Vol. 81 Monday, 

No. 49 March 14, 2016 

Part VI 

Environmental Protection Agency 

40 CFR Part 68 

Accidental Release Prevention Requirements: Risk Management Programs 

Under the Clean Air Act; Proposed Rule 

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13638 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 68 

[EPA–HQ–OEM–2015–0725; FRL–9940–94– 

OLEM] 

RIN 2050–AG82 

Accidental Release Prevention 

Requirements: Risk Management 

Programs Under the Clean Air Act 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA), in response to Executive 

Order 13650, is proposing to amend its 

Risk Management Program regulations. 

The proposed revisions include several 

changes to the accident prevention 

program requirements including an 

additional analysis of safer technology 

and alternatives for the process hazard 

analysis for some Program 3 processes, 

third-party audits and incident 

investigation root cause analysis for 

Program 2 and Program 3 processes, 

enhancements to the emergency 

preparedness requirements, increased 

public availability of chemical hazard 

information, and several other changes 

to certain regulatory definitions and 

data elements submitted in risk 

management plans. These proposed 

amendments seek to improve chemical 

process safety, assist local emergency 

authorities in planning for and 

responding to accidents, and improve 

public awareness of chemical hazards at 

regulated sources. 

DATES: 

Comments. Comments and additional 

material must be received on or before 

May 13, 2016. Under the Paperwork 

Reduction Act (PRA), comments on the 

information collection provisions are 

best assured of consideration if the 

Office of Management and Budget 

(OMB) receives a copy of your 

comments on or before April 13, 2016. 

Public Hearing. The EPA will hold a 

public hearing on this proposed rule on 

March 29, 2016 in Washington, DC. 

ADDRESSES: Comments. Submit 

comments and additional materials, 

identified by docket EPA–HQ–OEM– 

2015–0725 to the Federal eRulemaking 

Portal: http://www.regulations.gov. 

Follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. The EPA may 

publish any comment received to its 

public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. The EPA will 

generally not consider comments or 

comment contents located outside of the 

primary submission (i.e., on the web, 

cloud, or other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

Public Hearing. A public hearing will 

be held in Washington, DC on March 29, 

2016 at William J. Clinton East Building, 

Room 1153 (Map Room), 1201 

Constitution Ave. NW., Washington, DC 

20460. The hearing will convene at 9:00 

a.m. through 8:00 p.m. The sessions will 

run from 9:00 a.m. to 12:00 Noon, with 

a break between 12:00 Noon and 1:00 

p.m., continuing from 1:00 p.m. to 4:30 

p.m., with a break from 4:30 to 5:30 

p.m., and continuing from 5:30 p.m. to 

8:00 p.m. Persons wishing to preregister 

may be assigned a time according to this 

schedule. The evening session 

beginning at 5:30 p.m. will be extended 

one hour after all scheduled comments 

have been heard to accommodate those 

wishing to make a comment as a walkin registrant. Please register at https://

rmp-proposed-rule.eventbrite.com to 

speak at the hearing. The last day to 

preregister in advance to speak at the 

hearing is March 24, 2016. Additionally, 

requests to speak will be taken the day 

of the hearing at the hearing registration 

desk, although preferences on speaking 

times may not be able to be fulfilled. If 

you require the service of a translator or 

special accommodations such as audio 

description, we ask that you pre-register 

for the hearing, on or before March 21, 

2016, to allow sufficient time to arrange 

such accommodations. 

The hearing will provide interested 

parties the opportunity to present data, 

views or arguments concerning the 

proposed action. The EPA will make 

every effort to accommodate all speakers 

who arrive and register. Because this 

hearing is being held at U.S. government 

facilities, individuals planning to attend 

the hearing should be prepared to show 

valid picture identification to the 

security staff in order to gain access to 

the meeting room. Please note that the 

REAL ID Act, passed by Congress in 

2005, established new requirements for 

entering federal facilities. If your 

driver’s license is issued by Alaska, 

American Samoa, Arizona, Kentucky, 

Louisiana, Maine, Massachusetts, 

Minnesota, Montana, New York, 

Oklahoma or the state of Washington, 

you must present an additional form of 

identification to enter the federal 

building. Acceptable alternative forms 

of identification include: Federal 

employee badges, passports, enhanced 

driver’s licenses and military 

identification cards. In addition, you 

will need to obtain a property pass for 

any personal belongings you bring with 

you. Upon leaving the building, you 

will be required to return this property 

pass to the security desk. No large signs 

will be allowed in the building, cameras 

may only be used outside of the 

building and demonstrations will not be 

allowed on federal property for security 

reasons. 

The EPA may ask clarifying questions 

during the oral presentations, but will 

not respond to the presentations at that 

time. Written statements and supporting 

information submitted during the 

comment period will be considered 

with the same weight as oral comments 

and supporting information presented at 

the public hearing. Verbatim transcripts 

of the hearing and written statements 

will be included in the docket for the 

rulemaking. The EPA will make every 

effort to follow the schedule as closely 

as possible on the day of the hearing; 

however, please plan for the hearing to 

run either ahead of schedule or behind 

schedule. 

FOR FURTHER INFORMATION CONTACT: 

James Belke, United States 

Environmental Protection Agency, 

Office of Land and Emergency 

Management, 1200 Pennsylvania Ave. 

NW. (Mail Code 5104A), Washington, 

DC 20460; telephone number: (202) 

564–8023; email address: belke.jim@

epa.gov, or: Kathy Franklin, United 

States Environmental Protection 

Agency, Office of Land and Emergency 

Management, 1200 Pennsylvania Ave. 

NW. (Mail Code 5104A), Washington, 

DC 20460; telephone number: (202) 

564–7987; email address: 

franklin.kathy@epa.gov. 

Electronic copies of this Notice of 

Proposed Rulemaking (NPRM) and 

related news releases are available on 

EPA’s Web site at http://www.epa.gov/

rmp. Copies of this NPRM are also 

available at http://www.regulations.gov. 

SUPPLEMENTARY INFORMATION: Acronyms 

and Abbreviations. We use multiple 

acronyms and terms in this preamble. 

While this list may not be exhaustive, to 

ease the reading of this preamble and for 

reference purposes, the EPA defines the 

following terms and acronyms here: 

ACC American Chemistry Council 

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ACUS Administrative Conference of the 

United States 

AFPM American Fuel & Petrochemical 

Manufacturers 

AMWA Association of Metropolitan Water 

Agencies 

AN ammonium nitrate 

ANSI American National Standards 

Institute 

API American Petroleum Institute 

ASTM American Society for Testing and 

Materials 

AUC Allied Universal Corp 

AWWA American Water Works Association 

AXPC American Exploration & Production 

Council 

BSEE Bureau of Safety and Environmental 

Enforcement 

BTMU Bank of Tokyo Mitsubishi 

CAA Clean Air Act 

CAAA Clean Air Act Amendments 

CARB California Air Resources Board 

CAS Chemical Abstracts Service 

CBI confidential business information 

CCHS Contra Costa County Health Services 

CCPS Center for Chemical Process Safety 

CEM European Committee for 

Standardization 

CFATS Chemical Facility Anti-Terrorism 

Standards 

CFR Code of Federal Regulations 

CGA Compressed Gas Association 

CI Chlorine Institute 

CO2 Carbon dioxide 

COS Center for Offshore Safety 

CPCD Coalition to Prevent Chemical 

Disasters 

CPSC Consumer Product Safety 

Commission 

CRA Corn Refiners Association 

CSAG Chemical Safety Advocacy Group 

CSB Chemical Safety and Hazard 

Investigation Board 

CSD Center for Science and Democracy 

CSISSFRRA Chemical Safety Information, 

Site Security and Fuels Regulatory Relief 

Act 

DHS Department of Homeland Security 

DOI Department of the Interior 

EPA Environmental Protection Agency 

EPCRA Emergency Planning & Community 

Right-To-Know Act 

FCC Federal Communications Commission 

FDA Food and Drug Administration 

FEMA Federal Emergency Management 

Agency 

FOIA Freedom of Information Act 

FPC Formosa Plastics Corporation 

FR Federal Register 

FRP facility response plan 

GHG greenhouse gas 

GHS Globally Harmonized System of 

Classification and Labelling of Chemicals 

GPA Gas Processors Association 

HAZOP hazard and operability study 

HF hydrofluoric acid 

IPAA Independent Petroleum Association 

of America 

ISD inherently safer design 

ISO industrial safety ordinance 

ISOM isomerization 

ISS inherently safer strategies 

IST inherently safer technology 

LEPC local emergency planning committee 

LPG liquefied petroleum gas 

MACT maximum achievable control 

technology 

MIC methyl isocyanate 

MKOPSC Mary Kay O’Connor Process 

Safety Center 

MOC management of change 

NACD National Association of Chemical 

Distributors 

NAICS North American Industrial 

Classification System 

NAM National Association of 

Manufacturers 

NAS National Academy of Sciences 

NASTTPO National Association of SARA 

Title III Program Officials 

NIST National Institute of Standards and 

Technology 

NJDEP New Jersey Department of 

Environmental Protection 

NOPA National Oilseed Processors 

Association 

NPRM Notice of Proposed Rulemaking 

NRC Nuclear Regulatory Commission 

NSPS New Source Performance Standards 

NTTAA National Technology Transfer 

Advancement Act 

NYDFS New York State Department of 

Financial Services 

OCA offsite consequences analysis 

OCS outer continental shelf 

OHMERC Oklahoma Hazardous Materials 

Emergency Response Commission 

OMB Office of Management and Budget 

OSHA Occupational Safety and Health 

Administration 

PCAOB Public Company Accounting 

Oversight Board 

PE professional engineer 

PHA process hazard analysis 

PRA Paperwork Reduction Act 

PREP preparedness for response exercise 

program 

PSI process safety information 

PSM process safety management 

PSSAP Process Safety Site Assessment 

Program 

PVC polyvinyl chloride 

PwC PricewaterhouseCoopers 

RAGAGEP recognized and generally 

accepted good engineering practices 

RCRA Resource Conservation and Recovery 

Act 

RFA Regulatory Flexibility Act 

RFI request for information 

RMP Risk Management Plan 

SARA Superfund Amendments and 

Reauthorization Act 

SBAR Small Business Advocacy Review 

SBREFA Small Business Regulatory 

Enforcement Fairness Act 

SDS safety data sheet 

SDWA Safe Drinking Water Act 

SEC Securities and Exchange Commission 

SEMS Safety and Environmental 

Management Systems 

SER small entity representative 

SERC state emergency response 

commission 

SOCMA Society of Chemical Manufacturers 

and Affiliates 

SOP standard operating procedure 

STAA safer technology and alternatives 

analysis 

TCPA Toxic Catastrophe Prevention Act 

TEPC tribal emergency planning 

committees 

TERC tribal emergency response 

commission 

TPA Texas Pipeline Association 

TQ threshold quantity 

TSCA Toxic Substances Control Act 

UMRA Unfunded Mandates Reform Act 

USCG United States Coast Guard 

UST underground storage tank 

USW United Steel Workers 

VCM vinyl chloride monomer 

VCS voluntary census standards 

Organization of this Document. The 

contents of this preamble are: 

I. General Information 

A. Executive Summary 

B. Does this action apply to me? 

II. Background 

III. Additional Information 

A. What actions are not addressed in this 

rule? 

B. What is the agency’s authority for taking 

this action? 

IV. Prevention Program Requirements 

A. Incident Investigation and Accident 

History Requirements 

B. Third-Party Compliance Audits 

C. Safer Technology and Alternatives 

Analysis (STAA) 

D. Stationary Source Location and 

Emergency Shutdown 

V. Emergency Response Preparedness 

Requirements 

A. Emergency Response Program 

Coordination With Local Responders 

B. Facility Exercises 

VI. Information Availability Requirements 

A. Proposed Public Disclosure 

Requirements to LEPCs or Emergency 

Response Officials 

B. Proposed Revisions to Requirements for 

Information Availability to the Public 

C. Alternative Options 

VII. Risk Management Plan Streamlining, 

Clarifications, and RMP Rule Technical 

Corrections 

A. Deletions From Subpart G 

B. Revisions to Subpart G 

C. Additions to Subpart G 

D. Proposed Amendments and Technical 

Corrections 

VIII. Compliance Dates 

IX. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

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1For more information on the Executive Order 

see https://www.whitehouse.gov/the-press-office/

2013/08/01/executive-order-improving-chemicalfacility-safety-and-security. 

I. General Information 

A. Executive Summary 

1. Purpose of the Regulatory Action 

The purpose of this action is to 

improve safety at facilities that use and 

distribute hazardous chemicals. In 

response to catastrophic chemical 

facility incidents in the United States, 

including the explosion that occurred at 

the West Fertilizer facility in West, 

Texas, on April 17, 2013 that killed 15 

people, President Obama issued 

Executive Order 13650, ‘‘Improving 

Chemical Facility Safety and Security,’’ 

on August 1, 2013.1

Section 6(a)(i) of Executive Order 

13650 requires that various Federal 

agencies develop options for improved 

chemical facility safety and security that 

identify ‘‘improvements to existing risk 

management practices through agency 

programs, private sector initiatives, 

Government guidance, outreach, 

standards, and regulations.’’ One agency 

program presently in existence is the 

Risk Management Program implemented 

by EPA under section 112(r) of the 

Clean Air Act (42 U.S.C. 7412(r)). 

Section 6(c) of Executive Order 13650 

requires the Administrator of EPA to 

review the chemical hazards covered by 

the Risk Management Program and 

expand, implement and enforce the Risk 

Management Program to address any 

additional hazards. As part of this effort 

to solicit comments and information 

from the public regarding potential 

changes to EPA’s Risk Management 

Program regulations (40 CFR part 68), 

on July 31, 2014, EPA published a 

‘‘Request for Information’’ notice or 

‘‘RFI’’ (79 FR 44604). 

EPA believes that the Risk 

Management Program regulations have 

been effective in preventing and 

mitigating chemical accidents in the 

United States. However, EPA believes 

that revisions could further protect 

human health and the environment 

from chemical hazards through 

advancement of process safety 

management based on lessons learned. 

These revisions are a result of a review 

of the existing Risk Management 

Program and information gathered from 

the RFI and Executive Order listening 

sessions. 

2. Summary of the Major Provisions of 

the Regulatory Action 

This action proposes to amend EPA’s 

Risk Management Program regulations 

at 40 CFR part 68. These regulations 

apply to stationary sources (also referred 

to as ‘‘facilities’’) that hold specific 

‘‘regulated substances’’ in excess of 

threshold quantities. These facilities are 

required to assess their potential release 

impacts, undertake steps to prevent 

releases, plan for emergency response to 

releases, and summarize this 

information in a risk management plan 

(RMP) submitted to EPA. The release 

prevention steps vary depending on the 

type of process, but progressively gain 

specificity and rigor over three program 

levels (i.e., Program 1, Program 2, and 

Program 3). 

The major provisions of this proposed 

rule include several changes to the 

accident prevention program 

requirements, as well as enhancements 

to the emergency response 

requirements, and improvements to the 

public availability of chemical hazard 

information. Each of these proposed 

revisions is introduced in the following 

paragraphs of this section and described 

in greater detail in sections IV through 

VI, later in this document. 

Certain proposed provisions would 

apply to a subset of the processes based 

on program levels described in 40 CFR 

part 68 (or in one case, to a subset of 

processes within a program level). A full 

description of these program levels is 

provided in section II of this document. 

a. Accident Prevention Program 

Revisions 

This action proposes three changes to 

the accident prevention program 

requirements. First, the proposed rule 

would require all facilities with Program 

2 or 3 processes to conduct a root cause 

analysis as part of an incident 

investigation of a catastrophic release or 

an incident that could have reasonably 

resulted in a catastrophic release (i.e., a 

near-miss). This provision is intended to 

reduce the number of chemical 

accidents by requiring facilities to 

identify the underlying causes of an 

incident so that they may be addressed. 

Identifying the root causes, rather than 

isolating and correcting solely the 

immediate cause of the incident, will 

help prevent similar incidents at other 

locations, and will yield the maximum 

benefit or lessons learned from the 

incident investigation. 

Second, the proposed rule would 

require regulated facilities with Program 

2 or 3 processes to contract with an 

independent third-party to perform a 

compliance audit after the facility has a 

reportable release. Compliance audits 

are required under the existing rule, but 

are allowed to be self-audits (i.e., 

performed by the owner or operator of 

the regulated facility). This provision is 

intended to reduce the risk of future 

accidents by requiring an objective 

auditing process to determine whether 

the owner or operator of the facility is 

effectively complying with the accident 

prevention procedures and practices 

required under 40 CFR part 68. 

The third proposed revision to the 

prevention program would add an 

element to the process hazard analysis 

(PHA), which is updated every five 

years. Specifically, owners or operators 

of facilities with Program 3 regulated 

processes in North American Industrial 

Classification System (NAICS) codes 

322 (paper manufacturing), 324 

(petroleum and coal products 

manufacturing), and 325 (chemical 

manufacturing) would be required to 

conduct a safer technology and 

alternatives analysis (STAA) as part of 

their PHA, and to evaluate the 

feasibility of any inherently safer 

technology (IST) identified. The current 

PHA requirements include 

consideration of active, passive, and 

procedural measures to control hazards. 

The proposed modernization effort 

continues to support the analysis of 

those measures and adds consideration 

of IST alternatives. The proposed 

provision is intended to reduce the risk 

of serious accidental releases by 

requiring facilities in these sectors to 

conduct a careful examination of 

potentially safer technology and designs 

that they could implement in lieu of, or 

in addition to, their current 

technologies. Data compiled from RMPs 

suggest processes in these NAICS codes 

have a disproportionate share of 

reportable releases. 

At this time, EPA is not proposing any 

additional requirements either for 

location of stationary sources (related to 

their proximity to public receptors) or 

emergency shutdown systems. However, 

EPA seeks comment on whether such 

requirements should be considered for 

future rulemakings, including the scope 

of such requirements, or whether the 

Agency should publish guidance. 

b. Emergency Response Enhancements 

This action also proposes to enhance 

the rule’s emergency response 

requirements. Owners or operators of all 

facilities with Program 2 or 3 processes 

would be required to coordinate with 

the local emergency response agencies 

at least once a year to ensure that 

resources and capabilities are in place to 

respond to an accidental release of a 

regulated substance. As a result of 

improved coordination between facility 

owners and operators and local 

emergency response officials, EPA 

believes that some facilities that are 

currently designated as non-responding 

facilities may become responding 

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2Note for the purposes of this document the term 

TEPC can be substituted for LEPC, as appropriate. 

facilities (i.e., develop an emergency 

response program in accordance with 

§ 68.95). 

Additionally, all facilities with 

Program 2 or 3 processes would be 

required to conduct notification 

exercises annually to ensure that their 

emergency contact information is 

accurate and complete. This provision is 

intended to reduce the impact of 

accidents by ensuring that appropriate 

mechanisms and processes are in place 

to notify local responders when an 

accident occurs. One of the factors that 

can contribute to the severity of 

chemical accidents is a lack of effective 

coordination between a facility and 

local emergency responders. Increasing 

such coordination and establishing 

appropriate emergency response 

procedures can help reduce the effects 

of accidents. 

This action also proposes to require 

that all facilities subject to the 

emergency response program 

requirements of subpart E of the rule (or 

‘‘responding facilities’’) conduct a full 

field exercise at least once every five 

years and one tabletop exercise annually 

in the other years. Responding facilities 

that have an RMP reportable accident 

would also have to conduct a full field 

exercise within a year of the accident. 

The purpose of this provision is to 

reduce the impact of accidents by 

ensuring that emergency response 

personnel understand their roles in the 

event of an incident, that local 

responders are familiar with the hazards 

at a facility, and that the emergency 

response plan is up-to-date. Improved 

coordination with emergency response 

personnel will better prepare responders 

to respond effectively to an incident and 

take steps to notify the community of 

appropriate actions, such as shelter-inplace or evacuation. 

c. Enhanced Availability of Information 

This action proposes various 

enhancements to the public availability 

of chemical hazard information. The 

proposed rule would require all 

facilities to provide certain basic 

information to the public through easily 

accessible means such as a facility Web 

site. If no Web site exists, the owner or 

operator may provide the information at 

public libraries or government offices, 

or use other means appropriate for 

particular locations and facilities. In 

addition, a subset of facilities would be 

required, upon request, to provide the 

Local Emergency Planning Committee 

(LEPC), Tribal Emergency Planning 

Committee (TEPC) 2 or other local 

emergency response agencies with 

summaries related to: Their activities on 

compliance audits (facilities with 

Program 2 and Program 3 processes); 

emergency response exercises (facilities 

with Program 2 and Program 3 

processes); accident history and 

investigation reports (all facilities that 

have had RMP reportable accidents); 

and any ISTs implemented at the 

facility (a subset of Program 3 

processes). The proposed rule would 

also require all facilities to hold a public 

meeting for the local community within 

a specified timeframe after an RMP 

reportable accident. This provision will 

ensure that first responders and 

members of the community have easier 

access to appropriate facility chemical 

hazard information, which can 

significantly improve emergency 

preparedness and their understanding of 

how the facility is addressing potential 

risks. 

In addition to the major provisions 

described previously in this section, this 

action proposes revisions to clarify or 

simplify the RMP submission. These 

changes are intended to reduce the 

compliance burden on facilities and 

increase their understanding of the RMP 

requirements. We are also proposing 

technical corrections to various 

provisions of the rule. 

3. Costs and Benefits 

a. Summary of Potential Costs 

Approximately 12,500 facilities have 

filed current RMPs with EPA and are 

potentially affected by the proposed rule 

changes. These facilities range from 

petroleum refineries and large chemical 

manufacturers to water and wastewater 

treatment systems; chemical and 

petroleum wholesalers and terminals; 

food manufacturers, packing plants, and 

other cold storage facilities with 

ammonia refrigeration systems; 

agricultural chemical distributors; 

midstream gas plants; and a limited 

number of other sources, including 

Federal installations, that use RMPregulated substances. 

Table 1 presents the number of 

facilities according to the latest RMP 

reporting as of February 2015 by 

industrial sector and chemical use. 

TABLE 1—NUMBER OF AFFECTED FACILITIES BY SECTOR

Sector NAICS codes Total facilities Chemical uses 

Administration of environmental quality programs (i.e., governments).924 ......................................... 1,923 Use chlorine and other chemicals for treatment. 

Agricultural chemical distributors/wholesalers .. 111, 112, 115, 42491 ............ 3,667 Store ammonia for sale; some in NAICS 111

and 115 use ammonia as a refrigerant. 

Chemical manufacturing ................................... 325 ......................................... 1,466 Manufacture, process, store. 

Chemical wholesalers ....................................... 4246 ....................................... 333 Store for sale. 

Food and beverage manufacturing .................. 311, 312 ................................. 1,476 Use—mostly ammonia as a refrigerant. 

Oil and gas extraction ...................................... 211 ......................................... 741 Intermediate processing (mostly regulated 

flammable substances and flammable mixtures). 

Other ................................................................. 44, 45, 48, 54, 56, 61, 72 ...... 248 Use chemicals for wastewater treatment, refrigeration, store chemicals for sale. 

Other manufacturing ......................................... 313, 326, 327, 33 .................. 384 Use various chemicals in manufacturing process, waste treatment. 

Other wholesale ................................................ 423, 424 ................................. 302 Use (mostly ammonia as a refrigerant). 

Paper manufacturing ........................................ 322 ......................................... 70 Use various chemicals in pulp and paper 

manufacturing. 

Petroleum and coal products manufacturing ... 324 ......................................... 156 Manufacture, process, store (mostly regulated 

flammable substances and flammable mixtures). 

Petroleum wholesalers ..................................... 4247 ....................................... 276 Store for sale (mostly regulated flammable 

substances and flammable mixtures). 

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3A full description of costs and benefits for this 

proposed rule can be found in the Regulatory 

Impact Analysis for Proposed Revisions to the 

Accidental Release Prevention Requirements: Risk 

Management Programs Under the Clean Air Act, 

Section 112(r)(7). This document is available in the 

docket for this rulemaking (Docket ID Number 

EPA–HQ–OEM–2015–0725). 

TABLE 1—NUMBER OF AFFECTED FACILITIES BY SECTOR—Continued 

Sector NAICS codes Total facilities Chemical uses 

Utilities .............................................................. 221 (except 22131, 22132) ... 343 Use chlorine (mostly for water treatment). 

Warehousing and storage ................................ 493 ......................................... 1,056 Use mostly ammonia as a refrigerant. 

Water/wastewater Treatment Systems ............ 22131, 22132 ......................... 102 Use chlorine and other chemicals. 

Total ........................................................... ................................................ 12,542 

Table 2 presents a summary of the 

annualized costs estimated in the 

regulatory impact analysis.3 In total, 

EPA estimates annualized costs of 

$158.3 million at a 3% discount rate 

and $161.0 million at a 7% discount 

rate. 

TABLE 2—SUMMARY OF ANNUALIZED COSTS

[Millions, 2014 dollars] 

Provision 3 

(percent) 

7 

(percent) 

Third-party Audits .................................................................................................................................................... $5.0 $5.0 

Incident Investigation/Root Cause ........................................................................................................................... 0.8 0.8 

STAA ........................................................................................................................................................................ 34.8 34.8 

Coordination ............................................................................................................................................................. 6.3 6.3 

New Responders * ................................................................................................................................................... 33.0 35.6 

Notification Exercises .............................................................................................................................................. 1.4 1.4 

Facility Exercises ..................................................................................................................................................... 60.7 60.7 

Information Sharing (LEPC) .................................................................................................................................... 11.7 11.7 

Information Sharing (Public) .................................................................................................................................... 4.0 4.0 

Public Meeting ......................................................................................................................................................... 0.4 0.4 

Rule Familiarization ................................................................................................................................................. 0.3 0.3 

Total Cost + ....................................................................................................................................................... 158.3 161.0 

* Reflects costs for some facilities to convert from ‘‘non-responding’’ to ‘‘responding’’ as a result of improved coordination with local emergency 

response officials. 

+ Totals may not sum due to rounding. 

The largest average annual cost of the 

proposed rule is the exercise costs for 

current responders ($60.7 million), 

followed by new responders (facilities 

that will comply with the emergency 

response program requirements of 

§ 68.95 as a result of local coordination 

activities or receiving a written request 

from the facility’s LEPC) ($35.6 million), 

STAA ($34.8 million), and information 

sharing (LEPC) ($11.7 million). The 

remaining provisions impose average 

annual costs under $10 million each, 

including coordination ($6.3 million), 

third-party audits ($5.0 million), 

information sharing (public) ($4.0 

million), notification exercises ($1.4 

million), incident investigation/root 

cause analysis ($0.8 million), public 

meetings ($0.4 million), and rule 

familiarization ($0.3 million). 

b. Summary of Potential Benefits 

EPA anticipates that promulgation 

and implementation of this rule would 

result in a reduction of the frequency 

and magnitude of damages from 

releases. Accidents and releases from 

RMP facilities occur every year, causing 

fires and explosions; damage to 

property; acute and chronic exposures 

of workers and nearby residents to 

hazardous materials, and resulting in 

serious injuries and death. Although we 

are unable to quantify what specific 

reductions may occur as a result of these 

proposed revisions, we are able to 

present data on the total damages that 

currently occur at RMP facilities each 

year. The data presented is based on a 

10-year baseline period, summarizing 

RMP accident impacts and, when 

possible, monetizing them. EPA expects 

that some portion of future damages 

would be prevented through 

implementation of a final rule. Table 3 

presents a summary of the quantified 

damages identified in the analysis. 

TABLE 3—SUMMARY OF QUANTIFIED DAMAGES

[2014 dollars] 

Unit value 10-Year total Average/ 

year 

Average/ 

accident 

On-site 

Fatalities ........................................................................................................... $8,583,113 $497,820,554 $49,782,055 $328,161 

Injuries ............................................................................................................. 50,000 105,150,000 10,515,000 69,314 

Property Damage ............................................................................................. ........................ 2,054,895,236 205,489,524 1,354,578 

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TABLE 3—SUMMARY OF QUANTIFIED DAMAGES—Continued 

[2014 dollars] 

Unit value 10-Year total Average/ 

year 

Average/ 

accident 

On-site Total ............................................................................................. ........................ 2,657,865,790 265,786,579 1,752,053 

Offsite 

Fatalities ........................................................................................................... $8,583,113 $8,583,113 $858,311 $5,658 

Hospitalizations ................................................................................................ 36,000 6,804,000 680,400 4,485 

Medical Treatment ........................................................................................... 1,000 14,807,000 1,480,700 9,761 

Evacuations ..................................................................................................... 181 6,992,327 699,233 4,609 

Sheltering in Place ........................................................................................... 91 40,920,849 4,092,085 26,975 

Property Damage ............................................................................................. ........................ 11,352,105 1,135,211 7,483 

Offsite Total .............................................................................................. ........................ 89,459,394 8,945,939 58,971 

Total ................................................................................................... ........................ 2,747,325,184 274,732,518 1,811,024 

EPA monetized both on-site and 

offsite damages. EPA estimated total 

average annual on-site damages of 

$265.8 million. The largest monetized 

average annual on-site damage was onsite property damage, which resulted in 

average annual damage of 

approximately $205.5 million. The next 

largest impact was on-site fatalities 

($49.8 million) and injuries ($10.5 

million). 

EPA estimated total average annual 

offsite damages of $8.9 million. The 

largest monetized average annual offsite 

damage was from sheltering in place 

($4.1 million), followed by medical 

treatment ($1.5 million), property 

damage ($1.1 million), fatalities ($0.9 

million), evacuations ($0.7 million), and 

hospitalizations ($0.7 million). 

In total, EPA estimated monetized 

damages from RMP facility accidents of 

$275 million per year. However, the 

monetized impacts omit many 

important categories of accident impacts 

including lost productivity, the costs of 

emergency response, transaction costs, 

property value impacts in the 

surrounding community (that overlap 

with other benefit categories), and 

environmental impacts. Also not 

reflected in the 10-year baseline costs 

are the impacts of non-RMP accidents at 

RMP facilities and any potential impacts 

of rare high consequence catastrophes. 

A final omission is related to the 

information provision. Reducing the 

probability of chemical accidents and 

the severity of their impacts, and 

improving information disclosure by 

chemical facilities, as the proposed 

provisions intend, would provide 

benefits to potentially affected members 

of society. 

Table 4 summarizes four broad social 

benefit categories related to accident 

prevention and mitigation including 

prevention of RMP accidents, mitigation 

of RMP accidents, prevention and 

mitigation of non-RMP accidents at 

RMP facilities, and prevention of major 

catastrophes. The table explains each 

and identifies ten associated specific 

benefit categories, ranging from avoided 

fatalities to avoided emergency response 

costs. Table 4 also highlights and 

explains the information disclosure 

benefit category and identifies two 

specific benefits associated with it: 

Improved efficiency of property markets 

and allocation of emergency resources. 

TABLE 4—SUMMARY OF SOCIAL BENEFITS OF PROPOSED RULE PROVISIONS

Broad benefit category Explanation Specific benefit categories 

Accident Prevention ...........................................

Accident Mitigation .............................................

Non-RMP accident prevention and mitigation ....

........................................................................

Avoided Catastrophes ........................................

Prevention of future RMP facility accidents .....

Mitigation of future RMP facility accidents ......

Prevention and mitigation of future non-RMP

accidents at RMP facilities ...........................

Prevention of rare but extremely high consequence events.

• Reduced Fatalities. 

• Reduced Injuries. 

• Reduced Property Damage. 

• Fewer People Sheltered in Place. 

• Fewer Evacuations. 

• Avoided Lost Productivity. 

• Avoided Emergency Response Costs. 

• Avoided Transaction Costs. 

• Avoided Property Value Impacts.* 

• Avoided Environmental Impacts. 

Information Disclosure ........................................ Provision of information to the public and 

LEPCs.

• Improved efficiency of property markets. 

• Improved resource allocation. 

* These impacts partially overlap with several other categories such as reduced health and environmental impacts. 

B. Does this action apply to me? 

This rule applies to those facilities 

(referred to as ‘‘stationary sources’’ 

under the CAA) that are subject to the 

chemical accident prevention 

requirements at 40 CFR part 68. This 

includes stationary sources holding 

more than a threshold quantity (TQ) of 

a regulated substance in a process. Table 

5 below provides industrial sectors and 

the associated NAICS codes for entities 

potentially affected by this action. The 

Agency’s goal is to provide a guide for 

readers to consider regarding entities 

that potentially could be affected by this 

action. However, this action may affect 

other entities not listed in this table. If 

you have questions regarding the 

applicability of this action to a 

particular entity, consult the person(s) 

listed in the introductory section of this 

action under the heading entitled FOR

FURTHER INFORMATION CONTACT. 

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4For descriptions of NAICS codes, see http://

www.census.gov/cgi-bin/sssd/naics/naicsrch. 

5For more information on the Executive Order 

see https://www.whitehouse.gov/the-press-office/

2013/08/01/executive-order-improving-chemicalfacility-safety-and-security. 

6CSB. January 2016. Final Investigation Report, 

West Fertilizer Company Fire and Explosion, West, 

TX, April 17, 2013. REPORT 2013–02–I–TX. http:// 

www.csb.gov/west-fertilizer-explosion-and-fire-/. 

7U.S. Chemical Safety and Hazard Investigation 

Board (CSB). March 2007. Investigation Report: 

Refinery Explosion and Fire, BP, Texas City, Texas, 

March 23, 2005. Report No. 2005–04–I–TX. http:// 

www.csb.gov/assets/1/19/CSBFinalReportBP.pdf. 

8CSB. May 2014. Investigation Report: 

Catastrophic Rupture of Heat Exchanger, Tesoro 

Anacortes Refinery, Anacortes, Washington, April 

2, 2010. Report No. 2010–08–I–WA. http://

www.csb.gov/assets/1/7/Tesoro_Anacortes_2014- 

May-01.pdf. 

9CSB. January 2014. Regulatory Report: Chevron 

Richmond Refinery Pipe Rupture and Fire, Chevron 

Richmond Refinery #4 Crude Unit, Richmond, 

California, August 6, 2012. Report No. 2012–03–I– 

CA. http://www.csb.gov/assets/1/19/CSB_Chevron_

Richmond_Refinery_Regulatory_Report.pdf. 

10CSB. June 27, 2013. Testimony of Rafael 

Moure-Eraso, Ph.D. Chairperson, CSB Before the 

U.S. Senate Committee on Environment and Public 

Works, pg. 8. http://www.csb.gov/assets/1/19/CSB_

Written_Senate_Testimony_6.27.13.pdf. 

TABLE 5—INDUSTRIAL SECTORS AND ASSOCIATED NAICS CODES FOR ENTITIES POTENTIALLY AFFECTED BY PROPOSED

ACTION

Sector NAICS Code 

Administration of Environmental Quality Programs .................................................................... 924. 

Agricultural Chemical Distributors: 

Animal Production and Aquaculture .................................................................................... 112. 

Crop Production ................................................................................................................... 111. 

Farm Supplies Merchant Wholesalers ................................................................................ 42491. 

Support Activities for Agriculture and Forestry ................................................................... 115. 

Beverage Manufacturing ............................................................................................................. 3121. 

Food Manufacturing .................................................................................................................... 311. 

Chemical and Allied Products Merchant Wholesalers ............................................................... 4246. 

Chemical Manufacturing ............................................................................................................. 325. 

Oil and Gas Extraction ............................................................................................................... 211. 

Other 4 ......................................................................................................................................... 313, 326, 327, 33, 44, 45, 48, 54, 56, 61, 72. 

Other Wholesale: 

Merchant Wholesalers, Durable Goods .............................................................................. 423. 

Merchant Wholesalers, Nondurable Goods ........................................................................ 424. 

Paper Manufacturing .................................................................................................................. 322. 

Petroleum and Coal Products Manufacturing ............................................................................ 324. 

Petroleum and Petroleum Products Merchant Wholesalers ...................................................... 4247. 

Utilities ........................................................................................................................................ 221 (except 22131 and 22132 described below). 

Warehousing and Storage .......................................................................................................... 493. 

Water/Wastewater Treatment Systems: 

Sewage Treatment Facilities ............................................................................................... 22132. 

Water Supply and Irrigation Systems .................................................................................. 22131. 

II. Background 

Recent catastrophic chemical facility 

incidents in the United States prompted 

President Obama to issue Executive 

Order 13650, ‘‘Improving Chemical 

Facility Safety and Security,’’ on August 

1, 2013.5 The purpose of the Executive 

Order is to enhance the safety and 

security of chemical facilities and 

reduce risks associated with hazardous 

chemicals to owners and operators, 

workers, and communities. The 

Executive Order establishes the 

Chemical Facility Safety and Security 

Working Group (‘‘Working Group’’), cochaired by the Secretary of Homeland 

Security, the Administrator of EPA, and 

the Secretary of Labor or their 

designated representatives at the 

Assistant Secretary level or higher, and 

composed of senior representatives of 

other Federal departments, agencies, 

and offices. The Executive Order 

requires the Working Group to carry out 

a number of tasks whose overall aim is 

to prevent chemical accidents, such as 

the explosion that occurred at the West 

Fertilizer facility in West, Texas, on 

April 17, 2013.6 In addition to the 

tragedy at the West Fertilizer facility, a 

number of other incidents have 

demonstrated 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 people and 

injured more than 170 people.7 On 

April 2, 2010, an explosion and fire at 

the Tesoro Refinery in Anacortes, 

Washington, killed seven people.8 On 

August 6, 2012, at the Chevron Refinery 

in Richmond, California, a fire involving 

flammable fluids endangered 19 

Chevron employees and created a large 

plume of highly hazardous chemicals 

that traveled across the Richmond, 

California, area.9 Nearly 15,000 

residents sought medical treatment due 

to the release. On June 13, 2013, a fire 

and explosion at Williams Olefins in 

Geismar, Louisiana, killed two people 

and injured many more.10

Section 6 of the Executive Order is 

entitled ‘‘Policy, Regulation, and 

Standards Modernization.’’ This section, 

among other things, requires certain 

Federal agencies to consider possible 

changes to existing chemical safety and 

security regulations. To solicit 

comments and information from the 

public regarding potential changes to 

EPA’s Risk Management Program 

regulations (40 CFR part 68), on July 31, 

2014, EPA published an RFI (79 FR 

44604). Information collected through 

the RFI has informed this proposal. 

Readers are encouraged to review the 

RFI, as this action will not reiterate the 

full discussion of all of its topics. 

EPA received a total of 579 public 

comments on the RFI. Several public 

comments were the result of various 

mass mail campaigns and contained 

numerous copies of letters or petition 

signatures. Approximately 99,710 letters 

and signatures were contained in these 

several comments. Discussion of RFI 

public comments pertaining to topics 

included in this proposal can be found 

below in section IV. Prevention Program 

Requirements, section V. Emergency 

Response Preparedness Requirements 

and section VI. Information Availability 

Requirements. 

EPA seeks comment on the proposed 

amendments. Any suggestions for 

alternative options should include an 

appropriate rationale and supporting 

data for the Agency to be able to 

consider it for a final action. 

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11 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. 

12 Documents and information related to 

development of the list rule can be found in the 

EPA docket for the rulemaking, docket number A– 

91–74. 

13 Documents and information related to 

development of the RMP rule can be found in EPA 

docket number A–91–73. 

14 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. 

15NAICS 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). 16See OSHA PSM Retail Exemption Policy 

https://www.osha.gov/pls/oshaweb/owadisp.show_

Continued 

A. Overview of EPA’s Risk Management 

Program Regulations 

Both EPA’s 40 CFR part 68 RMP 

regulation 11 and Occupational Safety 

and Health Administration’s (OSHA) 29 

CFR 1910.119 Process Safety 

Management (PSM) standard were 

authorized in the Clean Air Act 

Amendments of 1990 (1990 CAAA). 

This was 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 added accidental 

release provisions under section 112(r). 

The statute required EPA to develop a 

list of at least 100 regulated substances 

for accident prevention and related 

thresholds (CAA section 112(r)(3) 

through (5)), and authorized EPA to 

issue accident prevention regulations 

(CAA section 112(r)(7)(A)). The statute 

also required EPA to develop 

‘‘reasonable regulations’’ requiring 

facilities with over a 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’’) 12 and published the RMP 

final regulation, containing risk 

management requirements for covered 

sources, in 1996 (61 FR 31668, June 20, 

1996) (the ‘‘RMP rule’’).13 14 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 technologies, procedures, and 

management practices. In addition to 

requiring implementation of 

management program elements, the 

RMP rule requires covered sources to 

submit (to EPA) a document 

summarizing the source’s risk 

management program—called a Risk 

Management Plan (or RMP). 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). EPA also 

deleted the category of Department of 

Transportation Division 1.1 explosives, 

and exempted flammable substances in 

gasoline used as fuel and in naturally 

occurring hydrocarbon mixtures prior to 

initial processing (63 FR 640, January 6, 

1998). 

EPA subsequently modified the RMP 

rule five times. First, in 1999, EPA 

revised the 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 accidents 

and emergency contact changes; and 

made other minor revisions to RMP 

facility contact information (69 FR 

18819, April 8, 2004). 

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 offsite 

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 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. 

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).15 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 (PSI), PHA, operating 

procedures, training, mechanical 

integrity, management of change (MOC), 

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. 

On July 22, 2015, OSHA issued a 

revised interpretation to its PSM retail 

exemption at 29 CFR 119(a)(2)(i).16 This 

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document?p_table=INTERPRETATIONS&p_

id=29528. 

17CFATS. 79 FR 48693, August 18, 2014. http:// 

www.regulations.gov/#!documentDetail;D=DHS2014-0016-0001. 

interpretation now only allows facilities 

in NAICS codes 44 and 45, the retail 

trade, to be eligible for the retail 

exemption. As a result of this change, 

many agricultural chemical distributors 

who sell bulk anhydrous ammonia and 

some chemical warehouses, are no 

longer exempt from the PSM standard. 

This makes them subject to RMP 

Program 3 requirements, whereas before 

most were covered under Program 2. 

EPA believes the RMP rule has been 

effective in preventing and mitigating 

chemical accidents in the United States 

and protecting human health and the 

environment from chemical hazards. 

However, major incidents, such as the 

West, Texas, explosion, highlight the 

importance of reviewing and evaluating 

current practices and regulatory 

requirements, and applying lessons 

learned from other incident 

investigations to advance process safety 

where needed. 

III. Additional Information 

A. What actions are not addressed in 

this rule? 

Under section 6 of Executive Order 

13650, ‘‘Improving Chemical Facility 

Safety and Security,’’ the Executive 

Order Working Group (chaired by EPA, 

OSHA, and Department of Homeland 

Security [DHS]) was tasked with 

enhancing safety at chemical facilities 

by identifying key improvements to 

existing risk management practices 

through guidance, policies, procedures, 

outreach, and regulations. As part of 

this task, the Working Group solicited 

public comment on potential options for 

improving chemical facility safety. 

Additionally, EPA gathered information 

from the public regarding potential 

changes to EPA’s Risk Management 

Program regulations (40 CFR part 68) via 

a RFI (79 FR 44604, July 31, 2014). 

Using the results from these efforts as 

well as information collected through 

implementing the Risk Management 

Program, EPA is proposing revisions to 

the RMP rule to advance chemical 

facility safety. However, this proposed 

rule does not address all of the topics 

included in the RFI. For example, EPA 

is not proposing any revisions to the list 

of regulated substances and is therefore 

not addressing ammonium nitrate (AN) 

in this proposed rule. EPA may propose 

listing additional hazardous substances 

in a separate action. 

Currently AN is not listed as a 

regulated substance under the RMP rule 

or the OSHA PSM standard. Required 

safe handling and storage practices for 

AN are covered under OSHA’s 

Explosives and Blasting Agents 

Standard (29 CFR 1910.109) and 

includes coverage of fertilizer grade AN 

in section 1910.109(i). Section 

1910.109(k)(2) requires that 

manufacturing of explosives must meet 

requirements under OSHA’s PSM 

standard (29 CFR 1910.119); this would 

include any explosive manufacturing 

process involving AN. OSHA is 

considering whether AN should be 

added to the § 1910.119 Appendix A list 

of chemicals subject to the PSM 

standard, which could expand the 

standard’s applicability to include 

processes at fertilizer mixers, 

distributors and wholesalers who store 

and handle AN. OSHA is also 

considering whether to make changes to 

the AN storage and handling 

requirements in their Explosives and 

Blasting Agents standard, which has 

requirements for AN stored with and 

without, explosives and blasting agents. 

DHS is considering potential 

modifications of its Chemical Facility 

Anti-Terrorism Standards (CFATS) 

regulation, including reviewing the 

applicability and/or modification of 

screening TQs for chemicals of interest 

in Appendix A in 6 CFR part 27, which 

include AN (79 FR 48693, August 18, 

2014).17 We plan to coordinate any 

potential change to the list of substances 

40 CFR part 68 with the actions of these 

other agencies. Therefore, EPA is not 

presently proposing that AN be added to 

the list of substances subject to the RMP 

rule, but the Agency may elect to 

propose such a listing at a later date. 

B. What is the agency’s authority for 

taking this action? 

The statutory authority for this action 

is provided by section 112(r) of the CAA 

as amended (42 U.S.C. 7412(r)). Each of 

the portions of the Risk Management 

Program rule we propose to modify in 

this document are based on EPA’s 

rulemaking authority under section 

112(r)(7) of the CAA (42 U.S.C. 

7412(r)(7)). A more detailed discussion 

of the underlying statutory authority for 

the current requirements of the Risk 

Management Program rule appears in 

the action that proposed the Risk 

Management Program (58 FR 54190, 

54191–93 [Oct. 20, 1993]). The 

prevention program provisions 

discussed below (auditing, incident 

investigation, and safer technologies 

alternatives analysis) address the 

‘‘prevention and detection of accidental 

releases.’’ The emergency coordination 

and exercises provisions in this rule 

modify existing provisions that provide 

for ‘‘response to such release by the 

owners or operators of the sources of 

such releases.’’ (CAA 112(r)(7)(B)(i)). 

This paragraph calls for EPA’s 

regulations to recognize differences in 

‘‘size, operations, processes, class and 

categories of sources.’’ In this document, 

we propose to maintain distinctions in 

prevention program levels and in 

response actions authorized by this 

provision. The information disclosure 

provisions discussed in this document 

generally assist in the development of 

‘‘procedures and measures for 

emergency response after an accidental 

release of a regulated substance in order 

to protect human health and the 

environment.’’ This information 

disclosure ensures the emergency plans 

for impacts on the community are based 

on more relevant and accurate 

information than would otherwise be 

available and ensures that the public 

can become an informed participant in 

such emergency planning. 

IV. Prevention Program Requirements 

A. Incident Investigation and Accident 

History Requirements 

1. Summary of Existing Investigation 

Requirements 

Currently, owners or operators of 

facilities with processes subject to 

Program 2 and Program 3 are required 

to investigate each incident which 

resulted in, or could reasonably have 

resulted in a catastrophic release 

(§§ 68.60 and 68.81). The RMP rule 

defines a catastrophic release in § 68.3 

as a major uncontrolled emission, fire, 

or explosion, involving one or more 

regulated substances that presents an 

imminent and substantial endangerment 

to public health and the environment. 

Imminent and substantial endangerment 

includes offsite consequences such as 

death, injury, or adverse effects to 

human health or the environment, or 

the need for the public to shelter-inplace or be evacuated to avoid such 

consequences. 

Facility owners or operators are 

required to determine the factors that 

contributed to the incident and develop 

recommendations resulting from the 

investigation. The PHA (§ 68.67 (c)(2)) is 

required to address previous incidents 

which had a likely potential for 

catastrophic consequences. In the 

preamble to the existing final rule, EPA 

explained that while most catastrophic 

releases affect workers first, there are 

incidents where workers are protected 

but the public and the environment may 

be threatened (e.g., emergency relief 

devices are designed to vent hazardous 

atmospheres away from the workplace 

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18The OSHA definition of catastrophic release is 

similar to the current definition of the term in the 

RMP rule. However, OSHA’s definition pertains to 

incidents that present serious danger to employees 

in the workplace. (see 29 CFR 1910.119(b) for the 

full definition) 

19EPA. May 24, 1996. Risk Management Plan 

Rule, Summary and Response to Comments. 

Volume 1, pp. 3–11 and 17–4. Docket No. A–91– 

73, Document No. IX–C–1. 

and into the air where they may be 

carried downwind). The PHA should 

recognize and address the potential 

offsite impact associated with safety 

measures that protect workers (e.g., by 

installing a control device on an 

emergency vent). The RMP rule requires 

that facility owners and operators 

consider such possibilities and integrate 

the protection of workers, the public, 

and the environment into one program. 

Thus, RMP facility owners and 

operators must investigate each 

significant incident which resulted in, 

or could reasonably have resulted in a 

catastrophic release with on- or offsite 

consequences. 

2. Catastrophic Release Definition 

In the 1996 final rule (61 FR 31687, 

June 20, 1996), EPA developed a 

definition of catastrophic release similar 

to the definition OSHA used in the PSM 

standard, with modifications to cover 

events that presented imminent and 

substantial endangerment to public 

health and the environment.18 This 

ensured that owners or operators of 

sources covered by both OSHA and EPA 

requirements investigated not only 

accidents that threatened workers, but 

also those that threatened the public 

and the environment. Because EPA 

modified OSHA’s definition of 

catastrophic releases so that offsite 

impacts were covered, there has been 

confusion among some owners and 

operators of facilities subject to the RMP 

rule; some believe they should not have 

to investigate accidents involving only 

workers for the purposes of fulfilling 

requirements under the RMP rule. EPA 

recognized that the PHA process must 

address potential offsite impacts 

associated with safety measures that 

also protect workers, and that the final 

rule would ensure that all sources 

routinely consider such possibilities 

and integrate protection of workers, the 

public and the environment into one 

program. In similar fashion, EPA 

believes that incident investigation was 

not intended to be and should not be 

limited to only those incidents with 

offsite impacts. 

Learning from accident causes 

identified from incident investigations 

involving only workers can also lead to 

preventing incidents with further 

impacts to the surrounding community 

and therefore, findings and 

recommendations from all incidents, 

regardless of who is impacted, should 

be addressed. In the preamble to the 

1996 final RMP rule (61 FR 31711, June 

20, 1996), EPA emphasized that ‘‘any 

incident with the potential for 

catastrophic consequences in the 

workplace will also have had the 

potential for catastrophic consequences 

offsite.’’ Thus, facility owners or 

operators should be investigating 

incidents even if they only impacted 

workers, as these could have potentially 

been an accident impacting the public 

or the environment. 

EPA has not defined or clarified the 

term ‘‘imminent and substantial 

endangerment’’ but did make revisions 

in the 1996 final RMP rule in order to 

better define accidents to be reported 

under the RMP accident history 

requirements. To make the requirement 

less vague and less subject to a wide 

variety of interpretations, the final rule 

required that accident history shall 

include all accidental releases from 

covered processes ‘‘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.’’ EPA also 

provided a definition for ‘‘offsite’’ and 

‘‘injury.’’ 

EPA is proposing to modify the 

definition of catastrophic release to be 

identical to the description of accidental 

releases required to be reported under 

the accident history reporting 

requirements in § 68.42. The proposed 

definition, in § 68.3, replaces ‘‘that 

presents imminent and substantial 

endangerment to public health and the 

environment’’ with impacts 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. This better defines the impacts 

for incidents requiring investigations 

that caused or could have caused these 

impacts and clarifies EPA’s intent, 

rather than leaving it open for 

interpretation. This is consistent with 

the accident impacts that must be 

reported under the 5-year accident 

history, which EPA considered relevant 

to include in 1996 ‘‘because it may 

reflect safety practices at the source’’ 

and because ‘‘accidental releases from 

covered processes which resulted in 

deaths, injuries, or significant property 

damage on-site, involve failures of 

sufficient magnitude that they have the 

potential to affect offsite areas.’’ 19

As required by section 609(b) of the 

RFA, the EPA convened a Small 

Business Advocacy Review (SBAR) 

Panel to obtain advice and 

recommendations from small entity 

representatives (SERs) that would 

potentially be subject to the rule’s 

requirements. As part of the SBAR Panel 

process, some SERs indicated that EPA’s 

proposed modification of the definition 

of catastrophic release would in effect 

expand that definition, and thereby 

require investigation of incidents that 

did not fall under the previous 

definition. SERs noted that EPA’s 

current definition includes releases that 

present an imminent and substantial 

endangerment to public health and the 

environment, and that such releases 

represent only ‘‘major’’ accidents, and 

not smaller releases that endanger only 

workers or on-site property. As noted 

above, EPA’s view is that accidents with 

only on-site impacts warrant 

investigation because they have the 

potential to affect offsite areas. 

Additionally, since such accidents 

already clearly fall within the accident 

history reporting criteria, regulated 

sources would already need to 

investigate them, even without the 

incident investigation provisions, in 

order to determine the accident history 

information required under § 68.42, 

which includes data (e.g., initiating 

event and contributing factors) that 

could only be determined through an 

investigation. Therefore, EPA believes 

that redefining the term catastrophic 

release to include the categories of 

accidents that require reporting under 

the accident history provisions clarifies, 

rather than expands, that definition. 

Nevertheless, EPA seeks comment on 

the proposed revision to the 

catastrophic release definition, whether 

it expands the scope of the current 

definition instead of clarifying it, and 

whether the definition should be 

limited to loss of life; serious injury; 

significant damage; or loss of offsite 

property. 

3. Root Causes 

The cause of an incident is often the 

result of a series of other problems that 

need to be addressed to prevent 

recurrences. For example, an operator’s 

mistake may be the result of poor 

training, inappropriate procedures, or 

poor design of control systems; and 

equipment failure may result from 

improper maintenance, misuse of 

equipment (e.g., operating at too high a 

temperature), or use of incompatible 

materials. These types of causes are 

commonly referred to as causal factors 

(also known as contributing causes, 

contributory causes, contributing 

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20CCPS. March 2003. Guidelines for Investigating 

Chemical Process Incidents, 2nd ed., pp.3, 62, 181, 

434. CCPS, American Institute of Chemical 

Engineers, New York, NY. John Wiley and Sons. 

21EPA recognizes that some root causes could be 

events that management systems could not have 

prevented or protected against. The analytic 

techniques used to identify root causes account for 

such events. 

22EPA. November 1998. EPA Chemical Accident 

Investigation Report, Tosco Avon Refinery, 

Martinez, CA. EPA 550–R–98–009. http://

nepis.epa.gov/Exe/ZyPDF.cgi/

10003A2E.PDF?Dockey=10003A2E.PDF. 

23EPA, Office of Solid Waste and Emergency 

Response. August 1999. How to Prevent Runaway 

Reactions, Case Study: Phenol-Formaldehyde 

Reaction Hazards. EPA 550–F99–004. http://

archive.epa.gov/emergencies/docs/chem/web/pdf/

gpcasstd.pdf. 

24Belke, James C (EPA). 1997. Recurring Causes 

of Recent Chemical Accidents. http://

psc.che.tamu.edu/wp-content/uploads/recurringcauses-of-recent-chemical-accidents.pdf. 

25EPA and OSHA. June 1998. EPA/OSHA Joint 

Chemical Accident Investigation Report, Shell 

Chemical Company, Deer Park, TX. EPA 550–R–98– 

005. http://nepis.epa.gov/Exe/ZyPDF.cgi/

100039YA.PDF?Dockey=100039YA.PDF. 

factors, or critical factors). The Center 

for Chemical Process Safety (CCPS) 

defines a causal factor as a major 

unplanned, unintended contributor to 

the incident (a negative occurrence or 

undesirable condition), that if 

eliminated would have either prevented 

the occurrence, or reduced its severity 

or frequency.20 These are factors that 

facilitate the occurrence of an incident 

such as physical conditions and 

management practices. Causal or 

contributing factors usually have 

underlying reasons why they occurred, 

which are known as root causes. 

Most root causes are associated with 

weaknesses, defects or breakdowns in 

management systems.21 Identifying root 

causes provides the mechanism for 

understanding the interaction and 

impact of system management failures, 

so that the root causes can be addressed 

and the maximum benefit is obtained 

from an incident investigation. CCPS 

defines a root cause as a fundamental, 

underlying, system-related reason why 

an incident occurred that identifies a 

correctable failure(s) in management 

systems. There is typically more than 

one root cause for a process safety 

incident. Correcting only the immediate 

cause of an incident (e.g., operator error) 

may prevent the identical incident from 

occurring at the same location, but may 

not prevent similar incidents. Instead, 

identifying and addressing incident 

contributing factors and their root 

causes helps eliminate or substantially 

reduce the risk of reoccurrence of the 

incident and other similar incidents. 

The current Risk Management Program 

incident investigation requirements 

under §§ 68.60 and 68.81 do not 

explicitly require root causes to be 

determined and reported, rather they 

only require ‘‘the factors that 

contributed to the incident.’’ Facility 

owners and operators that conduct 

incident investigations that only 

identify ‘‘factors that contributed to the 

incident’’ may miss identifying the 

underlying, system-related reason why 

an incident occurred (which would be 

revealed in a root cause analysis). Thus 

EPA is proposing to require a root cause 

analysis to ensure that facilities 

determine the underlying causes of an 

incident to reduce or eliminate the 

potential for additional accidents 

resulting from deficiencies of the same 

process safety management system. 

4. Lack of Root Cause Analysis for Prior 

Incidents 

Below are examples of incident 

investigations that identified similar 

prior incidents within the same facility 

or company where root causes for the 

prior incidents were not analyzed and 

determined. This resulted in missed 

opportunities to address the proper 

causes of the incidents, share the 

lessons learned and prevent further 

similar incidents. 

On January 21, 1997, at a Tosco 

refinery, effluent piping on a 

hydrocracker reactor ruptured, causing 

an explosion and fire, killing one 

operator and injuring 46 other Tosco 

and contractor personnel. The accident 

was caused by an uncontrolled 

temperature excursion in the reactor 

resulting in an excessively high 

temperature that caused the pipe to 

rupture.22 Operators did not follow 

prescribed emergency depressurizing 

procedures for extremely high 

temperature occurrences and attempted 

to control the temperature by other 

means. Investigations of prior incidents 

involving unsafe temperature 

excursions were inadequate and not all 

these excursions were documented. 

Failure to investigate these ‘‘nearmisses’’ resulted in a missed 

opportunity to determine why operators 

were not following prescribed 

emergency depressurizing procedures 

and to develop solutions to address the 

cause. After the 1997 accident, the 

company designed the depressurizing 

system to activate automatically when 

the reactor temperature exceeded safe 

operating limits. 

On September 10, 1997, an explosion 

occurred in a resins production unit at 

Georgia-Pacific Resins, Inc. in 

Columbus, Ohio, causing the death of 

one worker, four injuries, extensive 

damage to the plant, and sheltering in 

place for nearby residents, a vocational 

school and businesses.23 Three 

firefighters received first-degree burns. 

An accident investigation determined 

that raw materials and a catalyst were 

charged too quickly to a reactor, causing 

a runaway reaction generating too much 

heat and pressure, which caused the 

reactor to explode. Prior to the accident, 

the facility had recently experienced a 

near miss involving similar 

circumstances.24 An operator added 

chemicals to a batch resin process at too 

high a rate. Other alert operators noted 

the procedural deviation and were able 

to prevent an accident. The company 

investigated the accident and 

disciplined the operator, but took no 

other actions. 

An accident on June 22, 1997, at a 

Shell olefins plant involved a release of 

flammable gases from a structural 

failure and drive shaft blowout from a 

36 inch diameter failed check (nonreturn) valve, resulting in a massive 

explosion and fire causing extensive 

damage to the facility, damage to nearby 

residential property, several worker 

injuries, and sheltering in place for 

nearby residents. An EPA/OSHA 

accident investigation determined that 

these check valves were not 

appropriately designed and 

manufactured for the heavy-duty service 

to which they were subjected in the 

olefins production unit.25 Similar 

problems with the check valves had 

occurred previously at the facility and at 

other facilities owned by the company, 

but the occurrences were not adequately 

investigated and did not identify all the 

factors involved in the valves’ failure. 

The other valve failure occurrences did 

not result in as severe consequences as 

the 1997 event and were treated as 

maintenance failures, not incidents or 

accidents. Thus, the lessons that could 

have been learned from these prior 

failures were not adequately identified, 

shared, and implemented. 

On April 8, 1998, at a Morton 

International chemical plant, a runaway 

reaction in a process kettle caused an 

overpressure of the vessel, blew off the 

top hatch, and spewed a stream of gas 

and liquid through the roof of the 

building and down onto the 

surrounding community. Residents in a 

100 city-block area were confined to 

their homes. Nine workers were injured, 

two with severe burns. The U.S. 

Chemical Safety Board (CSB) 

determined that Morton could have 

corrected safety problems in the process 

if they had conducted investigations 

into any of the eight prior instances 

when process temperatures exceeded 

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26CSB. 2000. Investigation Digest: Morton 

International Explosion, Paterson, NJ, April 8, 1998. 

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

27CSB. March 2007. Investigation Report: VCM 

Explosion, Formosa Plastics Corp., Illiopolis, 

Illinois, April 23, 2004. Report No. 2004–10–I–IL. 

http://www.csb.gov/assets/1/19/Formosa_IL_

Report.pdf. 

28CSB. March 2007. Investigation Report: 

Refinery Explosion and Fire, BP, Texas City, Texas, 

March 23, 2005. Report No. 2005–04–I–TX. http:// 

www.csb.gov/assets/1/19/CSBFinalReportBP.pdf. 

29Health and Safety Executive (United Kingdom) 

and Scottish Environment Protection Agency. 

August 18, 2003. Major Incident Investigation 

Report—BP Grangemouth Scotland, 29th June–10th 

May, 2000. A Public Report Prepared on Behalf of 

the Competent Authority. http://www.hse.gov.uk/

comah/bpgrange/images/bprgrangemouth.pdf. 

30EPA. May 29, 2015. USA vs. Millard 

Refrigerated Services, LLC, U.S. District Court for 

the Southern District of Alabama, Civil Action No. 

15–186. pp. 9–11, and 19–20. Case 1:15–cv–00186– 

WS–M Document 5. http://www2.epa.gov/sites/ 

production/files/2015-06/documents/millardcp.pdf. See also http://www2.epa.gov/enforcement/ 

millard-refrigerated-services-llc-clean-air-act-caasettlement. 

31ACC. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0694 on Risk Management 

Program RFI, p. 43 of 189. 

32TPA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0617 on Risk Management 

Program RFI, p. 8. 

33CGA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0633 on Risk Management 

Program RFI, p. 6 

34CCPS 2003. Center for Chemical Process Safety, 

Guidelines for Investigating Chemical Process 

Incidents, 2nd Edition, NY: AIChE. 

the normal range.26 Process and design 

changes resulting from such 

investigations could have prevented the 

1998 explosion. 

On April 23, 2004, an explosion and 

fire at the Formosa Plastics Corporation 

(FPC USA), Illiopolis, Illinois, 

(Formosa-IL) polyvinyl chloride (PVC) 

manufacturing facility killed five and 

severely injured three workers. The 

explosion and fire destroyed most of the 

reactor facility and adjacent warehouse 

and ignited PVC resins stored in the 

warehouse. Smoke from the smoldering 

fire drifted over the local community, 

and as a precaution, local authorities 

ordered an evacuation of the community 

for two days. CSB determined that this 

incident occurred when an operator 

drained a full, heated, and pressurized 

PVC reactor and bypassed a pressure 

interlock.27 The safeguards to prevent 

bypassing the interlock were 

insufficient for the high risk associated 

with this activity. Two similar incidents 

at FPC USA PVC manufacturing 

facilities highlighted problems with 

safeguards designed to prevent 

inadvertent discharge of an operating 

reactor. The FPC USA Environmental 

Health & Safety group had received 

reports of both incidents, but did not 

recognize a key similarity: Operators 

could mistakenly go to the wrong 

reactor and bypass safeguards to open a 

reactor bottom valve. 

On March 23, 2005, at the BP Texas 

City Refinery in Texas City, Texas, 

explosions and fires killed 15 people 

and injured another 180, required 

shelter-in-place for 43,000 people, 

damaged nearby houses, and resulted in 

financial losses exceeding $1.5 billion. 

The incident occurred during the 

startup of an isomerization (ISOM) unit 

when a raffinate splitter tower was 

overfilled and pressure relief devices 

opened, resulting in a flammable liquid 

geyser from a blowdown stack that was 

not equipped with a flare. The release 

of flammables led to an explosion and 

fire. All of the fatalities occurred in or 

near office trailers located close to the 

blowdown drum. A CSB investigation 

found that in the years prior to the 

incident, eight serious releases of 

flammable material from the ISOM 

blowdown stack had occurred, and most 

ISOM startups experienced high liquid 

levels in the splitter tower.28 The 

investigation identified root causes of 

the accident involving senior leadership 

failures including: 

• Ineffective safety culture leadership 

and oversight; 

• ineffective evaluation of safety 

implications or organization, personnel, 

and policy changes; and 

• inadequate resources to prevent 

major accidents. 

Root causes identified involving plant 

management failures included: 

• Lack of an effective reporting and 

learning culture (incidents were often 

ineffectively investigated); 

• use of outdated plant policies and 

procedures; 

• poor design of the ISOM unit; 

• inadequate supervision of 

operators; 

• inadequate training of operators; 

and 

• ineffective consideration of human 

factors regarding training, staffing, and 

work schedules for operators. 

The ineffective investigation of 

previous incidents resulted in a failure 

to identify, or act upon, lessons from 

incidents and near-misses. This 

includes a failure to incorporate 

relevant safety lessons from a British 

government investigation 29 of incidents 

at BP’s Grangemouth, Scotland, refinery, 

which were relevant to the Texas City 

refinery. 

On August 23, 2010, the Millard 

Refrigerated Service warehouse in 

Theodore, Alabama, had a release of 

approximately 32,000 pounds of 

anhydrous ammonia from a cracked 

pipe, when refrigeration equipment 

malfunctioned. The ammonia travelled 

directly over a shipyard in Mobile, 

Alabama, where more than 800 people 

were working, causing 152 people to be 

treated at hospitals, four of whom were 

admitted into intensive care units. An 

EPA investigation of the incident 

revealed that Millard failed to 

adequately address a well-known risk 

for ammonia production systems called 

hydraulic shock, which can cause 

catastrophic equipment failures.30 EPA 

also discovered that Millard had two 

prior smaller ammonia releases in April 

2007 and January 2010 caused by 

hydraulic shock. Company 

investigations of those incidents failed 

to identify and correct this problem, 

which could have prevented the 

catastrophic release that occurred in 

August 2010. 

5. Current Use of Root Cause Analysis 

Root cause analysis of accidents is an 

accepted safe management practice used 

by many industries. The American 

Chemistry Council (ACC) noted that 

root cause analysis is conducted 

routinely under a number of voluntary 

programs, including Responsible Care.31

The Texas Pipeline Association (TPA) 

stated that a requirement to perform a 

root cause analysis was not needed 

because it is a common industry 

practice.32 However, the Compressed 

Gas Association (CGA) stated that they 

supported modifying current regulations 

to include a requirement that root cause 

analyses be conducted for incidents but 

not for near misses or process upsets 

because defining a ‘‘near miss’’ or 

‘‘process upset’’ is extremely difficult 

and will likely vary by industry, 

process, locations and the like.33 EPA 

addresses the difficulty of defining the 

term ‘‘near miss’’, in section IV.A.7. 

Near Misses. 

ACC also notes that there are a 

number of recognized industry 

resources to aid incident investigations 

of root causes. For example, CCPS offers 

several resources, including the 

‘‘Guidelines for Investigating Chemical 

Process Incidents,’’ 2nd edition, which 

provides valuable, practical reference 

tools, and focuses on process-related 

incidents with real or potential 

catastrophic consequences.34 ACC 

further notes that there are a number of 

companies that provide excellent root 

cause failure analysis training. 

California’s Contra Costa County 

Health Services (CCHS) and the city of 

Richmond, California, each have 

incident investigation regulations in 

their Industrial Safety Ordinances (ISO) 

similar to those in § 68.81 and, in 

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35Contra Costa County Board of Supervisors. 

2006. California’s Contra Costa County ISO, pp. 5, 

12–13, 17–19. http://cchealth.org/hazmat/pdf/iso/

Chapter-450-8-RISK-MANAGEMENT.pdf. 

36A major chemical accident is defined in the 

ISO as one meeting a level 2 or 3 incident 

classification as determined by the county or one 

resulting in: One or more fatalities; at least three 

persons hospitalized for at 24 hours; on- and/or 

offsite property damage (including clean-up and 

restoration activities) initially estimated at $500,000 

or more; or a vapor cloud of flammables and/or 

combustibles that is more than 5,000 pounds. 

37New Jersey Department of Environmental 

Protection (NJDEP) TCPA. March 29, 2012. NJDEP. 

Title 7, Chapter 31 TCPA Program Consolidated 

Rule Document, p. 62. http://www.state.nj.us/dep/ 

rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf. 

38CCPS. March 2003. Guidelines for Investigating 

Chemical Process Incidents, 2nd ed. 

39Chemical Facility Safety and Security Working 

Group. May 2014. Executive Order 13650 Report to 

the President—Actions to Improve Chemical 

Facility Safety and Security—A Shared 

Commitment, p. 47. https://www.osha.gov/

chemicalexecutiveorder/final_chemical_eo_status_

report.pdf. 

40CCHS. October 28, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0546 on Risk Management 

Program RFI, p. 12. 

41 Independent Petroleum Association of America 

(IPAA) AXPC. October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0584 on Risk 

Management Program RFI, p. 33. 

addition, require a root cause analysis 

for each major chemical accident.35 36

New Jersey’s Toxic Catastrophe 

Prevention Act (TCPA) requires 

investigation of all extraordinarily 

hazardous substance accidents or 

potential catastrophic events. The TCPA 

requirements have the same incident 

investigation requirements found in 

§ 68.81, but the TCPA investigation 

report requires additional information 

beyond the requirements in § 68.81.37

The TCPA investigation report must 

include: 

• Time and location of the chemical 

accident or potential catastrophic event; 

• A description of the chemical accident or 

potential catastrophic event in chronological 

order, providing all the relevant facts; 

• The identity, amount, and duration of 

the chemical release if these facts can be 

reasonably determined based on the 

information obtained through the 

investigation; 

• The consequences, if any, of the 

chemical accident or potential catastrophic 

event, including the number of evacuees, 

injured, and fatalities, and the impact on the 

community; 

• The factors that contributed to the 

chemical accident or potential catastrophic 

event that includes an identification of basic 

and contributory causes, either direct or 

indirect; and 

• The names and position titles of the 

investigators. 

Once the incident scenario is 

understood and contributory causes 

identified, this information may be used 

to determine the incident’s root causes 

which are the underlying systemic 

reasons related to a failure in a 

management system. 

EPA believes that providing the 

following information is vital for 

understanding the nature of the incident 

and should be included in the incident 

investigation report: 

• The chronological order of details of the 

incidents, 

• the chemical identity, 

• amount and duration of the release, 

• the impacts of the release, and 

• basic and contributory causes, either 

direct or indirect. 

Some facility owners or operators may 

already include this information in 

incident investigation reports prepared 

to comply with the RMP rule; however, 

EPA is proposing that §§ 68.60 and 

68.81 be revised to require this 

information to ensure clarity and 

consistency among reports. 

To better address causes of incidents 

and further reduce the occurrence of 

catastrophic releases, EPA is proposing 

to require that for all Program 2 and 

Program 3 process incidents that 

resulted in, or could reasonably have 

resulted in, a catastrophic release, the 

owner or operator determine and 

identify the factors that contributed to 

the incident, including immediate and 

contributory causes, either direct or 

indirect, and root causes. EPA is 

proposing to define ‘‘root cause’’ (see 

§ 68.3 for the proposed definition). 

Root causes shall be determined by 

conducting a root cause analysis for 

each incident using a recognized 

method or approach. CCPS’ ‘‘Guidelines 

for Investigating Chemical Process 

Incidents’’ discusses incident 

investigation approaches and 

techniques and root cause analysis 

methods.38 OSHA plans to develop a 

fact sheet on existing resources that 

explain how to conduct root cause 

analyses so the regulated community 

can better understand the causes of 

incidents and can increase its capability 

to effectively prevent future 

occurrences.39

In order that lessons learned from 

incident investigations be applied, EPA 

is proposing to modify the hazard 

review requirement in § 68.50(a)(2) and 

the PHA requirement in § 68.67(c)(2) to 

require the owner or operator to address 

findings from all incident investigations 

required under §§ 68.60 and 68.81, 

respectively. EPA is also proposing to 

require that for incident investigations 

conducted by Program 2 sources, an 

incident investigation team be 

established and consist of at least one 

person knowledgeable in the process 

involved and other persons with 

appropriate knowledge and experience 

to thoroughly investigate and analyze 

the incident. This requirement is 

already part of Program 3 incident 

investigation requirements, and is a 

necessary component for investigations 

that would include analysis of root 

causes. 

EPA seeks comment on the proposed 

amendments of the incident 

investigation requirements to require 

root cause investigations for each 

incident which resulted in, or could 

reasonably have resulted in, a 

catastrophic release and on the 

proposed definition for root cause. EPA 

seeks comment on whether a root cause 

analysis is appropriate for every RMP 

reportable accident and near miss. 

Should EPA eliminate the root cause 

analysis, or revise to limit or increase 

the scope or applicability of the root 

cause analysis requirement? If so, how 

should EPA revise the scope or 

applicability of this proposed 

requirement? EPA also seeks comment 

on proposed amendments to require 

consideration of incident investigation 

findings, in the hazard review (§ 68.50) 

and PHA (§ 68.67) requirements. 

Finally, EPA seeks comment on the 

proposed additional requirement in 

§ 68.60 to require personnel with 

appropriate knowledge of the facility 

process and knowledge and experience 

in incident investigation techniques to 

participate on an incident investigation 

team. 

6. Decommissioned Processes 

EPA has encountered some cases 

where a facility chose not to conduct an 

incident investigation because the 

owner or operator elected to 

decommission the process involved, or 

because the process was destroyed in 

the incident. While an investigation 

would have no impact on a 

decommissioned or destroyed process, 

other similar processes or operations at 

the facility, or at similar facilities, could 

potentially benefit from its findings. 

CCHS and two industry associations 

commented that there are lessons that 

can be learned from requiring 

investigations to be performed, even in 

cases where the owner or operator elects 

to decommission the process involved 

or where the process is destroyed in the 

incident.40 41 Therefore, EPA is 

proposing to revise §§ 68.60 and 68.81 

to clarify that incident investigations are 

required even if the process involving 

the regulated substance is destroyed or 

decommissioned following or as the 

result of an incident. EPA is also 

proposing to revise § 68.190, which 

addresses updates to the RMP, to 

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42SOCMA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0560 on Risk Management 

Program RFI, p. 9. 

43API. October 29, 2014. Comment No. EPA–HQ– 

OEM–2014–0328–0624 on Risk Management 

Program RFI, p. 32. 

44 GPA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0626 on Risk Management 

Program RFI, p. 12. 

45NOPA & CRA. October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0328 on Risk 

Management Program RFI, pp. 30–31. 

46AFPM. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0665 on Risk Management 

Program RFI, pp. 46–47. 

47ACC. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0694 on Risk Management 

Program RFI, PDF pp. 44–45 of 189. 

48TPA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0617 on Risk Management 

Program RFI, pp. 7–8. 

49CGA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0633 on Risk Management 

Program RFI, p. 6. 

50 DPC Industries, Inc. October 29, 2014. 

Comment No. EPA–HQ–OEM–2014–0328–0649 on 

Risk Management Program RFI, p. 4. 

51AUC. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0646 on Risk Management 

Program RFI, p. 3. 

52CCPS. March 2003. Guidelines for Investigating 

Chemical Process Incidents, 2nd ed., p. 61. 53See General Guidance on Risk Management 

Programs for Chemical Accident Prevention (40 

CFR part 68), EPA–550–B–04–001, April 2004, page 

6–26. http://www2.epa.gov/rmp/guidance-facilitiesrisk-management-programs-rmp#general. 

54NJDEP TCPA. March 29, 2012. NJ Title 7, 

Chapter 31 TCPA Program Consolidated Rule 

Document, p. 2. http://www.state.nj.us/dep/rpp/

brp/tcpa/downloads/conrulerev9_fonts.pdf. 

55NJDEP. October 21, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0338 on Risk Management 

Program RFI, p. 16. 

56 GPA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0626 on Risk Management 

Program RFI, p. 14. 

require that prior to any de-registration 

of a process or stationary source that is 

no longer subject to the Risk 

Management Program rule, the owner or 

operator must report any accidents 

subject to the requirements of § 68.42 

and conduct incident investigations as 

required under §§ 68.60 and/or 68.81. 

EPA seeks comment on the proposed 

revisions to require an owner or 

operator to meet applicable reporting 

and incident investigation requirements 

prior to de-registering a process. 

7. Near Misses 

The current incident investigation 

provisions require facilities with 

Program 2 and/or 3 processes to 

investigate incidents that could 

reasonably have resulted in a 

catastrophic release. These types of 

incidents are sometimes characterized 

as ‘‘near misses’’ but there is confusion 

about what this term means. Several 

commenters on the Risk Management 

Program RFI, including the Society of 

Chemical Manufacturers and Affiliates 

(SOCMA),42 American Petroleum 

Institute (API),43 Gas Processors 

Association (GPA),44 National Oilseed 

Processors Association (NOPA), & Corn 

Refiners Association (CRA),45 and 

American Fuel & Petrochemical 

Manufacturers (AFPM),46 stated that 

they interpret the current requirements 

as including near misses. Other 

commenters (ACC,47 TPA,48 CGA,49

DPC Industries, Inc.,50 and Allied 

Universal Corp [AUC]) 51 urged EPA to 

not require investigations of near misses 

because the term is vague, inherently 

situation-specific and not reducible to a 

singular definition. CCPS defines a near 

miss as an event in which an accident 

causing injury, death, property damage, 

or environmental impact, could have 

plausibly resulted if circumstances had 

been slightly different.52

EPA itself may have contributed to 

the confusion over the meaning of the 

term ‘‘near miss.’’ In the 1993 proposed 

RMP rule (58 FR 54200, October 20 

1993), EPA indicated that investigation 

of near misses could provide facilities 

with important information on problems 

that should be addressed before a 

significant accidental release occurs. 

EPA considered a near miss as a mishap 

that did not result in a release for some 

reason, such as employee actions or 

luck. However, in the primary 

interpretive guidance document for the 

RMP rule, ‘‘General Guidance on Risk 

Management Programs for Chemical 

Accident Prevention (40 CFR part 68)’’ 

(RMP Guidance), originally published in 

1999, EPA indicated that while the 

owner or operator ‘‘must investigate 

each incident which resulted in, or 

could have resulted in, a catastrophic 

release of a regulated substance,’’ the 

owner or operator was not required to 

investigate ‘‘minor accidents or near 

misses:’’ 

You should also consider investigating 

minor accidents or near misses because they 

may help you identify problems that could 

lead to more serious accidents; however, you 

are not required to do so under part 68.53

Here, EPA intended to differentiate 

between incidents, which ‘‘could have 

resulted in a catastrophic release,’’ and 

‘‘minor accidents and [minor] near 

misses,’’ which are unlikely to have led 

to a catastrophic release. 

EPA’s experiences with RMP facility 

inspections and incident investigations 

show there have been incidents that 

were not investigated, even though 

under slightly different circumstances, 

the incident could have resulted in a 

catastrophic release. While these events 

did not result in deaths, injuries, 

adverse health or environmental effects, 

or sheltering-in-place, if circumstances 

had been slightly different, a 

catastrophic release could have 

occurred. For example, a runaway 

reaction that is brought under control by 

operators is a near miss that may need 

to be investigated to determine why the 

problem occurred, even if it does not 

directly involve a covered process both 

because it may have led to a release 

from a nearby covered process or 

because it may indicate a safety 

management failure that applies to a 

covered process at the facility. 

Similarly, fires and explosions near or 

within a covered process, any 

unanticipated release of a regulated 

substance, and some process upsets 

could potentially lead to a catastrophic 

release. 

Facilities regulated under New 

Jersey’s TCPA program are required to 

investigate each regulated chemical 

(‘‘extraordinarily hazardous 

substance’’), involved in an accident or 

potential catastrophic event.54 The 

NJDEP notes that ‘‘potential catastrophic 

event’’ means an incident that could 

have reasonably resulted in a 

catastrophic release of a regulated 

chemical which includes incidents in 

which no regulated chemical was 

released or no regulated chemical was 

released beyond a permitted level, or in 

other words, a near miss. Facilities 

report accidents and potential 

catastrophic events annually to New 

Jersey. NJDEP notes that each year, less 

than fifty percent of the facilities 

reported that they had one or more 

incidents.55 Most of the incidents 

reported involved the release of a 

regulated chemical. The number of near 

misses reported averaged less than 1 per 

facility. 

In its comments on the Risk 

Management Program RFI, GPA 

reasoned that requiring a root cause 

analysis for minor near misses would be 

burdensome and costly and would 

discourage employees and contractors 

from reporting near misses because of 

the burden of conducting a rigorous 

investigation.56 Similarly, some 

commenters, such as API thought that 

process upsets should not be included 

in incident investigation requirements 

because there is no standard definition; 

process upsets vary across a wide range 

from product quality/efficiency issues to 

ones that represent near-miss situations; 

and learning from process upset events 

that do potentially challenge process 

safety systems can be accomplished via 

other means. According to API, 

including all process upsets would 

overburden the root cause analysis/

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57API. October 29, 2014. Comment No. EPA–HQ– 

OEM–2014–0328–0624 on Risk Management 

Program RFI, p. 32. 58CCPS. January 2011. Process Safety Leading 

and Lagging Metrics—You Don’t Improve What You 

Don’t Measure, p. 36. CCPS, American Institute of 

Chemical Engineers, New York, NY. John Wiley and 

Sons. http://www.aiche.org/sites/default/files/docs/

pages/CCPS_ProcessSafety_Lagging_2011_2–24.pdf. 59CCPS. March 2003. Guidelines for Investigating 

Chemical Process Incidents, 2nd ed., p. 68. 

60EPA. May 24, 1996. Risk Management Plan 

Rule, Summary and Response to Comments. 

Volume 1, p. 16–4. Docket No. A–91–73, Document 

No. IX–C–1. 

61MKOPSC. October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0543 on Risk 

Management Program RFI, p. 144. 

62ACC. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0694 on Risk Management 

Program RFI, p. 44. 63API. October 29, 2014. Comment No. EPA–HQ– 

OEM–2014–0328–0624 on Risk Management 

Program RFI, p. 32. 64CCHS. October 28, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0546 on Risk Management 

Program RFI, p. 12. 65TPA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0617 on Risk Management 

Program RFI, p. 9. 66 GPA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0626 on Risk Management 

Program RFI, p. 13. 67 JR Simplot. October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0667 on Risk 

Management Program RFI, p. 31. 

investigation resources within a 

facility.57

CCPS’s ‘‘Process Safety Leading and 

Lagging Metrics—You Don’t Improve 

What You Don’t Measure’’ explains that 

a near miss has three essential 

elements.58 These include: 

• An event occurs, or a potentially 

unsafe situation is discovered; 

• the event or unsafe situation had 

reasonable potential to escalate, and 

• the potential escalation would have 

led to adverse impacts. 

The CCPS document and the CCPS 

‘‘Guidelines for Investigating Chemical 

Process Incidents’’ contain many 

examples of near misses, which can be 

an actual event or discovery of a 

potentially unsafe situation.59 Examples 

of incidents that should be investigated 

include some process upsets, such as: 

Excursions of process parameters 

beyond pre-established critical control 

limits; activation of layers of protection 

such as relief valves, interlocks, rupture 

discs, blowdown systems, halon 

systems, vapor release alarms, and fixed 

vapor spray systems; and activation of 

emergency shutdowns. 

Near misses should also include any 

incidents at nearby processes or 

equipment outside of a regulated 

process if the incident had the potential 

to cause a catastrophic release from a 

nearby regulated process. An example 

would be a transformer explosion that 

could have impacted nearby regulated 

process equipment causing it to lose 

containment of a regulated substance. 

Near misses could also include process 

upsets such as activation of relief 

valves, interlocks, blowdown systems or 

rupture disks. 

Because it is difficult to prescribe the 

various types of incidents that may 

occur in RMP-regulated sectors that 

should be considered near misses, and 

therefore be investigated, EPA is not 

proposing a regulatory definition. 

Instead, EPA will rely on facility owners 

or operators to decide which incidents 

to investigate, based on the seriousness 

of the incident, the process(es) involved, 

and the specific conditions and 

circumstances involved. In the 1996 

Response to Comments on the final rule, 

EPA acknowledged that 

the range of incidents that reasonably could 

have resulted in a catastrophic release is very 

broad and cannot be specifically defined.60

EPA decided to leave it up to the discretion 

of the owner or operator to determine 

whether an incident could reasonably have 

resulted in a catastrophic release and to 

investigate such incidents. 

The intent is not to include every minor 

incident or leak, but focus on serious 

incidents that could have resulted in a 

catastrophic release, although EPA 

acknowledges this will require 

subjective judgment. 

Finally, EPA expects that lessons 

learned from near miss incident 

investigations be considered when 

conducting a hazard review or PHA. 

Therefore, the proposed amendments to 

§§ 68.50(a)(2) and 68.67(c)(2) would 

require the hazard review and the PHA 

to include findings from all incident 

investigations required under §§ 68.60 

and 68.81. This includes incidents that 

could reasonably have resulted in a 

catastrophic release (i.e., a near miss). 

EPA seeks comment on the guidance 

and examples provided of a near miss. 

Is further clarification needed in this 

instance? Should EPA consider limiting 

root cause analyses only for incidents 

that resulted in a catastrophic release? 

8. Investigation Timeframe 

EPA believes incident investigations 

will result in improved process safety 

through the dissemination of lessons 

learned and the implementation of 

recommended corrective actions. 

Conducting these investigations as soon 

as possible after an incident may yield 

better quality data and information, 

although it may take time to collect, 

validate, and integrate data from a range 

of sources. EPA has discovered 

situations where owners or operators of 

regulated facilities indefinitely delayed 

completing incident investigations. 

Therefore, in the Risk Management 

Program RFI, EPA considered whether 

incident investigations should be 

required to be completed within a 

certain amount of time. In their 

comments on the RFI, Mary Kay 

O’Connor Process Safety Center 

(MKOPSC) 61 stated that the timeframe 

requirement for an incident 

investigation to be completed should be 

based on the following factors: The 

consequence, the complexity of the 

incident, the process, the substance, and 

the investigation team’s experience, 

knowledge and members. ACC62 and 

API 63 noted that the time to complete 

an investigation is highly dependent on 

the complexity of the accident and the 

process and can require assistance from 

outside process experts that may not 

immediately be available. CCHS 

commented that a specific timeframe for 

incident investigations to be completed 

would benefit overall safety and noted 

that most incidents can be investigated 

within six months.64 However, CCHS 

stated that it may be appropriate that a 

specific time be required that could be 

changed by documented justification. 

As to timeframes, some of the refineries 

in Contra Costa County, California, have 

corporate requirements to complete all 

investigations within 30 to 60 days. 

Exceptions can be granted for large 

events. CCHS noted that there are 

challenges and limitations to 

completing an incident investigation 

within a specified timeframe. Other RFI 

commenters, such as TPA,65 GPA,66 and 

JR Simplot,67 noted that having a 

specific timeline to complete an 

investigation could cause facilities to 

focus more on complying with a 

deadline at the expense of using the 

appropriate level of rigor and getting the 

right answer. EPA’s own experience 

with accident investigation has shown 

that a major accident investigation can 

take up to a year or more. Taking into 

consideration the need for completion 

of an investigation while allowing the 

proper time to determine the correct 

root causes, EPA is proposing to require 

that facility owners or operators 

complete an incident investigation 

report within 12 months of an incident 

that resulted in, or could reasonably 

have resulted in, a catastrophic release. 

For very complex incident 

investigations that cannot be completed 

within 12 months, EPA is allowing an 

extension of time if the implementing 

agency approves, in writing. EPA 

believes that 12 months is long enough 

to complete most complex accident 

investigations but will allow facilities 

more time if they consult with their 

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68Paradies, Mark, Unger, Linda and Busch, 

David. 1996. TapRooT® Root Cause TreeTM & User’s 

Manual, Rev. 4. Systems Improvements, Inc., 

Knoxville, TN. 

69ABS Group Inc. 1999. Root Cause MapTM and 

Root Cause Analysis Handbook, A Guide to 

Effective Incident Investigation. ABS Group, Inc., 

Risk & Reliability Division, Knoxville, TN. 

implementing agency and receive 

approval for an extension of time. 

EPA notes that the Agency’s own 

requirements under the Petroleum 

Refinery maximum achievable control 

technology (MACT) and New Source 

Performance Standards (NSPS) 

regulations already require root cause 

and corrective action analyses for 

certain release events (see 40 CFR parts 

63.648(j)(6) and (j)(7)), and 60.103a(d)) 

with a more stringent timeframe (i.e., 45 

days) for completing these analyses than 

the 12 months specified in this 

proposed rule. RMP-regulated facilities 

that are also required to meet the MACT 

and NSPS root cause analysis 

requirements must continue to meet the 

timeframes specified under those rules 

as applicable. However, root cause 

analyses conducted to meet those 

requirements may also be used to 

comply with the root cause analysis 

requirements proposed herein, provided 

the analysis meets the requirements of 

§ 68.60 or § 68.81, as applicable. 

EPA seeks comment on the 

appropriateness of establishing a 

specific timeframe for incident 

investigations to be completed and what 

that timeframe should be. As an 

alternative, EPA considered whether the 

incident investigation should be 

completed prior to restart of the affected 

process, if the incident resulted in a 

process shutdown, to ensure that the 

causes of an incident have been 

addressed. EPA seeks comment on 

whether to add this condition to the 

incident investigation requirements or 

whether there are other options to 

ensure that unsafe conditions that led to 

the incident are addressed before a 

process is re-started. EPA also seeks 

comment on whether the different root 

cause analysis timeframes specified 

under the MACT and NSPS and 

proposed herein will cause any 

difficulties for sources covered under 

both rules, and if so, what approach 

EPA should take to resolve this issue. 

9. Accident History Reporting 

Thorough investigations and reporting 

may help facilities identify and address 

root causes. Accident history reporting 

provides an avenue to disseminate 

lessons learned. Local communities are 

interested in whether facilities are 

investigating incidents and taking steps 

to prevent future accidents. EPA 

believes it is important to determine and 

report results of root cause analysis for 

accidents with reportable impacts in the 

RMP accident history. Therefore, EPA 

has proposed that information on root 

causes analyzed as part of an incident 

investigation be included in the RMP 

accident history in § 68.42. Because 

there can be numerous potential 

incident root causes identified for a 

single incident, and in order to simplify 

reporting for the RMP accident history, 

EPA believes that the root cause 

information should be reported as root 

cause categories. 

Various methods for identifying root 

causes have been published. Some 

methods involve the use of root cause 

trees which show root cause categories 

for different PSM systems, where each 

category can be associated with many 

specific root cause deficiencies.68 69 One 

root cause system uses the following list 

of root cause categories: Procedures; 

Training; Communications; 

Administrative/Management System; 

Personal Performance; Human Factors 

Engineering; Immediate Supervision; 

Equipment Design; Equipment/Records; 

Equipment Reliability/Maintenance; 

and Equipment Installation/Fabrication. 

Another uses a slightly different list: 

Procedures, Training, Quality Control, 

Communications, Management System, 

Human Engineering and Immediate 

Supervision. EPA will modify its online reporting system for RMPs 

(RMP*eSubmit) to incorporate an 

appropriate list of root cause categories 

for RMP facility incident investigations 

of RMP reportable accidents based on 

these categories. 

Because EPA is proposing that the 

incident investigation be required to be 

completed within 12 months, root 

causes may not be known until 12 

months after an accidental release. 

Section 68.195(a) currently requires that 

the accident history information in 

§ 68.42 be submitted within six months 

of the release. Because EPA is proposing 

to add accident root cause categories to 

§ 68.42, EPA is also proposing in 

§ 68.195(a)(2) that the root cause 

categories be submitted in the RMP 

within 12 months of the release. 

EPA seeks comment on the 

appropriateness of requiring root cause 

reporting as part of the accident history 

requirements of § 68.42, as well as the 

categories that should be considered 

and the timeframe within which the 

root cause information must be 

submitted. 

10. Proposed Revisions to Regulatory 

Text 

a. Definitions (§ 68.3) 

EPA is proposing to add a definition 

of ‘‘root cause’’ and modify the 

definition of ‘‘catastrophic release’’ in 

§ 68.3. 

b. Five-Year Accident History (§ 68.42) 

EPA is proposing to amend paragraph 

(b) by adding a new subparagraph 

(b)(10) to require of incident 

investigation root cause categories to be 

reported. Current subparagraphs (b)(10) 

and (b)(11) will become subparagraphs 

(b)(11) and (b)(12), respectively. 

c. Hazard Review (§ 68.50) 

EPA is proposing to amend 

subparagraph (a)(2) by adding a phrase 

at the end to require the owner or 

operator to consider findings from 

incident investigations. This is similar 

to the revision proposed for Program 3 

facilities in § 68.67(c)(2). 

d. Incident Investigation (§§ 68.60 and 

68.81) 

EPA is proposing to revise § 68.60, 

which is applicable to Program 2 

processes, and § 68.81, which is 

applicable to Program 3 processes, by 

revising paragraph (a) to add 

subparagraphs (a)(1) and (a)(2) to better 

clarify the scope of incidents that must 

be investigated. Subparagraph (a)(1) 

applies to an incident that resulted in a 

catastrophic release and clarifies that 

the owner or operator must investigate 

the incident even if the process 

involving the regulated substance is 

destroyed or decommissioned. 

Subparagraph (a)(2) applies to a nearmiss, which is an incident that could 

reasonably have resulted in a 

catastrophic release. EPA is also 

removing the phrase ‘‘of a regulated 

substance’’ from paragraph (a) because it 

is duplicative. The definition of 

catastrophic release refers to releases of 

regulated substances. 

EPA is also proposing to add a new 

paragraph (c) to § 68.60 requiring that an 

incident investigation team be 

established and consist of at least one 

person knowledgeable in the process 

involved and other persons with 

appropriate knowledge and experience 

to thoroughly investigate and analyze 

the incident. This is similar to the 

requirement in § 68.81(c) for Program 3 

processes. Current paragraphs (c) 

through (f) would become paragraph (d) 

through (g). 

EPA is also proposing to make 

changes to the new paragraph (d) in 

§ 68.60 and current paragraph (d) in 

§ 68.81 to revise the incident 

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70CSB. March 2007. Investigation Report: 

Refinery Explosion and Fire, BP, Texas City, Texas, 

March 23, 2005. Report No. 2005–04–I–TX. http:// 

www.csb.gov/assets/1/19/CSBFinalReportBP.pdf. 

71CSB. December 9, 2009. Urgent 

Recommendations to Citgo. http://www.csb.gov/csbissues-urgent-recommendations-to-citgo-findsinadequate-hydrogen-fluoride-water-mitigationsystem-during-corpus-christi-refinery-fire-last-july/. 

investigation report requirements. EPA 

is proposing to change the word 

‘‘summary’’ to ‘‘report’’ and require 

facility owners or operators to complete 

incident investigation reports within 12 

months unless the implementing agency 

approves, in writing, an extension of 

time. 

Furthermore, EPA is proposing to 

amend and add new subparagraphs in 

the new paragraph (d) in § 68.60 and 

current paragraph (d) in § 68.81 

requiring additional elements in an 

incident investigation report. EPA is 

proposing to: 

• Revise paragraph (d)(1) to require the 

time and location of the incident in the 

investigation report; 

• Revise paragraph (d)(3) to specify that 

the description of the incident be in 

chronological order and provide all relevant 

facts; 

• Add new paragraph (d)(4) to require that 

the investigation report include the name and 

amount of the regulated substance involved 

in the release or near miss and the duration 

of the event; 

• Add paragraph (d)(5) to require a 

description of the consequences, if any, of 

the incident; 

• Add paragraph (d)(6) to require a 

description of emergency response actions 

taken; 

• Renumber current paragraph (d)(4) to 

(d)(7) and require additional criteria related 

to the factors contributing to the incident, 

including the initiating event, direct and 

indirect contributing factors, and root causes. 

Add language to new paragraph (d)(7) to 

require that root causes must be determined 

through the use of a recognized method. 

• Renumber the current paragraph (d)(5) to 

(d)(8) and add language to require a schedule 

for addressing recommendations resulting 

from the investigation to be included in the 

investigation report. 

Finally, EPA is proposing to amend 

the current paragraph (f) which would 

be the new paragraph (g) to add the 

word incident before investigation and 

change ‘‘summaries’’ to ‘‘reports’’ for 

consistency. 

e. Process Hazard Analysis (PHA) 

(§ 68.67) 

EPA is proposing to add subparagraph 

(c)(2) to require the owner or operator to 

address findings from incident 

investigations, as well as any other 

potential failure scenarios (e.g., 

incidents that occurred at other similar 

facilities and or processes, failure 

mechanisms discovered in literature or 

from other sources of information). This 

is similar to the revision for Program 2 

facilities in § 68.50(a)(2). 

f. Updates (§ 68.190) 

EPA is proposing to amend paragraph 

(c) to require that the owner or operator 

report any accidents covered by § 68.42 

and conduct incident investigations 

required under §§ 68.60 and/or 68.81 

prior to de-registering a process or 

stationary source that is no longer 

subject to the RMP rule. 

11. Alternative Options 

EPA considered limiting these 

requirements to the original universe of 

Program 3 processes that existed before 

OSHA changed its PSM retail 

exemption. Accidents occur at a higher 

frequency in these processes as 

compared to processes covered in 

Program 2. However, with the shift of 

many Program 2 processes into Program 

3 due to OSHA’s revised policy on the 

PSM retail facility exemption, most of 

the accidents at remaining Program 2 

processes occur at publicly owned water 

and wastewater treatment facilities that 

are not in Program 3 because they are 

not subject to OSHA PSM. State and 

local government employees at facilities 

in states under Federal OSHA authority 

are not covered by the OSHA PSM 

standard unlike state and local 

government employees at facilities in 

states with OSHA approved State Plans. 

These processes pose the same risk as 

the publicly owned water/wastewater 

treatment processes that are in Program 

3. EPA decided that there was little 

justification for limiting the proposed 

requirements to the changed universe of 

Program 3 processes after the OSHA 

retail exemption change; there are fewer 

than six RMP reportable accidents a 

year at remaining Program 2 processes. 

Although the alternative would be 

slightly less burdensome on the 

regulated community, it would also 

likely prevent fewer accidents than the 

proposed approach. EPA seeks comment 

on the alternative approach and whether 

there are any other alternative options 

that EPA should consider prior to 

issuing a final action. 

B. Third-Party Compliance Audits 

In addition to strengthening the 

incident investigation requirements, 

EPA is proposing to strengthen the RMP 

rule’s compliance audit provisions to 

require independent third-party 

compliance audits after an accident or 

findings of significant non-compliance 

by an implementing agency for 

stationary sources with Program 2 and/ 

or Program 3 processes. Incident 

investigations often reveal that these 

facilities have deficiencies in some 

prevention program requirements 

related to that process. Compliance 

audits entail a systematic evaluation of 

the full prevention program for all 

covered processes. As described below, 

in some cases, self-auditing may be 

insufficient to prevent accidents, 

determine compliance with the RMP 

rule’s prevention program requirements, 

and ensure safe operation. Stationary 

sources that have had accidents and/or 

substantial non-compliance with Risk 

Management Program requirements 

pose a greater risk to the surrounding 

communities. EPA therefore believes it 

is appropriate to require such stationary 

sources to undergo objective auditing by 

competent and independent third-party 

auditors. Such independent third-party 

auditing can assist the owners and 

operators, EPA (or the implementing 

agency), and the public to better 

determine whether the procedures and 

practices developed by the owner and/ 

or operator under subparts C and/or D 

of the RMP rule (i.e., the prevention 

program requirements) are adequate and 

being followed. 

EPA and the CSB have cited poor 

compliance audits as a contributing 

factor to the severity of past chemical 

accidents. The CSB identified a lack of 

rigorous compliance audits as a 

contributing factor behind the March 23, 

2005 explosion and fire at the BP Texas 

City Refinery in Texas City, Texas.70

This explosion and fire killed 15 people, 

injured another 180, led to a shelter-inplace order that required 43,000 people 

to remain indoors, and damaged houses 

as far away as three-quarters of a mile 

from the refinery. 

A CSB investigation of the July 2009 

fire and explosion at the Citgo Corpus 

Christi Refinery found that Citgo had 

never conducted a safety audit of 

hydrofluoric acid (HF) alkylation 

operations at either of its U.S. refineries 

equipped with HF alkylation units 

pursuant to recommendations in API 

Recommended Practice 751, Safe 

Operation of HF Alkylation Units.71 The 

CSB recommended that within 60 days, 

Citgo complete a third-party audit of all 

Citgo HF alkylation unit operations in 

the United States (Corpus Christi, Texas 

and Lemont, Illinois) in accordance 

with API Recommended Practice 751. 

The CSB also specified qualifications for 

the selected lead auditor including 

extensive knowledge of HF hazards, HF 

alkylation units, and API 751. 

The CSB found that facility PSM 

audits failed to detect PSI and operating 

procedure deficiencies that contributed 

to the November 2003 chlorine release 

at DPC Enterprises, L.P. in Glendale, 

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72CSB. February 2007. Investigation Report: 

Chlorine Release, DPC Enterprises, L.P., Glendale, 

Arizona, November 17, 2003. Report No. 2004–02– 

I–AZ. http://www.csb.gov/assets/1/19/DPC_

Report.pdf. 

73CSB. January 2011. Investigation Report: 

Pesticide Chemical Runaway Reaction Pressure 

Vessel Explosion, Bayer CropScience LP, Institute, 

West Virginia, August 28, 2008. Report No. 2008– 

08–I–WV. http://www.csb.gov/assets/1/19/Bayer_

Report_Final.pdf. 

74Consent Decree, United States v. Tyson Foods, 

Inc., et al., E.D. Miss., April 4, 2013. http://

www2.epa.gov/enforcement/tyson-foods-inc. 

75Finding of Violation and Administrative Order 

on Consent, In the Matter of Mann Distribution LLC 

and 3134 Post LLC, Docket Nos. RCRA–01–2015– 

0028 and CAA–01–2015–0029, March 17, 2015. 

76Accidental Release Prevention Requirements: 

Risk Management Programs Under CAA Section 

112(r)(7), 61 FR 31705, June 20, 1996. http://

www.gpo.gov/fdsys/pkg/FR-1996-06-20/pdf/96- 

14597.pdf. 

Arizona.72 The CSB recommended that 

DPC use a qualified, independent 

auditor to evaluate DPC’s PSM and Risk 

Management Programs against best 

practices and implement audit 

recommendations in a timely manner at 

all DPC chlorine repackaging sites. 

The CSB also found numerous 

auditing deficiencies following the 

January 2008 explosion at Bayer 

CropScience, LP, in Institute, West 

Virginia.73 The CSB recommended that 

Bayer commission an independent 

human factors and ergonomics study of 

all Institute site PSM and Risk 

Management Program covered process 

control rooms to evaluate the humancontrol system interface, operator 

fatigue, and control system familiarity 

and training. 

EPA has required third-party audits in 

enforcement settlement agreements. For 

example, EPA found multiple occasions 

of noncompliance with the Risk 

Management Program requirements at 

Tyson Foods, Inc. facilities through a 

series of inspections and information 

requests. Dating back to October 2006, 

violations included failures to follow 

the general industry standards to test or 

replace safety relief valves, improperly 

co-located gas-fired boilers and 

ammonia machinery, as well as failures 

to abide by the RMP rule’s prevention 

program and reporting requirements. As 

part of a 2014 consent decree, Tyson 

Foods, Inc. agreed, in addition to paying 

a penalty of $3.95 million, to conduct 

pipe-testing and third-party audits of its 

ammonia refrigeration systems to 

improve compliance with Risk 

Management Program requirements at 

all 23 of the company’s facilities in four 

Midwestern states.74

In March 2015, EPA Region 1 issued 

an administrative order on consent to 

Mann Distribution LLC and 3134 Post 

Road LLC (Respondents) regarding 

Resource Conservation and Recovery 

Act (RCRA) and CAA 112(r)(1) (the 

‘‘general duty clause’’) violations found 

during an April 4, 2013 inspection at a 

chemical distribution facility in 

Warwick, Rhode Island.75 Like the Risk 

Management Program requirements, 

section 112(r)(1) of the CAA addresses 

safe operation and prevention of 

accidental releases. Unsafe conditions 

found during the inspection included, 

among other things, failure to have a fire 

suppression system, failure to inspect a 

fire alarm, co-location of incompatible 

chemicals, and many RCRA generator 

violations. The facility also had a prior 

history of non-compliance. The order 

requires Respondents to implement an 

independent third-party inspection 

program, in addition to imposing other 

compliance requirements. 

The proposed independent thirdparty compliance audit requirements 

include a definition of ‘‘third-party 

audit’’ in § 68.3; modifications to 

existing §§ 68.58 and 68.79 to specify 

when a third-party audit must be 

performed; and the requirements for 

third-party auditors and third-party 

audits in new §§ 68.59 and 68.80. EPA 

is proposing to require third-party 

compliance audits to be conducted at 

stationary sources following an accident 

meeting the five-year accident history 

criteria in § 68.42(a). EPA is also 

proposing a provision to allow an 

implementing agency to require a thirdparty audit be performed at a facility 

under certain circumstances that suggest 

a heightened risk for an accident. These 

circumstances are: Non-compliance 

with the Prevention Program 

requirements of subpart C (Program 2) 

or subpart D (Program 3), including noncompliance with the competency, 

independence, or impartiality criteria of 

§ 68.59(b) or § 68.80(b) regarding a 

previous third-party audit. All other 

stationary sources with Program 2 and 

Program 3 processes will continue to 

follow the current compliance audit 

requirements of §§ 68.58 and 68.79. 

Sections 68.58 and 68.79 of the RMP 

regulation (Program 2 and Program 3 

Compliance Audits) require owners or 

operators of stationary sources with 

processes subject to Program 2 or 

Program 3 requirements to audit 

compliance with the provisions of 

subpart C (Program 2 Prevention 

Program requirements) or subpart D 

(Program 3 Prevention Program 

requirements) at least every three years. 

The purpose of the compliance audits is 

to verify that the procedures and 

practices developed under subparts C 

and D of the RMP rule are adequate and 

being followed. These compliance audit 

provisions are similar to language to 

that is found in 29 CFR 1910.119(o) of 

the OSHA PSM standard. Sections 68.58 

and 68.79 of the RMP regulation and 

1910.119(o) of the OSHA PSM standard 

require that the compliance audit be 

conducted by at least one person 

knowledgeable in the process, that audit 

findings be addressed promptly, and 

that a report be generated documenting 

the findings of the audit. 

Currently, neither EPA nor OSHA 

requires employers to use independent 

third-parties in conducting compliance 

audits. However, third-party compliance 

auditors exist, both the RMP rule and 

the PSM standard permit their use, and 

they are utilized by some of the Risk 

Management Program and PSM 

regulated community, both voluntarily, 

and pursuant to enforcement settlement 

agreements. 

EPA discussed the potential to use 

independent third-party auditors for 

Risk Management Program compliance 

audits, in the preamble of the 1996 final 

RMP rule, as an issue for further 

consideration.76 The preamble endorsed 

the concept of using third parties, citing 

the following reasons: To assist in rule 

compliance and oversight, provided that 

any third-party proposal not weaken the 

compliance responsibilities of facility 

owners or operators; offer cost savings 

and benefits to the industry, 

community, and implementing agencies 

that significantly exceed the cost of 

implementing the approach; lead to a 

net increase in process safety, 

particularly for smaller, less technically 

sophisticated facilities; and promote 

cost-effective Agency prioritization of 

oversight resources. At the time, EPA 

did not require the use of third-party 

auditors because the Agency believed 

that several key issues, including 

qualification criteria, certification 

procedures, liability, and others, needed 

to be investigated. Based on EPA’s 

research of other third-party audit 

programs as well as the Agency’s own 

experience with third-party auditors in 

the context of enforcement settlements, 

the Agency is proposing third-party 

audit requirements for the rule’s 

accident prevention program. 

Third-party audits are required by 

other Federal programs in appropriate 

existing rules, and rules currently in 

development, to ensure safe operations. 

The Administrative Conference of the 

United States (ACUS) ‘‘Third-Party 

Programs Final Report’’ (October 22, 

2012) describes a variety of third-party 

programs in Food and Drug 

Administration (FDA), Consumer 

Product Safety Commission, and 

Federal Communications Commission 

mstockstill on DSK4VPTVN1PROD with PROPOSALS4

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77McCallister, Lesley. October 22, 2012. ThirdParty Programs Final Report (2012). http://

www.acus.gov/report/third-party-programs-finalreport. 

78Standards of Performance for New Residential 

Wood Heaters, New Residential Hydronic Heaters 

and Forced-Air Furnaces, 80 FR 13671, March 16, 

2015. http://www.gpo.gov/fdsys/pkg/FR-2015-03- 

16/pdf/2015-03733.pdf. 

79Formaldehyde; Third-Party Certification 

Framework for the Formaldehyde Standards for 

Composite Wood Products, 78 FR 34796, June 10, 

2013. http://www.gpo.gov/fdsys/pkg/FR-2013-06- 

10/pdf/2013-13254.pdf. See also the Formaldehyde 

Standards for Composite Wood Products Act 

https://www.gpo.gov/fdsys/pkg/BILLS-111s1660enr/

pdf/BILLS-111s1660enr.pdf. 

80See, e.g., Missouri Dept. of Nat. Resources and 

Missouri State Highway Patrol, First Annual 

Oversight Report of the Decentralized Gateway 

Vehicle Inspection Program (2008). http://

www.dnr.mo.gov/gatewayvip/docs/enforcement

rpt.pdf. 

81Cal. Code of Regs. Accreditation Requirements 

for Verification Bodies, Lead Verifiers, and Verifiers 

of Emissions Data Reports and Offset Project Data 

Reports. tit. 17 § 95132(b)(4) (2010); see also Cal. 

Code of Regs. tit. 17 § 95132(b)(1) (describing the 

firm requirement of having a lead verifier); Cal. 

Code of Regs. tit. 17 § 95132(b)(2) (2010) (describing 

the lead verifier requirements) and Cal. Code of 

Regs. tit. 17 § 95132(b)(1). https://govt.westlaw.com/ 

calregs/Document/I047B3A909A301

1E4A28EDDF568E2F8A2?view

Type=FullText&originationContext=

documenttoc&transitionType=CategoryPage

Item&contextData=%28sc.Default%29. 

82MassDEP. 2015. UST Inspection Program. 

http://www.mass.gov/eea/agencies/massdep/toxics/

ust/third-party-ust-inspection-program.html. 

83CCPS. March 2007. Guidelines for Risk Based 

Process Safety. http://www.aiche.org/ccps/

resources/publications/books/guidelines-risk-basedprocess-safety. 

84Lesley K. McAllister. Jan. 2012. Regulation by 

Third-Party Verification. 53 B.C. L. Rev. 1, 21–26. 

http://lawdigitalcommons.bc.edu/bclr/vol53/ 

iss1/1/. 

85Lesley K. McAllister. Jan. 2012. Regulation by 

Third-Party Verification. 53 B.C. L. Rev. 1, 22–23 

at p. 37. 

86ACUS; Administrative Conference 

Recommendation 2012–7; Agency Use of ThirdParty Programs to Assess Regulatory Compliance 

(Adopted December 6, 2012) at 3–4. https://

www.acus.gov/recommendation/agency-use-thirdparty-programs-assess-regulatory-compliance. 

87See, e.g., Lesley K. McAllister. Jan. 2012. 

Regulation by Third-Party Verification. 53 B.C. L. 

Rev. 1, pp. 3, 39–40. 

regulations.77 Further examples follow. 

The Bureau of Safety and 

Environmental Enforcement (BSEE) 

promulgated revisions to their Safety 

and Environmental Management 

Systems (SEMS II) requirements (78 FR 

20423, April 5, 2013) to help ensure the 

safe operations of offshore oil and 

natural gas drilling and production 

facilities. BSEE’s SEMS standard, 30 

CFR part 250, subpart S, requires audits 

conducted by an independent thirdparty, subject to approval by BSEE, or 

by designated and qualified personnel if 

the employer implements procedures to 

avoid conflicts of interest. BSEE’s SEMS 

II revisions to the standard require that, 

by June 4, 2015, the team lead for 

compliance audits must be independent 

and represent an accredited audit 

service provider. In the preamble to its 

SEMS II final rule, BSEE discussed its 

third-party-auditing requirements as 

follows: 

Consistent audits performed by well 

trained and experienced auditors are critical 

to ensuring that SEMS programs are 

successfully implemented and maintained on 

the [Outer Continental Shelf] OCS. As a 

result, we are adopting industry best 

practices related to SEMS audits and auditor 

qualifications. Industry is already voluntarily 

adopting these practices in many deepwater 

operations. We believe that the application of 

these requirements to all OCS operations will 

result in more robust and consistent SEMS 

audits. (78 FR 20430, April 5, 2013.) 

Independent third-party audits or 

other forms of compliance verification 

are also required by a variety of EPA 

rules to promote compliance with 

regulatory standards. One example of an 

EPA regulatory program with built-in 

third-party verification is the EPA CAA 

wood stoves rule.78 Additionally, EPA is 

developing a rule for a third-party 

certification framework for the 

formaldehyde standards for composite 

wood products in accordance with the 

Formaldehyde Standards for Composite 

Wood Products Act in which Congress 

mandated that EPA promulgate rules 

that include a third-party testing and 

certification program.79

Third-party verification and 

certification approaches are also 

employed in a variety of state regulatory 

settings. Examples include the CAA 

Title II vehicle inspection, maintenance, 

and emissions programs in authorized 

states,80 California’s mandatory 

greenhouse gas (GHG) reporting 

program,81 and Massachusetts 

Underground Storage Tank (UST) thirdparty inspection program.82

There are advantages to third-party 

auditing, particularly with strong 

auditor competence and independence 

criteria. According to the CCPS, ‘‘Thirdparty auditors (typically, consulting 

companies who can provide 

experienced auditors) potentially 

provide the highest degree of 

objectivity.’’ 83 ACUS, in its 

‘‘Recommendation on Agency Use of 

Third-Party Programs to Assess 

Regulatory Compliance’’ (December 6, 

2012) (Recommendation), found that, 

when well-designed and implemented 

per the Recommendation, ‘‘[s]everal 

broad reasons support the growing use 

of third-party programs in Federal 

regulation.’’ Specifically, ACUS found 

that 

. . . Federal regulatory agencies are faced 

with assuring the compliance of an 

increasing number of entities and products 

without a corresponding growth in agency 

resources. Third-party programs may 

leverage private resources and expertise in 

ways that make regulation more effective and 

less costly. In comparison with other 

regulatory approaches, third-party programs 

may also enable more frequent compliance 

assessment and more complete and reliable 

compliance data. 

A leading scholar on regulatory thirdparty programs likewise found that, 

when well-designed and implemented, 

‘‘third-party verification could furnish 

more and better data about regulatory 

compliance’’ while providing additional 

compliance and resource savings 

benefits.84

An ‘‘independent third-party’’ is a 

private auditor, inspector, or other type 

of verifier external to the facility. 

‘‘Independent third-party’’ excludes the 

regulated entity, which is the first party 

(e.g., the stationary source and its parent 

company and subsidiaries), second 

parties within the firm’s industry or 

business community with whom the 

regulated entity has a supply-chain 

relationship, and third parties that are 

not independent of the first party, 

which may include contractors, 

consultants, or purchasers of the 

facility’s goods or services.85 An 

independent third-party program should 

not be confused with a second party 

program in which a regulated source 

employs a contractor or consultant, even 

when the contractor is a separate legal 

entity from the regulated facility and 

highly qualified. If a regulated source 

provides direct or indirect control over 

the contractor or consultant preparing 

the audit report, including controlling 

the report’s scope or findings, or has 

other non-audit relationships with the 

auditor, then the auditor is not a true 

independent third-party. This is 

important because when developing a 

third-party audit program, auditor 

independence can be critical to the 

success of the program. 

Third-party compliance audit 

programs should also establish criteria 

and standards for auditor independence. 

As documented in the ACUS 

Recommendation on Agency Use of 

Third-Party Programs to Assess 

Regulatory Compliance (December 6, 

2012),86 the ACUS Third-Party 

Programs Final Report (October 22, 

2012), and the McAllister law review 

article, auditor independence is critical 

to ensuring accurate and reliable 

independent third-party auditing.87

The literature on designing 

independent third-party programs 

includes peer-reviewed empirical 

studies emphasizing the importance of 

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88Esther Duflo et al., Truth-Telling By ThirdParty Auditors And The Response of Polluting 

Firms: Experimental Evidence From India, 128 Q. 

J. of Econ. 4 at 1499–1545 (2013). 

89 Victor Manuel Bennett, et al. August 2013. 

Customer-Driven Misconduct How Competition 

Corrupts Business Practices. Management Science 

Vol. 59, No. 8, pp. 1725–1742. http://www.hbs.edu/ 

faculty/Pages/item.aspx?num=43347 and Lamar 

Pierce and Michael W. Toffel. Sept.–Oct. 2013. The 

Role of Organizational Scope and Governance in 

Strengthening Private Monitoring. Organization 

Science Vol. 24, No. 5, pp. 1558–1584. 

90Lamar Pierce and Michael W. Toffel. Sept.-Oct. 

2013. The Role of Organizational Scope and 

Governance in Strengthening Private Monitoring. 

Organization Science Vol. 24, No. 5, at 1575. http:// 

www.hbs.edu/faculty/Publication%20Files/11- 

004.pdf. 

91PCAOB. Aug. 18, 2014. Third Progress Report 

on PCAOB Inspections of Broker and Dealer 

Auditors Shows Continued High Number of 

Findings. http://pcaobus.org/Inspections/

Documents/BD_Interim_Inspection_Program_

2014.pdf. 

92Press Release: NYDFS Announces PwC 

Regulatory Advisory Services Will Face 24-Month 

Consulting Suspension; Pay $25 Million; 

Implement Reforms After Misconduct During Work 

At BTMU. Aug. 18, 2014. http://www.dfs.ny.gov/

about/press/pr1408181.htm. 

93EPA has not formally evaluated these programs 

and standards or their outcomes. This discussion is 

not a formal Agency review or endorsement of 

them. 

establishing criteria and features for 

auditor independence to promote 

accurate audit reports, including those 

summarized briefly below. While it is 

not necessary that all audits be 

conducted only by independent third 

parties, when independent third-party 

auditing is necessary and appropriate, 

the literature indicates that, without 

sufficient safeguards to ensure auditor 

independence, auditors are more likely 

to provide lenient or biased audit 

reports that can fail to accurately 

identify problems and violations by the 

regulated entity. 

One such study is a randomized 

control design field experiment in the 

State of Gujarat in India.88 This study 

revealed weaknesses in the existing 

third-party regulatory audit system and 

the potential for a series of market-based 

alterations to dramatically improve 

auditor accuracy. In India, Gujarat 

Pollution Control Board regulates more 

than 20,000 industrial plants. From the 

universe of audit-eligible plants located 

in two populous and heavily polluted 

industrial regions, the researchers 

identified a study sample of 473 

randomly-selected plants, stratified by 

region. Half of the plants were randomly 

assigned into a control group. The other 

half of the plants, also randomly 

assigned, were informed by the State of 

changes to their audit regulation that 

included the following: Plants would be 

randomly assigned auditors they were 

required to use (i.e., they could no 

longer choose their own auditors); 

auditors would be paid from a central 

pool rather than by the plant for which 

they worked; auditor fees were set in 

advance at a flat rate (high enough to 

cover pollution measurement and give 

the auditor a modest profit); a random 

sample of each auditor’s pollution 

readings would be verified with followup visits to the audited plants by an 

independent technical agency; in year 

two of the experiment, the third-party 

auditors were informed that their pay 

would be linked to their reporting 

accuracy as measured by the technical 

agency’s follow-up visits. The 

researchers found that, under the status 

quo system, the third-party auditors 

systematically reported false pollution 

levels just below the applicable 

regulatory standard (also known as 

strategic misreporting) but the 

experimental changes significantly 

improved the truthfulness of the thirdparty auditors’ reports, even for auditors 

operating in both markets who audited 

firms in both the control and treatment 

groups. Also, and importantly, once the 

plants understood that their auditors 

would henceforth be reporting more 

accurately to the State, they reduced 

their actual pollution emissions. 

A pair of 2013 studies of independent 

third-party vehicle emission testing in 

New York also considered factors 

impacting third-party independence. 

This research was based on millions of 

emission test results from thousands of 

test facilities.89 The authors’ findings 

include that there is a relationship 

between testing facilities’ opportunities 

to ‘‘cross sell’’ other products and 

services to car owners and the test 

results. The researchers found that, in 

pursuit of customer loyalty, facilities 

with more cross-selling opportunities 

were incentivized to ‘‘pass’’ cars that 

facilities with fewer cross-selling 

opportunities would not.90

Further evidence suggests that many, 

if not most, of some types of financial 

audits are flawed due to insufficient 

auditor competence, independence, 

and/or lack of public transparency. 

Third-party auditing is a linchpin of 

financial reporting. But when the Public 

Company Accounting Oversight Board 

(PCAOB) released its third annual report 

on audits of broker-dealers registered 

with the Securities and Exchange 

Commission (SEC), the PCAOB found 

audit deficiencies in portions of 70 of 

the 90 audits. Independence problems 

were found in 21 on the 90 audits 

where, contrary to SEC rules, firms 

helped with the bookkeeping or 

preparation of the financial statements 

they audited.91

In 2014, the New York State 

Department of Financial Services 

(NYDFS) fined PricewaterhouseCoopers 

(‘‘PwC’’) Regulatory Advisory Services 

$25 million, suspended it for 24 months 

from accepting consulting engagements 

at regulated financial institutions, and 

required it to implement a series of 

reforms after PwC improperly altered a 

report submitted to regulators on 

sanctions and anti-money laundering 

compliance at Bank of Tokyo Mitsubishi 

(BTMU). Under pressure from BTMU 

executives who received an advance 

draft of its report to review, PwC edited 

the report, and in the final version of the 

report which was sent to regulators, a 

number of key provisions were deleted 

or otherwise significantly edited.92

These recommendations, studies, and 

reports emphasize the importance of 

designing independent third-party 

programs to embody auditor 

independence by building in 

appropriate criteria and processes for 

third-party independence. They identify 

a range of available design elements to 

promote such independence. EPA 

consulted this literature in developing 

today’s proposed independent thirdparty compliance auditing program. 

Industry recognizes the benefits of 

third-party auditing programs and have 

established programs and standards for 

third-party audits for some types of 

operations, many of which are also 

subject to the RMP rule.93 These 

programs also demonstrate industry’s 

understanding that, in appropriate 

circumstances, third-party auditing can 

provide benefits and results above those 

available through self-auditing alone. In 

addition, these programs and standards 

illustrate the range and variety of 

structural design elements that can be, 

and are, employed in third-party 

programs to address auditor competence 

and independence, auditor certification, 

the audit process, auditor reporting, 

recordkeeping, and the public 

disclosure of audit results and 

associated information. 

Some industry groups, such as 

SOCMA and the Center for Offshore 

Safety (COS), require certain types of 

third-party audits for their members. 

SOCMA members are U.S. companies 

engaging in the manufacturing or 

handling of synthetic and organic 

chemicals. Active members have a 

mandatory requirement to participate in 

ChemStewards®, a program intended to 

promote continuous performance 

improvement in batch chemical 

manufacturing. The program offers a 

three-tiered approach to participation. 

Each tier includes a third-party verified 

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13658 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

94SOCMA. 2015. See http://www.socma.com/

ChemStewards/. 

95COS. 2013. See http://

www.centerforoffshoresafety.org/auditInfo.html. 

96ACC. 2013. Responsible Care Product Safety 

Code. http://

responsiblecare.americanchemistry.com/

Responsible-Care-Program-Elements/ProductSafety-Code. 

97ACC. 2013. Responsible Care Process Safety 

Code. http://

responsiblecare.americanchemistry.com/

Responsible-Care-Program-Elements/ProcessSafety-Code. 

98Certification must be renewed every three 

years, and companies can choose one of two 

certification options. RCMS® certification in 

intended to verify that a company has implemented 

the Responsible Care Management System. 

RC14001® certification combines Responsible Care 

and ISO 14001 certification. See http://

responsiblecare.americanchemistry.com/

Responsible-Care-Program-Elements/ManagementSystem-and-Certification and http://

responsiblecare.americanchemistry.com/

Responsible-Care-Program-Elements/ProcessSafety-Code/Responsible-Care-Process-Safety-CodePDF.pdf. 

99API. 2015. PSSAP. http://www.api.org/

certification-programs/process-safety-siteassessment-programs. 

management system.94 The COS strategy 

for promoting safety and protection of 

the environment includes third-party 

auditing and certification of the COS 

member company’s SEMS and 

accreditation of the organizations (Audit 

Service Providers) providing the audit 

services. The third-party audits are 

intended to ensure that COS member 

companies are implementing and 

maintaining SEMS throughout their 

deepwater operations.95

ACC members are required to 

participate in a Responsible Care 

management system described by ACC 

as including, identifying, and acting to 

address potential hazards and risks 

associated with their products, 

processes, distribution and other 

operations. One of Responsible Care’s 

program elements is a product safety 

code consisting of eleven management 

practices through which chemical 

manufacturers are encouraged to 

evaluate, demonstrate and continuously 

improve their product safety 

performance while making information 

about chemical products available to the 

public.96 Responsible Care also has a 

process safety code consisting of seven 

management practices through which 

chemical manufacturers commit to safe 

operation of their chemical processes. 

According to ACC, 

the Responsible Care Process Safety Code 

differs from regulatory standards that, by 

necessity, focus on process safety at an 

individual facility. ACC contends that the 

Process Safety Code is more universal—it 

addresses issues across a division or 

corporation, and includes a company 

commitment to set process safety 

expectations, define accountability for 

process safety performance and allocate 

adequate resources to achieve performance 

expectations.97

The Responsible Care management 

system process includes mandatory 

certification, by auditors described by 

ACC as accredited and independent, to 

ensure the program participants have a 

structure and system in place to 

measure, manage and verify 

performance.98

The API, in collaboration with 

industry partners, has developed a 

Process Safety Site Assessment Program 

(PSSAP). According to API, the program 

is intended to provide for the 

assessment of API member sites’ process 

safety systems by third-party teams of 

independent, industry-qualified process 

safety expert assessors. Using industrydeveloped protocols, API describes the 

process safety site assessments as 

evaluating the quality of written 

programs and effectiveness of field 

implementation for the following 

process safety areas that will be 

evaluated: Process Safety Leadership; 

MOC; Mechanical Integrity (focused on 

fixed equipment); Safe Work Practices; 

Operating Practices; Facility Siting; 

Process Safety Hazards; and HF 

Alkylation/RP 751. The assessment 

teams produce reports that identify 

observations that site personnel should 

consider further but do not provide 

written recommendations.99

1. Applicability of Third-Party Audit 

Requirements 

Currently, there are approximately 

12,000 stationary sources with Program 

2 and/or Program 3 processes. The 

proposed rule would not require all of 

these RMP facilities to use third-party 

auditors when conducting compliance 

audits under subpart C or D. Instead, 

EPA is proposing that owners or 

operators be required to perform thirdparty compliance audits at their 

facilities only under the following two 

conditions. 

Under the first condition, a thirdparty compliance audit would be 

required in lieu of an internal 

compliance audit if there has been an 

accidental release from an RMP facility 

meeting the five-year accident history 

criteria as described in § 68.42(a). The 

existing five-year accident history 

criteria include accidental releases from 

covered processes that resulted in 

deaths, injuries, or significant property 

damage on-site; or deaths, injuries, 

property damage, evacuations, 

sheltering in place, or environmental 

damage offsite. EPA and other 

implementing agencies would learn 

about accidents meeting the five-year 

accident history criteria because such 

accidents must be included within a 

facility’s RMP within six months of the 

accident, in accordance with 

§ 68.195(a). Following such an accident, 

the RMP facility’s owner or operator 

would be required to engage a thirdparty auditor to conduct a compliance 

audit for the source. Pursuant to 

§§ 68.58(h) and 68.79(h), the third-party 

audit and associated report shall be 

completed, and submitted to the 

implementing agency pursuant to 

§ 68.59(c)(3) or § 68.80(c)(3) as follows, 

unless a different timeframe is specified 

by the implementing agency: within 12 

months of when the third-party audit is 

required pursuant to § 68.58(f) and/or 

(g) or § 68.79(f) and/or (g); or within 

three years of completion of the 

previous compliance audit, whichever 

is sooner. 

The second condition is if an 

implementing agency has made a 

determination that a third-party audit at 

an RMP facility is necessary, based on 

information about the facility or a prior 

third-party audit at the facility. 

Information about an RMP facility that 

would lead to such a determination 

could be obtained from sources 

including an inspection of a facility by 

the implementing agency’s 

representatives. Relevant information to 

support the determination may include 

evidence of significant non-compliance 

with the prevention program 

requirements of subpart C or D of part 

68. Significant non-compliance includes 

deficiencies relating to a previous thirdparty audit (i.e., failure to meet the 

competency, independence, or 

impartiality criteria of § 68.59(b) or 

§ 68.80(b)). 

If such a determination is made, the 

implementing agency must provide a 

written notice to the owner or operator 

of the facility stating the reasons for the 

determination that a third-party audit 

must be performed. The proposed rule 

provides for an opportunity for the 

owner or operator to provide 

information and data to the 

implementing agency and to consult 

with the implementing agency about the 

need to perform a third-party audit at 

the facility source before the 

implementing agency representatives 

make a final determination. EPA seeks 

comment on these proposed third-party 

audit applicability requirements. 

2. Alternative Options for Third-Party 

Audit Applicability Criteria 

EPA considered requiring third-party 

compliance audits for a larger universe 

of regulated facilities. We considered 

whether to require third-party 

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compliance audits for all facilities with 

processes subject to Program 3 

requirements at least every three years. 

We also considered whether to require 

third-party compliance audits for all 

facilities with processes subject to 

Program 2 or Program 3 requirements 

every three years. However, because 

EPA views facilities that have had 

accidents or significant non-compliance 

as presenting higher risks to 

surrounding communities, the Agency 

is proposing to limit the applicability of 

this provision to these facilities. 

EPA seeks comments and suggestions 

on the proposed third-party audit 

applicability requirements and whether 

to eliminate or further limit 

applicability of this provision. For 

example, EPA could consider limiting 

the provision to only Program 3 

facilities that have had accidents or to 

only facilities that have had major 

accidents with offsite impacts. EPA 

seeks comments on this alternative 

approach and to define and characterize 

‘‘major accidents with offsite impacts.’’ 

Alternatively, EPA could revise this 

provision to reduce its impact on small 

businesses. When providing suggested 

alternatives, please include suggestions 

for how to improve compliance with 

auditing provisions. 

EPA also seeks comment on whether 

there are other criteria that could 

require RMP facilities to perform thirdparty compliance audits. For example, a 

third-party audit could be required if an 

owner or operator of a facility were to 

learn or know of a condition or 

conditions at its facility suggesting a 

concern for, or potential risk of, future 

accidents. Such conditions would need 

to be objective and reasonably 

ascertainable by the facility owners or 

operators, the implementing agency, 

and the public. 

EPA also seeks comment on the 

benefits and costs of proposing 

additional requirements for third-party 

compliance audits and 

recommendations for appropriate 

conditions suggesting a concern for, or 

potential risk of, future accidents. 

3. Proposed Third-Party Audit 

Requirements 

a. Compliance Audit (§§ 68.58 and 

68.79) 

In order to prevent accidents and 

ensure compliance with part 68 

requirements, EPA is proposing to 

require certain RMP facilities to perform 

third-party audits. The proposed 

changes to §§ 68.58 and 68.79 would 

add this requirement for both Program 

2 and Program 3 processes, under 

certain conditions. 

EPA proposes new paragraphs 

§§ 68.58(f) and 68.79(f) which describe 

when a third-party audit is required. 

Pursuant to these paragraphs, the next 

required compliance audit for an RMP 

facility shall be a third-party audit when 

one of the following conditions apply: 

(1) An accidental release, meeting the 

criteria in § 68.42(a), from a covered 

process has occurred; or (2) an 

implementing agency requires a thirdparty audit based on non-compliance 

with the requirements of this subpart, 

including when a previous third-party 

audit failed to meet the competency, 

independence, or impartiality criteria of 

§ 68.59(b) or § 68.80(b). The purpose is 

to help reduce the risk of future 

accidents by requiring an objective 

auditing process to determine whether 

the owner or operator of the facility is 

effectively complying with the 

prevention program requirements of 

part 68. 

EPA proposes new paragraphs 

§§ 68.58(g) and 68.79(g), Implementing 

agency notification and appeals, which 

describe the procedure for when a thirdparty audit is required by an 

implementing agency. Pursuant to these 

paragraphs, if an implementing agency 

makes a preliminary determination that 

a third-party audit is necessary, the 

implementing agency will provide 

written notice to the facility owner or 

operator stating the reasons for the 

implementing agency’s determination. 

The owner or operator has an 

opportunity to provide information to, 

and to consult with, the implementing 

agency. The implementing agency then 

provides a final determination to the 

owner or operator. If the final 

determination requires a third-party 

audit, the owner or operator shall 

comply with the requirements of § 68.59 

and/or § 68.80, but also may choose to 

appeal the final determination. After the 

appeal is considered, the implementing 

agency will provide a written, final 

decision on the appeal to the owner or 

operator. 

EPA proposes new paragraphs 

§§ 68.58(h) and 68.79(h), which describe 

the schedule for conducting third-party 

audits. The audit and associated report 

shall be completed, and submitted to 

the implementing agency as follows, 

unless a different timeframe is specified 

by the implementing agency: (1) Within 

12 months of when any third-party 

audit is required; or (2) within three 

years of completion of the previous 

compliance audit, whichever is sooner. 

b. Third-Party Audits (§§ 68.59 and 

68.80) 

EPA is proposing new §§ 68.59 and 

68.80, which include the requirements 

for both third-party audits, and thirdparty auditors. 

Sections 68.59(a) and 68.80(a) state 

that owners or operators shall engage a 

third-party auditor to evaluate 

compliance with the provisions of this 

subpart in accordance with the 

requirements of this section when the 

criteria of § 68.58(f) or § 68.79(f) are met. 

EPA is proposing, in §§ 68.59(b) and 

68.80(b), that owners and operators of 

RMP facilities subject to these 

requirements determine and document 

the competency, independence, and 

impartiality of their auditors. These 

sections require that the facility owners 

or operators be responsible for selfdetermining and documenting that their 

third-party auditors are competent and 

independent pursuant to the criteria 

listed in § 68.59(b)(1) through (3) or 

§ 68.80(b)(1) through (3), by requiring 

specific provisions and safeguards in 

their contracts and relationships with 

their third-party auditors. 

EPA seeks comment as to whether the 

requirement that owners and operators 

of RMP facilities be responsible for 

determining and documenting the 

competency, independence, and 

impartiality of their auditors is 

appropriate. 

Alternative Option for Third-Party 

Auditor Selection and Accreditation 

EPA also considered an alternative 

approach, such as requiring auditors to 

have accreditation from a recognized 

auditing body or EPA. Most 

independent third-party regulatory 

compliance verification programs 

require the qualifying third-parties to 

apply for and receive accreditation from 

a qualified external party to ensure 

competency and independence. Such an 

external accreditation approach can add 

rigor to the process of confirming the 

competence and independence of the 

auditors but it also adds procedures and 

costs. Therefore, while EPA is not 

proposing that the Agency itself will 

accredit third-party auditors, EPA seeks 

comment on whether to require 

additional accreditation criteria and 

how to best establish and structure an 

accreditation program within the 

context of the RMP rule. 

Auditor Competence 

Third-party compliance verification 

programs should establish criteria and 

standards for auditor competence. 

Typically, such criteria and standards 

combine specified minimum levels of 

education, knowledge, experience, and 

training. EPA is proposing to require in 

proposed §§ 68.59(b)(1)(i) through (iv) 

and 68.80(b)(1) (i) through (iv) that 

third-party auditors be: 

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13660 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

100For purposes of this requirement, consulting 

does not include performing or participating in 

third-party audits pursuant to § 68.59 or § 68.80. 

• Knowledgeable with the requirements of 

part 68; 

• experienced with the facility type and 

processes being audited and the applicable 

recognized and generally accepted good 

engineering practices (RAGAGEP); 

• trained or certified in proper auditing 

techniques; and 

• be a licensed Professional Engineer (PE), 

or include a licensed PE on the audit team. 

EPA is proposing to require a PE as 

part of the audit team in an attempt to 

identify competent auditors that also 

have an ethical obligation to perform 

unbiased work. EPA seeks comment on 

whether these criteria are appropriate 

and sufficient to ensure third-party 

auditors are competent to perform highquality compliance audits. EPA also 

seeks comment on whether the proposal 

to require that a third-party auditor, or 

a member of the audit team, be a 

licensed PE is appropriate and whether 

there are enough licensed PEs to 

conduct third-party audits for the 

universe of facilities that may become 

subject to these requirements. Are there 

other qualifications who might be 

appropriate for RMP auditors in lieu of 

a PE? 

As part of the SBAR Panel process, 

SERs suggested to the SBAR Panel that 

EPA consider substituting other 

qualified personnel such as: degreed 

chemists, degreed chemical engineers, 

Certified Safety Professionals (CSP), 

Certified Industrial Hygienists (CIH), 

Certified Fire Protection Specialists 

(CFPS), Certified Hazardous Materials 

Managers (CHMM), Certified 

Professional Environmental Auditors 

(CPEA) or Certified Process Safety 

Auditors (CPSA). SERs indicated that 

these credentials also include ethical 

obligations to provide sound 

independent advice. EPA also seeks 

comment regarding potentially relevant 

and applicable consensus standards and 

protocols that might apply to the audits 

and be built and/or incorporated by 

reference into the rules. These may 

include relevant and applicable 

American National Standards Institute, 

American Society for Testing and 

Materials International, European 

Committee for Standardization, 

International Organization for 

Standardization (ISO), and National 

Institute of Standards and Technology 

(NIST) standards. 

Auditor Independence and Impartiality 

Proposed §§ 68.59(b)(2)(i) through (vi) 

and 68.80(b) (2)(i) through (vi) set forth 

the independence and impartiality 

requirements for third-party auditors 

and audit teams. These include that 

third-party auditors: 

• Act impartially when performing all 

third-party audit activities; 

• receive no financial benefit from the 

outcome of the audit, apart from payment for 

the auditing services; 

• not have conducted past research, 

development, design, construction services, 

or consulting for the owner or operator 

within the last 3 years; 100

• not provide other business or consulting 

services to the owner or operator, including 

advice or assistance to implement the 

findings or recommendations in an audit 

report, for a period of at least 3 years 

following submission of the final audit 

report; 

• Ensure all personnel involved in the 

audit sign and date a conflict of interest 

statement; and 

• ensure all personnel involved in the 

audit do not accept future employment with 

the owner or operator of the facility for a 

period of at least 3 years following 

submission of the final audit report. For 

purposes of this requirement, employment 

does not include performing or participating 

in third-party audits pursuant to § 68.59 or 

§ 68.80. 

As part of the SBAR Panel process, 

SERs raised concerns about the extent of 

the independence criteria and suggested 

this might limit the availability of 

qualified auditors. Specifically, SERs 

asked how to apply the independence 

criteria to a company that employs 

personnel who previously worked for or 

otherwise engaged in consulting 

services with the facility. Audit firms 

with personnel who, before working for 

the firm, performed services for the 

owner or operator as an employee, 

contractor or consultant, meet the rule’s 

independence criteria when such 

personnel do not participate on, 

manage, or advise the audit teams. 

Additionally, employees of an auditing 

firm are not prohibited from accepting 

future employment with the owner/

operator as long as they were not 

directly involved in performing or 

managing the audit. 

Another concern raised by SERs is 

ensuring that third-party auditors do not 

pose a terrorism concern or release 

information that could compromise 

facility security or CBI. EPA agrees that 

chemical facility security is a priority 

and seeks comments on the impacts a 

third-party auditor may have on a 

facility’s security and whether there is 

a need to specify security protections or 

whether existing non-disclosure and 

contractual agreements should handle 

this independently. 

EPA seeks comment on whether the 

proposed auditor independence criteria 

are appropriate and sufficient. If not, we 

seek comment on how best to adjust the 

criteria for maximum auditing 

effectiveness and efficiency, including 

comments or suggestions on how to 

provide more flexibility in the auditor 

independence criteria, or whether to 

eliminate the requirement for 

independence. EPA also seeks 

comments on whether the proposed 3- 

year timeframe to separate the audit 

from other business arrangements with 

the owner or operator is appropriate. 

Furthermore, EPA is requesting 

comment on whether the proposed 

auditor independence criteria should be 

modified so as to not exclude a retired 

employee from auditing a former 

employer’s facility if the employee’s 

sole continuing financial attachment to 

the owner or operator is an employerfinanced or employer-managed 

retirement plan. While EPA is 

concerned such attachments could 

provide the auditor with incentives to 

ensure the facilities they audit are not 

financially negatively impacted by their 

audits, it could also, as a practical 

matter, limit the available pool of 

otherwise qualified and competent 

auditors. EPA seeks comment on the 

potential magnitude of such incentives 

and how to address this concern in the 

rule. 

Finally, EPA requests comment on 

whether to propose streamlined 

independence criteria for small facilities 

(i.e., based on the size of the facility) 

including comments or suggestions on 

how to streamline the requirements. 

Auditor Policies and Procedures 

Proposed §§ 68.59(b)(3) and 

68.80(b)(3), if finalized, would require 

that owner or operators of RMP 

regulated facilities ensure that thirdparty auditors have written policies and 

procedures to ensure that all personnel 

comply with the competency, 

independence, and impartiality 

requirements of these sections. EPA 

seeks comment on these proposed 

provisions. 

Alternative Options for Auditor 

Qualifications 

EPA considered including alternative 

options in the proposed rule for owners 

and operators of stationary sources who 

cannot, despite best efforts, find a thirdparty auditor meeting all of the 

independence criteria. Two specific 

options were considered. 

Under the first option, owners and 

operators of RMP facilities, in addition 

to self-selecting their third-party 

auditors pursuant to the specified 

independence criteria, would also selfdetermine when it is impossible or 

impractical to hire such auditors and 

self-select their alternative auditors. 

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101CARB. July 23, 2015. Verification of GHG 

Emissions Data Reports. http://www.arb.ca.gov/cc/

reporting/ghg-ver/ghg-ver.htm. 

102Compare proposed 40 CFR 770.7(a)(3)(iv) of 

EPA’s proposed Toxic Substances Control Act 

(TSCA) formaldehyde in wood products third-party 

program proposed rule: ‘‘(3) Responsibilities. EPA 

recognized Laboratory ABs must fulfill the 

requirements in paragraphs (b)(3)(i) through (xiii) of 

this section: . . . (iv) Upon request, allow EPA 

representatives to accompany its assessors during 

an on-site assessment to observe the audit of a 

TPC.’’ Formaldehyde; Third-Party Certification 

Framework for the Formaldehyde Standards for 

Composite Wood Products, 78 FR 34796, June 10, 

2013. http://www.gpo.gov/fdsys/pkg/FR-2013-06- 

10/pdf/2013-13254.pdf. 

Under this option, the owner or operator 

would be required to inform the 

implementing agency and the public of 

the alternative auditors, which could be 

accomplished by providing and/or 

publicly posting information on the 

alternative auditors and how they were 

selected. The information could 

describe the steps taken to identify 

auditors meeting all of the rule’s 

independence criteria, the identities and 

competencies of the alternative auditors, 

the regulatory independence criteria 

that the alternative auditors were unable 

to meet and why, and any steps taken 

to address or limit the impacts of the 

auditors’ lack of independence on the 

outcomes and reliability of their audits. 

Under the second option, owners and 

operators who, despite best efforts, 

could not find auditors meeting all the 

rule’s independence criteria would be 

authorized to identify specific 

alternative auditors to the implementing 

agency and petition it for approval to 

engage those auditors. This approach 

would include a requirement for 

auditors not fully satisfying the rule’s 

independence criteria to prepare and 

implement Conflict of Interest 

Mitigation Plans similar to those 

required by the California Air Resources 

Board (CARB) under its Regulation for 

the Mandatory Reporting of GHG 

Emissions,101 with associated reporting, 

recordkeeping, and due process 

procedures. Under this option, if, 

despite best efforts, an owner or 

operator cannot find a third-party 

auditor meeting all of the criteria in 

§ 68.59(b) or § 68.80(b), the owner or 

operator would be required to request 

approval, in writing, to the 

implementing agency to use an 

alternative third-party auditor. The 

implementing agency would then be 

required, within a specified timeframe, 

to approve or disapprove the proposed 

request and provide notice of its 

decision to the owner or operator. The 

owner or operator’s request to use an 

alternative third-party auditor would 

include a description of the owner or 

operator’s efforts to find an independent 

third-party auditor, identification of the 

proposed alternative third-party auditor 

(including the same information 

required pursuant to this rule for a fully 

qualified auditor), identification of the 

specific independence requirements the 

proposed alternative third-party auditor 

meets and does not meet, and an 

organizational chart of the proposed 

alternative third-party auditor and 

related entities with brief descriptions 

of the primary nature of the work each 

performs. 

The owner or operator’s request to use 

an identified alternative third-party 

auditor would also include a Conflict of 

Interest Mitigation Plan demonstrating 

the steps the auditor would take to 

mitigate its inability to fully meet the 

independence requirements in 

§ 68.59(b) or § 68.80(b). These steps 

could include ensuring that any 

individual or organizational component 

of the auditor with conflicts of interest 

or impartiality concerns is removed 

from the audit and/or isolated from the 

individuals or organizational 

component conducting the audit, an 

explanation of how and why the amount 

and nature of work previously 

performed should not be deemed to 

undermine the auditing team’s 

credibility and lack of bias, and 

descriptions of any other adjustments or 

circumstances taken to address actual or 

potential sources for conflicts of 

interest, with an appropriate 

certification signed and dated by a 

senior owner or operator official. 

If, pursuant to this option, the 

implementing agency approves the 

alternative third-party auditor, it would 

provide written notice to the owner or 

operator and, upon receipt of the 

approval, the owner or operator may 

engage the alternative auditor to 

conduct the audit under this section. If 

the implementing agency does not 

approve the identified alternative 

auditor, the implementing agency 

would provide a written notice to the 

owner or operator stating the reasons for 

the decision. Within a specified 

timeframe after receipt of such written 

notice, the owner or operator would be 

required to submit the name of another 

proposed auditor for the implementing 

agency’s consideration. In the 

alternative, the owner or operator would 

be able to appeal the implementing 

agency’s decision pursuant to the 

applicable agency’s processes. 

EPA considered but did not propose 

other third-party auditor independence 

safeguards than those included in 

proposed § 68.59(b)(2) or § 68.80(b)(2). 

Examples include mandating the 

random assignment of auditors, paying 

them from a central pool of auditing 

funds, or requiring mandatory periodic 

auditor rotation after a specified period 

of time. Nor has EPA proposed 

provisions requiring owners and 

operators to provide advance notice to 

the implementing agency of third-party 

auditor site visits to enable the 

implementing agency to accompany and 

observe the third-party auditors on such 

visits.102 EPA seeks comment on these 

alternative approaches. 

EPA further seeks comment on 

whether there are any other alternative 

approaches to third-party auditor 

qualifications EPA should consider 

prior to issuing a final action. For 

example, EPA could, in the final rule, 

allow for audits to be performed by 

auditors with some potential conflicts of 

interest (e.g., employees of parent 

company, affiliates, vendors/contractors 

that participated in developing the 

facility’s RMP, etc.) and/or allow a 

person employed at the facility who is 

a registered PE to conduct the audit. If 

such approaches are adopted in the final 

rule, the Agency could seek to place 

appropriate restrictions on auditors and 

auditing using third parties with less 

than full independence from their client 

facilities in an effort to increase 

confidence that the auditors will act 

appropriately when performing their 

activities under the RMP rule. The 

purposes of such provisions could 

include ensuring that auditor personnel 

who assess a facility’s compliance with 

the RMP rule do not receive any 

financial benefit from the outcome of 

their auditing decisions, apart from their 

basic salaries or remuneration for 

having conducted the audits. EPA also 

specifically requests commenters to 

identify any supportive literature or 

data as EPA is presently not aware of 

literature or data showing that such 

provisions are effective in counteracting 

biases due to lack of impartiality or 

independence. 

There may be other options, in 

addition to the approaches taken in the 

proposed third-party compliance 

auditing program or identified above, 

that can also increase owner or operator 

flexibility without compromising audit 

accuracy. EPA seeks comment on such 

alternative auditor/auditing approaches. 

If non-independent or limited 

independence third-party auditing, 

second-party auditing, or enhanced selfauditing is authorized, EPA seeks 

comment on how best to structure such 

auditing to maximize auditor 

independence and accurate auditing 

outcomes given the lack of complete 

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13662 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

103U.S District Court of DC November 11, 2014. 

Decree of Consent U.S California Air Resources 

Board v. Hyundai et al. http://www2.epa.gov/sites/ 

production/files/2014-11/documents/hyundai-kiacd.pdf. 

independence. EPA also seeks 

suggestions for what steps a facility 

should be required to take if third-party 

auditors who meet the proposed 

independence and competence criteria 

are not available. If RMP facilities are 

allowed, in the final rule, to use 

enhanced self-auditing in lieu of 

independent third-party auditing, 

examples of the types of restrictions that 

could be placed on such self-auditing to 

potentially improve auditor impartiality 

and auditing outcomes appear in the 

U.S. and CARB v. Hyundai Motor 

Company, et al. Consent Decree.103

Third-Party Audit Report 

Proposed §§ 68.59(c) and 68.80(c), if 

finalized, would require owners or 

operators of stationary sources to ensure 

that their third-party auditors prepare 

and submit audit reports. Proposed 

§§ 68.59(c)(1) and 68.80(c)(1), if 

finalized, would include requirements 

for the scope and content of these 

reports, including a statement to be 

signed by the third-party auditor 

certifying that the third-party audit was 

performed in accordance with the 

requirements of subpart C or D. 

Proposed §§ 68.59(c)(1) and 68.80(c)(1), 

if finalized, would also require that the 

final third-party audit reports must 

identify any adjustments made by the 

third-party auditor to any draft thirdparty audit reports provided to the 

owners or operators for their review or 

comment. EPA believes that these 

provisions are important to minimize 

third-party compliance audit bias. EPA’s 

intent in allowing for owners and 

operators to receive and comment on 

draft third-party compliance audit 

reports with these additional 

requirements is to promote factual and 

informative final third-party compliance 

audit reports without compromising 

their accuracy and independence. EPA 

seeks comment, however, on whether 

we should also require draft third-party 

compliance audit reports to be 

submitted to the implementing agency 

at the same time, or before, such reports 

are provided to the owners and 

operators and whether such a 

requirement would be further effective 

in minimizing potential third-party 

compliance audit bias. 

Proposed §§ 68.59(c)(2) and 

68.80(c)(2), if finalized, would include 

requirements for the retention of reports 

and records by the third-party auditors. 

Proposed §§ 68.59(c)(3) and 68.80(c)(3), 

if finalized, would require the audit 

report to be submitted to the 

implementing agency at the same time, 

or before, it is provided it to the owner 

or operator. Finally, EPA is proposing in 

§§ 68.59(c)(4) and 68.80(c)(4) that the 

audit report and related records cannot 

be claimed as attorney-client 

communications or as attorney work 

products even if the auditors are 

themselves, or are managed by or report 

to, attorneys. With respect to the 

attorney work product privilege, the 

audit report and related records are 

produced to document compliance 

rather than in anticipation of litigation, 

just like a monitoring report required by 

an air emission rule would not be 

produced in anticipation of litigation. 

With respect to the attorney-client 

communication privilege, the thirdparty auditor is arms-length and 

independent of the stationary source 

being audited. The auditor lacks an 

attorney-client relationship with 

counsel for the audited entity. 

Therefore, neither the audit report nor 

the records related to the audit report 

provided to the third-party auditor are 

attorney-client privileged (including 

documents originally prepared with 

assistance or under the direction of the 

audited source’s attorney). EPA seeks 

comment on these proposed 

requirements including any legal 

concerns that may result from the 

provision that limits attorney-related 

privileges. 

Other Owner or Operator Obligations 

Proposed §§ 68.59(d)(1) and 

68.80(d)(1), if finalized, would require 

owners or operators, as soon as possible, 

but no later than 90 days after receiving 

the final audit report, to determine an 

appropriate response to each of the 

findings in the audit report, and develop 

and provide to the implementing agency 

a findings response report. This findings 

response report would include: A copy 

of the final audit report; an appropriate 

response to each of the audit report 

findings; a schedule for promptly 

addressing deficiencies; and a 

statement, signed and dated by a senior 

corporate officer, certifying that 

appropriate responses to the findings in 

the audit report have been identified 

and deficiencies were corrected, or are 

being corrected, consistent with the 

requirements of subpart C or D of 40 

CFR part 68. The requirement to 

determine appropriate responses to 

findings is similar to existing 

compliance audit requirements that 

require the owner or operator to 

‘‘promptly determine and document an 

appropriate response to each of the 

findings of the compliance audit.’’ EPA 

seeks comment on these proposed 

requirements and whether we should 

provide flexibility on the timeframe for 

developing the findings response report. 

EPA also considered prescribing a 

timeframe within which deficiencies 

must be corrected, rather than rely on 

‘‘promptly’’ address deficiencies. 

However, EPA was unable to identify an 

appropriate timeframe given the variety 

of possible site-specific actions that an 

owner or operator may take to address 

audit findings. EPA seeks comment on 

whether to keep this approach or 

substitute a specific number of days 

and, if the latter, what is a reasonable 

time period to specify and why. 

Proposed §§ 68.59(d)(2) and 

68.80(d)(2), if finalized, would require 

the owner or operator to implement the 

schedule and address deficiencies 

identified in the audit findings response 

report, and document the action taken 

to address each deficiency, along with 

the date completed. Proposed 

§§ 68.59(d)(3) and 68.80(d)(3), if 

finalized, would require the owner or 

operator to provide a copy of documents 

required under paragraphs (d)(1) and 

(d)(2) to the owner or operator’s audit 

committee of the Board of Directors, or 

other comparable committee, if one 

exists. EPA seeks comment on these 

proposed requirements. 

Proposed §§ 68.59(e) and 68.80(e), if 

finalized, would require the owner or 

operator to retain records at the 

stationary source, including: the two 

most recent third-party audit reports, 

related findings response reports, 

documentation of actions taken to 

address deficiencies, and related 

records; and copies of all draft thirdparty audit reports. The owner or 

operator shall provide draft third-party 

audit reports, or other documents, to the 

implementing agency upon request. For 

proposed § 68.59(e) (Program 2 thirdparty audit recordkeeping provision), 

these requirements, if finalized, would 

not apply to any documents that are 

more than five years old (for Program 3 

third-party audit records, as for the 

existing Program 3 compliance audits, 

the owner or operator would be required 

to retain records to support the two 

most recent audits). EPA seeks comment 

on these proposed requirements. 

C. Safer Technology and Alternatives 

Analysis (STAA) 

1. Meaning of STAA 

Safer technology and alternatives refer 

to risk reduction strategies developed 

through analysis using a hierarchy of 

process risk management strategies (or 

hierarchy of controls), which consists of 

those which are inherent, passive, 

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104CCPS. 2009. Inherently Safer Chemical 

Processes: A Life Cycle Approach, 2nd ed., 

American Institute of Chemical Engineers, CCPS 

New York, Wiley. 105CCPS. July 2010. Final Report: Definition for 

IST in Production, Transportation, Storage, and 

Use. Prepared by: CCPS, American Institute of 

Chemical Engineers, New York, New York for 

Chemical Security Analysis Center, Science & 

Technology Directorate, U.S. DHS Aberdeen 

Proving Ground, MD. http://www.aiche.org/ccps/

documents/definition-inherently-safer-technology. 

106EPA, Office of Solid Waste and Emergency 

Response and Office of Enforcement and 

Compliance Assurance. May 2000. Guidance for 

Implementation of the General Duty Clause, CAA 

Section 112(r)(1). EPA 550–B00–002. http://

www2.epa.gov/rmp/guidance-implementationgeneral-duty-clause-clean-air-act-section-112r. 

active, and procedural.104 This 

philosophy can be applied initially to 

all design phases and then continuously 

throughout a process’s life cycle by 

identifying and assessing hazards and 

developing a control strategy. STAA 

includes concepts known as IST or 

inherently safer design (ISD), which are 

those strategies that permanently reduce 

or eliminate the hazards associated with 

materials and operations used in a 

process. IST, ISD, and inherent safety 

are interchangeable terms that are used 

in the literature and in the field. The 

four major inherently safer strategies 

are: 

• Minimization–using smaller quantities of 

hazardous substances; 

• Substitution–replacing a material with a 

less hazardous substance; 

• Moderation–using less hazardous 

conditions or a less hazardous form, or 

designing facilities that minimize the impact 

of a release of hazardous material or energy; 

and 

• Simplification–design facilities to 

eliminate unnecessary complexity and make 

operating errors less likely. 

The hierarchy establishes that 

inherently safer options (e.g., 

minimization, substitution, moderation, 

and simplification) are preferable and 

occupy the top of the hierarchy. Passive 

strategies (process and equipment 

design) are preferable to active ones 

such as engineering controls (automatic 

digital or mechanical system controls), 

which are preferable to procedures or 

administrative options (controls 

requiring human action). However, risk 

reduction of a process hazard may also 

be achieved by using a combination of 

strategies, known as layers of protection. 

EPA is proposing to require analysis of 

safer technology and alternatives as part 

of the PHA for a subset of Program 3 

processes. 

2. Inherently Safer Technology (IST) 

A July 2010 DHS report prepared by 

the CCPS described IST as a philosophy 

and an iterative process, including 

eliminating a hazard, reducing a hazard, 

substituting a less hazardous material, 

using less hazardous process conditions, 

and designing a process to reduce the 

potential for, or consequences of, 

human error, equipment failure, or 

intentional harm.105 It stated that there 

is no clear boundary between IST and 

passive, active, and procedural risk 

management strategies. CCPS further 

stated that ISTs are relative and can 

only be described as inherently safer 

when compared to a different 

technology, including a description of 

the hazard or set of hazards being 

considered, their location, and the 

potentially affected population. Because 

an option may be inherently safer with 

regard to some hazards and inherently 

less safe with regard to others, the 

decision process must consider the 

entire life cycle, the full spectrum of 

hazards and risks, and the potential for 

transfer of risk from one impacted 

population to another. This report also 

noted that there is currently no 

consensus on either a quantification 

method for IST or a scientific 

assessment method for evaluation of IST 

options. The report states that risk can 

be reduced by many methods, including 

ISD, but those methods must include 

the full spectrum of risk reduction 

approaches (passive, active, and 

procedural risk management systems). 

Few technologies will be inherently 

safer with respect to all hazards, and 

other approaches will usually be 

required to manage the full range of 

hazards and risks. As an example, the 

report points out that an IST with 

respect to a catastrophic release hazard 

may conflict with methods to minimize 

other hazards, such as theft or diversion 

of materials, contamination of product, 

or degradation of infrastructure. It may 

not address other hazards at all, or it 

may create new hazards. 

3. EPA’s Past Approach to STAA 

The RMP rule already embodies most 

aspects of the hierarchy of controls. For 

example, § 68.67 (PHA) requires owners 

and operators of Program 3 processes to 

address process hazards using 

engineering and administrative controls. 

In most cases, the rule’s requirements 

for compliance with RAGAGEP should 

ensure that equipment and processes are 

properly designed, using appropriate 

passive, active, and procedural controls. 

The RMP rule also encourages passive 

and active mitigation for releases by 

allowing a source to account for such 

mitigation techniques in its OCA (see 

§§ 68.25 and 68.28). However, the rule 

does not contain any explicit 

requirement for owners and operators to 

address the first tier of the hierarchy of 

controls—i.e. inherent safety. 

Although the current rule does not 

include IST requirements, EPA has 

recognized the importance of 

considering IST for improving process 

safety. The preamble of the 1995 

supplemental NPRM for the Risk 

Management Program recognized ‘‘that 

there are many opportunities to make 

processes inherently safer without large 

scale adoption of new technologies (60 

FR 13533, March 13, 1995). EPA also 

noted in the preamble to the 1996 final 

RMP rule, ‘‘Application of good PHA 

techniques often reveals opportunities 

for continuous improvement of existing 

processes and operations without a 

separate analysis of alternatives’’ (61 FR 

31674, June 20, 1996). The structure of 

the applicability provisions of the RMP 

rule, with TQs, encourages minimizing 

the presence of regulated substances in 

processes and encourages sources to 

continue to examine and adopt viable 

alternative processing technologies, 

system safeguards, or process 

modifications to make new and existing 

processes and operations inherently 

safer. EPA’s existing guidance on the 

‘‘general duty clause’’ in CAA section 

112(r)(1) states that, ‘‘The owners and 

operators should try to substitute less 

hazardous substances for extremely 

hazardous substances or minimize 

inventories when possible. This is 

usually the most effective way to 

prevent accidents and should be the 

priority of a prevention program.’’ 106

In the 1996 final RMP rule, EPA 

decided not to mandate IST analysis, 

stating that ‘‘EPA does not believe that 

a requirement that owners or operators 

conduct searches or analyses of 

alternative process technologies for new 

or existing processes will produce 

significant additional benefits.’’ (61 FR 

31688, June 20, 1996). However, since 

1996 EPA has seen that advances in 

ISTs and safer alternatives are becoming 

more widely available and are being 

adopted by some companies. Voluntary 

implementation of some ISTs has been 

identified through surveys and studies 

and potential opportunities have been 

identified through EPA inspections and 

CSB incident investigations. EPA now 

believes that there is a benefit in 

requiring that some facilities evaluate 

whether they can improve risk 

management of current hazards through 

potential implementation of ISTs or risk 

management measures that are more 

robust and reliable than ones currently 

in use at the facility. While EPA 

believes that facilities should look for 

additional opportunities to increase 

safety, we believe that the facility 

owners or operators are in the best 

position to identify which changes are 

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107EPA News Release. January 31, 2012. South 

San Francisco Food Processing Factory Will Pay 

Nearly $700,000 in Penalties, Spend $6 Million to 

Update Refrigeration System Safety. http://

yosemite.epa.gov/opa/admpress.nsf/0/

1c6b8ee238fd17d185257996005b892f. 

108EPA News Release. August 14, 2013. Abilene 

Products Co., Inc., Agrees to $90,660 Settlement for 

Violations of CAA at Abilene, Kan., Fertilizer 

Facility. http://yosemite.epa.gov/opa/admpress.nsf/ 

0/8BB676093B7826FF85257BC7006B3E4C. 

109EPA News Release. October 1, 2012. 

Settlement with Suiza Dairy Corporation for 

Violations at facilities in Puerto Rico will make 

facilities safer, benefit nearby communities. http:// 

yosemite.epa.gov/opa/admpress.nsf/0/

319D803456BF7B0885257A8A005A4238. 

110EPA Region 1. January 20, 2014. Consent 

Agreement and Final Order—In the Matter of: Metal 

Finishing Technologies, LLC Docket Number: CAA01-2013-0073. http://yosemite.epa.gov/OA/RHC/

EPAAdmin.nsf/Filings/

3A95FA64BDE7026C85257C8600214551/$File/

CAFO%20CAA-01-2013-0073.pdf. 

111EPA Region 1. September 30, 2013. 

Administrative Complaint—In the Matter of: Metal 

Finishing Technologies, LLC Docket Number: CAA– 

01–2013–0073. http://yosemite.epa.gov/OA/RHC/

EPAAdmin.nsf/Filings/

1BE4A3485C3E1E6B85257C1C0021490D/$File/

CAA-01-2013-0073%20Complaint.pdf. 

112Chemical Facility Safety and Security Working 

Group. May 2014. Executive Order 13650 Report to 

the President—Actions to Improve Chemical 

Facility Safety and Security—A Shared 

Commitment. EPA, the Department of Labor (DOL), 

DHS, the Department of Justice (DOJ), the 

Department of Agriculture (DOA), and the 

Department of Transportation. Washington, DC. 

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

final_chemical_eo_status_report.pdf. 

113 Greenpeace et al. July 25, 2012. Petition to 

Prevent Chemical Disasters from Rick Hind of 

Greenpeace, Richard Moore of Los Jardines Institute 

and Scott Nelson of Public Citizen sent to EPA 

Administrator Lisa Jackson, EPA, Washington, DC, 

www.documentcloud.org/documents/404584- 

petition-to-epa-to-prevent-chem-disastersfiled.html. 

114This not intended to specifically reference the 

extremely hazardous substances listed under § 302 

of EPCRA. Section 112(r)(1) of the CAA provides a 

purpose and general duty to prevent the accidental 

release and to minimize the consequence of any 

release of any regulated substances promulgated by 

EPA under § 112(r)(3) (40 CFR part 130) and for 

‘‘any other extremely hazardous substance.’’ 

Although the term ‘‘any other extremely hazardous 

substance’’ is not defined, the legislative history of 

the 1990 CAAA indicate 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. 

115Petitioners are referring to an accident at the 

CITGO Refinery in Corpus Christi, Texas. For more 

information on this accident, see CSB. December 9, 

2009. CITGO Refinery HF Release and Fire, Corpus 

Christi, Texas. Final Report, Urgent 

Recommendation. http://www.csb.gov/citgorefinery-hydrofluoric-acid-release-and-fire/. 

116CSB. January 2011. Investigation Report: 

Pesticide Chemical Runaway Reaction Pressure 

Vessel Explosion, Bayer CropScience, LP, Institute, 

West Virginia, August 28, 2008. Report No. 2008– 

feasible to implement for their 

particular process. As a result, EPA is 

not proposing to require that a facility 

implement a particular technology or 

design. 

In addition, in CAA section 112(r) 

enforcement cases, facility owners or 

operators have occasionally entered into 

consent agreements involving 

implementation of safer alternatives. For 

example, a food processor in San 

Francisco had a release of anhydrous 

ammonia from its refrigeration system 

in 2009, resulting in evacuation of the 

facility and several neighboring 

businesses and hospitalization of 17 

people. As part of a consent decree, the 

facility owner or operator converted the 

anhydrous ammonia refrigeration 

system to a safer technology that uses 

glycol and less ammonia, along with 

implementing other safety measures and 

system upgrades.107 Following 

community complaints and a 2011 EPA 

inspection, the owner or operator of a 

fertilizer facility chose to remove a total 

of 99,000 pounds of anhydrous 

ammonia from the facility, thus 

reducing the risk to the surrounding 

population.108 In another case, the 

owner or operator of a dairy company 

agreed to reduce the anhydrous 

ammonia inventory and improve release 

detection equipment at two facilities 

after two anhydrous ammonia releases 

in 2005 and 2007 (the latter causing 

nine people to spend a night in the 

hospital) and after EPA identified CAA 

violations.109 The owner or operator of 

a Connecticut metal finishing facility 

that used chlorine gas for treatment of 

cyanide waste agreed to implement a 

project to eliminate the use of chlorine 

by substituting liquid sodium 

hypochlorite after EPA found violations 

of accident prevention regulations.110 A 

release from one of the chlorine 

cylinders at the facility could 

potentially have impacted offsite public 

receptors in a densely populated 

area.111 Thus, EPA’s historic approach 

to STAA under CAA section 112(r) has 

resulted in chemical plant operators 

introducing safer technology and 

alternatives through implementation of 

existing rule provisions that address 

most of the hierarchy of controls, but 

the Agency has not mandated the use or 

analysis of IST alternatives. 

4. Public Input on STAA 

Public feedback and input to the 

Working Group established to oversee 

Executive Order 13650, showed there 

was broad agreement among facility 

owners and operators, plant workers, 

community members, and 

environmental and union organizations 

of the benefits of implementing safer 

alternatives where feasible. There was, 

however, no consensus about the role of 

government in the implementation of 

safer technologies and alternatives. 

Industry representatives are wary about 

process design and operational 

decisions, including choices of IST, 

being imposed through regulations. 

Process design and operational 

decisions are technically complex and 

often difficult to regulate. Conversely, 

many labor and environmental justice 

representatives believe the Federal 

government should have a larger role in 

encouraging IST, with particular 

emphasis on the opportunity to reduce 

the vulnerability of residents and 

workers from incidents.112

a. Pending Petition on IST 

In July of 2012, a coalition 

representing 54 organizations and 

individuals petitioned EPA to use its 

rulemaking authority under CAA 

section 112(r)(7)(A), ‘‘to require the use 

of IST, where feasible, by facilities that 

use or store hazardous chemicals.’’ The 

petitioners also requested that pending 

completion of such rulemaking, that 

EPA should: 

revise its guidance concerning the 

enforcement of the CAA general duty clause, 

section 112(r)(1), 42 U.S.C. 7412(r)(1), to 

make clear that the duty to prevent releases 

of extremely hazardous substances includes 

the use, where feasible, of safer technologies 

to minimize the presence and possible 

release of hazardous chemicals.113

The petitioners stated that many 

Americans remain at risk of injury or 

death from the unforeseen release of 

harmful chemicals from nearby 

industrial parks, water treatment plants, 

etc., and that the DHS CFATS, which 

impose security measures on facilities 

presenting a high risk of vulnerability to 

releases of hazardous substances, do not 

cover water treatment facilities, many of 

which use and store significant 

quantities of chlorine gas. 

The petitioners cited specific threats 

or accidents as examples of risks that, in 

their view, should have been addressed 

by taking steps to eliminate or minimize 

extremely hazardous substances 114

where feasible. Examples they cited 

include a 2009 explosion at a refinery in 

Corpus Christi, Texas, that resulted in 

the release of more than a ton of 

hydrogen fluoride, with a much larger 

release being narrowly avoided.115 A 

2008 explosion and fire at a Bayer 

CropScience facility in West Virginia 

narrowly missed causing a breach in 

piping on the top of an aboveground 

tank of methyl isocyanate (MIC), which 

the petitioners claimed, if breached, 

would have resulted in a deadly release 

of the same chemical responsible for the 

Bhopal, India disaster.116 They also 

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08–I–WV, pp. 88–89, http://www.csb.gov/assets/1/

19/Bayer_Report_Final.pdf. 

117CSB. July 9, 2008. Investigation Report: LPG 

Fire at Valero-McKee Refinery, Sunray, Texas, 

February 16, 2007. Report No. 2007–05–I–TX. 

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

CSBFinalReportValeroSunray.pdf. 

118Orum, Paul and Rushing, Reece. March 2, 

2010. Leading Water Utilities Secure Their 

Chemicals. Center for American Progress, 

Washington, DC. https://

www.americanprogress.org/issues/security/news/

2010/03/02/7538/leading-water-utilities-securetheir-chemicals/. 

119M. McCoy. November 9, 2009. Clorox to Stop 

Using Chlorine. Chemical & Engineering 

News.http://cen.acs.org/articles/87/i45/CloroxStop-Using-Chlorine.html. 

120Morris, J. and Hamby, C. May 19, 2014. Use 

of toxic acid puts millions at risk. Center for Public 

Integrity. Washington, DC.http://

www.publicintegrity.org/2011/02/24/2118/usetoxic-acid-puts-millions-risk. 

121NAS. 2012. Summary—The Use and Storage of 

MIC at Bayer CropScience. pp. 3, 7. http://

dels.nas.edu/resources/static-assets/materialsbased-on-reports/reports-in-brief/MIC-SummaryFinal.pdf. 

122Paul R. Amyotte, Dustin K. MacDonald, Faisal 

I. Khan. September 2011. An analysis of CSB 

investigation reports concerning the hierarchy of 

controls. Process Safety Progress. Volume 30, Issue 

3, pp. 261–265. http://onlinelibrary.wiley.com/doi/ 

10.1002/prs.10461/abstract. 

123CSB. May 2014. Investigation Report: 

Catastrophic Rupture of Heat Exchanger, Tesoro 

Anacortes Refinery, Anacortes, Washington, April 

2, 2010. Report 2010–08–I–WA. http://

www.csb.gov/assets/1/7/Tesoro_Anacortes_2014- 

May-01.pdf. 

124CSB. January 2014. Regulatory Report: 

Chevron Richmond Refinery Pipe Rupture and Fire, 

Chevron Richmond Refinery #4 Crude Unit, 

Richmond, California, August 6, 2012. Report No. 

2012–03–I–CA. http://www.csb.gov/assets/1/19/

CSB_Chevron_Richmond_Refinery_Regulatory_

Report.pdf. 125NJDEP. March 29, 2012. NJDEP Title 7, 

Chapter 31 TCPA Program Consolidated Rule 

Document. Pages 17, 66 –68. http://www.state.nj.us/ 

dep/rpp/brp/tcpa/downloads/conrulerev9_

fonts.pdf. 126NJDEP uses the term ‘‘Extraordinarily 

Hazardous Substance’’ to describe the substances 

that are subject to the NJ TCPA. 

127NJDEP, Bureau of Release Prevention. January 

15, 2015. Guidance for TCPA, IST Review, Rev. 1. 

http://www.nj.gov/dep/rpp/brp/tcpa/downloads/

IST_guidance.pdf. 

identified a 2007 propane explosion and 

fire at a refinery in Texas that resulted 

in the release of nearly three tons of 

chlorine gas, with deaths and injuries 

avoided only by prompt evacuation of 

workers. The CSB, which reported the 

chlorine release as 5,332 pounds, 

recommended the refinery replace 

chlorine used as a biocide in cooling 

water treatment with inherently safer 

materials, such as sodium hypochlorite, 

at all its refineries.117 The petitioners 

also cited several examples where 

readily available IST approaches have 

already been used, such as substitution 

of liquid bleach or ultraviolet light for 

chlorine in water disinfection 118 119 and 

the use of alternatives to replace HF in 

gasoline refining.120

b. National Academy of Sciences (NAS) 

and CSB Investigation Findings 

A 2012 report from the NAS that 

examined the 2008 Bayer CropScience 

accident in West Virginia and 

community concerns surrounding MIC 

(and other highly toxic materials), found 

that inherently safer process 

assessments can be valuable 

components of PSM that can help 

facility personnel consider the full range 

of options in process design.121 The 

NAS report found that while Bayer and 

previous owners of the site incorporated 

some considerations of IST, these 

companies ‘‘did not perform systematic 

and complete inherently safer process 

assessments on the processes for 

manufacturing MIC or the carbamate 

pesticides at the Institute site.’’ Thus, 

large amounts of MIC, phosgene, and 

other toxic materials were produced or 

stored at the site for decades. 

The NAS also found that industry as 

a whole lacks a common understanding 

of what is needed to identify inherently 

safer processes and accurately quantify 

their benefits, including the potential 

for reduced emergency preparedness 

costs. The NAS panel noted that the 

goal of ISD is not only to prevent an 

accident, but also to reduce the 

consequences of an accident should one 

occur, thus allowing emergency 

preparedness planners to focus on more 

readily manageable scenarios. 

NAS found that inherently safer 

process assessments will not always 

result in a clear, well-defined, and 

feasible path forward. Although one 

process alternative may be inherently 

safer with respect to one hazard— 

toxicity of byproducts, for example—the 

process may present other hazards, such 

as an increased risk of fire or more 

severe environmental impacts. Choosing 

between options for process design 

involves considering a series of tradeoffs 

and developing appropriate 

combinations of inherent, passive, 

active, and procedural safety systems to 

manage all hazards. 

A 2011 analysis of 63 CSB accident 

investigation reports, studies and 

bulletins by Canadian university 

researchers identified over 200 

examples of recommendations for risk 

reduction measures from the hierarchy 

of controls that apply to the prevention 

of accidents or consequence mitigation. 

Thirty-six percent of the examples 

involved inherent safety, 8% involved 

passive engineered safety, 14% involved 

active engineered safety and 42% 

involved procedural safety. ISD items 

were observed to be equally split among 

the four primary ISD principles of 

minimization, substitution, moderation 

and simplification.122

The CSB has released reports for two 

recent accidents that the Board 

indicated could have been avoided if 

safer technologies had been employed. 

CSB found that the use of a safer 

material, such as high-chromium steel, 

would have prevented the accelerated 

corrosion and failure of carbon steel 

involved in the equipment rupture at 

the Tesoro Refinery in Anacortes, 

Washington, in 2010, which resulted in 

an explosion and fire that killed seven 

employees.123 One recommendation 

from this CSB accident investigation 

was that EPA should revise the RMP 

rule to require the documented use of 

inherently safer systems analysis and 

the hierarchy of controls to the greatest 

extent feasible when facilities are 

establishing safeguards for identified 

process hazards. CSB also cited the 

failure to use more corrosion resistant 

high-chromium steel as a factor in the 

2012 Chevron Refinery accident in 

Richmond, California, which released 

hydrocarbons that ignited, endangering 

19 employees.124

c. State and Local IST Programs 

Some state and local governments 

have included inherent safety 

requirements in their regulations. An 

IST Review Rule was adopted under the 

New Jersey TCPA program in May 

2008.125 It requires IST reviews of all 

facilities covered by the TCPA by 

evaluating, at a minimum, the four IST 

principles: minimization, substitution, 

moderation, and simplification. NJDEP 

defined ‘‘IST’’ to mean ‘‘the principles 

or techniques that can be incorporated 

in a covered process to minimize or 

eliminate the potential for an 

Extraordinarily Hazardous Substance 

release.’’ 126

The rule includes a checklist 

developed under the direction of the 

New Jersey Domestic Security 

Preparedness Task Force. The NJDEP 

allows any available IST analysis 

method to be used to perform the IST 

review, but discusses two methods 

which are commonly used: (1) 

Integrating IST into the facility’s PHA 

study and (2) reviewing and completing 

a checklist containing a number of 

practical inherent safety 

considerations.127 The NJDEP also 

requires an IST review report that 

includes: 

• Information on the review team (name, 

position, qualifications, etc.); 

• IST analysis method used; 

• IST already present in the process; 

• Additional IST identified; 

• IST to be implemented, and a schedule 

for their implementation; and 

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128ACC. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0694 on Risk Management 

Program RFI, pg. 25. 

129NJDEP. January 15, 2010. IST Implementation 

Summary. http://www.nj.gov/dep/rpp/brp/tcpa/

downloads/IST_SUMWEB.pdf. 

130Contra Costa County CA. 2006. ISO Code, Title 

4—Health and Safety, Division 450—Hazardous 

Materials and Wastes, Chapter 450–8—Risk 

Management. Contra Costa County, California pp. 5, 

21–22. http://cchealth.org/hazmat/pdf/iso/Chapter450-8-RISK-MANAGEMENT.pdf. 

131The Richmond ISO is identical to the Contra 

Costa County ISO except it does not include the 

2006 amendments made to the Contra Costa ISO 

which require a safety culture assessment, a human 

factors program, management of change for 

maintenance, health and safety positions, and a 

security vulnerability analysis. CCHS. July 26, 

2011.ISO. City of Richmond Annual Performance 

Review and Evaluation Report. CCHS, Contra Costa 

County, CA. http://cchealth.org/hazmat/pdf/iso/

iso_report_richmond.pdf. 

132CCPS. 2009. Inherently Safer Chemical 

Processes: A Life Cycle Approach, 2nd ed., 

American Institute of Chemical Engineers, CCPS 

New York, Wiley. 

133CCHS. February 26, 2013. Annual 

Performance Review and Evaluation-ISO. 

134CCHS. December 9, 2014. Annual Performance 

Review and Evaluation-ISO. http://cchealth.org/

hazmat/pdf/iso/iso-report.pdf. 

135CCHS. July 26, 2011. ISO. City of Richmond 

Annual Performance Review and Evaluation Report. 

http://cchealth.org/hazmat/pdf/iso/iso_report_

richmond.pdf. 

136ACC. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0694 on Risk Management 

Program RFI, PDF pp. 16–28 of 189. 

137SOCMA. October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0560 on Risk 

Management Program RFI, pp. 3–6. 

138 IPAA and AXPC. October 29, 2014. Comment 

No. EPA–HQ–OEM–2014–0328–0584 on Risk 

Management Program RFI, pp. 21–24. 

139API. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0624 on Risk Management 

Program RFI, pp. 24–26. 

140AMWA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0639 on Risk Management 

Program RFI, pp. 1–7. 

141NACD. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0614 on Risk Management 

Program RFI, pgs. 6–7. 

142NAM. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0625 on Risk Management 

Program RFI, pg. 2. 

143CGA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0633 on Risk Management 

Program RFI, pg. 4. 

144CI. October 29, 2014. Comment No. EPA–HQ– 

OEM–2014–0328–0642 on Risk Management 

Program RFI, pgs. 7–8. 

145AFPM. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0665 on Risk Management 

Program RFI, pgs. 35–38. 

146CSAG. October 29, 2013. Comment No. EPA– 

HQ–OEM–2014–0328–0691 on Risk Management 

Program RFI, pgs. 38–21. 

147Axiall Corp. October 29, 2013. Comment No. 

EPA–HQ–OEM–2014–0328–0549 on Risk 

Management Program RFI, pg. 5. 

148MKOPSC. October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0543 on Risk 

Management Program RFI, pgs. 101–108. 

• A list of IST determined to be infeasible. 

A facility owner or operator must 

determine an identified alternative’s 

feasibility, and must provide written 

justification based on both qualitative 

and quantitative evaluations of 

environmental, human health and 

safety, legal, technological, and 

economic factors if it decides not to 

implement it. The ACC noted that 

NJDEP’s definition of inherent safety 

allowed ‘‘add-on’’ safety equipment and 

included routine safety improvements 

that are not part of the inherent safety 

concept as defined by CCPS and 

others.128 NJDEP visited every regulated 

facility and reviewed the IST report 

with the facility staff. A January 2010 

report prepared by the NJDEP to 

summarize the Department’s review of 

85 IST reports indicated that 

approximately 48% of facilities reported 

that they had implemented or scheduled 

to implement IST measures as a result 

of conducting the IST review.129

California’s Contra Costa County’s 

ISO 130 and the City of Richmond, 

California’s ISO 131 require owners and 

operators of stationary sources to 

consider ISS in the development and 

analysis of mitigation systems resulting 

from a PHA for each covered process, 

and in the design and review of new 

processes and facilities. Contra Costa 

County’s CC ISO defined ISS as 

‘‘ISD strategies’’ as discussed in the latest 

edition of the CCPS publication, ‘‘Inherently 

Safer Chemical Processes,’’ 132 and to mean 

feasible alternative equipment, processes, 

materials, lay-outs, and procedures meant to 

eliminate, minimize, or reduce the risk of a 

major chemical accident or release by 

modifying a process rather than adding 

external layers of protection. Examples 

include, but are not limited to, substitution 

of materials with lower vapor pressure, lower 

flammability, or lower toxicity; isolation of 

hazardous processes; and use of processes 

which operate at lower temperatures and/or 

pressures. 

The Contra Costa County ISO requires 

that the stationary source must select 

and implement ISS to the greatest extent 

feasible and as soon as administratively 

practicable. If a stationary source 

concludes that implementation of an 

ISS is not feasible, the stationary source 

must document the basis for this 

conclusion in meaningful detail. Contra 

Costa County requires the 

documentation to include sufficient 

evidence to demonstrate to CCHS’s 

satisfaction that implementing the ISS is 

not feasible and the reasons for this 

conclusion. A claim that 

implementation of an ISS is not feasible 

cannot be based solely on evidence of 

reduced profits or increased costs. A 

February 2013 report prepared by CCHS 

on their ISO program indicated that 4 of 

7 facilities covered under the 

ordinance’s ISS provision implemented 

at least one inherently safer measure 

within the previous year.133 The 

February 2014 CCHS ISO report 134

indicated that 3 of the 7 facilities 

reported three or more ISS implemented 

during the last reporting year. In the city 

of Richmond, California, as of July 2011, 

the two facilities covered by the 

Richmond ISO had implemented 62 

safer alternative measures involving 

ISSs.135 In June 2014, the Contra Costa 

County ISO requirements were 

expanded to require evaluation and 

documentation of ISS analysis for new 

projects and processes and for existing 

processes, whenever major changes 

resulting from incident investigation 

recommendations, root cause analysis, 

or MOC review indicate that change 

could reasonably result in a major 

chemical accident or release. 

d. Industry and Trade Association Input 

Numerous trade associations (ACC,136

SOCMA,137 Independent Petroleum 

Association of America [IPAA] and 

American Exploration & Production 

Council [AXPC],138 API,139 Association 

of Metropolitan Water Agencies 

[AMWA],140 National Association of 

Chemical Distributors [NACD],141

National Association of Manufacturers 

[NAM],142 CGA,143 Chlorine Institute 

[CI],144 AFPM,145 Chemical Safety 

Advocacy Group [CSAG] 146), one 

company, Axiall Corporation,147 and the 

Mary Kay O’Connor Process Safety 

Center [MKOPSC],148) noted in their 

comments on EPA’s RFI, that IST is only 

one of many approaches that may be 

employed to achieve risk reduction. 

They also noted that identification and 

evaluation of a safer alternative is not an 

off-the-shelf concept, but requires a 

holistic and often complex evaluation 

involving various factors. The 

commenters also indicated that IST 

decisions must be process-, site-, and 

hazard-specific, technically and 

economically feasible, and avoid 

shifting risk. These commenters stated 

that a regulatory program focused 

exclusively on eliminating a safety 

hazard would overlook other important 

considerations and risks that must be 

factored into an evaluation of a process 

change. They further contended that 

improper implementation of a 

seemingly safer alternative may lead to 

undesired consequences. The 

commenters argued that because an 

option may be inherently safer with 

regard to some hazards and inherently 

less safe with regard to others, decisions 

about the optimum strategy for 

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149AMWA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0639 on Risk Management 

Program RFI, pgs. 4–5. 

150MunicipalH2O. October 28, 2103. Comment 

No. EPA–HQ–OEM–2014–0328–0588 on Risk 

Management Program RFI, pgs. 6–7. 

151AWWA. October 29, 2013. Comment No. 

EPA–HQ–OEM–2014–0328–0648 on Risk 

Management Program RFI, pgs. 3–5. 

152See American Textile Mfrs. Inst. v. Donovan, 

452 U.S. 490, 509 (1981); Seaworld of Florida, LLC 

v. Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2013). 

153OSHA CPL 02–00–159, Field Operations 

Manual 3–22 (2015); Avcon, Inc., 23 O.S.H. Cas. 

(BNA) 1440, 1454 n.24 (O.S.H.R.C. Apr. 5, 2011). 

managing risks from all hazards are 

required. 

In their comments on the RFI, 

AMWA 140 also stated that decisions to 

select the most appropriate water 

treatment methods are best made by 

water utility managers based on a 

variety of factors. Most importantly, 

they stated, these managers should also 

determine which chemical will most 

effectively make water safe for public 

consumption and achieve compliance 

with the requirements of the Safe 

Drinking Water Act.149 According to 

AMWA, allowing Federal officials to 

‘‘second-guess’’ these local decisions— 

with a focus on minimizing potential 

terror attack consequences offsite, rather 

than ensuring the appropriate treatment 

and safety of drinking water—could 

lead to inadequately treated water and 

even detriments to public health. 

AMWA also stated that if utilities were 

simply instructed to consider whether 

an alternative might be appropriate for 

them, the costs could be relatively 

small. But, in AMWA’s view, if this 

analysis were required to include 

numerous prescribed steps, calculations 

and justifications for subsequent 

decisions, then costs could quickly 

escalate beyond what is reasonable and 

affordable. 

MunicpalH2O, a Risk Management 

Program/PSM compliance consultant for 

the water/wastewater treatment 

industry, commented that implementing 

these changes is very expensive and cost 

prohibitive. The commenter suggested 

that if a new requirement is placed on 

regulated water and wastewater 

facilities to perform an analysis of safer 

technology and alternatives, those 

facilities that have previously 

completed an analysis of safer 

technology and alternatives for their 

operation should be allowed to utilize 

their already completed analysis and be 

exempt from any future requirement in 

this area.150

The American Water Works 

Association (AWWA) stated that it has 

found that options often classified as 

inherently safer may in fact have 

impacts that counter other Federal 

initiatives associated with the nation’s 

transportation systems, energy 

consumption, and carbon dioxide 

emissions.151 Because of these risk 

tradeoffs, critical factors and variables, 

AWWA maintained that the choice of 

disinfectant should lie with qualified 

local officials, who are best acquainted 

with the specifics of their local 

situation. 

NACD stated that requiring 

manufacturers to hold smaller quantities 

of hazardous materials on site would 

exhaust their limited inventories 

faster.141 The commenter also indicated 

that distributors would need to deliver 

hazardous chemicals to these facilities 

more frequently, thereby significantly 

increasing the number of miles driven to 

deliver the same amount of product and 

ultimately increasing and shifting risk to 

the public roadways. In addition, NACD 

suggested there is a higher risk of 

incident during product loading and 

unloading, and that more shipments 

would increase the number of times 

chemicals must be loaded and 

unloaded, thereby increasing risk. 

NACD also stated that fixed-site risks 

are more manageable than those with a 

transportation component. 

5. Proposed Revisions to Regulatory 

Text 

Based on the considerations discussed 

above, EPA is proposing to modify the 

PHA provisions in § 68.67 to require 

analysis of potential safer technology 

and alternatives that would include, in 

the following order of preference: IST or 

ISD, passive measures, active measures, 

and procedural measures. EPA is 

limiting the proposed provisions to 

Program 3 processes in the petroleum 

and coal products manufacturing 

(NAICS 324), chemical manufacturing 

(NAICS 325), and paper manufacturing 

(NAICS 322) sectors for reasons 

discussed in section IV.C.6. STAA 

Applicability. 

EPA is also proposing to require 

owners or operators to evaluate the 

feasibility of implementing any IST or 

ISD considered. EPA believes a 

feasibility analysis of any considered 

IST or ISD is necessary to ensure the 

facility owner or operator seriously 

considers whether IST or ISD 

modifications could further reduce risks 

and prevent accidents at the facility. 

EPA is proposing to use the term 

‘‘feasibility’’ to describe this analysis 

because it is already widely used in the 

context of IST. However, this term has 

a distinct meaning under the 

Occupational Safety and Health Act, 

where the courts look to whether a 

safety measure is capable of being 

done.152 In the enforcement context, 

feasibility means that technical knowhow about materials and methods is 

available or adaptable to specific 

circumstances, which when applied 

creates a reasonable possibility that 

employee exposure to occupational 

hazards will be reduced, and that the 

firm is financially able to implement the 

measure without severe adverse 

economic effect.153 Because of the 

potential for confusion, OSHA has 

indicated that it would be unable to 

adopt the term feasible, as defined in 

this notice, under its PSM standard if 

OSHA considers similar revisions 

involving IST. EPA seeks comment on 

whether it would be better if EPA used 

another term, such as ‘‘practicability’’ 

for this analysis. 

EPA is not proposing to require 

sources affected by this provision to 

implement an evaluated IST or ISD. The 

decision to implement such measures 

must consider the numerous factors 

related to processes, facilities, and 

society at large. Improper 

implementation of a seemingly safer 

alternative may lead to undesired 

consequences. While EPA believes that 

sources should look for additional 

opportunities to increase safety, we 

believe that the facility owners or 

operators are in the best position to 

identify which changes are feasible to 

implement for their particular process. 

This decision should be based on a 

careful analysis and take into account: 

The chemicals present and their 

associated hazards; the operations and 

process conditions involved; 

consequences to workers, nearby 

populations and the environment; and 

the types of equipment used that are 

specific to the facility’s process. The 

analysis may consider the potential to 

shift risk between populations, 

locations, environmental media (air, 

water land), etc. 

a. Definitions (§ 68.3) 

EPA is proposing to add several 

definitions that relate to a STAA in 

§ 68.3. EPA is adding these definitions 

to describe risk reduction strategies that 

the owner or operator may use when 

considering safer technology and 

alternatives. 

First, EPA is proposing a definition 

for inherently safer technology or design 

(see § 68.3 for the proposed definition). 

The proposed definition includes risk 

management measures that would 

replace or reduce the use of regulated 

substances or make operating conditions 

less hazardous or less complex. 

Adopting the use of IST or ISD 

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13668 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

154Contra Costa County CA. 2006. ISO Code, Title 

4—Health and Safety, Division 450—Hazardous 

Materials and Wastes, Chapter 450–8—Risk 

Management. Contra Costa County, California pp. 5, 

21–22. http://cchealth.org/hazmat/pdf/iso/Chapter450-8-RISK-MANAGEMENT.pdf. 

155EPA. January 27, 2016. Technical Background 

Document for Notice of Proposed Rulemaking: Risk 

Management Programs under the Clean Air Act, 

Section 112(r)(7). 

eliminates or reduces hazards by using 

different materials and/or process 

conditions which would make 

accidental releases less likely, or the 

impacts of such releases less severe. 

Second, EPA is proposing a definition 

for ‘‘passive measures’’ (see § 68.3) that 

relies on measures that reduce a hazard 

without human, mechanical, or other 

energy input. Examples of passive 

measures include pressure vessel 

designs, dikes, berms, and blast walls. 

The third risk reduction measure that 

EPA is proposing to define is ‘‘active 

measures.’’ These involve engineering 

controls that rely on mechanical, or 

other energy input to detect and 

respond to process deviations. Examples 

of active measures include alarms, 

safety instrumented systems, and 

detection hardware (such as 

hydrocarbon sensors). 

Lastly, ‘‘procedural measures’’ would 

include policies, operating procedures, 

training, administrative controls, and 

emergency response actions to prevent 

or minimize incidents (see § 68.3). 

Examples of procedural measures may 

include administrative limits on process 

vessel fill levels, procedural steps taken 

to avoid releases, etc. 

In order to evaluate the ISTs and ISDs 

considered, EPA is proposing to define 

‘‘feasible’’ to include consideration of 

economic, environmental, legal, social, 

and technological factors when 

determining if the IST or ISD can be 

accomplished in a successful manner 

within a reasonable period of time (see 

§ 68.3). Environmental factors could 

include consideration of risks 

transferred elsewhere if a new risk 

reduction measure is adopted. EPA 

requests comment on these proposed 

definitions. Furthermore, EPA requests 

comment on whether the term 

‘‘feasible’’ is appropriate to characterize 

the viability of IST alternatives being 

considered. Is there another term, such 

as ‘‘practicable,’’ that may be more 

appropriate? 

b. Process Hazard Analysis (PHA) 

(§ 68.67) 

EPA is proposing to modify the PHA 

provisions by adding paragraph (c)(8) to 

§ 68.67, to require that the owner or 

operator of a facility with Program 3 

processes in NAICS codes 322, 324, and 

325 address safer technology and 

alternative risk management measures 

applicable to eliminating or reducing 

risk from process hazards. EPA is 

proposing to add paragraph (c)(8)(i) to 

specify that the analysis include, in the 

following order of preference: IST or 

design, passive measures, active 

measures, and procedural measures. 

The owner or operator may evaluate a 

combination of risk management 

measures to reduce risk. 

EPA is also proposing to add 

paragraph (c)(8)(ii) to require that the 

owner or operator determine the 

feasibility of the IST or ISD considered. 

The results of the feasibility analysis 

must be documented as part of the 

current PHA requirements in § 68.67(e), 

which requires the owner or operator to 

document actions to be taken and 

resolution of recommendations. EPA 

seeks comment on whether the 

proposed requirements to document 

feasibility are adequate or if these 

requirements should be modified to 

require a more extensive documentation 

of feasibility. For example, EPA could 

require that the source document the 

basis for this conclusion in meaningful 

detail (similar to California’s Contra 

Costa County’s ISO 154 requirements). 

The PHA must be updated and 

revalidated every five years in 

accordance with paragraph § 68.67(f) 

and as such, this provides the owner or 

operator opportunities to evaluate the 

feasibility of IST or ISD considered 

since the last PHA review. EPA believes 

that five-year revalidation will give the 

owner or operator the opportunity to 

identify new risk reduction strategies, as 

well as revisit strategies that were 

previously evaluated to determine 

whether they are now feasible. EPA 

seeks comment on these proposed 

revisions. Additionally, EPA requests 

comment on whether to require STAA 

documentation be submitted to EPA 

and/or the implementing agency. 

6. STAA Applicability 

EPA is proposing to limit the 

applicability of the STAA provisions to 

sources in the petroleum and coal 

products manufacturing (NAICS 324), 

chemical manufacturing (NAICS 325), 

and paper manufacturing (NAICS 322) 

sectors for two reasons. First, EPA 

believes that while most sectors 

regulated under 40 CFR part 68 could 

identify safer technology and 

alternatives, sources involved in 

complex manufacturing operations have 

the greatest range of opportunities to 

identify and implement safer 

technology, particularly in the area of 

inherent safety. These sources generally 

produce, transform, and consume large 

quantities of regulated substances under 

sometimes extreme process conditions 

and using a wide range of complex 

technologies. Therefore, such sources 

can often consider the full range of 

inherent safety options, including 

minimization, substitution, moderation, 

and simplification, as well as passive, 

active, and procedural measures. This 

contrasts with regulated sources that 

simply sell or distribute a particular 

regulated substance, such as bulk 

anhydrous ammonia. Although such 

sources may also have opportunities to 

identify and implement IST, the 

existence of such sources is predicated 

on handling and distributing a specific 

regulated substance. Therefore, their 

opportunities to implement certain IST 

strategies such as substitution or 

minimization may be limited. Similarly, 

sources involving relatively simpler 

chemical processes may have 

opportunities to implement chemical 

substitution strategies but may be 

limited in their ability to apply 

moderation and simplification 

strategies. 

Second, EPA notes that RMP facilities 

in the three selected sectors have been 

responsible for a relatively large number 

of accidents, deaths, injuries, and 

property damage.155 EPA compared the 

number of RMP accidents that occurred 

between January 1, 2004, and December 

31, 2013, reported by twelve industry 

sectors to the number of facilities in 

each sector. Each sector was comprised 

of industries based on similar 

operations involving the RMP 

substances and complexity. The twelve 

sectors were: Petroleum and coal 

products manufacturing (NAICS 325), 

paper manufacturing (NAICS 322), 

chemical manufacturing (NAICS 324), 

food and beverage manufacturing 

(NAICS 311, 312), other manufacturing 

(all other NAICS 31–33), agricultural 

chemical distributors (NAICS 11, 

42491), chemical/petroleum wholesalers 

(NAICS 4246, 4247), other wholesalers 

(all other NAICS 423, 424), warehouses 

(NAICS 493), water supply/wastewater 

treatment (NAICS 22131, 22132, 924), 

oil/gas extraction (NAICS 211) and all 

other (NAICS 211 (except 22131 and 

22132), 44, 45, 48, 54, 56, 61, 72). The 

sector accident rates (number of 

accidents divided by the number of 

facilities in each sector) ranged from 

1.08 to 0.04. Three sectors have 

significantly higher accidents rates as 

compared to other sectors: 1.08 

(petroleum and coal products 

manufacturing), 0.66 (paper 

manufacturing) and 0.36 (chemical 

manufacturing). The petroleum and coal 

products manufacturing accident rate 

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Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 13669 

156EPA and OSHA. June 2015. Chemical Safety 

Alert: Safer Technology and Alternatives. EPA 550– 

F–15–503. s http://www.epa.gov/rmp/chemicalsafety-alert-safer-technology-and-alternatives. 

157CCPS. 2009. Inherently Safer Chemical 

Processes: A Life Cycle Approach, 2nd ed., 

American Institute of Chemical Engineers, CCPS 

New York, Wiley. 

158NJDEP, Bureau of Release Prevention. January 

15, 2015. Guidance for TCPA, IST Review. http:// 

www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_

guidance.pdf. See also NJWEC. May 5, 2008. New 

Rule for IST Review by NJDEP. http://

www.njwec.org/PDF/Factsheets/CS_IST_

FactSheet.pdf. 

159Contra Costa Hazardous Materials Program. 

June 15, 2011. ISS Checklist (extracted from IST 

Checklist found in the CCPS Inherently Safer 

Chemical Processes, 2nd ed., with incorporation of 

additional considerations). http://cchealth.org/

hazmat/pdf/iso/attachment_c.pdf. 

160OSHA. Transitioning to Safer Chemicals, a 

Toolkit for Employers and Workers. https://

www.osha.gov/dsg/safer_chemicals/index.html. 

161CCPS. 2009. Inherently Safer Chemical 

Processes: A Life Cycle Approach, 2nd ed. 

American Institute of Chemical Engineers, CCPS. 

New York, Wiley, 2009. Pgs. 200–202. 

162AMWA. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0639 on Risk Management 

Program RFI, p. 3; BlueGreen Alliance. October 27, 

2014. Comment No. EPA–HQ–OEM–2014–0328– 

0579 on Risk Management Program RFI. p. 6. 

www.bluegreenalliance.org; BWD. October 24, 2014. 

Comment No. EPA–HQ–OEM–2014–0328–0654 on 

Risk Management Program RFI. p. 3. Beaver Water 

District (BWD), Lowell, Arkansas; CCHS. October 

28, 2014. Comment No. EPA–HQ–OEM–2014– 

0328–0546 on Risk Management Program RFI, p. 8; 

CPCD. October 29, 2014. Comment No. EPA–HQ– 

OEM–2014–0328–0644 on Risk Management 

Program RFI, pgs. 16, 18–19; MKOPSC. October 29, 

2014. Comment No. EPA–HQ–OEM–2014–0328– 

0543 on Risk Management Program RFI, p. 105; 

Tickner, J. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0688 on Risk Management 

Program RFI. p. 6. University of Massachusetts, 

Lowell, Massachusetts; TURI. October 29, 2014. 

Comment No. EPA–HQ–OEM–2014–0328–0539 on 

Risk Management Program RFI. Toxics Use 

Reduction Institute (TURI), University of 

Massachusetts, Lowell, Massachusetts. p. 5; United 

Steelworkers. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0547 on Risk Management 

Program RFI, p. 5. 

163OSHA. 2014. Executive Order 13650 Best 

Practices. https://www.osha.gov/

chemicalexecutiveorder/LLIS/index.html. 

was 6–27 times higher, the paper 

manufacturing accident rate was about 

4–6 times higher, and the chemical 

manufacturing accident rate was 2–9 

times higher than other sectors. 

Therefore, implementation of safer 

technology and alternatives by these 

facilities in the pulp/paper 

manufacturing, chemical 

manufacturing, and petroleum refining 

sectors may prevent serious accidental 

releases in the future. 

EPA seeks comment on whether the 

proposal to limit the STAA provisions 

to Program 3 regulated processes in 

NAICS 322, 324, and 325 is appropriate. 

EPA also seeks comment on whether the 

Agency should further limit 

applicability of the STAA provisions 

(e.g., to apply only during the design 

stage of new processes or facilities, or 

only to certain processes). As part of the 

SBAR Panel process, SERs cited 

limitations with flexibility to evaluate 

alternatives for custom formula blends 

and compliance with FDA approval 

requirements and, therefore, requested 

that EPA consider eliminating this 

provision and/or exempting batch toll 

manufacturers from this requirement. 

EPA seeks comment on these 

alternatives. 

Finally EPA seeks comment on 

whether there are other sectors that 

should be subject to the proposed STAA 

provision. For example, should EPA 

require RMP regulated water supply/

wastewater treatment facilities to 

analyze safer technology and 

alternatives and document feasibility of 

the alternatives? 

7. Guidance on Evaluating Safer 

Technologies and Alternatives 

Some owners or operators have 

already made process changes 

considered to be inherently safer, but 

others may not have sufficient 

information available to effectively 

assess whether their existing processes 

can incorporate inherently safer 

measures. To assist owners or operators 

with evaluating options for safer 

alternatives, EPA and OSHA developed 

a chemical safety alert in June 2015 

illustrating the concepts, principles and 

examples of safer technology and 

alternatives to make industry more 

aware of this information, while 

providing sources of information for 

further investigation and review.156

EPA and OSHA have said owners or 

operators may use any available 

methodology or guidance to conduct 

their STAA, such as approaches 

discussed by CCPS (e.g., Hazard and 

Operability Study (HAZOP), What-If?, 

Checklist, Consequence-based 

methods),157 the NJ TCPA IST guidance 

materials,158 the Inherently Safer 

Systems Checklist provided by Contra 

Costa Hazardous Materials Program,159

or the information on OSHA’s Web 

page, ‘‘Transitioning to Safer Chemicals: 

A Toolkit for Employers and 

Workers.’’ 160 CCPS provides guidelines 

for what should be provided in an 

inherent safety analysis and provides 

example rationales for why inherent 

safety review recommendations were 

rejected.161 Examples for why inherent 

safety review recommendations may not 

be feasible, include when the 

recommendation: 

• Is in conflict with existing Federal, state 

and local laws. 

• Is in conflict with RAGAGEP. 

• Is economically impractical, such that 

the process unit would stop being fiscally 

feasible. This can include consideration of: 

• Capital investment; 

• Product quality; 

• Total direct manufacturing costs; 

• Operability of the plant; and/or 

• Demolition and future clean-up and 

disposal cost. 

• Would have a negative social impact. 

Some examples could include an 

unacceptable visual or noise impact on the 

community, or increased traffic congestion. 

• May violate a license agreement that 

cannot be modified, and so must remain in 

effect. 

• May decrease the hazard, but would 

increase the overall risk. 

• Provides less risk reduction than an 

alternative recommendation. 

8. Alternative Options 

As an alternative option, EPA seeks 

comment on whether to require facility 

owners or operators to implement any of 

the feasible options identified in the 

facility’s analysis. This option would 

rely on the owner or operator to select 

the specific technology or design to 

implement. EPA seeks comment on the 

factors EPA should consider when 

determining whether to require 

implementation of feasible options. 

EPA evaluated the NJDEP 125 and 

CCHS 134 IST analysis programs as 

possible models to use in the Risk 

Management Program requirements. 

EPA seeks comment on whether we 

should include the following in our 

proposed STAA provisions: 

• Aspects of the NJDEP’s program, such as 

more prescribed documentation of STAA; or 

• Other aspects of CCHS’s program, such 

as requiring ISS analysis during the design of 

new processes, for PHA recommendations, or 

for major changes from an incident 

investigation recommendations, root cause 

analysis or MOC review that could 

reasonably result in a major chemical 

accident or release. 

Finally, EPA seeks comment on 

whether either EPA or a third-party 

should create a ‘‘clearinghouse’’ of safer 

technology and alternatives that allow 

source owners or operators to share 

useful information and/or consult to 

identify technologies to evaluate for 

their process. We note that the concept 

of a clearinghouse has drawn support in 

comments on the RFI from state and 

local officials, labor and environmental 

stakeholders, academics, and industry 

representatives.162 One mechanism of 

collecting relevant information could be 

the National Working Group on 

Chemical Safety and Security’s best 

practices Web site,163 which collects 

and shares chemical safety and security 

best practices, including safer 

alternatives. Alternatively, EPA could 

require submission of STAA analyses, 

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13670 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

164Lees, Frank P. 1996. Loss Prevention in the 

Process Industries, Volume 3, 2nd ed. Appendix 5 

Bhopal. Butterworth-Heinemann, Oxford, Great 

Britain. 

165CSB. January 2016. Final Investigation Report, 

West Fertilizer Company Fire and Explosion, West, 

TX, April 17, 2013. Report 2013–02–I–TX, pp. 13, 

30, 49, 53, 54. http://www.csb.gov/west-fertilizerexplosion-and-fire-/. 

166Lees, Frank P. 1996. Loss Prevention in the 

Process Industries, Volume 3, 2nd ed. Appendix 4 

Mexico City. Butterworth-Heinemann, Oxford, 

Great Britain. 

167CSB. July 9, 2008. Investigation Report: LPG 

Fire at Valero-McKee Refinery, Sunray, Texas, 

February 16, 2007. Report No. 2007–05–I–TX. 

http://www.csb.gov/valero-refinery-propane-fire/. 

168EPA, Region 7, Emergency Response and 

Removal Branch (Kansas City, KS). January 1996. 

Chemical Accident Investigation Report: Terra 

Industries, Inc., Nitrogen Fertilizer Facility, Port 

Neal, Iowa (January 1996). http://archive.epa.gov/

emergencies/docs/chem/web/pdf/cterra.pdf. 

or information from those analyses, 

directly to EPA, and develop its own 

Web site. The information shared on 

such a Web site may include practicable 

risk reduction measures that could be 

applied at various facilities to mitigate 

threats to the public, worker, health, 

environment, and facility during the 

production, transport, and use of 

chemicals. 

D. Stationary Source Location and 

Emergency Shutdown 

Serious accidents often highlight 

numerous safety concerns and 

emphasize the need to consider existing 

regulations, industry standards, 

recommended practices and guidance to 

reduce risks of future incidents. Two 

issues of particular importance include 

the location of stationary sources and 

their emergency shutdown capabilities. 

1. Stationary Source Location 

The location of stationary sources, 

and the location and configuration of 

regulated processes and equipment 

within a source, can significantly affect 

the severity of an accidental release. The 

location of the stationary source in 

relation to public and environmental 

receptors may exacerbate the impacts of 

an accidental release, such as blast 

overpressures or concentrations of toxic 

gases, or conversely may allow such 

effects to dissipate prior to reaching 

receptors. The lack of sufficient distance 

between the source boundary and 

neighboring residential areas was a 

significant factor in the severity of 

several major chemical accidents, 

including, among others, the Bhopal 

disaster 164 and the recent West 

Fertilizer accident. In the Bhopal 

disaster, most of the deaths and injuries 

occurred in a residential area that had 

grown up next to the plant. In the West 

Fertilizer accident, an apartment 

complex and a nursing home located 

approximately 450 feet and 600 feet, 

respectively, from the source of the 

explosion were heavily damaged, 

resulting in three public fatalities (a 

total of 15 people were killed in the 

explosion). The explosion also caused 

over 260 injuries, as well as damage to 

over 350 homes and three schools 

located near the plant.165

Facility designers have long 

recognized the potential benefits of 

adding buffer or safety zones (i.e., 

controlled areas separating the public 

and other facilities from the 

consequences of process incidents) 

when selecting the location for new 

chemical facilities. For existing 

facilities, owners have sometimes 

compensated nearby residents to 

relocate away from the facility boundary 

in order to create a buffer zone where 

one did not previously exist, or where 

adjacent residential areas had been 

developed after the facility itself was 

constructed. 

The selection of locations of processes 

and process equipment within a 

stationary source can impact the 

surrounding community not only by the 

proximity of the accidental release to 

offsite receptors near the facility 

boundary (e.g., people, infrastructure, 

environmental resources) but also by 

increasing the likelihood of subsequent 

releases from other nearby processes 

compromised by the initial release. The 

1984 disaster at the PEMEX liquefied 

petroleum gas (LPG) tank farm in San 

Juan Ixhuatepec, Mexico, illustrates the 

potential for such effects. In this 

accident, an LPG pipeline rupture 

resulted in a large ground fire that 

spread to nearby LPG storage vessels, 

initiating a series of massive explosions. 

The cascading explosions and fires 

ultimately destroyed the entire facility 

and many nearby residences, resulting 

in over 500 fatalities and thousands of 

severe injuries.166

In the United States in 2007, a large 

fire at the Valero McKee refinery in 

Sunray, Texas, resulted in the release of 

chlorine gas and sulfuric acid from an 

adjacent process, which prevented 

responders from entering the area and 

extinguishing the fire for more than two 

days.167

At West Fertilizer, the Risk 

Management Program-regulated 

anhydrous ammonia process was 

located near the AN storage area. 

Although the AN explosion did not 

cause any catastrophic failure of the 

ammonia storage vessels, the potential 

for a release existed. A 1994 explosion 

involving AN solution at Terra 

Industries in Port Neal, Iowa, which 

killed four workers, also damaged onsite ammonia tanks, creating an 

ammonia cloud that resulted in the 

evacuation of 2,500 people.168

The PSM standard and RMP rule both 

require that facility siting be addressed 

as one element of a PHA (see 29 CFR 

1910.11 9(e)(2) and (3)(v)), and 40 CFR 

68.67(c)). While EPA has not provided 

any guidance on how to adequately 

address stationary source siting in the 

PHA, RMP facility owners or operators 

can refer to industry guidance on siting 

considerations. The following 

publications provide guidance on 

facility siting: 

• API Recommended Practice 752, 

Management of Hazards Associated With 

Location of Process Plant Buildings, 3rd 

Edition, December 2009; 

• API Recommended Practice 753, 

Management of Hazards Associated with 

Location of Process Plant Portable Buildings, 

First Edition, June 2007; 

• CCPS Guidelines for Evaluating Process 

Plant Buildings for External Explosions, 

Fires, and Toxic Releases, Second Edition, 

2012; and 

• CCPS Guidelines for Facility Siting and 

Layout (2003). 

The first three references listed above 

focus on providing guidance and best 

practices on establishing the location of 

occupied buildings within a facility, but 

generally do not address the potential 

risks to offsite receptors associated with 

the location of the facility or processes 

within the facility, nor do they consider 

the potential for releases caused by 

natural hazards that may occur in 

particular locations. The CCPS 

Guidelines for Facility Siting and 

Layout address both external factors 

influencing site selection, as well as 

factors internal to the source that could 

influence site layout and equipment 

spacing. 

At this time, EPA is not proposing any 

additional requirements for location of 

stationary sources. EPA seeks comment 

on whether such requirements should 

be considered for future rulemakings, 

including the scope of such 

requirements, or whether the Agency 

should publish guidance. 

2. Emergency Shutdown 

In addition to properly locating 

stationary sources in relation to 

surrounding receptors, and locating 

processes within sources so as to 

minimize the possibility of cascading 

release events, accidents such as these 

highlight the importance of being able to 

quickly and safely shut down processes 

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Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 13671 

169Owners or operators of stationary sources with 

Program 1 processes are required to coordinate 

emergency response procedures with local 

emergency planning and response organizations 

under § 68.10(b)(3)). This proposal would not affect 

that requirement. 

170EPA. January 27, 2016. Technical Background 

Document for Notice of Proposed Rulemaking: Risk 

Management Programs under the Clean Air Act, 

Section 112(r)(7). 

171EPA Press Release. July 20, 2011. National 

Chemical Company will Upgrade Facilities and Pay 

Fine to Settle Clean Air Violations. http://

yosemite.epa.gov/opa/admpress.nsf/1e5ab1124055

f3b28525781f0042ed40/9884f5d5e5e6368

c852578d300642a3e!OpenDocument. 172EPA Press Release. February 13, 2013. Koch 

Nitrogen Company to Pay $380,000 Civil Penalty for 

CAA Violations at Facilities in Iowa and Kansas. 

http://yosemite.epa.gov/opa/admpress.nsf/

d0cf6618525a9efb85257359003fb69d/a9537cb21

3c0371985257b1100738628!OpenDocument. 173EPA Press Release. May 27, 2014. EPA Moves 

to Improve Emergency Planning at Facilities in NJ 

and NY; Inspections Focus on Information on 

Chemical Hazards Needed by First Responders 

during Emergency Responses. http://

yosemite.epa.gov/opa/admpress.nsf/0/

C6DB6A8A0918857F85257CE5005FEE24. 174 Gablehouse, T. October 28, 2014. Comment 

No. EPA–HQ–OEM–2014–0328–0679 on Risk 

Management Program RFI, PDF pp. 5–6, NASTTPO, 

Denver, CO. 175Elder, M., October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0641 on Risk 

Management Program RFI, Oklahoma Hazardous 

Materials Emergency Response Commission 

(OHMERC). 176CSB. January 2011. Investigation Report: 

Pesticide Chemical Runaway Reaction Pressure 

Vessel Explosion, Bayer CropScience, LP, Institute, 

West Virginia, August 28, 2008. Report No. 2008– 

08–I–WV, http://www.csb.gov/assets/1/19/Bayer_

Report_Final.pdf. 

where accidental releases are occurring 

or may imminently occur. The RMP 

regulation requires owners and 

operators of stationary sources to 

develop and implement written 

operating procedures for the safe and 

timely emergency shutdown of Program 

2 and Program 3 processes, to ensure 

operator training for these procedures, 

and for maintaining the mechanical 

integrity of emergency shutdown 

systems. However, the regulation does 

not explicitly require that all covered 

processes must include emergency 

shutdown systems. 

EPA encourages owner and operators 

of stationary sources to consider 

location of stationary sources and 

process equipment and the adequacy of 

emergency shutdown systems at their 

facilities to determine if changes are 

necessary to both reduce risks of an 

accidental release and ensure that 

procedures are in-place to mitigate those 

effects. Emergency shutdown or putting 

a process into a safe operation mode in 

the event of an emergency is a 

preventive safeguard to address 

hazard(s) identified as part of hazard 

review or PHA. Thus, the hazard review 

required under § 68.50 or the PHA 

required under § 68.67 should identify 

the use of this safeguard, when 

appropriate. 

At this time, EPA is not proposing any 

additional requirements for emergency 

shutdown systems. However, EPA seeks 

comment on whether such requirements 

should be considered for future 

rulemakings, including the scope of 

such requirements, or whether the 

Agency should publish guidance. 

V. Emergency Response Preparedness 

Requirements 

A. Emergency Response Program 

Coordination With Local Responders 

Subpart E of the RMP rule, the 

emergency response provisions, applies 

to facilities with Program 2 or 3 

processes. These provisions require 

owners or operators of regulated 

facilities with Program 2 or 3 processes 

to coordinate with local response 

authorities and in some cases develop 

an emergency response program in 

accordance with § 68.95 to address how 

the owner or operator of the facility will 

respond to accidental releases.169 The 

rule requires the owner or operator to 

prepare and implement an emergency 

response program to protect public 

health and the environment, unless the 

stationary source is included in the 

community emergency response plan 

developed under section 303 of 

Emergency Planning & Community 

Right-to-Know Act (EPCRA) (for sources 

with regulated toxic substances) and has 

coordinated response actions with the 

local fire department (for sources with 

only regulated flammable substances). 

An owner or operator that needs to 

develop an emergency response 

program (i.e., be a ‘‘responding’’ 

facility), will need to include the 

following elements in that program: 

• An emergency response plan; 

• Procedures for the use of emergency 

response equipment and for its inspection, 

testing, and maintenance; 

• Training for employees; and 

• Procedures to review and update the 

emergency response plan to reflect changes at 

the stationary source and ensure that 

employees are informed of changes. 

The emergency response plan must also 

be coordinated with local response 

authorities. 

An owner or operator of a facility who 

is relying on local responders to 

respond to an accidental release (i.e., a 

‘‘non-responding’’ facility) when the 

stationary source has been included in 

the community emergency response 

plan developed under section 303 of 

EPCRA (for sources with regulated toxic 

substances) or has coordinated response 

actions with the local fire department 

(for sources with only regulated 

flammable substances, and without 

regulated toxic substances) is not 

required to develop an emergency 

response program. However, the owner 

or operator must also ensure that 

appropriate notification mechanisms are 

in place to notify emergency responders 

when there is a need for a response. 

Risk Management Program regulated 

facilities must indicate within their 

RMP whether or not they are a 

responding facility (i.e., by indicating 

compliance with mandatory elements of 

emergency response plans required in 

§ 68.95(a)(1)). Our review of the 

RMP*Info database has indicated that 

the majority of RMP facilities claim to 

be non-responding facilities.170

However, during facility inspections, 

EPA has often found that facilities either 

are not included in the community 

emergency plan or have not properly 

coordinated response actions with local 

authorities.171 172 173 State and local 

response officials echoed this concern 

during listening sessions conducted 

under Executive Order 13650, and in 

feedback provided to EPA in 

conjunction with the RFI.174 175 This 

problem occurs with both responding 

and non-responding facilities, but it is 

particularly troublesome for nonresponding facilities, because if the 

facility itself does not maintain the 

capability to respond to emergencies, 

and local authorities are not able to 

respond, then a proper response to an 

accidental release at the facility may not 

occur or may be significantly delayed. 

Also, when local responders are 

unfamiliar with the hazards of the 

facility, they may not be prepared to 

safely respond. 

Poor coordination between chemical 

facilities and local emergency 

responders has been identified as a 

factor contributing to the severity of 

chemical accidents. For example, 

following the August 2008 explosion 

and fire at the Bayer CropScience 

facility in Institute, West Virginia, the 

CSB found that lack of effective 

coordination between facility and local 

responders prevented responding 

agencies from receiving timely 

information updates about the 

continually changing conditions at the 

scene, prevented a public shelter-inplace order from reaching the local 

community, and may have resulted in 

toxic exposure to on-scene public 

emergency responders. Additionally, 

facility authorities initially prevented 

local responders from gaining access to 

the site of the incident.176

The April 17, 2013 accident at West 

Fertilizer resulted in the deaths of 12 

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177CSB. January 2016. Final Investigation Report, 

West Fertilizer Company Fire and Explosion, West, 

TX, April 17, 2013. Report 2013–02–I–TX, pgs. 

201–203. http://www.csb.gov/west-fertilizerexplosion-and-fire-/. 

178CSB. May 2003. Investigation Report: Chlorine 

Release, DPC Enterprises, L.P., Festus, Missouri, 

August 14, 2002. Report No. 2002–04–I–MO. http:// 

www.csb.gov/assets/1/19/DPC_Report.pdf. 

179 General Guidance on Risk Management 

Programs for Chemical Accident Prevention (40 

CFR part 68), EPA–550–B–04–001, April 2004, p. 8– 

1. http://www2.epa.gov/rmp/guidance-facilitiesrisk-management-programs-rmp#general. 

first responders. During its investigation 

of the accident, the CSB found that the 

LEPC did not include the facility in the 

community emergency response 

plan.177

Another example is the August 2002 

accidental chlorine release at the DPC 

Enterprises facility in Festus, Missouri, 

that resulted in sixty-three people from 

the surrounding community seeking 

medical evaluation at the local hospital 

for symptoms of respiratory distress. 

The CSB investigation found that the 

DPC emergency response plan did not 

provide clear guidance on when facility 

emergency response personnel should 

respond to a release or when response 

by an offsite community hazardous 

materials response team is required. The 

CSB also found that coordination 

between local emergency planning and 

response entities and DPC was 

insufficient to ensure that the 

emergency plan would provide for 

timely community notification and 

mitigation of the release.178

CAA section 112(r) clearly anticipated 

that the Risk Management Program 

regulation would require regulated 

stationary sources to develop an 

emergency response program and 

provide for a response to releases of 

regulated substances. Section 

112(r)(7)(B)(ii) states that the regulations 

shall require the owner or operator to 

‘‘provide a prompt emergency response 

to any such releases in order to protect 

human health and the environment,’’ 

and that the RMP shall include: 

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. 

Accordingly, in the preamble 

discussion of the 1996 final RMP rule, 

EPA explained that the option to be a 

non-responding facility was contingent 

on local community responders’ ability 

to appropriately respond to the 

stationary source’s hazards. 

The final rule also provides relief for 

sources that are too small to respond to 

releases with their own employees; these 

sources will not be required to develop 

emergency response plans provided that 

procedures for notifying non-employee 

emergency responders have been adopted 

and that appropriate responses to their 

hazards have been addressed in the 

community emergency response plan 

developed under EPCRA (42 U.S.C. 11003) 

for toxics or coordinated with the local fire 

department for flammables. (61 FR 31673, 

31698, June 20, 1996.) 

EPA recognizes that some sources will only 

evacuate their employees in the event of a 

release. For these sources, EPA will not 

require the development of emergency 

response plans, provided that appropriate 

responses to their hazards have been 

discussed in the community emergency 

response plan developed under 42 U.S.C. 

11003 for toxics or coordinated with the local 

fire department for flammables. (61 FR 

31681, June 20, 1996.) 

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. (61 FR 31712, June 20, 1996.) 

EPA also explained this point in the 

RMP Guidance: 179

If your employees will not respond to 

accidental releases of regulated substances, 

you need not comply with the emergency 

response plan and program requirements 

provided you coordinate with local response 

agencies to ensure that they will be prepared 

to respond to an emergency at your facility. 

These excerpts from the 1996 final rule 

and RMP Guidance indicate that from 

its inception, the RMP rule has required 

that owners and operators of regulated 

sources must either meet the full 

emergency response program 

requirements of § 68.95 or ensure that 

local responders are capable of 

responding to releases at the source. In 

spite of this fact, the history of poor 

emergency response coordination 

during accidental releases, EPA’s 

findings during compliance inspections, 

and recent feedback provided to EPA’s 

RFI and during Executive Order 13650 

listening sessions indicate that many 

regulated sources have not provided for 

an adequate emergency response. 

1. Proposed Revisions to Emergency 

Response Coordination Requirements 

EPA proposes to amend the rule 

requirements to clarify the obligations of 

the owner or operator of the stationary 

source to coordinate emergency 

response with local authorities. In order 

to provide clarity, EPA is proposing to 

reorganize subpart E to address the 

applicability provisions for responding 

and non-responding sources in § 68.90, 

describe required coordination activities 

in new § 68.93, and include a new 

requirement in § 68.95 for owners or 

operators of responding stationary 

sources to review and update their 

emergency response program at least 

annually. 

EPA is proposing to reorganize § 68.90 

to specifically describe the applicability 

of the emergency response program 

requirements for non-responding and 

responding facilities in paragraphs (a) 

and (b), respectively. 

The proposed revisions to § 68.90 

paragraph (a) describe the applicability 

provisions for non-responding facilities. 

The owner or operator of a stationary 

source need not comply with the 

emergency response program 

requirements in § 68.95 provided that 

after conducting coordination activities 

required under the proposed § 68.93, the 

local response authorities and the owner 

or operator of the stationary source 

determine that local public emergency 

response capabilities are adequate to 

respond to accidental releases at the 

stationary source; appropriate 

mechanisms are in place to notify 

emergency responders when an accident 

occurs; and the LEPC or equivalent local 

response authorities have not requested 

in writing that the owner or operator 

develop an emergency response 

program for the stationary source in 

accordance with § 68.95. 

Section 68.90 paragraph (b) describes 

applicability provisions for responding 

facilities. The owner or operator of the 

stationary source would be required to 

comply with the emergency response 

program requirements of § 68.95 when 

the outcome of the annual coordination 

activities with local response authorities 

required under § 68.93 indicates that 

local public emergency response 

capabilities are not adequate to respond 

to accidental releases of regulated 

substances at the stationary source. If, as 

a result of the annual coordination, the 

facility owner or operator must develop 

an emergency response program in 

accordance with § 68.95, the owner or 

operator should develop the program as 

soon as reasonably practicable. The 

owner or operator would also be 

required to comply with § 68.95 upon 

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Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 13673 

180See General Guidance on Risk Management 

Programs for Chemical Accident Prevention (40 

CFR part 68), EPA–550–B–04–001, April 2004, page 

8–1. http://www2.epa.gov/rmp/guidance-facilitiesrisk-management-programs-rmp#general. 

receiving a written request to do so from 

the LEPC, local fire department, or other 

local emergency response officials 

having jurisdiction. 

EPA believes that it is appropriate to 

provide a mechanism for the local 

emergency response officials to request 

that the owner or operator of the 

stationary source comply with the 

emergency response program 

requirements of § 68.95 because it is the 

presence of the source and its attendant 

hazards that create a risk to the 

surrounding community of accidental 

releases. Therefore, in the event that the 

outcome of the coordination activities 

with local response authorities indicates 

that local public emergency response 

capabilities are not adequate, the 

ultimate burden of providing for an 

appropriate response to releases of 

regulated substances from the source 

should rest with the owner or operator. 

This philosophy is consistent with the 

general duty clause of CAA section 

112(r)(1), which among other things 

requires the owner or operator to 

minimize the consequences of 

accidental releases that do occur. 

EPA is proposing to add § 68.93 to 

clarify emergency response coordination 

activities and require that these 

activities be documented and occur 

annually. Section 68.93 would require 

the owner or operator of a stationary 

source with a Program 2 or 3 process to 

coordinate with local response 

authorities to ensure that appropriate 

resources and capabilities are in place to 

respond to an accidental release of a 

regulated substance. As part of the 

coordination, the owner or operator and 

the local response authorities would 

work together to determine who will 

respond if an incident occurs, and what 

would be an appropriate response. 

Paragraph (a) would require 

coordination to occur at least annually, 

and more frequently if necessary, to 

address changes at the source; in the 

source’s emergency action plan; in local 

authorities’ response resources and 

capabilities; or in the local community 

emergency response plan. Paragraph (b) 

would require the owner or operator to 

document coordination with local 

authorities, including the names of 

individuals involved and their contact 

information (phone number, email 

address, and organizational affiliations), 

dates of coordination activities, and the 

nature of coordination activities. The 

proposed paragraph (c) specifies who 

should be involved in the coordination 

for both stationary sources with 

regulated toxic and flammable 

substances. If a stationary source 

involves a regulated toxic substance, 

then the source must be included in the 

community emergency response plan 

developed under EPCRA. 

EPA also proposes to revise § 68.95 to 

ensure that notification procedures 

include notifications to Federal, Tribal, 

and state agencies and to require that 

emergency response plans be updated at 

least annually. Specifically, EPA is 

revising § 68.95(a)(1)(i) to add a 

reference to Federal and state agencies. 

EPA is also proposing to revise 

§ 68.95(a)(4) to specify that the owner or 

operator review and update the program 

annually or more frequently if necessary 

(e.g., to incorporate lessons learned from 

incident investigations, or if changes 

occur in emergency notification 

systems, local responder organizations, 

stationary source hazards, or other 

critical emergency response planning 

information). EPA is also proposing to 

revise § 68.95(c) to replace local 

emergency planning committee with the 

acronym LEPC. 

Additionally, EPA is proposing to 

revise § 68.3 to add LEPC for local 

emergency planning committee. The 

term is used throughout the rule and 

means the LEPC as established under 42 

U.S.C. 11001(c). 

Finally, EPA is proposing to revise 

§ 68.12 (General requirements) to be 

consistent with these proposed 

coordination requirements. EPA is 

proposing revisions to Program 2 

requirements under § 68.12(c) in which 

EPA would renumber paragraph 

§ 68.12(c)(4) and (c)(5) as § 68.12(c)(5) 

and (c)(6). New paragraph § 68.12(c)(4) 

would specify the owner or operator’s 

requirements to coordinate response 

actions with local emergency planning 

and response agencies as provided in 

§ 68.93. EPA is proposing similar 

revisions to Program 3 requirements 

under § 68.12(d). EPA would renumber 

paragraph § 68.12(d)(4) and (d)(5) as 

§ 68.12(d)(5) and (d)(6). New paragraph 

§ 68.12(d)(4) would specify the owner or 

operator’s requirements to coordinate 

response actions with local emergency 

planning and response agencies as 

provided in § 68.93. 

EPA believes that these proposed 

amendments clarify existing obligations 

and prevent situations where neither 

regulated stationary sources nor local 

authorities are prepared to appropriately 

respond to accidental releases at the 

source. EPA recognizes that an 

appropriate response—even for 

responding facilities—may sometimes 

involve evacuation of facility 

employees, evacuation or sheltering of 

nearby residents, and implementation of 

other defensive measures to prevent 

harm to workers, responders, and the 

public. However, planning for such 

situations should occur in advance, so 

that either the source or local 

responders are prepared to implement 

response measures that are appropriate 

to the hazards of the stationary source. 

If local public responders are not 

capable of responding to accidental 

releases at a stationary source, the 

owner or operator can continue to 

satisfy the applicable requirements of 

subpart E (Emergency Response) in a 

number of different ways beyond 

training and equipping the source’s own 

employees to respond to releases. For 

example, EPA has observed situations 

where stationary source owners or 

operators supplement their on-site 

response capability using response 

contractors, or via mutual aid 

agreements with other nearby sources. 

In the RMP Guidance, EPA explained 

that this may be the most appropriate 

course of action to comply with the 

emergency response requirements of 

subpart E, particularly for small sources 

with few employees: 180

EPA recognizes that, in some cases 

(particularly for retailers and other small 

operations with few employees), it may not 

be appropriate for employees to conduct 

response operations for releases of regulated 

substances. For example, it would be 

inappropriate, and probably unsafe, for an 

ammonia retailer with only one full-time 

employee to expect that a tank fire could be 

handled without the help of the local fire 

department or other emergency responder. 

EPA does not intend to force such facilities 

to develop emergency response capabilities. 

At the same time, you are responsible for 

ensuring effective emergency response to any 

releases at your facility. If your local public 

responders are not capable of providing such 

response, you must take steps to ensure that 

effective response is available (e.g., by hiring 

response contractors). 

Such arrangements would continue to 

be acceptable to the Agency as a means 

to meet a facility’s emergency response 

program obligations. Alternatively, 

stationary source owners or operators 

can work with local emergency response 

officials to identify gaps in local 

responder capabilities, and assist local 

authorities in supplementing those 

capabilities, as appropriate, by 

providing the equipment or training 

needed to allow local public responders 

to prepare for and carry out an 

appropriate response to accidental 

releases at the source. Close and 

ongoing coordination between 

stationary source owners or operators 

and local responders will allow such 

capability gaps to be quickly identified 

and corrected and appropriate response 

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181CSB. March 2007. Investigation Report: VCM 

Explosion, FPC., Illiopolis, Illinois, April 23, 2004; 

Report No. 2004–10–I–IL. http://www.csb.gov/

assets/1/19/Formosa_IL_Report.pdf. 

182CSB. January 2016. Final Investigation Report: 

West Fertilizer Company Fire and Explosion, West, 

TX, April 17, 2013. Report No. 2013–02–I–TX, pp. 

14, 116–117, 200–204, 241–242. http://

www.csb.gov/west-fertilizer-explosion-and-fire-/. 

183EPA. January 27, 2016. Technical Background 

Document for Notice of Proposed Rulemaking: Risk 

Management Programs under the Clean Air Act, 

Section 112(r)(7). 

184CSB. May 2003. Investigation Report: Chlorine 

Release, DPC Enterprises, L.P., Festus, Missouri, 

August 14, 2002. Report No. 2002–04–I–MO. http:// 

www.csb.gov/assets/1/19/DPC_Report.pdf. 

185CSB. February 2007. Investigation Report: 

Chlorine Release, DPC Enterprises, L.P., Glendale, 

Arizona, November 17, 2003. Report No. 2004–02– 

I–AZ. http://www.csb.gov/assets/1/19/DPC2-_

Final.pdf. 

plans to be developed. Coordination 

will also assist local responders in 

complying with other Federal, state, and 

local emergency preparedness, 

planning, and response requirements, 

such as planning requirements under 

EPCRA, training requirements under the 

OSHA Hazardous Waste Operations and 

Emergency Response standard (29 CFR 

1910.120), and other applicable 

requirements. 

As part of the SBAR Panel process, 

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 requirements. SERs 

requested clarification on how to 

comply with coordination requirements 

when facility owners or operators make 

good faith efforts to coordinate with 

local emergency response officials who 

do not respond to coordination 

attempts. EPA recommends that these 

coordination attempts be documented 

and maintained at the facility. However, 

if the LEPC is inactive and has not 

developed a community emergency 

response plan or has not included the 

facility in the plan (for toxic 

substances), or the owner or operator is 

unable to coordinate response actions 

with the local fire department (for 

flammable substances), then the owner 

or operator must develop an emergency 

response program in accordance with 

§ 68.95. 

EPA seeks comment on this approach. 

Will the proposed amendments 

contribute to improvements in 

emergency response planning and 

coordination? Are there additional 

practices that EPA should consider that 

significantly improve planning and 

coordination? Should EPA further 

clarify what is necessary for RMP 

facility owners or operators to 

adequately coordinate their emergency 

response program with local 

authorities? Should coordination 

activities and emergency plan updates 

be required annually, or is some other 

frequency appropriate? How should 

disagreements between local authorities 

and the source owner or operator 

concerning which party should provide 

for an emergency response to releases of 

regulated substances at the source be 

resolved? When an LEPC makes a 

written request for the owner or 

operator to comply with the emergency 

response program requirements of 

§ 68.95, should the LEPC be required to 

provide a rationale for the request that 

meets certain criteria, to ensure that the 

request is reasonable? If so, what criteria 

should be established? 

2. Alternative Options 

EPA considered an alternative that 

would require owners and operators of 

all stationary sources with Program 2 or 

Program 3 processes to comply with the 

full emergency response program 

requirements of § 68.95. Under this 

option, RMP facilities would still be 

required to perform the annual local 

coordination and to document activities 

described previously. However, it 

would eliminate the flexibility of the 

current rule and require all Program 2 

and Program 3 facilities to be 

‘‘responding’’ facilities. EPA did not 

propose this approach because it does 

not consider the existing capabilities of 

local responders and shifts to the 

regulated stationary sources the burden 

associated with developing and 

maintaining an appropriate and 

effective emergency response capability 

from local responders in communities 

that may have adequate capabilities. 

Additionally, EPA believes that this 

approach would place an unnecessary 

burden on small facilities. 

EPA seeks comment on this 

alternative approach and whether there 

are any other alternative options that 

EPA should consider prior to issuing a 

final action. 

B. Facility Exercises 

Exercising an emergency response 

plan is critical to ensure that response 

personnel understand their roles, that 

local emergency responders are familiar 

with the hazards at the facility, and that 

the emergency response plan is 

appropriate and up-to-date. It ensures 

that personnel are properly trained and 

lessons learned from exercises can be 

used to identify future training needs. 

Poor emergency response procedures 

during some recent accidents have 

highlighted the need for facilities to 

conduct periodic emergency response 

exercises. For example, the CSB’s 

investigation of the April 2004 vinyl 

chloride monomer (VCM) explosion at 

the FPC USA in Illiopolis, Illinois, 

found that the facility’s failure to 

rehearse a response to a large VCM 

release made the consequences of the 

accident significantly worse, and likely 

contributed to the deaths of operators at 

the facility.181 The CSB found that after 

the VCM release began, and despite 

knowingly working directly over a toxic 

and highly flammable VCM cloud, two 

operators did not put on protective 

breathing apparatus, activate emergency 

alarms, or evacuate the facility, contrary 

to emergency response actions outlined 

in facility emergency procedures. These 

operators consequently died as a result 

of injuries received during the ensuing 

explosion. 

Failure to conduct emergency 

exercises involving local authorities 

may also have resulted in injuries and 

fatalities to local responders. As 

previously indicated, 12 local 

responders died as a result of injuries 

received during the West Fertilizer 

explosion, and the CSB investigation 

report findings show that inadequate 

emergency planning contributed to the 

severity of the accident and that 

responders were not sufficiently aware 

of the risks at the facility.182 According 

to accident history information obtained 

from EPA’s RMP national database, 

accidents occurring between 2004 and 

2014 resulted in at least 44 responder 

injuries and 2 additional fatalities.183

The 2002 accident involving a chlorine 

release at DPC Enterprises in Festus, 

Missouri, resulted in 66 people seeking 

medical attention at the local hospital, 

including 63 members of the 

community surrounding the facility. 

The CSB’s investigation found that 

DPC’s emergency response plan had 

inadequate procedures for training and 

drills, and that these deficiencies 

resulted in DPC’s inadequate 

preparation for a large uncontrolled 

chlorine release.184 In 2003, another 

DPC Enterprises facility in Glendale, 

Arizona, had an accident involving a 

large chlorine release. In that accident, 

11 Glendale police officers responding 

to the accident were exposed to chlorine 

and required medical treatment. The 

CSB’s investigation found that police 

officers responding to the accident to 

assist in evacuation of nearby residents 

entered the hazardous area without any 

respiratory protection. The CSB 

recommended that the Glendale fire and 

police departments schedule periodic 

hazardous materials incident drills to 

ensure safe and effective responses to 

future hazardous materials incidents.185

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186CSB. April 2006. Investigation Report: Toxic 

Chemical Vapor Cloud Release, MFG Chemical, 

Inc., Dalton, Georgia, April 12, 2004. Report No. 

2004–09–I–GA. http://www.csb.gov/assets/1/19/

MFG_Report.pdf. 

187USCG, EPA, and DOI. August 2002. National 

PREP Guidelines. http://www.au.af.mil/au/awc/

awcgate/uscg/prep_gid.pdf. 

188NJDEP, Title 7, Chapter 31 Toxic Catastrophe 

Prevention Act Program, Consolidated Rule 

Document, Section 7:31–5.2; http://www.state.nj.us/ 

dep/rpp/brp/tcpa/downloads/conrulerev9_

no%20fonts.pdf. 

189 Gablehouse, T. October 28, 2014. Comment 

No. EPA–HQ–OEM–2014–0328–0679 on Risk 

Management Program RFI, PDF pg 5–6, NASTTPO, 

Denver, CO. 

190CCPS. 2007. Guidelines for Risk Based Process 

Safety. American Institute of Chemical Engineers, 

CCPS, NY, Wiley. pp. 513, 524–526, 538–540. 

On April 12, 2004, a runaway 

chemical reaction at MFG Chemical, 

Inc., in Dalton, Georgia, resulted in the 

release of toxic vapor clouds of allyl 

alcohol and allyl chloride into the 

surrounding community. The accident 

resulted in the evacuation of more than 

200 families and medical treatment for 

154 people, including 15 responders. 

The CSB found that MFG did not train 

or equip employees to conduct 

emergency mitigation actions, and that 

local emergency response agencies did 

not adequately prepare for responding 

to emergencies involving hazardous 

chemicals. The CSB recommended that 

the facility obtain equipment and 

provide emergency response training to 

employees, and that local agencies 

conduct drills for emergencies at fixed 

facilities.186

Other EPA and Federal agency 

programs require exercises as an 

element of their emergency response 

programs. For example, under the Oil 

Pollution Prevention regulation (40 CFR 

part 112), facilities subject to the 

Facility Response Plan (FRP) provisions 

are required to conduct exercises, 

including evaluation procedures 

(§ 112.21). FRP facility owners and 

operators are encouraged to follow the 

National Preparedness for Response 

Exercise Program (PREP) Guidelines,187

which were developed to provide a 

mechanism for compliance with EPA, 

U.S. Coast Guard (USCG), and U.S. 

Department of the Interior (DOI) 

exercise requirements for oil pollution 

response. The PREP guidelines include 

both internal and external exercise 

components. Internal exercises include 

notification exercises, emergency 

procedure exercises, spill management 

team tabletop exercises, and equipment 

deployment exercises. External 

exercises include area exercises that 

include members of the response 

community, and government-initiated 

unannounced exercises. 

Other examples include exercises that 

the U.S. Nuclear Regulatory 

Commission (NRC), in conjunction with 

the Federal Emergency Management 

Agency, requires commercial nuclear 

power plant operators to perform with 

state and local governments. These 

exercises evaluate both on-site and 

offsite emergency response capabilities. 

The NRC requires all nuclear reactor 

emergency plans to address the 

necessary provisions for coping with 

radiological emergencies at each facility 

in accordance with 10 CFR 50.54(q), 

Appendix E to 10 CFR 50, and for 

commercial nuclear power reactors 

only, 10 CFR 50.47(b). Reactor operators 

are required to train personnel and 

perform emergency preparedness 

exercises in order to test the adequacy 

of the plans, ensure personnel are 

familiar with their duties, and maintain 

response capabilities. 

Some state and local regulations also 

require emergency response exercises. 

For example, the New Jersey TCPA, 

which incorporates the requirements of 

40 CFR part 68, contains certain 

additional provisions imposed under 

state law, including a requirement for 

regulated facilities to perform at least 

one emergency response exercise per 

calendar year. Non-responding facilities 

are required to invite at least one 

outside responding agency designated 

in the emergency response plan to 

participate in the exercise, and 

employees of the facility are required to 

perform their assigned responsibilities 

for all emergency response exercises. 

Owners or operators of all other 

facilities are required to perform at least 

one full scale emergency response 

exercise in which the emergency 

response team as well as containment, 

mitigation, and monitoring equipment 

are deployed at a strength appropriate to 

demonstrate the adequacy and 

implementation of the plan.188

In comments received from the 

Agency’s recent RFI, the National 

Association of Superfund Amendments 

and Reauthorization Act (SARA) Title 

Three Program Officials (NASTTPO), 

which represents members of State 

Emergency Response Commissions 

(SERCs), Tribal Emergency Response 

Commissions (TERCs), and LEPCs, has 

encouraged EPA to require RMP 

facilities to conduct exercises that 

include local first responders and 

realistic accident scenarios.189

In addition to specific Federal and 

state requirements for conducting 

exercises and the NASTTPO comments, 

industry guidelines recommend 

conducting exercises. The CCPS 

Guidelines for Risk Based Process Safety 

recommend periodically testing the 

adequacy of emergency response plans 

and level of preparedness of responders, 

including contractors and local response 

agencies.190

In the original proposed RMP rule (58 

FR 54190, October 20, 1993), EPA had 

included within the emergency 

response program provisions a proposed 

requirement for regulated sources to 

conduct emergency exercises. In the 

final RMP rule (61 FR 31668, June 20, 

1996), EPA decided not to finalize this 

requirement (and several other 

additional emergency response program 

provisions), for two reasons. First, the 

Agency decided to limit the emergency 

response program requirements to the 

minimum requirements contained in 

CAA section 112(r)(7) in order to avoid 

inconsistency with other emergency 

response planning regulations. Second, 

the Agency indicated that the additional 

requirements were already addressed in 

other Federal regulations and therefore, 

sources were already doing them. 

However, EPA’s experience with 

implementing the RMP rule over nearly 

two decades, along with incidents such 

as those described above, indicate that 

many regulated sources do not regularly 

conduct emergency exercises that 

involve local response authorities. The 

Agency now believes that adding this 

provision to the regulation will likely 

reduce the severity of some accidents 

that do occur. 

1. Proposed Exercise Program 

Requirements 

In order to further improve 

coordination with community 

responders and ensure that both facility 

personnel and local responders have 

practice responding to accidental 

releases at RMP facilities, EPA is 

proposing to require most regulated 

facilities to perform exercises as an 

element of the emergency response 

program identified under subpart E. 

Proposed § 68.96 would require both 

responding and non-responding RMP 

facilities with any Program 2 or 3 

process to perform emergency exercises. 

a. Notification Exercises 

EPA proposes a new paragraph 

§ 68.96(a) to require facilities with any 

Program 2 or Program 3 process to 

annually perform an exercise of the 

source’s emergency notification system. 

This exercise would include contacting 

the Federal, Tribal, state, and local 

public emergency response authorities, 

and other external responders that 

would respond to accidental releases at 

the source. The purpose of these 

notifications is to ensure facility 

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13676 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

191EPA. May 1988. Guide to Exercises in 

Chemical Emergency Preparedness Programs, 

OSWER 88006. 

personnel understand how to initiate 

the notification system and to test the 

emergency contact information to 

ensure it is up-to-date. As part of the 

notification exercise, the individual 

making the notifications should clearly 

indicate that the call is part of an 

exercise to test the notification system. 

The owner or operator would be 

required to document these notification 

exercises and maintain a written record 

of each exercise conducted for a period 

of five years. The owner or operator 

would also be required to provide 

copies of the report to local response 

officials, and to make the report 

available to the public in accordance 

with §§ 68.205 and 68.210. 

As non-responding facilities will rely 

on local authorities to respond to 

accidental releases at the source, EPA 

believes that the proposed facility 

notification exercises will be an 

important supplement to the existing 

requirement for local emergency plan 

exercises under EPCRA section 

303(c)(9), which requires local 

emergency plans to include methods 

and schedules for exercising the plan. 

Responding facilities will be required to 

meet additional field and tabletop 

exercise requirements below, which in 

many cases will also involve the 

participation of local authorities. 

Notifications to Federal, state, and local 

officials conducted as part of the field 

or tabletop exercise may also serve to 

meet the annual notification exercise 

requirements provided that the owner or 

operator documents these notification 

exercises. 

EPA is also proposing to modify 

§ 68.95(a)(1)(i) to clarify that the 

emergency response program should 

include procedures for performing 

appropriate notifications to Federal and 

state emergency response agencies, as 

well as the public and local emergency 

response agencies, about accidental 

releases. This could include, for 

example, any required notifications to 

the National Response Center, as 

required by section 103(a) of CERCLA, 

and/or notifications to the SERC as 

required by section 304 of EPCRA. 

b. Responding Facility Field and 

Tabletop Exercises 

EPA is proposing a new paragraph 

§ 68.96(b) to require responding 

facilities to develop and implement an 

emergency response exercise program 

that uses the emergency response plan 

required under § 68.95(a)(1). EPA is 

proposing to require two types of 

exercises—field exercises and tabletop 

exercises. The owner or operator would 

be required to coordinate with local 

public emergency response officials in 

planning and conducting exercises, and 

invite local officials to participate in 

exercises. However, participation in an 

exercise by local responders is not 

required for a facility to comply with 

the exercise provisions. 

i. Field Exercises 

Field exercises involve the actual 

performance of emergency response 

functions during a simulated accidental 

release event. Field exercises involve 

mobilization of firefighters and/or 

hazardous materials response teams, 

activation of an incident command 

structure, deployment of response 

equipment, evacuation or sheltering of 

facility personnel as appropriate, and 

notification and mobilization of law 

enforcement, emergency medical, and 

other response personnel as determined 

by the scenario and the source’s 

emergency response plan.191

Section 68.96(b)(1) would require the 

owner or operator to conduct an 

emergency response field exercise 

involving the simulated accidental 

release of a regulated substance at least 

once every five years and within one 

year of any accidental release meeting 

the criteria in § 68.42(a). If the facility is 

required to conduct a field exercise as 

a result of an RMP reportable accident, 

then this would effectively reset the 

timeframe for when the next five-year 

field exercise is due. 

EPA is proposing that the scope of the 

field exercises would include tests of: 

• Procedures for informing the public and 

the appropriate Federal, state, and local 

emergency response agencies about an 

accidental release; 

• procedures and measures for emergency 

response after an accidental release of a 

regulated substance including evacuations 

and medical treatment; 

• communications systems; 

• mobilization of facility emergency 

response personnel; 

• coordination with local emergency 

responders; 

• equipment deployment, and 

• other actions identified in the source’s 

emergency response plan, as appropriate. 

ii. Tabletop Exercises 

Tabletop exercises are discussionbased exercises without the actual 

deployment of response equipment. 

During tabletop exercises, responders 

typically assemble in a meeting location 

and simulate procedural and 

communications steps for response to a 

simulated accidental release, as 

determined by the scenario and the 

source’s emergency response plan. 

In § 68.96(b)(2) EPA is proposing to 

require the owner or operator to 

annually conduct an emergency tabletop 

exercise involving the simulated 

accidental release of a regulated 

substance, except during years when 

field exercises are conducted. The scope 

of a tabletop exercise would include 

tests of: 

• Procedures for informing the public and 

the appropriate Federal, state, and local 

emergency response agencies about an 

accidental release; 

• procedures and measures for emergency 

response after an accidental release of a 

regulated substance including evacuations 

and medical treatment; 

• identification of facility emergency 

response personnel and responsibilities; 

• coordination with local emergency 

responders; 

• procedures for the use of emergency 

response equipment, and other actions 

identified in the source’s emergency response 

plan, as appropriate. 

c. Exercise Reports & Program Updates 

EPA is proposing in § 68.96(b)(3) to 

require the owner or operator to 

evaluate each exercise and prepare a 

written report within 90 days of the 

exercise. The report would include: 

• A description of the exercise scenario; 

• names and associations of each exercise 

participant; 

• an evaluation of the results of the 

exercise including lessons learned; 

• recommendations for improvement or 

revisions to the emergency exercise program 

and emergency response program; and 

• a schedule to promptly address and 

resolve recommendations. 

The report would also include an 

evaluation of the adequacy of 

coordination with local emergency 

response authorities, and other external 

responders, as appropriate. Section 

68.96(b)(3) would also require the 

owner or operator to update the 

emergency exercise program and 

emergency response program at least 

annually, and more frequently if 

necessary to incorporate 

recommendations and lessons learned 

from emergency response exercises, 

incident investigations, or other 

available information. The owner or 

operator would also be required to 

provide schedules of exercises and 

copies of exercise reports to local 

response officials, and to make exercise 

reports available to the public in 

accordance with §§ 68.205 and 68.210. 

Exercise reports would be maintained 

for five years. 

d. Updates to § 68.12 (General 

Requirements) 

EPA is proposing to revise § 68.12 

(General Requirements) to be consistent 

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192Chemical Facility Safety and Security Working 

Group. May 2014. Executive Order 13650 Report to 

the President—Actions to Improve Chemical 

Facility Safety and Security—A Shared 

Commitment, pgs. 93–94. https://www.osha.gov/

chemicalexecutiveorder/final_chemical_eo_status_

report.pdf. 

193CSD. October 20, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0424 on Risk Management 

Program RFI, pgs. 2–3. 

194 Gablehouse, T. October 28, 2014. Comment 

No. EPA–HQ–OEM–2014–0328–0679 on Risk 

Management Program RFI, PDF p. 2, 4, & 6, 

NASTTPO, Denver, CO. 

195Elder, M., October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0641 on Risk 

Management Program RFI, p. 3, OHMERC. 

196MKOPSC. October 29, 2014. Comment No. 

EPA–HQ–OEM–2014–0328–0543 on Risk 

Management Program RFI, pgs. 162, 165. 

with these proposed exercise 

requirements. EPA is proposing to 

revise the Program 2 and Program 3 

requirements under § 68.12 by 

renumbering paragraph § 68.12(c)(4) as 

§ 68.12(c)(5) (for Program 2) and 

§ 68.12(d)(4) as § 68.12(d)(5) (for 

Program 3), adding a reference to 

exercise requirements, and correcting 

citations to subpart E. 

EPA is aware that while not all 

facilities regulated under the RMP rule 

conduct emergency exercises, many do, 

and the Agency believes that exercises 

conducted in accordance with other 

Federal, state, or local requirements, or 

exercises conducted in conjunction with 

a facility’s trade association 

membership or code of practice, etc., 

may be used to satisfy the new 

requirements to the extent those 

exercises address the specific regulatory 

provisions contained herein. 

EPA seeks comment on this approach. 

Are there additional exercise provisions 

that EPA should consider to improve 

the ability of RMP facility personnel and 

local authorities to respond to 

accidental releases? Are annual 

exercises sufficient or should EPA 

consider alternative frequencies? What 

information regarding exercises would 

be most helpful to the public while 

maintaining a balance for security?’’ 

Some SERS expressed concern that local 

emergencies could force a facility to 

postpone an exercise. EPA seeks 

comments on how best to address 

emergency postponement and 

rescheduling of exercises. EPA also 

seeks comment on whether to eliminate 

the requirement for tabletop and field 

exercises. 

2. Alternative Options 

EPA considered two alternative 

approaches to requiring emergency 

exercises. The first alternative option 

would also require responding and nonresponding facilities to conduct an 

annual emergency notification system 

exercise. However, under this option 

responding facilities would additionally 

be required to conduct only annual 

tabletop exercises; emergency field 

exercises would not be required. This 

alternative option would be a lower cost 

option for responding facilities, as field 

deployment of the source’s equipment 

and personnel would not be required. 

However, it may also result in less 

realistic and less effective emergency 

exercises. 

The second alternative approach 

considered by EPA would contain the 

same provisions for notification 

exercises as in the proposed option, but 

would require responding facilities to 

conduct field exercises annually, 

instead of tabletop exercises. This 

approach would be similar to the New 

Jersey TCPA emergency exercise 

provisions, and provide for a 

comprehensive test of all systems under 

the emergency exercise program for 

responding facilities. However, the costs 

of this approach would be significantly 

higher than the proposed approach. 

EPA seeks comment on these 

alternative approaches and whether 

there are any other alternative options 

that EPA should consider prior to 

issuing a final action. 

VI. Information Availability 

Requirements 

Ensuring that communities, local 

planners, local first responders, and the 

public have appropriate chemical 

facility hazard-related information is 

critical to the health and safety of the 

responders and the local community. 

Throughout the many public meetings 

and outreach efforts related to Executive 

Order 13650, LEPCs, first responders, 

and members of the public stated that 

chemical facility information and datasharing efforts need significant 

improvement.192 Specifically, LEPCs 

and first responders want to have access 

to the most relevant chemical hazard 

and risk information for their needs, in 

a user-friendly format, to better support 

planning and preparedness efforts. 

Community residents, operators of 

community facilities (such as daycares 

and nursing homes) and organizations 

consistently noted that they need basic 

information regarding chemical risks at 

facilities, presented in a clear and 

consistent manner, so that they can 

effectively participate in preparedness 

and planning to address such issues as 

effective emergency notification 

procedures, evacuation, and sheltering 

in place. In response to these issues, 

EPA is proposing ways to enhance 

information sharing and collaboration 

between chemical facility owners and 

operators, tribal and local emergency 

planning committees, first responders, 

and the public, in a manner that 

balances security and proprietary 

considerations. Some public 

commenters responding to EPA’s RMP 

RFI elaborated the need for more public 

access to information about the RMP 

facilities. The Center for Science and 

Democracy (CSD) stated that public 

access to information is key to enabling 

communities to hold facility owners and 

operators accountable for reducing risks 

as much as possible, and for being 

prepared should an accident occur. 

According to CSD, facility owners and 

operators should be responsible for 

ensuring that appropriate measures are 

in-place to handle an emergency and 

should be fully communicating with 

local authorities on the development of 

community emergency response plans 

that include chemical facilities.193

NASTTPO requested EPA consider 

providing information on emergency 

planning and exercises, audit reports, 

and RMP Executive summaries that 

include information such as accident 

histories, and names of RMP-regulated 

substances.194

Oklahoma Hazardous Materials 

Emergency Response Commission 

(OHMERC) also commented and 

requested posting of chemical 

information including an RMP summary 

along with Tier2 information on a 

company Web site at a minimum. They 

also requested making the following 

information available to LEPCs: The 

facility emergency response plan, 

accident history, along with OCA.195

The MKOPSC stated that most of the 

information is already available online 

and from LEPCs and need not be 

provided on a Web site. But MKOPSC 

noted that LEPCs can utilize the 

information to understand the risk in 

the communities and involve local 

facilities, local officials, SERCs, local 

citizens and EPA to have dialogues to 

improve regulatory compliance and 

promote safety. MKOSPSC also believes 

it is also important to let the public 

understand how the facilities address 

the hazard present in their community 

and keep the risk at or below the 

‘‘acceptable level.’’ When local citizens 

have adequate information and 

knowledge, facility owners and 

operators may be motivated to 

continuously improve their safety in 

response to community pressure and 

oversight.196

CCHS noted that requiring facility 

owners or operators to make this 

information available on the company 

Web site would promote improved 

regulatory compliance, because the 

more willing a facility is to be open and 

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197CCHS. October 28, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0546 on Risk Management 

Program RFI pg. 13. 

198USW. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0547 on Risk Management 

Program RFI, pg. 6. 

199CPCD. October 29, 2014. Comment No. EPA– 

HQ–OEM–2014–0328–0644 on Risk Management 

Program RFI, pgs. 36–37. 

200CSB. July 10, 2007. CSB News Release: CSB 

Chairman Merritt Describes the Lessons from Five 

Years of Board Investigations to Senate Committee, 

Urges Additional Resources and Clearer Authorities 

for Federal Safety Efforts. http://www.csb.gov/csbchairman-merritt-describes-the-lessons-from-fiveyears-of-board-investigations-to-senate-committeeurges-additional-resources-and-clearer-authoritiesfor-federal-safety-efforts/. 

201CSB. January 20, 2011. CSB issues report on 

2008 Bayer Cropscience explosion: Finds multiple 

deficiencies led to runaway chemical reaction; 

recommends states create chemical plant oversight 

regulation. http://www.csb.gov/csb-issues-report-on2008-bayer-cropscience-explosion-finds-multipledeficiencies-led-to-runaway-chemical-reactionrecommends-state-create-chemical-plant-oversightregulation/. 

202Morris, Jim and Chris Hamby, Center for 

Public Integrity. February 24, 2011; Updated May 

19, 2014. Fueling Fears—Use of toxic acid puts 

millions at risk. http://www.publicintegrity.org/

2011/02/24/2118/use-toxic-acid-puts-millions-risk. 

203See 40 CFR part 1400: Accidental Release 

Prevention Requirements; Risk Management 

Programs Under the CAA Section 112(r)(7); 

Distribution of OCA Information (65 FR 48108, 

August 4, 2000). http://www.gpo.gov/fdsys/pkg/FR2000-08-04/pdf/00-19785.pdf. 

transparent the greater that company is 

willing to address issues that relate to 

safety.197 The United Steel Workers 

(USW) stated that making unrestricted 

RMP information publicly available 

would increase compliance, as it 

enables communities to hold facilities 

accountable and gives facilities greater 

incentive to strengthen safety measures 

and to comply with regulations.198 The 

Coalition to Prevent Chemical Disasters 

(CPCD) believes that schools located 

within vulnerability zones of RMP 

facilities need to have chemical disaster 

drills in place, but that many schools 

are unaware of any risks. In CPCD’s 

view, not informing communities about 

chemical risks reduces their ability to 

prepare for potential disasters involving 

specific chemical releases. CPCD argues 

that first responders need to know what 

chemicals they are facing and what 

emergency equipment to use. CPCD 

believes that information, such as 

compliance audits and incident 

investigation reports, should be 

disclosed to LEPCs and that with this 

information, active LEPCs can better 

include local communities in 

emergency planning and training.199

CPCD made reference to testimony 

made six years prior to the West disaster 

by a former CSB chairperson about her 

concern for: 

a lack of chemical emergency preparedness 

that our investigations have found among 

many communities where accidents strike. 

Preventing accidents and mitigating their 

impact requires an active partnership 

between communities and industrial 

facilities. If that partnership is missing, the 

stage is set for a potentially severe impact on 

the community.200

Poor communication between facility 

personnel and first responders, as well 

as poor communication between facility 

personnel and communities, has been 

shown to contribute to the severity of 

chemical accidents. One example is the 

Bayer CropScience explosion that 

occurred in Institute, West Virginia, in 

2008. According to the CSB, 

The Bayer fire brigade was at the scene in 

minutes, but Bayer management withheld 

information from the county emergency 

response agencies that were desperate for 

information about what happened, what 

chemicals were possibly involved . . . The 

Bayer incident commander, inside the plant, 

recommended a shelter in place; but this was 

never communicated to 911 operators. After 

a few hours of being refused critical 

information, local authorities ordered a 

shelter in place, as a precaution.201

Improper communication between the 

facility and the first responders during 

the accident led to a delay in 

implementing a public shelter-in-place 

order for the local community, and may 

have resulted in toxic exposure to onscene public emergency responders. 

After a release of HF from the Citgo 

Refinery in Corpus Christi, Texas, in 

July 2009, nearby residents complained 

of headaches, nausea, and respiratory 

issues, though Citgo claimed that the 

toxic cloud stopped at the plant fence 

line. According to reports, neighbors 

could see the flames and smoke coming 

from the refinery, but they were unable 

to get information on the accident and 

potential risks to their community.202

The previous examples and public 

comments demonstrate the need for 

better communication of the potential 

risks associated with accidental releases 

at stationary sources. However, in 

making information more readily 

available EPA must also recognize and 

balance the associated security concerns 

because the public sharing of certain 

specific facility information and any 

associated vulnerabilities has the 

potential to aid terrorists in planning an 

attack. The RMP rule was published in 

1996, before many computer-based and 

other information-sharing methods were 

widely used. At the time of initial 

publication of the rule, EPA expected 

information to be disclosed to the public 

through disclosure of the entire RMP. 

After the CSISSFRRA was enacted on 

August 5, 1999, EPA restricted access to 

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). Governmental officials continue 

to have electronic access to OCA 

information, subject to certain 

restrictions, while the public may view 

OCA information only at Federal 

Reading Rooms around the country and 

only for a limited number of RMPs at 

any one time. The non-OCA portions of 

the RMPs are available from EPA to the 

public either through Freedom of 

Information Act (FOIA) request, by 

inspection at Federal Reading Rooms, or 

from a person’s SERC, LEPC, or related 

state or local government agencies.203

EPA is proposing to require certain 

information to be made available, upon 

request, to LEPCs and emergency 

response officials to help them to 

understand the potential risks at RMP 

regulated facilities, as well as to aid 

them in emergency planning and 

response activities. EPA is also 

proposing to amend the information 

sharing provisions for the public to 

make existing information more easily 

accessible to neighboring communities 

to encourage them to prepare for an 

emergency. EPA also believes that the 

revisions will likely contribute to the 

prevention of future chemical accidents. 

Cognizant of the spirit and intent of the 

CSISSFRRA, the proposed revisions do 

not disclose the substance or form of 

information subject to restriction under 

CAA 112(r)(7)(H) or 40 CFR part 1400. 

EPA has two objectives for improving 

public information sharing provisions of 

the RMP rule. The first is to ensure that 

local emergency response and planning 

officials have the information they need 

to prepare for an emergency response to 

an accidental release at a stationary 

source. This includes determining what 

information is appropriate to improve 

community emergency response plans 

and ensure the safety of the local 

responders and the community. EPA 

must also determine the appropriate 

frequency for updating this information 

to avoid overwhelming local planners 

while ensuring information is current. 

While developing emergency response 

plans, LEPCs and facility owners or 

operators should also involve local 

citizens to help them understand the 

appropriate actions they should take in 

the event of an accidental release. This 

may reduce public panic and enable 

residents to act quickly and 

appropriately to protect themselves. 

The second objective is to help 

improve public awareness of risks in 

their communities and provide 

information on where they can learn 

more about preparedness and 

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community emergency response plans. 

Any publicly available information 

should be in a format that is easily 

accessible. The goal is to encourage 

residents to learn about community 

emergency response plans and 

understand what actions they need to 

take during an emergency to protect 

themselves. 

EPA is proposing to add provisions 

for sharing information, upon request, 

with LEPCs and/or emergency response 

officials and revise the existing 

provisions for sharing information with 

the public. EPA is also proposing that 

facility owners and operators conduct 

public meetings within 30 days of an 

RMP reportable accident to discuss 

chemical hazards present at facilities 

and provide information on accidental 

releases. These meetings can provide 

opportunities for facilities to engage the 

public to address concerns following an 

accidental release and explain how 

facilities will prevent future accidents. 

A. Proposed Public Disclosure 

Requirements to LEPCs or Emergency 

Response Officials 

EPA is proposing to add requirements 

to subpart H—Other Requirements that 

apply to all facilities regulated under 

the RMP rule, including facilities with 

Program 1 processes. EPA proposes to 

add § 68.205 to require owners and 

operators to provide information to local 

emergency responders and LEPCs upon 

request. If information required under 

this proposal is already available to the 

public on a company Web site, the 

owner or operator may comply by 

providing the Web site link to the first 

responders and LEPC. Paragraph 

§ 68.205(a) would require that the RMP 

be accessible to local emergency 

responders and LEPCs in the exact same 

manner as the current requirement 

under § 68.210(a). A reference to 42 

U.S.C. 7414(c), which covers 

information and reports (such as the 

RMP) required under section 42 U.S.C. 

7412, is included to show the authority 

under which the non-OCA portion of an 

RMP shall be available to the public, 

except for any information that would 

divulge methods or processes entitled to 

protection of CBI or trade secrets. This 

reference is already part of the current 

§ 68.210(a). A reference to 40 CFR part 

1400 has been added to address the 

disclosure restrictions under 

CSISSFRRA (i.e., restrictions on the 

disclosure of OCA information). EPA is 

not changing its policy regarding OCA 

information. The reference to 40 CFR 

part 1400 only clarifies the statutory 

obligations that relate to securing this 

information. 

Under paragraph § 68.205(b), EPA 

would require the owner or operator to 

develop summaries of specific chemical 

hazard information for all of their 

regulated processes and provide this 

information, upon request, to the LEPC 

or local emergency response officials as 

part of their emergency response 

coordination efforts. The facility should 

make information available in a manner 

that is understandable and avoids 

technical jargon. The information 

should be conveyed without revealing 

CBI or trade secret information. The 

information must adequately explain 

the findings, results, or analysis being 

provided. 

The specific information that must be 

provided to LEPCs or emergency 

response officials upon request is 

outlined below: 

Information on Regulated Substances. 

Information related to the names and 

quantities of regulated substances at the 

source (paragraph § 68.205(b)(1)). This 

only applies to regulated substances 

held in a process above the TQ. 

Accident History Information. The 

facility’s accident history information 

required under § 68.42 (paragraph 

§ 68.205(b)(2)). 

Compliance Audit Reports. 

Summaries of compliance audit reports 

required under §§ 68.58 and 68.59 (for 

Program 2 processes), or §§ 68.79 and 

68.80 (for Program 3 processes), as 

applicable (paragraph § 68.205(b)(3)). 

The audit report summary shall include: 

• The date of the report; 

• The name and contact information of the 

auditor and the facility contact person; 

• A brief description of the audit findings; 

• An appropriate response to each of the 

findings; and 

• A schedule for addressing each of the 

findings. 

Incident Investigation Reports. 

Summaries of incident investigation 

reports required under § 68.60(d) (for 

Program 2 processes) or § 68.81(d) (for 

Program 3 processes), as applicable 

(paragraph § 68.205(b)(4)). The incident 

investigation report summary shall 

include: 

• A description of the incident and events 

leading up to it, including a timeline; 

• A brief description of the process 

involved; 

• The names and contact information of 

personnel on the investigation team; 

• The direct cause, contributing cause, and 

root cause of the incident; 

• The on-site and offsite impacts; 

• The emergency response actions taken; 

• Any recommendations; and 

• A schedule for implementing 

recommendations, as applicable. 

Inherently Safer Technologies (IST). 

For each process in NAICS codes 322, 

324, and 325, a summary of the IST or 

ISD identified in accordance with 

§ 68.67(c)(8) that the owner or operator 

has implemented or plans to implement 

(paragraph § 68.205(b)(5)). The owner or 

operator shall update this summary as 

part of the calendar year submission if 

any of the summary information has 

been revised as a result of the safer 

technology analysis that is conducted as 

part of the update to the PHA prepared 

in accordance with § 68.67(f). The 

calendar year submission should also 

identify whether any revisions were 

incorporated. The IST/ISD summary 

shall include, at a minimum: 

• The RMP process ID and process 

description, if provided, of the process 

affected; 

• A brief description of the IST or ISD and 

which type of measure best characterizes it: 

Minimization, substitution, modernization, 

or simplification; 

• The names of the regulated substance(s) 

whose hazard, potential exposure, or risk was 

or will be reduced as a result of the 

implementation and whether the substance is 

listed as toxic or flammable. If the chemicals 

affected are a mixture of flammable 

substances, the name ‘‘flammable mixture’’ 

may be used, instead of the individual 

flammable substance names; and 

• The dates of implementation or planned 

implementation. 

Exercises. Information on emergency 

response exercises conducted under 

§ 68.96, including, at a minimum, 

schedules for upcoming exercises, 

reports for completed exercises, and 

other related information (paragraph 

§ 68.205(b)(6)). 

EPA believes that summary 

information on findings from incident 

investigations, compliance audits, 

exercises, and IST employed can 

demonstrate to local emergency 

response officials how a facility is 

improving its management of chemical 

risks and assist local emergency 

planners to understand and better 

prepare for these risks when developing 

community emergency response plans. 

Furthermore, EPA believes that 

disclosing information related to IST 

can help responders and planners to 

prioritize and allocate response 

resources. For example, IST 

implementation information may be 

relevant for emergency response 

personnel who are maintaining response 

capabilities to address a specific hazard 

that would no longer apply once an IST 

is implemented (such as by substituting 

a less hazardous chemical for an RMPregulated substance). 

Table 6 below summarizes the 

information to be developed under 

§ 68.205(b) and identifies the applicable 

program level for each provision. The 

owner or operator need only provide 

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upon the LEPC’s request information 

developed for this provision that is 

applicable to the program-level for each 

regulated process at the facility. For 

example, owners or operators of 

Program 2 processes must provide 

information on regulated substances in 

accordance with § 68.205(b)(1), accident 

history information in accordance with 

§ 68.205(b)(2), compliance audit report 

summaries to LEPC or emergency 

response officials in accordance with 

§ 68.205(b)(3), incident investigation 

report summaries in accordance with 

§ 68.205(b)(4), and exercise schedules 

and report summaries in accordance 

with § 68.205(b)(6). Owners and 

operators of Program 3 processes must 

provide all of the above information, as 

well as the IST information required 

under § 68.205(b)(5). Owners and 

operators of Program 1 processes would 

be required to provide only information 

on regulated substances in accordance 

with § 68.205(b)(1) and accident history 

information in accordance with 

§ 68.205(b)(2). 

TABLE 6—LEPC DISCLOSURE INFORMATION

Information to be provided, upon request, to LEPCs or emergency response officials in § 68.205. 

Program level(s) 

applicability— 

program 1, 2, or 3 

(b)(1) Information on regulated substances ................................................................................................................................ 1, 2, 3 

(b)(2) Accident history information .............................................................................................................................................. 1, 2, 3 

(b)(3) Compliance audit report summaries ................................................................................................................................. 2, 3 

(b)(4) Incident investigation report summaries ........................................................................................................................... 2, 3 

(b)(5) IST summary ..................................................................................................................................................................... * 3 

(b)(6) Exercise schedules and report summaries ....................................................................................................................... 2, 3 

* Applies only to Program 3 facilities in NAICS codes 322, 324, and 325. 

Submission Dates and Updates. 

According to § 68.205(c), EPA is 

proposing that the owner or operator 

update summary information every 

calendar year, including all applicable 

information that was revised since the 

last submission, and provide this 

information upon request. 

Classified Information. EPA is 

proposing to add § 68.205(d) to address 

protection of classified information from 

disclosure. This provision is identical to 

the current § 68.210(b). 

Confidential Business Information. 

EPA is proposing to add the acronym 

CBI to § 68.3 and to add § 68.205(e) to 

describe the process for claiming and 

handling CBI. EPA is proposing that an 

owner or operator asserting a CBI claim 

for information requested by an LEPC or 

local emergency response official under 

this section should submit a sanitized 

version to the LEPC or emergency 

response officials, and submit to EPA 

both the sanitized version and a version 

containing the CBI along with a 

substantiation of the CBI claim at the 

time it is asserted. This process for 

assertion and substantiation of CBI 

claims is the same as that required in 

§§ 68.151 and 68.152 for information 

contained in the RMP. As provided 

under § 68.151(b)(3), an owner or 

operator of a stationary source may not 

claim five-year accident history 

information as CBI. As provided in 

§ 68.151(c)(2), an owner or operator of a 

stationary source asserting that a 

chemical name is CBI shall provide a 

generic category or class name as a 

substitute in its submission. 

An owner or operator should be aware 

that anything they send to their LEPC in 

accordance with § 68.205(e) becomes 

public information. For any information 

claimed as CBI when submitted to EPA 

and later submitted to the LEPC, the CBI 

claim regarding such information is 

waived. Therefore, if an owner or 

operator wants to maintain the 

confidentiality of information, when 

submitting such information to the 

LEPC, they should submit a sanitized 

version. 

With these proposed requirements, 

EPA intends to ensure that LEPCs and 

emergency response officials have 

information on chemical hazards at 

regulated facilities and are better 

prepared to understand and prepare for 

risks to the communities and emergency 

responders. EPA encourages local 

emergency response officials to 

coordinate with owners or operators of 

regulated facilities and participate in 

emergency response exercises as time 

and resources allow. LEPC and local 

emergency response officials should use 

the information identified in § 68.205(b) 

to assist in revising the community 

emergency response plan developed 

under 42 U.S.C 11003 and related 

purposes. 

EPA seeks comment on this approach. 

Will the proposed requirements 

improve the community emergency 

planning and preparedness? Is there 

additional information that should be 

shared with LEPCs or emergency 

response officials? For example, should 

EPA require the full safer technologies 

and alternatives analysis to be 

submitted to the LEPC? EPA also seeks 

comment on whether to require less 

information to be shared (e.g., limit 

incident investigation information to 

incidents with offsite impacts). Some 

SERs suggested that information be 

limited to a one page summary of each 

significant chemical hazard and 

suggested including only the following 

elements: The name of the substance, its 

properties, its location, and 

recommended firefighting and 

emergency response measures. EPA 

seeks comment on this narrowed 

approach. Should EPA require owners 

or operators to periodically submit 

information to the LEPC or local 

responders, and if so, what timeframe 

should EPA consider? Is the proposed 

timeframe for updating information 

sufficient to ensure information is up-todate? Should EPA require information 

to be updated only after the source 

receives a request from an LEPC or local 

emergency response official? If so, how 

much time is sufficient to allow 

development and submission of 

summaries following requests for 

information under this proposed 

provision? Should EPA specify a 

standard format for summary 

information in order to make it easier 

for local officials to interpret the 

information (e.g., specify a summary 

template for information on regulated 

substances, compliance audits reports, 

incident investigation reports, IST)? 

B. Proposed Revisions to Requirements 

for Information Availability to the 

Public 

Under paragraph § 68.210(a), EPA is 

proposing to add a reference to 40 CFR 

part 1400 to address CSISSFRRA 

disclosure restrictions (i.e., for OCA 

information). EPA is not changing its 

policy regarding OCA information. The 

reference to 40 CFR part 1400 only 

clarifies the statutory obligations that 

relate to securing this information. 

EPA is proposing to redesignate the 

current paragraph § 68.210(b) that 

addresses the non-disclosure of 

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204See EPA. March 2014. RMP*eSubmit User’s 

Manual. http://www2.epa.gov/rmp/rmpesubmitusers-manual. 

205Chemical Safety Information, Site Security 

and Fuels Regulatory Relief Act, Public Law 106– 

40, August 5, 1999. See http://www.gpo.gov/fdsys/ 

pkg/STATUTE-113/pdf/STATUTE-113-Pg207.pdf. 

classified information by the 

Department of Defense or other Federal 

agencies or their contractors as 

§ 68.210(e). 

EPA is proposing a new paragraph (b) 

to require the owner or operator of a 

stationary source to distribute certain 

chemical hazard information for all 

regulated processes to the public in an 

easily accessible manner. EPA is 

proposing to require the owner or 

operator to distribute the following 

information, as applicable: 

• Names of regulated substances held in a 

process above TQs; 

• Safety Data Sheets (SDSs) for all 

regulated substances held above TQs at the 

facility; 

• The facility’s accident history required 

under § 68.42; 

• Information concerning the source’s 

compliance with § 68.10(b)(3) or the 

emergency response provisions of subpart E, 

including: 

Æ Whether the source is a responding 

stationary source or a non-responding 

stationary source; 

Æ Name and phone number of local 

emergency response organizations with 

which the source last coordinated emergency 

response efforts, pursuant to § 68.180; and 

Æ For sources subject to § 68.95, 

procedures for informing the public and local 

emergency response agencies about 

accidental releases. 

• Information on emergency response 

exercises required under § 68.96, including 

schedules for upcoming exercises, reports for 

completed exercises as described in 

§ 68.96(b)(3), and any other related 

information; and 

• LEPC contact information, including 

LEPC name, phone number, and Web site 

address as available. 

EPA believes that providing this 

information to the general public will 

allow people that live or work near a 

regulated facility to improve their 

awareness of risks to the community 

and to be prepared to protect themselves 

in the event of an accidental release. 

EPA also thinks that requiring facilities 

to provide summary information on the 

facility’s emergency response plans and 

emergency exercises to the public, will 

provide assurance to the community 

that the facility is adequately prepared 

to properly handle a chemical 

emergency, should it arise. An 

additional benefit of sharing exercise 

schedules is to avoid unnecessary 

public alarm when exercises are 

conducted. 

The facility owner or operator can 

make all the required information 

available to the public in a variety of 

ways. For example, the owner or 

operator could comply by making the 

information available on the facility or 

company Web site, if one is available. If 

the facility doesn’t have a Web site, the 

owner or operator could establish one. 

Alternatively, there are free or low cost 

internet platforms, file sharing services, 

and social media tools that are designed 

to share information with the public. As 

another option, the facility could make 

the information available in hard copy 

at publicly accessible locations such as 

a public library or a local government 

office. If the facility has the means to 

handle public visitors, it could choose 

to make the information available at the 

facility location. The facility could 

alternatively provide the information by 

email, upon request. EPA encourages 

the facility owner or operator to 

coordinate information distribution 

with the LEPC or local emergency 

response officials to determine the best 

way to reach public stakeholders. 

EPA seeks comment on this approach. 

Is there additional information that 

should be shared with the public? For 

example, should EPA require the STAA 

proposed under § 68.67(c)(8), or a 

summary of that analysis, be shared 

with the public? Alternatively, should 

EPA further limit the information 

elements proposed? For example, how 

should EPA limit the disclosure of 

information in exercise reports that 

might reveal security vulnerabilities 

about the facility or emergency 

responders? Should EPA not require 

disclosure of names of individuals 

involved in exercises or facility security 

vulnerabilities revealed by the exercise? 

Is there an alternative way to improve 

community preparedness for safety 

purposes while balancing the security 

concerns to limit a terrorist’s ability to 

use the information for an attack? Is 

there other information that community 

residents and operators of community 

facilities (such as schools, nursing 

homes, daycares) need in order to 

participate in emergency preparedness 

planning, particularly as it relates to 

effective incident notification, 

sheltering in place, and evacuation? 

EPA also seeks comment on the 

feasibility of these various options for 

providing information to the public and 

requests suggestions for other ways that 

the data could be made available. Lastly, 

EPA seeks comment on any challenges 

facility owners or operators would have 

in providing the information or 

challenges public stakeholders would 

have in obtaining the information. In 

order to inform the public of the 

location of the information, EPA is 

proposing to require under § 68.160(b) 

that the facility report in their RMP the 

location or means of public access to the 

information proposed to be disclosed 

under this subsection. 

Submission Dates and Updates. EPA 

is proposing that the owner or operator 

shall update and submit information 

required under § 68.210(b) every 

calendar year, including all applicable 

information that was revised since the 

last update. 

Confidential Business Information. In 

§ 68.210(f), an owner or operator 

asserting CBI shall submit a sanitized 

version of the information required 

under this section to the public. 

Assertion of claims of CBI and 

substantiation of CBI claims shall be in 

the same manner as required in 

§§ 68.151 and 68.152 for information 

contained in the RMP required under 

subpart G. As provided in § 68.151(c)(2), 

an owner or operator of a stationary 

source asserting that a chemical name is 

CBI shall provide a generic category or 

class name as a substitute. If an owner 

or operator has already claimed CBI for 

a portion of the RMP, then that claim 

still applies for the disclosure elements 

here. The owner or operator should 

provide a sanitized version as described 

in the RMP*eSubmit User’s Manual.204

EPA seeks comment on this approach. 

Will the proposed requirements 

improve the knowledge sharing between 

regulated facilities and the public? Is 

there additional information that should 

be shared with the public stakeholders? 

Should EPA only require information to 

be shared upon request by the public? 

Alternatively, should EPA further limit 

the information we are proposing to be 

required, such as requiring only a one 

page summary that addresses chemical 

hazard information and emergency 

response measures? EPA could 

alternatively eliminate some of the 

required information elements or further 

limit information, such as by limiting 

accident history information to only 

those with offsite impact. Some SERs 

asked whether the existing RMP data or 

the RMP executive summary available 

to the public through existing sources 

(FOIA, Federal Reading rooms or other 

public sources who have compiled the 

data) are adequate to meet the 

information needs of the public. 

Public Meetings. When the 

CSISSFRRA was enacted in 1999, it 

included a section that required owners 

or operators of all facilities regulated 

under the RMP rule to hold a public 

meeting within 180 days of 

enactment.205 The purpose of the public 

meeting was to describe and discuss the 

local implications of the RMP on the 

community. Two or more stationary 

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sources were allowed to conduct a joint 

meeting, while small businesses were 

allowed to instead post a summary of 

their OCA information no later than 180 

days after enactment. 

In paragraph § 68.210(d) EPA is 

proposing to require regulated facilities 

that have any accident meeting the fiveyear accident history criteria of § 68.42 

to hold a public meeting within 30 days 

after the accident. This provides an 

opportunity for the owner or operator of 

the RMP facility to inform the 

community about the accident 

including, at a minimum, the 

information reportable under § 68.42. 

This includes information on: 

• When the accident occurred; 

• The nature of the accident including 

initiating event and contributing factors if 

known; 

• Chemicals involved and quantities 

released; 

• Weather conditions, if known; 

• On-site and offsite impacts; 

• Emergency response notifications; and 

• Operational or process changes that 

resulted, thus far, from investigation of the 

release. 

EPA expects that, in some cases, 

sources will have completed the 

incident investigation required under 

§ 68.60 or § 68.81 prior to holding the 

public meeting. This would allow the 

owner or operator to share appropriate 

information about the accident with the 

local community. However, in some 

cases, such as for complex, protracted 

investigations, the source may need to 

hold a public meeting prior to 

completing the incident investigation. 

In such cases, the owner or operator 

should consider holding a second 

public meeting after completing the 

incident investigation. Additionally, a 

public meeting must be held after 

accidents that destroy a process or 

stationary source or cause the process or 

source to be subsequently 

decommissioned. Stationary sources 

may combine public meetings with 

LEPC meetings or other events as long 

as those events/meetings are available 

for public participation. 

Public meetings must also address 

other relevant chemical hazard 

information such as that described in 

§ 68.210(b) and any other appropriate 

information that may improve safety 

and emergency preparedness activities 

in the community. The facility 

representative should describe the risks 

that are associated with the facility, and 

what the facility is doing to protect the 

public from those risks. In addition, the 

facility personnel should relay 

information that would assist the public 

to prepare for accidental releases. For 

example, at the meeting, the facility 

representative should discuss the 

process for public emergency 

notification, procedures for sheltering in 

place or evacuating, and where to obtain 

further updates on the status of an 

emergency incident. The discussion 

should also address how the public can 

access community emergency response 

plans and identify what the community 

may expect to see during a field 

exercise. 

As part of the SBAR Panel process, 

several SERs questioned the value of 

having any public meetings and noted 

that, when held in the past, public 

meetings were not well attended. 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 also 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. 

EPA seeks comment on the proposed 

approach and whether there are other 

options that EPA should consider for 

public meetings. For example, should 

EPA require regular public meetings 

rather than only after an accident 

subject to reporting requirements under 

§ 68.42? Should EPA require public 

meetings upon request by LEPCs, 

emergency responders or the public? 

Alternatively, should the public meeting 

requirement be restricted to an RMP 

reportable accidents with offsite 

impacts? Instead of requiring a public 

meeting after RMP reportable accidents, 

should EPA require owners and 

operators to meet only with LEPCs and 

emergency responders? If EPA finalizes 

the requirement to hold post-accident 

public meetings, should EPA extend the 

required timeframe to hold the meeting 

beyond 30 days (e.g. to 90 days), in 

order to give the owner or operator more 

time to learn about accident causal 

factors and prepare for a public 

meeting? If so, what extended timeframe 

should EPA choose and should EPA 

require the implementing agency to 

approve any extensions? 

C. Alternative Options 

EPA considered an option to require 

all facilities to hold public meetings at 

least once every five years (and within 

30 days after an accident) to share 

chemical hazard information described 

under § 68.210(b) and any other 

appropriate information that may 

improve safety and emergency 

preparedness activities in the 

community. However, EPA did not 

propose this requirement as our 

preferred option because of concerns 

raised by the SBAR Panel process that 

periodic public meetings are often 

sparsely attended. 

EPA also considered limiting the 

requirement for periodic and postaccident public meetings to only 

Program 2 and Program 3 facilities; 

however, EPA did not propose this 

option as our preferred option because 

even though accidents at Program 1 

facilities should not have significant 

public impacts, some communities near 

these facilities may still be interested in 

understanding the risks at the facility 

and the procedures and controls that are 

in place to limit offsite impacts. 

Additionally, if a Program 1 facility 

does have an RMP reportable accident 

with offsite impacts, EPA believes they 

should be held to the same standard as 

other facilities and be required to hold 

a public meeting within 30 days of the 

incident to provide additional 

information on the accidental release. 

Nevertheless, EPA is interested in 

receiving public feedback on whether 

EPA should consider requiring periodic 

public meetings and whether the 

requirement should be limited to 

Program 2 and Program 3 facilities. 

EPA is also considering an option for 

supporting the public disclosure 

provisions with a ‘‘score card’’ or a 

‘‘grade’’ system that could be provided 

by an independent third-party. The 

score or grade would be made available 

to the LEPCs and public to demonstrate 

the facility’s compliance with the RMP 

rule. This method could be used either 

instead of or in addition to what EPA is 

proposing. EPA requests information 

and recommendations on how to 

develop such a program, including the 

types of scoring criteria that should be 

used and any other issues that the 

Agency should consider when 

developing such a system. 

EPA seeks comment on these 

alternative approaches and whether 

there are any other alternative options 

that EPA should consider for future 

actions. 

VII. Risk Management Plan 

Streamlining, Clarifications, and RMP 

Rule Technical Corrections 

A stationary source subject to the 

RMP rule is required to submit a RMP 

in a method and format specified by the 

EPA, pursuant to § 68.150(a). The CAA 

and 40 CFR subpart G require that the 

RMP indicate compliance with the 

regulations at 40 CFR part 68 and also 

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include information regarding the 

hazard assessment, prevention program, 

and emergency response program. The 

RMP also includes stationary source 

registration information, such as name, 

location and contact information. The 

EPA may review RMPs for information 

gathering, inspection preparation, errors 

in submissions, and changes requiring a 

correction or re-submission of the RMP. 

The CAA requires that RMPs be made 

available to states, local entities 

responsible for planning or responding 

to accidental releases at the source, the 

CSB, and the public. As a result, the 

information provided in an RMP is 

intended to be easily understood, thus 

encouraging the public, local entities, 

and governmental agencies to interact 

with stationary sources on issues related 

to accident prevention and 

preparedness. 

The RMP format consists of a 

combination of check-off boxes, yes/no 

answers, numerical entries, and write-in 

information pertaining to the data best 

describing the various elements of the 

risk management program at a source. 

The nine sections of an RMP are: 

Registration Information; Toxics Worst 

Case; Toxics Alternative Release; 

Flammables Worst Case; Flammables 

Alternative Release; Accident History; 

Prevention Program: Program Level 3; 

Prevention Program: Program Level 2; 

and Emergency Response. Data elements 

in these sections address compliance 

with each of the rule elements. Some 

sections may not be applicable to all 

stationary sources, as some sections 

apply only to processes with certain 

program levels, and some apply only to 

certain types of regulated substances 

(toxics or flammables). The RMP also 

includes an Executive Summary, which 

allows stationary sources to provide a 

brief description of the source’s 

prevention and preparedness activities 

as they relate to covered processes, in a 

format that is easy to understand. 

Based on feedback received from the 

regulated community and EPA’s own 

experience, EPA is proposing to revise 

several data elements in subpart G and 

to make technical corrections to the 

RMP rule. The following sections 

provide an overview of the proposed 

revisions. 

A. Deletions From Subpart G 

EPA is proposing to delete data 

elements that do not effectively assist 

the Agency in evaluating compliance 

with the RMP rule. EPA is also 

proposing to delete some data elements 

because the information can be obtained 

through improved coordination with 

Federal, state, and local agencies 

resulting from Executive Order 13650, 

such as information currently required 

by §§ 68.160(b)(13) (the date of the last 

safety inspection of the stationary 

source by a Federal, state, or local 

government agency) and 68.160(b)(19) 

(OSHA Voluntary Protection Program 

status). EPA is proposing to delete other 

data elements because we believe an onsite inspection or formal information 

request are better ways to evaluate 

compliance with these Risk 

Management Program requirements (for 

example, some data elements pertaining 

to training, contractor safety, and 

maintenance/mechanical integrity). By 

removing several RMP data elements, 

EPA expects that the regulated 

community will find it easier to comply 

with subpart G requirements. In 

addition to burden relief for the 

regulated community, EPA expects that 

removing several RMP data elements 

will reduce the number of errors in 

RMPs submitted to the Agency. 

B. Revisions to Subpart G 

EPA is proposing to revise existing 

provisions in subpart G as follows: 

• Modernize requirements to include 

electronic contact information if it exists, 

such as email addresses and Web site 

homepages; 

• Revise provisions to remove a portion of 

select data elements that would be better 

evaluated during an on-site inspection or 

information request; 

• Provide consistency with RMP*eSubmit; 

• Provide more consistency in the data 

collected for similar data elements in the 

Program 2 and Program 3 prevention 

programs; and 

• Replace data elements that were not 

effective in demonstrating a stationary 

source’s compliance with the rule, with one 

that will demonstrate compliance. 

Data elements that require a date to 

demonstrate compliance can become 

irrelevant during the typical five-year 

RMP resubmission cycle. An example is 

a stationary source that submitted an 

RMP to the EPA on January 8, 2015, that 

included an annual operating 

procedures review date of January 1, 

2015, in its RMP in accordance with 

§ 68.175(f). Assuming the stationary 

source will not have any changes that 

would require a resubmission of the 

RMP and the stationary source will not 

voluntarily correct the RMP with newer 

annual standard operating procedure 

(SOP) review dates, the January 1, 2015, 

annual SOP review date does not 

provide compliance information for 

years 2016–2019. As a result, the annual 

SOP review date in this example only 

provides compliance information for 

2015. Because the dates of most recent 

review or update of a process safety 

element in an RMP do not always reflect 

compliance with regulatory 

requirements, EPA is proposing to 

replace most of these dates with the 

RMP Certifying Official’s attestation that 

the stationary source complies with 

each Risk Management Program 

requirement. 

Data elements for which the last 

review or revision dates are being 

replaced include: 

• For Program 2 and Program 3: Safety 

information, operating procedures, training 

programs, maintenance procedures, changes 

triggering review of any of the previous data 

elements or the hazard review/PHA; 

• For Program 3 only: MOC, pre-startup 

review, employee participation plans, hot 

work permit procedures, contractor safety 

procedures and performance; and, 

• For sources with Emergency Response 

Programs: Emergency response plans and 

emergency response training of employees. 

EPA will still require the date of the 

most recent hazard review or PHA or 

their update (required every 5 years), 

date of most recent compliance audit 

(required every 3 years), and date of 

most recent incident investigation 

(required only when an incident 

occurs). These data elements are not 

updated as frequently as the other 

program elements, and are therefore 

more likely to indicate current 

compliance with regulatory 

requirements. 

C. Additions to Subpart G 

In addition to removing and revising 

several RMP data elements, EPA is 

proposing to add several RMP data 

elements in subpart G based on the 

proposed rule requirements discussed 

in this document. This includes new 

data elements to address compliance 

with: 

• Third-party audit requirements, 

• Root cause analysis requirements as part 

of incident investigations; 

• IST analysis requirements in the PHA; 

• Emergency response preparedness 

requirements including information on local 

coordination and emergency response 

exercises; and 

• Information sharing provisions. 

By adding these data elements to the 

RMP requirements in subpart G EPA 

will be able to evaluate a stationary 

source’s compliance with these 

proposed rule requirements once they 

are finalized. 

D. Proposed Amendments and 

Technical Corrections 

1. Proposed Revisions to § 68.160 

(Registration) 

EPA is proposing to delete and 

reserve: 

• § 68.160(b)(13)—The date of the last 

safety inspection of the stationary source by 

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a Federal, state, or local government agency 

and the identity of the inspecting agency; and 

• § 68.160(b)(19)—OSHA Voluntary 

Protection Program status (Optional). 

EPA is proposing to revise: 

• § 68.160(b)(1) by removing the method 

for obtaining latitude and longitude (but keep 

the rest of § 68.160(b)(1)); 

• § 68.160(b)(4) by requiring an email 

address for the owner or operator, if that 

person has an email address, rather than 

making it optional; 

• § 68.160(b)(5) by removing ‘‘position’’ 

and requiring an email address for the person 

with overall responsibility for RMP elements 

and implementation, if that person has an 

email address (rather than making it 

optional); 

• § 68.160(b)(9) by adding ‘‘equivalent’’ to 

clarify that the number of full-time 

employees means full-time equivalent 

employees to be consistent with 

RMP*eSubmit; 

• § 68.160(b)(12) by adding the phrase 

‘‘and if so’’ to clarify that if the stationary 

source has a CAA Title V operating permit, 

then the RMP plan must include the permit 

number; 

• § 68.160(b)(14) by requiring an email 

address for the contractor who prepared the 

RMP (if any), if the contractor has an email 

address; 

• § 68.160(b)(15) by requiring an email 

address for the source or parent company, if 

the source or parent company has an email 

address; 

• § 68.160(b)(16) by requiring a source 

internet address, if the source has an internet 

address; 

• § 68.160(b)(17) by requiring a phone 

number at the source for public inquiries, if 

the source has a public inquiries phone 

number; 

• § 68.160(b)(18) by requiring the name, 

phone number, email address, and internet 

address for the LEPC, if the LEPC has such 

information available; and 

• § 68.160(b)(20) by changing facility to 

stationary source in subparagraphs (b)(20)(ii) 

and (b)(20)(iv). 

EPA is proposing to add the following 

RMP data elements that relate to the 

information sharing provisions being 

proposed in this document: 

• § 68.160(b)(21) would require an 

attestation that chemical hazard-related 

information is available to the LEPC or 

emergency response officials, as set forth in 

§ 68.205; 

• § 68.160(b)(22) would require an 

attestation that chemical hazard-related 

information is available to the public, as set 

forth in § 68.210; and 

• § 68.160(b)(23) would require the date of 

most recent public meeting, as set forth in 

§ 68.210(d). 

2. Proposed Revisions to § 68.170 

(Prevention Program/Program 2) 

EPA is proposing to delete the 

requirement in § 68.170(k) which 

identify the date of the most recent 

change that triggered a review or 

revision of safety information, the 

hazard review, operating or 

maintenance procedures, or training. 

EPA is proposing to revise: 

• § 68.170(a) by changing the reference to 

paragraph (k) to paragraph (j) because we are 

proposing to delete paragraph (k). 

• § 68.170(d) by reorganizing into 

subparagraphs (d)(1) and (d)(2). EPA is 

proposing to replace the date of the most 

recent review or revision of the safety 

information with an attestation that the safety 

information requirements, in § 68.48, are 

implemented. EPA is also proposing to move 

the requirement to list all Federal and state 

regulations, industry specific and established 

company or stationary source design codes 

and standards that are applicable, and the 

requirement to identify those followed, into 

subparagraph (d)(2). 

• § 68.170(e) by reorganizing the date of 

completion of the most recent hazard review 

or hazard review update to § 68.170(e)(1) and 

removing from § 68.170(e)(1), the 

requirement to identify an expected date of 

completion of any changes resulting from the 

hazard review; 

• § 68.170(f) by replacing the date of the 

most recent review or revision of operating 

procedures with an attestation that the 

operating procedures requirements, in 

§ 68.52, are implemented; 

• § 68.170(g) by replacing the date of the 

most recent review or revision of training 

programs with an attestation that training 

requirements, in § 68.54, are implemented. 

EPA is also proposing to delete the 

requirements to identify the types of training 

provided and competency testing used in 

subparagraphs (g)(1) and (g)(2); 

• § 68.170(h) by replacing the date of the 

most recent review or revision of 

maintenance procedures and the date of the 

most recent equipment inspection or test and 

the equipment inspected or tested with an 

attestation that the maintenance 

requirements, in § 68.56, are implemented; 

• § 68.170(i) by reorganizing into 

subparagraphs. EPA would add an attestation 

that the compliance audit requirements of 

§ 68.58 are implemented in subparagraph 

(i)(1) and move the requirement to identify 

the date of the most recent compliance audit 

to subparagraph (i)(2). EPA would remove 

the requirement to identify the date of 

completion of any changes resulting from the 

compliance audit; and, in subparagraph 

(i)(3), add a requirement that the owner or 

operator identify whether the most recent 

compliance audit was a third-party audit, 

pursuant to §§ 68.58 and 68.59; and 

• § 68.170(j) by reorganizing into 

subparagraphs. EPA would add an attestation 

that the incident investigation requirements, 

in § 68.60, are implemented in subparagraph 

(j)(1) and move the date of the most recent 

incident investigation into subparagraph 

(j)(2). EPA would delete the requirement to 

identify the expected date of completion of 

any changes resulting from the investigation, 

and, in subparagraph (j)(3), would add a 

requirement that the plan indicate whether 

root cause analyses have been completed for 

all accidents and incidents that are subject to 

the requirements of § 68.60. 

3. Proposed Revisions to § 68.175 

(Prevention Program/Program 3) 

EPA is proposing to delete paragraph 

§ 68.175(p) because we are addressing 

the data elements for contractor safety 

procedures in paragraph (o). 

EPA is proposing to revise the 

following provisions: 

• § 68.175(a) by changing the reference to 

paragraph (p) to paragraph (o) because we are 

proposing to combine the data elements in 

paragraphs (p) and (o) that show compliance 

with the requirements for contractor safety 

procedures. 

• § 68.175(d) by reorganizing into 

subparagraphs (d)(1) and (d)(2). EPA is 

proposing to replace the date of the most 

recent review or revision of the safety 

information with an attestation that the PSI 

requirements, in § 68.65, are implemented. 

EPA is also proposing to move the 

requirement to list all Federal and state 

regulations, industry-specific and established 

company or stationary source design codes 

and standards that are applicable, and the 

requirement to identify those followed, into 

subparagraph (d)(2); 

• § 68.175(e) by reorganizing existing 

requirements into subparagraphs (e)(1) and 

(e)(2) and adding new requirements 

addressing safer technology and alternatives 

in new subparagraph (e)(2). Subparagraph 

(e)(1) would apply to information on the PHA 

or PHA update and revalidation information. 

EPA would move the date of completion of 

the most recent PHA or update and require 

the plan identify the technique used to 

§ 68.170(e)(1)(i). EPA would delete the 

requirement to identify the expected date of 

completion of any changes resulting from the 

PHA. Additional PHA information would 

move to subparagraph (e)(1)(ii) through (vi). 

EPA would add subparagraph (e)(2) to 

address requirements for safer alternatives 

including: An attestation that the PHA 

address safer technology and risk 

management measures, as required in 

§ 68.67(c)(8); whether any IST or ISD were 

implemented and if so, the technology 

category that describes the IST or ISD (i.e., 

substitution, minimization, simplification, 

and/or moderation); 

• § 68.175(f) by replacing the date of the 

most recent review or revision of operating 

procedures with an attestation that the 

operating procedures requirements, in 

§ 68.69, are implemented; 

• § 68.175(g) by replacing the date of the 

most recent review or revision of training 

programs with an attestation that training 

requirements, in § 68.71, are implemented. 

EPA is also proposing to delete the 

requirements to identify the types of training 

provided and competency testing used in 

subparagraphs (g)(1) and (g)(2); 

• § 68.175(h) by replacing the date of the 

most recent review or revision of 

maintenance procedures and the date of the 

most recent equipment inspection or test and 

the equipment inspected or tested with an 

attestation that the mechanical integrity 

requirements, in § 68.73, are implemented; 

• § 68.175(i) by replacing the date of the 

most recent change that triggered MOC 

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206OSHA Fact Sheet- Hazard Communication 

Standard Final Rule. https://www.osha.gov/dsg/

hazcom/HCSFactsheet.html. 

procedures and the date of the most recent 

review or revision of MOC procedures with 

an attestation that the MOC requirements, in 

§ 68.75, are implemented; 

• § 68.175(j) by replacing the date of the 

most recent pre-startup review with an 

attestation that the pre-startup review 

requirement, in § 68.77, are implemented; 

• § 68.175(k) by reorganizing into 

subparagraphs. EPA would add an attestation 

that the compliance audit requirements of 

§ 68.79 are implemented in subparagraph 

(k)(1) and move the requirement to identify 

the date of the most recent compliance audit 

to subparagraph (k)(2). EPA would remove 

the requirement to identify the expected date 

of completion of any changes resulting from 

the compliance audit; and, in subparagraph 

(k)(3), add a requirement that the owner or 

operator identify whether the most recent 

compliance audit was a third-party audit, 

pursuant to §§ 68.79 and 68.80; 

• § 68.175(l) by reorganizing into 

subparagraphs. EPA would add an attestation 

that the incident investigation requirements, 

in § 68.81, are implemented in subparagraph 

(l)(1) and move the date of the most recent 

incident investigation into subparagraph 

(l)(2). EPA would delete the requirement to 

identify the expected date of completion of 

any changes resulting from the investigation; 

and, in subparagraph (l)(3), would add a 

requirement that the plan indicate whether 

root cause analyses have been completed for 

all accidents and incidents that are subject to 

the requirements of § 68.81; 

• § 68.175(m) by replacing the date of the 

most recent review or revision of employee 

participation plans with an attestation that 

employee participation requirements, 

§ 68.83, are implemented; 

• § 68.175(n) by replacing the date of the 

most recent review or revision of hot work 

permit procedures with an attestation that 

the hot work permit requirements, in § 68.85, 

are implemented; and 

• §§ 68.175(o) and 68.175(p) by replacing 

the date of the most recent review or revision 

of contractor safety procedures and the date 

of the most recent evaluation of contractor 

safety performance with an attestation in 

§ 68.175(o) that the contractor safety 

requirements, in § 68.67, are implemented. 

4. Proposed Revisions to § 68.180 

(Emergency Response Program) 

Subpart G § 68.180 contains the 

emergency response program data 

elements that must be included in the 

RMP. Although the data elements in 

§ 68.180 are intended to help identify 

whether stationary source personnel 

will respond to an accidental release of 

a regulated substance, the existing data 

elements do not clearly distinguish 

between responding stationary sources 

and non-responding stationary sources. 

As a result, many non-responding 

stationary sources are submitting RMPs 

to the EPA with errors, because they 

appear to be answering questions that 

were only meant to be answered by 

responding sources. Consequently, the 

RMP data do not indicate with certainty, 

whether a stationary source is a 

responding or non-responding 

stationary source. 

The proposed revisions to add 

emergency response exercises and 

revise local coordination provisions of 

the rule are intended to improve 

coordination with local response 

authorities and to bolster emergency 

response capabilities and preparedness 

for accidental releases. Because of the 

proposed regulatory changes to subpart 

E- emergency response, and due to the 

difficulty in distinguishing between 

responding and non-responding 

facilities in subpart G § 68.180, the EPA 

is proposing to completely revise and 

reorganize subpart G § 68.180 into the 

following three parts: Requirements for 

(1) all non-responding and responding 

stationary sources, (2) non-responding 

stationary sources, and (3) responding 

stationary sources. The EPA believes 

that splitting subpart G § 68.180 into 

three parts will aid facilities’ 

understanding of the reporting 

requirements, reduce errors in 

submitted RMPs, and improve 

compliance with the RMP requirements. 

The proposed revisions to subpart G 

§ 68.180 will also improve EPA’s ability 

to evaluate a facility’s compliance with 

the proposed Emergency Response 

Program requirements. 

EPA is proposing to revise: 

• § 68.180(a) by deleting the phrase ‘‘the 

following information.’’ The text in 

subparagraphs (a)(1) through (a)(3) would be 

reorganized and/or replaced. Subparagraph 

(a)(1) would require the RMP to identify the 

name, organizational affiliation, phone 

number, and email address of local 

emergency planning and response 

organizations with which the stationary 

source last coordinated emergency response 

efforts, pursuant to § 68.10(b)(3) or § 68.93. 

Subparagraph (a)(2) would require the RMP 

to identify whether coordination with the 

local emergency response organizations is 

occurring at least annually, pursuant to 

§ 68.93(a). Subparagraph (a)(3) would require 

the RMP to identify a list of Federal or state 

emergency plan requirements to which the 

stationary source is subject. EPA would 

delete subparagraphs (a)(4) through (a)(6); 

• § 68.180(b) by replacing the current text 

with a requirement to identify whether the 

facility is a responding or non-responding 

stationary source, pursuant to § 68.90. EPA 

would reorganize the paragraph into 

subparagraphs as follows: 

Æ Subparagraph (b)(1) would apply to nonresponding stationary sources. In 

subparagraphs (b)(1)(i) through (b)(1)(iii) the 

owner or operator would be required to 

identify whether the owner or operator has 

confirmed that local responders are capable 

of responding to accidental releases at the 

source, whether appropriate notification 

mechanisms are in place, and whether a 

notification exercise occurs at least annually. 

Æ Subparagraph (b)(2) would apply to 

responding stationary sources. In 

subparagraphs (b)(2)(i) through (b)(2)(v) the 

owner or operator would be required to 

identify whether the LEPC or local response 

entity requested that the stationary source be 

a responding facility; whether the stationary 

source complies with requirements in 

§ 68.95; whether a notification exercises 

occurs at least annually, as required in 

§ 68.96(a); whether a field exercise is 

conducted every five years and after any 

RMP reportable accident, pursuant to 

§ 68.96(b)(1)(i); and whether a tabletop 

exercise occurs at least annually, except 

during the calendar year when a field 

exercise is conducted, as required in 

§ 68.96(b)(2)(i). 

EPA is proposing to delete § 68.180(c), 

which requires the owner or operator to 

list other Federal or state emergency 

plan requirements to which the 

stationary source is subject. 

5. Technical Corrections 

a. Proposed Revisions to § 68.10 

(Applicability) 

EPA is proposing to correct a 

typographical error in § 68.10(b)(2). 

Section 68.10(b)(2) uses the term public 

receptor and indicates that public 

receptor is defined in § 68.30; however 

the term public receptor is defined in 

§ 68.3, not § 68.30. The proposed rule 

language corrects this typographical 

error. 

b. Proposed Revisions to § 68.48 (Safety 

information) 

EPA is proposing to remove the word 

‘‘material’’ from the term Material Safety 

Data Sheet in § 68.48(a)(1) to conform 

with OSHA’s revised terminology for 

SDS. In 2012, OSHA made changes to 

its Hazard Communication Standard at 

29 CFR 1910.1200 in order to align with 

the UN Globally Harmonized System of 

Classification and Labelling of 

Chemicals (GHS), Revision 3 (77 FR 

17574, March 26, 2012). One change 

was the change in nomenclature from 

‘‘Material Safety Data Sheets’’ to ‘‘Safety 

Data Sheets.’’ Consequently, OSHA 

made this change to the PSM standard 

at 1910.119(d)(1)(vii) (78 FR 9311, 

February 8, 2013). Chemical producers 

and users must comply with new SDS 

requirements by June 1, 2015.206 In 

order to be consistent with OSHA and 

the UN GHS, EPA is proposing to 

replace ‘‘Material Safety Data Sheet’’ 

with ‘‘Safety Data Sheet’’ in 

§ 68.48(a)(1). 

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c. Proposed Revisions to §§ 68.54 and 

68.71 (Training) 

The RMP rule requires initial and 

refresher training for employees 

operating a Program 2 or Program 3 

covered process. Since the inception of 

the rule, however, there has been 

confusion on the types of employees 

that are considered workers operating a 

covered process. Although ‘‘employee’’ 

is not defined in § 68.3, EPA has 

traditionally interpreted an employee to 

be any worker that is involved in 

operating a process, including 

supervisors. This is consistent with the 

OSHA definition of employee set forth 

at 29 CFR 1910.2(d). 

EPA has noted during facility 

inspections that some owners and 

operators are confused about how the 

existing training requirements apply to 

supervisors involved in process 

operations. If a supervisor is involved in 

decision-making for process operations, 

such as making changes to operating 

parameters, developing or approving 

operating procedures, or conducting 

emergency operations, then EPA expects 

that the supervisor receives initial and 

refresher training appropriate to the 

supervisor’s responsibilities. In such 

cases, the training of a supervisor might 

not need to be as extensive as that of an 

operator, but EPA expects that the 

supervisor training would include 

process operations for which the 

supervisor might have decision-making 

authority. For this reason, EPA is 

proposing to clarify that the training 

requirements in §§ 68.54 and 68.71 (for 

Program 2 and Program 3 facilities, 

respectively) apply to supervisors who 

are involved in operating a covered 

process by adding paragraph (e) to 

indicate that the term employee 

includes supervisors. 

Similarly, the EPA realizes that there 

may be other employee types involved 

in operating a covered process besides 

operators. For example, process 

engineers and maintenance technicians 

may occasionally be involved in process 

operations. The degree of involvement 

for these other employee types may vary 

greatly. Therefore, EPA is proposing to 

revise § 68.54(d) to clarify that the 

requirement applies to employees 

involved in operating a process. For 

employees other than operators and 

supervisors, EPA expects that initial and 

refresher training will be appropriate to 

the employee’s responsibilities in 

operating the process. 

Finally, EPA believes that Program 3 

requirements in §§ 68.71(a) and 68.71(b) 

provides clearer regulatory language 

regarding the applicability of employees 

subject to initial and refresher training 

requirements than the similar Program 2 

requirements §§ 68.54(a) and 68.54(b). 

Specifically, §§ 68.71(a) and 68.71(b) 

indicates that initial and refresher 

training is required for employees 

‘‘involved in’’ operating a covered 

process. Because EPA believes that this 

language can better facilitate 

compliance for Program 2, the EPA is 

proposing to add similar language for 

Program 2 facilities at §§ 68.54(a) and 

68.54(b). 

d. Proposed Revisions to § 68.65 (PSI) 

EPA is proposing to revise § 68.65(a) 

in order to remove irrelevant text 

regarding the timeframe for initial 

development of PSI and to more clearly 

demonstrate that PSI must be kept upto-date. The EPA believes that these 

proposed changes will help Program 3 

facilities to better comply with PSI 

requirements. 

EPA is proposing to revise § 68.65(a) 

to remove the phrase ‘‘In accordance 

with the schedule set forth in § 68.67.’’ 

This language appears to have been 

adopted from OSHA’s PSM PHA 

completion schedule of May 1994 to 

May 1997 and is not relevant to the 

RMP rule because the compliance date 

of June 21, 1999 is after OSHA’s PSM 

PHA completion schedule. 

Additionally, the only schedule 

currently referenced in § 68.67 is in 

§ 68.67(e), which pertains to a written 

schedule of PHA corrective actions. 

Because § 68.67(e) does not pertain to 

when a PHA must be completed, EPA is 

proposing to remove the phrase ‘‘In 

accordance with the schedule set forth 

in § 68.67’’ from § 68.65(a). 

Furthermore, EPA is proposing to add 

the phrase: ‘‘and shall keep PSI up-todate.’’ EPA has always intended that PSI 

be kept up-to-date for Program 3 

facilities. Updated PSI is necessary to 

properly update or revalidate the PHA 

every 5 years as required by § 68.67(f). 

PSI items that that need to be kept upto-date include, but are not limited to, 

piping and instrumentation diagrams, 

SDSs, hazard information, and changes 

to the design of the process. Although 

PSI must be updated for Program 3 

facilities through MOC requirements in 

§ 68.75(d), EPA believes that the 

proposed change makes it clearer that 

PSI must be kept up-to-date. This 

proposed change also ensures 

consistency with the safety information 

requirement for Program 2 facilities, 

where § 68.48(a) indicates ‘‘The owner 

or operator shall compile and maintain 

the following up-to-date safety 

information. . .’’ EPA expects that 

revising § 68.65(a) in this manner will 

further clarify the requirement that PSI 

must be completed prior to conducting 

a PHA. 

Finally, in order to be consistent with 

OSHA and the GHS, EPA is proposing 

to replace ‘‘Material Safety Data Sheet’’ 

with ‘‘Safety Data Sheet’’ in the note to 

§ 68.65(b). 

e. Proposed Revisions to § 68.130 List of 

Substances 

EPA is proposing revisions to Tables 

1, 2, and 4 in § 68.130 as follows: 

Table 1 to § 68.130—List of Regulated 

Toxic Substances and TQs for 

Accidental Release Prevention. EPA is 

proposing to correct a typographical 

error in the Chemical Abstracts Service 

(CAS) number (no.) for allyl alcohol in 

Table 1 in § 68.130. The incorrect CAS 

no. of 107–18–61 for allyl alcohol would 

be corrected to 107–18–6. 

Table 4 to § 68.130—List of Regulated 

Flammable Substances and TQs for 

Accidental Release Prevention. EPA is 

proposing to correct a typographical 

error to the CAS no. for 1, 3-Butadiene, 

to read 106–99–0, instead of 196–99–0, 

right justify the first CAS nos. column 

and delete the second CAS nos. column 

because it is redundant. 

f. Proposed Revisions to § 68.200 

(Recordkeeping) 

EPA is proposing to revise § 68.200 to 

clarify that records must be maintained 

at the stationary source. 

VIII. Compliance Dates 

The initial Risk Management Program 

rule applied 3 years after promulgation 

of the rule on June 20, 1996, which is 

consistent with the last sentence of CAA 

section 112(r)(7)(B)(i). The provisions of 

this proposal modify terms of the 

existing rule, and, in some cases, clarify 

existing requirements. The statute does 

not directly address when amendments 

should become applicable. Therefore, in 

modifications to § 68.10, EPA is 

proposing to: 

• Require compliance with emergency 

response coordination activities within one 

year of an effective date of a final rule; 

• Provide up to three years for the owner 

or operator of a non-responding stationary 

source to develop an emergency response 

program in accordance with § 68.95 

following an LEPC or equivalent’s written 

request to do so; 

• Comply with new provisions, unless 

otherwise stated, four years after the effective 

date of the final rule; and 

• Provide regulated sources one additional 

year (i.e., five years after the effective date of 

the final rule) to correct or resubmit RMPs to 

reflect new and revised data elements. 

EPA is proposing that within one year 

of the effective date of a final rule, the 

owner or operator of a stationary source 

comply with emergency response 

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coordination activities in §§ 68.93(a) 

and 68.93(b). This includes coordinating 

response needs annually with local 

emergency planning and response 

organizations to ensure resources and 

capabilities are in place to respond to an 

accidental release of a regulated 

substance, and documenting 

coordination activities. EPA believes 

one year is sufficient to arrange for and 

document coordination activities. The 

coordination activities in this proposed 

rule mostly are clarifications of current 

requirements rather than new 

provisions. 

EPA is also proposing to require three 

years for the owner or operator of a 

stationary source to comply with 

emergency response program 

requirements of § 68.95 after receiving a 

written request by an LEPC or 

equivalent to develop an emergency 

response program. This timeframe is 

consistent with the time established in 

the original rule to comply with risk 

management program requirements and 

submit initial RMPs. 

Additionally, EPA is proposing to 

provide additional time for compliance 

with other proposed provisions (i.e., 

third-party compliance audits, root 

cause analyses as part of incident 

investigations, STAA, emergency 

response exercises, and information 

availability provisions). For these 

provisions, the proposed rule requires 

affected facilities to comply by four 

years after the effective date of the rule. 

Our reasons for the four year phase for 

these modified requirements are set out 

below. For the third-party audit, 

incident investigation root cause 

analysis, and public meeting provisions, 

this means that for any RMP reportable 

accident occurring later than four years 

after the effective date of the rule, the 

owner or operator of a source must 

conduct a third-party audit; investigate 

an incident, including a root cause 

analysis; and hold a public meeting 

within 30 days of the accident. For any 

incident that could reasonably have 

resulted in a catastrophic release (near 

miss), the owner or operator has four 

years after the effective date of the rule 

to comply with the proposed incident 

investigation root cause analysis 

requirements. For the STAA, emergency 

exercise, and information availability 

provisions, this means that the owner or 

operator must have completed or 

updated their PHA to include the 

STAA; conducted a notification exercise 

and at least one tabletop or field 

exercise; and prepared the required 

information to be provided to the public 

or, upon request, to the LEPCs. 

EPA is proposing to provide this 

additional time for several reasons. 

First, EPA believes that for most 

sources, the incident investigation root 

cause analysis and emergency response 

exercise requirements will involve 

training and program development 

activities that may reasonably require 

significant time to complete. Second, 

the extended compliance timeframe will 

allow potential auditors enough time to 

meet the competency and independence 

criteria necessary to serve as a thirdparty auditor. Third, for sources subject 

to the STAA provisions, EPA believes 

that in many cases these sources will 

prefer to perform a full PHA update 

when implementing the STAA 

requirements. Sources subject to this 

provision are among the largest and 

most complex sources regulated under 

40 CFR part 68, and therefore PHAs and 

PHA updates at these sources typically 

require a significant level of effort. Since 

PHA updates are normally done at five 

year intervals, EPA believes it would be 

appropriate to allow most sources to 

adopt these provisions in their normal 

PHA update cycle if they so choose. 

Sources that performed their most 

recent PHA update immediately prior to 

the rule publication date would have up 

to four years to perform their next PHA 

update and adopt the STAA provisions. 

Most sources could schedule their PHA 

updates to incorporate the new STAA 

provisions on their normal PHA update 

schedule. 

Lastly, EPA intends to publish 

guidance for certain provisions, such as 

STAA, root cause analysis, and 

emergency response exercises. Once 

these materials are complete, owners 

and operators will need time to 

familiarize themselves with the new 

materials and incorporate them into 

their risk management programs. 

EPA is also proposing to provide one 

additional year for owners or operators 

to update RMPs to reflect proposed new 

or revised data elements in subpart G of 

the rule. The additional year will allow 

owners and operators an opportunity to 

begin to comply with revised rule 

provisions prior to certifying 

compliance in the RMP. Additionally, 

the Agency will need to make 

significant revisions to its online RMP 

submission system, RMP*eSubmit, to 

accommodate the newly required and 

revised data elements, and sources will 

not be able to update RMPs with new 

or revised data elements until the 

submission system is ready. Also, once 

it is ready, allowing an additional year 

for sources to update RMPs will prevent 

potential problems with thousands of 

sources submitting updated RMPs on 

the same day. 

Examples for Compliance and 

Submission Dates 

The following examples assume a 

hypothetical effective date of June 5, 

2017 for a final rule that includes the 

proposed provisions in Table 7: 

Proposed Rule Provisions and 

Corresponding Compliance Dates with 

corresponding proposed compliance 

dates. 

TABLE 7—PROPOSED RULE PROVISIONS AND CORRESPONDING COMPLIANCE DATES

Rule provision Proposed compliance date Hypothetical 

compliance date 

Initiated after an RMP 

reportable accident? 

Third-party audit .................................... Four years after effective date .............. June 5, 2021 ........ Yes. 

Root cause analysis .............................. Four years after effective date .............. June 5, 2021 ........ Yes (also required after near misses). 

STAA ..................................................... Four years after effective date .............. June 5, 2021 ........ No. 

Emergency response coordination activities.Within one year of effective date .......... June 5, 2018 ........ No. 

LEPC requires compliance with § 68.95 

(emergency response program).

Within three years of receipt of written 

request.

N/A ....................... No. 

Emergency response exercises ............ Four years after effective date .............. June 5, 2021 ........ Partially—field exercise within one 

year. 

Information sharing ................................ Four years after effective date .............. June 5, 2021 ........ Partially—public meeting within 30 

days. 

Update RMP .......................................... Five years after effective date .............. June 5, 2022 ........ No (but previously existing correction 

requirements of § 68.195 still apply). 

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Example 1: Proposed Provisions That 

Would Apply to a Non-Responding 

Stationary Source 

Source A (see Table 8) is a nonresponding stationary source with a 

regulated process subject to Program 2 

requirements. Source A’s owner 

submitted the latest RMP update to EPA 

on January 20, 2015 and completed its 

latest compliance audit on August 11, 

2017. The source is not in NAICS 322, 

324, or 325, and therefore is not subject 

to the proposed STAA provisions. The 

source has not had any RMP reportable 

accidents since the effective date of a 

final rule. 

TABLE 8—EXAMPLE 1, SOURCE A 

Source A—Program 2, non-responding stationary 

source 

Date of last RMP 

update 

Last compliance 

audit 

Last 

accident 

January 20, 2015 .. August 11, 2017 ... N/A. 

In this example, the following 

proposed provisions would apply: 

• Annual emergency response 

coordination activities in accordance with 

proposed § 68.93; 

• Notification exercises (proposed 

§ 68.96(a)); and 

• Information availability provisions 

(proposed §§ 68.205 and 68.210). 

The owner or operator must 

coordinate response needs with local 

emergency planning and response 

organizations to ensure resources and 

capabilities are in place to respond to an 

accidental release of a regulated 

substance. Coordination activities must 

occur annually and be documented. 

Source A is a non-responding facility, 

and the owner or operator would be 

required to conduct annual notification 

exercises. The owner or operator would 

also be required to annually update 

information for the LEPC and provide 

the information upon request, and make 

certain information easily accessible to 

the public. 

Finally, beginning 5 years after the 

rule effective date, the owner or 

operator must update the RMP to 

include all revised data elements 

specified in subpart G and § 68.42. In 

this case, the owner or operator would 

update their RMP no later than January 

20, 2020 (the source’s next scheduled 

five-year update), and again by June 5, 

2022 (the required resubmission date for 

the proposed rule). 

Table 9: Summary of proposed 

provisions that would apply to a nonresponding stationary source 

summarizes the proposed provisions 

that would apply to Source A. 

TABLE 9—SUMMARY OF PROPOSED PROVISIONS THAT WOULD APPLY TO A NON-RESPONDING STATIONARY SOURCE

Applicable provisions Timeframe Additional information When to complete * 

Emergency response 

coordination activities.

Within one year of effective date of a 

final rule.

Occurs annually .............................................. Complete coordination activities before June 

5, 2018 and document coordination. 

Notification exercise .... By four-years after effective date.Occurs annually .............................................. Complete first notification exercise by June 5, 

2021. 

Information availability provisions 

Information to LEPC .... By four-years after effective date.Update information annually. Includes information on regulated substances; accident 

histories; compliance audits; incident investigations (as applicable) and exercises. 

Provide to LEPC upon request.

Develop by June 5, 2021 and provide upon 

request. 

Information to the public.By four-years after effective date.Occurs annually. Includes information on: 

Regulated substances including Safety 

Data Sheets; accident history; emergency 

response program; exercises; and LEPC 

contact information.

Complete first calendar year submission by 

June 5, 2021. 

Update RMP ................ By five years after effective date.Owner’s next 5-year resubmission date occurs prior to effective date for provision, so 

owner must update RMP twice.

Update RMP on regular schedule (by January 20, 2020) and again to include new information by June 5, 2022. 

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. 

If the LEPC submits a request to 

Source A’s owner requesting the source 

comply with the emergency response 

program requirements of § 68.95, then 

Source A’s owner would have three 

years from the date of the letter to 

develop and implement an emergency 

response plan, obtain equipment, and 

train personnel in relevant procedures. 

Once the owner has developed an 

emergency response program, the source 

is a responding facility and must also 

comply with tabletop and field exercise 

requirements for responding facilities. 

Example 2A: Proposed Provisions That 

Would Apply to a Responding 

Stationary Source 

Source B (see Table 10) is a 

responding stationary source with a 

process subject to Program 3 

requirements. Its latest RMP update was 

submitted June 30, 2020 (i.e., three years 

after the rule effective date). Its latest 

compliance audit was performed on 

April 6, 2020. The source is not in 

NAICS 322, 324, or 325, and therefore 

is not subject to the proposed STAA 

provisions, and the source has not had 

any RMP reportable accidents since the 

effective date of a final rule. 

TABLE 10—EXAMPLE 2A, SOURCE B 

Source B—Program 3, responding stationary source 

Date of last RMP 

update 

Last compliance 

audit 

Last 

accident 

June 30, 2020 ....... April 6, 2020 ......... N/A. 

In this example, the following 

proposed provisions would apply: 

• Annual emergency response 

coordination activities in accordance with 

proposed § 68.93; 

• Emergency response exercises (proposed 

§ 68.96); and 

• Information availability provisions 

(proposed §§ 68.205 and 68.210). 

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The owner or operator must 

coordinate response needs with local 

emergency planning and response 

organizations to ensure resources and 

capabilities are in place to respond to an 

accidental release of a regulated 

substance. Coordination activities must 

occur annually and be documented. 

Additionally, since Source B is a 

responding facility, the owner or 

operator would be required to conduct 

annual notification exercises, annual 

tabletop exercises (with a field exercise 

substituting for a tabletop exercise once 

every five years). 

The owner or operator would be 

required to update information annually 

and provide the information upon 

request, to the LEPC and make 

information easily accessible to the 

public. 

Finally, by five years after the rule 

effective date, the owner or operator 

must update the RMP to include all 

revised data elements specified in 

subpart G and § 68.42. Table 11: 

Summary of proposed provisions that 

would apply to Source B summarizes 

the proposed provisions that would 

apply to Source B. 

TABLE 11—SUMMARY OF PROPOSED PROVISIONS THAT WOULD APPLY TO SOURCE B 

Applicable provisions Timeframe Additional information When to complete * 

Emergency response coordination activities.Within one year of effective 

date of a final rule.

Occurs annually ................................... Complete coordination activities before June 5, 2018. 

Emergency response exercises (proposed § 68.96) 

Notification exercise ............................... Four-years after effective 

date.

Occurs annually ................................... Complete first notification exercise by June 5, 2021. 

Field and tabletop exercises .................. Four-years after effective 

date.

Tabletop exercise annually, field exercise once every five years. No tabletop exercises in the year of a field 

exercise.

Complete first tabletop or 

field exercise by June 5, 

2021. 

Information availability provisions 

Information to LEPC ............................... Four-years after effective 

date.

Update information annually. Includes 

information on regulated substances; 

accident histories; compliance audits; incident investigations (as applicable) and exercises. Provide to 

LEPC upon request.

Develop by June 5, 2021 

and provide upon request. 

Information to the public ......................... Four-years after effective 

date.

Occurs annually. Includes information 

on: Regulated substances including 

Safety Data Sheets; accident history; emergency response program; 

exercises; and LEPC contact information.

Complete first calendar year 

submission by June 5, 

2021. 

Update RMP ........................................... By five years after effective 

date.

............................................................... Update RMP to include new 

information by June 5, 

2022. 

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. 

Example 2B: Additional Proposed 

Provisions That Would Apply to a 

Responding Stationary Following an 

RMP Reportable Accident 

See Table 12 below. 

TABLE 12—EXAMPLE 2B, SOURCE B 

Source B—Program 3, responding stationary source 

Date of last RMP update Last compliance audit Last accident 

June 30, 2020 ................................................................... April 6, 2020 .................................................................... July 5, 2021. 

In this example, Source B has an 

accidental release on July 5, 2021 that 

meets the reporting requirements of 

§ 68.42. As a result of the accident, 

Source B’s owner would be required to 

comply with the following additional 

proposed provisions: 

• Accident history provisions of § 68.42 (to 

report root causes identified during the 

incident investigation); 

• Third-party audit provisions of § 68.80; 

• Incident investigation and root cause 

analysis requirements of § 68.81; 

• Field exercise provisions of 

§ 68.96(b)(1)(i) (i.e., requiring a field exercise 

within one year of any accidental release 

required to be reported under § 68.42); and 

• Public meeting within 30 days of an 

RMP reportable accident, pursuant to 

§ 68.210(d). 

Chronologically, the first provision 

that would apply is the requirement to 

host a public meeting. Section 68.210(d) 

requires the owner or operator to hold 

a public meeting within 30 days after 

the accident to inform the public about 

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the accident, including information 

required under § 68.42, and other 

relevant information. 

An incident investigation must be 

initiated promptly, but no later than 48 

hours following an incident. The 

proposed incident investigation 

provisions would require the owner or 

operator to complete an incident 

investigation that includes a root cause 

analysis and other elements specified in 

§ 68.81(d), and an incident investigation 

report, within 12 months of the 

incident, unless the implementing 

agency approves an extension of time. A 

summary of the incident investigation 

report must be provided to the LEPC, 

upon request. 

The proposed third-party audit 

provisions would require the owner or 

operator to hire a third-party auditor to 

perform a third-party compliance audit 

and submit an audit report to the 

implementing agency and owner or 

operator within 12 months of the 

accident (if the source’s next scheduled 

compliance audit was required sooner 

than one year following the incident, 

the third-party audit would be required 

to be completed by the scheduled 

compliance audit date unless the 

implementing agency approved an 

extension). The owner or operator must 

also complete an audit findings 

response report and submit it to the 

implementing agency within 90 days of 

receiving the audit report from the 

third-party auditor. The owner or 

operator must also provide the audit 

findings response report, as well as a 

schedule to address deficiencies 

identified in the audit findings response 

report and documentation of actions 

taken to address deficiencies, to the 

owner or operator’s audit committee of 

the Board of Directors, or other 

comparable committee, if one exists. 

The owner or operator would also be 

required to conduct a field exercise 

meeting the requirements of § 68.96 

within one year of the accidental 

release, and prepare an evaluation 

report within 90 days of completing the 

exercise. By five years after the rule 

effective date, the owner or operator 

must update the RMP to include all 

revised data elements specified in 

subpart G and § 68.42. Table 13 

summarizes the additional provisions 

that would apply to Source B following 

an RMP reportable accident (in addition 

to complying with new requirements 

triggered by an RMP reportable 

accident, the owner or operator must 

annually coordinate response needs 

with local emergency planning and 

response organizations, document 

coordination activities, and comply 

with the other information disclosure 

provisions as previously described). 

TABLE 13—SUMMARY OF ADDITIONAL PROPOSED PROVISIONS THAT WOULD APPLY TO SOURCE B FOLLOWING AN RMP 

REPORTABLE ACCIDENT

Applicable provisions following 

an RMP reportable accident Timeframe Additional information When to complete * 

Public meeting ........................ Four-years after effective 

date.

Within 30 days after an accident ......... Hold public meeting by August 4, 

2021. 

Incident investigations ............ Four-years after effective 

date.

Initiate within 48 hours, complete investigation and root cause analysis 

within 12 months.

Complete report by July 5, 2022. 

Third-party audit ..................... Four-years after effective 

date.

Within 12 months of the accident or 

three years of previous audit, whichever is sooner.

Complete third-party audit by July 5, 

2022; complete findings response 

report within 90 days of completing 

audit. 

Field exercise .......................... Four-years after effective 

date.

At least once every five years, and 

within one year of an RMP reportable accident.

Complete field exercise by July 5, 

2022; complete an evaluation report 

within 90 days of the exercise. 

Include new accident history 

information in RMP.

Five-years after effective 

date.

Correct RMP within 6 months of accident (existing requirement); report 

complete accident information in 

next five-year RMP update.

Correct RMP by January 5, 2022; report complete accident information 

by June 5, 2025. 

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. 

Example 3: Compliance Date Example 

For Sources Subject to STAA 

Requirements 

Source C (see Table 14) is a petroleum 

refinery in NAICS 32411. Its latest RMP 

update was submitted on March 31, 

2018 (i.e., the year after the rule 

effective date). Its latest PHA 

revalidation was completed on March 7, 

2017 (i.e., approximately three months 

before the rule effective date). 

TABLE 14—EXAMPLE 3, SOURCE C 

Source C—Program 3, NAICS 32411 

Date of last RMP 

update Last PHA revalidation 

March 31, 2018 ......... March 7, 2017. 

Because the source is in NAICS 

32411, it is subject to the proposed 

STAA provisions of § 68.67(c)(8). 

Therefore, by four years after the rule 

effective date, the owner or operator 

must complete a PHA revalidation that 

addresses safer technology and 

alternative risk management measures, 

and determine the feasibility of the ISTs 

and ISDs considered. Under the 

proposed information availability 

requirements of § 68.205, the owner or 

operator must also submit to their LEPC 

a summary of the ISTs or ISDs 

implemented or planned, and annually 

update the summary as part of the 

calendar year submission described in 

§ 68.205(c). 

By June 5, 2018 the owner or operator 

of Source C must comply with the new 

emergency response coordination 

provisions, and by June 5, 2021, the 

owner or operator must also comply 

with other applicable proposed rule 

provisions including: Third-party 

audits; incident investigations; 

emergency response exercises; and 

information availability (including 

public meetings). 

By five years after the rule effective 

date, the owner or operator of Source C 

must update the RMP to include all 

revised data elements specified in 

subpart G and § 68.42. Table 15: 

Compliance date example for sources 

subject to STAA requirements, 

summarizes the proposed STAA 

provisions that would apply to Source 

C. 

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TABLE 15—COMPLIANCE DATE EXAMPLE FOR SOURCES SUBJECT TO STAA REQUIREMENTS

Applicable provisions Timeframe Additional information When to complete * 

STAA ...................................... Four-years after effective 

date.

Occurs every five years as part of 

PHA revalidation.

By June 5, 2021. 

Information availability to 

LEPC, upon request.

Four-years after effective 

date.

In addition to other information availability provisions, include information 

on IST or ISD to be implemented. 

Update every five years as part of 

information to provide to LEPC upon 

request.

Develop in first calendar year after 

completion of STAA or June 5, 

2021, whichever is later and provide 

to LEPC upon request. 

Update RMP ........................... Five years after rule effective 

date.

............................................................... By June 5, 2022. 

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. 

IX. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is an economically 

significant regulatory action that was 

submitted to the OMB for review. Any 

changes made in response to OMB 

recommendations have been 

documented in the docket. The EPA 

prepared a Regulatory Impact Analysis 

(RIA) of the potential costs and benefits 

associated with this action. This RIA is 

available in the docket and is 

summarized here (Docket ID Number 

EPA–HQ–OEM–2015–0725). 

1. Why EPA Is Considering This Action 

In response to catastrophic chemical 

facility incidents in the United States, 

President Obama issued Executive 

Order 13650, ‘‘Improving Chemical 

Facility Safety and Security,’’ on August 

1, 2013. The Executive Order establishes 

the Chemical Facility Safety and 

Security Working Group (Working 

Group), co-chaired by the Secretary of 

Homeland Security, the Administrator 

of EPA, and the Secretary of Labor or 

their designated representatives at the 

Assistant Secretary level or higher, and 

comprised of senior representatives of 

other Federal departments, agencies, 

and offices. The Executive Order 

requires the Working Group to carry out 

a number of tasks whose overall goal is 

to prevent chemical accidents, such as 

the explosion that occurred at the West 

Fertilizer facility in West, Texas, on 

April 17, 2013, which killed 15 people, 

most of whom were first responders, 

caused multiple injuries, and resulted in 

extensive building damage to the town. 

Section 6(a)(i) of Executive Order 

13650 requires the Working Group to 

develop options for improved chemical 

facility safety and security that identify 

‘‘improvements to existing risk 

management practices through agency 

programs, private sector initiatives, 

Government guidance, outreach, 

standards, and regulations.’’ Section 6(c) 

of Executive Order 13650 requires the 

Administrator of EPA to review the Risk 

Management Program. As part of this 

effort to solicit comments and 

information from the public regarding 

potential changes to EPA’s RMP 

regulations (40 CFR part 68), on July 31, 

2014, EPA published an RFI (79 FR 

44604). 

EPA believes that the RMP regulations 

have been effective in preventing and 

mitigating chemical accidents in the 

United States; however, EPA believes 

that revisions could further protect 

human health and the environment 

from chemical hazards through 

advancement of PSM based on lessons 

learned. These revisions are a result of 

a review of the existing Risk 

Management Program and information 

gathered from the RFI and Executive 

Order listening sessions, and are 

proposed under the statutory authority 

provided by CAA section 112(r) as 

amended (42 U.S.C. 7412(r)). 

2. Description of Alternatives to the 

Proposed Rule 

The RIA analyzed the proposed new 

requirements and revisions to existing 

requirements as well as several 

alternatives for each. 

Third-Party Audits—(Proposed 

Revisions Apply to Existing §§ 68.58 

and 68.79 and New §§ 68.59 and 68.80) 

The existing rule requires Program 2 

and Program 3 processes to conduct a 

compliance audit at least once every 3 

years. The proposed rule would require 

facilities to contract with an 

independent third-party to conduct the 

next scheduled compliance audit 

following an RMP reportable accident or 

after an implementing agency 

determines that certain circumstances 

exist that suggest a heightened risk for 

an accident. The third-party would have 

to be someone with whom the facility 

does not have an existing or recent 

relationship and who meets specific 

qualification criteria. The low cost 

alternative would apply only for 

Program 2 and Program 3 processes after 

an RMP reportable accident or at the 

request of the implementing agency. 

The medium cost alternative would 

apply every three years for all 

compliance audits conducted for all 

Program 3 processes. The high cost 

alternative would apply every three 

years for all compliance audits 

conducted for Program 2 and Program 3 

processes. 

Root Cause Analysis—(Proposed 

Revisions Apply to §§ 68.60 and 68.81) 

The proposed rule would require 

facilities to conduct a root cause 

analysis as part of an incident 

investigation following an RMP 

reportable accident or an incident that 

could reasonably have resulted in an 

RMP reportable accident (i.e., ‘‘near 

miss’’). A root cause analysis is a formal 

process to identify underlying reasons 

for failures that lead to accidental 

releases. These analyses usually require 

someone trained in the technique. The 

low cost alternative would apply the 

provision only to RMP reportable 

accidents or near misses in Program 3 

processes. The medium/high cost 

alternative would apply to RMP 

reportable accidents or near misses 

involving Program 2 and Program 3 

processes. 

Safer Technology and Alternatives 

Analysis (STAA)—(Proposed Revisions 

Apply to § 68.67) 

Under the proposed rule, facilities in 

NAICS codes 322 (paper 

manufacturing), 324 (petroleum and 

coal products manufacturing), and 325 

(chemical manufacturing) with Program 

3 processes would be required to 

conduct a STAA for each process as part 

of their PHA, which occurs every 5 

years. The STAA includes two parts: 

The initial analysis to identify 

alternatives, and a feasibility study to 

determine the costs and assess the 

reasonableness of implementing 

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technology alternatives. The proposed 

rule is the low cost alternative, which 

would apply to all facilities with 

Program 3 processes in NAICS codes 

322, 324, and 325. The medium cost 

alternative would apply the requirement 

to all Program 3 processes. The high 

cost alternative would apply the 

requirement to all Program 3 processes 

and require facilities to implement 

feasible IST/ISD. 

Coordination Activities—(Proposed 

Revisions Apply to §§ 68.90, New 68.93, 

and 68.95) 

Under the proposed rule, all facilities 

with Program 2 or Program 3 processes 

would be required to coordinate with 

local response agencies annually to 

determine response needs and ensure 

that response resources and capabilities 

are in place to respond to an accidental 

release of a regulated substance. The 

owner or operator would also be 

required to document coordination 

activities. The proposed rule also 

includes a provision enabling the LEPC 

or local emergency response official to 

request, in writing, that the RMP-facility 

owner or operator comply with the 

emergency response program 

requirements of § 68.95. Section 68.95 

requires the owner or operator to 

develop an emergency response 

program that includes an emergency 

response plan, procedures for use, 

inspection and maintenance of response 

equipment, training for responding 

employees, and procedures to review 

and update the program. 

Alternatives to this provision are 

similar to the proposed requirements. 

One alternative that imposes the same 

costs as the proposed option would 

eliminate the option for local officials to 

request that a facility owner or operator 

comply with the requirements of 

§ 68.95. A second alternative is a high 

cost alternative and would require all 

facilities with Program 2 or Program 3 

processes to comply with § 68.95, 

regardless of local response capability. 

This would be analogous to the 

requirements under the Oil Pollution 

Prevention regulation (40 CFR part 112) 

where all facilities subject to the FRP 

provisions at § 112.20 are required to 

prepare and implement an emergency 

response plan for oil discharges into 

navigable waters or adjoining 

shorelines. 

Exercises—(Proposed Revisions Apply 

to New § 68.96) 

Notification Exercises. All facilities 

with Program 2 or Program 3 processes 

would be required to conduct a 

notification exercise annually to ensure 

that the contact list to be used in an 

emergency is complete, accurate, and 

up-to-date. 

Tabletop and Field Exercises. The 

proposed rule would require responding 

facilities to conduct annual exercises of 

their emergency response plans and 

invite local emergency response officials 

to participate. Under the low cost 

alternative, facilities would conduct 

tabletop exercises annually. Under the 

proposed rule, which is the medium 

cost alternative, facilities would 

conduct a full field exercise at least 

once every five years and tabletop 

exercises annually in the interim years. 

Facilities with an RMP reportable 

accident would also have to conduct a 

full field exercise within a year of an 

RMP reportable accident, but this may 

not impose any additional burden under 

the medium alternative as it would 

count as the required field exercise for 

the next 5-year period. Under the high 

cost alternative, facilities would 

conduct full field exercises annually. 

Information Availability—(Proposed 

Revisions Apply to New § 68.205 and 

Existing § 68.210) 

The proposed rule would require all 

facilities to disclose certain chemical 

hazard information to the public. The 

facility or its parent company, if 

applicable, would have to make the 

information available in an easily 

accessible manner, which might be 

presenting information on a company 

Web site, posting the information at 

public libraries, publishing it in local 

papers, or other means appropriate for 

particular communities and facilities. 

The information to be disclosed 

includes names of regulated substances 

at the facility; SDS; accident history 

information; emergency response 

program information; and LEPC or local 

response agency contact information. 

In addition, facility owners or 

operators would be required to provide 

information upon request to the LEPC or 

other local response agencies on all of 

the following that apply to the facility: 

Names and quantities of regulated 

substances; five-year RMP reportable 

accident history; summaries of 

compliance audit reports; summaries of 

incident investigation reports; 

summaries of implementation of IST; 

and information on emergency response 

exercises, including schedules for 

upcoming exercises. Facilities owners or 

operators would be required to update 

this information annually. Although 

EPA did not analyze alternatives for this 

provision, the different applicability for 

the STAA provision alternatives 

increases the cost of the medium/high 

alternative for disclosure to the LEPC 

because more facilities would have to 

report on that analysis. 

Public Meeting—(Proposed Revisions 

Apply to § 68.210) 

The proposed rule would require 

facilities to hold a public meeting for 

the local community within 30 days of 

an RMP reportable accident. The 

medium cost alternative would require 

Program 2 and Program 3 facilities to 

hold a public meeting at least once 

every 5 years and within 30 days of an 

RMP reportable accident. The high cost 

alternative would require all facilities 

(i.e., including Program 1 facilities) to 

hold a public meeting at least once 

every 5 years and within 30 days of an 

RMP reportable accident. 

3. Summary of Costs 

Approximately 12,500 facilities have 

filed current RMPs with EPA and are 

potentially affected by the proposed rule 

changes. These facilities range from 

petroleum refineries and large chemical 

manufacturers to water and wastewater 

treatment systems; chemical and 

petroleum wholesalers and terminals; 

food manufacturers, packing plants, and 

other cold storage facilities with 

ammonia refrigeration systems; 

agricultural chemical distributors; 

midstream gas plants; and a limited 

number of other sources that use RMPregulated substances. 

Table 16 presents the number of 

facilities according to the latest RMP 

reporting as of February 2015 by 

industrial sector and chemical use. 

TABLE 16—NUMBER OF AFFECTED FACILITIES BY SECTOR

Sector NAICS Codes Total facilities Chemical uses 

Administration of environmental quality programs (i.e., governments).924 1,923 Use chlorine and other chemicals for treatment. 

Agricultural chemical distributors/wholesalers .... 111, 112, 115, 42491 3,667 Store ammonia for sale; some in NAICS 111 

and 115 use ammonia as a refrigerant. 

Chemical manufacturing ...................................... 325 1,466 Manufacture, process, store. 

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TABLE 16—NUMBER OF AFFECTED FACILITIES BY SECTOR—Continued 

Sector NAICS Codes Total facilities Chemical uses 

Chemical wholesalers ......................................... 4246 333 Store for sale. 

Food and beverage manufacturing ..................... 311, 312 1,476 Use (mostly ammonia as a refrigerant). 

Oil and gas extraction ......................................... 211 741 Intermediate processing (mostly regulated 

flammable substances and flammable mixtures). 

Other .................................................................... 44, 45, 48, 54, 56, 61, 72 248 Use chemicals for wastewater treatment, refrigeration, store chemicals for sale. 

Other manufacturing ............................................ 313, 326, 327, 33 384 Use various chemicals in manufacturing process, waste treatment. 

Other wholesale .................................................. 423, 424 302 Use (mostly ammonia as a refrigerant). 

Paper manufacturing ........................................... 322 70 Use various chemicals in pulp and paper manufacturing. 

Petroleum and coal products manufacturing ...... 324 156 Manufacture, process, store (mostly regulated 

flammable substances and flammable mixtures). 

Petroleum wholesalers ........................................ 4247 276 Store for sale (mostly regulated flammable 

substances and flammable mixtures). 

Utilities ................................................................. 221 (except 22131, 22132) 343 Use chlorine (mostly for water treatment). 

Warehousing and storage ................................... 493 1,056 Use mostly ammonia as a refrigerant. 

Water/wastewater Treatment Systems ............... 22131, 22132 102 Use chlorine and other chemicals. 

Total ............................................................. ............................................ 12,542 

Table 17 presents a summary of the 

annualized costs estimated in the 

regulatory impact analysis. In total, EPA 

estimates annualized costs of $158.3 

million at a 3% discount rate and 

$161.0 million at a 7% discount rate. 

TABLE 17—SUMMARY OF ANNUALIZED COSTS

[Millions, 2014 dollars] 

Provision 3 (percent) 7 (percent) 

Third-party Audits .................................................................................................................................................... $5.0 $5.0 

Incident Investigation/Root Cause ........................................................................................................................... 0.8 0.8 

STAA ........................................................................................................................................................................ 34.8 34.8 

Coordination ............................................................................................................................................................. 6.3 6.3 

New Responders * ................................................................................................................................................... 33.0 35.6 

Notification Exercises .............................................................................................................................................. 1.4 1.4 

Facility Exercises ..................................................................................................................................................... 60.7 60.7 

Information Sharing (LEPC) .................................................................................................................................... 11.7 11.7 

Information Sharing (Public) .................................................................................................................................... 4.0 4.0 

Public Meeting ......................................................................................................................................................... 0.4 0.4 

Rule Familiarization ................................................................................................................................................. 0.3 0.3 

Total Cost + ....................................................................................................................................................... 158.3 161.0 

* Reflects costs for some facilities to convert from ‘‘non-responding’’ to ‘‘responding’’ as a result of improved coordination with local emergency 

response officials. +Totals may not sum due to rounding. 

The largest average annual cost of the 

proposed rule is the exercise cost for 

current responders ($60.7 million), 

followed by new responders ($35.6 

million), STAA ($34.8 million), and 

information sharing (LEPC) ($11.7 

million). The remaining provisions 

impose average annual costs under $10 

million, including coordination ($6.3 

million), third-party audits ($5.0 

million), information sharing (public) 

($4.0 million), notification exercises 

($1.4 million), incident investigation/

root cause analysis ($0.8 million), 

public meetings ($0.4 million), and rule 

familiarization ($0.3 million). 

The proposed rule includes three 

prevention program provisions—third 

party audits, root cause analysis, and 

STAA—involving information 

collection and analysis activities that 

can lead to a wide range of outcomes, 

and therefore costs, if and when the 

owner acts upon the findings and/or 

recommendations generated by the 

audit, investigation, or analysis. 

Although resolving audit and 

investigation findings is required under 

the existing rule provisions, and the 

proposed rule does not require 

implementation of feasible IST 

alternatives, EPA believes it is possible 

that there may be costs associated with 

resolving findings from the proposed 

third-party audit and root cause analysis 

provisions that go beyond the costs of 

the existing provisions, and that some 

owners or operators may have 

additional costs due to voluntary 

implementation of IST. Due to the wide 

range of outcomes from these proposed 

provisions and the significant 

uncertainties associated with their costs, 

EPA seeks further information on their 

potential costs, and whether these costs 

should accrue to this proposal. What 

types of costs result from independent 

audits (other than the cost of the audit) 

that are different from self-audit costs? 

What types of costs result from root 

cause investigations as compared to 

non-root-cause investigations? For the 

STAA provisions, what information 

exists to project what changes facilities 

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are likely to voluntarily undertake? EPA 

particularly requests cost data or studies 

for implementation of IST changes from 

any commenters who may prefer the 

high option for this provision, which 

would require implementation of 

feasible IST alternatives. 

Summary of Potential Benefits 

EPA anticipates that promulgation 

and implementation of this rule would 

result in a reduction of the frequency 

and magnitude of damages from 

releases. Accidents and releases from 

RMP facilities occur every year, 

resulting in fires and explosions, 

property damage, acute and chronic 

exposures of workers and nearby 

residents to hazardous materials, and 

resultant damages to health. Although 

we are unable to quantify what specific 

damage reductions may occur as a result 

of these proposed revisions, we are able 

to present data on the total damages that 

currently occur at RMP facilities each 

year. The data presented are based on a 

10-year baseline period, summarizing 

RMP accident impacts and, when 

possible, monetizing them. EPA expects 

that some portion of future damages 

would be prevented through 

implementation of a final rule. Table 18 

presents a summary of the quantified 

damages identified in the analysis. 

TABLE 18—SUMMARY OF QUANTIFIED DAMAGES

Unit value 10-Year total Average/year Average/ 

accident 

On-site 

Fatalities ................................................................................................... $8,583,113 $497,820,554 $49,782,055 $328,161 

Injuries ..................................................................................................... 50,000 105,150,000 10,515,000 69,314 

Property Damage ..................................................................................... ........................ 2,054,895,236 205,489,524 1,354,578 

On-site Total ..................................................................................... ........................ 2,657,865,790 265,786,579 1,752,053 

Offsite 

Fatalities ................................................................................................... $8,583,113 $8,583,113 $858,311 $5,658 

Hospitalizations ........................................................................................ 36,000 6,804,000 680,400 4,485 

Medical Treatment ................................................................................... 1,000 14,807,000 1,480,700 9,761 

Evacuations ............................................................................................. 181 6,992,327 699,233 4,609 

Sheltering in Place ................................................................................... 91 40,920,849 4,092,085 26,975 

Property Damage ..................................................................................... ........................ 11,352,105 1,135,211 7,483 

Offsite Total ...................................................................................... ........................ 89,459,394 8,945,939 58,971 

Total ........................................................................................... ........................ 2,747,325,184 274,732,518 1,811,024 

EPA monetized both on-site and 

offsite damages. EPA estimated total 

average annual on-site damages of 

$265.8 million. The largest monetized 

average annual on-site damage was 

avoided on-site property damage, which 

resulted in an average annual damage of 

approximately $205.5 million. The next 

largest impact was avoided on-site 

fatalities ($49.8 million) and injuries 

($10.5 million). 

EPA estimated total average annual 

offsite damages of $8.9 million. The 

largest monetized average annual offsite 

damage was from sheltering in place 

($4.1 million), followed by medical 

treatment ($1.5 million), property 

damage ($1.1 million), fatalities ($0.9 

million), evacuations ($0.7 million), and 

hospitalizations ($0.7 million). 

In total, EPA estimated monetized 

potential damages of $275 million per 

year. However, the monetized impacts 

omit many important categories of 

accident impacts including lost 

productivity, the costs of emergency 

response, transaction costs, property 

value impacts in the surrounding 

community (that overlap with other 

benefit categories), and environmental 

impacts. Also not reflected in the 10- 

year baseline costs are the impacts of 

non-RMP accidents at RMP facilities 

and any potential impacts of rare high 

consequence catastrophes. A final 

omission is related to the information 

provision. Reducing the probability of 

chemical accidents and the severity of 

their impacts, and improving 

information disclosure by chemical 

facilities, as the proposed provisions 

intend, would provide benefits to 

potentially affected members of society. 

Table 19 summarizes four broad 

social benefit categories related to 

accident prevention and mitigation 

including prevention of RMP accidents, 

mitigation of RMP accidents, prevention 

and mitigation of non-RMP accidents at 

RMP facilities, and prevention of major 

catastrophes. The table explains each 

and identifies ten associated specific 

benefit categories, ranging from avoided 

fatalities to avoided emergency response 

costs. Table 19 also highlights and 

explains the information disclosure 

benefit category and identifies two 

specific benefits associated with it: 

Improved efficiency of property markets 

and allocation of emergency resources. 

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TABLE 19—SUMMARY OF SOCIAL BENEFITS OF PROPOSED RULE PROVISIONS

Broad benefit category Explanation Specific benefit categories 

Accident Prevention ...........................................

Accident Mitigation .............................................

Non-RMP accident prevention and mitigation ....

........................................................................

Avoided Catastrophes ........................................

........................................................................

Prevention of future RMP facility accidents .....

Mitigation of future RMP facility accidents ......

Prevention and mitigation of future non-RMP

accidents at RMP facilities. ..........................

Prevention of rare but extremely high con- .....

sequence events. .........................................

• Reduced Fatalities. 

• Reduced Injuries. 

• Reduced Property Damage. 

• Fewer People Sheltered in Place. 

• Fewer Evacuations. 

• Avoided Lost Productivity. 

• Avoided Emergency Response Costs. 

• Avoided Transaction Costs. 

• Avoided Property Value Impacts.* 

• Avoided Environmental Impacts. 

Information Disclosure ........................................ Provision of information to the public and 

LEPCs.

• Improved efficiency of property markets. 

• Improved resource allocation. 

* These impacts partially overlap with several other categories such as reduced health and environmental impacts. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this proposed rule have been 

submitted for approval to the OMB 

under the PRA. The Information 

Collection Request (ICR) document that 

the EPA prepared has been assigned 

EPA ICR number 2537.01. You can find 

a copy of the ICR in the docket for this 

rule, and it is briefly summarized here. 

This ICR would amend a previously 

approved ICR (1656.15), OMB Control 

No. 2050–0144. That ICR covers the risk 

management program rule, originally 

promulgated on June 20, 1996; the 

current rule, including previous 

amendments, is codified as 40 CFR part 

68. This ICR addresses the following 

proposed information requirements that 

are part of a proposed revision to the 

rule: 

(1) Make certain information related 

to the risk management program 

available to the local community. 

(2) Provide information, upon request, 

to the LEPC and local emergency 

response officials with summaries of 

certain activities under the risk 

management program. 

(3) Hold a public meeting within 30- 

days of an accident subject to reporting 

under § 68.42. 

(4) Hire a third-party to conduct the 

compliance audit after a reportable 

release. 

(5) Conduct and document a root 

cause analysis after a reportable release. 

(6) Conduct and document an 

incident investigation, including root 

cause analysis, after a near miss. 

(7) Conduct and document a safer 

technology and alternatives analysis. 

(8) Meet and coordinate with local 

responders to ensure adequate response 

capability exists. 

(9) Conduct a notification drill to 

verify information. 

(10) Conduct and document 

emergency response exercises. 

(11) Come into compliance with 

requirements for developing an 

emergency response program, including 

developing an emergency response plan, 

conducting emergency response 

exercises, documenting training, and 

providing information to the LEPC. 

EPA believes that the RMP regulations 

have been effective in preventing and 

mitigating chemical accidents in the 

United States. However, EPA is 

proposing revisions to further protect 

human health and the environment 

from chemical hazards through 

advancement of PSM based on lessons 

learned—resulting in better 

coordination between facilities, LEPC’s, 

and the public. State and local 

authorities will use the information in 

RMPs to modify and enhance their 

community response plans. The 

agencies implementing the RMP rule 

will use RMPs to evaluate compliance 

with part 68 and to identify sources for 

inspection because they may pose 

significant risks to the community. 

Citizens may use the information to 

assess and address chemical hazards in 

their communities and to respond 

appropriately in the event of a release of 

a regulated substance. These revisions 

are a result of a review of the existing 

Risk Management Program and are 

proposed under the statutory authority 

provided by section 112(r) of the CAA 

as amended (42 U.S.C. 7412(r)). 

Some of the elements mandated in the 

regulation for the RMP may require the 

submittal of data viewed as proprietary, 

trade secret, or confidential. As 

described above, EPA has adopted 

procedures for sources to claim certain 

information as confidential business 

information. EPA encourages facilities 

that have CBI claims to submit 

substantiation with the RMP. 

Respondents/affected entities: 

Manufacturers, utilities, warehouses, 

wholesalers, food processors, ammonia 

retailers, and gas processors. 

Respondent’s obligation to respond: 

Mandatory (CAA sections 112(r)(7)(B)(i) 

and (ii), CAA section 112(r)(7)(B)(iii), 

114(c), CAA 114(a)(1)). 

Estimated number of respondents: 

12,542. 

Frequency of response: On occasion. 

Total estimated burden: 623,970 

hours (per year). Burden is defined at 5 

CFR 1320.3(b). 

Total estimated cost: $55,278,216 (per 

year), includes $4,303,435 annualized 

capital or operation & maintenance 

costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

Submit your comments on the 

Agency’s need for this information, the 

accuracy of the provided burden 

estimates and any suggested methods 

for minimizing respondent burden to 

the EPA using the docket identified at 

the beginning of this rule. You may also 

send your ICR-related comments to 

OMB’s Office of Information and 

Regulatory Affairs via email to oria_

submissions@omb.eop.gov, Attention: 

Desk Officer for the EPA. Since OMB is 

required to make a decision concerning 

the ICR between 30 and 60 days after 

receipt, OMB must receive comments no 

later than April 13, 2016. The EPA will 

respond to any ICR-related comments in 

the final rule. 

C. Regulatory Flexibility Act (RFA) 

Pursuant to section 603 of the RFA, 

the EPA prepared an initial regulatory 

flexibility analysis (IRFA) that examines 

the impact of the proposed rule on small 

entities along with regulatory 

alternatives that could minimize that 

impact. The complete IRFA is available 

for review in the docket and is 

summarized here. 

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207 5 U.S.C. 602. 

1. Why EPA Is Considering This Action 

The purpose of this action is to 

improve safety at facilities that use and 

distribute hazardous chemicals. In 

response to catastrophic chemical 

facility incidents in the United States, 

including the explosion that occurred at 

the West Fertilizer facility in West, 

Texas, on April 17, 2013 that killed 15 

people, President Obama issued 

Executive Order 13650, ‘‘Improving 

Chemical Facility Safety and Security,’’ 

on August 1, 2013. Section 6(a)(i) of 

Executive Order 13650 requires that 

various Federal agencies develop 

options for improved chemical facility 

safety and security, including 

modernizing regulations. As a result, 

EPA is proposing revisions to the Risk 

Management Program (40 CFR part 68). 

For more information on Executive 

Order 13650, see section II. Background 

of this document. 

2. Objectives of, and Legal Basis for, the 

Proposed Rule 

EPA believes that the RMP regulations 

have been effective in preventing and 

mitigating chemical accidents in the 

United States; however, EPA believes 

that revisions could further protect 

human health and the environment 

from chemical hazards through the 

advancement of process safety based on 

lessons learned. These revisions are a 

result of a review of the existing Risk 

Management Program and information 

gathered from the RFI and Executive 

Order listening sessions, and are 

proposed under the statutory authority 

provided by CAA section 112(r) as 

amended (42 U.S.C. 7412(r)). 

3. Estimate of the Number of Small 

Entities to Which the Proposed Rule 

Will Apply 

The RMP rule affects a broad range of 

sectors (296 separate NAICS codes are 

listed in RMP filings; 240 of these are 

associated with small entities). The 

RMP data include facility and parent 

company name as well as the number of 

full time equivalents (FTE) for the 

facility and the NAICS codes. To 

develop an estimate of the number of 

small entities, the analysis required a 

series of reviews of the data to identify 

the large entities and the small entities 

that were part of small firms owning 

multiple facilities. The data were 

reviewed to identify parent companies 

that were clear from the facility name, 

but not included in the parent company 

field. That made it possible to determine 

the total FTE for facilities belonging to 

the same parent company and compare 

that number to the Small Business 

Administration (SBA) standard (when 

in FTEs). If the total FTE exceeded the 

standard, all the facilities were 

classified as large. Where the facilities 

listed different NAICS codes, the 

analysis applied either the code used for 

a majority of the facilities or, if no single 

code dominated, the code with the 

highest threshold. For example, if a firm 

had facilities in sectors where the 

standards were 500 and 1,000 FTE, the 

1,000 FTE standards was used to 

determine if the firm was large. 

For remaining facilities, if there were 

multiple facilities belonging to a single 

firm and the total FTE approached the 

threshold or if the name included 

‘‘USA’’ or ‘‘US holdings,’’ which 

implied an international company, 

Internet searches were conducted to 

identify whether the facilities belonged 

to a firm with other facilities or 

employees. 

The RFA defines small governments 

as governments of cities, counties, 

towns, townships, villages, school 

districts, or special districts, with a 

population of less than fifty 

thousand.207 Most governmental RMP 

facilities are water and wastewater 

treatment systems and listed a city or 

county as the owning entity. A check of 

budgets that were available for some of 

the smallest cities indicated that (1) the 

systems are sub-agencies of the city/

county and (2) obtain some revenues 

from the general fund although most of 

their revenues are derived from user 

fees. To determine which facilities 

belong to small governments, the 

populations for each of cities or 

counties were determined by checking 

the 2014 estimates from the Census. For 

special water and irrigation districts, 

their Internet sites were checked for 

information on the population served. 

Table 20 below presents the number of 

small and large facilities by program 

level. 

TABLE 20—NUMBER OF FACILITIES OWNED BY SMALL AND LARGE ENTITIES BY PROGRAM LEVEL

RMP program Small private Large private Small 

government 

Large 

government Total 

Program 3 ............................................................................ 3,545 6,097 451 522 10,615 

Program 2 ............................................................................ 174 176 521 414 1,285 

Program 1 ............................................................................ 213 414 6 9 642 

Total .............................................................................. 3,932 6,687 978 945 12,542 

4. Projected Reporting, Recordkeeping 

and Other Compliance Requirements of 

the Proposed Rule 

Under the proposed rule, all facilities 

would be required to make certain 

information available to the public and, 

upon request, to the LEPC or local 

emergency response officials. Program 1 

facilities would not likely have to spend 

more than an hour a year on this 

disclosure because the information 

disclosed to the public is information 

every facility should have readily 

available and because the additional 

information that would be provided, 

upon request, to the LEPC relates to 

provisions that do not apply to Program 

1 facilities. Therefore, the IRFA has not 

considered Program 1 small facilities in 

the analysis of impacts. 

Program 2 and Program 3 facilities 

would incur the same costs for the other 

proposed provisions except the STAA. 

Each facility would be required to 

update information to be disclosed 

annually, coordinate with the local 

responders, and conduct a notification 

drill annually. If the facility is a 

responder, it would have to hold an 

annual exercise, including at least one 

full field exercise every 5 years. Program 

3 facilities in NAICS codes 322, 324, 

and 325 would have to conduct an 

STAA as part their PHA every 5 years. 

If a facility has an accident, it would 

incur costs to hold a public meeting 

within 30 days of an RMP reportable 

accident. It would also incur additional 

costs for obtaining a third-party to 

conduct their next scheduled 

compliance audit and to conduct a root 

cause analysis as part of the incident 

investigation. Facilities would also be 

required to conduct root cause 

investigations of near misses. Finally, if 

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a facility has to become a responder, it 

would incur costs to develop an 

emergency response plan, train 

personnel to respond, purchase and 

maintain equipment, and conduct 

exercises. 

Table 21 presents three sets of costs: 

low year, annualized, and high year 

(excludes costs incurred after an 

accident or a near miss). Low-year costs 

represent costs for years in which 

routine annual costs apply. These 

include costs for coordinating with local 

responders, conducting notification 

exercises (applies to all Program 2 and 

Program 3 facilities), conducting 

tabletop exercises (applies only to 

responders), and updating disclosure 

information to LEPC and the public. 

High-year costs represent a year in 

which every applicable provision would 

occur, except costs incurred after an 

accident or ‘‘near miss.’’ This includes 

the routine annual costs and periodic 

costs that apply either every 3 or 5 years 

(i.e., field exercise in lieu of a tabletop 

exercise, public meeting, all public 

disclosure requirements, and STAA). 

Because the STAA provisions would 

only apply to a subset of facilities (i.e., 

those in NAICS 322, 324, and 325), 

these facilities are broken out separately 

in the last two rows of the table. 

Complex facilities are those categorized 

as NAICS 324 or 325 and simple 

facilities are all others. Annualized costs 

average the low costs incurred for four 

years with the high costs incurred every 

fifth year. 

TABLE 21—LOW, ANNUALIZED, AND HIGH YEAR COMBINED COSTS FOR SMALL ENTITIES BY GROUP

Low year cost Annualized High year cost 

Simple Complex Simple Complex Simple Complex 

Program 2 and Program 3 facilities (excludes Program 3 facilities subject to STAA) 

Non Responder ........................................ $808 $1,223 $808 $1,223 $808 $1,223 

Responder 0–19 FTE .............................. 6,743 9,289 8,158 10,898 9,572 12,507 

Responder 20+ FTE ................................ 7,870 10,761 11,885 15,261 15,900 19,761 

Program 3 facilities subject to STAA 

Non Responder ........................................ n/a 1,223 n/a 17,295 n/a 33,366 

Responder <20 FTE ................................ n/a 9,289 n/a 26,970 n/a 44,650 

5. Related Federal Rules 

The Risk Management Program is one 

of several programs regarding chemical 

facility safety and security. Executive 

Order 13650 directed Federal agencies 

to identify ways to modernize policies, 

regulations, and standards to enhance 

safety and security in chemical 

facilities. The Executive Order 

established a Chemical Facility Safety 

and Security Working Group to oversee 

this effort, which is tri-chaired by the 

EPA, DOL, and DHS. 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. 

These efforts also serve to avoid 

unnecessary duplication, overlap and 

conflicts with the Risk Management 

Program requirements. 

OSHA’s 29 CFR 1910.119 PSM 

standard. Mandated by the CAAA 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. 

The OSHA PSM standard, similar to 

the EPA RMP rule, aims to prevent or 

minimize the consequences of 

accidental chemical releases through 

implementation of management 

program elements that integrate 

technologies, procedures, and 

management practices. The EPA RMP 

regulation closely tracks the accident 

prevention measures contained in the 

OSHA PSM standard because Section 

112(r)(7)(D) of the CAA requires EPA to 

coordinate the RMP regulation with 

‘‘any requirements established for 

comparable purposes’’ by OSHA. 

Consequently, the OSHA PSM standard 

and EPA RMP regulation are closely 

aligned in content, policy 

interpretations, Agency guidance, and 

enforcement. 

Since the inception of these 

regulations, EPA and OSHA have 

coordinated closely on their 

implementation in order to minimize 

regulatory burden and avoid conflicting 

requirements for regulated facilities. For 

example, owners and operators of RMP 

covered processes also subject to the 

OSHA PSM standard will generally 

have met their RMP accident prevention 

program obligations if they have 

properly implemented their PSM 

program. 

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 EPCRA regulations (40 CFR 

350–372). Following the 1984 release of 

approximately 40 tons of MIC 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 SERCs, TERCs, LEPCs, and 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: 

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208Although 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. 

• 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 

• 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 

on-site 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.’’ 208

DHS’s 6 CFR part 27 CFATS rule. 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 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. 

6. Description of Alternatives to the 

Proposed Rule 

The RIA analyzed the proposed new 

requirements and revisions to existing 

requirements as well as several 

alternatives for each. In most cases, EPA 

chose regulatory alternatives that had 

reduced impacts on small businesses 

relative to other alternatives that EPA 

considered. In this section, we discuss 

each regulatory provision, explain 

whether and how the proposed 

provision minimizes impacts on small 

businesses, and discuss additional 

recommendations resulting from the 

SBAR Panel that could further mitigate 

small business impacts. EPA has 

requested comment on these 

recommendations. 

Third-Party Audits—(Proposed 

Revisions Apply to Existing §§ 68.58 

and 68.79 and New §§ 68.59 and 68.80) 

EPA evaluated three options for this 

provision and selected the lowest cost 

alternative, which would apply the 

requirement only to sources with 

Program 2 and/or Program 3 processes 

that have had an RMP reportable 

accident. The other alternatives would 

have required that all compliance audits 

be conducted by third parties for 

sources with either Program 3 processes 

or Program 2 and Program 3 processes. 

Limiting the applicability of this 

proposed provision to sources that have 

had RMP reportable accidents 

minimizes its impact to the overall 

universe of RMP facilities, and 

particularly to small businesses. As 

indicated in Exhibit 5–25 in the RIA, the 

estimated cost of the high option ($96.2 

million annualized) is nearly 20 times 

higher than the estimated costs of the 

proposed option ($5.0 million 

annualized). Furthermore, a majority of 

the costs for the proposed option would 

likely be borne by large businesses, as 

historically, most RMP accidents have 

occurred at facilities that do not meet 

SBA small business criteria. Table 22 

shows the percentage of accidents from 

2004–2013 that occurred at small and 

large facilities. 

TABLE 22—PERCENTAGE OF ACCIDENTS AT SMALL AND LARGE RMP FACILITIES, 2004–2013 

Sector 

Program 1 Program 2 Program 3 

Total 

Small Large Small Large Small Large 

NAICS 325—Chemical Manufacturing ................................ 0 6 1 5 53 465 530 

NAICS 311, 312—Food/Beverage Manufacturers .............. 0 0 2 0 58 210 270 

NAICS 322—Paper Manufacturing ...................................... 0 0 0 0 9 37 46 

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TABLE 22—PERCENTAGE OF ACCIDENTS AT SMALL AND LARGE RMP FACILITIES, 2004–2013—Continued 

Sector 

Program 1 Program 2 Program 3 

Total 

Small Large Small Large Small Large 

NAICS 331, 332, 333, 334, 336, 339—Other Manufacturing ................................................................................. 0 0 4 0 12 27 43 

NAICS 11, 12, 15, 42491—Agricultural Chemical Distributors .................................................................................... 0 0 0 0 91 65 156 

NAICS 4246, 4247—Chemical/petroleum wholesale .......... 0 2 0 0 7 29 38 

NAICS 4244, 4245—Other wholesale ................................. 0 0 0 0 7 13 20 

NAICS 493—Warehouse ..................................................... 0 1 0 0 18 53 72 

NAICS 324—Petroleum and Coal Products Manufacturing 2 6 0 0 15 146 169 

NAICS 22131, 22132—Water/POTW .................................. 0 0 14 20 17 24 75 

NAICS 211—Oil/Gas exploration ......................................... 4 4 1 0 10 34 53 

Other .................................................................................... 3 7 7 4 7 17 45 

Total .............................................................................. 9 26 29 29 304 1,120 1,517 

While the proposed third-party audit 

provision should have fairly low impact 

on small businesses, the SBAR Panel 

made additional recommendations to 

further minimize the impacts of this 

provision on small businesses. The 

Panel recommended that EPA consider 

proposing streamlined independence 

requirements for small businesses (i.e. 

based on size of the facility). The Panel 

also recommended that EPA limit the 

independence criteria to individuals 

participating in the audit rather than the 

entire company. The Panel further 

recommended 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 Program 3 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 third-party 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 third-party auditor. 

EPA incorporated preamble language 

to address these Panel recommendations 

in section IV.B of this document. 

Incident Investigation/Root Cause 

Analysis—(Proposed Revisions Apply to 

§§ 68.60 and 68.81) 

In this case, EPA considered two 

potential regulatory options, and 

proposed the higher cost option, which 

would apply the requirement for an 

incident root cause analysis to all RMPreportable accidents and near misses 

involving Program 2 and Program 3 

processes. The lower cost option would 

apply the requirement to accidents and 

near misses at only Program 3 processes. 

Although the Agency chose the higher 

cost option, this provision is estimated 

to be one of the least costly provisions 

of the proposed rule. In fact, the costs 

for both options considered were nearly 

indistinguishable—as indicated in 

Exhibit 5–25 in the RIA, both the low 

and proposed options are estimated to 

cost approximately $0.8 million 

annually. Therefore, EPA believes that 

the additional safety benefit of requiring 

owners and operators of Program 2 

processes to also conduct root cause 

analyses after incidents and near misses 

was warranted. 

The SBAR Panel also made 

recommendations to further minimize 

the impacts of this provision on small 

businesses. The Panel recommended 

that EPA clarify our 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 recommended that EPA consider 

proposing to require root cause analysis 

only for reportable releases, not 

including near misses. The Panel 

recommended 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. Finally, 

the Panel recommended 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. 

EPA incorporated preamble language 

to address these Panel recommendations 

in section IV.A of this document. 

STAA—(Proposed Revisions Apply to 

§ 68.67) 

For STAA, EPA examined three 

potential alternative regulatory options, 

and chose the least costly option. The 

proposed option, which would apply 

the STAA requirement to Program 3 

processes in NAICS 322 (paper 

manufacturing), 324 (petroleum and 

coal products manufacturing), and 325 

(chemical manufacturing), costs $34.8 

million annually and is approximately 

half as costly as the medium option 

($71.7 million annually), which would 

apply the requirement to all Program 3 

processes, and likely far less costly than 

the high option, which would require 

implementation of feasible safer 

alternatives for all Program 3 processes. 

The low-cost STAA option not only 

minimizes the overall number of 

sources that are subject to it, but is also 

biased toward larger sources. This is 

because the three sectors selected for 

regulation under this proposed 

provision all have a lower percentage of 

small entities than the overall 

percentage of small entities within the 

RMP facility universe. As indicated in 

Table 23, approximately 39% of 

facilities regulated under the RMP 

regulation are owned by small entities. 

In comparison, NAICS 322 (paper 

manufacturing) has about 20% RMPregulated small businesses within the 

sector, while NAICS 324 (petroleum and 

coal products manufacturing) and 325 

(chemical manufacturing) each have 

approximately 10% small businesses. 

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TABLE 23—PERCENTAGE OF SMALL BUSINESSES IN NAICS 322, 324, 325 AND OVERALL

Sector Small Total Percentage 

small 

NAICS 322—Paper Manufacturing .............................................................................................. 9 46 19.6 

NAICS 324—Petroleum and Coal Products Manufacturing ........................................................ 17 169 10.1 

NAICS 325—Chemical Manufacturing ........................................................................................ 54 530 10.2 

All Sectors .................................................................................................................................... 4,910 12,542 39.1 

The SBAR Panel also made 

recommendations to further minimize 

the impacts of this provision on small 

businesses. The Panel recommended 

that EPA explain what evidence we 

have that caused us to reconsider the 

1996 assessment that IST analysis was 

unlikely to yield additional benefits. 

The Panel further recommended 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. 

EPA incorporated preamble language 

to address these Panel recommendations 

in section IV.C of this document. 

Emergency Response Program 

Coordination With Local Responders— 

(Proposed Revisions Apply to §§ 68.90, 

New 68.93, and 68.95) 

The proposed option (medium option) 

would require all facilities with Program 

2 or Program 3 processes to coordinate 

with local response agencies annually 

and document coordination activities. 

This option would also allow the LEPC 

or local emergency response officials to 

require that the RMP-facility owner or 

operator comply with the emergency 

response program requirements of 

§ 68.95. EPA considered, but did not 

propose, the more stringent option of 

requiring all facilities with Program 2 or 

Program 3 processes to implement an 

emergency response program and 

respond to accidental releases at the 

facility. The proposed option is 

estimated to cost $6.3 million annually 

and is far less costly than the high 

option, which would likely have 

exceeded $100 million annually. 

Therefore, by selecting the medium 

option, EPA substantially reduced the 

cost impact for the many small entities 

that may rely on local response 

organizations to respond to accidental 

releases at the source (see Exhibit 3–8 

and Appendix B in the RIA for more 

information on the number, size, and 

industrial categories of non-responding 

facilities). 

While EPA does not believe it is 

necessary to require that all facilities 

develop an in-house response 

capability, the Agency believes that 

non-responding facilities, even if they 

are small businesses, must still 

coordinate with local public responders 

so that they are prepared to handle 

emergencies at the facility. EPA expects 

that these coordination activities will 

result in some sources, including some 

small entities, becoming responding 

facilities, which may involve additional 

costs for those facilities (see section 5.6 

of the RIA). EPA believes this is 

necessary to meet the objectives of 

Clean Air Act section 112(r), which 

requires the Agency to promulgate 

regulations to (among other things) 

provide for a prompt emergency 

response to any accidental releases in 

order to protect human health and the 

environment. We also note that the 2013 

accident at West Fertilizer, which was 

one of several accidents that triggered 

the Executive Order that ultimately led 

to this rule proposal, occurred at a 

facility that would likely have been 

considered a small entity under the 

established SBA criteria. The Agency 

believes it is appropriate to require that 

such facilities conduct adequate 

emergency coordination, and if 

necessary, develop adequate emergency 

response capabilities, even if they are 

small. 

The SBAR Panel also made 

recommendations to further minimize 

the impacts of this provision on small 

businesses. The Panel recommended 

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 

recommended that EPA seek comment 

on the proposed frequency for annual 

coordination. EPA incorporated 

preamble language to address these 

Panel recommendations in section V.A 

of this document. 

Exercises—(Proposed Revisions Apply 

to New § 68.96) 

Notification Exercises. The proposed 

rule would require all facilities with 

Program 2 or Program 3 processes to 

annually conduct an emergency 

notification exercise to ensure that their 

emergency contact list is complete, 

accurate, and up-to-date. This proposed 

provision is expected to be one of the 

least costly rule provisions at $1.4 

million annually (only the incident 

investigation root cause analysis and 

public meetings provisions are 

estimated to cost less). Therefore EPA 

did not consider any alternatives to 

reduce the impact of this provision on 

small businesses, nor did the SBAR 

Panel make any such recommendations. 

Tabletop and Field Exercises 

The proposed option was the medium 

option, and would require responding 

facilities to conduct a full field exercise 

at least once every five years and 

tabletop exercises annually in the 

interim years. This option was 

substantially less costly than the high 

option ($61 million vs $104 million 

annually), which would require annual 

field exercises. As this provision only 

affects responding facilities, which tend 

to more often be large facilities (see 

Exhibit 3–8 in the RIA), EPA has 

proposed an option that mitigates the 

impact on small entities. EPA also 

considered a low option that would 

only require annual tabletop exercises. 

This option would have saved 

approximately $11 million annually. We 

did not propose the low option because 

the Agency believes that periodic field 

exercises are an important component of 

a comprehensive emergency response 

program. Nevertheless, this was also a 

recommendation from the SBAR panel 

and we have requested comment on the 

low option provision in the preamble to 

the proposed rule. 

The SBAR Panel also made other 

recommendations to further minimize 

the impacts of this provision on small 

businesses. The Panel recommended 

that EPA clarify that participation by 

local responders is not required for a 

facility to comply with exercise 

requirements 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. The Panel also recommended 

that EPA seek comments on: 

• Whether the exercise provision 

should be eliminated; 

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• 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. 

EPA incorporated preamble language 

to address these Panel recommendations 

in section V.B of this document. 

Information Availability—(Proposed 

Revisions Apply to New § 68.205 and 

Existing § 68.210) 

There are three proposed information 

disclosure requirements. Under the 

proposed requirements, all facilities 

would be required to make certain 

information available to the public. 

Upon receiving a request from their 

LEPC or local emergency response 

official, regulated facilities would also 

be required to provide certain 

information to the LEPC or emergency 

response officials. Lastly, facilities 

would be required to hold public 

meetings within 30 days of any RMP 

reportable accident. In the preamble to 

the proposed rule, EPA has requested 

public comments on whether all 

regulated facilities should be required to 

hold a public meeting every five years 

and after an RMP reportable accident, or 

whether a requirement for periodic and 

post-accident public meetings should be 

limited to only Program 2 and Program 

3 facilities. Although EPA has not 

proposed specific alternatives to 

minimize the impact of the information 

disclosure provisions on small 

businesses, the Agency believes that in 

general, smaller facilities will bear 

lower costs to comply with these 

provisions. By requiring certain 

information disclosure elements (i.e., 

incident investigation and public 

meeting provisions) only following an 

RMP reportable accident, EPA is 

minimizing the impact to the overall 

universe of RMP facilities, and 

particularly to small businesses. Most 

RMP reportable accidents have 

generally occurred at facilities that do 

not meet SBA small business criteria 

(see Exhibit 7–11 in the RIA). Also, 

small facilities will generally have fewer 

processes, fewer chemicals, fewer 

accidental releases, etc., on which to 

provide information to LEPCs and the 

public. 

The SBAR Panel also made 

recommendations to further minimize 

the impacts of this provision on small 

businesses. The Panel recommended 

that EPA: 

• Consider only requiring facilities to 

develop chemical hazard information 

summaries and allowing LEPCs to make 

reasonable requests for additional 

information; 

• Make chemical hazard information 

available upon request by the LEPC rather 

than requiring it to be automatically 

submitted by the facility; 

• Require that a public meeting be held 

only after an RMP reportable accident; and 

• Allow public meetings to be combined 

with any meeting open to the general public 

(e.g. city council, municipal board, or LEPC 

meeting). 

The Panel also recommended that 

EPA seeks comments 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; 

• 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: 

• 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. 

• 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). 

EPA incorporated preamble language 

to address these Panel recommendations 

in section VI of this document. EPA also 

revised the proposed rule to incorporate 

the following two Panel 

recommendations as the proposed 

options: 

• Make chemical hazard information 

available upon request by the LEPC rather 

than requiring it to be automatically 

submitted by the facility; and 

• Require that a public meeting be held 

only after an RMP reportable accident. 

7. Small Business Advocacy Review 

As required by section 609(b) of the 

RFA, the EPA also convened a SBAR 

Panel to obtain advice and 

recommendations from SERs that 

potentially would be subject to the 

rule’s requirements. The SBAR Panel 

evaluated the assembled materials and 

small-entity comments on issues related 

to elements of an IRFA. The SBAR 

report contains the recommendations to 

the EPA Administrator from the three 

Federal Panel members (EPA, the Small 

Business Administration Office of 

Advocacy and the OMB Office of 

Information and Regulatory Affairs). 

This proposal was informed by the 

small entity comments and the Panel 

report recommendations were used in 

the development of this proposal, as 

provided in section 609(b) of the RFA. 

A copy of the full SBAR Panel Report 

is available in the rulemaking docket. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action contains a Federal 

mandate under UMRA, 2 U.S.C. 1531– 

1538, that may result in expenditures of 

$100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any one year. 

Accordingly, the EPA has prepared a 

written statement required under 

section 202 of UMRA. The statement is 

included in the docket for this action 

and briefly summarized here. 

Over the 16 years of implementing the 

RMP program and, most recently 

through Executive Order 13650 listening 

sessions, webinars, and consultations, 

EPA has engaged states and local 

communities to discuss chemical safety 

issues. In the nine Executive Order 

13650 Improving Chemical Facility 

Safety and Security listening sessions 

and webinars, held between November 

2013 and January 2014, states and local 

communities identified lack of chemical 

facility participation and coordination 

in local emergency contingency 

planning as a key barrier to successful 

local community preparedness. 

Additionally, EPA has had 

consultations with states and local 

communities through participation in 

the NASTTPO annual meetings to 

discuss key issues related to chemical 

facility and local community 

coordination and what areas of the RMP 

regulations need to be modernized to 

facilitate this coordination and improve 

local emergency preparedness and 

prevention. Key priority options 

discussed with NASTTPO states and 

local communities included: Improving 

emergency response coordination 

between RMP facilities and LEPCs/first 

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responder and requiring emergency 

response exercises of the RMP facility 

plan to involve LEPCs, first responders 

and emergency response personnel. 

This action may significantly or 

uniquely affect small governments. The 

EPA consulted with small governments 

concerning the regulatory requirements 

that might significantly or uniquely 

affect them. Through the July 31, 2014, 

RFI (79 FR 44604), EPA sought feedback 

from governmental entities while 

formulating the proposed revisions in 

this action. Additionally, EPA 

participated in ongoing consultations 

with affected SERs (including small 

governmental entities) through the 

SBAR panel. EPA convened an SBAR 

panel in accordance with the 

requirements of the RFA, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act (SBREFA). 

E. Executive Order 13132: Federalism 

This action does not have Federalism 

implications. The EPA believes, 

however, that these proposed regulatory 

revisions may be of significant interest 

to local governments. Consistent with 

the EPA’s policy to promote 

communications between the EPA and 

state and local governments, and to 

better understand the concerns of local 

governments, EPA sought feedback 

through the July 31, 2014, RFI (79 FR 

44604). Additionally, consultations with 

governmental entities occurred through 

the SBREFA process. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action has tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

federally recognized tribal governments, 

nor preempt tribal law. EPA will be 

consulting with tribal officials as it 

develops this regulation to permit them 

to have meaningful and timely input 

into its development. Consultation will 

include conference calls, webinars, and 

meetings with interested tribal 

representatives to ensure that their 

concerns are addressed before the rule 

is finalized. In the spirit of Executive 

Order 13175 and consistent with EPA 

policy to promote communications 

between EPA and tribal governments, 

EPA specifically solicits comment on 

this proposed rule from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 because the EPA does not 

believe the environmental health risks 

or safety risks addressed by this action 

present a disproportionate risk to 

children. The EPA believes that the 

proposed revisions to the Risk 

Management Program regulations would 

further protect human health, including 

the health of children, through 

advancement of process safety. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This proposed action is not a 

‘‘significant energy action’’ because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. This proposed action is not 

anticipated to have notable impacts on 

emissions, costs or energy supply 

decisions for the affected electric utility 

industry. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This action involves technical 

standards. The EPA proposes to require 

third-party auditors to be experienced 

with applicable RAGAGEP, which 

include Voluntary Consensus Standards 

as well as other measures, for regulated 

processes being audited. Numerous 

different standards apply to processes 

regulated under the proposed rule and 

their application will vary depending on 

the particular process and chemicals 

involved. EPA is not proposing to list all 

the various codes, standards and 

practices that would apply to the wide 

variety of chemical processes covered 

by this rule as doing so would be 

impracticable, given that this rule 

affects sectors across many industries 

and listing the applicable RAGAGEP 

measures would require the EPA to 

update that list every time there was a 

change in the industry standards or best 

practices. The proposed rule would 

require third-party auditors to be 

familiar with standards applicable to 

processes they audit, and to obtain their 

own copies of applicable standards 

where needed. Auditors must be 

knowledgeable of applicable consensus 

standards because the accident 

prevention program provisions of the 

existing rule (subparts C and D) require 

owners or operators to comply with 

RAGAGEP. Therefore, auditors must be 

knowledgeable of those practices in 

order to perform an effective audit. EPA 

seeks comment on this proposed 

RAGAGEP requirement. 

J. Executive Order 12898: Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low income, or indigenous 

populations. The results of this 

evaluation are included in the RIA, 

located in the docket. 

List of Subjects 

40 CFR part 68 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Chemicals, 

Hazardous substances, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: February 25, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I, part 68, of 

the Code of Federal Regulations is 

proposed to be amended as follows: 

PART 68—CHEMICAL ACCIDENT 

PREVENTION PROVISIONS 

■ 1. The authority citation for part 68 

continues to read as follows: 

Authority: 42 U.S.C. 7412(r), 7601(a)(1), 

7661–7661f. 

■ 2. Amend § 68.3 by: 

■ a. Adding in alphabetical order the 

definition ‘‘Active measures’’; 

■ b. Revising the definition 

‘‘Catastrophic release’’, and 

■ c. Adding in alphabetical order, the 

definitions, ‘‘CBI’’, ‘‘Feasible’’, 

‘‘Inherently safer technology or design’’, 

‘‘LEPC’’, ‘‘Passive measures’’, 

‘‘Procedural measures’’, ‘‘Root cause’’, 

and ‘‘Third-party audit’’. 

The additions and revisions read as 

follows: 

§ 68.3 Definitions. 

* * * * * 

Active measures means risk 

management measures or engineering 

controls that rely on mechanical, or 

other energy input to detect and 

respond to process deviations. Examples 

of active measures include alarms, 

safety instrumented systems, and 

detection hardware (such as 

hydrocarbon sensors). 

* * * * * 

Catastrophic release means 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. 

CBI means confidential business 

information. 

* * * * * 

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Feasible means capable of being 

successfully accomplished within a 

reasonable time, accounting for 

economic, environmental, legal, social, 

and technological factors. 

Environmental factors would include 

consideration of potential transferred 

risks for new risk reduction measures. 

* * * * * 

Inherently safer technology or design 

means risk management measures that 

minimize the use of regulated 

substances, substitute less hazardous 

substances, moderate the use of 

regulated substances, or simplify 

covered processes in order to make 

accidental releases less likely, or the 

impacts of such releases less severe. 

* * * * * 

LEPC means local emergency 

planning committee as established 

under 42 U.S.C. 11001(c). 

* * * * * 

Passive measures means risk 

management measures that use design 

features that reduce the hazard without 

human, mechanical, or other energy 

input. Examples of passive measures 

include pressure vessel designs, dikes, 

berms, and blast walls. 

* * * * * 

Procedural measures means risk 

management measures such as policies, 

operating procedures, training, 

administrative controls, and emergency 

response actions to prevent or minimize 

incidents. 

* * * * * 

Root cause means a fundamental, 

underlying, system-related reason why 

an incident occurred that identifies a 

correctable failure(s) in management 

systems. 

* * * * * 

Third-party audit means a compliance 

audit conducted pursuant to the 

requirements of §§ 68.59 and/or 68.80, 

by an entity (individual or firm) meeting 

the competency, independence and 

impartiality criteria in those sections. 

* * * * * 

■ 3. Amend § 68.10 by: 

■ a. Revising paragraphs (a) 

introductory text; (a)(2) and (3); and 

adding paragraph (a)(4); 

■ b. Redesignating paragraphs (b) 

through (f) as paragraphs (f) through (j); 

■ c. Adding new paragraphs (b) through 

(e); and 

■ d. Revising the newly designated 

paragraph (f)(2). 

The revisions and additions read as 

follow: 

§ 68.10 Applicability. 

(a) Except as provided in paragraphs 

(b) through (e) of this section, an owner 

or operator of a stationary source that 

has more than a threshold quantity of a 

regulated substance in a process, as 

determined under § 68.115, shall 

comply with the requirements of this 

part no later than the latest of the 

following dates: 

* * * * * 

(2) Three years after the date on 

which a regulated substance is first 

listed under § 68.130; 

(3) The date on which a regulated 

substance is first present above a 

threshold quantity in a process; or 

(4) For any revisions to this part, the 

effective date of the final rule. 

(b) Within 1 year of [DATE 1 YEAR 

AFTER THE EFFECTIVE DATE OF THE 

FINAL RULE] the owner or operator of 

a stationary source shall comply with 

the emergency response coordination 

activities in § 68.93(a) and (b). 

(c) Within 3 years of the LEPC or 

equivalent requesting in writing, 

pursuant to § 68.90(b)(2), the owner or 

operator must develop and implement 

an emergency response program in 

accordance with § 68.95. 

(d) By [DATE 4 YEARS AFTER THE 

EFFECTIVE DATE OF THE FINAL 

RULE], the owner or operator shall 

comply with the following provisions 

promulgated on [PUBLICATION DATE 

OF FINAL RULE]: 

(1) Third-party audit provisions in 

§§ 68.58(f), 68.58(g), 68.58(h), 68.59, 

68.79(f), 68.79(g), 68.79(h), and 68.80; 

(2) Incident investigation root cause 

analysis provisions in §§ 68.60(d)(7) and 

68.81(d)(7) and the incident root cause 

category information provision in 

§ 68.42(b)(10); 

(3) Safer technology and alternative 

analysis provisions in § 68.67(c)(8); 

(4) Emergency response exercise 

provisions of § 68.96, and; 

(5) Availability of information 

provisions in §§ 68.205, 68.210(b), 

68.210(c), and 68.210(d). 

(e) By [DATE 5 YEARS AFTER 

EFFECTIVE DATE OF THE FINAL 

RULE], the owner or operator shall 

comply with the risk management plan 

provisions of subpart G promulgated on 

[PUBLICATION DATE OF FINAL 

RULE]. 

(f) * * * 

(2) The distance to a toxic or 

flammable endpoint for a worst-case 

release assessment conducted under 

subpart B and § 68.25 is less than the 

distance to any public receptor, as 

defined in § 68.3; and 

* * * * * 

■ 4. Amend § 68.12 by: 

■ a. Revising paragraphs (c)(4) and (5), 

and adding paragraph (c)(6); and 

■ b. Revising paragraphs (d)(4) and (5), 

and adding paragraph (d)(6). 

The revisions and additions read as 

follows: 

§ 68.12 General requirements. 

* * * * * 

(c) * * * 

(4) Coordinate response actions with 

local emergency planning and response 

agencies as provided in § 68.93; 

(5) Develop and implement an 

emergency response program, and 

conduct exercises, as provided in 

§§ 68.90 to 68.96; and 

(6) Submit as part of the RMP the data 

on prevention program elements for 

Program 2 processes as provided in 

§ 68.170. 

(d) * * * 

(4) Coordinate response actions with 

local emergency planning and response 

agencies as provided in § 68.93; 

(5) Develop and implement an 

emergency response program, and 

conduct exercises, as provided in 

§§ 68.90 to 68.95 96 of this part; and 

(6) Submit as part of the RMP the data 

on prevention program elements for 

Program 3 processes as provided in 

§ 68.175. 

■ 5. Amend § 68.42 by redesignating 

paragraphs (b)(10) and (b)(11) as 

paragraphs (b)(11) and (b)(12) and 

adding a new paragraph (b)(10) to read 

as follows: 

§ 68.42 Five-year accident history. 

* * * * * 

(b) * * * 

(10) Categories of root causes 

identified based on the root cause 

analysis required in the incident 

investigation in accordance with 

§ 68.60(d)(7) or § 68.81(d)(7); 

* * * * * 

■ 6. Amend § 68.48 by revising 

paragraph (a)(1) to read as follows: 

§ 68.48 Safety information. 

(a) * * * 

(1) Safety Data Sheets (SDS) that meet 

the requirements of 29 CFR 

1910.1200(g); 

* * * * * 

■ 7. Amend § 68.50 by revising 

paragraph (a)(2) to read as follows: 

§ 68.50 Hazard review. 

(a) * * * 

(2) Opportunities for equipment 

malfunctions or human errors that could 

cause an accidental release, including 

findings from incident investigations; 

* * * * * 

■ 8. Amend § 68.54 by revising 

paragraphs (a), (b), and (d); and Adding 

a new paragraph (e) to read as follows: 

§ 68.54 Training. 

(a) The owner or operator shall ensure 

that each employee presently involved 

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in operating a process, and each 

employee newly assigned to a covered 

process have been trained or tested 

competent in the operating procedures 

provided in § 68.52 that pertain to their 

duties. For those employees already 

operating a process on June 21, 1999, 

the owner or operator may certify in 

writing that the employee has the 

required knowledge, skills, and abilities 

to safely carry out the duties and 

responsibilities as provided in the 

operating procedures. 

(b) Refresher training. Refresher 

training shall be provided at least every 

three years, and more often if necessary, 

to each employee involved in operating 

a process to ensure that the employee 

understands and adheres to the current 

operating procedures of the process. The 

owner or operator, in consultation with 

the employees operating the process, 

shall determine the appropriate 

frequency of refresher training. 

* * * * * 

(d) The owner or operator shall ensure 

that employees involved in operating a 

process are trained in any updated or 

new procedures prior to startup of a 

process after a major change. 

(e) For the purposes of this section, 

the term employee also includes 

supervisors responsible for directing 

process operations. 

■ 9. Amend § 68.58 by revising 

paragraph (a) and adding paragraphs (f) 

through (h) to read as follows: 

§ 68.58 Compliance audits. 

(a) The owner or operator shall certify 

that they have evaluated compliance 

with the provisions of this subpart for 

each covered process, at least every 

three years to verify that the procedures 

and practices developed under the rule 

are adequate and are being followed. 

When required as set forth in paragraph 

(f), the compliance audit shall be a 

third-party audit. 

* * * * * 

(f) Third-party audit applicability. 

The next required compliance audit 

shall be a third-party audit when one of 

the following conditions apply: 

(1) An accidental release meeting the 

criteria in § 68.42(a) from a covered 

process at a stationary source has 

occurred; or 

(2) An implementing agency requires 

a third-party audit based on noncompliance with the requirements of 

this subpart, including when a previous 

third-party audit failed to meet the 

competency, independence, or 

impartiality criteria of § 68.59(b). 

(g) Implementing agency notification 

and appeals. (1) If an implementing 

agency makes a preliminary 

determination that a third-party audit is 

necessary pursuant to paragraph (f)(2) of 

this section, the implementing agency 

will provide written notice to the owner 

or operator stating the reasons for the 

implementing agency’s determination. 

(2) Within 30 days of receipt of such 

written notice, the owner or operator 

may provide information and data to, 

and may consult with, the 

implementing agency on the 

determination. Thereafter, the 

implementing agency will provide a 

final determination to the owner or 

operator. 

(3) If the final determination requires 

a third-party audit, the owner or 

operator shall comply with the 

requirements of § 68.59, pursuant to the 

schedule in paragraph (h) of this 

section. 

(4) Appeals. The owner or operator 

may appeal a final determination made 

by an implementing agency under 

paragraph (g)(2) of this section within 

30 days of receipt of the final 

determination. The appeal shall be 

made to the EPA Regional 

Administrator, or for determinations 

made by other implementing agencies, 

the administrator or director of such 

implementing agency. The appeal shall 

contain a clear and concise statement of 

the issues, facts in the case, and any 

relevant additional information. In 

reviewing the appeal, the implementing 

agency may request additional 

information from the owner or operator. 

The implementing agency will provide 

a written, final decision on the appeal 

to the owner or operator. 

(h) Schedule for conducting a thirdparty audit. The audit and audit report 

shall be completed, and the audit report 

submitted to the implementing agency 

pursuant to § 68.59(c)(3) as follows, 

unless a different timeframe is specified 

by the implementing agency: 

(1) Within 12 months of when any 

third-party audit is required pursuant to 

paragraphs (f) and/or (g) of this section; 

or 

(2) Within three years of completion 

of the previous compliance audit, 

whichever is sooner. 

■ 10. Section 68.59 is added to subpart 

C to read as follows: 

§ 68.59 Third-party audits. 

(a) Applicability. The owner or 

operator shall engage a third-party 

auditor to evaluate compliance with the 

provisions of this subpart in accordance 

with the requirements of this section 

when either criterion of § 68.58(f) is 

met. 

(b) Auditor qualifications. The owner 

or operator shall determine and 

document that the auditor and/or audit 

team are independent and impartial, 

and that the auditor’s or audit team’s 

credentials address the following 

competency requirements: 

(1) Competency requirements. The 

auditor/auditor team shall be: 

(i) Knowledgeable with the 

requirements of this part; 

(ii) Experienced with the stationary 

source type and processes being audited 

and applicable recognized and generally 

accepted good engineering practices; 

(iii) Trained or certified in proper 

auditing techniques; and 

(iv) A licensed Professional Engineer 

(PE), or shall include a licensed PE on 

the audit team. 

(2) Independence and impartiality 

requirements. The auditor/audit team 

shall: 

(i) Act impartially when performing 

all activities under this section; 

(ii) Receive no financial benefit from 

the outcome of the audit, apart from 

payment for the auditing services; 

(iii) Not have conducted past 

research, development, design, 

construction services, or consulting for 

the owner or operator within the last 3 

years. For purposes of this requirement, 

consulting does not include performing 

or participating in third-party audits 

pursuant to § 68.59 or § 68.80; 

(iv) Not provide other business or 

consulting services to the owner or 

operator, including advice or assistance 

to implement the findings or 

recommendations in an audit report, for 

a period of at least 3 years following 

submission of the final audit report; 

(v) Ensure that all personnel involved 

in the audit sign and date the conflict 

of interest statement in § 68.59(c)(1)(v); 

and 

(vi) Ensure that all personnel involved 

in the audit do not accept future 

employment with the owner or operator 

of the stationary source for a period of 

at least 3 years following submission of 

the final audit report. For purposes of 

this requirement, employment does not 

include performing or participating in 

third-party audits pursuant to § 68.59 or 

§ 68.80. 

(3) The auditor shall have written 

policies and procedures to ensure that 

all personnel comply with the 

competency, independence, and 

impartiality requirements of this 

section. 

(c) Third-party audit report. The 

owner or operator shall ensure that the 

auditor prepares and submits an audit 

report as follows: 

(1) The scope and content of each 

audit report shall: 

(i) Identify the lead auditor or 

manager, participating individuals, and 

any other key persons participating in 

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the audit, including names, titles, and 

summaries of qualifications 

demonstrating that the competency 

requirements in paragraph (b)(1) of this 

section are met; 

(ii) Document the auditor’s 

evaluation, for each covered process, of 

the owner or operator’s compliance with 

the provisions of this subpart to 

determine whether the procedures and 

practices developed by the owner or 

operator under this rule are adequate 

and being followed; 

(iii) Document the findings of the 

audit, including any identified 

compliance or performance deficiencies; 

(iv) Include a summary of the owner’s 

or operator’s comments on, and identify 

any adjustments made by the auditor to, 

any draft audit report provided by the 

auditor to the owner or operator for 

review or comment; and 

(v) Include the following certification, 

signed and dated by the auditor or 

supervising manager for the audit: 

I certify that this RMP compliance audit 

report was prepared under my direction or 

supervision in accordance with a system 

designed to assure that qualified personnel 

properly gather and evaluate the information 

upon which the audit is based. I further 

certify that the audit was conducted and this 

report was prepared pursuant to the 

requirements of subpart C of 40 CFR part 68 

and all other applicable auditing, 

competency, independence, impartiality, and 

conflict of interest standards and protocols. 

Based on my personal knowledge and 

experience, and inquiry of personnel 

involved in the audit, the information 

submitted herein is true, accurate, and 

complete. I am aware that there are 

significant penalties for submitting false 

information, including the possibility of fines 

and imprisonment for knowing violations. 

(2) The auditor shall retain copies of 

all audit reports and related records for 

a period of five years, and make them 

available if directed by the owner or 

operator, to the owner or operator and/ 

or the implementing agency. 

(3) The auditor shall submit the audit 

report to the implementing agency at the 

same time, or before, it provides it to the 

owner or operator. 

(4) The audit report and related 

records shall not be privileged as 

attorney-client communications or 

attorney work products, even if written 

for or reviewed by legal staff. 

(d) Third-party audit findings. (1) 

Findings response report. As soon as 

possible, but no later than 90 days after 

receiving the final audit report, the 

owner or operator shall determine an 

appropriate response to each of the 

findings in the audit report, and develop 

and provide to the implementing agency 

a findings response report that includes: 

(i) A copy of the final audit report; 

(ii) An appropriate response to each of 

the audit report findings; 

(iii) A schedule for promptly 

addressing deficiencies; and 

(iv) A certification, signed and dated 

by a senior corporate officer, or an 

official in an equivalent position, of the 

owner or operator of the stationary 

source, stating: 

I certify under penalty of law that the 

attached RMP compliance audit report was 

received, reviewed, and responded to under 

my direction or supervision by qualified 

personnel. I further certify that appropriate 

responses to the findings have been 

identified and deficiencies were corrected, or 

are being corrected, consistent with the 

requirements of subpart C of 40 CFR part 68, 

as documented herein. Based on my personal 

knowledge and experience, or inquiry of 

personnel involved in evaluating the report 

findings and determining appropriate 

responses to the findings, the information 

submitted herein is true, accurate, and 

complete. I am aware that there are 

significant penalties for submitting false 

information, including the possibility of fines 

and imprisonment for knowing violations. 

(2) Schedule to address deficiencies. 

The owner or operator shall implement 

the schedule to address deficiencies 

identified in the audit findings response 

report in paragraph (d)(1)(iii) of this 

section and document the action taken 

to address each deficiency, along with 

the date completed. 

(3) Submission to board of directors. 

The owner or operator shall 

immediately provide a copy of each 

document required under paragraphs 

(d)(1) and (d)(2) of this section, when 

completed, to the owner or operator’s 

audit committee of the Board of 

Directors, or other comparable 

committee, if one exists. 

(e) Recordkeeping. The owner or 

operator shall retain at the stationary 

source, the following: 

(1) The two most recent third-party 

audit reports, related findings response 

reports, documentation of actions taken 

to address deficiencies, and related 

records. This requirement does not 

apply to any document that is more than 

five years old. 

(2) Copies of all draft third-party audit 

reports. The owner or operator shall 

provide draft third-party audit reports to 

the implementing agency upon request. 

This requirement does not apply to any 

draft audit reports that are more than 

five years old. 

■ 11. Amend § 68.60 by: 

■ a. Revising paragraph (a); 

■ b. Redesignating paragraphs (c) 

through (f) as paragraphs (d) through (g); 

■ c. Adding a new paragraph (c); and 

■ d. Revising the newly designated 

paragraphs (d) and (g). 

The revisions and additions read as 

follows: 

§ 68.60 Incident investigation. 

(a) The owner or operator shall 

investigate each incident that: 

(1) Resulted in a catastrophic release 

(including when the affected process is 

decommissioned or destroyed 

following, or as the result of, an 

incident); or 

(2) Could reasonably have resulted in 

a catastrophic release (i.e., was a near 

miss). 

* * * * * 

(c) An incident investigation team 

shall be established and consist of at 

least one person knowledgeable in the 

process involved and other persons with 

appropriate knowledge and experience 

to thoroughly investigate and analyze 

the incident. 

(d) A report shall be prepared at the 

conclusion of the investigation. The 

report shall be completed within 12 

months of the incident, unless the 

implementing agency approves, in 

writing, an extension of time. The report 

shall include: 

(1) Date, time, and location of 

incident; 

(2) Date investigation began; 

(3) A description of the incident, in 

chronological order, providing all 

relevant facts; 

(4) The name and amount of the 

regulated substance involved in the 

release (e.g., fire, explosion, toxic gas 

loss of containment) or near miss and 

the duration of the event; 

(5) The consequences, if any, of the 

incident including, but not limited to: 

injuries, fatalities, the number of people 

evacuated, the number of people 

sheltered in place, and the impact on 

the environment; 

(6) Emergency response actions taken; 

(7) The factors that contributed to the 

incident including the initiating event, 

direct and indirect contributing factors, 

and root causes. Root causes shall be 

determined by conducting an analysis 

for each incident using a recognized 

method; and 

(8) Any recommendations resulting 

from the investigation and a schedule 

for addressing them. 

* * * * * 

(g) Incident investigation reports shall 

be retained for five years. 

■ 12. Amend § 68.65 by revising the first 

sentence of paragraph (a) and the note 

to paragraph (b) to read as follows: 

§ 68.65 Process safety information. 

(a) The owner or operator shall 

complete a compilation of written 

process safety information before 

conducting any process hazard analysis 

required by the rule, and shall keep 

process safety information up-to-date. 

* * * 

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(b) * * * 

Note to paragraph (b): Safety Data 

Sheets (SDS) meeting the requirements 

of 29 CFR 1910.1200(g) may be used to 

comply with this requirement to the 

extent they contain the information 

required by this subparagraph. 

* * * * * 

■ 13. Amend § 68.67 by: 

■ a. Revising paragraph (c)(2); 

■ b. In paragraph (c)(6) removing the 

word ‘‘and’’; 

■ c. In paragraph (c)(7) removing the 

period at the end of the paragraph and 

adding ‘‘; and’’ in its place; and 

■ d. Adding paragraph (c)(8). 

The revisions and additions read as 

follows: 

§ 68.67 Process hazard analysis. 

* * * * * 

(c) * * * 

(2) The findings from all incident 

investigations required under section 

68.81, as well as any other potential 

failure scenarios; 

* * * * * 

(8) For processes in NAICS 322, 324, 

and 325, safer technology and 

alternative risk management measures 

applicable to eliminating or reducing 

risk from process hazards. 

(i) The owner or operator shall 

consider, in the following order of 

preference, inherently safer technology 

or design, passive measures, active 

measures, and procedural measures. A 

combination of risk management 

measures may be used to achieve the 

desired risk reduction. 

(ii) The owner or operator shall 

determine the feasibility of the 

inherently safer technologies and 

designs considered. 

* * * * * 

■ 14. Amend § 68.71 by adding 

paragraph (d) to read as follows: 

§ 68.71 Training. 

* * * * * 

(d) For the purposes of this section, 

the term employee also includes 

supervisors with process operational 

responsibilities. 

■ 15. Amend § 68.79 by revising 

paragraph (a) and adding paragraphs (f) 

through (h) to read as follows: 

§ 68.79 Compliance audits. 

(a) The owner or operator shall certify 

that they have evaluated compliance 

with the provisions of this subpart for 

each covered process, at least every 

three years to verify that the procedures 

and practices developed under the rule 

are adequate and are being followed. 

When required as set forth in paragraph 

(f), the compliance audit shall be a 

third-party audit. 

* * * * * 

(f) Third-party audit applicability. 

The next required compliance audit 

shall be a third-party audit when one of 

the following conditions apply: 

(1) An accidental release meeting the 

criteria in § 68.42(a) from a covered 

process at a stationary source has 

occurred; or 

(2) An implementing agency requires 

a third-party audit based on noncompliance with the requirements of 

this subpart, including when a previous 

third-party audit failed to meet the 

competency, independence, or 

impartiality criteria of § 68.80(b). 

(g) Implementing agency notification 

and appeals. (1) If an implementing 

agency makes a preliminary 

determination that a third-party audit is 

necessary pursuant to paragraph (f)(2) of 

this section, the implementing agency 

will provide written notice to the owner 

or operator stating the reasons for the 

implementing agency’s determination. 

(2) Within 30 days of receipt of such 

written notice, the owner or operator 

may provide information and data to, 

and may consult with, the 

implementing agency on the 

determination. Thereafter, the 

implementing agency will provide a 

final determination to the owner or 

operator. 

(3) If the final determination requires 

a third-party audit, the owner or 

operator shall comply with the 

requirements of § 68.80, pursuant to the 

schedule in paragraph (h) of this 

section. 

(4) Appeals. The owner or operator 

may appeal a final determination made 

by an implementing agency under 

paragraph (g)(2) of this section within 

30 days of receipt of the final 

determination. The appeal shall be 

made to the EPA Regional 

Administrator, or for determinations 

made by other implementing agencies, 

the administrator or director of such 

implementing agency. The appeal shall 

contain a clear and concise statement of 

the issues, facts in the case, and any 

relevant additional information. In 

reviewing the appeal, the implementing 

agency may request additional 

information from the owner or operator. 

The implementing agency will provide 

a written, final decision on the appeal 

to the owner or operator. 

(h) Schedule for conducting a thirdparty audit. The audit and audit report 

shall be completed, and the audit report 

submitted to the implementing agency 

pursuant to § 68.80(c)(3) as follows, 

unless a different timeframe is specified 

by the implementing agency: 

(1) Within 12 months of when any 

third-party audit is required pursuant to 

paragraphs (f) and/or (g) of this section; 

or 

(2) Within three years of completion 

of the previous compliance audit, 

whichever is sooner. 

■ 16. Section 68.80 is added to subpart 

D to read as follows: 

§ 68.80 Third-party audits. 

(a) Applicability. The owner or 

operator shall engage a third-party 

auditor to evaluate compliance with the 

provisions of this subpart in accordance 

with the requirements of this section 

when either criterion of § 68.79(f) is 

met. 

(b) Auditor qualifications. The owner 

or operator shall determine and 

document that the auditor and/or audit 

team are independent and impartial, 

and that the auditor’s or audit team’s 

credentials address the following 

competency requirements: 

(1) Competency requirements. The 

auditor/auditor team shall be: 

(i) Knowledgeable with the 

requirements of this part; 

(ii) Experienced with the stationary 

source type and processes being audited 

and applicable recognized and generally 

accepted good engineering practices; 

(iii) Trained or certified in proper 

auditing techniques; and 

(iv) A licensed PE, or shall include a 

licensed PE on the audit team. 

(2) Independence and impartiality 

requirements. The auditor/audit team 

shall: 

(i) Act impartially when performing 

all activities under this section; 

(ii) Receive no financial benefit from 

the outcome of the audit, apart from 

payment for the auditing services; 

(iii) Not have conducted past 

research, development, design, 

construction services, or consulting for 

the owner or operator within the last 3 

years. For purposes of this requirement, 

consulting does not include performing 

or participating in third-party audits 

pursuant to § 68.59 or § 68.80; 

(iv) Not provide other business or 

consulting services to the owner or 

operator, including advice or assistance 

to implement the findings or 

recommendations in an audit report, for 

a period of at least 3 years following 

submission of the final audit report; 

(v) Ensure that all personnel involved 

in the audit sign and date the conflict 

of interest statement in § 68.59(c)(1)(v); 

and 

(vi) Ensure that all personnel involved 

in the audit do not accept future 

employment with the owner or operator 

of the stationary source for a period of 

at least 3 years following submission of 

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the final audit report. For purposes of 

this requirement, employment does not 

include performing or participating in 

third-party audits pursuant to §§ 68.59 

or 68.80. 

(3) The auditor shall have written 

policies and procedures to ensure that 

all personnel comply with the 

competency, independence, and 

impartiality requirements of this 

section. 

(c) Third-party audit report. The 

owner or operator shall ensure that the 

auditor prepares and submits an audit 

report as follows: 

(1) The scope and content of each 

audit report shall: 

(i) Identify the lead auditor or 

manager, participating individuals, and 

any other key persons participating in 

the audit, including names, titles, and 

summaries of qualifications 

demonstrating that the competency 

requirements in paragraph (b)(1) of this 

section are met; 

(ii) Document the auditor’s 

evaluation, for each covered process, of 

the owner or operator’s compliance with 

the provisions of this subpart to 

determine whether the procedures and 

practices developed by the owner or 

operator under this rule are adequate 

and being followed; 

(iii) Document the findings of the 

audit, including any identified 

compliance or performance deficiencies; 

(iv) Include a summary of the owner’s 

or operator’s comments on, and identify 

any adjustments made by the auditor to, 

any draft audit report provided by the 

auditor to the owner or operator for 

review or comment; and 

(v) Include the following certification, 

signed and dated by the auditor or 

supervising manager for the audit: 

‘‘I certify that this RMP compliance audit 

report was prepared under my direction or 

supervision in accordance with a system 

designed to assure that qualified personnel 

properly gather and evaluate the information 

upon which the audit is based. I further 

certify that the audit was conducted and this 

report was prepared pursuant to the 

requirements of subpart D of 40 CFR part 68 

and all other applicable auditing, 

competency, independence, impartiality, and 

conflict of interest standards and protocols. 

Based on my personal knowledge and 

experience, and inquiry of personnel 

involved in the audit, the information 

submitted herein is true, accurate, and 

complete. I am aware that there are 

significant penalties for submitting false 

information, including the possibility of fines 

and imprisonment for knowing violations.’’ 

(2) The auditor shall retain copies of 

all audit reports and related records for 

a period of five years, and make them 

available if directed by the owner or 

operator, to the owner or operator and/ 

or the implementing agency. 

(3) The auditor shall submit the audit 

report to the implementing agency at the 

same time, or before, it provides it to the 

owner or operator. 

(4) The audit report and related 

records shall not be privileged as 

attorney-client communications or 

attorney work products, even if written 

for or reviewed by legal staff. 

(d) Third-party audit findings. (1) 

Findings response report. As soon as 

possible, but no later than 90 days after 

receiving the final audit report, the 

owner or operator shall determine an 

appropriate response to each of the 

findings in the audit report, and develop 

and provide to the implementing agency 

a findings response report that includes: 

(i) A copy of the final audit report; 

(ii) An appropriate response to each of 

the audit report findings; 

(iii) A schedule for promptly 

addressing deficiencies; and 

(iv) A certification, signed and dated 

by a senior corporate officer, or an 

official in an equivalent position, of the 

owner or operator of the stationary 

source, stating: 

‘‘I certify under penalty of law that the 

attached RMP compliance audit report was 

received, reviewed, and responded to under 

my direction or supervision by qualified 

personnel. I further certify that appropriate 

responses to the findings have been 

identified and deficiencies were corrected, or 

are being corrected, consistent with the 

requirements of subpart D of 40 CFR part 68, 

as documented herein. Based on my personal 

knowledge and experience, or inquiry of 

personnel involved in evaluating the report 

findings and determining appropriate 

responses to the findings, the information 

submitted herein is true, accurate, and 

complete. I am aware that there are 

significant penalties for submitting false 

information, including the possibility of fines 

and imprisonment for knowing violations.’’ 

(2) Schedule to address deficiencies. 

The owner or operator shall implement 

the schedule to address deficiencies 

identified in the audit findings response 

report in paragraph (d)(1)(iii) of this 

section and document the action taken 

to address each deficiency, along with 

the date completed. 

(3) Submission to board of directors. 

The owner or operator shall 

immediately provide a copy of each 

document required under paragraphs 

(d)(1) and (d)(2) of this section, when 

completed, to the owner or operator’s 

audit committee of the Board of 

Directors, or other comparable 

committee, if one exists. 

(e) Recordkeeping. The owner or 

operator shall retain at the stationary 

source, the following: 

(1) The two most recent third-party 

audit reports, related findings response 

reports, documentation of actions taken 

to address deficiencies, and related 

records. This requirement does not 

apply to any document that is more than 

five years old. 

(2) Copies of all draft third-party audit 

reports. The owner or operator shall 

provide draft third-party audit reports to 

the implementing agency upon request. 

This requirement does not apply to any 

draft audit reports that are more than 

five years old. 

■ 17. Amend § 68.81 by revising 

paragraphs (a), (d) introductory text, 

(d)(1), (d)(3) through (5), and adding 

paragraphs (d)(6) through (8) to read as 

follows: 

§ 68.81 Incident investigation. 

(a) The owner or operator shall 

investigate each incident that: 

(1) Resulted in a catastrophic release 

(including when the affected process is 

decommissioned or destroyed 

following, or as the result of, an 

incident); or 

(2) Could reasonably have resulted in 

a catastrophic release (i.e., was a near 

miss). 

* * * * * 

(d) A report shall be prepared at the 

conclusion of the investigation. The 

report shall be completed within 12 

months of the incident, unless the 

implementing agency approves, in 

writing, an extension of time. The report 

shall include: 

(1) Date, time, and location of 

incident; 

* * * * * 

(3) A description of the incident, in 

chronological order, providing all 

relevant facts; 

(4) The name and amount of the 

regulated substance involved in the 

release (e.g., fire, explosion, toxic gas 

loss of containment) or near miss and 

the duration of the event; 

(5) The consequences, if any, of the 

incident including, but not limited to: 

Injuries, fatalities, the number of people 

evacuated, the number of people 

sheltered in place, and the impact on 

the environment; 

(6) Emergency response actions taken; 

(7) The factors that contributed to the 

incident including the initiating event, 

direct and indirect contributing factors, 

and root causes. Root causes shall be 

determined by conducting an analysis 

for each incident using a recognized 

method; and 

(8) Any recommendations resulting 

from the investigation and a schedule 

for addressing them. 

* * * * * 

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13708 Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 

■ 18. Revise § 68.90 to read as follows: 

§ 68.90 Applicability. 

(a) Non-responding stationary source. 

The owner or operator of a stationary 

source need not comply with § 68.95 of 

this part provided that: 

(1) The coordination activities 

required under § 68.93 indicate that 

adequate local public emergency 

response capabilities are available to 

appropriately respond to any accidental 

release of the regulated substances at the 

stationary source; 

(2) Appropriate mechanisms are in 

place to notify emergency responders 

when there is a need for a response; and 

(3) The LEPC or equivalent has not 

requested in writing that the owner or 

operator comply with the requirements 

of § 68.95. 

(b) Responding stationary source. The 

owner or operator of a stationary source 

shall coordinate response activities as 

described in § 68.93. The owner or 

operator shall also comply with the 

requirements of § 68.95 when: 

(1) The outcome of the response 

coordination activities demonstrates 

that local public emergency response 

capabilities are not adequate to 

appropriately respond to an accidental 

release of the regulated substances at the 

stationary source; or 

(2) The LEPC or equivalent requests in 

writing that the owner or operator of the 

stationary source comply with the 

requirements of § 68.95. 

■ 19. Section 68.93 is added to subpart 

E to read as follows: 

§ 68.93 Emergency response coordination 

activities. 

The owner or operator of a stationary 

source shall coordinate response needs 

with local emergency planning and 

response organizations to ensure 

resources and capabilities are in place to 

respond to an accidental release of a 

regulated substance. 

(a) Coordination shall occur at least 

annually, and more frequently if 

necessary, to address changes: At the 

source; in the source’s emergency action 

plan; in local authorities’ response 

resources and capabilities; or in the 

local community emergency response 

plan. 

(b) The owner or operator shall 

document coordination with local 

authorities, including: The names of 

individuals involved and their contact 

information (phone number, email 

address, and organizational affiliations); 

dates of coordination activities; and 

nature of coordination activities. 

(c) The owner or operator shall 

coordinate potential response actions as 

follows: 

(1) For stationary sources with any 

regulated toxic substance held in a 

process above the threshold quantity, 

the owner or operator shall coordinate 

potential response actions with the 

LEPC or equivalent and ensure that the 

stationary source is included in the 

community emergency response plan 

developed under 42 U.S.C. 11003; and/ 

or 

(2) For stationary sources with only 

regulated flammable substances held in 

a process above the threshold quantity, 

the owner or operator shall coordinate 

response actions with the local fire 

department. 

■ 20. Amend § 68.95 by: 

■ a. Revising paragraph (a)(1)(i); 

■ b. Adding a sentence to the end of 

paragraph (a)(4); and 

■ c. Revising paragraph (c). 

The revisions and addition read as 

follows: 

68.95 Emergency response program. 

(a) * * * 

(1) * * * 

(i) Procedures for informing the 

public and the appropriate Federal, 

state, and local emergency response 

agencies about accidental releases; 

* * * * * 

(4) * * * The owner or operator shall 

review and update the program 

annually, or more frequently if 

necessary, to incorporate 

recommendations and lessons learned 

from emergency response exercises and/ 

or incident investigations, or other 

available information. 

* * * * * 

(c) The emergency response plan 

developed under paragraph (a)(1) of this 

section shall be coordinated with the 

community emergency response plan 

developed under 42 U.S.C. 11003. Upon 

request of the LEPC or emergency 

response officials, the owner or operator 

shall promptly provide to the local 

emergency response officials 

information necessary for developing 

and implementing the community 

emergency response plan. 

■ 21. Section 68.96 is added to subpart 

E to read as follows: 

§ 68.96 Emergency response exercises. 

(a) Notification exercises. At least 

once each calendar year, the owner or 

operator of a stationary source with any 

Program 2 or Program 3 process shall 

conduct an exercise of the source’s 

emergency response notification 

mechanisms required under 

§ 68.90(a)(2) or § 68.95(a)(1)(i), as 

appropriate. Owners or operators of 

responding stationary sources may 

perform the notification exercise as part 

of the tabletop and field exercises 

required in § 68.96(b). The owner/

operator shall maintain a written record 

of each notification exercise conducted 

over the last five years. 

(b) Emergency response exercise 

program. The owner or operator of a 

stationary source subject to the 

requirements of § 68.95 shall develop 

and implement an exercise program for 

its emergency response program, 

including the plan required under 

§ 68.95(a)(1). When planning emergency 

response field and tabletop exercises, 

the owner or operator shall coordinate 

with local public emergency response 

officials and invite them to participate 

in the exercise. The emergency response 

exercise program shall include: 

(1) Emergency response field 

exercises. The owner or operator shall 

conduct a field exercise involving the 

simulated accidental release of a 

regulated substance (i.e., toxic substance 

release or release of a regulated 

flammable substance involving a fire 

and/or explosion). 

(i) Frequency. The field exercise shall 

be conducted at least once every five 

years, and within one year of any 

accidental release required to be 

reported under § 68.42. 

(ii) Scope. The field exercise shall 

include tests of: Procedures to notify the 

public and the appropriate Federal, 

state, and local emergency response 

agencies about an accidental release; 

procedures and measures for emergency 

response actions including evacuations 

and medical treatment; communications 

systems; mobilization of facility 

emergency response personnel, 

including contractors, as appropriate; 

coordination with local emergency 

responders; equipment deployment; and 

any other action identified in the 

emergency response program, as 

appropriate. 

(2) Tabletop exercises. The owner or 

operator shall conduct a tabletop 

exercise involving the simulated 

accidental release of a regulated 

substance. The exercise shall involve 

facility emergency response personnel, 

response contractors, and local 

emergency response and planning 

officials, as appropriate. 

(i) Frequency. The owner or operator 

of a stationary source shall conduct 

tabletop exercises annually, except 

during the calendar year when a field 

exercise is conducted. 

(ii) Scope. The exercise shall include 

tests of: Procedures to notify the public 

and the appropriate Federal, state, and 

local emergency response agencies; 

procedures and measures for emergency 

response including evacuations and 

medical treatment; identification of 

facility emergency response personnel 

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Federal Register / Vol. 81, No. 49 / Monday, March 14, 2016 / Proposed Rules 13709 

and/or contractors and their 

responsibilities; coordination with local 

emergency responders; procedures for 

equipment deployment; and any other 

action identified in the emergency 

response plan, as appropriate. 

(3) Documentation. The owner/

operator shall prepare an evaluation 

report within 90 days of each exercise. 

The report shall include: A description 

of the exercise scenario; names and 

organizations of each participant; an 

evaluation of the exercise results 

including lessons learned; 

recommendations for improvement or 

revisions to the emergency response 

exercise program and emergency 

response program, and a schedule to 

promptly address and resolve 

recommendations. 

■ 22. Amend § 68.130 by: 

■ a. In Table 1, ‘‘List of Regulated Toxic 

Substances and Threshold Quantities 

for Accidental Release Prevention’’, 

under second column entitled ‘‘CAS 

No.’’, removing the number ‘‘107–18– 

61’’ adding ‘‘107–18–6’’ in its place; and 

■ b. Revising Table 4, ‘‘List of Regulated 

Flammable Substances and Threshold 

Quantities for Accidental Release 

Prevention’’. 

The revisions read as follows: 

TABLE 4 TO § 68.130—LIST OF REGULATED FLAMMABLE SUBSTANCES1 AND THRESHOLD QUANTITIES FOR ACCIDENTAL

RELEASE PREVENTION

[CAS Number Order—63 Substances] 

CAS No. Chemical name Threshold quantity 

(lbs) Basis for listing 

60–29–7 ....................................... Ethyl ether [Ethane, 1,1′-oxybis-] ...................................................... 10,000 g 

74–82–8 ....................................... Methane ............................................................................................ 10,000 f 

74–84–0 ....................................... Ethane ............................................................................................... 10,000 f 

74–85–1 ....................................... Ethylene [Ethene] .............................................................................. 10,000 f 

74–86–2 ....................................... Acetylene [Ethyne] ............................................................................ 10,000 f 

74–89–5 ....................................... Methylamine [Methanamine] ............................................................. 10,000 f 

74–98–6 ....................................... Propane ............................................................................................. 10,000 f 

74–99–7 ....................................... Propyne [1-Propyne] ......................................................................... 10,000 f 

75–00–3 ....................................... Ethyl chloride [Ethane, chloro-] ......................................................... 10,000 f 

75–01–4 ....................................... Vinyl chloride [Ethene, chloro-] ......................................................... 10,000 a, f 

75–02–5 ....................................... Vinyl fluoride [Ethene, fluoro-] ........................................................... 10,000 f 

75–04–7 ....................................... Ethylamine [Ethanamine] .................................................................. 10,000 f 

75–07–0 ....................................... Acetaldehyde ..................................................................................... 10,000 g 

75–08–1 ....................................... Ethyl mercaptan [Ethanethiol] ........................................................... 10,000 g 

75–19–4 ....................................... Cyclopropane .................................................................................... 10,000 f 

75–28–5 ....................................... Isobutane [Propane, 2-methyl] .......................................................... 10,000 f 

75–29–6 ....................................... Isopropyl chloride [Propane, 2-chloro-] ............................................. 10,000 g 

75–31–0 ....................................... Isopropylamine [2-Propanamine] ...................................................... 10,000 g 

75–35–4 ....................................... Vinylidene chloride [Ethene, 1,1-dichloro-] ....................................... 10,000 g 

75–37–6 ....................................... Difluoroethane [Ethane, 1,1-difluoro-] ............................................... 10,000 f 

75–38–7 ....................................... Vinylidene fluoride [Ethene, 1,1-difluoro-] ......................................... 10,000 f 

75–50–3 ....................................... Trimethylamine [Methanamine, N, N-dimethyl-] ............................... 10,000 f 

75–76–3 ....................................... Tetramethylsilane [Silane, tetramethyl-] ............................................ 10,000 g 

78–78–4 ....................................... Isopentane [Butane, 2-methyl-] ......................................................... 10,000 g 

78–79–5 ....................................... Isoprene [1,3,-Butadiene, 2-methyl-] ................................................. 10,000 g 

79–38–9 ....................................... Trifluorochloroethylene [Ethene, chlorotrifluoro-] .............................. 10,000 f 

106–97–8 ..................................... Butane ............................................................................................... 10,000 f 

106–98–9 ..................................... 1-Butene ............................................................................................ 10,000 f 

106–99–0 ..................................... 1,3-Butadiene .................................................................................... 10,000 f 

107–00–6 ..................................... Ethyl acetylene [1-Butyne] ................................................................ 10,000 f 

107–01–7 ..................................... 2-Butene ............................................................................................ 10,000 f 

107–25–5 ..................................... Vinyl methyl ether [Ethene, methoxy-] .............................................. 10,000 f 

107–31–3 ..................................... Methyl formate [Formic acid, methyl ester] ...................................... 10,000 g 

109–66–0 ..................................... Pentane ............................................................................................. 10,000 g 

109–67–1 ..................................... 1-Pentene .......................................................................................... 10,000 g 

109–92–2 ..................................... Vinyl ethyl ether [Ethene, ethoxy-] .................................................... 10,000 g 

109–95–5 ..................................... Ethyl nitrite [Nitrous acid, ethyl ester] ............................................... 10,000 f 

115–07–1 ..................................... Propylene [1-Propene] ...................................................................... 10,000 f 

115–10–6 ..................................... Methyl ether [Methane, oxybis-] ........................................................ 10,000 f 

115–11–7 ..................................... 2-Methylpropene [1-Propene, 2-methyl-] .......................................... 10,000 f 

116–14–3 ..................................... Tetrafluoroethylene [Ethene, tetrafluoro-] ......................................... 10,000 f 

124–40–3 ..................................... Dimethylamine [Methanamine, N-methyl-] ........................................ 10,000 f 

460–19–5 ..................................... Cyanogen [Ethanedinitrile] ................................................................ 10,000 f 

463–49–0 ..................................... Propadiene [1,2-Propadiene] ............................................................ 10,000 f 

463–58–1 ..................................... Carbon oxysulfide [Carbon oxide sulfide (COS)] .............................. 10,000 f 

463–82–1 ..................................... 2,2-Dimethylpropane [Propane, 2,2-dimethyl-] ................................. 10,000 f 

504–60–9 ..................................... 1,3-Pentadiene .................................................................................. 10,000 f 

557–98–2 ..................................... 2-Chloropropylene [1-Propene, 2-chloro-] ........................................ 10,000 g 

563–45–1 ..................................... 3-Methyl-1-butene ............................................................................. 10,000 f 

563–46–2 ..................................... 2-Methyl-1-butene ............................................................................. 10,000 g 

590–18–1 ..................................... 2-Butene-cis ...................................................................................... 10,000 f 

590–21–6 ..................................... 1-Chloropropylene [1-Propene, 1-chloro-] ........................................ 10,000 g 

598–73–2 ..................................... Bromotrifluorethylene [Ethene, bromotrifluoro-] ................................ 10,000 f 

624–64–6 ..................................... 2-Butene-trans [2-Butene, (E)] .......................................................... 10,000 f 

627–20–3 ..................................... 2-Pentene, (Z)- .................................................................................. 10,000 g 

646–04–8 ..................................... 2-Pentene, (E)- .................................................................................. 10,000 g 

689–97–4 ..................................... Vinyl acetylene [1-Buten-3-yne] ........................................................ 10,000 f 

1333–74–0 ................................... Hydrogen ........................................................................................... 10,000 f 

4109–96–0 ................................... Dichlorosilane [Silane, dichloro-] ....................................................... 10,000 f 

7791–21–1 ................................... Chlorine monoxide [Chlorine oxide] .................................................. 10,000 f 

7803–62–5 ................................... Silane ................................................................................................ 10,000 f 

10025–78–2 ................................. Trichlorosilane [Silane,trichloro-] ....................................................... 10,000 g 

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TABLE 4 TO § 68.130—LIST OF REGULATED FLAMMABLE SUBSTANCES1 AND THRESHOLD QUANTITIES FOR ACCIDENTAL

RELEASE PREVENTION—Continued 

[CAS Number Order—63 Substances] 

CAS No. Chemical name Threshold quantity 

(lbs) Basis for listing 

25167–67–3 ................................. Butene ............................................................................................... 10,000 f 

1A flammable substance when used as a fuel or held for sale as a fuel at a retail facility is excluded from all provisions of this part (see 

§ 68.126). 

NOTE: Basis for Listing: a Mandated for listing by Congress. f Flammable gas. 

g Volatile flammable liquid. 

■ 23. Amend § 68.160 by: 

■ a. Revising paragraphs (b)(1), (4), (5), 

(9), and (12); 

■ b. Removing and reserving paragraph 

(b)(13); 

■ c. Revising paragraphs (b)(14) through 

(18); 

■ d. Removing and reserving paragraph 

(b)(19); 

■ e. Revising paragraphs (b)(20)(ii) and 

(iv); and 

■ f. Adding paragraphs (b)(21) through 

(23). 

The revisions and additions reads as 

follows: 

§ 68.160 Registration. 

* * * * * 

(b) * * * 

(1) Stationary source name, street, 

city, county, state, zip code, latitude and 

longitude, and description of location 

that latitude and longitude represent; 

* * * * * 

(4) The name, telephone number, 

mailing address, and email address of 

the owner or operator; 

(5) The name and title of the person 

with overall responsibility for RMP 

elements and implementation, and the 

email address for that person; 

* * * * * 

(9) The number of full-time equivalent 

employees at the stationary source; 

* * * * * 

(12) If the stationary source has a CAA 

Title V operating permit, and if so, the 

permit number; 

* * * * * 

(14) The name, mailing address, email 

address, and telephone number of the 

contractor who prepared the RMP (if 

any); 

(15) Source or parent company email 

address (if an email address exists); 

(16) Source internet address (if an 

internet address exists); 

(17) Phone number at the source for 

public inquiries (if a public inquiries 

phone number exists); 

(18) LEPC name, phone number, 

email address, and internet address (if 

applicable and available); 

* * * * * 

(20) * * * 

(ii) Corrections under § 68.195 or for 

purposes of correcting minor clerical 

errors, updating administrative 

information, providing missing data 

elements or reflecting stationary source 

ownership changes, and which do not 

require an update and re-submission as 

specified in § 68.190(b); 

* * * * * 

(iv) Withdrawals of an RMP for any 

stationary source that was erroneously 

considered subject to this part 68; 

(21) Whether chemical hazard 

information has been provided to the 

LEPC or emergency response officials, 

pursuant to § 68.205; 

(22) Location or means of public 

access for chemical hazard information 

made available to the public, pursuant 

to § 68.210; and 

(23) Whether a public meeting has 

been held following an RMP reportable 

accident, pursuant to § 68.210(d). 

■ 24. Amend § 68.170 by: 

■ a. Revising paragraph (a); 

■ b. Revising paragraph (d); 

■ c. Revising paragraphs (e) 

introductory text, (e)(1), and (f) through 

(h); 

■ d. Revising paragraphs (i) and (j); 

■ e. Removing paragraph (k). 

The revisions and additions read as 

follows: 

§ 68.170 Prevention program/Program 2. 

(a) For each Program 2 process, the 

owner or operator shall provide in the 

RMP the information indicated in 

paragraphs (b) through (j) of this section. 

If the same information applies to more 

than one covered process, the owner or 

operator may provide the information 

only once, but shall indicate to which 

processes the information applies. 

* * * * * 

(d)(1) Whether safety information 

requirements, in § 68.48, are 

implemented. 

(2) A list of all Federal and state 

regulations, industry-specific and 

established company or stationary 

source design codes and standards that 

are applicable, and identify those 

followed, to demonstrate compliance 

with the safety information 

requirements. 

(e) The most recent hazard review or 

hazard review update information, 

pursuant to § 68.50, including: 

(1) The date of completion of the most 

recent hazard review or hazard review 

update; 

* * * * * 

(f) Whether operating procedure 

requirements, in § 68.52, are 

implemented. 

(g) Whether training requirements, in 

§ 68.54, are implemented. 

(h) Whether maintenance 

requirements, in § 68.56, are 

implemented. 

(i)(1) Whether compliance audit 

requirements, in § 68.58, are 

implemented. 

(2) The date of the most recent 

compliance audit. 

(3) Whether the most recent 

compliance audit was a third-party 

audit, pursuant to §§ 68.58 and 68.59. 

(j)(1) Whether incident investigation 

requirements, in § 68.60, are 

implemented. 

(2) The date of the most recent 

incident investigation. 

(3) Whether root cause analyses have 

been completed for all accidents and 

incidents that are subject to the incident 

investigation requirements in § 68.60. 

■ 25. Amend § 68.175 by revising 

paragraphs (a) and (d) through (o) and 

removing paragraph (p) to read as 

follows: 

§ 68.175 Prevention program/Program 3. 

(a) For each Program 3 process, the 

owner or operator shall provide the 

information indicated in paragraphs (b) 

through (o) of this section. If the same 

information applies to more than one 

covered process, the owner or operator 

may provide the information only once, 

but shall indicate to which processes 

the information applies. 

* * * * * 

(d)(1) Whether process safety 

information requirements, in § 68.65, 

are implemented. 

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(2) A list of all Federal and state 

regulations, industry-specific and 

established company or stationary 

source design codes and standards that 

are applicable, and identify those 

followed, to demonstrate compliance 

with the process safety information 

requirements. 

(e)(1)The most recent process hazard 

analysis (PHA) or PHA update and 

revalidation information, pursuant to 

§ 68.67, including: 

(i) The date of completion of the most 

recent PHA or update and the technique 

used; 

(ii) Major hazards identified; 

(iii) Process controls in use; 

(iv) Mitigation systems in use; 

(v) Monitoring and detection systems 

in use; and 

(vi) Changes since the last PHA. 

(2)(i) Whether the current PHA 

addresses safer technology and 

alternative risk management measures, 

as required in § 68.67(c)(8). 

(ii) Whether any inherently safer 

technology or design measures were 

implemented. 

(iii) If any inherently safer technology 

or design measures were implemented, 

identify the measure and the technology 

category (substitution, minimization, 

simplification, and/or moderation). 

(f) Whether operating procedure 

requirements, in § 68.69, are 

implemented. 

(g) Whether training requirements, in 

§ 68.71, are implemented. 

(h) Whether mechanical integrity 

requirements, in § 68.73, are 

implemented. 

(i) Whether management of change 

requirements, in § 68.75, are 

implemented. 

(j) Whether pre-startup review 

requirements, in § 68.77, are 

implemented. 

(k)(1) Whether compliance audit 

requirements, in § 68.79, are 

implemented. 

(2) The date of the most recent 

compliance audit. 

(3) Whether the most recent 

compliance audit was a third-party 

audit, pursuant to §§ 68.79 and 68.80. 

(l)(1) Whether incident investigation 

requirements, in § 68.81, are 

implemented. 

(2) The date of the most recent 

incident investigation. 

(3) Whether root cause analyses have 

been completed for all accidents and 

incidents that are subject to the incident 

investigation requirements in § 68.81. 

(m) Whether employee participation 

requirements, in § 68.83, are 

implemented. 

(n) Whether hot work permit 

requirements, in § 68.85, are 

implemented. 

(o) Whether contractor safety 

requirements, in § 68.87, are 

implemented. 

■ 26. Revise § 68.180 to read as follows: 

§ 68.180 Emergency response program 

and exercises. 

(a) The owner or operator shall 

provide in the RMP: 

(1) Name, organizational affiliation, 

phone number, and email address of 

local emergency planning and response 

organizations with which the stationary 

source last coordinated emergency 

response efforts, pursuant to 

§ 68.10(b)(3) or § 68.93; 

(2) Whether coordination with the 

local emergency response organizations 

is occurring at least annually, pursuant 

to § 68.93(a); and 

(3) A list of Federal or state 

emergency plan requirements to which 

the stationary source is subject. 

(b) The owner or operator shall 

identify whether the facility is a 

responding stationary source or a nonresponding stationary source, pursuant 

to § 68.90. 

(1) For non-responding stationary 

sources, the owner or operator shall 

identify: 

(i) Whether the owner or operator of 

the stationary source has confirmed that 

the local emergency response entity is 

capable of responding to accidental 

releases at the stationary source; 

(ii) Whether appropriate mechanisms 

are in place to notify public emergency 

responders when there is a need for 

emergency response; and 

(iii) Whether a notification exercise 

occurs at least annually, as required in 

§ 68.96(a). 

(2) For responding stationary sources, 

the owner or operator shall identify: 

(i) Whether the LEPC or local 

response entity requested the stationary 

source to be a responding stationary 

source as required in § 68.90(a)(3); 

(ii) Whether the stationary source 

complies with emergency response 

program requirements in § 68.95; 

(iii) Whether a notification exercise 

occurs at least annually, as required in 

§ 68.96(a); 

(iv) Whether a field exercise is 

conducted every five years and after any 

RMP reportable accident, pursuant to 

§ 68.96(b)(1)(i); and 

(v) Whether a tabletop exercise occurs 

at least annually, except during the 

calendar year when a field exercise is 

conducted, as required in 

§ 68.96(b)(2)(i). 

■ 27. In § 68.190 amend paragraph (c) 

by adding a sentence at the end to read 

as follows: 

§ 68.190 Updates. 

* * * * * 

(c) * * * Prior to de-registration the 

owner or operator shall meet applicable 

reporting and incident investigation 

requirements in accordance with 

§§ 68.42, 68.60, and/or 68.81. 

■ 28. Amend § 68.195 by revising 

paragraph (a) to read as follows: 

§ 68.195 Required corrections. 

* * * * * 

(a) New accident history information. 

(1) For any accidental release meeting 

the five-year accident history reporting 

criteria of § 68.42 and occurring after 

April 9, 2004, the owner or operator 

shall submit the data required under 

§ 68.168, except for root cause 

information required in § 68.42(b)(10), 

with respect to that accident within six 

months of the release or by the time the 

RMP is updated under § 68.190, 

whichever is earlier. 

(2) Root cause information required 

under § 68.42(b)(10) shall be submitted 

within 12 months, or by the alternative 

timeframe provided by an implementing 

agency, as specified in §§ 68.60(d) or 

68.81(d). 

* * * * * 

■ 29. Revise § 68.200 to read as follows: 

§ 68.200 Recordkeeping. 

The owner or operator shall maintain 

records supporting the implementation 

of this part at the stationary source for 

five years, unless otherwise provided in 

subpart D of this part. 

■ 30. Section § 68.205 is added to 

subpart H to read as follows: 

§ 68.205 Availability of information to the 

LEPC or emergency response officials. 

(a) RMP availability. The RMP 

required under subpart G of this part 

shall be available to local emergency 

responders and LEPCs under 42 U.S.C. 

7414(c) and 40 CFR part 1400. 

(b) Chemical hazard information. The 

owner or operator of a stationary source 

shall develop summaries of chemical 

hazard information for all regulated 

processes and provide the information, 

upon request, to the LEPC or emergency 

response officials. Information shall 

include, as applicable: 

(1) Information on regulated 

substances. Names and quantities of 

regulated substances held in a process. 

(2) Accident history information. 

Provide the five-year accident history 

information required to be reported 

under § 68.42. 

(3) Compliance audit reports. 

Summaries of compliance audit reports 

developed in accordance with §§ 68.58, 

68.59, 68.79, or 68.80, as applicable, 

updated as part of the calendar year 

submission described in subparagraph 

(c). The summary shall include: 

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(i) The date of the report; 

(ii) Name and contact information of 

auditor and facility contact person; 

(iii) Brief description of the findings; 

(iv) An appropriate response to each 

of the findings; and 

(v) Schedule for addressing each of 

the findings, as applicable. 

(4) Incident investigation reports. 

Summaries of incident investigation 

reports developed in accordance with 

§ 68.60(d) or § 68.81(d), as applicable. 

The summary shall include: 

(i) Description of the incident and 

events leading up to it, including a 

timeline; 

(ii) Brief description of the process 

involved; 

(iii) Names and contact information of 

personnel on the investigation team; 

(iv) Direct, contributing, and root 

causes of the incident; 

(v) On-site and offsite impacts; 

(vi) Emergency response actions 

taken; 

(vii) Recommendations; and 

(viii) Schedule for implementing 

recommendations, as applicable. 

(5) Inherently safer technology. For 

each process in NAICS codes 322, 324, 

and 325, provide a summary of the 

inherently safer technologies (IST) or 

inherently safer designs (ISD) 

implemented or planned, in accordance 

with § 68.67(c)(8). Update the summary, 

as part of the calendar year submission 

described in subparagraph (c), and 

following any revisions prepared in 

accordance with 68.67(f) and indicate 

when no revisions are incorporated, as 

applicable. The summary shall include: 

(i) The RMP process ID and process 

description, if provided, of the process 

affected; 

(ii) A brief description of the IST or 

ISD and which IST/ISD type of measure 

best characterizes it: Minimization, 

substitution, moderation or 

simplification; 

(iii) The name of the RMP regulated 

substance(s) whose hazard, potential 

exposure or risk was or will be reduced 

as a result of the implementation and 

whether the substance is listed as a 

toxic or flammable. If the chemicals 

affected are a mixture of flammables, the 

name ‘‘flammable mixture’’ may be used 

rather than the individual flammable 

substance names; and 

(iv) The date of implementation or 

planned implementation. 

(6) Exercises. Information on 

emergency response exercises required 

under § 68.96. The information shall 

include schedules for upcoming 

exercises, reports for completed 

exercises as described in § 68.96(b)(3), 

and any other related information. 

(c) Submission dates and updates. 

The owner or operator shall update 

summary information every calendar 

year, including all applicable 

information that was revised since the 

last submission, and provide the 

information upon request. 

(d) Classified information. The 

disclosure of information classified by 

the Department of Defense or other 

Federal agencies or contractors of such 

agencies shall be controlled by 

applicable laws, regulations, or 

executive orders concerning the release 

of classified information. 

(e) CBI. An owner or operator 

asserting CBI for information required 

under this section shall provide a 

sanitized version to the LEPC or 

emergency response officials. Assertion 

of claims of CBI and substantiation of 

CBI claims shall be in the same manner 

as required in 40 CFR 68.151 and 68.152 

for information contained in the RMP 

required under subpart G of this part. As 

provided under 40 CFR 68.151(b)(3), an 

owner or operator of a stationary source 

may not claim five-year accident history 

information as CBI. As provided in 40 

CFR 68.151(c)(2), an owner or operator 

of a stationary source asserting that a 

chemical name is CBI shall provide a 

generic category or class name as a 

substitute. 

■ 31. Revise § 68.210 to read as follows: 

§ 68.210 Availability of information to the 

public. 

(a) RMP availability. The RMP 

required under subpart G of this part 

shall be available to the public under 42 

U.S.C. 7414(c) and 40 CFR part 1400. 

(b) Chemical hazard information. The 

owner or operator of a stationary source 

shall distribute chemical hazard 

information for all regulated processes 

to the public in an easily accessible 

manner, such as on a company Web site, 

including, as applicable: 

(1) Regulated substances information. 

Names of regulated substances held in 

a process. 

(2) Safety data sheets (SDS). SDSs for 

all regulated substances located at the 

facility. 

(3) Accident history information. 

Provide the five-year accident history 

information required to be reported 

under § 68.42. 

(4) Emergency response program. 

Summary information concerning the 

source’s compliance with § 68.10(b)(3) 

or the emergency response provisions of 

subpart E, including: 

(i) Whether the source is a responding 

stationary source or a non-responding 

stationary source; 

(ii) Name and phone number of local 

emergency response organizations with 

which the owner or operator last 

coordinated emergency response efforts, 

pursuant to § 68.180; and 

(iii) For sources subject to § 68.95, 

procedures for informing the public and 

local emergency response agencies 

about accidental releases; 

(5) Exercises. The summary 

information required under 

§ 68.205(b)(6). 

(6) LEPC contact information. Include 

LEPC name, phone number, and Web 

address as available. 

(c) Submission dates and updates. 

The owner or operator shall update and 

submit information required under 

§ 68.210(b) every calendar year, 

including all applicable information 

that was revised since the last update. 

(d) Public meetings. The owner or 

operator of a stationary source shall 

hold a public meeting to provide 

information required under § 68.42 as 

well as other relevant chemical hazard 

information, such as that described in 

paragraph (b), within 30 days of any 

accident subject to reporting under 

§ 68.42. 

(e) Classified information. The 

disclosure of information classified by 

the Department of Defense or other 

Federal agencies or contractors of such 

agencies shall be controlled by 

applicable laws, regulations, or 

executive orders concerning the release 

of classified information. 

(f) CBI. An owner or operator 

asserting CBI for information required 

under this section shall provide a 

sanitized version to the public. 

Assertion of claims of CBI and 

substantiation of CBI claims shall be in 

the same manner as required in 40 CFR 

68.151 and 68.152 for information 

contained in the RMP required under 

subpart G. As provided under 40 CFR 

68.151(b)(3), an owner or operator of a 

stationary source may not claim fiveyear accident history information as 

CBI. As provided in 40 CFR 

68.151(c)(2), an owner or operator of a 

stationary source asserting that a 

chemical name is CBI shall provide a 

generic category or class name as a 

substitute. 

[FR Doc. 2016–05191 Filed 3–11–16; 8:45 am] 

BILLING CODE 6560–50–P 

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