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: 

NATTSPO comments 

0679.pdf

OK MERC 

comments 0641.pdf

EO 12866 

Interagency Comments RMP_EPA response.docx

EO 12866 

Interagency Comments RMP 2_EPA response.docx

EO12866_RMP 

Modernization 2050-AG82 NPRM Proposal&

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

provision.

We are working on revising the RIA to remove 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.gov
Attachment: EO 12866 Interagency Comments RMP_EPA response

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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 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 

added a sentence on page. 26 of the preamble indicating that we may address other 

chemical hazards at a later 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 Management (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 estimates?

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: “...and 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 

accounts for these elements). However, to be consistent with the Hierarchy of controls
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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. Page 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 serious 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 where 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 resultant 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 this 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 hazards 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 about 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 this 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 

added 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.”
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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 the 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 asking 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” or “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 catastrophic 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 reported (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 definition 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 the 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” 

not 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 environmental 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 under 68.42. 
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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 that 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 not 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 factors.

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 completion 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 intended 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 catastrophic 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 now 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 miss 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 clarification 

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 

authority 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.
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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 private 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 Formaldehyde 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/BILLS111s1660enr/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 shall 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-based 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 regulations 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 lab 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 these 
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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 relate 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 first 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 thirdparty 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 implementing 

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 thirdparty audit is necessary.

However, as a result of SBAR panel recommendations, EPA is requesting 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 provision 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 
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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?

Change 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 contractual 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 the 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 whether 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 without 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 ensure 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 
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auditors are themselves, or managed by or report to, attorneys.” EPA 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 trying to perform a proper audit, but would subject them to 

litigation liability. What is the justification for such a provision?

The proposed requirement is intended to prevent the o/o from shielding regulatory 

compliance documents under the guise of attorney-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-regulatory self-audits. 

Both the third party audit and the current compliance 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 privilege, third party audit documentation is 

not prepared in anticipation of litigation any more than any other mandatory record. 

Also, DOJ, EPA Regions, and EPA/OECA have included essentially the same provision in 

enforcement settlements without legal concerns. 

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 timeframe.

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 hazards 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 here 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.
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EPA does not define moderation in the reg. text on pg. 199. The 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...”

This 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 to 

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 whether 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 decide 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 implementation 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 improve 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 considering 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 is 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 include 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 particular technology IST.

Change incorporated with modification.
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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, Suggested 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 tThe 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 facility 

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 firms 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 those 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 consider 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 on 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 substances to be produced for the client firm. The STAA allows for 

multiple inherently safer strategies.

The proposed provision already minimizes impact to small businesses by targeting 

industry sectors that have a low percentage of small facilities (pulp/paper- 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 alternative. 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 jeopardize the financial stability of the firm. Only the 
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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 out 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 technologically 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 definition 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 factors. 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...”

Changes 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 shares chemical safety and 

security best practices, including safer alternatives.
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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 requirements, 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 

includes 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 small 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 that local public emergency response capabilities are 

not adequate, the ultimate burden of providing for an appropriate response to releases of 

regulated substances from the source should rest with the owner or operator.” We don’t 

believe the 1996 rule was predicated 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 

universally 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 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 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 proposing 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 burdens. For example, coordination now becomes an annual requirement for notification 
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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 

protect 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 assessed 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 to 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 and 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 improve 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 NRClicensed reactors, including 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 shown 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 Research 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 Ooperators 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 response 

capabilities ensure the feasibility of the emergency preparedness plan. 
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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 addressed 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, discussed 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 here 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 terrorist 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 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 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.
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66. Page 122, This reviewer has concerns that sharing this 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 evaluation 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 

sharing 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 incorporated.

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 the 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 response 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 consistently 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 newly 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 on 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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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.

Comments 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 facilities 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 meeting is open to the 

public. EPA added the following sentence on page 142 as clarification: Stationary 

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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(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? 

Please 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 looking at an 

earlier version 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 Information: 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 the 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 (ISTAA).” 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 facilities 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 technologies 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 information...”

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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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 information 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 to 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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EPA removed 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 keep 

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 terrorist 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 vulnerabilities.

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 request 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 information? 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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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 143).

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 the 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 147 to describe comments received by SERs on public 

meetings.

92. Page 138, regarding “Additionally, EPA is proposing to require regulated facilities that 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 147: If EPA finalizes the requirement to hold postaccident 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 accident. 

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 the 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, and, in some cases, 

simply clarify existing requirements.”
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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 United 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 172, 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 reduced 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.” Chapter 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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environment from chemical hazards through the advancement of process safety 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.

Change 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. Page 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. Page 200, recommend the following edit: “Inherently sSafer technology and alternatives 

or design means risk management measures that...”

Recurring comment. This definition is intended 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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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 versus 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 selfevident.

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 

owner/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 would 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 CropScience).

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 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 terrorist to either target a certain facility or the 

vulnerabilities could be exploited to increase the magnitude of an attack. 
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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 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 alternative 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).”

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

STAA.

117. Page 231, recommend the following edits: “(5) Inherently sSafer 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 alternative 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 233, 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 that 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 

disclosure and is seeking comment on whether there is value in the public having this 

information.
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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 with 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 §68.59(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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response personnel understand their roles in the event of an incident, that local responders are 

familiar with the hazards at a facility, and that the emergency response plan is up-to-date.”

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 would 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 actions 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 response 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 before 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 always 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 requirements 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 discussion 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 consequences. 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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or “incident” so the preamble should not 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 are 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 safer. 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 

the 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 proposing 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 understand 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 potential 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 adoption 

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 complex 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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131. We would strongly recommend that EPA consider requiring facilities to send completed 

STAA documentation to EPA. Even 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 submitting 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 concerned 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 universe 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 alternative 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 extensive 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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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 inspectors 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 Management 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 needed 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):

 Chemical 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 attack 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. The 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 accordingly but is not 

provided specifics that can assist terrorists in creating a targeting list. 

Chemical Name and Quantity
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This reviewer believes that online access to a facility’s chemical inventory and chemical quantity 

would make facility targeting by terrorists 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 information 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 information 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 certain 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 an 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 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. EPA revised LEPC 

information elements to remove information that 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. 
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The estimates EPA received through comments on the RFI included 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 $60,000 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 DHS (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 nonurban areas is 89 dollars. In addition the MIE standard rate is 51 dollars. 

Added the following 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 that 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 stays.