United Steelworkers Comments to

Docket ID Number EPA-HQ-OEM-2014-0328

Accidental Release Prevention Requirements: Risk Management Programs Under the 

Clean Air Act, Section 112(r)(7); Rule Modernization Under Executive Order 13650; 

Request for Information

October 29, 2014

The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and 

Service Workers International Union (USW) represents approximately 30,000 workers in the 

petroleum and chemical industry and hundreds of thousands of men and women whose 

workplaces use and store large quantities of industrial chemicals. 

Our members are well aware of the hazards and the potential for widespread damage to critical 

infrastructure and the communities where they work and live. USW members are the highlyskilled and highly-trained workers who operate and maintain oil and chemical facilities. They 

would be hurt first and worst when employers and regulations do not do enough to prevent 

catastrophic releases and explosions. It is for this reason that our union strongly supports 

President Obama’s Executive Order 13650 on Improving Chemical Facility Safety and Security.

USW believes that strong government standards are necessary to protect against catastrophic 

incidents. Updates and additions to the agencies’ standards should not rely on voluntary 

recommendations for industry. Our members’ experience with voluntary initiatives is that they 

do not work. Too many facilities opt out and leave workers and communities at risk. 

Update the List of Regulated Substances

There are other potentially hazardous substances that are not covered by a current standard that 

could be well served by inclusion into the risk management plan (RMP) process. Some 

explosives, including ammonium nitrate and combustible dusts which are both highly hazardous 

substances and need to be regulated to a higher degree than is currently on the books.

Reactive substances are another hazard that should be covered on the list of chemicals.

Reactive chemicals have been an issue for many years. Labor unions petitioned OSHA in 1995 
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and again in 2003 to take action on these chemicals by closing loopholes in process safety 

management (PSM). The Chemical Safety Board has also recommended that OSHA extend PSM 

coverage and EPA extend RMP coverage to include reactive chemicals. USW agrees with this 

recommendation. 

The agencies should harmonize the lists of chemicals that are covered under each agency’s 

policies. The EPA’s RMP list of Regulated Toxic Substances contains 77 toxic chemicals and 63 

flammable substances. OSHA’s PSM Programs lists 137 chemicals considered Highly 

Hazardous, Toxic or Reactive. Currently, too many dangerous chemicals are not listed and 

therefore are not reportable under RMP. 

An example of one such chemical is 1,2-Butadiene. While its close cousin, 1,3- Butadiene, is 

reportable under EPCRA 313 (TRI) and by definition, under the Process Safety Management 

standard, it is not listed as an RMP chemical.

The threshold quantity for some chemicals should be reviewed to see if they are currently too 

high and that a lower quantity value makes more sense because of the potential for catastrophic 

events from a smaller amount of the substance.

Define and Require Evaluation of Updates to Applicable Recognized and Generally 

Accepted Good Engineering Practices (RAGAGEP)

This continues to be an issue with industry and the regulators; what constitutes RAGAGEP? 

This needs definition so that everyone understands what it means and then it can be a practice 

that may help improve industry. 

A repository of RAGAGEP references should be maintained by the regulator so companies have 

an up to date list. The RMP should be amended to include a clear definition of RAGAGEP; 

engineering, operation, or maintenance activities based on published codes, standards, technical 

reports or recommended practices or similar documents, including, but not limited to published 

consensus standards, codes and guidelines developed by the American Institute of Chemical 

Engineers (AIChE), American National Standards Institute (ANSI), American Petroleum 

Institute (API), American Society of Heating, Refrigeration, and Air Conditioning Engineers 

(ASHRAE), American Society of Mechanical Engineers (ASME), American Society of Testing 

and Materials(ASTM), Center for Chemical Process Safety (CCPS), National Fire Protection 

Association (NFPA), and Instrument Society of America (ISA).

RAGAGEP should specifically identify no grandfathering. If a piece of equipment needs repairs 

or replacement, it must comply with current RAGAGEP, not the RAGAGEP at the time it was 

originally installed. 

Extend Mechanical Integrity Requirements To Cover Any Safety-Critical Equipment

The scope of RMP should be expanded to cover the mechanical integrity of any safety-critical 

element. It currently covers pressure vessels, storage tanks, piping systems (including valves), 
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relief/vent systems and devices, emergency shutdown systems, controls (including monitoring 

devices, sensors, alarms, interlocks) and pumps.

A necessary expansion should include all safety critical equipment such as all components of a 

safety integrated system (SIS) and defined so as to not allow exceptions. This may include what 

are normally considered utilities (steam, water, air, nitrogen lines for example) as these systems 

are required to operate to maintain the stability of the facility. It should also be expanded to 

firefighting water lines and fire suppression equipment, which are currently not covered, along 

with electric sources, lines and backup generators, motor control centers, distributed control 

system ancillary buildings, cables, and control centers. 

This expanded coverage would help ensure that systems designed to protect the workers and 

equipment is in fully operational condition and this in turn protects the communities from 

catastrophic events. 

Require Owners and Operators To Manage Organizational Changes

Organizational changes can have as significant an impact on operational changes as an 

equipment modification, or design change. 

All aspects of an operation should be managed to safeguard against every possible system failure 

that may lead to undesired consequences. Not having enough personnel to adequately operate a 

process is a failure. Not having the correct or necessary personnel involved is a failure.

Just as you do a review for any change not in kind for equipment you should also do a review for 

any changes in personnel. This includes changes in duties or responsibilities as well as changing 

numbers of personnel. 

The employer should be required to develop, implement and maintain written procedures to 

manage organizational changes prior to reducing staffing levels or making other changes that 

could affect safe operation of the process. The areas to which these procedures will apply 

include, but are not limited to, operations, engineering, maintenance, health and safety, and 

emergency response. This requirement will also apply to employers using contractors in 

permanent positions.

 Issues to be addressed include the experience levels of employees involved in the process 

before and after the proposed change, in order to ensure that the change will not 

compromise employee health and safety, the safety of operations and maintenance and 

the effectiveness of emergency operations and response.

 The rationale for the decision to implement or not implement the change; and the actions 

required to make the change. Identify the makeup of the team responsible for assessing 

the proposed change and the factors to be evaluated by the team.

 Prior to conducting the assessment, the employer will ensure that the job function 

descriptions are current and accurate for all positions potentially affected by the change.
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Require Third-Party Compliance Audits 

In principle, we support the consideration by EPA of the use of third party systems to conduct 

RMP audits under the standard. We believe that the following requirements are necessary to

insure safety:

 EPA should require that RMP’s be audited by accredited auditing organizations. Criteria 

for accreditation should be issued by EPA and subject to notice and comment. 

 Auditors should have to apply for accreditation and their applications should be subject to 

notice and comment. 

 When a third party auditor is chosen for a workplace that has an authorized employee 

representative, EPA should require that the auditor be chosen from among accredited 

auditors by mutual agreement between the employer and the employee representative.

 EPA should provide a mechanism for employees and their representatives to review the 

findings and give employees and their representatives the opportunity to raise any 

concerns or questions they may have with the audit. The auditor will be required to 

provide a written response to employee or employee representatives’ questions to audit 

findings (or lack of findings) as a condition of maintaining certification and in certain 

cases to return to a facility to re-examine hazards that employees have alleged were 

overlooked.

 EPA should provide a mechanism for the community to review the findings and ensure 

the community does not have unanswered concerns. Once such mechanism would be to 

require the auditor to provide a written response to community questions to audit findings 

(or lack of findings) as a condition of maintaining certification and in certain cases to 

return to a facility to re-examine hazards presented by the community.

 EPA should prohibit auditors from having other relationships with the same employer. 

For example the employer should be prohibited from hiring auditors who have previously 

been consultants or contractors because they would be in the position of evaluating the 

work they had previously done for the employer. The auditor should be prohibited from 

being a consultant or contractor to the employer after the audit because this could provide 

an incentive to find hazards that the employer would have to pay them to fix.

 Where EPA discovers, by investigating a catastrophic event, or some other means that an 

auditor failed to identify a crucial hazard, the auditor should lose its accreditation until it 

can demonstrate that the problems that led to the failure have been corrected.

Third party audits can give the perspective of an ‘outside view’ but can also turn into a ‘cottage 

industry’ to satisfy a requirement. Care needs to be given to designing the process so that the 

audits do not just serve to fill a requirement but to discover and identify shortcomings that can be 

remedied.

Safer Technology and Alternatives Analysis

The EPA has the ability to enforce inherently safer technology (IST) now under section 119 of 

the Clean Air Act. Require, whenever feasible, the maximum use of inherently safer chemicals, 

technologies and processes. Document how facilities have considered IST, whether or not it has 

been implemented and the reason why or why not. 
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The use of IST should be encouraged through economic incentives to companies who look for 

alternatives that reduce the threat of a catastrophic event to the community as well as workers 

and the facility. A repository of potential substitute materials and alternative processes should be 

maintained so companies would have a resource to reference for review of latest technologies. 

The USW supports the chemical security coalition letter sent to EPA in July of 2012 and is 

encouraged by the agencies willingness to take more comment, but frustrated to see this process 

spread over such a long timeframe. 

In its simplest form, IST is the reduction of a potential hazard. It should be at the top of every 

facilities list. Safer alternatives include methods that reduce or eliminate the potential for death, 

injury, or serious adverse effects to human health or the environment of a worst-case release of 

a substance. Methods that achieve this objective may include: alternate substances, 

formulations, and processes; modification of pressures, temperatures, or concentrations; and the 

reduction or elimination of handling of a substance through improvements in inventory control 

or efficiency.

A safer alternatives analysis should require covered facilities to review methods that reduce the 

potential for death, injury, and serious adverse effects to human health and the environment that 

the facility identified in its off-site consequences analysis and that are generally recognized as 

available in the facility’s industry. The analysis should include: the degree to which each 

method could reduce the potential consequences for death, injury, and serious adverse effects to 

human health, infrastructure, and the environment; the technical feasibility, costs (including 

capital and operational costs), avoided costs (including savings and potential liabilities), 

personnel implications, and applicability of implementing each available method; and any other 

information that the owner or operator of the covered chemical facility considered in conducting 

the assessment.

There are many examples of successes and current regulations having some impact but a 

requirement needs to be established mandating facilities to establish a process to conduct an 

analysis of safer alternatives as a routine component of their Risk Management Plans. EPA 

should view the RMP program as a source of information on solutions that are developed 

through the responsibilities of covered facilities to demonstrate knowledge of their processes and 

common alternatives. EPA should not await or rely on any external expert compilation of 

alternatives; rather, the RMP program should generate the solutions. 

Incident Investigation and Accident History Requirements

Incident investigations can be a valuable tool for learning from lagging indicators. The goal 

should be identifying and correcting all root causes so that the event or a similar one cannot be 

repeated. Sharing the results can give a leading tool to others to identify contributing factors at 

their facility and correct them before a catastrophic event takes place. 

To that end, the employer will investigate all incidents that resulted in, or could reasonably have 

resulted in, a major incident. The employer will develop, implement and maintain written 

procedures for promptly investigating and reporting any incident that results in, or could 
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reasonably have resulted in, a major incident. The employer will initiate the incident 

investigation as promptly as possible, but no later than 48 hours following an incident. 

Written procedures will provide for effectively conducting a root cause analysis that will provide 

information sufficient for the employer to reduce the risk of a recurrence or similar incidents.

An incident investigation team will be established and will, at a minimum, consist of a person 

with expertise in the process involved; a person with expertise in the employer's root cause 

analysis method; and a person with expertise in overseeing the investigation and analysis. The 

incident investigation team will also include employee and employee representatives. If the 

incident involved the work of a contractor, an employee of that contractor will also be included 

on the investigation team.

As a result of the investigation, recommended corrective actions will be implemented by the

employer to reduce the risk of a recurrence or similar incident. Recommended corrective actions

scheduled for implementation will be documented with completion dates. Recommended

corrective actions not implemented or scheduled, will be documented as to why they were not

implemented or what was done to give the same level of protection. Any recommendation that is

not able to be implemented promptly following the investigation will have documented interim

measures to assure safe operation until the fixes can be made.

The report will be provided to and reviewed with all operating, maintenance, and other 

personnel, including employees of contractors where applicable, whose work assignments are 

within the facility where the incident occurred and whose job tasks are relevant to the incident 

findings. The report will also be provided to employee representatives.

Incident investigation reports will be retained for the life of the process unit. 

Sharing incident investigation results with the communities where they are located would be 

beneficial to both parties. It would help the community better understand not only the hazards 

associated with the process but also the challenges. It would also allow the operator to better 

understand the safety concerns of the community. 

Public Disclosure of Information To Promote Regulatory Compliance and Improve 

Community Understanding of Chemical Risks

Making unrestricted RMP information publicly available would increase compliance, as it 

enables communities to hold facilities accountable. The public can more readily gauge whether 

facilities are complying with regulatory requirements and whether safety measures are being 

implemented. It also gives facilities greater incentive to strengthen safety measures and to 

comply with regulations.

Communities also need information on safer alternatives that can reduce or remove chemical 

hazards altogether. EPA should require facilities that deregister from the RMP program to 

provide basic information about how they were able to do so. While some facilities may have 

closed or moved, others may have changed chemicals or processes. Vital information on safer 

alternatives should not be corralled in individual company websites; it should be in organized 

and searchable public databases.
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Measurements and Metrics 

There is an old saying, “you don’t fix what you don’t measure”. Process safety metrics or 

indicators will only diminish the number of tragic incidents if they are properly selected, used to 

stimulate improvement and result in safer refineries and chemical plants with fewer incidents and 

catastrophes. Properly chosen metrics would not only include items that command our attention, 

but those that are the most foretelling.

The refining and related chemical industries have not yet achieved a level of process safety 

commensurate with the risks posed by their facilities. Neither have they achieved the 

improvements intended by OSHA and EPA decades ago. These failures continue to put workers, 

the communities surrounding their workplaces and the environment at unacceptable risk.

They criteria for publically reporting must low enough that the public receives relative 

information on incidents and near misses which have an impact on the community. If events do 

not meet the reporting criteria, they will not be investigated or even identified as an event. 

Opportunities to learn will be lost. Opportunities to identify other potential areas of concern will 

not occur. Unnecessary risks will remain. The next time this type of event is investigated may

be after a catastrophic failure or loss of life. The opportunity to learn from a leading indicator 

will have turned into a tragic lesson learned from a lagging indicator.

Transparency is an issue. Serious events taking place in the nation’s petrochemical industry are 

not being reported to key stakeholders as identified by a CSB recommendation (“create 

performance indicators for process safety in the refinery and petrochemical industries”, 

[CSB2005-04-I-TX-R6b]) following the BP Texas City refinery explosion and fire. It is an 

unspoken guideline that what happens inside the fence at a refinery stays inside the fence. It 

isn’t publically reported. 

There are numerous fires and spills each year that are not reported because no one outside the 

facility is aware of them. When the public can see flames climbing higher than the distillation 

column that is burning, it is difficult to say nothing happened. When a fire is on a seal or pump 

or an electrical fire, no one except those inside the facility know anything about it. 

There is a need of external pressures to move the refining industry to improve unsafe conditions. 

One of the elements that will contribute to improving safety in these facilities is public pressure. 

We have seen it with other industries; airline and nuclear for example. Public pressure drove 

those two industries to be under the auspices of a separate government regulating authority. The 

public demanded that those industries be operated in a safe manner, one that protected the public. 

And it came from events that raised the public’s awareness and they demanded something be 

done. 

Neighbors have to be able to identify the facility next to them so they can determine if it is 

working to improve or not. Blinded metrics data that do not identify a facility do not enable 

stakeholders to recognize facilities with issues that may concern them. A broad, unidentified 

look at the industry will not be a driver for improvement. Metrics data need to be publicly 

reported in a format that is easily accessible and identifiable. If the public was aware of the 

number and amount of hazardous chemicals released as well as the number of equipment failures 
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and fires that had the potential to get much worse and affect the public, they would put pressure 

on the industry to do a better job with process safety. 

Without public scrutiny we would not have seen the recent change in offshore regulations. 

Public pressure is a direct cause of the restructuring of government oversight of that industry. 

The refining industry needs that same kind of pressure.

The “Safety Case” Regulatory Model

The safety case needs a well-qualified, fully funded regulator to review and evaluate the 

company written plans. We do not have the regulatory work force required to operate in this 

manner, nor is that a reality in the near future. It also requires a flexible and fast acting 

regulatory process that can make necessary rule changes in an expeditious manner. That has not 

been the case in the U.S. and it does not appear that it will change anytime soon. 

There are elements of the safety case that could be written into existing U.S. regulations to 

bolster the safety in our highly hazardous facilities. The revised PSM rules being developed in 

California have some safety case like elements included in the draft. Whether these rule changes 

are made or not, the number of compliance offers must be increased and their qualifications in 

PSM must be improved. 

Training and Engagement of Workers and Communities Must be Strengthened

The involvement of facility employees is critical to ensuring that stakeholders with much at risk

and deep experience and knowledge are fully engaged in planning and implementation to protect 

our nation's infrastructure. Workers and their representatives need to have the right to participate 

in inspections and alternatives assessments. Both workers and communities must have adequate 

education and training to participate in and review alternatives assessments, and participate in 

inspections and decisions.

All too often, workers are at jeopardy for voicing an opinion that differs from their supervisors’ 

opinion. Therefore EPA must adopt strong protections for whistleblowers, including increasing 

the time limit for reporting a complaint. 

The employees that participate in Process Hazard Analyses (PHA) and on inherently safer 

technology teams must have specific knowledge and experience in the process. 

We recognize the importance of the workforce to identify chemical hazards and understand safe 

work practices. However, specific training on process safety and risk management are an 

essential underpinning of the larger system of safety, particularly methods that are truly 

preventative. EPA must ensure worker competencies to understand all component elements of 

the RMP, including the advanced capacity to competently participate in process hazard 

assessments and safer alternatives assessments. 

Future training priorities must include building worker and community competencies to 

participate in safer alternatives assessment and the implementations of safer alternatives. This 

review must include front line workers and their representatives. 
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As a model, here is language from the draft of the California revised PSM standard:

(1) Initial training. Each employee involved in the operation or maintaining of a process, and 

each employee prior to working in a newly assigned process, shall be trained in an 

overview of the process and in the operating procedures, as specified in subsection (f). 

The training shall include material on the specific safety and health hazards, procedures, 

and safe practices applicable to the employee's job tasks.

(2) Refresher and supplemental training. At least every three years, and more often if 

necessary, refresher and supplemental training shall be provided to each operating or 

maintenance employee and other employees in order to ensure safe operation of the 

facility. The employer, in consultation with employees involved in operation or 

maintenance of a process, shall determine the appropriate frequency and content of 

refresher training.

(3) Training certification. The employer shall ensure that each employee involved in the 

operation or maintenance of a process has received, understood and successfully 

completed training as specified by this subsection. The employer, after the initial or 

refresher training, shall prepare a certification record containing the identity of the 

employee, the date(s) of training, the means used to verify that the employee understood 

the training, and the signature(s) of the person administering the training.

(4) The employer shall establish and implement employee testing procedures to ensure 

competency in job skill levels and work practices that protect employee safety and 

health.

Respectfully submitted

Kim Nibarger,

USW H&S Specialist