October 29, 2014

Environmental Protection Agency

OSWER Docket

EPA Docket Center

Mail Code 2822-1T 

1200 Pennsylvania Avenue NW

Washington, DC 20460

Via Electronic Submission: http://regulations.gov

Re: Docket ID No. EPA-HQ-OEM-2014-0328, Accidental Release Prevention 

Requirements: Risk Management Programs Under the Clean Air Act

The National Association of Chemical Distributors (NACD) submits the following comments in 

response to the request for information published in the July 31, 2014, Federal Register issue

regarding Docket Number EPA-HQ-OEM-2014-0328, Accidental Release Prevention 

Requirements: Risk Management Programs Under the Clean Air Act.

About NACD

The National Association of Chemical Distributors is an international association of nearly 440 

chemical distributors and supply-chain partners. NACD’s membership comprises businesses 

representing in total more than 85% of the chemical distribution capacity in the nation and 

generating 90% of the industry’s gross revenue. NACD members, operating in all 50 states 

through nearly 1,800 facilities, are responsible for more than 155,000 direct and indirect jobs. 

NACD members are predominantly small regional businesses, many of which are multigenerational and family owned. The typical chemical distributor has 26 employees and operates 

under an extremely low margin.

Chemical distributors provide a unique and integral role in the supply chain. Manufacturers 

increasingly rely on chemical distributors to market and sell their products in a variety of 

packaging sizes to an incredibly varied customer base. Every seven seconds, an NACD member 

company is moving chemical products to and from their facility. This constant movement of 

those products results in chemicals being frequently added to and removed from inventory. 

Unlike the regular changes in inventory, NACD members’ safety processes remain the same. 

NACD Members’ Commitment to Safety

A member-voted condition of membership in NACD is a signed commitment to NACD 

Responsible Distribution®. Under this robust program, each member must follow 13 Codes of 

Management Practice in order to protect the environment, promote health and safety of 

employees and community members, enhance product stewardship, and ensure the security of its 

facilities and products. Under each Code, member companies have an active program designed 

to improve safety continuously and reduce incidents. Each member must develop, implement, 
and undergo periodic third-party verification of policies and procedures in each of the 13 areas, 

which include Risk Management, Handling & Storage, Emergency Response & Public 

Preparedness, Community Outreach, and Product Stewardship. 

Owners and managers of NACD member companies have a personal stake in the safety and 

security of their employees, companies, and communities. They demonstrate this through the 

commitment to Responsible Distribution, relationships with employees, involvement in local 

communities, including participation in Local Emergency Planning Committees, and careful 

compliance with numerous environmental, transportation, safety, and security regulations at the 

federal, state, and local levels. 

Harmonization of PSM and RMP Elements

The Executive Order was specifically created to encourage agency coordination and improve the 

exchange and sharing of information. In the EO Working Group Action Plan, EPA and OSHA 

agreed to harmonize their regulations. 

EPA must ensure coordination and consistency in the comparable issues that cross over both 

OSHA Process Safety Management (PSM) and EPA Risk Management Plan Program (RMP) to 

minimize regulatory burdens and avoid conflicting requirements for regulated facilities. EPA has 

committed, in the Working Group Action Plan, to release a proposal for the revised RMP in one 

year and finalize the rule within two years. OSHA is on a seven-year rulemaking timeline while 

EPA is on a two-year track. Potential updates to the RMP program must be evaluated in parallel 

with the PSM program and, therefore, EPA should not fast-track the rulemaking process but 

rather allow for adequate time for the regulated community to consider carefully changes to these 

programs and provide input.

Moreover, according the EO Action Plan, OSHA is commencing the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) process within one year. The SBREFA process is normally 

a four-month process. By the time OSHA completes the SBREFA process, EPA will be well on 

its way to releasing a proposal for a revised RMP. This furthers the argument that coordination 

between OSHA and EPA will be challenging and highly unlikely and is concerning, as there is a 

broad level of consistency between the dozen overlapping elements of RMP and PSM.

Updating the List of Regulated Substances

EPA requests input on updating the current list of regulated substances. Section 112(r)(3) of the 

1990 CAAA authorized EPA to develop a list of substances that are known to cause or may be 

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

environment in the case of an accidental release. Rather than proposing categories of substances 

such as “toxic or flammable,” “high and/or low explosives,” “reactive substances,” and other 

broad, undefined categories of substances, EPA must assess the risks of specific individual 

chemicals and their probability to cause harm in a release. Any additions of individual chemicals 

should be proposed in a formal rulemaking and comment process and based on sound science 

and data to support their addition to the list. 
The lists of hazardous chemicals subject to the EPA RMP regulations are comprehensive and 

were carefully considered when developed. The agency should use caution in adding additional 

chemicals to these lists. EPA should only amend these lists when substantial data has been 

developed on a scientific basis to warrant the inclusion of the chemicals. EPA should publish its 

research and data-gathering methodology for identifying, defining, and quantifying the hazards 

associated with a chemical to demonstrate that any proposed changes to the RMP program are 

justified and would enhance safety. As part of this data analysis, the agencies must also 

demonstrate how inclusion would protect the community and environment under RMP. Any 

additions to the list must be subject to the formal rulemaking process with adequate opportunity 

for data submission and comment. Once adopted after a complete rulemaking procedure, EPA 

should be sure to add any new covered chemicals to Consolidated List of Lists. 

EPA should not be permitted to add chemicals to the RMP lists without going through a formal 

rulemaking process that includes detailed hazard and cost-benefit analyses and the opportunity 

for comment for each chemical compound. Following these normal procedures provides more 

certainty and stability to facilities and regulators alike, which enhances compliance.

Expanding RMP Coverage and Requirements for Reactivity Hazards

EPA requests information on how the RMP standard could be amended to address chemical 

reactivity hazards. NACD recommends that EPA refrain from attempting to define or 

specifically cover chemical reactivity hazards through the RMP standard. Chemical reactivity 

involves too many factors and is too complex to be effectively defined. In fact, chemicals 

themselves are reactive by nature; they are meant to react. Due to the intrinsic reactivity and 

extrinsic circumstances, such as operating conditions, lack of agitation, and containment, a list of 

regulated substances does not solve the problem of chemical accidents. Updating the list may 

result in unintended consequences where facilities do not report information because a substance 

is explicitly omitted from the list. No organization, such as the National Fire Protection 

Association (NFPA), nor state law that addresses reactive hazards, such as the New Jersey Toxic 

Catastrophe Prevention Act (NJ TCPA), has been able to reach a consensus on how to define or 

regulate this area consistently, demonstrating the complexity of the issue. 

The NJ TCPA program has been costly for NACD members operating in the state. Calculations 

based on reactivity are difficult to perform. Reactivity testing is typically more expensive than 

preparing a risk management plan. At the core of many chemical distributors’ products are 

diluted chemicals. The NJ program does not provide for variance in concentration. For instance, 

many dilute chemicals pose no safety harm because they are no longer reactive when their

concentration is under 50%. Because there is no concentration range considered, many

“reactive” chemicals regulated by the NJ TCPA do not pose a hazard and therefore benefits to 

improving safety are outweighed by the burdens and costs of the requirements.

RMP already covers several highly reactive substances, Program 3 requires facilities report 

reactive hazards under process safety information, and RMP-regulated facilities evaluate 

reactivity during Process Hazard Analyses. There are also other regulations that address reactive 

hazards. For example, the U.S. Department of Transportation has product segregation rules to 
prevent reactive incidents in transit. NACD members have reported that EPA has inconsistently 

defined “reactive” within General Duty Clause inspections at their facilities.

Because chemical reactive hazards are so difficult to define and regulate without creating an 

excessively complex system, NACD recommends that EPA and other agencies partner with 

process safety experts and industry organizations to provide more education and resources on 

reactive hazards. 

Revising the RMP Program to Require Additional Risk Management Program Elements

EPA is requesting comments on additional management system elements that could be added to 

the RMP program such as elements from the CCPS Risk Based Process Safety program. While 

it may be worthwhile for EPA to consider the latest management system elements, it will be 

important to complete a thorough analysis on how these changes would impact the regulated 

community and if the elements would be appropriate for the broad range of regulated facilities. 

RMP already includes significant management system elements. In addition, one of the 

objectives of Executive Order 13650 is to reduce government stove-piping. Accordingly, any 

management system changes must be globally considered in relation to all agency requirements 

to ensure clarity and consistency as well as provide that each regulatory agency primarily 

addresses its core scope of authority. Again, any proposed changes would need to go through the 

formal rulemaking process. 

Amending RMP to Require Evaluation of RAGAGEP Updates

EPA requests comments on a proposal to require facility operators to evaluate and document 

updates to recognized and generally accepted good engineering practices (RAGAGEP). NACD 

opposes this proposal because it is unnecessary, would be too costly and time consuming, and 

would provide limited or no benefit relative to the burdens. OSHA regulations currently ensure 

that employers examine all pertinent safety updates applicable to RAGAGEP. Under the current 

regulations, an essential practice for facility operators is to review the most updated industry 

standards and practices as part of the PSM process hazard analysis. Employers should not be 

forced to re-document their safety evaluations every time an update to a standard is published. 

This would be unworkable, considering the fact that codes and standards are continually updated. 

If this requirement were to be implemented, staff would constantly need to monitor code 

changes, obtain the new codes from the various code organizations (frequently at a substantial 

cost), re-write the company’s procedures to incorporate the changes, implement the updates, and 

train all impacted employees on the changes. This would be a never-ending cycle that would be 

particularly burdensome for small businesses.

Expanding Mechanical Integrity Requirements to Cover Any Safety-Critical Equipment

EPA requests comments on expanding the mechanical-integrity requirements of the RMP

program to cover all equipment the employer identifies as critical in addition to the equipment 

specifically listed in the standard. NACD believes the expansion to cover all safety critical 

process equipment is unnecessary. The elements currently listed in the standard cover the vast 

majority of safety-critical equipment. In addition, employers already have the flexibility to 
expand beyond this list where appropriate. The current provision strikes a good balance between 

clarity and flexibility and need not be amended.

Revising the RMP Program to Require Third-Party Compliance Audits

EPA requests comments on whether the RMP program should be amended to require third-party 

audits and if the frequency requirements for audits should be increased from the current three 

years. NACD believes both of these changes are unnecessary.

NACD strongly supports audits; however, facilities should continue to have the flexibility to 

select the audit methods most appropriate for their unique operations. Of upmost importance is 

that the auditor has a thorough knowledge of a facility’s processes. This flexibility and 

understanding of the facility’s processes are the keys to improving safety. Third-party auditors 

cannot be inherently familiar with all processes and systems at a facility without substantial 

retraining and, therefore, cannot provide a benefit to the facility. There is also a concern of 

conflict of interests rising in situations where an auditor will identify an issue and suggest a 

solution in order to profit from a problem that was initially questionable. 

EPA should continue to provide facility operators the ability to select the audit method most 

suited to their individual operations, whether internal or using third-party firms. A mandate to 

use third-party auditors would impose substantial costs on companies. In addition, internal 

company audits provide many benefits that would be lost with third-party audits. For example, 

some companies have hired personnel to perform internal auditing functions, including RMP

audits. Adopting a regulatory mandate to perform third-party audits could cost jobs such as this 

and further reduce mutual safety goals whereby these employees also supplement other safety 

and environmental auditing. Some companies may not be able to support both in-house internal 

auditing and contract auditing.

In addition, the case has not been made to justify increasing the frequency of required audits 

from the current three years and how requiring third-party audits ensures process safety by 

reaching outlier facilities. The lack of qualified auditors, the potential for conflicts of interest, 

and the substantial costs on companies do not justify requiring overly burdensome third-party 

audits as part of the RMP program. 

Effects of OSHA PSM Coverage on RMP Applicability

EPA seeks information on the impact of OSHA’s retail facility exemption on the RMP program 

and whether the RMP program tiering should be changed. The agency estimates there are fewer

than 400 RMP facilities currently reporting Program 2 processes as non-agricultural bulk 

chemical distributors, with many of those being NACD members. Chemical distributors are 

unique in their operations. NACD members provide local bulk storage and large packaging 

capabilities while others resell chemical ingredients in small quantities such as less than a 

truckload, containers and drums, and very small units, or a combination of those functions. 

Many NACD members are exempt from OSHA’s PSM standard under the current retail 

exemption and therefore subject to Program 2 processes under RMP. If OSHA were to restrict 

eligibility for its retail exemption, this would have a significant impact on NACD members. EPA 
estimates that half of the approximate 400 non-agricultural bulk chemical distributors would be 

ineligible for the PSM retail facility exemption and therefore subject to RMP Program 3. 

OSHA has proposed to limit the exemption for only facilities under NAICS codes 44 and 45 and 

has proposed to restrict eligibility for the exemption to facilities selling small containers,

packages, or allotments. Clarification of “small” is needed for NACD facilities to determine 

whether their facility would be exempt as a retail facility. While the proposed rule is still 

pending, there is a lot of uncertainty and clarification is needed for NACD members to evaluate 

whether the retail facility exemption would apply to them. Until there is a final rule, any theory 

on the effects of OSHA PSM coverage on RMP applicability is speculative, and the specific 

impact to NACD members cannot be determined. 

NACD members would need adequate time to evaluate the final rule and potentially have to 

report under the PSM standard. Not only would these NACD members then need to develop 

compliance expertise for a program unfamiliar to their current regulatory compliance practices,

but they would also have to report under a more rigorous program under RMP. Once there is a 

final determination of applicability under the PSM standards, NACD members can begin to 

evaluate additional requirements of the RMP program. EPA should give facilities, especially 

small businesses impacted by OSHA’s retail facility exemption modifications, additional time to 

comply with Program 3 requirements and an opportunity to provide input on any proposed 

changes to the RMP program. Because of the significant impact to chemical distributors in 

particular, EPA should wait until OSHA issues a final determination on the retail facility 

exemption before making any changes to the RMP program tiering.

Additionally, if EPA were to change the program tiering, irrespective of the retail facility 

exemption, Program 3 should not apply to facilities where the only RMP process is storage for 

regulated substances. The more rigorous requirements of Program 3 are not applicable to storage 

operations. Merely storing regulated chemicals for transport to retail customers should be 

considered a Program 2 process. As chemical distributors, this process would apply to many 

NACD facilities and would clarify any uncertainties potential changes to the PSM retail facility 

exemption would create. Additionally, since most NACD members are small businesses, 

modifying Program 2 applicability to chemical distributors would reduce the costs and burdens 

of compliance for small businesses. On the contrary, eliminating Program 2, or requiring all 

PSM-regulated facilities to comply with Program 3, would negatively impact small businesses 

and disproportionately impact chemical distributors. 

NACD recommends EPA modify the eligibility requirements for Program 2 to cover nonagricultural bulk chemical distributors or, in the alternative, extend the compliance period for 

Program 3 processes in the event that current exempt facilities under the PSM retail facility 

exemption are no longer eligible. 

Safer Technology and Alternatives Analysis

EPA is considering proposing an amendment to the RMP regulations that requires a safer 

alternatives options analysis. The RFI gives the impression of evidently proposing a rule 
mandating IST analysis without consideration on which method. NACD strongly opposes the 

concept of regulatory “inherently safer technology” mandates. In their request for information, 

EPA even acknowledges the challenges to mandatory IST implementation. 

Mandating IST, a vague and undefined term, is impractical and would significantly increase the 

potential for unintended consequences. 

Specifically:

 No external entity can properly gauge which chemicals should be used in products in real 

time. Supply-chain disruptions require manufacturers to make minor, immediate product 

adjustments. An outside agency cannot properly address the broad range of factors such 

as risk-shifting, technical efficacy, cost, and product quality that a manufacturer must 

evaluate. 

 Requiring manufacturers to hold smaller quantities of hazardous materials on site would 

exhaust their limited inventories faster. Distributors would need to deliver hazardous 

chemicals to these facilities more frequently, thereby significantly increasing the number 

of miles driven to deliver the same amount of product and ultimately increasing and 

shifting risk to the public roadways. In addition, there is a higher risk of incident during 

product loading and unloading. More shipments would increase the number of times 

chemicals must be loaded and unloaded, thereby increasing risk. Fixed-site risks are

more manageable than those with a transportation component.

 Many incidents are the result of failure to comply with existing regulations. Adding a 

new, sweeping requirement such as IST would penalize companies that already comply. 

A better approach is more consistent enforcement of existing regulations and compliance 

assistance.

In the 1996 RMP rulemaking, EPA came to some of these same conclusions about IST. In the 

Federal Register notice of the final RMP rule, the EPA stated it did not believe a requirement 

that owners or operators conduct searches or analyses of alternative process technologies for new 

or existing processes will produce significant additional benefits. NACD agrees with the EPA 

that the application of good Process Hazard Analysis techniques often reveals opportunities for 

continuous improvement of existing processes and operations without a separate analysis of 

alternatives and that IST analysis will not produce additional benefits beyond those accruing to 

the rule already.

Emergency Drills to Test a Source’s Emergency Response Program or Plan

EPA is considering requiring RMP-regulated facilities to perform exercises or drills as an 

element of the emergency response program. The requirement for coordination with local 

emergency responders is already adequately addressed in the multiple interconnected standards 

as well as OSHA’s 29 CFR 1910.38. This particular OSHA regulation provides the minimum 

requirements for an emergency action plan, including that a facility must have procedures in 

place for reporting a fire or other emergency information to local responders. An additional 
reporting requirement will not provide an improved level of workplace safety, and companies 

already provide information to various regulatory agencies and organizations as part of other 

regulatory requirements including RMP, EPA’s SARA reporting requirements, and DHS’s 

Chemical Facility Anti-Terrorism Standards program. This is an area where there should be 

better coordination and harmonization between the EO Working Group agencies and 

development and strengthening of uniform programs like EPA’s E-plan across all states to 

provide responders with real time and better information.

Emergency Response and Public Preparedness is NACD’s Responsible Distribution Code VII of 

management practices and includes testing emergency response plans. NACD members can 

conform to this part of the code by full scale drills, internal tabletop exercises, and working with 

local responders. NACD recommends EPA develop best practices and guidance for conducting 

exercises and drills to reach out to those facilities that are not part of a program like Responsible 

Distribution rather than requiring facilities to report what they already are doing.

Automated Detection and Monitoring for Releases of Regulated Substances

EPA is considering expanding requirements for automated detection and monitoring systems that 

would supplement existing requirements. Most chemical distributors handle multiple products 

and use distribution processes such as storing, repacking, diluting, and shipping, so upgrading 

equipment would not be feasible, particularly for small businesses. Additionally, due to the very 

nature of storage and distribution processes, chemical compounds come and go, making it hard 

to identify a single piece of equipment capable of monitoring for and detecting a release 

automatically. Detection equipment should be considered using a risk-based approach. The 

level of potential benefit, the probability of a release, and the risk of harm should be considered. 

Facilities integrate automated detection as part of off-site consequences and potential hazard 

analysis. NACD recommends EPA consider monitoring as a mitigating factor to reduce hazard 

levels.

Additional Stationary Source Location Requirements

EPA is considering changes to include more specific siting requirements such as establishing 

buffer or setback zones. Establishing buffer or setback zones is under the jurisdiction of local 

zoning laws and therefore setting federal requirements would overstep state and local zoning 

processes. The EPA should not set these requirements for existing facilities.

Compliance with Emergency Response Program Requirements in Coordination with Local 

Responders

EPA is requesting information on expanding emergency response requirements. NACD agrees 

that someone has to respond if local responders are unable to; however, many of the issues 

discussed in the RFI are related to CERCLA, EPCRA and SARA authority and not the RMP 

program. Facilities provide information on their chemicals to various agencies and response 

organizations as required by other regulations such as EPA’s Emergency Planning and 

Community Right-to-Know Act (EPCRA) Tier II reporting and DHS’s Chemical Facility AntiTerrorism System (CFATS). EPCRA was intended to improve the availability of chemical 

information to members of the local community and aid emergency first responders. 
Unfortunately, it appears the entities and processes it established a quarter-century ago have 

withered away in a great many states and locales. While many active and well-functioning local 

emergency planning committees (LEPCs) exist today, too many are poorly resourced, or are not 

well-managed. Charging EPA to revitalize EPCRA presents the most immediate opportunity to 

improve access to chemical emergency information needed by local emergency responders.

Rather than adding another requirement to the RMP program, EPA should work with other 

government agencies and state/local organizations to recognize measures already in place and to 

access information. Any additional requirements to provide emergency response planning 

information should be harmonized between regulatory agencies. Adding a coordination 

requirement to the RMP program would simply add another layer of confusion to the already 

cumbersome list of federal requirements that the EO was created to address.

In addition, NACD has concerns about federal mandates for industry to coordinate with local 

authorities. NACD strongly supports the concept of coordination with these local officials in 

principle. In fact, under Responsible Distribution, NACD members are required to coordinate 

with local emergency responders by making them aware of the potential hazards of the chemicals 

they have on site, conducting plant tours, and coordinating emergency response plans. Our 

concern about regulatory mandates is that many local emergency response providers have limited 

resources and are not always available to devote the manpower and resources to these activities. 

Every community is different; and while this may be achievable in some areas, others simply do 

not have the resources. Industry cannot compel the local authorities to be involved in the 

process, so the regulatory burden should not be placed on industry. NACD is concerned about 

the prospect of members being placed in the position of being in violation of the regulations 

because the local response authorities simply do not have adequate time and resources to devote 

to these activities in some communities. Many NACD member companies contract directly with 

competent for-profit emergency response contractors in their local communities because of the 

lack of resources in the public sector.

In previous meetings, NACD has provided EPA with Code VII of Responsible Distribution, 

Emergency Response and Public Preparedness and has engaged in discussions with EPA and 

other industry associations on how industry can work with EPA to revitalize LEPCs, identify best 

practices, and leverage industry programs. NACD is committed to continuing to work with EPA 

to ensure emergency responders have the information they need to protect communities where 

chemicals are stored.

Incident Investigation and Accident History Requirements

EPA is considering broadening the incident investigation and accident history requirements to 

direct facilities to report near-misses in addition to reporting their five-year history of accidents 

from covered processes resulting in death, injury, or significant property damage. EPA is also 

asking whether companies should be required to conduct a root cause investigation, complete 

their investigations by certain deadlines, and share information with the public about incidents 

and near-misses. Through participation in Responsible Distribution, NACD members investigate 

accidents; however, the term “near-miss incident” is difficult to define across the board at a 
national level because what might be considered a near-miss at one location may not be a nearmiss at another location due to the differing operations. While EPA does not release RMP data to 

the public, RMP information may be accessed via Federal Reading Rooms open to the public 

that are in every state. In addition, the community can access off-site consequence analysis 

information for all of the facilities that are located in or potentially impact the jurisdiction of the 

LEPC where a person lives or works. NACD does not support the proposal to share near-misses 

and, further, NACD is not aware of any EPA-provided examples of facility incidents where the 

current incident investigation procedures were either inadequate or contributed to a chemical 

safety accident.

Worst Case Release Scenario Quantity Requirements for Processes Involving Numerous Small 

Vessels Stored Together

EPA seeks information on whether to revise the RMP program to account for processes involving 

numerous small vessels stored together. NACD disagrees that revising the worst case scenario 

quantity to consider the sum of all containers would better represent the true worst case scenario 

for storage processes. Grouping packages will increase the impact radius in a worst case 

scenario, so instead of evaluating the largest tote of chemical material, a facility would have to 

determine the worst case scenario for all of the totes. A facility could have 20 totes of chemical 

product and the impact radius would be as large as the five boroughs of New York City, even 

when the release of an individual container may have an impact radius limited to one to two

miles. Even the NJ TCPA program requires facilities to consider only the largest container or 

pipeline. In a cumulative scenario, the likelihood of all small containers failing at the same time 

is not a realistic release scenario. The regulations have already considered a release that may 

cause other components of a system to fail, and the registrant must take this into consideration 

during the PHA process. 

The Health and Safety Executive (HSE) of the United Kingdom established a set of failure rates 

that have been in use for several years. In their report1the failure rate for ISO tankers is 4x10-6 

per vessel year2, meaning in a given year, the likelihood of one ISO tanker to fail is four in a 

million. The probabilities increase exponentially when calculating the potential of two vessels to 

fail at the same time, resulting in a one in 62.5 billion probability of both ISO tankers failing at 

the same time. Revising the worst case scenario to take into account all small vessels stored 

together would not represent a true worst case scenario; rather an analysis of the data 

demonstrates this to be a non-credible threat. 

Additionally, modifying the worst case scenario analysis as proposed would cost Program 3 

facilities with quality systems already in place approximately $35,000-$40,000 per facility. This 

estimate is based on NACD facilities in New Jersey with only one process, storing about half a 

dozen chemicals. Adding another process or more regulated chemicals would increase that 

 

1 Health and Safety Executive of the United Kingdom, “Failure Rate and Event Data for use 

within Risk Assessments,” June 28, 2012, http://www.hse.gov.uk/landuseplanning/failurerates.pdf.

2

Id. At 60.
estimated cost to perform a worst case analysis. For NACD members, many of which are small 

businesses, the cost is prohibitively high especially considering the analysis would conclude that 

the risk is negligible. 

TQs and Off-site Consequence Analysis Endpoints for Regulated Substances Based on AEGL

Toxicity Values

EPA is considering the use of Acute Exposure Guideline Levels (AEGLs) to recalculate RMP 

reporting thresholds and toxic endpoints for off-site consequence analysis. NACD disagrees 

with EPA’s assertion that using this method better reflects the potential for adverse effects of an 

accidental release upon a community. The current TQs are based on the Immediately Dangerous 

to Life and Health (IDLH) value developed by the National Institute of Occupational Safety and 

Health (NIOSH). IDLH guidelines are acute exposure guidelines. Since the establishment of the 

IDLH values in the 1970s, NIOSH has continued to review available scientific data to improve 

the protocol used to derive acute exposure guidelines, in addition to the chemical-specific IDLH 

values. The IDLH methodology reflects the modern principles and understanding in the 

fields of risk assessment, toxicology, and occupational health and provides the scientific 

rationale for the derivation of IDLH values based on contemporary risk assessment 

practices. Accordingly, IDLH values are based on health effects considerations determined 

through a critical assessment of the toxicology and human health effects data. This approach 

ensures the IDLH values reflect an airborne concentration of a substance that represents a highrisk situation that may endanger workers’ lives or health. AEGLs on the other hand are intended 

to be guideline levels used during rare events or single once-in-a-lifetime exposures to airborne 

concentrations of acutely toxic, high-priority chemicals.3

Revising the RMP rule to incorporate AEGL values as the basis for TQs and toxic endpoints is 

not a reasonable approach due to the use of animal studies, the limited amount of human studies, 

and the lack of a systematic review of the current AEGLs. Using the IDHL values which are 

based on health effect considerations determined through a critical assessment of the toxicology 

and human health effects data makes the RMP rule more protective of human health and the 

environment, especially considering the use of off-site consequence analysis used in community 

response planning.

Replacing RMP with the “Safety Case” Regulatory Model

EPA’s request for information considers a “safety case” regulatory model to replace or 

supplement existing RMP regulations. NACD strongly believes a “safety case” model would be 

counterproductive to the Executive Order’s objective of improving chemical facility safety and 

security. Facilities, large and small alike, need regulatory clarity and consistency in order to 

comply with the rules effectively and to train new and current employees on these requirements. 

A “safety case” model is the opposite of clarity and consistency and would create confusion and 

uncertainty for both facilities and regulators. For such a system to work, all facility operators 

 

3 Department of Health and Human Services, Current Intelligence Bulletin 66, “Derivation of 

Immediately Dangerous to Life or Health (IDLH) Values,” November 2013, 

http://www.cdc.gov/niosh/docs/2014-100/pdfs/2014-100.pdf
and all regulators would need extensive knowledge about, and would need constantly to keep 

current on, the latest safety measures and trends. This would be a monumental task, particularly 

for regulators, as best practices vary depending on the segment of the extremely diverse 

industries that handle and store chemicals. 

In addition, such a “safety case” system would be far too subjective. Without clear standards, 

individual inspectors would be the ones to evaluate measures that are and are not acceptable to 

achieve the desired level of safety. Facility operators would have little knowledge of what 

constitutes compliance and would be subject to a particular inspector’s opinion of what is 

acceptable. Such a vague system would be unworkable across the board. 

In addition, regulations and enforcement must be consistent. A major concern about measures 

such as IST, general duty clauses, and “safety case” regulatory regimes is the fact that they are 

subject to the interpretation of a particular inspector. NACD members want to abide by the 

regulations, but this becomes difficult if satisfactory compliance depends on a facility’s location 

in a particular region or who the individual inspector is. 

Streamlining RMP Requirements

EPA invites comment on any potential revisions to the RMP rule that would make it easier for 

regulated facilities to comply with its requirements. The most important element of effective 

regulation is compliance assistance and outreach. In creating NACD’s 15-page regulatory

checklist and meeting with agencies, NACD staff discovered that most agencies, including the 

EPA, have excellent materials available on the web, including guidance documents, fact sheets, 

webinars, FAQs, and more. The problem is that it can be difficult to find these materials unless 

one is specifically looking for them. NACD encourages the agency to commit to industry 

outreach to make the regulated community aware of these tools. Trade associations like NACD 

can help with these efforts in reaching our members, particularly small companies who do not 

have dedicated regulatory staff to read the Federal Register and other Washington publications 

every day. We have mechanisms in place, including meetings, newsletters, and webinars, to get 

the word out. 

The RMP program is one of the most comprehensive, complex, and robust regulations with 

which chemical facilities must comply. RMP has been impressively effective in preventing 

chemical incidents for those facilities in compliance. Catastrophic incidents have occurred at 

facilities that were in violation of the program — outliers. Because of RMP’s complexity, 

compliance can be challenging, particularly for small businesses. Rather than making the RMP 

program even more complex, NACD strongly recommends EPA focus its efforts on outreach, 

compliance assistance, and effective enforcement of the current standard. This would be the 

most effective way to bring facilities into compliance and prevent future accidents. 

If EPA chooses to pursue regulatory changes to the RMP program, NACD urges the agency to 

conduct full rulemaking processes, including Advanced Notices of Proposed Rulemaking, for 

each initiative. This will provide opportunity for careful consideration of hazard and cost-benefit 

analysis and adequate data and comment submission from interested parties. In addition, 
because changes to the RMP regulations would have a substantial impact on small businesses, 

EPA would need to follow the Small Business Regulatory Enforcement Fairness Act and convene 

a Small Business Advocacy Review Panel to assess thoroughly the proposal’s impact on small 

business.

Conclusion

NACD appreciates the opportunity to submit comments on these important issues. NACD 

strongly believes regulations that are clear, consistent and have adequate compliance assistance 

resources are most effective in preventing major chemical accidents. 

The RMP is a comprehensive and robust regulatory program that has been proven effective in 

preventing chemical accidents. In all discussions of process safety, including the Executive 

Order 13650, Improving Chemical Facility Safety and Security (EO), OSHA’s RFI for the PSM 

program, and the EPA RMP RFI, the examples of facility safety concerns articulated by those 

speaking to this issue have actually been examples of facilities not complying with existing 

regulations and not a lack or gap in the existing requirements. Developing additional regulations 

fails to address the problem of outlier operations.

In order to prevent chemical accidents, EPA needs to focus its efforts on better coordination with 

other federal and state agencies, more RMP compliance assistance and training, effective 

enforcement, and targeting outliers rather than adding unnecessary complexities to the 

regulation. 

Thank you for the opportunity to provide these comments. If you have questions or require 

additional information, please do not hesitate to contact me.

Sincerely,

Jennifer C. Gibson

Vice President, Regulatory Affairs

National Association of Chemical Distributors

1560 Wilson Blvd, Suite 1100

Arlington, VA 22209