VIA EDOCKET

October 29, 2014

OSWER Docket

EPA Docket Center

Mailcode 2822 – 1T

Environmental Protection Agency 

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Attention: Docket ID No. EPA–HQ–OEM-2014-0328

RE: Request for Information Regarding Accidental Release Prevention Requirements:

Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

Dear Document Control Officer:

The Society of Chemical Manufacturers and Affiliates (SOCMA) is pleased to offer the 

following comments concerning the Agency’s recently proposed request for information (RFI)

on potential revisions to its Risk Management Program regulations and related programs.

1

SOCMA is the leading trade association representing the specialty batch and custom chemical 

manufacturing industry. SOCMA’s more than 200 member companies make the products and 

refine the raw materials that make our standard of living possible. From pharmaceuticals to 

cosmetics, soaps to plastics and all manner of industrial and construction products, SOCMA 

members make materials that save lives, make our food supply safe and abundant, and enable the 

manufacture of literally thousands of other products. Over 70% of SOCMA’s active members 

are small businesses. 

ChemStewards®is SOCMA’s flagship environmental, health, safety and security (EHS&S) 

continuous performance improvement program. It was created to meet the unique needs of the 

batch, custom, and specialty chemical industry, and reflects the industry’s commitment to 

reducing the environmental footprint left by members’ facilities. As a mandatory requirement 

for SOCMA members engaged in the manufacturing or handling of synthetic and organic 

chemicals, ChemStewards is helping participants reach for superior EHS&S performance.

As an organization representing well over 200 companies that may be directly affected by 

actions resulting from President Obama’s August 1, 2013 Executive Order addressing chemical 

facility safety and security (EO 13650), SOCMA has actively engaged in the processes generated 

by that EO. For example, we met multiple times with the Working Group established by the EO, 

 

1 79 Fed. Reg. 44604 (July 31, 2014).
2

and we submitted comments on the OSHA Process Safety Management (PSM) RFI at the end of 

March. Any regulatory or policy changes emerging from the current notice and any subsequent 

rulemaking steps have the potential to dramatically affect the processes, productivity, and growth 

of many of our member companies. Thus, SOCMA views EPA’s RFI with great interest and 

appreciates the opportunity to address several of the topics and questions raised by EPA.

The following comments begin with SOCMA’s overall concerns and recommendations 

regarding this rulemaking. We then turn to eight of the twelve issues on which EPA, but not 

OSHA, sought comment. Finally, we address the issues on which OSHA also sought comment.

I. Overall Concerns and Recommendations

SOCMA has several overall concerns with how EPA appears to be approaching many of the 

topics in question:

 Most generally, we question why EPA is aggressively pursuing this rulemaking, given 

OSHA’s related activity on PSM and the fact that the Executive Order did not 

specifically direct the Agency to publish an RFI.2 In fact, the degree of overlap and 

occasional conflict between the PSM and RMP RFIs only adds to confusion on these 

matters and decreases regulatory certainty. 

 Given the close relationship between PSM and RMP, EPA writes that it “ha[s] 

coordinated closely” with OSHA, and that the two agencies have sought “to minimize 

regulatory burden and avoid conflicting requirements for regulated facilities.”3 We 

contend that several of the possible actions EPA is considering directly contradict those 

professed goals. EPA has solicited comments on twelve issues in addition to those raised 

by OSHA, and most of the reported accidents discussed in the preamble had no offsite 

consequences. The inevitable implication is that EPA is trying to “one-up” OSHA. EPA

is certainly moving much more quickly than OSHA can.

 EPA has not convincingly demonstrated that anything is wrong with the current RMP 

regulations. EPA has not provided any evidence that current systems, procedures and 

reporting under the regulations are unreliable or are not adequate. The explosion at the 

West Fertilizer plant may illustrate failings in the implementation of the Emergency 

Planning and Community Right-to-Know Act (EPCRA) or with OSHA’s interpretation of 

its explosives and blasting agents standard, but it does not indicate any shortcomings with 

the RMP program.

 EPA’s proposals would exceed its statutory authority in some areas, and would encroach 

on OSHA’s in others.

 Some changes being considered, if proposed and adopted, will likely be very costly and 

drive business offshore. One member writes that training to manage the RMP program 

costs at least $5,000 per employee, and occasional refresher training only increases costs 

further. Such expenses are particularly significant for small and medium-sized 

businesses. With changes to RMP, PSM and CFATS all coming in relatively rapid 

 

2 By contrast, the E.O. did require OSHA to publish an RFI. See E.O. 13650 § 6(e), 78 Fed. Reg. 48032 (Aug. 7, 

2013). 

3

79 Fed. Reg. 44605.
3

succession but at different times, their cumulative impact could be substantial. Facilities 

run the risk of having to change the same process three times, as each of these rules is 

finalized.

 Similarly, SOCMA questions how EPA could find the staff resources to do some of the 

things on which it seeks comment, particularly reviewing safety case submissions.

 The changes discussed in the RFI would also certainly consume company resources 

currently used for voluntary risk reduction efforts.

 EPA’s transparency proposals are excessive, would create unintended consequences, and 

risk disseminating confidential business information.

 “One size does not fit all.” EPA’s proposals do not adequately recognize that different 

facilities confront vastly different circumstances and that the justifications cited for 

making certain changes may be completely inapplicable to many of these facilities. This 

is particularly true of batch vs. continuous process facilities.

 A prescriptive requirement in RMP for having certain metrics could be difficult to 

implement and may or may not add value, as what works well for some processes or 

plants may not work well in others.

SOCMA urges EPA to fundamentally reconsider its RMP rulemaking:

 EPA should focus exclusively on topics within its statutory jurisdiction for which it has 

evidence that the current rules are not operating as intended. Rather than create new 

regulatory obligations, the Agency should consider non-regulatory actions that could 

actually help increase process safety, such as (i) promoting the development of better 

process safety metrics (i.e., leading, rather than lagging, indicators); (ii) facilitating the 

creation of a reactive hazards database; and (iii) issuing guidance.

 As required by Section 112(r)(7)(D), EPA should actively engage with OSHA to 

harmonize their RMP and PSM efforts, so that the RMP rule even more “closely tracks” 

the accident prevention measures contained in the PSM standard and becomes even more 

“closely aligned in content, policy interpretations, Agency guidance and enforcement.”4

The best way for this to occur would be for EPA and OSHA to issue any proposed and 

final rules concurrently. 

II. Specific Issues Not Raised in the OSHA RFI

A. Safer Technology and Alternatives Analysis

The subject of promoting risk reduction through safer technology and alternatives is one which 

SOCMA has commented on at length, most recently in the comments we submitted to OSHA on 

March 315, and which we attach to these comments. As we noted in our March 31 comments, 

“[u]nder ChemStewards, SOCMA member companies regularly consider ways of making 

 

4 Id.

5

SOCMA Comments filed March 31, 2014 re (i) Executive Order 13650, Section 6(a) – Solicitation of Public Input 

on Options for Policy, Regulation, and Standards Modernization (Docket OSHA-2013-0026) and (ii) Process Safety 

Management and Prevention of Major Chemical Accidents; Request for Information, 78 Fed. Reg. 73756 (Dec. 9, 

2013), 79 Fed. Reg. 13006 (Mar. 7, 2014) (Docket OSHA-2013-0020).
4

processes as safe as possible, particularly at the design stage.” But, as we stressed, “while 

inherent safety is a superficially simple concept, it is truthfully very complex and inherently 

unsuited to regulation. Mandatory [inherently safer technology] would wreak economic havoc 

on regulated facilities.” We remain fervently opposed to any imposition of mandatory IST. 

SOCMA previously pointed out that

IST is a process-related engineering concept, not a security one. It is based on the 

premise that, if a particular chemical process hazard can be reduced, the overall risk 

associated with that process will also be reduced. In its simplicity, it is an elegant 

concept, but the reality is almost never that simple. A reduction in hazard will reduce 

overall risk if, and only if, that hazard is not displaced to another time or location, or 

result in the creation of some new hazard. Any IST mandate is bound to create situations 

that will actually increase or transfer overall risks.

We continued, 

Inherent safety is only successful if the sum total of all risks associated with a process life 

cycle is reduced. This is rarely a simple calculation, and to some extent it is an 

irreducibly subjective one (e.g., how does one balance risks of explosion with cancer 

risks, or the welfare of facility workers vs. that of people living along transportation 

routes?). “Simple” reduction in hazard may not necessarily result in a reduction of overall 

risk, and a poorly constructed or incomplete analysis could result in a “safer” alternative 

producing more harm than good. That is why government agencies and experts who 

really understand inherent safety have consistently opposed giving government the power 

to mandate it.6

Furthermore, we noted that

Before agencies could require even consideration of inherent safety, they would need to 

establish (or adopt) methodologies to compare various alternatives from the standpoint of 

inherent safety. While it may be feasible to develop a technical consensus methodology 

for measuring and comparing inherent safety, none exists at present. 

We also pointed out that EPA had previously declined (during the Clinton Administration) to 

require facilities to conduct “technology options analyses” to identify inherently safer 

approaches, even after having been asked to do so. In language repeated in the RFI,7the 

preamble to the 1996 final RMP stated that:

PHA teams regularly suggest viable, effective (and inherently safer) alternatives for risk 

reduction, which may include features such as inventory reduction, material substitution, 

 

6 For example, see the recent testimony of Scott Berger, of AIChE’s Center for Chemical Process Safety, submitted 

to the Senate Environment & Public Works Committee on March 6, 2014, available at 

http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=87b37cc0-ca9a-4510-9cd1-

0866716b9066.

7 See 79 Fed. Reg. 44620 (quoting 61 Fed. Reg. 31674, June 20, 1996).
5

and process control changes. These changes are made as opportunities arise, without 

regulation or adoption of completely new and unproven process technologies . . . . 

EPA does not believe that a requirement that sources conduct searches or analyses of 

alternative processing technologies for new or existing processes will produce additional 

benefits beyond those accruing to the rule already.8 

SOCMA believes these statements are as true today as they were eighteen years ago.

Significantly, to EPA’s credit, the RFI discusses the leading authorities on the subject of inherent 

safety and fairly repeats their explanations of the many difficulties involved with attempting to 

regulate it. The Agency cites the July 2010 Department of Homeland Security report “Definition 

for Inherently Safer Technology in Production, Transportation, Storage, and Use,”

9 which is the 

Federal government’s most definitive statement on the topic of IST. The DHS Report explains

that that what is “inherently safer” for some hazards might simultaneously be inherently less safe 

for others. The Report also notes that “there is currently no consensus on either a quantification 

method for IST or a scientific assessment method for evaluation of IST options.” 10 The RFI 

quotes similarly from the 2012 National Academy of Sciences report on “The Use and Storage of 

Methyl Isocyanate (MIC) at Bayer CropScience,” which concludes that, while inherently safer 

process assessments can be valuable in managing process safety, these assessments “will not 

always result in a clear, well-defined, and feasible path forward.” That report actually found that

“[a]lthough one process alternative may be inherently safer with respect to one hazard...the 

process may present other hazards.”11

The RFI also recognizes that “the varying amount and quality of information available 

regarding” implementation by industry of safer technologies and alternatives complicates the 

assessment of those technologies. Facilities which have not converted to safer processes 

may not have sufficient information available 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.12

EPA appropriately discusses the only state government which has included inherent safety 

requirements in its regulations: the NJ Toxic Catastrophe Prevention Act (TCPA) program. A 

2010 report by the NJDEP indicated that of 85 IST reports, “approximately 48% of facilities 

reported that they had implemented or scheduled to implement IST measures as a result of

conducting the IST review.” What the report does not indicate, however, is how many chemical 

manufacturers moved their operations out of state or overseas due to the IST mandate. 

SOCMA’s New Jersey members, many of whom have extensive experience with TCPA, strongly 

urge EPA not to emulate the New Jersey experience. 

 

8 61 Fed. Reg. 31699 (June 20, 1996)(emphasis added).

9 Available at https://www.aiche.org/sites/default/files/docs/embedded-pdf/ist_final_definition_report.pdf.

10 79 Fed. Reg. 44620.

11 Id. at 44621.

12 Id.
6

Our members report that the TCPA process is only as effective as the qualifications and 

experience of the individuals on both sides of the table. Our members who are subject to the 

New Jersey regulation describe scenarios which feature discussions with state officials only 

about what they read or heard about most recently. In testimony before the House Homeland 

Security Committee, a SOCMA member stated flatly his company’s assessment of the TCPA 

process as “essentially a paperwork exercise to document, in great detail, steps and 

considerations that we take as a normal part of our process.”13

In conclusion, SOCMA believes that EPA got it right in 1996: the process hazard analysis 

requirement of the RMP rule already leads facilities to consider safer alternatives and to 

implement them when it makes sense to do so – and so new regulatory requirements to consider 

inherent safety are not necessary. In its May 2014 Report to the President, the Chemical Facility 

Safety and Security Working Group said it would issue an alert on safer technology and 

alternatives and would work with industries to publicize best practices until May 2015. It also 

said that prior to the end of 2016, it would develop voluntary guidance to make chemical 

operators more aware of safer technology, processes and alternative solutions to reduce the 

overall risk of their facilities.14 SOCMA urges EPA to continue to work with the OSHA and 

DHS to implement these action items. The three agencies should also reach out to the AIChE 

Center for Chemical Process Safety and the Mary Kay O’Connor Process Safety Center, the 

leading industry and academic centers of expertise on process safety.

B. Automated Detection and Monitoring

SOCMA has several serious concerns about potential new or expanded requirements for 

automated detection and monitoring systems. Many of these we have previously expressed in 

our comments on two rules proposed by EPA in 2012: the National Uniform Emission Standards 

for Storage Vessel and Transfer Operations, Equipment Leaks, and Closed Vent Systems and 

Control Devices (the “Uniform Standards” rule), and the NESHAP for Group IV Polymers and 

Resins; Pesticide Active Ingredient Production; and Polyether Polyols Production (the “3 P’s” 

Rule). The proposed Uniform Standards rule included a dramatic expansion of instrumental 

monitoring requirements that our members found to be the most potentially costly feature of the 

new rule and of greatest concern. Among other provisions, the rule included requirements for:

 sensory monitoring;

 Method 21 monitoring of open-ended valves and lines upon installation, annually, and as 

requested;

 monitoring equipment operating less than 300 hours per year; and

 monitoring closed vent systems that are “difficult to inspect” annually.

Additionally, the proposal contained several costly expansions of scope, especially including 

required monitoring for pressure relief devices (PRDs). The 3 P’s rule had similar elements.

 

13 Oral statement of David C. Pulham, Ph.D, Director of Compliance, Siegfried (USA), Inc., on the Chemical 

Facility Anti-Terrorism Act of 2008 (Feb. 26, 2008).

14 Executive Order 13650—Actions to Improve Chemical Facility Safety & Security—A Shared Commitment (May 

2014), at xvii.
7

As we explained in both cases, the proposed new detection and monitoring requirements are 

largely unnecessary for batch operations. They would also impose a significant financial burden 

on SOCMA members – particularly small and medium sized businesses – and cannot be 

uniformly imposed on the widely varying universe of batch and specialty chemical facilities.

1. Automated Detection & Monitoring Is Not Needed Generically for 

Batch Manufacturing

The nature of our industry reveals why we objected so vociferously to required monitoring for 

PRDs. As we wrote previously:

SOCMA’s member companies typically operate much smaller facilities that produce 

high-value products in discrete batches. It is far less likely that pressure relief events at 

such facilities would even occur, that they would not be identified and controlled 

promptly if they did, or that they would, as a result, produce large HAP emissions.15

Automated monitoring and detection technology is generally designed with large continuous 

manufacturing processes in mind. It is far less appropriate for small batch processes, which are 

what SOCMA’s members operate. By the very nature of batch processes, operators frequently 

open them to add or remove materials, and process instrumentation generally provides alerts for 

any significant releases. Any significant release from a pressurized system, for example, would 

cause a drop in pressure that would be immediately detected by pressure monitoring equipment. 

Unlike large continuous systems, small systems cannot leak very much without that loss of 

material impairing the operation or at least being noticed very quickly by the process operator. 

Expensive monitoring and detection technology is not justified or necessary for such systems.

Moreover, automated monitoring is already required by the Leak Detection and Repair (LDAR) 

provisions of multiple MACT and NSPS rules, as well as many Title V permits. Thus, in those 

instances where it makes the most sense to require automated monitoring for particular types of

processes or particular facilities, EPA and states have required it, or have the power to do so. 

Such a reasonably tailored approach increases the likelihood that required monitoring is 

necessary and appropriate, and is preferable to a generic requirement imposed via the RMP rule.

2. Financial Impact – Uniform Standards Case Study

In our 3 P’s comments, we said: “Given that pressure relief events are a less significant 

environmental issue for specialty batch and custom facilities, SOCMA believes that the PRD 

requirements fail from a cost-benefit perspective, as the projected costs are particularly 

alarming.” Using the cost impact estimates of EPA’s contractor as a reference, we concluded 

that

the requirement would have a very adverse impact on our members, approximately 70% 

of whom are small businesses. To put it mildly, an initial $216,000 investment per 

 

15 SOCMA comments on Group IV Polymers and Resins; Pesticide Active Ingredient Production; and Polyether 

Polyols Production Comments, p.2 [emphasis added].
8

facility – combined with the subsequent $27,000 in annual operation and maintenance 

costs per facility – is a significant financial burden.

By way of example, there would be an even greater impact on one SOCMA member’s facility. 

That facility estimated capital costs for 57 required monitors as being $1.14 million 

($20,000/monitor x 57 monitors), and annual operating costs to be $57,000 ($1,000 per monitor). 

We note that those figures do not even include the annual recordkeeping and reporting labor

hours and costs per facility, and stress the impact that this requirement will have on even smaller 

companies. 

The burden will be magnified even further – perhaps significantly – for those companies with 

more than one facility. And, of course, the costs of these new requirements must be considered 

in the context of the cumulative costs of complying with other regulations as well. 

As a result of MACT standards and Title V permits, many SOCMA members have first-hand 

experience with automated monitoring and detection systems. FTIR systems, for example, were 

described as a “very difficult technology to handle,” and our members have had a variety of 

other problems simply trying to operate the systems. These difficulties only compound our 

members’ already high operating costs.

3. One Size Does Not Fit All

The RFI admittedly recognizes what SOCMA has just explained: “the need for and appropriate 

development of such systems is likely to be highly site-specific, and . . . facilities may already 

have appropriate incentives to deploy such systems where warranted and cost-effective.”16 EPA 

also acknowledges that they may be costly, and that “the decision to invest in such equipment 

may be influenced by many factors. For example, automated detection and monitoring 

technologies may not be available for particular chemical hazards, or industry standards may not 

address their proper use.”17 These statements strongly counsel against adding or expanding

detection or monitoring requirements through the RMP rule. 

C. Incident Investigation and Accident History Requirements

1. The PSM and RMP Standards Already Require Investigation Of Near 

Misses.

The current RMP language, which parallels the PSM language, already requires facilities to 

“investigate each incident which resulted in, or could reasonably have resulted in a catastrophic 

release” of a regulated substance.18 SOCMA believes that this requirement is adequate, and that 

there is no need to change it. 

 

16 79 Fed. Reg. 44623.

17 Id.

18 40 C.F.R. § 68.60(a) (emphasis added).
9

The RFI presents no evidence that the current RMP language is failing to prompt investigations

of near misses, nor any justification that the rule should require investigation of some broader 

universe of what we will call “far-misses.” EPA asserts that in cases involving incidents that

were not investigated, “only a fortunate break in the chain of events prevented a catastrophic 

release of a regulated substance from happening.” But the Agency offers no explanation of how 

it knows this to be the case. EPA also notes cases “where the facility chose not to conduct an 

investigation because the owner/operator elected to decommission the process involved, or 

because the process was destroyed in the incident.” The Agency acknowledges that an 

investigation “would have no impact on a decommissioned or destroyed process,” yet 

nonetheless contends that other facilities “could potentially benefit from its findings.” This is 

highly speculative – EPA provides no supporting evidence that this would, in fact, be the case. 

The Agency offers a similarly unsupported rationale for cases where no investigations occurred 

because “there were no actual or potential off-site consequences.” Such investigations, EPA 

writes, “could provide facilities with important information on what problems could lead to an 

incident, and allow for the facility to address them before a catastrophic release occurs.” Again, 

EPA provides no supporting evidence when it suggests that requiring these investigations could

lead to positive outcomes. The more one broadens the universe of “incidents” to be investigated, 

the more likely it is that these investigations will yield no useful information and will simply 

increase the already heavy burden on staff members who are continually striving to comply with 

multiple other mandates.

It appears to SOCMA that EPA includes as “near misses” events where one or more layers of 

protection failed, and where, if multiple additional layers had failed or other events had 

happened, a catastrophic release could have occurred. The regulatory standard for reporting,

however, is not whether something could theoretically have resulted in a release; it is whether it 

could “reasonably have resulted” in such an incident. SOCMA has significant concerns with the 

idea of broadening the incident investigation requirement to such more speculative “far-misses.” 

How is the Agency going to define the new universe of incidents? Would the standard no longer 

be dependent on the magnitude of the event in question? Should all “far misses” within a facility 

be investigated, including those which have no connection to an RMP-covered process? Would 

a scenario where an employee did not wear safety glasses be covered? The Agency also needs to 

be careful not to capture events that, while appearing to be possible incidents, actually are not. 

(For example, cellulosics routinely smolder, but it certainly should not be considered a “near 

miss” if they do.) 

Significantly, in its earlier RFI, OSHA did not see fit to question incident investigations or to 

rewrite its identically worded rule. As an association representing companies that are trying to 

comply with both OSHA’s PSM standard and RMP, we strongly believe that consistency 

between the two rules is desperately needed. If EPA is not satisfied with how stakeholders are 

currently interpreting the incident investigation language in RMP, the Agency could issue more 

detailed guidance in lieu of rewriting its regulation altogether.
10

2. Near-Miss Incidents Should Not Be Included in 5-Year Accident 

Histories

As an initial matter, EPA lacks authority to require that 5-year accident histories include more 

than actual accidents. Section 112(4)(7)(B)(ii)(I) provides that hazard assessments “shall include 

a previous release history of the past 5 years.”19 To be clear: a “near miss” is not a “release.” 

Further, while noting that “[n]ear-miss accidents or accidents with only the potential for 

consequences are not required to be included” in accident history reporting, EPA offers no 

evidence, and cites no examples of cases, where any suggested change would have made any 

difference in accident prevention. Indeed, more comprehensive reporting could actually make 

five-year accident histories less informative, because they would increasingly include 

“accidents” that had no reasonable likelihood of being catastrophic and thus teach no useful 

lessons. 

Finally, as we previously noted, more than 70% of SOCMA’s members are small to mediumsized businesses. Many of the EHS&S staff for our members wear multiple hats, and are 

responsible for compliance with environmental regulations on a broad scale, as well as safety 

and security regulations. To require recordkeeping for all near-misses would add to an already 

significant, cumulative burden that many of these employees are already bearing.

At a minimum, we urge EPA to avoid proposing that facilities include in a 5-year report any 

incidents that the facility was not required to investigate.

3. Conclusion

One could argue that RMP is a victim of its own success – because process safety has improved, 

incidents are increasingly rare and there is not as much investigation or reporting as occurred in 

the past. Rather than lower the thresholds for investigation or reporting simply to maintain some 

prior level of activity, EPA should take credit for the program’s success and refrain imposing 

new reporting requirements. 

D. Public Disclosure of Information To Promote Regulatory Compliance and 

Improve Community Understanding of Chemical Risks

SOCMA agrees with EPA that “[e]nsuring that communities, local planners and local first 

responders have appropriate facility chemical hazard information is critical to the health and 

safety of the responders and the local community.” That’s why Congress enacted EPCRA, and 

that’s why our ChemStewards Management System (CSMS) directly addresses the issues of 

communication with external stakeholders (including neighbors, community organizations, 

NGOs, government organizations, the media, and the general public)20 and emergency response 

 

19 42 U.S.C. § 7412(r)(7)(B)(i)(I).

20 The Management System details specific guidelines for successful communication with those affected parties, 

including developing “several methods of regular communication with external stakeholders concerning facility 

EHS&S efforts and goals...;[e]nsur[ing] that stakeholder dialogue is a two-way process...; assign[ing] responsibility 
11

planning.21 However, we have significant concerns about attempting to serve these functions via 

RMP.

We are particularly troubled by EPA’s suggestion of providing PHAs to local authorities. The 

first question to ask is how useful this would be. PHAs vary from company to company, 

depending on the type and complexity of the process. For batch facilities in particular, PHAs can 

be highly complex. SOCMA seriously questions: whether most local authorities will understand 

highly technical PHAs; what EPA thinks they would gain from that effort; and whether the 

desired information could not be provided much more simply and straightforwardly.

Protection of confidential business information is acutely important to the batch chemical 

industry, which largely competes on the basis of trade secret manufacturing processes. A “what 

if” checklist is a common form of hazard analysis. Applied to a batch procedure, however, it 

walks the reader through a detailed step-by-step description of the process, essentially telling the 

reader how to make the product the company is producing. The individual steps of a batch 

procedure may have to be redacted in order to protect CBI – thus limiting the utility of providing 

PHAs to the local officials in any event. 

There is also limited value to making PHAs available more broadly (whether intentionally or 

accidently) to the public and local officials who probably will not understand or appreciate the 

sophisticated technical issues involved. Will the public understand how PHAs are conducted and 

the purpose of the information that comes out of them? Certainly, some members of the public 

may have an excellent understanding of what PHAs are and the information they contain, while 

others might effectively have no idea what they are looking at. Our members are wary of 

members of the public misinterpreting the information provided. We are particularly concerned 

that members of the public will not make distinctions in terms of the relative improbability of 

various events or the scale of possible consequences, and will instead demand that facilities put 

in overly complex and unnecessary safety instrument systems or other procedures to make their 

batch facilities as safe as nuclear facilities. This would be unreasonable, particularly for smaller 

and medium-sized companies. 

SOCMA is also worried about the willingness of the public to accept the idea of risk 

prioritization inherent in the PHA process. For example, if a facility ranks action items by 

priority, as permitted by the rules, will members of the public demand that low priority items be 

acted upon as quickly as high priority items? It seems bad policy to have risk reduction efforts 

driven in part by the outcry of a possibly uninformed public, rather than by an objective 

assessment of risk by technical experts who have firsthand knowledge of a facility’s processes 

and risks. 

 

for external communications to a specific individual...;” and tracking all external communication. ChemStewards 

Management System , Chapter 3, pp. 4-8 (revised 2011).

21 The CSMS lays out in detail an effective emergency preparedness and response program, including “how [the 

facility] will ensure that everyone (including new employees) knows what to do in an emergency.” It acknowledges 

the importance of site visitors knowing what to do in an emergency situation, and instructs employees to 

“[c]ommunicate with local officials (fire department, hospital, etc.) about potential emergencies at the site and how 

they can support its response efforts.” The Emergency Response Plan is expected to describe arrangements with 

local emergency support providers. CSMS, Chapter 4, pp. 4-7.
12

SOCMA is also concerned that public disclosure of PHAs would have a potentially chilling or 

standardizing effect on how PHAs are conducted. Companies might choose to omit information, 

or not cover certain scenarios, that they judge to be improbable, rather than running a risk of 

alarming the public by discussing risks that are highly unlikely to materialize. This could make

PHAs much less informative and useful. SOCMA is concerned that increased public scrutiny of 

PHAs will inexorably lead to calls for unrealistic “no risk” outcomes – which could 

unnecessarily increase the cost or limit the availability of the many useful products manufactured 

by our members.

Again, it is relevant that OSHA’s PSM RFI did not raise the issue of making PHAs public. Most

facilities use the same PHA for PSM and RMP. Differences in how EPA and OSHA treat PHAs 

could leave facilities facing contradictory directives.

EPA spent years and a huge amount of effort in the late 1990s arguing with industry, the Justice 

Department and ultimately Congress about the security risks of using the Internet or public 

reading rooms to disseminate offsite consequence analyses and other RMP information to the 

public. Terrorism risks are no less real now than they turned out to be in 2001. SOCMA 

members do not favor reopening this same debate for PHAs and other process hazard 

information. In our view, members of the public who genuinely want to obtain publicly 

available process hazard information about a facility can do so now if they so desire. Expanding 

the scope to PHAs or other process hazard information of technical nature with limited public 

value more broadly will only make it easier to obtain this information remotely and anonymously

to the benefit, most of all, of malefactors.

E. Additional Stationary Source Location Requirements

The RFI also raises questions about siting, both of the stationary source itself and of occupancies 

within the stationary source, explaining that siting “can affect the impact of an accidental 

release.” However, the RFI doesn’t acknowledge the significant problems with EPA attempting 

to regulate siting under the RMP rule.

Most important, EPA lacks statutory authority to take siting into account under the RMP 

program. The Section 112(r)(1) General Duty Clause does reference “minimizing consequences 

of accidental releases which do occur.” But the RMP rule is premised on Section 112(r)(7), 

which speaks solely of “the prevention and detection of accidental releases . . . and for response 

to such releases,” and says nothing about minimizing consequences. Requirements that involve 

simply moving facilities or processes farther away from people are not authorized by the statute 

(and do nothing to prevent, detect or respond to releases). 

Similarly, Section 304(a) of the Clean Air Act Amendments of 1990 gave OSHA, and not EPA,

the job of issuing rules “to prevent accidental releases of chemicals which could pose a threat to 

employees.”

22 In contrast, Section 301 of the Amendments limited the scope of EPA’s authority 

to unanticipated emissions “from a stationary source.”23 The Amendments also instructed EPA 

to consult with the Secretary of Labor . . . and . . . coordinate any [RMP] requirements . . . with 

 

22 Pub. L. No. 101-549, § 340(a).

23 Id. § 301 (new 42 U.S.C. § 7412(r)(2)(A) (definition of “accidental release”)).
13

any requirements established for comparable purposes by the Occupational Safety and Health 

Administration.”

24 Accordingly, SOCMA believes that any accidental release requirements 

regarding occupancies within a facility are within OSHA’s jurisdiction, and not EPA’s. EPA’s 

jurisdiction is limited to releases “beyond the fence line,” and it should avoid encroaching on 

OSHA’s jurisdiction.

The “one size does not fit all” caution that applies to other aspects of the RFI applies to 

stationary source siting as well. It is difficult to come up with stationary source siting 

requirements that will work in all instances. For example, what might have made a difference in 

either preventing or alleviating the 2005 BP Texas City refinery explosions cited in the RFI

might have made no difference whatsoever (or again, may have even been counterproductive) in 

different settings and circumstances – and vice-versa. 

SOCMA also believes EPA and industry would face recurring difficulties trying to determine 

what constituted a “new” covered facility, based on the difficulties that concept has occasioned 

in NSPS and other regulatory programs.

Moreover, SOCMA notes that “facility siting” is already addressed in PHAs under the current 

rules.25 We respectfully urge EPA not to expand consideration of that concept under RMP any 

further.

F. Emergency Drills and Compliance with Emergency Response Program

Requirements in Coordination with Local Responders 

SOCMA members have long been very familiar with the topic of emergency response planning. 

As we noted in our response to a similar question contained in OSHA’s RFI, 

Under ChemStewards, emergency response planning with local officials has always been 

a fundamental business practice of SOCMA members. It is also the core purpose of 

EPCRA, which contains detailed requirements for facilities to notify local emergency 

planning committees, to cooperate with them in planning, and to file safety data sheets 

(or lists thereof) and chemical inventory forms with LEPCs and fire departments.26 The 

RMP program27 and RCRA regulations28 require many of the same things. 

We highlighted EPCRA’s prominent role in this discussion, and we continue to support efforts to 

make the EPCRA process work better. However, we believe that it would be bad policy to try to 

twist the RMP (or PSM) programs to do what EPCRA (and RCRA) is supposed to do. 

In this regard, we previously commented that,

 

24 Id. (new 42 U.S.C. § 7412(r)(7)(D)).

25 40 C.F.R. § 68.67(c)(5).

26 See 42 U.S.C. §§ 11002(c), 11003(d), 11021 and 11022.

27 See 40 C.F.R. § 68.95(c) (emergency response plans under RMP; to be coordinated with community emergency 

response plans developed under EPCRA).

28 See id. §§ 264.37, 265.37 (coordination by hazardous waste treatment, storage & disposal facilities with local 

police and fire departments, local and state emergency response teams, and hospitals).
14

Given the comprehensive cooperation requirements of EPCRA and the comparable 

provisions in the RMP and RCRA rules, adding similar requirements to PSM strikes 

SOCMA as highly redundant. At a minimum, SOCMA believes it is incumbent upon 

OSHA to demonstrate those other regulations are inadequate. (OSHA should also 

address why it is reasonable to believe that facilities that do not comply with existing law 

would comply with any new law, either.)

In these earlier comments, we also focused on emergency drills specifically:

SOCMA would be concerned, for example, if there were a new PSM requirement to 

conduct a drill with local authorities on a specific frequency and mandated terms. 

SOCMA members conduct drills with local emergency response teams and in many 

cases, typically on an annual basis, but the scenario varies to provide the needed training 

of both organizations, for example, to conduct training for a fire, spill, or release of a 

covered or non-covered chemical. If a drill was required by PSM for a specific scenario 

(example, a release or explosion/fire with a covered chemical) that may or not meet the 

requirements of the other regulations, and could require duplicative drills or exercises.

We continued,

Such duplication would not only burden facilities. The RCRA rules referenced above 

state: “Where State or local authorities decline to enter into such arrangements, the owner 

or operator must document the refusal in the operating record.”29 This provision 

recognizes the unfortunate reality that, even where a facility attempts to coordinate with 

local authorities, in some cases those authorities simply do not respond. For example, 

our members recently cited specific examples of local fire departments not responding to 

invitations. In many cases, these are volunteer organizations with other, more pressing 

obligations. Many SOCMA facilities have in fact found this to be the case in trying to 

meet RCRA emergency response requirements. SOCMA is concerned that any 

additional coordination requirement imposed under PSM would only further burden such 

local authorities and impair existing cooperation efforts. At a minimum, the OSHA 

requirement would need a ‘noncooperation’ clause similar to the one in the RCRA rules.

The same arguments, of course, apply just as well to EPA. 

G. Worst Case Release Scenario Quantity Requirements for Processes Involving 

Numerous Small Vessels Stored Together

Many SOCMA members have strategically designed their processes so that they are not Program 

3 facilities under RMP. While this may have significant efficiency costs or create lost product 

opportunities, these companies have concluded that the costs of Program 3 compliance are even 

higher. Many businesses are simply too small to be able to justify the necessary in-house 

capability or to afford to hire consultants to conduct the more extensive Program 3 analyses. 

Such decision-making is certainly not unique to RMP; it occurs under PSM, the Chemical 

 

29 Id. §§ 264.37(b), 265(b).
15

Facility Anti-Terrorism Standards (CFATS), and many other regulatory regimes. What’s more, 

SOCMA suspects that the number of facilities that have chosen to avoid Program 3 is substantial. 

Some indication may be seen from CFATS, where DHS data30 show that roughly as many 

companies have changed processes to get out of being regulated by the program than are subject 

to it.

Program 3 coverage is triggered when the worst-case release of a regulated substance from a 

single container or other vessel would expose the nearest public receptor to a toxic or flammable 

endpoint. Thus, one of the principal ways of avoiding Program 3 is to reduce the amount of that 

regulated substance in a single vessel to the point where a toxic or flammable endpoint cannot 

reach the nearest public receptor. If EPA were to require facilities to aggregate the quantities in 

co-located vessels, it could dramatically affect the number of facilities covered by Program 3. 

The RMP rule already provides that “any group of vessels that are interconnected, or separate 

vessels that are located such that a regulated substance could be involved in a potential release, 

shall be considered a single process.”31 SOCMA submits that this approach adequately captures 

the scenario of concern to EPA; i.e., where multiple small containers are stored in sufficiently 

close proximity that a release from one will trigger releases from others. We urge EPA not to 

expand the scope of Program 3 beyond its current form.

H. Safety Case Model

SOCMA is adamantly opposed to adoption of the “Safety Case” regulatory model. EPA 

concedes that adoption of the safety case approach “would require significant changes to the 

existing regulatory regime for chemical process safety in the United States.”32 Put another,

more telling way, adoption of the “safety case” model would require a complete overhaul of how 

EPA, OSHA and industry have addressed process safety in the U.S. A new safety case approach 

would require staff at EPA and OSHA to become much more expert in process safety, to make 

more subjective decisions (including what level of risk is “as low as reasonably practicable”), 

and to take on much greater responsibility if and when they are wrong. EPA was wise to cite the 

vast disparity in resources, per regulated facility, between EPA and the NRC.33

Requiring such significant changes would dramatically reduce the regulatory certainty that is so 

vitally important to industry – and, in particular, to encouraging capital investment and job 

creation. This is particularly true for small and medium-sized businesses, whose resources are 

stretched thin to begin with, and who can less well afford to put capital at risk. Implementation 

of the safety case approach would require regulators and industry alike to start over on a clean 

slate as they struggle to understand new and ambiguous regulatory terms as applied to particular 

operational situations. What does “as low as reasonably practicable” mean, exactly, in a given 

case? How does one determine what is reasonable and what is practicable? Depending on the 

size of the company and facility involved, what is reasonable and practicable can vary greatly 

from one company to another. 

 

30 CFATS Program Statistics (Oct. 2014), available at http://www.dhs.gov/sites/default/files/publications/CFATSFact-Sheet-October-2014-508.pdf.

31 40 C.F.R. § 68.3 (definition of “process”).

32 79 Fed. Reg. 44632.

33 Id.
16

EPA notes that in its December 2013 Draft Regulatory Report on the Chevron Richmond 

Refinery Pipe Rupture and Fire, the Chemical Safety Board (CSB) “advocates the safety case 

approach as a safety management framework for U.S. refineries.” Significantly, what EPA 

reserved for the small print of a footnote is that “the Board refused to endorse this aspect of the 

draft report” at its January 15, 2014 meeting regarding the Chevron refinery in Richmond, 

California. The RFI neglects altogether to point out that, later the same month, the CSB chair 

cancelled a Board vote on draft recommendations regarding the Tesoro refinery in Anacortes, 

Washington, to avoid another embarrassing 2-1 defeat over the safety case issue.34

Even the U.S. Steelworkers opposed the CSB’s Chevron recommendation, writing that “a great 

deal more work needs to be done before a safety case system can be fully considered as a 

regulatory model for California or the United States.”

35

 That statement remains true less than a 

year later. EPA should not promote use of the safety case approach in RMP.

III. Issues Also Addressed by OSHA 

SOCMA commented on all of the issues addressed in the RFI that were previously raised in 

OSHA’s RFI. For EPA’s convenience, we summarize those comments below. The full text is, 

of course, contained in the attached comments to OSHA.

As a general comment applicable to all of the following issues, we again urge EPA to work with 

OSHA to maintain comparability between RMP and PSM on those issues that both rules address. 

As a practical matter, that means that EPA should seek to issue its proposed and final rules 

concurrently with OSHA.

A. Updating the List of Regulated Substances

SOCMA commented on this topic in some detail in our comments we submitted to OSHA earlier 

this year. We observed that the issue of addressing reactivity hazards really should follow from 

a decision whether and how to add additional chemicals for the first time to the RMP list of

regulated substances (or to PSM and CFATS Appendix A lists), based on their reactive 

properties. 

In earlier comments to the agencies involved in the Working Group, SOCMA urged that, before 

they seek to address reactives by revising their existing rules (OSHA) or proposing new rules 

(EPA and DHS), the agencies should “consider the value of establishing a database of reactive 

chemical testing data.” We noted that we had been involved in discussing this concept over the 

last 20 years and argued that, while “a number of issues raised by the proposal would need to be 

worked out, ... such a database could be of greater utility to a broader universe of entities than 

any new regulatory approach, and could be established more quickly and at lower cost to the 

 

34 See Center for Public Integrity, “Delay of long-awaited refinery accident report signals divisions at Chemical 

Safety Board” (Jan. 30, 2014), available at http://www.publicintegrity.org/2014/01/30/14186/delay-long-awaitedrefinery-accident-report-signals-divisions-chemical-safety-board. See also letter from Board Members Mark 

Griffon & Beth Rosenberg to Rep. Rick Larsen (Jan.27, 2014) (“The draft Tesoro report essentially cut and pasted 

the recommendations for the ‘safety case’ from the report on the Chevron fire.”), available at

https://www.documentcloud.org/documents/1010459-board-members-letter-to-larsen.html.

35 See Center for Public Integrity, supra.
17

federal government than a regulatory approach.”

SOCMA also pointed out that there is not, in fact, “a method, other than periodically updating 

the PSM and RMP lists of covered chemicals through rulemaking, that OSHA or EPA could use 

to expand their lists.” We also pointed out that “[t]hese lists were established by rulemaking and 

are set out in the CFR[, and that,] as integral elements of rules that have the force and effect of 

law, these lists can only be amended by notice and comment rulemaking.”

In our PSM comments, we suggested that “[t]here could be benefit to conducting rulemakings to 

update these lists, since experience has shown that some changes are warranted,” and cited 

perchloric acid as an example. We also think EPA could delist the six chemicals for which it has 

never received an RMP report. To the extent that EPA pursues rulemaking to update the RMP 

Appendix A list, it should not consider adopting lists of purportedly reactive chemicals generated 

by some arbitrary or abstract feature. Rather, the Agency should only make changes based on 

identified problems or patterns of accidents occurring during the 18 years since the RMP rule 

went into effect. As we wrote in our earlier comments, “new listings and changes to existing 

listings would have to be supported on a chemical-by-chemical basis, and not on the basis of 

some third-party list or action.”

In connection with reactive substances specifically, the RFI states that EPA has received reports 

of 29 reactive chemical incidents during almost two decades of experience. (We trust that EPA 

has included these reports within the rulemaking record, or will do so, if it intends to pursue 

rulemaking on this topic.) The RFI notes that, collectively, these incidents have resulted in only 

$3 million in offsite property damage, versus $33 million in onsite damage. Since the purview of 

the RMP program is offsite consequences, SOCMA urges EPA to maintain its focus on 

chemicals that produced offsite consequences.

The statutorily-established scope of the RMP program must guide EPA more generally if it 

pursues rulemaking on Appendix A. The statute limits the jurisdiction of the RMP program to 

“regulated substances.”36 A chemical substance is conventionally understood to mean matter

that has constant chemical composition and characteristic properties—i.e., either an element or a 

compound. Substances cannot be separated into components by physical separation methods, 

but only by breaking chemical bonds.

37 That means, for example, that EPA cannot list 

“combustible dusts,” “5.1 oxidixers,” “peroxides, ” or other types of chemicals as “regulated

substances,” because they are not “substances.” Similarly chemical characteristics such as 

reactivity, and chemical functional groups, cannot be included on the RMP list because they 

cannot be a “regulated substance.”

B. RAGAGEP 

In our earlier OSHA comments, we also addressed the issue of updates to applicable recognized 

and generally accepted good engineering practices (RAGAGEP).

 

36 See 42 U.S.C. §§ 7412(r)(7)(B), 7412(r)(2)(B).

37 See Wikipedia, “Chemical substance,” available at http://en.wikipedia.org/wiki/Chemical_substance.
18

SOCMA focused on two points in particular, and our positions certainly have not changed in the 

intervening months:

1. Noting that “[i]ndustry would benefit from more clarity” from a new RAGAGEP 

definition, SOCMA “supports further exploration of whether a definition exists or could be 

crafted that would be an improvement over the status quo, in which RAGAGEP is often defined 

by enforcement action. Non-regulatory guidance could also be helpful if it is developed with 

public input.”

Depending on how a new definition of RAGAGEP is crafted, the specialty batch industry could 

be negatively impacted, given its nature. As we described in the OSHA comments,

specialty batch plants over multiple sectors are potentially subject to a myriad of varying 

codes and sections of codes that may be considered RAGAGEP. Many of these plants 

are very small and do not have corporate staff who can spend much of their time 

identifying and tracking changes to codes, standards or practices. A definition of 

RAGAGEP that was too prescriptive or restrictive would result in many smaller facilities 

being unable to comply. 

We maintain our belief that “internal standards can be less restrictive than published standards 

but still appropriate.” 

2. Regarding the proposal to require evaluation of updates to RAGAGEP, we previously 

noted that facilities are already required to update their determination of what constitutes 

RAGAGEP at least every five years. We remain concerned about “a requirement that facilities 

update their understanding of applicable RAGAGEP essentially on a continuing basis.... The 

universe of potentially applicable codes, standards or practices can be substantial, and 

monitoring changes to them on an ongoing basis is beyond the resources of many batch and 

specialty companies.” Furthermore, we continue to believe that an updated standard is not 

always a better standard. SOCMA stands by its earlier conclusion:

Any rulemaking on RAGAGEP should retain the ability of employers to explain why 

they have chosen not to adopt a newer standard, but have instead concluded that a 

prior published standard or an internal standard remains safe.

C. Third-Party Compliance Audits 

SOCMA remains opposed to a requirement that employers hire third parties to conduct 

compliance audits. A mandate to use third parties who do not understand the specific 

manufacturing could easily lead to wasteful, unwise and potentially even dangerous conclusions. 

SOCMA is particularly opposed to a scenario where the third party audit would be required in 

addition to the existing self-audit requirement. We are also skeptical that there is sufficient 

capability in the consulting community to satisfy this requirement. Finally, we are concerned 

that, as one SOCMA member recently wrote, the consultants who do audits tend “mostly [to be] 

those who have never been in the trenches.” We believe that if EPA does require third party 
19

auditors, they should be required to have had at least 10 years experience actually managing a 

PSM or RMP program.

We recognize the valid concern about auditor independence, and wish to point out that most of 

our member companies’ audits are “completed by internal resources that are not associated with 

the site's operation.” We remain willing to explore a requirement that auditors be independent of 

the facility, without requiring them to be employed by third parties. 

D. Adding New Management System Elements 

Although we understand the desire to review the PSM standard “in light of management system 

elements that have been identified since the rule was finalized,” we remain “concerned about 

such elements necessarily becoming new compliance requirements.” In our comments to OSHA, 

SOCMA pointed out that such new requirements could be highly costly, wasteful, and disruptive. 

We are particularly concerned about EPA establishing rules regarding topics, like stop-work 

authority, that are really in OSHA’s domain. We continue to support the alternative approach of 

adding new management system elements as a non-mandatory appendix.

E. Mechanical Integrity 

SOCMA remains willing to consider extending mechanical integrity to safety critical equipment 

identified by the employer in lieu of addressing such equipment under the General Duty Clause. 

However, we still would want assurance that employers would really have discretion to define 

what is or is not considered safety critical equipment.

F. Management of Organizational Change

SOCMA continues to believe that:

Management of change and its effect on process safety is a very subjective judgment and 

one that does not lend itself readily to regulation. If effective management systems are in 

place, change should not be a huge issue unless the company has wholesale 

cuts. SOCMA is concerned that companies with low profit margins that cannot make 

organizational changes due to restrictions in the PSM rule may instead shutter operations 

prematurely and thus increase unemployment.
20

IV. Conclusion

SOCMA appreciates the opportunity to provide feedback on this RFI. If you have any questions, 

please contact me at (202) 721-4143 or at mossd@socma.com. Thank you for your 

consideration.

Sincerely,

Daniel Moss

Senior Manager, Government Relations