October 29, 2014

U.S. Environmental Protection Agency 

Attn: Mr. James Belke

1200 Pennsylvania Avenue NW

Washington, D.C. 20460

Submitted electronically to docket number: EPA-HQ-OEM-2014-0328

Re: Request for Information (RFI) on Accidental Release Prevention Requirements: Risk 

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

Mr. Belke:

The American Coatings Association (ACA) is pleased to submit these comments to the 

Environmental Protection Agency (EPA or Agency) in response to the request for information 

(RFI) on potential amendments to Risk Management Programs (RMP) under the Clean Air Act 

(CAA) Section 112(r)(7) as part of President Obama’s Executive Order 13650, Improving 

Chemical Facility Safety and Security (E.O.). 

ACA is a voluntary, non-profit trade association working to advance the needs of the paint and 

coatings industry and the professionals who work in it. The organization represents paint and 

coatings manufacturers, raw materials suppliers, distributors, and technical professionals. ACA 

serves as an advocate and ally for members on legislative, regulatory and judicial issues, and 

provides forums for the advancement and promotion of the industry through educational and 

professional development services. ACA’s membership represents over 90% of the total 

domestic production of paints and coatings in the country. A number of ACA’s members have 

RMP-regulated facilities. 

While the E.O. does not require EPA to publish this RFI, EPA has decided to gather input on 

potential new amendments to Section 112(r)(7) since the E.O. tasks the Working Group to 

develop options for improved chemical facility safety and security that identify improvements to 

existing risk management practices.1 Also, the E.O. required the Occupational Safety and Health 

Administration (OSHA) to publish an RFI on Profess Safety Management (PSM) modernization, 

which closely aligns with the RMP regulation; so, this RFI will allow EPA to evaluate potential 

changes to the RMP regulation “in parallel to OSHA’s evaluation of potential updates to the 

PSM standard.”

2

ACA shares the E.O. Working Group’s goal of ensuring people both inside and outside of 

chemical facilities are safe and avoid catastrophic chemical accidents. However, as EPA

 

1

79 Fed. Reg. 44605 (July 31, 2014).

2

Id. 
2

considers policy options for potential rulemaking, ACA encourages the Agency to consider its 

input on several of the proposed modernizations in this RFI. Overall, ACA believes that EPA 

should concentrate its efforts on increasing awareness of existing regulatory programs, 

improving training and educational programs, and enhancing enforcement. ACA strongly 

discourages EPA from adopting wide-scale changes to RMP regulations without adequate 

justification or a demonstrated need, based on data and evidence, that the current regulations do 

not protect human health or the environment, and that these proposed changes address a 

substantial risk of harm. 

ACA also notes that any substantive changes to any of the programs under review would require 

that EPA engage in an appropriate rulemaking process. To allow stakeholders the opportunity 

and time to adequately respond to any specific proposed changes to the RMP regulations, ACA 

urges EPA to, following this RFI and before issuing a Proposed Rule, issue an Advanced Notice 

of Proposed Rulemaking (ANPR). Of note, EPA formally denied ACA’s request for extending 

the RFI comment deadline by 90 days. Given the level of detailed information EPA is requesting 

from the public on over 380 questions and the massive scope of this RFI, both EPA and

stakeholders would benefit from an ANPR in order understand the potential financial impacts of 

these numerous proposed amendments and properly evaluate all of the options presented in the 

RFI.

EPA proposes 17 topics as potential candidates for policy changes, six of which overlap with 

OSHA’s RFI for PSM modernization.

3 ACA has already responded to a number of these issues 

in its comments submitted on March 31, 2014 for the OSHA RFI on PSM Modernization4and 

for the Working Group’s Solicitation of Public Input on Options for Policy, Regulation, and 

Standards Modernization.

5 Below are the topics in EPA’s RFI that ACA has chosen to provide 

feedback on. ACA encourages EPA to consider these comments as it assesses these policy 

options and begins the rulemaking process.

ACA remains hopeful that with continued collaboration between EPA and all interested 

stakeholders, EPA can create policies that, unlike a number of the proposals listed in this RFI, 

are tailored to address significant risks of harm to human health and the environment, supported 

by evidence to increase safety, and do not yield unintended consequences, disregard existing 

industry practices, or have adverse economic impacts on chemical facilities. For all of these 

proposed amendments, ACA stresses the importance of EPA refraining from imposing 

significant, costly new requirements for facilities without evidence that the current RMP 

regulations inadequately protect human health and the environment and without evidence that 

these proposals will directly improve chemical facility safety and security. 

 

3 Updating the list of regulated substances that, in the case of an accidental release, are known to cause or may 

reasonably be anticipated to cause death, injury or serious adverse effects to the human health and environment; 

adding risk management program elements; defining and requiring evaluation of updates to RAGEGEP; extending 

mechanical integrity requirements to cover any safety critical equipment; requiring owners and operators to manage 

organizational changes; requiring third-party compliance audits. 

4

See http://www.regulations.gov/#!documentDetail;D=OSHA-2013-0020-0093.

5

See http://www.regulations.gov/#!documentDetail;D=OSHA-2013-0026-0083. 
3

TOPICS THAT OVERLAP WITH OSHA RFI ON PSM MODERNIZATION

Topic #1: Updating the List of Regulated Substances

The Agency solicits recommendations on whether and how to update the RMP-regulated 

substances listed in 40 CFR 68.130 by 1) adding other toxic or flammable substances; 2) adding 

high and/or low explosives; 3) adding ammonium nitrate; 4) adding reactive substances and 

reactivity hazards; 5) adding other categories of substances; 6) removing certain substances from 

the list or raising their TQ; and/or 7) lowering the TQ for substances currently on the list. In 

particular, to address hazards associated with reactive chemicals, EPA proposes several 

approaches to accomplishing this, including New Jersey’s Toxic Catastrophic Prevention Act. 

As ACA discussed in its comments in the OSHA RFI, ACA cautions against the adoption of 

third-party lists of chemicals or adding new categories of chemicals to the list of regulated 

substances. Adopting third-party standards, which are often updated, into federal regulations is in 

violation of the Administrative Procedures Act because when a third party organization updates a 

standard industry will have to comply with, this creates an updated federal regulation without 

proper notice and opportunity for comment. In addition, ACA urges EPA to implement a 

chemical-specific risk assessment when determining whether it is necessary to add a chemical to

the list of regulated substances. Any other chemical management system would take an overly 

expansive approach and further complicate a complex program, which will not increase chemical 

facility safety. 

Further, ACA recommends that EPA demonstrate that a new chemical should be added to the list 

of regulated substances, and use the prescribed administrative process for each new chemical it 

considers adding, and to include the specific threshold quantities. Also, EPA should enumerate 

and base any proposed new chemical on objective, science-based criteria and analyses showing

the need for additions. This will allow potentially regulated manufacturers to provide substantive 

comments on the relevant information prior to any changes to the RMP regulations. 

Topic #2: Additional Risk Management Program Elements

The Agency proposes to add additional risk management elements to enhance the protection of 

human health and the environment. In particular, EPA is asking the public to consider three 

elements from the Risk Based Process Safety Program—measurements and metrics, 

management review and continuous improvement, process safety competency—as well as two 

additional management system elements that were identified by OSHA in their review of safety 

standards: stop work authority and ultimate work authority. EPA also asks for ideas for other 

management system elements (i.e. conduct of operations, process safety culture).

When deciding to add management system elements, ACA urges EPA to base its decisions on 

evidence that these additions will increase chemical facility safety rather than arbitrarily adding 

elements or updates. As ACA discussed in the OSHA RFI, EPA has not shown that adding

additional management systems will provide a measurable benefit. Because a number of ACA 

members noted that their facilities already set internal standards and self-evaluate, they question 

whether federally-mandated measurements and metrics will increase safety. EPA should focus its 
4

efforts on improved enforcement of existing management system elements rather than adding to 

regulatory complexity. Or, if EPA is going to impose new risk management program elements, it 

needs to be clear about what its minimum expectations are in order to be effective. 

Further, ACA strongly cautions EPA against incorporating such third party standards into their 

regulatory and compliance frameworks. Adopting or otherwise incorporating third party 

standards, which are frequently updated, into federal regulations violates administrative practice, 

particularly since when a third party safety organization updates or modifies one of its standards, 

it could then impose a compliance requirement on industry. In addition, such third party 

standards are not freely available to industry in the same manner as properly promulgated 

regulations, and often impose extensive barriers to both participating in the organization’s 

process as well as to obtaining the organization’s standards and other materials.

Topic #3: Define and Require Evaluation of Updates to Applicable Recognized and 

Generally Accepted Good Engineering Practices

EPA seeks comment on how to revise the RMP regulation to require employers to monitor 

changes and evaluate updates to applicable recognized and generally accepted good engineering 

practices (RAGAGEP). ACA would like to echo the comments it made in the OSHA RFI in that 

ACA believes imposing a strict mandate to evaluate codes and standards updates would be costly 

with little corresponding risk reduction, and that the implications of this mandate would be 

difficult to comply with given that hundreds of continually updated standards may be applicable 

to a workplace’s RAGAGEP. ACA notes that OSHA has previously addressed this issue in a 

Letter of Interpretation that suggests existing PSM requirements already ensure that employers 

consider safety updates applicable to RAGAGEP.6

EPA also solicits input on how to define RAGAGEP. Similar to the PSM standard, OSHA 

already considered and denied this request during the 1992 rulemaking process. In the Preamble 

to the Final PSM Standard, OSHA stated:

Many rulemaking participants disagreed with this proposed provision (e.g., Ex. 3: 

12, 53, 64, 87, 97, 121; Tr. 722-23, 796-97, 2177). Some commenters were 

concerned that the Agency would incorporate by reference all of the codes 

applicable to testing and inspection such as those published by the National Fire 

Protection Association (NFPA), the American Society for Testing and Materials 

(ASTM), the American National Standards Institute (ANSI), etc. These 

commenters asserted that it would be difficult for an employer to obtain all such 

standards and decide which standards the Agency intended for them to use. They 

also stated that some of the standards may conflict with each other. 

And further

The codes and standards contained in proposed paragraph (j)(3)(ii) were examples 

of what the employer could use for inspection and testing of process equipment. 

 

6 OSHA Letter of Interpretation to Mr. Durham regarding 1910.119(d)(3)(iii) (dated January 20, 2001 and corrected 

June 2, 2005).
5

The Agency did not intend to incorporate by reference into the standard all of the 

codes and standards published by these consensus groups. As noted above, the 

purpose of this proposed provision is to make sure that process equipment is 

inspected and tested properly, and that the inspections and tests are performed in 

accordance with appropriate codes and standards. The phrase suggested by 

rulemaking participants: "recognized and generally accepted good engineering 

practices" is consistent with OSHA's intent. The Agency also believes that this 

recommended phrase would include appropriate internal standards of a facility, as 

well as codes and standards published by NFPA, ASTM, ANSI, NFPA, etc. 

Accordingly, proposed paragraph (j)(3)(ii) has been redesigned as paragraph 

(j)(4)(ii) in the final rule, and has been revised to read as follows: Inspection and 

testing procedures shall follow recognized and generally accepted good 

engineering practices.7

Based on the reasoning above, there is no need for EPA (or OSHA) to amend the regulations to 

require following a third-party safety standard when complying with RAGAGEP. Rather, ACA 

believes RAGAGEP should include industry consensus guidance and appropriate internal 

standards that have been adopted and evaluated by employers. If EPA does intend to establish a 

definition for RAGAGEP, the Agency must define RAGAGEP through the rulemaking process, 

and permit for stakeholders to comment on this proposed definition. In its definition, EPA should 

include examples and clearly define its expectations concerning RAGAGEP.

Topic #4: Extend Mechanical Integrity Requirements to Cover Any Safety-Critical 

Equipment

EPA solicits information on whether the scope of the mechanical integrity provisions of the RMP 

rule should be expanded to cover any safety-critical equipment and whether additional 

requirements should be added. One of the examples EPA provides is that emergency shutdown 

systems are a type of process equipment covered under the RMP rule’s mechanical integrity 

provisions, but the rule “does not explicitly require all covered sources to install emergency 

shutdown systems.”8

When deciding to expand the scope of what categories of equipment the mechanical integrity 

requirements should apply to, ACA encourages EPA to demonstrate how additional types of 

equipment would result in improved safety in a chemical facility rather than arbitrarily adding 

elements. In particular, requiring that every covered source install emergency shutdown systems 

could potentially impose exorbitant costs on facilities that do not have these systems in place

with little beneficial value in preventing accidents. In some cases, requiring emergency shutdown 

is not the safest approach for a facility to respond to a chemical incident. Each employer should 

have the flexibility to make site-specific and process-specific decisions, so ACA discourages 

EPA from imposing overly prescriptive solutions that would take away this discretion and 

potentially result in increased safety risks. 

 

7

57 Fed. Reg. 6356 (Feb. 24, 1992); 57 FR 7847 (March 4, 1992)-- Process Safety Management of Highly 

Hazardous Chemicals, Explosives and Blasting Agents, Section 3: Summary and Explanation of the Final Rule: 

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=PREAMBLES&p_id=1041

8

79 Fed. Reg. 44617. 
6

Topic #5: Require Owners and Operators to Manage Organizational Changes

Like the OSHA RFI, EPA proposes to revise the RMP regulations to clarify that employers must 

follow management of change (“MOC”) procedures for organizational changes. As ACA 

discussed in its comments to OSHA, a Letter of Interpretation dated March 31, 2009, Deputy 

Assistant Secretary Donald G. Shalhoub and Directorate of Enforcement Programs Richard E. 

Fairfax stated:

The PSM standard requires employers to develop and implement written MOC 

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

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

equipment, procedures and facilities (29 CFR 1910.119(l)(1)). Some 

organizational changes, such as changes resulting from mergers, acquisitions, 

reorganizations, staffing changes, or budget revisions, may affect PSM at the 

plant level and would therefore trigger a PSM MOC procedure. Some examples 

of these 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.

9

This Letter of Interpretation already explains to facilities that the current requirement could 

include organizational changes such as personnel and budget changes. EPA even discusses how 

the RMP rule’s management of change requirements are “virtually identical” to the PSM 

Standard.10 Therefore, ACA maintains that EPA should not modify its management of change 

requirements for Program 3 processes (section 68.75). Expansion of management of change 

procedures would be overly and unnecessarily prescriptive, and EPA has not explained how this 

would increase protections for human health and the environment. 

Topic #6: Require Third-Party Compliance Audits

EPA seeks comments on whether requiring that employers use third-party compliance auditors 

would further protect human health and the environment. EPA discusses how the RMP’s 

regulations are “almost identical in language” to the PSM Standard with regards to compliance 

audits.11 EPA states that there “may be advantages” to third-party compliance audits and sites 

BSEE’s Safety Environmental Management Systems standard that requires independent thirdparty audits. ACA maintains its opposition to explicitly requiring third party compliance audits 

in both the PSM Standard and the RMP rule. 

 

9 OSHA Letter of Interpretation regarding 29 CFR 1910.119 (l) Management of Organizational Change (dated 

March 31, 2009).

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

10 79 Fed. Reg. 44618. 

11 Id. 
7

First, the quality and rigor of a compliance audit depends on the auditor’s training, familiarity 

with the process being audited, and experience, rather than whether the auditor is a third party or 

not. The current RMP rule requires that audits be conducted by “at least one person 

knowledgeable in the process,” and many coatings industry facilities employ and utilize 

employees with expertise and who have worked in the facility for years who understand the 

actual level of employee involvement in compliance, and are familiar with the facility’s 

practices. Requiring all facilities to utilize third parties instead of their own, experienced 

employees will alter the existing market balance where only truly qualified auditors thrive, by 

artificially spiking demand for third party services. 

Second, requiring that compliance audits be performed by third parties will lengthen the auditing

process, impacting deadlines and creating delays in proper evaluation of a facility’s RMP

program. Third, the RFI does not propose or list any standards that third parties would need to 

follow in conducting audits or specific accreditation requirements. Accrediting auditors will not 

in itself guarantee that they will either have a deep understanding of the facility being inspected 

or process risks. 

And finally, mandating that facilities hire third parties to perform compliance audits of their 

RMP programs will significantly increase costs for employers. For example, ACA estimates that 

these types of audits could cost some of its member companies approximately $10,000 per 

facility. Companies with multiple facilities across the country would be forced to forego their 

own, internal resources and expertise to hire third parties to perform the same audits. In some 

cases, ACA understands that such contractors may have hourly rates of up to $500 per hour per 

auditor for conducting RMP or PSM audits, not including travel expenses. Most importantly, 

EPA has not demonstrated that company-led audits are inherently deficient, nor has the Agency

provided examples of flawed internal audits that have contributed to an incident.

Therefore, ACA urges EPA to not revise the current standard on compliance audits. Keeping the 

current standard will allow facilities to use third parties on a voluntary basis, and also have the 

freedom to use their own qualified, appropriate personnel to perform these compliance audits. 

ADDITIONAL ITEMS FOR WHICH EPA REQUESTS INFORMATION

Topic #1: Safer Technology and Alternatives Analysis

EPA discusses that, historically, the Agency has encouraged covered sources to examine and 

adopt alternative processing technologies or modifications to make them inherently safer.12 The 

general duty clause under the RMP rule states that owners and operators “should try to substitute 

less hazardous substances for extremely hazardous substances or minimize inventories when 

possible.”13 Now, EPA asks for feedback on a potential amendment that would require the use of 

inherently safer technologies (ISTs) where feasible and change the general duty clause to “make 

clear that the duty to prevent releases of extremely hazardous substances includes the use, where 

 

12 79 Fed. Reg. 44620.

13 Id. 
8

feasible, of safer technologies.”14 This requirement would include analysis and documentation of 

ISTs, integration of ISTs analysis into the PHA, and implement ISTs where feasible. 

As ACA stated in its comments on the Working Group’s Solicitation of Public Input on Options 

for Policy, Regulation, and Standards Modernization, ACA believes that a flexible approach to 

process safety best protects workers from risk of harm. Each employer is in the best position to 

make site-specific process safety decisions by evaluating its own equipment, onsite materials and 

chemicals, expertise, organizational structure, and operations. For these reasons, ACA cautions 

against prescriptive recommendations that will chip away at the necessary discretion given to 

employers. Additionally, it would be very subjective and difficult to prescribe in regulations 

what is “feasible” for a facility. Any one-size fits all approach to process safety would limit 

employers’ ability to react to real facts on the ground. 

In regards to incorporating ISTs into safety programs, only facility operators know whether IST 

is appropriate given the complexities of their unique operating environments, and no one 

program will work for all facilities. The E.O. Working Group should promote the use of safer 

alternatives and practices by (1) encouraging industry programs, (2) issuing alerts and guidance 

under EPA’s RMP program and OSHA’s PSM standard to increase knowledge of industry 

standards, and (3) developing resource centers where process safety experts can share safer 

alternative techniques and approaches. These suggestions would be far more effective, much less 

cumbersome on facilities, and would address site-specific needs than what could be 

accomplished through regulation.

Topic #2: Emergency Drills To Test a Source’s Emergency Response Program or Plan

In the RFI, EPA seeks comment on whether to require RMP regulated facilities to conduct drills 

as an element of the emergency response program. EPA lists several other regulations that 

require exercises and drills, and that industry guidelines recommend conducting drills. ACA 

members have noted that OSHA already requires drills for a number of safety regulations, and 

many companies perform drills on their own as they are appropriate to the risk. In this regard, 

mandating emergency drills may not be appropriate for every facility and for every kind of 

emergency response plan. 

ACA recommends, in lieu of a federal mandate that prescribes how a facility should drill, that 

EPA provide guidance on the number and types of drills facilities should perform, and facilities 

can work with local emergency response personnel to decide what exercises, tests, and frequency

are most appropriate in order to ensure safety to human health and the environment. ACA 

discourages prescriptive requirements in order to allow for facility operators and owners to 

develop plans that are appropriate to the needs of each facility and local responders.

Topic #3: Automated Detection and Monitoring for Releases of Regulated Substances

EPA requests information on the need for new or expanded requirements for automated detection 

and monitoring systems that would supplement either the process hazard analysis and/or 

emergency response requirements. In particular, EPA proposes to require covered facilities to 

 

14 Id. 
9

install monitoring equipment or sensors to detect release of RMP regulated substances or the 

conditions that could lead to such a release. 

In the RFI, EPA discusses the potential (not demonstrated) benefits of this option and does not 

explain why the current regulations are inadequate. EPA even acknowledges that “the need for 

an appropriate deployment of such systems is likely to be highly site-specific, and that facilities 

may already have appropriate incentives to deploy such systems where warranted and cost 

effective.”15 EPA also says, “automated detection and monitoring technologies may not be 

available for particular chemical hazards, or industry standards may not address their proper use. 

They may also be costly.”16 ACA agrees with EPA’s concerns with this proposal and does not 

support mandating that every facility install automated detection and monitoring systems, 

particularly since EPA has not demonstrated that the current regulations and practices are 

inadequate in protecting human health and the environment. 

Topic #6: Incident Investigation and Accident History Requirements 

The Agency is considering expanding the RMP requirements for incident investigation and 

accident history to include “clear requirements to investigate near misses and determine root 

causes of accidents, near misses, and process upsets,” arguing this would promote safety.17 ACA 

is concerned with the potential challenges that will be created by adding “near misses” into 

requirements for accident history reporting and investigation. For example, what constitutes a 

“near miss” could be highly subjective and may result in facilities under-reporting (where they 

would normally err on the side of recording) because the incident may not fall under the 

regulatory definition of a “near miss.” How EPA defines a “near miss” and times when reporting 

is required could easily lead to confusion, additional unnecessary paperwork, and disruptive to 

facilities’ current internal practices for reporting near misses. 

Topic #7: Worst Case Scenario Quantity Requirements for Processes Involving Numerous 

Small Vessels Stored Together 

In the RFI, EPA seeks information on whether to revise RMP to better account for processes 

involving numerous small vessels stored together such as on cylinder racks, and would like to 

know whether the worst-case scenario requirements should account for the potential effects of 

separate facilities that are interconnected. ACA is concerned that this revision to the RMP rule is 

not necessary to increase the protection of human health and the environment. ACA also argues 

that aerosols are already highly regulated with robust protective requirements, so any potential 

amendment to the RMP rule should clarify that aerosols would not fall under this new provision. 

Topic #11: The Safety Case Regulatory Model 

And finally, EPA offers the Safety Case regulatory model as an alternative to PSM and RMP 

regulations for chemical facility safety and security. EPA requests information on the advantages 

and disadvantages of replacing the current PSM and RMP programs with the Safety Case model, 

 

15 79 Fed. Reg. 44623 

16 Id. 

17 79 Fed. Reg. 44627. 
10

which is used in other countries such as Australia and the UK. EPA explains that in the model, 

“operators must present to regulators a structured argument, supported by a body of evidence 

that provides a compelling, comprehensible and valid case that a system is safe for a given 

application in a given operating environment.”18

As ACA commented in response to the Solicitation of Public Input on Options for Policy, 

Regulation, and Standards Modernization, ACA opposes completely changing PSM or RMP to a 

safety case regulatory regime because the safety case framework would be a drastic overhaul of 

the current system, and there is no real data that establishes its value in the context of process 

safety for the chemical industry. ACA believes that shifting responsibility to approve safety 

decisions from employers to inspectors, who inevitably will be less familiar with the job sites, 

would detract from worker safety.

For additional information or questions, please contact ACA’s Javaneh Nekoomaram at 

jnekoomaram@paint.org; or David Darling at ddarling@paint.org. 

Respectfully Submitted,

 

Javaneh Nekoomaram, Esq. David Darling

Counsel, Government Affairs Senior Director, Environmental Affairs

 

18 79 Fed. Reg. 44632.