEP, operators are responsible for appropriately analyzing and evaluating safety risks and 

reducing them through appropriate means. A prescribed definition of RAGAGEP may detract 

from an operator’s ability and willingness to make facility-specific determinations that achieve 

the ultimate goal of safety.

IV. Modification of the Mechanical Integrity (MI) Requirements or Expansion of the 

RMP Rule to Include Additional “Safety Critical” Terminology is Unwarranted as 

Doing So Will Create Uncertainty Without Promoting Release Prevention and Risk 

Management.

A. Amending the MI provisions of the RMP rule to explicitly cover all safety 

critical process equipment is unnecessary and counterproductive.

1. The current scope of the MI requirements, supported by RAGAGEP 

and effective agency enforcement, is appropriately tailored to 

performance-oriented risk management and the prevention and 

detection of accidental releases.

The current regulation governing the MI element of the RMP program applies to the 

following process equipment:

• Pressure vessels and storage tanks; 

• Piping systems (including piping components such as valves); 

• Relief and vent systems and devices; 

• Emergency shutdown systems; 

• Controls (including monitoring devices and sensors, alarms, and interlocks); and

• Pumps.50

As recognized in the RFI, this rule covers the majority of equipment that can reasonably 

be considered to be safety critical process equipment.51 Moreover, industry’s use of RAGAGEP 

as applied to individual facilities and effective agency enforcement further ensure the adequacy 

of the existing regulations in the context of MI.

 50 40 C.F.R. § 68.73(a). 51 See 79 Fed. Reg. at 44,617. 
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2. The scope of the MI rule is complemented by engineering analysis and 

existing industry standards, obviating the need for expanding the 

RMP language. In fact, use of the term “safety critical” may likely 

detract attention from maintaining other equipment and, if overused, 

lose any narrowing effect.

The equipment listed in the existing MI rule is in many cases not the only equipment that 

companies treat in accordance with MI requirements. Specifically, companies use engineering 

analyses and RAGAGEP as applied to their individual facilities, to consider additional 

equipment under their individually-tailored MI programs. These practices, in addition to the 

existing rule, ensure that each company considers the appropriate safety critical equipment in 

accordance with MI requirements, without the need for a prescriptive requirement expanding the 

RMP language. CSAG is concerned that a prescriptive expansion of equipment that is 

designated as “safety critical” could actually dilute the meaning and urgency associated with the 

term. 

3. Sufficient evidence regarding the need for such additional regulatory 

language has not been presented.

The RFI states that “during some compliance inspections EPA has observed that facilities 

have failed to apply mechanical integrity program measures to certain additional types of 

equipment and systems that could reasonably be judged to be critical to process safety.”52 

CSAG does not believe that this statement, and the general examples in the preamble, justify 

proposing additional language on this issue. CSAG is unaware of any evidence to support the 

claim that expanding the scope of Section 68.73 to cover all safety-critical equipment would 

make it more likely that accidental releases would be prevented, nor does the RFI identify any 

accidental releases that occurred as a result a company’s failure to treat non-covered “safetycritical” equipment in accordance with MI requirements. Instead, the RFI only notes that certain 

equipment could reasonably be judged to be critical. 

4. With limited resources, EPA should focus on ensuring 

implementation of the key provisions already in the regulation.

CSAG believes that EPA’s efforts are better spent ensuring compliance with the 

mechanical integrity provisions of the existing regulations. Specifically, CSAG believes that 

more vigorous compliance assistance and outreach, as well as targeted, strategic approaches to 

inspection would likely result in more significant improvements to process safety than a 

prescriptive rule expansion.

 52 79 Fed. Reg. at 44,617. 
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B. EPA should not propose amendments to explicitly cover all “safety-critical” 

equipment.

The RFI states that EPA is interested in receiving information on whether the RMP rule 

should be expanded to cover the mechanical integrity of any safety-critical equipment. EPA 

notes the PSM standard categories of equipment encompass most safety-critical equipment 

within regulated processes. Further, EPA questions whether additional types of equipment and 

systems that could reasonably be judged to be critical to process safety should be covered, 

providing computer software systems that interact with process components, electrical power 

systems, and other utility systems that interact with pumps, valves, or control systems as 

examples.53 EPA specifically asks if it should amend the mechanical integrity provisions of the 

RMP rule to explicitly cover all safety critical process equipment. 

The mechanical integrity provisions of the rules appropriately address the equipment that 

should be included and an expansion of the rule is not appropriate. Further, “safety-critical” can 

only be evaluated with respect to the facility processes at issue. Complex differences between 

facilities, processes, and equipment types mean that a given piece of equipment at one facility 

may not be safety-critical, whereas at another facility it is. Determining the equipment that is 

safety-critical is therefore most appropriately left to the judgment of individual operators and 

facilities.

Finally, CSAG is unaware of any information supporting a conclusion that the scope of 

the list of equipment covered under ‘‘Mechanical Integrity’’ in Section 68.73 has affected 

decisions regarding maintenance, functionality, or integrity of process components that would 

not typically be considered ‘‘mechanical’’ components, such as electrical components and 

computer systems. In fact, the designation of Section 68.73 as “Mechanical Integrity” conforms 

to the corresponding OSHA PSM requirements that are generally understood to address 

components that are not purely mechanical in nature. As discussed in the introduction to these 

comments, it is important to maintain consistency between RMP and PSM requirements. 

V. A Management of Organizational Change (MOOC) Requirement Would Be Overly 

Broad, Causing a Deleterious Shift in Resources, and Current Regulations Are 

Sufficient to Address RMP-Covered Processes.

A. Management of change (MOC) coverage of process safety-related 

organizational changes is currently addressed in sufficient detail under the 

RMP program.

EPA’s Chemical Accident Prevention provisions require owners and operators to 

implement procedures to manage certain changes “that affect a covered process.”54 The current 

MOC provisions therefore may be applied to any changes to procedures that could impact

 53 Id. 54 40 C.F.R. § 68.75. 
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process safety in RMP-covered processes. For example, in a standard interpretation letter 

regarding parallel language in the PSM rule, OSHA’s Director of Enforcement explained:

The PSM standard requires employers to develop and implement MOC 

procedures to address the safety and health impact of contemplated changes, 

including organizational changes, as they relate to process chemicals, technology, 

equipment, procedures and facilities.

* * * 

Some organizational changes such as changes resulting from mergers, 

acquisitions, reorganizations, staffing changes, or budget revisions may affect 

PSM at the plant level and would therefore trigger a PSM MOC procedure.” 55 

This memorandum reflects that the existing language is sufficient to cover organizational 

changes that affect covered processes. Moreover, the current approach effectively addresses the 

accident prevention goal of the RMP rule without creating unnecessary challenges in 

interpretation or ineffective resource allocation.

B. Additional organizational changes in the MOC requirement are not 

necessary.

The RFI does not show that there are sufficient industry safety performance problems 

that would justify expanding the scope of organizational changes considered in the MOC 

requirement beyond those already covered. For example, there is no reason to believe that 

inclusion of minor personnel changes, such as changes in individual staffing positions, in the 

MOC requirement would support the statutory purposes. Indeed, expanding the already broad 

coverage of changes captured by the current rule language would be overkill. 

EPA generally does not have the authority to intervene in personnel decisions or how 

those decisions are implemented. Implementing such a requirement would place a significant 

burden on operators across industry, while disproportionately affecting small businesses. EPA 

needs to develop additional analysis of how the MOC process may be applied to organizational 

changes in order to improve process safety if EPA decides to proceed with a proposed rule 

addressing this element.

 55 See Mem. from Richard E. Fairfax, Director of Enforcement Programs, OSHA to Regional Administrators (Mar. 

31, 2009), available at

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28628 (citing 

29 C.F.R. § 1910.119(l)(1)) (last visited Oct. 28, 2014). 
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VI. EPA Should Not Propose A Third Party Compliance Audit Requirement

A. Under a performance-based standard, this requirement would not further 

the goals of prevention and detection of accidental releases, under which each 

operator should have the ability to use the best auditor available, regardless 

of whether the auditor is internal or external.

As noted above, the central purpose of the RMP provisions is to detect, prevent, and 

mitigate the accidental release of hazardous substances. Under a performance-based standard, 

the requirement that audits be conducted by a third party would not promote these statutory goals 

because it may prevent operators from using the best auditor available. In many cases, the 

unique nature of facilities and industrial processes will mean that the most qualified auditors are 

internal, while in other cases they may be external to the facility but within the same company or 

in others, may be a third party. Legislative debate on the development of the Clean Air Act, 

Section 112(r) standard supports an approach that allows for facilities to use the most appropriate 

auditors.

56

In many cases, third party audits are actually less effective than internal audits due to the 

third party auditor’s lack of institutional knowledge about a facility and/or lack of expertise in 

the field. This may be particularly true where third party auditors are incentivized to promote 

their expertise in every equipment category and RMP-covered process in order to maximize 

business opportunities, which may also give rise to conflicts of interest. These points were 

brought into sharp relief just a few years ago when a third party audit failed to stop a cantaloupeborne Listeria outbreak that resulted in numerous deaths and illnesses and which occurred days 

after a third party auditor gave the facility a “superior” rating.57

B. In general, company-led audits can be far more effective in addressing issues 

uncovered during the audit process than third party audits.

Company-led audits can be far more effective in addressing issues uncovered during the 

audit process due to the internal auditor’s intimate knowledge of the organization and how it 

functions. Because company-led audits facilitate sharing of information and findings across the 

company, these audits may, in turn, lead to revisions of internal safety measures, and result in 

greater safety improvements and benefits to human health and the environment and thus further 

the purpose of the Clean Air Act and the RMP rule. While CSAG recognizes that third party

audits may offer an objective, “fresh” examination of a facility’s operations, the same goals can 

be effectively accomplished through use of cross-facility or cross-operational employee auditors. 

 56 See S. REP. NO. 101-228, at 248 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3632 (“audits are the responsibility 

of the owners and operators of these facilities.”); see also id. 1990 U.S.C.C.A.N. at 3627 (“Each of the elements of 

the accident prevention program . . . should be audited . . . by company personnel (other than those directly 

responsible for the process unit) or outside consultants . . ..”); see also id. 1990 U.S.C.C.A.N. at 3521 (“self-audits 

seems to be indicated.”).

57 See U.S. House of Representatives, Committee on Energy and Commerce, Report on the Investigation of the 

Outbreak of Listeria monocytogenes in Cantaloupe at Jensen Farms, (Jan. 10, 2012) available at

https://energycommerce.house.gov/sites/republicans.energycommerce.house.gov/files/analysis/20120110Listeria.pd

f.
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Utilizing employees from a separate facility to perform internal audits is common industry 

practice.

Finally, the role and utility of internal auditing is also recognized more broadly. For 

example, the U.S. Government Accountability Office generally allows the use of internal 

auditing and has published Government Auditing Standards that recognize the independence of 

internal audits, provided that certain control and ethical considerations are met.58

In addition, while there are competent third party auditors, CSAG is concerned that a 

sufficiently deep pool of competent third party auditors will not exist if such audits are required 

on an industry-wide basis. Any such shortage could foreseeably result in an audit process that 

fails to achieve the rigor of the audits that are performed under the current regulations, thus 

thwarting the RMP’s purpose of increased detection and prevention of accidental releases. 

CSAG therefore encourages EPA not to require the use of an auditor that is potentially less 

effective than an auditor the company would otherwise choose. 

C. Current auditing practices demonstrate that the existing performanceoriented regulatory structure works. 

Under the current regulation, many companies already choose to use independent third

party auditors to conduct or participate in the auditing process. Instead of being a comment on 

the efficacy of this decision, this choice appropriately reflects the flexibility of the RMP rule 

according to the specific needs of the company. A mandate to require the use of third party

auditors, on the other hand, would frustrate this flexibility and impose significant costs on 

companies that are not justified by industry safety performance data. Indeed, no data has been 

shown that any such costs are warranted because no evidence has been provided to support the 

idea that third party audits would result in greater risk management improvements or that any 

RMP auditing failures could not be fixed simply through more effective implementation and 

enforcement of current RMP audit requirements. 

D. Requiring more frequent compliance audits would strain available resources, 

result in fewer health and safety personnel to support other maintenance, 

verification, and compliance reviews, and reduce ability to focus on closing 

audit findings.

Many companies already conduct more frequent assessments of their PSM programs. 

Mandating increased frequency, however, would likely not result in greater safety performance 

across industry. Without evidence demonstrating a clear correlation between increased auditing 

and greater accident detection and prevention, such a requirement would strain and divert 

available resources. It would be especially burdensome and costly for small operators who 

typically begin with far fewer resources. CSAG therefore encourages EPA to focus on 

implementation and enforcement of the current RMP audit provisions and tracking closure of 

 58 U.S. Government Accountability Office, Government Auditing Standards, GAO-12-331G at 39 (Dec. 2011) 

(“[I]nternal auditors who work under the direction of the audited entity’s management are considered independent 

for the purposes of reporting internally if the head of the audit organization meets all of the following criteria . . ..”). 
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action items from those audits, rather than proposing more particular requirements and frequency 

provisions that will undoubtedly strain resources at the expense of efficiency and safety. 

VII. The Safer Technologies/Alternatives Analysis Identified in the RFI Would Create 

Significant Operational and Regulatory Challenges for Operators Without Any 

Indication of a Simultaneous Increase in Accidental Release Prevention Compared 

With the Current Regulatory Requirement.

In response to a petition requesting that the Agency use its Clean Air Act Section 

112(r)(7)(A) rulemaking authority to “require the use of inherently safer technologies, where 

feasible, by facilities that use or store hazardous chemicals,” the RFI seeks comment regarding 

“possible approaches to promoting risk reduction through safer technology and alternatives.”59 

The RFI outlines concepts relating to inherently safer technology (IST) based on materials 

published by CCPS, describing IST as a “philosophy and an iterative process, including 

eliminating a hazard, reducing a hazard, substituting a less hazardous material, using less 

hazardous process conditions, and designing a process to reduce the potential for, or 

consequences of, human error, equipment failure, or intentional harm.”60 

Proponents of IST often fail to acknowledge many of the challenges posed by the 

implementation of the concept, as recognized by subject-matter experts in this area. For 

example, the CCPS notes in Inherently Safer Chemical Processes, 2nd ed., that “inherent safety 

should not be seen as an end in itself, or even the preferred strategy to reduce risk. Rather, it 

must be seen as one strategy to be employed to reach a risk reduction target.”61 These materials 

provide that there is no clear boundary between IST and other strategies, that ISTs are relative 

and can only be described as inherently safer when compared to a different technology, including 

a description of the hazard or set of hazards being considered, their location, and the potentially 

affected population.”62

CSAG strongly opposes the introduction of a safer technologies/alternatives analysis 

requirement under the RMP rule. CSAG believes that EPA’s evaluation of potential changes to 

the existing regulatory requirements as they relate to equipment maintenance and selection 

should focus on documented shortcomings that can be addressed by specific measures and that 

are consistent with Section 112(r). Moreover, the Clean Air Act requires that any additional 

measures be reasonable and practicable, cost effective, and flexible enough to account for the 

performance-based nature of the RMP construct and the wide array of entities regulated under 

the standard. 

By definition, the goal of process safety under RMP is risk management. This means 

managing an acceptable risk and managing risk to within acceptable limits, not elimination of all 

risk, which is generally not practical and likely not even possible. The current RMP rule 

intrinsically recognizes the concept of risk management and the need for practical, cost-effective 

 59 79 Fed. Reg. at 44,620. 60 Id. 61 CCPS, Inherently Safer Chemical Processes: A Life Cycle Approach, (2d ed. 2009). 62 79 Fed. Reg. at 44,620.
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regulations by establishing a tiered program that scales facility cost and regulatory burden to the 

risk posed by the particular facility. In the absence of such a guiding principle, all covered 

facilities would necessarily be subject to Program 3 requirements. When faced with comments 

regarding the tiered approach, EPA explained:

EPA disagrees that the Clean Air Act requires all covered processes to comply 

with the same detailed risk management program.63 

* * * 

EPA established the tiered approach to acknowledge that different industries pose 

different potential risks to human health and the environment and that elements of 

other regulatory programs may serve to prevent accidents.64 

EPA cannot meet the Clean Air Act regulatory thresholds with regard to a safer 

technologies/alternatives analysis at this time.65

A. EPA considered and appropriately rejected a stand-alone inherently safer 

technology (IST) requirement when it adopted its original RMP rule.

EPA was presented with this same regulatory policy issue when it adopted the original 

substantive RMP rule in 1996. In that rulemaking, EPA correctly explained:

EPA does not believe that a requirement that owners or operators conduct 

searches or analyses of alternative process technologies for new or existing 

processes will produce significant additional benefits. Many commenters, 

including those who support these analyses, indicated that an assessment of 

inherently safer design alternatives has the most benefit in the development of 

new processes. Industry generally examines new process alternatives to avoid the 

addition of more costly administrative or engineering controls associated with a 

design that may be more hazardous in nature. Although some existing processes 

may be judged to be inherently less safe than others, EPA believes most of these 

processes can be safely operated through management and control of the hazards 

without spending resources searching for unavailable or unaffordable new process 

technologies. Application of good PHA techniques often reveals opportunities for 

continuous improvement of existing processes and operations without a separate 

analysis of alternatives. EPA encourages owners or operators to continue to 

examine and adopt viable alternative processing technologies, system safeguards, 

or process modifications to make new and existing processes and operations 

inherently safer. Through the process and prevention program information in the 

 63 61 Fed. Reg. at 31,675. 64 Id. at 31,688. 65 See 42 U.S.C. § 7412(r)(7)(B) (specifying “reasonable” regulations that recognize differences in facilities and the 

voluntary actions of sources to prevent and respond to releases).
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RMP, sources can demonstrate, and users of the RMP information can observe 

and promote, progress toward safer processes and operations.66

Nothing presented in the RFI changes this analysis. While the RFI does mention that certain 

jurisdictions have implemented IST requirements, no benefits associated with these requirements 

are identified. CSAG is not aware of evidence suggesting that these programs have provided any 

additional benefit in preventing or detecting accidental releases. To the contrary, the RFI 

actually discusses additional reasons for not adding a safer technologies and alternatives analysis 

requirement. For example, the RFI explains:

• “A July 2010 Department of Homeland Security (DHS) report prepared by CCPS . . . 

stated that there is no clear boundary between IST and other strategies, that ISTs are 

relative and can only be described as inherently safer when compared to a different 

technology, including a description of the hazard or set of hazards being considered, 

their location, and the potentially affected population. . . . This report also noted that 

there is currently no consensus on either a quantification method for IST or a 

scientific assessment method for evaluation of IST options.”67

• “A 2012 National Academy of Sciences report found that while inherently safer 

process assessments can be valuable components of process safety management, 

inherently safer process assessments will not always result in a clear, well-defined, 

and feasible path forward. Although one process alternative may be inherently safer 

with respect to one hazard—toxicity of byproducts, for example—the process may 

present other hazards, such an increased risk of fire or more severe environmental 

impacts. Choosing between options for process design involves considering a series 

of tradeoffs . . ..”68

• “An additional complication to assessing safer technologies and alternatives is the 

varying amount and quality of information available regarding their implementation 

by industry. While some facilities have converted to processes considered to be 

inherently safer, other facilities may not have had sufficient information to effectively 

assess the impacts from changing existing processes to ones considered inherently 

safer. The differences that exist among chemical facilities, in terms of chemical 

process, facility layout, and ability to finance implementation, may challenge 

mandatory implementation of safer technologies and alternatives at regulated 

entities.”69

CSAG also agrees with EPA’s assertion that certain elements of alternatives analysis 

exist within the RMP’s current regulatory construct. For example, it is common industry 

practice for sources to conduct hazard analyses that consider alternatives during the project 

review process. That said, it is well known that early adopters of new technologies often suffer 

 66 61 Fed. Reg. at 31,674. 67 79 Fed. Reg. at 44,620 (emphasis added). 68 Id. at 44,621 (emphasis added). 69 Id. (emphasis added). 
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poor performance or outright failure. In many cases it is far safer to make incremental 

improvements to tried-and-true technology.

B. Implementation of a mandatory prescriptive safer technology and 

alternatives analysis requirement would be unworkable.

As noted in the excerpts from EPA’s RFI above, a prescriptive regulatory requirement of 

safer technology and alternatives analysis implemented and enforced by EPA would be 

unworkable and would risk becoming a mere paperwork exercise. Because of the complex 

nature of IST decisions and the variability of these decisions across industries, individual 

facilities, and even individual units, implementation of IST is best left to industry to implement. 

Codification of an IST requirement would lead to prescriptive implementation that is likely to 

result in a bureaucratic bottleneck for the following reasons:

• IST does not exist in absolute terms, but is instead a comparative analysis that 

depends on the selection of and relative importance given to relevant factors. For 

example, a compound that is initially thought to be “safer” may require additional 

processing steps or transportation of larger quantities of chemicals that could 

potentially increase the overall risk of a release. Accordingly, what is “safer” is not a 

straightforward analysis. Instead, the relevant analysis is comparative safety between 

chemical or technology options.

• Further complicating this inquiry is the fact that there is no generally accepted 

methodology for making IST assessments.70

• Even if IST assessments were more straightforward and there was a consensus 

methodology, government regulation of IST assessments would still be unworkable 

because of the site- and operation-specific elements involved. These variables 

include surrounding populations, exposures, hazards, location, and technical and 

economic feasibility, which vary by industry and facility.

• EPA administration of such a requirement would require agency expertise that does 

not currently exist. For example, EPA would need to have expertise in metallurgy to 

evaluate determinations regarding comparative material suitability in terms of risk 

reduction in a specific set of operating conditions. 

For the reasons set forth above, implementation of a regulatory requirement under the 

RMP rule that operators engage in a safer technology and alternatives analysis would create 

significant challenges for both the Agency and the regulated community, without a simultaneous 

improvement in accident prevention and detection.

 70 See id. at 44,620 (citing July 2010 DHS report prepared by the CCPS).
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VIII. Mandatory Automated Detection and Monitoring Presents a Significant Danger of 

False Alarms Without a Corresponding Reduction in Risk.

The RFI requests comment on potentially expanding the requirements for automated 

detection and monitoring systems.71 These potentially expanded requirements include: requiring 

facilities to install monitoring equipment or sensors to detect releases of RMP regulated 

substances, including automated mechanisms to notify, alert and warn local responders and the 

surrounding public of a release or incident, and requirements regarding the frequency of testing 

for monitoring equipment and sensors.72 As an initial matter, EPA itself notes, and CSAG 

concurs, that automatic monitoring systems may not be available for all particular chemical 

hazards and that industry standards may not address their proper use.73 This fact alone presents 

complications for any standard mandating use of these devices. More broadly, mandating 

automated testing and monitoring is contrary to a risk-based management system approach.

A. Automated notification of alarms and sensor activation could inadvertently 

cause false alarms and responses and consequently remove resources from 

where they are needed in the event of an actual emergency.

The potential for false alarms and the resulting resource drain would place a significant 

burden on the operator and responding third parties. Industry experience with these types of 

monitors is that they can be unreliable because they can be heavily influenced by a wide range of 

innocuous, unavoidable variables such as wind speed/direction, humidity, and ambient 

temperature. Adding such complexity to existing systems would result in false positives, and of 

even more concern, false negatives. In addition, such a requirement would complicate operating, 

maintenance, and testing procedures and create a false sense of safety. For example, industry 

experience has revealed significant evidence that the addition of more alarms can actually 

decrease operator response time and thereby effectively increase risk. In fact, companies 

routinely engage in alarm objective analyses to combat this problem. At the same time, no data 

has been provided to show that there would be any corresponding benefit to the implementation 

of automated detection and monitoring systems at the level described that outweighs the 

potentially significant safety, health, and economic costs. 

As the RFI provides, the current RMP rule already “specifically requires a facility’s 

hazard analysis to address engineering and administrative controls applicable to the hazards and 

their interrelationships, such as appropriate application of detection methodologies to provide 

early warning of releases.”74 Mandating the use of specific automatic detection technology 

removes the flexibility afforded to operators in selecting an effective form of detection system 

with no apparent safety benefit where operators are already required to apply “appropriate” 

detection methodologies. 

 71 See Id. at 44,623-24. 72 Id. 73 Id. at 44,623. 74 79 Fed. Reg. at 44,623; see also 40 C.F.R. § 68.67.
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B. Additional alarm and monitoring systems, to the extent necessary, are more 

appropriately addressed through PSM processes including PHAs, or other 

process-specific regulatory standards. Separately addressing these issues 

under the RMP rule may create confusion and conflict.

In many cases, alarm and monitoring systems have already been required by processspecific regulations or through identification of need by facilities as part of PHAs under the PSM 

standard. To the extent that additional alarm and monitoring systems are needed, they will be 

identified and implemented as part of the regular PHA process or as part of process-specific 

regulatory standards. In many cases, such standards comprehensively regulate the conduct of 

monitoring, operation, and maintenance of continuous monitoring systems, mandate a quality 

control program for monitoring, require a performance evaluation for continuous monitoring 

systems, provide the circumstances under which an alternative monitoring method may be used, 

and provide for reduction of monitoring data.75 EPA should not address these issues under the 

RMP rule, as it would likely create confusion and conflict. 

C. The existing MI program adequately addresses inspection, testing, and 

maintenance of these systems.

The RMP’s MI program currently addresses inspection, testing, and maintenance of the 

monitoring systems discussed in the RFI.76 To this end, testing of monitoring equipment itself is 

already effectively and efficiently conducted in conjunction with facility procedures pursuant to 

industry practice and RAGAGEP. For these reasons, CSAG recommends that the RMP 

regulations not be modified to require the use of automated monitoring, and that EPA focus on 

implementation and enforcement of the current RMP requirements which effectively cover the 

issues EPA seeks to address.

IX. Additional Stationary Source Location and Facility Siting Requirements Would 

Limit the Ability of Industry and the Agency to Address This Issue Through 

RAGAGEP and Further Limit Facility Development and Expansion.

The RFI seeks comment regarding whether the Agency should “amend the RMP rule to 

include more specific siting requirements as part of the PHA by, for example, establishing buffer 

or setback zone requirements for new covered stationary sources, or by establishing safety 

criteria for siting of occupancies inside the facility.”77 EPA specifically seeks input on whether 

such requirements would “provide significant incremental protection over current industry 

practice.”78

 75 See, e.g., 40 C.F.R. § 63.8. 76 See, e.g., 40 C.F.R. § 68.73(d)(2) (“Inspection and testing procedures shall follow recognized and generally 

accepted good engineering practices.”); Id. § 68.73(d)(3) (“The frequency of inspections and tests of process 

equipment shall be consistent with applicable manufacturers’ recommendations and good engineering practices, and 

more frequently if determined to be necessary by prior operating experience.”). 

77 79 Fed. Reg. 44,624. 78 Id.
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As noted above, the goal of process safety under EPA’s RMP rule is risk management. 

This means managing an acceptable risk, not eliminating all risk, as evidenced by the Act’s 

statutory directive to minimize the likelihood of the occurrence of a release and to minimize the 

impact of releases that do occur, including response requirements.79 In light of this construct, 

any stationary source location and facility siting requirements promulgated by EPA to implement 

the statute must be designed to balance reduction of risk with consideration of costs and impacts 

to regulated entities. To date, EPA has allowed for siting considerations to be included under 

performance-based elements of the RMP program, including RAGAGEP and the requirement to 

consider facility siting in PHAs. Any modification of the existing construct would be 

inconsistent with a risk-based management system approach.

A. Existing RMP elements and recognized industry guidance are effective at 

regulating on-site facility siting.

With respect to on-site facility siting, 40 C.F.R. Section 68.67(c) provides that as part of a 

PHA, the facility shall address “stationary source siting.” While EPA has not provided guidance 

on meeting this requirement, the RFI correctly notes that it is common practice for operators to 

use industry codes guidance on siting considerations.80 Such guidance includes API 

Recommended Practices 752 and 753, CCPS 2003 Guidelines for Facility Siting and Layout, and 

CCPS 2012 Guidelines for Evaluating Process Plant Buildings for External Explosions and Fires, 

and Toxic Releases. Furthermore, the RFI does not demonstrate that existing facility siting 

requirements under OSHA’s PSM standard have “failed to account for offsite impacts,” as set 

forth in the rule’s regulatory history, particularly given that OSHA’s regulations are focused on 

employees located within the employer’s facility fence line.81 

B. Establishing prescriptive buffer or setback zone requirements for new 

covered stationary sources, or developing safety criteria for siting of 

occupancies inside facilities, would limit new facilities and existing facility 

expansions without providing for appropriate operator analysis under the 

RMP’s performance-oriented approach and RAGAGEP.

Prescriptive location and siting requirements are contrary to the performance-based 

objective of the RMP program. Moreover, such requirements would fail to take into account the 

differences in facilities as required by statute.82 Under current regulations, companies routinely 

analyze risk associated with siting decisions and are held to compliance with RAGAGEP in such 

analyses. Rigid requirements would remove this flexibility and could fail to account for 

differences that could disproportionately impact certain facilities. For example, a uniform 

setback requirement could have an entirely different practical impact on an existing facility in a 

developed area than on a greenfield site. Thus, while a setback may be “reasonable” with respect 

to certain facilities, it may be cost-prohibitive and/or inappropriate with respect to others. 

 79 See 42 U.S.C. § 7412(r)(1). 80 See 79 Fed. Reg. at 44,624. 81 See 29 C.F.R. § 1910.119(e)(3)(v); 57 Fed. Reg. 6356, 6377 (Fed. 24, 1991). 82 See 42 U.S.C. § 7412(r)(7)(B)(i). 
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Moreover, such an approach could have unintended consequences that would actually 

serve to increase risk as a whole. For example, a setback requirement that discourages expansion 

at an existing facility could lead to the construction of a new facility in another area in a more 

distant location. This change in business approach could lead to the transportation of raw 

materials, intermediates, and/or products across increased distances, potentially creating 

substantial additional risk. 

C. Existing RMP elements are effective in driving industry performance, and 

the addition of further specificity may limit the development of best practices 

on this issue.

In addition to the challenges discussed above, prescriptive requirements could have the 

harmful consequence of limiting the development of best practices in the context of source 

location and facility siting decisions. Thus, instead of creating an evergreen approach that 

considers industry developments in technology, best practices, and knowledge over time, 

prescriptive setback or buffer requirements could stunt this development and create a false sense 

of risk reduction. 

X. Although Covered Facilities Should and Do Coordinate With Emergency 

Responders in Appropriate Cases, a New Emergency Response Coordination 

Element is Unnecessary.

As the RFI notes, Subpart E of the RMP regulations covers facility requirements for 

emergency response.83 These requirements differ between sources whose employees will not 

respond to accidental releases, and sources whose employees will respond to accidental 

releases.84 Both types of sources, however, are required to notify and coordinate response 

actions with the local fire department and/or local emergency response agencies, and to be 

included in the community emergency response plan.85

A. An entirely new element is not required to address this issue because the 

existing emergency response coordination requirements are clear and 

enforceable.

The RFI requests comment and information on whether these requirements should be 

revised to clarify what steps RMP facilities should take in order to properly comply because 

“EPA has often found that facilities are either not included in the community emergency plan or 

have not properly coordinated response actions with local authorities.”86 Current EPA 

regulations provide, however, that sources not intending to provide their own response 

capabilities must: 1) be “included in the community emergency response plan developed under 

42 U.S.C. 11003;” 2) for sources with only regulated flammable substances above a TQ 

coordinate response actions with the local fire department; and 3) ensure that “[a]ppropriate 

 83 See 79 Fed. Reg. at 44,625; 40 C.F.R. §§ 68.90, 68.95. 84 Id. 85 See 40 C.F.R. §§ 68.90, 68.95. 86 79 Fed. Reg. at 44,625. 
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mechanisms are in place to notify emergency responders when there is a need for a response.”87 

Accordingly, EPA’s statement that certain facilities are not in community emergency plans or 

have not properly coordinated response actions would appear to be a violation of EPA’s current 

rules and enforceable as such. CSAG believes that promulgation of additional requirements is 

likely to increase the regulatory burden of only those companies that already comply with the 

emergency response requirements. It seems likely that additional regulations would have little, if 

any, effect on companies that already fail to comply with existing regulatory requirements. 

Instead, compliance improvements for these “outlier” companies can best be obtained through 

competent enforcement of the existing rules. Facilities typically coordinate emergency response 

activities with local responders.

CSAG supports facilities’ coordination with local emergency response authorities and 

inclusion in the community emergency plan. Facilities typically do and should coordinate 

emergency response activities with local responders both where the operator’s employees 

respond in coordination with these responders or don’t respond directly to accidental releases. 

CSAG believes, however, that the existing RMP requirements are effective in driving industry 

coordination with local emergency response, and that any gaps should be addressed by proper 

site implementation of the current RMP and competent enforcement. To that end, community 

emergency response plan requirements already are addressed in Chapter 8 of EPA’s General 

Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR Part 68), 

EPA 555-B-04-001, (Mar. 2009).

B. EPA should be cognizant that its emergency response requirements do not 

apply in a vacuum. Any revisions to emergency response requirements 

should be considered in concert with similar requirements in other 

regulatory programs.

In addition to emergency response requirements in the RMP rule, similar requirements 

exist in other regulatory programs, including the Emergency Planning and Community Right to 

Know Act (EPCRA) and OSHA and DHS chemical facility and anti-terrorism standard 

regulations. For example, OSHA rules set forth requirements for emergency action plans, as 

well as requirements for hazardous waste operations and emergency response.88 EPA has 

recognized the desire to avoid inconsistent or duplicative regulatory requirements in 

implementing the RMP program, stating, “EPA believes that owners and operators can indicate 

in their Program and RMP how compliance with other particular regulations and standards 

satisfies Program or RMP elements, thereby, avoid duplication.”89 In fact, commenters to the 

original proposed RMP rule were particularly concerned about duplicative requirements in the 

context of emergency response requirements. EPA explained:

Many of the commenters were particularly concerned with the potential for 

increased duplication of emergency planning requirements at the state and Federal 

 87 40 C.F.R. § 68.90. 88 29 C.F.R. §§ 1910.38; 1910.120. 

89 61 Fed. Reg. at 31,688.
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levels that would require expenditure of additional resources without improving 

source emergency response capabilities. 

* * * 

EPA has decided to adopt the emergency response requirements found in the 

statute, without additional specific planning requirements. This action is 

consistent with the Agency’s effort to develop a single Federal approach for 

emergency response planning. . . . EPA believes that plans developed to comply 

with other EPA contingency planning requirements and the OSHA Hazardous 

Waste and Emergency Operations (HAZWOPER) rule (29 CFR 1910.120) will 

meet requirements for the emergency response program provided that they 

address the elements in section 68.95(a).90

EPA should consider these other requirements and objectives for consistency when evaluating 

the sufficiency of its emergency planning requirements, and should ensure that any changes that 

the Agency considers are consistent with and complementary to these other regulatory programs. 

C. In certain cases, the local outside response agency may end up not being 

available for such activities at all facilities.

In addition to generally seeking information on compliance with emergency response 

program requirements and coordination with local responders, the RFI seeks information on 

potential requirements to conduct emergency drills to test a source’s emergency response 

program or plan.91 CSAG has concerns with such additional prescriptive requirements in the 

context of a performance-based regulation. Rather, CSAG notes that its members conduct 

emergency response drills on a voluntary basis as part of their obligation and desire to comply 

with the objectives of the RMP program. These voluntary actions, however, are best left to 

individual companies to determine how they are implemented. For example, in areas where 

multiple facilities are located, the local response agency may not be available to conduct 

expanded activities such as drills and site visits for all facilities within the area, as has been 

suggested as possible additional emergency response requirements.92 

Instead, current industry practice is to coordinate with local responders on a broader 

basis. Through this approach, companies are able to train and drill with local responders across a 

broader geographic area, thereby easing the burden on the response agency covering the 

immediate area, as well as providing opportunities for sharing information and best practices. A 

prescriptive requirement for emergency response drills would strain the resources of the local 

response agency while putting facilities at compliance risk for issues outside of their control. 

 90 61 Fed. Reg. at 31,697-98.

91 79 Fed. Reg. at 44,622.

92 Id.
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XI. The Current Industry Practice With Respect to Incident Investigation Adequately 

Addresses the Goals of the Clean Air Act Without Additional Prescriptive 

Language.

EPA has requested comment on the Agency’s consideration of “whether broadening the 

incident investigation and accident history requirements to include clear requirements to 

investigate near misses and determine root causes of accidents, near misses, and process upsets 

would promote increased safety.”93 Additionally, EPA seeks “information on the 

appropriateness of requiring root cause investigations of incidents, process upsets and nearmisses, and of establishing specific time frames for incident investigations to be completed.”94 

A. The RMP program purposely requires investigations for only a subset of

incidents.

Current EPA RMP regulations require that owners or operators “investigate each incident 

which resulted in, or could reasonably have resulted in a catastrophic release.”95 In addition, 

OSHA’s PSM standard requires incident investigations for “each incident which resulted in, or 

could reasonably have resulted in a catastrophic release of a highly hazardous chemical in the 

workplace.”96 Notably this divide in requirements reflects the distinctions in regulatory focus 

between the RMP and the PSM programs. Namely, the RMP program focuses on risk mitigation 

to the general public, while the PSM standard focuses on minimization of risks to employees in 

the workplace. EPA clearly recognized this distinction and the relative nature of incident 

investigation under the RMP program when it finalized the RMP regulation:

EPA has modified the OSHA definition of catastrophic release, which serves as 

the trigger for an incident investigation, to include events ‘‘that present imminent 

and substantial endangerment to public health and the environment.’’ As a result, 

this rule requires investigation of accidental releases that pose a risk to the public 

or the environment, whereas the OSHA rule does not. EPA recognizes that 

catastrophic accidental releases primarily affect the workplace and that this 

change will have little effect on incident investigation programs already 

established. However, EPA needs to ensure that deviations that could have had 

only an offsite impact are also addressed.97

Despite this limitation, as a practical matter PSM and RMP regulations maintain 

substantial overlap in applicability (e.g., RMP Program 3 is required for facilities triggering PSM 

requirements). Accordingly, incident investigations are already required in a much wider range 

of situations than would be apparent based solely on the text of the RMP rule. Broad coverage 

under the PSM standard and the distinction in regulatory scope weighs against the promulgation 

of additional prescriptive requirements for incident investigations in the RMP rule.

 93 Id. at 44,626-27. 

94 Id. at 44,627.

95 40 C.F.R. §§ 68.60; 68.81. 96 29 C.F.R. § 1910.119(m). 97 61 Fed. Reg. at 31,673 (emphasis added). 
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B. Current industry best practices further weigh against the addition of new 

requirements.

Current industry best practice already ensures that the Clean Air Act’s goal of preventing 

and detecting accidental releases is met without the need for regulatory change. First, current 

industry practice is to investigate all incidents and any near miss that could have resulted in a 

catastrophic release. For example, even where a specific failure of engineering or administrative 

controls does not result in an accidental loss of containment, facilities typically will conduct an 

investigation of the near miss in order to prevent any recurrence. Second, current industry 

practice is to use a recognized and accepted methodology to conduct incident investigations (e.g., 

root cause, TapRoot).

While these methodologies may vary from facility to facility as well as based on the 

severity or complexity of an event, companies use engineering judgment to select an appropriate 

and effective incident investigation methodology. For example, the root cause analysis approach 

that is common in industry is driven by best practice and does not need further regulatory 

modification. Finally, under the current industry approach, all action items are tracked to 

completion, meaning that setting specific, prescriptive time frames for investigations will not aid 

in the prevention of accidental releases. A need for prescriptive incident investigation 

requirements has not been demonstrated and such requirements would only hinder industry 

flexibility in applying incident investigation techniques that are appropriate on a case-specific 

basis.

In light of the incident investigation requirements under the OSHA PSM standard and 

current industry best practices, additional prescriptive requirements would not advance the goals 

of the Clean Air Act and would likely discourage industry judgment and best practice in crafting 

incident investigation techniques that are most effective in individual cases. Because facilities 

and incidents differ in complexity, a one-size-fits-all approach to incident investigation is 

unsuitable. 

In addition, CSAG believes that requiring closure of incident investigations and action 

items on a mandatory timeline is unworkable and counterproductive. For example, establishing 

a prescriptive time frame for both high- and low-risk action items or high- and low-capital items 

will serve to strain facility resources and thereby undermine the operator’s ability to perform 

effective risk management. Moreover, many actions items have to be coordinated with 

turnaround schedules and/or organizational or procedural changes. Rushing the process would 

lead to poor outcomes and unintended consequences.

XII. Proposing Expanded Public Disclosure Requirements Would Be Inappropriate 

Because They Would Not Result in Greater Accident Prevention As Pertinent 

Information Is Already Available.

EPA requests comment on the potential expansion of public disclosure requirements 

under the RMP on the theory that it would promote regulatory compliance and improve 
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community understanding of chemical risks.98 By way of example, the Agency describes a 

process by which operators might post on a company website “unrestricted (i.e., non-off-site 

consequence analysis) RMP information, such as the facility’s RMP executive summary, 

emergency contact information, identity of the LEPC, or links to the local emergency response 

plan and/or the facility’s most recent EPCRA Tier II report.”99

A. Much information is already publicly available online, particularly with

respect to major incidents and enforcement.

Expanded public disclosure requirements do not result in greater accident prevention. 

Although EPA notes that the RMP rule was published before many of today’s informationsharing technologies were invented, these innovations have resulted in most or much of the 

information identified for potential required public disclosure being available through online 

sources, such as EPA’s website, the OSHA enforcement database, and the Safety Data Sheet 

(SDS) database. This is particularly true with respect to data relating to accidental releases and 

related enforcement. 

B. Public availability of information would not further increase the risk 

management goals of preventing and detecting accidental releases.

CSAG is unaware of any data or factual basis for the position that adding new obligations 

to public disclosure requirements would materially improve safety performance or the RMP’s 

statutory goals of accident prevention and detection. The current disclosure requirements have 

aided the RMP rule’s improvement of safety performance standards while not being so overly 

broad as to threaten the disclosure of particularly sensitive information or present unduly 

burdensome obligations on operators.

C. Increasing public availability could provide a roadmap for would-be 

terrorists through dissemination of sensitive security information, creating a 

potential threat to the Nation's energy supply.

Congress has recognized the need to limit information associated with the RMP Program

when competing security interests exist. For example, EPA initially designed an electronic RMP 

form for publication on the Internet to allow for public access.100 “However, the Federal Bureau 

of Investigation and other representatives of the law enforcement and intelligence communities 

raised concerns that releasing the OCA portions of RMPs via the Internet would enable 

individuals anywhere in the world anonymously to search electronically for industrial facilities in 

the U.S. to target for purposes of causing an intentional industrial chemical release.”101 In 

response to these concerns, on August 5, 1999, the Chemical Safety Information, Site Security 

and Fuels Regulatory Relief Act (CSISSFRRA) was enacted. CSISSFRRA revised Clean Air 

 98 See 79 Fed. Reg. 44,628. 99 Id. 100 65 Fed. Reg. 48,108 (Aug. 4, 2000). 101 Id. at 48,109.
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Act Section 112(r) to include new provisions that restrict public access to off-site consequence 

analysis information in RMPs in light of national security concerns.102 

Similarly, much of the information which might potentially be subject to expanded public 

disclosure obligations consists of sensitive security information. Federal law prohibits the 

disclosure of “information obtained or developed in ensuring security,” if disclosing the 

information would “(A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret 

or privileged or confidential commercial or financial information; or (C) be detrimental to 

transportation safety.”103 Multiple agencies and stakeholders retain jurisdiction over security 

issues associated with information contained in operators’ RMPs, including the Transportation 

Security Administration, the Department of Justice, the Department of Homeland Security, the 

Federal Bureau of Investigation, the U.S. Coast Guard, and state governments. The unilateral 

requirement to widely disclose such information under the RMP rule presents obvious terrorismrelated risks, including the potential to make information public regarding significant process 

vulnerabilities by which the nation’s energy supply could be disrupted.

XIII. Use of Acute Exposure Guideline Levels (AEGLs) for Threshold Quantity / 

Endpoints Calculations Would Not Further the Goals of the Risk Management 

Program.

EPA requests comment on the use of AEGL toxicity values to calculate TQs, including 

whether the RMP would be made more protective by revising the rule to incorporate AEGL-1 or 

AEGL-2 as the basis for TQs and toxic endpoints.104 The Agency additionally seeks input 

regarding potential economic impact and effect on small entities based on these changes.105

A. The Clean Air Act does not require use of AEGLs in establishing TQs for the 

RMP Program.

Section 112(r)(5) of the Clean Air Act provides that EPA “shall establish by rule, a 

threshold quantity for the substance, taking into account the toxicity, reactivity, volatility, 

dispersibility, combustibility, or flammability of the substance and the amount of the substance 

which, as a result of an accidental release, is known to cause or may reasonably be anticipated to 

cause death, injury, or serious adverse effects to human health.”106 EPA implemented this 

requirement when it promulgated its listing rule in 1994.107 That rule appropriately relied upon 

Immediately Dangerous to Life and Health (IDLH) values developed by the National Institute of 

Occupational Safety and Health to establish the best estimates of TQs for listed substances in 

accordance with the statutory mandate.108

 102 Id. 103 49 U.S.C. § 40119(b)(1); 49 C.F.R § 15.5(a); 49 C.F.R. § 1520.5(a). 104 79 Fed. Reg. 44,628-31. 105 Id. at 44,631. 106 42 U.S.C. § 7412(r)(5). 107 59 Fed. Reg. 4478 (Jan. 31, 1994). 108 Id. at 4486.
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While the RFI is correct that AEGLs provide additional information regarding the 

impacts of exposures of chemicals to populations, the regulatory landscape is vastly different 

than it was during the initial listing rulemaking. EPA now has nearly 20 years of data generated 

through operation of the RMP program that can be used to check the appropriateness of the 

initial TQ values for compliance with Clean Air Act Section 112(r)(5). EPA has noted that 

importance of accident history, stating in the RMP rule preamble, “the unique circumstances 

surrounding past accidents can provide a reality check on the theoretical modeling and worst 

case scenario claims . . ..”109 Only if EPA demonstrates through a review of this data that the 

existing TQs are inadequate for one or more chemicals, does it make any sense to look to 

alternative exposure values, such as AEGLs, to revise TQs for those individual chemicals. 

CSAG believes that a wholesale revision of TQs without such an analysis would unnecessarily 

expand the cost and scope of the RMP program without the expectation of an accordant benefit. 

B. The existing TQ and endpoint calculations are effective in driving industry 

performance. EPA should not change these long-standing requirements 

without a showing that they are inadequate.

Existing RMP TQ and endpoint calculations are effective in driving industry 

performance, and should be supported by proper site implementation and agency guidance. 

CSAG is not aware of information supporting the position that use of AEGL levels would more 

significantly focus operators on prevention and detection of accidental releases than the current 

TQ calculations.

XIV. There Is No Reasonable Basis to Conclude That Basing Program 3 Applicability On 

Risk Management Program Accident History Data Would Do Anything to Promote 

the Clean Air Act Goal of Accident Prevention.

EPA requests comment on the appropriateness of “reevaluating the [North American 

Industry Classification System (NAICS)] industry sectors originally identified to determine 

[RMP] Program 3 applicability based on the collected RMP data.”110

A. Any revision to the RMP Program 3 applicability provisions must be based 

on data that shows the current requirements are inadequate and that the 

proposed changes would remedy the inadequacy.

As an initial matter, CSAG believes that modification to long-standing applicability 

provisions for the RMP program should occur only if the current provisions are the cause of 

accidental releases that otherwise would be prevented by revisions to the applicability 

provisions. The RFI appears to suggest that because new information may be available, it should 

necessarily be incorporated into the applicability regulations. To the extent that is the RFI’s 

premise, it is flawed. When EPA promulgated the RMP rule, it recognized that it did not have 

all of the information needed to match SIC codes with every facility that should be covered 

under the rule. For that reason, EPA decided to add coverage under the PSM standard as a 

 109 61 Fed. Reg. at 31,675. 110 79 Fed. Reg. at 44,631. 
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separate criterion for RMP Program 3 applicability.111 This additional criterion makes sense 

because it helps to ensure that facilities that should be covered under RMP Program 3 are 

included irrespective of industrial classification code.

B. Any revision to NAICS codes should be substantiated by a rational 

methodology, valid data, and reasonable assumptions. 

A review of data contained in the RMP database reveals significant concerns regarding 

the reliability, accuracy, and comprehensiveness of the information on which a proposal to 

modify the RMP rule might be based and, consequently, the need for additional information. For 

example, the availability of statistically reliable data appears to vary significantly by EPA 

Region. Furthermore, EPA would need to address shortcomings in the underlying assumptions 

relating to selection of NAICS processing codes, as well as ambiguity in facility size and 

chemical reporting, which would weigh on the decision to cover a particular type of facility 

under RMP. For example, EPA will need to consider the extent to which facilities in its list of 

ten NAICS codes are already subject to RMP and/or PSM program requirements. To the extent 

that facilities in newly identified NAICS codes are already subject to PSM requirements, and 

accordingly RMP Program 3 requirements, the inclusion of additional NAICS codes would not 

have any meaningful effect. In addition, EPA has not provided sufficient information about how 

it considered the frequency or severity of events to select NAICS codes for requesting 

information regarding potential addition to the list. Any such analysis needs to factor in several 

variables including the number of facilities in the sector, the severity of the releases in terms of 

off-site impacts, and the frequency of significantly-severe releases. For example, some NAICS 

codes may include a number of facilities that are one or more orders of magnitude greater than 

another. It is not evident, however, how EPA’s identification of NAICS codes takes such a 

factor into account. 

Sufficient data would need to be presented to support the suggestion that consideration of 

ten NAICS codes is an appropriate methodology for determining Program 3 applicability (and as 

yet, it has not been). CSAG suggests that to the extent EPA seeks to pursue this approach, it 

should develop reasoned analysis as to what is the appropriate consideration given to NAICS 

data in determining RMP applicability, based on reliable underlying information.

C. EPA should ensure consistency with OSHA PSM requirements in 

considering changes to applicability requirements.

An additional issue that must be addressed in any change to the NAICS code applicability 

provisions is consistency with PSM applicability. To date, OSHA has not indicated that it is 

considering a similar modification to the PSM standard’s applicability provisions. As discussed 

previously, it is imperative that EPA’s RMP rule be consistent with OSHA’s PSM standard as 

required under Section 112(r) of the Clean Air Act. As a result, applicability of the two 

programs should parallel one another in order to create certainty for the regulated community 

 111 61 Fed. Reg. at 31,676.
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and to the extent they do not, there must be a reasoned explanation for the distinction based on 

consideration of congressional intent for consistency between the programs.

XV. EPA Should Not Propose to Adopt the Safety Case Regime Because it Would Create 

Significant Financial Burdens for Facilities Without Any Simultaneous 

Improvement in Accident Prevention.

EPA requests comment on whether the agency, together with OSHA, should consider 

taking steps to replace the current RMP regulation and PSM standard with the “safety case” 

regulatory model utilized in the United Kingdom and elsewhere.112 In the alternative, EPA 

requests comment on whether these agencies could implement selected aspects of the safety case 

approach within the current regulatory framework.113

As a starting point, CSAG members and other Section 112(r) and PSM-regulated entities 

have invested tremendous resources in compliance with these regulatory programs. Replacing 

these programs with an entirely new regulatory regime would need to be supported by 

information that shows the “safety case” is consistent with the statute. It is plain from the 

statutory provisions in Section 112(r)(7)(B)(ii)(I)-(iii) that Congress was not contemplating the 

“safety case” as the framework for the RMP regulations. Implementing the safety case is 

effectively counter to the provisions that Congress explicitly adopted, indicating that regardless 

of the relative merits of adopting it, to do so requires statutory amendment. Where the language 

of the statute is clear, EPA must follow its provisions. Adopting the safety case would be a 

wrong interpretative turn that the Agency should not take.114

Moreover, information would need to be provided to demonstrate that a factual basis that 

the safety case is as or more effective than the framework that Congress set forth in Section 

112(r) as a legal matter and as a policy matter that it is more effective in reducing the frequency 

or severity of process safety incidents, including the RMP standard.115 It is worth noting, and 

EPA would need to address, that even CSB Draft Regulatory Report No. 2012-03-I-CA, which 

the RFI identifies as supporting adoption of the safety case regime, recognizes that “there have 

been few objective studies conducted on the impact of the safety case regulatory approach on 

safety performance.”116 It is also important to recognize that the justification offered by the CSB 

in support of the safety case is limited almost entirely to the context of offshore operations. 

In addition, the safety case has not found meaningful support among other government 

actors, which makes questionable any adoption by EPA in the face of plain congressionally 

established program elements in Section 112(r). For example, the National Institute of 

Occupational Safety and Health, (NIOSH), an agency whose purpose is the prevention of 

 112 See 79 Fed. Reg. at 44,632. 113 Id. 114 See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014). 115 Even if the safety case is at least as effective, any implementation would need to occur under Section 112(l) of 

the statute since the core federal program does not contemplate the safety case.

116 See CSB, Draft Regulatory Report, Chevron Richmond Refinery Pipe Rupture and Fire, Report No. 2012-03-ICA, at 108 (Dec. 2013) (CSB Report).
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workplace illness and injuries, affirmatively withdrew its support for the safety case in 

June 2014.117 Similarly, a May 2014 report to the President from by the Chemical Facility 

Safety and Security Working Group notes that, “overwhelmingly, nearly all comments received 

regarding the adoption of the safety case regulatory model were negative[.]”118

Academic examination of the safety case has offered valuable insight into the mixed 

results of this regulatory approach. Massachusetts Institute of Technology Professor Nancy 

Leveson has compiled historical analysis of the safety case regime, concluding that a 

fundamental flaw with the safety case is the program’s failure to address worst-case analysis.119 

Based on Leveson’s review, operator analysis under the safety case “is often limited to what is 

likely or expected, and doesn’t include what could be catastrophic,” thereby in practice ignoring 

the possibility of low probability/high consequence events based on incorrect assumptions about 

how the system will operate.120 According to Leveson, “[e]ffective safety analysis requires 

considering worst cases.”121

As Leveson’s research makes clear, the weight of the available evidence indicates that the 

safety case does not offer superior protection against accidental releases. In fact, the poor 

implementation of safety case rules has been faulted in accident reports in the United 

Kingdom.122 Leveson cites the United Kingdom’s Nimrod Review, an independent investigation 

into a 2006 accident involving the Royal Air Force “Nimrod” maritime reconnaissance aircraft 

which resulted in 14 fatalities.123 The Nimrod Review exposed significant failings in the safety 

case regime and concluded that the safety case has “led to a culture of ‘paper safety’ at the 

expense of real safety . . . [and] does not represent value for money.”124 Importantly, the Nimrod 

Review notes that “[m]any of these criticisms of safety cases are not new,” and that while 

“[s]afety cases were intended to be an aid to thinking about risk,” they have “become an end in 

themselves.”125

In addition to the flawed aspects of the safety case identified above, the adoption of such 

a fundamentally distinct regulatory regime would result in significant uncertainty in the 

regulatory environment as owners, operators, employees, and regulators undertake the process of 

implementing and adapting to a new or partially-new regulatory approach. Further, the costs of 

 117 See Comments of NIOSH on OSHA’s Process Safety Management and Prevention of Major Chemical 

Accidents; Request for Information, (June 6, 2014), Docket No. OSHA-2013-0020-0105. 118 See Chemical Facility Safety and Security Working Group, Executive Order 13650, Actions to Improve Chemical 

Facility Safety and Security – A Shared Commitment, Report for the President, at 85 (May 2014).

119 Nancy Leveson, The Use of Safety Cases in Certification and Regulation, J. SYS. SAFETY, (Nov./Dec. 2011) 

available at http://www.system-safety.org/ejss/past/novdec2011ejss/spotlight1_p1.php (last visited Oct. 29, 2014). 120 Id. 121 Id. 122 Id. 123 Id. 124 See Charles Haddon-Cave, The Nimrod Review, An independent review into the broader issues surrounding the 

loss of the RAF Nimrod MR2 Aircraft XV230 in Afghanistan in 2006, HC 1025, London: The Stationery Office 

Limited, at 533 (Oct. 28, 2009) available at

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229037/1025.pdf. 125 Id.
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such a transition, and the potential for diminished safety performance during this transition, 

would be significant as resources are marshalled to understand and implement entirely new 

requirements. Absent a clear benefit in safety performance from implementing the safety case 

regime, these risks are unacceptable.

Any proposal to implement or incorporate the safety case framework will necessarily 

introduce potentially unmanageable new costs into process safety regulation. As the CSB 

acknowledges, the successful implementation of the safety case regime requires an “independent, 

well-funded, well-staffed, technically competent regulator” and “[a] compensation system to 

ensure the safety case regulator has the ability to attract and retain a sufficient number of 

employees with the necessary skills and experience to ensue regulator technical competency.”126 

Accordingly, any state or federal agency tasked with implementing the safety case would bear 

tremendous costs in upgrading its workforce and infrastructure to effectively implement this 

novel and unproven regime. Further, the cost borne by industry, including a vast number of 

small businesses, would be no less. Indeed, it is an open question whether many owners or 

operators would be able to bear the significant financial burdens of the wholesale 

implementation of an unfamiliar and untested regulatory scheme which demands a tremendous 

allocation of new resources.

XVI. Conclusion

CSAG appreciates the opportunity to offer the foregoing information and looks forward 

to discussing these issues with EPA and OSHA as the implementation of the Executive Order 

proceeds. Please contact Shannon S. Broome (shannon.broome@kattenlaw.com), Chuck Knauss 

(chuck.knauss@kattenlaw.com), or Matt Paulson (matt.paulson@kattenlaw.com) with any 

questions regarding these comments. 

 126 CSB Report at 91.