From: Cogliano, Gerain

Sent: Monday, February 08, 2016 1:19 PM

To: 'Jones, Danielle' < Danielle_Y_Jones@omb.eop.gov >
Cc: Jutras, Nathaniel < Jutras.Nathaniel@epa.gov >; Farber, Glenn < Farber.Glenn@epa.gov > Subject: Response to Interagency Comments on RMP rule

Attachments:

Hi Danielle, The following RMP

- related files are attached:

 The two interagency comment documents with responses included following each comment;

 A copy of RFI comments submitted by NASTTPO and the OK SERC in response to Interagency Comments #71 and #106; and

 A redline copy of the preamble and reg text with interagency comments and responses inserted in the margins.

EPA’s OGC weighed in on select issues (OSHA feasibility vs. practicability comment and the attorney

client privilege comment) and also gave us some minor edits to clarify the revised LEPC disclosure provision.

We are working on revising the RIA to remov e the five

- year requirement for periodic public meetings and only require them after an RMP reportable accident. Most of the costs have been updated, but we are now revising the analysis on impacts to small entities and this will take a few additional days to complete. We expect to have a revised version of the RIA by the end of this week. We will likely need to revise the RFA section of the preamble to reflect RIA revisions, once complete.

Additionally, we will incorporate revisions to the preamble/reg. text to reflect Federal Register format edits while the interagency reviewers review these responses.

Please let me know if you have any further comments or questions on these responses.

Thanks! 

## Gerain Cogliano

OLEM's Regulatory Steering Committee Representative

Policy and Regulatory Management Team Leader Policy Analysis and Regulatory Management Staff (PARMS) Office of Program Management (OPM) Office of Land and Emergency Management (OLEM) EPA West Room 4130 Phone Number: 202

- 566

- 1929 Fax Number: 202

- 566

- 1934 Mail Code: 5103T cogliano.gerain@epa.govAttachment: EO 12866 Interagency Comments RMP_EPA re s ponse



## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

2 1. EO 13650 directed EPA to consider the potential addition of new chemical hazards to its RMP regulations and requested comment in its RFI about potential additions and deletions to the
list. I may have missed it, but I only saw an explicit discussion about ammonium nitrate and didn't see any discussion in the draft proposed rule about other chemical hazards. Is EPA planning subsequent rulemaking to close out this EO direction? If so, CEQ would suggest that EPA discuss this in the preamble here.

Same response as comment #14. EPA is considering actions under EO 13650 separately from this rulemaking and has not made any decisions on whether to revise the list of
substances to address othe r chemical hazards at this time

. However, EPA believes it is appropriate to discuss AN since this was involved in the West Fertilizer explosion. EPA added a sentence on page. 26 of the preamble indicating that we may address other
chemical hazards at a lat er date.

2. OSHA also has an issue with the use of the word feasibility. As we have discussed in interagency coordination meetings, this term has legal meaning for OSHA and we will not be able to define or use that term when we update the Process Safety Man agement (PSM) standard, which would create inconsistencies between PSM and RMP. As noted below, we suggest substituting “practicable” for “feasible”: these two words are synonyms.

EPA disagrees. If OSHA uses the term feasible in another standard, and gave it the normal meaning, then this should be consistent with the proposed definition in this notice. However, EPA added language seeking comment on what term should be used (feasible or practicable) on page 97 of the preamble.

3. Page 3, believe”P” in AFPM is Petrochemical (not Petroleum).

Change incorporated here and on page 41. Duplicative spelling of AFPM on page 91
deleted.

4. Table 1, Other manufacturing, is this missing a number or an extra comma?

Change incorporated.

5. Table 3, are these also 2014 dollar esti mates?

Yes. Title of table amended.

6. Page 10, Recommended edit. However, EPA is proposing believes that revisions in order to could further protect human health and the environment from chemical hazards through advancement of process safety management based on lessons learned.

Change incorporated.

7. Page 11, If the analysis is to include IST, ISD, passive measures, active measures, and procedural measures, shouldn’t the feasibility of all of those alternatives be considered? Recommend the following edits: “...an d to e #7 valuate the feasibility of any inherently safer technology or alternative (IST) identified.

Recurring comment. We intended to restrict the analysis of feasibility to IST. We believe the current regulation already incorporates the other elements of the STAA (PHA already considers active, passive and procedural measures and therefore already

accoun ts for these elements). However, to be consistent with the Hierarchy of controls

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

3 that is well understood, the proposed provision includes all of the elements. The IST portion is the incremental difference between the current rule and the proposed rule.

8. Pa g e 13, recommend the following edit: “...and any safer technology or alternative ISTs implemented at the facility...”

EPA chose to highlight the ISTs implemented because we believe that this puts additional emphasis on this part of the analysis to encourage ser ious consideration of IST. The other parts of the hierarch of controls are already incorporated in the PHA and reported in the RMP.

9. Page 13, regarding LEPCs, are Tribal entities are included here? It may be helpfult to specify,
both in this section and wh ere appropriate throughout the Preamble.

Change incorporated.

10. Page 16, Suggested rewrite of the following: “resulting in fires and explosions; damage to property; acute and chronic exposures of workers and nearby residents to hazardous materials,
and resul tant in damages to health.” To “causing fires and explosions; damage to property; acute and chronic exposures of or workers and nearby residents to hazardous materials, and resultant in serious injuries and deaths.”

Change incorporated.

11. Page 18, Does thi s Action Apply to Me?, spell out the first use of TQ.

Change incorporated. Removed spelling of acronym on page 22.

12. Page 20 Insert comma between “Texas” and “killed”. Insert comma between “Washington” and
“killed”. Insert comma between “California” and “area”.

Changes incorporated throughout the document.

13. Page 20, please insert the word “people” after the following: “15”, “170”, “seven” and “two”.

Changes incorporated.

14. Page 25, EO 13650 directed EPA to consider the potential addition of new chemical haza rds to its RMP regulations and requested comment in its RFI about potential additions and deletions to the list. We may have missed it, but only saw an explicit discussion about ammonium nitrate and didn't see any discussion in the draft proposed rule abo ut other chemical hazards. Is EPA planning subsequent rulemaking to close out this EO direction? If so, we would suggest that EPA discuss this in the preamble here.

Same response as comment #1. EPA is considering actions under EO 13650 separately
from t his rulemaking and has not made any decisions on whether to revise the list of substances to address other chemical hazards at this time. However, EPA believes it is appropriate to discuss AN since this was involved in the West Fertilizer explosion. EPA
ad ded a sentence on page. 26 of the preamble indicating that we may address other
chemical hazards at a later date

.

15. Page 28, footnote 17 insert, The OSHA definition provides that “ Catastrophic release means a major uncontrolled emission, fire, or explosion, involving one or more highly hazardous chemicals, that presents serious danger to employees in the workplace.”

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

4 Change incorporated as a footnote to the first sentence of this section on page 29.

16. Page 29, paragraph that starts with” EPA has not defined or clarified the term “imminent and substantial endangerment”

EPA switches from a discussion of accident investigation to accident history

– this does not make the accident investigation requirement “less vague”

– It applies only to accident history. Only th e accident history requirement is “less vague.” Unless you read very carefully, you would think EPA was clarifying the catastrophic release definition, which it is not. EPA reinforces this confusion in later text suggesting that EPA use the language for accident history for accident investigation without a hint that these were different kinds of requirements.

Clearly the current accident history requirement applies to many more accidents and potential accidents than “catastrophic releases”. EPA is now a sking the public as to whether it should equate the threshold for the two requirements, but without saying so.

EPA should explain why it is now proposing to reduce the threshold for catastrophic release to be any sort of damage, instead of “substantial” o r “major” as addressed in the current OSHA and EPA definitions. EPA needs to more transparently explain what it is doing. Why shouldn’t EPA retain consistency with the OSHA definition? EPA should request comment also on retaining the current catastrop hic release definition, and retaining consistency with OSHA.

Is OSHA planning also to downgrade the meaning of catastrophic release?

EPA disagrees with the premise that the current incident investigation criteria includes a
subset of accidents to be re ported (i.e., something more severe). It would have been inconsistent to require reporting of an accident that does not need to be investigated. Therefore, EPA believes it is necessary to provide clarification and is making the catastrophic release definit ion consistent with the accident history reporting requirements of the rule.

17. Page 39, suggest rewrite of the following: “Is a root cause analysis appropriate for every reportable accident and near miss, or should EPA limit the scope or applicability of th e root cause analysis requirement? If so, how should EPA limit the scope or applicability of this proposed requirement?” to “EPA seeks comment on whether a root cause analysis is appropriate for every reportable accident and near miss. Should EPA limit or increase the scope or applicability of the root cause analysis requirement?”

Change incorporated with modifications to also address SBAR panel recommendations.

18. Page 41, footnote 51: In this 2004 guidance, EPA is distinguishing between “minor accidents”

no t warranting accident investigation and catastrophic accidents that do. However, minor accidents would now be included in EPA’s new definition of “catastrophic”, because it now includes any type of property damage, shelter in place or en vironmental damage, suggesting that EPA is modifying its 2004 views.

It would be better to reserve accident reviews for “major” or “substantial” harm, rather than minor accidents, such as a small excursion in process limits. If EPA adheres to its current proposal approach for modifying the catastrophic definition, it should transparently explain that it is departing from the 2004 guidance cited here.

EPA still believes that minor accidents and minor near misses do not require investigation and do not require reporting unde r 68.42.

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

5 Minor accidents and minor near misses may include events that do not meet EPA consequence categories such as when a person is hurt but does not meet our definition of injury (i.e., require medical treatment beyond first aid) or a small release th at does not cause reportable impacts.

A near miss could be a minor accident or could be an event that involves no release (e.g., an event where all layers of protection except one failed).

Minor accidents are not necessarily near misses because they do no t always have the potential to be a catastrophic release.

EPA believes that our proposed approach is consistent with our guidance. Whether or not the incident in investigated as a potential catastrophic release would depend upon

numerous case

- specific fact ors.

19. Page 44, paragraph starting with “Because it is difficult to prescribe the various types of incidents that may occur in RMP” Perhaps EPA should discuss OSHA’s parallel effort to define

near misses

– and that EPA could address this issue after OSHA is near com pletion of its work.

EPA disagrees. EPA is not proposing to define near misses. The current rule requires incident investigations for incidents that could reasonably have resulted in a catastrophic release (i.e., near misses). The OSHA effort is in tended to provide further clarification on the scope of near misses and does not impact this rule effort.

20. Page 44, regarding “The intent is not to include every minor incident or leak, but focus on serious incidents that could have resulted in a catastroph ic release, although EPA acknowledges this will require subjective judgment.” EPA again talks about “serious” incidents, and not the minor incidents included in its new proposed definition of “catastrophic release”. EPA should
be consistent. Does EPA no w intend to include “minor” accidents?

See response to comment 18.

EPA still believes that minor accidents and minor near misses do not require investigation and do not require reporting under 68.42.

EPA believes that our proposed approach is consistent with our guidance. Whether or not the incident in investigated as a potential catastrophic release would depend upon

numerous case

- specific factors.

21. Page 45, suggested rewrite of the following: EPA seeks comment on whether the examples provided of a near m iss are useful to help facilities identify incidents that should be investigated and whether further clarification of incidents requiring investigation is necessary.” To “EPA seeks comment on the guidance and examples provided of a near miss. Is further cl arification
needed in this instance?”

Change incorporated.

22. Page 51, request the following to clarify the requirements for Federal facilities under PSM:
Facilities with state and local government employees at facilities in states under Federal OSHA
authorit y are not covered by the OSHA PSM standard at facilities in states under Federal OSHA authority , as opposed to OSHA delegated State Plans.

Change incorporated with minor editorial changes.

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

6 23. Page 51, replace the sentence that reads “Facilities with government employees are not covered by the OSHA PSM standard if they are in states under Federal OSHA authority, as opposed to OSHA delegated State Plans” with the following text: “State and local government employers in
states without OSHA

- approved State Plans are not covered by the OSHA PSM standard.” As drafted, EPA’s text is incorrect because facilities with government employees in non state plan states could be covered by the PSM standard if p rivate or federal employees are also exposed to
the PSM hazards.

Adopted alternative language suggested in comment #22 that addresses the concern
raised in this comment.

24. On page 57 of the preamble, there is reference to the EPA’s third

- party framework for the Formaldehyde standards rule. This rule has not been finalized. Recommend removing this
reference.

Congress requires EPA to include a third

- party testing and certification requirement for that rule and EPA believes it is a valid example.

The Formaldeh yde Standards for Composite Wood Products statute requiring the rulemaking, Congress mandated that EPA promulgate rules that include a third

- party testing and certification program. See https://www.gpo.gov/fdsys/pkg/BILLS

111s1660enr/pdf/BILLS

- 111s1660enr.pdf

– see, especially, the subsection, at page 7, cut and pasted below. ‘‘(d) REGULATIONS.

— ‘‘(1) IN GENERAL.

— Not later than January 1, 2013, the Administrator s hall promulgate regulations to implement the standards required under subsection (b) in a manner that ensures compliance with the emission standards described in subsection (b)(2). ‘‘(2) INCLUSIONS.

— The regulations promulgated pursuant to paragraph (1) shall include provisions relating to

— ‘‘(A) labeling; ‘‘(B) chain of custody requirements; ‘‘(C) sell

- through provisions; ‘‘(D) ultra low

- emitting formaldehyde resins; ‘‘(E) no

- added formaldehyde

- base d resins; ‘‘(F) finished goods; ‘‘(G) third

- party testing and certification; ‘‘(H) auditing and reporting of third

- party certifiers; ‘‘(I) recordkeeping; ‘‘(J) enforcement; ‘‘(K) laminated products; and ‘‘(L) exceptions from the requirements of regu lations promulgated pursuant to this subsection for products and components containing de minimis amounts of composite wood product.

25. Page 57, footnote 77: These are not very analogous to the provision of professional auditing services. These are testing l ab reports of compliance with specific technical standards

– and there is little incremental cost difference between in house labs and third party labs for the completion of these tests. Little professional judgment is required. Indeed, for most of thes e

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

7 situations, it is likely less expensive to send to outside labs rather than develop in

- house expertise. Either show how this is relevant, or delete.

EPA believes that the premise is the same. The examples show the value of independence and do not r elate to the costs to involve third

- parties.

The example further shows that even when there should not be variations in results (because there is little professional judgement) there is a difference in third

- party results.

26. Page 64, regarding “Under the fir st condition, a third

- party 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).” Again, the more relevant provision is the “catastrophic release “provision that requires the investigation of an accidental release, not whether the accident will be included in the five year accident history. Third party audits should be reserved for major releases with offsite impacts, not any property damage or evacuations, however minor.

As a result of the SBAR panel recommendations, EPA is requesting comment on limiting applicability of the third

- party audits for P3 facilities, triggered by major accidents that
have offsite impacts. See pg. 67 of the preamble

.

27. Page 66, suggest rewrite of the following: “EPA seeks comment on whether to further limit applicability of this provision.” To “EPA seeks comments and suggestions on the proposed third

party audit applicability requirements and whether to maintain or further limit applicability of this provision.”

Change incorporated with modifications.

28. Page 66, regarding “Alternatively, EPA could revise this provision to reduce its impact on small businesses.” Small business alternatives should include third party audits only upon request by state authority, after the facility notifies the state . Small business definition could be the existing SBA definition or a simplified employee definition such as 500 employees.

EPA should also consider a five year phase

- in period for small firms, allowing the agency to review the utility of this practice for small firms.

First, this provision would have a minimal impact on small businesses because it would only apply to facilities that have had RMP reportable accidents (most of which do not occur at small businesses). Furthermore, many states do not have implemen ting authority for the RMP rule and it could cause confusion over who the facility owner/operator must contact at the state level to review and decide whether a third

party audit is necessary.

However, as a result of SBAR panel recommendations, EPA is requ esting comment on
how to reduce the impact of this provision on small business. See page 72 for additional requests for streamlining the independence requirement for small businesses.

Finally, EPA has proposed a 4

- year phased

- in compliance date for this pr ovision for all
facilities.

29. Page 69, regarding “be a licensed Professional Engineer (PE), or include a licensed PE on the audit team.” EPA should explicitly take comment on the other professional credentials

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

8 recommended by the SERs: such as the Certified Hazardous Materials Manager (CHMM) or the Dangerous Goods Safety Advisor (DGSA). One of the SERs pointed out that many of the EPA RMP inspectors are not Pes. What credentials were mentioned by the SERs and other
commenters that deserve consideration?

C hange incorporated.

30. Page 71, regarding “EPA agrees that chemical facility security is a priority and seeks comments
on whether there is a need for third

- party audit provisions to specify security protections or whether existing non

- disclosure and contractu al agreements should handle this independently.” EPA proposal should not exclude firms from auditing simply because an employee was previously associated with a firm, or may be associated with the firm in the future, so long as this person is not in charge of most likely the go

- to source, particularly for many small firms and all firms in rural America the audit team, but is just a member of the team. Retired employees are often the best choice for this function. Retirees that have no relationship with th e company except for a pension have little incentive to jeopardize the safety of the former fellow employees.

There is widespread belief that it will be very hard for small firms (or large firms) to find qualified auditors who are not affiliated with the facility. The availability problem would contribute to unnecessarily higher costs than EPA projects. EPA should also include a provision for a waiver where the company can justify the use of an affiliated person and the state agrees.

EPA should also consider the approach of (BSEE?) which allows a team member to be affiliated where the lead person was independent.

The comment (which relates to auditor independence) does not appear to be directly related to the quoted text (which pertains to security). In accordance with SBAR panel recommendations on the issues identified in this comment, EPA:

 Added preamble language on page 72 that clarifies independence criteria for
firms.

 Added language seeking comments on page 73 of the preamble on how independence criteria should be applied for retired employees and whether to streamline independence criteria for small facilities.

31. Page 76, regarding “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 w hether such a requirement would be further effective in minimizing potential third

- party compliance audit bias.” Submission of draft reports to EPA is unlikely to promote better audits. Auditing firms would seek ways to share early versions with firms wit hout EPA knowledge, for example.

EPA did not propose to require draft third

- party audits to be submitted to EPA at the same time the draft is submitted to the facility representatives. However, EPA is requesting comment on this approach as a way to ensur e that auditors provide unbiased results in a final report that is not swayed by the owner/operator’s review of an early draft.

32. Page 76, regarding “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 confidential attorney work products even if the

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

9 auditors are themselves, or managed by or report to, attorneys.” E PA should not interfere with attorney client privilege. This is unnecessary, and would compromise the honesty and value of the audit. It should suffice to have access to the audit, if needed by the agency. This provision could harm companies who are try ing to perform a proper audit, but would subject them to litigation liability. What is the justification for such a provision?

T he proposed requirement is intended to prevent the o/o from shielding regulatory compliance documents under the guise of attorn ey

- client privilege. These documents should be available to the implementing agency for compliance monitoring purposes. The comment confuses the proposed third party audit with non

- reg ulatory self

- audits.
Both the third party audit and the current complia nce audit are prepared to be disclosed to parties (EPA and locals) that do not have an attorney

- client relationship with the company’s attorneys. Other than for CBI, there is no expectation of confidentiality. With respect to the attorney work product pr ivilege, third party audit document ation is not prepared in anticipation of litigation any more than any other mandatory record

. Also, DOJ, EPA Regions, and EPA/ OECA have include d essentially the same provision in
enforcement settlements without legal con cerns.

33. Page 77, regarding “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.” EPA should provide an option for more than 90 day period, where needed.

Added language to the preamble to seek comment on flexibility for the tim eframe.

34. Page 78, Clarify that IST is a subset given the comment in the executive summary above.
Recommend the following edit: “ STAA includes concepts known as IST or inherently safer design (ISD) which are those strategies that reduce or eliminate the haza rds associated with materials and operations used in a process.”

Change incorporated.

35. Page 78, One of the key concepts of IST is that the changes to the process are irreversible. Suggest inserting the work permanently. “IST or inherently safer design (ISD) are those strategies that permanently reduce or eliminate the hazards associated with materials and operations used in a process.”

Change incorporated.

36. Page 78, four bullets, These four elements are usually thought of as IST

– is it possible to move these four elemts to the next section (#2) and keep this section focused on ISD?

These strategies are intended to encompass both IST and ISD which are interchangeable

terms.

This section introduces the concept of IST as first part of the hierarchy of control. EPA expands on the concept in later preamble discussion.

37. Page 79, The definition of moderation he re does not match the definition listed in the reg text on page 199 “..Inherently safer technology or design ... moderate the use of regulated substances...” Perhaps EPA can review for consistency.

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

10 EPA does not define moderation in the reg. text on pg. 199. T he preamble discussion is intended to further clarify what moderation means.

38. Page 79, Several incidents have proven that these actions are not always “inherently” safer. Please remove the term. “The hierarchy establishes that inherently safer options...”

Thi s is a general statement of the hierarchy of controls and while there may be cases where it is appropriate to depart from the hierarchy there is no need for EPA to qualify exceptions to the hierarchy here. Removing the term “inherent’ would add confusion t o this discussion because we are referring specifically to the inherently safer strategies
identified above.

39. Page 80, recommended edit: “For many years, EPA has recognized the importance of considering safer technologies or alternatives IST for improving process safety.

No. EPA is specifically referring to the 1996 preamble that addresses IST and not the full range of STAA. See revised language.

40. Page 81, EPA seeks comments and suggestions on the proposed third

- party audit applicability requirements and whe ther to maintain or further limit applicability of this provision. “While EPA believes that facilities should look for additional opportunities to increase safety, we believe that the facility owners or operators are generally in the best position to decid e identify which changes are feasible to implement for their particular process

. As a result, and that EPA should is not proposing to not require by regulation that a facility implement a particular IST.”

Changes incorporated with slight modification (no need to say by regulation).

41. Page 81, recommend the following edits: However, since 1996 EPA has seen that advances in safer technologies ISTs and safer alternatives are becoming more widely available and are being adopted by some companies. Voluntary impl ementation of some safer technologies 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 i mprove risk management of current hazards through potential implementation of safer technologies ISTs or risk management measures that are more robust and reliable than ones currently in use at the facility.

Changes not incorporated. PHAs are already consi dering the other elements of the hierarchy (passive, active, and procedural measures) and therefore, any advancements in these strategies should already be incorporated into PHA revalidations/updates. The
discussion here is intended to focus on IST which i s the incremental difference in the proposed rule.

42. Page 81, regarding “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.” Why would a good PHA not inclu de consideration of ISTs?

A good PHA should consider IST but the RMP rule does not explicitly require it.

43. Page 82, recommend the following edit: “...implement for their particular process and that EPA should not require that a facility implement a particul ar technology IST

. Change incorporated with modification.

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

11 44. Page 83, recommend the following edit: There was, however, no consensus about the role of government in the implementation of safer technologies and alternatives IST

. Change incorporated

.

45. Page 93, S uggested language to avoid unnecessarily undermining the justification for potential state regulation, EPA enforcement actions (such as those that have led to settlements agreements with IST solutions), and other potential opportunities in the future. “EPA is not proposing to require sources affected by this provision to implement an evaluated IST or ISD

. because t T he 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 . EPA believes that only qualified fa cility personnel should choose the best measures that can reduce the risk of an accident at the facility.

Change incorporated.

46. Page 93, Applicability: IST analysis should not be required for any small firms. This requirement is too expensive for small fi rms and likely to be just a paperwork exercise. If the PHA does not yield such an alternative, it is unlikelythat it would be feasible, in any event. Perhaps this should be applicable only to large or complex manufacturing facilities, perhaps only tho se with Title V permits.

Also, IST analysis should not be required for toll processors unless the toll processor has a long term relationship (three years or more) to produce the product. Furthermore, the toll processor should not be required to conside r alternative substances to be produced for the
client firm.

Alternatively, EPA could propose phasing in this requirement for small firms in five years, after EPA has reviewed the utility of these IST analyses for large firms.

EPA is requesting comment o n alternative options for small facilities based on SBAR panel recommendations. See preamble language at the end of Section 6. STAA Applicability.

Furthermore, the STAA does not specifically require batch toll manufacturers to only
consider alternative su bstances to be produced for the client firm. The STAA allows for multiple inherently safer strategies.

T he proposed provision already minimizes impact to small businesses by targeting industry sectors that have a low percentage of small facilities (pulp/pa per

- approx. 20% small business); (chemical mfg. and petroleum refining are both approx. 10% small business)

Finally, EPA is proposing to phase this requirement in over a four

- year period beyond the rule effective date in order to give facilities an opportunity to conduct the STAA as part of their normal PHA revalidation cycle.

47. Page 93, Applicability: Need to expand this section. EPA needs to account for the other consequences to workers, nearby populations, and the environment of this alternativ e. It could increase the risk of adverse environmental consequences to a larger population, shift the risk to another a transportation risk, or create other adverse environmental risks. The alternative may not be economically practicable, and could jeopa rdize the financial stability of the firm. Only the

## Summary of Interagency Working Comments on Draft Language under

EO12866 /13563 Interagency Review. Subject to Further Policy Review.

12 firms, in consultation with experts, are able to make sound judgments in these often complex
determinations.

EPA added additional preamble language to address this comment. Language to address

economic feasibility is discussed in Section 7. Guidance on Safer Technologies and
Alternatives.

48. Page 94, recommend the following edit: “First, EPA is proposing that “IST or ISD design ”

Change incorporated

- though we removed the quotes since the reg. text spells ou t the term rather than use acronyms.

49. Page 94, Definitions: The MultiSector General Permit (MSGP)

– of feasibility specifies what stormwater measures should be required for industrial permittees:

Feasible

– for the purposes of this permit, feasible means t echnologically possible and economically practicable and achievable in light of best industry practices.”

Current text: EPA is proposing to define “feasible” to mean capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors. Environmental factors could include consideration of risks transferred elsewhere if a new risk reduction measure is adopted.

Better definition borrowing from MSGP defin ition and using EPA RMP text:

Feasible means capable of being accomplished in a successful manner within a reasonable period of time, economically practicable, and not inconsistent with other economic, environmental, legal, social, and technological factor s. Environmental factors include consideration of risks transferred to other locations, populations, or ecological systems, if a new risk reduction measure is adopted.

Need further clarification on why the commenter believes this is a better definition than the EPA proposed definition which is intended to allow flexibility.

EPA modeled the feasible definition based on NJ and CCC regulations.

50. Page 97, recommend the following edit: “7. Guidance on Evaluating Safer Technologies and
Alternatives IST ” and “To conduct an STAA IST / ISD analysis...”

Change s incorporated. Deleted phrase “To conduct an STAA IST / ISD analysis...” (duplicative).

51. Page 98: recommend the following edits: “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. Examples for why inherent safety review recommendations may not be feasible, include when the recommendation:”

EPA disagrees with this revision. CCPS uses the terms “inherent safety analysis” and “inherent safety review” in the guidelines that are discussed in this paragraph.

52. Page 100, request the following to properly identify the best practices website: One mechanism of collecting relevant information could be OSHA’s the National Working Group on Chemical Safety and Security’s best practices website, which collects and share s chemical safety and security best practices, including safer alternatives.

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13 Change incorporated.

53. Page 103, recommended edit: However, EPA seeks comment on whether such requirements should be considered for future rulemakings, including the scope of such r equirements, or whether the Agency should publish guidance.

Change incorporated.

54. Page 104, Emergency Response Preparedness Requirements A. This is a controversial interpretation of the existing requirement. EPA needs to respond to the December 9 comments by Hydrite Chemical Company contending that EPA did not require small firms to be responding firms, and that the burden was on the LEPC to develop the response capability (see page 9). This new requirement places a large burden on small firms that needs to be accounted for in this rule. We oppose this burden being shifted to small firms.

The commenter misunderstands the existing requirement for local coordination. EPA cites the 1996 preamble discussion raised by Hydrite on page 110 below and also
includ es a further discussion from the 1996 rule to explain that small sources that are not covered under the community response plan or have not coordinated with the local fire department must develop an emergency response program.

EPA has clearly identified in the preamble those areas of the provision where we are proposing changes (i.e., to require coordination on an annual basis, documentation, etc). EPA anticipates that more facilities will likely develop emergency response programs and this will impact smal l businesses. Therefore, we convened an SBAR panel and assessed costs for new responders in the Reg. Impact Analysis.

55. Page 110, regarding “Therefore, in the event that the outcome of the coordination activities with local response authorities indicates tha t 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.” We don’t believe the 1996 rule was pr edicated on small firms taking this responsibility, nor is a good idea today. This should be a government responsibility. This concept would endanger the community. Furthermore, this should not be a requirement for any retailers that are almost

universa lly too small to be a responding facility. This is not a clarification of the 1996 rule

– and should be treated as a substantive revision, if retained.

Since 1996, small sources that are not covered under the community response plan or
have not coordinate d with the local fire department must develop an emergency

response program.
EPA has clearly identified in the preamble those areas of the provision where we are proposing changes (i.e., to require coordination on an annual basis, documentation, etc). EPA anticipates that more facilities will likely develop emergency response programs and this will impact small businesses. Therefore, we convened an SBAR panel and assessed costs for new responders in the Reg. Impact Analysis.

56. Page 110, regarding “EPA is prop osing to add §68.93 to clarify emergency response coordination activities and require that these activities be documented and occur annually.” EPA’s response to LEPCs being unable to undertake the existing requirements is to double down and add to
LEPC bur dens. For example, coordination now becomes an annual requirement for notification

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14 and drills, instead of allowing tailoring of the requirement to the need and available resources.
The annual coordination should be limited to annual notification drills.

The justification for proposing this change is based upon the CAA requirements in Section 112(r)(7)(B)(ii) that states that the regulations shall require the owner or operator to “provide a prompt emergency response to any such releases in order to
protec t human health and the environment. The 1996 rule required facilities to develop emergency response programs when they are not included in a community emergency response plan. The proposed revision is intended to ensure that response capabilities

are asses sed on an ongoing basis. Notification drills serve a different purpose (to ensure that local responder contacts are up

- to

- date).

57. Page 111, recommended edit: “EPA also proposes to revise §68.95 to ensure that notification procedures include notifications t o Federal, Tribal and state agencies and to require that emergency response plans be updated at least annually.”

Change incorporated.

58. Page 112, recommended edits for clarity: “EPA believes that these proposed amendments
would clarify existing obligations a nd prevent situations where neither regulated stationary sources nor local authorities are prepared to appropriately respond to accidental releases at the
source.”

Change incorporated.

59. Page 113, proposed rewrite for: “Will the proposed amendments significantly improve emergency response planning and coordination?” to “Will the proposed amendments contribute to improvements in emergency response planning and coordination? Are there additional practices that EPA should consider that significantly imp rove planning and
coordination?”

Change incorporated.

60. Page 117, the reviewer has concerns because the quoted language overemphasizes research and test reactors. The NRC regulations referred to in the quoted language apply to all NRC

licensed reactors, inc luding the much larger commercial nuclear power reactors that generate electricity and operate at much higher temperatures, pressures, and power levels. Consequently, the NRC Staff recommends that the quoted language be revised as follows (deletions are s hown by strikethrough and inserted text is shown by underlining): Other examples include exercises that the U.S. Nuclear Regulatory Commission (NRC), in conjunction with the Federal Emergency Management Agency (FEMA) , requires commercial nuclear power plant operators to perform with and state and local governments perform at nuclear power plants

. These exercises evaluate both on

- site and offsite emergency response preparedness capabilities. The NRC also requires Res earch and Test Reactor (RTR) 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)

, and Appendix E to 10 CFR Part 50 , and for
commercial nuclear power reactors only, 10 CFR 50.47(b)

. Reactor O o perators of RTRs 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 respons e capabilities ensure the feasibility of the emergency preparedness plan

.

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15 Changes incorporated with modifications to remove FEMA acronym because it is not used again in the document

.

61. Page 118, for clarity, suggest including (as citation) these Federal regulations and corresponding applicability to current regulation. “Second, the Agency indicated that the additional requirements were already addressed in other Federal regulations...”

The 1996 rule was not specific on which other Federal regulations addres sed exercise requirements.

62. Page 119, recommended edit “ 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. ”

Change incorporated.

63. Page 120, what efforts are being proposed to encourage full participation in exercises? Is EPA proposing a notice schedule or sharing additional guidance for implementation?

Under the proposed information disclosure requirements (§68 .205(b)(6) and §68.210(b)(5)), o/o would be required to disclose exercise schedules for upcoming

exercises.

64. Page 120, Field Exercises: This commenter does not support required field exercises, but supports the option to require tabletop exercises, discusse d later in this text. We would reverse the order of these options. Many (if not most) LEPCs do not have the resources to perform field

exercise.

EPA is requesting comment on an option to require only tabletop exercises in accordance with the SBAR panel recommendations.

65. Section 68.210 requires a summary of the exercises be made available to the public in accordance with Section 68.205(b)(6)

– which ultimately takes you to the documentation requirements in Section 68.95(b)(3). Which are also described her e in the preamble.

This reviewer has concerns regarding the sharing of all the elements listed in this section with the public. Sharing certain elements is essentially providing a listing of vulnerabilities. These vulnerabilities could be used by a terro rist to either target a certain facility or the vulnerabilities could be exploited to increase the magnitude of an attack.

We are also concerned that many facilities may not be experienced enough to develop one internal after action report and a second v ersion of the after action report for the public.

Recommend deleting lessons learned and recommendations for improvement from the documentation. Alternatively, EPA could consider being more specific and have facilities develop a separate document (or App endix to the AAR) that is designed to be shared with the public that just provides a high level description of the scenario and participants.

EPA disagrees. EPA believes the elements for the report described in this section should remain. However, EPA adde d language on page 139 of the preamble (in the section discussing information disclosure to the public) seeking comment on how to limit sharing of information that could reveal security vulnerabilities.

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16 66. Page 122, This reviewer has concerns that sharing thi s information with the public could highlight vulnerabilities that terrorists could exploit. Recommend deleting this sentence, unless EPA inserts language about developing a separate public report (or Appendix). “The report
would also include an evaluatio n of the adequacy of coordination with local emergency response authorities, and other external responders, as appropriate.”

EPA disagrees. EPA believes the elements for the report described in this section should remain. However, EPA added language on page 139 of the preamble (in the section discussing information disclosure to the public) seeking comment on how to limit
sharin g of information that could reveal security vulnerabilities

.

67. Page 123, Recommend the following question for public comment: “What information regarding exercises would be most helpful to the public while maintaining a balance for security?”

Change incorpor ated.

68. Page 123, recommended edit: Will the proposed exercise requirements improve the ability of RMP facility personnel and local authorities to respond to accidental releases? Are there additional exercise provisions that EPA should consider to improve th e ability of RMP facility personnel and local authorities to responds to accidental releases ?

Change incorporated

.

69. Page 123, Alternative Options: Reverse order of these options. The alternative should be the proposed option. EPA should explicitly comment on the availability of LEPC resources. What evidence does EPA have that field exercises are practicable for LEPCs?

EPA believes that field exercises would be an important part of maintaining an effective response program because it tests training of res ponse personnel, assesses readiness of equipment and ensures that the response will work as planned.

LEPCs are not required to participate in any exercises.

70. Page 124, recommend edit: “In response to these issues, EPA is seeking 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.”

Change incorporated

.

71. Page 124, regarding “Community residents and organizations consist ently noted that they need basic information regarding chemical risks at facilities, presented in a clear and consistent manner” Note there is no specific request for compliance audit reports, accident histories, IST analyses, and the other new information now being proposed by EPA. This information, should instead, be provided upon request by the LEPC, instead of adding to the pile of materials that LEPCs and the public would be unable to use. Has NASTTPO or any LEPCs expressed any
information in the ne wly proposed categories of information to be made available without request? If so, please describe.

EPA has revised the proposed requirements to allow information to be made available
upon request.

NASTTPO requested EPA consider providing information o n emergency planning and exercises, audit reports, and RMP Executive summaries that include information such as accident histories, and names of RMP

- regulated substances.

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17 Oklahoma SERC also commented and requested posting of chemical information including an RMP summary along with Tier2 information on a company website at a minimum. They also requested making the following information available to LEPCs: the facility emergency response plan, accident history, along with offsite consequence analysis.

Commen ts provided on the RMP RFI will be sent over separately to interagency

reviewers.

72. Page 127, Recommend the following edit: “However, in making information more readily available EPA must also recognize and balance the associated security concerns because the public sharing of specific facility information and any associated vulnerabilities has the potential to aid terrorists in planning an attack.

Change incorporated with modifications

.

73. Page 129, regarding “These meetings can provide opportunities for faci lities to engage the public to address concerns and explain how facilities address risks that will prevent accidents.” As many SERs indicated, the past EPCRA experience showed that most meetings were not attended by the public. In the absence of an actual accident, the public is unlikely to be interested. EPA should fashion a meeting requirement only for actual chemical releases, and the the discussion should take place at an LEPC meeting, to ensure engagement with the LEPC.

EPA has revised the requirement to require public meetings within 30 days of any accident subject to reporting under §68.42

. EPA does not specify a location for public meetings and agrees that these meetings can be held as part of an LEPC meeting

- provided that the LEPC meetin g is open to the public. EPA added the following sentence on page 14 2 as clarification: S tationary

sources may combine public meetings with LEPC meetings or other events as long as those events/meetings are available for public participation.

74. Page 130, regarding “The specific information that must be provided to LEPCs or emergency response officials is outlined below:” 40 CFR Section 68.155 already requires:

§ 68.155 Executive summary.

The owner or operator shall provide in the RMP an executive summary that includes a brief description of the following elements:

(a) The accidental release prevention and emergency response policies at the stationary

source;
(b) The stationary source and regulated substances handled;

(c) The worst

- case release scenario(s ) and the alternative release scenario(s), including administrative controls and mitigation measures to limit the distances for each reported scenario;

(d) The general accidental release prevention program and chemical

- specific prevention
steps;

(e) The five

- year accident history;

(f) The emergency response program; and

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18 (g) Planned changes to improve safety.

This is likely the only information that the great majority of the LEPCs need. Why should we add to the facility and LEPC burdens of more?

Pleas e note

- The worst

- case release and alternative release scenarios with their administrative controls and mitigation measures is no longer required in the executive summary. This section of the CFR was amended in 2004

- someone may be looki ng at an earlier ve rsion of CFR.

EPA believes the additional elements proposed for LEPC disclosure (such as summaries of exercises, audit reports, incident investigation and IST) may assist emergency responders in allocating response resources.

75. Page 130, Accident History Inf ormation: Facilities should provide accident history, compliance audit reports, IST reports, and information on exercises only upon LEPC request. Incident investigation reports should go to LEPCs without request. LEPCs are already overburdened, so only t he most important information should be required by rule to be provided to the LEPC. In this manner, LEPCs can control the material to be kept and reviewed.

EPA has revised the proposed requirements to allow information to be made available
upon request.

76. Page 131, Shouldn’t this be the same as the name of the analysis that EPA is requiring? Recommend the following edits: “ Safer Technologies and Alternatives Inherently Safer Technologies ( I ST

AA ). ” And “For each process in NAICS codes 322, 324, and 325, a summary of
the safer technology or alternative IST or ISD identified...” and “A brief description of the safer technology or alternative IST or ISD and which type of measure best characterizes it: minimization, substitution, modernization, or simplification; ”

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

77. Page 132, recommend the following edits: “EPA believes that requiring faciliti es to provide to LEPCs summary information on findings from incident investigations, compliance audits, exercises, and safer technologies and alternatives IST employed...” and “Furthermore, EPA believes that disclosing information related to safer technologi es and alternatives IST can help responders and planners to prioritize and allocate response resources.” And “Owners and operators of Program 3 processes must submit all of the above information, as well as the safer technologies and alternatives IST infor mation...”

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

78. Page 132, regarding “EPA believes that disclosing information related to IST can help responders and planners to prioritize and allocate response resources .” It is unlikely that IST information would help formulate the response plan. That is the function of the PHA and other information currently available under the RMP rule. The IST focuses on the alternatives not adopted by the facility.

EPA requires information disclosure of only IST information that is being implemented by the facility. EPA added additional preamble language to explain why IST information may be relevant for emergency responders.

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19 79. Page 133, Table 6: Please replace IST with STAA at (b) (5).

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

80. Page 134, recommend the following edit: “...compliance audits reports, incident investigation
reports, safer technologies and alternatives IST )?”

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

81. Page 134, recommended edit: “ EPA also seeks comment on whether to Alternatively, should

EPA require less information to be shared (e.g., limit incident investigation informat ion to incidents with offsite impacts)?

Change incorporated.

82. Page 134, regarding “a standard format for summary information” Will this (proposed) template be posted to websites immediately, or will it require additional analysis and re

- write before sharing ?

The template would provide a format to guide the owner or operator in developing
information that would be made available.

83. Page 134, this reviewer believes there are national security concerns with four data points in §68.210 Availability of Information to the Public, which proposes that facilities either post on their website or put in a public library:

 Chemical Name

 Chemical Quantity

 SDS

 First Responder POC

 Exercise After Action Reports

This reviewer believes that sharing this information with the public could assist terrorists in selecting targets and/or increasing the severity of an attack by decreasing first responder capability. There are at least four products from the Intelligence Community that support the notion that terrorists are seeking t o target law enforcement and first responders. Recommendation: this reviewer proposes that the following five items are deleted from being shared with the public:

 Chemical Name

 Chemical Quantity

 SDS

 First Responder POC

 Exercise After Action Reports

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20 EPA re moved quantities of chemicals form the information being proposed for public disclosure and is seeking comment on whether there is value in the public having this
information.

EPA will not ask for individual names of responders to be disclosed. We will kee p remaining information elements and seek comment on how to limit disclosure of information that could reveal security vulnerabilities.

84. As stated above, this reviewer has concerns regarding the sharing of all the elements listed in this section with the public. Sharing certain elements is essentially providing a listing of vulnerabilities. These vulnerabilities could be used by a terrori st to either target a certain facility or the vulnerabilities could be exploited to increase the magnitude of an attack.

This reviewer is also concerned that many facilities may not be experienced enough to develop one internal after action report and a second version of the after action report for the public.

Recommend deleting lessons learned and recommendations for improvement from the documentation. Alternatively, EPA could consider being more specific and have facilities develop a separate document (or Appendix to the AAR) that is designed to be shared with the public that just provides a high level description of the scenario and participants.

EPA is seeking comment on how to limit disclosure of information that could reveal security vulnerabilitie s.

85. Page 134, regarding “Should EPA require owners or operators to submit information only upon receiving a request for the information from an LEPC or local responder?” Note: Mathy said during the December 17th call

– that it would be OK to make this on re quest by the LEPC. LEPCs are overwhelmed already.

EPA revised the proposed approach to require submitting information to LEPCs only upon request. EPA revised request for comment

.

86. Page 135, As per previous agreement, chemical volume was not being shared with the public.
Revise as follows: “ Names and quantities of regulated substances held in a process above TQs; ”

Change incorporated.

87. Page 135, regarding “The facility’s accident history required under §68.42;” Does this include specific RMP violation info rmation? Perhaps inlude as a separate category, if appropriate.

No, this requirement does not include any information on violations.

88. Page 136, suggested rewrite of: “EPA seeks comment on whether there is additional information
that should be shared with the public.” To “EPA seeks comment on this approach. Is there additional information that should be shared with the public?”

Change incorporated

.

89. Page 137, sentence to consider for public comment: “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?”

Change incorporated.

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21 90. Page 137, Submission Dates and Updates: Again, this information should be on request, and not required annually. The chemical inventory information is already required to be updated annually

– and that is the important information for emergency preparedness.

EPA requests comment on an alternative to make information available to the public

upon request (see preamble on page 14 3 ).

91. Page 137, Public Meetings: The SERS provided substantial information about the lack of public attendance at these meetings

– particularly, Hydrite and Allied. Please describe the input from the SERs generally regarding t he degree of public participation, and opine about EPA’s expectation of public participation in the absence of an accident. In addition, EPA should consider requiring those meetings only in conjunction with LEPC meetings to ensure more participation and meaningful coordination with the LEPC which has responsibility over this facility.

Added information on page 14 7 to describe comments received by SERs on public meetings.

92. Page 138, regarding “Additionally, EPA is proposing to require regulated facilities t hat have any accident meeting the five

- year accident history criteria of §68.42 to hold a public meeting within 30 days after the accident.” Suggest an option for later date with approval from the state.

EPA is requesting comment on page 14 7 : If EPA fin alizes the requirement to hold post

accident public meetings, should EPA extend the required timeframe to complete the meeting beyond 30 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?

In reference to getting approval from the state, this could add confusion to the requirement because not all states have implementing authority for the RMP rule. EPA added language on pg. 142 to ask whether we should require approval from the implementing agency for any extensions to the 30

- day timeframe.

93. Page 139, recommended edits: Additionally, should EPA consider EPA seeks comment on other options for when to require public meetings

. ?

Change incorporated.

94. Page 139, regarding “For example, rather than require regular public meetings, EPA could require public meetings upon request by LEPCs, emergency responders or the public.” This is the better option for public meetings, and only after an acc ident.

EPA has revised the proposed requirements to require a public meeting only after an accident subject to reporting requirements under §68.42.

95. How is significant property damage defined?

There is no definition for significant property damage in th e existing RMP rule. EPA has not proposed any changes to this term in the NPRM.

96. Page 157, Compliance Dates, Recommend removing either “simplify” or “clarify” in the following sentence. “The provisions of this proposal modify terms of the existing rule, an d, in some cases, simply clarify existing requirements.”

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22 Change incorporated. The reader may have read the word simply as simplify. Removed the word simply.

97. Page 168, recommend the following edits: “...and determine the feasibility of the safer technologies and alternatives 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 safer technologies and alternatives ISTs or ISDs implemented or planned, and annually update the summary as part of the calendar year submission described in §68.205(c).”

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

98. Page 168, Table 15, replace “IST and ISD” with “safer technologies and alternatives”.

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

99. Page 170, recommended edits: “EPA believes that the RMP regulations have been effective in preventing and mitigating chemical accidents in the U nited States; however, EPA is proposing
believes that revisions could in order to further protect human health and the environment from chemical hazards through advancement of process safety management based on lessons
learned.

Changes incorporated.

100. Page 1 72, recommend the following edits: “...feasible inherently safer technology and
alternatives that are considered inherently safer technology or design.”

Revised to address comment with modifications. Furthermore, this is a recurring
comment. We intended to restrict this provision to IST rather than the full STAA.

101. Page 176, Note that the monetized damages (which is only an estimate of the potential maximum amount of benefits) is very close in magnitude to the estimated (non

- maximum)
costs. Given the lack of net benefits, EPA and the public should carefully scrutinize the individual requirements to evaluate their individual costs and benefits.

In other words, for example

- how much will sharing of accident history or IST analyses
contribute to avoided or redu ced accidents? How beneficial will be the public meetings when there have been no accident at the facility?

EPA had no data to project the specific impact of each proposed rule element on the probability and magnitude of chemical accidents. Therefore the RIA evaluates the total
costs of accidents over a 10

- yr period and concludes that the proposed rule, if finalized, would prevent some of those costs.

102. Page 181, regarding “The complete IRFA is available for review in the docket and is summarized here.” Chap ter 7 of the RIA does not appear in the form of an IRFA

– please provide. No small business alternatives are analyzed.

EPA will provide once the SBAR panel report is finalized

.

103. Page 182, recommended edits: “EPA believes that the RMP regulations have been effective in preventing and mitigating chemical accidents in the United States; however, EPA is proposing believes that revisions in order to could further protect human health and the

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23 environment from chemical hazards through the advancement of process sa fety based on
lessons learned.

Changes incorporated.

104. Page 184, Table 21: Please separate government and private entities in this table.

Change incorporated.

105. Page 193, recommended insert: As required by section 609(b) of the RFA, the EPA also convened a Small Business Advocacy Review (SBAR) Panel to obtain advice and recommendations from small entity representatives 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 Office of Management and Budget Office of Interagency Affairs). This proposal was informed 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.

C hange incorporated with modifications. Office of Interagency Affairs was changed to Office of Information and Regulatory Affairs

.

106. Page 194, Could we see a copy of any written NASTTPO comments?

EPA will provide.

107. Page 198, 68.3, replace “feasible” with “practicable” (replace all other uses of feasible in the standard with practicable.

EPA disagrees. See response to IA Comment #2.

108. Pag e 198, 68.3, consider defining

– STAA, accident or incident (based on the comments above)

Safer Technology and Alternatives. The reg. language in 68.67(i) explains the required elements for the safer technology and alternative risk management measures and no additional definition is necessary.
EPA does not use the term STAA in reg. language. The four required elements (IST/ISD, active, passive and procedural measures are all defined in 68.3).

Accident/Incident. These terms are already used in the existing regulation and EPA is not proposing to make any changes to these terms

.

109. Pa ge 200 , recommend the following edit: “ Inherently s S afer technology and alternatives or design means risk management measures that...”

Recurring comment. This definition is in tended for IST/ISD and not the full hierarchy of
controls under STAA.

110. Page 200, For the definition of Inherently safer technology or design, as mentioned previously, the definition of moderation here does not matach the definition listed in the preamble on pages 78 & 79 “..using less hazardous conditions or a less hazardous form, or

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24 designing facilities that minimize the impact of a release of hazardous material or energy...” Perhaps EPA can review for consistency.

EPA uses the term “moderation” in the definition of IST/ISD and does not define
moderation in the reg. text . The preamble discussion is intended to further clarify what
moderation means.

111. Page 210, 68.65(b)

– This changes requirements of an exclusive list versu s the existing language which says, “This information shall consist of at least the following...” ie. OSHA requests adding back the “at least”.

Change incorporated.

112. Page 210, 68.67 (c)(2) “potential failure scenarios” are not defined and are not self

evident

. EPA added additional preamble language on page 52 to provide examples.

113. Page 210, 68.67(c)(8)(i)

– The first sentence clearly states that owner/operators should follow the hierarchy of controls in determining safeguards. The second sentence may give an

o wner/operator an out to use multiple lower level safeguards. Consider qualifying or deleting
the second sentence.

EPA disagrees. EPA is requiring owners or operators to consider use of risk reduction measures using the hierarchy, but is not requiring what specific measures they should use because a decision to implement IST has to take into consideration, other hazards and risks. The use of inherently safer technologies or design may not eliminate all risk. In some cases, it may decrease the hazard, but w ould increase the overall risk or provide less risk reduction than an alternative recommendation (see pg. 100 of preamble citing CCPS. 2009. Inherently Safer Chemical Processes). An option may be inherently safer with regard to some hazards and inherently less safe with regard to others (see pg, 81 of preamble citing CCPS. July 2010. Final Report: Definition for IST); decisions about the optimum strategy for managing risks from all hazards are required. 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. (see pgs. 87

- 88 of preamble citing NAS. 2012. Summary

- The Use and Storage of MIC at Bayer CropScie nce).

114. Page 211, recommend the following edits: “(ii) The owner or operator shall determine the feasibility of the inherently safer technologies and alternatives designs considered.”

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

115. Page 223, (3) Documentation: All references for what to share with the public regarding the exercise summary seem to point to this provision. Please see comments from the preamble:

This reviewer has concerns regarding the sharing of al l the elements listed in this section with the public. Sharing certain elements is essentially providing a listing of vulnerabilities. These vulnerabilities could be used by a terrorist to either target a certain facility or the
vulnerabilities could be exploited to increase the magnitude of an attack.

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25 This reviewer is also concerned that many facilities may not be experienced enough to develop one internal after action report and a second version of the after action report for the public.

Recommend de leting lessons learned and recommendations for improvement from the documentation. Alternatively, EPA could consider being more specific and have facilities develop a separate document (or Appendix to the AAR) that is designed to be shared with the public that just provides a high level description of the scenario and participants.

EPA disagrees. EPA believes the elements for the report described in this section should

remain. However, EPA added language on page 139 of the preamble (in the section discussing information disclosure to the public) seeking comment on how to limit sharing of information that could reveal security vulnerabilities.

116. Page 227, recommend the following edits: “(ii) Whether any inherently safer technology

or al ternative design measures were implemented. (iii) If any inherently safer technology or
alternative design measures were implemented, identify the measure and the technology category (substitution, minimization, simplification, and/or moderation). ”

Recurri ng comment. We intended to restrict this provision to IST rather than the full

STAA.

117. Page 231, recommend the following edits: “(5) Inherently s Safer technology and
alternatives . For each process in NAICS codes 322, 324, and 325, provide a summary of the inherently safer technologies (IST) or inherently safer designs (ISD ) , passive measures, active measures, or procedural measures implemented or...” and “(ii) A brief description of the safer technology or alternative IST or ISD and which safer technology or a lternative IST/ISD type of measure best characterizes it: minimization, substitution, moderation or simplification; ”

Recurring comment. We intended to restrict this provision to IST rather than the full

STAA.

118. Page 23 3 , As noted above, we previously agreed that quantities would not be released publicly. Revise as follows: “(1) Regulated substances information. Names and quantities of regulated substances held in a process. ”

Change incorporated.

119. Page 233, Please see prior comments: this reviewer proposes tha t the following four items are deleted from being shared with the public:

 Chemical Name and Chemical Quantity

 SDS

 First Responder POC

 Exercise After Action Reports

EPA removed quantities of chemicals form the information being proposed for public
disclosur e and is seeking comment on whether there is value in the public having this
information.

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26 EPA will not ask for individual names of responders to be disclosed. We will keep remaining information elements and seek comment on how to limit disclosure of information that could reveal security vulnerabilities.

Third Party Audits

120. One of the rule provisions is for third

- party auditors to maintain the audit report for five years after the completion of this requirement. Why is this for a period of five years? Is this based on industry best practices or based on other rule recordkeeping provisions? Recommend three years for maintaining the audit by the auditing firm.

Five years is consistent with the existing recordkeeping requirements of the RMP rule under §68. 200.

121. EPA is proposing to have the auditor sharing the audit with the implementing agency. Is this a requirement in the current rule for the three year compliance audits?

The current rule does not require audits to be submitted to the implementing agency.

122. EPA is proposing that both the auditor and the owner or operator of the facility provide the implementing agency a copy of the third party audit. What is the rationale for this duplicative reporting? Recommend the owner or operator submit the audit report to the implementing agency.

This requirement is to ensure that the final audit report has not been adjusted by the owner or operator prior to submitting to the implementing agency.

123. EPA proposed that the owner or operator submit a copy of the draft audit to the implementing agency upon request. What is the rationale for the owner or operator to supply this preliminary draft report? Would the owner or operator even have access to the draft version? Recommend that the auditor supply the implementing agency wit h the draft audit
report upon request.

This would allow the implementing agency to verify that the third

- party auditor’s report was not improperly influenced by the owner or operator.

The owner or operator is required to maintain any draft reports under §6 8.59(e)(2) and §68.80(e)(2). The owner or operator can request the auditor to provide copies of drafts.

Incident investigation

124. This reviewer observed that there seems to be a disconnect in the timing between the proposed incident investigation requirements of sections 68.60/81 and the proposed emergency response exercise requirements of section 68.96. The draft proposed rule describes the proposed incident investigation requirements as follows: “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.” The proposed emergency response exercise requirements are described as follows: “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). The purpose of this provision is to reduce the impact of accidents by ensuring that emergency

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27 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 e mergency response plan is up

- to

- date.”

This reviewer had some questions about the proposed requirement for a field exercise within one year of an accidental release. Specifically, it was not clear to this reviewer what the purpose of this field exercise w ould be (for example, would it be to evaluate corrective actions?) or what the benefit would be to the program. This reviewer noted that if the response of the facility and offsite response organizations to an actual event is satisfactory, then requiring an exercise within one year of the incident would seem to add little value, and if the response of the facility and offsite response organizations to an actual event is unsatisfactory, then one year may not be sufficient time to implement corrective action s prior to another exercise. The draft proposed rule would require a facility owner or operator to complete an incident investigation within 12 months of the incident. If the purpose of the follow

- on exercise is to evaluate improvements to emergency resp onse following an actual event, the corrective actions resulting from the incident investigation may not be completed in time to support an exercise within one

year.
The purpose of the incident investigation is to determine the cause of the accident
which in some cases will also include an assessment of response capabilities. However, EPA believes that any lessons learned from the investigation that pertain to response capabilities would not require 12 months to determine and an exercise can be
scheduled be fore completing the incident investigation report.

The purpose of holding an exercise subsequent to the accident is to incorporate lessons learned from the response to the accident into the emergency response exercise program. We believe that there are alw ays some lessons learned following a response.

125. Regarding the incident investigation and public meeting after an accident, what is the facility was destroyed or closed down permanently after the accident. Would the facility still have to comply with the req uirements set forth in this rulemaking?

Yes

- EPA is proposing to amend §68.190 to require that accidents be reported and incident investigation reports be completed before the owner or operator can deregister the process or stationary source. See discussi on in preamble for decommissioned processes.

EPA is proposing to require a public meeting within 30 days of an accident. This would still apply if the process is destroyed or source permanently closed. EPA added additional preamble language on pg. 140 to clarify requirements for public meetings

.

126. Page 37, the preamble mentions “basic” incident causes. This is the first only use of “basic” in that context. Up to that point, the preamble uses both “fundamental” and “root” cause. The language should remain consistent to avoid confusion.

The reference to “basic” is because this language is quoting NJ TCPA requirements.

127. Much of the incident investigation and third

- party audit requirements depend upon the nature of the incident that occurred and its consequenc es. Unfortunately, the preamble confuses the reader by using the words “accident,” “incident,” “accidental release,” and “catastrophic release” almost interchangeably. The regulatory text does not define “accident”

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28 or “incident” so the preamble should no t use these words. Furthermore, the preamble should be absolutely clear when speaking about a release as to whether it is accidental or catastrophic.

All of these words are used in the current reg. text. Both accidental release and catastrophic release ar e defined in 68.3. The definition of catastrophic release is the subject of extensive discussion in this proposal. The current rule differentiates between accidents (i

. e

. events that have had specified impacts) and incidents (which also include
events with no impacts but could have had impacts under slightly different circumstances). Safer Technology

128. The preamble language on Safer Technology and Alternatives Analysis (STAA) is very confusing. References to STAA, IST, and ISD are inconsistent which creates confusion about what EPA is proposing. This also creates confusion regarding certain examples provided. For instance, the example using the CSB Tesoro investigation mentions safer technologies, but then says that using of safer materials is inherently sa fer. OSHA believes that this is safer alternative, but not inherently safer.

While we agree that use of corrosion resistant materials may not be viewed by some as inherently safer, we believe it is an example of a passive design strategy which is one of

t he strategies of the hierarchy controls. The characterization in this paragraph is from the CSB findings.

129. STAA is an acronym for Safer Technology and Alternatives Analysis, but it appears that the only analysis proposed is one on inherent safety.

EPA is pr oposing a STAA analysis. However, much of the discussion in the preamble is focused on IST because this is an incremental change to the current PHA requirements that already address passive, active, and procedural controls.

130. We would like to better understa nd the pros and cons of potentially applying the Safer Technology and Alternatives Analysis (STAA) requirements of the proposed rule to water supply and/or wastewater treatment facilities, which have been identified by some outside experts as being potenti al sources for high

- consequence chemical releases and also having significant opportunities for low

- cost safer alternatives. Based on the summary of comments on the RFI, it sounds like AMWA was most concerned about EPA imposing requirements that force ado ption of specific IST alternatives ( as well as highly burdensome analytical requirements, which seemed secondary to their first concern), which is not what EPA would propose for any covered

sector.

EPA focused this requirement on facilities that have comp lex processes and a relatively high frequency of accidents.

The water and WWT sector have the lowest accident history frequency (0.04 accidents/facility over 10 yrs

. ) as compared to chemical manufacturing (0.36 accidents/facility over 10 yrs.), pulp/paper (0.66. accidents/facility over 10 yrs

. ), and refineries (1.08 accidents/facility over 10 yrs

. )

RMP deregistrations for this sector indicate that many water and WWT facilities have already converted from gaseous chlorine to other disinfection technologies.

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29 131. We would strongly recommend that EPA consider requiring facilities to send completed
STAA documentation to EPA. E ven if EPA does not currently have the resources or anticipate getting sufficient resources for full review, this would 1) enable future sampling to assess whether and how facilities are broadly complying and whether guidance, reminders, or other
remedies might be need to ensure robust, meaningful compliance and 2) send a stronger signal (even if not backed up by full enforcement) to covered facilities that they shouldn't cheat or shortcut compliance. If there are strong reasons why EPA will not propose sub mitting these documents, we'd like to discuss and better understand. If the additional burden of sending in documentation is an issue, did EPA consider just requiring submission from a subset of facilities
that have accidents or near misses?

EPA is concer ned that in many cases, submission of STAA documentation would equate to full PHAs being submitted to the EPA. This would also have implications for managing

CBI

- much of the data would likely be classified as CBI and require special handling and storage by agency personnel.

EPA inspectors can access information from PHAs as necessary as part of inspection activities or following reportable releases.

For sectors regulated under this provision, the full PHA can be quite large. However, we have added language to the end of this section requesting comment on whether to require the STAA be submitted.

132. Do the STAA requirements apply to all program 3 facilities? It looks like NAICS codes 322, 324 and 325 cover subsets of NAICS codes that together include the unive rse of program 3 facilities, but we're looking for EPA confirmation. If that is the case, we would suggest saying that in the preamble.

No. The provision does not apply to all Program 3 facilities.

There are a total of 10,628 facilities in Program 3.

The provision would only apply to a subset of 1,544 Program 3 facilities in NAICS codes 322 (68 facilities), 324 (140 facilities), and 325 (1,336 facilities).

133. Is EPA's proposed requirement for facility owner/operators to explain why a potentially
safer altern ative is not being adopted comparable in rigor to Contra Costa County's requirement that the source "document the basis for this conclusion in meaningful detail" (EPA description from the preamble)?

The Contra Costa County's regulations include more extens ive documentation of feasibility than those proposed in this notice.

134. Where are STAA documents produced by facility owner/operators stored and for how long? Does a sufficiently senior official (to ensure accountability) need to sign off on the
documents?

The PHA requirements would apply to STAA documentation. The owner/operator must retain PHAs and updates or revalidations for the life of each process. The rule does not specify where records must be maintained.

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30 EPA does not specify requirements for senior officials sign off. However, §68.67(e) establishes a system for addressing, documenting, implementing and communicating how the o/o resolves recommendations from the PHA revalidation/update.

135. Would STAA documents be available to EPA, OSHA, and/or other ins pectors who could verify that the owner/operators are doing a robust job at meeting the STAA requirements (in the rare cases when inspections happen)?

- What other options has EPA considered to ensure compliance?

Yes, like other aspects of the Risk Manage ment Program rule requirements, documents must be available to the inspector.

EPA inspectors would be able to review RMPs to evaluate compliance with this provision (if finalized). EPA can also request documents under CAA §114 authority.

136. Why is 4 years nee ded for compliance with this requirement (STAA)? Has EPA
considered a shorter deadline?

EPA is proposing four years to allow sufficient time for most facilities to conduct the STAA in conjunction with their normal PHA revalidation cycle which occurs every five

years.

137.

Information Sharing

138. EPA is proposing to two categories of information sharing: §68.205 Availability of information to the LEPC and emergency response officials and §68.210.

This reviewer supports EPA’s proposal to share information with first responders and LEPC members who have a need to know in order to assist with community preparedness.

However, This reviewer has concerns regarding EPA’s proposal that facilities either post on their website or put in a public library (§68.210):

 Chemic al Name

 Chemical Quantity

 Safety Data Sheets

 First Responder Point of Contact Information

 Exercise After Action Reports (AAR)

Availability of information to the public could assist terrorists in selecting targets and/or increasing the severity of an attac k by decreasing first responder capability. Having facilities share this information would be precedent setting

– currently the CFATS, PSM, and ATF (liscensee/permittee) programs do not share this level of detail with the public due to security

concerns. T he EPA’s proposed level of detail may inadvertently provide a roadmap to assist terrorists. We note that placarding is a good example of balancing safety and security concerns. Through placarding, the public is aware of the hazard and can prepare accordin gly but is not provided specifics that can assist terrorists in creating a targeting list.

Chemical Name and Quantity

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31 This reviewer believes that online access to a facility’s chemical inventory and chemical quantity would make facility targeting by terr orists much easier. DHS has maintained throughout the EO that first responders and LEPC members with a need to know should have access to information

– but that when it comes to the public, a balance of security is needed.

SDS

SDS sheets provide informati on beyond chemical name and quantity. This information could be exploited by terrorists.

First Responder POC

This reviewer is concerned that EPA’s proposal to provide first responder information to the public could provide terrorists with additional inform ation to increase the impact of the incident by potentially:

 Diverting first responders with multiple incidents in their area of responsibility;

or

 Prior to an incident, diminishing the capabilities of first responders; or

 Planning a second incident where first responders gather.

There have been several intelligence products

- from DHS and the FBI and the National Counterintelligence Center

- discussing how first responders may be potential targets for

terrorists.

Exercise After Action Reports

Sharing cert ain exercise after action report elements is essentially providing a listing of vulnerabilities. These vulnerabilities could be used by terrorists to either target a certain facility
or the vulnerabilities could be exploited to increase the magnitude of a n attack.

This reviewer is concerned that many facilities may not be experienced enough to develop one internal after action report and a second version of the after action report for the public.

EPA removed quantities of chemicals form the information b eing proposed for public disclosure and is seeking comment on whether there is value in the public having this
information.

EPA will not ask for individual names of responders to be disclosed. EPA revised LEPC
information elements to remove information tha t may be specific to an individual. We will keep remaining information elements and seek comment on how to limit disclosure of information that could reveal security vulnerabilities.

RIA Comments

139. Perhaps EPA can take another look at the third party compliance audit costs. The costs appear low to DHS (See p. 38 of the RIA). This reviewer suggests that compliance costs are up to 60,000 dollars for complex facilities. (5 people for one week is 200 labor hours. At 200 dollars per hour, this comes out to 40,000 dollars already. Then you still need to add travel and per diem costs on top. In addition, time is needed to write up the report.

## Summary of Interagency Working Comments on Draft Language under

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32 The estimates EPA received through comments on the RFI inc luded all auditor fees and expenses paid by the regulated company to the third party auditor, including fees for auditing, report writing, travel, etc. EPA acknowledges that some facilities will face costs, and perhaps even auditor fees alone, up to $60,00 0 or higher, in order to comply with this provision. However, EPA’s estimate for both simple and complex facility auditor fees represents an average for each group of facilities, not a maximum estimate for any one facility. Within EPA’s economic model, the complex facility category includes some very large facilities containing large numbers of regulated processes, such as petroleum refineries, but also many smaller chemical manufacturing facilities with only 1 or 2 covered processes. The average number of covered processes for the complex facility category is 2.6, and the average number of processes for the simple category is 1.2. Therefore, EPA believes that its estimates for auditor fees represent reasonable central estimates for each category of facility . EPA added additional language to the RIA to clarify that the estimates include all third

- party auditor fees, including travel

expenses.

140. Perhaps EPA can take another look at travel expenses. The 100 dollars per day for travel and expenses seems low to DH S (See p. 50 of the RIA). The GSA rate for lodging in Washington, DC is at least 170 dollars. MIE is 69 dollars in DC. The GSA standard rate for lodging in non

urban areas is 89 dollars. In addition the MIE standard rate is 51 dollars.

Added the foll owing footnote on page 52 of the RIA: $100 per day is considered a blended average of likely travel expenses. GSA per diem rates generally suggest hotel rates of between $89 to upwards of $200 depending on the area and time of

year. Meals and incidental expenses are in addition to t hat amount. However, state and local officials are generally not allowed per diems if travel and training is within 50 miles of home offices and private employers may seek to take training that is close to their location to minimize travel or overnight st ays.