1 

Final Report

of the

Small Business Advocacy Review Panel on

EPA’s Planned Proposed Rule

Risk Management Modernization Rule

February 19, 2016 
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2 

Table of Contents

1. INTRODUCTION......................................................................................................................................... 4

2. BACKGROUND AND DESCRIPTION OF RULEMAKING................................................................................ 5

2.1 Regulatory History ........................................................................................................................ 5

2.2 Description and Scope of Existing Rule......................................................................................... 6

2.3 Overview of Revisions under Consideration................................................................................. 7

Prevention Program Elements.............................................................................................................. 8

Emergency Preparedness and Response Elements.............................................................................. 9

2.4 Related Federal Rules .................................................................................................................10

OSHA’s PSM standard (29 CFR 1910.119)...........................................................................................11

Occupational Safety and Health Act General Duty Clause ................................................................. 11

EPA’s Emergency Planning and Community Right-to-Know Act (EPCRA) regulations (40 CFR 350-372)

............................................................................................................................................................11

Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal 

Facilities (40 CFR 264 and 265) ...........................................................................................................12

CAA Section 112(r)(1) general duty clause .........................................................................................12

Department of Homeland Security (DHS) requirements –Chemical Facility Anti-Terrorism Standards 

(CFATS) (6 CFR 27)...............................................................................................................................12

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requirements for explosives. ...............12

3. APPLICABLE SMALL ENTITY DEFINITIONS ...............................................................................................13

4. LIST OF SMALL ENTITY REPRESENTATIVES..............................................................................................18

5. SUMMARY OF SMALL ENTITY OUTREACH ..............................................................................................19

6. SUMMARY OF COMMENTS FROM SMALL ENTITY REPRESENTATIVES...................................................20

6.1 Pre-Panel Outreach...........................................................................................................................20

6.1.1 Summary of Verbal Comments..................................................................................................20

6.1.2 Summary of Written Comments................................................................................................28

6.1.3 Meeting Follow-Up ....................................................................................................................32

6.2 Panel Outreach ................................................................................................................................. 32

6.2.1 Summary of Verbal Comments..................................................................................................32

6.2.2 Summary of Written Comments................................................................................................38

7. PANEL FINDINGS AND DISCUSSIONS ......................................................................................................46

7.1 Number and Types of Entities Affected......................................................................................46
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7.2 Potential Reporting, Recordkeeping, and Compliance Requirements.......................................46

7.3 Related Federal Rules .................................................................................................................46

7.4 Regulatory Flexibility Alternatives..............................................................................................47

7.4.1 Third-Party Compliance Audits...........................................................................................47

7.4.2 Incident Investigations & Root Cause Analysis...................................................................49

7.4.4 Local Coordination ..............................................................................................................51

7.4.5 Emergency Response Exercises...........................................................................................53

7.4.6 Information Sharing ............................................................................................................54

APPENDIX A: List of Materials EPA shared with Small Entity Representatives...........................................57

APPENDIX B: Written Comments Submitted by Small Entity Representatives..........................................58
4 

1. INTRODUCTION

This report is presented by the Small Business Advocacy Review Panel (SBAR Panel or Panel) convened 

to review the planned proposed rulemaking on Risk Management Modernization. Under section 609(b) of 

the Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness 

Act of 1996 (SBREFA), a Panel is required to be convened prior to publication of the initial regulatory 

flexibility analysis (IRFA) that an agency may be required to prepare under the RFA. In addition to EPA’s 

Small Business Advocacy Chairperson, the Panel will consist of the Director of the Office of Emergency 

Management’s Regulations Implementation Division in the EPA Office of Land and Emergency 

Management (OLEM)1, the Administrator of the Office of Information and Regulatory Affairs within the 

Office of Management and Budget, and the Chief Counsel for Advocacy of the Small Business 

Administration.

This report includes the following:

• Background information on the proposed rule being developed;

• Information on the types of small entities that may be subject to the proposed rule;

• A description of efforts made to obtain the advice and recommendations of representatives of

those small entities; and

• A summary of the comments that have been received to date from those representatives.

Section 609(b) of the RFA directs the Panel to consult with and report on the comments of small entity 

representatives (SERs) and make findings on issues related to elements of an IRFA under section 603 of 

the RFA. Those elements of an IRFA are:

• A description of, and where feasible, an estimate of the number of small entities to which the

proposed rule will apply;

• A description of projected reporting, record keeping, and other compliance requirements of the

proposed rule, including an estimate of the classes of small entities which will be subject to the 

requirement and the type of professional skills necessary for preparation of the report or record;

• An identification, to the extent practicable, of all relevant Federal rules which may duplicate,

overlap, or conflict with the proposed rule. 

• A description of any significant alternatives to the proposed rule which accomplish the stated

objectives of applicable statutes and which minimize any significant economic impact of the 

proposed rule on small entities. This analysis shall discuss any significant alternatives such as:

o the establishment of differing compliance or reporting requirements or timetables that

take into account the resources available to small entities;

o the clarification, consolidation, or simplification of compliance and reporting requirements

under the rule for such small entities;

o the use of performance rather than design standards; and

o an exemption from coverage of the rule, or any part thereof, for such small entities.

Once completed, the Panel Report is provided to the agency issuing the proposed rule and is included in 

the rulemaking record. The agency is to consider the Panel’s findings when completing the draft of the 

proposed rule. In light of the Panel Report, and where appropriate, the agency is also to consider whether 

changes are needed to the IRFA for the proposed rule or the decision on whether an IRFA is required.

1 The office previously known as the Office of Solid Waste and Emergency Response (OSWER) has been renamed 

to the Office of Land and Emergency Management (OLEM). The old office name “OSWER” may be retained on 

earlier materials prepared for the pre-Panel and Panel process.
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The Panel’s findings and discussion will be based on the information available at the time the final Panel 

Report is drafted. EPA will continue to conduct analyses relevant to the proposed rule, and additional 

information may be developed or obtained during the remainder of the rule development process.

Any options identified by the Panel for reducing the rule’s regulatory impact on small entities may require 

further analysis and/or data collection to ensure that the options are practicable, enforceable, 

environmentally sound, and consistent with the Clean Air Act and its amendments.

2. BACKGROUND AND DESCRIPTION OF RULEMAKING

2.1 Regulatory History

Both EPA’s 40 CFR part 68 Risk Management Program regulation2 and the Occupational Safety and 

Health Administration’s (OSHA’s) 29 CFR 1910.119 Process Safety Management (PSM) standard were 

authorized in the Clean Air Act (CAA) Amendments of 1990 (1990 CAAA), in response to a number of 

catastrophic chemical accidents occurring worldwide that had resulted in public and worker fatalities and 

injuries, environmental damage, and other community impacts. OSHA published the PSM standard in 

1992 (57 FR 6356, February 24, 1992), as required by section 304 of the 1990 CAAA, using its authority 

under 29 U.S.C. §653.

The 1990 CAAA required EPA to develop a list of at least 100 regulated substances for accident 

prevention and related threshold quantities (CAA section 112(r)(3)-(5)), authorized accident prevention 

regulations (CAA section 112(r)(7)(A)), and required EPA to develop “reasonable regulations” requiring 

facilities with over a threshold quantity (TQ) of a regulated substance to undertake accident prevention 

steps and submit a “risk management plan” to various local, state, and Federal planning entities (CAA 

section 112(r)(7)(B)).

EPA published the RMP regulation in two stages. The Agency published the list of regulated substances 

and TQs in 1994 (59 FR 4478, January 31, 1994) (the “list rule”) and published the RMP final regulation, 

containing risk management requirements for covered sources, in 1996 (61 FR 31668, June 20, 1996) 

(the “RMP rule”).3

Both the OSHA PSM standard and the EPA RMP rule aim to prevent or minimize the consequences of 

accidental chemical releases through implementation of management program elements that integrate 

process safety technologies, procedures, and management practices. In addition to requiring 

implementation of management program elements, the RMP rule requires covered sources to submit a

document (i.e., RMP) summarizing the source’s Risk Management Program to EPA. The RMP rule 

required covered sources to comply with its requirements and submit initial RMPs to EPA by June 21, 

1999. Each RMP must be revised and updated at least once every five years from the date the Plan was 

initially submitted.

EPA later revised the list rule and the RMP rule. EPA modified the regulated list of substances by 

exempting solutions with less than 37% concentrations of hydrochloric acid (62 FR 45130, August 25, 

1997), deleting the category of DOT Division 1.1 explosives, and exempting flammable substances in 

 2 40 CFR part 68 is titled, “Chemical Accident Prevention Provisions,” but is more commonly known as the “RMP 

regulation,” the “RMP rule” or the “Risk Management Program.” This document uses all three terms to refer to 40 

CFR part 68. The term “RMP” refers to the document required to be submitted under subpart F of 40 CFR part 68, 

the Risk Management Plan. See http://www2.epa.gov/rmp for more information on the Risk Management Program.

3 40 CFR Part 68 applies to owners and operators of stationary sources that have more than a TQ of a regulated 

substance within a process. The regulations do not apply to chemical hazards other than listed substances held 

above a TQ within a regulated process.
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gasoline used as fuel and in naturally occurring hydrocarbon mixtures prior to initial processing (63 FR 

640, January 6, 1998).

EPA has modified the RMP rule five times. The first revision modified facility identification data and 

contact information reported in the RMP (64 FR 964, January 6, 1999). Next, EPA revised assumptions 

for the worst case scenario analysis for flammable substances and clarified what the agency means by 

chemical storage not incidental to transportation (64 FR 28696, May 26, 1999). After the Chemical Safety 

Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA) was enacted on August 5, 1999, 

EPA excluded regulated flammable substances when used as a fuel or held for sale as a fuel at a retail 

facility (65 FR 13243, March 13, 2000). Later, EPA restricted access to offsite consequence analysis

(OCA) data for the public and government officials to minimize the security risks associated with posting 

the information on the internet (65 FR 48108, August 4, 2000). Finally, EPA revised the RMP executive 

summary to remove a requirement to describe the OCA; revised reporting deadlines for RMP reportable 

accidents4 and emergency contact changes; and made other minor revisions to RMP contact information 

(69 FR 18819, April 8, 2004).

On August 1, 2013, President Obama signed Executive Order 13650, entitled Improving Chemical Facility 

Safety and Security (EO 13650 or the EO). The EO was prompted by major chemical accidents, including 

the explosion at the West Fertilizer facility in West, Texas on April 17, 2013. EO 13650 directs the federal 

government to carry out a number of tasks whose overall goal is to prevent chemical accidents. In 

addition to the tragedy at the West Fertilizer Company in West, Texas, a number of other incidents 

demonstrate a significant risk to the safety of American workers and communities. On March 23, 2005, 

explosions at the BP Refinery in Texas City, Texas killed 15 and injured more than 170. On April 2, 2010, 

an explosion and fire at the Tesoro Refinery in Anacortes, Washington killed seven. On August 6, 2012, 

the Chevron Refinery in Richmond, California, experienced a catastrophic pipe failure that released 

flammable process fluid, forming a large vapor cloud that engulfed 19 Chevron employees and ignited. All 

employees avoided serious injury, but the subsequent fire resulted in a large plume of hazardous 

chemicals that traveled across the Richmond, California area. Nearly 15,000 residents sought medical 

treatment due to the release. On June 6, 2013, a fire and explosion at Williams Olefins in Geismar, 

Louisiana killed two and injured many more. These incidents represent a small number of the significant 

incidents that have occurred in the U.S. and demonstrate a significant risk to the safety of American 

workers and communities. Among the tasks discussed, the EO directs agencies to consider possible 

changes to existing chemical safety regulations such as EPA’s RMP regulation. On July 31, 2014, EPA 

published a Request for Information (RFI) notice (79 FR 44604) to solicit comments and information from 

the public regarding potential changes to EPA’s RMP regulations.

2.2 Description and Scope of Existing Rule

The owner or operator of a facility holding more than a TQ of a regulated flammable or toxic substance in 

a process is required to implement a risk management program and to submit an RMP to EPA.

Each facility's program should address three areas:

• Hazard assessment that details the potential effects of an accidental release, an accident history

of the last five years, and an evaluation of worst-case and alternative accidental releases;

• Prevention program that includes safety precautions and maintenance, hazard controls, and

employee training measures; and

4 An RMP reportable accident is an accidental release meeting the criteria in §68.42 (i.e., those that that resulted in 

deaths, injuries, or significant property damage on-site, or known offsite deaths, injuries, evacuations, sheltering in 

place, property damage, or environmental damage). 
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• Emergency response program that spells out emergency health care, employee training 

measures and procedures for informing the public and response agencies (e.g., the fire 

department) should an accident occur.

The RMP rule establishes three “program levels” for regulated processes:

Program 1 applies to processes that would not affect the public in the case of a worst-case release and 

that have had no accidents with specific off-site consequences within the past five years. Program 1 

imposes limited hazard assessment requirements, requires coordination with local response agencies, 

and requires submission of an RMP.

Program 2 applies to processes not eligible for Program 1 or subject to Program 3, and imposes 

streamlined prevention program requirements, including safety information, hazard review, operating 

procedures, training, maintenance, compliance audits, and incident investigation elements. Program 2 

also imposes additional hazard assessment, management, and emergency response requirements.

Program 3 applies to processes not eligible for Program 1 and either subject to OSHA’s PSM standard 

under Federal or State OSHA programs or classified in one of ten specified industry sectors identified by 

their 2002 North American Industrial Classification System (NAICS) codes listed at §68.10(d)(1). These 

industries were selected because they had a higher frequency of the most serious accidents as compared 

to other industry sectors.5 The ten NAICS codes and the industries they represent are 32211 (pulp mills), 

32411(petroleum refineries), 32511 (petrochemical manufacturing), 325181 (alkalies and chlorine 

manufacturing), 325188 (all other basic inorganic chemical manufacturing), 325192 (cyclic crude and 

intermediate manufacturing), 325199 (all other basic chemical manufacturing), 325211 (plastics material 

and resin manufacturing), 325311 (nitrogenous fertilizer manufacturing), or 32532 (pesticide and other 

agricultural chemicals manufacturing).6 Program 3 imposes elements nearly identical to those in OSHA’s 

PSM standard as the accident prevention program. The Program 3 prevention program includes 

requirements relating to process safety information; process hazard analysis (PHA); operating 

procedures; training; mechanical integrity; management of change; pre-startup review; compliance audits;

incident investigations; employee participation; hot work permits; and contractors. Program 3 also 

imposes the same hazard assessment, management, and emergency response requirements that are 

required for Program 2.

2.3 Overview of Revisions under Consideration

Through Agency review and stakeholder input, a broad range of program improvements have been 

suggested. From these EPA identified items which could only be addressed through a regulatory change, 

and further limited consideration to those which would provide the most protective impact. The following is 

a listing of regulatory revisions currently being considered and evaluated by EPA, and is not final at this 

time. 

In this action, EPA will consider modifications to the current RMP regulations in order to reduce the 

likelihood and severity of accidental releases, and improve emergency response when those releases 

occur. EPA is considering modifications to the following prevention program elements of the RMP rule:

 5 This analysis was done by EPA to support original RMP rulemaking in 1996 and used accident data filed by 

sources in response to EPA’s request for information in the Accidental Release Information Program (ARIP). ARIP 

collects data from certain sources that report releases under CERCLA section 103. 61 FR 31668, June 20, 1996.

6 NAICS codes 325181 and 325188 are now combined and represented as 2012 revised NAICS code 325180 (other 

basic inorganic chemical manufacturing). NAICS code 325192 is now 2012 revised NAICS code 325194 (cyclic 

crude, intermediate, and gum and wood chemical manufacturing).
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• Strengthen compliance audit provisions by requiring the next compliance audit following an 

RMP reportable accident to be conducted by a third-party;

• Revise incident investigation provisions to require a root cause analysis following an RMP 

reportable accident or a “near miss incident;” and

• Revise the Process Hazard Analysis (PHA) requirements to include a safer technology and 

alternatives analysis and a feasibility study.

EPA is also considering modifications to the rule to enhance state and local emergency preparedness 

and response in an effort to mitigate the effects of accidents. These include requirements to: 

• Annually coordinate emergency response capabilities with local responders;

• Conduct emergency response exercises to test the emergency response program or plan; 

and

• Share information with local responders and the public.

Prevention Program Elements

Third-Party Compliance Audits

The owner or operator of a facility with a Program 2 or Program 3 process must perform 

compliance audits every three years. However, self-auditing may be insufficient to ensure 

compliance with RMP requirements and promote safe stationary source operation and accident 

prevention. Additionally, a lack of auditor independence can result in more lenient or biased audit 

results that are less accurate and reliable.

Therefore, EPA is considering a modification to the rule that would require the owner or operator 

of a facility with a Program 2 or Program 3 process to conduct an independent audit by an auditor 

not associated with the regulated facility or parent company. An independent audit would only be 

required following an accident at the facility, or when ordered by an implementing agency based 

on noncompliance with accident prevention requirements. The independent audit would be 

conducted at the time of the next scheduled compliance audit in lieu of the regularly scheduled 

compliance audit.

Incident Investigation/Root Cause Analysis

The owner or operator of a facility with a Program 2 or Program 3 process must conduct an 

incident investigation following an incident that resulted in or could have resulted in a catastrophic 

release (includes a “near miss”). However, the incident investigation requirements of the RMP 

rule do not currently include a root cause analysis. 

A root cause analysis could identify the underlying reasons for a chemical accident to prevent 

future accidents and ensure compliance with the RMP rule. Therefore, EPA is considering a 

modification to the rule to require the owner or operator of a facility with a Program 2 or Program 

3 process to complete a root cause investigation (i.e. identifying the fundamental reason why an 

incident occurred and the correctable failures(s) in management systems) for all RMP reportable 

accidents and near misses within 12 months of the incident. Any recognized methodology that 

identifies the root causes can be used for the analysis. EPA is also clarifying the definition of a 

catastrophic release and clarifying which near miss incidents must be investigated. EPA is 

proposing to modify the definition of catastrophic release to be identical to reportable accidents 

under the five year accident history requirement. A catastrophic release would mean a major

uncontrolled emission, fire, or explosion, involving one or more regulated substances that results 

in deaths, injuries, or significant property damage on-site, or known offsite deaths, injuries, 

evacuations, sheltering in place, property damage, or environmental damage.
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Safer Alternatives Analysis

The owner or operator of a facility with a Program 3 process must conduct a PHA to identify, 

evaluate, and control process hazards involving regulated substances. However, the PHA does 

not require the owner or operator to consider safer technologies and alternatives (including 

inherently safer technologies (IST)) that could prevent or minimize the effects of chemical 

accidents. 

EPA is considering a modification to the rule to require the owners or operators of a subset of 

facilities with Program 3 processes to analyze potential safer technologies and alternatives and 

evaluate the feasibility of implementing any inherently safer technologies considered. However, 

the owner or operator would not be required to implement any prescribed technology. EPA would 

propose to define feasible to mean “capable of being successfully accomplished within a 

reasonable time, accounting for economic, environmental, legal, social, and technological 

factors”.

EPA is considering limiting this requirement to owners or operators of Program 3 facilities in 

NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 

325 (chemical manufacturing) because these facilities operate complex processes and had high 

accident rates during the 10-year period analyzed for this proposed rule (2004-2013).7 These 

sectors are mostly owned by large businesses. 

Emergency Preparedness and Response Elements

Improved Local Coordination

The owner or operator of a facility with a Program 2 or Program 3 process must develop an 

emergency response program except when the community emergency response plan addresses 

toxic substances at the facility, or the owner/operator has coordinated response actions for 

flammable substances with local fire department. However, state and local emergency response 

officials have indicated that some RMP facility owners or operators have not adequately 

coordinated with Local Emergency Planning Committees (LEPCs) and local emergency 

responders.

EPA is considering a modification to the RMP rule that would require the owner or operator of a 

facility with a Program 2 or Program 3 process to coordinate annually with the LEPC or local 

emergency responders to ensure response capabilities exist. The facility owner or operator would 

be required to document these coordination activities. Additionally, EPA is considering an option 

to allow the LEPC or local emergency responders to request that the facility owner or operator 

prepare an emergency response program in accordance with the RMP rule requirements. 

Emergency Response Exercises

There is no RMP requirement for a facility owner or operator to exercise the facility emergency 

response program or plan. However, lessons learned from incidents at RMP facilities often 

indicate poor emergency response planning and execution. Therefore, requiring exercises is 

likely to improve emergency response performance by facility personnel and community 

responders and reduce the consequences of an accident to the community.

7 EPA analyzed data from the EPA RMP database.
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EPA is considering a modification to the rule to require the owner or operator of a facility with a 

Program 2 or Program 3 process to test their emergency response program through notification, 

tabletop, and/or field exercises as follows:

• Both “responding” and “non-responding” facilities8 would be required to conduct an

annual notification exercise;

• Responding facilities would conduct a field exercise every 5 years and a tabletop 

exercise annually in interim years and invite local responders to participate; and

• The facility owner or operator would be required to document all exercises.

Information Sharing

The facility RMP must be made available to the public and LEPC/first responders (with the 

exception of certain data that have restricted distribution to the public due to security concerns).

This applies to all facilities subject to the RMP rule (including Program 1 facilities). However, 

accessing and understanding the information in the plans can be challenging. 

EPA is considering modifications to the RMP rule that would make emergency response 

information easier to comprehend and ensure greater transparency without compromising 

security. EPA would require all RMP facility owners or operators to provide chemical hazard 

information to LEPCs or local emergency response officials, including:

• Information on regulated substances;

• Incident investigation report summaries (with root cause findings);

• Exercise reports and schedules;

• Compliance audit report summaries;

• Accident history; and,

• Summary of inherently safer technologies implemented or planned to be implemented.

EPA is also considering requirements that would make existing public information available in an 

easily accessible format including:

• Name of regulated substances held in a process;

• Safety data sheets (SDS);

• Accident history information;

• Summary of the emergency response program;

• Exercise reports and schedules; and

• LEPC contact information.

Finally, EPA is considering requiring public meetings to be held by facility owners or operators 

once every five years and within 30 days of an RMP reportable accident.

2.4 Related Federal Rules

The RMP is one of several programs regarding chemical facility safety and security. EO 13650 directed 

the Environmental Protection Agency (EPA), the Department of Labor (DOL), the Department of 

Homeland Security (DHS), the Department of Justice, the Department of Agriculture, and the Department 

of Transportation to identify ways to modernize policies, regulations, and standards to enhance safety 

and security in chemical facilities. The EO established a Chemical Facility Safety and Security Working 

Group to oversee this effort, which is tri-chaired by the EPA, DOL, and DHS and includes leadership and 

 

8 “Responding” facilities are those facilities subject to the emergency response program requirements of §68.95. 

“Non-responding” facilities are those facilities not subject to §68.95.
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subject matter experts from each of the above listed Departments and agencies. Members of the Working 

Group (at the management and staff level) regularly share information in order to coordinate activities on 

any work involving revisions in regulations, such as revisions to OSHA’s PSM standard and DHS’ CFATS 

regulations.

OSHA’s PSM standard (29 CFR 1910.119)

Mandated by the Clean Air Act Amendments of 1990 and issued in 1992, the PSM standard sets 

requirements for the management of highly hazardous substances to prevent and mitigate 

hazards associated with catastrophic releases of flammable, explosive, reactive, and toxic 

chemicals that may endanger workers. The PSM standard covers the manufacturing of

explosives and processes involving threshold quantities of flammable liquids and flammable

gasses, as well as 137 other highly hazardous chemicals.

Occupational Safety and Health Act General Duty Clause

Section 5(a)(1) of the Occupational Safety and Health (OSH) Act requires employers to provide 

its employees with a workplace free from recognized hazards that are causing, or are likely to, 

cause death or serious physical harm.

EPA’s Emergency Planning and Community Right-to-Know Act (EPCRA) regulations (40 

CFR 350-372)

Following the 1984 release of approximately 40 tons of methyl isocyanate into the air in Bhopal, 

India, that killed over 3,700 people and the 1985 leak of 500 gallons of aldicarb oxime from a 

Union Carbide facility in Institute, West Virginia, Congress passed EPCRA in October 1986. The 

purpose of EPCRA is twofold: (1) to encourage and support emergency planning efforts at the 

State and local levels, and (2) to provide the public and local governments with information 

concerning potential chemical hazards present in their communities.

EPCRA created State and local infrastructure designed to (1) prepare for and mitigate the effects 

of a chemical incident and (2) ensure that information on chemical risks in the community is 

provided to the first responders and the public. These State and local entities are the State 

Emergency Response Commissions (SERCs), Tribal Emergency Response Commissions 

(TERCs), LEPCs, and Tribal Emergency Planning Committees (TEPCs). Representatives on the 

LEPCs include local officials and planners, facility owners and operators, first responders, health 

and hospital personnel, environmental groups, and citizen/members of the public. 

A central requirement of LEPCs and TEPCs is to develop a local emergency response plan.

These plans are required to: 

• Identify facilities and transportation routes of extremely hazardous substances and 

assess the risk based on chemical information from facilities; 

• Describe on-site and offsite emergency response procedures; 

• Designate a community coordinator and facility emergency coordinator(s) to implement 

the plan; 

• Describe emergency notification procedures;

• Describe how to determine the probable affected area and population by releases 

(including identification of critical community receptors and assets); 

• Describe local emergency equipment and facilities and the persons responsible for them; 

• Describe evacuation plans;

• Identify the training program for emergency responders (including schedules); and 
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• Identify the methods and schedules for exercising emergency response plans.

Under the community right-to-know section of EPCRA, certain facilities that manufacture,

process, or store any hazardous chemicals are required to submit an SDS or list of hazardous 

chemicals, grouped into hazard categories, to SERCs, TERCs, LEPCs, TEPCs, and local fire 

departments. Under the Hazard Communication Standard, OSHA requires SDSs that describe 

the properties, hazards, and health effects of these chemicals as well as emergency response 

procedures and appropriate personal protection equipment. Facilities must also annually report

their inventories of all onsite chemicals for which SDSs are required that are stored above 

reporting threshold quantities to SERCs, LEPCs, and local fire departments. LEPCs must use 

information about chemical inventories at facilities and SDSs in developing their local emergency 

plans; this information must also be available to the public.

Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal 

Facilities (40 CFR 264 and 265)

These regulations establish minimum national standards which define the acceptable 

management of hazardous waste including requirements for arrangements that owners and 

operators of hazardous waste facilities make with local authorities. In sections 264.37 and 

265.37, hazardous waste generators are required to attempt to make arrangements for 

emergency response activities with local authorities, and document the refusal of local or State 

authorities to complete such arrangements in the operating record.

CAA Section 112(r)(1) general duty clause 

The statute requires facility owners and operators to identify hazards; design, maintain and safely 

operate a facility; and prevent and minimize releases of any regulated substances under 

§112(r)(3) (40 CFR Part 130) and “any other extremely hazardous substance.”9

Department of Homeland Security (DHS) requirements –Chemical Facility Anti-Terrorism 

Standards (CFATS) (6 CFR 27) 

The CFATS program, established in 2007, regulates chemical facilities that present a high level of 

security risk to ensure they have security measures in place to reduce the risks associated with 

their possession of chemicals of interest (COI). There are 325 COI and 137 of the 140 RMP 

regulated substances are included on the list of COI.

The CFATS program requires the development, submission, and implementation of Site Security 

Plans (SSPs) (or Alternative Security Programs in lieu of SSPs), which document the security 

measures high-risk chemical facilities use to satisfy the applicable risk-based performance 

standards (RBPS) under CFATS. These plans are not “one-size-fits-all,” but in-depth, highly

customized, and dependent on each facility’s unique circumstances.

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requirements for explosives.

ATF is responsible for enforcing Federal explosives laws that govern commerce in explosives in 

the United States, including licensing, storage, recordkeeping, and conduct of business. ATF 

 9 Although the term “any other extremely hazardous substance" is not defined, the legislative history of the 1990 

CAA amendments indicates that the term would include any agent "which may or may not be listed or otherwise 

identified by any Government agency which may as the result of short-term exposures associated with releases to 

the air cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity." 

See: http://www2.epa.gov/sites/production/files/2013-10/documents/gdcregionalguidance.pdf
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conducts inspections of Federal explosives licensees who manufacture, import, sell, or store 

explosives in the United States to ensure that explosives are managed in accordance with 

Federal law.

Additionally there are state and local chemical accident prevention requirements in California, Delaware, 

Louisiana, Nevada, New Jersey, and other states and localities.

3. APPLICABLE SMALL ENTITY DEFINITIONS

The Regulatory Flexibility Act (RFA) defines small entities as including “small businesses,” “small 

governments,” and “small organizations” (5 USC 601). The regulatory revisions being considered by EPA 

for this rulemaking are expected to affect a variety of small businesses and small governments but would 

not affect any small organizations. The RFA references the definition of “small business” found in the 

Small Business Act, which authorizes the Small Business Administration to further define “small business” 

by regulation. The SBA definitions of small business by size standards using the North American Industry 

Classification System (NAICS) can be found at 13 CFR 121.201.

The detailed listing of SBA definitions of small business for affected industries or sectors, and small

governments, by NAICS code, is included in Table 1, below. Table 2 presents the small/large breakdown 

of facilities by sectors and by program level.
14

Table 1: Industry Sector Small Entity Standards Potentially Affected by EPA’s Planned Action

NAICS Sector

SBA Size 

Standard

for Small 

Business

NAICS Sector

SBA Size 

Standard for 

Small 

Business

111 Crop Production $0.75m 3253 Pesticide, Fertilizer, 

and Other Agricultural 

Chemical 

Manufacturing

500 FTE

112 Animal Production 

and Aquaculture

$0.75m-

$15m

3254 Pharmaceutical and 

Medicine Manufacturing

750 FTE

115 Support Activities for 

Agriculture and 

Forestry

$7.5m 3255 Paint, Coating, and 

Adhesive 

Manufacturing

500 FTE

211111 Crude Petroleum and 

Natural Gas 

Extraction

500 FTE 3256 Soap, Cleaning 

Compound, and Toilet 

Preparation 

Manufacturing

500-750 FTE

221112 Fossil Fuel Electric 

Power Generation

750 FTE 3259 Other Chemical 

Product and 

Preparation 

Manufacturing

500-750 FTE

22131 Water Supply and 

Irrigation Systems

$27.5m 326 Plastics and Rubber 

Products Manufacturing

500 -1000 

FTE

22132 Sewage Treatment 

Facilities

$20.5m 327 Nonmetallic Mineral 

Product Manufacturing

500 -1000 

FTE

3111 Animal Food 

Manufacturing

500 FTE 331 Primary Metal 

Manufacturing

500 -1000 

FTE

3112 Grain and Oilseed 

Milling

500 -1000 

FTE

332 Fabricated Metal 

Product Manufacturing

500 -1000 

FTE

3113 Sugar and 

Confectionery 

Product 

Manufacturing

500-750 

FTE

333 Machinery 

Manufacturing

500 -1000 

FTE

3114 Fruit and Vegetable 

Preserving and 

Specialty Food 

Manufacturing

500 -1000 

FTE

334 Computer and 

Electronic Product 

Manufacturing

500 -1000 

FTE

3115 Dairy Product 

Manufacturing

500 FTE 335 Electrical Equipment, 

Appliance, and 

Component 

Manufacturing

500 -1000 

FTE

3116 Animal Slaughtering 

and Processing

500 FTE 336 Transportation 

Equipment 

Manufacturing

500 -1000 

FTE

3117 Seafood Product 

Preparation and 

Packaging

500 FTE 337 Furniture and Related 

Product Manufacturing

500 FTE

3118 Bakeries and Tortilla 

Manufacturing

500-750 

FTE

339 Miscellaneous 

Manufacturing

500 FTE

3119 Other Food 

Manufacturing

500 FTE 42 Wholesale Trade 100 FTE
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NAICS Sector

SBA Size 

Standard

for Small 

Business

NAICS Sector

SBA Size 

Standard for 

Small 

Business

3121 Beverage 

Manufacturing

500 FTE 44422 Nursery, Garden 

Center, and Farm 

Supply Stores

$11m

322 Paper Manufacturing 500-750 

FTE

45431 Fuel Dealers 50 FTE

32411 Petroleum Refineries 1500 FTE 48691 Pipeline Transportation 

of Refined Product

1,500 FTE

32412 Asphalt Paving, 

Roofing, and 

Saturated Materials 

Manufacturing

500 FTE 48821 Support Activities for 

Rail Transportation

$15m

32419 Other Petroleum and 

Coal Products 

Manufacturing

500-750 

FTE

4931 General Warehousing 

and Storage

$27.5m

3251 Basic Chemical 

Manufacturing

750-1000 

FTE

56179 Other Services to 

Buildings and Dwellings

$7.5m

3252 Resin and Synthetic 

Rubber 

Manufacturing

750-1000 

FTE

5621

5622

Waste Management $38.5m

92 Public Administration <50,000 

residents 

served
16

Table 2: Program Level and Size by Sector

NAICS Description Program 1 Program 2 Program 3 Total Small Large Small Large Small Large

311 Food Mfg. 1 2 6 5 357 1014 1385

3121 Beverage Mfg. 0 0 0 0 11 80 91

322 Paper Mfg. 0 1 0 1 5 63 70

324 Petroleum & Coal 

Products Mfg. 5 8 0 3 21 119 156

325 Chemical Mfg. 32 21 49 27 458 878 1465

313, 321, 326, 

327, 33

Textile Mills; Wood 

Product Mfg; Plastic 

& Rubber Products 

Mfg; Nonmetallic 

Mineral Product Mfg; 

and Other 

Manufacturing10

33 29 34 39 113 136 384

4246 Chemical & Allied 

Products Merchant 

Wholesalers

2 4 0 0 91 236 333

4247 Petroleum & 

Petroleum Products 

Merchant 

Wholesalers

3 11 0 0 69 193 276

11, 12, 15, 

42491

(Ag Chemical 

Distributors)

Crop Production; 

Animal Production 

and Aquaculture; 

Support Activities for 

Agriculture and 

Forestry; & Farm 

Supplies Merchant 

Wholesalers

9 1 0 0 1809 1848 3667

211 Oil and Gas 

Extraction 88 222 13 28 104 286 741

2213 Water, Sewage & 0 1 6 4 12 79 102

 10 For description of industry sectors classified under NAICS code 33, see table 1.
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NAICS Description Program 1 Program 2 Program 3 Total Small Large Small Large Small Large

Other Systems

221 Utilities 22 16 35 37 80 153 343

493 Warehousing & 

Storage 11 59 0 0 267 719 1056

423, 424 Merchant

Wholesalers, Durable 

& Nondurable Goods

0 5 0 0 100 197 302

92 Public Administration 6 9 521 414 451 522 1923

Other 7 34 31 32 48 96 248

Total 219 423 695 590 3996 6619 12542
18

4. LIST OF SMALL ENTITY REPRESENTATIVES

EPA consulted with the Small Business Administration’s Office of Advocacy to develop the list of small 

entity representatives (SERs) in Table 3. EPA issued a press release inviting self-nominations by affected 

small entities to serve as potential SERs. The press release directed interested small entities to a web 

page where they could indicate their interest in serving as a SER. EPA launched the website June 19, 

2015 and accepted self-nominations until July 3, 2015. In addition, EPA sent out an email notification 

requesting self-nominations to key external stakeholders, including trade associations, and small entity 

representatives in the regulated community that may be impacted by the proposed RMP rule changes.

EPA sent the Office of Advocacy a Formal Notification with the suggested list of potential SERs on July 

10, 2015 and the Office of Advocacy responded on July 24, 2015. 

Table 3: List of Small Entity Representatives

Name Affiliation

1 Lance Crimmins

Safety and Risk Manager Glasgow Water Company

2 Kelly K. Willmott AMVAC Chemical Corporation

3 Robert Michaelson

Water Systems Manager Manitowoc Public Utilities Water Department

4 Robin Bolte

Regulatory Affairs Manager Allied Universal Corporation

5 Mike Wollner Nebraska Fertilizer & Chemical Association

6 Bradley Rodgers

Industrial Hygienist FutureFuel Chemical Company

7 Mike Shorts Fluid Sealing Association

8

Lyndon Denton

Business Development & Public 

Relations Manager

Apache Nitrogen Products, Inc.

9 Thatcher Block

President Ag Cooperative Safety Directors of Iowa

10 Shawn Ward

SHE Manager Cornerstone Chemical Company

11

Lowell Randel

Vice President, Government and Legal 

Affairs

International Association of Refrigerated 

Warehouses (IARW)

12

Tim Brown

Executive Vice President and Chief 

Strategy Officer

American Refining Company

13 Kelly R. Kane

Vice President of Operations Specialty Polymers, Inc.

14 Charles T. Newell

President Minnesota Freezer Warehouse Company

15 Rae Cornmiller 

Dorothy Kellogg National Rural Electric Cooperative Association

16 Jess McCluer National Grain and Feed Association (NGFA)

17 John Auger

Vice President Brook Warehousing Corporation

18 Mike Gapp

Safety Director Kugler Oil Company
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Name Affiliation

19 Michael Williams

Safety and Risk Coordinator Agronomy Services, LLP

20 Matt Hite Gas Processor Association (GPA)

21 Tim Gominiak

Maintenance Engineer Manager Perry’s Ice Cream Company

22 Brenda Seggerman

EHS Engineer Hydrite Chemicals Company

23 Emily Lyons International Dairy Foods Association

24 Jennifer Gibson National Association of Chemical Distributors

25 Javaneh Nekoomaram American Coatings Association

26 Mark Dreux Arent Fox

27 Lara Swett American Fuel and Petrochemical 

Manufacturers (AFPM)

28 Dan Moss

Director, Government Relations 

Society of Chemical Manufacturers & Affiliates 

(SOCMA)

29 Edward Flynn Louisiana Chemical Association

30

Karen Haase

Senior Director, Safety, Regulatory & 

Technical Affairs

American Chemistry Council

31

Chris Wheland

Assistant Operations Manager, 

Department of Public Utilities

City of Troy

32

Kevin M. Morley

Security & Preparedness Program 

Manager

American Water Works Association

5. SUMMARY OF SMALL ENTITY OUTREACH

In 2013 and 2014, as part of the EO 13650 activities, the federal government held a dozen listening 

sessions, supplemented by two online webinars. The locations for listening sessions were selected to 

reach as many and as diverse stakeholder groups as possible. Many listening sessions were held both 

during and outside of work hours to maximize stakeholder participation.11

EPA also held several meetings with trade associations, include those representing small businesses, to 

discuss the actions the agency is considering under the EO and how we can partner with industry to 

improve chemical safety.

EPA conducted a meeting/teleconference with potential SERs on September 22, 2015. To help potential

SERs prepare for the meeting/teleconference, on September 10, 2015, EPA sent materials to each of the 

potential SERs via email. A list of the materials shared with the potential SERs during the pre-Panel 

outreach meeting is contained in Appendix A. For the September 22nd pre-Panel outreach meeting with 

the potential SERs, EPA also invited representatives from the Office of Advocacy of the Small Business 

Administration and the Office of Information and Regulatory Affairs within the Office of Management and 

Budget. A total of 29 potential SERs and SER helpers participated in the meeting. EPA presented an 

overview of the SBREFA process, an explanation of the planned rulemaking, and technical background.

 11 For a list of locations and notes for these sessions go to http://www.regulations.gov, docket # DHS-2013-0075.
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This outreach meeting was held to solicit feedback from the potential SERs on their suggestions for the 

upcoming rulemaking. EPA asked the potential SERs to provide written comments by October 6, 2015. 

EPA conducted a meeting/teleconference with SERs on November 19, 2015. To help SERs prepare for 

the meeting/teleconference, on November 4, 2015, EPA sent materials to each of the SERs via email. A 

list of the materials shared with SERs during the Panel outreach meeting is contained in Appendix A. A 

total of 25 SERs and SER helpers participated in the meeting. EPA presented an explanation of the 

planned rulemaking, and technical background. This outreach meeting was held to solicit feedback from 

the SERs on their suggestions for the upcoming rulemaking. EPA asked the SERs to provide written 

comments by December 9, 2015.

Comments and discussion during the pre-Panel and Panel outreach meetings and written comments 

submitted by the SERs are summarized in section 6, and included in their entirety as Appendix B.

6. SUMMARY OF COMMENTS FROM SMALL ENTITY 

REPRESENTATIVES

6.1 Pre-Panel Outreach

6.1.1 Summary of Verbal Comments

The following is a summary of the discussion and comments by the potential SERs during the pre-panel 

outreach meeting.

General Comments

One potential SER asked if SBAR panels should be initiated for all actions. EPA responded that SBAR 

panels are only required for rules where EPA cannot certify no Significant Economic Impact on a 

Substantial Number of Small Entities (SISNOSE).

Another potential SER asked if the written comments will be specifically addressed by the Panel. EPA 

responded that written comments do not get individual formal responses. They are included in the overall 

package and considered when the Panel provides recommendations.

A few potential SERs asked about the process for submitting written comments and whether the 

comments would be made public. EPA responded that written comments should be e-mailed to EPA by 

October 6th and that comments would be made public as part of the Panel convening document. 

However, EPA noted that if there are confidential business information (CBI) concerns, that the potential 

SER should contact EPA to discuss other methods for submission. EPA asked potential SERs to consider 

providing comments on what aspects of the proposed provisions work well as well as those they think do 

not work well.

One potential SER asked whether a government shutdown would have an impact on the Panel schedule. 

EPA responded that it would not have an impact on the deadline for submitting written comments, but that 

it could potentially have an impact on the timeline for the overall panel process.

One potential SER asked for a draft copy of the rule preamble before the next meeting. EPA responded 

that we are still drafting the preamble and will not have a copy available to share.12

 12 EPA has not historically shared draft rule preamble with potential SERs during the Panel process.
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Background on Regulatory Actions

One potential SER asked how EPA determined that regulatory improvements should be focused on the 

RMP rule rather than the EPCRA rule. EPA responded that the agency also looked at EPCRA as part of 

the response to EO 13650. EPA explained that based on information from listening sessions, EPA 

determined that its efforts should focus on how to assist LEPCs and SERCs to implement existing 

EPCRA requirements, rather than pursue a rulemaking effort. EPA further explained that the EPCRA 

statutory requirements are comprehensive and address requirements for planning, gathering information, 

and training response personnel. There is no need for EPCRA regulatory changes and instead the focus 

is on assistance and implementation of the requirements.

Another potential SER commented that facility personnel have requested local fire departments to come 

to the facility, tour the operations, and determine how to address emergencies; however, it is almost 

impossible to get the locals to participate. The potential SER asked EPA to focus efforts more on 

communities and less on regulations for small businesses. EPA responded that, as part of the EO 13650 

implementation, we looked at a number of EPCRA and RMP implementation issues. We are not just 

focusing on the West, TX accident nor are we focused solely on regulations. For EPCRA, EPA realized 

the issue was not regulatory. The statute has strong provisions to get communities to work together to 

plan for risks. During the EO listening sessions, EPA heard the concern about local emergency planners 

and responders not coordinating with facility personnel. EPA stated that the agency has also heard the 

opposite from LEPCs (i.e., that facility personnel are not coordinating and working with local emergency 

planners and responders). EPA further explained that the coordination activities vary nationwide and are 

dependent on the community personnel and whether leaders are focused on emergency planning. EPA is 

looking at finding ways to better facilitate the relationship between communities and facility 

representatives. EPA solicited feedback on how the potential SERs would recommend getting 

communities more involved. For RMP, EPA is focusing on priority issues where we believe we can 

improve chemical safety and those facilities that potentially pose a greater risk of a future accident.

Another potential SER asked EPA to identify which of the regulatory issues were selected as a result of 

the West, TX explosion. EPA agreed to address the question as the presenter addresses each issue in 

detail. Throughout the presentation, as each provision was described, EPA stated:

• The proposed third-party compliance audit provisions were identified as a result of experience 

with implementation.

• The proposed incident investigations and root cause analysis provisions were not directly related 

to the West, TX explosion.

• The proposed local coordination provisions are addressing concerns that EPA was aware of 

before the Executive Order.

• The proposed information sharing provisions are addressing concerns EPA heard about in the 

listening sessions and issues identified as a result of experience with implementation.

Information on RMP Accidents

One potential SER asked if EPA noted a decline in the number of accidents since the RMP rule was 

published. EPA responded that we have seen a slight decrease in the number of accidents over the tenyear period analyzed (2004-2013). However, EPA noted that there are many things to consider when 

assessing whether this decline was the result of the RMP rule. EPA does not have data to compare to the 

number of accidents prior to the accident histories collected under the RMP rule.

Another potential SER was confused that the percentage of small businesses in each category on slide 

18 equaled more than 100% when added together. EPA responded that the percentages are based on 
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the number of small businesses in each category. EPA agreed to clarify this point in the Panel outreach 

materials.

One potential SER asked if the percentage is based on the number of facilities or the number of 

companies in each category. The potential SER noted that in the refrigerated warehousing sector, the 

percentages do not seem to accurately reflect the makeup of the industry, concluding that the sector has 

a lot more small businesses than what is shown. The potential SER suggested that EPA revise the 

presentation to note that the percentage is of facilities in that sector that are part of a small business. 

Another potential SER echoed the comment and indicated that small businesses are the majority for 

warehouses in the sector he represents. EPA responded that when looking at the size of entities, it 

applies the SBA definition that defines small businesses by the size of the firm, not the facility. EPA 

agreed that additional language explaining the percentages would be helpful to make the table easier to 

understand.

Impact of More Stringent State Requirements

Another potential SER asked whether EPA considered the impacts that more stringent state requirements 

may have on small entities. The potential SER noted that NJ requires all facilities to meet Program 3 

requirements (even if they would be eligible for Program 1 under the RMP rule). EPA responded that we 

looked at the NJ and CA regulations and how their rules impact RMP. For this rule, the options being 

considered would impact both Program 2 and Program 3 processes (with the exception of one issue that 

would apply to a subset of Program 3 processes based on NAICS codes). The potential SER later 

reemphasized his concern that state requirements that are more stringent may make it difficult for some 

small facilities to comply with the proposed rule.

Impact of Other Federal Agency Requirements

One potential SER asked if EPA considered the revised OSHA PSM retail exemption policy when 

developing the rule issues.13 The potential SER noted that agricultural facilities would be pushed to 

Program 3 requirements as a result of the OSHA policy change and would be subject to the more 

stringent requirements. The potential SER also noted that the presentation shows that agricultural 

distributors currently in Program 2 have had no accidents. EPA responded that we did consider this policy 

change. EPA already accounted for the change on slides 17 and 18 for the agricultural sector by moving 

the Program 2 processes information to the Program 3 column.

Another potential SER asked if EPA considered the OSHA chemical concentration reinterpretation.14 The 

potential SER further noted concern that this policy change may impact the number of their facilities that 

are subject to Program 3 requirements. EPA responded that we did not consider this policy because, with 

a couple of minor exceptions, we believe RMP already covers most of those facilities that OSHA will 

cover in the future. EPA further explained that we believe that affected facilities are already Program 3 

under the current RMP rule. The potential SER noted disagreement with this conclusion and would followup.

Third-Party Compliance Audits

 13 See OSHA Interpretation Letter on PSM Retail Exemption Interim Enforcement Policy (July 22, 2015) available at 

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29525.

14 See OSHA Interpretation Letter on Process Safety Management of Highly Hazardous Chemicals and Covered 

Concentrations of Listed Appendix A Chemicals (June 5, 2015) available at 

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29411.
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One potential SER asked if the SERs will be provided the level of details that would be required for thirdparty audits and what kind of auditor qualifications will be required. EPA responded that we would provide 

more details and further indicated that the auditor would not be permitted to be associated with the 

facility. The potential SER further asked that if he uses a third-party for modeling of releases and 

consultation activities, will he be able to pick an auditor from that company. EPA responded that the 

current proposal would not allow an entity to use an auditor from a previous consulting relationship that 

extends beyond auditing.

Another potential SER expressed concern with his past experience with bad auditors. The potential SER 

requested that EPA consider doing the compliance audit instead. EPA responded that the government is 

not an auditor; however, we are planning to include strong competency requirements for auditors to avoid 

bad auditors. EPA solicited input on requirements for auditor competency.

Two potential SERs asked if EPA has any data showing that audits done by third-party auditors lead to 

better results. EPA responded that it does have data showing that independent third-party audits have 

better results and that the relevant references will be provided in the Panel outreach materials as well as 

in the preamble of the proposed rule.

One potential SER encouraged EPA to be open-minded when defining criteria for independent auditors. 

For example, on-site personnel can get auditing competency qualifications from the American Petroleum 

Institute (API). The potential SER further noted concerns with how an independent auditor would gain the 

necessary knowledge to be able to evaluate the facility processes. The potential SER indicated that a lot 

of time and effort goes into training current auditors.

Another potential SER expressed concern over auditor availability and whether EPA has data on the pool 

of auditors that may be available. The potential SER further noted that it could be difficult to find an 

auditor, especially if the facility cannot hire an outside party that they have worked with in the past. EPA 

acknowledged this as an ongoing concern that the agency is considering. However, EPA noted that we 

do not expect a lot of facilities to need to hire an independent auditor since the requirement only applies 

after an RMP reportable accident occurs. EPA further indicated that we know that there are firms that do 

process safety auditing but we do not have a database or number of auditors available. 

One potential SER asked for clarification that the requirement only applies to the first audit after an 

accident. EPA confirmed that this is true. Another potential SER asked for clarification that this 

requirement only applies to the triennial compliance audit and not the PHA update that is required every 

five years. EPA confirmed that this is true.

Another potential SER asked EPA to consider limiting the types of RMP reportable accidents to further 

reduce the number of audits that would be required. For example, require third-party audits only after an 

accident with offsite impacts. EPA responded that it will consider this approach.

One potential SER asked for clarification as to whether a third-party audit would be required after a near 

miss. EPA responded that a near miss would not trigger the requirement to have a third-party audit. 

One potential SER stated that EPA Region 7 staff already conduct audits after an accident occurs and 

asked why there is also a need for a third-party audit. EPA responded that EPA staff do inspections, not 

audits. EPA further noted that the Agency is able to inspect only a small number of facilities each year.

One potential SER suggested that EPA consider the overlap between incident investigation requirements 

and third-party audits, because both are triggered when an accident occurs. The potential SER suggested 

that the incident investigation should be completed before a third-party audit is conducted because the 

information from the investigation will be considered as part of the audit. 
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One potential SER asked how the new audit requirements would apply to the annual audits required by 

more stringent state requirements (e.g., New Jersey). EPA responded that the new requirements would 

have no effect on NJ state requirements.

Incident Investigation/Root Cause Analysis 

Many potential SERs expressed concerns over how EPA might define near misses. One potential SER 

asked if EPA will provide guidance. EPA responded that it does not intend to define near miss in the rule. 

However, EPA further explained that we will provide guidance on near misses in the preamble. Another 

potential SER asked for clarification on whether facilities would be expected to try and differentiate 

between near misses that will require an incident investigation and those that do not. EPA confirmed that

this is true.

Another potential SER expressed concern that EPA will not define near miss. He stated that his concern 

is that EPA inspectors will identify what they interpret as near misses that occurred at the facility and cite 

the facility for failure to conduct an incident investigation. The potential SER explained that different 

people can look at a near miss in many different ways if it’s left open to interpretation. EPA responded 

that we recognize this is an issue of concern and have spent a lot of time considering how to provide 

guidance on near misses. EPA noted that it is difficult to develop a definition that can cover all possible 

near misses that may occur in the universe of RMP facilities. 

After asserting that near misses are addressed in other regulatory programs, one potential SER 

recommended that EPA collaborate with OSHA, DHS, and other agencies so we have consistent 

guidance on near misses. EPA agreed.

One potential SER asked for clarification on what we mean by a “recognized root cause analysis.” The 

potential SER stated that there are many ways to do a root cause analysis and questioned whether any 

well accepted methodology that is used to identify the central problem causing an issue would be 

acceptable or whether EPA will specify a methodology. EPA responded that any established, recognized 

methodologies that identify the root cause can be used.

Another potential SER asked whether any actions would be required in response to the findings from the 

root cause analysis. EPA responded that a report would need to be created, which would include the 

findings and a description of the actions that the facility will need to take to prevent a similar accident in 

the future. The potential SER further asked if there is a timeframe in which responsive actions are 

required to be performed. EPA responded that a schedule should be included in the report. Another 

potential SER asked whether EPA would make a judgement on the acceptability of the timeline included 

in the report. EPA responded that it would not make such a judgement.

One potential SER asked whether there was a requirement to submit the report, and, if so, how 

submission should occur. EPA responded that there would be no requirement to submit the report to 

EPA, but that a facility would be required to report the accident that occurred and that they have done the 

investigation.

One potential SER asked if EPA expects reporting of near misses. EPA responded that there is not a 

requirement to report near misses under the accident history section of the RMP, but that sources would 

have to report completion of root cause investigations for incidents, which include accidents and near 

misses.

Safer Alternatives Analysis 

One potential SER asked what the value is in evaluating safer alternatives without also requiring 

implementation. EPA responded that, like other parts of the PHA, the purpose is to improve safety and 

prevent accidents. EPA stated that during the analysis there is the potential for a facility owner or operator 
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to see opportunities that he may choose to implement. The potential SER asked if the idea is to look at 

better controls, this is a subset of IST and the requirement is not clear. The potential SER indicated that 

an IST review is best at the design stage; however the team that does a PHA review are not design 

engineers; instead the facility needs someone knowledgeable on processes and underlying methodology. 

The potential SER expressed concerns that an IST review may not be a good fit. EPA responded by 

agreeing to provide more clarity on this issue and that we could revise the presentation to include the 

range of safer technology and alternatives.

One potential SER indicated that her facility is a batch toll manufacturer and expressed concern that they 

may lose business if they need to evaluate safer alternatives for custom formula blends. The potential 

SER questioned whether EPA had considered the impacts of this requirement on batch toll 

manufacturers. EPA responded that it had not specifically considered the impacts on batch toll 

manufacturers, but noted that if a safer technology would not apply, then there is no requirement to make 

changes.

One potential SER asked if EPA has data that shows examples where IST were implemented and 

resulted in safer facilities. EPA responded that we are looking at such data and will discuss it in the rule

preamble or in the RIA, as appropriate.

Improved Local Coordination 

Many potential SERs expressed frustrations that in some cases, LEPC and local response officials are 

not active, are unwilling to coordinate with the facility personnel, or are volunteer personnel without the 

strong technical knowledge needed to understand the facility information. One potential SER noted that it 

is difficult for a small business to do some of these things and expressed frustration that facilities would 

be required to do more to comply with the RMP rule because LEPCs do not do their job.

One potential SER asked for clarification on the definition of coordination. The potential SER noted past 

experience on coordination which involved sending a letter to the LEPC with no response. The potential 

SER expressed concern that a requirement to do anything more than that could be a problem. EPA 

responded that it would consider this comment. EPA further responded that when the local community is 

non-responsive, the facility would be required to be a responding facility.

Another potential SER asked a follow-up question expressing concern that a small dealership with only a 

few employees would have to buy a fire truck if the local responders and fire station didn’t respond to the 

facility’s attempt to coordinate. The potential SER also believed that sending in EPCRA Tier 2 reports 

serves as coordination because the local responders then know what hazardous materials the facilities

have. EPA responded that the facility personnel would only be required to develop an emergency 

response program in accordance with §68.95. EPA further indicated that coordination with local 

responders is not a new requirement and should be done as part of the development of the local 

community emergency plan, which should be available to the public. The potential SER asked for 

confirmation that if they made sure their facility was listed in local plan, then they would have no further 

requirement to go beyond that. EPA responded that under the proposed rule, regulated facilities with 

Program 2 or 3 processes would be required to perform coordination activities annually and document 

that coordination.

Many potential SERs asked for clarification on coordination and what would serve as appropriate 

documentation.

Another potential SER asked if EPA has considered the impact of these activities on the local responders

and that the proposed revisions could lead to unfunded mandates. EPA acknowledged that funding is an 

issue and that we are trying to address the gap that exists when a facility can't respond and is relying on 

local responders, but the local responders don’t have the capability to respond. EPA expects that some 
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non-responding facilities will have to develop a response capability. There are a number of ways to do 

that (establish an on-site team and follow the requirements of HAZWOPER,15 enter into mutual aid 

agreements; or get a response contractor). EPA expects that this provision and the exercise requirements 

will be the most expensive provisions of the rule. 

One potential SER asked if a facility with only 10 employees with anhydrous ammonia will have to 

respond to protect the community. EPA responded that this is not the expectation. Instead, the facility 

personnel will need to develop a plan in accordance with §68.95 to have procedures in place to respond 

at the facility. For example, this would include procedures to make appropriate notifications so that the 

local response officials can respond to protect the community. EPA further described the requirements of 

§68.95.

One potential SER asked EPA to provide a breakdown that shows how many responding facilities and 

non-responding facilities are small businesses. EPA agreed to provide this information in the Panel 

outreach materials. 

Emergency Response Exercises

One potential SER expressed confusion about the involvement of the community in the emergency 

response exercises in light of statements that the potential SER asserted that EPA had made previously 

during the presentation that facility’s responsibility would be limited to planning for an on-site response, as 

opposed to a response throughout the community. EPA clarified that the role of the drills and exercises is 

to ensure that personnel understand the plan and to provide local response officials an opportunity to 

understand the facility emergency response plan so they know what to do to protect the community. EPA 

explained that the exercises could involve training with outside responders, but the local responders are 

not required to participate.

Another potential SER asked what requirement applies to local communities to conduct drills. EPA 

responded that EPCRA requires the development, review, and exercise of community response plans by 

LEPCs.

Information Sharing

Many potential SERs expressed concern with providing information to LEPCs. They indicated that many 

LEPCs are not active and will not utilize the information. One potential SER expressed concern that local 

responders do not participate in coordination activities or exercises and will not review information that 

EPA is proposing that facilities submit. Two potential SERs described this as a paper exercise with very 

little benefit. EPA responded that this provision is an attempt to address concerns from LEPCs that have 

indicated that facility personnel are not coordinating and sharing information. EPA further responded that 

it is trying to balance the best way for communities to get the needed information, while not overburdening industry. Another potential SER acknowledged that some LEPCs are active but EPA should 

not overwhelm other smaller, volunteer groups with information. 

Many potential SERs also expressed concern with the types of information that EPA identified for sharing. 

They indicated that they do not see the value in sending information on compliance audits or inherently 

safer technologies. Another potential SER expressed concern over sharing IST and incident investigation 

information and that this might reveal sensitive information that could be confidential business 

information. The potential SER suggested that the summary information should be kept brief to protect 

proprietary information. For example, they suggested the investigation report information should be 

 15 Training requirements under the OSHA Hazardous Waste Operations and Emergency Response (HAZWOPER) 

standard (29 CFR 1910.120),
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limited to final outcome of the investigation and provide only a brief summary of the incident, the findings 

and what is being done to address causes. Another potential SER requested confirmation that the IST

information would only be required for a subset of industry codes and that it wouldn’t be a full report. EPA 

confirmed this understanding. One potential SER asked if the proposed requirement for data on IST 

reporting applies only to technologies that were actually implemented. EPA responded that it would apply 

only to those technologies.

Potential SERs also expressed concern over providing information to local responders or LEPCs who 

don’t have a strong technical background and that the information may not be well understood. One 

potential SER asked for clarification on what education level should be considered when developing the 

information. Potential SERs noted that many local officials do not have scientific backgrounds and do not 

understand the information presented. EPA responded by requesting information from the potential SERs 

on successful practices to bridge the communication gap between facilities and responders.

One potential SER suggested, as an alternative, that EPA limit the requirement to a brief summary of the 

chemicals at the facility so responders understand how to respond. The potential SER also cautioned that 

EPA should consider what is provided to the public to avoid providing too much information that could be 

misunderstood. The potential SER noted that misunderstood information can bring a lot of unneeded 

consternation in the event of an accident. EPA responded that there won’t be any new information 

provided to the public, highlighting that the requirement focuses instead on providing the same 

information in a more easily understood format. As to the information being provided to the LEPC, EPA 

responded that the proposed requirement involves a summary that does not need to be overly technical. 

A summary report on an accident should focus on what happened and what is being done to prevent reoccurrence.

One potential SER suggested that EPA write the information sharing provisions to allow LEPCs to 

request the information rather than require it be sent to every LEPC. EPA responded that it would 

consider this approach.

Another potential SER suggested that the information should only be sent to LEPCs and not to other 

responders. The potential SER indicated that it is the LEPC’s obligation to review the information and 

educate the responders appropriately.

Another potential SER asked for clarification on what EPA means by an “easy format” for making 

information available to the public. EPA responded that one example may be providing information at a 

public meeting and that we are open to ideas from the potential SERs.

Another potential SER indicated that it can be difficult and expensive to make technical process 

information easy to understand, depending on the audience. The potential SER further noted his 

experience in the 1990s to discuss offsite consequence analysis information with the public resulted in 

many facilities engaging in an expensive effort to host public meetings, but that few people attended the 

meetings.

Many potential SERs asked for clarification on public meetings. One potential SER asked if EPA will 

provide details on expectations for public meetings, such as the location of the meeting. EPA responded 

that it would include some guidance in the preamble. Potential SERs expressed concern over a 

requirement to hold a public meeting 30 days after an RMP reportable accident, noting that the severity of 

the accident and size of the business could present a challenge for complying with that timeframe. 

Potential SERs asked for flexibility on the timing of a public meeting following an RMP reportable 

accident. EPA responded that these are helpful comments, which the agency will consider. One potential 

SER asked for guidance on the type of notice needed to make the public aware of an upcoming meeting, 

noting that it is challenging to obtain public participation. Another potential SER asked if the public 
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meeting can be combined with other topics, to which EPA responded yes, it could be combined. EPA said 

it is looking for input from others on how their facilities reach out to the public and what successful 

practices could be shared with others.

Estimated Costs

One potential SER asked for more information on estimated costs and the data used to derive those 

costs. The potential SER also requested clarification on the diversity of facilities considered when 

estimating the cost of the rule. EPA responded that it is continuing to research the estimated costs, and 

that as the estimates are refined, the agency will provide updates during the Panel process. EPA further 

responded that the current cost estimates are based on general categories of facilities, such as simple v. 

complex facilities, and did not evaluate costs for every variety of regulated process. EPA also noted that 

for all provisions other than safer technologies, the cost analysis was done on a facility basis, rather than 

a process basis. EPA seeks feedback on the cost estimates from potential SERs.

One potential SER asked EPA to consider costs to those small businesses that would be Program 1 in 

any other state, but are Program 3 in New Jersey. Another potential SER asked EPA to consider training 

costs for investigation personnel and costs for third-party audits such as costs associated with the need to 

have auditors that are capable and qualified to review a particular process.

6.1.2 Summary of Written Comments

Below are the potential SERs that submitted written comments following the pre-panel outreach meeting 

on September 22, 2015:

• Agronomy Services LLC

• American Refining Group, Inc.

• Brook Warehousing Systems

• Cornerstone Chemical Company

• FutureFuel Chemical Company

• International Association of Refrigerated Warehouses

• Perry’s Ice Cream Company, with assistance from International Dairy Foods Association

• Kugler Company

• Minnesota Freezer Warehouse Co.

• Allied Universal Corporation, with assistance from National Association of Chemical Distributors

• National Grain and Feed Association

• Nebraska Agri-Business Association

• Hydrite, with assistance from SOCMA

A copy of these comments is included in Appendix B. The following is a summary of the written 

comments.

General Comments

One potential SER stated that the proposed RMP changes would not actually improve safety, reasoning 

that the rule as it currently stands has not been demonstrated to be deficient. Additionally, the commenter 

stated that there is no evidence that the provisions contained in the proposed rule language will reduce 

the risk of facility accidents. Another potential SER stated that the current RMP rules were sufficient, but 

encouraged EPA to put more effort into addressing compliance gaps.

Another potential SER described the primary intent of this rulemaking to be the prevention of chemical 

explosions similar to that of West, TX. The commenter asserted that the proposed rule would not make 
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anyone safer, reasoning, in part, that the incident in West, TX was ammonium nitrate, not anhydrous 

ammonia.

One potential SER commented that the proposed rule provisions would place an undue burden on 

agricultural retail operations, forcing them to either consolidate or close altogether.

One potential SER requested written confirmation that combustible dust will not be addressed by these 

revisions to the RMP program.

Information on RMP Accidents

One potential SER requested to see data that supported EPA’s claim that there has been a slight 

increase in the number of accidents over time.

Impact of More Stringent State Requirements 

One potential SER asserted that the additional emergency exercise requirements are largely irrelevant for 

facilities located in New Jersey, as the state’s Toxic Catastrophe Prevention Act already requires annual 

field exercises.

Impact of Other Federal Agency Requirements

One potential SER stated that EPA needs to consider how U.S. Department of Homeland Security’s 

Chemical Facility Anti-Terrorism Standards may impact the information sharing requirements of the 

proposed rule. The commenter asserted that these standards state that the confidentiality of Chemicalterrorism Vulnerability Information must be maintained.

One potential SER urged EPA to consider how U.S Department of Transportation’s chemical security 

plan requirements for shipments that must include site-specific and location-specific components may 

impact the proposed rule. Specifically, the commenter stated that the rule may conflict with these 

requirements because the rule would require facility’s to release information that is not strictly need to 

know.

One potential SER commented that for Food and Drug Administration (FDA)-regulated products, all 

manufacturing processes associated with that product involve FDA approvals. A safer technologies 

alternatives analysis would not be feasible without FDA approval.

Third-Party Compliance Audits

Several potential SERs questioned the impact that this requirement would have on safety. Several 

potential SERs questioned the assertion that third-party auditors are more qualified than owner/operators 

and their employees that are familiar with the nuances of their chemical processes. One potential SER 

expressed concern that an independent third-party auditor would lack knowledge of the subtleties of the 

process and rely on checklists which would reduce the quality of the audit. In addition, commenters stated 

that having an audit conducted does not necessarily mean that any of the audit recommendations will be 

implemented. One potential SER asked what evidence EPA has demonstrating that an independent 

auditor will ensure a safer process and/or fewer accidents.

Several potential SERs asserted that the term “associated” is too expansive and vague for barring 

auditors from working with facilities for which they have another relationship. Commenters said that it is 

often the case that the best auditors are retired employees who already have detailed knowledge of a 

facility’s processes. Potential SERs requested additional information on the availability of competent thirdparty auditors, qualifications that may be required, and the benefits of this provision.
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Several potential SERs expressed concern about the availability of qualified third-party auditors. One 

potential SER stated that it would likely be difficult to find a qualified auditor that did not have an 

association with their company. Another potential SER commented that small businesses would be less 

able to absorb the significant costs of third-party audits. 

One potential SER sought clarification as to whether auditors would be prohibited from offering process 

safety consulting for firms they’ve audited. The commenter cautioned that if the prohibition did not exist 

then the requirement could create an incentive for third-party auditors to find shortcomings that they could 

later offer to fix.

Incident Investigation/Root Cause Analysis 

Several potential SERs commented that the rule language used to describe the root cause analysis 

implies a specific type of investigative methodology that must be used. The commenters opposed this 

approach, reasoning that there are numerous types of methodologies that could be acceptable depending 

on the facility type and the type of incident. The commenters recommended including language that 

would clarify that the investigation can be conducted with “an appropriate methodology,” which the 

commenters asserted is the approach in the PHA requirements.

One commenter also expressed concerns over the time and effort necessary to complete a root cause 

analysis, noting that most facilities in his industry only have 4-5 employees and this would be difficult to 

complete with so few employees and take away from operational responsibilities. Another potential SER 

expressed concern over the need to train existing employees or hire outside experts to conduct this 

analysis. 

Several potential SERs also raised concerns over the ambiguity of the term “near miss.” The commenters 

stated that it is difficult to assess the full impact of the rule without understanding how broadly it would 

apply and that EPA should coordinate with other agencies such as OSHA to define this term.

Safer Alternatives Analysis (SAA)

One potential SER stated that there are staffing issues related to the SAA requirements. They stated that 

a SAA serves more of a process design function and must happen early in a facility’s development. The 

commenter asserted that available staff at a later stage in operations would include primarily engineering 

staff, not qualified to conduct an analysis of design. This potential SER raised a number of questions that 

they would like EPA to address:

• How do you measure whether one process is safer than another?

• Does EPA intend to limit the operating life of a product to onsite processing for a safer 

alternatives review?

• Does EPA have any data to demonstrate that safer alternatives reviews make a facility safer?

• What is the value of requiring a safer alternatives review but not implementing it?

• What is a near miss?

• Have EPA and OSHA agreed upon a definition for near miss?

Other potential SERs also felt that a SAA is best utilized during the design phase and not during a PHA.

Another potential SER raised liability concerns regarding the SAA, stating that decisions not to implement 

due to feasibility could open a facility up to litigation.

One potential SER requested clarification on the scope of safer alternatives and indicated that if EPA 

means to require a shift to another product then that would be difficult because the demand by their 

customers is for anhydrous ammonia for growing crops.
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A potential SER pointed out that a mandatory IST analysis was considered as part of the 1996 RMP 

rulemaking. The commenter noted that, at that time, EPA concluded that an IST analysis would not 

produce additional benefits because a PHA already presents opportunities for continuous improvement.

Improved Local Coordination 

Many potential SERs questioned what exactly was required by the term “coordination” and raised 

concerns about the staffing abilities of some LEPCs.

One potential SER questioned how coordination with the LEPC would affect a facility’s standing as 

responding or non-responding.

One potential SER expressed concern that the requirement may result in additional small businesses 

having to become responders, which the commenter described as an extremely costly and difficult 

process. The commenter requested that EPA provide cost estimate data for the costs associated with 

transitioning from a non-responding facility to a responding facility.

Another potential SER described their coordination efforts and indicated that they do not expect any 

improvements as a result of this proposed change.

Emergency Response Exercises

Several potential SERs asserted that local emergency responders may not have the staff or time to 

participate in exercises. They stated that industry would likely be found non-compliant with the regulation 

because local emergency responders would be unable to participate. Furthermore, one SER questioned 

how many requests for local emergency responder participation in exercises, even if routinely ignored, 

would equate to compliance under this provision.

Another potential SER described challenges with working with volunteer fire departments, indicating that 

there is high turnover and it is difficult to coordinate training with volunteer departments due to other 

family and full-time work obligations.

One potential SER stated that this provision placed too much emphasis on what facilities should be doing 

and not enough emphasis on the additional assistance needed by the local fire departments or other local 

responders.

Information Sharing

Several potential SERs asserted that there was little value in inundating LEPCs with information that is 

unlikely to improve their ability to be effective. Additionally, these commenters stated that the scope of the 

information being released could be counterproductive to safety in that it may be useful to entities with an 

interest in criminal activity and raises security concerns.

Several potential SERs stated that the requirement of an “easy format” needed to be defined with 

sufficient guidance.

One potential SER raised concerns about the amount of time involved in providing the extent of 

information mandated and the value it would provide. They recommended narrowing the information to a 

more usable set of information, possibly including one page summaries of each significant chemical 

hazard during a fire.

Several potential SERs commented that public meetings had already been required in 1999 as part of the 

Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA) and were not 

successful. The commenters stated that the public meetings were viewed as very expensive and had low 

attendance.
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One potential SER questioned what specifically is involved in a public meeting and what had to be 

communicated. The commenter stated that small businesses may require more than 30 days to conduct 

such a meeting depending on the severity of the incident and the complexity of the information that must 

be communicated.

Estimated Costs

One potential SER commented that EPA has significantly underestimated the cost of a third-party audit.

The commenter stated that a typical audit in which representative sampling is used costs between 

$125,000 and $150,000. The commenter asserted that, if EPA is considering mandating that all 

processes are audited, costs will run higher still.

One potential SER estimated that the cost of training a third-party auditor on unique aspects of a facility 

would be approximately $25,000.

One potential SER estimated that the cost for developing a response team would be $12,000 annually in 

training for two facilities and equipment costs of $3,000/person.

One potential SER commented that EPA underestimated the costs associated with a root cause 

investigation. The commenter estimated that a comprehensive investigation into an RMP incident costs 

approximately $15,000 and could be much higher.

One potential SER expressed concern regarding the calculations of the cost estimates because some 

states – in this instance New Jersey – require that any facility registered under the RMP program be a P3 

facility. The commenter requested to see a breakdown of costs by geographical region, industry type, and 

level categories.

6.1.3 Meeting Follow-Up

After the pre-panel outreach meeting, EPA updated panel outreach materials to satisfy several requests 

for clarification, additional information, and supporting data, pertaining to all provisions and the cost 

estimates for each provision. 

6.2 Panel Outreach

6.2.1 Summary of Verbal Comments

The following is a summary of the discussion and comments by the SERs during the Panel outreach 

meeting.

Third-Party Compliance Audits

One SER asked how EPA came up with the “three years before and three years after” limitations on an

auditor participating in a third-party compliance audit. EPA responded that the agency looked at a number 

of Federal and State third-party audit programs and found that most had a one to five year timeframe for 

auditor involvement with the facility. EPA then stated that we are proposing a three-year period, but taking 

comment on whether another timeframe is better. The same SER asked whether EPA had a plan to 

ensure that third-party auditors do not pose a terrorism concern or raise business confidentiality issues for 

the facilities that they audit. EPA responded that we have not fully considered these issues yet.

The SER also asked EPA to describe the value of excluding retired employees from performing audits. 

EPA clarified that retired employees are only excluded if they are still participating in the facility in some 

way (e.g., a financial attachment through a corporate retirement plan) and explained that there is a 

concern if the employee would have a potential gain or loss associated with a good or bad audit. Finally, 

the SER concluded that it disagreed with EPA’s assumption that independent auditors may provide better 
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audits than auditors with experience with the facility. EPA expressed appreciation for these comments

and expressed a desire to seek further comments, including from SERs and all stakeholders, on 

additional flexibility for independence and competency requirements and the timeframe related to auditor 

participation restrictions.

Another SER commented that retirees with financial connections to a facility would have an incentive to 

make sure that the facility is very safe because that would be in the interest in their long-term benefit, 

concluding that EPA’s assumption should be reversed. EPA responded that it would make note of that 

comment.

One SER requested clarification for the Professional Engineer (PE) requirement, stating that neither the 

existing RMP program nor other State programs require a PE on the auditing team. Another SER 

endorsed looking at other credentials over the PE. EPA responded that the agency was trying to find 

some independent accreditation that we could use for process safety inspections and that a PE has a 

professional ethics requirement, however there is no existing accreditation for process safety. EPA stated 

that we would appreciate further comment on this issue.

After echoing the comments related to the absence of a demonstrable benefit of having audits that are 

independent as compared to associated auditors, another SER raised concerns about the availability of 

independent auditors, especially in rural areas. A few SERs emphasized that in rural areas this will be a 

significant burden. Another commenter agreed with this concern and noted that the PE requirement will 

cause additional problems for availability. Another SER commented that this is going to be very 

expensive and noted that the costs will be even higher where you have to bring to a remote area an 

independent auditor that satisfies the proposed criteria, including the PE requirement. EPA responded 

that we are aware of these concerns and noted that there will not be many of these audits required 

annually because they are tied to RMP reportable accidents, of which there are less than 150 annually.

One SER asked whether EPA would consider having a certified hazardous material manager in place of a 

PE on a third-party compliance audit. EPA responded that SERs should share options for EPA to 

consider in the written comments.

One SER asked if EPA is planning on providing guidance on reasonable conflict of interest statements, 

explaining that he has seen very complex and very simple variations. EPA responded that guidance will 

be provided. EPA later indicated that we would propose compliance dates that would allow sufficient time 

the agency to produce guidance documents after publication of the rule.

A few SERs sought clarification as to whether individuals are restricted by past relationships or whether 

entire companies are restricted. EPA clarified that we expect that entire companies would be restricted, 

but urged SERs to provide comments if they recommend an alternative. A SER stated that it seems like a 

significant burden for a small business to survey every employee at a large firm involved in auditing to 

determine that nobody at the firm is a retiree or otherwise associated with the facility. EPA responded that 

we expect that an auditing company will know which of its employees had been previously associated 

with the facility.

A SER asked whether EPA intends on requiring third-party audits for all compliance audits or only after 

RMP reportable incidents. EPA confirmed the intention to require third-party audits only after RMP 

reportable incidents. The SER then asked whether EPA would be able to verify before the audit takes 

place whether the auditor meets the third-party auditor requirements so that a facility does not get 

penalized after the audit is performed if they were unaware at that time that the auditor failed to meet all 

required criteria. EPA responded that there would potentially be an enforcement action if the agency 

found out after the audit that the auditor did not meet the requirements. A few SERs followed-up by noting 

that it is the facility’s burden to ensure that the auditor criteria are met. Finally, a SER asked whether EPA 
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was going to set industry specific criteria for third-party auditors. EPA responded that there would not be 

industry specific criteria, but that there would be general criteria for independence and competency that 

would apply to all sectors.

Incident Investigations & Root Cause Analysis

A SER commented that people might think that “catastrophic release” is more severe than “reportable,” 

and asked whether these terms actually have the same meaning in the rule. EPA responded that the 

meanings are the same. SBA expressed agreement with the SER and recommended that the terminology 

be changed. EPA noted that one reason that “catastrophic release” is used is to link the requirement back 

to the language of the CAA. Panel members agreed to discuss this issue further outside of the meeting. 

A SER stated that the inclusion of near misses in the requirement would dramatically increase the 

incident investigation reporting requirement. EPA responded that, despite the existing requirement to 

investigate near misses, most facilities are not performing these investigations and EPA wants them to be 

performed. The SER stated that EPA should consider working harder at enforcing existing requirements 

rather than creating new requirements.

Another SER asked if there was any additional liability imposed for over reporting of incidents in RMP 

accident history now considered as near misses. EPA responded that this question demonstrates why the 

clarification is needed, that there are no threshold quantities for defining reportable releases and that 

some facilities are confusing EPCRA release reporting requirements with those under the RMP. EPA 

clarified that if there is a release that meets an impact criterion, then an investigation is required.

A SER asked if the recommendations in an incident investigation report must be implemented. EPA 

responded that the criteria for recommendations must be resolved, but that implementation is not 

required. SBA asked for clarification on the meaning of the term “resolve.” EPA stated that it can include 

implementing the recommendation, implementing an alternative, or not implementing because it is not 

feasible to implement. The facility owner or operator would be required to document the resolution.

A SER asked how the facility can perform a root cause analysis if the subject machinery blew up. EPA 

stated that it would provide guidance on performing root cause analyses. In response, another SER 

asked when guidance would be provided. EPA noted that the agency would propose compliance dates to

allow sufficient time for facility owners and operators to comply and for the agency to produce guidance 

documents after publication of the rule.

Another SER asked whether a shelter-in-place order would be considered a catastrophic release. EPA 

responded that the current proposal specifies that a shelter-in-place order would be considered a 

catastrophic release. The SER also asked why the existing rule language relating to the scope of the 

investigation is not adequate. EPA responded that root cause is an industry term that is more descriptive 

and better understood than the existing “contributing factors” language.

A SER sought clarification on the process upset examples for near misses, including leaking valves and 

vapor release alarms. Specifically, the commenter questioned whether EPA had considered false alarms. 

Additionally, the SER asked whether a conservation vent would be considered activation of a release 

device. EPA responded that we would appreciate additional examples of what should be considered to be 

a near miss.

Finally, a SER commented that these investigations seem to be duplicative of the purposes of third-party 

audits. The commenter asserted that the root cause analysis would be more effective than the third-party 

audit. EPA stated that third-party audits are intended to cover a broader range of the RMP requirements, 

and incident investigations look at a specific accident and its cause.

Safer Alternatives Analysis
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SBA requested clarification as to whether this covers a narrower universe of facilities than all of Program 

3. EPA clarified that this requirement is applicable to only three NAICS codes that have Program 3 

processes.

A SER questioned why EPA had selected the PHA as the mechanism for incorporating SAA. The SER 

also questioned what materials, other than CCPS, EPA is using as the basis for this requirement. EPA 

responded that the PHA seemed to be the best fit because it involves a fundamental analysis to identify 

changes to your process. EPA further stated that the PHA already considers certain enhancements to 

process control (e.g., engineering controls) and this new requirement will now require that safer 

alternatives, including inherently safer technologies, be considered. EPA noted that we think CCPS has

great guidance and that their guidance will be a centerpiece of EPA’s guidance. EPA also suggested that 

SERs provide information about other methodologies in their written comments.

A SER noted that many of its members engage heavily in toll or contract manufacturing and asked how 

the proposed requirement would apply to a company in that situation. EPA stated that we expect the 

proposed provision would apply to toll manufacturers and that they would need to understand the process 

that they are involved in enough to consider safer alternatives.

Local Coordination

A SER expressed concern about how companies in remote areas are supposed to comply if a wellfunctioning LEPC does not exist. EPA responded that companies should consider whether there are other 

response entities available (e.g., a local fire department) to coordinate with other than the LEPC.

SBA noted that problems with compliance should not necessarily be dealt with by adding new regulations.

A SER asked how a small business was supposed to ensure coordination. EPA responded that the 

requirement would be that the facility owner or operator should reach out to the LEPC to coordinate 

response activities, but if the LEPC or other response entities do not exist or are not capable of 

responding to an incident, then the facility would have to become a responding facility.

A SER asked EPA to confirm that it is their opinion that this is not a new requirement. EPA responded 

that this is an existing requirement under the CAA. A SER asked why not enforce existing EPCRA 

requirements instead of creating additional requirements under RMP. EPA responded that the need for 

facility coordination with local response agencies is not just an EPCRA requirement, it is also a current 

RMP requirement. If a fire department will not respond, then the facility must ensure a response. EPA is 

clarifying the current obligation. EPA is also working on getting better participation from LEPCs for 

EPCRA requirements. EPA notes that LEPCs have complained that some facilities are not coordinating 

with them and are only reporting such coordination on their RMP.

A SER asked if EPA had an idea of how many of the non-responding facilities would have to become 

responding facilities. EPA responded that the agency has an idea, but that it is complicated. For purposes 

of the economic analysis, we are looking at a range of costs for currently non-responding facilities who do 

not have an active public hazardous materials (hazmat) team within their county.16 EPA noted that there 

could be several thousand that would have to make some change to their capabilities in response to this 

requirement.

Emergency Response Exercises

 16 EPA expects that hazmat teams will have the capability to respond to accidental releases at RMP-regulated 

facilities.
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No comments were provided on this issue at the Panel outreach meeting. Other comments on this issue 

are included in other sections of this panel report. 

Information Sharing

A SER asked whether the agency has any information on the history of public meetings other than those 

following an incident, noting that their impression is that these meetings have not been terribly productive 

without a specific reason for meeting. EPA responded that there was a one-time public meeting 

requirement for RMP facilities after passage of CSISSFRRA. SBA noted that it is typical for people to ask 

for more information, but commented that it would be helpful to see data on who has actually attended 

these types of meetings in the past, including records about attendance and frequency of these public 

events. EPA responded that we do have some information, but that it would be helpful for SERs to 

provide input based on their past experience on this issue. EPA requested SERs comments on the 

appropriate trigger for a meeting and whether there are other alternative approaches (e.g., facilities 

attending LEPC meetings that are focused on talking generally about risk and emergency response). EPA 

also noted that the agency did talk to people all around the country in a number of meetings in which 

people requested access to more information, including having more public meetings.

A SER asked whether the people requesting this information know about easily accessible information 

now provided on the Internet and whether they are actually using it, such as the Right-to-Know Network.

EPA responded that we do not have that information but EPA requested input from SERs about forms of 

outreach (social media, Internet sites, etc.) that they have successfully used for public outreach.

Noting that EPA is focused on public-right-to-know, a SER asked whether DHS has expressed any 

concerns about LEPCs’ ability to protect this information. EPA stated that it always has and continues to 

work closely with DHS. EPA also stated that it is working to strike a balance between getting information 

to the public and public security. DHS agreed with EPA’s response and stated that DHS fully supports 

information sharing with LEPCs and first responders. In response, a SER asked how DHS feels about 

providing this information to the public. EPA responded that the proposed requirements do not require 

disclosure of new information to the public, and that the information being disclosed to the public is 

different than that being disclosed to LEPCs.

Costs

Third-party compliance audits

SBA asked for an explanation of the base costs associated with third-party compliance audits. EPA 

responded that these are all incremental costs, and clarified that base costs for existing compliance 

audits are not included. In relation to this provision and other provisions, SBA and SERs requested that 

EPA provide the original economic analysis from the 1992 OSHA PSM and 1996 EPA RMP rule on which 

these incremental costs would be added. These commenters also requested that EPA combine the 

economic analyses performed for these two rules. EPA stated that it would provide copies of the RIAs, 

but that it would be unlikely that EPA could provide that combined data in time for SERs to consider this 

material for written comments.

SBA and a few SERs asked for clarification on the definition of facility types. For example, a SER asked 

who is in small government versus large government. EPA clarified how the facility types were defined, 

including specifying that the small and large government categories are based on the SBA definitions that 

relate to the size of population served by the government entity.

Incident investigations & root cause analysis
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A SER questioned the assumption that incident investigations would not involve managers. EPA 

responded that these are incremental costs and that managers are included in the base costs that are not 

included in this assessment.

Another SER asked whether an engineer would be required. EPA responded that the estimated costs 

should not be interpreted as specifying the regulatory requirements. Instead, EPA stated that the costs 

are based on an example of what a typical facility might do in response to the requirements. An engineer 

is not an explicit requirement.

Safer alternatives analysis

A SER asked whether this cost estimate was based on a typical scope of work involved in an SAA. EPA 

responded yes. The SER asked if that involves a life-cycle type analysis where you are looking at waste 

disposal costs and transportation. EPA clarified that these costs do not include implementation of safer 

alternatives, but it does include a labor model that was adapted from a PHA labor model by consultants 

that are involved in performing these kinds of analyses. SBA then asked for details about the scope of 

work described to the consultants when estimating these costs. EPA stated that some of the people who 

created the labor model upon which the SAA costs were estimated, helped write the CCPS book.17

A SER asked if it is assumed that costs are the same for a new process as for a five-year revalidation of a 

PHA. EPA confirmed this assumption.

Local coordination

No comments were provided on the cost information on this issue at this meeting.

New responders

A SER asked whether EPA considered including costs for fire trucks. EPA responded that purchasing a 

fire truck will not happen often, and those facilities (e.g., petrochemical companies) that are likely to do 

this are already typically responders. The same SER questioned whether this requirement creates an 

incentive for fire fighters to start offloading responsibility on the facilities if they see that as an option. EPA 

responded that we do not think this is likely, but welcomed additional information on the likelihood of this 

occurring.

Another SER asked whether the estimated costs included insurance costs. EPA stated that this was a 

good comment and that insurance costs were not yet included.

Exercises

No comments were provided on the cost information on this issue at this meeting.

Information sharing

A SER asked whether EPA had included costs for advertising for the public meetings. EPA responded 

that EPA did consider these costs, clarifying that these costs are included through labor time.

Benefits

SBA asked which of the proposed changes are likely to have the greatest benefits, including most likely to 

prevent accidents and why. EPA responded that the three prevention program-related provisions are 

most likely to help prevent accidents.

 17 EPA was referring to CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2nd ed. American 

Institute of Chemical Engineers, CCPS. New York, Wiley.
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SBA also questioned the benefits associated with third-party audits and requested tangible evidence 

(e.g., academic studies) demonstrating the value added by this provision. EPA responded that we already 

gave the argument that if a facility had an audit and a subsequent accident, then the initial audit was not 

necessarily sufficient. EPA asserted that, in that scenario, it would be helpful to have a fresh set of eyes 

to perform the next audit. SBA responded that an audit prior to an accident does not necessarily indicate 

that the audit failed.

A SER noted that the vast majority of costs are associated with employees and on-site deaths, and 

questioned how benefits will be allocated between EPA and OSHA for the revisions to the RMP rule and 

the PSM rule. EPA responded that the two agencies are working together and that benefits accounted for 

in whichever rule is finalized first will not be included in the other.

SBA also asked if it is possible to show the benefits by firm size and NAICS codes. EPA responded that it 

is possible but not trivial, and noted that the agency would not be able to provide this information in time 

for written comments from the SERs. As an alternative, SBA requested that EPA provide the source data 

for how the monetized benefits were derived. EPA responded that this information would equate to an 

advanced copy of the RIA, which the agency is not prepared to provide.

6.2.2 Summary of Written Comments

Below are the SERs that submitted written comments following the Panel outreach meeting on November 

19, 2015:

• American Refining Group, Inc.

• City of Troy, N.Y. Department of Public Utilities

• Cornerstone Chemical Company

• FutureFuel Chemical Company

• Gas Processors Association

• Glasgow Water Company

• Hydrite Chemical Company

• International Association of Refrigerated Warehouses

• International Dairy Foods Association/Perry’s Ice Cream Company

• Kugler Oil Company

• Minnesota Freezer Warehouse Company

• National Association of Chemical Distributors/Allied Universal Corporation

• National Rural Electric Cooperative Association

• Nebraska Fertilizer & Chemical Association

A copy of these comments is included in Appendix B. The following is a summary of the written 

comments.

General Comments

A few SERs commented that the existing RMP rule is adequate to protect human health and the 

environment, and making the requirements more burdensome and less flexible will not enhance process 

safety. Other SERs stated that this rule seems to focus primarily on correcting problems after they occur, 

rather than on more effective enforcement of existing regulations to ensure accident prevention. One SER 

noted that the proposed requirements apply to facilities regardless of their potential for offsite community 

impacts and suggests that use of risk tiering or ranking to apply requirements (i.e., third-party audits and 

root cause analysis) could significantly reduce undue burden on facilities where risk is low. One SER 

disagreed with EPA’s stance that this rule “clarifies” existing rules, arguing that redefining “catastrophic 

release” to be the same as a reportable incident and expecting facilities to have the capability to respond 
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to fires itself in the event the local fire department is unwilling or unable to respond are new requirements 

that go far beyond clarifying existing requirements.

A SER expressed disappointment that costs and benefits of the proposed rule have not been presented 

in a clear, rule-element-by-rule-element manner, making it difficult to assess the accuracy of each 

modification. Another SER commented that EPA and OSHA must ensure that the regulatory impact 

analyses of the RMP rule and the PSM rule do not double count costs and benefits. The SER stated that 

costs avoided by preventing harm to employees should be assigned to the PSM rule. One SER requested 

that exemptions be made for locations that just “store” a product on the list of chemicals because they 

believe that several components of the provisions target a “process.”

Third-Party Compliance Audits

SERs questioned the assertion that third-party auditors are more qualified or objective than 

owner/operators and their employees that are familiar with the nuances of their chemical processes. One 

SER offered that EPA and OSHA should interview individual potential auditors to question their 

competency instead of requiring they be ‘independent’ of the facility. One SER urged EPA to approve 

third-party auditors based on technical and other qualifications which would provide a list of acceptable 

auditors for industry to use. SERs questioned the scope of the auditing requirement triggered by an 

incident. SERs stated that conducting a full audit after a reportable incident—as opposed to just 

investigating the cause of the incident—would not be the best use of resources. The SERs said that reauditing elements unrelated to the incident would not result in incident reduction.

Several SERs asserted that the term “associated” is too expansive and vague for barring auditors from 

working with facilities for which they have another relationship. SERs said that it is often the case that the 

best auditors are retired employees, former employees, employees who work at a sister facility, or 

employees who work for a parent enterprise who already have detailed knowledge of a facility’s 

processes. One SER stated that if retirees or other former employees receiving benefits cannot perform 

third-party audits, then EPA needs to clearly define what function a retiree/former employee may have 

within another company. One SER requested that EPA consider the impact of the exclusion as auditors 

who are retired employees participating in a corporate retirement plan for municipally owned utilities, 

because these facilities employees participate in a state-managed retirement plan that includes not only 

water treatment operators, but OSHA and environmental inspectors, police officers, fire fighters and all 

other state employees as well. SERs expressed concern that preventing associated consulting firms from 

performing audits could even further limit the number of knowledgeable auditors available. One SER 

suggested EPA consider revising the criteria to be similar to the Department of the Interior’s Bureau of 

Safety and Environmental Enforcement (BSEE) provision for third-party audits in 30 CFR 250.1920(a) to 

require only the individual leading the audit team be independent. Another SER said that applying the 

independence requirement to an entire auditing firm, rather than the individual auditor, is impractical. 

Additionally, this SER commented that EPA does not have the statutory authority to limit the rights of an 

individual auditor from seeking employment from a facility where he conducted an audit. One SER stated 

that the vast majority of excellent auditors work for companies that provide multiple services such as 

employee training, engineering services and a wide variety of process safety management services and 

that EPA’s proposal would bar these auditors or deny access to their other valuable engineering and 

process safety services. Another SER stated that third-party audits being proposed do not present a big 

business opportunity at only 150 RMP reportable accident per year and circumstances that would 

disqualify a company would likely result in most of the leading firms knowledgeable about process safety 

declining to conduct those audits. The SER further indicated that any firms conducting compliance 

auditors would likely lose their experience because they would not be doing consulting or hiring retirees 

who are knowledgeable. One SER stated that definitions of “competent” and “independent” are in conflict 
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with each other because competency requires experience with a process that can only be gained by 

working in a facility, yet the proposal disqualifies an auditor from working in a facility for three years.

Several SERs asserted that third-party audits would cost even more than EPA is estimating. Several 

SERs stated the independent third-party requirement would be burdensome to small businesses and rural 

facilities. A SER said that requiring all compliance audits be independent third-party audits will 

substantially increase compliance costs for small businesses, and recommended revising the rule 

language to ensure that this requirement is not implied. One SER estimated the cost and time to find a 

third-party auditor could easily be well over $3500 and the limitations in the proposal could drive the cost

to over $10,000. One SER stated that compliance costs displayed by EPA are roughly $10,000-15,000 

too low. One SER suggested that to address concerns of the limited availability of independent and 

competent third-party auditors, an alternative to EPA’s current proposal might be to set up an industry 

sharing option (similar to OSHA’s VPP auditors that use qualified personnel from other regulated facilities 

or company employees but from a different plant) that could be used in lieu of third-party for-profit 

auditing firms. The SER also suggested that EPA could provide a training program that an internal or 

external auditor would be eligible to complete to become a certified auditor.

SERs expressed concern about the availability of qualified third-party auditors. One SER stated that it 

would likely be difficult to find a qualified auditor in the Midwest with knowledge of an anhydrous ammonia 

facility that did not have an association with their company. A SER requested the third-party requirement 

be more flexible, if deemed necessary, and suggested small businesses should be allowed to use any 

qualified auditor or that third-party audits be dictated by EPA only on a case-by-case basis. One SER 

stated that the provision that disqualifies a firm from being an auditor if a member of the audited facility’s 

company has a “Representative on the Board of Directors for a consultant firm” would not allow them to 

use their industry most notable audit firm, ResponsibleAg, because their company does business with 

four of the companies represented on this [ResponsibleAg’s] board of directors.

SERs also expressed concern over the requirement that third-party auditors be certified Professional 

Engineers (PE). They questioned whether this qualification makes them more qualified to perform audits, 

and said that requiring a PE perform the audit would further limit the pool of qualified auditors. One SER 

noted that while a PE may be of value when looking at process safety information or management of 

change, the bulk of a compliance audit focuses on other elements (hazard assessment, incident 

investigation, employee involvement, training, emergency planning and response, contractor 

management, hot work and day-to-day program implementation and maintenance) that are the purview of 

the safety and environmental professions, rather than the engineer. This SER also pointed out that there 

are many professional certifications other than a PE that require the holder to follow a code of ethics as 

well as require continuing education. SERs noted that others who might be qualified RMP auditors could 

be a chemist, chemical engineer, Certified Safety Professional (CSP), Certified Industrial Hygienist (CIH), 

Certified Fire Protection Specialist (CFPS), Certified Hazardous Materials Manager (CHMM), Certified 

Professional Environmental Auditor (CPEA), Dangerous Goods Safety Advisor (DGSA) or Certified 

Process Safety Auditor (CPSA). One SER noted that a PE license is a very general credential and asked 

if the PE would need to be licensed in chemical engineering and if not, what other licensure areas would 

apply. Another SER pointed out that many EPA inspectors are not PEs.

One SER stated that the third-party audit proposal does not address a real problem and noted that data 

from the Petroleum Refinery PSM National Emphasis Program (NEP) suggests that there is no significant 

problem with audits or auditors because less than 5% of the 1088 alleged violations issued during the 

NEP involved compliance auditing issues. One SER stated that estimated costs of an independent audit 

is far higher than EPA has estimated and that for a refinery a team of three competent auditors using 

representative sampling would charge from $125-150K to conduct an RMP audit. One SER believes that 

EPA is considering a different method for conducting an audit in which all elements of the RMP rule must 
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be audited in all covered processes and that this would triple the estimated cost for a competent audit and 

will like reduce the quality of the audits. One SER questioned some of EPA’s cost estimates for small 

versus large government entities and why attorney hours for government entities would not be equivalent 

for those estimated for private entities.

One SER asked if the auditor and member of the audit team will be required to have a PE license in the 

state of the facility being audited and who would have the responsibility of verifying that the PE license is 

valid and up to date. This SER was also concerned that the proposal does not address proper treatment 

of confidential information by third-party auditors. One SER requested that EPA provide a sample conflict 

of interest statement or better outline the criteria to be included in the statement.

Incident Investigation/Root Cause Analysis

A few SERs said that the rule should not prescribe root cause methodology as the only method available 

for investigating incidents. One SER argued that this methodology is not inherently better than other 

methodologies, and in fact could reduce the safety benefit of the investigation because of its focus on 

finding a management system failure. Another SER commented that 40 CFR 68.60 and 40 CFR 

68.81(c)(5), (d), and (e) already address most of the “root cause analysis” requirements, and asked 

whether a facility would simply need to prepare a second copy of the incident investigation report with the 

title, “root cause analysis.”

A few SERs discussed the burden associated with root cause analysis. One SER stated that requiring 

root cause analysis could have a significant burden on small businesses because few of them have 

employees trained in this method. Another SER said that the Agency’s assumption that managers will 

have zero added hours due to a root cause analysis is inaccurate, since managers will be involved in the 

support and review of the investigation. One SER requests that EPA develop criteria for allowing an 

extension of the 12-month timeframe for completing an investigation report as well as a timeframe for an 

implementing agency to respond to an extension request noting that procedures and guidelines could be 

developed similar to those requesting time extensions under the Clean Air Act section 608 Refrigeration 

Recycling Rule.

A SER argued that the new definitions of “catastrophic release” and “near miss” significantly increase the 

scope of the RMP rule. The SER said that this broader scope now includes incidents that do not present 

a danger to public health or the environment. Another SER argued that “catastrophic release” should only 

be applied to incidents involving loss of life, serious injury, or significant damage. Another SER believes 

that the existing definition of catastrophic release is something worse than an RMP reportable accident 

because a catastrophe is viewed by the regulated community as a terrible disaster or momentous tragic 

event, thus the proposed rule would expand the scope of investigations, not clarify them, and a shelter-inplace would then trigger an investigation, including a root cause analysis. Another SER believes that a 

reportable release does not result in deaths, injuries, evacuations, sheltering-in-place, property damage 

or environmental damage, but that an accident is only reportable when a regulatory set amount of 

chemical is released over a certain time period. This SER also supports EPA’s coordination with OSHA 

on definition of near miss, but does not believe that OSHA’s definition complies with EPA’s statutory 

authority because OSHA‘s definition from its Accident Investigation Fact Sheet, defines a near miss as 

“incidents where no property was damaged and no personal injury was sustained, but where, give a slight 

shift in time or position, damage and/or injury easily could have occurred.”

Several SERs commented that there is no clear definition of “near miss” in the proposed regulation. They 

said that the examples provided are so broad that facilities could incur significant burden investigating 

them, with little relative value achieved. Another SER encouraged EPA to determine the number of 

events that would now be considered near misses and base the cost impacts on this number of 

investigations. The SER also asked EPA to provide further guidance regarding near misses, including 
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whether the activation of a relief valve to a closed fuel gas recovery system or activation of emergency 

shutdown procedures as part of a planned outage or testing of the system would constitute RMP events.

Two SERs argued that relief devices, used as intended, should not be considered a failure or “near miss” 

and investigated with a root cause analysis. Another SER suggested that “near miss” should be defined 

as the release of any chemical less than a reportable amount. Another SER recommended seeking public 

comment on the definition of “near miss,” particularly because different facilities have different definitions 

of the term. One SER asked that EPA coordinate with OSHA to define “near miss” to have a consistent 

definition for the incident investigation criteria. One SER stated that EPA should not require definition, 

investigation of or tracking of “near misses” because there are differences between companies and 

among facilities within the same company that necessitate that facilities have the flexibility in defining and 

addressing incidents that do not cause a release, but could have potentially caused one. The SER 

indicated that the focus should be on internal reporting of near misses and a regulatory approach could 

have unintended consequences of personnel not bringing up issues to avoid a lengthy investigation, 

including root causes analysis.

One SER stated that a detailed investigation of an RMP incident will cost far more than EPA estimates

and can involve investigative teams of 4-6 employees working over a period of months, special testing, 

experts, and RMP-required participation of employees at time-and-a-half labor rates. The SER stated 

that, at the low end of the cost scale, a comprehensive investigation such as root cause analysis into an 

RMP incident will cost $15,000 and could easily exceed $100,000. One SER questioned EPA 

assumptions of zero added hours for management for an incident investigation and root cause analysis.

Safer Alternatives Analysis

One SER noted that current approved PHA methodologies already provide for successful risk mitigation 

including the consideration of inherently safer design techniques and adding a new regulatory 

requirement for existing operations is unnecessary. Several SERs commented that SAA reviews are best 

applied during the design phase of a facility, and are of little utility as part of a process hazard analysis 

(PHA). One SER quoted EPA’s assertion in the 1996 rule that this type of assessment “had the most 

benefit in the design of new processes.” One SER said that the feasibility factors discussed in the 

proposal do not account for the full life cycle of a product. A SER argued that requiring SAA reviews 

during the PHA will detract from the purpose of the PHA. Another SER argued that the staff that conducts 

a PHA may not have the expertise to conduct an SAA. A different SER claimed that an SAA requires 

design engineers and that small facilities do not have staff design engineers which would result in a more 

costly requirement to retain them. A SER commented that the PHA conducted for OSHA compliance is 

currently considered adequate for EPA requirements; adding more requirements just for EPA will cause 

small businesses to incur additional costs.

One SER asked if the safer technologies and alternatives refers to equipment or products. The SER 

indicated that for farmer supply dealers of anhydrous ammonia, their customers dictate what products 

they will purchase for their crops. Another SER stated that toll manufacturers will struggle to complete 

SAA when specific processes and chemistry are required by the customer. Another SER stated concerns 

with having a toll manufacturer engaging a customer to agree to a safer formulation would cause the 

customer to look for another manufacturer. The SER commented that a short timeframe (matter of 

months) to start work and short manufacturing campaigns also prevent sufficient time to conduct any 

SAA.

A few SERs said that this requirement could lead to liability issues for facilities that choose not to 

implement a particular inherently safer technology (IST) due to feasibility concerns. The SERs said that 

plaintiffs in a court case could argue that the facility wrongly described an IST as infeasible, possibly 

leading facilities to implement IST that they do not view as feasible in order to avoid litigation.
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Some SERs stated that this requirement will place additional burden on RMP facilities that do not have 

engineering staff to conduct an SAA review. A SER estimated that SAAs that include life cycle 

considerations could be 50-100 percent more expensive than EPA has estimated for toll manufacturers. 

Another SER stated that using the labor and cost estimate provided by EPA, SAA would add at least an 

additional full time employee for their company.

One SER said that requiring SAA in the liquid fertilizer manufacturing industry would be a waste of time 

and resources, because the most feasible processes are already being used. Another SER argued that it 

is a waste of resources to require facilities to conduct an SAA review but not implement anything. Another 

SER expressed concern that SAA requirements will be expanded to additional industries in the future, 

causing disproportionate impacts to small businesses.

One SER noted that existing methodologies for PHAs and further analysis such as Levels of Protection 

Analysis (LOPA) are designed to identify risk gaps and result in recommendations that would mitigate any

risk gaps. Requiring additional analysis when risks have already been addressed would be redundant and 

unnecessary.

A SER stated that five feasibility factors in the rule, “economic, environmental, legal, social and 

technological” fail to provide adequate guidance and reasonable limitations for the SAA review. The SER 

further maintained that the feasibility factors ignore the reality of global competition, fail to address the full 

range of issues in the operational life of a project such as risks to downstream consumers and 

environmental disposal hazards and costs. The SER also indicated that the feasibility factors provide no 

guidance on how to measure or balance risks or hazards. Another SER stated that “feasibility of 

implementation” can be interpreted very broadly and asked how detailed must it be and whether it can be 

conducted in-house by a small business or would an outside consultant or engineer be the only persons 

qualified to complete this requirement.

Local Coordination

Several SERs expressed concern that the Local Emergency Planning Committee (LEPC) in some 

communities do not have adequate staffing or resources, making coordination with them difficult and 

burdensome to small businesses. One SER stated that requiring annual coordination is akin to the current 

DOT Part 192 Public Awareness Rule and because volunteer departments do not have the manpower to 

cooperate in annual meetings, the rule should allow coordination through the mail, as does DOT Part 192.

A few SERs also commented that some LEPCs lack secure information systems, which could lead to the 

disclosure of confidential company information. Another SER said that it is not a private company’s 

responsibility to ensure that the LEPC is fully staffed and capable of responding to an emergency. One 

SER suggested that companies be permitted to contract with for-profit emergency response contractors 

or engage in mutual aid agreements in areas where local emergency response resources are insufficient. 

One SER stated that EPA has not defined or made clear what “coordination” means or what is actually 

required by facilities to meet this requirement. Another SER stated their belief that coordination 

obligations have been met for toxics if a facility has either notified the SERC or LEPC that they are 

covered under EPCRA and have coordinated with the local fire department for flammable and have 

mechanisms in place to notify responders. This SER notes that facilities have generally understood that 

once this notification is made, they would be included in the community emergency response plan 

because LEPCs are required to include them in such a plan.

A SER disagreed with the proposal that an LEPC be able to request that a facility develop an emergency 

response plan, commenting that governmental entities (e.g., OSHA, EPA, fire department) should be 

evaluating this plan and that there is no procedure to ensure that a LEPC request is both reasonable and 

necessary to ensure an adequate plan. One SER commented that EPA does not have the authority to 

allow LEPCs to ask facilities to create an emergency response plan. Another SER expressed concern 
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with this proposal, commenting that EPA should describe their intent and specifications for this 

requirement to ensure that LEPCs do not create a second set of requirements in addition to the RMP.

Another SER was concerned the proposed provision could have the unintended consequence of 

incentivizing LEPCs and local responders to decline fulfilling their response obligations, knowing that 

even small businesses would be then be required to become responding facilities, regardless of cost and 

feasibility.

A SER commented that the requirement for local coordination is already being done with Tier II reporting 

to the LEPC, fire department, and state emergency management agency, and this requirement 

constitutes a duplication of paperwork. Another SER said that they did not expect this requirement to add 

significant burden. A different SER stated that EPA has underestimated the costs associated with 

coordinating local responders. A few SERs commented that if local fire departments are able to decline to 

be the responding agency to an emergency, many small businesses will be required to take on significant 

additional burden to be the responding party. Another SER expressed concern that EPA has 

underestimated the cost for a facility to become a responding facility if they are unable to document 

adequate local coordination. This SER notes that equipment costs are not one-time and equipment must 

be checked every month and replaced on a periodic basis. The SER further explained that at least six 

hazmat-trained employees who are available 24-7 are necessary to have a hazmat team, which must be 

able to conduct a full hazmat response and conduct an Emergency Response compliance audit to ensure 

that the facility can respond (29 CFR 1910.120). The SER asserts that EPA costs fail to consider that

most facilities would purchase real decontamination showers at $1,000 each rather than use plastic kiddie 

pools or that most facilities keep their equipment in portable trailers that can cost $8-10K each, not 

including electricity and storage shelves for the trailer, which could increase cost to approximately $20-

30K. The SER further asserts that EPA fails to include cost for garbage cans, tarps, cones for direction 

and barrier tape. One SER stated that costs for new responders are seriously underestimated and do not 

capture the enormous cost of turnout gear, hoses, and in some cases, fire trucks that might be required if 

local fire department would not respond and that the cost analysis should take into account that such 

facilities would be covered under an OSHA standard for fire brigades (29 CFR 1910.156) which could 

make costs prohibitive for many small companies.

Emergency Response Exercises

A few SERs said that the proposed rule has not accounted for the burden on local responding agencies to 

conduct response exercises. A SER commented that this requirement adds more burden to the regulated 

entity. Another SER argued that facilities should only need to document their efforts to involve local 

emergency responders in exercises, since emergency responders are often unable to participate in such 

exercises. Another SER said that EPA should only require tabletop exercises because live exercises are 

too costly and will have to be repeated to ensure all staff are properly trained. A SER said that the final 

rule should account for the significant time and expense required when field exercises are postponed due 

to a local emergency.

A SER supported the frequencies of every five years for a field exercise and a tabletop exercise in the 

intervening years but commented that the definition of field exercise needs to be broad enough to include 

many offsite activities and drills required by other state and federal regulations. Existing HAZWOPER 

emergency response drills should also satisfy the new requirement for exercises. A few SERs said that 

the frequency and type of drills should not be prescribed in the final rule, and one SER said that the 

agencies and organizations involved should utilize lessons learned from other emergencies to assist in 

their planning. Another SER expressed concern that the required components of various exercises and 

the evaluation report are too vague, leading to possible fines or determinations of noncompliance if an 

EPA inspector decides that they are not good enough.
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Information Sharing

Several SERs commented that providing the six required categories of information could expose business 

confidential information, and would be of little assistance to emergency responders. A few SERs said that 

a better option would be for the facilities to have a discussion with the LEPCs about this information and 

allow the LEPCs to request any information they would find useful. One SER stated that community 

understanding of chemical risks is best relayed to the public by sharing information with LEPCs, 

Community Advisory Panels (CAPs) and other near neighbor groups and local/state officials at regular 

opportunities to further the public’s right-to-know, community transparency and participation. Another 

SER expressed significant concerns that releasing this information will create real and serious security 

concerns, particularly if not coordinated with the Department of Homeland Security regarding maintaining 

the confidentiality of Sensitive Security Information (SSI), Chemical-Terrorism Vulnerability Information 

(CVI) and the Department of Transportation for any SER regulated by the Maritime Transportation 

Security Act of 2002. For example, providing certain details regarding an incident investigation or exercise 

may publicize vulnerabilities.

A SER said that the proposal to require facilities to provide information to the public in an easily 

accessible manner is a subjective and time consuming task, and EPA has not explained why existing 

information on company websites and social media are inadequate. One SER explained that the current 

RMP rule already requires an RMP to include an executive summary and there is no reason for facilities 

to prepare any additional summary information because the executive summary must contain a brief 

description of the following elements: the accidental release prevention and emergency response 

policies; the stationary source and regulated substances handled; the general accidental release 

prevention program and chemical-specific prevention steps; the five-year accident history; the emergency 

response program; and planned changed to improve safety. Another SER stated that after a reportable 

quantity (RQ) event, facilities already are required by EPCRA to send a follow-up incident report to the 

LEPC and the SERC.

Many SERs expressed concern about the requirement to hold a public meeting within 30 days of an RMP 

incident, commenting that investigations are typically not complete after 30 days, EPA has greatly 

underestimated the cost and time burdens of holding such a meeting, and meetings that have been held 

in the past have been sparsely attended or not attended at all. One SER had surveyed 31 facilities storing 

anhydrous ammonia that conducted public meetings in 1999/2000 and who were in communities with 

populations ranging from 79 to 12,000 people. The SER indicated that one meeting had 7 people, a few 

had 1-3 people and almost 20 meetings had zero attendees. One SER stated that the cost to rent a 

facility and host the meeting averages about $10,000 per meeting day and the time to prepare 

presentations and handouts averages four to eight man days for which salaries would need to be 

included in the estimates.

One SER expressed a concern of potential legal implications to hold a public meeting after an accident as 

civil suits are being considered. This could put small businesses in a vulnerable situation if they are being 

advised by legal counsel to limit the amount of information provided in the public meeting that could 

ultimately be used in legal proceedings. One SER suggested that a better alternative would be to provide 

a brief incident report at the county/community LEPC meeting within 9 months of an RMP incident, noting 

that LEPC meetings are regularly scheduled and open to the public. A few SERs suggested that public 

meetings could be held at any meeting open to the general public, including city council and municipal 

board meetings, and up to 90 days after an event. A SER commented that EPA underestimated the cost 

of setting up a public meeting, stating that the true cost of hiring a third-party organizer is two to three 

times what EPA estimated. One SER stated that exactly what information should be provided at the 

public meeting by the facility is not clear, as well as, who constitutes the public.
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7. PANEL FINDINGS AND DISCUSSIONS

The Panel process brings together staff from the EPA, SBA and OMB to discuss ways that EPA can 

consider mitigating the effects of the proposed rule on small entities, specifically. Through this process, 

the Panel hears concerns from small businesses affected by the rule and considers these concerns in 

developing panel recommendations. Representatives from OSHA and DHS also participated in these 

meetings in an effort to continue collaboration on activities under EO 13650.

7.1 Number and Types of Entities Affected

For a complete description of the small entities to which the proposed rules may apply, see Sections 3 

and 4 of this document.

7.2 Potential Reporting, Recordkeeping, and Compliance Requirements

The potential reporting, recordkeeping, and compliance requirements are still under development. EPA 

expects that the proposed rule would include the following additional reporting, recordkeeping and 

compliance requirements: 

• Hire a third-party to conduct the compliance audit after an RMP reportable accident;

• Conduct and document a root cause analysis after an RMP reportable accident;

• Conduct and document an incident investigation, including root cause analysis, after a near miss;

• Conduct and document a safer technology alternatives analysis;

• Meet and coordinate with local responders;

• Come into compliance with requirements for responding to a release using facility staff, including 

developing an emergency response plan, conducting exercises, documenting training, and 

providing information to the LEPC;

• Conduct a notification drill to verify emergency contact information;

• Conduct and document emergency response exercises;

• Make certain information related to the risk management program available to the local 

community;

• Provide the LEPC and local responders with summaries of certain activities under the risk 

management program, upon request; and

• Hold a public meeting within 30 days of an RMP reportable accident.

The Panel recommends that reporting and recordkeeping requirements should be streamlined if 

practicable. The Panel specifically highlighted a need for streamlining recordkeeping requirements for 

exercises. The Panel anticipates that the requirements will be the minimum required by the statute to 

ensure compliance with the RMP requirements. 

7.3 Related Federal Rules

The Panel recommends that EPA review EPCRA to ensure that provisions from this rule are not 

duplicative of other information reporting requirements. Several SERs commented that the information 

EPA would require facility owners or operators to report to LEPCs is already being collected and made 

available under EPCRA. As such, EPA may find value in reevaluating the information provided under 

EPCRA to achieve the objectives intended.

See Section 2.4 of this document for a discussion of related federal rules.
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7.4 Regulatory Flexibility Alternatives

The Panel agrees that EPA should explore regulatory alternatives and provide flexibility where 

appropriate. This flexibility can lessen impacts to small entities, as well as to entities not classified as 

small. The SERs suggested alternative approaches for additional regulatory flexibility that are described 

further in this section. The Panel recommends that EPA should include SER suggestions for additional 

flexibility, where appropriate, and in other cases EPA should request comment on the other alternatives to 

give others affected by this rule the opportunity through notice and comment rulemaking to weigh in.

7.4.1 Third-Party Compliance Audits

Eliminate provision

SERs identified that this provision is unnecessary because the existing incident investigation 

requirements are adequate, more appropriate, and already accomplish the desired remediation objectives 

of this provision. SERs also emphasized that internal auditors are more effective at performing these 

audits because they are more familiar with the facility processes and the facilities have a vested interest 

in completing an objective and thorough audit. SERs suggested that this provision, to require a third-party 

audit after an accident, should be deleted. SERs were substantially concerned about the availability of 

auditors that were knowledgeable in their industry. Finally, SERs pointed out that EPA already has 

authority to compel third-party audits as a corrective action and therefore can do so on a case-by-case 

basis.

Limit applicability

SERs suggested limiting the requirement to a subset of Program 3 facilities. SERs further suggested that 

the requirement should be limited to those facilities with a major accident that has offsite impacts. EPA 

notes that the requirement would apply to a subset of facilities: only facilities with RMP reportable 

accidents (i.e., accidental releases meeting the criteria of §68.42).

Independence criterion

SERs indicated that EPA should allow auditors who are associated with the company because these 

personnel have the proper training and familiarity with processes. SERs indicated that retired employees 

are among the best source of auditing expertise and suggest that they should not be barred from 

conducting third-party audits. The SERs also indicated that they should be allowed to use firms that have 

performed past work because these firms tend to have the necessary expertise and familiarity with the 

facility. One SER suggested EPA consider revising the criteria to be similar to the Department of the 

Interior’s Bureau of Safety and Environmental Enforcement (BSEE) provision for third-party audits in 30 

CFR 250.1920(a). BSEE only requires that the person leading the audit team be independent of the 

facility being audited. This allows the facility to use individuals with specialized knowledge as part of the 

team.

Eliminate independence criterion

SERs suggested that the focus should be on the qualifications of the auditors and the core contents of the 

acceptable audits rather than restricting post-accident audits to non-associated or independent auditors 

as currently defined. SERs also indicated that EPA should allow third-party auditors who are associated 

with the company because these personnel have the proper training and familiarity with processes. 

Examples include: allowing retired employees to conduct audits or limiting the criterion to individuals 

conducting the audit rather than the entire company. Moreover, the SERs specifically suggested that 

small business should be allowed to use qualified auditors that are associated with the company because 
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they are less able to absorb significant costs of third-party audits done by non-associated third-party

auditors. 

PE requirement

The Panel also heard concerns on whether it is necessary to include a PE in the audit team. SERs 

expressed concerns that the requirement of a license is too restrictive because it requires five years of 

experience and two exams to obtain a professional license. SERs also supported that the elements of an 

RMP audit are within the purview of a safety and environmental professional rather than an engineer. 

SERs also made specific suggestions about other relevant professional credentials, including CSP, CIH, 

CFPS, CHMM, CPEA, DGSA, or CPSA qualifications. EPA is proposing that a PE be part of the audit 

team because these professionals have an ethical obligation to be independent (and not only because of 

their engineering background).

Auditor availability

SERs expressed concerns about the availability of third-party auditors who are qualified with knowledge 

and experience with a facility’s process, being able to meet the independence criterion. SERs noted that 

qualified auditing firms with specific industry expertise could be a very few, making it more difficult to 

choose an unaffiliated firm. SERs emphasized that the problem of auditor availability will be exacerbated 

for those facilities in rural areas who will have to seek out contractors outside of their immediate vicinity, 

which will add to their costs.

Security

Furthermore, if EPA requires third-party audits, SERs urged EPA to include protection of confidential 

business information (CBI) and address other security concerns. SERs requested that EPA include 

provisions to ensure that third-party auditors do not pose a terrorism concern or release information that 

could cause a security concern, and the auditor will protect CBI from disclosure, for the facilities that they 

audit.

Panel recommendations:

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

consider proposing streamlined independence requirements for small businesses (i.e. based on size of 

the facility).The Panel also recommends that EPA limit the independence criteria to individuals 

participating in the audit rather than the entire company. 

The Panel also recommends that EPA seek comments on:

• Eliminating the independence requirement, in its entirety, and retaining existing requirement for 

compliance audits;

• Limiting applicability of the third-party audit provision by only requiring third-party audits, for P3 

facilities, triggered by major accidents that have offsite impacts and how to define or characterize 

“major accidents with offsite impacts”;

• Deleting the current PE requirement and considering other independent accreditation for thirdparty auditors which also carry ethical requirements, such as CSP, CIH, CFPS, CHMM, CPEA, or 

CPSA; and

• The impacts a third-party auditor may have on a facility’s security and the measures that should 

be included in the rule provision to protect facilities from terrorism or release of CBI from a thirdparty auditor.
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SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that EPA employ the BSEE approach for small firms, using a 

simplified small business size standard, such as 250 employees. Secondly, the Office recommends that 

small firms can submit a waiver request of the independence requirement, based on consideration of the 

specific facts, such as the limited availability of qualified independent auditors. A waiver may be 

appropriate where the firm has been working closely with highly qualified auditors with specific expertise 

in the industrial processes.

7.4.2 Incident Investigations & Root Cause Analysis

Eliminate provision

EPA understands root cause analysis to be a term understood by industry as encompassing several 

different methodologies, all capable of pointing out the “root cause(s)” of a problem or accident. However, 

during the Panel outreach meetings and panel discussions, SERs expressed the need for more guidance 

on what a root cause analysis includes, and questioned whether a root cause analysis provision is 

necessary based on the current incident investigation provision of the RMP rule. There was discussion, 

during pre-panel and panel outreach meetings, about whether EPA was requiring a specific methodology. 

EPA confirmed that it was not requiring a specific methodology. SERs commented that it is a common 

business practice to evaluate the cause of any incident and to address it in a way to prevent its 

reoccurrence and that this proposal will merely add an additional paper work and reporting requirement.

Limit applicability

SERs suggested limiting the applicability of this provision; the SERs questioned whether a root cause 

analysis is necessary or appropriate for every RMP reportable accident and near miss. Others specifically 

stated that it may be too burdensome or not feasible to conduct a root cause analysis on every near miss. 

SERs expressed concern that this would be especially burdensome for small businesses who will need to 

hire outside experts to conduct these analyses or incur the expense to train an existing employee. SERs 

also stated that the root cause analyses would be costly. Other SERs suggested that the requirement for 

a root cause analysis for a near miss should be eliminated altogether and instead should be reserved for 

incidents that have actual releases.

New Definitions

SERs also expressed concern over EPA’s definition of “catastrophic release.” EPA is proposing to modify 

the definition of catastrophic release to use the same definition currently being used to identify reportable 

accidents under the five year accidental history requirement. Some SERs opposed the proposed changes 

to the EPA definition of “catastrophic release” and expressed concern that these revisions would expand 

the scope of when incident investigations are required. Some SERs believed that the redefining of 

“catastrophic release” was broadening the definition to include OSHA jurisdiction-related events. SERs 

believed that the catastrophic release definition should be limited to incidents involving loss of life, serious 

injury or significant damage or loss of offsite property.

SERs requested that EPA clarify what is meant by a “near miss.” EPA noted that we will work with OSHA 

to provide guidance on “near misses.” For example, in the materials presented to the SERs, EPA has 

stated that a near miss would trigger analyses of process upsets such as activation of relief valves, 

interlocks, blowdown systems or rupture disks.

While some SERs recommended that EPA not move forward with these definitions, others recognized the 

need for clearer definitions and suggested seeking public comment on this issue. However, the SERs 

requesting clearer definitions were not supporting broadening the scope of RMP reportable accidents, 

only clarity regarding the current definition.
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Panel recommendations: 

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

clarify its intent that incident investigations are not intended to cover minor accidents or minor near 

misses that could not reasonably have resulted in a catastrophic release. The Panel further recommends 

that EPA consider proposing to require root cause analysis only for reportable releases, not including 

near misses. The Panel recommends that EPA clarify in the preamble the comparative advantages of a 

root cause analysis to the current incident investigation requirements in §§68.60 and 68.81 of the rule. 

The Panel recommends that EPA seek comments on:

• Whether the root cause analysis requirement should be eliminated;

• The revised definition of catastrophic release and whether it should be limited to loss of life, 

serious injury or significant damage or loss of offsite property; and 

• Examples of near misses.

SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that EPA retain the root cause analysis requirement, but not 

revise the definition of catastrophic release from the 1996 version which SBA believes is limited to major 

accidents, and maintains consistency with the current OSHA PSM definition of catastrophic release which 

refers to a “major uncontrolled emission, fire or explosion”, presenting a “serious danger.”

7.4.3 Safer Alternatives Analysis

Eliminate provision

Several SERs questioned the value of requiring the SAA, which they viewed as a highly labor and 

resource intensive review, without a requirement to implement the resulting recommendations, which in 

their view could result in a paperwork exercise and a waste of resources. SERs predicted that the 

analysis will likely produce limited options, which will not be justified by the cost of doing the analysis. 

SERs also cautioned that it could raise liability issues for facilities not implementing recommendations 

from the analysis. SERs also pointed to EPA’s rationale in the 1996 rule for rejecting this requirement and 

asserted that there are still no additional benefits gained from this analysis that will not already be gained

through the existing PHA requirements. SERs identified that the SAA requirement would be unnecessary 

because the existing PHA methodologies already provide successful risk mitigation.

Feasibility

EPA has proposed to define feasible as “[c]apable of being successfully accomplished within a 

reasonable period of time, accounting for economic, environmental, legal, social and technological 

factors.” SERs raised questions about how the evaluation would determine what is feasible and what is 

inherently safer technology. SERs asked if the feasibility evaluation takes into account life-cycle effects, 

and tradeoffs between costs, safety to the public, workers and effects on the environment. One SER 

appreciated EPA’s plan to simply require that facilities consider the feasibility of the SAA 

recommendations, rather than require implementation of these recommendations.

Design stage

Some SERs indicated that safer alternatives should be identified in the design stage of a process or 

facility, rather than during a PHA, because the costs to incorporate safer alternatives for an existing 

process could be prohibitive. One SER quoted EPA’s assertion that this type of assessment “had the 

most benefit in the design of new processes.” Some SERs also noted that this analysis will require 

additional staffing, such as design engineers, in addition to the chemical and mechanical engineers 
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staffed for PHA analyses. SERs identified that most small facilities do not have design engineers on staff 

able to conduct this analysis, and as a result, would have to incur additional expense to retain them. 

Batch toll manufacturers

Batch toll manufacturer SERs expressed concern that this requirement may result in loss of business if 

they will be required to evaluate alternatives for custom formula blends. SERs also expressed concerns 

that the analysis required by this provision will not be feasible for products regulated by FDA because 

they are subject to FDA approval. SERs further questioned whether the SAA should be applied to 

chemicals or processes that were required by government regulations, such as FDA and EPA (under the 

Federal Insecticide, Fungicide, and Rodenticide Act).

Panel recommendations: 

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

explain what evidence it has that causes it to reconsider the 1996 assessment that analysis of inherently 

safer technology was unlikely to yield additional benefits. 

The Panel further recommends that EPA seek comments on:

• Whether to eliminate this requirement;

• Limiting this provision to require analyses only to be conducted at the design stage of new 

processes; and

• Exempting batch toll manufacturers from this requirement.

SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that small firms (under 250 employees) should not be subject 

to this provision until three years after the rule’s compliance date for large firms. This would allow EPA to 

re-examine the utility of such a provision for large firms for possible application to the firms for which this 

is most burdensome. Experimentation with different regulatory approaches is an innovation 

recommended by the Administrative Conference of the United States (Administrative Conference 

Recommendation 2014–5; Retrospective Review of Agency Rules). “Where it is legally permissible and 

appropriate, agencies should consider designing their regulations in ways that allow alternative 

approaches in the rule that could help the agency in a subsequent review of the rule to determine whether 

there are more effective approaches to implementing its regulatory objective. For example, agencies 

could allow for experimentation, innovation, competition, and experiential learning (calling upon the 

insights of internal statistical offices, as well as policy and program evaluation offices, in order to design 

plans for reassessing regulations, to the extent they have such resources).” 79 Fed. Reg. 75116 (Dec. 17, 

2014). This approach of delaying compliance for small firms until EPA can review the utility of the 

provision for large firms is appropriate for a potentially costly new requirement. 

The Office also recommends that batch toll processors be exempt from this provision unless the firm has 

a contractual relationship with the customer of five or more years, given that this requirement is unlikely to 

yield practical information for contracts of short duration. 

7.4.4 Local Coordination

The current rule requires facilities to develop an emergency response program in accordance with the 

requirements of §68.95 except when: the community emergency response plan addresses toxic 

substances at the facility, or the owner/operator at the facility has coordinated response actions for

flammable substances with the local fire department; and has a mechanism in place to notify emergency 

responders when there is a need for a response. 
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Responsibility to ensure adequate emergency response capabilities

Most SERs expressed frustration with the requirement to coordinate with local emergency response 

officials because some LEPCs are not active or do not have sufficient resources to fully implement 

EPCRA emergency planning requirements. For example, SERs stated that the majority of fire 

departments are served by volunteers that often do not have the resources to coordinate with facilities. 

Some SERs believed that the coordination requirement was satisfied simply by notifying the LEPC (for 

toxic substances) or the local fire department (for flammable substances) of substances without 

confirming that the facility is included in the community response plan or coordinating response actions 

with the fire department. SERs suggested that the responsibility to ensure that a local community has 

properly planned for a possible event at a regulated facility should be borne by the community and not by 

the facility as currently required in EPCRA. However, EPA notes that the current RMP rule includes a 

corresponding requirement for facilities to develop an emergency response program except when the 

community emergency response plan addresses toxic substances at the facility, or the owner/operator at 

the facility has coordinated response actions for flammable substances with local fire departments. EPA 

believes a simple notification does not meet the statutory requirements under CAA section 

112(r)(7)(B)(ii)(III)18 and the pursuant RMP regulatory requirements on when to develop an emergency 

response program. If an LEPC is inactive, then no community response plan has been developed, and as 

a result, a source with toxic substances is obligated to develop an emergency response program. In the 

1996 final rule, EPA elaborated that when the source is not addressed in the community response plan or 

has not coordinated response actions with the local FD, then the source must comply with the emergency 

response program requirements.

Because many sources covered by this rule may be too small to handle emergency response

themselves, EPA has provided, in this new section, the actions they must take if they will not 

respond to releases. Specifically, for sources with regulated toxic substances, the source must be 

addressed in the community emergency response plan developed under EPCRA section 303. 

Sources with regulated flammable substances must coordinate response actions with the local 

fire department. These sources must also establish a mechanism to contact local emergency 

responders. Sources that do not meet these requirements must comply with EPA’s 

emergency response program requirements. (emphasis added; see 61 FR 31712, June 20, 

1996.)

Eliminate provision

SERs suggested that EPA address violations of the existing requirements rather than impose additional 

requirements on facilities. Many SERs expressed concerns of inactive or non-responsive and nonexisting LEPCs; their overall sense is that without actual coordination with LEPCs, the required 

documentation of coordination will only be a paperwork exercise. 

SERs also expressed concerns that the provision will result in additional facilities becoming responders 

and that this transition will be costly and difficult for small businesses to absorb. SERs were also 

concerned that the consequences of the coordination requirement will incentivize local governments to 

renounce future response at facilities. SERs noted that small facilities do not have the capability to 

provide response without the assistance of local responders and forcing them to become responding 

 18 CAA section 112(r)(7)(B)(ii)(III) requires a response program providing for specific actions to be taken in response 

to an accidental release of a regulated substance so as to protect human health and the environment, including 

procedures for informing the public and local agencies responsible for responding to accidental releases, emergency 

health care, and employee training measures.
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facilities may run them out of business. EPA has estimated that its clarification of local coordination 

requirements could cause several thousand facilities to become responders. SERs also indicated that 

EPA underestimated the costs of new responding facilities by not including firefighting equipment costs. 

Finally, SERs expressed concerns with the provision empowering LEPCs to require a facility to develop 

an emergency response program and noted that LEPCs do not have legal authority to evaluate the 

adequacy of such programs. In sum, the SERs favored elimination of this requirement.

Panel recommendations: 

This provision is likely to be one of the most costly requirements of the EPA modernization proposal, and 

thus, requires careful consideration. Based on the concerns and recommendations provided by the SERs, 

the Panel recommends that EPA explain how coordination should occur between local emergency 

response officials and small facilities and clarify requirements for facilities that make a “good faith” effort 

to coordinate with local emergency response officials.

The Panel also recommends that EPA seek comment on the proposed frequency for annual coordination.

SBA Office of Advocacy recommendations:

While EPA believes that the current regulation clearly places responsibilities on the facilities to meet the 

emergency response requirements alone in the absence of a public response mechanism, some SERs 

have disagreed with this interpretation. The SBA Office of Advocacy is unsure about which legal 

interpretation is correct, although the Office does believe that it is not appropriate to place this 

responsibility on small firms in these situations.

In a related rulemaking, the 1980 EPA emergency preparedness rule for hazardous waste generators (40 

CFR 265.37) only required generators to “attempt” to make arrangements with local responders, and to 

document any failure to complete such arrangements, recognizing the difficulty of achieving such 

arrangements across the country. Today, just as in 1980, the unavailability of local resources to provide 

the response function is still a problem. The Office recommends that EPA use this approach for 

emergency response within the RMP rule. This is one mechanism whereby the facility can demonstrate 

its “good faith” in making such arrangements.

7.4.5 Emergency Response Exercises

EPA is considering requiring responding facilities to conduct field exercises every five years, tabletop 

exercises annually in the interim years, and invite local response programs to participate. Nonresponding 

and responding facilities would be required to conduct annual notification exercises. SERs have 

expressed that the proposed requirements for the field and tabletop exercises are too prescriptive and 

that the burden is inappropriately being placed on the facilities. SERs also observed that these 

requirements would create more resource demands on the local response community, which is already 

overburdened by the current requirements. One SER suggested that field exercises should allow for

offsite activities such as a week of training at a reputable fire school. EPA notes that the purpose of a fullfield exercise is to ensure that the facility’s response plan is appropriate to ensure adequate response 

capabilities at the facility- offsite training does not accomplish that goal.

SERs also expressed concern that the field exercises can be very expensive because it will require using 

equipment, production curtailment, employee evacuation, local responder participation, and hours of 

planning and coordinating. SERs also expressed concern that local emergencies may force the facility to 

postpone an exercise which could be difficult to reschedule. SERs further noted that requiring a field 

exercise for facilities with a small number of employees may not be practical, for instance, when there are 

only one or two people in the facility and local responders are unable to participate. SERs overwhelmingly 
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suggested that the agency should focus its efforts on helping fire departments and LEPCs with their 

resources instead of applying this requirement to regulated facilities.

Panel recommendations:

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

clarify that participation by local responders is not required for a facility to comply with the requirements in 

this provision and that field exercises and drills required by other state and federal regulations could meet 

this requirement if the facility’s emergency response plan is tested as part of those exercises. 

Finally, the Panel recommends that EPA seek comments on: 

• Whether the exercise provision should be eliminated; 

• How to address postponement and rescheduling issues (which SERs have indicated may take up 

to a year); 

• Limiting the requirement to only tabletop exercises; and

• The frequency of required field and tabletop exercises.

SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that the Agency propose tabletop exercises alone, and include 

no minimum requirements for field exercises. The Office is concerned that LEPCs cannot achieve 

compliance with the current EPCRA requirements, and that adding to them would be counterproductive. 

Field exercises at the facility without LEPC participation would be of limited value.

7.4.6 Information Sharing

Information for LEPCs 

SERs expressed concern over the burden of summarizing highly technical information and the capacity 

for an LEPC to effectively use that information in decision-making, due to differences in expertise, as well 

as resource constraints. Specifically, SERs questioned the value of sharing information on compliance 

audits and SAA. SERs pointed out that the most useful information is the chemical hazard information.

The SERs also indicated that the executive summary requirement of the RMP rule in §68.155 was 

designed to provide the most relevant and easily understandable information to the public. The executive 

summary requires facilities to describe the stationary source and the regulated substances handled; 

accidental release prevention and emergency response policies; general accidental release prevention 

program and chemical-specific prevention steps; five-year accident history; the emergency response 

program; and planned changes to improve safety.

Several SERs suggested allowing an LEPC to request information, such as an accident history for a 

facility, if needed, rather than requiring all of the information to be provided upfront. SERs expressed 

concerns that this will be an unnecessary and duplicative provision because adequate information is 

already being shared under existing requirements. EPA noted that currently, LEPCs may obtain RMPs

from EPA, but those plans have limited information concerning facility emergency response programs, 

accidental releases, compliance audits, etc. In order for LEPCs to fully develop a local emergency 

response plan, it is useful for them to have summaries of key analysis, lessons learned, and changes 

(including information in compliance audits, incident investigations, safer alternatives implemented, and 

drill and exercise reports) from the facility. Additionally, EPA noted that EPCRA only requires reporting of 

chemical inventories and notification of an accidental release. It does not require reporting of results from 

compliance audits, incident investigations, safer alternatives, and drills/exercises.
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Panel recommendations for LEPC information sharing:

In light of these concerns, the Panel recommends that EPA consider only requiring facilities to develop 

chemical hazard information summaries and allowing LEPCs to make reasonable requests for additional 

information. The Panel also recommends making chemical hazard information available upon request by 

the LEPC rather than requiring it to be automatically submitted by the facility. This will help ensure that 

the LEPC receives and is able to get the necessary information to help conduct their activities, and is not 

overburdened by information that it has not requested. 

The Panel also recommends that EPA seek comment on: 

• Narrowing the approach to require a one page summary of each significant chemical hazard 

during a fire identifying the product, its properties, its location and firefighting measures for 

responders-- a one-page summary of information that addresses chemical hazard information 

and emergency response measures;

• Limiting the amount of information to be shared with LEPCs; and

• Whether EPA should specify a format for summary information to make it easier for local officials 

to find and interpret the information that they need.

Information for the public

SERs noted that adequate information is already available for public access through the Right-to-Know 

Network, including the executive summary of the RMPs. EPA noted that it is not requiring new information 

to be provided;19 instead, it is requiring information to be provided in a more easily accessible manner. 

SERs also expressed that they are comfortable with responding to specific information requests rather 

than a mandate that repackages existing public information. One SER commented that CFATS sites are 

unable to share the proposed information.

Panel recommendations for public information sharing:

Based on the concerns of the SERs, the Panel recommends that EPA seek comments on: 

• Ways to limit the scope of the information elements shared with the public as well as the format in 

which information should be provided (e.g. a one-page summary of information that addresses 

chemical hazard information and emergency response measures);

• Whether the existing RMP data, including the executive summary, are adequate for the public in 

the absence of a specific request, and 

• Whether additional information should only be provided to the public upon request.

Public meetings

Several SERs questioned the value of public meetings and noted that, when held in the past, public 

meetings were not well attended. SERs further noted that in the absence of an accident, most past public 

meetings had no public attendees. Some SERs suggested altering the requirement to allow for the 

request of a public meeting if an LEPC or community felt it was necessary. Additionally, SERs expressed 

concern about the requirement to hold public meetings 30 days after an accident; the SER suggestions 

included expanding the timeframe from 60 days to 9 months. SERs indicated that many small business 

may still be handling the aftermath of accidents, conducting incident investigations, and arranging audits 

in this time period, with limited attention to devote to educating the public. 

 19 With the exception of exercise information because this is a new provision.
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Panel recommendations for public meetings: 

Given these concerns, the Panel recommends that EPA require that a public meeting be held only after 

an RMP reportable accident. EPA should consider allowing the public meeting to be combined with any 

meeting open to the general public (e.g. city council, municipal board, or LEPC meeting). 

The Panel also recommends that EPA seek comments on: 

• Whether it is appropriate to require public meetings; 

• Whether to eliminate the public meeting requirement and instead require the facility to schedule a 

meeting with the LEPC and/or emergency responders 60 to 90 days after an accident or incident; 

• Whether public meetings should be held upon request (e.g., LEPC or its community equivalent)

rather than automatically within an established timeframe; and

• Extending the timeframe from 30 to 90 days or whether there is a more appropriate timeframe for 

scheduling a meeting following an RMP reportable accident and who should be included in the 

invitation (e.g. limit to local emergency response officials and LEPCs).
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APPENDIX A: List of Materials EPA shared with Small Entity 

Representatives

Pre-Panel Outreach Meeting held on September 22, 2015:

• Pre-Panel Outreach Meeting Agenda

• SBAC presentation on the SBAR Panel Process

• List of Potential Small Entity Representatives

• Pre-Panel RMP Outreach (PowerPoint presentation)

• PSM & RMP Common chemical list (Excel spreadsheet)

• EPA RMP 40 CFR 68.130 chemical list

• OSHA PSM Appendix A chemical list

Panel Outreach Meeting held on November 19, 2015:

• Panel Outreach Meeting Agenda

• Panel RMP Outreach (PowerPoint presentation)

• PSM & RMP Common chemical list (Excel spreadsheet)

• EPA RMP 40 CFR 68.130 chemical list

• OSHA PSM Appendix A chemical list

Supplemental Information Provided on November 23, 2015:

• Updated Panel RMP Outreach (PowerPoint presentation) (dated November 23, 2015)

o Corrected references to “Additional Information

o Slide titles on 70 and 71 were altered to “Accident Costs” to more accurately reflect the 

information provided.

o SERs were provided with an updated due date for written comments (December 9, as 

agreed upon at the Panel outreach meeting). 

• Final Regulatory Impact and Regulatory Flexibility Analysis of the Final Standard for Process 

Safety Management of Highly Hazardous Chemicals (1992 OSHA PSM RIA)

• Economic Analysis in Support of Final Rule on Risk Management Program Regulations for 

Chemical Accident Release Prevention, as Required by Section 112(r) of the Clean Air Act (1996 

EPA RMP RIA)

Supplemental Information Provided on December 7, 2015: RMP Reportable Accidents 2004-2013 by 

Year & NAICS Code (Word document; requested by a SER helper)
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APPENDIX B: Written Comments Submitted by Small Entity 

Representatives 

Appendix B is a separate PDF file with document number EPA-HQ-OEM-2015-0725-0258.