Tribal Consultation Teleconference Meeting on Risk Management Modernization Rule

April 20, 2016 No tribes participated.

April 26, 2016

EPA Participants:

Resources Management Division, Office of Emergency Management:

Nick Nichols and Victoria van Roden

Regulations Implementation Division

Kim Jennings, Margaret Gerardin, Patty Gioffre, Kathy Franklin, and Beth 

Bosecker

EPA Region 10: Neverley Shoemake

Tribal participants:

Vivian Seals, Twin Hills Village Council, Alaska

Polly Edwards, Caddo Nation, Oklahoma

Sara Jones, Chickasaw Nation, Oklahoma
Risk Management 

Modernization 

Rule 

TRIBAL CONSULTATION 

APRIL 2016

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Agenda

Background 

Overview of proposed rule provisions and costs

Tribal impact 

Additional resources 

Questions

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Background

On August 1, 2013, President Obama issued Executive Order (EO) 

13650: Improving Chemical Facility Safety and Security following several 

catastrophic chemical facility incidents in the United States. 

◦ Focus is to reduce risks associated with hazardous chemicals to owners and 

operators, workers, and communities by enhancing the safety and security of 

chemical facilities.

The keys areas of emphasis under the EO are:

◦ Strengthening community planning and preparedness,

◦ Enhancing federal operational coordination,

◦ Improving data management, and

◦ Modernizing policies and regulations.

◦ EPA issued a request for information (RFI) on July 31, 2014, and 

◦ Convened a Small Business Advocacy Review panel on November 4, 2015.

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Existing regulatory framework

The Risk Management Program is one of several programs that 

address chemical facility safety and security:

◦ OSHA Process Safety Management (PSM) standard - Management program 

for highly hazardous chemicals aimed at preventing and minimizing 

occupational/onsite exposure

◦ Emergency Planning and Community Right-to-know (EPCRA) requirements -

Local emergency planning and preparedness, emergency release 

notification, community right-to-know: provision of hazardous chemical 

storage inventory and toxic chemical release inventory to the community 

and first responders

◦ CAA Section 112(r)(1) general duty clause - Facility owner/operators have a 

general duty to prevent and minimize releases

◦ Chemical Facility Anti-terrorism Standards (CFATS) - DHS security 

requirements 

◦ ATF requirements for explosives

◦ State/local requirements (e.g., NJ, Contra Costa County, CA regulations)

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Risk Management Program rule

◦ Promulgated in 1996 under Section 112(r) of the Clean Air Act 

Amendments

◦ Applies to all stationary sources with processes that contain more than a 

threshold quantity of a regulated substance (approx. 12,500 sources)

◦ Includes a wide variety of industry sectors including: refining, chemical 

manufacturing, energy production, ammonia refrigeration, water treatment, bulk 

storage, chemical distribution, agricultural retail, and chemical warehouses 

◦ Requires the source to develop a Risk Management Plan (RMP) 

◦ Addresses elements aimed at preventing accidental releases and reducing the 

severity of releases that occur

◦ Prepare and submit an RMP to EPA at least every 5 years

◦ Covered processes fall within one of three prevention program levels 

based on:

◦ The potential for offsite consequences from a worst-case accidental release;

◦ Accident history; and

◦ Regulation under OSHA PSM

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Program levels

PROGRAM 1

642 Facilities

PROGRAM 2

1,272 Facilities*

Processes not eligible 

for Program 1, not 

subject to Program 3

◦ Mainly water & 

wastewater treatment in 

Federal OSHA states

◦ Additional hazard 

assessment, accident 

prevention, management, 

and emergency response 

requirements

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*Analysis reflects OSHA change to PSM retail exemption issued July 2015. See OSHA PSM Retail

Exemption Policy at: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=2 9528

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Processes subject to 

OSHA’s PSM or in one of 

10 specified NAICS 

codes

◦ Larger facilities or those 

with complex processes

◦ Examples include: refining, 

chemical manufacturing, 

energy production, water 

treatment

◦ Covered by OSHA’s PSM 

accident prevention 

program and include 

additional hazard 

assessment,

management, and 

emergency response 

requirements

PROGRAM 3

10,628 Facilities*

Processes that would 

not affect the public in 

the event of a worstcase release & no 

accidents with offsite 

consequences in the last 

five years

◦ Small quantities of 

flammables, less volatile 

toxics

◦ Limited accident 

prevention including 

hazard assessment and 

emergency response 

requirements
Program level comparison

PROGRAM 1 PROGRAM 2 PROGRAM 3

 Worst case analysis

 5-year accident history

 Document management system

 Worst case analysis

 5-year accident history

 Document management system

 Worst case analysis

 5-year accident history

 Document management system

Prevention Program

Certify no additional prevention steps 

needed

 Safety information

 Hazard review

 Operating procedures

 Training

 Maintenance

 Incident investigation

 Compliance audit

 Process safety information

 Process hazard analysis (PHA)

 Operating procedures

 Training

 Maintenance

 Incident investigation

 Compliance audit

 Management of change 

 Pre-startup review 

 Contractors

 Employee participation

 Hot work permits

Emergency Response Program

Coordinate with local responders Develop plan/program and coordinate 

with local responders

Develop plan/program and 

coordinate with local responders

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Overview of Proposed Revisions

P1 P2 P3

Third-party audits (applies to the next scheduled audit after an 

accident) [Estimated 150 accidents/year]

√ √

Incident Root Cause Analysis (only for facilities with 

accidents/near misses) [Estimated 300 incidents/year]

√ √

Safer Alternatives Analysis (applies to a subset of P3 in certain 

NAICS codes*) [Estimated 1,692 Facilities/4,308 Processes]

√

Coordinating Emergency Response Program Requirements 

with Local Responders

√ √

Emergency Response Exercises √ √

Information Sharing √ √ √

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*Applies to paper manufacturing, petroleum and coal products manufacturing, and 

chemical manufacturing facilities 
Third-party compliance audits

Proposed revisions require all P2 and P3 facilities to conduct a thirdparty audit in lieu of a compliance audit following an RMP reportable 

accident.* 

◦ Must be completed within 12 months of an RMP reportable accident or 

within 3 years of completion of the previous compliance audit, whichever is 

sooner. 

◦ Note that this audit and its schedule are independent of the incident investigation 

requirement and its schedule.

◦ Same scope as the current compliance audit provisions (i.e., audit 

prevention program implementation for all covered processes).

◦ EPA is proposing criteria for auditor independence, impartiality, and 

competence.

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* RMP reportable accident means an accidental release meeting the criteria in §68.42(a) 

from a covered process at a stationary source (i.e., includes accident with deaths, 

injuries, evacuations, sheltering in place, property damage, or environmental damage).
Incident investigations and 

root cause analysis

Proposed revisions (Applies to P2 and P3): 

◦ Revise incident investigation requirements to:

◦ Clarify that it applies to a catastrophic release (i.e., an RMP reportable accident) or 

an incident that could reasonably have resulted in a catastrophic release (i.e., a near 

miss) 

◦ Require a root cause investigation (i.e., identify the fundamental reasons why an 

incident occurred and the correctable failures in management systems)

◦ Require a report be completed within 12 months (unless extension approved, in 

writing, by implementing agency)

◦ Clarify the definition of catastrophic release to be consistent with reportable 

accidental release (i.e., an accident with deaths, injuries, evacuations, 

sheltering in place, property damage, or environmental damage)

◦ Add a definition of root cause to mean a fundamental, underlying, systemrelated reason why an incident occurred that identifies correctable failure(s) 

in management systems

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Safer technology and 

alternatives analysis (STAA)

Would apply to P3 facilities in NAICS 

codes:

◦ 322 (paper manufacturing), 

◦ 324 (petroleum and coal products 

manufacturing), and 

◦ 325 (chemical manufacturing) 

The STAA would consider, in the 

following order of preference:

◦ Inherently safer technology (IST) or design, 

◦ Passive measures, 

◦ Active measures, and 

◦ Procedural measures

ISTs are those measures that reduce or 

eliminate the hazards and include 

minimization, substitution of less 

hazardous chemical, moderation of 

the process, and simplification of the 

process/procedures

Owner/operator would not be 

required to implement any prescribed 

technology; however EPA is requesting 

comment on whether the rule 

should require implementation

EPA is proposing several

definitions including feasible

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Proposed revisions to require the source to conduct a STAA and 

determine feasibility of inherently safer technologies and designs 

considered:
Local coordination

Proposed revisions require all P2 and P3 facilities to:

◦ Coordinate annually with the Local Emergency Planning Committees (LEPCs*) 

/emergency responders and ensure response capabilities exist

◦ Document coordination 

◦ LEPCs*/emergency responders can request source to prepare an emergency response 

(ER) program

What are the outcomes of “coordination”?

◦ “Non-responding” source – coordination 

indicates that local public response 

capabilities are adequate to respond, 

appropriate notification mechanisms are in 

place, and local authorities have not 

requested that owner develop ER program

◦ “Responding” source – coordination indicates 

that local public response capabilities are not 

adequate to respond, or local authorities 

request that owner develop ER program 

◦ Facility must develop an emergency 

response program following § 68.95

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What is “coordination”?

◦ Facility and local responders meet and 

discuss response needs, capabilities, and 

roles:

• Determine resources needed to 

appropriately respond to regulated 

substance releases at facility

• Determine resources available from facility 

and local responders

• Identify capability gaps and develop plans 

to address

• Decide whether facility or local responders 

will respond to releases of regulated 

substances

• Assign response action roles and 

responsibilities

* Applicable to Tribal Emergency

Planning Committees (TEPCs)
Exercises

Proposed revisions: Require facilities to test their emergency response 

program through notification, tabletop, and field exercises (Applies to all 

P2 and P3)

◦ Require “responding” and “non-responding” facilities to conduct an annual 

notification exercise

◦ Require “responding” facilities to conduct the field and tabletop exercises and 

invite local responders to participate:

Tabletop exercise

◦ Frequency: Annually except in the year 

of a field exercise

◦ Scope: Same as field exercise without 

actual mobilization of personnel & 

equipment

An exercise evaluation report must be 

completed within 90 days

of each exercise.

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Field exercise

◦ Frequency: Every 5 years and within one 

year following a reportable accident

◦ Scope: Test procedures for notification, 

evacuation, medical treatment, 

communications systems, emergency 

response personnel mobilization 

(including contractors, if appropriate), 

coordination with local responders, 

equipment deployment, and other actions 

identified in ER program as appropriate

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Information sharing

Proposed revisions add new disclosure elements for all facilities:

◦ To LEPCs* and emergency responders

◦ To general public

◦ Public meetings within 30 days of an RMP reportable accident

The information should be conveyed without revealing CBI or trade 

secret information

Any summary information should adequately explain the findings, 

results, or analysis being provided while avoiding technical jargon

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* Applicable to TEPCs
Information sharing-LEPC

Require summaries of chemical hazard information to be provided to 

LEPC* or local emergency response official, upon request:

◦ Information on RMP regulated substances−names and quantities of 

regulated substances held in a process

◦ Five-year accident history information (reported under §68.42)

◦ Compliance audits

◦ Incident investigation reports (with root cause findings)

◦ IST implemented or planned to be implemented, if applicable

◦ No requirement to implement, but if a source does implement ISTs it is 

useful information for LEPCs*/first responders to have in their local 

emergency planning efforts

◦ Exercises, including schedules and reports

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* Applicable to TEPCs
Information sharing-public

Require chemical hazard information to be provided in an easily 

accessible manner (i.e., posting on a company website, public file sharing 

website, or social media website, or placing a file at a public library or local 

government office)

◦ Names of RMP regulated substances held in a process

◦ Safety data sheets (SDS) for all RMP regulated substances located at 

the facility

◦ Emergency response program summary information 

◦ Five-year accident history information reported under §68.42

◦ Exercise summary information

◦ LEPC contact information

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Information sharingpublic meetings

Proposed revisions would require a public meeting to be held within 30 

days of an RMP reportable accident. The meeting would address:

◦ Information about the accident;

◦ Other relevant chemical hazard information (such as what would be provided 

to the public)

Can be held in concurrence with a regularly scheduled LEPC* meeting 

that is open to the public

Facilities must notify the community about the public meeting and can 

use various methods including: 

◦ Publishing a notice in a local paper, 

◦ Social media, and/or 

◦ Fliers in public places, like the local library

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* Applicable to TEPCs
Estimated unit costs (in actual $)*

Type of Cost Estimated 

Compliance Cost* Notes

Third-party Compliance 

Audits $18,000 to $49,000 Applies to facilities with P2 and P3 processes after an RMP reportable accident.

Incident Investigation Root 

Cause Analysis $2,000 to $5,000 Applies to facilities with P2 and P3 processes only after an RMP reportable accident or a near miss.

STAA $29,000 to $49,000 

per process

Applies to facilities in select NAICS codes with P3 processes. 

Occurs once every 5 years.

Coordination with local 

responders $300 to $400 Applies to P2 and P3 facilities. Occurs annually.

New Responder Costs (estimated costs that may apply if a current non-responding facility becomes a responding facility as a 

result of local coordination activities)

Develop Plan $2,000 to $8,000

Initial year costs. New responders will also be subject to 

exercises costs below. Train employees $11,000 to $65,000

Purchase equipment $50,000 to $60,000

Emergency Response Exercises (P2 and P3)

Notification drills $100 to $200 Applies to both responders and non-responders. Occurs 

annually.

Tabletop exercises $5,000 to $24,000 Applies to responding facilities. Tabletop exercises occur 

annually except in the year of a field exercises which occurs 

once every five years. Field exercises $8,000 to $66,000

Information Sharing (All RMP facilities)

LEPC/TEPC/local 

responders $4,000 to $10,000

These ranges represent the combined costs for all required 

reports. Costs will vary on an annual basis upon occurrence 

of regulatory requirements (e.g., compliance audits, incident 

investigations).

Public $200 to $1,600 Update annually.

Public meetings $2,000 to $4,000 After an RMP reportable accident.

* Sources for 

estimates 

include 

technical 

literature, 

public 

comments, 

other similar 

programs, 

RMP 

database, 

and EPA 

labor models 

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How Could This Proposed Rule 

Impact Tribes?

Approximately 260 RMP facilities are located on tribal lands

Tribes could be impacted by this proposal in 2 ways:

◦ As a Tribal government when the Tribal government conducts emergency 

response or emergency preparedness activities under EPCRA

• The Tribe would be able to request specific information from the facility for planning 

purposes

• The Tribe may be requested to participate in exercises by RMP-regulated facilities on 

Tribal lands 

◦ As an owner or operator of an RMP-regulated facility

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Non-federal Emergency Response Entities Under EPCRA

SERCs TERCs LEPCs TEPCs

State Emergency

Response 

Commissions

Tribal Emergency

Response Commissions

Local Emergency

Planning 

Committees

Tribal Emergency

Planning Committees

SERCs are 

appointed by the 

governor of each 

state to establish 

LEPCs.

TERCs are established by 

the Chief Executive Officer 

of the tribe. TERCs have the 

same responsibilities as 

SERCs in the Tribal region.

LEPCs are 

established by 

the SERC in each 

state. 

TEPCs are established by 

the TERC. They have the 

same responsibilities as 

LEPCs in the tribal region.

Responsibilities

• Establish and supervise LEPCs / TEPCs 

• Review local emergency plan 

• Establish mechanisms to collect hazardous 

chemical inventories and information on chemical 

releases from facilities

• Establish procedures to process public information 

requests

Responsibilities

• Prepare and review chemical emergency 

response plan

• Coordinate responses to emergency releases, 

serving as a focal point in the community for 

information and holding discussions about 

chemical risks in the community

• Establish procedures to process public 

information requests

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Tribal Funding Considerations

A tribe may or may not conduct emergency planning or response 

activities under EPCRA

◦ This proposal does not seek to establish new TERCs or TEPCs

EPA does not provide funding under EPCRA or the RMP program for 

state, local, or Tribal governments to conduct emergency response 

programs

However, the May 2013 General Assistance Program (GAP) Guidance 

defines capacity indicators for an emergency response program that 

include:

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◦ Establishing a TERC,

◦ Participating on an LEPC,

◦ Coordinating with a SERC

◦ Conducting an emergency 

response exercise, or

◦ Conducting a public meeting to 

discuss chemical risk information

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Additional resources

RMP proposed rule webpage: http://www.epa.gov/rmp/proposedchanges-risk-management-program-rmp-rule

EO activities under EO 13650: http://www.epa.gov/rmp/executiveorder-improving-chemical-facility-safety-and-security

EO 13650: https://www.osha.gov/chemicalexecutiveorder/index.html

Report for the President: Actions to Improve Chemical Facility Safety 

and Security–A Shared Commitment: 

https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_stat

us_report.pdf

EPA RFI: 

https://federalregister.gov/a/2014-18037

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Questions?

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23
Questions and Answers from April 26 Tribal Consultation Teleconference Meeting on Risk 

Management Modernization Rule.

Ms Edwards: Our tribe forms an LEPC with Caddo County, we are not an independent TEPC. 

Can the emergency response plans be uploaded to the state DEQ to be shared with LEPCs? 

EPA: EPCRA information from facilities is gathered by some states and distributed to LEPCs 

and fire departments. However RMP emergency plans are not reported to EPA, but are kept at 

the facility. The Risk Management Plan data reported to EPA does not have detailed ER Plan 

information. Some Risk Management Plans are uploaded by the states. If the facility is a 

responding facility, then they may incorporate their ER plan as part of the coordination effort 

with LEPCs and first responders.

Ms. Edwards: Are wind farms covered by RMP regulations?

EPA: No.

Ms. Edwards: Would after action reports from full scale exercises be published or made part of 

best practices? Under CFATS, facilities can upload exercise data into database (?) and local 

response agencies can read after-action reports to learn about and plan exercises. HSEEP 

(Homeland Security Exercise and Evaluation Program) also has guidance for evaluation of 

exercises. Wildfire planning was also mentioned.

EPA: RMP regulations would not require them to put the after-action exercise reports into a 

CFATS program or database. LEPCs can request a summary of exercise reports. Best 

Management Practices should be shared, made public.

Ms. Edwards: When putting together an exercise, it is helpful for one to look at others’ exercise 

reports and best practices. Looking at scenarios developed by others helps with planning.

EPA: Facilities would be required to invite LEPCs to participate in their exercises.

EPA: There is organization call NATTSPO- National Association of SARA Title III Program 

Officials (www.nasttpo.com) that works with state and local emergency planning organizations 

that tribal representatives may be interested in joining. They are having a meeting in May.

Ms. Edwards: I would be interested in getting more information about that meeting. 

EPA: We can send you further information and we also put information about upcoming 

meeting of interest in our SERC/TERC Update email which you can subscribe to. (EPA 

collected email contact information for the interested parties.)

There were no comments from other tribes.