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Via Electronic Submission

OSWER Docket

EPA Docket Center, Mail Code 2822‐1T

Environmental Protection Agency

1200 Pennsylvania Avenue NW

Washington, DC 20460

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

Act, Section 112(r)(7); Request for Information

Docket ID No. EPA‐HQ‐OEM‐2014‐0328

To the Docket:

DPC Industries, Inc. (DPC) is pleased to respond to the U.S. Environmental Protection Agency (EPA)

Request for Information (RFI), Docket ID. No.EPA‐HQ‐OEM‐2014‐0328 published in the Federal Register

on July 31, 2014 at 79 Fed. Reg. 44604‐44633

DPC does not believe the initial 90‐day comment period is adequate to address all the questions in the

RFI sufficiently; however, DPC submits the following comments.

General Comments

DPC Industries, Inc. believes the process safety standards in the United States are strong and effective.  

The examples of facility safety concerns articulated by those speaking to this issue have actually been

examples of facilities not complying with existing regulations and not from a lack or gap in the existing

requirements.  Merely developing additional regulations fails to address the problem of outlier

operations that are either unfamiliar or unwilling to comply with the multitude of chemical safety

standards that are presently in place.  Agency resources would be better utilized by increasing

awareness and training efforts and, where necessary, enforcement activities than by making changes to

a system that has not been proven to be inadequate.  

DPC is concerned about coordination between EPA and OSHA on this issue.  There is an EO Action Plan

“requirement” that EPA and OSHA “harmonize” their regulations.  However, EPA has committed, in the

EO Working Group Action Plan, to releasing a proposal for the revised RMP in one year and finalizing the

rule within two years.  OSHA is on a seven‐year rulemaking timeline while EPA is on a two‐year track.

How can both agencies ensure coordination and consistency in the analogous issues that crossover both

OSHA PSM and EPA RMP when EPA is proceeding five years faster than OSHA?

Coordination between OSHA and EPA will be challenging and highly unlikely given the differences in

timetables. This is of particular concern in light of the myriad overlapping elements of RMP and PSM.

   
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Specific Issues of Concern:

Updating the List of Regulated Substances ‐ Adding Reactive Substances and Reactivity Hazards:

Listing chemicals based on the hazards of their reaction byproducts is not a feasible revision to the RMP

chemicals list.  The overall reactive hazard of a chemical depends not only on the intrinsic reactivity of

the chemical but more importantly, on extrinsic circumstances (e.g., change in operating conditions, lack

of coolant, presence of contaminant, concentration changes, sequence of batch steps, agitation or lack

thereof, and many others).  Any chemical, which is non‐reactive under normal conditions, may become

reactive in the presence of other chemicals or extreme process conditions.  Thus, a reactivity hazard list

is unlikely to be effective and in many respects may introduce other unintended consequences (i.e.,

facilities may think that if something is not on the list, there is no hazard or risk).

Reactivity hazards are already addressed throughout OSHA’s PSM Standard. It is specifically required as

part of the process safety information element.  And it is used as input to process hazard analyses, pre‐

startup safety reviews, operating procedure development, pressure relief and flare system design,

mechanical integrity programs, and management of change.  Finally it is utilized in developing training

and contractor programs, conducting incident investigations and planning for emergencies.

DPC does not recommend the expansion of the Appendix A list to include reactives for coverage under

EPA’s RMP regulation.   

TQs and Off‐site Consequence Analysis Endpoints for Regulated Substances Based on Acute Exposure

Guideline Level Toxicity Values:

DPC believes using the current TQs, which are based on the Immediately Dangerous to Life and Health

(IDLH) value developed by the National Institute of Occupational Safety and Health (NIOSH),for the

recalculation of RMP reporting thresholds and toxic endpoints for off‐site consequence analyses is

proper, protective, and based on rigorous scientific methodologies.  The IDLH guidelines reflect modern

principles and understanding in risk assessment unlike the AEGLs approach, which applies a

considerable amount of uncertainty factors and time extrapolations.   

The use of animal studies, the limited amount of human studies, the lack of a systematic review of the

current AEGLs once set, and the use of uncertainty factors is not a reasonable approach to setting RMP

Offsite Consequence Analysis (OCA) endpoints.  Given the use of the OCA for community response

planning and given that there is a finite amount of available resources, it would be prudent to continue

to utilize the IDLH values, which are based on health effects considerations determined through a critical

assessment of the toxicology and human health effects data.

Revising Additional RMP Elements:

The RFI states that EPA is interested in receiving and reviewing information regarding the management

system elements that were identified in the OSHA RFI, but with a focus on the applicable RMP

requirements.  U.S. EPA is considering incorporating three elements taken from the Risk Based Process

Safety Program by the Center for Chemical Process Safety:

   
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(1) Measurements and Metrics

To address the specific question of measurements and metrics, DPC does not support the

requirement of lagging PSM metric indicator collection and evaluation via 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.

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 and may change from year to year as data is analyzed.

(2) Management Review and Continuous Improvement

The management system currently under the RMP rules is essentially a system defined by facility

managers for integrating the implementation of the risk management program elements and

assigning responsibility for that implementation.  The extent of the management system will depend

on the size and complexity of the source.  An effective management system helps to document the

integration of facility operations and provides a way ensure that each department involved in the

process understands its responsibilities and who should be contacted when changes or other

concerns arise.  As the rule currently stands, an operating entity has the flexibility to design and

manage the management system in whatever way works best for that operation.   

Management review and continuous improvement, which focuses on the “due diligence” of

management reviews that fill the gap between day‐to‐day work activities and formal audits, is

clearly a subjective standard for which standards or requirements would be difficult to develop and

even more difficult to enforce.  Ultimately, this could only be measured by the number of

management reviews.  This, in turn, would become a recordkeeping requirement and nothing more.  

While management reviews are a tool used by many in industry, the use of that tool is best left to

the implementing organization to best mange according to its specific operations and company

culture.

(3) Process Safety Competency

EPA is also requesting comments on three interrelated activities: (1) continuously improve on

knowledge and competency, (2) ensure appropriate information is available to those who need it,

and (3) consistently apply lessons learned. EPA asserts that the main focus of this competency

element is organizational learning so that process knowledge can be applied to situations in order to

manage risk effectively.  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.

The other issues mentioned in this section of the RFI such as management system elements, stop work

authority and process safety culture are all part of the natural evolution of a healthy Process Safety

Management Program, and have already been addressed by DPC; therefore, no further changes in the

regulation are necessary.  As mentioned earlier, EPA’s emphasis should be on training and enforcement

as necessary for those facilities not currently following the regulatory requirements.

   
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Expanded Incident Investigation/Accident History:

Under the existing PSM and RMP requirements, regulated facilities are required to investigate incidents

that resulted in, or “could reasonably have resulted in, a catastrophic release of a hazardous chemical.”

However, EPA is now considering the addition of an additional requirement to have facilities report near

misses in addition to reporting their five‐year history of accidents from covered processes resulting in

death, injury or significant property damage.   EPA is also asked whether companies should be required

to conduct a root cause investigation, complete their investigations by certain deadlines and share

information with the public about incidents and near misses.   

DPC supports the use of root cause investigations where it is clear that an incident could have

reasonably resulted in a catastrophic release as is required per the existing PSM Standard and RMP

regulation.  However, the term “near miss incident” is difficult to define with consistency for all

regulated entities because what might be considered a near miss incident at one location may not be a

near miss at another location due to the specifics of the operation.  Further, there is no evidence that

has been presented by EPA that the current incident investigation procedures are inadequate.

Also, EPA has not provided any reasoning for why the inclusion of near misses in the five‐year history of

accidents will improve safety performance.  And there is no evidence that sharing near miss or incident

investigations with the public will lead to a safer facility or community.  In fact, the sharing of this type of

information, (operating vulnerabilities, operating controls, equipment limitations etc.) significantly

impacts the security of a facility with no measurable benefit to the community.  The public is best

protected by focusing on established risks and not hazards.  The question is not whether the potential

consequence is serious, but rather what is the likelihood that the consequence will actually occur.  

Third Party Compliance Audits:

DPC does not agree with any assertion that third‐party auditors provide the highest degree of

objectivity, or are more effective overall than internal company 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.  We do believe the mandated use of third‐

party auditors would be overly burdensome and unjustified. Employers must be afforded the discretion

to choose the audit method best suited to their unique operations including self‐audits, second‐party

audits, or third‐party audits.

The use of third‐party auditors is extremely costly and does not significantly lessen the burdens of

support personnel, who must accompany third‐party auditors and engage in the extremely time‐

consuming activity of explaining basic onsite procedures already known to internal staff.  DPC contends

there is no compelling evidence that company‐led audits are cause for concern due to any alleged

incapability of the audit team or deficiency in the audit protocols used.

   
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Define and Require Evaluations of Updates to RAGAGEP:

OSHA already considers trade organizations like the Chlorine Institute as a source for RAGAGEP, and DPC

concurs.  However, consideration must always be given to engineering reviews and the varied conditions

on‐site.  Therefore, to mandate particular practices into law will have the effect of restricting innovation

and the continuous improvement process.

RAGAGEPs are engineering, operation, or maintenance activities based on established codes, standards,

published technical reports or recommended practices or a similar document.  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.  RAGAGEP also

recognizes that there is not one way to solve a given problem that provides similar levels of risk

reduction for a diverse set of chemical processes.

DPC maintains that RAGAGEP cannot be a single document, code, standard or practice.  Covered

employers must be able to utilize consensus guidance to the specific situation in each individual

workplace.  Also, EPA should recognize that employers with the support of technical experts and

professionals are the most familiar with the ongoing operations at that workplace and are therefore in

the best position to analyze and the specific conditions and concerns at a facility and to decide what

constitutes generally accepted good engineering practices with regard to each facility.

DPC does believe that adding a definition for RAGAGEP could be useful to help owners better

understand requirements under the standard.  However, the definition of RAGAGEP should not take

away the ability of a facility to identify which RAGAGEP they are applying to their operations.

Emergency Planning and Coordination with Local Emergency Response Authorities:

DPC believes the requirement for coordination with local emergency responders is already adequately

addressed in the multiple interconnected standards as well as OHSA’s 29 CFR 1910.38, which provides

the minimum requirements for an emergency action plan including that a facility must have procedures

in place for reporting a fire or other emergency.  An additional reporting requirement will not provide an

improved level of workplace safety or information to local responders.  Currently, many companies

already provide information to various regulatory agencies and organization as part of other regulatory

requirements including EPA’s Risk Management Plan, EPA’s SARA reporting requirements, and the DHS’s

Chemical Facility Anti‐Terrorism Standard (CFATS) program.

Mechanical Integrity of Any Safety‐Critical Equipment:

DPC believes the existing six categories currently listed in Paragraph (j) of the existing PSM standard

sufficiently cover safety critical equipment involved in the handling of highly hazardous chemicals. and

EPA has not provided any reasoning or examples in the RFI to explain how the existing standard is not

adequately addressing safety critical equipment or how workplace safety would be improved by re‐

opening this section of the PSM or RMP standards.

DPC believes a risk‐based approach already exists in the current PSM standard and is adequate to

address mechanical integrity safety concerns.  Any additional listing of covered equipment which is not
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risk‐based could result in the utilization of already burdened facility resources to cover less critical

equipment taking away from critical site‐specific equipment.

Promoting Inherently Safety Technology (IST):

In its original RMP rulemaking, EPA acknowledged that it did not believe that an IST requirement would

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

DPC does not believe circumstances have changed to alter the above approach to IST.  Inherently safer

approaches or safer alternatives have been and will continue to be considered by facilities as a matter of

course.  Chemical facilities consider IST in preparing Process Hazard Analyses (PHAs) that are required

for both the PSM and RMP standards.  As EPA has acknowledged previously, 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.  No one regulatory program addresses the holistic safety and security environment of a

given facility.

Safety Case

A safety case regime requires companies to adopt a systematic hazard management framework.  This

means they must identify all major hazards and develop plans for how these hazards will be managed.  

In particular, they must identify the controls that will be put in place to deal with the identified hazards,

and the measures that will be taken to ensure that controls continue to function as intended.  This part

of the safety case framework is already in place for many hazardous industries in the US.  For instance

for all process industries onshore, and that includes petroleum and petrochemical industries, the federal

process safety management standard requires operators to have such a framework.

While at first look the Safety Case  may have appeal, there are many complexities in the implementation

of it could have unintended consequences or difficulties or cost, and which have not been evaluated

much like the concerns with Inherently Safer Technology.  Developing a safety case requires significant

resources, not simply mapping the existing RMP document to a new format, for both the regulated

community and the regulatory agencies at a time when resources are being pulled in many directions.  

For such a system to work, all facility operators and all regulators would need extensive knowledge

about and would need to constantly keep current on the latest safety measures and trends. This would

be a monumental task, particularly for regulators, as best practices vary depending on the segment of

the extremely diverse industries that handle and store chemicals.  All this while there has not been a

strong demonstration of how a “safety case” regime will result in a higher level of safety in actual

operations over a fully functioning and properly managed safety and environmental management

system other than it is used in a few other countries.
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Summary

DPC Industries, Inc. believes compliance with the current RMP standard is effective in reducing chemical

risk at chemical facilities.  EPA’s emphasis should be on training and enforcement on facilities not

following the existing regulatory requirements.

DPC respectfully requests that EPA take into careful consideration the points provided in this

correspondence prior to moving forward with any changes to the RMP standard.  DPC also supports the

Chlorine Institute’s comments submitted to EPA regarding this RFI.  Please contact me if you have any

questions on the above or if you require any additional information.

Sincerely,

DPC Industries, Inc.

Wayne Penick

Manager of Health, Safety & Security