American 

Fuel & Petrochemical 

Manufacturers 

1667 K Street, NW 

Suite 700 

Washington, DC 

20006 

202.457.0480 office 

202.552.8476 direct 

202.457.0486 fax 

lswett@afpm.org 

Lara Swett

Director, Safety Programs 

October 29, 2014 

The Honorable Mathy Stanislaus 

Assistant Administrator 

Office of Solid Waste and Emergency Response 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, NW 

Washington, DC 20460 

Docket ID No. EPAHQ-OEM-2014-0328 

Re: Comments of the American Fuel & Petrochemical Manufacturers on the Environmental 

Protection Agency’s Request for Information regarding potential revisions to the Risk 

Management Program Regulations and Related Programs. 

Mr. Stanislaus, 

The American Fuel & Petrochemical Manufacturers (AFPM) is pleased to submit these 

comments on the Environmental Protection Agency’s (EPA or Agency) Request for Information 

regarding potential revisions to the Risk Management Program Regulations and Related 

Programs (Docket ID No. EPA-HQ-OEM-2014-0328). AFPM is a trade association 

representing virtually all U.S. refiners and petrochemical manufacturers involved in the 

production and use of the regulated substances subject to the Risk Management Program (RMP) 

Regulations. AFPM members supply consumers with a wide variety of products and services 

used daily in their homes and businesses. These products include gasoline, diesel fuel, and home 

heating oil, jet fuel, lubricants and the chemicals that serve as “building blocks” in making 

diverse products, such as plastics, clothing, medicine and computers. 
We appreciate the opportunity to submit comments to EPA’s request for information and 

we strongly encourage the Agency to set aside the amount of time necessary to analyze these 

comments. Unfortunately, to date the Agency has not demonstrated that sufficient time will be 

allowed for any step of the process. 

EPA did not provide sufficient time for our members to prepare complete comments to the 

regulatory changes discussed in the RFI. 

On Thursday, July 31, 2014, the Federal Register published the following: 

The Environmental Protection Agency (EPA), in response to Executive Order 

13650, requests comment on potential revisions to its Risk Management Program 

regulations and related programs. In this Request for Information (RFI), the 

Agency asks for information and data on specific regulatory elements and process 

safety management approaches, the public and environmental health and safety 

risks they address, and the costs and burdens they may entail.1

The Agency then enumerated 19 distinct areas (with subparts) to be addressed, including 

a significant portion from the separate OSHA RFI on potential revisions to the Process Safety 

Management (PSM) Rule. In total, EPA RFI makes 380 individual requests for information 

spanning over the 19 areas of concern. 

As an initial matter, the RFI involves a host of complex issues, many of which both 

Agencies (OSHA and EPA) have had to re-examine and continuously refine since the inception 

of the respective regulations. Moreover, the depth at which the RFI examines these complex 

issues is considerable. 

 

1

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

Section 112(r)(7), 79 Fed. Reg. 44603, 44604 (proposed July 31, 2014) . 
Rulemaking is a long process that requires diligence and thoughtful consideration; 

especially where there is a large volume of complex issues that have the potential to significantly 

alter day-to-day operations for a large industry. This process should not have been shortchanged 

by allowing affected industries only 90 days to gather information, study and analyze it, and then 

prepare meaningful commentary to the questions accompanying the RFI. OSHA recognized this 

problem when it decided to grant affected industries additional time to respond to its related RFI. 

OSHA’s RFI for revisions to the PSM rule similarly required affected industries to respond 

within 90 days. When presented with similar requests for a deadline extension, OSHA granted 

industries an additional three weeks to respond. Here, EPA’s RFI is twice as long and contains 

four times as many requests for information. Therefore EPA’s decision not to provide additional 

time for the preparation of comments is improper. 

AFPM and its members understand that EPA is working on a very tight timeline but in 

order to provide meaningful comments and data addressing EPA’s numerous requests, more time 

was needed and EPA’s decision to deny the requests for additional time (as requested by several 

trade groups representing thousands of companies) is questionable at best. 

Particularly concerning is that this is becoming a pattern for EPA, a pattern that has not 

gone unnoticed. On July 8, 2014, the Congressional Research Service issued a report titled EPA 

Regulations: Too Much, Too Little, or On Track?2 wherein the authors noted the persistent 

 

2

 McCarthy, James E. and Claudia Copeland, Cong. Research Serv., R41561, EPA Regulations: Too Much, 

Too Little, or On Track? (July 8, 2014). 
impression that “the Obama Administration’s EPA is ‘overreaching’ in its regulatory efforts”.3

 

The article concluded by noting that the Agency was attempting to address this concern. For 

example “[i]n revising proposed rules, EPA often relied on data submitted by industry and other 

stakeholders, acknowledging that it had inadequate or incomplete data when it proposed the 

rules.” Yet here EPA has chosen to ignore industry’s and other stakeholders’ request for 

additional time to submit the data EPA requests. EPA’s insistence on haste will have negative 

impacts on site security and on the quality of the eventual rule. 

PREFACE

There is a long history of cooperation between EPA and Industry 

Industry in general and AFPM in particular have a long history of working with EPA and 

OSHA to develop standards and safe work practices to reduce environmental and occupational 

risk and to make the work place safer for their employees, the surrounding communities and the 

environment. This process has been collaborative, focusing on identifying specific issues or 

hazards in our industry and addressing them. This joint process has demonstrated that the 

greatest improvement in environmental and occupational safety occurs with a narrowed focus on 

resolving specific hazards. 

A recent example of note was EPA and industry working together to implement changes 

to Clean Air Act standards for major and area source boilers and commercial/industrial solid 

waste incinerators. EPA had to withdraw its initial proposal after receiving numerous complaints 

including one study that said the proposed standard would cost businesses $20 billion to comply 

 

3

 Id. at 7. 
and cause the loss of more than 300,000 jobs. Working together, a more manageable proposal 

was enacted. As EPA stated in one of its fact sheets: 

On December 20, 2012, the U.S. Environmental Protection Agency (EPA) 

finalized a specific set of adjustments to Clean Air Act standards, originally 

finalized in March 2011, for boilers and certain solid waste incinerators. These 

adjustments maintain extensive public health protections achieved by the March 

2011 standards by reducing toxic air pollution, including mercury and particle 

pollution. At the same time, these adjustments increase the rules’ flexibility and 

address concerns raised by stakeholders. The specific set of adjustments address 

new data provided to the agency and additional information about real-world 

performance and conditions under which affected boilers and incinerators operate. 

These adjustments maintain the dramatic cuts in the cost of implementation that 

were achieved in the final standards issued in March 2011.4

 (emphasis added) 

Instead of revising the RMP Regulations without reference to specific hazards, we 

recommend that EPA work with the individual trade associations to identify the relevant hazards 

for specific industries and then allow those industries to develop practices tailored to those 

hazards. To that end, AFPM’s members invite EPA to meet with them and discuss ways to 

improve the safety performance in the refining and petrochemical industries. 

EPA should respect jurisdictional boundaries with OSHA. 

EPA begins its request for information by addressing the statutory authority5

 that 

purportedly empowers the Agency to implement the changes discussed in the RFI. The Clean 

Air Act Amendments (CAAA) of 1990 convey broad regulatory authority to EPA to prevent the 

 

4

 Adjustments from December 2011 Proposed Reconsideration (PDF) available at 

http://www.epa.gov/airquality/combustion/actions.html#dec12. 

5

 79 Fed. Reg. at 44605 (stating “The statutory authority for this action is provided by section 112(r) of the 

Clean Air Act (CAA) as amended (42 U.S.C. 7412(r)) and by the Emergency Planning and Community Right-toKnow Act of 1986 (EPCRA), (42 U.S.C. 11001-11050), which was enacted as Title III of the Superfund 

Amendments and Reauthorization Act of 1986 (Pub. L. 99- 499), (SARA)”). 
accidental release of regulated substances that will impact public health and the environment.6

 

EPA does not have the authority to resolve safety and health for workers for which OSHA has 

exclusive jurisdiction. Yet many of the proposals found within request for information appear to 

address workplace impacts which EPA acknowledges are well beyond its statutory mandate 

under the CAAA.7,8 As the Congressional Research Services report suggested,9 the 

Administrator is overstepping her statutory authority with these proposed changes.10

In the preamble to the Final Rule, EPA described its efforts to coordinate the Part 68 

rules with OSHA’s PSM standard to minimize conflicting requirements and to minimize 

 

6

 42 U.S.C. § 7412(r)(7)(A) In order to prevent accidental releases of regulated substances, the Administrator 

is authorized to promulgate release prevention, detection, and correction requirements which may include 

monitoring, record-keeping, reporting, training, vapor recovery, secondary containment, and other design, 

equipment, work practice, and operational requirements. Regulations promulgated under this paragraph may make 

distinctions between various types, classes, and kinds of facilities, devices and systems taking into consideration 

factors including, but not limited to, the size, location, process, process controls, quantity of substances handled, 

potency of substances, and response capabilities present at any stationary source. Regulations promulgated pursuant 

to this subparagraph shall have an effective date, as determined by the Administrator, assuring compliance as 

expeditiously as practicable. 

7

 Risk Management Programs for Chemical Accidental Release Prevention, 58 Fed. Reg. 54190, 92 (October 

20, 1993) (“The OSHA standard is intended to protect workers from chemical accidents at facilities using highly 

toxic, reactive, flammable, or explosive substances. EPA’s mandate under section 112(r) of the CAA is to protect 

public health and the environment. . . . The main differences between the EPA’s proposed rule and OSHA’s 

standard are those mandated by the CAA . . . . OSHA’s focus is on workplace impacts while EPA’s focus is on 

offsite consequences, reflecting the differing statutory mandates of the two programs.”) 

 

8

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

Section 112(r)(7): Final Rule, 61 Fed. Reg. 31668, 711 (“The words ‘including those affecting the safety and health 

of employees’ has been deleted from the requirement for the evaluation of the consequences of deviations 

(paragraph (c)(1)(v)) because EPA has no authority to regulate the workplace.”)(emphasis added). 

9

 McCarthy, at 7. 

10 61 Fed. Reg. at 31672 (“These changes are designed to ensure that OSHA retains its oversight of actions 

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

and to remove possible interpretations that certain elements of process safety management fail to account for offsite 

impacts.”)(discussing the differences between the text of the Program 3 Prevention Program and OSHA’s PSM 

Standard). 
confusion for facilities covered by both rules.11 Based on a number of regulatory changes 

contemplated in the RFI, it appears that EPA has abandoned these principles and now intends to 

encroach into areas that are occupational safety issues within OSHA’s exclusive jurisdiction. 

Additional Risk Management Program elements such as stop work authority, job hazard analysis, 

management of contractor services, management of organizational changes and occupancy 

criteria for buildings within a facility have been within OSHA’s exclusive purview for decades. 

For example, EPA’s proposed stop work authority is duplicative of OSHA’s regulation12

promulgated in 1973 under which employees have the right to refuse to do dangerous work and 

refusing to work is an effective form of stop work authority. Concerning EPA’s contractor 

safety proposal, OSHA has extensive regulations and policies designed to eliminate risks and 

hazards from the workplace. Specifically the OSHA PSM Standard requires a host employer to 

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

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

potential hazards in a refinery are regulated by OSHA standards such as lockout/tagout, confined 

space, hot work permits, HAZCOM, PPE, hearing conservation and respirator requirements. 

Lastly, OSHA enforces its multi-employer policy that requires, among other things, the host 

employer to monitor contractor employees for compliance with safety and health regulations. 

Rather than develop additional unnecessary and potentially conflicting regulation, EPA should 

 

11 61 Fed. Reg. at 31711-12 (using the phrase “To maintain consistency with OSHA PSM” two times and the 

phrase “to ensure consistency with OSHA” eight separate times”). 

12 29 C.F.R. §1977.12(b)(2). 
defer to OSHA’s expertise in regulating these particular matters and focus its attention on only 

those items that “pose a potential threat beyond the fenceline”.13

RMP works best as a performance-based regulation. 

The accidental release provisions of the RMP regulation are performance-based 

regulations in which the regulator sets specific goals and the owner/operator is responsible for 

selecting the means of compliance. Many of the proposed changes in this RFI suggest EPA 

intends to graft a command-and-control approach onto the underlying performance standards, 

(e.g. mandating “redundant power supplies, emergency flares, vents, or scrubbers, etc.”). AFPM 

believes its members, the community and EPA itself benefit from the existing performance basis 

of the PSM and RMP Regulations and a performance standard like PSM is the best way to 

address process hazards. A performance standard enables the engineers with specific detailed 

knowledge of each process, its potential hazards, and the specific equipment to safely and 

effectively either eliminate or control those hazards. The majority of the hazards presented are a 

function of the specific processes and equipment utilized. In most instances, these broad 

prescriptive requirements for additional equipment and instrumentation complicate and in some 

circumstances hinder the regulatory goal of safely eliminating or reducing the hazards. 

Moreover, a prescriptive regulatory approach will impose unnecessary burdens on equipment, 

time and resources without addressing the specific underlying hazard. 

 

13 List of Regulated Substances and thresholds for Accidental Release Prevention; Requirements for Petitions 

Under Section 112(r) of the Clean Air Act as Amended, 59 Fed. Reg. 4478, 4486 (January 31, 1994). 
Finally, a prescriptive approach may conflict with other regulatory mandates. For 

example, the suggestion in the RFI that EPA may consider requiring installation of additional 

emergency flares is inconsistent with EPA’s current efforts to discourage flaring through a series 

of recent consent decrees and the proposed “Petroleum Refinery Sector Risk and Technology 

Rule and New Source Performance Standards,” for which the public comment period ended 

October 28.14 Therefore, EPA should not implement prescriptive changes as proposed. The 

RMP regulation should continue to maintain consistency with the PSM standard as a 

performance-based regulation. 

There is no evidence that the current RMP Regulations are deficient or in need of 

amending. 

AFPM’s members believe that when correctly implemented and enforced, the RMP 

Regulations are very effective in reducing risks of accidental releases and making the workplace 

safer for employees. EPA has provided no evidence that the current regulations are deficient or 

in need of amending. The key process safety principles undergirding RMP predated the Clean 

Air Act. Yet adoption of those safety principles was not uniform throughout all industry sectors. 

Therefore it is not the absence of a regulation that is the issue. The issue is improving the 

implementation of the RMP Regulations’ key principles in a wide range of industries. In other 

words, the RMP Regulations (which have been effective in preventing and mitigating 

catastrophic releases when implemented correctly) do not require a broad-stroke revision across 

all industries, as EPA is now suggesting. 

 

14 Petroleum Refinery Sector Risk and Technology Review and New Source Performance Standards, 79 Fed. 

Reg. 36880 (June 30, 2014). 
Implementation of the RMP Regulations requires daily effort from employers and 

employees. And the vast majority of employers and employees do an excellent job in this 

regard. Unfortunately, a few tragic incidents have occurred when there was a failure to 

implement existing RMP requirements. OSHA recently illustrated this fact itself in its own PSM 

RFI, noting certain facilities allegedly: 

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

program....” 

(2) “fail[ed] to properly implement mechanical integrity, training, and standard 

operating procedures....” and 

(3) “failed to properly implement its PSM program . . . .”15

Each of these alleged failures resulted in catastrophic incidents but as the evidence 

presented shows and our members confirm, these incidents were not caused by deficiencies in 

the PSM Standard. Rather, they were caused by the failure of individual employers to properly 

implement that standard. This indicates that both the PSM Standard and RMP Regulations are 

adequate as written; i.e., when the RMP Regulations are implemented correctly, they are 

effective. 

The RMP rule was promulgated in June 1996. EPA has not conducted a comprehensive 

study of all of the major incidents since June 1996 to assess whether any element or component 

of the RMP rule, when properly implemented, still permitted a catastrophic incident to occur. 

Without such a study, EPA does not know if there is a root cause for any potential weakness or 

 

15 Process Safety Management and Prevention of Major Chemical Accidents, 78 Fed. Reg. 73756, 757 (Dec. 

9, 2013). 
deficiency in the RMP Rule. In turn EPA does not know what changes will actual solve the 

underlying problem of incidents occurring and improve process safety. Without such a study, 

EPA has no engineering framework or design philosophy by which to restructure and improve 

the RMP rule. 

In the RFI, EPA has discussed a very small number of unrelated incidents and developed 

19 areas of concern that in many cases are entirely unrelated to these incidents. From this 

statistically insignificant number of incidents, EPA has then extrapolated that all facilities need 

significant additional regulation. This extrapolation is a complete disconnect from the 

indisputable fact that the vast majority of facilities are safe and have no need for additional 

regulation. Finally, the RFI focuses greatly on the West Fertilizer incident. West Fertilizer is an 

extreme outlier in that it did not comply with a multitude of regulatory requirements and no 

matter how many regulations EPA, OSHA or DHS should promulgate there may be companies 

that disregard the law. In lieu of adding regulatory requirements on good companies that make 

their best efforts to ensure a safe work place, EPA should focus its efforts on enforcing current 

regulations at companies like West Fertilizer. 

EPA has not provided any reason or factual basis for why the RMP Regulations should 

be revised. Section 6(c) of the Order directs EPA and OSHA to review their regulations and 

“determine if the RMP or PSM can and should be expanded to address additional regulated 

substances and types of hazards.” Section 6(e)(ii) directs the Secretary of Labor to “issue a 

Request for Information designed to identify issues related to modernization of the PSM 

Standard and related standards necessary to meet the goal of preventing major chemical 
accidents.” There’s no directive in the Executive Order for EPA to “modernize” RMP 

indicative that the President intended for OSHA to lead the process and EPA was to follow suit 

through harmonization. 

Nor is there any data suggesting that the suggested changes will be effective in reducing 

the risk of specific causative circumstances or events. Rather, it appears that the current proposal 

is driven by a political desire to be seen as taking action in response to the recent tragic events, 

such as those that occurred in West, Texas. But making changes for the sake of making changes 

will not enhance process safety. Before EPA requires industry to undertake the extensive costs, 

both capital and training, associated with many of the suggested changes, the Agency must 

demonstrate the need for the changes. Without a clear demonstration by EPA that the current 

RMP Regulations are deficient and that the suggested changes will address any perceived 

deficiencies, AFPM cannot support this proposal. 

The Petroleum Refining industry has strong safety and health programs.

In two instances of the RFI, EPA asserts that petroleum refineries are “high-risk 

facilities” and may warrant additional regulation. AFPM disputes this characterization. Our 

members have had a long and strong commitment to safety and health of its employees and to 

the environment which has continuously improved and for which we have objective data to 

demonstrate it. 
According to the 2012 Bureau of Labor Statistics (BLS),16 the total recordable incident 

rate for the manufacturing sector as a whole is 3.9 job-related injuries and illnesses per 100 

fulltime employees. The 2012 AFPM Occupational Injury & Illness Report total recordable 

incident rate for both company employees and onsite contractors working at petroleum refining 

facilities was 0.5 incidents per 100 full time employees. Out of these recordable incidents, 79% 

of injuries were so minor that the worker returned to work immediately. 

The chart below compares injury and illness rates for all employers and contractors in 

petroleum refining with all of the major sectors of the US economy. 

 

16 BLS rates are based on a sample rather a census of the entire population and do not include contractor 

injury & illnesses numbers in their calculations. The AFPM data is a census of AFPM member companies and 

contains approximately 97% of the US refining capacity and includes a majority of those site’s contractor numbers 

as well. 

5

3.9 3.6

4.6

0.9

6.9

1.5

0

1

2

3

4

5

6

7

8

Incidence Rate per 100 Full Time Employees

Industry Sector

Comparison of BLS Rates for Petroleum Refining

to that of other U.S. Sectors: 2012
As the BLS data makes clear, the petroleum refining sector has the lowest incident rate of all of 

the sectors in the economy and reflects the implementation of strong safety and health programs 

at these refineries.

Over the last twenty-five years, AFPM members have continually reduced both the 

frequency and severity of the occupational injury and illness within their refineries. The chart 

below shows that over the last twenty-five years, fatalities, total recordable injuries and 

restrictive duty injury rates have continually declined each year. In 1988, the fatality/days away 

rate was 1.6 per 100 full time employees and by 2013, it was 0.2 per 100 full time employees. 

This is an 87% reduction. 

7.6

6.7

6.2

5.5

4.4 4.2

3.7

3 3

2.6

2.2 2.2

1.8 1.8 1.6 1.5 1.2 1.1 0.9 0.9 0.8 0.9 0.8 0.8 0.60.7

2.6

2.1 2.2

1.8 1.5 1.5 1.3 1.1 1.1 0.9 1 0.9 0.8 0.6 0.6 0.5 0.5 0.4 0.5 0.5 0.4 0.30.30

1.6 1.5 1.3 1.3 1 1 0.8 0.6 0.6 0.6 0.5 0.6 0.4 0.4 0.4 0.4 0.3 0.3 0.2 0.3 0.2 0.2 0.3 0.2 0.20.20

19881989199019911992199319941995199619971998199920002001200220032004200520062007200820092010201120122013

Injury & Illness Incident Rates per 100 Full Time

Employees‐ AFPM Petroleum Refining Members

Total Recordable Incident Rate Days away, Restricted, or Transfer Rate

Fatality and Days Away Rate
No serious injuries or fatalities are acceptable, and industry continuously works to 

minimize the risk of serious injuries at refineries. BLS data indicates refining businesses have 

been reducing the risk of all injuries – including serious injuries and fatalities – for the last 20 

years. Based on 2012 AFPM data, the petroleum refining sector suffered 0.0042 fatalities per 

every 100 full-time employees. The AFPM data indicates the petroleum refining sector rate is 

lower than the fatality rates for wood product manufacturing, taxi and limousine services, waste 

collection services, and postal service to name a few. It is safer to work in a refinery than to 

drive a cab, or to deliver the mail. 

Given the data in these two charts, it is a mischaracterization to call out petroleum 

refineries as “high-risk facilities” and the assertion that they may require additional regulations is 

unwarranted.17

To the extent EPA decides to move forward with a notice of proposed rulemaking in the 

absence of a factual finding that the current RMP/PSM regulations are deficient, AFPM makes 

the following comments: 

I. “Combustible Dusts” and “Reactives” should not be added to the regulated 

substance list because of the inherent vagueness of those terms. EPA should focus 

its efforts on specific dusts and reactive compounds, as well as their risk factors, not 

general categories. 

In its request on updating the list of regulated substances, EPA asks whether other 

categories of substances such as “combustible dusts” should be added to its coverage provisions. 

 

17 Occupational Injury & Illness data is one metric used in accordance with OSHA’s Recordkeeping Standard 

29 CFR 1904 to benchmark safety at workplaces. The downward trend is indicative of an industry that has a strong 

management commitment to safety and health and strives for a culture of continuous improvement. The injury and 

illness data measures the rate individuals are injured and while it doesn’t measure all process safety upsets, it does 

record all injuries resulting from a process safety upset and all occupational injuries. 
“Combustible dusts” should not be added in part because of the inherent vagueness of the term. 

In other words, the issues are complex enough that EPA should identify specific dusts of concern 

and engage in separate rulemaking to address those individualized concerns. Should EPA 

choose to include specific dusts, AFPM would argue for excluding petroleum coke dust based on 

its physical and chemical attributes, the historical absence of an explosive incident involving 

petroleum coke dust and the Congressional Research Service’s characterization of petroleum 

coke as “essentially inert.”18

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

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

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

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

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

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

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

conditions. Even how much dust is a hazard is still unknown.”19

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

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

resisted OSHA’s effort to adopt classification criteria for combustible dust, since this is not an 

 

18 Andrews, Anthony. and Richard K. Lattanzio, Cong. Research Serv., R43263, Petroleum Coke: Industry 

and Environmental Issues (October 29, 2013) at 8. 

19 Dust: When a Nuisance Becomes Deadly, NFPA Journal, Nov/Dec 2008 at 58. 
inherent hazard but only a consequence of the particular form of the material, particularly related 

to particle size. While OSHA has unilaterally applied hazard communication requirements to 

dust that may be combustible, it decided to bypass adoption of a definition of “combustible dust” 

altogether.20 OSHA is continuing to evaluate combustible dust and is even considering 

rulemaking.21 While OSHA does that, EPA should postpone further consideration of adding 

combustible dust to the list of regulated substances. 

For a dust to combust, there are five factors that must occur simultaneously and they 

commonly known as the “Explosion Pentagon.” These factors are the fuel being dust, an 

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

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

regulations address two of the five factors that make the dust combustible. OSHA regulates 

housekeeping practices in a workplace.22 The Occupational Safety and Health Review 

Commission, construing this housekeeping standard, held that it extends to “combustible dust” in 

the workplace.23 Several other Courts of Appeal have reached the same interpretation that 

OSHA’s Housekeeping Standard applies to “combustible dust.”24 Proper housekeeping will 

 

20 Hazard Communication, 77 Fed. Reg. 17574, 17705 (Mar. 26, 2012). 

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

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

entType=pdf. 

22 29 CFR 1910.22(a)(1) which states that “all places of employment, passageways and storerooms and 

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

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

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

(“[w]e agree that the housekeeping standard is not limited to tripping and falling hazards but may be applied to the 
eliminate the fuel from the workplace. OSHA also regulates ignition sources in the workplace. 

1910.307(c) requires that “equipment, wiring methods and installations of equipment in 

hazardous locations . . . shall be intrinsically safe or approved for the hazardous location . . . .” 

Other standards require that hot work permits for welding, cutting and brazing are issued, that 

equipment and machinery be properly grounded, that power hand tools be UL listed and double 

insulated, and that forklifts be rated for their use in hazardous locations. Adhering to these 

OSHA standards, the second factor in the Explosion Pentagon, ignition source, has been 

eliminated. OSHA standards adequately address the potential hazards of dusts that can be 

combustible under certain circumstances and there is no need for EPA to issue additional 

regulations. 

In order for a dust to present a combustion hazard, certain conditions must be met, 

confinement being one of the conditions. The equipment to process petroleum coke is located 

out in the open subject to wind and rain and do not present a risk of confinement. In addition, 

petroleum coke dust is saturated with water during the removal process making it highly unlikely 

that it will disperse and create a potentially explosive cloud. Furthermore, the particle size of 

petroleum coke dust is one to two orders of magnitude larger than other more well documented 

combustible dust hazards. Finally, in surveying our members and the available literature, we 

were unable to identify a combustible dust explosion resulting from petroleum coke. AFPM 

strongly urges EPA to avoid crafting a regulation around inherently vague terms such as 

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

831, 834 (5th Cir. 1981). 
combustible dusts, particularly dusts like petroleum coke dusts that present no known hazards. 

In other words, the issues are complex enough that EPA should identify specific dusts of concern 

and engage in separate rulemaking to address those individualized concerns. 

AFPM also objects to expanding the RMP Rule to cover to “reactive substances and 

reactivity hazards” because of the inherent vagueness of these terms. “Reactivity” is chemical 

and process specific and is far too complex to be effectively regulated within a narrow, 

prescriptive national rule. In the initial rulemaking for the RMP, EPA recognized the technical 

complexity of this issue and concluded that it was infeasible to write a single national rule for all 

processes.25 This technical complexity persists to the present. As a preliminary point, all 

chemical compounds can be characterized as reactive chemicals because all are formed by the 

reaction of two or more chemical elements and/or chemical compounds. In addition, the hazard 

presented by a given chemical’s reactivity is a function of the operating conditions under which 

the reaction is taking place. 

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

functional groups that New Jersey listed in its Toxic Catastrophe Prevention Act (TCPA).26 

AFPM members do not support this approach because it fails to address the problem 

acknowledged by the Agency, such an approach does not “take into account process- and site-

 

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

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

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

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

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

26 New Jersey Toxic Catastrophe Prevention Act, N.J. Admin. Code § 7:31 6.3. 
specific factors, which can vary widely.”27 Furthermore the Clean Air Act Amendments require 

EPA to consider:28

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

releases of the substance 

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

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

substance 

New Jersey is not required to consider these factors, making their program inconsistent 

and inadequate for a national RMP regulation. Since the Agency has not considered these 

factors either, it cannot simply delegate this task to the New Jersey legislature. 

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

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

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

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

Lastly, there is inherent vagueness in the phrases “Unstable (Reactive) Solids and Liquids”29 and 

“Water-Reactive Solids and Liquids”30 in NFPA 400. 

In summation, “reactivity” is a broad and, consequently, vague concept upon which to 

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

compounds as the Clean Air Act Amendments require and not defer to state legislators who may 

 

27 79 Fed. Reg. at 44611. 

28 42 U.S.C. §7412(r)(4). 

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

30 Id. Chapter 20, at 81. 
not possess the level of knowledge maintained by EPA. Upon completion of the assessment, the 

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

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

systems in the workplace. 

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

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

existing management systems already implemented at many workplaces, including at AFPM’s 

members’ facilities, are deficient in any way. In addition, the Agency does not analyze or 

describe the specific benefits of requiring industry to supplement the already existing 

management systems with those outlined in the RFI. 

More importantly, requiring additional management system elements would undermine 

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

performance standard to allow a broad range of methods to comply, because it was recognized 

that certain safety practices or management systems may work at one facility but provide no real 

benefit at another. Each production facility is unique. EPA’s proposal to revise the RMP 

Regulations in this manner contradicts this purpose and would burden many facilities without 

any real benefit. To this point, there is no ideal or perfect management system that will eliminate 

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

employer. 

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

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

work authority, an ultimate work authority and an employee participation plan. EPA’s 
suggestion inappropriately adopts more unnecessary government regulation without any 

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

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

the right to refuse work in light of a hazardous condition that could cause serious bodily injury or 

death.31 Employers already have a statutory duty to maintain a safe workplace, which is ultimate 

work authority.32 Moreover, the RMP Regulations already include a requirement for a written 

employee participation plan.33

Additionally, regulating job hazard analysis is an OSHA function, and Executive Order 

13650 calls for avoiding duplication in implementing chemical safety programs. OSHA has 

extensive rules to address job hazards such as regulations governing personal protective 

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

respirators and hearing conservation.34

In the RFI, EPA asked whether the RMP regulation should be modified to add safety 

requirements for contractors. This question overlooks the excellent contractor safety programs 

that are already in place and the extensive OSHA regulations which apply to both contractors 

 

31 See 29 C.F.R. § 1977.12(b)(2). 

32 See 29 USC § 654(a)(1). 

33 40 C.F.R. § 68.175(m) 

34 See 29 C.F.R. § 1910.132 (personal protective equipment), 29 C.F.R. § 1910.119(f) (standard operating 

procedures under PSM), 29 C.F.R. § 1910.252(a)(2)(iv) (hot work permits requirement), 29 C.F.R. § 1910.146 

(confined space entry), 29 C.F.R. § 1910.134 (for respirator requirements), 29 C.F.R. § 1910.95 (occupational noise 

exposure). 
and host employers and which assure that the contractors are safe. There is no need for 

additional regulation. 

AFPM members have well developed and effective contractor programs. Each potential 

contractor has to successfully complete the pre-qualification process. This involves a detailed 

review of the contractor’s expertise, its safe work practices and procedures, and its proven safety 

and health performance with objective data. Once the contractor has proven that he can work 

safely and effectively, he receives site specific orientation concerning the hazards in the 

workplace, the evacuation route and the contract requirement that he must adhere to all of the 

facility’s safety and health requirements. Contractor employees who violate these rules will be 

subject to discipline which could range from additional training to time off without pay to 

termination of the entire contract. 

OSHA’s regulations address all of the hazards to which any contractor may be exposed at 

a facility. The PSM Standard requires the host employer to review the safety and health 

performance of the contractor and to train the contractor in the hazards of the process and in the 

emergency response plan.35 In addition, the PSM Standard requires the host employer to develop 

safe work practices for the contractor and to periodically evaluate its performance.36 As the 

work places change through Process Hazard Analyses (PHAs), MOCs and incident reports, there 

is a continuing obligation to notify and train contractor employees. 

 

35 See 29 C.F.R. § 1910.119(h)(2)(ii), (h)(2)(v). 

36 See 29 C.F.R. § 1910.119(h)(2)(ii), (h)(2)(iv). 
In addition to the requirements in the PSM Standard for contractor safety, OSHA’s 

standards are designed around specific hazards and if an employee is exposed to that hazard, then 

his employer must comply with that standard. In this regard, there is no difference between host 

employers and contractor employers. Employers have an OSHA requirement to provide a safe 

workplace and work that is free from recognized hazards and the list of OSHA safety and health 

standards is extensive. OSHA requires employers to inform and train their employees on the 

hazards of the chemicals with which they work, to isolate hazardous energy prior to starting 

work, to eliminate hazards prior to entering a confined space, to provide proper personnel 

protective equipment and to train on its proper use and to remove ignition sources from the work 

place.37 Lastly, OSHA has issued a multi-employer policy which requires host employers to 

among other things monitor the safety and health compliance of contractor employees.38 Saying 

it another way, host employers have two requirements to audit contractors. One is in the 

RMP/PSM regulation to evaluate the contractor’s safety performance under the RMP/PSM 

regulation and the other is in the multi-employer adherence to general safety and health 

requirements. 

The Agency has also requested comments on whether PHA and hazard review 

requirements should be clarified or expanded to require that specific scenarios, such as natural 

 

37 See 29 C.F.R. § 1910.1200 (hazard communication standard), 29 C.F.R. § 1910.147 (lock-out/tag-out 

standard), 29 C.F.R. § 1910.146 (confined space entry), 29 C.F.R. § 1910.132 (personal protective equipment), 29 

C.F.R. § 1910.252 (fire prevention and protection). 

38 See, e.g., April 29, 2013 Richard Fairfax Memorandum re: Protecting the Safety and Health of Temporary 

Workers, available at: 

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28613. 
disasters or power outages, be considered. AFPM believes that it is not necessary or helpful to 

require that specific scenarios be analyzed; rather, the PHA should consider a range of potential 

conditions that could affect the process. AFPM believes existing regulations are clear and that 

the current industry practices fully comply with the regulation as understood by the plain 

meaning of the text. In Section 68.67(b) that addresses PHAs, it is written: “The owner or 

operator shall use one or more of the following methodologies that are appropriate to determine 

and evaluate the hazards of the process being analyzed.” The hazards in question are hazards in 

the process, i.e. hazards associated with and internal to the process itself. Therefore analysis of 

natural disasters and vehicle collisions would not normally be required of all PHAs. 

It is not the natural disaster or vehicle collision that should be analyzed. Rather it is the 

accompanying effect that should be analyzed and is in fact done. For example, with a natural 

disaster one could envision a loss of utilities, a loss of raw material supply, or a loss of control 

system power. PHAs already address these scenarios and discuss the appropriate safeguards, 

although they may not specify whether the power loss results from a hurricane or a problem with 

the electrical provider. There is no need to create a redundant node that asks “What if the facility 

is struck by lightning that causes a subsequent power outage?” The Agency appears to be ready 

to regulate the methodology, keywords and nodes of a PHA and moving RMP away from a 

performance based regulation. Such a prescriptive approach will not have the desired effect. 

AFPM stresses that our members are dedicated to continuous improvement through the 

current RMP Regulations that already require the review of changes, incidents, operating 

procedures, periodic inspections, audits, and PHAs, all of which require continuous review, 
evaluation and improvement. AFPM’s members, however, do not believe in a blanket-expansion 

of the RMP Regulations to require additional management-system elements. To this point, 

AFPM’s members do not believe that expanding the scope of existing RMP Regulation-system 

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

III. Defining RAGAGEP is unnecessary and mandatory evaluations of updates to 

RAGAGEP provide no additional safety benefits and would pose an unwarranted 

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

In its request for information, the Agency has asked what definition for Recognized and 

Generally Accepted Good Engineering Practice (RAGAGEP) do our members utilize? AFPM 

members agree RAGAGEP should not be defined as narrowly as the following: 

“Recognized And Generally Accepted Good Engineering Practices” 

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

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

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

generally approved ways to perform specific engineering, inspection or 

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

tank, or servicing a relief valve. 

This definition, which originates from Center for Chemical Process Safety (CCPSs) 

Guidelines for Mechanical Integrity Systems and was used in OSHA’s Petroleum Refinery NEP 

directive (CPL 03-00-010), is incorrect. There are two errors with the definition of RAGAGEP. 

First RAGAGEP is not a finite, static collection of engineering principles which have been 

completely and definitively explained in written codes and standards. Rather, codes and 

standards are simply a subset of all of the principles which make up RAGAGEP. Second the 

CCPS definition of RAGAGEP fails to include internal standards created by on-site engineers 

with specific experience at the worksite in question. In other words, this narrow definition fails 
to recognize that all “established codes, standards, published technical reports or recommended 

practices” originated from the individual practices of individual employers at their individual 

sites. RAGAGEP is not based on established codes, standards, etc. as the above definition 

asserts; codes and standards are based upon RAGAGEP. It is industry-created engineering 

practices that inform and shape industry-accepted standards. Certainly, codes and standards may 

function as RAGAGEP but they are not the source of RAGAGEP. In short, RAGAGEP has 

three fundamental characteristics: (1) proven safe and effective, (2) based on science, judgment 

and experience and (3) is created and defined by engineers. Therefore, any definition of 

RAGAGEP must be broad enough to include all the safe engineering practices currently being 

utilized by industry, specifically including the internal standards formed and implemented by 

employers. 

EPA also asks “[f]rom what sources (e.g., codes, standards, published technical reports, 

guidelines, etc.) does your facility select applicable RAGAGEP for operations covered under the 

PSM standard?” Our members make use of several sources of RAGAGEP during the initial 

design of process units. These may include relevant published codes from organizations such as 

API, ASTM, ANSI, ASME and NFPA, when applicable. In this request for information, EPA 

seems to be suggesting that our members should re-evaluate initial designs of process units to 

ensure the original design and installation conforms to updated published codes. This 

requirement would impose an extraordinary cost without any demonstrated benefit. As of March 

2014, the current catalog of API publications is 206 pages long and includes a listing of 
“Publications by Number” that is 23 pages.39 ASTM has published approximately 12,000 

technical standards “covering the procedures for testing and classification of materials of every 

sort.”40 Even ANSI41, ASME42 and NFPA43 publish a combined 1,478 standards. Many of these 

industry standards apply to the refining industry. The costs to review initial designs in order to 

ensure original designs meet all of these potential updates would be astronomical. 

This extraordinary cost must be compared to the marginal benefits expected by 

implementing the proposed change. EPA seems to be working under the false premise that just 

because a consensus standard is re-published or updated, the older version is no longer adequate 

to protect the safety of employees. This line of reasoning is equivalent to arguing that the release 

of a new, 2015 car model renders the 2014 model unsafe and that all 2014 models should now be 

recalled. In this sense, EPA needs to clarify the cost/benefit analysis of requiring all employers 

to evaluate all updates to RAGAGEP; without any additional information, it appears the costs 

vastly outweigh the benefits. 

 

39 American Petroleum Institute’s Publications, Programs and Services (2014), available at 

http://www.api.org/~/media/Files/Publications/Catalog/Final-catalog.pdf. 

40 American National Standards Institute eStandards Store, available at 

http://webstore.ansi.org/SdoInfo.aspx?sdoid=41. 

41 American National Standards Institute eStandards Store, available at 

http://webstore.ansi.org/FindStandards.aspx?Action=displaydept&DeptID=30&Acro=ANSI&DpName=ANSI%20O

ther. (listing 166 Standards). 

42 American Society of Mechanical Engineers, available at https://www.asme.org/shop/standards#page=1 

(listing 946 Standards). 

43 National Fire Protection Association, available at http://www.nfpa.org/codes-and-standards/documentinformation-pages (listing 366 Standards). 
IV. Mandating expansions of mechanical integrity programs to “safety critical 

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

benefit. 

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

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

so, what type(s) of equipment?” AFPM members would argue mechanical integrity provisions 

should not be expanded to cover all safety critical process equipment for the very reason that the 

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

There is no general consensus among our membership as to what “safety critical equipment” 

consists of; rather, it is a highly site-specific, process-specific, and equipment-specific matter. 

For example, a flowmeter that may be absolutely critical to managing a particular process at one 

facility may be redundant instrumentation in another unit at the same facility. This fact was 

originally acknowledged by EPA when EPA stated it “believes the responsibility should be on 

the facility to develop a list, based on specific facility concerns.”44

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

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

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

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

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

 

44 58 Fed. Reg. at 54204 (discussing EPA’s maintenance requirements in a section by section comparison of 

the EPA Prevention Program and the OSHA Standard). 
Lacking this specificity, AFPM cannot support this proposed change. To the extent 

safety critical equipment could be construed to include instrumentation, software systems, and so 

forth, the mechanical integrity standard may be simply inappropriate or ineffective to address the 

specific design and maintenance needs of particular types of equipment. Further, not only has 

EPA not provided any data to justify the change, our members are very concerned the phrase 

“safety critical” will be misused in the enforcement process to justify post incident notices of 

violation. AFPM is therefore concerned that enforcement officials could take the position that 

any equipment failure that contributes to an incident will be interpreted as safety critical and 

cited as such. AFPM is equally concerned that a “but for” test will naturally evolve and EPA 

will use such a test as the basis for issuing a violation. 

The RFI also asks whether the Agency should require that certain types of covered 

facilities install emergency shutdown systems, such as redundant power supplies, emergency 

flares, vents, or scrubbers, etc., in order to prevent accidental releases resulting from 

uncontrolled emergency shutdowns. As stated previously, our members are very concerned that 

EPA is moving away from performance-based towards prescriptive-based regulations.45 EPA is 

not qualified to be the designer of all the relief systems for all facilities. Relief and flare studies 

have been done to size the relief system needed. They are complex, process specific and do not 

lend themselves to a single uniform rule from EPA. 

 

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

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

independent of any air emission regulations. However Title V of the CAAA already addresses these concerns. 
Ultimately elimination of all risk is unattainable and unrealistic. Even a process 

involving water can pose hazards. Managing and mitigating risk to an acceptable level is the 

goal and is a function of a risk analysis. As a consequence, our members do not limit their 

mechanical integrity programs to only those areas required by the RMP Regulations. There is no 

need to expand the scope of covered equipment beyond what is already presented in Sec. 68.73. 

The current list is both complete and adequate and EPA has not presented any evidence 

indicating the need to expand the list. 

V. Sufficient administrative guidance on organizational management of change already 

exists and there is no need to expand upon it as the Agency proposes. 

AFPM members are concerned that a revision to require organizational change MOCs to 

the RMP Regulations would inappropriately permit the insertion of the Agency’s decisionmaking into either the selection of corporate structure or personnel. The independent power to 

determine corporate structure and staff must remain exclusively with the employer. EPA’s 

proposal will likely open the door for second-guessing employers’ personnel decisions after the 

fact and effectively inhibit the employer’s ability to choose the employee that best fits the job. 

The selection of a unit manager and the development of maintenance budgets are not within the 

purview of EPA’s mandate or expertise. Furthermore, the association between these items and 

catastrophic incidents is tenuous at best. 

In addition, OSHA has already provided adequate administrative guidance on 

management of organizational change. In a March 31, 2009 OSHA Letter of Interpretation from 
former Directorate of Enforcement Programs, Richard Fairfax,46 OSHA explicitly addresses 

what types of changes would constitute “organizational changes:” “[s]ome organizational 

changes, such as changes resulting from mergers, acquisitions, reorganizations, staffing changes, 

or budget revisions, may affect PSM at the plant level and would therefore trigger a PSM MOC 

procedure.”47 Additional examples include “personnel changes, including changes in staffing 

levels, staff experience, or contracting out that directly impact PSM covered processes; and 

policy changes such as budget cutting that impact PSM covered processes.”48 This guidance is 

more than adequate and does not necessitate additional regulation in the RMP Regulations. 

Additional regulation is unnecessary and may prove counterproductive. 

VI. EPA has failed to demonstrate a need for third-party auditing; in fact, the evidence 

demonstrates that additional regulation in this area will only generate more 

problems, not solve them. 

EPA’s proposal to require third-party audits seems to be premised on an assumption that 

third parties are more capable, more credible, or more objective than a facility’s own employees. 

AFPM’s members disagree with these assumptions. Expanding requirements for compliance 

audits will not compensate for, nor drive better behavior regarding the existing requirements to 

perform compliance audits already codified within the RMP Regulations. 

In our members’ experience the real experts on a facility’s processes, equipment, and 

hazards are the company’s own employees. The employers know the skills, experience, and 

 

46 See Management of Organizational Change, Memorandum for Regional Administrators (March 31, 2009) 

available at

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

47 Id. 

48 Id. 
training of their employees and select the appropriate employees to serve on the audit team. The 

selected employees should be the linchpin of any valid auditing process. Second, many auditors 

are knowledgeable in the elements of the PSM Standard; however, given the wide range of the 

covered processes, there are very few third-party auditors who possess sufficient expertise in 

those processes. Third, the problem is not with the audit but, rather the failure to implement 

many audit findings, therefore requiring additional audits will not actually accomplish EPA’s 

goal. Last, as OSHA’s NEP enforcement data demonstrates, the vast majority of employers have 

complied with the PSM auditing requirements. 

It goes without saying that employees know their facilities best and have the greatest 

vested interest in identifying safety issues at their worksite. It is the employees who are trained 

on the proper use of the equipment, develop the procedures that govern the processes, and are 

most familiar with the areas needing improvement. And, it is the employees’ own jobsite that is 

made safer by a well conducted audit. 

Moreover, as OSHA has noted, it is not enough that the auditor be familiar with the 14 

elements of a PSM program.49 To be truly effective, the auditor must know the process being 

audited, which is why paragraph (o)(2) requires the compliance audit “be conducted by at least 

one person knowledgeable in the process.”50 There is, quite frankly, a dearth of qualified thirdparty auditors with that level of specialized knowledge. Most third-party audits lack firsthand 

 

49 See generally 29 C.F.R. § 1910.119(o)(2). 

50 Id. 
knowledge regarding the subtleties of the processes at a facility, whereas our employee auditors 

have extensive firsthand knowledge of the processes being audited. 

OSHA’s RFI noted the CSB’s investigation of the 2005 Texas City incident and the fact 

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

accident.”51 The Texas City incident, while tragic, remains an outlier and is not illustrative of 

the industry as a whole. This conclusion is supported by data from the Petroleum Refinery 

Process Safety Management National Emphasis Program (NEP).52 Of the 1088 alleged 

violations of the PSM Standard issued during the Refinery NEP, less than 5 percent involved 

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

implement audit findings, rather than deficiencies in the audit process itself. After some 

discussions with employers, OSHA withdrew many of these citations and a result, the actual 

level of compliance is superior to what the statistics suggest. We further contend that expanding 

requirements for compliance audits will not compensate for, nor drive better behavior regarding, 

the existing requirements to perform compliance audits already codified within the RMP 

regulations. 

AFPM members additionally note that EPA has failed to offer any evidence that 

employers who perform third-party audits comply better with the PSM Standard or have fewer 

incidents than those that do not. The proposed changes seem to indicate that EPA fundamentally 

misunderstands the purpose behind a RMP/PSM audit. 

 

51 78 Fed. Reg. at 73762. 

52 Data received via FOIA request and compiled internally. 
In the RFI, EPA has asked whether “EPA clarify Sec. 68.58 and Sec. 68.79 to explicitly 

indicate that all covered processes must receive a full compliance audit at least every three 

years?” Conducting a full audit of all covered processes will result in an enormous waste of 

time, resources, and capital. The regulation contemplates a system audit and statistically valid 

sampling will provide the relevant information concerning any deficiency in the system and the 

means to effectively correct them. 

EPA should not implement any changes to §§ 68.58 and 68.79. Third-party audits should 

not be mandated, as employees are the real experts of the processes at their facilities and there is 

a dearth of qualified third-party auditors who possess sufficient expertise in these processes. Nor 

will compliance improve solely because an audit is performed by an external third-party auditor. 

As the example presented by OSHA and the NEP enforcement initiative indicates, the problem 

lies not with the auditors, but with the post-audit implementation. 

VII. EPA should not mandate chemical substitution or process changes as it would likely 

create unintended consequences such as moving the risk from one point in the 

process to another. 

Inherently Safer Technology (IST) is an engineering concept with a complex framework 

that seeks to reduce hazards and manage risks of a chemical process. IST is an operation and 

site-specific evaluation based on engineering judgment considering many variables including 

hazards, location, surrounding populations, exposures, technical feasibility, and economic 

feasibility. IST may be better thought of as a philosophical approach to the design and 

operational life cycle including manufacture, transport, storage, use, and disposal. IST is not a 

specific chemical compound or a collection of technologies that can be readily substituted into a 
given process as each case is unique. From case to case, the results will vary. In short, IST is a 

design philosophy. For these reasons, regulating IST is infeasible because there is no one-sizefits-all answer when it comes to managing risk. 

What makes IST particularly complex is that there is no simple way to measure whether 

one process is safer than another. As an example, a facility may receive a chlorine shipment by 

railcar. It may be suggested that having large quantities of chlorine on site presents an 

unnecessary risk and tank truck delivery would lower that risk. However, even though the tank 

truck contains less chlorine than the railcar, the frequency of connecting and disconnecting the 

stored chlorine to the process would increase, thus increasing the risk of a release. Although the 

worst case release scenario associated with the tank truck would possibly present a lesser 

consequence, because the primary risk of release occurs when the process is connected and 

disconnected to the chlorine supply, the railcar delivery would be the inherently safer technology 

between the two options. To a downwind community though, the delivery by tank truck may be 

perceived as the inherently safer choice. 

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

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

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

nonhazardous compounds in the marketplace. Yet its improper storage can result in a high 

consequence event even though in and of itself, it is not particularly hazardous. 

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

process without regard to the processes themselves. This approach incorrectly simplifies the IST 
process and disregards the other potential risks present throughout the life cycle of the product. 

For example a “safer” compound may require additional processing steps potentially increasing 

the overall risk of a release. 

In a report put out Sandia National Labs, IST was defined as follows: 

“Inherently Safer Technology (IST), also known as Inherently Safer Design 

(ISD), permanently eliminates or reduces hazards to avoid or reduce the 

consequences of incidents. IST is a philosophy, applied to the design and 

operation life cycle, including manufacture, transport, storage, use, and disposal. 

IST is an iterative process that considers such options, including eliminating a 

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

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

or consequences of, human error, equipment failure, or intentional harm. Overall 

safe design and operation options cover a spectrum from inherent through passive, 

active and procedural risk management strategies. There is no clear boundary 

between IST and other strategies. 

ISTs are relative: A technology can only be described as inherently safer when 

compared to a different technology, including a description of the hazard or set of 

hazards being considered, their location, and the potentially affected population. 

A technology may be inherently safer than another with respect to some hazards 

but inherently less safe with respect to others, and may not be safe enough to meet 

societal expectations. 

ISTs are based on an informed decision process: Because an option may be 

inherently safer with regard to some hazards and inherently less safe with regard 

to others, decisions about the optimum strategy for managing risks from all 

hazards are required. The decision process must consider the entire life cycle, the 

full spectrum of hazards and risks, and the potential for transfer of risk from one 

impacted population to another. Technical and economic feasibility of options 

must also be considered.”53 (emphasis added) 

 

53 Inherently Safer Technology Gaps Analysis Study, Sandia Report (SAND2012-6350) (August 2013) at 9. 
It should also be noted that there is no data from New Jersey, Contra Costa County or any 

other jurisdiction requiring an IST analysis that supports the proposition that an IST analysis 

provides any measurable benefit or has reduced the frequency or severity of incidents. 

Furthermore, creating an IST requirement for businesses in the name of national security 

could actually hinder security by simply shifting risks and creating other supply chain 

vulnerability points. For example, reducing the volume of a hazardous chemical stored at a 

facility may reduce on-site risk, but increase truck, rail, or barge traffic into the facility in order 

to maintain sufficient quantities of materials, thereby potentially increasing overall risk. In 

focusing solely on potential offsite consequences, IST mandates could divert resources from 

other critical security concerns such as material theft, product contamination, or infrastructure 

damage. Also, companies assess risks and protection from such risks on a site-by-site basis. A 

one-size-fits-all IST approach could hamper the development of necessary site-specific security 

measures. 

EPA should reject calls to mandate IST just as it did in 1996.54 The Agency’s initial 

conclusion was correct: “Although some existing processes may be superficially judged to be 

inherently less safe than other processes, EPA believes these processes can be safely operated 

through management and control of the hazards without spending resources searching for 

unavailable or unaffordable new process technologies.”55

 

54 61 Fed. Reg. at 31699 (“EPA has decided not to mandate inherently safer technology analyses. 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.”). 

55 Id. at 31700. 
VIII. Emergency drills are already being conducted but that does not mean the drills 

themselves should be regulated. 

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

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

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

ensure that facility personnel have practice responding to accidental releases. AFPM members 

support the use of drills, but believe attempting to regulate the when, who, where and what of a 

drill would be a prescriptive approach which could thwart the current practices for drilling. 

Our members already conduct extensive drills but as any of our members will note, a 

good drill program looks at different variables at differing times. Some of our drills are “table 

top” drills while others involve deployment of emergency response personnel. Certain drills test 

the response to a loss of containment while others test site security in response to potential 

terrorist activity. 

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

development of a useful and effective rule, our members recommend EPA not attempt to 

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

scenarios should be considered for the exercise/drill program. Rather, EPA should allow 

industry the same flexibility it has under the Oil Pollution Act of 1990. In response to that 

legislation, industry developed the National Preparedness for Response Exercise Program 

(PREP) to “provide a mechanism for compliance with the exercise requirements, while being 

economically feasible for the government and oil industry to adopt and sustain.” The PREP 

program includes internal and external exercises, emergency procedure exercises, spill 
management team tabletop exercises, and equipment deployment exercises. All of these drill 

elements were developed and are being carried out without prescriptive regulation. 

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

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

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

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

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

situations with certain chemical compounds. Unfortunately, the chemical monitoring technology 

is not fully developed. In fact it is uncertain whether reliable automated detection and 

monitoring technology exists for all regulated substances. 

In theory, the sooner a release is detected, the quicker the emergency response can occur. 

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

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

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

conditions in geographical areas where our members operate. Moreover, the preventive 

maintenance to ensure the calibration and reliability of the monitors is enormous. 

Even a well-maintained monitoring program has limitations. The sensors within the 

monitors are cross sensitive to many other substances which will result in alarms for nonregulated substances. A release at one facility could activate a downwind monitor directing the 

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

highly dependent on ambient conditions as well as the local surroundings. Our members report 
that occasionally, their area hydrocarbon monitors are activated by hydrocarbons resulting from 

an offsite release from an adjacent facility. 

In these cases, if EPA were to require “an automated mechanism to notify, alert and warn 

the local responders and surrounding public of an incident” false alarms could delay the 

emergency response to the actual release point and inadvertently increase the risk to the 

surrounding community. This practice is for an experienced employee to investigate each alarm 

to confirm and assess it. The investigation determines whether it is a false alarm, a miniscule 

leak or one requiring an immediate response. The key here is the use of judgment to assess the 

significance of each alarm. Without that assessment, the community will receive notifications 

about harmless events and undermine their confidence in the notification process. 

Lastly the resources for a reliable preventative maintenance program for the monitors 

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

routinely verified and recalibrated. Depending on the number of monitors a facility is required to 

install, new personnel would have to be hired and trained just to perform the calibration checks. 

This section in the RFI places too much emphasis on automatic detection and monitoring. 

There are many tools currently used to detect and monitor for potential releases. They include 

area monitoring, hand held monitors, small monitors attached to an employee’s shirt, security 

cameras which operate continuously, infrared cameras and good work practices in which 

personnel have been trained to look and listen for releases and to be aware of specific odors. All 

of these types of detection and monitoring techniques have been developed based on the nature 

of the hazardous materials, the site specific equipment and process. 
Automated detection and monitoring may occasionally be a useful tool but as mentioned 

earlier it is only one tool in the toolbox with many options for identifying and controlling a 

release. 

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

criteria within a facility. 

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

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

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

owner. In Lucas v. South Carolina Coastal Council,56 David Lucas purchased two beach front 

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

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

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

later, in 1988, the Beachfront Management Act was passed that prohibited Mr. Lucas from 

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

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

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

to leave his property economically idle, he has suffered a taking.”57 Here there are hundreds of 

refiners and chemical plants that have acquired land for expansion and a regulation that reduces 

 

56 505 U.S. 1003 (1992). 

57 Id. at 1019. 
the utility of that land will constitute a taking. In other instances, the buffer zone could impact 

lands that are not owned by the regulated facility. 

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

expansion of existing facilities which will adversely impact the tax bases of local communities, 

an unnecessary intrusion into local government zoning ordinances. Requiring facilities to 

convert existing property into buffer or safety zones will have a negative impact on the local 

community’s tax base as these zones will be unproductive if set up beyond existing fence lines 

and will limit development and expansion of existing facilities if set up inside the fence line. 

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

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

processes with different chemicals in differing topographies with different public receptors and 

with varying amounts of available land upon which to expand. Such a prescriptive measure 

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

safety. 

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

its justification for seeking additional information concerning stationary source siting. The three 

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

December 1984 which was almost a decade before the advent of PSM and the RMP regulations 

and the requirements for siting. The Texas City incident involved trailers and in response 

industry issued API 753 which addresses the placement of trailers to prevent a similar 

recurrence. Current regulations and RAGAGEP have already addressed these two incidents. 
 West Fertilizer is an example that on very rare occasions a particular owner or operator will not 

follow existing regulations and aggressive enforcement against that owner operator is the 

appropriate regulatory response. 

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

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

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

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

mandate. 

EPA acknowledges the existence of several engineering guidance documents such as 

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

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

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

Portable Buildings, First Edition, June 2007. Industry guidance documents such as these assist 

industry in meeting the performance requirements of the RMP Regulations and no further 

regulation is needed or warranted in these particular areas. 

XI. Incident Investigation and Accident History Requirements. 

EPA is asking whether incident investigations should be expanded to require a root cause 

analysis for incidents, near misses and process upsets whether these analyses should be 

completed within a specific timeframe and what role the community should play in the 

investigation and in learning about the findings. EPA is also proposing a timeline for the 
completion of an incident investigation. The proposal overlooks the fact that facilities and 

incidents differ in complexity making a one size fits all approach incorrect. 

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

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

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

would be redundant to the requirements of 40 C.F.R. § 68.81(d)(4).58 If the latter, then our 

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

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

robust quantitative risk analysis. 

The purpose of the requirements for investigating incidents is to mandate that owners and 

operators conduct effective investigations and determine the contributing factors for an incident. 

This proposal in the RFI to require all facilities for all process incidents to use the root cause 

methodology will undercut this purpose and will result in ineffective incident investigations. For 

the last two decades owners and operators, using different methodologies, have trained 

employees to conduct incident investigations and have continually improved the quality of those 

investigations. By mandating the single method in which an incident investigation must be 

performed, all of the experience working with other methods would be lost and investigators 

would be forced to learn a new method called “root cause analysis.” The root cause analysis is 

one of many effective tools by which owners and operators conduct incident investigations. 

Requiring the use of a single methodology is a one-size-fits-all approach to incident investigation 

 

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

minimum: (4) The factors that contributed to the incident. 
and the range and complexity of incidents are simply too diverse for such a limited methodology. 

In fact, it was recognition of the limitations of individual methodologies that led to the 

development of additional methodologies. 

The magnitude and complexity of an incident determine the amount of time and the size 

of the team to conduct a proper investigation. A uniform rule for completing incident 

investigations will result in hastily performed investigations and prevent high quality effective 

investigations. For example, incident investigations of major incidents are frequently detailed 

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

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

development of protocols for gathering the samples correctly and preserving them and 

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

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

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

have their own expert present for the tests to be conducted. Finally, it may take days or weeks 

before it is determined a process, vessel or tank can be safely entered. All of these steps involve 

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

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

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

process and the engineering controls designed to ensure the safety of the process. Investigations 
of near misses are already required under 40 C.F.R. § 68.81(a).59 Process upsets on the other 

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

“catastrophic release of a regulated substance”. 

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

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

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

operations, and other applicable specialized areas of expertise all of which is necessary to have 

effective investigation. Many investigations require the examination of confidential or 

proprietary information to which only certain employees have access. Other incident 

investigations involve an examination of the security features of a facility which by law need to 

be safe guarded. Given all of this, an effective incident investigation process needs to be a 

closed internal process for each owner/operator. Section 68.81(f) of the RMP Rule reflects that 

requiring that incident reports be reviewed with only affected personnel. 

AFPM believes the existing regulations are sufficient to meet the performance aspect of 

the RMP regulations and no further regulatory guidance is needed with respect to incident 

investigations. 

 

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

in a catastrophic release of a regulated substance.” 
XII. Identification of the worst case scenario fails to address the most likely hazards and 

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

environment. 

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

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

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

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

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

through pipelines. 

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

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

stability class, with the highest daily maximum temperature and that no active mitigation 

measures are considered. As a result, the worst case scenario presents an inaccurate 

representation of the potential consequences of a release. The RFI itself lacks a single example 

of a worst case scenario event occurring. Inaccurate representations of the worst case scenario 

do not further the goal of transparency or increase the community’s awareness of the realistic 

concerns of an adjacent facility. Moreover, they do not improve the protection of human life or 

the environment. As EPA acknowledged in the Preamble to the Final Rule, “the worst-case 

scenario is designed principally to support a dialogue between the source and the community on 
release prevention, and not to serve as the sole or primary basis for local emergency planning.”60 

The unrealistic consequences associated with worst case scenarios interfere with labor relations, 

harm community relationships, complicate facility permitting modifications, and fuel legal 

challenges to facility expansions. Given this, the current worst cases are more than adequate to 

initiate a dialogue with the community. 

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

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

effective discussions over worst case scenarios, a wide range of information needs to be shared. 

This will often include process chemistry, engineering controls, proprietary information, 

business confidential information and information about the security systems at the facilities 

covered by the CFATS regulations. Such information cannot be shared with competitors. 

Moreover, this proposal expands the definition of worst case scenario to assume multiple failure 

scenarios occurring simultaneously at two facilities. The likelihood of such concurrent failure 

scenarios along with all of the other assumptions incidental to a worst case scenario is extremely 

remote and will not produce any useful information. 

XIII. What is the purpose of the Public Disclosure of Information already available to the 

public? 

EPA is seeking public comment on additional steps the Agency could take to improve 

regulatory compliance through increased information disclosure to the public and local 

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

 

60 61 Fed. Reg. 31683. 
112(r)(7)(B)(iii),61 AFPM does not believe regulatory compliance will be improved via these 

proposed changes. Rather EPA should focus its efforts on the proper development and 

implementation of Local Emergency Planning Committees’ (LEPCs) plans. 

The Agency also asks whether disclosing compliance audits, PHA or incident 

investigation reports would improve emergency planning and response. In the Preamble to the 

Final Rule, EPA answered this question. 

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

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

management program information including PHAs and actual operating 

procedures. . . . 

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

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

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

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

proposed requirement that the RMP provide certain information about the risk 

management programs at a source. . . . 

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

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

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

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

meaningful judgments about the adequacy of the information.

62 (emphasis 

added) 

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

“high temperature” or “low temperature” and providing this information as it is presented in a 

 

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

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

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

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

62 61 Fed. Reg. at 31694. 
PHA report would be of no use to emergency responders and therefore have no impact on the 

emergency response itself. Further, public disclosure may create a roadmap for terrorists and 

trial lawyers. That is why the 1999 Chemical Safety Information, Site Security and Fuels 

Regulatory Relief Act limited public access to the information contained in RMP to regional 

reading rooms. 

For information that the public can make use of, most LEPCs already have WebPages 

developed for sharing appropriate information with the community. And chemical specific 

information is also readily available through websites such as Wikipedia or online Material 

Safety Data Sheets. 

XIV. The use of AEGLs simply broadens the purported at risk surrounding community. 

EPA is now considering the use of Acute Exposure Guideline Level (AEGLs) to 

recalculate RMP threshold quantities and toxic endpoints. EPA alleges the use of AEGLs to 

recalculate RMP reporting thresholds would better reflect the potential for adverse effects of an 

accidental release upon individuals in a community because AEGLs take into account the 

potential exposure of more sensitive individuals, the potential for longer periods of exposure, and 

the potential for serious but reversible injuries. In doing so, EPA will also change the toxic 

endpoints for offsite consequence analysis. While the proposed change is consistent with EPA’s 

stated intent during the initial rulemaking, two decades have since passed and no worst case 

scenario has ever occurred confirming that there is no need to replace the current endpoint 

analysis with one that would create even larger circles of potential impact. 
EPA has not presented sufficient data or evidence to show that adding the new elements 

and activities to the RMP rule as specified in the RFI are necessary to improve safety 

performance. The existing RMP Prevention Program elements are effective in driving industry 

performance, and should be supported by proper site implementation and competent 

enforcement. 

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

benefit particularly in light of a risk-based analysis. Back during the initial RMP roll out, 

owner/operators prepared worst case scenarios and offsite consequence analysis. These results 

were also shared with the community. The most common experience that our members had was 

it took several days or weeks to prepare the presentation, overheads and handouts for the 

community and then few if any people from the community showed up to hear the presentations. 

Companies invested in brochures that explained complex information in lay terms and polished 

their presentations to convey the required information in a manner understandable to the general 

public. It resulted in a huge amount of work with no tangible improvement with process safety 

or in community awareness. AFPM cannot support this proposed change without a further 

showing by the Agency as to the expected benefits. 

XV. EPA acknowledges that completely replacing the current RMP regulation (and PSM 

standard) with a safety case approach would require significant changes to the 

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

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

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

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

or operators of industrial facilities must demonstrate to the regulatory agency that the risks have 
been reduced to “as low as reasonably practicable”' (ALARP). EPA acknowledges that 

completely replacing the current RMP regulation (and PSM standard) with a safety case 

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

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

EPA and OSHA should consider these actions. 

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

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

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

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

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

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

prompt manner. Given the issues over the Federal Budget and the recent controversies over the 

performances of large agencies with alleged expertise such as the VA Hospital Administration 

and the CDC, there is no realistic way that such a change could occur. 

We do not support changing to a safety case as there are no significant conceptual 

advantages compared to the existing framework, there is no evidence that the safety case 

approach actually delivers better process safety performance, and the effort and resource 

required by both the regulator and the industry in changing to a different model will detract from 

delivery within the current system potentially leading to more incidents rather than less. 

Much of the discussion around the safety case has focused on two perceived advantages: 

(1) that it is performance based and the current PSM approach is not, and (2) the safety regulator 
reviews the case and has the opportunity to accept or reject it, with the implication that the 

regulator will be able to judge whether risks are appropriately managed. 

There is a misconception that the current PSM approach to process safety is largely 

activity-based and that the safety case approach is therefore superior because it is a performance 

based standard, requiring risks to be reduced to ‘as low as reasonably practicable’. On closer 

inspection, it can be seen that companies under a PSM framework actually manage risk against a 

performance target in a very similar way. Whether in a safety case or PSM regulated 

environment, the analysis of major risk scenarios is done in the HAZOP or PHA studies. In 

these studies, the risk from a scenario is compared against a corporate risk criteria. The 

safeguards are then evaluated to see whether the risk is adequately mitigated. If not, additional 

controls are added until the risk is considered to be acceptable. The risk criteria, regardless of 

the regulatory approach, is the definition of what the company considers to be ‘as low as 

reasonably practicable’. In the evaluation of major risk scenarios, therefore, the safety case and 

PSM approaches are essentially the same—requiring the addition of risk controls until a 

performance based risk target is met. It should be noted that the HAZOP/PHA process is really 

the only aspect of managing process safety that lends itself to such a risk based, performance 

driven approach. Almost all of the other elements of managing process safety (choice of 

equipment codes and standards, equipment inspection and repair, control of hot work, pre-start 

up safety reviews, operating training, safe work practices, etc.) are much more activity driven or 

based on prescriptive standards. Again, these non-risk assessed aspects are treated very similarly 

by operating companies whether they are regulated under a safety case or under PSM. The 
functional differences between the two regulatory approaches are therefore actually quite small 

(contrary to what some of the recent debate would suggest.) 

The second perceived advantage of a safety case is that the regulator can review the case 

and accept or reject it. The implication is that by reviewing the case the regulator will be able to 

spot any gaps or deficiencies and therefore provide additional oversight or protection. The 

reality is that if a company were PSM compliant, their safety case would be acceptable—a 

written safety case is nothing more than a summary of the whole process safety program. 

Incidents occur when there is a difference between what a company thinks it does and how it 

thinks it manages risk and what actually happens in a facility. A written safety case provides no 

additional protection in addressing differences between what the company is trying to achieve 

(as documented in the safety case) and what they actually achieve. 

In summary, while there are arguments made that a safety case should be more effective 

due to the performance based approach and the additional oversight, the reality is that the use of 

risk criteria in HAZOP/PHA activities is functionally equivalent, and that there is no real 

additional oversight—the regulator can’t see anything more from a safety case than from a PSM 

compliance audit. 

Even if the conceptual advantages of the safety case approach were stronger, there is 

scant evidence or even broad agreement that the approach is actually more effective. In fact 

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

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

from the North Sea”, the author discussed an audit of a several facilities operating under the 
safety case framework that found remarkable weakness noting that system works poorly with 

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

during major accidents were in terrible shape” and that “[s]uch systems failed to some degree in 

sixty-four percent of such tests, revealing a ‘picture of inadequate testing and very poor 

reliability’ for a critical component of emergency response.” The author went on to report that 

there was an “overreliance on cookie-cutter prototypes of critical documentation” concluding 

“[t]his kind of reaction is a strong indicator of a weak and ineffective regulatory regime”. In 

addition, the UK Buncefield incident in 2005, referred to as the ‘largest fire in peacetime 

Europe’, is a striking example of a major process safety and environmental event in a facility 

regulated under a safety case system. This incident involved the overfill of a fuel storage tank 

with a subsequent fire and vapor cloud explosion which ignited material in other nearby tanks—a 

relatively straightforward and foreseeable risk scenario. 

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

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

Paul Schulte, director of NIOSH’s Education and Information Division, as reported by the 

Charleston Gazette,63 said that NIOSH Director Dr. John Howard “was at a number of scientific 

conferences where he heard from a variety of stakeholders that they had concerns about what we 

had stated in our March comments.” “The director called for a re-review of what we had said,” 

Schulte said. “Upon looking at it further, while there are advocates for those positions, we didn’t 

 

63 NIOSH mysteriously backs off support for ‘safety case’ approach, available at 

http://www.wvgazette.com/article/20140614/GZ01/140619566. 
see that there was actually a scientific basis that attested they were more effective than what was 

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

that didn’t have a good evidentiary basis.” Similarly, in their report to the President, the EO 

Working Group noted: 

Overwhelmingly, nearly all comments received regarding the adoption of the 

safety case regulatory model were negative (-0064, -0069, -0075, -0081, -0085, -

0086). One commenter stated: 

“[Our organization] wholly opposes changing PSM or RMP to a safety case 

regulatory regime. The safety case framework would be a drastic overhaul of the 

current system. Against this, no real data establishes its value in the context of 

process safety for the chemical industry. [Our organization] believes that shifting 

responsibility to approve safety decisions from employers to inspectors, who 

inevitably will be less familiar with the jobsites, would detract from worker 

safety”64

Requiring the operators to write and the regulators to subsequently evaluate the safety 

case reports will be a major resource requirement for both industry and the regulator. While 

these resources are tied up ‘re-calibrating’ to the new approach, it is likely that focus on process 

safety basics will be reduced and performance will suffer as a result. 

Given that 1) the conceptual advantages of the safety case are minimal if there at all; 2) 

that there is no evidence that the approach is actually more effective at reducing serious 

incidents; 3) that changing the approach may result in additional incidents during the transition 

and learning curve time-frame; 4) and that there will be a significant cost to both the industry and 

the regulator, we do not recommend that a safety case approach be legislated or implemented. 

 

64 Executive Order 13650 Actions to Improve Chemical Facility Safety and Security – A Shared 

Commitment, Report for the President, May 2014 available at https://www.osha.gov/chemicalexecutiveorder/. 
CONCLUSION

AFPM thanks the Agency for reviewing our members’ comments on EPA’s Request for 

Information regarding potential revisions to the RMP Rule. Its members would also reiterate 

their invitation to meet and work together on resolving any perceived safety issues with regard to 

the RMP Rule. Both groups have a long history of working together to improve employee safety 

and health; AFPM believes that tradition can and should continue here. As the members’ 

position currently stands, though, after a careful survey of and analysis by our members, AFPM 

must ask EPA to withdraw its proposal to amend the RMP Rule. The RFI simply fails to offer 

substantial evidence that any change is warranted, that any of the proposed changes would 

actually improve process safety and that site security would be maintained. 

Thank you again and please contact me if you have any questions. 

Sincerely, 

Lara A. Swett 

AFPM, Director, Safety Programs 

cc: Docket ID No. EPA-HQ-OEM-2014-0328