americanchemistry.com®

700 Second St., NE | Washington, DC | 20002 | (202) 249-7000

October 29, 2014

Via Electronic Submission: http://www.regulations.gov

OSWER Docket

EPA Docket Center

Mail Code 2822-1T

Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Re: Comments on Docket ID No. EPA-HQ-OEM-2014-0328

Request for Information on Accidental Release Prevention Requirements:

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

To the Docket:

The American Chemistry Council1(ACC) is pleased to respond to the request for information

issued by the U.S. Environmental Protection Agency (EPA) on potential revisions to EPA’s Risk

Management Program regulations and related programs. The request for information, Docket ID

No. EPA-HQ-OEM-2014-0328 (RFI) was published in the Federal Register on July 31, 2014.

ACC is America’s oldest trade association of its kind, representing companies across the United

States engaged in the business of chemistry. ACC supports EPA’s commitment, expressed in the

RFI, and the commitment of the President of the United States as expressed in Executive Order

(EO) 13650, to prevent chemical accidents and to prevent or minimize the consequences of

accidental chemical releases through the implementation of management program elements that

integrate technologies, procedures and management practices.

ACC members would be directly affected by EPA’s promulgation of revisions to the existing

RMP rule, whether those revisions expand the RMP rule to include additional regulated

substances and hazards, update the RMP rule in parallel to the effort undertaken by OSHA to

1 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of

chemistry to make innovative products and services that make people’s lives better, healthier and safer. ACC is

committed to improved environmental, health and safety performance through Responsible Care®, common sense

advocacy designed to address major public policy issues, and health and environmental research and product

testing. The business of chemistry is an $812 billion enterprise and a key element of the nation’s economy. It is the

largest exporting sector in the United States, accounting for 12 percent of U.S. exports. Chemistry companies are

among the largest investors in research and development. Safety and security have always been primary concerns of

ACC members, and they have intensified their efforts, working closely with government agencies to improve

security and defend against any threat to the nation’s critical infrastructure.
EPA-HQ-OEM-2014-0328

October 29, 2014

Page 2

americanchemistry.com®700 Second St., NE | Washington, DC 20002 | (202) 249.7000

evaluate updates to OSHA’s PSM rule, or change the RMP requirements in any of the various

ways explored in the RFI.

While ACC shares EPA’s goals of preventing chemical accidents and preventing or minimizing

the consequences of accidental chemical releases, ACC has a number of concerns about the

proposed changes identified by EPA in the RFI, as outlined in our attached comments. We

believe that the potential changes to the RMP rules considered in the RFI would in many cases

represent a drastic departure from the current regulatory framework, in some instances with

adverse impacts, and in other instances without corresponding benefits, to chemical accident

prevention or workplace or employee safety.

Ultimately, ACC believes that the most influential steps EPA could undertake to improve

chemical safety is through increased awareness of existing management and regulatory

programs, enhanced training, and enforcement for companies that have not shown themselves to

be capable of implementing the rule.

ACC shares a common goal with EPA, OSHA and other stakeholders to create and maintain safe

workplaces for our nation’s employees and for our surrounding communities. Thank you for the

opportunity to submit these comments on the RFI.

Should you have questions, please contact the undersigned by phone at (202) 249-6426 or by email at Rachel_Meidl@americanchemistry.com.

Respectfully submitted,

Rachel A. Meidl

Director, Regulatory & Technical Affairs

American Chemistry Council

700 Second Street, NE

Washington, DC 20002

Rachel_Meidl@americanchemistry.com

cc: Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health

Stephen M. Richmond, Beveridge & Diamond, P.C
Comments of the American Chemistry Council

on Docket ID No. EPA-HQ-OEM-2014-0328

Request for Information on Accidental Release Prevention Requirements:

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

Rachel A. Meidl

Director, Regulatory & Technical Affairs

American Chemistry Council

700 Second Street, NE

Washington, DC 20002

Rachel_Meidl@americanchemistry.com

Of Counsel

Stephen M. Richmond

Beveridge & Diamond, P.C.

15 Walnut Street – Suite 400

Wellesley, MA 02481

SRichmond@bdlaw.com
i

TABLE OF CONTENTS

PAGE

Executive Summary.........................................................................................................................1

I. Comments on Items in OSHA’s RFI Relevant to EPA’s RMP Regulation

(Section II.C. of the EPA RFI).............................................................................................6

1. There is no Basis for Updating the List of Regulated Substances...........................6

2. Additional Risk Management Program Elements..................................................10

3. Updates to Applicable Recognized and Generally Accepted Good

Engineering Practices.............................................................................................10

4. Safety-Critical Equipment .....................................................................................10

5. Managing Organizational Change .........................................................................10

6. Requiring Third-Party Compliance Audits............................................................11

7. Effects of OSHA PSM Coverage on RMP Applicability......................................11

II. Comments on Additional Items for Which EPA Requests Information ...........................11

1. ACC Strongly Opposes Incorporating Inherently Safer Technology

Requirements Into the RMP Regulation................................................................11

2. Requirements for Emergency Drills To Test a Source’s Emergency

Response Program Should be Performance Based and Flexible ...........................23

3. Automated Detection and Monitoring for Releases of Regulated

Substances Should Not be Mandated ....................................................................27

4. Stationary Source Location Requirements Should Not be

Expanded ...............................................................................................................31

5. Emergency Response Program Requirements Do Not Need to be

Revised ..................................................................................................................34

6. There is No Need to Increase Incident Investigation and Accident

History Requirements ............................................................................................36

7. Worst Case Release Scenario Quantity Requirements for Processes

Involving Numerous Small Vessels Stored Together Should Not

Be Revised .............................................................................................................40

8. Mandates to increase Public Disclosure of Information Will Raise

Security Risks and Will Not Promote Regulatory Compliance or

Improve Community Understanding of Chemical Risks.......................................42

9. EPA Should Not Adjust Threshold Quantities and Off-Site

Consequence Analysis Endpoints for Regulated Substances Based

on Acute Exposure Guideline Level Toxicity Values ...........................................44

10. EPA Has Identified No Basis for Changing the Program 3 NAICS

Codes......................................................................................................................47
ii

11. There is No Justification for Adopting the ‘‘Safety Case’’

Regulatory Model ..................................................................................................49

12. Streamlining RMP Requirements ..........................................................................52

III. Conclusion .........................................................................................................................55
1

Comments of the American Chemistry Council

on Docket ID No. EPA-HQ-OEM-2014-0328

Request for Information on Accidental Release Prevention Requirements:

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

Executive Summary

The American Chemistry Council (ACC) is pleased to respond to the request for

information issued by the U.S. Environmental Protection Agency (EPA) on potential revisions to

EPA’s Risk Management Plan (RMP) regulations and related programs. The request for

information, Docket ID No. EPA-HQ-OEM-2014-0328, was published in the Federal Register

on July 31, 2014 (herein, the RFI or EPA RFI).

ACC believes that process safety standards in the United States, currently implemented

through the Program 3 requirements in the EPA RMP rule1and the Occupational Safety and

Health Administration (OSHA) process safety management of highly hazardous chemicals

(PSM) standard2, are strong and effective because they are performance-oriented. The RMP rule

and the closely related PSM standard currently provide a framework that is used by ACC

members to appropriately address risk evaluations and risk reduction.

Given the diverse nature of the industries regulated by the RMP rule, and of chemical

industry operations specifically, ACC knows that a flexible, performance-oriented approach to

process safety best protects workers and the environment from risk of harm, including risk of

accidental chemical release. Each employer is in the best position to make site-specific and

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

chemicals, expertise, organizational structure, and operations. ACC opposes prescriptive

solutions that erode the necessary discretion given to employers to manage their particular risks.

Any RMP rule changes that impose a one-size-fits-all approach to process safety are a step

backwards, because they limit employers’ ability to address unique, facility-specific issues on

site.

ACC is concerned that many of the options under consideration by EPA would, in

practice, weaken the highly effective performance-oriented approach that is currently provided

for process safety and chemical management under existing EPA and OSHA programs. ACC

cautions EPA against trying to ‘fix’ something not shown to be broken, particularly in an area

that is so critical to the management of chemical release risks. The public is best protected by

focusing on known risks, not by requiring a focus on hazards, which may pose potential - but not

actual - concerns. The problem with hazard reduction mandates is that they force resources to be

diverted from identifying and resolving higher level risks by requiring a number of other

activities, such as evaluations, and possibly actions, that may not properly address the actual

risks posed by individual circumstances.

1

40 C.F.R. Part 68, Chemical Accident Prevention Provisions, Subpart D.

2

29 C.F.R. 1910.119, Process Safety Management.
2

ACC is very concerned that EPA has not provided sufficient time to allow interested

parties to meaningfully comment on the enormous breadth of the inquiry in the RFI. EPA has

asked that commenters provide very specific and detailed information on a very large number of

issues, including – for each item – costs and economic impacts. Given that EPA declined to

provide an extension to the comment period, ACC has not been able to fully develop responses

or data to address many of the issues raised and firmly believes these warrant further discussion

and development. EPA simply has not provided the time necessary to submit complete and

detailed responses.

ACC opposes new mandates to force the implementation of specific technologies or of

hierarchies that prioritize accidental release risks over other risks, such as worker protection

risks. The current regulatory framework provides (i) performance requirements through

structured process hazard analyses and the application of reasonable and generally accepted good

engineering practices, and (ii) well-defined risk evaluation processes that allow facility owners

and operators to use site-specific and process-specific conditions to determine the best methods

to address identified risks. This site-specific flexibility is critical as those responsible for overall

risk management are in the best position to evaluate risks and determine appropriate responses

given the complexities of their unique operating environments.

The Clean Air Act (CAA) mandates that EPA consult with the Secretaries of Labor and

Transportation and coordinate its RMP requirements with those established for comparable

purposes by OSHA and the Department of Transportation.3Executive Order 13650 (EO 13650)

similarly directed EPA and OSHA to enhance federal coordination on chemical safety and

security issues.4 ACC submitted extensive comments on EO 13650, attached as an appendix and

incorporated herein. In furtherance of the direction provided by EO 13650, OSHA published a

request for information to support rule development on potential changes to the PSM program in

December, 2013 (the OSHA RFI).5 ACC also submitted extensive comments on the OSHA RFI

by letter dated March 31, 2014, attached as Appendix 1 and incorporated herein. The EPA RFI

references the CAA requirement to coordinate with OSHA and indicates EPA’s intent to

evaluate potential changes to the RMP rule in parallel with OSHA’s evaluation of potential

updates to the PSM standard.6

As set forth in ACC’s comments on EO 13650 and the OSHA RFI, ACC has cautioned

OSHA against taking any steps to implement changes to the PSM program that increase burdens

on employers without first establishing significant risk of harm through data and science-based

analyses, in accordance with the framework set forth in Industrial Union Department v.

American Petroleum Institute.

7 While the Clean Air Act provides a different basis for EPA’s

RMP rulemakings, under the Clean Air Act EPA must coordinate the development of its RMP

program with OSHA. Given the parallel nature, comprehensive overlap and duplication that

exist between the OSHA PSM requirements and the EPA RMP Program 3 requirements, ACC

believes that it is critical for the EPA and OSHA programs to remain consistent. If EPA

substantially deviates from the OSHA PSM process, this would conflict with the statutory

3

42 U.S.C. §7412(r)(7)(D).

4

78 Fed. Reg. 48029 (August 7, 2013).

5

78 Fed. Reg. 73756 (Dec. 9, 2013).

6

79 Fed. Reg. at 44605.

7

448 U.S. 607, 642 (1980).
3

mandate to coordinate, and would have the potential to cause confusion, disarray and misapplied

resources in the regulated community.

The current RMP program requirements are based on principles that provide for strong,

time-tested accident-prevention and risk management programs. These principles are as follows:

 Performance-based standards (not prescriptive standards);

 Standards are supported by published scientific data;

 Site actions are based on site-specific risk assessments;

 Site actions address root causes of significant performance issues and incidents ;

 Site actions can generally be supported by cost-benefit analysis;

 Sites are provided adequate time and certainty for implementation;

 Standards provide an appropriate structure for compliance and enforcement activities.

In its assessment of whether to develop additional regulations, EPA has the burden to

show that additional regulations are reasonably necessary to address a significant risk of harm

that is not currently and adequately addressed by the current regulations. ACC believes that

nearly 20 years of experience with the RMP program do not demonstrate a need for significant

changes. In the RFI, EPA has not provided such evidence in the key areas of inquiry and ACC

does not believe that there is sufficient evidence to justify substantial changes to the RMP rule.

To enhance accidental release prevention and mitigation, EPA should focus primarily on

the following actions:

(i) encouraging industry programs that have demonstrated effectiveness in

preventing and mitigating accidental release incidents (e.g., ACC’s

Responsible Care®, SOCMA’s ChemStewards®, and NACD’s Responsible

Distribution®);

(ii) disseminating guidance and alerts to increase knowledge of identified risks and

industry standards in the regulated community, to assist operators in better

identifying and addressing root causes of incidents and to more fully integrate

into the RMP program those facilities that may currently be deviating from

program requirements;

(iii) developing new and supporting existing resource centers where process safety

experts can share best practices and innovative alternative techniques and

approaches; and

(iv) detecting and correcting compliance deficiencies through targeted inspections

and, where appropriate, enforcement.

EPA has taken several significant and useful steps in the direction we are advocating.

First, after an investigation by EPA’s Inspector General uncovered significant deficiencies in
4

EPA’s RMP inspection program,8EPA boosted staff training for employees engaged in RMP

inspections, and also required that the supervisors of these inspectors received training so that

they were knowledgeable about the program.9 As this additional training has been provided,

EPA has increased the scope and number of RMP inspections, and has increased its enforcement

activity in this area. Second, EPA has issued some chemical emergency preparedness and

prevention advisories and chemical safety alerts as cautions to the regulated community of

various risks that EPA has identified and which it believes should be addressed more thoroughly

by industry.10

While these actions help to promote awareness of chemical release risks and risk

reduction approaches, EPA’s own internal reviews indicate that additional data needs to be

gathered and analyzed to fully understand the impacts of its program. In EPA’s recent

evaluation of its own ability to evaluate the role that its inspections play in reducing risks under

the RMP program,11 EPA identified numerous data flaws that prevented an appropriate

assessment of impact. “While EPA has anecdotal reports of general deterrence at RMP facilities,

it has not studied the effects of general deterrence in the RMP Program in a systematic way.”12

Consequently, EPA developed a Performance Data Improvement Plan as part of its final report

to improve the accessibility, quality, and usefulness of program data to make it viable for

evaluation in the future.13

We note that EPA has only recently increased the scope and intensity of its inspections

and enforcement, and has not yet developed sufficient data to evaluate the effectiveness of these

programs. It is therefore premature for EPA to consider regulatory changes, particularly changes

that may have substantial impact on those in the regulated community who are complying fully

with the RMP program. Before pursuing any regulatory changes, EPA must first implement its

Performance Data Improvement Plan, and collect and evaluate performance data to determine

the successes and any weaknesses of the existing program. During this evaluation process, EPA

should continue to implement and expand its outreach, educational and inspection programs.

Once EPA concludes this evaluation, and if EPA believes it supports any rule changes, EPA

should then publish an advance notice of proposed rulemaking to explain the data and

conclusions and apply them to the broad range of options raised in the RFI. Without completing

these steps, EPA cannot conclude that RMP program changes are reasonably necessary to

address a substantial risk of harm.

Information collected by ACC from its member companies indicates that significant

accidental chemical releases and related process safety hazards are rare where employers have

8 Among other things, the Inspector General found that 15 of 37 RMP inspectors in 2010 had inspection credentials

without documentation establishing they met minimum training requirements, ten inspectors may not have met

requirements for basic and program-specific refresher training, and half of the first-line supervisors nationwide did

not meet their minimum training requirements. Further, the vast majority of inspection reports lacked the details to

demonstrate that the inspections were effective. See Improvements Needed in EPA Training and Oversight for Risk

Management Program Inspections, EPA Office of the Inspector General, Report No. 13-P-0178, (March 21, 2013).

9

Id., at 10 - 15.

10 See http://www2.epa.gov/rmp/chemical-accident-prevention-publications

11 See OSWER Risk Management Program Evaluation Scoping Project: Scoping Assessment and Performance Data

Improvement Plan, Final Report, EPA-100-K-13-012 (July 12, 2013).

12 Id., at 23.

13 Id.
5

strong PSM programs and comply with EPA’s current RMP regulations. Instead, accidental

releases, including those cited throughout the RFI, often involve companies that have

disregarded substantial portions of the current RMP rule, or occurred prior to the full

implementation of the RMP program. Full compliance with the regulations already in place

would certainly substantially reduce the risk of accidental chemical release. ACC believes that

EPA should focus its time and resources on increasing RMP training and education efforts, as

well as targeted enforcement for companies with a history of noncompliance, rather than

increasing burdens on the industry across the board with no clear evidence that this will result in

a reduction of risk.

OSHA’s discussion of chemical release incidents in the OSHA RFI confirms that it is not

weaknesses in the current PSM program that raises concerns, but non-compliance with the

program as it exists today. OSHA stated in its RFI that the PSM standard has been effective in

improving process safety and protecting workers from many hazards associated with

uncontrolled chemical releases, but that major incidents have continued to occur.14 It then cited

four incidents, three of which resulted from alleged substantial failures to comply with the

current PSM standard.15 The fourth involved a company that was not subject to the PSM

program at all. Consequently, none of the examples used by OSHA as a basis for concern

involved findings that facilities in compliance with the PSM program were contributing to major

incidents. Similarly, there is no evidence in EPA’s RFI that the data support substantive changes

to the RMP programs at compliant RMP facilities.

ACC has fundamental concerns about many of the proposals in the RFI and we

encourage EPA to carefully consider the issues raised in these comments as the Agency reviews

the information submitted and considers next steps. EPA should more directly focus its efforts

on bringing into the program facilities that are currently in substantial non-compliance with the

RMP rule, and on developing non-regulatory tools to help operators share best practices and

innovative approaches, and better identify and correct root causes of incidents. ACC looks

forward to the opportunity to continue this dialogue with EPA in order to further our shared

goals of reducing the risk of accidental chemical release and protecting our employees,

communities and the environment.

14 78 Fed. Reg. 73756, 73757 (Dec. 9, 2013).

15 Id. In the first incident, OSHA alleged the company “failed to properly implement many OSHA-required

elements of its PSM program.” In the second incident, OSHA issued over 300 citations: “(m)any of the citations

were for PSM violations, including failing to properly implement mechanical integrity, training, and standard

operating procedures.” In the third incident, OSHA alleged that the company “failed to properly implement its PSM

program”.

.
6

I. COMMENTS ON ITEMS IN OSHA’S RFI RELEVANT TO EPA’S RMP

REGULATION (SECTION II.C. OF THE EPA RFI)

Given the extensive overlap between the RMP Program 3 provisions and the PSM

standard, EPA has created a section of the RFI, Section II.C, which mirrors many of the issues

raised by OSHA in the OSHA RFI. ACC submitted extensive comments on the OSHA RFI,

which are attached as Appendix 1 and incorporated herein. These comments reference and

incorporate ACC’s comments on the OSHA RFI where appropriate to avoid duplication.

1. THERE IS NO BASIS FOR UPDATING THE LIST OF REGULATED

SUBSTANCES

a. Adding Other Toxic or Flammable Substances

ACC believes no toxic or flammable substances should be added to the extensive list in

40 C.F.R. § 68.130.

Under section 112(r)(3), EPA must review the list of substances subject to RMP

requirements every five years. In the 20 years since EPA adopted its original list in 1994, EPA

has revised some aspects of that list, but it has never proposed adding any chemicals. Similarly,

the Chemical Safety and Hazard Investigation Board (CSB) has never recommended that EPA

add any chemicals to the RMP list, other than reactive chemicals (discussed below). This history

is significant in that it indicates EPA’s original list of 77 toxic substances and 63 flammable

substances does not need to be supplemented.

EPA originally adopted its list of flammables in 1994 based on the flash point and boiling

point criteria used by the National Fire Protection Association (NFPA) for its highest

flammability hazard ranking (flash point below 73°F (22.8°C) and boiling point below 100°F

(37.8°C)), as set forth in NFPA’s Fire Protection Guide on Hazardous Materials, 1984, 8th ed.16

These characteristics of chemicals have not changed over time. Before proposing to add any

new flammables, EPA must evaluate whether there are changes that warrant inclusion today.

What is different today than in 1994? For any differences that EPA does identify, are those

substances actually used widely in industry and have they figured significantly in process safety

incidents that give rise to accidental release concerns? As ACC indicated in its comments on the

OSHA RFI, additions to chemical lists should only be considered following scientific analyses

showing a need for the additions.

b. Adding High and/or Low Explosives

ACC believes that EPA should not add high and/or low explosives to the list of regulated

substances. The rationale for the 1998 deletion of explosives from the list is equally applicable

today.

EPA has twice previously considered whether to include explosives in its list of regulated

substances. The initial 1994 list included explosives classified by the Department of

16 See 59 Fed. Reg. 4478, 4480 (Jan. 31, 1984).
7

Transportation (DOT) as Division 1.1 in 49 C.F.R. § 172.101, but EPA deleted them in 1998.

The initial proposal to list explosives triggered a large number of adverse comments:

More than 100 commenters, primarily explosives distributors and users, objected

to the listing of explosives in general. These commenters maintained that

explosives are regulated adequately by a number of agencies, including the

Bureau of Alcohol, Tobacco, and Firearms (BATF), DOT, OSHA, the Mine

Safety and Health Administration (MSHA), and the Department of Defense

(DOD). The commenters believe the requirements of the existing regulations

serve to prevent accidents and cited the safety record of the explosives industry as

evidence. The commenters believe the American Table of Distances, used by

BATF to set distances for storage of explosives, provides protection for the

community from the effects of an accidental explosion; this table is based on a

lower overpressure level than the 3.0 psi used by EPA to set the threshold for

explosives and, therefore, is more protective of the public. In addition, a number

of commenters said the 5,000-pound threshold proposed by EPA would not

restrict the effects of the rule to manufacturers, as suggested by EPA, but would

also cover many distribution and use sites. They noted that, for example, blasting

may require only a small quantity of high explosive (Division 1.1), but that the

entire quantity of explosives on-site used in blasting is treated as a high explosive;

the high explosive portion serves to initiate the reaction involving the entire

quantity.17

Nevertheless, EPA originally chose to include explosives, primarily to fill regulatory gaps:

While acknowledging that explosives are regulated by a number of other

agencies, EPA maintained that public safety would be enhanced if additional

information about explosives, such as hazard assessments, were available to

emergency response agencies and local emergency planners under section 112(r).

EPA’s primary concern was that there were gaps in the existing regulatory

framework in the area of communication with emergency responders and local

planners because existing regulations and programs were not comprehensive.

EPA noted that public safety would be enhanced by additional coordination

between facilities handling explosives and the local emergency planners and

responders.18

Subsequently, however, EPA learned that there were no regulatory gaps to be filled by

including explosives in its list of regulated substances:

Subsequent to promulgation of the List Rule, IME [the Institute of Makers of

Explosives] provided EPA with additional information about the extent of the

regulatory gaps discussed above, including coordination with emergency

responders. After additional review of other federal, state, and local laws and

regulations for explosives, as well as industry practices for explosives

17 59 Fed. Reg. 4478, 4487 (Jan. 31, 1996).

18 61 Fed. Reg. 16598, 16599 (Apr. 15, 1996).
8

manufacturing and storage, EPA has concluded that current regulations and

current and contemplated industry practices promote safety and accident

prevention in storage, handling, transportation, and use of explosives. As a result,

these regulations and practices adequately protect the public and the environment

from the hazards of accidents involving explosives.19

In deciding to delete explosives, EPA noted that all the comments received on the issue

supported deletion.20

The RFI cites CSB’s recent report on the Donaldson Enterprises explosion as a reason for

considering adding explosives back into the list of regulated substances. Notably, however, the

CSB report did not recommend this action. Instead, CSB recommended that EPA revise its

RCRA regulations on disposal of explosives and, in the meantime, issue RCRA guidance.21 The

1998 CSB report on the Sierra Chemical Company explosion, also cited in the RFI, did not

include any recommendations for EPA.22

One of the issues raised by the RFI relates an alternative to expanding the scope of RMP,

by expanding the use of EPCRA information. As EPA noted in the RFI, most explosives are

subject to EPCRA requirements:

Even after the removal of high explosives from the RMP list, most forms of

explosives (not just high explosives) remain subject to hazardous chemical

inventory reporting requirements under EPCRA. The owner or operator of any

facility with more than a reporting threshold of any hazardous chemical requiring

a safety data sheet (formerly material safety data sheet) under the OSHA Hazard

Communication Standard is required to submit safety data sheets to their State

Emergency Response Commission (SERC), LEPC, and local fire department, and

to annually report their inventory of hazardous chemicals to their SERC, LEPC,

and local fire department. This information should better prepare local authorities

to respond to emergencies at facilities that handle hazardous chemicals, including

explosives.23

ACC supports improved coordination with LEPCs with respect to information on explosives

already being reported.

c. Adding Ammonium Nitrate

While OSHA currently regulates storage of ammonium nitrate under 29 C.F.R. §

1910.109(i), EPA does not regulate ammonium nitrate as part of RMP. ACC recognizes that the

2013 incident at the West Fertilizer Company facility and other incidents create great pressure on

19 Id.; see also 63 Fed. Reg. 640, 641 (Jan. 6, 1998).

20 63 Fed. Reg. 640, 641 (Jan. 6, 1998).

21 CSB, Final Report: Donaldson Enterprises Inc. (2013), Recommendations 2011-06-I-HI-R9 and 2011-06-I-HIR10, http://www.csb.gov/assets/1/19/DEI_Final_01172013.pdf.

22 CSB, Final Report: Sierra Chemical Co. High Explosives Accident (1998),

http://www.csb.gov/assets/1/19/Final_Sierra.pdf.

23 EPA RFI, 79 Fed. Reg. 44604, 44608 (July 31, 2014).
9

EPA to add ammonium nitrate to the list of regulated substances. EPA should not do so without

an appropriate economic analyses, as required by applicable Executive Orders and statutes,

however.

EPA should consider that a large percentage of ammonium nitrate is used in agriculture

as fertilizer. The RFI acknowledges that approximately 4,000 facilities have reported that they

are bulk agricultural chemical distributors subject to Program 2 requirements, mainly due to onsite quantities of anhydrous ammonia. ACC anticipates that many more facilities, including

many family farms, would become subject to RMP requirements if ammonium nitrate were

added as a regulated substance.

EPA should conduct appropriate evaluations of the economic impact of adding

ammonium nitrate to the list of regulated substances before determining whether to propose that

addition. In addition, since ammonium nitrate is a reactive chemical, please see the next section

of these comments for additional concerns.

d. Adding Reactive Substances and Reactivity Hazards

ACC addressed this topic in its comments on the OSHA RFI in section II.B. As noted

above, those comments are incorporated here by reference. As with PSM’s list of highly

hazardous substances, the RMP list of regulated substance already includes a number of

chemicals that are highly reactive. A list-based approach is inherently inadequate to address

reactive chemicals, since for pairs of chemicals, which make up the vast majority of reactive

substances, extrinsic process and location-specific conditions must be considered in any hazard

assessment.

Before EPA takes any additional steps, it must first conduct a sound scientific analysis

and technical evaluation to justify expanding the list of regulated substances to include reactives.

Once it does so, it should prioritize reactivity hazards or conditions. Even within the highpriority class of chemicals that are self-reactive or violently reactive with air and/or water, EPA

should not categorically add those chemicals to the list of regulated substances without first

developing a valid, consistent methodology to identify threshold hazard quantities or

concentrations. EPA can most effectively accomplishing its goal of reducing the risk of reactive

chemicals by promoting awareness of the existing industry evaluation tools, references, and

guidance on how to evaluate reactive hazards.

e. Adding Other Categories of Substances

The RFI suggests the possibility of adding organic peroxides, oxidizers, combustible

dusts, or other flammable solids to the list of regulated substances. Many of the points made in

the ACC comments on the OSHA RFI, section II.B, also apply to this topic; those points are

incorporated here by reference.

EPA should acknowledge that OSHA has struggled even 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

inherent hazard but only a consequence of the particular form of the material, particularly related
10

to particle size.24 While OSHA has unilaterally applied hazard communication requirements to

combustible dust, it decided to bypass adoption of a definition of that key term altogether25 while

it considers rulemaking.26

ACC is aware of the nature and risks of combustible dust in the workplace. However,

these risks, if not properly addressed, are presented to employees in the workplace, not to offsite

public receptors or the environment. EPA has not suggested that it has any evidence of

combustible dust presenting a significant risk to public health or the environment. There is

therefore no basis for EPA to consider regulating combustible dust under the RMP rule. The

risks posed by combustible dust are for consideration by OSHA, not by EPA.

f. Removing Certain Substances From the List or Raising Their

Threshold Quantity

ACC has not had sufficient time to develop a response to this item.

g. Lowering the Threshold Quantity for Substances Currently on the

List

ACC is not aware of any listed regulated substances for which the current threshold

quantity should be lowered.

2. ADDITIONAL RISK MANAGEMENT PROGRAM ELEMENTS

ACC addressed this topic in its comments on the OSHA RFI. See section II.C of those

comments.

3. UPDATES TO APPLICABLE RECOGNIZED AND GENERALLY

ACCEPTED GOOD ENGINEERING PRACTICES

ACC addressed this topic in its comments on the OSHA RFI. See section II.D of those

comments.

4. SAFETY-CRITICAL EQUIPMENT

ACC addressed this topic in its comments on the OSHA RFI. See section II.E of those

comments.

5. MANAGING ORGANIZATIONAL CHANGE

ACC addressed this topic in its comments on the OSHA RFI. See section II.F of those

comments.

24 See 77 Fed. Reg. 17574, 17704 (Mar. 26, 2012).

25 Id. at 17705

26 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.
11

6. REQUIRE THIRD-PARTY COMPLIANCE AUDITS

ACC addressed this topic in its comments on the OSHA RFI. See section II.H of those

comments.

7. EFFECTS OF OSHA PSM COVERAGE ON RMP APPLICABILITY

ACC addressed the topic of OSHA’s interpretation of its exemption for retail facilities in

the comments on the OSHA RFI. See section II.J of those comments.

As the EPA RFI notes, if OSHA were to alter its interpretation as suggested, most of the

stationary sources currently in Program 2 would become subject to Program 3. EPA should

conduct appropriate economic analyses of the impact of such a change, as required by applicable

Executive Orders and statutes, before OSHA or EPA seeks to propose any amendments to effect

that change.

II. COMMENTS ON ADDITIONAL ITEMS FOR WHICH EPA REQUESTS

INFORMATION (SECTION II.D. OF THE EPA RFI)

1. ACC STRONGLY OPPOSES INCORPORATING INHERENTLY

SAFER TECHNOLOGY REQUIREMENTS INTO THE RMP

REGULATION

“EPA is planning the following steps to advance safer technologies and alternatives:

 Publishing a joint alert with OSHA illustrating the concepts, principles and examples of

safer technology and alternatives to make industry more aware of this information, while

providing sources of information for further investigation and review

 Publishing a voluntary guidance document with OSHA for operators on how to reduce

risks by employing safer technology and alternatives, by offering a more thorough

examination of alternative measures and safety techniques, including examples of safer

technology and alternatives or practices

 Based on the evaluation of feedback from the alert, guidance, and this RFI, EPA would

consider proposing an amendment to the RMP regulations that requires:

o An analysis and documentation of safer technologies and alternative

o Integration of the safer technologies and alternatives analysis into the PHA

o Implementation of safer technologies and alternatives where feasible; EPA would

not make any determination regarding the specific analysis, technology, design, or

process selection by chemical facility owners or operators.” 27

ACC Strongly Opposes Incorporating an IST Mandate Into the RMP Regulation

ACC and our member companies work continuously to improve process safety standards

and practices with comprehensive management systems that include consideration of inherently

safer technologies. The business of chemistry has a culture of safety going back many years.

The nature of our operations requires it. This culture of safety has created what Labor

27 79 Fed. Reg. at 44621 (For ease of reference, in shaded text placed throughout this submission, ACC has included

excerpts from EPA’s RFI for each item to which ACC offers comment).
12

Department data reveals is one of the safest industries in the United States. ACC member

companies have reduced the number of safety incidents that result in a product spill, fire,

explosion or injury by 58% since 1995, and have reduced their recordable injury and illness

incidence rates by 80% since 1990.28 In fact, the total recordable injury rate for the chemical

industry as reported by the Bureau of Labor Statistics is substantially lower than the rate for

private industry and the rate for all industry including state and local government.29 This

commitment to safety is expressed through Responsible Care®, our Council’s initiative for

improving performance; our adherence to, and support for, governmental standards and research;

and our longstanding and effective partnerships with local, state and federal government

agencies. As a result of this focus on safety, ACC’s Responsible Care® companies have a

worker illness and injury rate that is roughly one-fifth that of the U.S. manufacturing sector as a

whole, and roughly one-third that of the business of chemistry overall.

Rather than mandating IST reviews, EPA should promote the use of safer alternatives and

practices by (1) supporting industry programs that have demonstrated effectiveness (e.g., ACC’s

Responsible Care®, SOCMA’s ChemStewards®, and NACD’s Responsible Distribution®), (2)

issuing alerts and guidance under EPA’s RMP program to increase awareness of requirements,

and to enhance knowledge of industry standards in the regulated community, and (3) supporting

existing resource centers where process safety experts can share safer alternative techniques and

approaches. These actions would be more effective at addressing risk than what could be

accomplished through a rule change that mandates IST. In particular, these actions would focus

on reaching facilities with potential risks that currently may operate without good knowledge of

the existing regulatory requirements and structure.

ACC believes that a regulatory approach mandating the consideration or adoption of safer

technology would be counterproductive. ACC opposes the incorporation into regulatory

programs of new mandates to consider or implement inherently safer technologies (IST). As

described in the Center for Chemical Process Safety (CCPS) and American Institute of Chemical

Engineers (AIChE) Report30 on the definition of IST, “safer” only has a meaning when placed in

proper context—factors such as risk shifting, unintended consequences, feasibility, and

economic impact must be considered and may negate any benefits initially assumed to accrue.

This broad definition, along with other well-established industry references on IST, illustrates the

difficulty of adopting a mandatory regulatory program pursuing “safer alternatives.”

Furthermore, every regulatory program has a distinct focus, whether it is employee safety,

environmental protection, or security. Therefore, IST mandates under one program cannot

account for and may even conflict with other factors that a facility incorporates in its

individualized consideration of inherently safer approaches. The facility operators, however, are

able to and do consider inherently safer approaches holistically, in order to ensure the highest

degree of safety in all respects.

28 See http://responsiblecare.americanchemistry.com/Performance-Results/Safety#worker.

29 See : http://www.bls.gov/news.release/pdf/osh.pdf, Table 1, Incidence rates of nonfatal occupational injuries and

illnesses by case type and ownership, selected industries (BLS, 2012).

30 Center for Chemical Process Safety, The American Institute of Chemical Engineers For Chemical Security

Analysis Center Science & Technology Directorate, U.S. Department of Homeland Security, Final Report:

Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use (July 2010).
13

IST decisions must be process-, site-, and hazard-specific, technically and economically

feasible, and avoid shifting risk. Regulation-based mandatory IST policies are not feasible

because they do not consider the numerous factors related to processes, facilities and society at

large. As such, proposed regulatory approaches have failed to address the potential for trading

one risk for another. A regulatory program focused exclusively on eliminating a safety hazard

would overlook other important considerations and risks that must be factored into an evaluation

of a process change.

EPA understood the complexity of IST decisions when it promulgated the RMP

regulations in the 1990s. EPA stated then that it did not believe an IST requirement would

produce additional benefits beyond those existing under the general program structure.31 EPA

rightly acknowledged that assessment of inherently safer design alternatives has the greatest

benefit in the development of new processes. Industry generally examines new process

alternatives in the planning and permitting stages prior to making a capital investment to ensure

that the design chosen will be the best fit for the specific planned process. Rationally, industry is

motivated to do so in order to minimize the costs of administrative, engineering and pollution

controls that would be necessary to mitigate outdated designs. Further, although some existing

processes may superficially be judged inherently less safe than other processes, EPA believed

that industry could appropriately and safely operate these processes using proper management

and hazard controls, without squandering resources searching for unavailable, unaffordable or

impractical new process technologies. ACC believes the same considerations apply today.

Inherently safer approaches have been and will continue to be considered by facilities as

a matter of course. In fact, one of the key elements under ACC’s Responsible Care Process

Safety Code requires ACC member companies to consider safer alternatives as one of many risk

reduction measures when conducting a risk assessment. Importantly, the facility operator is in

the best position to have a comprehensive picture of what may or may not work and how the

facility environment will be impacted by process changes. Companies must be allowed to

continue to use all risk management tools and options at their disposal, and the consideration of

available options must be placed in the context of the complexities of their unique operating

environments. Because of these complexities, regulating the use of “safer alternatives” through

rule mandate is not feasible. No single regulatory program addresses the holistic safety and

security environment of a given facility. No single agency can fully appreciate the entirety of

operational issues across industry sectors, and therefore no single agency should attempt to

mandate a particular use of “safe alternatives.”

For example, under RMP, EPA is concerned with preventing accidental releases of

hazardous chemicals offsite and mitigating the consequences of such releases. Separately,

OSHA’s PSM program is concerned with preventing or mitigating the consequences of

catastrophic releases of industrial processes in the workplace. While there may be overlap

between these programs, the regulations, by design and intent, do not address the same issues.

An analysis of technologies that are intended solely to reduce offsite impacts could certainly

result in the selection of different technology options than an analysis of technologies that are

31 See EPA Preamble to Final Rule, Accidental Release Prevention Requirements: Risk Management Programs

Under Clean Air Act Section 112(r)(7), 61 Fed. Reg. 31,668 to 31,730 (June 20, 1996), available at

http://www.gpo.gov/fdsys/pkg/FR-1996-06-20/html/96-14597.htm.
14

intended solely to reduce workplace exposures. Given the differing mandates of the two

programs, any “safer approach” requirement that might be proposed to enhance any one of these

programs would necessarily be limited in scope and could interfere with implementation of the

other program. Taken together, however, the array of existing regulatory programs, currently

encourage facilities to consider and implement site-specific safer alternatives where they are

appropriate.

ACC’s members and industry are committed to chemical safety and recognize IST as one

of many potential tools to achieve this goal. See Multi-Association Letter on IST (attached as

Appendix 2); CCPS Executive Director Scott Berger, Comments to US Senate Environment and

Public Works Committee Hearing (March 6, 2014) (attached as Appendix 3); CCPS Executive

Director Scott Berger, Comments to the EPA Listening Session (February 27, 2014) (attached as

Appendix 4). However, requiring the documented use of inherently safer systems analysis is

inappropriate and founded upon erroneous suppositions.

IST is a complex concept that requires a holistic risk assessment approach. Current

regulatory programs, as well as corporate practices, already encourage facilities to incorporate

IST, where and as appropriate. As they exist today, OSHA’s PSM standard, EPA’s RMP Rule,

the U.S. Department of Transportation’s (DOT’s) Hazardous Materials regulations under the

Pipeline and Hazardous Materials Safety Administration (PHMSA), and the U.S. Department of

Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) all require

operators to comprehensively examine operations and take necessary steps to make their

processes and the environment safe and secure. Creating new IST mandates would require

unprecedented complexity while providing little benefit. Indeed, such mandates could actually

hinder the federal government’s ability to implement existing safety and security programs by

emphasizing IST over other more appropriate process safety and security techniques.

A. Definitions

The term IST encompasses several terms of art, including inherent safety, that are used

by experts in the field of process safety. ACC has adopted the definitions of these terms that

were developed by DHS’s Chemical Security Analysis Center (CSAC) and CCPS. CSAC and

CCPS “produced a short, scientific definition of IST” as follows:

INHERENTLY SAFER TECHNOLOGY DEFINITION

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.
15

 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.

CCPS & DHS, Final Report: Definitions for Inherently Safer Technology in Production,

Transportation, Storage, and Use at Section 3.1 (July 2010).

This definition highlights that the application of IST analysis is necessarily part of an

iterative risk management process. It is one of many tools in the risk management toolbox that

should be applied in a unique site-specific continuum of other important risk management tools.

As such, the application of IST analysis is not suited for EPA’s rigid command/control/enforce

approach to regulatory programs.

Further, inherent safety is an element of plant design, process and transportation safety,

and customer applications. While IST has been implemented within our industry for decades,

certain high-profile incidents have been the catalyst for agency rationalization that inherent

safety could provide benefits by minimizing the consequences of a chemical incident. However,

by its very definition, “inherent safety” means safety and security elements that are built into a

process in the early stages of its life cycle, thereby limiting the need to add these elements as

“layers of safety” as a part of the process risk management program. Process risk management,

which is illustrated in Figure 1 below, involves “collective efforts to manage process risks

through a wide variety of strategies, techniques, procedures, policies and systems that can reduce

the hazard of a process, the probability of an accident, or both.” See CCPS Concept Book,

Inherently Safer Chemical Processes, A life Cycle Approach, at 11 (2d ed. 2008).
16

B. Inherent Safety Strategies

The strategies used in chemical process engineering to reduce and mitigate risks

associated with containment of hazardous chemicals or energy are listed below. It is important to

acknowledge that while any one of these strategies may successfully mitigate a discrete risk in a

given situation, it is impossible to completely eliminate all process risk. Rather, these strategies

are used to successfully manage inherent risks to prevent releases and their consequences.

1. Minimization/Intensification. Using smaller quantities of hazardous substances within

the process. This can be accomplished by a variety of means, such as reducing or

eliminating in-process storage, using fewer pieces of equipment, or using equipment

that holds smaller volumes.

2. Substitution. Replacing a particular material with a less hazardous substance is

sometimes possible if the chemistry of the process will allow it. For example, helium,

which does not burn, may be an inherently safer substance compared to hydrogen,

which is highly combustible.

3. Moderation/Attenuation. Adopting practices that support less hazardous conditions

(such as lower temperature or pressure) or a less hazardous form of material can be
17

utilized if the chemistry of the process allows it. An example might be the use of a

catalyst to lower the temperature of a reaction required to achieve the same level of

conversion.

4. Simplification/Error Tolerance. Designing to eliminate or tolerate operating errors;

making the plant more user-friendly and reliable. A simple example is the redesign of

pop tops on aluminum beverage cans so that the tab does not come off when opened,

thus eliminating the prospect of the person opening the can (or anyone else) getting

cut by the top. An extreme example, Safety Instrumented Systems, eliminates the

interaction of the operator with the process altogether.

See id. at 13. It is very important to understand that even when properly implemented, these

strategies cannot reduce overall process-related risk to zero. “[T]here are often, and perhaps

always, conflicting benefits and liabilities associated with the different options.” See id. at 30.

Reducing one hazard may create a new hazard and/or increase the magnitude of an existing

hazard. This conflict highlights the need for those making IST decisions to have intimate

knowledge of all the hazards associated with a process and its alternatives.

C. History of IST Application

The concept of inherent safety was developed decades ago by an industry chemist.

Inherently safer design and technology have long been core elements of process safety, plant

design and sound business practices in the chemistry industry. Recent public debate around IST

demonstrates a fundamental lack of knowledge about the presence of IST throughout the United

States chemical industry. The debate also highlights the potential heterogeneity within the

industry regarding the application of IST.

Existing EPA and OSHA regulations also drive consideration of inherently safer

approaches without specific regulatory directives. OSHA’s PSM standard and EPA’s RMP rule

both require the use of periodic process hazard analyses. These federal programs mirror ACC’s

Responsible Care Management System® (RCMS®) for process safety. Under this approach, a

PHA is defined as “periodic assessment and documentation of process hazards, and

implementation of actions to minimize risks associated with chemical operations, including the

possibility of human error.” When EPA promulgated the RMP Rule, some commenters asked

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

approaches. EPA declined to do so, stating:

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

for risk reduction, which may include features such as inventory reduction,

material substitution, and process control changes. These changes are made as

opportunities arise, without regulation or adoption of completely new and

unproven process technologies. . . . EPA does not believe that a requirement that

sources conduct searches or analyses of alternative processing technologies for

new or existing processes will produce additional benefits beyond those accruing

to the rule already.

See EPA Preamble to Final Rule, 61 Fed. Reg. 31,699 (June 20, 1996) (emphasis added). EPA

thus recognized that it would be counterproductive to impose an IST mandate.
18

D. Rationale For Consideration of IST

Because “inherently safer” is a way of thinking and involves a risk management

approach, any prescriptive legislative and regulatory approaches to addressing IST are not

practical. The chemical industry can and does consider inherently safer principles as a part of

individual company risk management programs and mitigation techniques, including the use of

formal risk-assessment and risk-minimization technology, which are already being applied to

chemical processes. This approach must consider total risk32 and the economic burden to

potentially regulated facilities – as potential hazard does not always equate to potential risk, and

cost could far outweigh potential benefit.

The public is best protected by focusing on risks, not hazards. As the United States

Supreme Court explained in the Benzene case, 448 U.S. 607 (1980) (J. Stevens, plurality),

accepting the possibility of even deadly consequences (for example when driving a car) is a part

of participating in society; the real question is not whether the consequence is serious, but rather

the risk, the likelihood that the consequence occurs. While many groups focus only on reducing

hazards, the best way to protect workers, community and the environment is to focus on risks,

that is, to analyze which hazards are most significant and which threats are most likely. Then

company resources for mitigating risk can be, and indeed already are, allocated in the most

effective and efficient way. If the focus is only on hazard reduction, the most important risks can

be overlooked and resources squandered on less important initiatives. The myriad challenges

associated with regulating an operator’s consideration of IST, as listed below, illustrate why it

would be virtually impossible to craft an IST regulation that would have any useful benefit:

 Total risk elimination is not possible. Industry must not be required to

continually evaluate and implement some form of IST, with no real safety

benefit and at a potentially significant cost. No acceptable endpoint can be

imposed by regulation for disparate facilities, and without a defined endpoint,

industry would be required to continually analyze and modify its processes

due to a constantly changing understanding of IST, resulting in a never-ending

cycle of modification and increasing cost.

 The regulatory implications of the meaning of “consideration of safer

alternatives” are not clear. For example:

o What decision-making criteria will be required for

acceptance/rejection of IST at various stages of an IST evaluation

process?

o Are economic considerations alone enough to reject an IST solution in

favor of some other method of protection (such as instrumented safety

systems (active protection))?

32 The total risk approach in this context seeks to minimize risks overall from the transportation, storage and use of

chemicals.
19

o When should an IST evaluation process be carried out during the plant

life cycle, and in relationship to (potential) scientific developments

behind the IST?

o What level of documentation is necessary to justify a decision?

 It is not possible to delineate the precise role of existing federal/state/local

requirements and of existing facility inherently safer measures.

 Trade secret and proprietary information restrictions provide limitations on a

company’s ability to modify its processes. See ACC IST Materials, Factors

that Affect IST Decision Making & Examples of Limitations of Mandating

Inherently Safer Approaches (attached as Appendix 5, Attachment 1).

 It is not feasible to adapt the performance standard based approach to process

risk management to a regulatory framework.

 IST raises significant risk-shifting concerns that must be evaluated. How

would an agency evaluate risk-shifting in determining what is inherently safer

and from where would it draw process knowledge to understand the process

risks that must be considered?

These issues demonstrate that IST requirements should not be mandated in the RMP Rule.

E. Rationale Against Mandatory IST

While certain types of existing processes can accommodate retrofit IST, many cannot.

There are now a sufficient number of both theoretical and actual well-intended examples of IST

approaches that are meant to solve what appear to be straightforward safety and risk issues, but

could or have resulted in trading one risk for another. Thus, mandatory, regulated IST would

frequently create risks to workers and the public that did not previously exist, and which may be

of greater magnitude than the initial risk. Placing the decision of technology selection into the

hands of regulators will never be the answer to the complex questions of if, what, how and when

IST should be implemented. It is simply beyond the ability of any single regulatory entity to

understand and make good judgments about what would constitute an inherently safer approach

in every relevant setting. The administrative decision-making process is not well suited to

making decisions based on risks, tradeoffs, and predictions about future risks that are

unavoidable in inherently safer approaches.

Even if the burden of making choices was left up to facilities via a “performance-based”

requirement, it would be unreasonable to create civil and criminal liability given the inherent

uncertainty about future risks. Factors that complicate mandating IST are described in ACC IST

Materials, Example of IST scenario involving proprietary information (attached as Appendix 5,

Attachment 2), along with examples of the unintended adverse consequences of certain real and

theoretical IST decisions. In particular, ACC has evaluated a state program that imposed ISTrequirements: the New Jersey Toxic Catastrophe Prevention Act.

 New Jersey Toxic Catastrophe Prevention Act
20

In 1985, the State of New Jersey enacted the Toxic Catastrophe Prevention Act (TCPA),

which required risk reduction plans to look at potential alternative processes, procedures, and

equipment that might reduce the risk of a hazardous release in hopes of preventing future

hazardous environmental incidents. The TCPA program rules were revised in 2003, and the

changes explicitly mentioned and defined inherently safer technologies (IST) as “the principles

or techniques incorporated in a newly designed and constructed covered process to minimize or

eliminate the potential for an extraordinary hazardous substances accident.” At that time, the

New Jersey Department of Environmental Protection (NJDEP) stated that “every IST technique

will not be suitable for every process and will rely on the owner or operator’s evaluation of

which techniques, if any, will be appropriate for a particular newly design or constructed

process.” In 2008, the TCPA program was expanded to require all TCPA facilities to conduct

IST reviews on both new and existing processes that contain a listed EHS meeting or exceeding

the regulatory threshold. See 40 N.J.R. 2254(a) (May 5, 2008). All TCPA facilities were required

to submit IST feasibility reports to the NJDEP by September 2, 2008.

In April 2012, a representative of the NJDEP delivered a presentation based on a study

performed by the State of New Jersey.33 The presentation focused on the initial lot of 85 IST

feasibility reports submitted under the TCPA IST program. It was reported that 45 facility

reports out of the 85 total (53 percent) indicated they had implemented or scheduled to

implement IST measures as a result of their review. Facilities were categorized into six sectors:

chemical manufacturing, petroleum refining, food processing, power generation, water or

wastewater treatment, and other industrial sectors. Incorporating inherent safety into a chemical

manufacturing process is generally considered to be most effective when employed during the

new process plant design phase and incorporated as an integral part of the process or final end

product. IST becomes increasingly more difficult and, in many cases, prohibitive when dealing

with existing processes that are not easily changed without fundamentally altering the process or

plant design. Therefore, NJDEP was concerned that the potential IST implementation options

would be significantly limited under the TCPA for existing facilities.

As a result, the State of New Jersey created its own definition of IST for New Jersey

regulatory purposes, as opposed to using the widely recognized definition developed by the

CCPS. NJDEP stretched the definition of IST to include passive, active, and procedural controls

as well as to the fundamentals of chemical processing. In NJDEP’s effort to broaden the IST

application under the TCPA, it included routine safety improvements that are considered and

implemented on a regular schedule by chemical facilities as required by internal maintenance

programs and existing federal regulations, such as OSHA’s Process Safety Management of

Highly Hazardous Chemicals (PSM) standard. The NJDEP incorrectly defined inherent safety to

allow “add-on” safety equipment that is not part of the inherent safety concept as defined by

CCPS and others. Of the 205 IST measures implemented under the New Jersey TCPA program,

the vast majority were reported under the “simplification” strategy, which New Jersey believed

did not necessarily result in elimination of an inherent hazard, but rather made a hazard less

intense or less likely to occur by reducing the opportunity for operator error.

33 Iclal Atay and Paul Komosinsky, “Inherently Safer Technology Implementation—Risk Reduction and Risk

Shifting,” Process Safety Progress 32, no. 1 (November 28, 2012): 12-16.

http://onlinelibrary.wiley.com/doi/10.1002/prs.11547/pdf.
21

The types of IST implemented under the “simplification strategy” included a variety of

routine safety upgrades, such as installing new computer systems, adding remote shutoff valves

and alarms, and adding leak detectors and process instrumentation to monitor operating

conditions—none of which truly makes a process “inherently” safer. Other changes reported

included the upgrading of construction materials, minimizing connections and flanges in process

equipment and piping, upgrading to blowout resistant gaskets, increasing wall strength of piping

and equipment, and reducing pipe seams and joints to minimize the number of potential release

points.

While such safety enhancements are useful and do contribute to managing safety risk

(rather than risk elimination or reduction, which are the defining goals of IST) at a chemical

facility, they do not make the process “inherently” safer. Such safety upgrades are currently

routinely conducted on a regular and voluntary basis when new technology and software become

available and when they contribute to reducing process hazards. Moreover, these types of

enhancements are currently required to be evaluated under the OSHA PSM standard to address

site-specific risks at least every five years when PHAs are revalidated. No “IST consideration”

mandate is needed to encourage facilities to consider these types of changes, as they are

identified routinely under other regulatory and voluntary programs.

Based on our analysis of the New Jersey IST program, it is difficult to see how nationalizing this

program would provide any significant new risk reduction benefit, especially when compared to

the enormous burdens it would place on facility owners and the economy. It is unclear how

federal regulators would be able to absorb and administer such a complex program without a

significant increase in resources and additional budget. In fact, EPA itself has long held that IST

requirements are not worth pursuing since it would not produce additional benefits beyond those

that already exist in the current RMP Rule structure.

F. Rationale in Favor of Voluntary Safety Management Programs

The chemical industry is committed to continual improvement in its safety programs. For

example, ACC and its members already have taken the lead in developing a new paradigm of

process safety that not only complements the current regulatory structures (PSM and RMP), but

goes beyond the current regulatory requirements to require the broad framework of a safety

management system. This system reflects a culture of continuous improvement, all without the

intervention of a regulator and under the discretion of the employer, who has better

understanding of the specific workplace conditions and the unique site-specific balancing of risks

that is necessary to run a sophisticated safety program.

ACC requires each member to achieve certain goals in the Responsible Care®

Management System and the RC14001 Technical Specifications, including the following: (1) to

make continual progress toward the aim of no accidents, injuries, or harm to human health or the

environment; (2) to design and operate facilities in a safe, secure, and environmentally sound

manner; (3) to install a culture throughout all levels of member organizations to continually

identify, reduce, and manage process safety risks; (4) to support research on the health, safety,

and environmental effects of member products and processes; and (5) to communicate product,

service, and process risks to our stakeholders. Conformance to these goals and practices is

confirmed through voluntary third-party audits conducted on ACC members.
22

Specifically, each ACC member must commit to implementing and adhering to the

following process safety management practices:

1. Leadership and Culture – Senior management and leadership are committed to

establishing and communicating process safety as a core value and enforcing high

standards of performance at all levels within the organization. Company leadership

also promotes and develops a process safety culture within the organization,

encouraging openness to raise concerns and identify opportunities for improvement.

2. Accountability – Process safety roles and responsibilities across the organization are

clearly defined and include an expectation to identify, and authority to respond to,

process safety concerns. Senior leaders are held accountable for process safety

performance, while employees understand the importance of process safety as it

applies to their jobs and are responsible for following and contributing to the work

processes to achieve improvement in company process safety performance.

3. Knowledge, expertise and training – Process safety competency requirements are

established and executed for management, engineering, and operational personnel, as

well as contractors and third-party service providers, commensurate with the

activities performed.

4. Understanding and prioritization of process safety risks – Member companies identify

and understand the hazards and risks of their processes and implement systems for

documenting and accessing comprehensive and current information on processrelated hazards and risks to enable informed decision-making.

5. Comprehensive process safety management system – Member companies design

systems to manage and mitigate identified risks with adequate safeguards.

Management of process safety considers passive controls; engineering controls;

operational controls; inherently safer approaches; inspection, maintenance, and

mechanical integrity programs; management of change procedures; and scenario

planning.

6. Information sharing – Member companies establish processes fostering two-way flow

of information between management, employees, contractors and other stakeholders

to share process safety information, ensuring that experiences from process safety

reviews, inspections, audits, and incident and near-miss investigations are shared, as

relevant, across the company in a timely manner.

7. Monitoring and improving performance – Senior management and leadership

continually monitor process safety performance through routine evaluation of process

safety management systems, independent of regulatory audits, to confirm that the

desired results are achieved, using appropriate leading and lagging indicators.

Results are reviewed at planned intervals to determine progress against process safety

performance expectations and to take action to improve performance when needed.

Under the Responsible Care® program, each ACC member is required to demonstrate

compliance with each of these elements. This commitment to safety is expressed through
23

Responsible Care®, our industry’s initiative for improving performance; our adherence to, and

support for, governmental standards and research; and our longstanding and effective

partnerships with local, state and federal government agencies.

2. REQUIREMENTS FOR EMERGENCY DRILLS TO TEST A SOURCE’S

EMERGENCY RESPONSE PROGRAM SHOULD BE PERFORMANCE

BASED AND FLEXIBLE

“In order to improve coordination with community responders and ensure that facility personnel

have practice responding to accidental releases, EPA is considering 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.”34

EPA has provided no data indicating that additional regulatory requirements are needed

to promote the effective implementation of the emergency response program under Subpart E of

the RMP regulations. The existing requirements, coupled with voluntary programs like ACC’s

Responsible Care®, have been sufficient for ACC members to ensure that facility personnel and

contractors are trained and able to coordinate with community responders when responding to

accidental releases. ACC does believe that additional outreach and education opportunities for

stakeholders and the general public would be useful to promote awareness of the benefits of

drills in certain circumstances, but does not believe that a one-size-fits-all mandate to perform

such drills is appropriate or necessary.

If EPA were to focus its resources in this area on issuing and disseminating guidance on

the benefits of emergency drills, ACC believes that these efforts would help to reach those

facilities that may not currently perform such drills, or that may not have fully coordinated their

response plans with local responders. The target audience in this instance is those facilities that

do not currently perform these drills or undertake sufficient coordination efforts. Imposing

mandates on facilities that already perform emergency drills or already coordinate adequately

with local responders will not enhance safety or reduce the consequences of accidental releases.

EPA’s existing regulations and guidance on emergency drills are sufficiently

comprehensive. EPA’s guidance on the emergency response plan requirements under Part 68 of

the RMP regulations indicates that the emergency response program developed and implemented

at each covered facility should include a section describing the training employees will receive in

relevant emergency response procedures, and that owners/operators should keep on hand at the

facility records sufficient to demonstrate compliance with the training and maintenance

requirements.35 EPA’s guidance also emphasizes the importance of conducting regular training

in order to ensure that the program is as useful as possible in an emergency. Lastly, the guidance

recommends that the training procedures in any emergency response plan should:

address the actions to take in response to releases of regulated substances from all covered

processes. The training should be based directly on the procedures that you have included in

34 79 Fed. Reg. at 44623.

35 See EPA, General RMP Guidance - Chapter 8: Emergency Response Program (Apr. 2004) (Emergency Response

Guidance), available at http://www2.epa.gov/sites/production/files/2013-11/documents/chap-08-final.pdf.
24

your emergency response plan and must be given to all employees and contractors on site.

Individuals should receive training appropriate to their responsibilities:

 If they will only need to evacuate, then their training should cover when and how to

evacuate their location.

 If they may need to activate an alarm system in response to a release event, then their

training should cover when and how to use the alarm system.

 If they will serve on an emergency response team, then their training should cover where

emergency equipment is deployed, how to use emergency equipment and how the

incident command system works.

Emergency Response Guidance at 8-15.

ACC recognizes the usefulness of emergency response training, and of programs that

practice emergency response by periodically exercising the program, evaluating performance and

making improvements based on observed conditions. ACC members currently devote

substantial resources to implementing their emergency response training programs, providing

such training and implementation opportunities to employees, often in coordination with

designated emergency responders. In addition to the existing regulatory requirements, ACC’s

Responsible Care program includes a RCMS® and RC14001® technical specifications that

require member companies to establish and maintain procedures to respond to accidents and

emergency situations, including consideration of communications and community recovery

needs, participation in the development, implementation and maintenance of community

emergency preparedness plans, and a process for responding to incidents. The specifications call

for periodic tests of these procedures where that is practical, to allow for a policy that is

responsive to individual site differences.

Consequently, ACC supports a performance-based approach to emergency response plan

implementation and training requirements, in which EPA provides flexibility to sources to tailor

their plans and their training to reflect local conditions. It is extremely important that emergency

response requirements are not prescriptive, in order to allow for the development and

implementation of plans that are truly responsive to the needs and capabilities of each site and

locale.

Emergency Response Drills and Exercises

Drills and exercises of emergency response plans are best designed on a voluntary basis,

tailored to individual facility circumstances. Facilities are best equipped to determine the need,

frequency, and size of these drills, taking into consideration internal resources and the

capabilities of local responders. The costs of conducting an exercise can be significant for many

RMP-regulated facilities. An excessive number of drills, if required by regulation, could come at

a high cost with only marginal benefit, or could divert resources from other important safety

activities. Depending upon the location and size of the facility or process unit involved, and the

degree of LEPC and other emergency responder involvement, drills can involve a varying degree

of expenses and personnel resources.

For smaller facilities, and those that could be deemed higher risk due to the type of

operations they conduct, EPA can better disseminate additional guidance on the value of
25

emergency response drills, and the conditions in which they have been found to be effective.

Individual facilities will then be able to determine for themselves the value and nature of these

drills, tailored to their individual circumstances.

For those facilities conducting drills, the parameters of a drill should be determined by

the facility management, and they should be coordinated with public officials if the risk and

response warrants it, and if response agencies are willing. While each facility will keep records

of its drills in order to comply with auditing requirements, there should be no new requirements

to report the results of these drills to EPA. EPA does not have the resources or site-specific

expertise to review and critique such reports, and creating a process to submit such information

would likely divert facility resources from more productive safety activities.

When dealing with an actual accidental release, ACC’s member facilities already

document their lessons learned and recommendations for future incidents or potential emergency

response exercises so that knowledge from each incident can be used to assist in reducing future

risks. These internal activities occur within the context of existing regulations and procedures

(e.g., the response evaluation or the root cause investigation), so additional requirements for

incident recordkeeping and reporting are not necessary.

ACC has not had the time necessary to prepare responses to each question in the

Emergency Drills section of the EPA RFI directly. These comments have been offered to raise

general concerns only. ACC offers a few supplemental responses below to questions EPA asked

in the RFI, but also requests that EPA offer additional opportunity to address the important

questions that have been raised.

a. Are RMP-regulated facilities currently exercising their emergency

response plans?

ACC members exercise their emergency response plans to fulfill and supplement a variety of

requirements, including those of OSHA (29C.F.R. § 1910.38, 29 C.F.R. § 1910.120, and 29

C.F.R. §1910.1200); EPA (40 C.F.R. § 68.95(c), and 33 CFR §§155.1035 and 155.1040); DHS

(6 C.F.R. Part 27); and DOT (29 C.F.R. Part 172 Subpart H). In addition, ACC members

implement these plans through ACC’s Responsible Care program.

b. What should be the scope of an exercise/drill program?

Individual emergency response plan activities and coordination efforts with local responders and

authorities are by their very nature extremely site- and community-specific. Neither of these

activities lends itself to prescriptive requirements. The current OSHA emergency response plan

provisions contain a list of elements that must be addressed in a plan when employees will be

responding to emergencies, and when employees will not be responding to emergencies.36

Importantly, OSHA has recognized that while elements should be addressed in these plans, the

specific decisions on how they should be addressed have been left to facility managers, who are

best positioned to evaluate these factors. Similarly, the current RMP regulation does not contain

specific prescriptive requirements for the emergency response plan and this is appropriate as it

acknowledges the importance of tailored approaches at each site.

36 29 C.F.R. §1910.120(q)(2), and 29 C.F.R. §1910.38.
26

The scope of each emergency response drill must vary depending upon the type of incident that

is addressed, and the location of the incident. Procedures for responding to an oil spill will be

entirely different from procedures for responding to a toxic gas release. The amount of

community response support required, if at all, the equipment needed, the involvement of

medical personnel, if at all, and whether local employees or outside responders are involved, all

vary tremendously depending on these variables. Emergency response planners at individual

facilities currently make these determinations based on the risks presented, the potential for an

incident, and the need for training.

Community response capabilities and resources also vary substantially from community to

community. EPA cannot impose specific community participation mandates in RMP emergency

response drill requirements as the capacity of community responders is entirely beyond the

control of each facility.

c. Who should be involved in the exercise program?

Please see our response to item b. above.

d. How should lessons learned and recommendations be documented

and addressed? What timeframe should be considered for completing

such records? How long should records of exercises/drills be

maintained?

This question assumes that EPA will adopt a prescriptive approach to emergency drills, with

specific documentation and post-drill evaluation and action requirements. As noted above, ACC

does not agree that this approach is appropriate. Whether and the extent to which emergency

drills are needed, and the scope and frequency of any drills, should be a site-specific decision,

based on an evaluation of the risks and benefits. The provisions for emergency planning and

responses that are already required in 29 C.F.R. §1910.120 should be considered adequate. It is

reasonable to assume that the every 3 year compliance audit would review and evaluate the

adequacy of the response to lessons learned.

e. Should stationary source operators be required to document and

address lessons learned and recommendations when they respond to

an actual accidental release?

The RMP rule already contains requirements for Program 2 and 3 facilities to conduct incident

investigations.37 These requirements include timing, scope recommendations, documentation,

post-investigation action, and records retention. EPA has offered no information suggesting that

additional requirements would reduce the risks of accidental chemical release. No additional

requirements should be added to these rule provisions.

f. Should information such as the date of the most recent exercise

involving the

emergency response plan be required to be reported to EPA in the

facility’s RMP?

37 See 40 C.F.R. §§ 68.60 and 68.81.
27

The RMP rule is a performance-based regulation. Information about emergency drills may be

requested by EPA during a regulatory audit, but mandatory reporting is not consistent or

appropriate for performance-based standards. There is no public benefit to this information, as it

cannot be evaluated without an understanding of the many variables discussed in our response

above. Reporting in a vacuum will likely result in public pressure to hold drills where they may

not be needed, or will not be as effective as other emergency response measures, or will be a

diversion of both company and local responder resources from more important tasks.

3. AUTOMATED DETECTION AND MONITORING FOR RELEASES OF

REGULATED SUBSTANCES SHOULD NOT BE MANDATED

“While facilities may identify the benefits of installing automated detection and monitoring

systems as they conduct their process hazards analysis, or as they develop their emergency

response plan, the decision to invest in such equipment may be influenced by many factors. For

example, automated detection and monitoring technologies may not be available for particular

chemical hazards, or industry standards may not address their proper use. They may also be

costly. Nevertheless, the Agency is requesting information on the need for new or expanded

requirements for automated detection and monitoring systems that would supplement either the

existing process hazard analysis and/or emergency response requirements.”38

ACC believes that expanding the RMP regulations to mandate automated detection and

monitoring systems would be ill advised. Such an expansion would provide little benefit at

significant expense, would duplicate existing EPA air program requirements at many locations,

may create a false sense of security, and in some circumstances prove impossible to implement.

The appropriateness of the use of automatic detection and monitoring systems is an

overwhelmingly site-specific and application-specific determination, and whether such systems

would be necessary, effective, and cost-appropriate must be evaluated at each facility to account

for variations in site equipment, configuration, location and complexity, as well as extrinsic

factors such as weather and climate. Given the abbreviated comment period, there was

insufficient time to conduct a cost-benefit and feasibility analysis on whether or not the

mandated use of automatic detection systems are appropriate at ACC member sites.

Automatic detection and monitoring of releases due to loss of primary containment

presents a large number of very complex technical issues. Many regulated chemicals do not lend

themselves to such systems. Designing a system of automatic detection of the chemicals that can

be detected can be very problematic when the system will be deployed in existing process areas

of a facility. A detector in close proximity to a minor leak is not readily distinguished from a

detector that is a further distance from a major leak. Atmospheric conditions, particularly, wind

speed and precipitation can have significant impacts. The number of detectors required to detect

and evaluate all levels of release quantities and atmospheric conditions can be extremely large, in

some cases to the point of impracticality. Most detection systems include complex, sensitive

instruments that require high levels of maintenance. Malfunctions and false readings can be

fairly common with even the most rigorously maintained systems, causing response and

reliability issues which can jeopardize safe operations.

38 79 Fed. Reg. at 44623.
28

As EPA highlights in the RFI, decisions to invest in automated detection and monitoring

systems are influenced by a number of factors. A few of the factors would apply to an entire

industry, others to a facility only, while most others would be specific to a particular process

within a facility. There will also be instances where automated detection and monitoring

systems are not available for certain processes because the necessary technology hasn’t been

developed, is not sufficiently reliable or responsive, or is not yet commercially available. And

there will be situations where adding such systems will create new risks, operational and

technological, that may or may not be more significant than the risk that is mitigated by adding

the systems.

In addition, EPA air rules already often incorporate monitoring and detection programs

into current air permits. Many facilities are required through MACT and NSPS standards, and

through site-specific permits, to administer monitoring and detection programs, including the use

of continuous emission monitoring systems and leak detection and repair programs. EPA has

also recently proposed to require fence line monitoring for some refineries.39

The inherent complexity of an automatic detection and monitoring system, and the

variations in site conditions and technological requirements, would necessitate that EPA provide

numerous exceptions and exemptions from any new mandate, leading to a muddied pool of

regulatory confusion for facilities and the general public alike.40 In short, it seems unlikely that

EPA could tailor a rule across all types of facilities subject to the RMP rule which requires

automated detection and monitoring in a manner that would improve safety and ensure

transparency in the process, without imposing an undue burden on facilities, high levels of

uncertainty about compliance requirements, and confusion among the regulated community and

the general public.

Furthermore, many ACC members already incorporate a review of the need and

appropriateness of automatic detection and monitoring systems into their current safety programs

under the PSM and the RMP Program 3 rules. The need for process monitoring and

instrumentation, and for associated alarms and detection hardware, is evaluated through the

process hazard analysis, which is used to identify methods to address process hazards.

Under both the RMP and PSM programs, owners and operators must document that their

equipment complies with recognized and generally accepted good engineering practices

(RAGAGEP).41 A variety of emergency shutdown systems with robust mechanical integrity

programs can constitute RAGAGEP, as can safety instrumented systems.42 Given that there a

number of types of systems equally capable to preventing and detecting accidental releases, it is

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

Reg. 36880 (June 30, 2014).

40 The EPA proposal for fence line monitoring of refineries reflects these difficulties, in just a single sector. As of

the submittal of this comment letter, the fence line monitoring proposal has generated over 12,700 comment letters

raising in many cases a myriad of similar concerns.

41 See 29 C.F.R. 1910. 119(d)(3)(ii); 40 C.F.R. 68.65(d)(2).

42 SIS is generally comprised of field sensors which collect information to detect upset or emergency situations,

logic solvers that determine which pre-programmed actions are to be taken to avoid hazards based on the field

sensor data, and final control elements which implement the selected actions. See OSHA interpretive letter from R.

Fairfax to L. Ferson (Nov. 29, 2005)

(https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25164).
29

imperative that the RMP regulations retain a structure that allows for site-specific flexibility to

address the particular requirements of each location and process.

There are several existing PSM and RMP Program 3 requirements which will often result

in evaluations of whether a monitoring and detection system is appropriate to address a particular

site-specific risk, including ongoing documentation of RAGAGEP as process safety information,

five-year PHA revalidations, and three-year compliance audits. In these activities, facilities

routinely evaluate site-specific risks and the remedies for such risks may include the adoption of

monitoring and detection for particular processes.

Some chemical facilities have in recent years designed monitoring and detection systems

into specific processes where it was an appropriate remedy for a particular site-specific risk.

Incorporation of a monitoring and detection system at a chemical plant can be an extremely

complex and lengthy process, with literally thousands of new sensors and miles of connectors.

Costs for such systems can be extraordinarily high, and therefore site-specific evaluations and

the balancing of competing risks are critical in any evaluation of the appropriateness and

effectiveness of such systems. In ACC’s view, the current PSM and RMP requirements allow

for an appropriate balancing and risk evaluation and EPA should not change this approach.

In addition, implementing automated detection and monitoring systems will often require

operational or design changes. The most effective time to influence the inherent safety of a

chemical process is during the initial design, not after the facility is built and in operation. Any

requirement for existing facilities to retrofit and rework existing processes to accommodate a

monitoring system creates complex technical compatibility concerns. In the absence of clear

evidence that such a mandate is appropriate, ACC opposes this approach.

The selection, design, installation, and maintenance of gas and vapor detection systems is

a highly complex topic based on the design, hazards, location, physical properties of the released

material, individual consequence analyses, and local operations of each facility. A prescriptive

regulatory requirement to install such systems should not be viewed as a panacea or alternative

for good facility design and operation. The probabilities of detection success with any particular

system in the event of a release will vary, and may be very low due to a number of these unique

site-specific factors.

Similarly, the placement and design of detection points and the types of sensor

technologies used is also highly variable depending on the physical layout of a facility, the local

topography, the types of hazardous materials involved, the elevation(s) of potential releases,

local (typical) meteorological conditions and local operating conditions such as process

temperatures. The overall reliability of, and confidence in, fixed detection systems in outdoor

environments is quite different than fixed detections systems in enclosed or indoor locations, due

to environmental considerations, wind (air speed), temperature, and other factors. All sensors

have various capabilities and limitations as noted above which impact their life span, ease and

frequency of calibration, and replacement cost.

Furthermore, fixed combustible gas detection in many cases is impractical or

inappropriate for the detection of minor releases. Flammables typically have a smaller detectable

footprint than a similarly sized toxic release due to their relative concentrations of

concern. Moderate to large flammable releases can also pose a detection challenge due to the
30

rate of area engulfment and vapor travel which leaves very little time for intervention systems

(either automated or human intervention) as well as the potential for secondary fires and

explosions which may spread rapidly. These flammable releases typically impact on-site

employees and contractors, not off site environmental receptors or the community and therefore

should be under the purview of OSHA rather than EPA. In addition, combustible gas detection at

elevated locations where potential releases may occur is not practical in most cases due to a low

reasonable degree of detection success.

Any mandated installation of a new gas or vapor detection system for an existing facility

will be a project of substantial cost (in some cases, more than $500,000 for one project involving

a single source process). Installation costs are particularly expensive when perimeter monitors

are installed due to large distances and the lack of existing power supply and infrastructure at

more remote locations. Detections systems at best are a secondary layer of protection which

apply only after a primary loss of containment has occurred. Facility owners and operators

should be provided with the flexibility to make choices on the allocation of capital expenditures

related to risk mitigation decisions in order to apply funds in areas which yield the highest value

for prevention and protection results on a site-specific basis.

As noted above, there are many complex variables which can affect the dispersal and

detection of airborne releases, and consequently gas or vapor detection systems are not advisable

in many settings. For the foregoing reasons, a mandate requiring such systems would be

inappropriate and ill advised.

ACC also strongly urges EPA against considering including a new requirement that

detection and monitoring systems be linked to automatically notify local responders when they

are activated. The potential for false alarms, interferences, and detection system equipment

functional failures is significant and ACC members have experienced these issues first hand.

The burden that this creates for local emergency responders is excessive and unnecessary. False

alarms can be common and the subsequent off-site integrated emergency response creates

confusion and lack of confidence in the notification system by all parties and by the

public. Current methods of off-site notifications via telephone, radio, email or other existing

media are more reliable when well executed, as they are based on the actual facts of each

incident.

ACC further cautions EPA that consideration of testing and inspection requirements for

existing leak detection systems should rely on the guidance provided by the equipment

manufacturer and left to the local facility for implementation. These procedures should not be

imposed in a one-size-fits-all prescriptive regulatory requirement.

ACC has not had the time necessary to prepare responses to each question in the

Automated Detection section of the EPA RFI directly. These comments have been offered to

raise general concerns only. ACC requests that EPA offer additional opportunity to address the

important questions that have been raised.

Rather than modifying the RMP rules to create a mandatory detection and monitoring

regime, ACC encourages EPA to maintain its existing RMP requirements, engage in outreach

where it believes automated systems add additional risk reduction value, and encourage facilities

to participate in voluntary programs, such as ACC’s Responsible Care program, which
31

specifically direct participating facilities to consider inspection programs when designing process

safety management plans.

4. STATIONARY SOURCE LOCATION REQUIREMENTS SHOULD NOT

BE EXPANDED

“Should EPA amend the RMP rule to include more specific siting requirements as part of the

PHA by, for example, establishing buffer or setback zone requirements for new covered

stationary sources, or by establishing safety criteria for siting of occupancies inside the facility?

Would such requirements provide significant incremental protection over current industry

practice based on the references cited above?”43

EPA should not expand the RMP rule to prescribe specific siting requirements for

stationary sources subject to the rule. EPA has not demonstrated that existing requirements are

insufficient to manage siting risks. Current PHA requirements,44 industry guidance, and the

principles embodied in RAGAGEP, all address this issue under the current RMP and PSM

programs by guiding owners and operators to identify appropriate siting requirements, using a

number of individualized factors. Additionally, buffer and setback requirements are already in

existence in many communities under zoning or other land use provisions and federal

requirements would likely conflict. Specific new EPA requirements would not provide any

incremental benefits over current industry practices and OSHA PSM requirements that are

already incorporated into the RMP rule.

Due to the shortness of time provided to respond to the EPA RFI, ACC has not been able

to fully develop comments on all of the questions raised by EPA in this section of the RFI. The

following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will

provide an opportunity for further dialogue on these issues.

It is clear that siting considerations, both the location of processes and structures within a

facility and the siting of a stationary source itself, can have an effect on the consequences of an

accidental release. For this reason, siting is an integral part of the evaluation that occurs in

documenting process safety information, conforming to RAGAGEP45, and evaluating initial risks

in PHAs,46 and then at least every five years during PHA revalidations.

As OSHA has stated, required siting evaluations often result in conclusions that specific

risk mitigation measures unique to a facility must be employed, measures that can be unrelated to

setbacks:

43 79 Fed. Reg. at 44624.

44 See 29 C.F.R. 1910.119(e)(2) and (3)(v)), and 40 C.F.R. 68.67(c).

45 RAGAGEP recognizes that there is almost always more than one way to successfully address safety and security

issues, and allows analysis and evaluation far beyond the rote application of a single standard to allow onsite

professionals to address individual situations and circumstances.

46 See the discussion of ‘How does the PHA address facility siting of all occupied structures?’ in OSHA Guidance

entitled VPP Application Supplement for Sites Subject to the Process Safety Management (PSM) Standard (Revised

2014) (https://www.osha.gov/dcsp/vpp/psmfinal2014.html).
32

After compiling PSI [process safety information], the employer must use the PSI,

as well as other information, to conduct a process hazard analysis (PHA), which

must include a facility siting evaluation (1910.119(e)(3)(v)). During the facility

siting evaluation, the employer must determine whether these equipmentcontaining structures are sufficient to protect employees and equipment from any

identified hazards, such as explosions. If the employer finds deficiencies in any of

these structures, the employer must address them and document how the

deficiencies are resolved (1910.119(e)(5)). This could involve steps such as

strengthening, replacing, or relocating the affected structures.

Similarly, if an employer installs or modifies a structure between required PHAs,

then the employer must develop and implement a management-of-change (MOC)

procedure prior to the installation or modification (1910.119(l)). Like the PHA,

the MOC procedure must address the safety and health impacts

(1910.119(l)(2)(ii)) of the installation or modification with respect to the

structure, occupants, and equipment housed in the structure. Following these

evaluations, the employer is then required (1910.119(l)(4)) to update the PSI,

including documenting that the new or modified structure complies with

RAGAGEP. The employer's PHA team must address the change (i.e., installation

or modification of the structure) in its next PHA revalidation (1910.119(e)(6).47

These same principles and requirements apply equally under the RMP program.48

Modification of these requirements is not necessary. First, the focus of the RMP program

is to prevent releases of regulated substances which may endanger public health and welfare or

the environment, whereas the focus of the OSHA PSM program is to protect worker safety and

health. While OSHA and EPA may have common goals, their programs have different statutory

bases and EPA’s authority does not extend to worker safety and health. EPA recognized this

distinction when it issued the original RMP rule. In the preamble discussion to that rule, EPA

stated:

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.49

Consequently, any EPA evaluation of facility siting should be limited to off-site environmental

and public health impacts, while on-site concerns are addressed by OSHA.

Second, the decision of where to place a process or building within a facility, or where to

locate the facility itself in relation to the community at large, are inextricably linked to the

unique characteristics of each physical site, the receptors surrounding the site, the facility’s

intended use, the types of processes to be implemented at the facility, the nature of the

47 OSHA interpretive letter from D. Michaels to Sen. D. Vitter (Feb. 1, 2010)

(https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27443)

48 See 40 C.F.R. 68.65, 68.67 and 68.73.

49 61 Fed. Reg. at 31672.
33

substances present, the alternative risk mitigation measures that are employed at that location,

and a number of other localized factors. As described above, these site-specific characteristics

are appropriately addressed in the current PSM program, specifically in the PSI, PHA and MOC

processes. The principles employed in these evaluations and processes, which ACC believes are

the appropriate approach to evaluating siting risks, do not lend themselves to specific siting

mandates as currently under consideration by EPA.

Indeed, specific siting mandates could very likely result in wasted resources or have a

detrimental effect on safety. For example, if EPA were to prescribe particular setback distances

for specific chemical manufacturing processes so that buildings where people work during

regular business hours were always a minimum distance from certain chemical operations, the

prescribed distances would likely become default setbacks, regardless of any other risk

characteristics and mitigation measures that might exist for the site. In some circumstances the

EPA-prescribed setbacks might be overly conservative and in others it might be insufficient.

Such a mandate would likely result in unnecessary constraints on some facility operations, and

higher risks in other locations due to an overreliance on the setback mandate. Further, siting

retrofits for existing facilities can be a very expensive undertaking at a chemical plant. Moving

or strengthening a facility can require capital expenditures in the tens of millions of dollars.

Siting mandates could consequently have a significant impact on chemical facilities,

including on existing operations, on expansion plans, and on new facilities. If prescribed

setbacks exceed the safe distance determined in a site-specific evaluation, they may very well

have unintended, indirect negative effects on owners, their employees and local economies.

These could include a loss of jobs if setbacks cannot be achieved and facilities or process lines

are forced to shut down or relocate, or employee hardship or disruption if facilities or processes

must be relocated to different sites. Mandates could also implicate environmental justice

concerns,

50 particularly if prescribed distances narrow the potential locations for certain types of

facilities or process lines, which could create an unnecessary imbalance in the distribution of

these facilities.

In light of these likely unintended negative consequences, EPA should refrain from

imposing rigid distance or other siting requirements. Indeed, under the existing PSM standards,

facilities already consider siting, along with many other measures, to mitigate the consequences

of accidental releases. Moreover, it is self-evident that compliance with siting RAGAGEP in the

OSHA PSM context, designed to protect works inside the fence line, necessarily will protect

people and the environment located outside the fence line. Instead of pursuing setback

mandates, ACC encourages EPA to focus on the protections offered by existing regulatory

requirements under the PSM and the RMP Program 3 rules. Facility owners and operators

currently have the requirement to evaluate siting risks, and they are afforded the flexibility to

address risks using a variety of potential tools and resolutions.

ACC also strongly urges EPA against revising the RMP rule to require consideration of

chronic exposure burdens in addition to acute burdens associated with accidental releases. In

accordance with the CAA,51 EPA was directed by Congress to address the severity of acute

50 See Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and LowIncome Populations, 59 Fed. Reg. 7629 (Feb. 16, 1994)

51 42 U.S.C. §112(r)(4)(A)(i).
34

adverse health effects associated with accidental releases, an issue entirely separate from that of

chronic exposure risks. EPA cannot simply ignore this directive and develop regulations around

chronic burdens.

The simplest way to illustrate this dichotomy is to consider that a risk assessment in the

PHA context involves, in part, identifying the types of chemicals that could be released in an

accident, how far they would spread, and how long they would remain. By definition, chronic

air pollution burdens will not dissipate over time unless an outside force actively removes the

source, so it would be very difficult to build chronic air conditions into this risk assessment

model. Perhaps more importantly though, there are regulatory programs already within the CAA

that are designed precisely to address chronic exposure burdens, and that is where these issues

should continue to be addressed, not in the RMP rules.

Changing the regulations will not improve safety or reduce releases for companies that

currently do a good job of managing siting risks at their facilities under the current RMP rule.

Companies that know how to fulfill the requirements of the current standards and consistently do

so are generally not experiencing a significant number of accidental releases or releases of

significant consequences. Expanding siting requirements in the RMP rule will not reduce the

risk of accidental releases, or the consequences of releases, at companies that are already fully

implementing their programs. Similarly, expanding siting requirements will not reduce such risks

at companies that have not already developed strong individual programs or are not currently

enrolled in existing industry programs. For companies with these issues, making the

requirements more extensive and more prescriptive will not provide additional risk reduction.

5. EMERGENCY RESPONSE PROGRAM REQUIREMENTS DO NOT

NEED TO BE REVISED

“EPA is considering whether the Emergency Response provisions in Subpart E of the RMP

regulation should be revised to state more explicitly that owners and operators of RMP-regulated

facilities must comply with the emergency response program requirements of section 68.95

unless local public responders both have the means and agree to respond to releases of regulated

substances at the facility, and to describe what facility owners or operators must do to coordinate

with local authorities on the development of community emergency response plans.”52

Due to the shortness of time provided to respond to the EPA RFI, ACC has not been able

to fully develop comments on all of the questions raised by EPA in this section of the RFI. The

following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will

provide an opportunity for further dialogue on these issues.

The requirement for coordination with local emergency responders is addressed in

multiple interconnected standards and regulations: OSHA (29 C.F.R. § 1910.38, 29 C.F.R. §

1910.120, and 29 C.F.R. § 1910.1200); EPA (40 C.F.R. Part 68 Subpart E); Department of

Homeland Security HS (6 C.F.R. Part 27); and Department of Transportation (29 C.F.R. Part 172

Subpart H) regulations. The EPA RFI addresses only one of these. Therefore, as a general

point, ACC would urge against changing the regulatory requirements until an evaluation of all of

the interrelated programs is performed.

52 79 Fed. Reg. at 44625.
35

Facilities provide information on their chemicals to various agencies and response

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

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

information to members of the local community and to aid emergency first responders.

Unfortunately, it appears the entities and processes it established a quarter-century ago have

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

emergency planning committees (LEPCs) exist today, many others are poorly resourced, or are

not well-managed. Charging EPA to revitalize EPCRA presents the most immediate opportunity

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

As reflected in Executive Order 13650, and in the action plan created in response to the

executive order,53 there is a significant amount of work that needs to be done to address

weaknesses in LEPC resources and training. Rather than adding additional requirements to the

RMP program, EPA should work with other government agencies and state/local organizations

to strengthen the existing governmental response structure. EPA needs to address these

foundational issues first, before any additional requirements to provide emergency response

planning information are considered.

With respect to the RMP program, ACC disagrees with EPA’s premise that the existing

Emergency Response regulations in 40 CFR Part 68 Subpart E are unclear. ACC believes EPA

has clarified its view that the Subpart E requirements allocate responsibility to the facility to

ensure there is an adequate emergency response capability. Since 2004, EPA’s guidance on this

subpart has stated:

EPA recognizes that, in some cases (particularly for retailers and other small

operations with few employees), it may not be appropriate for employees to

conduct response operations for releases of regulated substances. For example, it

would be inappropriate, and probably unsafe, for an ammonia retailer with only

one full-time employee to expect that a tank fire could be handled without the

help of the local fire department or other emergency responder. EPA does not

intend to force such facilities to develop emergency response capabilities. At the

same time, you are responsible for ensuring effective emergency response to any

releases at your facility. If your local public responders are not capable of

providing such response, you must take steps to ensure that effective response is

available (e.g., by hiring response contractors).54

It is clear from this statement that since at least 2004 EPA has held the view that the facility is

ultimately responsible for making certain that an effective emergency response capability is

present for its RMP-listed substances.

Given that EPA’s interpretation of the rule requirements has been clear in this area, if

EPA now believes that inspections at some facilities indicate emergency response capabilities

have not been adequately addressed, this is a matter for EPA to resolve with those facilities. The

53 Actions to Improve Chemical Facility Safety and Security –A Shared Commitment; Report for the President (May

2014).

54 EPA, General RMP Guidance - Chapter 8: Emergency Response Program (Apr. 2004), available at

http://www2.epa.gov/sites/production/files/2013-11/documents/chap-08-final.pdf
36

fact that some facilities may not be in compliance with EPA’s existing directives is not a

rationale for changing the regulations. EPA has ample compliance and enforcement tools to

appropriately address individual facility concerns.

Where EPA has experience indicating that the effects of accidental releases were

exacerbated by failures in communications between facilities and local public responders, ACC

expects that many of these instances likely reflect a failure to conduct the coordination and

planning that are currently required, rather than a fault in the rules themselves. EPA guidance on

these rule provisions provides ample information to clarify the agency’s position on the

responsibilities of responding and non-responding facilities, and to help facilities determine

eligibility for status under one of the two categories.55

The anecdotal evidence that EPA describes in the RFI suggests that the cause of

emergency response coordination issues is a lack of enforcement of existing requirements and/or

failures in communication between the affected facilities and local public response organizations.

Enforcement shortcomings are inherently situation-specific and could turn on any number of

factors. These shortcomings are unlikely to be found at ACC member facilities, where the

Responsible Care® program is implemented. Responsible Care includes requirements to

participate in the development, implementation and maintenance of community emergency

preparedness plans, and to develop processes for responding to release incidents. ACC does not

believe that additional rule requirements are appropriate to address the unique failings that EPA

describes in the RFI. If there is a demonstrated need to strengthen communication and

coordination between a facility and local emergency responders, the appropriate place to

accomplish this would be under the Emergency Planning and Community Right to Know Act

(EPCRA), which is designed to address emergency planning broadly, not through the RMP

regulations.

ACC notes that EPA’s RFI discussion mentions a 2008 incident at the Bayer

CropScience facility in Institute, West Virginia, and intimates that Local Emergency Planning

Committee members may have the authority to access facility property. Under EPCRA, LEPCs

are afforded no access rights to private property. ACC members routinely engage in substantive

emergency planning activities with LEPCs. These activities can include coordination with

LEPCs and other local responders on facility tours and emergency response drills, and individual

facilities may incorporate LEPC access into their incident plans, but in all cases such access to

private facility property would be on a site-specific basis with advance approval from the

facility.

6. THERE IS NO NEED TO INCREASE INCIDENT INVESTIGATION AND

ACCIDENT HISTORY REQUIREMENTS

“The Agency is considering whether broadening the incident investigation and accident history

requirements to include clear requirements to investigate near misses and determine root causes

of accidents, near misses, and process upsets would promote increased safety. The Agency is

requesting information on the appropriateness of requiring root cause investigations of incidents,

55 Id.
37

process upsets and near-misses, and of establishing specific time frames for incident

investigations to be completed.”56

ACC shares EPA’s concern that determining the immediate and systemic causes of

incidents is an important component of an effective incident investigation management system,

and ACC supports EPA’s efforts to educate industry and the general public about measures that

facilities can employ to avoid incidents in the future. However, ACC is concerned that EPA may

be overstating the breadth of the problem with respect to the resulting incident investigations, or

that it is assuming a widespread compliance gap when the problem is much more limited. The

RFI contains several examples to illustrate EPA’s concern about compliance with the current

incident investigation requirements, but EPA has not provided any context for the anecdotes and

hypotheticals cited or any hard data related to compliance investigations.

ACC members treat incident investigations very seriously. A number of the issues

mentioned in the RFI are attributable to only a small number of outlier companies or facilities.

When the majority of the regulated community is dutifully complying with RMP requirements,

and oftentimes exceeding requirements as part of a voluntary, industry-driven safety program

like Responsible Care, there is no need to amend regulations when the proper and most efficient

course is to improve enforcement of existing requirements.

Changing the incident investigation requirements will not improve safety or reduce

releases for companies that currently do a good job of managing incidents at their facilities.

Companies that know how to fulfill the requirements of the current standards and consistently do

so are generally not experiencing a significant number of accidental releases or releases of

significant consequences. Nor will expanding the RMP rule requirements reduce the risks of

accidental releases at companies that have not developed strong individual incident investigation

programs or are that are not compliant with current requirements. For companies with these

issues, making the requirements more extensive and more prescriptive will not provide

additional risk reduction.

As a preliminary matter, EPA has expanded the scope of its inquiry on this subject to

impermissibly consider employee impacts. ACC cautions EPA against attempts to expand RMP

requirements outside of those that relate to offsite impacts or impacts on the public. Issues inside

the fence line that concern facility employees are certainly very important to ACC and its

members, but they remain squarely within OSHA’s domain. Under the CAA and RMP, EPA

addresses the prevention of accidental releases of hazardous chemicals that have impacts on the

environment or the public, and the mitigation of the consequences of such releases. When EPA

suggests in the RFI that RMP requirements could be expanded to consider issues relevant to

workers at covered facilities, ACC interprets this to mean that EPA will consider imposing

requirements that are potentially outside of its scope. EPA is not permitted to expand RMP to

address employee risks, as that is solely within OSHA’s purview.

ACC also cautions against amending regulations to include investigatory requirements

for non-covered processes. The RFI presents an example in which it states that “a runaway

reaction that is brought under control by operators is a near miss that may need to be investigated

to determine why the problem occurred, even if it does not directly involve a covered process.”

56 79 Fed. Reg. at 44626-27.
38

RMP requirements, by definition, apply only to covered processes,57 and EPA’s authority under

the rule is limited to covered processes. EPA should proceed with this distinction in mind.

A. Root-Cause Analysis Should Not be Required

ACC does not believe that the RMP regulations should be amended to require root-cause

analyses in all incident investigations. The existing regulations already require owners and

operators to determine all the factors that contributed to an incident and to resolve any incident

findings and recommendations.58 There is nothing in this language to preclude a root-cause

analysis, yet it also provides the necessary flexibility for owners and operators to tailor

investigations to the unique factors of each incident. In some cases, it may not be necessary to

conduct a root-cause analysis to adequately determine the causes of the incident and the remedial

actions necessary to prevent similar incidents in the future, and a requirement to do so would

waste time and resources. As an example, where an untrained employee takes an action that

results in a release, and there is a PSM-required training that the employee missed which would

have prevented the incident, there may be no need for a formal root cause analysis.

Furthermore, root-cause analyses are already conducted routinely under a number of

voluntary programs, like ACC’s Responsible Care. It is not the case that amending the RMP

regulations is necessary to ensure root-cause analyses take place. There are also a number of

recognized industry resources to aid incident investigations of root causes. For example, CCPS

offers several resources, including the “Guidelines for Investigating Chemical Process

Incidents,” which provides valuable, practical reference tools, and focuses on process-related

incidents with real or potential catastrophic consequences. There are also a number of

companies that provide excellent root cause failure analysis training. ACC believes that rather

than creating new requirements, EPA can immediately increase the quality of incident

investigations by subsidizing the distribution of CCPS material free of charge, as it did

successfully with the “Essential Practices for Management of Chemical Reactivity Hazards” in

2003.

B. EPA Should Not Impose Requirements for “Near Misses”

ACC opposes amending the regulations to require investigations of “near misses.” While

some companies and industries already perform investigations of what could be classified as

“near-miss” events voluntarily, it is unrealistic to think that a mandate to conduct these

investigations would result in anything other than confusion in the regulated community, among

regulators, and in the general public.

First, the term “near miss” is not defined in the RFI, so commenters have no way of

knowing what issues or potential incidents EPA is contemplating when it uses this term. The

situations that EPA cites as examples of “near misses” could also be described not as “fortunate

breaks” but the result of quality training and good safety systems. Therefore, it is unclear how

EPA is thinking about what it states are “near misses,” making it very difficult for ACC and

other commenters to provide meaningful input.

57 40 CFR § 68.10.

58 40 C.F.R. §§ 68.60(c) and (d); 68.81(d) and (e).
39

Second, EPA refers to a near miss with “no actual or potential off-site consequences,”

which implies that EPA interprets its RMP authority to include “near misses” that have no

reasonable possibility of having offsite consequences. As discussed above, the RMP program is

intended to address only offsite consequences of accidental releases, so it appears that what EPA

is proposing would directly conflict with OSHA’s PSM authority and would exceed the bounds

of the RMP program.

The broader issue here is that even if EPA had attempted to define the term “near miss”,

it is inherently situation-specific and not reducible to a singular definition. A “near miss” in one

process unit may pose virtually no future risk to public health or the environment, while a “near

miss” in another process unit may pose a serious risk. Some situations may involve active

processes (i.e., an unplanned upset in a process unit), whereas other situations may involve

passive forces (i.e., discovery of ongoing deterioration in a structural element). The breadth and

scope of situations that could fall under a “near miss” definition could be staggeringly complex

at a larger facility, and there is a very real possibility that the adoption of any definition would

result in a significant distraction and harmful diversion of resources for process safety personnel

who perform a critical role in managing risks at chemical facilities.

Requiring investigations of near misses would result, primarily, in confusion and

unnecessary expense for the regulated community in attempting to determine whether an event

that occurred qualifies as a near miss, and secondarily, in confusion for regulators in drawing a

line between events that should be investigated as near misses and those that should not be.

Furthermore, expanding investigation requirements to include “near misses” would expand the

number of investigations that would need to occur, requiring significant additional time and

resources to complete, likely diverting safety personnel from the important tasks that they

perform, without a commensurate reduction in risks.

C. EPA Should Not Impose Time Limits to Complete Investigations

For similar reasons, EPA should not impose time limits for completing incident

investigations because, as EPA points out in the RFI, investigations are highly situation-specific,

and can require assistance from outside process experts that are not immediately available.59 In

addition, incidents vary greatly in size and scope, and the corresponding investigations reflect

these differences in size and scope. Input from many different parts of an organization can be

necessary, outside research can be required, sometimes just interviewing impacted employees on

rotating shift schedules can be extremely time intensive. Establishing an arbitrary timeframe to

complete an investigation could cause some owners and operators to move too quickly through

more complex investigations, resulting in a lower quality conclusion. On the other hand, for

investigations that could be completed in a relatively shorter timeframe, a longer regulatory time

limit might send the wrong signal and could delay completion of the investigation and the

important information contained therein. These are site-specific issues, to be managed as they

should be currently under the PSM process, with appropriate attention to the risk posed by the

59 EPA states, as support for the need to impose time limits, that in some extreme cases, it may be impossible to

complete an RMP investigation because an entire process has been destroyed. However, it seems highly unlikely

that an incident of this magnitude would escape investigation by some federal, state, or local agency (or combination

of the three). EPA should not imply, or use as justification for additional regulation, that because an accident won’t

be investigated under RMP, it won’t be investigated at all.
40

individual subject. Root cause analysis does not fit into a command and control regulatory

structure.

7. WORST CASE RELEASE SCENARIO QUANTITY REQUIREMENTS

FOR PROCESSES INVOLVING NUMEROUS SMALL VESSELS

STORED TOGETHER SHOULD NOT BE REVISED

“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. EPA is looking for information on whether including the entire

quantity in one location or one process, instead of just the single largest vessel or pipe, would

better represent the true worst case scenario quantity, and thereby increase protection to human

health and the environment and help prevent future accidents from occurring. EPA also requests

comment on whether there are ways of grouping vessels or pipes short of including all the

vessels or pipes at a facility that would be appropriate for worst case scenario analysis. EPA is

also interested in receiving information on whether worst case scenario requirements should

account for the potential cascading effects of separate facilities that are interconnected (e.g., a

manufacturer that provides product to an adjacent source through an interconnecting pipeline).”60

EPA should not revise section 68.25(b) to change existing requirements for calculating

worst case release scenarios. The concern raised by EPA appears to arise from a single type of

facility that collects and stores a large number of small containers. EPA cites no information

and provides no data that indicate the content of small containers raises a risk that would suggest

all RMP facilities must redefine and recalculate their OCAs.

Due to the shortness of time provided to respond to the EPA RFI and the expansive scope

of questions raised by the RFI, ACC has not been able to fully develop comments on all of the

questions raised by EPA in this section of the RFI. The following is a discussion of ACC’s key

concerns in this area, and ACC hopes that EPA will provide an opportunity for further dialogue

on these issues.

EPA’s comments in the RFI clarify that its concern about quantifying worst case release

scenarios arises specifically from warehouses, where large numbers of containers are stored

closely together. There is no evidence presented that the contents of small containers stored at

all of the roughly 15,000 RMP facilities would have any appreciable effect on the OCA

calculation. There is no basis for implementing a rule change that would require every facility

subject to RMP to recalculate its OCA in order to address a very specific concern about a single

type of facility.

This issue illustrates a problem with EPA’s approach in the RMP RFI where EPA seeks

information on very specific operational and technical issues that simply cannot be addressed in

a vacuum. These issues have repercussions across a broad cross section of safety and release

prevention programs, and they can have serious repercussions that are unrelated to the specific

issue at hand. Such issues can vary widely across industries and facilities. Consider the

following example:

60 79 Fed. Reg. at 44627.
41

[A] regulatory agency determined that facilities should not store more than one

week’s requirements for a substance in inventory onsite. At the outset, this could

just result in the same inventories being carried at the supplier’s facility, rather

than the user’s, or at some less-secure intermediate storage facility. In any event,

lower inventories on site typically mean more frequent deliveries of smaller

quantities of material. Thus, for example, a process that receives barge containers

approximately once per month, may have to shift to rail cars or trucks. Similarly,

a process that currently receives railcars might instead have to receive one-ton

cylinders, delivered by trucks. Statistically, transportation incidents are lowest for

water, intermediate for rail, and highest for truck; thus, a mandate to reduce

inventories may require using modes of transportation with a higher frequency of

accidents.

Also, changing from barges to rail cars, or from rail cars to trucks, would require

the facility to connect and disconnect shipping containers far more frequently,

increasing the potential of operator exposure.

See ACC IST Materials, Factors that Affect IST Decision Making & Examples of Limitations of

Mandating Inherently Safer Approaches, at 1-2. This example illustrates the unintended

consequences of some safety mandates – a requirement to lower chemical inventories can result

in higher risk of transportation incidents.

Similarly, a redefinition of ‘worst case release’ in the RMP rule to include all containers

in a single process could result in myriad potentially adverse responses, all unrelated to the

calculation of the OCA. Stationary sources could reduce on-site inventories, thereby potentially

increasing transportation risks. Companies might move stored container within a plant site,

perhaps to less secure locations that are outside of the process at issue. Including small

containers in an OCA calculation for a covered process might very well overstate likely worst

case results, which would cause concerns with the public.61 None of these potential results

would achieve EPA’s stated goal in the RFI of promoting stronger process safety controls and

helping prevent accidents.

EPA needs to refrain from imposing single-size-fits-all requirements across all of the

many different types of facilities that are subject to the RMP rules. If there is a concern about a

worst case release calculation method in a specific type of facility, EPA should engage in a

dialogue with representatives of that facility sector to determine what risks may be posed by the

calculation method, what range of steps might be appropriate to address the concern, and what

the potential consequences of those steps might be. The comment period on the EPA RFI is far

too short to address the potential consequences of changing the calculation methodology across

all potential sectors regulated by the RMP rule. In the absence of data indicating that this

question raises concerns outside the warehousing sector, EPA should not embark on a rule

amendment process that will result in all stationary sources having to recalculation their OCAs.

61 ACC’s has concerns about current guidance on interconnection and colocation. See comments to Section D.12

(Streamlining) below.
42

8. MANDATES TO INCREASE PUBLIC DISCLOSURE OF INFORMATION

WILL RAISE SECURITY RISKS AND WILL NOT PROMOTE

REGULATORY COMPLIANCE OR IMPROVE COMMUNITY

UNDERSTANDING OF CHEMICAL RISKS

“Ensuring that communities, local planners and local first responders have appropriate facility

chemical hazard information is critical to the health and safety of the responders and the local

community. In response to Executive Order 13650, EPA seeks to find ways to enhance

information sharing and collaborative planning between chemical facility owners and operators,

tribal and local emergency planning committees and first responders. EPA is interested in

identifying ways to make RMP-regulated facility information more readily available to local

responders and local communities without creating additional security concerns.”62

ACC supports efforts to improve communication and appropriate information sharing

between regulated facilities, emergency responders, and local communities. However, many of

EPA’s suggestions the RFU are ill advised, and in some cases baffling. EPA’s discussion of

information access in this section is completely devoid of any mention of the Chemical Safety

Information, Site Security and Fuels Regulatory Relief Act (CISSFRRA), which revised Section

112(r) of the CAA to constrain public access to certain RMP information in order to protect

against national security risks.63 ACC strongly cautions EPA against attempting to establish

requirements to make available in a broadly accessible way many of the documents suggested in

the RFI.

Following its initial proposal to provide broad public access to RMP information in the

1990s, Congress enacted CISSFRRA to prevent EPA from widely disseminating certain RMP

information. The Department of Justice (DOJ) and the Federal Bureau of Investigation raised

substantial concerns to EPA’s initial attempts to provide for broad distribution, centering on fears

that providing public access to such information would raise the risk of terrorism-related

incidents.64 Following a risk evaluation conducted jointly by EPA and DOJ, the agencies

concluded that “an increased risk of terrorist and other criminal activity would accompany the

release of certain items of OCA information via the internet. That information could be used by

terrorists or other criminals for the purpose of targeting or maximizing the results of industrial

chemical releases.”65 The assessment was limited, and pointedly did not include evaluation of

other risks of broad access, such as the risks of industrial espionage or the attention of criminal

drug enterprises.66 EPA now has elaborate rules limiting the dissemination of most portions of

the OCA.67

The same concerns about the OCA that arise under CISSFRRA will arise in the context

of broad dissemination of many other RMP documents that EPA suggests in the RFI should be

publicly available on a website in an unrestricted manner, whether in complete or summary form.

62 79 Fed. Reg. at 44628.

63 41 U.S.C. §7412(r)(7)(H).

64 See, i.e., 65 Fed. Reg. 24,834, 24835 (Apr. 27, 2000).

65 65 Fed. Reg. 48108, 48109 (Aug. 4, 2000).

66 Id., at 48111.

67 40 C.F.R. Part 1400.
43

 PHAs contain explicit evaluations of risks and vulnerabilities and specific steps that will

be adopted to mitigate those risks.

 Compliance audits identify deviations that may address specific risks and vulnerabilities

and often contain specific steps that will be adopted to mitigate those issues.

 Incident investigation reports identify specific vulnerabilities that have caused incidents,

and then contain root cause analysis that both identify risks and vulnerabilities and

describe specific steps that will be adopted to mitigate those risks.

ACC strongly opposes any suggestion that such documents should become widely available in a

manner where they would be accessible to those who might want to exploit vulnerabilities or

overcome mitigation steps at a chemical plant.

The security issues posed by the broad public disclosure contemplated by EPA are

complex and may result in significant increases in site vulnerabilities and risks. There are

multiple agencies with jurisdiction over these issues and with long-noted interest in how they are

addressed, including, in addition to EPA, the Department of Homeland Security, the Department

of Justice, the Federal Bureau of Investigation, the U.S. Coast Guard, and state governments.

ACC believes it is imperative for EPA to engage in a broad dialogue with these agencies and

with the regulated communities involved before considering rule a rule amendment that would

further disseminate critical information about potential vulnerabilities at facilities storing

chemicals.

In any event, there is already substantial information about RMP facilities that is

available to the public, either widely disseminated on the internet68 or through EPA’s files.

Contrary to the suggestions in the RFI, ACC does not believe that any there is any connection

whatsoever between further dissemination of RMP information and improvements in safety or

better regulatory compliance. For facilities that are working hard to comply with the RMP

program, additional dissemination of information is likely to increase risks by advertising

vulnerabilities and mitigation measures. For facilities that are not currently complying with

RMP, there is no logical connection between public dissemination of information and either

safety or compliance improvements.

Certainly, given the significant concerns that exist with posting to the internet documents

that address security and mitigation measures, EPA should expect that if such a requirement

were adopted even for only the executive summary of the RMP, it would be logical for

companies to strip all voluntary information from those documents so that they contain only the

most basic information required to be compliant. This is exactly the opposite of what EPA

should be promoting, which is a broad, integrated approach to managing chemical release risk

and safety, and a wide overlapping approach to PSM and RMP program administration.

ACC urges EPA not to expand information dissemination requirements in the RMP

program. If EPA believes some additional dissemination is warranted, it must first evaluate

specifically what broader dissemination would achieve, and then with that data EPA must engage

in the necessary dialogue with security agencies and the regulated community about the very real

68 See, for example, http://www.rtknet.org/db/rmp.
44

security risks of dissemination.

9. EPA SHOULD NOT ADJUST THRESHOLD QUANTITIES AND OFFSITE CONSEQUENCE ANALYSIS ENDPOINTS FOR REGULATED

SUBSTANCES BASED ON ACUTE EXPOSURE GUIDELINE LEVEL

TOXICITY VALUES

“Adopting AEGL–2 values in place of ERPG–2 values to establish new toxic endpoints would

have a more direct effect. AEGL–2 values are often, but not always, lower than the existing toxic

endpoints. Where the AEGL value is lower than the current toxic endpoint for a particular

substance, the new toxic endpoint would likewise be lower, and vice versa. The practical effect

of changing toxic endpoints would be to change the off-site consequence analysis distance to

endpoint for a given substance and release quantity. For all processes containing substances with

new lower toxic endpoints, larger worst case and alternative release scenario zones would result,

whereas processes containing substances with new higher toxic endpoints would have smaller

offsite consequence zones. If most toxic endpoints were to either decrease or remain the same,

another result would likely be that fewer regulated processes would be eligible for Program 1.”69

EPA is considering recalculating reporting thresholds and toxic endpoints using Acute

Exposure Guideline Levels (AEGLs). ACC does not support the recalculation of reporting

thresholds, and needs more time to evaluate the rationale and impact of recalculating toxic

endpoints.

Due to the shortness of time provided to respond to the EPA RFI and the expansive scope

of questions raised by the RFI, ACC has not been able to fully develop comments on all of the

questions raised by EPA in this section of the RFI. The following is a discussion of ACC’s key

concerns in this area, and ACC hopes that EPA will provide an opportunity for further dialogue

on these issues.

EPA indicates in the RFI that “(t)he 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.”70 This change would generally result in lower reporting thresholds.

ACC believes that EPA has stated a basis for considering whether it is possible to predict adverse

effects from releases of certain substances in some populations, but not a basis on which to

establish more stringent reporting thresholds for the RMP program.

Pursuant to the Clean Air Act, “[a]t the time any substance is listed” on the RMP Rule

regulated substance list, EPA must establish threshold quantities taking into account certain

chemical properties and human health impacts.71 In section D.9 of the RFI, EPA proposes to

adjust threshold quantities for currently listed substances, not for new substances. The Clean Air

Act does not address the specific criteria to be employed when EPA seeks to revise threshold

69 79 Fed. Reg. at 44630.

70 79 Fed. Reg. at 44629.

71 42 U.S.C.A. §7412(r)(5).
45

quantities for substances that were previously listed. While reference to the chemical properties

first evaluated when a substance was listed is a good starting point for an amendment, EPA

should not conduct this analysis in a vacuum. It should also consider the vast amount of

information about the effectiveness of the current threshold quantities that now would be

available.

ACC believes that EPA is asking the wrong questions about reporting thresholds.

The RMP program has been in existence for nearly twenty years.72 There is consequently

substantial information available about the impact of the program, the release histories of

facilities subject to the program, and the release histories of facilities not subject to the program.

EPA has data that would allow evaluation of RMP reported accidents involving listed substances

that have been submitted to the agency over the entire course of the RMP program, and should

focus for these purposes on incidents that were reported to have an off-site impact to public

receptors where an actual injury or exposure occurred, the release quantities associated with

these incidents, consideration of how that correlates to a threshold quantity, the results of EPA

investigations of other non-RMP reportable release incidents and quantities where an off –site

impact (injury) occurred and was documented, and any other objective incident or performance

data that would demonstrates whether the current threshold quantities and corresponding toxic

endpoints have been (or have not been) adequate to prevent actual injuries to off-site receptors.

The questions that EPA should be posing are not whether it is possible or advisable to reduce

reporting thresholds based on theoretical impacts to different members of the population at large.

Instead, EPA should be asking:

 Does program implementation data support a conclusion that there would be a reduction

in injuries and damages from accidental releases if reporting thresholds were reduced for

all or particular toxic substances?

 Does program implementation data support a conclusion that lower reporting thresholds

would reduce the number, magnitude or severity of accidental releases?

 Does program implementation data support a conclusion that there were substantial

numbers of releases of RMP-listed toxic substances with adverse consequences, where

the releases occurred from facilities or processes that were not subject to RMP?

 Does program implementation data support a conclusion that facilities becoming subject

to RMP over time due to increases in chemical inventories experienced a decline in the

number, magnitude or severity of accidental releases?

If EPA intends to pursue a rule change adopting different threshold quantities and toxic

endpoints, EPA will need to be prepared to publish the results of its evaluation of program

implementation data and to show that these data objectively demonstrate there have been off-site

injuries or damage associated with use of the current toxic endpoints that illustrates the current

threshold quantities are not adequate. This would presumably include the number of reported off

site injuries, the substance(s) that were involved, the relative frequency of these events compared

to the total number of RMP reportable accidents involving toxics since 1999, and other relevant

objective data that illustrates the current use of ERPG-2 values is inadequate. If such data and

72 61 Fed. Reg. 31668 (June 20, 1996).
46

trend analyses are not available or are extremely limited, EPA should eliminate this technical

issue from further consideration.

As EPA correctly points out in the RFI, there are both existing ERPG values that are

established by the American Industrial Hygiene Association (AIHA), and AEGL values which

have been previously managed by the EPA. AIHA is a well-known and respected national

organization which is comprised of industrial hygiene, safety, toxicology, and emergency

response professionals, and the ERPG process is currently active and will continue to exist to

maintain and update applicable ERPG values. Conversely, the EPA AEGL process was a one

time, lengthy (15 + years) and relatively slow initiative that has been closed (the last AEGL

meeting noted on the EPA website was in April 2010), and as far as ACC is aware, there are no

plans to manage and update AEGL values on a longer term basis, therefore they will be static

values. ERPGs are formed, reviewed periodically, and updated using a weight of evidence

approach. AEGLs are typically based more on the results of a single key study. Both

approaches use sound scientific methods with peer review and in many cases, the ERPG -2 and

AEGL -2 values (based on a 60-minute duration) are reasonably similar. At these very low

relative concentrations (parts per million), it is neither necessary nor appropriate to revise Part 68

to impose an entirely new set of (AEGL) values for RMP calculations, both for threshold

quantity and toxic endpoint determinations for WCS and ACS calculations. It is also inefficient

and not the best use of limited funds and resources to have two separate organizations maintain

and publish independent concentration values for RMP purposes if EPA were to ever consider

resurrecting the AEGL committee process.

ACC recommends continuing to use AIHA ERPG values as the primary and broadly

recognized “gold standard” for these technical concentrations over the long term as they relate to

virtually all normal RMP compliance toxic substance activities. AEGL’s may be appropriate for

application to truly unique situations or on a case by case basis for events involving an unusual

incident duration or other atypical factors, but they are not appropriate for use in a broad based

mandatory manner for all 12,000 + covered RMP facilities.

Furthermore, the current guidance for calculating worst case scenarios is based on a 10

minute or 60 minute release time and is a relatively simple, appropriately conservative and wellrecognized practice at sites currently registered under RMP. Alternatively, sites have local

technical discretion and options to calculate release times for more realistic alternative scenarios

based on site conditions, active engineering controls, and human factors, among

others. Adopting AEGL-2 values and a corollary expectation to require updated and new worst

case and alternative case scenario calculations within a 10 minute, 1 hour, 4 hour and 8 hour

release time for each toxic chemical with these longer durations does not make sense. There is no

technical justification for this approach, and it would create increased complexity, confusion, and

unjustifiable resource demands for each facility with no specific risk reduction or emergency

planning benefits in the large majority of cases. In addition, it would not be technically

appropriate or relevant for the calculation of alternative release scenarios, which are generally

very short term but more realistic events.

ACC recommends continued use of the ERPG values based on their current definitions

and release durations for RMP compliance, rather than adoption of the AEGL values. AEGLs

have values for five different exposure durations and this would add unnecessary complexity to

this RMP WCS and ACS consequence analysis process, both of which are not precision-based
47

calculations to begin with. In addition, ACC does not support consideration of the use of lower

toxic endpoint concentrations such as AEGL-1 values rather than ERPG-2 (or AEGL-2) values.

There are very substantial differential ranges and effects between the two levels, and in several

cases, no AEGL-1 values have been designated. For example, the small set of AEGLs in Table 1

for the listed toxics with a 30 minute duration include a wide range of values and the associated

multiplier (the relative difference between AEGL-1 and 2 levels) which would substantially

enlarge current endpoints and reduce reporting thresholds with little or no objective off site risk

based rationale provided by the EPA based on past incidents or reported injuries. AEGL-1

values are widely recognized to be point of early warning concentrations, such as odors or minor

transient and non-permanent effects, and should not be used under any normal circumstances to

delineate off-site toxic end point concentrations of significant concern associated with accidental

releases. ACC firmly believes that current ERPG -2 (or AEGL-2) concentrations provide

adequate protection of public receptors for continued application in the RMP rule given the

existing imprecision of RMP modeling, local emergency response processes, and other

assumptions.

Table 1: Examples of AEGL Values and Wide Ranges – AEGL 1 and 2

RMP Chemical AEGL-1 (30

minutes)

AEGL-2 (30

minutes)

AEGL 1/2 -

Multiplier

Nitric Acid 0.16 ppm 30 ppm 187.5

Formaldehyde 0.9 ppm 14 ppm 15.5

Hydrogen Chloride 1.8 ppm 43 ppm 24

Hydrogen Fluoride 1.0 ppm 34 ppm 34

Oleum/SO3 0.20 mg/m3 8.7 mg/m3 43.5

In the absence of verifiable data and analysis as described above, ACC does not believe

that EPA has a rationale for concluding that downward adjustments to RMP reporting thresholds

and even more conservative toxic endpoint concentrations should be pursued. The possible rule

changes discussed in the RFI would significantly increase engineering analysis and reporting

burdens with no substantive increase in quantifiable protection of the off-site populations

mentioned in the RFI. After almost 20 years of RMP related experience and risk related

communications at the site level, such changes might also create confusion, including questions

about other key existing prevention program efforts, and unwarranted concerns within local

communities and their local governments.

10. EPA HAS IDENTIFIED NO BASIS FOR CHANGING THE PROGRAM 3

NAICS CODES

“The RMP national database now contains nearly two decades of accident history reports from

covered sources, and the Agency believes that these reports represent a more comprehensive

picture of the relative accident risks associated with different industry sectors regulated under the

rule than was available to the Agency prior to the rule’s publication. Based on these accident

reports, the ten NAICS codes most frequently associated with accidents in RMP-regulated

processes are 32411 (petroleum refineries), 325199 (all other basic organic chemical

manufacturing), 325188 (all other basic inorganic chemical manufacturing), 22131 (water supply

and irrigation systems), 42491 (farm supplies merchant wholesalers), 22132 (sewage treatment
48

facilities), 325181 (alkalies and chlorine manufacturing), 311615 (poultry processing), 49312

(refrigerated warehousing and storage), and 32211 (pulp mills).65 The Agency is requesting

information on the appropriateness of reevaluating the NAICS industry sectors originally

identified to determine program 3 applicability based on the collected RMP data.”73

EPA has asked for information on the appropriateness of reevaluating the NAICS

industry sectors originally identified to determine Program 3 applicability based on collected

RMP data. ACC has concerns about using accident data drawn from the RMP national database

to rationalize changes in the regulatory program or compliance priorities.

Due to the shortness of time provided to respond to the EPA RFI, ACC has not been able

to fully develop comments on all of the questions raised by EPA in this section of the RFI. The

following is a discussion of ACC’s key concerns in this area, and ACC hopes that EPA will

provide an opportunity for further dialogue on these issues.

Specifically, ACC is concerned with the validity and reliability of portions of the data in

the RMP national database. For example, data collected in 1999-2000 on 15,145 facilities in the

United States that stored or used listed toxic or flammable chemicals believed to be hazardous to

the environment or to the health of facility employees or off-site residents was confirmed to

contain data entry errors that impacted the number of deaths reported and the location of

facilities reported. There were similar concerns about the reliability of the data used to select the

NAICS manufacturing processing codes, ambiguity over the size of facilities (as measured by

full-time equivalent employees), and the reporting chemicals held onsite—all of which would

weigh on the decision to cover a particular type of facility under RMP. More detailed comments

on this subject are contained in ACC’s comments on EO 13650, at pp. 32-33, attached as

Appendix 6.

As a general matter, as noted in our comments above, ACC believes it is critical for EPA

to ensure that there is consistency between the RMP and PSM programs. Coordination between

EPA and OSHA on these programs is required by Section 112(r) of the Clean Air Act, which

mandates that EPA consult with the Secretary of Labor and coordinate its RMP requirements

with those established for comparable purposes by OSHA.74 EPA also noted this requirement in

the RFI, and has indicated its intent to evaluate potential changes to the RMP rule in parallel to

OSHA’s evaluation of potential updates to the PSM standard.75 ACC believes these programs

should generally cover the same types of facilities and require risk reduction program

implementation in the same manner. However, the OSHA RFI does not indicate that OSHA is

considering any expansion or change to the types of facilities subject to the PSM standard. 76

ACC is concerned that this lack of coordination would result in inconsistent regulatory programs

and a lack of uniformity among similarly situated facilities.

ACC also notes that EPA identifies a new list of ten NAICS codes in its RFI that are

“most frequently associated with accidents in RMP-regulated processes”77 and has asked if these

73 79 Fed. Reg. at 44631.

74 42 U.S.C. §7412(r)(7)(D).

75 79 Fed. Reg. at 44605.

76 See 78 Fed. Reg. 73756.

77 79 Fed. Reg. at 44631
49

codes should be included in the Program 3 requirements. EPA has not clarified whether there is

any rationale for concluding that the facilities represented by these codes at which accidents have

occurred are currently not subject to PSM. If they are covered by PSM, then there is no reason to

list the associated NAICS code, since those facilities are already subject to RMP.78 If a particular

NAICS code includes some facilities that are subject to PSM and others that are not, EPA would

need to understand whether the accident reporting frequency is the same at both types of

facilities, or if there is a difference.

EPA also does not explain why it is considering ten NAICS codes as opposed to some

other number. In evaluating which facilities should be subject to RMP Program 3, EPA should

consider the risks posed by classes of facilities that are not subject to PSM, and then should make

an informed judgment based on risk to determine which of those facilities warrant inclusion. Ten

seems to be an arbitrary number.

EPA also appears to be considering the number of accidental releases without correlating

these incidents to severity of risk. The mere fact that a category of facilities has a high frequency

of low risk events does not justify requiring adherence to RMP Program 3 requirements.

Similarly, there could be a category of facility with a low number of accidental releases that each

pose a high degree of risk due to the substances involved, proximity to sensitive receptors,

history of injuries, or quantity of hazardous substances released, among other factors. We would

expect EPA to want to focus on severity of risk in its conduct of this evaluation, not just on the

number of incidents reported.

11. THERE IS NO JUSTIFICATION FOR ADOPTING THE ‘‘SAFETY

CASE’’ REGULATORY MODEL

“EPA requests information on the advantages and disadvantages of adopting a safety case

approach to replace the RMP regulation and PSM standard, or alternatively, of incorporating

aspects of the approach into current regulations or for selected categories of facilities.”79

Workplace safety and process safety are top priorities of ACC and its members. To

become a member of ACC, a company must commit to the highest standards for protecting

health, safety, and the environment through participation in the Responsible Care® program. All

ACC members are required to implement the Responsible Care® Process Safety Code of

Management Practices, which specifically addresses process safety concepts such as leadership,

accountability, and culture in order to drive overall process safety performance improvement.

This code complements existing regulatory requirements, such as EPA’s RMP program and

OSHA’s PSM standard.

In the RFI, EPA cites to the advocacy of the U.S. Chemical Safety and Hazard

Investigation Board (CSB) in a recent draft regulatory report on the Chevron Richmond refinery

pipe rupture and fire to consider adoption of the ‘safety case’ regulatory model or

implementation of selected aspects of this approach within the current regulatory framework.

While ACC shares the goals of EPA and CSB, ACC has numerous concerns about the

recommendations in the CSB’s December 2013 Draft Regulatory Report for Public Comment

78 See 40 C.F.R. 68.10(d)(2).

79 79 Fed. Reg. at 44632.
50

(the “Draft CSB Report”) regarding the establishment of a safety management regulatory

framework based on “safety case” principles. ACC has similar concerns regarding the CSB’s

recommendations to OSHA, which are less defined than those in the Draft CSB Report to the

State of California, to the extent that the CSB suggests the implementation of a safety case

regime.

The safety case regime described by the CSB starkly conflicts with both OSHA’s

performance-based PSM standard and EPA’s RMP standard. In particular, ACC believes that its

members, through EPA’s current RMP program, OSHA’s current PSM standard, and voluntary

programs such as Responsible Care®, already address the continuous improvement goals

detailed in the Draft CSB Report. ACC further believes that the recommended safety case

regulatory regime is not justified by the reasons articulated in the Draft CSB Report, nor would

the safety case framework actually achieve the desired results and benefits for covered

workplaces. ACC is also concerned that the drastic changes contemplated by the recommended

safety case framework would result in a wide variety of practical problems if implemented.

ACC submitted detailed comments on the prospect of moving either entirely or in part to

a safety case regulatory regime in a response to Draft CSB Report. See ACC’s January 2, 2014

“Comment on Regulatory Report No. 2012-03-I-Ca, Draft for Public Comment, Chevron

Richmond Refinery Pipe Rupture and Fire (December 2013)” (hereinafter the “ACC CSB

Comments”) (attached as Appendix 7 and incorporated herein). As outlined in detail in those

comments, ACC believes that certain recommendations in the Draft CSB Report ultimately

would detract from worker safety and create an atmosphere of uncertainty and confusion for

employers and regulators alike.

Moreover, a safety case regulatory framework shifts the burden to the regulator to review

and evaluate a wide set of site-specific information, which regulators will be ill-equipped to

handle, without any objective measures. There would be a need for a dramatic increase in EPA

staffing and training to address this change. In addition, when a program provides the regulatory

agency with the authority and responsibility to approve specific risk-based decisions, there is a

natural inclination among the regulated community to rely upon the approvals to establish

minimum sufficiency. The regulatory approval becomes an easy target and there is a reduced

incentive to explore beyond that target. This type of ‘command and control’ regime will over time

erode the benefits of the current risk-evaluation model under which it is clear that the responsibility

lies on facility management to understand and evaluate risks and to make site-specific decisions to

manage those risks. The safety case model shifts that responsibility to the government.

ACC believes that the current frameworks of RMP and PSM are better suited to achieve

the common goal of improved workplace safety. Under the current well-recognized regulatory

framework, which provides employers with the necessary discretion to tailor safety processes to

the specific conditions of each worksite, ACC members supplement the RMP elements and

implement a program that includes many of the elements in the safety case framework, but they

retain the overall responsibility to ensure that their programs adequately manage risk and that they

evolve to address newly discovered risks.

In addition to the comments above and those incorporated by reference in the ACC CSB

Comments, ACC offers the following to respond in part to the subparts of Question 11:
51

11(a). Regarding the length of time it takes to develop and obtain approval of a safety

case program for facilities in countries using a safety case regulatory regime, ACC does not

believe that the length of time is an important criteria. Instead, we believe that the regulatory

approach used and its impact and effectiveness on safety is significantly more important. As

discussed in detail in ACC’s CSB Comments, the current risk-based and performance-based

approaches in the RMP rule and the PSM rule are much more protective than the safety case

approach, which has significant disadvantages. Under the current regulatory framework, which

provides employers with the necessary discretion to tailor safety processes to the specific

conditions of each worksite, ACC members supplement PSM elements and implement a program

that includes many of the elements in the safety case framework, but with the site-specific

flexibility provided to allow for local conditions.

ACC is aware of no data that indicate the safety case approach reduces the frequency and

severity of accidental releases or near misses, when compared to the existing PSM and RMP

programs. If there are such data, EPA should provide this under rulemaking and seek public

comment. In the absence of data demonstrating the advantages of a safety case approach, the

existing PSM and RMP programs provide a framework for reliable management of accidental

chemical release risks.

EPA has also asked whether entities already incorporate aspects of the safety case. ACC

members not only already implement so-called “key features” identified by the CSB as the

justifications for the safety case proposal, but, in fact, go beyond what the CSB suggests in its

safety case proposal in their compliance with the elements of ACC’s Responsible Care®

program, as discussed above.

For example, the CSB states that one of the “key strength[s]” of the safety case regime is

that it provides the regulator “with the tools to drive continuous improvement” to reduce risks to

As Low As Reasonably Practical (“ALARP”), rather than “focusing on compliance with activitybased regulatory requirements.” See Draft CSB Report at 43. However, ACC members already

implement a wide variety of steps to achieve the goal of continuous improvement and risk

reduction to ALARP under the existing regulatory program. These steps include the

development and implementation of a comprehensive process safety management system to

manage process risks and the development of a safety culture to manage those same risks. ACC

members already undergo third-party audits to demonstrate compliance with this program. ACC

believes that its members are best situated to take the lead role in developing and overseeing

programs suited for their particular facilities, rather than the approach envisioned by the safety

case regime where the regulator (without any history or knowledge of a particular facility) must

review and oversee the program.

11(b)-(c). EPA has asked what additional resources would be required by EPA and

OSHA in order to establish and oversee a safety case regulatory regime for RMP and PSMcovered facilities similar to the NRC’s regulatory approach. ACC notes that chemical facilities

differ from nuclear power plants in several important ways and therefore should not be compared

in the context of the safety case regime. Regardless, EPA’s current RMP standards are adequate.

Limiting the safety case approach to only the most high-risk facilities is likewise irrelevant

because the current RMP and PSM and regulations are adequate for chemical facilities.
52

11(d). EPA has asked about the economic impacts of moving to a safety case-based

regulatory regime for chemical facility safety. ACC predicts that there would be substantial

economic impacts, as every chemical facility in the United States would have to completely

revamp its safety programs, retrain all of its employees to implement the new program, and then

transition to the new programs without creating increased risks of incidents. ACC predicts that

this massive reorientation would result in economic impacts on all scales, and likely

disproportionately so for smaller businesses. In any case, ACC is convinced that there is no need

to change the regulations in this dramatic manner, as the RMP and PSM programs are effective

in their current form.

In summary, ACC believes that the current framework under the RMP and PSM

standards with performance-oriented requirements best addresses process safety management

objectives. A dramatic shift to an entirely new regulatory framework is neither warranted nor

justified.

12. STREAMLINING RMP REQUIREMENTS

“EPA is interested in gathering information on any other areas within part 68 that should be

modernized, strengthened, or clarified. In particular, EPA invites comment on any potential

revisions to the RMP rule that would make it easier for regulated sources to comply with its

requirements.”80

EPA is soliciting comments on possible revisions to “any other areas within Part 68 that

should be modernized, strengthened, or clarified” with an emphasis on potential revisions that

would make it easier for regulated sources to comply.

ACC generally supports the concept of regulatory clarification and appreciates that EPA

is considering this concept as it considers new rulemaking. ACC is concerned that EPA should

not take steps to “modernize” or “strengthen” the RMP rule when there is no clear data-driven

evidence that there is a need.

Under EO 13650, OSHA was tasked to identify issues relating to modernization of the

PSM standard, and in the OSHA PSM RFI, OSHA sought information on additional

management-system elements that might be added to the PSM standard. As discussed above,

ACC does not believe that there is any need to add new process safety elements to the RMP

program. More detailed comments on this subject are contained in Appendix 1, ACC’s response

to the OSHA PSM RFI, at pp. 11-16.

ACC does not believe that the history of incidents where there have been significant

releases of RMP-regulated chemicals indicates that such incidents occurred due to missing RMP

elements or due to an RMP standard that is not “modernized.” Instead, ACC believes that a

majority of incidents have occurred where existing management system elements that are

required by PSM and/or RMP were not fully implemented or performed. Therefore, the existing

RMP incident history does not provide evidence of the need for additional elements or expansion

of regulatory coverage. Imposing unnecessary added regulations on all covered employers

ignores the root problems—that certain companies may not have had fully developed PSM

80 79 Fed. Reg. at 44632.
53

and/or RMP programs, or perhaps may have not realized that they were even covered by the

PSM and RMP regulatory requirements.

As noted in our comments on several items above, changing regulations that adequately

address risks at compliant facilities will not improve safety or reduce releases for those

companies that currently do a good job of managing risks at their facilities. Companies that know

how to fulfill the requirements of the current standards and consistently do so are generally not

experiencing a significant number of accidental releases or releases of significant consequences.

Nor will expanding the RMP rule requirements reduce the risk of accidental releases at

companies that have not developed strong individual programs, that are not enrolled in existing

industry programs, or that are not compliant with current requirements. For companies with

those issues, making the requirements more extensive and more prescriptive will not provide

additional risk reduction. In fact, such changes have the potential to increase some risks by

introducing unnecessary complexity and creating distractions from the implementation of

important current programs and requirements.

The assumption that gaps exist in the RMP elements must not be viewed as a rationale to

impose additional requirements on companies that are fully complying with the existing

programs and adequately addressing risks. Instead, ACC believes that EPA should continue

devoting resources to education, outreach and, where appropriate, enforcement, to ensure

existing risk-based performance measures already in place are fully implemented.

ACC provides the following abbreviated comments on the subparts to Question 12 of the

RFI:

12(a). Generally, ACC believes that mixtures containing more than a threshold quantity

of a substance, but at such a low concentration so as not to constitute a hazard, should not be

covered by the RMP rule.

Similarly, ACC believes that EPA and OSHA should clarify the application of

interconnection and co-location as those terms are used in the definition of “process” to

determine whether there is a single covered process. See 40 CFR 68.3. The interconnection of

equipment is currently determined on a case by case basis, using as the guiding principle whether

vessels are located such that a regulated substance “could be involved in a potential release”.

EPA guidance suggests that interconnection should be applied consistent with guidance written

by OSHA, which is in many respects is both unclear and overly conservative. Whether vessels

are interconnected or co-located should be performance based, and should be determined using a

risk analysis, not simply physical connection or location such that they “could” be involved in a

“potential” release. Under OSHA guidance, there is often substantial ambiguity where there is a

long physically connected process at a facility, even when the risk of an incident along the entire

process is extremely low. The risk posed by current configurations of vessels is currently

analyzed at least every five years through the completion of process hazard analyses, and these

evaluations should be relied upon to determine whether there is sufficient risk to warrant a

determination of interconnection.

12(b). The RMP submission process has been sufficiently simplified through the

introduction of RMP Comp and RMP Submit, coupled with the web-based submittal process.

Opportunities to improve or upgrade these programs do exist. For instance, ACC recommends
54

including the opportunity to incorporate location-specific meteorological data into the RMP

Comp program. A drop-down selection option for state/city, similar to that provided in Tanks

4.0.9d, that would link to local meteorological data, would improve the accuracy of the results

from the RMP Comp program.

12(c). Facility-level responsible officials are the correct individuals to certify RMP

submittals. Facility-level responsible officials are directly involved in the activities at the

facilities and have the appropriate level of technical knowledge of the processes at the facilities

to provide certifications. Numerous other regulatory submittals rely on the signature authority of

facility-level responsible officials, including EPCRA 313 Toxic Release Inventory reporting;

EPCRA 312 Tier II reporting; Title V operating permit compliance certifications and deviation

reporting; and Clean Water Act Spill Prevention, Control and Countermeasures plans. Senior

corporate officials, such as Chief Executive Officers, Chief Financial Officers, Chief Operating

Officers, or the equivalent are often times not involved with the day-to-day functions of the

individual facilities, and are not well positioned to provide the type of quality assurance that is

sought in a certification of specific facility program implementation details. Requiring senior

corporate officials to certify RMP submittals would not provide any improvement in the quality

of RMP submittals, and would simply distract senior executives from their broader duties. There

is no evidence that we are aware of that would indicate that such a change is warranted.

12(d). The current three-tiered program structure of the RMP is appropriate. Providing

different tiers of responsibilities based upon different levels of risk is entirely appropriate for a

program that is designed to address risks. EPA has presented no data which would suggest that

consolidation of the program levels would solve any particular problem. As noted above,

information collected by ACC from its member companies strongly indicates that significant

accidental chemical releases and related process safety hazards are rare where covered employers

have strong PSM programs and comply with EPA’s current RMP regulations.

If EPA contemplates consolidation of the RMP program structure, EPA must demonstrate

why the existing structure has not adequately controlled risks of accidental releases in the past,

and in this case that would mean the presentation of data showing that facilities complying with

the various program levels currently in effect would have avoided past release incidents if they

had been in a different program level. ACC does not believe the data will demonstrate that

conclusion and therefore encourages EPA not to change a structure that has worked effectively to

date.

12(e). ACC believes that the elements of the RMP rule are sufficiently clear for

implementation by the regulated community. Changing or adding additional elements to the

RMP rule would lead to confusion, not clarity, as the two regulations would no longer be

consistent. This would also result in different enforcement criteria between the two agencies,

which is counter to the intention of the EO 13650.

12(f). ACC believes that the regulatory terms and definitions contained in section 68.3 of

the RMP rule are generally adequate, although there is certainly room for improvement. See our

comments above in 12(a) on the concepts of interconnection and co-location.
55

III. CONCLUSION

While ACC supports the goals of preventing chemical accidents and preventing or

minimizing the consequences of accidental chemical releases, ACC has a number of concerns

about the proposed changes identified by EPA in the RFI.

The current PSM and RMP rules are strong and effective because they are performanceoriented and not prescriptive. Given the diverse nature of chemical industry operations, it is

clear that a flexible approach to process safety will offer the best protections from accidental

chemical release. Many of the suggested change options under consideration by EPA would, in

practice, weaken the highly effective performance-oriented approach that is currently provided

for process safety and chemical management under existing EPA and OSHA programs. ACC

believes it is critical that EPA continue to afford each employer the ability to make site-specific

and process-specific process safety decisions.

ACC opposes the development of new mandates to force the implementation of specific

technologies or of hierarchies that prioritize accidental release risks over other risks that need to

be managed at every site.

Before EPA takes any action to address perceived risks, EPA should complete an

evaluation of the effectiveness of current program. EPA has a plan in place to create and

evaluate RMP program data but has not fully implemented that plan and therefore has no basis to

evaluate the strengths and any weaknesses of the program that exists today.

While EPA evaluates the effectiveness of its current program, EPA should (i) encourage

industry programs that have demonstrated effectiveness in preventing and mitigating accidental

release incidents; (ii) disseminate guidance and alerts to increase knowledge of risks and industry

standards, assist operators in identifying and addressing root causes, and assist with fuller

integration of facilities that may currently be deviating from program requirements; (iii) develop

resource centers where process safety experts can share best practices and innovative alternative

techniques and approaches; and (iv) detect and correct compliance deficiencies through

inspections and enforcement.

ACC looks forward to the opportunity to continue this dialogue with EPA and to further

our shared goals of reducing the risk of accidental chemical release and protecting our

employees, communities and the environment.
APPENDIX 1

ACC COMMENT ON OSHA RFI (MARCH 31, 2014)
    

DB1/ 78324772.1 

March 31, 2014 

OSHA Docket Office 

Docket No. OSHA-2013-0020 

Technical Data Center 

Room N-2625 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Washington, D.C. 20210 

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA-2013-0020, RIN 1218-AC82, 78 Fed. Reg. 

73756-73768, Request for Information, Process Safety Management and Prevention of 

Major Chemical Accidents (December 9, 2013) 

To the Docket: 

The American Chemistry Council (ACC)1 is pleased to respond to the U.S. Department of 

Labor’s (DOL’s) Occupational Safety and Health Administration (OSHA or the Agency) 

Request for Information (RFI), Docket No. OSHA-2013-0020, published in the Federal Register

on December 9, 2013 at 78 Fed. Reg. 73756-73768. 

ACC is America’s oldest trade association of its kind, representing companies across the United 

States engaged in the business of chemistry. ACC supports OSHA’s commitment, as expressed 

in the present RFI on Process Safety Management and Prevention of Major Chemical Accidents, 

to protect the safety and health of workers, the public, and the environment from chemical 

accidents. ACC shares OSHA’s goal of ensuring that process safety is handled and implemented 

as safely as possible, as workplace safety and process safety are top priorities for ACC and its 

members. In fact, to become a member of ACC, a company must commit to the highest 

standards for protecting health, safety, and the environment through participation in ACC’s 

Responsible Care® program. 

ACC members would be directly affected by OSHA’s promulgation of new Process Safety 

Management (PSM) standards or changes in enforcement policy. While ACC shares OSHA’s 

goal of ensuring process safety, ACC has a number of concerns about the proposed candidates 

                                                            

1

 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of 

chemistry to make innovative products and services that make people’s lives better, healthier and safer. ACC is 

committed to improved environmental, health and safety performance through Responsible Care®, common sense 

advocacy designed to address major public policy issues, and health and environmental research and product testing. 

The business of chemistry is a $770 billion enterprise and a key element of the nation’s economy. It is the largest 

exporting sector in the United States, accounting for 12 percent of U.S. exports. Chemistry companies are among 

the largest investors in research and development. Safety and security have always been primary concerns of ACC 

members, and they have intensified their efforts, working closely with government agencies to improve security and 

to defend against any threat to the nation’s critical infrastructure. 
DB1/ 78324772.1 2 

for rulemaking or enforcement changes identified by the Agency in this RFI, as outlined within 

our comments. We believe that the signaled changes represent a drastic departure from the 

current PSM regulatory framework without corresponding benefits to workplace or employee 

safety. ACC believes that the most influential development OSHA could take to improve worker 

safety is through increased PSM awareness, training, and enforcement for outlier companies. 

The American Chemistry Council encourages OSHA to consider the fundamental concerns 

outlined in the subsequent comments as the Agency proceeds with the next step in the 

rulemaking process. As an alternative to formal rulemaking, ACC recommends that the Agency 

evaluate the use of non-regulatory means to help OSHA achieve its goal of creating a safer 

workplace for our nation’s employees and surrounding communities. 

Thank you for the opportunity to submit comments on this matter. 

ACC hopes that OSHA will find our contribution helpful. Should you have questions about our 

input, please contact me by phone at (202) 249-6426 or by e-mail at 

Rachel_meidl@americanchemistry.com. 

Respectfully submitted, 

 

Rachel A. Meidl 

Director, Regulatory & Technical Affairs 

American Chemistry Council 

700 Second Street, NE 

Washington, DC 20002 

Rachel_Meidl@americanchemistry.com 
    

DB1/ 78324772.1 

March 31, 2014 

OSHA Docket Office 

Docket No. OSHA-2013-0020 

Technical Data Center 

Room N-2625 

U.S. Department of Labor 

200 Constitution Avenue, NW 

Washington, DC 20210 

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA-2013-0020, RIN 1218-AC82, 78 Fed. Reg. 

73756-73768, Request for Information, Process Safety Management and Prevention of 

Major Chemical Accidents (December 9, 2013) 

To the Docket: 

 The American Chemistry Council (ACC) is America’s oldest trade association of its 

kind, representing companies across the United States engaged in the business of chemistry. 

ACC members would be directly affected by the Occupational Safety and Health 

Administration’s (OSHA’s) promulgation of new Process Safety Management (PSM) standards 

or changes in enforcement policy. ACC supports OSHA’s commitment, as expressed in the 

present Request for Information (RFI) on Process Safety Management and Prevention of Major 

Chemical Accidents, to protect the safety and health of workers, the public, and the environment 

from chemical accidents. 

 Furthermore, ACC shares OSHA’s goal of ensuring that process safety is handled and 

implemented as safely as possible. Workplace safety and process safety are top priorities for 

ACC and its members. In fact, to become a member of ACC, a company must commit to the 

highest standards for protecting health, safety, and the environment through participation in 

ACC’s Responsible Care® program. As a part of this commitment, in 1990, ACC adopted the 

Responsible Care Process Safety Code of Management Practices, identifies specific activities 

that chemical companies must implement as part of their Responsible Care obligations. 

 ACC and its members continuously focus on EHS improvement. For example, we 

recently developed and then finalized a new Process Safety Code in November 2012. This code 

was built off of existing process safety performance requirements under Responsible Care and is 

further evidence of ACC members’ commitment to safety throughout our chemical processing 

operations, safety management systems, and leadership. The Process Safety Code requires 

companies to develop and implement a comprehensive process safety management system to 

manage risk and seek opportunities to improve performance, including the consideration of safer 

alternatives. Companies must understand and prioritize process safety risks and ensure that all 
DB1/ 78324772.1 2 

employees have the required knowledge, expertise, tools, and training to manage process risks in 

their operations. 

 The Process Safety Code is intended to complement existing regulatory requirements, 

including OSHA’s PSM standard and the Environmental Protection Agency’s (EPA’s) Risk 

Management Program (RMP) rule. Regulatory standards, by necessity, focus on process safety 

at an individual facility. In contrast, the Process Safety Code addresses issues at a more 

universal level, such as across a division or corporation, and includes a company commitment to 

set expectations regarding process safety, define accountability for process safety performance 

and allocate adequate resources to achieve performance expectations. These higher-level 

considerations, contained within the Process Safety Code, are critical elements of effective 

management of process safety. 

 Further, the Process Safety Code is a manifestation of the leadership that Responsible 

Care companies will undertake to seek systematic continuous improvement in process safety, 

drawing from the most current learning and advances. When implemented alongside the 

integrated Responsible Care management systems, this Process Safety Code will help advance 

the chemical industry’s commitment to process safety by embedding state-of-the-art concepts 

within Responsible Care, strengthening process safety leadership, culture, management and 

ultimately, performance. Implementation of the Process Safety Code is mandatory for all ACC 

Responsible Care companies. 

 ACC appreciates the opportunity to submit our comments in response to OSHA’s RFI on 

Process Safety Management and Prevention of Major Chemical Accidents. While ACC shares 

OSHA’s goal of ensuring process safety, ACC has a number of concerns about the proposed 

candidates for rulemaking or enforcement changes identified in this RFI. As outlined in detail 

below, ACC believes that the signaled changes represent a drastic departure from the current 

PSM regulatory framework without any corresponding benefits to workplace or employee safety. 

PSM, with its performance-oriented approach encourages flexibility in problem-solving with 

accountability for results. This flexibility allows the employer to promote continuous 

improvement with innovative and efficient workplace-specific solutions. Furthermore, ACC 

believes that these signaled changes to the PSM regulatory framework would result in disruption, 

confusion, and increased costs and create an atmosphere of uncertainty for employers, employees 

and governmental regulators such as OSHA. ACC does support OSHA’s overall goal to 

improve process safety, but ACC urges OSHA to carefully consider its approach and recognize 

the many variables and complexities inherent in regulating PSM. 

I. EXECUTIVE SUMMARY 

 ACC emphasizes that one of PSM’s greatest strengths is its design as a performanceoriented standard. Given the diverse nature of chemical industry operations, ACC knows that a 

flexible and performance-oriented 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 this reason, ACC opposes prescriptive recommendations that will chip away 

at the necessary discretion given to employers. Any one-size-fits-all approach to PSM would 

limit employers’ ability to react to real facts on the ground. 
DB1/ 78324772.1 3 

ACC fears that suggested change options would, in practice, weaken PSM’s highly 

effective, flexible performance-oriented approach. Given our concerns, ACC would like to 

underscore the importance of maintaining a performance-oriented approach for the following 

topics: 

(1) Employers must be able to shape RAGAGEP for a particular site based on their own 

selection of applicable internal standards, consensus codes, and/or engineering 

determinations and analyses. Employers must be allowed to consider extrinsic factors 

that are situational or location-specific in determining which approach among multiple 

approaches will best achieve the ultimate goal of safety. The concept of RAGAGEP 

recognizes that there is almost always more than one way to successfully address safety 

and security issues, and that RAGAGEP should include analysis and evaluation far 

beyond the rote application of consensus standards to allow onsite professionals to 

address individual situations and circumstances. 

(2) Employers must be afforded the discretion to choose between self, second-party, and 

third-party audits. Second-party and self-audits have many safety benefits that are lost 

with third-party audits, and the use of third-party auditors should remain a choice for 

employers, who have the greatest understanding of the unique potential risks, hazards, 

and challenges facing their worksites. Under OSHA’s performance-oriented standard, 

the primary goal should be safety—not the elevation of one method over another without 

factoring in site-specific considerations. 

 Next, ACC takes issue with all suggested change options where OSHA has not 

established the existence of significant risk of harm. ACC cautions OSHA against trying to fix 

something not shown to be “broken.” As OSHA is well aware, the Occupational Safety and 

Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to “promulgate, modify, or 

revoke any occupational safety or health standard” that is “reasonably necessary or appropriate 

to provide safe or healthful employment and places of employment.” See 29 U.S.C. §§ 652(8), 

655(b). In the landmark U.S. Supreme Court decision, Industrial Union Department v. American 

Petroleum Institute (the Benzene case), the Court held that “before he can promulgate any

permanent health or safety standard, the Secretary is required to make a threshold finding that a 

place of employment is unsafe—in the sense that significant risks are present and can be 

eliminated or lessened by a change in practices.” 448 U.S. 607, 642 (1980) (J. Stevens, plurality) 

(emphasis in original) (“[A] workplace can hardly be considered ‘unsafe’ unless it threatens the 

workers with a significant risk of harm.”). The Court refused to give OSHA the unchecked 

“power to impose enormous costs that might produce little, if any, discernible benefit,” 

explaining that it would be “unreasonable to assume that Congress intended to give the Secretary 

the unprecedented power over American industry.” Id. at 645. As OSHA stated in its Preamble 

to the Final PSM Rule, “OSHA rulemaking is thus constrained first by the need to demonstrate 

that the standard will substantially reduce a significant risk of material harm, and then by the 

requirement that compliance is technologically capable of being done and not so expensive as to 

threaten economic instability or dislocation for the industry. Within these parameters, further 

constraints such as the need to find cost-effective measures and to respond rationally to all 

meaningful comment militate against regulatory extremes. Finally, it is axiomatic that 

significant departures from prior practice must be justified.” See Final PSM Rule, 78 Fed. Reg. 

6400 (Feb. 24, 1992) (emphasis added). 
DB1/ 78324772.1 4 

Pursuant to Section 304 of the Clean Air Act Amendment of 1990, OSHA promulgated 

the current PSM standard, which ACC believes has been successful in addressing significant 

risks associated with catastrophic releases of toxic, reactive, flammable and explosive chemicals. 

ACC is concerned by OSHA’s RFI on PSM because we see virtually no reference to findings of 

significant risk of harm to justify a dramatic potential shift from the PSM standard and other 

rules (e.g., 29 C.F.R. § 1910.106) already in place. While ACC supports OSHA’s goal of 

increasing workplace safety through the PSM standard, ACC cautions OSHA against taking any 

steps to implement changes that increase burdens on employers without first establishing the 

existence of a significant risk of harm through data and science-based analyses. ACC 

understands that OSHA published the present RFI as part of an effort to collect “data and 

information on its PSM standard” in response to the Executive Order 13650 process. See 78 Fed. 

Reg. 73757 (Dec. 9, 2013). In the meantime, however, ACC will not support any changes to the 

current standard without such risk analysis from OSHA. The real issue, ACC believes, is not 

with the current PSM standard, but with compliance deficiencies and demonstrated problems 

with implementation and enforcement of existing requirements. Changing the regulations alone 

will not improve safety for companies that know how to fulfill the requirements of the current 

standards and consistently do so. Change also will not increase the safety of workers at 

companies that are not in compliance with existing regulations. 

 In fact, ACC believes that process related safety hazards are extremely rare where 

covered employers fully comply with OSHA’s current PSM regulations. Instead, safety 

accidents, including those cited throughout the RFI, often involve outlier companies that 

disregard some or all aspects of the current PSM standard. Full compliance with the regulations 

already in place would eliminate the significant risk of PSM hazards. As such, OSHA should 

focus its time and resources on increasing PSM training and education efforts, as well as 

enforcement for companies with a history of noncompliance, rather than increasing burdens on 

the industry across the board with no discernible reduction of risk. 

 Finally, if OSHA decides to proceed with subsequent rulemaking after considering 

stakeholder comments in the present RFI, ACC encourages OSHA to be transparent and allow 

sufficient opportunity for stakeholder participation in every step of the rulemaking. Specifically, 

should OSHA decide to re-open the PSM standard and other regulations referenced in the RFI, 

ACC hereby requests that OSHA issue an Advance Notice of Proposed Rulemaking (ANPR). 

Given the broad scope but limited detail within this RFI, an ANPR is necessary to provide 

stakeholders with sufficient time and information to evaluate the impact of any proposed rule 

changes. Regarding the required studies and analyses mentioned above, OSHA should grant 

stakeholders sufficient time and opportunity to participate in the OMB-required peer review 

process for scientific information used in risk assessments. Moreover, ACC is confident that any 

proposed PSM rule, if enacted, would have a significant economic impact on a substantial 

number of small business entities. In fact, over half of ACC’s membership consists of small 

business. As such, if rulemaking continues, OSHA would be obligated to convene a Small 

Business Advocacy Review Panel under the Small Business Regulatory Enforcement Fairness 

Act of 1996 (“SBREFA”), which recognizes the importance of protecting the interests of small 

businesses when developing regulations. In general, ACC looks forward to participating in an 

open dialogue with OSHA on any rulemaking involving OSHA’s PSM standard, given the 

current standard’s vital role in setting process safety policy and procedures throughout the 

American chemical community. 
DB1/ 78324772.1 5 

II. RESPONSES TO OSHA RULEMAKING TOPICS / CHANGE OPTIONS

A. ACC Comment On Atmospheric Storage Tanks (Change Option 1) 

OSHA CHANGE OPTION 12

1. Clarifying the PSM Exemption for Atmospheric Storage Tanks 

Pursuant to paragraph (a)(1)(ii) of § 1910.119, the PSM standard applies to processes involving 

a flammable liquid or gas on site in one location in a quantity of 10,000 pounds or more. 

However, paragraph (a)(1)(ii)(B) contains an exemption for “[f]lammable liquids stored in 

atmospheric tanks or transferred which are kept below their normal boiling point without 

benefit of chilling or refrigeration.” 

 

In Secretary of Labor v. Meer Corporation (1997) (OSHRC Docket No. 95-0341), an 

administrative law judge ruled that PSM coverage does not extend to flammables stored in 

atmospheric tanks, even if the tanks are connected to a process. As a result, employers can 

exclude the amount of flammable liquid contained in an atmospheric storage tank, or in transfer 

to or from storage, from the quantity contained in the process when determining whether a 

process meets the 10,000-pound threshold quantity. The Meer decision was contrary to OSHA’s 

earlier interpretation [FN2] of paragraph (a)(1)(ii)(B), which was that the standard covered all 

stored flammables when connected to, or in close proximity to, a process. 

 

OSHA believes that revising paragraph (a)(1)(ii)(B) to include flammable liquids in 

atmospheric storage tanks within or connected to a PSM covered processes would improve the 

safety of workers by remedying the issue in PSM enforcement that has existed since the Meer

decision. In the questions in this RFI, the Agency requests comment on revising paragraph 

(a)(1)(ii)(B) to clarify that the PSM standard covers all stored flammables when connected to, 

or in close proximity to, a process. 

Current Rule On Atmospheric Storage Tanks Under 29 C.F.R. § 1910.119(a)(1)(ii) Protects 

Workers, And OSHA Must Demonstrate Significant Risk Before Proposing Any Changes 

 OSHA’s proposal to revise paragraph (a)(1)(ii)(B) to “improve the safety of workers” is 

not supported by a sound scientific analysis of any risk posed by the current usage of 

atmospheric storage tanks, nor a showing that a significant risk of harm warrants the reopening 

of 29 C.F.R. § 1910.119(a)(1)(ii). ACC respectfully emphasizes that OSHA must substantiate 

that the current regulation is insufficient to protect workers in covered jobsites. Specifically, 

ACC believes that the reopening of the PSM standard is not warranted and that workers are fully 

protected under the current standard and other related standards such as 29 C.F.R. § 1910.106. 

 Moreover, as ACC stated in our written response to the Chemical Safety Board’s (CSB’s) 

Request for Comments regarding Recommendation No. 2001-05-I-DE-1, ACC believes that 

revisiting Paragraph (a)(1)(ii)(B) to include flammable liquids in atmospheric storage tanks 

                                                            

2

 For ease of reference, in text boxes placed throughout this submission, ACC has included excerpts from OSHA’s 

RFI of each Change Option to which ACC offers comment. 
DB1/ 78324772.1 6 

within or connected to a PSM-covered process is not needed and has been fully and adequately 

addressed through the following vehicles: 

 Secretary of Labor v. Meer Corporation (1997) (O.S.H.R.C. Docket No. 95-0341); 

 OSHA interpretation memorandum distributed to Regional Administrators from the 

Director of Compliance Programs (Subject: Coverage of Stored Flammables Under the 

Process Safety Management Standard, dated May 12, 1997); and 

 OSHA letter of interpretation (Subject: Clarification of PSM applicability to processes 

that are based partly or solely on quantities in connected atmospheric storage tanks, dated 

February 11, 2003). 

 Additional regulatory protection for atmospheric storage tanks is provided in 29 C.F.R. § 

1910.106. Under this regulation, atmospheric tanks must be “built in accordance with acceptable 

good standards of design,” including standards published by Underwriters’ Laboratories, Inc. and 

the American Petroleum Institute. See 29 C.F.R. § 1910.106 (regulating the design, construction, 

storage, and other required steps in the handling of atmospheric storage tanks). Among other 

requirements, this regulation makes clear that “[a]tmospheric tanks shall not be used for the 

storage of a flammable liquid at a temperature at or above its boiling point.” See id. It also 

outlines venting obligations for atmospheric storage tanks and establishes hazardous areas 

surrounding tanks “for the purpose of installation of electrical equipment under normal 

circumstances.” OSHA has noted, and ACC recognizes, that Section 1910.106 is one of the 

oldest standards in place. As such, ACC recommends that OSHA undertake an analysis of the 

current version of NFPA 30, and if necessary and supported by data, propose changes to Section 

1910.106 where technical (not formatting) changes have been made. For additional information 

on the relationship between NFPA 30 and Section 1910.106, see ACC’s comment to Change 

Option 14 set forth below (“However, we believe that many of the substantive technical 

requirements in the current version of NFPA 30 are identical, or nearly identical, to the 

information contained in 29 C.F.R. § 1910.106. ACC does not believe that updating for 

formatting reasons alone warrants a reopening of the 29 C.F.R. § 1910.106 standard.”). 

 In addition, other work practices required by OSHA and EPA, such as lockout/tagout, hot 

work, emergency action plan/HAZWOPER, and confined space, also apply to facilities with 

atmospheric storage tanks. These regulations provide another layer of protection to atmospheric 

storage tanks. For example, EPA’s Spill Prevention, Control, and Countermeasure (SPCC) 

regulations apply PSM-like elements such as mechanical integrity and operational elements to 

owners or operators of oil facilities that could reasonably be expected to discharge oil into 

navigable waters. See, e.g., 40 C.F.R. § 112.1. In sum, ACC believes that the management of 

atmospheric storage tanks and associated hazards is adequately covered by existing OSHA 

standards, namely 29 C.F.R. § 1910.106 and the additional aforementioned measures. 

 

B. ACC Comments Regarding Chemistry Issues (Change Options 4 & 5) 

 OSHA CHANGE OPTION 4 

4. Expanding PSM Coverage and Requirements for Reactivity Hazards 

Paragraph (a) of § 1910.119 states that the standard applies to any “process which involves a 

chemical at or above the specified threshold quantities listed in Appendix A,” and to any 
DB1/ 78324772.1 7 

“process which involves a Category 1 flammable gas (as defined in 1910.1200(c)) or a 

flammable liquid with a flashpoint below 100 °F (37.8 °C) on site in one location, in a quantity 

of 10,000 pounds (4535.9 kg),” unless the process meets one of the exceptions in § 

1910.119(a)(1)(ii)(A) and (B). Appendix A of § 1910.119 contains a list of 137 highly hazardous 

chemicals that present a potential for a catastrophic event at or above the listed threshold 

quantities. 

 

OSHA has long been aware of the need to update the PSM standard to address hazards 

associated with reactive chemicals. In response to a 1995 chemical explosion that killed five 

workers at Napp Technologies, Inc., in Lodi, New Jersey, OSHA received a petition to revise its 

PSM standard to address reactivity hazards. OSHA and the U.S. Environmental Protection 

Agency (EPA) investigated the Napp Technologies accident and concluded in a jointly issued 

1997 report (EPA-550-R-97-002) that the explosion was most likely triggered by an uncontrolled 

chemical reaction of water, sodium hydrosulfite, and aluminum powder. Aluminum powder and 

sodium hydrosulfate are relatively stable chemicals, with instability/reactivity ratings [FN3] of 

one [FN4] and two,[FN5] respectively. However, when both of these chemicals are mixed with 

water the reaction is extremely hazardous. In 2000, OSHA added an advance notice of proposed 

rulemaking (ANPRM) for reactive chemicals (RIN 1218-AB63) to its regulatory agenda. 

However, OSHA removed the item from its regulatory agenda in 2002 and never published the 

ANPRM. In 2003, the labor unions re-filed their petition for OSHA to revise its PSM standard to 

address reactivity hazards. 

 

The CSB has also made a number of recommendations to OSHA on how the PSM standard 

could be amended to more comprehensively control reactive hazards. In a 2002 report, the CSB 

broadly recommended that OSHA extend PSM coverage to chemicals based on a class of highly 

reactive properties, similar to the way the existing PSM standard defines a class of flammable 

liquids or gases. The CSB explained that a performance-based approach to evaluating reactive 

hazards would allow for both a comprehensive analysis and flexibility in implementation, but it 

cautioned that a proper hazard analysis of reactive hazards would require expertise in reactivity 

hazards. 

 

One approach to regulating reactive hazards is the New Jersey Toxic Catastrophe Prevention Act 

(TCPA). Enacted in 1986, the TCPA is a New Jersey statute that contains many process safety 

elements similar to the PSM standard, but the TCPA differs from PSM by explicitly covering 

reactive hazards, including reactive mixtures. Unlike the PSM standard, which contains only one 

list of covered hazardous chemicals in Appendix A, the TCPA contains multiple lists. This 

includes the List of Individual Reactive Hazardous Substances, as well as a list of Reactive 

Hazard Substances Mixture Functional Groups. N.J.A.C. 7:31-6.3(a), Table I, Part D, Group I, 

N.J.A.C. 7:31-6.3(a), Table I, Part D, Group II. These functional groups include certain 

molecular structures that have been identified as highly reactive, based on scientific research and 

accident history. Under the TCPA, covered facilities must determine if any of the chemicals they 

are intentionally mixing include components on the Functional Group list. If so, then the facility 

must determine the heat of the reaction and the corresponding threshold quantity for TCPA 

coverage. This approach takes into account not only certain specific chemicals, but also their 

overall reactivity in determining the level of coverage. 

 
DB1/ 78324772.1 8 

In the questions in this RFI, OSHA invites comment on different regulatory approaches to 

covering reactive hazards, including the approach used in the TCPA. 

Appendix A Already Adequately Cover Reactivity Hazards, And An Expansion Of PSM 

Coverage And/Or Requirements For Reactivity Hazards Is Unjustified 

 ACC notes that PSM already covers a number of substances that are highly reactive. As 

the RFI itself states, a “number of the chemicals listed in Appendix A are highly reactive 

chemicals based on a variety of metrics, including consensus standard sources, but the list does 

not cover all highly reactive chemicals.” See 78 Fed. Reg. 73759. In addition to the 

requirements imparted by this list, evaluation of reactivity also occurs during the Process Hazard 

Analysis, pursuant to 29 C.F.R. § 1910.119(e)(1), which requires employers to “identify, 

evaluate, and control the hazards involved in the process.” 

 Beyond these requirements currently in place, reactivity hazards cannot be adequately 

addressed through regulatory listing approaches. ACC agrees with the advice given by CSB in 

2002 that “[u]sing lists of chemicals is an inadequate approach for regulatory coverage of 

reactive hazards. Improving reactive hazard management requires that both regulators and 

industry address the hazards from combinations of chemicals and process-specific conditions 

rather than focus exclusively on the inherent properties of individual chemicals.” See CSB, 

Report No. 2001-01-H, Hazard Investigation: Improving Reactive Hazard Management, at 87 

(Oct. 2002) (emphasis added). As the PSM rule is essentially a list-based rule, ACC believes 

that this statement is as true today as when it was published, and that no new data in the 

intervening 12 years contradicts this conclusion. For pairs of chemicals, which make up the vast 

majority of reactive substances, extrinsic process and location-specific conditions must be 

considered in any hazard assessment. 

 ACC supports OSHA’s efforts to reduce any significant risk associated with reactivity. 

However, ACC believes that before OSHA takes any additional steps, OSHA must first conduct 

a sound scientific analysis and technical evaluation to justify expanding PSM coverage and 

requirements for reactives. OSHA must investigate and explain what the risk is of some 

threshold unacceptable hazardous consequence from a reaction—at what quantity/concentration 

will an explosion occur? Would the potential explosion be a significant risk? ACC respectfully 

recommends that OSHA fulfill its statutory requirement to demonstrate whether updating the 

standard is required. Only after OSHA has established through sound scientific analysis that 

reactives impose a substantial risk and hazard should any rulemaking proceed. 

 With this in mind, if OSHA completes a risk and hazard assessment which justifies a 

proposal to expand PSM’s coverage, ACC recommends that OSHA prioritize reactivity hazards 

by (1) focusing on compounds that are highly hazardous independent of processing technology 

or conditions (namely, compounds that are strongly self-reactive, or react violently with air 

and/or water), and (2) establishing threshold quantities based on a hazard and risk assessments 

for specific compounds. For example, the Globally Harmonized System of Classification and 

Labelling of Chemicals (GHS) (3rd edition 2009) provides a framework from which specific 

compounds could be identified for evaluation: 

 Self-Reactive Substances, Types A to C (but not D, E, F & G) 

 Pyrophoric Liquids 
DB1/ 78324772.1 9 

 Substances that, in contact with water, emit flammable gases, Categories 1 & 2. 

 Other classes of reactives (i.e., runaway reactions and intentional reactive chemistry) 

simply are not amenable to a broad regulatory approach. These classes depend on situationspecific factors such as use or proximity to other substances that react; they can only be 

evaluated through the application of industry tools and resources on the specific technology and 

conditions in which they are utilized. By contrast, self-reactive substances and substances that 

are reactive with air and water are more amenable to a list-based rule because they are 

intrinsically-based hazards, much like the materials already covered by PSM Appendix A such as 

flammables. By intrinsic, we mean that the hazard is not situation- or application-dependent, 

which is clearly the case with binary pair reactive chemicals. 

 Even within the high-priority class of chemicals that are self-reactive or violently reactive 

with air and/or water, it is imperative that OSHA not categorically adopt the aforementioned 

classes without first developing a valid, consistent methodology to identify threshold hazard 

quantities or concentrations. ACC is willing to work with OSHA to establish any such 

methodologies and/or criteria. In fact, ACC already has identified useful consensus standards 

and other resources that should be used to identify any reactivity hazards (again, only after 

OSHA first justifies coverage through hazard and risk analyses): 

(1) The Center for Chemical Process Safety (CCPS), an industry-technology alliance of 

the American Institute of Chemical Engineers (AIChE), produced and published, with the 

financial backing of OSHA, EPA, SOCMA, and ACC, the book “Essential Practices for 

Managing Chemical Reactivity Hazards” (Johnson, Unwin and Rudy, 2003), available at 

https://www.aiche.org/ccps/publications/books/essential-practices-managing-chemicalreactivity-hazards, which provides tools for identification and further evaluation of 

reactivity hazards. Through the financial support of the above-mentioned organizations, 

this book was made available via electronic download free of charge for three years after 

publication, resulting in more than 12,000 electronic downloads. Additionally, CSB gave 

CCPS an “Exceeds Expectation” rating for its recommendation as a part of CSB’s 2002 

study when the book was published. 

(2) The National Oceanographic and Atmospheric Administration (NOAA) has also 

contributed significantly to the management of reactivity hazards through its publication 

of the “Chemical Reactivity Worksheet” (now Version 3.0, and soon to be upgraded), 

available at http://response.restoration.noaa.gov/reactivityworksheet. This electronic 

worksheet creates potential reaction interaction matrices, as well as for generic classes of 

chemicals, in a succinct, referenced, and easily transmitted format. This tool is also the 

centerpiece of CCPS’s Reactivity Management Tool (RMT), available at 

http://www.aiche.org/ccps/resources/tools/reactivity-management-tool. 

Together, these and other similar resources provide a much more effective means for reactivity 

hazard management than could ever be accomplished for reactives through a list-based rule. 

Ultimately, ACC believes that OSHA can most effectively accomplish its goal of reactivity risk 

reduction by promoting awareness of the existing industry evaluation tools, references, and 

guidance on how to evaluate reactive hazards. 
DB1/ 78324772.1 10 

OSHA CHANGE OPTION 5 

5. Updating the List of Highly Hazardous Chemicals in Appendix A of the PSM Standard 

Appendix A of § 1910.119 contains a list of 137 highly hazardous chemicals that present a 

potential for a catastrophic event at or above the threshold quantity of the standard. OSHA 

compiled the Appendix A list of chemicals from multiple sources, including: 

 

• New Jersey’s Toxic Chemical Prevention Act; 

 

• Delaware’s Extremely Hazardous Substances Risk Management Act; 

 

• The World Bank’s Manual of Industrial Hazard Assessment Techniques; 

 

• U.S. Environmental Protection Agency’s List of Extremely Hazardous Substances; 

 

*73760 • U.S. Department of Transportation’s Emergency Response Guidebook; 

 

• Council of the European Communities’ Council Directive of June 24, 1982, on the Major 

Accident Hazards of Certain Industrial Activities (82/501/EEC); 

 

• United Kingdom Health and Safety Executive’s A guide to the Control of Major Accident 

Hazards Regulations 1999 (as amended); 

 

• API’s Recommended Practice 750—Management of Process Hazards; 

 

• National Fire Protection Association’s (NFPA) NFPA 49—Hazardous Chemicals Data; and 

 

• Organization Resources Counselors, Inc.’s Recommendations for Process Hazards 

Management of Substances with Catastrophic Potential. 

 

Every chemical listed in Appendix A appeared in at least one of these sources as warranting a 

high degree of management control due to its extremely hazardous properties; most of the 

chemicals appeared in several of the sources. 

 

Appendix A has remained unchanged since OSHA promulgated the PSM standard in 1992. In 

the questions in this RFI, OSHA requests public comment on which chemicals, if any, the 

Agency should add to Appendix A through rulemaking. OSHA further seeks comment on 

methods for periodically updating Appendix A to ensure adequate protection of workers in PSMcovered facilities when new hazards are discovered and as technology and advancements in 

chemical science evolve. 

Before Any Changes Are Made To The List Of Highly Hazardous Chemicals In Appendix 

A Of The PSM Standard, OSHA Must Undertake Scientific Analyses And Establish 

Significant Risk 

 Appendix A of 29 C.F.R. § 1910.119 contains a list of 137 highly hazardous chemicals, 

compiled from numerous sources, that present a potential for a catastrophic event at or above the 
DB1/ 78324772.1 11 

threshold quantity of the standard. ACC encourages OSHA to amend Appendix A only where 

actual data warrants the incorporation of additional chemicals. To this end, ACC urges 

OSHA to develop and publish its research and data-gathering methodology for identifying, 

defining, and quantifying the hazards associated with a chemical. OSHA should use a formal, 

scientific-based approach to evaluate chemicals and, ultimately, to demonstrate that any 

proposed changes to the PSM standard are justified and would actually enhance worker safety. 

 At present, although OSHA states in the RFI that “Appendix A has remained unchanged 

since OSHA promulgated the PSM standard in 1992,” OSHA has provided no justifications for 

updating the list other than the fact that it has remained unchanged since 1992. See 78 Fed. Reg. 

73769. The passage of time, in and of itself, is not a sufficient reason to embark on a new 

rulemaking and ACC is not aware of any reason or development to justify the reopening of 

Appendix A. ACC therefore requests that OSHA identify any issues with the constitution of the 

current list before moving forward with any potentially unjustified changes. ACC believes that it 

is OSHA’s duty to perform a significant risk analysis on an industry basis, as well as 

demonstrate that each chemical the Agency intends to regulate exposes employees to a 

significant risk of harm. ACC trusts that, by completing these required steps in the rulemaking 

process, OSHA will be able to more efficiently focus its resources on the workplaces and hazards 

that pose the most potential risk. 

 ACC notes that many chemicals that are not specifically listed by name in Appendix A of 

29 C.F.R. § 1910.119 are covered under 29 C.F.R. § 1910.119(a)(1)(ii) through processes that 

involve a Category 1 flammable gas (as defined in 29 C.F.R. § 1910.1200(c), and further defined 

in Appendix B to 29 C.F.R. § 1910.1200 regarding physical hazard criteria). Only highly 

hazardous chemicals that were intended to be addressed by the regulation or that have been 

identified and justified using scientific methods that define purported hazards and concerns 

should be included on the list. Diluting the list with chemicals that have not been demonstrated 

to represent high hazards will reduce the overall effectiveness of any process safety program. 

 In sum, ACC believes that the existing list in Appendix A of 29 C.F.R. § 1910.119 is 

comprehensive, and adding additional chemicals should be approached with caution. If incident 

data supports the need for rulemaking on highly hazardous chemicals, ACC would be happy to 

collaborate with OSHA to establish revision criteria and help ensure that updates are 

technologically feasible and cost-effective and, most importantly, actually enhance the safety of 

workers. 

C. ACC Comments Regarding Additional Management System Elements 

(Change Option 6) 

OSHA CHANGE OPTION 6 

6. Revising the PSM Standard To Require Additional Management-System Elements 

Executive Order 13650 requires OSHA to “identify issues related to modernizing the PSM 

standard.” When OSHA promulgated the PSM standard in 1992, the standard adopted 

management-system elements based on best practices from industry at the time. However, best 

practices have continued to evolve since 1992 and additional management-system elements 

may now be recognized to be necessary to protect workers. In this RFI, OSHA seeks public 
DB1/ 78324772.1 12 

comment on additional management-system elements that would increase worker protection if 

required under the PSM standard. 

 

The Center for Chemical Process Safety (CCPS) is an example of a safety organization that 

recommends additional management-system elements. CCPS specifies in its Risk Based 

Process Safety (RBPS) program 20 different management-system elements, a number of which 

are not included in the PSM standard. 

 One such RBPS element is “Measurement and Metrics,” described by CCPS as a system 

for establishing indicators to track the effectiveness of the management system.[FN6] In 

this element, the employer typically uses metrics to track leading and lagging safety 

indicators, and to identify opportunities for improvement. 

 Another RBPS element is “Management Review and Continuous Improvement,” which 

CCPS describes as “the ongoing ‘due diligence’ review by management that fills the gap 

between day-to-day work activities and periodic formal audits.” [FN7] 

 A third RBPS element is “Process Safety Competency,” which CCPS explains 

“encompasses three interrelated actions: (1) Continuously improving of knowledge and 

competency, (2) ensuring that appropriate information is available to people who need 

it, and (3) consistently applying what has been learned.” [FN8] 

 

OSHA also is considering adopting management-system elements from safety standards that 

other federal agencies promulgated since 1992. For example, the Bureau of Safety and 

Environmental Enforcement’s (BSEE) Revisions to Safety and Environmental Management 

Systems (SEMS II) final rule (78 FR 20423; 04/05/2013), which revised a number of 

requirements in 30 CFR 250, Subpart S, contains management-system elements not included in 

the PSM standard. In its SEMS II Fact Sheet (April, 2013) [FN9], BSEE describes three of the 

main additional elements as follows: 

 

• Developing and implementing a stop work authority that creates procedures and authorizes 

any and all offshore industry personnel who witness an imminent risk or dangerous activity to 

stop work. 

 

• Developing and implementing an ultimate work authority that requires offshore industry 

operators to clearly define who has the ultimate work authority on a facility for operational 

safety and decision-making at any given time. 

 

• Requiring an employee participation plan that provides an environment that promotes 

participation by offshore industry employees as well as their management to eliminate or 

mitigate safety hazards. 

 

OSHA invites public comment on any additional management-system elements, or on 

expanding existing elements, including those elements discussed in this RFI to improve worker 

protection in facilities covered under the PSM standard. The Agency requests that commenters 

submit data and information on management-system elements from consensus standards, safety 

organizations, federal standards, or other sources that could increase worker safety if OSHA 

expanded the PSM standard to include the elements. 
DB1/ 78324772.1 13 

Additional Management-System Elements Need Not And Should Not Be Added To 

OSHA’s PSM Standard 

 OSHA is soliciting comments on a possible revision to the PSM standard to require 

additional management-system elements that would “modernize” the scope of PSM. Yet OSHA 

has not provided any evidence indicating that the existing PSM regulation has not adequately 

included the process safety elements necessary to develop an effective performance-based PSM 

system. In the present RFI, OSHA cited incidents where existing management system elements 

were not adequately performed. These examples, however, demonstrate a problem with 

implementation and enforcement; they do not constitute evidence of the need for additional 

elements or expansion of regulatory coverage. Imposing unnecessary added regulations on all 

covered employers ignores the root problems—that certain outlier companies have chosen not to 

address the regulation in its entirety through the implementation and maintenance of existing 

regulatory PSM elements, or perhaps do not realize that they are covered by the regulation. 

 When EPA promulgated 40 C.F.R. Part 68, it aligned Section 68.15 of the RMP rule 

(requiring facilities to develop a management system) with Section 1910.119 PSM elements. 

Here with management-system elements, OSHA should consider EPA’s precedent and maintain 

consistency between PSM and RMP program elements. Although there are significant 

differences between RMP and PSM, there is a broad level of consistency that needs to be 

maintained between the two programs. For example, employers have enacted compliance 

programs based on the overlapping philosophies in management of change and RMP. 

Consistency would drastically reduce the burden on employers complying with two distinct 

programs. 

 OSHA notes in the RFI that CCPS recommends additional management-system elements 

such as Conduct of Operations and PSM Metrics, as well as performing periodic Management 

Reviews of PSM programs. Each of these CCPS additional elements are supportive management 

tools, which are applied to improve the efficacy of the existing elements in the OSHA PSM 

standard. They do not create a work product of their own, and therefore are inappropriate in the 

performance-based PSM standard. ACC agrees that these types of cultural process safety 

elements may lend themselves to individual organizational continuous improvement actions. 

However, such elements are not well suited for prescriptive regulation or to support (consistent, 

rational) enforcement actions by government agencies. They would be ineffectual and confusing 

as PSM elements, and, as such, should not be added to the current regulations. 

 Furthermore, lagging PSM metric indicator collection and evaluation should not be 

required by regulation. While lagging indicators may provide insight into an organization’s 

process safety performance, there are limits to how this data can be utilized as a meaningful 

measurement and comparison point. Organizations like ACC, ICCA, API, AFPM, and CCPS 

have been working to standardize and harmonize process safety metric collection and analysis to 

provide consistency in reporting; however, this standardization has not yet come to fruition and 

may not be achievable. If it existed, ACC would support a single, global, and harmonized set of 

process safety lagging indicators that could be applied by chemical manufacturers worldwide. 

The advantages of a single scheme are numerous and include simplified reporting and 

benchmarking, teachable experiences that can be disseminated across all facilities, continuous 

process safety improvement, and mitigation and elimination of risks. However, such a 
DB1/ 78324772.1 14 

harmonized set of metrics does not exist at this point, and even if such a set is developed, ACC 

does not see the need for its inclusion as a regulation. 

 In addition, leading PSM metrics cannot be effectually regulated. Even more than 

lagging metrics, leading metrics do not lend themselves to standardization and cannot be 

successfully employed across organizations or industries, as they tend to be very specific to an 

organization and often to an individual site and are not, by definition, specific to one root cause. 

By way of comparison, occupational safety lagging metrics such as days away and total 

recordable injuries—which ACC and other organizations still have struggled to standardize 

across the industry—tend to be numerical and quantitative in nature, whereas leading indicators 

such as behavioral-based audits, employee observations, and employee participation in safety 

committees are extremely subjective and site-specific. These metrics cannot and should not be 

universally applied or regulated. 

 Also in the RFI, OSHA noted that the Bureau of Safety and Environmental Enforcement 

(BSEE) included additional management systems elements, such as (1) stop work authority, (2) 

ultimate work authority, and (3) employee participation plans, in the offshore Safety and 

Environmental Management System (SEMS) regulation. OSHA seeks comment on including 

these concepts in the PSM standard. ACC does not believe that these examples support adding 

management-system elements to the PSM standard. OSHA emphasizes the offshore industry in 

all three examples. Offshore platforms are substantially different from onshore facilities, with 

different issues and challenges. The isolated nature and minimal management staffing of 

offshore industries does not closely correlate to land-based chemical facilities, which have 

adequate staffing, communications, and geographic proximity to make ultimate operating 

authority clear and effective without any need for additional regulatory elements. Moreover, 

identification of stop work authority is already required in existing PSM regulation Section F—

Operating Procedures (1)(i)(D)—and does not need to be repeated in a separate element. In sum, 

ACC believes that the existing PSM management-systems elements required by OSHA in 29 

C.F.R. § 1910.119 represent the key components needed for a successful PSM program, and 

additional requirements suggested by OSHA in the present RFI would not provide any 

corresponding safety benefits and are not amenable to regulatory implementation. 

D. ACC Comments Regarding RAGAGEP (Change Options 7 & 8) 

OSHA CHANGE OPTION 7 

7. Amending Paragraph (d) of the PSM Standard To Require Evaluation of Updates to 

Applicable RAGAGEP 

Paragraph (d)(3)(ii) of § 1910.119 requires employers to document that covered equipment 

complies with RAGAGEP. “For existing equipment designed and constructed in accordance 

with codes, standards, or practices that are no longer in general use,” paragraph (d)(3)(iii) of § 

1910.119 further requires employers to “determine and document that the equipment is 

designed, maintained, inspected, tested, and operating in a safe manner.” However, the PSM 

standard does not require employers to evaluate updates to applicable RAGAGEP or to examine 

new RAGAGEP after evaluating and documenting compliance with either § 1910.119(d)(3)(ii) 

or (iii). 
DB1/ 78324772.1 15 

 

Through extensive collaboration and evaluation of incidents, many safety organizations 

periodically update their standards to improve work practices and protect workers against newly 

identified hazards. Since the practices constituting RAGAGEP under the PSM standard are 

constantly changing as a result of this process, evaluating updates to applicable RAGAGEP 

ensures that employers base a facility’s PSM program on the most up-to-date and accurate 

safety information available. 

 

An accident that occurred at a Formosa Plastics facility in Point Comfort, Texas, on October 6, 

2005, illustrates the importance of evaluating updates to applicable RAGAGEP. A trailer towed 

by a forklift became snagged and pulled a small drain valve out of a strainer in a liquid 

propylene system at the facility. Escaping propylene rapidly vaporized, causing a series of 

explosions and fires that injured 16 workers. According to the CSB’s investigation report on the 

incident (CSB Report No. 2006-01-I-TX), Formosa and the company that sold the plant design 

failed to evaluate updates to applicable RAGAGEP for fireproofing structural steel that supports 

critical safety systems. The CSB concluded in its report that had Formosa fireproofed the steel 

according to more recent RAGAGEP, then “the consequences of this incident would likely have 

been less severe.” OSHA invites public comment on the best approach to revising paragraph (d) 

of *73761 the PSM standard to require employers to evaluate updates to applicable RAGAGEP 

could help prevent or mitigate accidents like the October 6, 2005, Formosa explosion, and 

increase worker protection in PSM-covered facilities. 

ACC Submits That OSHA Need Not Amend PSM To Explicitly Require Employers To 

Document Their Evaluations Of Updates In Codes And Standards Under RAGAGEP 

 A strict mandate to evaluate all updates to codes and standards would be extremely costly 

to implement and impractical, with little or no corresponding risk reduction. Employers should 

not be forced to re-document their safety evaluations every time an update to a standard is 

published. PSM-covered equipment or processes do not become “less safe” merely because a 

code or standard is updated. ACC believes that current OSHA regulations adequately protect 

worker safety and already ensure that employers examine all pertinent safety updates applicable 

to “recognized and generally accepted good engineering practices,” also known as RAGAGEP. 

 ACC has strong legal and practical concerns regarding any government requirement that 

employers evaluate standards and codes, many of which are privately published, each time they 

are updated. As explained in OSHA’s recent presentation to the Global Congress on Process 

Safety: 

Incorporation of consensus standards by reference has benefits to 

both OSHA and the regulated community. However, OSHA must 

incorporate a specific version of a standard. When the consensus 

standard is updated, OSHA’s incorporated standard becomes dated 

and can only be updated through the rulemaking process. 

Commenters on OSHA’s ANPRM realized this, and this resulted 

in a different approach, the introduction of the RAGAGEP 

concept. 
DB1/ 78324772.1 16 

See Lisa Long, James Lay, P.E., Michael Marshall, P.E. & Jeffrey Wanko, P.E., C.S.P, OSHA 

Presentation to 9th Global Congress on Process Safety: RAGAGEP 101 (April 28–May 1, 2013) 

(referred to below as “RAGAGEP 101”). As OSHA stated in Part I Question 8 of the present 

RFI, any required evaluation of all potentially applicable consensus standards is problematic 

given “difficulties in obtaining relevant codes and standards” and “potential confusion on which 

codes were required by OSHA in a given situation.” See 78 Fed. Reg. 73761. For these reasons, 

OSHA explained in the Preamble to the Final PSM Rule (Feb. 24, 1992) that the “Agency did 

not intend to incorporate by reference into the [RAGAGEP] 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,” 

including internal standards. See 57 Fed. Reg. 6390. Clearly, OSHA never intended employers 

to be bound by all codes and standards published by consensus groups through RAGAGEP; by 

extension, employers should not be bound to evaluate all updates to consensus codes and 

standards. RAGAGEP eliminates the need for covered employers to document their evaluation 

of every applicable standard and code amendment by creating a broader, all-encompassing 

standard based on RAGAGEP. Inherent in the concept of RAGAGEP is an ongoing evaluation 

of all pertinent safety updates that together make up “recognized and generally accepted good 

engineering practices.” 

 Indeed, the legal and practical implications of such a mandate would be exceptionally 

problematic, considering the hundreds of continually updated codes and standards that may be 

applicable to a particular worksite’s RAGAGEP. Would employers be required to evaluate in 

writing even minor changes to standards? Would employers be required to evaluate changes that 

have no effect on safety? If so, how could OSHA justify this tremendous burden? If not, how 

would OSHA distinguish, monitor, and enforce the evaluation of changes that affect safety from 

changes with no safety consequences? What would happen if there was a significant 

disagreement within the consensus organization that had issued a specific standard or set of 

standards, or where there was continuing internal review and appeal of a standard—what would 

OSHA’s enforcement position be? Given these ambiguities, ACC is strongly opposed to 

OSHA’s proposal to explicitly require employers to document their evaluation of all updates in 

codes and standards. 

 Furthermore, constant monitoring and evaluation of updates to all codes and standards 

that may apply to RAGAGEP would impose a significant economic burden on industry. 

Consensus standards are not typically free to the public, and subscriptions to all potentially 

applicable standard publications represent a significant cost, especially to small businesses. In 

addition, the task of evaluating all updates (including minor updates and updates where prior 

practices remain safe) would be extremely time-consuming for any company, and unjustifiably 

expensive for smaller enterprises. Lastly, this requirement could encourage unnecessary and 

excessive updates to consensus standards, creating (1) economic disincentives for affected 

employers to support the activities of the standard developers and (2) substantial economic 

incentives for those who financially benefit from continual updates. By contrast, OSHA has 

provided no data to show that concrete benefits and enhanced worker safety would result from 

imposing this requirement. 

 
DB1/ 78324772.1 17 

 Importantly, the current PSM framework already has mechanisms in place to ensure that 

processes are safe on an ongoing basis, even if equipment was originally designed or constructed 

to comply with standards or practices no longer in use. Under 29 C.F.R. § 1910.119(d)(3)(iii), 

“[f]or existing equipment designed and constructed in accordance with codes, standards, or 

practices that are no longer in general use, the employer shall determine and document that 

the equipment is designed, maintained, inspected, tested, and operating in a safe manner.” 

(Emphasis added.) Employers have the duty to ensure that equipment is operated in a safe 

manner, regardless of the codes and standards originally employed. Moreover, 29 C.F.R. § 

1910.119(j)(4), which focuses on mechanical integrity, mandates inspection and testing be 

performed on process equipment as frequently as required by “applicable manufacturers’ 

recommendations and good engineering practices, and more frequently if determined to be 

necessary by prior operating experience” and by following “recognized and generally accepted 

good engineering practices.” 

 The bottom line is that current PSM requirements already ensure that employers consider 

pertinent safety updates applicable to RAGAGEP. In fact, OSHA clarified in a Letter of 

Interpretation that after the employer makes a baseline safety determination (with corresponding 

documentation of the determination) under 29 C.F.R. § 1910.119(d)(3)(iii), other PSM elements 

address continuing safety: 

Generally speaking, OSHA intended for the employer 

determination and documentation required by 29 CFR 

1910.119(d)(3)(iii) to be completed prior to the implementation of 

the original PHA or startup of a PSM-covered process. Therefore, 

once an employer is in compliance with this requirement, there is 

no additional requirement per 29 CFR 1910.119(d)(3)(iii) for 

future determinations/documentation simply because a code or 

standard related to the covered equipment has been revised. After 

the employer has made this baseline determination and 

documentation, other PSM elements such as management of 

change, mechanical integrity, PHA-revalidation, pre-startup 

safety review, etc., are intended to address on-going safe 

operation and maintenance of PSM-covered equipment. 

See OSHA Letter of Interpretation to Mr. Durham Regarding Section 1910.119(d)(3)(iii) (dated 

Jan. 20, 2001 and corrected June 2, 2005) (emphasis added). ACC believes that steps listed 

above—including management of change, mechanical integrity, PHA-revalidation, and prestartup safety review—appropriately require employers to evaluate process safety of all 

equipment under current standards. Adding a new requirement of employers to document that 

they have evaluated all updates to safety codes is unnecessary, unjustified, and overly 

burdensome. 

 Finally, ACC would like to highlight that RAGAGEP is a large and diverse subject—not 

a single code, standard, practice, or update. As OSHA has stated, the PSM standard outlines a 

management system framework “upon which employers build.” See RAGAGEP 101. The 

employer’s responsibility for selecting and implementing actions to manage risk is a key 

component of the entire foundation of the PSM framework: 
DB1/ 78324772.1 18 

The PSM standard is not prescriptive because of the number and 

types of industries, facilities, chemicals, and technologies covered 

by the standard. Employers have latitude to develop and initiate 

the required management systems in a manner that is flexible and 

takes into account the attributes of their covered processes and 

equipment while still achieving safe operations. 

. . . . 

Because OSHA is not in a position to be expert in any industry, use 

of RAGAGEP is critical to the success of a performance standard 

such as PSM. Using the collective wisdom and experience of 

industry experts, RAGAGEP helps achieve safe operations 

throughout industries using highly hazardous chemicals. 

Id. OSHA has acknowledged that employers have the discretion and responsibility to select “the 

appropriate RAGAGEP with which to comply.” Id. Ultimately, there is no single code, 

standard, or methodology that would be congruous to the diverse nature of chemical industry 

operations. 

OSHA CHANGE OPTION 8 

8. Clarifying the PSM Standard by Adding a Definition for RAGAGEP 

The term “recognized and generally accepted good engineering practices” (RAGAGEP) appears 

in paragraphs (d)(3)(ii) and (j)(4)(ii) of § 1910.119, but the PSM standard does not contain a 

definition for the term. For guidance purposes, OSHA’s Petroleum Refinery NEP directive 

(CPL 03-00-010) provides one example of a RAGAGEP definition from CCPS’s Guidelines for 

Mechanical Integrity Systems: 

 

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. 

 

Although the CCPS’s definition of RAGAGEP is not an official OSHA definition, it is 

consistent with OSHA’s intent when it promulgated the standard. In its PSM proposal, OSHA 

would have required employers to follow commonly accepted consensus standards and industry 

codes. 55 FR 29150, 29155 (July 17, 1990). In promulgating the final rule, OSHA changed the 

requirement that employers comply with applicable published codes to the requirement that 

they comply with “recognized and generally accepted good engineering practices.” In making 

this change, OSHA explained that RAGAGEP would include codes and standards published by 

organizations such as NFPA, ASTM, and ANSI, as well as “appropriate internal standards.” 57 

FR at 6390-91. OSHA made the change in response to comments expressing a number of 

concerns about the proposed language. These included comments about employers’ difficulties 

in obtaining relevant codes and standards, potential confusion on which codes were required by 
DB1/ 78324772.1 19 

OSHA in a given situation, the possibility that codes and standards could become outdated, and 

the inability of employers to use more stringent internal standards. OSHA believed it was clear 

from the context of this change that it intended “appropriate internal standards” to be those 

employers developed when published codes and standards were unavailable or outdated, or that 

were more stringent than published standards. 57 FR at 6390-91. However, OSHA did not 

include a definition of RAGAGEP in the standard itself. 

 

In this RFI, OSHA invites public comment on whether the Agency should clarify the PSM 

standard by including an explicit definition of RAGAGEP in § 1910.119 to assist employers in 

complying. OSHA requests that commenters specify if the Agency should adopt the CCPS’s 

definition of RAGAGEP in § 1910.119, or any other appropriate definition, and whether 

inclusion of a definition would increase worker protection and enhance process safety. 

To Best Achieve The Goal Of Workplace Safety, RAGAGEP Must Be PerformanceOriented And Allow Employers To Evaluate And Individualize Their Own Internal 

Standards

 To best protect workplace safety, “recognized and generally accepted good engineering 

practices” must remain a fluid concept that allows employers to tailor PSM to the realities and 

challenges of their particular worksites. RAGAGEP cannot be a single document, code, 

standard, or practice. Instead RAGAGEP must include both industry consensus guidance and 

appropriate internal standards that have been evaluated and adopted by employers, leaving room 

for determinations by onsite engineers. 

 The inclusion of internally developed standards in this definition is a key feature that 

allows RAGAGEP to be a valuable process safety tool. By allowing employers to tailor industry 

consensus guidance documents, RAGAGEP adapts to the highly unique demands of complex 

chemical equipment and operations. RAGAGEP recognizes the reality of chemical operations—

that there is no one singular way to solve a given problem that provides similar levels of risk 

reduction for the diverse set of equipment, processes, and chemicals utilized in the United States, 

even across a single chemical company. Covered employers must be able to tailor consensus 

guidance to situations presented at their individual workplaces. Even standards with highly 

prescriptive, consequence-only methods (such as API 753) contain language that permits, and 

even encourages, tailoring through detailed first-principal-based engineering analyses. Any “all 

or nothing” RAGAGEP definition would be as ineffectual as it is unjustified; instead, employers 

must be allowed discretion in the manner and extent of adopting specific parameters. 

 Under RAGAGEP, employers are responsible for appropriately analyzing and evaluating 

safety issues and addressing them through adoption of existing industry consensus standards, 

guidance, and/or appropriate internal standards tailored to the unique facts presented in that 

workplace. To effectively protect workers and the public, RAGAGEP must be a performanceoriented standard. As OSHA itself recently explained: 

The PSM standard is not prescriptive because of the number and 

types of industries, facilities, chemicals, and technologies covered 

by the standard. Employers have latitude to develop and initiate 

the required management systems in a manner that is flexible and 
DB1/ 78324772.1 20 

takes into account the attributes of their covered processes and 

equipment while still achieving safe operations. 

See RAGAGEP 101. Under RAGAGEP, employers must be allowed to consider extrinsic 

factors that are situational or location-specific in determining which approach among multiple 

approaches (not all of which are published in consensus documents) will best achieve the 

ultimate goal of safety. 

 RAGAGEP provides employers with both the responsibility and accountability to 

identify and implement proper standards and monitor onsite safety. Part of the justification for 

making employers responsible for developing RAGAGEP is the recognition of the unique 

expertise of employers’ engineers and other specialists. These onsite specialists apply their 

knowledge and skills to evolving situations presented in the particular workplace. To best 

protect worker safety, employers, with the support of their engineers and other professionals, 

must decide which “recognized and generally accepted good engineering practices” may be 

applicable to the individual workplace by analyzing the specific conditions and challenges 

presented. 

 ACC notes that although the phrase “appropriate internal standards” is used throughout 

the present RFI, OSHA has not defined this phrase through guidance or rulemaking. In the 

original Preamble to the Final PSM Rule, OSHA specifically and repeatedly stated that 

RAGAGEP “would include appropriate internal standards of a facility, as well as codes and 

standards published by NFPA, ASTM, ANSI, NFPA, etc.” See 57 Fed. Reg. 6390 (Feb. 24, 

1992). OSHA further explained that: 

Several rulemaking participants . . . suggested that if this provision 

is to be truly performance-oriented, employers should have the 

flexibility to follow internal standards and manufacturers’ 

recommendations as well as applicable codes and standards. 

OSHA agrees with these rulemaking participants. Since the phrase 

“recognized and generally accepted good engineering practices” 

would include both appropriate internal standards and applicable 

codes and standards, the Agency has decided to use this phrase in 

this provision of the final rule. 

Id. at 6390-91. As OSHA stated in the Preamble to the Final Rule, RAGAGEP was included in 

the final PSM rule because, at its core, RAGAGEP provided employers with the flexibility to use 

appropriate internal standards and/or consensus codes—consistent with the goal of making PSM 

a performance-oriented standard. Nowhere in the Preamble to the Final Rule did OSHA 

prioritize consensus codes and standards over internal standards. Moreover, in a recent Letter of 

Interpretation, OSHA acknowledged that consensus standards are merely one factor that should 

be considered among other factors in developing RAGAGEP: 

The PSM standard is a performance-oriented standard. When not 

specified, the employer has flexibility in complying with the 

requirements of PSM, including recognized and generally accepted 
DB1/ 78324772.1 21 

good engineering practices. With respect to SIS [safety 

instrumented systems], OSHA does not specify or benchmark 

[ANSI/ISA’s 1996] S84.01 as the only recognized and generally 

accepted good engineering practice. Based on input from 

stakeholders, OSHA stated in the PSM final rule (see F.R., 

Volume 57, No. 36, pg 6390) that it did not intend to 

incorporate by reference into PSM all the codes and standards 

published by consensus groups. Therefore, in evaluating whether 

an employer's engineering practices with respect to SIS complies 

with PSM, OSHA would consider among other factors, whether 

the employer meets the requirements of S84.01. 

OSHA Letter of Interpretation from Directorate of Enforcement Programs Richard E. Fairfax to 

Ms. Ferson (dated Mar. 23, 2000 and corrected June 2, 2005) (emphasis added). 

 

 Despite the clear inclusion of appropriate internal standard in RAGAGEP, OSHA has 

recently taken a more restrictive position on this issue, namely that internal standards will be 

deemed “appropriate” only where (1) they are based on sound engineering principles; (2) the 

existing consensus standard is outdated and no longer reflects a consensus on good engineering 

practices; (3) the internal standards fill gaps left by the consensus standards or apply general 

consensus standards to particular types of process equipment; or (4) the internal standards are 

more protective than consensus standards. See Petition for Discretionary Review, Sec’y v. BP 

Prods. N. Am., Inc., No. 10-0637 at 15 n.10 (O.S.H.R.C. Sept. 5, 2013) (citing Sec’y PostHearing Br. 90-91; 57 Fed. Reg. at 6390). ACC strongly opposes OSHA issuing “factors” that 

have enforcement consequences without first presenting and proposing them to the regulated 

community through proper notice (which would include OSHA’s rationale for proposing each of 

the above factors) and an opportunity to comment on that rationale and other issues. 

 Moreover, ACC strongly opposes factors (2) and (4). ACC opposes factor (2) because it 

implies that an existing consensus standard should be applied in the first instance (taking away 

the employer’s discretion to determine whether to apply a consensus standard or create an 

internal standard). In addition, factor (2) would place an impossible burden on an employer to 

show that a particular consensus document no longer reflects a “consensus” on good engineering 

practices. Among other hurdles, “recognized and generally accepted good engineering 

practices” vary drastically from worksite to worksite, as explained above. Further, ACC opposes 

factor (4)—the purpose of applying “internal standards” is so that an employer is given the 

ability to adopt and tailor existing standards to the facts presented by an individual workplace. 

ACC believes that “appropriate” internal standards should be no less protective than a consensus 

standard, but it is unacceptable for OSHA to require an employer to show that the internal 

standard is more protective. Internal standards are an alternative means of compliance that 

provide (at least) an equivalent level of protection compared to consensus standards. Use of an 

internal standard does not signal that an “exception” to a consensus standard is required, but that 

the employer best situated to understand onsite safety has decided to take an alternative 

approach. In fact, having to make a “more protective” showing would act as a disincentive 

against undertaking a more exhaustive review of specific workplace safety issues, which occurs 

when an employer seeks to create its own internal standards. 
DB1/ 78324772.1 22 

 

 Along the same lines, any definition of RAGAGEP should recognize the importance of 

fundamental engineering skills and engineering analyses. Engineers must apply systemic 

thinking and engineering principles to the equipment, processes, and chemicals at issue to reach 

a performance threshold. In sum, the concept of RAGAGEP recognizes that there is almost 

always more than one way to successfully address safety and security issues, and that this 

necessarily involves analysis and evaluation far beyond the rote application of consensus 

standards to allow onsite professionals to effectively address individual situations and 

circumstances. As an example, while construction of unfired pressure vessels per ASME Code 

Section VIII is a very prescriptive methodology, the selection of construction materials, and the 

performance of such equipment under normal, transient (startup and shutdown), and upset 

conditions, cannot be accomplished through the application of any consensus standard. Such an 

analysis requires detailed, process-specific information (such as potential contaminants, 

temperature of utilities, local environmental conditions—salt air, extreme temperature, etc.). 

Application of first-principle science and engineering are vital to the success of such a design, 

regardless of the consensus standard to which the vessel is ultimately constructed. 

 Finally, ACC cautions OSHA against trying to fix something that it has not shown to be 

“broken” through an analysis of significant risk. ACC also fears that any overly prescriptive or 

narrow definition of RAGAGEP, and particularly its inclusion of “appropriate internal 

standards,” will be a disincentive to employers to carefully evaluate the individual risks 

presented in their workplace and addressing them through tailored engineering practices. 

E. ACC Comments Regarding Mechanical Integrity (Change Option 9) 

OSHA CHANGE OPTION 9 

9. Expanding the Scope of Paragraph (j) of the PSM Standard To Cover the Mechanical 

Integrity of Any Safety-Critical Equipment 

Paragraph (j) of § 1910.119 requires employers to implement an ongoing mechanical-integrity 

program with respect to their PSM-covered processes. For processing, storing, or handling 

highly hazardous chemicals, employers must use equipment designed, constructed, installed, 

and maintained to minimize the risk of an uncontrolled release. Elements of an effective 

mechanical-integrity program include: Identifying and categorizing equipment and 

instrumentation; inspecting and testing their frequency; maintaining procedures; training 

maintenance personnel; having criteria for acceptable test results; documenting test and 

inspection results; and documenting manufacturer recommendations for equipment and 

instrumentation. 

 

Paragraph (j)(1) states that the mechanical-integrity requirements of the PSM standard apply to: 

Pressure vessels and storage tanks; piping systems (including piping components such as 

valves); relief and vent systems and devices; emergency shutdown systems; controls (including 

monitoring devices and sensors, alarms, and interlocks); and pumps. In the preamble to the 

PSM final rule, OSHA explained that “if an employer deems additional equipment to be critical 

to a particular process, that employer should consider that equipment to be covered by this 

paragraph and treat it accordingly” (57 FR 6389, February 24, 1992). In light of the limited list 

of covered equipment in paragraph (j)(1), OSHA addresses hazards associated with other types 
DB1/ 78324772.1 23 

of safety-critical equipment through citations for violations of Section 5(a)(1) of the OSH Act. 

 

Revising paragraph (j) to explicitly apply the mechanical-integrity requirements of the PSM 

standard to all equipment the employer identifies as critical to process safety-critical equipment, 

in addition to the equipment currently listed in the standard, would provide industry with proper 

notice regarding coverage of such equipment. OSHA invites comment on whether the addition 

of this provision to paragraph (j) will increase worker safety and whether any further clarifying 

revisions would be recommended to ease implementation. 

The Current PSM Standard Already Requires Employers To Include All-Safety-Critical 

Equipment In Their Mechanical Integrity Programs 

 ACC needs OSHA to provide more information and identify the “safety-critical 

equipment” purportedly not covered by the existing standard—equipment that, according to 

OSHA, is addressed through use of the General Duty Clause, before it can offer comprehensive 

comments on this issue. In addition, OSHA has yet to publish any data supporting any purported 

deficiency in Paragraph (j). If OSHA has data regarding the cause of process safety incidents to 

justify an expansion of the list in Paragraph (j), ACC requests that such information be published 

before any rulemaking continues. 

 Based on the experiences of our members, ACC strongly believes that the six categories 

currently listed in Paragraph (j) of the standard sufficiently cover safety-critical equipment 

involved in the handling of highly hazardous chemicals. As OSHA recognizes in its RFI, the 

Preamble to the Final PSM Rule clearly explained that employers have a duty to include other 

safety-critical equipment in their mechanical integrity programs. See 57 Fed. Reg. 6389 (“[I]f an 

employer deems additional equipment to be critical to a particular process, that employer should 

consider that equipment to be covered by this paragraph and treat it accordingly.”). Thus, by 

extension as part of this duty, the employer has the responsibility to understand, identify, and 

define safety-critical equipment. 

 ACC endorsed a risk-based approach to mechanical integrity in its Responsible Care 

Process Safety Code. While developing the new Process Safety Code, ACC recognized that 

process safety hazards may vary by company, by process technology, and by the complexity of 

the facility. Even within a single company, risk differs drastically based on a variety of factors 

such as the equipment used. The existing regulation has adequate language in the process safety 

information, mechanical integrity, and process hazard analysis sections to include other processsafety-critical equipment if identified. 

 

 ACC believes that a risk-based approach, similar to what is required under ACC’s 

Process Safety Code, already exists in the current PSM and satisfactorily protects mechanical 

integrity safety. No further expansion is needed. Furthermore, any expanded list of covered 

equipment that is not risk-based could result in an undesired situation in which resources such 

as money, time, and expert attention are pulled from critical site-specific equipment to 

address less-critical equipment listed in Paragraph (j) for all sites regardless of actual risk. 

 Finally, ACC notes that OSHA’s RFI did not offer any specific examples or a definition 

of “critical.” Any definition should be based on what the employer deemed to be reasonably 
DB1/ 78324772.1 24 

foreseeable, and not the hindsight of compliance officers. 29 C.F.R. § 1910.119 covers process

safety management of highly hazardous chemicals. As such, all mechanical integrity 

requirements under this regulation must be restricted to process-safety-critical equipment. 

F. ACC Comments Regarding Management Of Change (Change Option 10) 

OSHA CHANGE OPTION 10 

10. Clarifying Paragraph (l) of the PSM Standard With an Explicit Requirement That 

Employers Manage Organizational Changes 

Paragraph (l) of § 1910.119 requires employers to establish and implement written procedures to 

manage change, including all modifications to equipment, technology, procedures, raw materials, 

and processing conditions other than replacements in kind. Temporary changes are subject to the 

management-of-change requirements of the standard. Employers must properly identify and 

review all PSM-covered changes before implementation. 

 

The existing standard does not explicitly state that employers must follow management-ofchange procedures for organizational changes,[FN10] such as changes in management structure, 

budget cuts, or personnel changes; however, as noted in a March 31, 2009, Memorandum for 

Regional Administrators from Richard Fairfax,[FN11] it is OSHA’s position that paragraph (l) 

covers organizational changes if the changes have the potential to affect process safety. Since the 

original promulgation of the PSM rule, it has become well established in the safety community 

that organizational changes can have a profound impact on worker safety and, therefore, 

employers should evaluate organizational change like any other change. Illustrating the 

significant hazards that organizational changes can produce, the CSB identified a lack of 

organizational management of change as a significant factor behind the 2005 BP Texas City 

Refinery accident that killed 15 workers and injured over 170 others (CSB Report No. 2005-04-

I-TX). OSHA invites comments on whether revising *73762 paragraph (l) to clarify that the 

PSM standard’s organizational management-of-change requirements will increase worker safety. 

Paragraph (L) Need Not Be Amended To “Explicitly” Require That Employers Manage 

Organizational Changes 

 ACC believes that reopening the PSM standard to include an explicit requirement that 

employers manage and address organizational changes is not warranted. As previously 

expressed in ACC’s written response to CSB’s Request for Comments regarding 

Recommendation No. 2005-04-I-TX-R9, current OSHA standards and other publications 

sufficiently address the PSM coverage of management of change. 

 To start, the issues raised in Change Option 10 have been fully and adequately addressed 

through OSHA’s interpretation memorandum referenced in the RFI (Subject: Management of 

Organizational Change (MOC), dated March 31, 2009). Therein, OSHA provided guidance and 

interpretation regarding when 29 C.F.R. § 1910.119(l) on MOC must be considered for 

organizational changes: 

The MOC provisions of the PSM standard apply only to changes, 

including organizational changes, that impact safety in PSM 
DB1/ 78324772.1 25 

covered processes. . . . 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. . . . [I]f organizational changes necessitate changes to 

process chemicals, technology, equipment, procedures, or 

facilities, an MOC procedure would be required to ensure that the 

resulting changes are managed and implemented in a manner that 

assures continued safe operations. (Emphasis added.) 

See id. (emphasis added). Through this interpretation, OSHA recognized that organizational 

changes connected to other existing PSM elements (including, but not limited to, operator 

training, operating procedures, mechanical integrity, and hazard evaluations) may require an 

MOC evaluation and communication of relevant changes to affected workers. Beyond this, as 

OSHA recognized in its interpretation memorandum, “management changes that do not impact 

PSM covered processes are not affected by the MOC provisions of the PSM standard.” 

 OSHA had good reason for clearly limiting PSM MOC provisions’ coverage to those 

changes that impact safety in PSM covered processes. Organizational change can present 

complex fact-intensive scenarios that cannot easily be addressed through an expanded or 

prescriptive regulatory requirement. Any explicit requirements beyond the current PSM MOC 

performance-based criteria may create conflicts with existing site-level Human Resources (HR) 

policies and labor management agreements, as well as business-level staffing decisions and 

organizational redesign. At many sites, companies may operate both covered and non-covered 

processes where organizational changes may impact one, both, or neither type of processes. 

 Similarly, “replacements in kind” may not be consistent with the organizational change 

requirements. For example, if a process safety technician retires and there are no gaps in process 

safety technician services/activities, the facility should not be required to complete a 

management-of-change form as long as the facility plans on hiring a new process safety 

technician and training that employee to the level of the retired employee; however, the 

elimination of the process safety technician position altogether may warrant inclusion. If the 

process safety technician retires and there is, for example, a gap until a replacement is hired and 

trained, the facility should conduct an MOC to ensure that the safety technician activities are 

being temporarily transferred to other qualified employees and completed. There should be no 

gaps in carrying out safety activities. Companies must ensure ongoing compliance with all 

existing regulatory obligations. Thus, consistent with the performance-based standard, facility 

owners should be provided with sufficient latitude to shape their MOC programs. 

 Personnel changes, including changes in staffing levels or staff experience, can similarly 

be a complex and a highly variable subject from site to site within a single company, much less 

across different companies and industry segments. Indeed, personnel changes are based on a 

multitude of factors, including, but not limited to, local organizational structures, leveraged 

offsite technical support from the parent company and/or a corporate function such as 

engineering, the use of a supplemental workforce such as contractor services, and service level 

agreements between companies with an industrial park layout. Staffing levels and expertise 

needs within the line organization can also fluctuate based on the life cycle of production 

operations at a given site—for example, when a new unit is constructed and brought on line or 
DB1/ 78324772.1 26 

when an obsolete unit has been permanently de-inventoried and idled. It is the responsibility of 

the employer to define specific personnel needs and their levels of experience and competency in 

order to meet all operating objectives and commitments, including regulatory compliance. The 

adoption of any qualitative or prescriptive requirements for staffing and experience as part of the 

MOC element would infringe upon the role and obligations of the operating entity in this arena. 

 ACC believes that MOC requirements for organizational changes must have limits. See

generally Preamble to the Final PSM Rule, 57 Fed. Reg. at 9393 (Feb. 24, 1992). For example, 

mergers and acquisitions (M&As), in which two separate operating entities are joined under one 

common set of internal policies and operating practices, typically are managed at an enterprise or 

business (corporate) level. During the M&A process, a transitional period typically is set to 

integrate the two organizations; however, both entities, as well as the newly formed joint 

company, must meet all applicable regulatory requirements for existing operations at all times. 

As a result, additional regulatory requirements in this area would not add to existing compliance 

requirements defined in the current OSHA PSM standard. If OSHA were to expand enforcement 

in arenas such as M&As, ACC would have concerns regarding OSHA injecting itself into private 

business decisions. 

 Similarly, “budget cutting,” the act of adjusting organizational operating plans and 

associated expenditures based on strategic financial (business) objectives, should not be 

considered a policy change. Instead, budget cuts are part of the overall business or financial 

strategic planning processes. Throughout time periods in which budget cuts are enacted, 

companies have the continued responsibility to ensure ongoing compliance with all existing 

regulatory obligations. 

 Recognizing that organizational change can cause permanent or transitory modifications 

in workload, roles and responsibilities, and the manner in which work is done, ACC in 2003 

developed a voluntary guide, “Management of Safety and Health During Organizational Change: 

A Resource and Tool Kit for Organizations Facing Change.” This resource and tool kit is 

intended for use by the safety and health professional or manager in a facility facing 

organizational change. It describes a process that may be used to plan for and manage safety and 

health during organizational change, and provides useful worksheets and checklists. The process 

in this guide represents only one option for managing safety and health during organizational 

change. It can be adapted as appropriate for the facility and integrated into any overall plant 

effort to plan and implement the change. 

 In summary, ACC believes the subject of organizational change is complex and should 

not be made more difficult by an unnecessary rule revision, . As OSHA stated in its 2009 

memorandum, OSHA currently has adequate tools and authority to evaluate organizational 

change elements, as they relate to process safety systems under the existing MOC element of the 

PSM standard. Further expansion to MOC language involving organizational change would 

either be redundant or overly and unnecessarily prescriptive and thereby ineffective. Either way, 

expansion would not improve process safety. If OSHA has additional data based on PSMrelated inspection results or incidents suggesting otherwise, OSHA should share that data with 

the public before it proposes any regulatory change. Finally, resources such as CCPS’s 

“Guidelines for Managing Process Safety Risks During Organizational Change” and ACC’s 

“Management of Safety and Health During Organizational Change: A Resource and Tool Kit for 
DB1/ 78324772.1 27 

Organizations Facing Change” are examples of available tools that can assist companies in 

evaluating and addressing organizational change elements consistent with OSHA’s approach. 

G. ACC Comments Regarding Emergency Planning (Change Option 11) 

OSHA CHANGE OPTION 11 

11. Revising Paragraph (n) of the PSM Standard To Require Coordination of Emergency 

Planning With Local Emergency-Response Authorities 

Paragraph (n) of § 1910.119 requires employers to establish and implement an emergency-action 

plan in accordance with § 1910.38, OSHA’s Emergency Action Plans (EAP) standard, and to 

meet applicable requirements in paragraphs (a), (p), and (q) of § 1910.120, the Agency’s 

Hazardous Waste Operations and Emergency Response (HAZWOPER) standard. While some 

OSHA standards, such as § 1910.146, Permit-Required Confined Spaces, require employers to 

coordinate emergency planning with local emergency-response authorities, the existing PSM 

standard does not contain such a requirement. Existing §§ 1910.38 and 1910.120 do not require 

coordination of emergency planning with outside parties if the employer chooses to evacuate 

employees from the danger area when an emergency occurs that does not permit employees to 

assist in handling the emergency. 

 

When emergency responders and other workers do not have adequate information or employer 

coordination about hazardous chemicals in a facility, they are at elevated risk of death and 

serious injury. On April 17, 2013, an ammonium nitrate explosion at the West Fertilizer 

Company storage and distribution facility in West, Texas, killed at least 15 people—the majority 

of whom were firefighters responding to a fire at the facility—and injured over 160 

others.[FN12] OSHA believes that revising paragraph (n) of the PSM standard to require 

facilities to coordinate emergency planning with local emergency-response authorities could 

help prevent or mitigate similar accidents by allowing first responders to develop the appropriate 

strategies in advance of their arrival and seeks comment on the appropriate mechanism and 

corresponding language to incorporate such coordination requirements into paragraph (n). 

PSM Should Not Be Amended To Include Additional Coordination With Local Emergency 

Response Authorities 

 ACC believes that the requirement for coordination with local emergency responders is 

already adequately addressed in multiple interconnected standards and regulations: OSHA (29 

C.F.R. § 1910.38, stating that an emergency action plan must include at a minimum 

“[p]rocedures for reporting a fire or other emergency,” 29 C.F.R. § 1910.120, and 29 C.F.R. § 

1910.1200); EPA (40 C.F.R. § 68.95(c)); DHS (6 C.F.R. Part 27); and DOT (29 C.F.R. Part 172 

Subpart H) regulations. Adding a requirement to the PSM standard will simply add one more 

layer of confusion to the already difficult-to-navigate suite of federal requirements that Executive 

Order 13650 was intended to address and reduce. Moreover, if the communication and 

coordination between a facility and local emergency responders needs to be strengthened, the 

appropriate place to do so is in the Emergency Planning and Community Right to Know 

(EPCRA), not through the PSM standard. Congress gave the federal EPA, not OSHA, 

jurisdiction over this issue. 
DB1/ 78324772.1 28 

 Currently, many ACC member companies already provide information regarding 

hazardous chemicals to various agencies and organizations as required by other regulatory 

requirements such as EPA’s Risk Management Plan, EPCRA, and Department of Homeland 

Security’s Chemical Facility Anti-Terrorism System (CFATS). ACC supports OSHA working 

with other government agencies and state/local organizations to access this information. OSHA 

should not revise the PSM standard to duplicate reporting requirements that already exist under 

other federal agencies. 

H. ACC Comments Regarding Third-Party Compliance Audits (Change Option 

12) 

OSHA CHANGE OPTION 12 

12. Revising Paragraph (o) of the PSM Standard To Require Third-Party Compliance 

Audits 

Paragraph (o)(1) of § 1910.119 requires employers to audit the PSM program in their facilities 

for compliance every three years. Paragraph (o)(2) further requires that the audits “be conducted 

by at least one person knowledgeable in the process.” However, § 1910.119 does not require 

employers to use a third party in conducting the compliance audits. According to CCPS, “Third 

party auditors (typically, consulting companies who can provide experienced auditors) 

potentially provide the highest degree of objectivity.” [FN13 Guidelines for Risk Based Process 

Safety, CCPS. http://www.aiche.org/ccps.] 

 

It is notable that BSEE’s Safety and Environmental Management Systems (SEMS) standard, 30 

CFR 250, Subpart S, requires audits conducted by an independent third party, subject to approval 

by BSEE, or by designated and qualified personnel if the employer implements procedures to 

avoid conflicts of interest. In addition, BSEE’s SEMS II revisions to the standard require that, by 

June 4, 2015, the team lead for compliance audits must be independent and represent an 

accredited audit service provider. In the preamble to its SEMS II final rule, BSEE discussed its 

third-party-auditing requirements as follows: 

 

Consistent audits performed by well trained and experienced auditors are critical to ensuring that 

SEMS programs are successfully implemented and maintained on the OCS. As a result, we are 

adopting industry best practices related to SEMS audits and auditor qualifications. Industry is 

already voluntarily adopting these practices in many deepwater operations. We believe that the 

application of these requirements to all OCS operations will result in more robust and consistent 

SEMS audits. (78 FR 20430; 04/05/2013.) 

 

In its investigation report on the 2005 BP Texas City Refinery explosion, the CSB identified a 

lack of rigorous compliance audits as a contributing factor behind the accident. As the CSB 

noted in its report, the resulting settlement agreement [FN14] between OSHA and BP required 

BP to retain a third-party compliance auditor with PSM expertise, subject to approval by OSHA, 

to assess the company’s PSM program. OSHA is aware that third-party compliance auditors exist 

and are already utilized by some of the PSM regulated community. In the questions in this RFI, 

OSHA seeks comment on whether revising paragraph (o) of the PSM standard to require 

employers to use a qualified third party for compliance audits would increase worker protection 

through a more rigorous and objective PSM auditing process. 
DB1/ 78324772.1 29 

 

OSHA is also seeking comment on increasing the required frequency of compliance audits. In 

addition, the Agency is seeking comment on requiring specific timeframes for responding to 

deficiencies found in the compliance audit process. 

The Mandated Use Of Third-Party PSM Auditors And The Increased Frequency Of 

Audits Are Both Overly Burdensome And Unjustified

 ACC opposes an industry-wide mandated use of third-party auditors for PSM audits. 

OSHA has not demonstrated that current compliance auditing practices are deficient or 

negatively impact worker health or safety. Moreover, mandating third-party auditors would 

impose significant costs to companies, often while compromising the quality of the audits given 

the complexity of certain worksite-specific processes. OSHA can certainly require its own 

inspectors to be certified auditors, or even augment its own inspection efforts with third-party 

auditors. However, this burden should not be shifted to the private sector; the use of third-party 

auditors should remain a choice for employers, who have the greatest understanding of the 

unique potential risks, hazards, and challenges facing their worksites. ACC members, for 

example, vary greatly in their decisions to use either third-party auditors, second-party auditors 

(company auditors not directly responsible for the area being audited), or self-auditors for PSM 

compliance. ACC members consider their particular operations, equipment, onsite materials and 

chemicals, expertise, and organizational structure to determine which method is best suited to 

increase safety.3 In short, OSHA has not substantiated any alleged underlying problem with the 

current system, nor has OSHA established the efficacy of third-party audits over second-party or 

self-audits across the industry, to warrant an unnecessary and highly burdensome change. 

 In fact, second-party and self-audits have many safety benefits that are lost with thirdparty audits. Company-led audits can be far more effective in actually addressing issues 

uncovered during an audit, due to the company auditor’s intimate knowledge of the organization 

and how it functions. Using common audit questions and a standardized scoring system across 

the company also allows for the ready comparison of results across sites, including consistent 

report-writing and recommendation-tracking across the company. In ACC members’ 

experiences with PSM audits, using internal resources broadens PSM management system 

education while leveraging the auditor’s detailed knowledge of the organization and how it 

functions. 

 Many ACC members have found that company auditors have been more effective in 

identifying, understanding, and then taking appropriate actions to ensure that management 

resolves issues uncovered during an audit, as compared to temporary, unaffiliated contractors. 

Audit programs are just one element of a company’s safety management system, and company 

auditors are more likely to take ownership of the audit report process, revisit action items with 

the site, or advocate internally for additional resources on a continuous basis. In addition, many 

companies also have or implement a continuous improvement department/process that considers 

audits, metrics, and incident investigation findings in a holistic manner—these elements would 

                                                            

3

 As part of the Responsible Care® program, all ACC members undergo voluntary third-party Responsible Care 

audits; these audits are separate from and different than OSHA PSM audits, which require review of all process 

safety management elements. 
DB1/ 78324772.1 30 

be absent with third-party audits. It is worth noting that some ACC members use third-party 

auditors merely to confirm the findings of second-party auditors or self-auditors. Ultimately, it 

should be the responsibility and choice of each owner/operator to decide how best to complete 

the compliance certifications through use of self, second, or third-party review, given the unique 

characteristics of the company. 

 OSHA’s National Emphasis Program (NEP) inspections have not demonstrated that 

company-led audits are cause for concern due to any alleged incapability of the audit team or 

deficiency in the audit protocols used. In March 2011, the DOL provided an update at the 7th 

Global Congress on Process Safety sponsored by AIChE, explaining that only 4% of the citations 

for the Refinery NEP were for PSM Compliance Audits. To support the need for a change in 

regulation in its RFI, OSHA cited to the CSB Baker Panel’s review of a single company and its 

finding that the company’s flawed internal audits contributed to an incident. See 78 Fed. Reg. 

73762. OSHA should focus its efforts on the outlier employers that do not comply with current 

PSM auditing requirements and improve targeted enforcement practices rather than promulgating 

an unnecessary and prescriptive regulation applicable to everyone. As previously stated, 

changing the regulations alone will not improve safety for companies that already fulfill the 

requirements of the current standards and consistently do so. To improve the quality and 

effectiveness of audits, ACC recommends that OSHA develop practical non-mandatory materials 

(such as guidance and training) for these outlier employers. At present, ACC has observed a 

dearth of information regarding auditing on OSHA’s website. 

 Moreover, the CSB BP Texas City Report (Mar. 20, 2007) does not mention any issues 

with the audit team; rather, CSB identified significant problems with management 

implementation of the audit team recommendations. In fact, Section 8.3 of the Report stated that 

a “review of compliance audits at the Texas City refinery revealed that many of the process 

safety system deficiencies causal to the ISOM incident had been previously identified by BP 

auditors.” (Emphasis added.) These flaws would not be corrected or eliminated by use of a 

third-party audit team. Likely for this reason, the CSB Report did not contain a formal 

recommendation that OSHA revise its PSM auditing requirement. The data supporting the 

methodology on how audits are performed by companies from OSHA, CSB, or the EO13650 

Working Group is not compelling, and certainly does not warrant the tremendous cost of 

requiring the use of third-party auditors. 

 Unquestionably, the mandated use of third-party auditors would be extremely costly to 

industry. Contractors have hourly rates of up to $500 per auditor for conducting PSM audits, 

not including payment for travel, expenses, and preparation time, as well as additional costs for 

certain expertise. ACC has investigated the cost of third-party PSM audits for its members. See

Exhibit 1, ACC, Third-Party PSM Audit Analysis (Mar. 2013). Indeed, ACC roughly estimates 

that the cost of a single third-party PSM compliance audit for a medium-sized company could be 

as high as $33,600 to $112,000 per audit. Id. By contrast, the primary cost for self and secondparty audits is the opportunity cost of a company’s PSM and other technical staff, which 

averages $12,300 per self or second party audit for medium-sized companies. Id. Thus, thirdparty audits cost anywhere from $21,300 to $99,700 more per audit than second-party audits for 

medium-sized companies. This range is based solely on hourly rates, and, in reality, is most 

likely a low estimate—the comparison assumes that the number of hours spent on a single audit 

is identical for each type of audit (self, second, and third-party). However, as will be explained 
DB1/ 78324772.1 31 

later in this section, ACC members report that third-party audits are lengthier than self and 

second-party audits. Thus, ACC believes that the true cost of third-party audits is significantly 

higher than $21,300 to $99,700. Even more, as explained in the attached exhibit, “[m]any 

companies have several facilities that would need to be audited each year. Thus, this cost would 

be multiplied several times over. Given that the majority of PSM-regulated facilities are at small 

and medium-sized companies, this presents a significant cost burden.” Id. Again, there is no 

proof that this cost yields an increase in corresponding safety benefits. In fact, as explained 

above, second-party and self-audits have many safety benefits that are lost with third-party 

audits. 

 

 Also, third-party auditors do not significantly lessen the burden of onsite engineers, who 

frequently must accompany third-party auditors and engage in the extremely time-consuming 

activity of explaining basic onsite procedures already known to internal staff. As explained 

above, this leads to intra-company productivity and opportunity losses, in addition to the cost of 

hiring third-party auditors. Overall, third-party audits are lengthier and involve larger audit 

teams, without necessarily yielding corresponding safety benefits. Lengthier audits present 

logistical challenges and loss of efficiency at a plant, occupying those involved in plant safety for 

extensive periods of time and consuming a much greater amount of plant resources. All told, the 

annual costs would be disproportionate to the benefit. 

Furthermore, ACC has serious security concerns with third-party audits that are not 

present with self or second-party audits. Third-party auditors would be granted, by regulatory 

mandate, unprecedented access to intimate details of a company’s operations. The required use 

of third-party auditors exposes a company’s intellectual property to financial and even security 

risks. Allowing external personnel to review technical details, company confidential business 

information, and trade secrets may impact a company’s otherwise protected intellectual property 

and discourage innovation. More broadly, ACC remains skeptical regarding the qualifications of 

third-party auditors. If third-party audits are eventually required, ACC would want additional 

information regarding any mandatory threshold qualifications and background checks. Right 

now, based on ACC members’ experiences, there is a dearth of quality third-party contractors 

available for PSM audits. 

 ACC opposes increasing the frequency of audits, or any such measure for similar reasons, 

including lack of compelling reasons to do so. As described in greater detail directly above, 

PSM audits are extremely intensive by nature. Due to the high volume of PSM program 

elements that are reviewed, each audit represents a burden on the employer. Against this, OSHA 

has offered no persuasive supporting data to justify any such change. Moreover, revising Section 

1910.119(o) to require specific mitigation timeframes will not increase worker safety. The 

current performance-based requirements in Section 1910.119(o) provide PSM-covered facilities 

the flexibility to address the deficiency in an appropriate timeframe to prevent worker injuries. 

Appropriate mitigation timeframes are dependent on the specific industry and facility, as well as 

the degree of hazard that is posed by the deficiency. No two audits and no two recommendations 

are identical, as some can be implemented prior to completion of the audit while others may take 

years, requiring significant capital investment for safe and effective implementation. In fact, 

requiring specific timeframes may have adverse safety impacts, such as encouraging “quick 

fixes” and under-prioritizing more urgent projects to meet deadlines. Instead, it should be 

acceptable for companies to have a written action plan for items requiring mitigation measures. 
DB1/ 78324772.1 32 

 In conclusion, ACC firmly believes that OSHA must provide owners/operators the 

discretion to choose the audit method most suited to their unique operations. OSHA has not 

established that the required use of a third-party for PSM audits would increase safety industrywide compared to the company audits now being conducted. OSHA should not overlook the 

plethora of benefits that stem from company audits, which are missing entirely from third-party 

audits. If OSHA has data that shows that some outlier companies are not conducting robust 

audits, ACC suggests that OSHA provide additional guidance, information, tools, and/or training 

materials on how to conduct quality audits. 

I. ACC Comment On Revising 29 C.F.R. §§ 1910.106 And 107 To Incorporate 

NFPA 30 (Change Option 14) 

OSHA CHANGE OPTION 14 

14. Updating §§ 1910.106 and 1910.107 Based on the Latest Applicable Consensus 

Standards 

OSHA is considering updating its Flammable Liquids standard and Spray Finishing standard. 

OSHA first published these standards in 1974 and based the requirements on NFPA consensus 

standards from the 1960s. The format and requirements of the standards are significantly out of 

date, and need updating based on the latest applicable consensus standards.[FN17] OSHA seeks 

recommendations on updates that should be considered and comments on how such updates will 

lead to increased worker protection. 

OSHA Must Demonstrate Significant Risk Before Revising 29 C.F.R. §§ 1910.106 And 107 

To Incorporate The Current Version Of NFPA 30 

 ACC understands that the current version of 29 C.F.R. § 1910.106 is based on the 1971 

version of NFPA 30. ACC has undertaken a detailed side-by-side evaluation of 29 C.F.R. § 

1910.106 and the current version of NFPA 30 (2012). There are, as noted in the RFI, significant 

formatting changes. However, we believe that many of the substantive technical requirements in 

the current version of NFPA 30 are identical, or nearly identical, to the information contained in 

29 C.F.R. § 1910.106. 

 ACC does not believe that updating for formatting reasons alone warrants a reopening of 

the 29 C.F.R. § 1910.106 standard. Instead, OSHA should perform its own comprehensive 

comparison, identify changes that OSHA considers substantive, and propose, if appropriate, 

changes to 29 C.F.R. § 1910.106 based on its analysis, noting the differences from current 

requirements and the reasons for a proposed change. 

J. ACC Comments Regarding PSM Exemption For Retail Facilities (Change 

Option 16) 

OSHA CHANGE OPTION 16 

16. Changing Enforcement Policy of the PSM Exemption for Retail Facilities 

The PSM standard contains an exemption from coverage for retail facilities at 29 CFR 
DB1/ 78324772.1 33 

1910.119(a)(2)(i). Although the term “retail facility” is not defined, the Preamble to the Final 

PSM standard noted that chemicals in retail facilities are generally in small packages, containers, 

and allotments, and gives the example of gasoline stations as a type of facility that would 

typically qualify for the exemption. 57 FR 6356, 6369 (February 24, 1992). 

 

Other Federal Government agencies have explicit definitions of retail facilities. In particular, the 

U.S. Department of Commerce, which is responsible for the development of the North American 

Industry Classification System (NAICS) that organizes businesses into specific industrial sectors 

for economic and statistical purposes, characterizes retail trade as follows: 

 

The Retail Trade sector comprises establishments engaged in retailing merchandise, generally 

without transformation, and rendering services incidental to the sale of merchandise. The 

retailing process is the final step in the distribution of merchandise; retailers are, therefore, 

organized to sell merchandise in small quantities to the general public. 

 

North American Industry Classification System Manual (“NAICS Manual”), Sector 44-45—

Retail Trade. 

OSHA has stated that this NAICS Manual definition applies in interpreting the retail exemption. 

In a November 8, 1995, memo from Enforcement Programs director Richard Fairfax to Acting 

Region 10 Administrator Richard S. Terrell, OSHA distinguished retail end users from 

wholesale end users: 

 

[T]he “retail facilities” exception is intended to apply to an establishment in the retail trade as 

delineated in the Standard Industrial Classification (SIC) Manual. With exceptions, retail trade 

establishments sell merchandise to the general public for personal or household consumption. On 

the other hand, wholesale trade establishments may sell similar merchandise for exclusive use by 

industry . . . Income derived from selling [merchandise] to industry may not be counted as 

“income obtained from direct sales to end users” for the purpose of qualifying for the “retail 

facilities” exception under paragraph 1910.119(a)(2)(i). 

 

Notwithstanding this general statement, OSHA has also issued letters saying that a facility that is 

primarily engaged in selling anhydrous ammonia product to farmers (a wholesale operation 

under the NAICS definition) could qualify for the § 1910.119(a)(2)(i) retail-facilities exemption. 

For example, the January 26, 2001 letter from Richard Fairfax to J.D. Varn III of Varnco, Inc. 

which states that a facility selling 75% of its anhydrous ammonia to farmers qualifies for the 

retail exemption because the farmers were the “end users” of the product. 

 

Applying the retail-facility exemption in this way is inconsistent with the normal meaning of 

“retail” and the preamble’s explanation of the purpose of the exemption. As stated in the 

preamble, OSHA chose to exclude retail facilities from PSM coverage because the limited 

container, package, or allotment sizes of the chemicals typically found at these facilities do not 

present the same safety hazards as those encountered at establishments working with large, bulk 

quantities of materials. Facilities selling large or bulk quantities of materials would typically fall 

into Sector 42—Wholesale Trade of the NAICS system, which includes facilities that sell or 

arrange the purchase or sale of raw and intermediate materials and supplies used in production. 

As a result of increased workplace hazards associated with large, bulk quantities of highly 
DB1/ 78324772.1 34 

hazardous chemicals, OSHA believes that only retail-trade facilities listed in NAICS sectors 44 

and 45 that sell highly hazardous chemicals in small containers, packages, or allotments to the 

general public qualify for the retail-facilities exemption in 29 CFR 1910.119(a)(2)(i). 

 

*73764 In light of OSHA’s inconsistent statements on the application of the retail exemption, the 

Agency is inviting comment on what the exemption should cover and whether OSHA’s current 

enforcement policy adequately addresses workplace hazards associated with these facilities. 

OSHA Needs To Analyze The Data And Assess The Risk, If Any, Posed By Exempted 

Retail Facilities Before It Considers Revising The PSM Standard

 ACC understands OSHA’s concerns regarding its inconsistent position on what facilities 

fall within the retail-facilities exemption. As with manufacturing and storage facilities, if OSHA 

believes that retail facilities present a significant risk of harm—and OSHA establishes significant 

risk through its data review and analyses—the Agency should propose specific amendments to 

the PSM standard to cover the “retail facilities” associated with such risk. In the meantime, 

OSHA enforcement should be based on existing law. Any expansion of coverage for retail 

facilities should proceed, if justified, through rulemaking and not through enforcement efforts. 

K. ACC Comments Regarding Enforcement Policy For Appendix A (Change 

Option 17) 

OSHA CHANGE OPTION 17 

17. Changing Enforcement Policy for Highly Hazardous Chemicals Listed in Appendix A 

of the PSM Standard Without Specific Concentrations 

Appendix A of the PSM standard lists highly hazardous chemicals and threshold quantities that 

must be met to establish PSM coverage. Although Appendix A provides specific concentrations 

for 11 of its listed chemicals, the standard is silent on concentrations for the remaining 126 listed 

chemicals. For example, Appendix A lists hydrogen peroxide at concentrations of 52% by 

weight or greater, but the appendix does not provide a specific concentration for hydroxylamine. 

OSHA has issued interpretation letters taking a variety of positions regarding coverage of 

chemicals that have no listed concentration. Under one such approach, OSHA considers PSM 

coverage to apply if threshold quantities of such chemicals are present at commercial grade. As 

noted in a 1994 Letter of Interpretation from Compliance Programs Deputy Direction H. Berrien 

Zettler to Mr. Luc Hamelin of IVACO, Inc., OSHA defined commercial grade to mean “a typical 

maximum concentration of the chemical that is commercially available and shipped.” The letter 

added that, to determine commercial grade concentrations, an employer may refer to any 

published catalogue of chemicals for commercial sales. 

 

In 1999, an explosion at Concept Sciences, Inc. in Allentown, Pennsylvania, killed five people as 

the company was attempting to produce concentrated hydroxylamine. A U.S. District Court 

dismissed a subsequent criminal indictment related to this incident based on inconsistencies in 

OSHA’s statements regarding coverage of hydroxylamine. The Court pointed out that the PSM 

standard is ambiguous with respect to concentrations of Appendix A chemicals. It concluded that 

in light of a series of OSHA letters that were themselves inconsistent, no reasonable person in 

the defendant’s position could determine how a chemical is covered by the standard. U.S. v. 
DB1/ 78324772.1 35 

Ward, 21 BNA OSHC 1882, 1884 (2001). In light of this, OSHA believes it is important to issue 

a clear and authoritative statement about PSM coverage of chemicals for which Appendix A does 

not include a specific concentration. 

 

With respect to the commercial grade approach, OSHA also realizes that it is difficult to 

determine the maximum commercial grade of many of the highly hazardous chemicals listed in 

Appendix A. In addition, the maximum commercial grade of a chemical may change over time 

due to technological innovation or changes in industry. Furthermore, even where the 

concentration of a PSM-listed highly hazardous chemical falls below the correctly determined 

maximum commercial grade, the chemical may still present a hazard because substances in a 

mixture retain their original properties. For example, a solution of any concentration of 

hydroxylamine can form pure hydroxylamine crystals, which can rapidly decompose and cause 

fires or explosions. 

 

An interpretative approach that is consistent with the regulatory language and that addresses this 

concern is the approach currently used by EPA under the Risk Management Program (RMP). 

Similar to OSHA’s list of highly hazardous chemicals in Appendix A of the PSM standard, the 

EPA RMP provides a list of toxic substances in 40 CFR 68, Appendix A—Table of Toxic 

Endpoints. However, in contrast to OSHA’s “commercial grade” policy for PSM-listed 

chemicals, EPA considers a mixture containing an RMP-listed substance to be covered if the 

concentration is greater than one percent and the calculated weight of the substance in the 

mixture is greater than the threshold quantity.[FN20] With a few exceptions, this rule does not 

apply in cases where the operator can demonstrate that the partial pressure of the substance in the 

mixture is less than 10 mmHg. 

 

OSHA invites comment on whether it should adopt the EPA’s policy for RMP-listed substances 

as a simpler and more practical approach to addressing hazards associated with Appendix A 

chemicals that do not have listed concentrations. If OSHA adopts this policy, the Agency would 

consider a PSM-listed chemical in a mixture to be covered if the concentration of the chemical 

were greater than one percent and the calculated weight of the chemical in the mixture were 

greater than the threshold quantity. OSHA believes this represents a more practical, consistent, 

and straightforward approach to coverage of Appendix A chemicals under the PSM standard. 

OSHA Must Undertake Scientific Analyses And Establish Significant Risk Before Any 

Enforcement Changes Are Made For Appendix A Chemicals 

 PSM Appendix A lists highly hazardous chemicals and threshold quantities that must be 

met to establish coverage. Although Appendix A provides specific concentrations for 11 of its 

listed chemicals, the standard does not address concentrations for the remaining 126 listed 

chemicals. ACC recommends that OSHA use a formal scientific-based approach to evaluate 

chemicals so that OSHA can demonstrate that any proposed changes to the PSM standard would 

actually enhance worker safety. 

 ACC agrees with OSHA that the language in the standard addressing mixtures containing 

listed chemicals is unclear and requires clarification. However, ACC does not agree that OSHA 

should adopt the approach used by EPA in the RMP. It would not be feasible to use the EPA 1% 

concentration criteria in OSHA’s PSM standard because there are multiple additional 
DB1/ 78324772.1 36 

requirements to establish a full EPA RMP Prevention Program (Program 3) in the EPA RMP 

rule. These additional criteria, such as off-site injury and distances to toxic or flammable 

endpoints for worst-case release assessments, are related to off-site impacts and are outside of 

OSHA’s jurisdictional scope. In addition, these supplemental criteria substantiate that the 

mixture poses an off-site hazard. Although EPA policy requires evaluation of all mixtures 

greater than 1%, only those mixtures that have concentrations large enough to be a potential offsite hazard require establishment of a full EPA RMP Prevention Program (Program 3). 

 Instead, ACC encourages OSHA to clarify the requirements for chemicals listed in 

Appendix A without specific concentrations. In particular, mixtures containing more than the 

threshold quantity as set forth in Appendix A, but are at such a low concentration so as not to 

constitute a hazard, should be identified as outside the scope of PSM’s coverage. 

III. CONCLUSION 

As reiterated throughout these comments, ACC believes that OSHA has not established 

the existence of substantial risk of harm in this RFI to justify reopening its PSM regulation (and 

related regulations, such as 1910.106). In fact, based on the experiences of our members, ACC 

believes that compliance with the standards already in place manages process safety risk. The 

current PSM regulation is not the real issue—instead, PSM-related safety accidents, including 

those cited throughout the RFI, consistently involve outlier companies that are not in compliance 

with some or all aspects of the current PSM regulation. ACC believes that the most valuable 

step OSHA could take to improve worker safety is through increased PSM awareness, training, 

and enforcement of existing regulations. Proposed changes to OSHA’s PSM regulation will not 

improve safety for companies that have already created a safe environment through fulfillment of 

the current standards and consistently do so over time. It also will not increase the safety of 

workers at companies that aren’t in compliance with existing regulations. 

Certain proposed changes represent a drastic departure from the current PSM regulatory 

framework, without any showing of a corresponding benefit to workplace or employee safety. In 

particular, ACC opposes prescriptive recommendations that will chip away at the discretion 

given to employers through the performance-oriented PSM standard. Indeed, as explained in the 

Preamble to the Final Rule, the current standard received much support precisely because of its 

performance-oriented nature, which is built upon industry’s knowledge and capability to address 

all manner of site-specific safety concerns. See 57 Fed. Reg. at 6360 (Feb. 24, 1992). For all of 

these reasons, ACC disagrees with the RFI’s proposed changes that mandate a one-size-fits-all 

approach, thereby limiting employers’ ability to react to the real facts on the ground. For 

example, employers must be able to shape RAGAGEP applicable to a particular site based on 

internal standards, consensus codes, and/or engineering determinations and analyses. Given the 

diverse nature of chemical industry operations, ACC knows that a flexible and performanceoriented approach to RAGAGEP will best protect workers from risk of harm. Similarly, 

considering the numerous benefits of company-led audits over third-party audits, employers must 

be afforded the discretion to choose between self, second-party, and third-party audits. 

Ultimately, each employer is in the best position to make these and other similar safety 

decisions, by evaluating its own equipment, onsite materials and chemicals, expertise, 

organizational structure, and operations. 
DB1/ 78324772.1 37 

ACC supports OSHA’s overall goal of improving process safety and appreciates the vital 

role of OSHA’s PSM standard in effectuating this goal. ACC therefore urges OSHA to carefully 

consider its approach, recognizing that there are many variables and complexities inherent in 

regulating PSM. 

Nonetheless, after considering ACC’s comments and those of others, if OSHA decides to 

proceed with a formal rulemaking, ACC believes it should do so by first issuing an ANPRM and 

presenting appropriate data and analyses to support any proposed revisions to the PSM standard. 

OSHA should also convene a SBREFA panel, and grant stakeholders sufficient time and 

opportunity to participate in the OMB-required peer review process. 

We hope that OSHA will find our contribution helpful. Should you have questions about 

our input, please contact me by phone at (202) 249-6426 or by e-mail at 

Rachel_meidl@americanchemistry.com. Thank you for the opportunity to submit comments on 

this matter. 

Respectfully submitted, 

Rachel A. Meidl 

Director, Regulatory & Technical Affairs 

American Chemistry Council 

700 Second Street, NE 

Washington, DC 20002 

Rachel_Meidl@americanchemistry.com 

Of Counsel: 

Jonathan L. Snare 

Morgan, Lewis & Bockius LLP 

1111 Pennsylvania Avenue, NW 

Washington, DC 20004 

jsnare@morganlewis.com 
EXHIBIT 1

THIRD-PARTY PSM AUDIT ANALYSIS

ACC COMMENT ON OSHA DOCKET NO. OSHA-2013-0020
 

BACKGROUND

In OSHA’s Request For Information (RFI) on potential revisions to its Process Safety Management Stan

ard (PSM) (12/9/13), the agency requests comments on revising paragraph (o) of the PSM 

require third-party compliance audits. Currently, many facilities conduct PSM compliance audits using 

expertise from within their own companies (self

sultants (third-party audits). 

CHALLENGES OF MANDATING THIRD-PARTY AUDITS

Because significant process safety and engineering expertise resides within companies regulated by 

PSM, self or second-party audits have been an effective tool for monitoring compliance with the PSM 

rule since 1992. Currently, companies typically only engage a consultant to conduct third

when the expertise to conduct a comprehensive and thorough audit does not exist in

wise unavailable. Beyond the higher cost of hiring a consultancy, there are

tions.

 Consultants may not be as familiar with a facility or process or may be inexperienced. Some pr

cess safety consultants are not trained to do “compliance” audits. Audits by inexperienced or 

under-experienced consultants are unlikely to improve safety.

 Audits can be technically challenging, including PHAs, evaluation of mechanical integrity, etc. It 

may be challenging to match the specific skills required with an audit 

 It is not clear that there is a sufficient number of 

audits of roughly 10,000 PSM-regulated facilities

 If there are issues, companies need an audit team that is able and willing to dig deep and go the 

extra mile to identify potential safety issues. 

 Exclusive use of third-party auditors would limit learning opportunities for self or second

auditors that can take back lessons learned to their own facilities.

PROCESS SAFETY AUDITS

A typical process safety audit team consists of 3

engineering specialties in addition to regulatory requirements. These professionals work at other man

facturing facilities throughout the company and can also include corporate EH&S personnel. The comp

sition of the audit team may depend on the type of process and materials at the facility, in addition to 

other variables. A typical audit includes the following elements.

 Preparation in advance of the audit (1

 Audit (1-2 weeks depending on facility 

 

1

Second-party auditors are company auditors not directly responsible for the area being audited. 

2

There are approximately 30,000 PSM-regulated facilities. Each of the 30,000 facilities is audited once every three 

years. Thus, approximately 10,000 PSM-regulated facilities

March 2014

© American Chemistry Council, Inc.

In OSHA’s Request For Information (RFI) on potential revisions to its Process Safety Management Stan

ard (PSM) (12/9/13), the agency requests comments on revising paragraph (o) of the PSM standard to 

party compliance audits. Currently, many facilities conduct PSM compliance audits using 

expertise from within their own companies (self-audits or second-party1audits) or by bringing in co

PARTY AUDITS

Because significant process safety and engineering expertise resides within companies regulated by 

party audits have been an effective tool for monitoring compliance with the PSM 

ntly, companies typically only engage a consultant to conduct third-party audits 

when the expertise to conduct a comprehensive and thorough audit does not exist in-house or is othe

wise unavailable. Beyond the higher cost of hiring a consultancy, there are several important consider

Consultants may not be as familiar with a facility or process or may be inexperienced. Some pr

cess safety consultants are not trained to do “compliance” audits. Audits by inexperienced or 

are unlikely to improve safety.

Audits can be technically challenging, including PHAs, evaluation of mechanical integrity, etc. It 

may be challenging to match the specific skills required with an audit 

It is not clear that there is a sufficient number of qualified process safety consultants to conduct 

regulated facilities2each year.

If there are issues, companies need an audit team that is able and willing to dig deep and go the 

extra mile to identify potential safety issues. 

party auditors would limit learning opportunities for self or second

auditors that can take back lessons learned to their own facilities.

A typical process safety audit team consists of 3-6 technical professionals with backgrounds in various 

engineering specialties in addition to regulatory requirements. These professionals work at other man

facturing facilities throughout the company and can also include corporate EH&S personnel. The comp

audit team may depend on the type of process and materials at the facility, in addition to 

other variables. A typical audit includes the following elements.

Preparation in advance of the audit (1-2 days)

2 weeks depending on facility size/complexity)

company auditors not directly responsible for the area being audited. 

regulated facilities. Each of the 30,000 facilities is audited once every three 

regulated facilities are audited each year.

Considerations for OSHA PSM RFI 

Third-Party Audit Requirement

American Chemistry Council 

 

American Chemistry Council, Inc.

In OSHA’s Request For Information (RFI) on potential revisions to its Process Safety Management Standstandard to 

party compliance audits. Currently, many facilities conduct PSM compliance audits using 

audits) or by bringing in conBecause significant process safety and engineering expertise resides within companies regulated by 

party audits have been an effective tool for monitoring compliance with the PSM 

party audits 

house or is otherseveral important consideraConsultants may not be as familiar with a facility or process or may be inexperienced. Some process safety consultants are not trained to do “compliance” audits. Audits by inexperienced or 

Audits can be technically challenging, including PHAs, evaluation of mechanical integrity, etc. It 

qualified process safety consultants to conduct 

If there are issues, companies need an audit team that is able and willing to dig deep and go the 

party auditors would limit learning opportunities for self or second-party 

ofessionals with backgrounds in various 

engineering specialties in addition to regulatory requirements. These professionals work at other manufacturing facilities throughout the company and can also include corporate EH&S personnel. The compoaudit team may depend on the type of process and materials at the facility, in addition to 

regulated facilities. Each of the 30,000 facilities is audited once every three 

Considerations for OSHA PSM RFI 

Party Audit Requirement

American Chemistry Council 

March 2014
 

 

March 2014

© American Chemistry Council, Inc.

 Post-audit review and report (1-2 days)

 Travel time and expense (varies)

The length of time to conduct the actual audit depends on the size and complexity of the facility being 

audited. Based on discussions with ACC members, below are some rough assumptions on the length of 

an audit and audit team sizes for small, medium, and large industrial chemical manufacturers:

Hours per 

auditor

Number of 

auditors

Total audit 

hours

Small (fewer than 50 employees) 40 3 120

Medium (50 - 300 employees) 40 5 200

Large (more than 300 employees) 80 6 480

Consultants vary considerably in both skill and cost. Hourly fees for consultants range from $150-$500 

per hour. These hourly rates are nearly 3-9 times higher than the median hourly rate for chemical industry engineers that would likely participate in third-party audits. Thus, the cost of a single third-party 

compliance audit for a medium-sized company could be as high as $33,600 to $112,000. Even offsetting 

this with the opportunity cost of company personnel involved in self or second-party audits, the cost per 

audit remains high at $21,300 to $99,700. This range is based solely on hourly rates. Due to limitations 

regarding the timing of this submission, this number assumes that the number of hours spent on a single 

audit is identical for each type of audit (self, second, and third-party). However, ACC members report 

that third-party audits typically are lengthier than self or second-party audits. Thus, the true cost of 

third-party audits is greater than $21,300 to $99,700 per audit. In addition, the range of $21,300 to 

$99,700 merely represents the cost per audit. Many companies have several facilities that would need 

to be audited each year. Thus, this cost would be multiplied several times over. Given that the majority 

of PSM-regulated facilities are at small and medium-sized companies, this presents a significant cost 

burden.

 

Third-Party (Low) Third-Party (High)

Number of Auditors 4 4

Hours to Conduct Audit Activities 224 224

 Pre-audit preparation 8 8

 On-site audit 40 40

 Post-audit report writing 8 8

Average hourly wage $150 $500

Travel time and costs n/a n/a

Total Cost of Third-Party PSM Audit

 

$33,600 

 

$112,000 

CONCLUSION

While perhaps well-intentioned, the required use of third-party audits is unlikely to improve safety for 

reasons cited above. In addition, the requirement will add a significant cost burden to companies that 

have qualified and appropriate technical expertise on staff already, particularly to small and mid-size 

facilities.
APPENDIX 2

MULTI-ASSOCIATION LETTER ON IST
January 23, 2014

President of the United States

The White House

1600 Pennsylvania Ave., NW

Washington, D.C. 20500

To the President of the United States and the Interagency Working Group on Improving Chemical Facility 

Safety and Security:

We appreciate the serious and important task the Interagency Working Group (IWG) has been given in 

implementing Executive Order (EO) 13650 – Improving Chemical Facility Safety and Security. The safety 

and security of our facilities, our employees, and our communities is paramount, which is why many of 

our organizations have actively participated in the listening sessions for the EO and have offered many 

comments and recommendations.

While it is encouraging to see several options in the IWG’s recent report that could help create a more 

unified and effective approach to addressing safety, we are concerned that the report's focus on “safer 

alternatives” could derail the overall effort.

We believe opportunities exist to further improve safety and security and will continue to offer our 

expertise to assist the Working Group, but we strongly oppose any proposal that will create a federal 

requirement to assess or implement so-called Inherently Safer Technologies (IST).

IST decisions are extremely complex and cannot be and should not be determined by any governmental 

agency. The potential for creating unintended consequences is high, and the Environmental Protection 

Agency (EPA) has long held that IST requirements would not produce additional benefits beyond those 

that already exist in the current Risk Management Plan (RMP) program structure.1

Inherently safer approaches to manufacturing processes have been and will continue to be considered 

by facilities as a matter of course, and the facility operators—not the government—are in the best 

position to understand the full ramifications of implementing IST. No one regulatory program or 

government agency can properly address the broad range of factors such as risk shifting, technical 

efficacy, cost, and product quality that a facility must consider and address when choosing appropriate 

safety and security measures, much less all of the different site-specific scenarios for the approximately

12,000 facilities that could be impacted by an IST requirement under the RMP. In addition, decisions by 

government officials to require alternatives could impose new risks, such as more hazardous materials in 

transportation, if facilities must reduce inventories of certain substances.

 

1

Federal Register Volume 61, Number 120, FR Doc o: 96-14957 (Thursday, June 20, 1996): Pages 31668-31730, 

http://www.gpo.gov/fdsys/pkg/FR-1996-06-20/html/96-14597.htm
Operators need to take an all-inclusive approach when looking at the safety profile of a facility, and they 

must factor in the requirements of the numerous overlapping regulatory programs that help shape this 

approach. EPA, the Occupational Safety and Health Administration, the U.S. Department of 

Transportation, the U.S. Department of Homeland Security (DHS), and the Bureau of Alcohol, Tobacco, 

Firearms and Explosives all have existing regulatory programs that require operators to examine their 

operations and make them as safe and secure as possible. To attempt to overlay an IST requirement 

would negatively impact all of these various safety and security programs and create an impossible 

bureaucratic burden.

The current performance-based regulations in place today and in the marketplace itself already provide 

strong incentives for companies to consider and adopt “safer alternatives” such as IST. These programs 

allow facility operators to use all of the risk management tools and options at their disposal, while 

considering the complexities of their unique operating environment. Adding a new regulatory 

requirement focused on IST is not only unwarranted but potentially detrimental. At a minimum it would

divert scarce federal agency resources away from the primary objective of the EO—namely, to identify 

and engage “outlier” facilities. At worst, IST would overwhelm federal agencies with thousands of 

complex evaluations, without requisite staff expertise to properly review the submissions. One EPA 

official has already said such an approach would be “monumentally difficult” for the Agency to 

accomplish.2

The IWG can help create a safer and more secure regulatory environment by addressing shortfalls 

through options that will improve coordination between government agencies and enhance outreach, 

while recognizing opportunities to better implement existing regulatory programs. Pursuing options

related specifically to IST would ultimately jeopardize the success of the EO by both distracting attention

from much needed improvements and threatening to create unnecessary and duplicative regulatory 

requirements that would not contribute to enhancing safety and security.

We remain steadfast in our commitment to safety and helping the IWG pursue opportunities that will 

improve the effectiveness of current regulatory programs.

Sincerely,

Agricultural Retailers Association

American Chemistry Council

American Forest and Paper Association

American Fuel & Petrochemical Manufacturers

American Petroleum Institute

The Chlorine Institute

 

2

Larry Stanton, director of EPA's Office of Emergency Management, as quoted by Dave Reynolds, “EPA Looks To 

New Jersey Program As Possible Model for IST Requirements,” Inside EPA (December 2, 2013), 

http://insideepa.com/Risk-Policy-Report/Risk-Policy-Report-12/03/2013/epa-looks-to-new-jersey-program-aspossible-model-for-ist-requirements/menu-id-1098.html
The Fertilizer Institute

Institute of Makers of Explosives

International Liquid Terminals Association

National Association of Chemical Distributors

National Association of Manufacturers

Society of Chemical Manufacturers and Affiliates

U.S. Chamber of Commerce

cc: The Honorable Eric H. Holder, Jr., Attorney General

The Honorable Thomas J. Vilsack, Secretary of Agriculture

The Honorable Thomas E. Perez, Secretary of Labor

The Honorable Anthony Foxx, Secretary of Transportation

The Honorable Jeh Johnson, Secretary of Homeland Security

The Honorable Gina McCarthy, Administrator, Environmental Protection Agency
APPENDIX 3

CCPS EXECUTIVE DIRECTOR SCOTT BERGER

COMMENTS TO U.S. SENATE ENVIRONMENT

AND PUBLIC WORKS COMMITTEE HEARING
Comments to US Senate Environment and Public Works Committee Hearing, Thursday March 6, 2014

By Scott Berger, CCPS Executive Director

On behalf of the Center for Chemical Process Safety of the American Institute of Chemical Engineers

AIChE

120 Wall St

New York, NY 10005

646-495-1370

scotb@aiche.org

Good morning. I am Scott Berger, Executive Director of the Center for Chemical Process Safety (CCPS), a 

Technological Community of the American Institute of Chemical Engineers (AIChE). CCPS has published 

over 100 books and other reference documents which guide the implementation of process safety 

technology and management systems. However, my comments today are specifically directed towards 

the topic of Inherently Safer Technologies (IST). 

By way of background, the topic of Inherently Safer Design (ISD), which we believe is a more technically 

accurate term, has been discussed in CCPS and AIChE conferences and other forums since the 1970s. 

CCPS has published two editions of a book dedicated to ISD (1996, 2009) and included ISD in two books 

on Engineering Design (1993, 2012). In 2010, our unique expertise in ISD led the Department of 

Homeland Security (DHS) to request CCPS to lead a team of IST/ISD technical experts to formally define 

IST and ISD. Since the language of the EO refers to IST, we will use this term for consistency.

IST is, and long has been, one important tool in the broader toolbox used by chemical engineers to 

design safe processes. It is so ingrained in the design process that chemical engineers often do not even 

realize they are doing it. This was certainly my personal experience. I never heard the term IST (or ISD)

before the early 1990s, yet once I heard it, I recognized that I had learned these principles as an 

undergraduate in the 1970s and had been using them since my first industrial assignments.

The formal definition of IST that CCPS developed for DHS is key to understanding the role it should play 

in future efforts to improve process safety. A copy of the final DHS report may be found at the CCPS 

website at http://www.aiche.org/ccps/publications/books/inherently-safer-chemical-processes-lifecycle-approach-2nd-edition. I would like to highlight and comment on the key elements of the 

definition:

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

eliminates or reduces hazards to avoid or reduce the consequences of incidents.”

Specifically, IST is one way to mitigate hazards that can cause process safety incidents, i.e. fires, 

explosions, and toxic releases. 

• “IST is a philosophy applied to the design and operation life cycle, including manufacture, 

transport, storage, use, and disposal.”

IST is not a specific technology or group of technologies that can be substituted. Each case is 

unique, and adopting the IST philosophy typically leads to different results from case to case.

• “There is no clear boundary between IST and other strategies.”
As we can readily see from the NJ TCPA program, IST can go well beyond the simple

replacement of one substance with a safer one or one reaction with another. Elements of IST 

can be applied at the process control level, the procedural level, and even the emergency 

response level. The bottom line is that IST is an integral part of developing a safe design and not

separate from the desired goal of safe design

• “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.”

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

inherently less safe with respect to others. Also, even if the technology is safer, it may not be 

safe enough to meet society’s expectations.

• “Because an option may be inherently safer with regard to some hazards and inherently less 

safe with regard to others, we must make decisions about the optimum strategy for managing 

risks from all hazards.”

The choice of technology is rarely cut and dry. It depends on the relative importance of the 

range of hazards, where in the lifecycle different hazards occur, and the potential for shifting 

risk from one potentially affected population to another. Technical and economic feasibility also 

play a significant role

Based on this definition of IST, it is clear that several existing regulatory provisions already address IST:

• 29CFR§1910.119 (a): The setting of thresholds for coverage under this regulation is an incentive 

to reduce hazardous inventory, a key principle of IST

• 29CFR§1910.119 (e): The activity of process hazard analysis prompts the broad-based hazard 

analysis team to determine safeguards and process modifications, including IST, to address the 

hazards identified, implement them, and review the analysis every 5 years

• 29CFR§1910.119 (m): When incidents occur, the company must identify the causes and 

implement safeguards and process modifications, including IST, to address eliminate these 

causes

• 40CFR§68.10: The setting of thresholds for coverage under this regulation is an incentive to 

reduce hazardous materials inventory, a key principle of IST

• 40CFR§68.12 and related: The performance of worst case analysis drives engineers to seek IST 

alternatives to reduce potential consequences

• 40CFR§68.50 and related: The activity of process hazard analysis prompts the broad-based 

hazard analysis team to determine safeguards and process modifications, including IST, to 

address the hazards identified, implement them, and review the analysis every 5 years

• 40CFR§68.60 and related: When incidents occur, the company must identify the causes and 

implement safeguards and process modifications, including IST, to address these causes

• 40CFR§68.155: Every 5 years, the facility is required to submit plans to improve safety

Considering that the application of inherently safer design methodology is so tightly integrated into the 

overall work of process development, any regulatory action related to IST which goes beyond these 

existing provisions would likely require that regulatory authorities conduct a detailed expert review of 

the complete set of design documents, essentially validating the design decisions made. Without 

significantly greater regulatory resources, such a detailed review is clearly impractical. 
As I hope I’ve made clear, AIChE and CCPS support the use of IST as part of the overall engineering 

process. We strongly support increasing the education of chemical engineers and other scientists and 

engineers involved in process design and technology selection in the philosophy and art of IST. 

To this end, AIChE was pleased to receive a recommendation from the US Chemical Safety and Hazard 

Investigation Board asking us to work to modify the undergraduate chemical engineering curriculum to 

improve the knowledge of process safety among BS graduates. In 2012, the CSB voted to declare this 

recommendation “closed, exceeding recommended action.”

AIChE and CCPS are also pleased to support the continuing process safety education of experienced 

chemical engineers through a variety of courses, including one on IST.
APPENDIX 4

CCPS EXECUTIVE DIRECTOR SCOTT BERGER

COMMENTS TO THE EPA LISTENING SESSION
Comments to the EPA Listening Session, February 27, 2014, Newark, NJ

By Scott Berger, CCPS Executive Director

On behalf of the Center for Chemical Process Safety of the American Institute of Chemical Engineers

AIChE

120 Wall St

New York, NY 10005

646-495-1370

scotb@aiche.org

Good afternoon. I am Scott Berger, Executive Director of the Center for Chemical Process Safety (CCPS), 

a Technological Community of the American Institute of Chemical Engineers (AIChE). My comments 

today are specifically directed towards the topic of Inherently Safer Technologies (IST) which was 

solicited in the Request for Information. 

By way of background, the topic of Inherently Safer Design (ISD), which we believe is a more technically 

accurate term, has been discussed in CCPS and AIChE conferences and other forums since the 1970’s. 

CCPS has published two editions of a book dedicated to ISD (1996, 2009) and included ISD in two books 

on Engineering Design (1993, 2012). In 2010, our unique expertise in ISD led the Department of 

Homeland Security (DHS) to request CCPS to lead a team of IST/ISD technical experts to formally define 

IST and ISD. Since the language of the EO refers to IST, we will use this term for consistency.

IST is, and long has been, one important tool in the broader toolbox used by chemical engineers to 

design safe processes. It is so ingrained in the design process that chemical engineers often do not even 

realize they are doing it. This was certainly my personal experience. I never heard the term IST (or ISD) 

before the early 1990’s, yet once I heard it, I recognized that I had learned these principles as an 

undergraduate in the 1970’s and had been using them since my first industrial assignments.

The formal definition of IST that CCPS developed for DHS is key to understanding the role it should play 

in future efforts to improve process safety. A copy of the final DHS report is attached for reference. I 

would like to highlight and comment on the key elements of the definition:

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

eliminates or reduces hazards to avoid or reduce the consequences of incidents.”

Specifically, IST is one way to mitigate hazards that can cause process safety incidents, i.e. fires, 

explosions, and toxic releases. 

 “IST is a philosophy applied to the design and operation life cycle, including manufacture, 

transport, storage, use, and disposal.”

IST is not a specific technology or group of technologies that can be substituted. Each case is 

unique, and adopting the IST philosophy typically leads to different results from case to case.

 “There is no clear boundary between IST and other strategies.”

As we can readily see from the NJ TCPA program, IST can go well beyond the simple 

replacement of one substance with a safer one or one reaction with another. Elements of IST 
can be applied at the process control level, the procedural level, and even the emergency 

response level. The bottom line is that IST is an integral part of developing a safe design and not 

separate from the desired goal of safe design

 “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.”

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

inherently less safe with respect to others. Also, even if the technology is safer, it may not be 

safe enough to meet society’s expectations.

 “Because an option may be inherently safer with regard to some hazards and inherently less 

safe with regard to others, we must make decisions about the optimum strategy for managing 

risks from all hazards.”

The choice of technology is rarely cut and dry. It depends on the relative importance of the 

range of hazards, where in the lifecycle different hazards occur, and the potential for shifting 

risk from one potentially affected population to another. Technical and economic feasibility also 

play a significant role

Based on this definition of IST, it is clear that several existing regulatory provisions already address IST:

 29CFR§1910.119 (a): The setting of thresholds for coverage under this regulation is an incentive 

to reduce hazardous inventory, a key principle of IST

 29CFR§1910.119 (e): The activity of process hazard analysis prompts the broad-based hazard 

analysis team to determine safeguards and process modifications, including IST, to eliminate the 

hazards identified, implement them, and review the analysis every 5 years

 29CFR§1910.119 (m): When incidents occur, the company must identify the causes and 

implement safeguards and process modifications, including IST, to eliminate these causes

 40CFR§68.10: The setting of thresholds for coverage under this regulation is an incentive to 

reduce hazardous inventory, a key principle of IST

 40CFR§68.12 and related: The performance of worst case analysis drives engineers to seek IST 

alternatives to reduce potential consequences

 40CFR§68.50 and related: The activity of process hazard analysis prompts the broad-based 

hazard analysis team to determine safeguards and process modifications, including IST, to 

eliminate the hazards identified, implement them, and review the analysis every 5 years

 40CFR§68.60 and related: When incidents occur, the company must identify the causes and 

implement safeguards and process modifications, including IST, to eliminate these causes

 40CFR§68.155: Every 5 years, the facility is required to submit plans to improve safety

Considering that the application of inherently safer design methodology is so tightly integrated into the 

overall work of process development, any regulatory action related to IST which goes beyond these 

existing provisions would likely require that regulatory authorities conduct a detailed expert review of 

the complete set of design documents, essentially validating the design decisions made. Without 

significantly greater regulatory resources, such a detailed review is clearly impractical. 
As I hope I’ve made clear, AIChE and CCPS support the use of IST as part of the overall engineering 

process. We strongly support increasing the education of chemical engineers and other scientists and 

engineers involved in process design and technology selection in the philosophy and art of IST. 

To this end, AIChE was pleased to receive a recommendation from the US Chemical Safety and Hazard 

Investigation Board asking us to work to modify the undergraduate chemical engineering curriculum to 

improve the knowledge of process safety among BS graduates. In 2012, the CSB voted to declare this 

recommendation “closed, exceeding recommended action.”

AIChE and CCPS are also pleased to support the continuing process safety education of experienced 

chemical engineers through a variety of courses, including one on IST.
APPENDIX 5

ACC IST MATERIALS
1

Attachment 1: Factors that Affect IST Decision Making & Examples of Limitations of 

Mandating Inherently Safer Approaches

A. Factors that Affect IST Decision Making

1. Initial design vs. retrofitting. Implementing IST will often require other operational 

or design changes. For example, to maintain operational productivity and 

reliability when utilizing the “Minimization/Intensification” IST approach often 

requires a technology change such as advanced automation and controls, shifting a 

batch process to continuous process, or other technologies. Implementing 

“Substitution” or “Moderation/Attenuation“ often requires entirely different 

processes or equipment. The most effective time to influence the inherent safety of a 

chemical process is during the initial design, not after the facility is built and in 

operation.1 In the case of material substitution, for example, the design of the 

process equipment is often closely tied to the properties of the substance chosen. 

Retrofitting into an existing process may not work for this reason, just as a car will 

not run properly if kerosene is substituted for gasoline.

2. Regulatory obstacles. In some cases, laws or rules do not permit the use of 

inherently safer methods. An example is the Federal mandate to phase out 

chlorofluorocarbons (CFCs) as refrigerants. See example in section B below.

3. Risk/risk tradeoffs. Inherent safety is not always as simple or obvious as it might 

sound. As the CFC example suggests, many inherently safer approaches involve 

trading one risk (stratospheric ozone destruction) against the potential of another 

(fire hazards to employees and others). See example in section B below.

Industry has long championed the use of IST. Furthermore, industry considers IST along with 

all other alternatives for reducing potential security vulnerabilities. However, in some cases, 

what is inherently safer from one perspective may actually be more dangerous from another. In 

public debate, advocates of inherent safety frequently speak of reducing onsite inventories, or 

reducing or eliminating storage, of hazardous materials. Any shift in the way one stores 

hazardous materials has the potential, however, to create different, potentially greater risks 

elsewhere.

Say, for example, that a regulatory agency determined that facilities should not store more than 

one week’s requirements for a substance in inventory onsite. At the outset, this could just result 

in the same inventories being carried at the supplier’s facility, rather than the user’s, or at some 

less-secure intermediate storage facility. In any event, lower inventories on site typically mean 

more frequent deliveries of smaller quantities of material. Thus, for example, a process that 

receives barge containers approximately once per month, may have to shift to rail cars or trucks. 

 

1

See Bollinger at 56.
2

Similarly, a process that currently receives railcars might instead have to receive one-ton 

cylinders, delivered by trucks. Statistically, transportation incidents are lowest for water, 

intermediate for rail, and highest for truck; thus, a mandate to reduce inventories may require 

using modes of transportation with a higher frequency of accidents.

Also, changing from barges to rail cars, or from rail cars to trucks, would require the facility to 

connect and disconnect shipping containers far more frequently, increasing the potential of 

operator exposure.2

The challenge, in any case, is to adopt the concept of total risk, where one seeks to minimize 

risks overall from transportation, storage and use. A focus on inventories examines the risk of 

storage only, neglecting the risks involved in transportation and use. When the offsetting of 

risks are different – e.g., ozone protection vs. exposure risks – they are even more difficult to 

balance. In many cases, there is simply no single right answer.

1. Balancing known risks against unknown future risks. Oftentimes, the new risks of an 

inherently safer approach are not initially evident. Consider the examples in Section B 

below.

2. Inherently safer does not translate to safe. As counterintuitive as it may sound, an 

inherently safer approach is not necessarily safer than a less inherently safe approach. 

See example in Section B below. This example highlights several issues. First, a less 

inherently safe system can attain a high degree of safety if sufficient resources and effort 

are devoted to that task. Second, an inherently safer system can still be unsafe if 

sufficient resources and effort are not devoted to it, as may happen if people become 

complacent. 

3. Inherent safety does not come off-the-shelf. Most processes that use hazardous 

materials do so because we simply have not yet discovered the next generation of 

chemistry to make the relevant product cost-effective using safer approaches. This is 

because the feature of the material that makes it essential in the marketplace also makes 

it hazardous (e.g., chlorine). Chemistry businesses are continually looking for methods 

to make products that provide the benefits people want and need using processes that 

are inherently safer; however, this is a product-by-product, plant-by-plant undertaking.

 

2

Two final comments on the subject of inventory reduction: First, much of the productivity growth in the 

United States recently has been attributable to inventory reduction. Inventory ties up money, requires 

capital, etc., which businesses don't want. The notion that inventories can easily be reduced significantly 

across the board more than they have been would seem to be slightly unrealistic. Second, inventories 

may be required to meet short-term or seasonal needs, in cases where the product cannot be produced as 

fast as it is needed (e.g., ammonia used for fertilizer in the spring). For many producers and consumers, 

it becomes increasingly challenging to match sales and production levels as inventory levels are reduced.
3

4. Inherent safety does not lend itself to government mandates. The foregoing 

features of inherently safer approaches explain why placing the decision of technology 

selection into the hands of a regulator is a flawed idea. Example after example 

demonstrates that even the most well intended government requirements can have 

serious adverse effects, as illustrated in the examples that follow in section B.

B. Examples of IST Approaches with Adverse Consequences

Inherent Trade-Offs

Suppose under mandatory IST, a facility is ordered to reduce the volume of chemicals it stores 

on site, or replace a particular chemical with a less hazardous alternative. Has safety been 

enhanced? Because of the inherent trade-offs, the answer is, “it depends.” 

 Is it “safer” to reduce the volume stored if this requires more frequent shipments 

through the community around the plant?

 Is it “safer” to substitute a new chemical if its use requires higher pressures or 

temperatures and increases the danger of an explosion? 

 Who will make these judgments? Politicians? Federal policymakers? Local officials? 

Plant Experts? 

Examples of IST Strategies

1. Substitution

 While Twitchell splitting would be a substitute for the dangers regarding the high 

pressure splitting (no use of high pressure steam and no high temperatures), it has many 

disadvantages, such as the necessity to use sulfuric acid, low energy efficiency, and very 

low product quality. 

 An example carried out at one ACC company was replacement of a common 

chlorsulforic-acid sulfonation process by a continuous SO3-sulfonation process. This 

eliminated chlorsulforic acid, (which can be problematic, creating HCl gas upon contact 

with water, for example). The new process (burn sulfur to SO2 in a converter to make 

SO3 out of the SO2, then react SO3 with the fatty alcohols [mostly] in a column, and 

neutralize the product) is relatively capital intensive, but efficient. It has the additional 

advantage that no chloro-compounds are present in the final product. While, this new 

process is inherently safer, it had adverse economic ramifications. There were many 

layoffs and the closure of a plant in the US, because the new process required fewer 

personnel (due to concentration on fewer, larger plants). The company also decided to 

later shift production off-shore to avoid high costs of more conversions (as well as 

pollution control).
4

 In 2004, when Washington, D.C. switched to chlorination in lieu of chlorine, the new 

process caused lead in older pipes to leach into water. This resulted in a public health 

crisis, and required the replacement of pipes throughout the city as well as enhanced 

testing. DC’s process still requires chlorine to “purge” the water lines each year so that 

they provide clean, safe water for its residents.

 ReVAP technology is used for reduction of risk in hydrofluoric acid alkylation processes 

at refineries. The technology is hailed as an IST for the reduction of HF acid volatility, 

but it comes with significant tradeoffs. It costs a significant amount of money and 

includes major modification and new equipment to be installed. By its design intent, any 

leaks from the process will now be a liquid that makes it easy to collect and treat, but it 

can also result in increased operator exposure to leaks. The additional chemical added 

to the process also has a negative impact of potentially increased corrosion rates due to 

the possible increased moisture content in the acid. When HF acid mixes with water at 

certain concentrations, it becomes corrosive. Some believe the ultimate alterative to HF 

acid alkylation is sulfuric acid alkylation, but there is a clear risk tradeoff. Sulfuric acid is 

more corrosive and results in higher incidents of operator exposure than in HF plants. 

Moreover, there is an increased need for disposal of spent sulfuric acid and more 

shipments of virgin acid, increasing the amount of deliveries per day which raises the 

potential for transportation incidents as well as worker health and safety exposure 

incidents.

2. Minimization

 Application of minimization as an IST strategy can oftentimes lead to risk-shifting. For 

example, minimizing the inventory of a hazardous chemical (such as chlorine) by 

switching from one ton to 160 pound cylinders means that more 

connections/disconnections are required for a given production rate. Thus, the lower 

inventory may mean a shorter plume should the entire quantity of the cylinder be 

accidentally released, but the smaller cylinders put the operator at risk 12 times more 

often because of the increased likelihood of exposure when hooking and unhooking a 

cylinder. Additionally, use of smaller containers (or smaller volumes of any chemical) 

necessitate more frequent transportation and delivery, which also increases the 

likelihood of an incident, as well as increasing transportation costs and the opportunity 

for theft and diversion. Which is the inherently safer option? It could be either one, 

depending upon perspective and other considerations (e.g., location of the operation 

relative to a sensitive population).

 Risk shifting can occur in the conversion of one large process to several small processes. 

This conversion requires capital investment, reduces yields (as a rule of thumb, smaller 

processes have lower yields) and therefore may increase the amount of waste/hazardous 

waste produced. For example, one company considered the suggestion made by local 
5

authorities to reduce the storage of hazardous products on site by transporting them 

‘just in time’ by truck from storage in trailers (because the regulations that apply for 

tanks do not apply for trailers). The company had to decide if it preferred storage of 

hazardous products on site with minimized transportation, or minimized storage on site 

with maximized transportation. Neither option is without inherent risks to site 

employees and the surrounding communities.

 While sodium hypochlorite is less hazardous than elemental chlorine, it poses a safety 

risk for accidental chemical mixing, which can result in the release of elemental chlorine. 

In addition, sodium hypochlorite requires the shipment and handling of 7-10 times more 

product by volume than elemental chlorine, impacting worker safety, transportation 

risks, and environmental considerations in the local community. Each facility – working 

with its local communities and other stakeholders – needs to determine which measures 

will most effectively and efficiently address safety and security while continuing to 

provide safe drinking water. Decisions depend on local circumstances and should 

continue to be made at the local level.

3. Other

 Regulatory Obstacles

While the CFC phase-out was broadly supported, some of the replacement substances that 

are available are actually more hazardous (i.e., have higher toxicity or flammability) than 

CFCs. This is inherently less safe for people working in the vicinity.

Risk Trade Offs

Is it inherently safer to use a solvent that is highly flammable or one that is a possible 

carcinogen? In another example, a 1990 Federal Clean Air Act requirement for oxygenates 

in fuels solved helped mitigate one pollution challenge even as it created others because the 

tradeoffs weren’t adequately considered in advance.

 Balancing Known Risks Against Future Risks

-Polychlorinated biphenyls (PCBs) originally were championed as an inherently safer means 

of insulating electrical equipment. PCBs gained widespread use because of their remarkable 

insulating capacity and their flame-retardant nature, reducing the risk of fires in such places 

as office buildings, hospitals, factories, and schools. The benefits were well recognized 

throughout society, but unfortunately, in the late 1960s, PCBs were detected in the 

environment. Public opinion shifted dramatically and by 1977, all sales of PCBs were 

discontinued because of environmental persistence and concerns about potential toxicity.
6

- Underground storage tanks (USTs) became the universal mode of storing flammable 

materials in high-traffic areas because they were regarded as an inherently safer means of 

storage. Decades passed before people realized the extent to which USTs could cause 

groundwater contamination. 

- Airbags in cars have proven to be lifesavers and of great benefit to society, yet it took many 

years to recognize that the one-size-fits-all approach to air bags could also have deadly 

effects. While extremely beneficial to adults when used in conjunction with seatbelts, airbag 

proved deadly to small children and changes had to be adopted to mitigate these risks.

 Inherent Safety Does Not Translate to Safe

- Most experts would agree that automobiles are inherently safer than airplanes – they 

travel on the ground, move at 1/10 the speed, operate where the ambient temperature 

and pressure are conducive to life, carry only a few people and less fuel, and in most 

cases of system failure, can be stopped safely. And yet statistics demonstrate that air 

travel is clearly safer than automobile travel.
7

Attachment 2. Example of IST scenario involving proprietary information.

This example illustrates issues that may arise as a result of focusing on facility risk versus total 

risk, i.e., the overall risk from manufacturing, transporting, storing, and using chemicals. In 

some cases it is not the best approach to focus solely on the risk at a facility as the determining 

factor in an IST review.

In this example, Company B initiates an IST review of their site operation and makes 

recommends regarding the best strategy for reducing site risk in order to comply with an 

internal company request. Although in this case the mandate is internal and the 

recommendation was not ultimately implemented, the analysis and potential result is similar to 

what could occur if IST is federally mandated.

The Players:

Company A – A multinational chemical company with greater than 5000 employees and many 

manufacturing sites, one of which is located in a sparsely populated area of a southwestern 

state. Company A is certified under the Responsible Care® Management System.

Company B – A multinational petrochemical company with greater than 10,000 employees and 

many manufacturing sites. Company B also has a facility in a sparsely populated area located 

less than 50 miles from Company A’s facility. A small town (<15,000 population) is located near 

this facility. Company B practices Responsible Care® and is actively pursuing certification to 

the Responsible Care® Management System.

Company C – A small single-owner chemical processing firm consisting of approximately 30 

employees located at a facility on the outskirts of a very large Midwestern city.

The Scenario:

Company A produces a Poison Inhalation Hazard (PIH) chemical at its facility and ships the 

material by truck approximately 50 miles to Company B. Company B stores the PIH in a 

specially designed 10,000 gallon tank prior to use. Shipments are regulated such that larger 

inventories of the PIH are not required to maintain production of Company B’s ultimate end 

product. Company B’s production process is a multi-stage process. The PIH material is 

consumed in the first step of the process to produce a relatively non-hazardous intermediate. 

Company B has no other significant usage of highly hazardous toxic materials on-site. 

Company B has a mature Process Safety Management program in place at the facility to manage 

the PIH.

Company B conducts a high level risk assessment at their facility that recommends performing 

an inherently safer technology review for evaluating options for reducing on-site PIH storage.

Results of Company B’s IST Review:
8

Company B approached the problem by researching each of the design methods listed below 

that could potentially be applied to the process. Each method was assessed for technical, 

operational, and financial feasibility.

Minimization/Intensification – Storage of the PIH had previously been optimized based on JustIn-Time supply principles by Company B to limit the quantity stored on-site. Shipments are 

limited to truck quantities and the maximum on-site storage is limited to 10,000 gallons. There 

is no in-process storage as the PIH is consumed in the first step of the process. Reduction of onsite storage could potentially lead to unplanned shutdowns due to loss of raw material, which 

would create production and safety problems for the facility. The possibility of producing the 

PIH on-site was also investigated, but the scale of equipment needed to produce the PIH would 

have increased on-site storage. The IST review determined that there was no technically 

feasible option for further reducing the on-site storage of the PIH material.

Substitution – Several options for replacing the PIH with a less hazardous material were 

investigated. However, all of these options required processing a liquid or solid material. After 

careful research and laboratory analysis, it was determined that existing process equipment 

could not handle liquids or solids. In addition, none of the options investigated could meet the 

cost and quality requirements necessary to sustain the business.

Moderation/Attenuation – The reaction involving the PIH is run at low temperature and pressure. 

There is no room for moderation of these process conditions.

Simplification – Simplification of the process was investigated and found to be feasible in the 

form of eliminating the first step of the multi-stage process in favor of purchasing the 

intermediate directly. From a cost perspective, this option required additional storage for the 

intermediate material and a slight increase in the cost to acquire the intermediate. However, 

this was not considered financially infeasible. The IST review team recommended the 

simplification option as the best alternative to reduce risk at the facility.

Total Impact

The simplification recommendation required Company B to review options to obtain the 

intermediate material rather than manufacture the intermediate from the PIH and other raw 

materials. Unfortunately, the intermediate material is a proprietary substance and not available 

on the open market for purchase. Therefore, Company B explored the option of contracting 

with a separate company to toll the intermediate using Company B’s proprietary process to 

convert the PIH into the intermediate. Company C was chosen as the best option for tolling the 

intermediate based on availability of equipment, location, cost, and other factors.

This option requires shipment of the PIH for several hundred miles to Company C’s facility. 

Due to logistical considerations, Company C must receive the PIH material in railcar quantities 

(approximately 4 times the capacity of trucks) and stage multiple railcars for each production 
9

run. The railcars must pass near several heavily populated areas en route to Company C’s site, 

which is also in a heavily populated area. Company C does not have storage facilities and 

instead feeds the reactor straight from the railcars during the production run. Company C has 

not been previously subject to PSM or RMP requirements. The site has an employee with safety 

and environmental responsibility, but this individual also has responsibility as the process 

engineer and operations manager. Other technical resources are limited.

In terms of facility risk, this option satisfies the goal of significantly reducing (or eliminating) 

the risk posed by the PIH material at Company B’s site. Since potential IST legislation and 

resulting rules would likely apply at the facility level, this should be a satisfactory response for 

Company B. However, the resulting situation may significantly increase the risk to people by 

forcing larger PIH package size quantities in transport, shipments over significantly greater 

distances, and storage and processing of a PIH in a more heavily populated area by a company 

that may not have sufficient expertise and programs in place to effectively manage the hazards. 

The total risk for the resulting situation would increase significantly from the initial scenario.

IST rules may also apply to Company C. However, since Company C is not the owner of the 

proprietary process it is not in a position to modify the process. Forcing IST implementation on 

Company C would put Company C out of business.

Fortunately in the case listed here IST consideration was an exercise to determine whether 

better options were available than the original scenario, rather than a mandatory 

implementation of IST.
APPENDIX 6

ACC COMMENT ON EXECUTIVE ORDER 13650
DB1/ 78326798.1

March 31, 2014

OSHA Docket Office

Docket No. OSHA-2013-0026

Technical Data Center 

Room N-2625

U.S. Department of Labor 

200 Constitution Avenue, NW

Washington, DC 20210

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA-2013-0026, Request for Public Comment, 

―Section 6 of Executive Order 13650: Improving Chemical Facility Safety and Security‖

To the Docket:

The American Chemistry Council1(ACC) is pleased to respond Executive Order 13650, Section 

6(a) – Solicitation of Public Input on Options for Policy, Regulation, and Standards 

Modernization, Docket No. OSHA-2013-0026. 

ACC is America‘s oldest trade association of its kind, representing companies across the United 

States engaged in the business of chemistry. ACC supports the Executive Order (EO) Working 

Group‘s commitment, as expressed in the present Section 6(a) options, to enhance the safety and 

security of workers, the public, and the environment from accidents at chemical facilities. ACC 

shares the EO Working Group‘s goal of ensuring that process safety is handled and implemented 

as safely as possible, as workplace safety and process safety are top priorities to the ACC and its 

members. In fact, to become a member of ACC, a company must commit to the highest 

standards for protecting health, safety, and the environment through participation in the 

Responsible Care® program. 

ACC members would be directly affected by the EO Working Group‘s request for public 

comment on improving chemical facility safety and security. While ACC shares the EO 

Working Group‘s goal of ensuring process safety, ACC has a number of concerns about the 

proposed candidates for rulemaking or enforcement changes identified in Section 6(a), as 

outlined in our comments. We believe that the signaled changes ultimately represent a drastic 

departure from the current regulatory framework, particularly for Process Safety Management 

 

1 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of 

chemistry to make innovative products and services that make people’s lives better, healthier and safer. ACC is 

committed to improved environmental, health and safety performance through Responsible Care®, common sense 

advocacy designed to address major public policy issues, and health and environmental research and product 

testing. The business of chemistry is a $770 billion enterprise and a key element of the nation’s economy. It is the 

largest exporting sector in the United States, accounting for 12 percent of U.S. exports. Chemistry companies are 

among the largest investors in research and development. Safety and security have always been primary concerns of 

ACC members, and they have intensified their efforts, working closely with government agencies to improve security 

and defend against any threat to the nation’s critical infrastructure.
DB1/ 78326798.1 2

(PSM), 29 C.F.R. § 1910.119, without corresponding benefits to workplace or employee safety. 

Ultimately, ACC believes that the most influential step the EO Working Group could undertake 

to improve worker safety is through increased PSM awareness, training, and enforcement for 

outlier companies. 

Chemical operations and process safety management are inherently complex, and ACC looks 

forward to working with the EO Working Group, as well as the Occupational Safety and Health 

Administration (OSHA), the Environmental Protection Agency (EPA), and other agencies, to 

ensure that any policy changes are informed by the daily challenges that chemical employers 

face. ACC encourages the EO Working Group to consider the fundamental concerns outlined in 

the subsequent comments as the agencies proceed with the next step in the EO process. As an 

alternative to rulemaking, ACC recommends that agencies including OSHA, EPA, and others 

evaluate the use of non-regulatory means to help the EO Working Group achieve its goal of 

creating a safer workplace for our nation‘s employees and surrounding communities. 

Thank you for the opportunity to submit comments on this matter.

We hope that the EO Working Group will find our contributions helpful. Should you have 

questions, please contact me by phone at (202) 249-6426 or by e-mail at 

Rachel_meidl@americanchemistry.com. 

Respectfully submitted,

 

Rachel A. Meidl 

Director, Regulatory & Technical Affairs 

American Chemistry Council

700 Second Street, NE

Washington, DC 20002

Rachel_Meidl@americanchemistry.com
DB1/ 78326798.1

March 31, 2014

OSHA Docket Office

Docket No. OSHA-2013-0026

Technical Data Center 

Room N-2625

U.S. Department of Labor 

200 Constitution Avenue, NW

Washington, DC 20210

Via Electronic Submission: http://www.regulations.gov

Re: Comments on OSHA Docket No. OSHA-2013-0026, Request for Public Comment, 

―Section 6 of Executive Order 13650: Improving Chemical Facility Safety and Security‖

To the Executive Order Working Group:

The American Chemistry Council (ACC) is America‘s oldest trade association of its 

kind, representing companies across the United States engaged in the business of chemistry. 

ACC members would be directly affected by any potential adjustments to existing risk 

management practices, or changes that affect chemical facility safety and security.2 ACC 

supports the (EO) Working Group‘s stated goal of improving safety through risk management 

practices. Workplace safety and process safety also are top priorities to ACC and its members. 

In fact, to become a member of ACC, a company must commit to the highest standards for 

protecting health, safety, and the environment through participation in the Responsible Care® 

program. As a part of this commitment, in 1990, ACC adopted the Responsible Care Process 

Safety Code of Management Practices, which identified specific activities that chemical 

companies implemented as part of their Responsible Care obligations.

ACC and its members continuously focus on improvement, developing a new Process 

Safety Code as part of the Responsible Care program, which was finalized in November 2012. 

This code was built on existing process safety performance requirements under Responsible Care 

and is further evidence of ACC members‘ commitment to safety throughout our chemical 

processing operations, safety management systems, and leadership. The Process Safety Code 

requires companies to develop and implement a comprehensive process safety management 

system to manage risk and seek opportunities to improve performance, including the 

consideration of safer alternatives. Companies must understand and prioritize process safety 

risks and see that all employees have the required knowledge, expertise, tools, and training to 

manage process risks in their operations. 

 

2 ACC submits this comment concurrently with our comment to Occupational Safety and Health Administration 

(OSHA) regarding the Request for Information (RFI) on Process Safety Management (PSM) and Prevention of 

Major Chemical Accidents. See ACC Comment on OSHA Docket No. OSHA-2013-0020 (Mar. 31, 2014) (attached 

hereto as Exhibit 1). The present comment has been tailored to the Executive Order (EO) Working Group‘s 

solicitation of public input in significant ways, but, where issues correspond, the comment also overlaps 

substantially with our submission to OSHA Docket No. OSHA-2013-0020. 
DB1/ 78326798.1 2

The Process Safety Code is intended to complement regulatory requirements, including 

the Occupational Safety and Health Administration‘s (OSHA‘s) Process Safety Management 

(PSM) standard and the Environmental Protection Agency‘s (EPA‘s) Risk Management Program 

(RMP) standard. Regulatory standards, by necessity, focus on process safety at an individual 

facility. In contrast, the Process Safety Code addresses issues at a more universal level, such as 

across a division or corporation, and includes a company commitment to set expectations 

regarding process safety, define accountability for process safety performance and allocate 

adequate resources to achieve performance expectations. These higher-level considerations, 

contained within the Process Safety Code, are critical elements of effective management of 

process safety.

Further, the Process Safety Code is a manifestation of the leadership that Responsible 

Care companies will undertake to seek systematic continuous improvement in process safety, 

drawing from the most current learning and advances. When implemented alongside the 

integrated Responsible Care management systems, this Process Safety Code will help advance 

the chemical industry‘s commitment to process safety by embedding state-of-the-art concepts 

within Responsible Care, strengthening process safety leadership, culture, management and, 

ultimately, performance. Implementation of the Process Safety Code is mandatory for all ACC 

Responsible Care companies.

ACC appreciates the opportunity to submit our comments in response to the EO Working 

Group‘s solicitation of public input. As with OSHA‘s PSM Request for Information (RFI), 

however, we have a number of significant concerns about proposed options for rulemaking or 

enforcement changes. Even so, ACC is encouraged that the EO Working Group recognized in 

Section 6(a) that the ―purpose of this document is to provide preliminary options as a starting 

point for additional stakeholder discussion‖ and that you ―anticipate that the options may change 

significantly.‖ See Section 6(a) at 2. Moreover, we appreciate your clarification that ―this effort 

does not supersede official or standard processes for agency actions, such as notice and comment 

rulemaking.‖ See id. Chemical operations and PSM are inherently complex, and ACC looks 

forward to working with the EO Working Group, as well as OSHA, EPA, and other agencies, to 

ensure that any policy changes are informed by the daily challenges that chemical employers 

face. 

I. EXECUTIVE SUMMARY

ACC believes that process safety standards in the United States are strong and effective 

precisely because they are performance-oriented. Given the diverse nature of chemical industry 

operations, ACC knows 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, ACC opposes prescriptive recommendations that will chip 

away at the necessary discretion given to employers. Any one-size-fits-all approach to process 

safety would limit employers‘ ability to address real facts on the ground.

ACC fears that several suggested change options would, in practice, weaken the highly 

effective performance-oriented approach to process safety. Given our concerns, ACC would like 

to underscore the importance of maintaining a performance-oriented approach for the following 

topics:
DB1/ 78326798.1 3

(1) ACC opposes incorporation of mandates to consider or implement ―inherently safer 

technologies‖ (IST) into regulatory safety programs. Inherently safer approaches or safer 

alternatives have been and will continue to be considered by facilities as a matter of 

course. However, 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. Furthermore, every regulatory program has a distinct focus, whether it is 

employee safety, environmental protection, or security. Therefore, IST mandates under 

one program cannot account for other factors that a facility incorporates in any 

consideration of inherently safer approaches. The facility operators, however, are able to 

and do consider inherently safer approaches holistically, in order to ensure the highest 

degree of safety in all respects.

(2) ACC 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. ACC 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. 

(3) ACC believes that the mandated use of third-party auditors would be overly 

burdensome and unjustified. Employers must be afforded the discretion to choose among 

self-audits, second-party audits, and third-party audits. Company-led audits can be far 

more effective in actually addressing issues uncovered during an audit, due to the 

company auditor‘s intimate knowledge of the organization and how it functions. 

ACC knows that workers and the public are best protected by allowing employers onsite to make 

decisions on these and other process safety topics, considering the myriad of site-specific factors 

presented. 

Next, ACC members take process safety very seriously and we disagree with any 

presumption that the U.S. chemical industry has a poor safety history. ACC acknowledges the 

public‘s fear of chemical operations and ―worst-case scenarios,‖ given their complexities; 

however, through compliance with the already enacted versions of PSM and RMP, chemical 

facilities have a strong safety track record. For example, ACC companies have a worker safety 

rate that is five times better than the U.S. manufacturing sector as a whole. Additional regulation 

generally has not been justified and would be unnecessary. 

As such, ACC takes issue with any suggested change options where the EO Working 

Group has not established the existence of significant risk of harm. ACC cautions the EO 

Working Group against trying to fix something not shown to be ―broken.‖ As the United States 

Supreme Court explained in its landmark decision, Industrial Union Department v. American 

Petroleum Institute (the Benzene case), ―before he can promulgate any permanent health or 

safety standard, the Secretary is required to make a threshold finding that a place of employment 

is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a 

change in practices.‖ 448 U.S. 607, 642 (1980) (J. Stevens, plurality) (―[A] workplace can 

hardly be considered  ̳unsafe‘ unless it threatens the workers with a significant risk of harm.‖). 

In Benzene, the Court refused to give OSHA the unchecked ―power to impose enormous costs 
DB1/ 78326798.1 4

that might produce little, if any, discernible benefit,‖ explaining that it would be ―unreasonable 

to assume that Congress intended to give the Secretary the unprecedented power over American 

industry.‖ Id. at 645. 

ACC agrees that the public is best protected by focusing on established risks, not hazards. 

As the Supreme Court explained in the Benzene, accepting the possibility of even deadly 

consequences (for example, driving a car) is a part of participating in society. The real question 

is not whether the consequence is serious, but rather the existence of risk—i.e., the likelihood 

that the consequence occurs. While many groups focus only on reducing hazards, the best way

to protect workers, the community, and the environment is to focus on real risks. The EO 

Working Group should determine what hazards/threats are most significant and likely. This 

would allow the EO Working Group and agencies to allocate resources in the most effective and 

efficient way. 

In addition, ACC emphasizes that changing regulations alone will not improve safety for 

companies that know how to fulfill the requirements of the current standards and consistently do 

so. Change also will not increase the safety of workers at companies that are not in compliance 

with existing regulations. In fact, ACC believes that process-related safety hazards are 

extremely rare where covered employers fully comply with current regulations. Instead, safety 

accidents, including those cited throughout the EO Working Group‘s solicitation of public input 

and OSHA‘s RFI, often involve outlier companies that fail to comply with some or all aspects of 

the current standards. As such, the EO Working Group should focus its time and resources on 

increasing training, outreach, and education efforts, and encourage agencies to increase 

enforcement for companies with a history of noncompliance, rather than increasing burdens on 

the industry across the board. 

Overall, ACC encourages the EO Working Group to reach out to affected employers and 

trade associations. Public/private partnership could help to achieve many of the goals and 

objectives of the EO. Moreover, interactions with affected groups, including the ACC, would 

allow the EO Working Group and agencies to obtain a broad perspective on emerging safety 

trends. 

II. RESPONSES TO WORKING GROUP’S PROPOSED OPTIONS

Option 1: ―Improving the Safe and Secure Storage, Handling, and Sale of 

Ammonium Nitrate‖

1(e) How should the agencies evaluate the implementation of safer alternatives and best 

practices for AN, and what are the best methodologies for accomplishing this? Safer 

alternatives and practices involve improving safety by reducing or eliminating hazards inherent 

in industrial processes. These alternatives and practices may involve reducing the amount of a 

hazardous substance kept on-site, or entirely eliminating the hazardous chemical by utilizing an 

alternative chemical pathway or safer intermediate chemicals. Promoting the use of safer 

alternatives and practices could occur through industry programs (e.g. Responsible Care, 

ChemStewards, and Responsible Distribution), by issuing alerts and guidance under EPA‘s 

RMP program and OSHA‘s PSM standard to increase knowledge of industry standards, 

through development and broad availability of a resource center where process safety experts 
DB1/ 78326798.1 5

share safer alternative techniques, and through potential rulemaking. Several stakeholders also 

have suggested incorporating ―inherently safer technologies‖ into risk and process safety 

programs and the agencies are requesting additional information on how this concept would be 

defined, accomplished, and measured. In addition, the agencies are requesting comment on the 

potential costs and benefits of implementing such an approach as opposed to other approaches.

ACC addresses the implementation of safer alternatives and best practices below in its 

comment on Option 2(I)(m).

1(f) Should the agencies examine the use of third-party audits and develop targeted guidance for 

industries that need assistance in understanding safe practices for handling AN? Third party 

audits are inspections conducted by appropriate independent auditors (retained by a chemical 

facility) who make process safety and regulatory compliance recommendations. According to the 

Center for Chemical Process Safety (CCPS), ―Third party auditors (typically, consulting 

companies who can provide experienced auditors) potentially provide the highest degree of 

objectivity.‖ The U.S. Department of the Interior, Bureau of Safety and Environmental 

Enforcement‘s (BSEE) Safety and Environmental Management Systems (SEMS) standard, 30 

CFR 250, Subpart S, requires audits conducted by an independent third party, subject to approval 

by BSEE, or by designated and qualified personnel if the employer implements procedures to 

avoid conflicts of interest.3

The Mandated Use Of Third-Party Auditors Would Be Overly Burdensome And 

Unjustified

ACC cautions against the mandated use of third-party auditors. Further, ACC is skeptical 

of any assertion that third-party auditors provide the ―highest degree of objectivity,‖ or are more 

effective overall than self or second-party audits. ACC believes that instead of taking steps to 

require any audits through regulation, the EO Working Group should focus on targeted nonregulatory approaches such as increased PSM awareness, training, and enforcement for outlier 

companies, or those requiring additional assistance. In addition, the EO Working Group could 

encourage voluntary audits by consultants or groups such as Center for Chemical Process Safety 

(CCPS), ACC, American Fuel & Petrochemical Manufacturers (AFMP), and others, as well as 

participation in programs such as OSHA Voluntary Protection Program (VPP) to provide 

supplemental gap analysis and guidance. These tools may help outlier organizations that are not 

aware of and/or lack the resources to be in full compliance with existing regulations. Adding 

new regulations, by itself, would not improve process safety performance for such companies. 

ACC maintains that the mandated third-party audits is unjustified and, depending on the facility, 

may not best achieve the goals of safety, education, and understanding. 

As explained in ACC‘s response to OSHA‘s PSM RFI (Exhibit 1 at Change Option 12), 

the use of self-auditors, second-party auditors (company auditors not directly responsible for the 

area being audited), or third-party auditors should remain a choice for employers, who have the 

greatest understanding of the unique potential hazards and challenges facing their worksites. 

 

3

For ease of reference, in text boxes placed throughout this submission, ACC has included excerpts from the EO 

Working Group‘s ―Solicitation of Public Input on Options for Policy, Regulation, and Standards Modernizations‖ to 

which ACC offers comment. 
DB1/ 78326798.1 6

ACC members vary greatly in their decisions to use certain types of PSM auditors. ACC 

members consider their own particular operations, equipment, onsite materials and chemicals, 

expertise, and organizational structure to determine which method is best suited to increase 

safety. 

Second-party and self-audits have many safety benefits that are lost with third-party 

audits. Company-led audits can be far more effective in actually addressing issues uncovered 

during an audit, due to the company auditor‘s intimate knowledge of the organization and how it 

functions. Using common audit questions and a standardized scoring system across the company 

also allows for the ready comparison of results across sites, including consistent report-writing 

and recommendation-tracking across the company. In ACC members‘ experiences with PSM 

audits, using internal resources broadens PSM management system education while leveraging 

the auditor‘s detailed knowledge of the organization and how it functions. 

Many ACC members believe that, in reality, company auditors have been more effective 

in identifying, understanding, and then taking prompt, appropriate actions to ensure that 

management resolves issues uncovered during an audit, as compared to temporary, unaffiliated 

contractors. Audit programs are just one element of a company‘s safety management system, 

and company auditors are more likely to take ownership of the audit report process, revisit action 

items with the site, or advocate internally for additional resources on a continuous basis. In 

addition, many companies also have or implement a continuous improvement 

department/process that considers audits, metrics, and incident investigation findings in a holistic 

manner—these elements would be absent with third-party audits. It is worth noting that some 

ACC members use third-party auditors merely to confirm the findings of second-party or selfauditors. Ultimately, ACC believes that it should be the responsibility and choice of each 

owner/operator to decide how best to complete audits given the unique characteristics of the 

company. 

OSHA‘s own National Emphasis Program (NEP) inspections have not demonstrated that 

company-led audits are cause for concern due to any alleged incapability of the audit team or 

deficiency in the audit protocols used. In March 2011, the Department of Labor provided an 

update at the 7th Global Congress on Process Safety sponsored by the American Institute of 

Chemical Engineers (AIChE), explaining that only 4% of the citations for the Refinery NEP 

were for PSM Compliance Audits. To support the need for a change in regulation in its RFI, 

OSHA merely cited to the Chemical Safety Board (CSB) Baker Panel‘s review of a single 

company and its finding that the company‘s flawed internal audits contributed to an incident. 

See 78 Fed. Reg. 73762 (Dec. 9, 2013). As previously stated, changing the regulations alone will 

not improve safety for companies that know how to fulfill the requirements of the current 

standards and consistently do so. To improve the quality and effectiveness of audits, ACC 

recommends that agencies, including OSHA, develop practical non-mandatory materials (such as 

guidance and training) for these outlier employers. At present, ACC has observed a dearth of 

information regarding auditing on OSHA‘s website. 

Moreover, the CSB BP Texas City Report (Mar. 20, 2007) does not mention any issues 

with the audit team; rather CSB identified significant problems with management 

implementation of the audit team recommendations. Section 8.3 of the CSB BP Texas City 

Report stated that a ―review of compliance audits at the Texas City refinery revealed that many 
DB1/ 78326798.1 7

of the process safety system deficiencies causal to the ISOM incident had been previously 

identified by BP auditors.‖ These flaws would not be corrected or eliminated by use of a thirdparty audit team. Likely for this reason, the CSB BP Texas City Report did not contain a formal 

recommendation that OSHA update its PSM auditing requirement. The data supporting the 

methodology on how audits are performed by companies is not compelling, and certainly does 

not warrant the tremendous cost of third-party auditors through regulatory mandate. 

Unquestionably, the use of third-party auditors is extremely costly. Contractors have 

hourly rates of up to $500 per auditor for conducting PSM audits, not including payment for 

travel, expenses, and preparation time, as well as inflated costs for certain expertise. ACC has 

investigated the cost of third-party PSM audits for its members. See Exhibit 1, ACC Comment 

to OSHA Change Option 12 and the exhibit therein entitled Third-Party PSM Audit Analysis. 

Indeed, ACC roughly estimates that the cost of a single third-party PSM compliance audit for a 

medium-sized company could be as high as $33,600 to $112,000 per audit. Id. By contrast, the 

primary cost for self and second-party audits is the opportunity cost of a company‘s PSM and 

other technical staff, which averages $12,300 per self or second-party audit for medium-sized 

companies. Id. Thus, third-party PSM audits cost anywhere from $21,300 to $99,700 more per 

audit than second-party audits for medium-sized companies. This range is based solely on 

hourly rates, and, in reality, is most likely a low estimate—the comparison assumes that the 

number of hours spent on a single audit is identical for each type of audit. However, as will be 

explained later in this section, ACC members report that third-party audits are lengthier than 

self/second-party audits. Thus, ACC believes that the true cost of third-party audits is 

significantly higher than $21,300 to $99,700. Even more, as explained in Exhibit 1, ―[m]any 

companies have several facilities that would need to be audited each year. Thus, this cost would 

be multiplied several times over. Given that the majority of PSM-regulated facilities are at small 

and medium-sized companies, this presents a significant cost burden.‖ Id. Again, there is no 

proof that this cost yields corresponding safety benefits. 

Also, third-party auditors do not significantly lessen the burdens of onsite engineers and 

other support personnel, who frequently must accompany third-party auditors and engage in the 

extremely time-consuming activity of explaining basic onsite procedures already known to 

internal staff. This leads to intra-company productivity and opportunity losses, in addition to the 

direct cost of hiring third-party auditors. Overall, third-party audits are lengthier and involve 

larger audit teams, without necessarily yielding corresponding safety benefits. Lengthier audits 

present logistical challenges and loss of efficiency at a plant, occupying those involved in plant 

safety for extensive periods of time (possibly adversely impacting a plant‘s safe operation) and 

consuming a much greater amount of plant resources. All told, the annual costs would be 

disproportionate to the benefit. 

Furthermore, ACC has serious security concerns with third-party auditors not present 

with second-party and/or self-audits. Third-party auditors would be granted unprecedented 

access to intimate details of a company‘s operations. The required use of third-party auditors 

exposes a company‘s intellectual property to financial and even security risks. Allowing external 

personnel to review technical details, company confidential business information, and trade 

secrets may impact a company‘s otherwise protected intellectual property and discourage 

innovation. More broadly, ACC remains skeptical regarding the qualifications of third-party 
DB1/ 78326798.1 8

auditors. Right now, based on ACC members‘ experiences, there is a dearth of quality thirdparty contractors available for PSM audits. 

In conclusion, ACC firmly believes that owners/operators should have the discretion to 

choose the audit method most suited to their unique operations. This Working Group should not 

overlook the plethora of benefits that stem from company audits, which are missing entirely from 

third-party audits. Given these legitimate concerns, ACC suggests that the EO Working Group 

consider and analyze alternate routes to reinforce the efficacy of audits such as additional 

guidance, information, tools, and/or training materials on how to conduct quality audits. For 

outlier facilities or those requiring additional assistance in the safe use and handling of 

ammonium nitrate, the use of targeted non-regulatory approaches such as increased Section 

1910.109(i) awareness, training, and enforcement would be the most productive way to improve 

the safety of workers, the surrounding community, and the environment. 

Option 2(I): ―Process Safety Improvement and Modernization – Policy, Regulatory, 

or Guidance Options by the Agencies‖ 

2(I)(a) Should EPA and OSHA modernize, clarify, and harmonize the PSM and RMP programs 

through rulemaking, policy change, or guidance development? If so, please provide specific 

suggestions. The agencies are considering whether to initiate rulemakings for updating the PSM 

standard and RMP rule. EPA and OSHA have collaborated on implementation of these 

programs, and are considering a number of options for modernization of regulations, policy, and 

guidance that would maintain parallel requirements and ensure harmony between the regulations. 

Although some of these specific options are discussed below, EPA and OSHA seek input on any 

additional opportunities to modernize, clarify, or harmonize these programs.

Rulemaking Should Not Proceed Without First Establishing The Existence Of Significant 

Risk; Harmonization Of PSM And RMP Would Be Confusing And Ineffectual

A collaborative effort on the part of OSHA, EPA and industry to clarify regulatory 

expectations through guidance documents would be more appropriate than attempting to 

―modernize‖ standards that are still adequate as written through rulemaking. This collaborative 

effort should initially identify what part(s), if any, of these standards is ―outdated,‖ and the basis 

for such determination. Merely passing additional regulations would fail to address the problem 

of outlier companies that are unfamiliar with the PSM and RMP standards. Instead of 

rulemaking, ACC encourages education, training, awareness efforts, and enforcement for these 

outlier companies, or those requiring additional assistance.

A. General Comments And Concerns Regarding Future Rulemaking

As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Executive Summary), the 

Occupational Safety and Health Act of 1970 (OSH Act) authorizes the Secretary of Labor to 

―promulgate, modify, or revoke any occupational safety or health standard‖ that is ―reasonably 

necessary or appropriate to provide safe or healthful employment and places of employment.‖ 

See 29 U.S.C. §§ 652(8), 655(b). In Benzene, the U.S. Supreme Court held that ―before he can 

promulgate any permanent health or safety standard, the Secretary is required to make a 

threshold finding that a place of employment is unsafe—in the sense that significant risks are 
DB1/ 78326798.1 9

present and can be eliminated or lessened by a change in practices.‖ 448 U.S. 607, 642 (1980) 

(J. Stevens, plurality) (―[A] workplace can hardly be considered  ̳unsafe‘ unless it threatens the 

workers with a significant risk of harm.‖ (emphasis added)). The Court warned that accepting 

the possibility of deadly consequences—for example when driving a car—is a tradeoff for 

participating in society. The real question is not whether the consequence is serious, but rather 

the likelihood that the consequence occurs (i.e., the risk). Hazards are always present, even at 

the best-managed facilities, and to improve safety, agencies must shift focus to risk. Ultimately, 

the Supreme Court refused to give OSHA the unchecked ―power to impose enormous costs that 

might produce little, if any, discernible benefit,‖ explaining that it would be ―unreasonable to 

assume that Congress intended to give the Secretary the unprecedented power over American 

industry.‖ Id. at 645. The Court specified that risk, not consequence, should be the basis for any 

proposed changes to the standard.

Pursuant to Section 304 of the Clean Air Act Amendment of 1990 (CAAA), OSHA 

promulgated the current PSM standard, which ACC believes has been successful in addressing 

significant risks associated from catastrophic releases of toxic, reactive, flammable and explosive 

chemicals. As explained in our comment to OSHA (see Exhibit 1), ACC now is concerned by 

OSHA‘s RFI on PSM because we see virtually no reference to findings of significant risk to 

justify such a dramatic shift from the PSM standard and other rules (e.g., 29 C.F.R. § 1910.106) 

already in place. While ACC supports OSHA‘s stated goal of increasing workplace safety 

through the PSM standard, ACC cautions OSHA against taking any steps to implement changes 

that increase burdens on employers without first establishing significant risk of harm through 

data and science-based analyses. ACC understands that OSHA published its recent RFI as part 

of an effort to collect ―data and information on its PSM standard‖ in response to the Executive 

Order 13650 process. See 78 Fed. Reg. 73757. In the meantime, however, ACC would not 

support any changes to the current standard without such risk analysis from OSHA. The real 

issue, ACC believes, is not with the current PSM standard, but with compliance deficiencies and 

demonstrated problems with implementation and enforcement of existing PSM requirements. 

Changing the regulations alone will not improve safety for companies that know how to fulfill 

the requirements of the current standards and consistently do so. 

ACC believes that process-related risks are well managed and controlled where covered 

employers fully comply with OSHA‘s current PSM regulations. Instead, safety accidents, 

including those cited throughout OSHA‘s RFI and EO Section 6(a), often involve outlier 

companies that fail to comply with some or all aspects of the current PSM standard. Ultimately, 

compliance with the regulations already in place minimizes the significant risk of PSM hazards. 

As such, ACC believes that OSHA should focus its time and resources on increasing PSM 

training and education efforts, as well as enforcement for companies with a history of 

noncompliance, rather than increasing burdens on the industry across the board with no 

discernible reduction of risk. 

If any agency decides to proceed with subsequent rulemaking, ACC encourages 

transparency and sufficient opportunity for stakeholder participation in every step of the 

rulemaking. Specifically, the agency should issue an Advance Notice of Proposed Rulemaking 

(ANPR) to provide stakeholders with sufficient time to evaluate the impact of such broad and 

weighty rule changes. Regarding the required studies and analyses mentioned above, the agency 

should grant stakeholders sufficient time and opportunity to participate in the OMB-required 
DB1/ 78326798.1 10

peer review process for scientific information used in risk assessments. Moreover, ACC is 

confident that any proposed revisions to the PSM rule, if enacted, would have a significant 

economic impact on a substantial number of small business entities. In fact, over half of ACC‘s 

membership consists of small businesses. As such, if rulemaking is anticipated, the agency 

would be obligated to convene a Small Business Advocacy Review Panel under the Small 

Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which recognizes the 

importance of protecting the interests of small businesses when developing regulations. 

B. Comments Regarding Harmonization 

While both the PSM standard and EPA‘s Risk Management Plan Rule, 40 C.F.R. § 

68.150-196 (RMP Rule), are intended to decrease the likelihood of accidental releases, ACC 

cautions against the harmonization of OSHA‘s PSM and EPA‘s RMP Rule. In 1990, Congress 

passed the CAAA Section 304, which required the Secretary of Labor to promulgate a chemical 

process safety standard to prevent accidental releases of chemicals that could pose a threat to 

employees. The CAAA requires that the standard include a list of highly hazardous chemicals 

with associated threshold quantities, including toxic, flammable, highly reactive, and explosive 

substances. 

Likewise, upon passing the CAAA, Congress required the EPA Administrator to publish 

regulations and guidance for chemical accident prevention at facilities using extremely 

hazardous substances to prevent accidental releases that impact the surrounding community and 

environment. The CAAA identifies specific duties for EPA relative to the prevention of 

accidental releases, mandating the development of a list of chemicals and associated threshold 

quantities, along with a Risk Management Plan. EPA also passed the RMP Rule to implement 

CAAA Section 112(r), 42 U.S.C. § 7412(r). The RMP Rule, which built upon existing industry 

codes and standards, requires companies of all sizes that use certain flammable and toxic 

substances to develop a Risk Management Program and conduct a hazard assessment that details 

the potential effects of an accidental release on the surrounding community and environment.

To comply with both PSM and RMP rules, operators of covered processes must carefully 

examine the list of regulated substances, as well as both the EPA and OSHA thresholds for these 

substances. Because OSHA and EPA promulgate their rules separately, the two programs‘ lists 

of substances and thresholds differ. In some cases, one program may list a substance that the 

other program does not, and where EPA and OSHA do list the same substances their triggering 

thresholds may differ significantly. The threshold quantities are different because the targeted 

population is different. OSHA‘s PSM standard works to prevent accidental releases of highly 

hazardous chemicals that may pose a risk to employees, while EPA‘s RMP Rule focuses on 

preventing releases that may impact the surrounding community and environment. ACC fears 

that merging the lists would create confusion, and would likely cover too few facilities under 

PSM and too many facilities under the RMP Rule. In the 20-plus years since the implementation 

of these regulations, industry has become familiar with the lists and established how to address 

discrepancies between them. 
DB1/ 78326798.1 11

2(I)(b) How should OSHA clarify the exemption for retail facilities under PSM? OSHA‘s RFI 

explains this option in further detail

OSHA Should Not Change Enforcement Policy For Retail Facility PSM Exemption

As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Change Option 16), OSHA 

should not change its enforcement policy for the retail facility PSM exemption. ACC 

understands OSHA‘s concerns regarding the ill-defined PSM exemption for retail facilities. 

Simply altering enforcement policies without changing the regulation‘s language on coverage, 

however, would amount to regulation by enforcement. ACC categorically discourages any such 

back-door rulemaking by imposing new substantive requirements through enforcement and 

without the opportunity for stakeholders to have any input (as would be the case through 

Administrative Procedure Act (APA) rulemaking). As with manufacturing and storage facilities, 

if OSHA believes that retail facilities present a significant risk of harm—and OSHA establishes 

significant risk through studies and analyses—it should amend the standard to include coverage 

of so-called ―retail facilities‖ associated with such risks. In sum, OSHA should continue 

analyzing hazards and risks for retail establishments as required for rulemaking, and should not 

merely pursue a change in enforcement policy for retail facilities.

2(I)(c) Should OSHA adopt EPA’s RMP policy for determining PSM coverage of concentrations 

of PSM-listed chemicals (replacing OSHA’s existing interpretation that applies the concept of 

maximum concentration commercially available to determine threshold quantities of covered 

chemicals)? The Executive Order refers to this issue as the commercial grade exemption. 

OSHA‘s RFI explains this in further detail.

OSHA Must Undertake Scientific Analyses And Establish Significant Risk Before Any 

Enforcement Changes Are Made, And EPA Criteria Would Be Ineffectual For OSHA 

OSHA‘s PSM Appendix A lists highly hazardous chemicals and threshold quantities that 

must be met to establish coverage. Although Appendix A provides specific concentrations for 

11 of its listed chemicals, the standard does not address concentrations for the remaining 126 

listed chemicals. As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Change Option 

17), ACC recommends that OSHA use a formal scientific-based approach to evaluate chemicals 

so that OSHA can demonstrate that any proposed changes to the PSM standard are justified, and 

that the modifications to enforcement would actually enhance worker safety. ACC further urges 

OSHA and EPA to develop and publish their research and data-gathering methodology for 

identifying, defining, and quantifying the hazards associated with a chemical. OSHA and EPA 

should use a formal, scientific-based approach to evaluate chemicals and, ultimately, to 

demonstrate that any proposed additions to the list of covered chemicals are justified and would 

actually enhance worker safety. 

ACC agrees with OSHA that the language in the standard addressing mixtures containing 

listed chemicals is unclear and requires clarification. However, ACC does not agree that OSHA 
DB1/ 78326798.1 12

should adopt the EPA‘s policy, or that a change in enforcement policy is justified. It would not 

be feasible to use the EPA 1% concentration criteria in OSHA‘s PSM standard because there are 

multiple additional requirements to establish a full EPA RMP Prevention Program (Program 3) 

in the EPA RMP Rule. These additional criteria, such as off-site injury and distances to toxic or 

flammable endpoints for worst-case release assessments, are related to off-site impacts and are 

not within OSHA‘s scope. In addition, these supplemental criteria substantiate that the mixture 

poses an off-site hazard. Although EPA policy requires evaluation of all mixtures with a greater 

than 1% concentration, only those mixtures that have concentrations large enough to be a 

potential off-site hazard require establishment of a full EPA RMP Prevention Program (Program 

3).

Instead, in its response to OSHA‘s RFI, ACC encouraged OSHA to clarify the 

requirements for chemicals listed in Appendix A without specific concentrations. In particular, 

mixtures containing more than the threshold quantity as set forth in Appendix A in the mixture, 

but are at such a low concentration so as not to constitute a hazard, should be explicitly identified 

as outside the scope of PSM‘s coverage. 

2(I)(e) Should EPA, OSHA, and PHMSA initiate rulemaking, policy changes, or guidance to 

account for human factors in process safety, management of change, facility operating 

procedures, incident investigation, training, process hazard analysis, and other elements? If 

so, please provide specific recommendations on how the agencies should better address these? 

OSHA‘s RFI discusses and requests comment on additional management-system elements.

Additional Steps Need Not Be Taken To Account For Human Factors

ACC notes that OSHA interpretation letters, along with existing regulatory language, are 

clear regarding how to ―account for human factors.‖ Additional rulemaking is not necessary. 

Beyond OSHA, tools exist to help employers account for human factors. For example, CCPS, 

Mary Kay O‘Connor Process Safety Center (MKOPSC), and consulting companies all provide 

guidance and training on human factors and how to address them within existing process safety 

elements. ACC strongly believes that no additional rulemaking can occur without a showing of 

need, and no such need exists here where effective information and training already is utilized

and available. 

2(I)(g) Would it be beneficial for the agencies to develop and publish guidance for employers or 

operators on conducting root-cause analysis following significant incidents or releases? Rootcause analysis involves identifying the systemic causes of incidents as opposed to the immediate 

causes. EPA, OSHA, and PHMSA plan to determine what level of root-cause analysis is 

appropriate and feasible.

ACC Cautions Against Publishing Guidance And, If Published, Encourages Industry Input

ACC does not believe that new guidance is required on conducting root-cause analysis 

following significant incidents or releases. Although not explicitly required, root-cause analyses 

are already conducted under PSM for incident investigations under Section 1910.119(m) as well 

as Responsible Care. Further, numerous private sector resources are available for root-cause 

methodology training. 
DB1/ 78326798.1 13

Moreover, ACC notes that we discourage imposing any new substantive requirements 

through enforcement or guidance without the benefit of APA notice and comment. If the EO 

Working Group develops guidance on root-cause analyses, ACC would appreciate the 

opportunity to provide input. ACC believes that we would have valuable input based on the 

practical experiences of our members. 

2(I)(h) Would it be beneficial for OSHA to develop and publish PSM guidance for small 

businesses, particularly those that handle highly hazardous chemicals that are not the 

employer’s primary product? Small businesses often lack the resources and expertise of larger 

businesses for PSM elements such as training and process hazard analysis, and may require 

additional consultation or guidance from OSHA in order to meet PSM requirements. Businesses 

that handle highly hazardous chemicals that are not the facility‘s primary product may similarly 

lack PSM expertise and require special guidance.

Similarly Here, ACC Cautions Against Any Rulemaking Through Guidance And 

Encourages Industry Input

First, ACC again notes that it categorically opposes any such back-door rulemaking by 

imposing new substantive requirements through enforcement or guidance. No guidance can be 

given the weight of rules, which allow the opportunity for stakeholders to have any input through 

APA rulemaking. If OSHA undertakes an effort to develop and publish PSM guidance, ACC 

would appreciate the opportunity to provide input. OSHA also should collaborate with other 

trade organizations and groups such as CCPS and MKOPSC. ACC believes that OSHA would 

benefit from these groups‘ input to understand the practical challenges that employers face. 

2(I)(f) Should EPA, OSHA, and PHMSA initiate rulemaking, policy changes, or guidance to use 

existing leading and lagging indicators to better evaluate performance over time? If so, please 

provide recommendations on how the agencies may address this and what indicators are most 

meaningful. An indicator is any metric that can be used, modeled, or trended to predict future 

events. Lagging indicators may include frequency of injuries or incidents. Leading indicators 

include frequency of maintenance orders, frequency of maintenance orders completed late vs. 

on-time, number of equipment inspections, or percentage of sampled management of change 

orders that satisfy regulatory/internal compliance. OSHA‘s RFI also discusses and requests 

comments on this issue.

Additional Management-System Elements, Particularly Those Based On Leading And 

Lagging Indicators, Need Not And Should Not Be Added

OSHA noted in the RFI that CCPS recommends additional management-system elements 

such as Conduct of Operations, PSM Metrics, and performing periodic Management Reviews of 

PSM programs. As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Change Option 

6), each of these CCPS additional elements are supportive management tools, which are applied 

to improve the efficacy of the existing elements in the OSHA PSM standard. They do not create 

a work product of their own, and therefore are inappropriate in the performance-based PSM 

standard. ACC agrees that these types of cultural process safety elements may lend themselves 
DB1/ 78326798.1 14

to individual organizational continuous improvement actions. However, such elements are not 

well suited to prescriptive regulation or to consistent, rational enforcement by government 

agencies. They would be ineffectual and confusing as regulatory requirements, and, as such, 

should not be added to the current regulations.

ACC also notes that no agency has provided any evidence indicating that the existing 

PSM regulation has not adequately included process safety elements necessary to develop an 

effective performance-based PSM system, and ACC believes that no such evidence exists. 

OSHA‘s RFI cited incidents where existing management system elements were not adequately 

performed. These examples, however, demonstrate a problem with implementation and 

enforcement; they do not constitute evidence of the need for additional elements. Imposing 

unnecessary added regulations on all covered employers ignores the root problems—that certain 

outlier organizations have chosen not to address regulations already in place in their entirety 

through the implementation and maintenance of existing regulatory process safety management 

elements, or perhaps do not realize that they are covered by the regulation. 

Furthermore, lagging PSM metric indicator collection and evaluation should not be 

required by regulation. While lagging indicators may provide insight into an organization‘s past 

process safety performance, there are limits to how this data can be utilized as a meaningful 

measurement and comparison point. Organizations like ACC, International Council of Chemical 

Associations (ICCA), American Petroleum Institute (API), AFPM and CCPS have been working 

to standardize and harmonize process safety metric collection and analysis to provide 

consistency in reporting; however, this standardization has not yet come to fruition and may not 

be achievable. ACC would support a single, global, harmonized set of process safety lagging 

indicators that can be applied by chemical manufacturers worldwide when such a set is 

developed. The advantages of a single scheme are numerous and include simplified reporting 

and benchmarking, teachable experiences that can be disseminated across all facilities, 

continuous process safety improvement, and mitigation and elimination of risks. However, such 

a harmonized set of metrics does not exist at this point, and even if such a set is developed, ACC 

does not see the need for a regulatory requirement. 

In addition, leading PSM metrics cannot be effectually regulated. Even more than for 

lagging metrics, leading metrics simply do not lend themselves to standardization and cannot be 

successfully employed across organizations or industries, as they tend to be very specific to an

organization and often to an individual site. By way of comparison, occupational safety lagging 

metrics such as days away and total recordable injuries—which ACC and other organizations 

still have struggled to standardize across the industry—tend to be numerical and quantitative in 

nature, whereas leading indicators such as behavioral-based audits, employee observations, and 

employee participation in safety committees are extremely subjective and site-specific. These 

metrics cannot be universally applied or regulated. In sum, ACC believes that the existing PSM 

management-systems elements required by OSHA in 29 C.F.R. § 1910.119 represent the key 

components needed for a successful PSM program, and additional requirements suggested by 

OSHA in its RFI would not provide any corresponding safety benefits and are not amenable to 

regulatory implementation. 

Finally, ACC notes that when EPA promulgated 40 C.F.R. Part 68, the EPA aligned 

Section 68.15 of the RMP rule (requiring facilities to develop a management system) with § 

1910.119 PSM elements. ACC believes that OSHA should consider the EPA‘s precedent and 
DB1/ 78326798.1 15

maintain consistency between PSM and RMP program elements. This would drastically reduce 

the burden on employers complying with two distinct programs. 

2(I)(j) Should inspector and compliance officer training be expanded to include best practices 

and to improve process safety beyond regulatory requirements? EPA, OSHA, USCG, and 

PHMSA recognize that specialized training would allow inspectors and compliance officers to 

go beyond enforcement and recommend additional best practices to regulated entities to protect 

their workers, the surrounding community, and the environment. USCG already plans to 

enhance training and provide additional guidance to shippers of products.

ACC Cautions That Training Beyond Regulatory Requirements Would Lead To 

Inconsistency In Enforcement

While in theory this concept sounds like an attractive option, ACC believes that training 

that does not specifically support inspection and compliance functions (i.e., training beyond 

regulatory requirements) will only serve to confuse the issue and dilute already scarce resources. 

There are many other, more efficient avenues for companies to obtain Good Engineering Practice 

information than as a part of an enforcement or inspection visit. Agencies should consider 

adding such training only as it supports their primary function of inspection and compliance.

ACC also would like to note the distinction between inspection/regulatory compliance 

and improvement beyond regulations. Due to the nature of performance-based regulations, if 

any training is conducted, there must be clear separation between (1) regulatory expectations and 

(2) continuous improvement and best practices. Without clear separation, some regions may 

insist on and/or enforce a ―best practice‖ that is not in fact required, while other regions may take 

a different approach or focus on a different practice that they think is ―best.‖ Ultimately, only 

the employer, which has intimate knowledge of its own facilities, knows what constitutes ―best 

practices.‖ This is the reason that PSM, for example, was written as a performance-oriented 

standard in the first place. Programs such as VPP have been successful in promoting best 

practices and improvements beyond regulatory compliance; however, even these programs have 

had difficulties with consistency of requirements from region to region. The confusion (not to 

mention subsequent litigation) that would come from trying to combine enforcement/compliance 

with continuous improvement would be a counterproductive distraction.

2(I)(l) Should EPA, OSHA and PHMSA evaluate the implementation of a “safety case” regulatory 

model to reduce risks in complex industrial processes as low as reasonably practicable? This 

option could be used to replace, or in the environmental context supplement, existing PSM and 

RMP safety requirements with a system that requires employers to 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. The 

safety case regulatory model provides employers with increased flexibility and allows regulators to 

set health and safety standards that are proportionate to the risk involved. For example, a 

description of the United Kingdom‘s safety case regulation can be found at 

http://www.hse.gov.uk/comah/. The agencies recognize this would be a major departure from 

the current regulatory model, and it would likely require legislative action to implement.
DB1/ 78326798.1 16

ACC Believes That A Safety Case Regulatory Regime Would Detract From Safety And Is 

Wholly Unjustified

ACC has strong concerns regarding the establishment of a safety management regulatory 

framework based on ―safety case‖ principles. ACC disagrees with the EO Working Group‘s 

statement that the ―safety case regulatory model provides employers with increased flexibility and 

allows regulators to set health and safety standards that are proportionate to the risk involved.‖ 

ACC believes that the safety case framework would not actually achieve the desired safety 

benefits for covered workplaces. As fully explained in our January 3, 2014 comment to the CSB 

in response to CSB Regulatory Report No. 2012-03-I-Ca (attached hereto as Exhibit 2) (CSB 

Report),4 ACC believes that its members, through OSHA‘s current PSM standards and voluntary 

programs such as Responsible Care, already address the continuous improvement goals set forth 

in the CSB Report to justify the safety case regime. We have significant concerns that the drastic 

changes that would come with a safety case framework would result in a wide variety of 

practical problems if implemented. As outlined in detail below in Subsections A to F, ACC 

believes that a safety case regime ultimately would detract from worker safety and create an 

atmosphere of uncertainty and confusion for employers and regulators alike.

A. ACC Has Significant Legal Concerns (Including Due Process Concerns) 

Regarding Any Recommendation To Implement New Requirements Without 

Rulemaking

A safety case regime would not be a mere addition to or engagement of current process 

safety management regulations. It would be a complete overhaul of the current method used, 

despite the lack of any evidence that a safety case program would provide any process safety 

improvement over the existing regulations. ACC appreciates the EO Working Group‘s comment 

that ―agencies recognize this would be a major departure from the current regulatory model, and 

it would likely require legislative action to implement.‖ ACC has significant legal concerns, 

including due process concerns, with any recommendation to implement safety case 

requirements without rulemaking. Specifically, the CSB Report included the following 

recommendation: ―Ability to adapt and implement safety requirements in response to newly 

identified hazards, advances in technology, lessons learned from major accidents, and improved 

safety codes without the need for new rule-making.‖ See Exhibit 2, CSB Report at 90 (emphasis 

added); see also id. at 89 (―The safety case provides the adaptability necessary to keep current 

with improving standards and advancing technology, without requiring lengthy and often 

unproductive rulemaking on the part of the regulator.‖ (emphasis added)); id. at 48 (―The 

cumbersome rulemaking process and lack of flexibility that has resulted in stagnant and static 

OSHA standards can be contrasted with the structure of the safety case regulatory regime, which 

facilitates adaptability and enables the regulator to improve industry safety performance and 

practices without requiring a major rule change.‖ (emphasis added)). 

The CSB press release issued on December 16, 2013 in connection with the release of the 

CSB Report provided further clues as to this approach: ―Under a safety case system, changing 

safety standards, new technologies, and findings from accident investigations are required to be 

 

4 Although the present comment to Option 2(I)(l) is tailored to the EO Working Group‘s specific solicitation for 

public input, much of the comment is based on ACC‘s previously submitted comment to the CSB. See Exhibit 2.
DB1/ 78326798.1 17

incorporated by facilities.‖ The CSB further stated in this press release that one of the 

justifications for this approach was that it had issued a number of process safety regulations from 

its investigations, yet ―none of these important regulatory recommendations have been 

implemented.‖ See CSB Press Release (Dec. 16, 2013). In effect, the CSB approach would 

grant unprecedented leeway in setting requirements beyond the current legislative checks and 

balances, and would open the door for short-circuiting the rulemaking process altogether. 

This recommended back-door rulemaking is of grave concern to ACC and the general 

public. ACC members would be faced with the obligation to implement ―advances in new 

technology‖ without any regulator having to determine through APA rulemaking whether there 

is significant risk and without having to establish the necessary feasibility requirements. ACC 

members would then be obligated to follow these new requirements without the opportunity to 

participate in the APA rulemaking process (and presenting any input and/or practical issues with 

any such proposal). ACC has the same concerns regarding the obligation to implement 

―improved safety codes‖ or ―changing safety standards‖ without the regulator establishing the 

need for such requirements under APA rulemaking. 

The CSB Report also suggested that any employer subject to the recommended safety 

case framework, if implemented, would automatically be required to follow a wide variety of 

new requirements without the opportunity to participate in any transparent rulemaking process, 

and without clear direction as to which of the new technology, accident, or safety 

recommendations would actually have to be implemented by employers. If this regime were 

implemented without rulemaking, employers would not know who sets deadlines for 

implementation and compliance. Also unclear is what agency would enforce the regime and 

actually evaluate compliance with these recommendations. Furthermore, ACC cannot be 

required to follow each prescriptive requirement from consensus standards without the 

opportunity to participate in the rulemaking process. Without proper rulemaking procedures, 

employers would not know who would decide what consensus standards, if any, would need to 

be followed, or what recommendations in the CSB Report are mandatory, given the CSB‘s lack 

of enforcement mechanisms. 

ACC completely disagrees with the discussion in Appendix B to the CSB Report wherein 

the CSB contended that the safety case regime would somehow allow changes to process safety 

requirements without APA notice and comment rulemaking. See Exhibit 2, CSB Report at 105-

06. It is one thing for an agency to issue guidance to provide more details on compliance to 

existing regulatory requirements, and yet another to suggest (as the CSB does in its Report) that 

completely new substantive requirements, based on new technology, incident investigation 

reports, and safety codes (such as consensus standards) could be imposed on employers without 

the opportunity and due process rights to participate in its development. ACC further disagrees 

with the CSB‘s conclusion in Appendix B that the safety case regime (as proposed by the CSB) 

is somehow consistent with the Regulatory Flexibility Act and its underlying principles. The 

purpose of the Regulatory Flexibility Act is to ensure adequate opportunity to participate in 

transparent rulemaking. See 5 U.S.C. §§ 601 et seq.
DB1/ 78326798.1 18

B. A Safety Case Regulatory Regime Represents A Drastic Policy Change From 

The Current Regulatory Framework With No Corresponding Benefits For 

Workplace Safety

The CSB Report described the safety case regulatory regime as a ―rigorous prescriptive 

and goal-setting regulatory approach applied globally both onshore and offshore.‖ See Exhibit 

2, CSB Report at 9. Under this regime, ―[a] written case for safety, known as the safety case 

report, is generated by the duty holder and is generally rigorously reviewed, audited, and 

enforced by highly technically competent inspectors with skill sets familiar to those employed 

by the industries they oversee.‖ See id. Moreover, ―[i]n order for the facility to begin operation 

or remain in operation, the regulator must  ̳accept‘ the facility‘s safety case report.‖ See id. at 39. 

This CSB‘s proposed framework would shift the burden to the regulator to review and evaluate a 

wide set of site-specific information, which regulators will be ill-equipped to handle, without any 

real objective measures. As fully explained in our comment to the CSB (see Exhibit 2), ACC 

believes that the current framework of PSM is better suited to enhance workplace safety. In fact, 

under the current well-recognized regulatory framework, which provides employers with the 

necessary discretion to tailor safety processes to the specific conditions of each worksite, ACC 

members supplement the PSM elements and implement a program that includes many of the 

elements in the safety case framework. 

Under OSHA‘s PSM standard, an employer team with expertise in engineering and process 

operations must address the hazards of the process, identification of prior incidents that had 

potential for catastrophic consequences, engineering and administrative controls (and their 

interrelationships and the consequences of their failures, including a qualitative evaluation of 

possible safety and health effects on employees), facility siting, and human factors. See 29 

C.F.R. § 1910.119(e)(3). After notice and comment rulemaking, OSHA modified Subsection 

1910.119(e) ―so that employers are not required to implement every recommendation offered by 

a Process Hazard Analysis Team,‖ although employers must consider all recommendations. See

Preamble to Process Safety Management of Highly Hazardous Chemicals, Explosives and 

Blasting Agents, 57 Fed. Reg. 6356-01 (Feb. 24, 1992) (PSM Preamble) (emphasis added). As 

clearly stated in the PSM Preamble, ―[i]t is critically important that a PHA Team have freedom 

to make broad recommendations, at risk of being wrong . . . . [W]hen a team recommendation is 

incorrect, the employer can analyze it and then document in writing why the recommendation is 

not being adopted or is being adopted with modification.‖ See id. (emphasis added). OSHA 

intentionally delegated the responsibility to evaluate and reject or implement site-specific 

recommendations to the employer. The employer, after all, is most familiar with the site, safety 

concerns, and practical hurdles to and consequences of operational changes. 

In contrast to the current OSHA programs, under the proposed safety case regime, 

regulators who are not intimately familiar with technical aspects of the worksite or involved in 

process safety analyses would make the ultimate decision to accept or reject a safety program. 

Again, the CSB Report‘s safety case regime requires up-front ―acceptance‖ from ―highly 

technically competent inspectors with skill sets familiar to those employed by the industries 

they oversee.‖ See Exhibit 2, CSB Report at 9. General industry knowledge from inspectors, 

however, may not be enough; ACC respectfully submits that individual facilities, with onsite 

safety experts and engineers who are intimately familiar with the jobsites, have the most 

sophisticated understanding of site-specific safety conditions. ACC is concerned that a safety 
DB1/ 78326798.1 19

case regulatory regime ultimately would rob employers of the necessary discretion over how 

best to handle safety on their particular worksites. Prior acceptance by inspectors with unknown 

backgrounds who are unfamiliar with the jobsites would impede employers‘ ability to make 

safety decisions quickly and effectively. ACC believes that shifting responsibility to approve 

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

jobsites, would be ill-advised. 

C. Employers—Not Regulators—Are In A Better Position To Implement Many 

Of The Elements Of The Safety Case Regime

The CSB justifies its recommendations for the safety case regulatory framework based on 

an assumption that the current PSM framework is ―reactive‖ and ―activity based,‖ and that the 

PSM has become static and does not address the development of new technologies, new safety 

approaches, and ―advancing best practices.‖ See Exhibit 2, CSB Report at 9. The CSB contends 

that the current system is so focused on specific tasks and activities that it does not drive the 

achievement of continuous risk reduction. See id. Thus, the CSB advances the argument 

(relying on an unsupported third-party report) that the PSM system is a ―minimum cost‖ and 

―compliance based approach,‖ in which employers purportedly take the approach that if it is not 

a ―regulatory requirement,‖ then they will not actually comply. See id. at 30. The CSB also 

raises the concern that the PSM regulatory framework does not direct employers to develop a 

holistic safety management system approach to process operations. See id. at 29-32.

In the alternative, the CSB outlines what it describes as the ―key features‖ of an 

―effective major accident prevention‖ approach such as the safety case regime: (1) duty holder 

safety responsibility, including a written case for safety; (2) continuous Risk Reduction to As 

Low As Reasonably Practical (―ALARP‖); (3) adaptability and continuous improvement; (4) 

active workforce participation; (5) Process Safety Indicators that drive performance; (6) 

regulatory assessment, verification and intervention; and (7) an independent, competent, wellfunded regulator. See id. at 36. 

ACC strongly disagrees with these purported observations and conclusions. The 

chemical industry, without the direction of regulators, continues to challenge its understanding of 

process safety through the ongoing development of hazard identification and analysis tools. For 

example, the industry has gone beyond the requirements of PHA through enhanced 

self-analytical processes with layer of protection analyses (―LOPAs‖), fault tree and event tree 

analyses, as well as full-blown quantitative risk analyses. 

Since promulgation of the Process Hazard Analysis (PHA) and PSM, the chemical 

industry continues to strive for improvement. For example, ACC and its members already have 

taken the lead in developing a new paradigm of process safety that not only complements the 

current regulatory structures (PSM and RMP), but goes beyond the current regulatory 

requirements to require the broad framework of a safety management system. This system 

results in a culture of continuous improvement, all without the intervention of a regulator and 

under the discretion of the employer, who has better understanding of the specific workplace 

conditions. ACC requires each member to achieve certain goals in the Responsible Care®

Management System and the RC14001 Technical Specifications, including the following: (1) to 

make continual progress toward the aim of no accidents, injuries, or harm to human health or the 
DB1/ 78326798.1 20

environment; (2) to design and operate facilities in a safe, secure, and environmentally sound 

manner; (3) to install a culture throughout all levels of member organizations to continually 

identify, reduce, and manage process safety risks; (4) to support research on the health, safety, 

and environmental effects of member products and processes; and (5) to communicate product, 

service, and process risks to our stakeholders. Conformance to these goals and practices is 

confirmed through voluntary third-party audits conducted on ACC members.

Specifically, each ACC member must commit to implementing and adhering to the 

following process safety management practices: 

(1) Leadership and Culture – Senior management and leadership are committed to 

establishing and communicating process safety as a core value and enforcing high 

standards of performance at all levels within the organization. Company leadership also 

promotes and develops a process safety culture within the organization, encouraging 

openness to raise concerns and identify opportunities for improvement. 

(2) Accountability – Process safety roles and responsibilities across the organization are 

clearly defined and include an expectation to identify, and authority to respond to, 

process safety concerns. Senior leaders are held accountable for process safety 

performance, while employees understand the importance of process safety as it applies 

to their jobs and are responsible for following and contributing to the work processes to 

achieve improvement in company process safety performance.

(3) Knowledge, expertise and training – Process safety competency requirements are 

established and executed for management, engineering, and operational personnel, as 

well as contractors and third-party service providers, commensurate with the activities 

performed. 

(4) Understanding and prioritization of process safety risks – Member companies identify 

and understand the hazards and risks of their processes and implement systems for 

documenting and accessing comprehensive and current information on process-related 

hazards and risks to enable informed decision-making. 

(5) Comprehensive process safety management system – Member companies design 

systems to manage and mitigate identified risks with adequate safeguards. Management 

of process safety considers passive controls; engineering controls; operational controls; 

inherently safer approaches; inspection, maintenance, and mechanical integrity programs; 

management of change procedures; and scenario planning. 

(6) Information sharing – Member companies establish processes fostering two-way flow 

of information between management, employees, contractors and other stakeholders to 

share process safety information, ensuring that experiences from process safety reviews, 

inspections, audits, and incident and near-miss investigations are shared, as relevant, 

across the company in a timely manner. 

(7) Monitoring and improving performance – Senior management and leadership 

continually monitor process safety performance through routine evaluation of process 

safety management systems, independent of regulatory audits, to confirm that the desired 

results are achieved, using appropriate leading and lagging indicators. Results are 
DB1/ 78326798.1 21

reviewed at planned intervals to determine progress against process safety performance 

expectations and to take action to improve performance when needed. 

Under the Responsible Care® program, each ACC member is required to demonstrate 

compliance with each of these elements. Thus, members not only already implement so-called 

―key features‖ identified by the CSB as the justifications for the safety case proposal, but, in fact, 

go beyond what the CSB suggests in its safety case proposal.

For example, the CSB states that one of the ―key strength[s]‖ of the safety case regime is 

that it provides the regulator ―with the tools to drive continuous improvement‖ to reduce risks to 

ALARP, rather than ―focusing on compliance with activity-based regulatory requirements.‖ See

Exhibit 2, CSB Report at 43. Yet, ACC members already implement a wide variety of steps to 

achieve the goal of continuous improvement and risk reduction to ALARP; those steps include 

the development and implementation of a comprehensive process safety management system to 

manage process risks and the development of a safety culture to manage those same risks. In 

fact, ACC members already undergo voluntary audits to demonstrate compliance with this 

program. ACC believes that its members are best situated to take the lead role in developing and 

overseeing programs suited for their particular facilities, rather than the approach envisioned by 

the safety case regime where the regulator (without any history or knowledge of a particular 

facility) must review and oversee the program. Further, ACC does not agree with the CSB 

regarding the need to completely redesign the approach to process safety where ACC members 

already have a program in place addressing the ―key features‖ cited by the CSB to justify the 

safety case regime. 

D. Regulators’ Review Of Subjective Criteria Without Objective Benchmarks 

Under The Recommended Safety Case Framework Would Be Difficult To 

Implement And Follow

The safety case regime described in the CSB Report would require inspectors to review a 

safety case for ―acceptance‖ through use of subjective criteria that lack objective benchmarks. 

Although the report calls for ―highly technically competent inspectors with skill sets familiar to 

those employed by the industries they oversee,‖ inspectors‘ ability to accurately evaluate these 

factors, and to do so consistently across local offices of regulators and facilities, is questionable. 

These factors are inherently subjective and difficult to review without extensive training and 

knowledge of the site, the organization, and its history. 

Allowing inspectors to evaluate such subjective criteria raises practical issues over what 

various regulators will require. Currently, the standard that would be imposed by investigators 

for approval is vague and provides little notice of what constitutes compliance. For example, the 

anticipated application of the ALARP standard by regulators is extremely unclear—how will 

inspectors evaluate whether a facility has satisfied the ―reasonably practical‖ standard? Will 

different offices of the regulatory agency have differing positions on what is required to be in 

compliance with these inherently subjective factors? How would an inspector be able to 

ascertain ALARP standards without a roadmap for tracing the unit‘s assessment process for each 

element under question? An employer, and not a regulator, is in the best position to know what 

is reasonably practical within the framework of its own risk evaluation process, experience, 

incident history, engineering assessment, and other self-analytical tools.
DB1/ 78326798.1 22

Along the same lines, the CSB does not explain what standard a regulator must follow 

before an employer‘s safety case is ―accepted.‖ Unless quantified and/or delineated criteria are 

published, the regime will be ineffective and provide little notice as to what is actually required 

of employers. There will be a strong risk that disparate, incongruous ―acceptable‖ solutions will 

exist, depending on the individual inspectors involved, simply because there are no set standards. 

In short, the safety case framework purports to be a prescriptive regime that requires employers 

to meet a minimum benchmark of acceptability, yet the CSB Report fails to set forth any clear 

benchmarks or articulate how such benchmarks would actually be developed and ultimately 

communicated to stakeholders. 

This uncertainty created by the CSB proposal raises legal issues as well. A regulation is 

―unconstitutionally vague under the due process clause of the Fifth or Fourteenth Amendments if 

it  ̳forbids or requires the doing of an act in terms so vague that men of common intelligence 

must necessarily guess at its meaning and differ as to its application.‘‖ Ga. Pac. Corp. v. 

Occupational Safety & Health Review Comm’n, 25 F.3d 999, 1005 (11th Cir. 1994) (citation 

omitted) (finding the phrase ―obstructs forward view‖ to be insufficiently defined, and therefore 

unconstitutionally vague); see also Diamond Roofing Co. v. Occupational Safety & Health 

Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976) (―[A]n occupational safety and health 

standard must give an employer fair warning of the conduct it prohibits or requires.‖). Simply 

put, ACC believes that the elements of the safety case regime that an employer is required to 

follow before the safety case is ―accepted‖ by the regulator (to allow the employer to use or 

operate its facility) are unacceptably subjective and unclear. The entire essence of the CSB 

proposal for safety case is succinctly stated on page 37 of the Report: ―the onus is on the duty 

holder [i.e., employer] to prove to the regulator that the company‘s processes, methodologies 

used to assess risks, and reasoning for choosing one control over another have substantially 

reduced risks to as low as reasonably practicable (ALARP), or equivalent.‖ See Exhibit 2, CSB 

Report at 37 (emphasis added). In practical reality, employers would simply not have notice as 

to what is required of them. Employers—including ACC members—would be subject to 

oversight by a regulator (no matter how well trained) with less of an understanding of the wide 

range of complex issues at a particular site at stake in the development of the appropriate process 

safety. 

E. No Agency Should Move Forward With A Safety Case Regime Without A 

Realistic Cost Assessment

Finally, ACC emphasizes the huge financial and personnel commitments necessary to 

implement a safety case regime, not to mention the resource commitment required to ensure that 

such a regime is in any way effective. For example, the CSB Report stated that the safety case 

regime could only succeed if the relevant state or federal agency undertook significant 

commitments to its implementation, including: 

 an ―independent, well-funded, well-staffed, technically competent regulator‖; and 

 a compensation system to ensure that the regulator can attract employees ―with the 

necessary skills and experience to ensure regulator technical competency.‖

See Exhibit 2, CSB Report at 90-91 (outlining recommendations to California and OSHA). A 

safety case program could only work if fully staffed with experts to implement the regime‘s 
DB1/ 78326798.1 23

procedures and set its limits, including staff with appropriate technical backgrounds and industry 

experience to evaluate and approve Safety Case Plans. 

Yet, similar upfront inspection goals have failed due to resource limitations, such as, for 

example, the inability of the EPA to conduct proactive audits of RMPs. See Exhibit 2, CSB 

Report at 62-63 (the ―EPA has not effectively implemented the audit and inspection elements‖ of 

RMP; according to IG report, 50 percent of high-risk RMP sites have never received an on-site 

inspection and over 65 percent of all RMP sites have never received an on-site inspection since 

the program began in 1999). ACC understands that there are approximately 14,000 RMP sites in 

the United States, and, of note, ACC believes that the number of refineries and other facilities 

envisioned to be covered under the CSB‘s proposed safety case regime would be even greater. 

At the end of the day, ACC believes that the lack of staff sufficiently trained to properly evaluate 

and enforce such complex regulatory requirements would lead to a chaotic and ineffective 

regulatory regime, and would doom this program to failure. 

F. ACC Has Seen No Persuasive Justification For A Safety Case Regulatory 

Regime 

ACC has seen no persuasive evidence to support the view that a safety case regime would 

be safer than enforcement of the current regulation. To move forward with a safety case regime, 

agencies should establish what deficiencies in the current regulations, if any, the safety case 

regime would address. ACC remains skeptical that quantitative, scientifically-based support for 

the safety case regime exists. 

For example, the CSB Report maintains that ―regulatory approaches similar to the safety 

case regulatory regime, which require risk reduction to ALARP or equivalent, have been 

implemented in the nuclear sector by the Nuclear Regulatory Commission (NRC) and the 

aerospace sector by NASA.‖ See Exhibit 2, CSB Report at 11; see also id. at 34-35 (explaining 

that (1) the NRC has adopted a performance-oriented regulation with a license requirement that 

includes overall goals to reduce risks to as low as reasonably achievable, or ALARA, and (2) 

NASA utilizes the goal of a safety system that reduces risk to as safe as reasonably practicable, 

or ASARP). Drawing conclusions for chemical facilities and refineries from NASA‘s and/or the 

NRC‘s experiences with safety case regimes, however, is inappropriate. NASA and the NRC 

deal with extremely narrow and specific technologies, equipment, and operations, involving high 

consequence of failure on a scale completely different than that presented by the chemical 

industry. NASA‘s and NRC‘s coverage is in sharp contrast to the broad-base and wide range of 

facilities of ACC members, with vast differences in size, scope and operation. What might work 

in a narrowly defined operation, such as NASA‘s role in space exploration or the NRC‘s role in 

oversight of the nuclear power industry, simply would not work in the environment within which 

ACC members operate. 

Moreover, the incidents listed in the CSB Report as justifications for the imposition of 

the safety case regime largely involve accidents that are in dispute and/or otherwise inapplicable 

and insufficient to support the shift to this completely different regulatory approach. For 

example, the CSB Report Appendix A lists ―Significant Petroleum Refinery Incidents in 2012,‖ 

yet ACC remains skeptical that this list appropriately captures so-called significant petroleum 

refinery incidents. Based on information provided by our members, we understand that several 
DB1/ 78326798.1 24

incidents listed are minor or highly disputed. ACC would like more information regarding how 

the list was compiled and the extent to which it influenced policy and/or supported an argument 

for a safety case regime. ACC believes that these incidents cannot support the imposition of the 

burdensome safety case regulatory regime.

2(I)(m) Should the agencies evaluate the implementation of safer alternatives and best practices, 

and what are the best methodologies for accomplishing this? Safer alternatives and practices 

involve improving safety by reducing or eliminating hazards inherent in industrial processes. 

These alternatives and practices may involve reducing the amount of a hazardous substance kept 

on-site, or entirely eliminating the hazardous chemical by utilizing an alternative chemical 

pathway or safer intermediate chemicals. Promoting the use of safer alternatives and practices 

could occur through industry programs (e.g. Responsible Care, ChemStewards, and Responsible 

Distribution), by issuing alerts and guidance under EPA‘s RMP program and OSHA‘s PSM 

standard to increase knowledge and awareness of industry standards, through development and 

broad availability of a resource center where process safety experts share safer alternative 

techniques, and through potential rulemaking. Several stakeholders also have suggested 

incorporating ―inherently safer technologies‖ into risk and process safety programs and the 

agencies are requesting additional information on how this would be defined, accomplished, and 

measured. In addition, the agencies are requesting comment on the potential costs and benefits of 

implementing such an approach as opposed to other approaches.5

While ACC Encourages Voluntary Consideration Of Inherently Safer Technologies, ACC 

Strongly Opposes Its Incorporation Into Regulation

ACC and our member companies proactively work to continuously improve process 

safety standards and practices with comprehensive management systems that include 

consideration of inherently safer technologies. Process safety is only one part of safety. The 

business of chemistry has a culture of safety going back many years. The nature of our 

operations requires it. This culture of safety has created what Labor Department data reveals is 

one of the safest industries in the United States. As a result, ACC‘s Responsible Care companies 

have a worker safety rate that is five times better than the U.S. manufacturing sector as a whole, 

and nearly three times better than the business of chemistry overall. ACC member companies 

have reduced the number of safety incidents that result in a product spill, fire, explosion or injury 

by 58% since 1995. This commitment to safety is expressed through Responsible Care®, our 

industry‘s initiative for improving performance; our adherence to, and support for, governmental 

standards and research; and our longstanding and effective partnerships with local, state and 

federal government agencies. ACC believes that the EO Working Group should promote the use 

of safer alternatives and practices by (1) encouraging industry programs (e.g., Responsible Care, 

ChemStewards, and Responsible Distribution), (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 and address site-specific needs 

better than what could be accomplished through additional regulation. 

 

5 The comment to Option 2(I)(m) also applies to Option 1(e), which asks for input regarding safer alternatives and 

best practices for ammonium nitrate. 
DB1/ 78326798.1 25

ACC believes that a regulatory approach focusing on safer alternatives would be 

counterproductive. The EO Working Group is charged with examining best practices to reduce 

safety and security risks in the production and storage of hazardous chemicals, including the use 

of safer alternatives. To meet this charge, instead of incorporating safer alternatives, the EO 

Working Group should involve throughout its efforts stakeholders who possess the requisite 

knowledge and experience to help identify best chemical risk management practices and to 

establish the definition and scope of what is considered a ―safer‖ alternative, when compared to 

an existing process or chemical. As described in the CCPS and AIChE Report6on the definition 

of IST, ―safer‖ only has a meaning when placed in proper context—factors such as risk shifting, 

unintended consequences, feasibility, and economic impact must be considered. This definition, 

along with other well-established industry references on IST, should be used in the EO Working 

Group‘s discussions of safer alternative best practices.

In addition, the suggestion that legislation is needed to require the use of IST irrespective 

of the cost, risks, or an engineering analysis raises concerns. IST decisions must be processand/or site-specific, feasible, and avoid shifting risk. In many cases, regulation-based mandatory 

IST policies are not feasible because they do not consider the numerous factors related to 

processes, facilities and society at large. As such, many proposed regulatory approaches have 

failed to address the potential for trading one risk for another. A regulatory program focused 

exclusively on eliminating a safety hazard would overlook other important considerations for a 

process change. While IST is a widely recognized chemical engineering philosophy, no 

methodology or relative comparisons are available to apply IST to a regulatory framework. 

EPA understood the complexity of IST decisions when it promulgated the regulations for 

the RMP Rule. EPA stated that it did not believe that an IST requirement would produce 

additional benefits beyond those existing under the general program structure.7 EPA 

acknowledged that assessment of inherently safer design alternatives has the greatest benefit in 

the development of new processes. Industry generally examines new process alternatives to 

avoid the addition of more costly administrative or engineering controls to mitigate a design that 

may be more hazardous in nature. Although some existing processes may be superficially 

judged to be inherently less safe than other processes, EPA believed these processes could be 

safely operated through management and control of the hazards without spending resources 

searching for unavailable or unaffordable new process technologies. If EPA is considering 

changing its view, stakeholder input would be essential. 

Inherently safer approaches or safer alternatives have been and will continue to be 

considered by facilities as a matter of course. In fact, one of the key elements under ACC‘s 

Responsible Care Process Safety Code requires ACC member companies to consider safer 

alternatives as one of many risk reduction measures when conducting a risk assessment. The 

facility operator is in the best position to have a comprehensive picture of what may or may not 

 

6 Center for Chemical Process Safety, The American Institute of Chemical Engineers For Chemical Security 

Analysis Center Science & Technology Directorate, U.S. Department of Homeland Security, Final Report: 

Definition for Inherently Safer Technology in Production, Transportation, Storage, and Use (July 2010).

7

See EPA Preamble to Final Rule, Accidental Release Prevention Requirements: Risk Management Programs 

Under Clean Air Act Section 112(r)(7), 61 Fed. Reg. 31,668 to 31,730 (June 20, 1996), available at 

http://www.gpo.gov/fdsys/pkg/FR-1996-06-20/html/96-14597.htm. 
DB1/ 78326798.1 26

work and how the facility environment will be impacted by process changes. Companies must 

be permitted to continue to use all risk management tools and options at their disposal, and the 

consideration of available options must be placed in the context of the complexities of their 

unique operating environments. Because of these complexities, regulating the use of ―safer 

alternatives‖ is not feasible. No one regulatory program addresses the holistic safety and 

security environment of a given facility. No agency can fully appreciate the entirety of a 

facility‘s operations, and therefore no agency can effectively regulate use of ―safe alternatives.‖ 

For example, EPA, under RMP, is concerned with preventing accidental releases of 

hazardous chemicals offsite and mitigating the consequences of such releases. Separately, 

OSHA‘s PSM is concerned with preventing or mitigating the consequences of catastrophic 

releases of industrial processes in the workplace. While it is important to recognize that there 

may be overlap between the programs, they, by design, do not address the same issues. 

Therefore, any ―safer approach‖ requirement that might be proposed to enhance any one of these 

programs would have to be limited in scope. Taken together for individual employers, however, 

the array of existing regulatory programs encourages facilities to consider and implement sitespecific safer alternatives where necessary.

In the end, ACC‘s members and industry are committed to chemical safety and recognize 

IST as one of many potential tools to achieve this goal. See Multi-Association Letter on IST 

(attached hereto as Exhibit 3); CCPS Executive Director Scott Berger, Comments to US Senate 

Environment and Public Works Committee Hearing (March 6, 2014) (attached hereto as Exhibit 

4); CCPS Executive Director Scott Berger, Comments to the EPA Listening Session (February 

27, 2014) (attached hereto as Exhibit 5). Recommendations to require the documented use of 

inherently safer systems analysis is inappropriate and founded upon erroneous suppositions. IST 

is a complex concept that requires a holistic risk assessment approach. Current regulatory 

programs, as well as corporate practices, already encourage facilities to incorporate IST. As they 

exist today, OSHA‘s PSM standard, EPA‘s RMP Rule, the U.S. Department of Transportation‘s 

(DOT‘s) Hazardous Materials regulations under the Pipeline and Hazardous Materials Safety 

Administration (PHMSA), and the U.S. Department of Homeland Security‘s (DHS) Chemical 

Facility Anti-Terrorism Standards (CFATS) all require operators to comprehensively examine 

operations and take all steps necessary to make the processes and environment safe and secure. 

Creating complex new IST regulations would provide little benefit and may hinder the federal 

government‘s ability to implement existing safety and security programs by emphasizing IST 

over other potentially more appropriate process safety and security techniques.

A. Definitions

The term IST encompasses several terms of art, including inherent safety, that are used 

by experts in the field of process safety. ACC has adopted the definitions of these terms that 

were developed by DHS‘s Chemical Security Analysis Center (CSAC) and CCPS. CSAC and 

CCPS ―produced a short, scientific definition of IST‖ as follows: 

INHERENTLY SAFER TECHNOLOGY DEFINITION

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

permanently eliminates or reduces hazards to avoid or reduce the consequences of 
DB1/ 78326798.1 27

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.

CCPS & DHS, Final Report: Definitions for Inherently Safer Technology in Production, 

Transportation, Storage, and Use at Section 3.1 (July 2010).

Further, inherent safety is an element of plant design, process and transportation safety, 

and customer applications. While IST has been implemented within our industry for decades, 

certain high-profile incidents have been the catalyst for agency rationalization that inherent 

safety could provide benefits by minimizing the consequences of a chemical incident. However, 

by its very definition, ―inherent safety‖ means safety and security elements that are built into a 

process in the early stages of its life cycle, thereby limiting the need to add these elements as 

―layers of safety‖ as a part of the process risk management program. Process risk management, 

which is illustrated in Figure 1 below, involves ―collective efforts to manage process risks 

through a wide variety of strategies, techniques, procedures, policies and systems that can reduce 

the hazard of a process, the probability of an accident, or both.‖ See CCPS Concept Book, 

Inherently Safer Chemical Processes, A life Cycle Approach, at 11 (2d ed. 2008). 

 

B. Inherent Safety Strategies

The strategies used in chemical process engineering to reduce or eliminate risks 

associated with containment of hazardous chemicals or energy are listed below:

1. Minimization/Intensification. Using smaller quantities of hazardous 

substances within the process. This can be accomplished by a variety of 
DB1/ 78326798.1 28

means, such as reducing or eliminating in-process storage, using fewer pieces 

of equipment, or using equipment that holds smaller volumes. 

2. Substitution. Replacing a particular material with a less hazardous substance 

is sometimes possible if the chemistry of the process will allow it. For 

example, helium, which does not burn, is an inherently safer source of 

buoyancy for blimps than hydrogen, which is highly combustible. Likewise, 

water-based paints are inherently safer than oil (solvent)-based paints. 

3. Moderation/Attenuation. Adopting practices that support less hazardous 

conditions (such as lower temperature or pressure) or a less hazardous form of 

material can be utilized if the chemistry of the process allows it. An example 

might be the use of a catalyst to lower the temperature of a reaction required 

to achieve the same level of conversion.

4. Simplification/Error Tolerance. Designing to eliminate or tolerate operating 

errors; making the plant more user-friendly and reliable. A simple example is 

the redesign of pop tops on aluminum beverage cans so that the tab does not 

come off when opened, thus eliminating the prospect of the person opening 

the can (or anyone else) getting cut by the top. An extreme example, Safety 

Instrumented Systems, eliminates the interaction of the operator with the 

process altogether. 

See id. at 13. It is important to understand that even when properly implemented, these strategies 

cannot reduce process-related risk to zero, and that ―there are often, and perhaps always, 

conflicting benefits and liabilities associated with the different options.‖ See id. at 30. Reducing 

one hazard may create a new hazard and/or increase the magnitude of an existing hazard. This 

highlights the need for those making IST decisions to have intimate knowledge of all the hazards 

associated with a process and its alternatives.
DB1/ 78326798.1 29

Figure 1. Process Risk Management Lifecycle. 

Source: CCPS Concept Book, Inherently Safer Chemical Processes, A life Cycle Approach (2d 

ed. 2008)

C. History Of IST Application 

The concept of inherent safety was developed decades ago by an industry chemist. 

Inherently safer design and technology have long been core elements of process safety, plant 

design and sound business practices in the chemistry industry. Recent public debate around IST 

demonstrates a fundamental lack of knowledge about the presence of IST throughout the United 

States chemical industry. The debate also highlights the potential heterogeneity within the 

industry regarding the application of IST. 

EPA and OSHA regulations also drive consideration of inherently safer approaches. 

OSHA‘s PSM standard and EPA‘s RMP Rule both require the use of PHA. These federal 

ACTIVITIES STEPS

1. Identify hazards and assess risk against risk management 

objectives. If necessary to further reduce risk, apply Steps 2-5.

2. Apply inherently safer 

strategies to the hazards 

and design of the entire 

plant 

2.a. Eliminate the hazards 

altogether 

2.b. Reduce the absolute 

magnitude of severity or 

impacts of an incident

2.c. Reduce the likelihood 

of an incident or 

escalation of an incident

AVOID HAZARDS

3. Apply inherently safer 

strategies to the design of 

layers of protection 

3.a. Use passive 

safeguards for prevention,

control, and mitigation

3.b. Use active safeguards 

for prevention, control, 

and mitigation

APPLY PASSIVE 

SAFEGUARDS

REDUCE SEVERITY

REDUCE LIKELIHOOD

APPLY ACTIVE 

SAFEGUARDS

3.c.. Use procedures for 

prevention, control and 

mitigation

APPLY PROCEDURAL 

SAFEGUARDS

1

st Inherent Safety (IS) order IS 2nd order IS Layers of Protection

4. Iterate through inherent safety and layers of protection 

safeguards until risks are tolerable per objectives in Step 1.

CONSIDER HAZARDS 

UNTIL GOALS ARE MET
DB1/ 78326798.1 30

programs mirror ACC‘s Responsible Care management system for process safety, on which 

those two regulations are modeled. Under this approach, a PHA is defined as ―periodic 

assessment and documentation of process hazards, and implementation of actions to minimize 

risks associated with chemical operations, including the possibility of human error.‖ When EPA 

promulgated the RMP Rule, some commenters asked EPA to require facilities to conduct 

―technology options analyses‖ to identify inherently safer approaches. EPA declined to do so, 

stating:

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

for risk reduction, which may include features such as inventory reduction, 

material substitution, and process control changes. These changes are made as 

opportunities arise, without regulation or adoption of completely new and 

unproven process technologies. . . . EPA does not believe that a requirement that 

sources conduct searches or analyses of alternative processing technologies for 

new or existing processes will produce additional benefits beyond those accruing 

to the rule already. 

See EPA Preamble to Final Rule, 61 Fed. Reg. 31,699 (June 20, 1996) (emphasis added). EPA 

thus recognized how unwise it would be for government to make judgments about what 

constitutes inherently safer approaches.

D. Rationale For Consideration Of IST

Because ―inherently safer‖ is a way of thinking and involves a risk management 

approach, any legislative and regulatory approaches to addressing IST cannot be prescriptive. 

The chemical industry can and does consider inherently safer principles as a part of individual 

company risk management processes and mitigation techniques, including the use of formal riskassessment and risk-minimization technology, which are already being applied to chemical 

processes. This approach must consider total risk8and the economic burden to potentially 

regulated facilities – as potential hazard does not always equate to potential risk, and cost could 

far outweigh potential benefit.

The public is best protected by focusing on risks, not hazards. As the United States 

Supreme Court explained in the Benzene case, 448 U.S. 607 (1980) (J. Stevens, plurality), 

accepting the possibility of even deadly consequences (for example when driving a car) is a part 

of participating in society; the real question is not whether the consequence is serious, but rather 

the risk, the likelihood that the consequence occurs. While many groups focus only on reducing 

hazards, the best way to protect workers, community and the environment is to focus on risks, 

that is, to analyze which hazards are most significant and which threats are most likely. Then 

resources can be allocated in the most effective and efficient way. If the focus is only on hazard 

reduction, the most important risks are overlooked and resources squandered on less important 

initiatives. The challenges associated with regulating employers‘ consideration of IST include 

the following:

 

8 The total risk approach in this context seeks to minimize risks overall from the transportation, storage and use of 

chemicals.
DB1/ 78326798.1 31

 Acknowledging that risk elimination is not possible in all cases. Without such 

acknowledgement, industry would be required to continually attempt to evaluate and 

implement some form of IST, with no real safety benefit and at a potentially significant 

cost. It is conceivable that without proper definition of an acceptable endpoint, industry 

could be required to continually modify processes due to a constantly changing 

understanding of IST, resulting in a never-ending cycle of modification and increasing 

cost.

 Clarifying regulatory implications of the meaning of ―consideration of safer alternatives.‖ 

For example: 

o What decision-making criteria will be required for acceptance/rejection of IST at 

various stages of an IST evaluation process? Are economic considerations alone 

enough to reject an IST solution in favor of some other method of protection 

(such as instrumented safety systems (active protection))?

o When should an IST evaluation process be carried out during the plant life cycle, 

and in relationship to (potential) scientific developments behind the IST?

 Establishing the role of existing federal/state/local requirements and of existing facility

inherently safer measures.

 The limitations for a company‘s ability to modify processes due to trade secret and 

proprietary information issues. See ACC IST Materials, Factors that Affect IST Decision 

Making & Examples of Limitations of Mandating Inherently Safer Approaches (attached 

hereto as Exhibit 6, Attachment 1). 

 Adapting the process risk management approach to a regulatory framework.

 Risk-shifting from one potentially exposed population to another. How would the 

agencies envision evaluating risk-shifting in determining what is inherently safer? 

The EO Working Group will need to address these issues and questions if it is to develop and 

advocate a regulatory framework with any IST requirements.

E. Rationale Against Mandatory IST

While certain types of existing processes can accommodate retrofit IST, many cannot. 

There are now a sufficient number of both theoretical and actual, well-intended examples of IST 

approaches that are meant to solve what appear to be straightforward safety and risk issues, but

could or have resulted in trading one risk for another. Thus, mandatory, regulated IST would 

frequently create risks to workers and the public greater than before. Placing the decision of 

technology selection into the hands of regulators will never be the answer to the complex 

questions of if, what, how and when IST should be implemented. It is simply beyond the ability 

of any single regulatory entity to understand and make good judgments about what would 

constitute an inherently safer approach in every relevant setting. The administrative decisionmaking process is not well suited to making decisions based on risks, tradeoffs, and predictions 

about future risks that are unavoidable in inherently safer approaches. 

Even if the burden of making choices was left up to facilities via a ―performance-based‖ 

requirement, it would be unreasonable to create civil and criminal liability for facilities‘ inability 

to have 100% foresight about future risks, or to make the right choices when there are no right 

answers. Factors that complicate mandating IST are described in ACC IST Materials, Example 

of IST scenario involving proprietary information (attached hereto as Exhibit 6, Attachment 2), 
DB1/ 78326798.1 32

along with examples of the unintended adverse consequences of certain real and theoretical IST 

decisions.

2(I)(n) How should EPA and OSHA use RMP accident data to identify trends and use the 

information to develop guidance or regulatory changes, compliance priorities, and technical 

assistance? If so, what are the ways that this might be done? RMP covered facilities are required 

to submit accidental release data to EPA when a release meets certain criteria, such as causing 

on- or off-site injuries or significant property damage. OSHA and EPA are interested in 

recommendations on how best to analyze this data, and what trends may be developed to indicate 

industry safety performance. Data are available from EPA via the Freedom of Information Act. 

ACC Knows Of No Complete And Accurate Data Set From Which To Identify Trends And 

Justify Regulation

In December 2007, a Final Report was issued for Cooperative Agreement R‐83033301 

between the Risk Management and Decision Processes Center within the Wharton School of the 

University of Pennsylvania, and the U.S. Environmental Protection Agency Office of Emergency 

Management. The study, entitled ―Accident Epidemiology and the RMP Rule: Learning from a 

Decade of Accident History Data for the U.S. Chemical Industry,‖ culminates some 15 years of 

research on the RMP Rule in close cooperation with the Office of Emergency Management 

(OEM) at the EPA. The report describes analysis undertaken by an interdisciplinary team of 

researchers on accident history data collected under the Clean Air Act Section 112(r) (which was 

enacted as part of the Clean Air Act Amendments of 1990 and is referred to as the ―Risk 

Management Program‖ or ―RMP Rule‖). 

The EO asks how EPA and OSHA can use RMP accident data to identify trends to justify 

the development of guidance, regulatory changes, compliance priorities and/or technical 

assistance. ACC reviewed the report and found no valid EPA RMP data trends that would 

justify a shift in RMP or PSM program management. Moreover, the study had limitations on the 

data collection process that would likely bias the results of the quantitative analysis and 

compromise the conclusions. For example, the study confirmed that the first wave of filings9

contained ―data entry errors by responding facilities‖ in the number of deaths reported and how 

the location of a facility was reported. There were similar challenges to the validity and 

reliability of the data surrounding understanding and selection of North American Industry 

Classification System (NAICS) manufacturing processing codes, ambiguity of size of facility (as 

measured by full-time equivalent employees), and the reporting chemicals held onsite — all of 

which would ultimately impact whether or not a facility is covered under RMP. These matters 

regarding key data elements raise concerns about the quality of data obtained under RMP*Info 

(the database resulting from the study) in the initial submissions in 1999-2000 and could be 

interpreted in dissimilar manners, leading to under- or over-reporting of hazardousness. Thus, 

 

9 Data were collected in 1999-2000 on 15,145 facilities in the United States that stored or used listed toxic or 

flammable chemicals believed to be hazardous to the environment or to health of facility employees or off-site 

residents of host communities. A second major set of data under the RMP Rule became available in 2004-2005, 

covering 12,065 facilities, of which some 10,500 were facilities that also filed in 1999-2000, allowing, therefore, a 

comparative assessment for these facilities of accident trends over the 10-year period 1995-2005.
DB1/ 78326798.1 33

ACC cautions the agencies from using EPA RMP accident data drawn from the RMP*Info 

database to rationalize regulatory changes or compliance priorities. 

Option 2(II): ―Process Safety Improvement and Modernization – Options for 

Collaborating with Private Organizations on External Standards‖ 

2(II)(p) What opportunities exist for EPA, OSHA, and NPPD to work with industry 

associations to leverage industry programs and improve process safety and security through 

the industry programs and consensus standards, and encourage best practices, as well as to 

improve regulatory efficiency, especially for small businesses? The working group is aware of 

many different industry programs aimed at improving chemical safety and security. Federal 

agencies could work with industry members to identify existing programs that might be worth 

leveraging and/or expanding, as well as to identify potential areas where industry-led programs 

could be developed to improve chemical safety and security.

ACC Strongly Encourages The EO Working Group To Connect With Industry And 

Review Continuous Improvement Programs Such As ACC’s Responsible Care Program

ACC encourages the EO Working Group and agencies to reach out to affected employers, 

trade associations such as ACC, and organizations like CCPS and MKOPSC for input on process 

safety issues. These entities have great insight on the day-to-day challenges and realities faced 

by the chemical industry. ACC believes that this will allow agencies to engage in dialogue with 

industry, and obtain a broad perspective on emerging trends.

ACC believes there is ample opportunity for EPA, OSHA and DHS to leverage 

continuous improvement programs such as ACC‘s Responsible Care Program. Such a 

public/private partnership could help to achieve many of the goals and objectives of the EO, 

including the facilitation of security plan reviews and approvals, sharing industry practices and 

reaching outlier facilities. ACC believes there would be a considerable advance in the state of 

chemical safety and security through the leveraging of such programs. Moreover, there are 

several examples where we have had success in this area, including the designation of the 

Responsible Care Security Code as a Qualified Anti-Terrorism Technology under DHS‘s 

SAFETY Act and recognition by the United States Coast Guard of the Security Code as an 

Alternative Security Program under the Maritime and Transportation Security Act (MTSA). 

EPA, OSHA and DHS could recognize facility compliance with certified industry programs in a 

way that substantially expedites compliance and implementation of the regulatory programs

while maintaining the integrity of the process. Such an approach would be consistent with the 

goals and objectives of the EO by helping to streamline the regulatory process, focus 

enforcement, and reach outliers that need assistance.

Numerous opportunities exist throughout the year to participate in sharing industry 

security practices through industry conferences, workshops and summits. Some examples 

include the DHS Chemical Sector Security Summit, which is held every July in Baltimore, 

Maryland. This event consistently draws between 300-500 participants. The program includes a 

mix of technical and policy topics. Industry shares security practices on such topics as personnel 

safety, background check procedures, theft and diversion prevention techniques, and alternative 
DB1/ 78326798.1 34

security plans. Other similar venues include the annual ACC ChemSECURE Conference; the 

annual AFPM Security Conference; and the ASIS International 60th Annual Seminar and 

Exhibit. DHS could play a more significant role in these events by providing lessons learned 

from the CFATS compliance process and the voluntary protection program—keeping in mind 

that protected and sensitive security information must be maintained at all times.

2(II)(q) In which consensus standard groups should EPA and OSHA participate to stay current on 

industry best practices and improve chemical process safety? For example, NFPA-400 

consolidates fundamental safeguards for the storage, use, and handling of hazardous materials 

in all occupancies and facilities, including ammonium nitrate; ANSI K61.1/CGA G-2.1 

addresses the safety requirements for the storage and handling of anhydrous ammonia, 

including standards for the design, construction, repair, alteration, location, installation, and 

operation; and CCPS is an initiative of the American Institute for Chemical Engineers and is a 

non-profit organization that addresses process safety within the chemical, pharmaceutical, and 

petroleum industries. EPA and OSHA seek ideas on additional consensus standard groups for 

potential participation.

ACC Encourages Active Participation In Groups Like CCPS And MKOPSC But Cannot 

Endorse Specific Consensus Standards

ACC hesitates to recommend specific consensus standards that EPA and OSHA should 

participate in to stay current on industry best practices and improve chemical process safety. 

This is because there is no single code, standard, or methodology that would be congruous to the 

diverse nature of chemical industry operations. Employers consider a wide range of standards, 

and it ultimately is the employer‘s responsibility to select which standards to follow to best 

manage risk based on the employer‘s intimate knowledge of its particular operations.

Instead, ACC encourages active participation in groups like CCPS and MKOPSC by 

OSHA personnel. This recommendation applies to both agency headquarters and regional 

administrators alike. ACC believes that this will allow agencies to engage in dialogue with 

industry, and obtain a broad perspective on emerging trends.

Option 3: ―Coverage of Additional Hazardous Chemicals or Categories of 

Chemicals under Process Safety and Security Regulations‖

3(a) Should OSHA and EPA initiate rulemaking to cover additional hazardous chemicals under 

the PSM standard and RMP rule? If so, how should the agencies identify these chemicals? 

OSHA‘s RFI contains a detailed discussion of this option. The list of highly hazardous 

chemicals in the PSM standard has remained unchanged since the standard was initially 

published, and the regulated substances originally listed in the RMP rule have been narrowed 

without the addition of any substances. OSHA‘s RFI also discusses and requests comments on 

this issue.

3(b) Is there a method, other than periodically updating the PSM and RMP lists of covered 

chemicals through rulemaking, that OSHA and EPA could use to expand their lists of covered 

chemicals? As noted above, the list of highly hazardous chemicals in the PSM standard has 

remained unchanged since the standard was initially published, and the regulated substances 
DB1/ 78326798.1 35

originally listed in the RMP rule have been narrowed without the addition of any substances. 

OSHA‘s RFI also discusses and requests comments on this issue.

The Existing Lists Are Comprehensive And Should Not Be Amended Without Scientific 

Analysis Establishing Significant Risk

At present, although OSHA stated in its RFI that ―Appendix A has remained unchanged 

since OSHA promulgated the PSM standard in 1992,‖ OSHA has provided no further 

justifications for updating the list. See 78 Fed. Reg. 73769. As explained in ACC‘s response to 

OSHA‘s RFI (Exhibit 1 at Change Option 5), ACC is not aware of any significant change or 

development to justify the opening of the standard. ACC therefore requested in its comment to 

OSHA‘s RFI that OSHA identify any issues with the current rule before moving forward with 

any potentially unjustified changes. ACC believes that it is OSHA‘s duty to perform a 

significant risk analysis on an industry basis, as well as demonstrate that each chemical the 

agency intends to regulate exposes employees to a significant risk of harm. ACC trusts that, by 

completing these required steps in the rulemaking process, OSHA would be able to more 

efficiently focus its resources on the workplaces and hazards that pose the most potential risk. 

ACC hereby expresses the same concerns for any change in regulated substances listed in 

the EPA‘s RMP Rule. ACC is not aware of significant changes that would justify the opening of 

the RMP standard. ACC encourages action from OSHA and EPA only where actual data 

warrants the incorporation of additional chemicals. ACC urges the agencies to develop and 

publish its research and data-gathering methodology for identifying, defining, and quantifying 

the hazards associated with a chemical. EPA and OSHA should use a formal, scientific-based 

approach to evaluate chemicals and, ultimately, to demonstrate that any proposed changes to the 

PSM or RMP standard are justified and would actually enhance worker safety.

For OSHA, ACC notes that many chemicals that are not specifically listed by name in 

Appendix A of 29 C.F.R. § 1910.119 are covered under 29 C.F.R. § 1910.119(a)(1)(ii) on 

processes which involve a Category 1 flammable gas (as defined in 29 C.F.R. § 1910.1200(c), 

and further defined in Appendix B to 29 C.F.R. § 1910.1200 regarding physical hazard criteria). 

Only highly hazardous chemicals that were intended to be addressed by the regulation or that 

have been identified and justified using scientific methods that define purported hazards and 

concerns should be included in the list. Diluting the list with a large range of chemicals that do 

not represent high hazards will reduce the overall effectiveness of any process safety program. 

In sum, ACC believes that the existing lists in the PSM and RMP are comprehensive, and 

adding additional chemicals should be approached with caution through the rulemaking process. 

If incident data supports the need for rulemaking on highly hazardous chemicals, ACC would be 

happy to collaborate with EPA and/or OSHA to establish revision criteria and help ensure that 

updates are technologically feasible and cost-effective and, most importantly, actually enhance 

environmental and/or worker safety. 

3(c) What additional chemicals should NPPD consider adding to the existing CFATS COI list? 

NPPD could consider adding additional chemicals to the list of CFATS COI to expand CFATS 

coverage to potential high-risk chemical facilities that might not currently be identified based on 

the existing list of CFATS COI. This could include, among other things, coverage of toxic and 

poisonous chemicals under CFATS.
DB1/ 78326798.1 36

The Existing List In Appendix A Is Comprehensive, And DHS’s National Protection And 

Programs Directorate (NPPD) Should Only Add Chemicals After Establishing Risk Based 

On Scientific Data

On November 20, 2007, DHS published in the Federal Register the Final Rule on the 

Appendix A List of Chemicals of Interest (COI) and Screening Threshold Quantities (STQ). In 

determining the list of COIs in the final Appendix A, DHS did not rely on any single, existing 

list as its sole source. Instead, DHS used multiple sources, so it could obtain a more complete 

picture of the universe of facilities that may qualify as high-risk. Further, in identifying the 

chemicals and STQs, DHS sought to strike a balance between being sufficiently inclusive and 

being overly restrictive. DHS determined the list of COIs for preliminary screening purposes by 

considering specific security issues for each chemical—based on the belief that each chemical 

would have the potential to create significant harm to human life if intentionally released into the 

atmosphere; stolen and diverted; and/or contaminated.

Based on its analysis, DHS has included more than 300 COIs on Appendix A, covering a 

broad range of chemicals used in commerce across the United States. Based on this list, more 

than 40,000 Top Screens submittals were voluntarily submitted to DHS by the chemical industry 

and analyzed, resulting in more than 7,000 facilities being preliminarily identified as potentially 

high-risk chemical facilities and subject to CFATS regulations. However, numerous of the 

preliminarily high-risk facilities made material changes to their operations, resulting in a 

significant reduction and/or elimination of COIs below the CFATS screening thresholds, thus 

dropping the facilities out of the program. Today, the number of high-risk chemical facilities 

covered by the CFATS regulation is approximately 4,300. 

In general, ACC believes that the initial work of DHS in determining the current list of 

Appendix A chemicals of interest addresses the vast majority of chemicals that should be 

considered for CFATS regulation. While ACC generally agrees that a periodic review of the 

Appendix A list should be conducted, we recommend that a robust, risk-based, scientific, and 

economic analysis be the basis for reviewing such lists. Stakeholder input must also be 

considered to ensure that risks are considered in the context of real-world factors, including 

potential impacts to the nation‘s economy, in addition to public health and safety. 

DHS should amend Appendix A only where actual data warrants it. To this end, DHS 

should develop and publish its research and data-gathering methodology for identifying, 

defining, and quantifying the threat associated with a specific chemical. DHS should use a 

formal, scientific, risk-based approach to evaluate chemicals and, ultimately, to demonstrate that 

any proposed changes to the COI list is justified and would actually enhance chemical facility 

security.

It is DHS‘s obligation to perform a risk analysis on an industry sector basis, as well as 

demonstrate that each chemical the agency intends to regulate presents a significant risk of 

terrorism. By completing these required steps in the rulemaking process, DHS will be able to 

more efficiently focus its resources on the facilities and chemicals that pose a security risk. 

In sum, the existing list in Appendix A is comprehensive. Adding additional chemicals 

should be approached with caution. If DHS determines that the scientific data supports the need 
DB1/ 78326798.1 37

for rulemaking on COIs, DHS should establish revision criteria and help ensure that updates are 

technologically feasible and cost-effective and, most importantly, actually enhance the security 

of chemical facilities.

Since launching CFATS in June 2007, DHS has accumulated a wealth of information 

regarding the chemical holdings, inventory levels, and types of security issues being addressed 

by high-risk chemical facilities across the United States. ACC recommends that DHS use this 

information to help inform the revision of Appendix A and consider dropping those COIs from 

the list that are rarely or have never have been found to trigger CFATS coverage. Likewise, 

COIs that are not commonly found at the listed STQs should be candidates for removal from the 

Appendix A list of COIs.

3(d) Should DHS attempt to harmonize security requirements at chemical facilities exempt from 

CFATS with the requirements applicable to CFATS-regulated facilities and, if so, how? Certain 

chemical facilities are either exempt from coverage under CFATS or are subject to additional 

security regulations under other regulatory programs. Harmonization of appropriate standards 

might increase consistency in requirements and reduce any duplicative or conflicting regulatory 

requirements.

CFATS Should Be Harmonized With Other Safety And Security Programs, While 

Maintaining The MTSA Exemption 

ACC agrees that DHS should and could do more to improve regulatory efficiency and 

effectiveness while minimizing burden on the CFATS community by harmonizing the CFATS 

program with other safety and security programs. However, policymakers should maintain the 

MTSA exemption for maritime facilities. This will maintain consistency across our nation‘s 

ports by eliminating duplication and ensuring that MTSA-covered facilities deal exclusively with 

Coast Guard inspectors and are not burdened with multiple inspections by multiple agencies, 

including DHS.

Areas that should be explored include the Alternate Security Program, the Transportation 

Worker Identification Credentialing program, and inspector training and coordination. Improved 

agency tools for data exchange and cross coordination of covered facility information between 

Federal and State agencies, if done properly, would help DHS with its identification and outreach 

to potential outlier sites, thus eliminating duplicative requests for information from the universe 

of chemical facilities.

Option 4: ―Chemical Reactivity Hazards‖

4(a) Should OSHA and EPA initiate rulemaking, policy changes, or guidance to cover chemical 

reactivity hazards under the PSM standard and RMP rule? If so, what definitions, terms, and 

conditions should be used to best define hazards that can lead to reactive incidents? The U.S. 

Chemical Safety and Hazard Investigation Board (CSB) has recommended that OSHA extend 

PSM coverage and EPA extend RMP coverage to chemicals based on a class of highly reactive 

properties, similar to the way PSM defines a class of flammable liquids or gases. A number of 

the chemicals listed in the regulations are highly reactive chemicals based on a variety of 

metrics, including consensus standard sources, but the lists do not cover all highly reactive 

chemicals. OSHA‘s RFI also discusses and requests comments on this issue.
DB1/ 78326798.1 38

4(b) Should EPA, OSHA, and NPPD develop a definition of high risk chemical reactivity 

hazards for future rulemaking, policy changes, or guidance, and if so, what should be the basis 

of that definition? Currently, there is no consistent definition for reactivity or reactive chemicals. 

Various consensus groups (such as the NFPA and CCPS) and state laws (New Jersey‘s Toxic 

Catastrophe Prevention Act and Delaware‘s Hazardous Chemicals Act) utilize many different 

techniques for defining and protecting against reactive chemical hazards, but there is no 

consensus on the best approach to regulate reactive chemical hazards in the United States.

Current Regulations Already Adequately Cover Reactivity Hazards And Expansion Is 

Unjustified

ACC believes that reactivity hazards cannot be adequately addressed through regulatory 

listing approaches beyond those requirements currently in place. ACC agrees with the advice 

given by CSB in 2002 that ―[u]sing lists of chemicals is an inadequate approach for regulatory 

coverage of reactive hazards. Improving reactive hazard management requires that both 

regulators and industry address the hazards from combinations of chemicals and process-specific 

conditions rather than focus exclusively on the inherent properties of individual chemicals.‖ See

CSB, Report No. 2001-01-H, Hazard Investigation: Improving Reactive Hazard Management, at 

87 (Oct. 2002) (emphasis added). As the PSM rule is essentially a list-based rule, ACC believes 

that this statement is as true today as when it was published, and that no new data in the 

intervening 12 years contradicts this conclusion. For pairs of chemicals, which make up the vast 

majority of reactive substances, extrinsic process and location-specific conditions must be 

considered in any hazard assessment. 

ACC supports efforts to reduce any significant risk associated with reactivity. Before any 

additional rulemaking step is taken by any agency, however, ACC requests sound scientific 

analysis and technical evaluation to justify expanding PSM coverage and requirements for 

reactives. Any agency should investigate and explain what the risk is of some threshold 

unacceptable hazardous consequence from a reaction—at what quantity/concentration will an 

explosion occur? Would the potential explosion be a significant risk? Only after the regulatory 

body has established through sound scientific analysis that reactives impose a substantial risk 

and hazard should any rulemaking proceed. 

As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Change Option 4) and with 

this background in mind, ACC has several recommendations regarding any later expansion of 

regulatory coverage for reactivity hazards, which could only occur after undergoing a risk and 

hazard analysis. If and only if such an assessment occurs and justifies an expansion of coverage, 

ACC would recommend that the agency prioritize reactivity hazards by (1) focusing on 

compounds that are highly hazardous independent of processing technology or conditions 

(namely, compounds that are strongly self-reactive, or react violently with air and/or water), and 

(2) establishing threshold quantities based on a hazard and risk assessment for that compound. 

For example, the Globally Harmonized System of Classification and Labelling of Chemicals 

(GHS) (3rd ed. 2009) provides a framework from which specific compounds could be identified 

for evaluation:

 Self-Reactive Substances, Types A to C (but not D, E, F & G)

 Pyrophoric Liquids
DB1/ 78326798.1 39

 Substances which, in contact with water, emit flammable gases, Categories 1 & 2.

Other classes of reactives (i.e., runaway reactions and intentional reactive chemistry) 

simply are not amenable to a broad regulatory approach. These classes depend on situationspecific factors such as use or proximity to other substances that react; they can only be 

evaluated through the application of industry tools and resources on the specific technology and 

conditions in which they are utilized. By contrast, self-reactive substances and substances that 

are reactive with air and water are more amenable to a list-based rule because they are 

intrinsically-based hazards—for example, much like materials already covered by OSHA‘s PSM 

Appendix A such as flammables. By intrinsic, we mean that the hazard is not situation or 

application dependent, which is clearly the case with binary pair reactive chemicals. 

Even within the high-priority class of chemicals that are self-reactive or violently reactive 

with air and/or water, it is imperative that the rulemaking body not categorically adopt the 

aforementioned classes without first developing a valid, consistent methodology to identify 

threshold hazard quantities or concentrations. ACC is willing to work with any agency to 

establish any such methodologies and/or criteria. In fact, ACC already has identified useful 

consensus standards and other resources that should be used to identify any reactivity hazards 

(again, only after the agency first justifies coverage through hazard and risk analyses): 

(1) Specifically, CCPS, an industry-technology alliance of AIChE, produced and 

published, with the financial backing of OSHA, EPA, Society of Chemical Manufacturers 

and Affiliates (SOCMA) and ACC, the book ―Essential Practices for Managing Chemical 

Reactivity Hazards‖ (Johnson, Unwin and Rudy, 2003), available at 

https://www.aiche.org/ccps/publications/books/essential-practices-managing-chemicalreactivity-hazards, which provide tools for identification and further evaluation of 

reactivity hazards. Through the financial support of the above-mentioned organizations, 

this book was made available via electronic download free of charge for three years after 

publication, resulting in more than 12,000 electronic downloads. Additionally, CSB gave 

CCPS an ―Exceeds Expectation‖ rating for its recommendation as a part of the CSB‘s 

2002 study when the book was published.

(2) Furthermore, the National Oceanographic and Atmospheric Administration (NOAA) 

has also contributed significantly to the management of reactivity hazards through its 

publication of the Chemical Reactivity Worksheet (now Version 3.0, and soon to be 

upgraded), available at http://response.restoration.noaa.gov/reactivityworksheet. This 

electronic worksheet creates potential reaction interaction matrices, as well as for generic 

classes of chemicals, in a succinct, referenced, easily transmitted format. This tool is also 

the centerpiece of CCPS‘s Reactivity Management Tool (RMT), available at 

http://www.aiche.org/ccps/resources/tools/reactivity-management-tool. 

Together, these and other similar resources provide a much more effective means for reactivity 

hazard management than could ever be accomplished for reactives through a list-based rule. 

Ultimately, ACC believes that the EO Working Group can most effectively accomplish its goal 

of reactivity risk reduction not through regulation, but by promoting awareness of the existing 

industry evaluation tools, references and guidance on how to evaluate reactive hazards. 
DB1/ 78326798.1 40

Option 7: ―Coverage of Bulk Storage of Flammable Liquids under Process Safety 

and Security Regulations‖

7(b) Should OSHA clarify the PSM standard’s exemption, through regulation, for atmospheric 

storage tanks, and, if so, what should the exemption cover? In Secretary of Labor v. Meer 

Corporation (1997) (OSHRC Docket No. 95-0341), an administrative law judge ruled that 

PSM coverage does not extend to flammables stored in atmospheric tanks, even if the tanks are 

connected to a process. As a result, employers can exclude the amount of flammable liquid 

contained in an atmospheric storage tank, or in transfer to or from storage, from the quantity 

contained in the process when determining whether a process meets the 10,000-pound 

threshold quantity. The Meer decision was contrary to OSHA‘s interpretation of this aspect of 

the PSM standard, which was that the standard covers all stored flammables when connected 

to, or in close proximity to, a process. The CSB recommended that OSHA address relevant 

hazards through rulemaking. OSHA‘s RFI discusses and requests comment on this issue.

The Current Rule On Atmospheric Storage Tanks Under 29 C.F.R. § 1910.119(a)(1)(ii) 

Protects Workers, And OSHA Must Demonstrate Significant Risk Before Enacting Any 

Changes 

As explained in ACC‘s response to OSHA‘s RFI (Exhibit 1 at Change Option 1), ACC 

believes that OSHA must demonstrate, through a sound scientific analysis of any risk posed by 

the current usage of atmospheric storage tanks, that a significant risk warrants the reopening of 

29 C.F.R. § 1910.119(a)(1)(ii). Before moving forward with any regulation, OSHA must 

substantiate that the current regulation is insufficient to protect workers in covered jobsites. 

Indeed, ACC believes that the reopening of the standard is not warranted and that workers are 

fully protected under the current standard and other related standards such as 29 C.F.R. § 

1910.106. 

Moreover, as ACC has already stated in our written response to CSB‘s Request for 

Comments regarding Recommendation No. 2001-05-I-DE-1, ACC believes that revisiting 

Paragraph (a)(1)(ii)(B) to include flammable liquids in atmospheric storage tanks within or 

connected to a PSM-covered process has been fully and adequately addressed through the 

following vehicles: 

 Secretary of Labor v. Meer Corporation (1997) (O.S.H.R.C. Docket No. 95-0341); 

 OSHA interpretation memorandum distributed to Regional Administrators from the 

Director of Compliance Programs (Subject: Coverage of Stored Flammables Under the 

Process Safety Management Standard, dated May 12, 1997); and 

 OSHA letter of interpretation (Subject: Clarification of PSM applicability to processes 

that are based partly or solely on quantities in connected atmospheric storage tanks, dated 

February 11, 2003). 

29 C.F.R. § 1910.106 provides additional regulatory protection for atmospheric storage 

tanks. Under this regulation, atmospheric tanks must be ―built in accordance with acceptable 

good standards of design,‖ including standards published by Underwriters‘ Laboratories, Inc. and 

the American Petroleum Institute. See 29 C.F.R. § 1910.106 (regulating the design, construction, 

storage, and other required steps in the handling of atmospheric storage tanks). Among other 
DB1/ 78326798.1 41

requirements, this regulation makes clear that ―[a]tmospheric tanks shall not be used for the 

storage of a flammable liquid at a temperature at or above its boiling point.‖ See id. It also 

outlines venting obligations for atmospheric storage tanks and establishes hazardous areas 

surrounding tanks ―for the purpose of installation of electrical equipment under normal 

circumstances.‖ 

In addition, other work practices required by OSHA and EPA, such as lockout/tagout, hot 

work, emergency action plan/HAZWOPER, and confined space, also apply to facilities with 

atmospheric storage tanks. These regulations provide another layer of protection to atmospheric 

storage tanks. For example, EPA‘s Spill Prevention, Control, and Countermeasure (SPCC) 

regulations apply PSM-like elements such as mechanical integrity and operational elements to 

owners or operators of oil facilities that could reasonably be expected to discharge oil into 

navigable waters. See, e.g., 40 C.F.R. § 112.1. In sum, ACC believes that the management of 

atmospheric storage tanks and associated hazards is adequately covered by existing OSHA 

standards, namely 29 C.F.R. § 1910.106 and the additional aforementioned measures. 

7(c) Should OSHA update its Flammable Liquids and Spray Finishing standards to reflect the 

latest consensus standards? OSHA first published these standards in 1974 and based the 

requirements on NFPA consensus standards from the 1960s. The format and requirements of 

the standards may therefore be out of date, and could be updated based on the latest applicable 

consensus standards. OSHA‘s RFI discusses and requests comment on this issue.

OSHA Must Demonstrate Significant Risk Before Revising 29 C.F.R. §§ 1910.106 And 107 

To Incorporate The Current Version Of NFPA 30 

ACC understands that the current version of 29 C.F.R. § 1910.106 is based on the 1971 

version of National Fire Protection Association (NFPA) 30. As explained in ACC‘s response to 

OSHA‘s RFI (Exhibit 1 at Change Option 14), ACC has undertaken a detailed side-by-side 

evaluation of 29 C.F.R. 1910.106 and the current version of NFPA 30 (2012). There are, as 

noted in the RFI, significant formatting changes. However, many of the substantive technical 

requirements in the current version of NFPA 30 are identical, or nearly identical, to the 

information contained in 29 C.F.R. § 1910.106. 

ACC does not believe that updating the PSM regulations for formatting reasons alone 

warrants a reopening of the 29 C.F.R. § 1910.106 standard. Instead, OSHA should perform its 

own comprehensive comparison, identify changes that OSHA considers substantive, and 

propose, if appropriate, changes to 29 C.F.R. § 1910.106 based on its analysis, noting the 

differences from current requirements and the reasons for change. 

Option 8: ―Process and Hazardous Chemical Security‖

8(a) What options should NPPD consider to incorporate economic and mission criticality into 

the CFATS risk-tiering methodology? Currently, facilities are determined to be high risk 

chemical facilities subject to CFATS based solely on risks associated with consequences to 

human life.
DB1/ 78326798.1 42

ACC Strongly Encourages Transparency In Risk-Tiering Methodology And Engaging 

Industry For A Complete Understanding Of Criticality 

ACC agrees that the risk-based tiering structure will allow DHS to focus and prioritize its 

efforts on the highest-risk facilities. Additionally, ACC supports the framework of four riskbased tiers of high-risk facilities, ranging from high (Tier 1) to low (Tier 4). DHS uses a variety 

of factors in determining in which tier facilities will be placed, including information about the 

public health and safety risk, economic impact, and mission critical aspects of the given 

chemicals and Threshold Quantities (TQs) of the chemicals. However, ACC remains concerned 

about the lack of transparency in the factors that DHS uses to determine risk. ACC strongly 

recommends that DHS improve the transparency of its risk determination process and more fully 

engage the CFATS-regulated community during the process. 

DHS should clarify what criteria are used for determining economic criticality and 

mission criticality for CFATS coverage and risk-tiering purposes. ACC believes that economic 

criticality should be determined based on truly national impacts to the nation as a whole. While 

impacts to the local economy/workforce are important, the scale of the CFATS program should 

address those issues that have a potential catastrophic effect on the national economy, which 

would more likely be the target of terrorism.

Mission criticality should be clarified to address national defense and significant effects 

on critical infrastructure that could pose a catastrophic effect on our ability to provide essential 

government services to the public, including emergency response, health care, electricity and 

flow of commerce. 

Stakeholders, including the regulated industry, must be included in every step of the 

process for determining economic criticality. DHS must recognize the complexity of estimating 

potential economic or mission impacts stemming from the loss of certain manufacturing (or 

other) capacity. Accordingly, to accomplish an effective analysis of economic and mission 

criticality, DHS must engage facility owners early on to provide a sufficiently clear picture of the 

chemical industry as a system. The rationale and basis for determining criticality must be 

transparent and based on sound economic principles that are widely recognized within the 

industry.

Option 9: ―Identifying Facilities Covered under Existing Process Safety and 

Security Regulations‖

9(b) How can DHS most effectively identify entities that have not submitted required CFATS’ 

Top-Screens? DHS believes that it has received CFATS Top-Screens from the majority of 

facilities that should have submitted them, but like any regulatory program that relies in part on 

self-reporting, 100% compliance is difficult to achieve. The expansive and dynamic nature of 

the business communities that use CFATS COI further increases the difficulty of doing so under 

CFATS. Nevertheless, DHS is committed to pursuing all reasonable measures to identify 

potential high-risk chemical facilities that are not among those that have already complied with 

initial CFATS requirements, and we will continue to work to get those facilities into 

compliance.
DB1/ 78326798.1 43

ACC Recommends Significant Outreach To Industry As Well As Intergovernmental 

Cooperation

DHS has undertaken efforts to better identify outlier facilities that should have submitted 

Top Screens but failed to do so. The administration needs to strengthen coordination with other 

federal entities, such as EPA, Coast Guard, and state and local authorities. 

When implementing a new regulatory program like CFATS, significant outreach to the 

regulated community is a key element of success. Stakeholders need to ensure that chemical 

safety and security regulations are being implemented fully and properly and that the agency and 

department officials have the necessary resources to do their jobs. In addition, federal officials at 

all levels need to work together, share information, and coordinate their activities across all 

regulatory programs. In addition to the cadre of CFATS inspection personnel, Protective 

Security Advisors should be leveraged to provide a local resource for informing members of the 

community about their regulatory obligations. DHS should establish a close relationship with 

state and local emergency response organizations such as the State Fire Marshalls Office.

III. CONCLUSION

Based on the experiences of its members, ACC believes that compliance with the 

standards already in place adequately manages process safety risks. ACC observes that agencies 

and the EO Working Group have yet to publish sufficient data to justify many suggested changes 

to current regulations, and ACC remains skeptical that any such data exists. ACC encourages 

OSHA and other agencies to conduct sound scientific analyses of any risk allegedly posed by 

current regulations before moving forward with costly and ineffective changes, which may 

detract from worker safety by diverting resources, as well as creating an atmosphere of 

confusion. 

In fact, ACC believes that the current set of regulations are not the real issue—instead, 

process safety-related accidents consistently involve outlier companies that disregard some or all 

aspects of the current PSM regulation. ACC believes that the biggest step agencies could take to 

improve worker safety is through increased process safety awareness, training, and enforcement 

for these outlier companies. Proposed changes to regulations will not improve safety for 

companies that have already created a safe environment through fulfillment of the current 

applicable OSHA, EPA, and other standards. Consequently, ACC encourages the EO Working 

Group and agencies to reach out to affected employers, trade associations such as ACC, and 

organizations like CCPS and MKOPSC for input on process safety issues. These organizations 

and others have helpful insight on the day-to-day challenges and realities faced by the chemical 

industry. 

Given the diverse nature of chemical industry operations, ACC knows that a flexible and 

performance-oriented approach to process safety will best protect workers from risk of harm. 

Each employer is in the best position to make process safety decisions by evaluating its own 

equipment, onsite materials and chemicals, expertise, organizational structure, and operations. 

Agencies such as OSHA should capitalize on the chemical industry‘s knowledge and capability 

to address all manner of site-specific safety concerns.
DB1/ 78326798.1 44

As such, ACC would like to underscore the following:

(1) ACC reemphasizes our opposition to mandating the incorporation of ―inherently safer 

technologies‖ (IST) into safety programs. Inherently safer approaches or safer alternatives have 

been and will continue to be considered by facilities as a matter of course. However, only 

facility operators know whether IST is appropriate given the complexities of their unique 

operating environments—no one program will work for all facilities. 

(2) ACC strongly opposes replacing PSM or RMP with 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. ACC 

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. 

(3) ACC believes that the mandated use of third-party auditors would be overly 

burdensome and unjustified. Employers must be afforded the discretion to choose among selfaudits, second-party audits, and third-party audits. Company-led audits can be far more effective 

in actually addressing issues uncovered during an audit, due to the company auditor‘s intimate 

knowledge of the organization and how it functions. 

ACC supports the EO Working Group‘s overall goal of improving chemical facility 

safety and security and appreciates the vital role of the EO Working Group and agencies in 

effectuating this goal. Given the many site-specific variables and complexities within the 

chemical industry, ACC urges the EO Working Group to carefully consider its approach. To 

best achieve its goals, ACC believes that the EO Working Group should consider non-regulatory 

approaches with input and support from ACC and other organizations focused on chemical 

safety. 

ACC hopes that the EO Working Group will find these comments helpful. Should you 

have questions about ACC‘s input, please contact me by phone at (202) 249-6426 or by e-mail at 

Rachel_meidl@americanchemistry.com. Thank you for the opportunity to submit comments on 

this matter.

Respectfully submitted, 

Rachel A. Meidl 

Director, Regulatory & Technical Affairs 

American Chemistry Council

700 Second Street, NE

Washington, DC 20002

Rachel_Meidl@americanchemistry.com 
DB1/ 78326798.1 45

Of Counsel:

Jonathan L. Snare

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

jsnare@morganlewis.com
Exhibits to ACC Comment on Executive Order 13650 

have been removed but are attached as appendices to 

ACC’s Comments on the EPA RFI.
APPENDIX 7

ACC COMMENT ON DRAFT CSB REPORT FOR

CHEVRON RICHMOND REFINERY PIPE

RUPTURE AND FIRE (DECEMBER 2013)
January 3, 2014

SUBMITTED VIA E-MAIL

U.S. Chemical Safety and Hazard Investigation Board

Office of Congressional, Public, and Board Affairs

2175 K Street, NW, Suite 650

Washington, DC 20037

By electronic submission: chevroncomments@csb.gov

Attn: R. Moure-Eraso

Interim Investigation Report: Chevron Richmond Refinery Pipe Rupture and Fire Regulatory 

Report

Dear Dr. Moure-Eraso:

The American Chemistry Council1(ACC) is pleased to provide a written response to the U.S. 

Chemical Safety and Hazard Investigation Board‘s (CSB) December 16, 2013, Regulatory 

Report of the Chevron Richmond Refinery Fire. 

As you know, ACC and its member companies have a considerable interest in the CSB‘s work. 

Safety has always been a primary concern of ACC members; both ACC and its individual 

companies have been recipients of and benefitted from CSB safety recommendations. We value 

CSB‘s independent and technical insight and we utilize the lessons learned from incidents to 

improve performance as well as standards and practices. The CSB investigation of the Chevron 

Richmond refinery accident and subsequent recommendations will be important to help 

determine what actions might be considered based on the root causes of this incident and will 

ultimately influence the direction of the regulated community in that regard. 

ACC‘s comments focus on the agency‘s recommendations concerning the safety case regulatory 

regime. We have a number of strongly held concerns regarding the potential implementation of 

the safety case regime which we have highlighted in our attached comment letter.

 

1 ACC represents the leading companies engaged in the business of chemistry. ACC members apply the science of 

chemistry to make innovative products and services that make people's lives better, healthier and safer. ACC is 

committed to improved environmental, health and safety performance through Responsible Care®, common sense 

advocacy designed to address major public policy issues, and health and environmental research and product 

testing. The business of chemistry is a $760 billion enterprise and a key element of the nation's economy. It is the 

largest exporting sector in the U.S., accounting for 12 percent of U.S. exports. Chemistry companies are among the 

largest investors in research and development. Safety and security have always been primary concerns of ACC 

members, and they have intensified their efforts, working closely with government agencies to improve security and 

to defend against any threat to the nation’s critical infrastructure.
2

ACC also supports the separate comments filed by the American Petroleum Institute and the 

American Fuel & Petrochemical Manufacturers. 

We hope that CSB will find our contribution helpful. Should you have questions about our 

input, please contact me by phone at (202) 249-6426 or by e-mail at 

Rachel_meidl@americanchemistry.com. 

Regards,

Rachel A. Meidl

Director, Regulatory & Technical Affairs

American Chemistry Council

700 Second Street, NE

Washington, DC 20002

Jonathan L. Snare

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004 
January 3, 2014

U.S. Chemical Safety and Hazard Investigation Board

2175 K Street, NW

Washington, DC 20037

By electronic submission: chevroncomments@csb.gov

Re: Comment on Regulatory Report No. 2012-03-I-Ca, Draft for Public Comment, 

Chevron Richmond Refinery Pipe Rupture and Fire (December 2013)

The American Chemistry Council (―ACC‖) is America‘s oldest trade association of its 

kind, representing companies across the United States engaged in the business of chemistry. 

ACC appreciates and supports the U.S. Chemical Safety and Hazard Investigation Board‘s 

(―CSB‘s‖) efforts to protect the safety and health of workers, the public, and the environment 

from industrial chemical accidents. Furthermore, ACC shares the CSB‘s goals of ensuring that 

process safety is handled and implemented as safely as possible. CSB incident investigations can

play a key role in understanding accidents at chemical facilities and refineries and ensuring that 

similar accidents are prevented in the future. 

Workplace safety and process safety are top priorities of ACC and its members. To

become a member of ACC, a company must commit to the highest standards for protecting 

health, safety, and the environment through participation in the Responsible Care® program. All 

ACC members are required to implement the Responsible Care® Process Safety Code of 

Management Practices, which specifically addresses process safety concepts such as leadership, 

accountability and culture in order to drive overall process safety performance improvement. 

This code complements existing regulatory requirements, such as the Occupational Safety and 

Health Administration‘s (―OSHA‘s‖) Process Safety Management (―PSM‖) standard and the 

Environmental Protection Agency‘s (―EPA‘s‖) Risk Management Plan (―RMP‖) rule. 

While ACC shares the CSB‘s goals as described above, ACC has a number of concerns 

about the recommendations in the CSB‘s December 2013 Draft Regulatory Report for Public 

Comment (the ―CSB Report‖) to the State of California regarding the establishment of a safety 

management regulatory framework based on ―safety case‖ principles.

2

 In particular, ACC 

believes that its members, through OSHA‘s current PSM standard and voluntary programs such 

as Responsible Care®, already address the continuous improvement goals detailed in the CSB 

Report. ACC further believes that the recommended safety case regulatory regime is not 

justified by the reasons articulated in the CSB Report, nor would the safety case framework 

actually achieve the desired results and benefits for covered workplaces. ACC also is concerned

that the drastic changes contemplated by the recommended safety case framework would result 

 

2

 ACC has similar concerns regarding the CSB‘s recommendations to OSHA, which are less defined than those to 

California, to the extent that the CSB suggests the implementation of a safety case regime. The safety case regime 

described by the CSB starkly conflicts with OSHA‘s performance-based PSM standard. 
2

in a wide variety of practical problems if implemented. As outlined in detail below, ACC 

believes that certain recommendations in the CSB Report ultimately would detract from worker 

safety and create an atmosphere of uncertainty and confusion for employers and regulators alike.

A. The CSB’s Proposed Safety Case Regulatory Regime Represents A Drastic 

Policy Change From The Current Regulatory Framework With No 

Corresponding Benefits For Workplace Safety

The CSB Report describes the safety case regulatory regime as a ―rigorous prescriptive 

and goal-setting regulatory approach applied globally both onshore and offshore.‖ See CSB 

Report at 9. Under this regime, ―[a] written case for safety, known as the safety case report, is 

generated by the duty holder and is generally rigorously reviewed, audited, and enforced by 

highly technically competent inspectors with skill sets familiar to those employed by the 

industries they oversee.‖ See id. Moreover, ―[i]n order for the facility to begin operation or 

remain in operation, the regulator must  ̳accept‘ the facility‘s safety case report.‖ See id. at 39. 

This proposed framework shifts the burden to the regulator to review and evaluate a wide 

set of site-specific information, which regulators will be ill-equipped to handle, without any 

objective measures. ACC believes that the current framework of PSM is better suited to achieve 

the CSB Report‘s purported justification of improved workplace safety. Under the current wellrecognized regulatory framework, which provides employers with the necessary discretion to tailor 

safety processes to the specific conditions of each worksite, ACC members supplement the PSM 

elements and implement a program that includes many of the elements in the safety case 

framework. For more details, see Section C below.

Under OSHA‘s PSM standard, an employer team with expertise in engineering and process 

operations must address the hazards of the process, identification of prior incidents that had 

potential for catastrophic consequences, engineering and administrative controls (and their 

interrelationships and the consequences of their failures, including a qualitative evaluation of 

possible safety and health effects on employees), facility siting, and human factors. See 29 

C.F.R. § 1910.119(e)(3). After notice and comment rulemaking, OSHA modified Subsection 

1910.119(e) ―so that employers are not required to implement every recommendation offered by 

a Process Hazard Analysis Team,‖ although employers must consider all recommendations. See

Preamble to Process Safety Management of Highly Hazardous Chemicals, Explosives and 

Blasting Agents, 57 Fed. Reg. 6356-01 (Feb. 24, 1992) (―PSM Preamble‖) (emphasis added). As 

clearly stated in the PSM Preamble, ―[i]t is critically important that a PHA Team have freedom 

to make broad recommendations, at risk of being wrong . . . . [W]hen a team recommendation is 

incorrect, the employer can analyze it and then document in writing why the recommendation is 

not being adopted or is being adopted with modification.‖ See id. (emphasis added). OSHA 

intentionally delegated the responsibility to evaluate and reject or implement site-specific 

recommendations to the employer. The employer, after all, is most familiar with the site, safety 

concerns, and practical hurdles to and consequences of operational changes. 

In contrast to the current OSHA (as well as California OSHA) programs, under the 

proposed safety case regime, regulators who are not intimately familiar with technical aspects of 

the worksite or involved in process safety analyses would make the ultimate decision to accept or 

reject a safety program. Again, the CSB Report‘s safety case regime requires up-front 
3

―acceptance‖ from ―highly technically competent inspectors with skill sets familiar to those 

employed by the industries they oversee.‖ See CSB Report at 9. General industry knowledge 

from inspectors, however, may not be enough; ACC respectfully submits that individual 

facilities, with onsite safety experts and engineers who are intimately familiar with the jobsites, 

have the most sophisticated understanding of site-specific safety conditions. ACC is concerned 

that a safety case regulatory regime ultimately would deprive employers the necessary discretion 

over how best to handle safety on their particular worksites. Prior acceptance by inspectors with 

unknown backgrounds who are unfamiliar with the jobsites would impede an employers‘ ability 

to make safety decisions quickly and effectively. ACC believes that shifting responsibility to 

approve safety decisions from employers to inspectors, who inevitably will be less familiar with 

the jobsites, would be ill-advised. 

In addition to practical and efficacy concerns, the safety case regime outlined in the CSB 

Report represents a major policy shift that would create significant legal issues if implemented 

by the State of California as recommended by the CSB. See CSB Report at 90-91. If 

implemented in California first, without any corresponding change to the federal system, the end 

result will be two completely different regulatory regimes governing process safety. On one 

hand, for the federal system, ACC members are (and would continue to be) subject to OSHA‘s 

PSM standard, which is a performance-based standard; yet, if California agreed to implement the 

CSB‘s recommendations, ACC members in that state would be subject to a completely different 

regulatory regime. See CSB Report at 90-91. Section 18 of the Occupational Safety and Health 

Act of 1970 (―OSH Act‖), 29 U.S.C. § 667, allows states to develop and operate their own safety 

and health programs in the workplace with approval and monitoring from OSHA. OSH Act 

Section 18(a) permits states to assert their own standards in the absence of federal laws: 

―Section 18(a) has been consistently interpreted by OSHA and the courts to bar the exercise of 

state jurisdiction over issues addressed by an OSHA standard, even where the state law may 

arguably be more stringent or where OSHA has not explicitly addressed a provision.‖ N.J. State 

Chamber of Commerce v. New Jersey, 653 F. Supp. 1453, 1464 (D.N.J. 1987) (citations omitted) 

(holding that a federal OSHA asbestos training program preempted a New Jersey program). 

ACC does not believe that California would have the legal authority to implement such a drastic 

change to the regulatory requirements for process safety—a change that is completely different 

from the federal regulation. If California did take steps to implement these recommendations, 

such a proposal likely would be pre-empted by federal OSHA. Simply put, any goal-oriented 

safety case regulatory regime in California would be on dubious legal footing, given OSHA‘s 

preemption of this area of law through the performance-based PSM standard.

Moreover, state plan state programs must be ―at least as effective in providing safe and 

healthful employment and places of employment as the standards promulgated [by federal 

OSHA].‖ OSH Act Section 18(c)(2) (emphasis added). Thus, under the OSH Act, federal 

OSHA establishes the baseline for worker safety that state plan states must meet or exceed. 

Here, ACC does not believe that the safety case regime is as effective as the federal PSM 

program, and the CSB has cited little to no statistical or other evidence establishing that a safety 

case regime would be as effective as the PSM. In fact, the CSB Report itself laments that 

―[u]nfortunately, there have been few objective studies conducted on the impact of the safety 

case regulatory approach on safety performance onshore and offshore.‖ See CSB Report at 109. 

Indeed, the ACC has identified studies that seriously call into question the efficacy of the safety 
4

case regimes. See, e.g., Nancy Leveson, MIT White Paper on the Use of Safety Cases in 

Certification and Regulation (2011) (see sections on Potential Limitations of Safety Cases, 

Experience with Safety Cases, and Practical Considerations in the Use of Safety Cases). The 

CSB Report itself acknowledges many of these widely documented problems with the 

implementation of the safety case regime. See CSB Report, Appendix B at 110-12. Thus, any 

safety case regime implemented by the State of California would be subject to legal challenges 

under Section 18 of the OSH Act on that basis as well. Note that additional legal issues with the 

safety case regime, such as the use of vague and subjective evaluative criteria and the lack of 

objective benchmarks for employers to follow, and the resulting lack of notice to employers for 

compliance purposes, are discussed in greater detail below. 

Finally, ACC believes that the CSB has grossly underestimated the budget and personnel 

resources necessary to implement a safety case regime, not to mention the resource commitment 

required to ensure that such a regime is in any way effective. The CSB Report does state that the 

safety case regime could only succeed if the relevant state or federal agency undertook 

significant commitments to its implementation, including: 

 an ―independent, well-funded, well-staffed, technically competent regulator‖; and 

 a compensation system to ensure that the regulator can attract employees ―with the 

necessary skills and experience to ensure regulator technical competency.‖

See CSB Report at 90-91 (outlining recommendations to California and OSHA). The CSB 

essentially admits that the program could only work if fully staffed with experts to implement the 

regime‘s procedures and set its limits, including staff with appropriate technical backgrounds and 

industry experience to evaluate and approve Safety Case Plans. Yet, at the same time, the CSB 

acknowledges that programs with similar upfront inspection goals have failed due to resource 

limitations, such as, for example, the inability of the EPA to conduct proactive audits of RMPs. 

See CSB Report at 62-63 (the ―EPA has not effectively implemented the audit and inspection 

elements‖ of RMP; according to IG report, 50 percent of high-risk RMP sites have never 

received an on-site inspection and over 65 percent of all RMP sites have never received an onsite inspection since the program began in 1999). ACC understands that there are approximately 

14,000 RMP sites in the United States, and ACC believes that the number of refineries and other 

facilities envisioned to be covered under the CSB‘s proposed safety case regime would be even 

greater. Taking these numbers as a baseline, ACC finds it difficult to believe that there is any 

realistic way for the federal government to find and hire sufficiently trained inspectors to handle 

the duties envisioned by the CSB. This same concern applies equally to the CSB‘s proposal for 

California, as the same resource constraints would apply in proportion to the number of covered 

sites in that state.3 At the end of the day, ACC believes that the lack of staff sufficiently trained 

to properly evaluate and enforce such complex regulatory requirements would lead to a chaotic 

and ineffective regulatory regime, and would doom this program to failure. 

In summary, ACC believes that the current framework under the PSM standard with 

performance-oriented requirements best addresses process safety management objectives. A 

dramatic shift to an entirely new regulatory framework is neither warranted nor justified. At this 

point, OSHA is in the process of undertaking a review of PSM to follow up on Executive Order 

 

3

 ACC notes that it already implements a program that involves third-party audits under its Responsible Care®

program (in addition to the continuous and ongoing efforts on process safety undertaken by ACC members at their 

facilities), as discussed in more detail in Section C of this letter.
5

No. 13650 (August 1, 2013) through the Request for Information (―RFI‖) on Process Safety 

Management and Prevention of Major Chemical Accidents (RIN 1218-AC82) issued on 

December 9, 2013. ACC looks forward to participating in the RFI and working with OSHA on 

these issues in a transparent Administrative Procedure Act (―APA‖) rulemaking process in the 

near future. 

B. Regulators’ Review Of Subjective Criteria Without Objective Benchmarks 

Under The Recommended Safety Case Framework Would Be Practically 

Difficult To Implement And Follow

The safety case regime described in the CSB Report would require inspectors to review a 

safety case for ―acceptance‖ through use of subjective criteria that lack objective benchmarks. 

Although the Report calls for ―highly technically competent inspectors with skill sets familiar to 

those employed by the industries they oversee,‖ inspectors‘ ability to accurately evaluate these 

factors, and to do so consistently across local offices of regulators and facilities, is questionable. 

These factors are inherently subjective and difficult to review without extensive training and 

knowledge of the site, the organization, and its history. 

Allowing inspectors to evaluate such subjective criteria raises practical issues over what 

various regulators will require. Currently, the standard that would be imposed by investigators 

for approval is vague and provides little notice of what constitutes compliance. For example, the 

anticipated application of the As Low As Reasonably Practical (―ALARP‖) standard by 

regulators is extremely unclear – how will inspectors evaluate whether a facility has satisfied the 

―reasonably practical‖ standard? Will different offices of the regulatory agency (such as CalOSHA under the proposed recommendations) have differing positions on what is required to be 

in compliance with these inherently subjective factors? Would the State of California or OSHA 

be willing to define the criteria for what is reasonably practical, and publish this for use among 

all the facilities to ensure that consistent criteria are applied? How would an inspector be able to 

ascertain ALARP standards without a roadmap for tracing the unit‘s assessment process for each 

element under question? An employer, and not a regulator, is in the best position to know what 

is reasonably practical within the framework of its own risk evaluation process, experience, 

incident history, engineering assessment, and other self-analytical tools.

Along the same lines, the CSB does not explain what standard a regulator must follow 

before an employer‘s safety case is ―accepted.‖ Unless quantified and/or delineated criteria are 

published, the regime will be ineffective and provide little notice as to what is actually required 

of employers. There will be a strong risk that disparate, incongruous ―acceptable‖ solutions will 

exist, depending on the individual inspectors involved, simply because there are no set standards. 

In short, the safety case framework purports to be a prescriptive regime that requires employers 

to meet a minimum benchmark of acceptability, yet the CSB Report fails to set forth any clear 

benchmarks or articulate how such benchmarks would actually be developed and ultimately 

communicated to stakeholders. 

This uncertainty created by the CSB proposal raises legal issues as well. A regulation is 

―unconstitutionally vague under the due process clause of the Fifth or Fourteenth Amendments if 

it  ̳forbids or requires the doing of an act in terms so vague that men of common intelligence 

must necessarily guess at its meaning and differ as to its application.‘‖ Ga. Pac. Corp. v. 
6

Occupational Safety & Health Review Comm’n, 25 F.3d 999, 1005 (11th Cir. 1994) (citation 

omitted) (finding the phrase ―obstructs forward view‖ to be insufficiently defined, and therefore 

unconstitutionally vague); see also Diamond Roofing Co. v. Occupational Safety & Health 

Review Comm’n, 528 F.2d 645, 649 (5th Cir. 1976) (―[A]n occupational safety and health 

standard must give an employer fair warning of the conduct it prohibits or requires.‖). ACC 

believes that the elements of the safety case regime that an employer is required to follow before 

the safety case is ―accepted‖ by the regulator (to allow the employer to use or operate its facility) 

are unacceptably subjective and unclear. The essence of the CSB proposal for safety case is 

succinctly stated on page 37 of the Report: ―the onus is on the duty holder [i.e., employer] to 

prove to the regulator that the company‘s processes, methodologies used to assess risks, and 

reasoning for choosing one control over another have substantially reduced risks to as low as 

reasonably practicable (ALARP), or equivalent.‖ See CSB Report at 37 (emphasis added). In 

practical reality, employers would simply not have notice as to what is required of them. 

Employers – including ACC members – would be subject to oversight by a regulator (no matter 

how well trained) with less of an understanding of its particular site on the wide range of 

complex issues at stake in the development of the appropriate process safety. 

ACC submits that it is impractical for the CSB to expect California (or any other 

regulatory agency, federal or state) to be in a position to issue sufficient guidance to enable 

stakeholders to understand what would be expected of them for compliance purposes under this 

regime. Rather, ACC believes that if such a proposal were enacted, the result would be 

confusion, inconsistent application, and delays for stakeholders before taking necessary steps 

forward in process safety (as any decision such as the follow-up to a process hazard analysis 

(―PHA‖) or a Management of Change would be subject to review by the regulator under this 

system). Ultimately, any discretion present in the current performance system under PSM would 

be eliminated, along with the flexibility normally envisioned with performance-oriented 

regulatory systems.

C. Employers – Not Regulators – Are In A Better Position To Implement Many 

Of The Elements Of These Recommendations

The CSB justifies its recommendations for the safety case regulatory framework based on 

an assumption that the current PSM framework is ―reactive‖ and ―activity based,‖ and that the 

PSM has become static and does not address the development of new technology, new safety 

approaches, and ―advancing best practices.‖ See CSB Report at 9. The CSB contends that the 

current system is so focused on specific tasks and activities that it does not drive the achievement 

of continuous risk reduction. See id. Thus, the CSB advances the argument (relying on an 

unsupported third party report) that the PSM system is a ―minimum cost‖ and ―compliance based 

approach,‖ in which employers purportedly take the approach that if it is not a ―regulatory 

requirement,‖ then they will not actually comply. See id. at 30. The CSB also raises the concern 

that the PSM regulatory framework does not direct employers to develop a holistic safety 

management system approach to process operations. See id. at 29-32.

In the alternative, the CSB outlines what it describes as the ―key features‖ of an 

―effective major accident prevention‖ approach such as the safety case regime: (1) duty holder 

safety responsibility, including a written case for safety; (2) continuous Risk Reduction to 

ALARP; (3) adaptability and continuous improvement; (4) active workforce participation; 
7

(5) Process Safety Indicators that drive performance; (6) regulatory assessment, verification and 

intervention; and (7) an independent, competent, well-funded regulator. See CSB Report at 36. 

ACC strongly disagrees with these purported observations and conclusions. The 

chemical industry, without the direction of regulators, continues to challenge its understanding of 

process safety through the ongoing development of hazard identification and analysis tools. For 

example, the industry has gone beyond the requirements of PHA through enhanced 

self-analytical processes with layer of protection analyses (―LOPAs‖), fault tree and event tree 

analyses, as well as full-blown quantitative risk analyses. 

Since promulgation of the PHA and PSM, the chemical industry continues to strive for 

improvement. For example, ACC and its members already have taken the lead in developing a 

new paradigm of process safety that not only complements the current regulatory structures 

(PSM and RMP), but goes beyond the current regulatory requirements to require the broad 

framework of a safety management system. This system results in a culture of continuous 

improvement, all without the intervention of a regulator and under the discretion of the employer 

who has better understanding of the specific workplace conditions. ACC requires each member 

to achieve certain goals in the Responsible Care® Management System and the RC14001®

Technical Specifications, including the following: (1) to make continual progress toward the aim 

of no accidents, injuries, or harm to human health or the environment; (2) to design and operate 

facilities in a safe, secure, and environmentally sound manner; (3) to install a culture throughout 

all levels of member organizations to continually identify, reduce, and manage process safety 

risks; (4) to support research on the health, safety, and environmental effects of member products 

and processes; and (5) to communicate product, service, and process risks to our stakeholders. 

Conformance to these goals and practices is confirmed through third party audits conducted on 

ACC members.

Specifically, each ACC member must commit to implementing and adhering to the 

following process safety management practices: 

(1) Leadership and Culture – Senior management and leadership are committed to 

establishing and communicating process safety as a core value and enforcing high 

standards of performance at all levels within the organization. Company 

leadership also promotes and develops a process safety culture within the 

organization, encouraging openness to raise concerns and identify opportunities 

for improvement. 

(2) Accountability – Process safety roles and responsibilities across the 

organization are clearly defined and include an expectation to identify, and 

authority to respond to, process safety concerns. Senior leaders are held 

accountable for process safety performance, while employees understand the 

importance of process safety as it applies to their jobs and are responsible for 

following and contributing to the work processes to achieve improvement in 

company process safety performance.

(3) Knowledge, expertise and training – Process safety competency requirements 

are established and executed for management, engineering, and operational 
8

personnel, as well as contractors and third-party service providers, commensurate 

with the activities performed. 

(4) Understanding and prioritization of process safety risks – Member companies 

identify and understand the hazards and risks of their processes and implement 

systems for documenting and accessing comprehensive and current information 

on process-related hazards and risks to enable informed decision-making. 

(5) Comprehensive process safety management system – Member companies 

design systems to manage and mitigate identified risks with adequate safeguards. 

Management of process safety considers: passive controls; engineering controls; 

operational controls; inherently safer approaches; inspection, maintenance, and 

mechanical integrity programs; management of change procedures; and scenario 

planning. 

(6) Information sharing – Member companies establish processes fostering twoway flow of information between management, employees, contractors and other 

stakeholders to share process safety information, ensuring that experiences from 

process safety reviews, inspections, audits, and incident and near-miss 

investigations are shared, as relevant, across the company in a timely manner. 

(7) Monitoring and improving performance – Senior management and leadership 

continually monitor process safety performance through routine evaluation of 

process safety management systems, independent of regulatory audits, to confirm 

that the desired results are achieved, using appropriate leading and lagging 

indicators. Results are reviewed at planned intervals to determine progress 

against process safety performance expectations and to take action to improve 

performance when needed. 

Under the Responsible Care® program, each ACC member is required to demonstrate 

compliance with each of these elements. Thus, members not only already implement so-called 

―key features‖ identified by the CSB as the justifications for the safety case proposal, but, in fact, 

go beyond what the CSB suggests in its safety case proposal.

For example, the CSB states that one of the ―key strength[s]‖ of the safety case regime is 

that it provides the regulator ―with the tools to drive continuous improvement‖ to reduce risks to 

ALARP, rather than ―focusing on compliance with activity-based regulatory requirements.‖ See

CSB Report at 43. Yet, ACC members already implement a wide variety of steps to achieve the 

goal of continuous improvement and risk reduction to ALARP; those steps include the 

development and implementation of a comprehensive process safety management system to 

manage process risks and the development of a safety culture to manage those same risks. ACC 

members already undergo third-party audits to demonstrate compliance with this program. ACC 

believes that its members are best situated to take the lead role in developing and overseeing 

programs suited for their particular facilities, rather than the approach envisioned by the safety 

case regime where the regulator (without any history or knowledge of a particular facility) must 

review and oversee the program. Further, ACC does not agree with the CSB regarding the need 

to completely redesign the approach to process safety where ACC members already have a 

program in place addressing the ―key features‖ cited by the CSB to justify the safety case 

regime. 
9

D. The ACC Has Significant Legal Concerns (Including Due Process Concerns) 

Regarding The Recommendations To Implement New Requirements 

Without The Need For Rulemaking 

ACC is concerned that the safety case regulatory regime opens the door for backdoor 

rulemaking without the required notice and comment. Specifically, the CSB Report includes the 

following recommendation: ―Ability to adapt and implement safety requirements in response to 

newly identified hazards, advances in technology, lessons learned from major accidents, and 

improved safety codes without the need for new rule-making.‖ See CSB Report at 90 (emphasis 

added); see also id. at 89 (―The safety case provides the adaptability necessary to keep current 

with improving standards and advancing technology, without requiring lengthy and often 

unproductive rulemaking on the part of the regulator.‖ (emphasis added)); id. at 48 (―The 

cumbersome rulemaking process and lack of flexibility that has resulted in stagnant and static 

OSHA standards can be contrasted with the structure of the safety case regulatory regime, which 

facilitates adaptability and enables the regulator to improve industry safety performance and 

practices without requiring a major rule change.‖ (emphasis added)).4 

The CSB press release issued on December 16, 2013 in connection with the release of the 

Report provides further clues as to this approach: ―Under a safety case system, changing safety 

standards, new technologies, and findings from accident investigations are required to be 

incorporated by facilities.‖ The CSB further states in this press release that one of the 

justifications for this approach is that it has issued a number of process safety regulations from 

its investigations, yet ―none of these important regulatory recommendations have been 

implemented.‖ See CSB Press Release (Dec. 16, 2013). In effect, the CSB approach would 

grant unprecedented leeway in setting requirements beyond the current legislative checks and 

balances, and opens the door for short-circuiting the rulemaking process altogether. 

This recommended back-door rulemaking is of grave concern to ACC and the general 

public. ACC members would be faced with the obligation to implement ―advances in new 

technology‖ without any regulator having to determine through APA rulemaking whether there 

is significant risk and without having to establish the necessary feasibility requirements. ACC 

members would then be obligated to follow these new requirements without the opportunity to 

participate in the APA rulemaking process (and presenting any input and/or practical issues with 

any such proposal). ACC has the same concerns regarding the obligation to implement 

 

4 The CSB goes on to argue that the safety case ―essentially provides the regulator with the tools to recognize more 

rigorous standards and practices that exist and drive a company to implement those practices to further reduce risks, 

as well as work with industry to improve existing standards and practices if necessary. It also enables companies to 

implement new, more efficient or safer technologies that do not necessarily meet strict prescriptive regulation, but 

that drive risk reduction.‖ See CSB Report at 48. In addition to the obvious concern of ACC that the CSB‘s 

proposition would end-run the current APA regulatory requirements (creating a number of legal and due process 

issues discussed throughout this comment), ACC notes that its members already take steps to implement ―new,‖ 

―more efficient,‖ and ―safer‖ technologies under the current regulatory regime, without any regulatory requirement 

to do so. Moreover, as discussed in Section B herein, ACC is greatly concerned regarding the inherent confusion of 

the safety case regime as to exactly what would be required in terms of such ―new,‖ ―more efficient,‖ and ―safer‖ 

technologies, and exactly how the benchmark for compliance would be determined and justified. 
10

―improved safety codes‖ or ―changing safety standards‖ without the regulator establishing the 

need for such requirements under APA rulemaking. 

The CSB Report suggests that any employer subject to the recommended safety case 

framework, if implemented, would automatically be required to follow a wide variety of new 

requirements without the opportunity to participate in any transparent rulemaking process, and 

without clear direction as to which of the new technology, accident, or safety recommendations 

would actually have to be implemented by employers. If this regime were implemented without 

rulemaking, employers would not know who sets deadlines for implementation and compliance. 

Also unclear is what agency would enforce the regime and evaluate compliance with these

recommendations. Furthermore, ACC cannot be required to follow each prescriptive 

requirement from consensus standards without the opportunity to participate in the rulemaking 

process. Without proper rulemaking procedures, employers would not know who would decide 

what consensus standards, if any, would need to be followed, or what recommendations in the 

CSB Report are mandatory, given the CSB‘s lack of enforcement mechanisms. 

ACC completely disagrees with the discussion in Appendix B to the CSB Report wherein 

the CSB contends that the safety case regime would allow changes to process safety 

requirements without APA notice and comment rulemaking. See CSB Report at 105-06. It is 

one thing for an agency to issue guidance to provide more details on compliance to existing 

regulatory requirements, and yet another to suggest (as the CSB does in its Report) that 

completely new substantive requirements, based on new technology, incident investigation 

reports, and safety codes (such as consensus standards) could be imposed on employers without 

the opportunity and due process rights to participate in its development. ACC further disagrees 

with the CSB‘s conclusion in Appendix B that the safety case regime (as proposed by the CSB) 

is somehow consistent with the Regulatory Flexibility Act and its underlying principles. The 

purpose of the Regulatory Flexibility Act is to ensure adequate opportunity to participate in 

transparent rulemaking. See 5 U.S.C. §§ 601 et seq. 

E. The Basis And Justifications For The Application Of The Safety Case 

Regulatory Regime Are Not Applicable To ACC Members’ Workplaces

The incidents listed in the CSB Report as justifications for the imposition of the safety 

case regime largely involve accidents that are in dispute and/or otherwise inapplicable and 

insufficient to support the shift to this completely different regulatory approach. 

For example, the CSB Report Appendix A lists ―Significant Petroleum Refinery Incidents 

in 2012,‖ yet ACC remains skeptical that this list appropriately captures so-called significant 

petroleum refinery incidents. Based on information provided by our members, we understand 

that several incidents listed are minor or highly disputed. ACC would like more information 

regarding how the list was compiled and the extent to which it influenced policy and/or 

supported an argument for a safety case regime. ACC believes that these incidents cannot 

support the imposition of the burdensome safety case regulatory regime.

Moreover, the CSB Report maintains that ―regulatory approaches similar to the safety 

case regulatory regime, which require risk reduction to ALARP or equivalent, have been 

implemented in the nuclear sector by the Nuclear Regulatory Commission (NRC) and the 
11

aerospace sector by NASA.‖ See CSB Report at 11; see also id. at 34-35 (explaining that (1) the 

NRC has adopted a performance oriented regulation with a license requirement that includes 

overall goals to reduce risks to as low as reasonably achievable, or ALARA, and (2) NASA 

utilizes the goal of a safety system that reduces risk to as safe as reasonably practicable, or 

ASARP). Drawing conclusions for chemical facilities and refineries from NASA and/or the 

NRC‘s experiences with safety case regimes, however, is inappropriate. NASA and the NRC 

deal with extremely narrow and specific technologies, equipment, and operations, involving high 

consequence of failure on a scale completely different than that presented by the chemical 

industry. NASA and NRC‘s coverage is in sharp contrast to the broad-base and wide range of 

facilities of ACC members, with vast differences in size, scope and operation. What might work 

in a narrowly defined operation such as NASA‘s role in space exploration or the NRC‘s role in 

oversight of the nuclear power industry simply would not work in the environment within which 

ACC members operate. 

CONCLUSION

While ACC supports the general goals articulated in the CSB Report, ACC has major 

concerns with the implementation of a safety case regulatory regime which, as previously noted, 

would represent a drastic and unnecessary change in policy from the current regulatory 

framework in place governing process safety. ACC strongly believes that the recommended 

safety case regime would create significant practical problems as well as legal issues without any 

corresponding benefit in workplace safety. 

Instead, ACC recommends that the CSB present its concerns regarding the current 

framework in the ongoing RFI issued by OSHA (as triggered by Executive Order No. 13650 

―Improving Chemical Facility Safety and Security‖) to review the PSM standard. OSHA will 

have ample opportunity to undertake such a review and analysis of the current PSM framework 

in this transparent APA rulemaking process before any effort is made to promulgate an entirely 

new regulatory approach such as the recommended safety case system. 

Finally, given our strongly held concerns, ACC believes that before any regulatory 

agency considers the merits of such a dramatic shift, sufficient objective data would need to be 

gathered and analyzed before determining what regulatory approach makes sense consistent with 

such objective data and the demonstrated need for any type of new regulatory regime. ACC 

hopes that the CSB will proceed deliberately in this regard and continue to allow interested 

parties the opportunity to comment and work together constructively on this effort consistent 

with our comments. 

Respectfully submitted,

Rachel A. Meidl

Director, Regulatory & Technical Affairs
12

American Chemistry Council

700 Second Street, NE

Washington, DC 20002

Rachel_meidl@americanchemistry.com

Jonathan L. Snare

Counsel for American Chemistry Counsel

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

jsnare@morganlewis.com