May 4, 2016 RMP Modernization Rule
- State/Local Consultation Teleconference Meeting Attendees: Office of Land and Emergency Management (OLEM)/Office of Emergency Management (OEM): Patty Gioffre, Kim Jennings, Jim Belke, Beth Bosecker, Kathy Franklin Office of Land and Emergency Management (OLEM )/ Policy Analysis and Regulatory Management Staff (PARMS) : Gerain Cogliano , Chris Prins Office of the Administrator (AO)/Office of Congressional and Intergovernmental Relations (OCIR): Jack Bowles, Arnita Han non Christmon, and Demond Matthews US Conference of Mayors: Judy Sheahan, Rich Anderson National League of Cities: Carolyn Berndt National Association of Counties: Julie Ufner Local Government Advisory Committee/Environmental Justice Workgroup: Dr. Hect or Gonzalez Statement of Concern : It is important when you respond to an incident, that a local government need s to know what to do and that public will know what to do. Emergency response plans, and any changes made to those plans, must be written in a manner that the community and the public will understand. Organizations representing state and local governments have not been properly briefed and the comment due date is May 13. We need more time to review. Julie Ufner : Local communities and governme nts would be impacted by this proposal. Some have limited staff and are very small and don’t have the ability to do training and get the proper equipment for response. Rich Anderson: Some of the charts in the presentation material give some pause and s om ehow a decision was made not to do a Federalism consultation because it was not required. Local governments have a part in this rulemaking process especially some of those in Program 2, which is showing a low count of regulated facilities. In every local ity, we would be required to be responders. We also have a dual role
- as regulated facility and as part of a response team. Many drinking water treatment staff are often first responders. Our organizations take on several roles: city who coordinates em ergency response, emergency responders , and part of the regulated sources. The ICR (Information Collection Request) lacks sufficient cost data on local governments. Consultation with these entities should happened before issuing a proposed rule. The Fed eral government delegates some programs to states. It appears that facilities in non
Federal OSHA states are in Program 3 on Slide 6. There are just about 10,000 facilities in that Program. How does that compare with approximately 54,000 municipal water systems and 20,000 waste water treatment plants which total some 70,000 facilities that could be impacted?Jim Belke: The proposal does not alter the universe of regulated facilities. We are not adding any new chemicals, changing reporting threshold quantities and changing the scope of facilities covered. Many water treatment facilities are not covered by RMP because they do not have the threshold quantity of regulated substance on
- site. The list of regulated chemicals covers chemicals such as chlorine , ammonia and sulfur dioxide. The status of OSHA PSM (Process Safety Management standard) coverage affects whether a facility is covered under RMP Program 2 or 3. Facilities subject to the OSHA PSM standard are subject to RMP Program 3 re quirements . Gove rnment - run facilities such as municipal water treatment facilities that are covered under OSHA state plans are in Program 3. Municipal state employees in Federal OSHA states are not covered under PSM, therefore they fall into Program 2. Q. Who is qualif ied to do third party audits? Jim Belke: The proposal sets out qualification and independence criteria for third party auditors. The proposal specifies that a professional engineer must be part of the audit team, the auditors must be qualified to do audi ts and they must be knowledgeable about the facility’s process. There are no more specific criteria proposed for qualification. We are seeking comment on the criteria. Small businesses through our small business review process, have indicated some concerns about the independence criteria and how it would affect the availability of qualified auditors. Q: How would one find a third party auditor? Jim Belke: There are existing auditors that perform process safety audits that could be third party auditors. Some regulated facilities already use third party auditors to conduct the required comp liance audit, although they are not required to. EPA did not attempt to evaluate the existing capacity of firms that provide process safety auditing services, and we are interested in receiving public comments on this issue. Patty Gioffre of EPA/OEM then made a presentation on the RMP Modernization Rule, see Powerpoint Presentation below.

# Risk Management Modernization Rule STATE/LOCAL CONSULTATION MAY 4, 2016

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# Agenda Background Overview of proposed rule provisions and costs State/local government impact Additional resources Questions

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# Background On August 1, 2013, President Obama issued Executive Order (EO) 13650: Improving Chemical Facility Safety and Security following several catastrophic chemical facility incidents in the United States

◦ Focus is to reduce risks associated with hazardous chemicals to owners and operators, workers, and communities by enhancing the safety and security of chemical facilities 

## The keys areas of emphasis under the EO are:

◦ Strengthening community planning and preparedness, ◦ Enhancing federal operational coordination, ◦ Improving data management, and ◦ Modernizing policies and regulations
◦ EPA issued a request for information (RFI) on July 31, 2014, and ◦ Convened a Small Business A dvocacy Review panel on November 4, 2015

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# Existing regulatory framework The Risk Management Program is one of several programs that address chemical facility safety and security:

◦ OSHA Process Safety Management (PSM) standard - Management program for highly hazardous chemicals aimed at preventing and minimizing occupational/onsite exposure ◦ Emergency Planning and Community Right - to - know (EPCRA) requirements - Local emergency planning and preparedness, emergency release notification, community right - to - know: provision of hazardous chemical storage inventory and toxic chemical release inventory to the community and first responders ◦ CAA Section 112(r)(1) general duty clause - Facility owner/operators have a general duty to prevent and minimize releases ◦ Chemical Facility Anti - terrorism Standards ( CFATS) - DHS security requirements ◦ ATF requirements for explosives ◦ State/local requirements (e.g., NJ, Contra Costa County, CA regulations)

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# Risk Management Program rule

◦ Promulgated in 1996 under Section 112(r) of the Clean Air Act Amendments ◦ Applies to all stationary sources with processes that contain more than a threshold quantity of a regulated substance (approx. 12,500 sources)
◦ Includes a wide variety of industry sectors including: refining , chemical manufacturing, energy production, ammonia refrigeration, water treatment, bulk storage, chemical distribution, agricultural retail, and chemical warehouses 

### ◦ Requires the source to develop a Risk Management Plan (RMP)
◦ Addresses elements aimed at preventing accidental releases and reducing the severity of releases that occur ◦ Prepare and submit an RMP to EPA at least every 5 years 

### ◦ Covered processes fall within one of three prevention program levels based on: ◦ The potential for offsite consequences from a worst - case accidental release; ◦ Accident history; and ◦ Regulation under OSHA PSM

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# Program levels PROGRAM 1

642 Facilities Processes not eligible for Program 1, not subject to Program 3 ◦ Mainly water & wastewater treatment in Federal OSHA states ◦ Additional hazard assessment, accident prevention, management, and emergency response requirements 

## PROGRAM 2 1,272 Facilities*

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT *Analysis reflects OSHA change to PSM retail exemption issued July 2015. See OSHA PSM Retail Exemption Policy at: https ://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=2 9528 6 

### Processes subject to OSHA’s PSM or in one of 10 specified NAICS codes ◦ Larger facilities or those with complex processes ◦ Examples include: refining, chemical manufacturing, energy production, water treatment ◦ Covered by OSHA’s PSM accident prevention program and include additional hazard assessment , management , and emergency response requirements 

## PROGRAM 3 10,628 Facilities * Processes that would not affect the public in the event of a worst - case release & no accidents with offsite consequences in the last five years ◦ Small quantities of flammables, less volatile toxics ◦ Limited accident prevention including hazard assessment and emergency response requirements

# Program level comparison

PROGRAM 1 PROGRAM 2 PROGRAM 3 • Worst case analysis • 5 - year accident history • Document management system • Worst case analysis • 5 - year accident history • Document management system • Worst case analysis • 5 - year accident history • Document management system Prevention Program Certify no additional prevention steps needed • Safety information • Hazard review • Operating procedures • Training • Maintenance • Incident investigation • Compliance audit • Process safety information • Process hazard analysis (PHA) • Operating procedures • Training • Maintenance • Incident investigation • Compliance audit • Management of change • Pre - startup review • Contractors • Employee participation • Hot work permits Emergency Response Program Coordinate with local responders Develop plan/program and coordinate with local responders Develop plan/program and coordinate with local responders

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# Overview of Proposed Revisions P1 P2 P3 Third - part y a udits (applies to the next scheduled audit after an accident) [Estimated 150 accidents/year] √ √ Incident Root Cause Analysis (only for facilities with accidents/near misses) [Estimated 300 incidents/year] √ √ Safer Alternatives Analysis (applies to a subset of P3 in certain NAICS codes*) [Estimated 1,692 Facilities/4,308 Processes] √ Coordinating Emergency Response Program Requirements with Local Responders √ √ Emergency Response Exercises √ √ Information Sharing √ √ √

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 8 *Applies to paper manufacturing, petroleum and coal products manufacturing, and chemical manufacturing facilities

# Third

- party compliance audits Proposed revisions require all P2 and P3 facilities to conduct a third party audit in lieu of a compliance audit following an RMP reportable accident.*

◦ Must be completed within 12 months of an RMP reportable accident or within 3 years of completion of the previous compliance audit, whichever is sooner. ◦ Note that this audit and its schedule are independent of the incident investigation requirement and its schedule. 

### ◦ Same scope as the current compliance audit provisions (i.e., audit prevention program implementation for all covered processes).
◦ EPA is proposing criteria for auditor independence, impartiality, and competence.

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 9 * RMP reportable accident means an accidental release meeting the criteria in § 68.42(a) from a covered process at a stationary source (i.e., includes accident with deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage).

# Incident investigations and root cause analysis Proposed revisions (Applies to P2 and P3):

◦ Revise incident investigation requirements to:
◦ Clarify that it applies to a catastrophic release (i.e., an RMP reportable accident) or an incident that could reasonably have resulted in a catastrophic release (i.e ., a near miss)
◦ Require a root cause investigation (i.e ., identify the fundamental reasons why an incident occurred and the correctable failures in management systems )
◦ Require a report be completed within 12 months (unless extension approved, in writing, by implementing agency ) 

### ◦ Clarify the definition of catastrophic release to be consistent with reportable accidental release (i.e., an accident with deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage)
◦ Add a definition of root cause to mean a fundamental, underlying, system related reason why an incident occurred that identifies correctable failure(s) in management systems

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# Safer technology and a lternatives analysis (STAA)

Would apply to P3 facilities in NAICS codes:

◦ 322 (paper manufacturing), ◦ 324 (petroleum and coal products manufacturing), and ◦ 325 (chemical manufacturing) 

### The STAA would consider, in the following order of preference:

◦ Inherently safer technology (IST) or design, ◦ P assive measures, ◦ Active measures, and ◦ Procedural measures 

### ISTs are those measures that reduce or eliminate the hazards and include minimization , substitution of less hazardous chemical, moderation of the process, and simplification of the process/procedures Owner/operator would not be required to implement any prescribed technology; however EPA is requesting comment on whether the rule should require implementation EPA is proposing several definitions including feasible

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## Proposed revisions to require the source to conduct a STAA and determine feasibility of inherently safer technologies and designs considered:

# Local coordination Proposed revisions require all P2 and P3 facilities to: ◦ Coordinate annually with the Local Emergency Planning Committees (LEPCs)/emergency responders and ensure response capabilities exist ◦ Document coordination ◦ LEPCs/emergency responders can request source to prepare an emergency response (ER) program What are the outcomes of “coordination”?
◦ “Non - responding” source – coordination indicates that local public response capabilities are adequate to respond, appropriate notification mechanisms are in place, and local authorities have not requested that owner develop ER program ◦ “Responding” source – coordination indicates that local public response capabilities are not adequate to respond, or local authorities request that owner develop ER program ◦ F acility must develop an emergency response program following § 68.95

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 12 What is “coordination”?

◦ Facility and local responders meet and discuss response needs, capabilities, and roles: • Determine resources needed to appropriately respond to regulated substance releases at facility • Determine resources available from facility and local responders • Identify capability gaps and develop plans to address • Decide whether facility or local responders will respond to releases of regulated substances • Assign response action roles and responsibilities

# Exercises Proposed revisions : Require facilities to test their emergency response program through notification, tabletop, and field exercises (Applies to all P2 and P3)

◦ Require “responding” and “non - responding” facilities to conduct an annual notification exercise ◦ Require “responding” facilities to conduct the field and tabletop exercises and invite local responders to participate: Tabletop exercise ◦ Frequency : Annually except in the year of a field exercise ◦ S cope : Same as field exercise without actual mobilization of personnel & equipment An exercise evaluation report must be completed within 90 days of each exercise.

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### Field exercise

◦ Frequency : Every 5 years and within one year following a reportable accident ◦ S cope : Test procedures for notification, evacuation, medical treatment, communications systems, emergency response personnel mobilization (including contractors, if appropriate), coordination with local responders, equipment deployment, and other actions identified in ER program as appropriate

# Information sharing Proposed revisions add new disclosure elements for all facilities:

◦ To LEPCs and emergency responders ◦ To general public ◦ Public meetings within 30 days of an RMP reportable accident 

## The information should be conveyed without revealing CBI or trade secret information Any summary information should adequately explain the findings, results, or analysis being provided while avoiding technical jargon

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# Information sharing

- LEPC R equire summaries of chemical hazard information to be provided to LEPC or local emergency response official, upon request: ◦ Information on RMP regulated substances−names and quantities of regulated substances held in a process ◦ Five - year accident history information (reported under § 68.42)
◦ Compliance audits ◦ Incident investigation reports (with root cause findings )
◦ IST implemented or planned to be implemented, if applicable ◦ No requirement to implement, but if a source does implement ISTs it is useful information for LEPCs/first responders to have in their local emergency planning efforts ◦ Exercises, including schedules and reports

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# Information sharing

- public Require chemical hazard information to be provided in an easily accessible manner (i.e., posting on a company website , public file sharing website, or social media website, or placing a file at a public library or local government office) 

## ◦ Names of RMP regulated substances held in a process ◦ Safety data sheets (SDS) for all RMP regulated substances located at the facility ◦ Emergency response program summary information ◦ Five - year accident history information reported under § 68.42 ◦ Exercise summary information
◦ LEPC contact information

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# Information sharing

- public meetings Proposed revisions would require a public meeting to be held within 30 days of an RMP reportable accident. The meeting would address:

◦ Information about the accident;
◦ Other relevant chemical hazard information (such as what would be provided to the public) 

## Can be held in concurrence with a regularly scheduled LEPC meeting that is open to the public Facilities must notify the community about the public meeting and can use various methods including:

◦ Publishing a notice in a local paper,
◦ Social media, and/or
◦ Fliers in public places, like the local library

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# Estimated unit costs (in actual $)* Type of Cost Estimated Compliance Cost * Notes Third - party Compliance Audits $18,000 to $49,000 Applies to facilities with P2 and P3 processes after an RMP reportable accident. Incident Investigation Root Cause Analysis $2,000 to $5,000 Applies to facilities with P2 and P3 processes only after an RMP reportable accident or a near miss. STAA $29,000 to $49,000 per process Applies to facilities in select NAICS codes with P3 processes. Occurs once every 5 years. Coordination with local responders $300 to $400 Applies to P2 and P3 facilities. Occurs annually. New Responder Costs (estimated costs that may apply if a current non - responding facility becomes a responding facility as a result of local coordination activities) Develop Plan $2,000 to $8,000 Initial year costs. New responders will also be subject to exercises costs below. Train employees $11,000 to $65,000 Purchase equipment $50,000 to $60,000 Emergency Response Exercises (P2 and P3) Notification drills $100 to $200 Applies to both responders and non - responders. Occurs annually. Tabletop exercises $5,000 to $24,000 Applies to responding facilities. Tabletop exercises occur annually except in the year of a field exercises which occurs once every five years. Field exercises $8,000 to $66,000 Information Sharing (All RMP facilities) LEPC/TEPC/local responders $4,000 to $10,000 These ranges represent the combined costs for all required reports. Costs will vary on an annual basis upon occurrence of regulatory requirements (e.g., compliance audits, incident investigations). Public $200 to $1,600 Update annually. Public meetings $2,000 to $4,000 After an RMP reportable accident. * Sources for estimates include technical literature, public comments, other similar programs, RMP database, and EPA labor models

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# How Could This Proposed Rule Impact State and Locals? Governments could be impacted by this proposal in 2 ways:

◦ As a local government when conducting emergency response or emergency preparedness activities under EPCRA • LEPCs or local emergency responders would coordinate with RMP - regulated facilities for community planning and preparedness activities • The LEPC or local emergency response officials would be able to request specific information from the facility for planning purposes • The local emergency responders may be requested to participate in exercises by RMP - regulated facilities 

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

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 19 LEPCs can also request RMP - regulated facilities to develop an emergency response program as described in Subpart E of the rule (40 CFR 68.95)20 

# Non - federal Emergency Response Entities Under EPCRA SERCs TERCs LEPCs TEPCs State Emergency Response Commissions Tribal Emergency Response Commissions Local Emergency Planning Committees Tribal Emergency Planning Committees SERCs are appointed by the governor of each state to establish LEPCs. TERCs are established by the Chief Executive Officer of the tribe . TERCs have the same responsibilities as SERCs in the Tribal region. LEPCs are established by the SERC in each state. TEPCs are established by the TERC. They have the same responsibilities as LEPCs in the tribal region. Responsibilities • Establish and supervise LEPCs / TEPCs • Review local emergency plan • Establish mechanisms to collect hazardous chemical inventories and information on chemical releases from facilities • Establish procedures to process public information requests Responsibilities • Prepare and review chemical emergency response plan • Coordinate responses to emergency releases, serving as a focal point in the community for information and holding discussions about chemical risks in the community • Establish procedures to process public information requests

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# Additional resources RMP proposed rule webpage: http :// www.epa.gov/rmp/propose d - changes - risk - management - program - rmp - rule Submit comments: www.regulations.gov Docket ID# EPA - HQ - OEM - 2015 - 0725 

## Comments close May 13, 2016 EO activities under EO 13650: http://www.epa.gov/rmp/executiv e - order - improving - chemical - facility - safety - and - security EO 13650: https://www.osha.gov/chemicalex ecutiveorder/index.html Report for the President: Actions to Improve Chemical Facility Safety and Security –

A Shared Commitment : https://www.osha.gov/chemicalex ecutiveorder/final_chemical_eo_st atus_report.pdf

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# Questions?

OFFICE OF LAND AND EMERGENCY MANAGEMENT OFFICE OF EMERGENCY MANAGEMENT 22May 4, 2016 RMP Modernization Rule
- State/Local Consultation Teleconference Meeting Questions and Answers after the Presentatio n: Q: For government
- run facilities and first responders, it would have been nice to have a consultation on the proposed rule earlier. Would the comment period be extended? We will provide a request to extend the comment period. Patty Gioffre: Our mana gement has not granted previous requests to have the comment period extended. This rule is an Agency priority and we are trying to move the process forward. Q: EPA is usually involved in Federalism outreach activities due to its delegation of programs. Is there a map available that shows where all the RMP facilities are located? That would help us in targeting outreach and concerns. Jim Belke: Yes, there are maps, bu t that is considered security sensitive information and the Agency is not willing to post any state or local maps showing locations of RMP facilities that could potentially be used by criminals or terrorists. Q: How would we let facilities know about the new requirements? Jim Belke: We regularly do outreach to organizations that represent local governments. For example, we meet and talk with the National Association for SARA Title III Program Officials (NATTSPO) that specifically deal s with state and lo cals involved in emergency planning issues. There are several trade associations representing water treatment facilities. We would like to hear about other mechanisms to reach regulated facilities. Q: We would recommend providing at least a list of cit ies and counties impacted to help get the word out. This would help. Kim Jennings: We do outreach regularly with a monthly SERC/TERC update (SERC: State Emergency Response Commission, TERC: Tribal Emergency Response Commission) that provide s news on upcoming meetings, training, etc. Those SERCs are very connected to their LEPCs (Local Emergency Planning Committees) and they would rather provide information to those organizations at that level. These state organizations also like to use their own ele ctronic data systems to provide new information and updates to local governments. Patty Gioffre: LEPCs are also made up of various members of the publi c, local response agencies, other government agencies , medical professional, and representatives of regu lated facilities who can share information from various sources.Q: Local governments can opt out of being responders. Does that affect the cost analysis? If the facility is a POTW (publicly ow ned treatment works), then those are costs that affect local government. Do the cost estimates include equipment and personnel needed for response as well as training? Jim Belke: Estimating how many facilities would become new responders as a result of the proposed rule was not easy. We looked at existing RMP data to determine how many facilities were non - responding and that was about 60%. We tried to determine how many of those non
responders might become responders by reviewing information on how clos e existing hazmat teams were located to facilities. We did a sensitivity analysis to estimate the range of facilities that might become new responders. The estimated costs do include personnel needed and equipment and we looked at the HAZWOPER (Hazardous Waste Operations and Emergency Response) training requirements involved. Patty Gioffre: We also looked at the government facility costs differently. Some local governments may have responders that already can cover more than one RMP facility . Regulated local government facilities may also be able to conduct joint exercises and, if necessary, joint public meetings.