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Page 1 of 234 EO12866_RMP Modernization 2050

- AG82 NPRM Proposal&Rule_20151217

6560
- 50
- P ENVIRONMENTAL PROTECTION AGENCY 40 CFR P art 68 [ EPA
- HQ
- OEM
- 20 15
- 0725 ; FRL
- xxxx - xx - OSWER ] RIN 2050
- AG82 Accidental Release Prevention Requirements: Risk Management P rograms Under the Clean Air Act, Section 112(r)(7 ) AGENCY : Environmental Protection Agency (EPA)

. ACTION : Proposed rule

.

________________________________________________________________________ SUMMARY : The Environmental Protection Agency ( EPA ) , in response to Executive Order (EO) 13650, is proposing to amend its Risk Management Program r egulations . The proposed revisions include several changes to the accident prevention program requirements including an additional analysis of safer technology and alternatives for the process hazard analysis for some Program 3
processes, third

- party audits and incident investigation root cause analysis for Program 2 and 3
processes, enhance ment s to the emergency preparedness requirements , increase d public availability of chemical hazard information, and several other changes to certain regulator y definitions and data elements submitted in risk management plans . The se proposed amendments seek to improve chemical process safety, assist local emergency authorities in planning for and responding to accidents, and improve public awareness of chemical hazards at regulated sources. DATES : Comments. C omments and additional material must be received on or before [ INSERT
DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER ]. Under the Paperwork Reduction Act (PRA) , comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your***E.O.12866 Review

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Page 2 of 234 comments on or before [ INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER ]

. Public Hearings. The EPA will hold public hearings on this proposed rule on [ INSERT
DATE ] at [ INSERT LOCATION ] , and on [ INSERT DATE ] , at [ INSERT LOCATION ]

. ADDRESSES : Comments. Submit comments and additional materials , identified by docket EPA

- HQ

- OEM

- 20 15

- 0725 to the Federal eRulemaking Portal : http://www.regulations.gov . Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov

. The EPA may pu blish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, e tc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the prim ary submission (i.e. , on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting

- epa - dockets

. Public Hearings. A public hearing will be held in [ INSERT CITY, STATE ] on [ INSERT
DATE ] at [ INSERT LOCATION ]. The hearing will convene at [ INSERT LOGISTICS ] . The public hearing in [ INSERT CITY, STATE OF LOCATION #2 ] will be held on [ INSERT
DATE ], at [ INSERT LOCATION #2 ]. The hearing will convene at [ INSERT LOGISTICS ]. Please contact [ INSERT CONTACT and PHONE ] or at [ INSERT EMAIL ] to register to speak at the hearing. The last day to preregister in advance to speak at the hearing is [ INSERT DATE ], for the [ INSERT CITY, STATE ] hearing and [ INSERT DATE ], for the [ INSERT CITY, STATE ] hearing. Additionally, requests to speak will be taken t he day of the hearing at the hearing registration desk, although preferences on speaking times may not be able to be fulfilled. If you***E.O.12866 Review

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Page 3 of 234 require the service of a translator or special accommodations such as audio description, please let us know at the time o f registration. FOR FURTHER INFORMATION CONTACT : James Belke , United States Environmental Protection Agency, Office of Solid Waste and Emergency Response , 1200 Pennsylvania Ave.,
NW (Mail Code 510 4A ) , Washington, DC, 20460; telephone number : (202) 564

- 8023 ; email address : belke.jim@epa.gov

. Electronic copies of th is Notice of Proposed Rulemaking ( NPRM ) and related news releases are available on EPA’s website at http://www 2 .epa.gov/ rmp . Copies of this NPRM are also available at http://www.regulations.gov

. SUPPLEMENTARY INFORMATION : Acronyms and Abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

ACC American Chemistry Council ACUS Administrative Conference of the United States AFPM American Fuel & Petroleum Manufacturers AMWA Association of Metropolitan Water Agencies AN ammonium nitrate ANSI American National Standards Institute API American Petroleum Institute ASTM American Society for Testing and Materials AUC Allied Universal Corp AWWA American Water Works Association AXPC American Exploration & Production Council BSEE Bureau of Safety and Environmental Enforcement***E.O.12866 Review

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Page 4 of 234 BTMU Bank of Tokyo Mitsubishi CAA Clean Air Act CAAA Clean Air Act Amendments CARB California Air Resources Board CAS Chemical Abstracts Service CBI confidential business information CCHMP Contra Costa Hazardous Materials Program CCHS Contra Costa County Health Services CCPS Center for Chemical Process Safety CEM European Committee for Standardization CFATS Chemical Facility Anti

- Terrorism Standards CFR Code of Federal Regulations CGA Compressed Gas Association CI Chlorine Institute CO2 Carbon dioxide COS Center for Offshore Safety CPCD Coalition to Prevent Chemical Disasters CPSC Consumer Product Safety Commission CRA Corn Refiners Association CSAG Chemical Safety Advocacy Group CSB Chemical Safety and Hazard Investigation Board CSD Center for Science and Democracy CSISSFRRA Chemical Safety Information, Site Security and Fuels Regulatory Relief Act DHS Department of Homeland Security DOI Department of Interior DOT Department of Transportation***E.O.12866 Review

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Page 5 of 234 EHS extremely hazardous substance EO Executive Order EPA Environmental Protection Agency EPCRA Emergency Planning & Community Right

- To

- Know Act FCC Federal Communications Commission FDA Food and Drug Administration FEMA Federal Emergency Management Agency FOIA Freedom of Information Act FPC Formosa Plastics Corporation
FR Federal Register
FRP facility response plan GHG greenhouse gas GHS Globally Harmonized System of Classification and Labelling of Chemicals GPA Gas Processors Association HAZOP hazard and operability study
HF hydrofluoric acid IPAA Independent Petroleum Association of America ISD inherently safer design ISO industrial safety ordinance ISOM isomerization ISS inherently safer design strategies IST inherently safer technology LEPC local emergency planning committee LPG liquefied petroleum gas MACT maximum achievable control technology MIC methyl isocyanate***E.O.12866 Review

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Page 6 of 234 MKOPSC Mary Kay O’Connor Process Safety Center MOC management of change NACD National Association of Chemical Distributors NAICS North American Industrial Classification System NAM National Association of Manufacturers NAS National Academy of Sciences NASTTPO National Association of SARA Title III Program Officials NIST National Institute of Standards and Technology NJDEP New Jersey Department of Environmental Protection NOPA National Oilseed Processors Association NPRM Notice of Proposed Rulemaking NRC Nuclear Regulatory Commission NSPS New Source Performance Standards NTTAA National Technology Transfer Advancement Act NYDFS New York State Department of Financial Services OCA offsite consequences analysis OCS outer continental shelf OHMERC Oklahoma Hazardous Materials Emergency Response Commission OMB Office of Management & Budget OSHA Occupational Safety and Health Administration PCAOB Public Company Accounting Oversight Board
PE professional engineer PHA process hazard analysis PRA Paperwork Reduction Act
PREP preparedness for response exercise program PSI process safety information***E.O.12866 Review

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Page 7 of 234 PSM process safety management PSSAP Process Safety Site Assessment Program PVC polyvinyl chloride PwC PricewaterhouseCoopers RAGAGEP recognized and generally accepted good engineering practices RCRA Resource Conservation and Recovery Act RFA Regulatory Flexibility Act
RFI request for information
RMP Risk Management Plan
RTR research and test reactor SARA Superfund Amendments and Reauthorization Act SBREFA Small Business Regulatory Enforcement Fairness Act SDS safety data sheet SDWA Safe Drinking Water Act SEC Securities and Exchange Commission SEMS Safety and Environmental Management Systems SERC state emergency response commission SOCMA Society of Chemical Manufacturers and Affiliates SOP standard operating procedure STAA safer technology and alternatives analysis TCPA Toxic Catastrophe Prevention Act TEPC tribal emergency planning committees TERC tribal emergency response commission TPA Texas Pipeline Association TQ threshold quantity TSCA Toxic Substances Control Act***E.O.12866 Review

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Page 8 of 234 UMRA Unfunded Mandates Reform Act USCG United States Coast Guard UST underground storage tank USW United Steel Workers VCM vinyl chloride monomer VCS voluntary census standards Organization of this Document. The contents of this preamble are : I. General Information A. Executive Summary B
. Does This Action Apply to Me? I I . Background III. Additional Information A

. What Actions Are Not Addressed in This Rule? B

. What is the Agency’s Authority for Taking This Action ? IV. Prevention Program Requirements A. Incident Investigation and Accident History Requirements B. Third

- Party Compliance Audits C. Safer Technology and Alternatives Analysis (STAA) D. Stationary Source Location and Emergency Shutdown V. Emergency Response Preparedness Requirements A. Emergency Response Program Coordination with Local Responders B. Facility Exercises VI. Information Availability Requirements A. Proposed Public Disclosure Requirements to LEPCs or Emergency Response Officials B. Proposed Revisions to Requirements for Information Availability to the Public C. Alternative Options VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule Technical Corrections A. Deletions from Subp art G B. Revisions to Subpart G C. Additions to Subpart G D. Proposed Amendments and Technical Corrections VIII. Compliance Dates I X. Statutory and E O Reviews A. EO 12866: Regulatory Planning and Review and EO 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. EO 13132: Federalism F. EO 13175: Consultation and Coordination with Indian Tribal Governments G. EO 13045: Protection of Children from Environmental Health Risks and Safety Risks H. EO 13211: Actions That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer and Advancement Act (NTTAA)***E.O.12866 Review

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Page 9 of 234 J. EO 12898: Federal Action s to Address Environmental Justice in Minority Populations and Low

- Income Populations A redline version of the regulatory language that incorporates the proposed changes in this action is available in the docket for this action

. I . General Information A. Executive Summary 1

. Purpose of the Regulatory Action The purpose of this action is to improve safety at facilities that use and distribute hazardous chemicals. In response to catastrophic chemical facility incidents in the United States , including the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17, 2013 that killed 15 people , President Obama issued E O 13650 , “ Improving Chemical Facility Safety and Security, ” on August 1, 2013

. 1 Section 6(a)(i) of E O 13650 requires th at various F ederal agencies develop options for improved chemical facility safety and security that identify “improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance,
out reach, standards, and regulations. ” One agency program presently in existence is the Risk Management Program implemented by EPA under section 112(r) of the Clean Air Act ( 42 U.S.C. 7412(r))

. Section 6(c) of E O 13650 requires the Administrator of EPA to rev iew the chemical hazards covered by the Risk Management Program and expand, implement and enforce the Risk Management Program to address any additional hazards

. As part of this effort to solicit comments and information from the public regarding potential changes to EPA’s R isk M anagement P rogram regulations (4 0 CFR part 68), on July 31, 2014, EPA published a “Request for Information” notice or “RFI” (79 FR 44604).

1 For more information on the EO see https://www.whitehouse.gov/the

- press - office/2013/08/01/executive

order

- improving

- chemical

- facility

- safety

- and

- security

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Page 10 of 234 EPA believes that the R isk M anagement P rogram regulations have been effective in preventing and mitigating chemical accidents in the United States . H owever, EPA is proposing revisions in order to further protect human health and the environment from chemical hazards through advancement of process saf ety management based on lessons learned

. These revisions are a result of a review of the existing Risk Management Program and information gathered from the RFI and EO listening sessions

. 2

. Summary of the Major Provisions of the Regulatory Action This action proposes to amend EPA’s Risk Management Program regulations at 40 CFR part 68

. The se regulations apply to stationary sources (also referred to as “facilities”) that hold specific “regulated substances” in excess of threshold quantities. These f acilities are required to

asse s s their potential release impacts, undertake steps to prevent releases, plan for emergency response to releases, and summarize this information in a risk management plan ( RMP ) submitted
to EP A. The release prevention steps va ry depending on the type of process, but progressively
ga in specificity and rigor over three program levels (i.e., Program 1, Program 2, and Program 3). The major provisions of this proposed rule include several changes to the accident prevention program r equirements, as well as enhancements to the emergency response requirements , and improvements to the public availability of chemical hazard information

. Each of these proposed revisions is introduced in the following paragraphs of this S ection and described in greater detail in S ections IV

– VI , later in this n otice. Certain proposed provisions would apply to a sub set of the processes based on program levels described in 40 CFR part 68 (or in one case, to a subset of processes within a program level )

. A full description of these program levels is provided in S ection II of t his n otice. a. Accident Prevention Program Revisions This action proposes three changes to the accident prevention program requirements

. First, the proposed rule would require all facilities with Program 2 or 3 processes to conduct a root cause analysis as part of an incident investigation of a catastrophic release or an incident that***E.O.12866 Review

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Page 11 of 234 could have reasonably resulted in a catastrophic release (i. e., a near - miss). This provision is intended to reduce the number of chemical accidents by requiring facilities to identify the underlying cause s of an incident so that they may be addressed . Identifying the root cause s , rather than isolating and correcting solely the immed iate cause of the incident , will help prevent similar incidents at other locations , and will yield the maximum benefit or lessons learned from the incident investigation

. Second, the proposed rule would require regulated facilities with Program 2 or 3
pro cesses to contract with an independent third

- party to perform a compliance audit after the facility has a reportable release. Compliance audits are required under the existing rule, but are allowed to be self

- audits (i.e., performed by the owner or operator of the regulated facility). This provision is intended to reduce the risk of future accidents by requiring an objective auditing process to determine whether the owner or operator of the facility is effectively complying with the accident preventi on procedures and practices required un der 40 CFR p art 68

. The third proposed revision to the prevention program would add an element to the process hazard analysis ( PHA ), which is updated every five years

. Specifically, owners or operators of facilities with Program 3 regulated processes in North American Industrial Classification System ( NAICS ) codes 322 ( paper manufacturing ), 324 (petroleum and coal products manufacturing ), and 325 (chemical manufactur ing ) would be required to conduct a safer technolog y and alternatives analysis ( STAA ) as part of their PHA , and to evaluate the feasibility of any inherently safer technology (IST) identified

. This provision is intended to reduce the risk of serious accidental releases by requiring facilities in these sectors to conduct a careful examination of potential ly safer technolog y and designs that they could implement in lieu of , or in addition to, their current technologies

. Da ta compiled from RMPs suggest processes in these NAICS codes have a disproportionate share of reportable releases. At this time, EPA is not proposing any additional requirements either for location of stationary sources ( related to their proximity to public receptors ) or emergency shutdown***E.O.12866 Review

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Page 12 of 234 systems

. However, EPA seeks comment on whether such requirements should be considered for future rulemakings, including the scope of such requirements , or whether the A gency should publish guidance

. b. Emergency Resp onse Enhancements This action also proposes to en hance the rule’s emergency response requirements

. Owners or operators of all facilities with Program 2 or 3 processes would be required to coordinate with the local emergency response agencies at least once a year to ensure that resources and capabilities are in place to respond to an accidental release of a regulated substance. As a result of improved coordination between facility owners and operators and local emergency
respo nse officials, EPA believes that some facilities that are currently designated as non

responding facilities may become responding facilities (i.e., develop an emergency response program in accordance with §68.95 ). Additionally, all facilities with Program 2 or 3 processes would be required to c onduct notification exercises annually to ensure that the ir emergency contact information is accurate and complete

. This provision is intended to reduce the impact of accidents by ensuring that appropriate mechanisms and processes are in place to notify local responders when an accident

occurs . One of the factors that can contribut e to the severity of chemical accidents is a lack of effective co ordination between a facility and local emergency responders. Increasing such coordination and establishing appropriate emergency response procedures can help reduce the effect s of accidents

. This action also proposes to require that all f acilities subjec t to the emergency response program requirements of subpart E of the rule (or "responding facilities") conduct a full field exercise at least once every five year s and one table top exercise annually in the other years

. Responding facilities th a t have a reportable accident would also have to conduct a full field exercise within a year of the accident

. Th e purpose of th is provision is to reduce the impact of accidents by ensuring that emergency response personnel understand their roles in the event of a n***E.O.12866 Review

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Page 13 of 234 incident, that local responders are familiar with the hazards at a facility, and that th e emergency response plan is up

- to

- date. Improved coordination with emergency response personnel will better prepare responders to respond effectively to an incident and take steps to notify the community of appropriate actions, such as shelter

- in

- place or evacuation. c. Enhanced Availability of Information
T his action proposes various enhancements to the public availability of chemical hazard information

. The proposed rule would require all facilities to provide certain basic information to the public through easily accessible means such as a facility website

. If no website exists, the

owner or operator may provide the information at public libraries or gov ernment offices , or use other means appropriate for particular locations and facilities

. In addition, a subset of facilities would be required to provide the Local Emergency Planning Committee ( LEPC ) or other local

eme r gency response agencies with summaries related to : their activities on compliance audits ( facilities with Program 2 and 3 processes ) ; emergency response exercises ( facilities with Program 2 and 3 processes ) ; accident history and investigation reports (all facilities that have had
repo rtable accident s ) ; and any ISTs implemented at the facility (a subset of Program 3 processes)

. The proposed rule would also require all facilities to hold a public meeting for the local community at least once every 5 years and within a specified timeframe after a reportable accident

. This provision will e nsur e that first resp onders and members of the community have easier access to appropriate facility chemical hazard information , which can significantly improve emergency preparedness and their understandi ng of how the facility is addressing potential risks

. In addition to the major provision s described previously in this S ection, this action proposes revisions to clarify or simplify the RMP submission

. These changes are intended to reduce the compliance burden on facilities and increase their understanding of the RMP requirements

. We are also proposing technical corrections to various provisions of the rule. 3

. Costs and Benefits

a. Summary of Potential Costs***E.O.12866 Review

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Page 14 of 234 Approximately 12,500 facilities have filed current RMPs with EPA and are potentially affected by the proposed rule changes. These facilities range from petroleum refineries and large chemical manufacturers to water and wastewater treatment systems; chemical and petroleu m wholesalers and terminals; food manufacturers, packing plants, and other cold storage facilities with ammonia refrigeration systems; agricultural chemical distributors; midstream gas plants; and a limited number of other sources that use RMP

- regulated su bstances. Table 1 presents the number of facilities according to the latest RMP reporting as of February 2015 by industrial sector and chemical use.
Table 1 : Number of Affected Facilities by Sector
Sector NAICS Codes Total Facilities Chemical Uses Administration of environmental quality programs (i.e., governments) 924 1,923 Use chlorine and other chemicals for treatment Agricultural chemical distributors/wholesalers 111, 112, 115, 42491 3,667 Store ammonia for sale; some in NAICS 111 and 115 use ammonia as a refrigerant Chemical manufacturing 325 1,466 Manufacture, process, store Chemical wholesalers 4246 333 Store for sale Food and beverage manufacturing 311, 312 1,476 Use

− mostly ammonia as a refrigerant Oil and gas extraction 211 741 Intermediate processing (mostly regulated flammable substances and flammable mixtures)
Other 44, 45, 48, 54, 56, 61, 72 248 Use chemicals for wastewater treatment, refrigeration, store chemicals for sale Other manufacturing 313, , 326, 327, 33 384 Use various chemicals in manufacturing process, waste treatment Other wholesale 423, 424 302 Use (mostly ammonia as a refrigerant) Paper manufacturing 322 70 Use various chemicals in pulp and paper manufacturing Petroleum and coal products manufacturing 324 156 Manufacture, process, store (mostly regulated flammable substances and flammable mixtures) Petroleum wholesalers 4247 276 Store for sale (mostly regulated flammable***E.O.12866 Review

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Page 15 of 234 substances and flammable mixtures) Utilities 221 (except 22131, 22132) 343 Use ch lorine (mostly for water treatment) Warehousing and storage 493 1,056 Use mostly ammonia as a refrigerant Water/wastewater Treatment Systems 22131, 22132 102 Use chlorine and other chemicals Total 12,542

Table 2 presents a summary of the annualized costs estimated in the regulatory impact analysis 2 . In total, EPA estimates annualized costs of $ 162.6 million at a 3% discount rate and $16 5.3 million at a 7% discount rate

. Table 2 : Summary of Annualized Costs (Millions, 2014 dollars)

Provision 3 % 7% Third

- party Audits $5.0 $5.0 Incident Investigation/Root Cause $0.8 $0.8 STAA $34.8 $34.8 Coordination $6.3 $6.3 New Responders * $33.0 $35.6 Notification Exercises $1.4 $1.4 Facility Exercises $ 60.7 $ 60.7 Information Sharing (LEPC) $11.7 $11.7 Information Sharing (Public) $4.0 $4.0 Public Meeting $4.7 $4.7 Rule Familiarization $0.2 $0.3 Total Cost $ 162.6 $ 165.3
* Reflects costs for some facilities to convert from “non

- responding” to “responding” as a result of improved coordination with local emergency response officials.

2 A full description of costs and benefits for this proposed rule can be found in the Regulatory Impact Analysis for Proposed Revisions to the Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7) . Th is document is available in the docket for this rulemaking (Docket ID Number EPA

- HQ

- OEM

- 2015

- 0725)

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Page 16 of 234 The largest average annual cost of the proposed rule is the exercise costs for current
respon ders ($ 60.7 million), followed by new responders (facilities that will comply with the emergency response program requirements of §68.95 as a result of local coordination activities or receiving a written request from the facility’s LEPC) ($ 35.6 million), safer technology and alternatives analysis ($34.8 million), and information sharing (LEPC) ($ 11.7 million). The remaining provisions impose average annual costs under $10 million each , including coordination ($6.3 million), third

- party audits ($ 4.9 million), public meetings ($4.7 million), information sharing (public) ($4.0 million), notification exercises ($1.4 million), incident investigation/root cause analysis ($0.8 million), and rule familiarization ($0. 3 million). b

. Summary of Potential Benefits EPA anticipates that promulgation and implementation of this rule would result in a reduction of the frequency and magnitude of damages from releases. Accidents and releases from RMP facilities occur every year, 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. Although we are unable to quantify what specific reductions may occur as a result of these proposed revisions , we are able to present data on the total damages that currently occur at RMP facilities each year. The data presented is based on a 10

- year baseline period, summarizing RMP accident impacts and, when possible, monetizing them. EPA expects that some portion of future damages would be prevented through implementation of a final rule. Table 3 presents a summary of the quantified damages identified in the analysis.
Table 3 : Summary of Quantified Damages Unit Value 10
- Year Total Ave/Year Average/Accident On
- site Fatalities $8,583,113 $ 497,820,554 $ 49,782,055 $ 328,161 Injuries $50,000 $105,150,000 $10,515,000 $69,314 Property Damage $2,054,895,236 $205,489,524 $1,354,578 On
- site Total $ 2,657,865,790 $ 265,786,579 $ 1,752,053 Offsite Fatalities $8,583,113 $8,583,113 $858,311 $5,658***E.O.12866 Review

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Page 17 of 234 Hospitalizations $36,000 $6,804,000 $680,400 $4,485 Medical Treatment $1,000 $14,807,000 $1,480,700 $9,761 Evacuations $ 181 $ 6,992,327 $ 699,233 $ 4,609 Sheltering in Place $ 91 $ 40,920,849 $ 4,092,085 $ 26,975 Property Damage $11,352,105 $1,135,211 $7,483 Offsite Total $ 89,459,394 $ 8,945,939 $ 58,971 Total $ 2,747,325,184 $ 274,732,518 $ 1,811,024

EPA monetized both on

- site and offsite damages . EPA estimated total average annual on

site damages of $ 265.8 million. The largest monetized average annual on - site damage was on - site property damage, which resulted in average annual damage of approximately $205.5 million. The next largest impact was on - site fatalities ($ 49.8 million) and injuries ($10.5 million). EPA estimated total average annual offsite damages of $ 8.9 million. The largest monetized average annual offsite damage was from sheltering in place ($ 4.1 million), followed by medical treatment ($1.5 million), property damage ($1.1 million), fatalities ($0.9 million), evacuations ($0. 7 million), and hospitalizations ($0.7 million). In total, EPA estimated monetized damages from RMP facility accidents of $ 2 75 million
per year. However, the monetized impacts omit many important categories of accident impacts including lost productivity, the costs of emergency response, transaction costs, property value impacts in the surrounding community (that overlap with o ther benefit categories), and environmental impacts. Also not reflected in the 10

- year baseline costs are the impacts of non

RMP accidents at RMP facilities and any potential impacts of rare high consequence catastrophes. A final omission is related to the information provision. Reducing the probability of chemical accidents and the severity of their impacts, and improving information disclosure by chemical facilities, as the proposed provisions intend, would provide benefits to potentially affected members of society. Table 4 s ummarizes four broad social benefit categories related to accident prevention and mitigation including prevention of RMP accidents, mitigation of RMP accidents, prevention***E.O.12866 Review

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Page 18 of 234 and mitigation of non - RMP accidents at RMP facilities, and pre vention of major catastrophes. The table explains each and identifies ten associated specific benefit categories, ranging from avoided fatalities to avoided emergency response costs. Table 4 also highlights and explains the information disclosure benefit c ategory and identifies two specific benefits associated with it: improved efficiency of property markets and allocation of emergency resources. Table 4: Summary of Social Benefits of Proposed Rule Provisions Broad Benefit Category Explanation Specific Benefit Categories

Accident Prevention Prevention of future RMP facility accidents • Reduced Fatalities
• Reduced Injuries
• Reduced Property Damage
• Fewer People Sheltered in Place
• Fewer Evacuations
• Avoided Lost Productivity
• Avoided Emergency Response Costs
• Avoided Transaction Costs
• Avoided Property Value Impacts*
• Avoided Environmental Impacts Accident Mitigation Mitigation of future RMP facility accidents
Non

- RMP accident prevention and mitigation Prevention and mitigation of future non

- RMP accidents at RMP facilities Avoided Catastrophes Prevention of rare but extremely high consequence events Information Disclosure Provision of information to the public and LEPCs • Improved efficiency of property markets
• Improved resource allocation * These impacts partially overlap with several other categories such as reduced health and environmental impacts

.

B . Does This Action Apply to Me? This rule applies to those facilities (referred to as ‘‘stationary sources’’ under the CAA) that are subject to the chemical accident prevention requirements at 40 CFR part 68. This includes stationary sources holding more than a TQ of a regulated substanc e in a process. Ta ble 5 below provides industrial sectors and the associated NAICS codes for entities potentially affected by this action. The Agency’s goal is to provide a guide for readers to consider regarding entities that potentially could be affected by this action. However, this action may affect other entities not listed in this table. If you have questions regarding the applicability of this action to a particular***E.O.12866 Review

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Page 19 of 234 entity, consult the person(s) listed in the introductory section of this notice under the heading entitled FOR FURTHER INFORMATION CONTACT

. Table 5 : Industrial Sectors and Associated NAICS Codes for Entities Potentially Affected by Proposed Action Sector NAICS Code Administration of Environmental Quality Programs 924 Agricultural Chemical Distributors Animal Production and Aquaculture Crop Production Farm Supplies Merchant Wholesalers Support Activities for Agriculture and Forestry 112 111 42491 115 Beverage Manufacturing Food Manufacturing 3121 311 Chemical and Allied Products Merchant Wholesalers 4246 Chemical Manufacturing 325 Oil and Gas Extraction 211 Other 3 313, 326, 327, 33, 44, 45, 48, 54, 56, 61, 72 Other Wholesale Merchant Wholesalers, Durable Goods Merchant Wholesalers, Nondurable Goods 423 424 Paper Manufacturing 322 Petroleum and Coal Products Manufacturing 324 Petroleum and Petroleum Products Merchant Wholesalers 4247
Utilities 221 (except 22131 and 22132 described below) Warehousing and Storage 493 Water/Wastewater Treatment Systems Sewage Treatment Facilities Water Supply and Irrigation Systems 22132 22131
II. Background Recent catastrophic chemical facility incidents in the United States prompted President Obama to issue EO 13650 , “ Improving Chemical Facility Safety and Security,” on August 1, 2013

. 4 The purpose of the EO is to enhance the safety and security of chemical facilities and

3 For descriptions of NAICS codes, see http://www.census.gov/cgi

- bin/sssd/naics/naicsrch 4 For more information on the EO see https://www.whitehouse.gov/the

- press - office/2013/08/01/executive

order

- improving

- chemical

- facility

- safety

- and

- security

.***E.O.12866 Review

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Page 20 of 234 reduce risks associated with hazardous chemicals to owners and operators, workers, and communities. The EO establishes the Chemical Facility Safety and Security Working Group (“Working Group”), co

- chaired by the Secretary of Homeland Security, the Administrator of EPA, and the Secretary of Labor or their designated representatives at the Assistant Secretary lev el or higher, and composed of senior representatives of other Federal departments, agencies, and offices. The EO requires the Working Group to carry out a number of tasks whose overall aim is to prevent chemical accidents, such as the explosion that occurr ed at the West Fertilizer facility in West, Texas, on April 17, 2013

. 5 In addition to the tragedy at the West Fertilizer facility , a number of other incidents have demonstrate d a significant risk to the safety of American workers and communities. On March 23, 2005, explosions at the BP Refinery in Texas City, Texas killed 15 and injured more than 170. 6 On April 2, 2010, an explosion and fire at the Tesoro Refinery in Anacortes, Washington killed seven. 7 On August 6, 2012, at the Chevron Refinery in Richmond , California, a fire involving flammable fluids endangered 19 Chevron employees and created a large plume of highly hazardous chemicals that traveled across the Richmond, California area. 8 Nearly 15,000 residents sought medical treatment due to the release

. On June 13 , 2013, a fire and explosion at Williams Olefins in Geismar, Louisiana killed two and injured many more

. 9

5 CSB. 2015. Final Investigation Report, West Fertilizer Plant Fire and Explosion, West, TX, April 17, 2013. REPORT 2013

- 02

- I

- TX. http://www.csb.gov/west

- fertilizer

- explosion

- and

- fire

- /

. 6 U.S. Chemical Safety and Hazard Investigation B oard (CSB) . March 2007. Investigation Report: Refinery Explosion and Fire, BP, Tex as City, Texas, March 23 , 2005. Report No. 2005

- 04

- I

- TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf

. 7 CSB

. May 2014

. Investigation Report : Catastrophic Rupture of Heat Exchanger, Tesoro Anacortes Refinery, Anacortes, Washington, April 2, 2010

. Report No. 2010

- 08

- I

- WA. http://www.csb.gov/assets/1/7/Tesoro_Anacortes _2014

- May

- 01.pdf

. 8 CSB

. January 2014

. Regulatory Report : Chevron Richmond Refinery Pipe Rupture and Fire, Chevron Richmond Refinery #4 Crude Unit, Richmond, California, August 6, 2012. Report No

. 2012

- 03

- I

- CA

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

. 9 CSB

. June 27, 2013. Testimony of Rafael Moure

- Eraso, Ph.D. Chairperson, CSB Before the U.S. Senate Committee on Environment and Public Works , pg. 8

. http://www.csb.gov/assets/1/19/CSB_Written_Senate_Testimony_6.27.13.pdf***E.O.12866 Review

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Page 21 of 234 Section 6 of the EO is entitled “Policy, Regulation, and Standards Modernization

. ” This section, among other things, requires certain Federal agencies to consider possible changes to existing chemical safety and security regulations. To solicit comments and information from the public regarding potential changes to EPA’s Risk Management Program regulations (40 CFR part 68), on July 31, 2 014, EPA published a n RFI (79 FR 44604). Information collected through the RFI has informed this proposal. Readers are encouraged to review the RFI, as this notice will not reiterate the full discussion of all of its topics. EPA received a total of 579 pub lic comments on the RFI. Several public comments were the result of various mass mail campaigns and contained numerous copies of letters or petition signatures

. Approximately 99,710 letters and signatures were contained in these several
comments . Discussion of RFI public comments pertaining to topics included in this proposal can be found below in Section I V. Prevention Program Requirements, Section V. Emergency Response Preparedness Requirements and Section VI. Information Availability Requireme nts. EPA seeks comment on the proposed amendments

. Any suggestions for alternative options should include an appropriate rationale and supporting data for the Agency to be able to consider it for a final action.
A. Overview of EPA’s Risk Management Program Regulations

. Both EPA’s 40 CFR part 68 RMP regulation 10 and O ccupational Safety and Health Administration ’s (OSHA) 29 CFR 1910.119 Process Safety Management ( PSM ) standard were authorized in the C lean A ir A ct Amendments of 1990 (1990 CAAA) . This was in response to a number of catastrophic chemical accidents occurring worldwide that had resulted in public and worker fatalities and injuries, environmental damage, and other community impacts. OSHA

10 40 CFR part 68 is titled, “Chemical Accident Prevention Provisions,” but is more commonly known as the “RMP regulation,” the “RMP rule , ” or the “Risk Management Program.” This document uses all three terms to refer to 40 CFR part 68

. The term “RMP” refers to the document required to be submitted under subpart F of 40 CFR part 68, the Risk Management Plan

. See http://www2.epa.gov/rmp for more information on the Risk Management Program.***E.O.12866 Review

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Page 22 of 234 published the PSM standard in 1992 (57 FR 6356, February 24, 1992), as required by section 304 of the 1990 CAAA, using its authority under 29 U.S.C. § 653. The 1990 CAAA added accidental release provisions under section 112(r). The statute required EPA to develop a list of at least 100 regulated substances for accid ent prevention and related thresholds (CAA section 112(r)(3)

- (5)), and authorized EPA to issue accident prevention regulations (CAA section 112(r)(7)(A)) . The statute also required EPA to develop “reasonable regulations” requiring facilities with over a th reshold quantity (TQ) of a regulated substance to undertake accident prevention steps and submit a “risk management plan” to various local, state, and Federal planning entities (CAA section 112(r)(7)(B)). EPA published the RMP regulation in two stages. The Agency published the list of regulated substances and TQs in 1994 (59 FR 4478, January 31, 1994) (the “list rule”) 11 and published the RMP final regulation, containing risk management requirements for covered sources, in 1996 (61 FR 31668, June 20, 1996) (the “RMP rule”). 12 , 13 Both the OSHA PSM standard and the EPA RMP rule aim to prevent or minimize the consequences of accidental chemical releases through implementation of management program elements that integrate technologies, procedures, and management p ractices. In addition to requiring implementation of management program elements, the RMP rule requires covered sources to submit (to EPA) a document summarizing the source’s risk management program

– called a Risk Management Plan (or RMP). The RMP rule re quired covered sources to comply with its requirements and submit initial RMPs to EPA by June 21, 1999. Each RMP must be revised and updated at least once every five years from the date the p lan was initially submitted.

11 Documents and information related to development of the list rule can be found in the EPA doc ket for the rulemaking, docket number A

- 91

- 74. 12 Documents and information related to development of the RMP rule can be found in EPA docket number A

- 91

- 73. 13 40 CFR p art 68 applies to owners and operators of stationary sources that have more than a TQ o f a regulated substance within a process

. The regulations do not apply to chemical hazards other than listed substances held above a TQ within a regulated process

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Page 23 of 234 EPA later revised the list rule and the RMP rule. EPA modified the regulated list of substances by exempting solutions with less than 37% concentrations of hydrochloric acid (62 FR 45130, August 25, 1997) . EPA also delet ed the category of Department of Transportation Division 1.1 explosives, and exempt ed flammable substances in gasoline used as fuel and in naturally occurring hydrocarbon mixtures prior to initial processing (63 FR 640, January 6, 1998).
EPA subsequently modified the RMP rule five times. First, in 1999, EPA revis ed the facili ty identification data and contact information reported in the RMP (64 FR 964, January 6, 1999). Next , EPA revised assumptions for the worst case scenario analysis for flammable substances and clarified what the A gency means by chemical storage not incidental to transportation (64 FR 28696, May 26, 1999). After the Chemical Safety Information, Site Security and Fuels Regulatory Relief Act (CSISSFRRA) was enacted on August 5, 1999, EPA excluded regulated flammable substances when used as a fuel or hel d for sale as a fuel at a retail facility (65 FR 13243, March 13, 2000). Later, EPA restricted access to offsite consequence analysis (OCA) data for the public and government officials to minimize the security risks associated with posting the information on the Internet (65 FR 48108, August 4, 2000). Finally, EPA revised the RMP executive summary to remove a requirement to describe the OCA; revised reporting deadlines for reportable accidents and emergency contact changes; and made other minor revisions to RMP facility contact information (69 FR 18819, April 8, 2004). The RMP rule establishes three “program levels” for regulated processes: Program 1 applies to processes that would not affect the public in the case of a worst

- case release and that have had n o accidents with specific offsite consequences within the past five years. Program 1 imposes limited hazard assessment requirements, requires coordination with local response agencies, and requires submission of an RMP. Program 2 applies to processes not e ligible for Program 1 or subject to Program 3, and imposes streamlined prevention program requirements, including safety information, hazard review, operating procedures, training, maintenance, compliance audits, and incident***E.O.12866 Review

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Page 24 of 234 investigation elements. Progra m 2 also imposes additional hazard assessment, management, and emergency response requirements. Program 3 applies to processes not eligible for Program 1 and either subject to OSHA’s PSM standard under Federal or state OSHA programs or classified in one of ten specified industry sectors identified by their 2002 NAICS codes listed at §68.10(d)(1). These industries were selected because they had a higher frequency of the most serious accidents as compared to other industry sectors. The ten NAICS codes and the industries they represent are 32211 (pulp mills), 32411 (petroleum refineries), 32511 (petrochemical manufacturing), 325181 (alkalies and chlorine manufacturing), 325188 (all other basic inorganic chemical manufacturing), 325192 (cyclic crude and intermed iate manufacturing), 325199 (all other basic chemical manufacturing), 325211 (plastics material and resin manufacturing), 325311 (nitrogenous fertilizer manufacturing), or 32532 (pesticide and other agricultural chemicals manufacturing). 14 Program 3 imposes elements nearly identical to those in OSHA’s PSM standard as the accident prevention program. The Program 3 prevention program includes requirements re lating to process safety information ( PSI ) , PHA , operating procedures, training, mechanical integrity, management of change, pre

- startup review, compliance audits, incident investigations, employee participation, hot work permits, and contractors. Program 3 also imposes the same hazard assessment,

mana gement, and emergency response requirements that are required for Program 2. On July 22, 2015, OSHA issued a revised interpretation to its PSM retail exemption at 29 CFR 119(a)(2)(i)

. 15 This interpretation now only allows facilities in NAICS codes 44 and 45 , the retail trade , to be eligible for the retail exemption . As a result of this change , many agricultural chemical distributors who sell bulk anhydrous ammonia and some chemical warehouses, are no

14 NAICS codes 325181 and 325188 are now combined and represented as 2012 revised NAICS cod e 325180 (other basic inorganic chemical manufacturing). NAICS code 325192 is now 2012 revised NAICS code 325194 (cyclic crude, intermediate, and gum and wood chemical manufacturing). 15 See OSHA PSM Retail Exemption Policy https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29528***E.O.12866 Review

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Page 25 of 234 longer exempt from the PSM standard. This makes them subj ect to RMP Program 3 requirements, whereas before most were covered under Program 2. EPA believes the RMP rule has been effective in preventing and mitigating chemical accidents in the United States and protecting human health and the environment from ch emical hazards. However, major incidents, such as the West, Texas, explosion, highlight the importance of reviewing and evaluating current practices and regulatory requirements, and applying lessons learned from other incident investigations to advance process safety where needed.
I I I . Additional Information A

. What Actions Are Not Addressed in This Rule? Under Section 6 of EO 13650 , “ Improving Chemical Facility Safety and Security, ” t he EO Working Group (chaired by EPA , OSH A, and D epartment of Homeland Security (DHS) ) was tasked with enhancing safety at chemical facilities by identifying key improvements to existing risk management practices through guidance, policies, procedures, outreach, and regulations. As part of this task, the Working Group solicit ed public comment on potential options for improving chemical facility safety

. Additionally , EPA gathered information from the public regarding potential changes to EPA’s Risk Management Program regulations (4 0 CFR part 68) via a RFI (79 FR 44604 , July 31, 2014 )

. Using the results from these efforts as well as information collected through implementing the Risk Management Program , EPA is proposing revisions to the RMP rule to advance chemical facility safety

. However, this proposed rule does not address all of the topics included in the RFI

. For example, EPA will not be proposing any revisions to the list of regulated substances and is therefore not addressing ammonium nitrate (AN) in th is proposed rule. Currently AN is not listed as a regulated substance under the RMP rule or the OSHA PSM standard . Required safe handling and storage practices for AN are covered under OSHA’s Explosives and Blasting Agents Standard (29 CFR 1910.109) and includes coverage of fertilizer grade AN in section 1910.109(i)

. Section 1910.109(k)(2) requires that manufacturing of***E.O.12866 Review

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Page 26 of 234 explosives must meet requirements under OSHA’s PSM standard (29 CFR 1910.119); this would include any explosive manufacturing process involving AN

. OSHA is considering whether AN should be added to the §1910.1 19 Appendix A list of chemicals subject to the PSM standard , which could expand the standard’s applicability to include processes at fertilizer mixers, distributors and wholesalers who store and handle AN

. OSHA is also considering whether to make changes to the AN storage and handling requirements in t heir Explosives and Blasting Agents standard , which has requirements for AN stored with and without, explosives and blasting agents

. DHS is considering potential modification s of its Chemical Facility Anti

- Te rrorism Standards (CFATS) regulation , including reviewing the applicability and/or modification of

s creening TQs for c hemicals of i nterest in Appendix A in 6 CFR p art 27, which include AN (79 FR 48693, August 18, 2014)

. 16 We plan to coordinate any potential change to the list of substances 40 CFR part 68 with the actions of these other agencies. Therefore , EPA is not presently proposing that AN be added to the list of substances subject to the RMP rule , but the Agency may e lect to propose such a listing at a later date

. B . What is the Agency’s Authority for Taking This Action? The statutory authority for this action is provided by section 112 (r ) of the CAA as amended (42 U.S.C. 7412(r)). Each of the portions of the Risk Management Program rule we propose to modify in this notice are based on EPA’s rulemaking authority under section 112(r)(7) of the CAA (42 U.S.C. 7412(r)(7)). A more detailed discussion of the underlying statutory authority for the current requirements of the Risk Management Program rule appears in the notice that proposed the Risk Management Program (58 FR 54 190, 54191

- 93 (Oct. 20, 1993)). The prevention program provisions discussed below (auditing, incident investigation, and safer technologies alternatives analysis) address the “prevention and detectio n of accidental releases.” The emergency coordination and exercises provisions in this rule modify existing provisions that

16 CFATS. 79 FR 48693, August 18, 2014. http://www.regulations.gov/#!documentDetail;D=DHS

- 2014

- 0016

- 0001

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Page 2 7 of 234 provide for “response to such release by the owner s or operators of the sources of such releases.” (CAA 112(r)(7)(B)(i)). This paragraph calls for EPA’s regulations to recognize differences in “size, operations, processes, cl ass and categories of sources.” In this notice, we propose to maintain distinctio ns in prevention program levels and in response actions authorized by this
pro vision. The information disclosure provisions discussed in this notice generally assist in the development of “procedures and measures for emergency response after an accidental release of a regulated substance in order to protect human health and the environment.” This information disclosure ensures the emergency plans for impacts on the community are based on more relevant and accurate information than would otherwise be availab le and ensures that the public can become an informed participant in such emergency planning.
I V . Prevention Program Requiremen ts A. Incident Investigation and Accident History Requirements
1

. Summary of Existing Investigation Requirements Currently, owners or operators of facilities with processes subject to Program 2 and 3 are required to investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release (§§68.60 and 68.81). The RMP rule defines a cata strophic release in §68.3 as a major uncontrolled emission, fire, or explosion, involving one or more regulated substances that presents an imminent and substantial endangerment to public health and the environment

. Imminent and substantial endangerment in cludes offsite consequences such as death, injury, or adverse effects to human health or the environment, or the need for the public to shelter

- in

- place or be evacuated to avoid such consequences. Facility owners or operators are required to determine the factors that contributed to the incident and develop recommendations resulting from the investigation

. The PHA (§68.67 (c)(2)) is required to address previous incidents which had a likely potential for catastrophic
consequences . In the preamble to the exi sting final rule, EPA explained that w hile most catastrophic releases affect workers first, there are incidents where workers are protected but the***E.O.12866 Review

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Page 28 of 234 public and the environment may be threatened (e.g., emergency relief devices are designed to vent hazardous atmospheres away from the workplace and into the air where they may be carried downwind)

. The PHA should recognize and address the potential offsite impact associated with safety measures that protect workers (e.g., by installing a control device on a n eme rgency vent)

. The RMP rule requires that facility owners and operators consider such possibilities and integrate the protection of workers, the public, and the environment into one program

. Thus, RMP facility owners and operators must investigate each sign ificant incident which resulted in, or could reasonably have resulted in a catastrophic release with on

- or offsite consequences.
2

. Catastrophic Release Definition In the 1996 final rule (61 FR 31687, June 20, 1996), EPA developed a definition of catastrophic release similar to the definition OSHA used in the PSM standard, with modifications to cover events that presented imminent and substantial endangerment to public health and the environment

. This ensured that owners or operators of sources cov ered by both OSHA and EPA requirements investigated not only accidents that threatened workers, but also those that threatened the public and the environment

. Because EPA modified OSHA’s definition of catastrophic releases so that offsite impacts were cove red, there has been confusion among some owners and operators of facilities subject to the RMP rule; some believe they should not have to investigate accidents involving only workers for the purposes of fulfilling requirements under the RMP rule

. EPA recog nized that the PHA process must address potential offsite impacts associated with safety measures that also protect workers, and that the final rule would ensure that all sources routinely consider such possibilities and integrate protection of workers, th e public and the environment into one program. In similar fashion, EPA believes that incident investigation was not intended to be and should not be limited to only those incidents with offsite impacts. Learning from accident causes identified from incide nt investigations involving only workers can also lead to preventing incidents with further impacts to the surrounding community***E.O.12866 Review

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Page 29 of 234 and therefore, findings and recommendations from all incidents, regardless of who is impacted, should be addressed

. In the prea mble to the 1996 final RMP rule ( 61 FR 31711, June 20, 1996 ) , EPA emphasized that “any incident with the potential for catastrophic consequences in the workplace will also have had the potential for catastrophic consequences offsite. ” Thus , facilit y

owners or operators should be investigating incidents even if they only impacted workers, as these could have potentially been an accident impacting the public or the environment

. EPA has not defined or clarified the term “imminent and substantial endangerment” but did make revisions in the 1996 final RMP rule in order to better define accidents to be reported under the RMP accident history requirements

. To make the requirement less vague and less subject to a wide variety of interpretations, the final rule requ ired that accident history shall include all accidental releases from covered processes “that resulted in deaths, injuries, or significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in place, property da mage, or env ironmental damage.” EPA also provided a definition for “offsite” and “injury. ” EPA is proposing to modify the definition of catastrophic release to mean an uncontrolled emission, fire, or explosion, involving one or more regulated substances that resulted in deaths, injuries, or significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage

. This better defines the impacts for incidents requiring investigations that caused or could have caused these impacts and clarifies EPA’s intent, rather than leaving it open for interpretation

. This is consistent with the accident impacts that must be reported under the 5

- year accident history, which EPA considered relevant to include in 1996 “because it may reflect safety practices at the source” and because “accidental releases from covered processes which resulted in deaths, injuries, or significant property damage***E.O.12866 Review

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Page 30 of 234 on - site, involve failures of sufficient magnitude that they have the po tential to affect offsite areas.” 17 EPA seeks comment on the proposed revision to the catastrophic release definition. 3

. Root Causes The cause of an incident is often the result of a series of other problems that need to be addressed to prevent recurrences . For example, an operator’s mistake may be the result of poor training, inappropriate procedures, or poor design of control systems; and equipment failure may result from improper maintenance, misuse of equipment (e.g., operating at too high a temperature), or use of incompatible materials

. These types of causes are commonly referred to as causal factors (also known as contributing causes, contributory causes, contributing factors, or critical factors)

. The Center for Chemical Process Safety (CC PS) defines a causal factor as a major unplanned, unintended contributor to the incident (a negative occurrence or undesirable condition), that if eliminated would have either prevented the occurrence, or reduced its severity or frequency. 18 These are fac to rs that facilitate the occurrence of an incident such as physical conditions and management practices

. Causal or contributing factors usually have underlying reasons why they occurred, which are known as root causes. Most root causes are associated with w eaknesses, defects or breakdowns in management systems. 19 Identifying root causes provides the mechanism for understanding the interaction and impact of system management failures, so that the root causes can be addressed and the maximum benefit is obtained from an incident investigation

. CCPS defines a root cause as a fundamental, underlying, system

- related reason why an incident occurred that identifies a correctable failure(s) in management systems. There is typically more than one root cause for a proces s safety incident. Correcting only the immediate cause of an incident (e.g., operator error) may prevent the identical

17 EPA. May 14, 1996

. Risk Management Plan Rule, Summary and Response to Comments

. Volume 1, pp. 3

- 11 and 17

- 4. Docket No

. A

- 91

- 73, Document No. IX

- C

- 1. 18 CCPS

. March 2003. Guidelines for Investigating Chemical Process Incidents, 2nd ed. , pp.3, 62, 181, 434. CCPS, American Institute of Chemical Engineers, New York, NY. John Wiley and Sons. 19 EPA recognizes that some root causes could be events that management systems could not have prevented or protected against. The analytic techniques used to identify root causes account for such events.***E.O.12866 Review

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Page 31 of 234 incident from occurring at the same location, but may not prevent similar incidents. Instead, identifying and addressing incident contrib uting factors and their root causes helps eliminate or substantially reduce the risk of reoccurrence of the incident and other similar incidents

. 4

. Lack of Root Cause Analysis for Prior Incidents Below are examples of incident investigations that identi fied similar prior incidents within the same facility or company where root causes for the prior incidents were not analyzed and determined

. This resulted in missed opportunities to address the proper causes of the incidents, share the lessons learned and prevent further similar incidents. On January 21, 1997, at a Tosco refinery, effluent piping on a hydrocracker reactor ruptured, causing an explosion and fire, killing one operator and injuring 46 other Tosco and contractor personnel

. The accident was caused by an uncontrolled temperature excursion in the reactor resulting in an excessively high temperature that caused the pipe to rupture. 20 Operators did not follow prescribed emergency depressurizing procedures for extremely high temperature

occurrences and attempted to control the temperature by other means

. Inves tigations of prior incidents involving unsafe temperature excursions were inadequate and not all these excursions were documented

. Failure to investigate these “near

- misses” resulted in a misse d opportunity to determine why operators were not following prescribed emergency depressurizing procedures and to develop solutions to address the cause

. After the 1997 accident, the company designed the depressurizing system to activate automatically when the reactor temperature exceeded safe operating limits. On September 10, 1997, an explosion occurred in a resins production unit at Georgia

Pacific Resins, Inc. in Columbus, Ohio, causing the death of one worker, four injuries, extensive damage to the pl ant, and sheltering in place for nearby residents, a vocational school and

20 EPA. November 1998. EPA Chemical Accident Invest igation Report, Tosco Avon Refinery, Martinez, CA

. EPA 550

- R

- 98

- 009. http://nepis.epa.gov/Exe/ZyPDF.cgi/10003A2E.PDF?Dockey=10003A2E.PDF

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Page 32 of 234 businesses. 21 Three firefighters received first

- degree burns. An accident investigation determined that raw materials and a catalyst were charged too quickly to a reactor, causing a runaway reaction generating too much heat and pressure , whi ch caused the reactor to explode

. Prior to the accident, the facility had recently experienced a near miss involving similar circumstances. 22 An operator added chemicals to a batch resin process at too high a rate

. Other alert operators noted the procedu ral deviation and were able to prevent an accident

. The company investigated the accident and disciplined the operator, but took no other actions. An accident on June 22, 1997, at a Shell olefins plan t involved a release of flammable gases from a structural failure and drive shaft blowout from a 36 inch diameter failed check (non

return) valve, resulting in a massive explosion and fire causing extensive damage to the facility, damage to nearby resident ial property, several worker injuries, and sheltering in place for nearby residents

. An EPA/OSHA accident investigation determined that these check valves were not appropriately designed and manufactured for the heavy

- duty service to which they were subjec ted in the olefins production unit. 23 Simila r problems with the check valves had occurred previously at the facility and at other facilities owned by the company, but the occurrences were not adequately investigated and did not identify all the factors invo lved in the valves’ failure

. The other valve failure occurrences did not result in as severe consequences as the 1997 event and were treated as maintenance failures, not incidents or accidents

. Thus , the lessons that could have been learned from these prio r failures were not adequately identified, shared, and implemented. On April 8, 1998, at a Morton International chemical plant, a runaway reaction in a process kettle caused an overpressure of the vessel, blew off the top hatch, and spewed a stream

21 EPA , Office of Solid Waste and Emergency Response . August 1999. How to Prevent Runaway Reactions, Case Study: Phenol

- Formaldehyde Reaction Hazards

. EPA 550

- F99

- 004. http://archive.epa.gov/emerg encies/docs/chem/web/pdf/gpcasstd.pdf

. 22 Belke, James C (EPA) . 1997. Recurring Causes of Recent Chemical Accidents

. http://psc.che.tamu.edu/wp

- con tent/uploads/recurring

- causes - of

- recent

- chemical

- accidents.pdf

. 23 EPA and OSHA. June 1998. EPA/OSHA Joint Chemical Accident Investigation Report, Shell Chemical Company, Deer Park, TX

. EPA 550

- R

- 98

- 005. http://nepis.epa.gov/Exe/ZyPDF.cgi/100039YA.PDF?Dockey=100039YA.PDF

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Page 33 of 234 of gas and liquid through the roof of the building and down onto the surrounding community

. Residents in a 100 city

- block area were confined to their homes

. Nine workers were injured, two with severe burns

. The U.S. Chemical Safety Board ( CSB ) de termined that Morton could have corrected safety problems in the process if they had conducted investigations into any of the eight prior instances when process temperatures exceeded the normal range. 24 Process and design changes resulting from such investi gations could have prevent ed the 1998 explosion. On April 23, 2004, an explosion and fire at the Formosa Plastics Corporation (FPC USA), Illiopolis, Illinois, (Formosa

- IL) polyvinyl chloride (PVC) manufacturing facility killed five and severely injured th ree workers. The explosion and fire destroyed most of the reactor facility and adjacent warehouse and ignited PVC resins stored in the warehouse. Smoke from the smoldering fire drifted over the local community, and as a precaution, local authorities ordere d an evacuation of the community for two days. CSB determined that this incident occurred when an operator drained a full, heated, and pressurized PVC reactor and bypassed a pressure interlock. 25 The safeguards to prevent bypassing the interlock were insuff icient for the high risk a ssociated with this activity. Two similar incidents at FPC USA PVC manufacturing facilities highlighted problems with safeguards designed to prevent inadvertent discharge of an operating reactor. The FPC USA Environmental Health & Safety group had received reports of both incidents, but did not recognize a key similarity: operators could mistakenly go to the wrong reactor and bypass safeguards to open a reactor bottom valve. On March 23, 2005, at the BP Texas City Refinery in Texas City, TX, explosions and fires killed 15 people and injured another 180, required shelter

- in

- place for 43,000 people, damaged nearby houses, and resulted in financial losses exceeding $1.5 billion. The incident

24 CSB . 2000. Investigation Digest: Morton International Explosion, Paterson, NJ, April 8, 1998. http://www.csb.gov/assets/1/19/Morton_Digest.pdf

. 25 CSB. March 2007. Investigation Report: VCM Explosion, Formosa Plastics Corp., Illiopolis, Illinois, April 23, 2004

. Report No. 2004

- 10

- I

- IL. http://www.csb.gov/assets/1/19/Formosa_IL_Report.pdf http://www.csb.gov/assets/1/19/Formosa_IL_Report.pdf

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Page 34 of 234 occurred during the startup of an isomerizat ion (ISOM) unit when a raffinate splitter tower was overfilled and pressure relief devices opened, resulting in a flammable liquid geyser from a blowdown stack that was not equipped with a flare. The release of flammables led to an explosion and fire. All of the fatalities occurred in or near office trailers located close to the blowdown drum. A CSB investigation found that in the years prior to the incident, eight serious releases of flammable material from the ISOM blowdown stack had occurred, and most IS OM startups experienced high liquid levels in the splitter tower. 26 The investigation identified root causes of the accident involving senior leadership failures including:

• ineffective safety culture leadership and oversight;

• ineffective evaluation of saf ety implications or organization, personnel, and policy changes ; and

• inadequate resources to prevent major accidents

. Root causes identified involving plant management failures included:

• lack of an effective reporting and learning culture (incidents were often ineffectively investigated);

• use of outdated plant policies and procedures;

• poor design of the ISOM unit;

• inadequate supervision of operators;

• inadequate training of operators;

• ineffective consideration of human factors regarding training, staffing, and work schedules for operators. The ineffective investigation of previous incidents resulted in a failure to identify, or act upon, lessons from incidents and near

- misses. This inc ludes a failure to incorporate relevant

26 CSB. March 2007. Investigation Report: Refinery Explosion and Fire, BP, Texas City, Texas, March 23, 2005

. Report No. 2005

- 04

- I

- TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf

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Page 35 of 234 safety lessons from a British government investigation 27 of incidents at BP’s Grangemouth, Scotland, refinery, which were relevant to the Texas City refinery. On August 23, 2010, the Millard Refrigerated Service ware house in Theodore, AL had a release of approximately 32,000 pounds of anhydrous ammonia from a cracked pipe, when refrigeration equipment malfunctioned. The ammonia travelled directly over a shipyard in Mobile, AL where more than 800 people were working, c ausing 152 people to be treated at hospitals, four of whom were admitted into intensive care units. An EPA investigation of the incident revealed that Millard failed to adequately address a well

- known risk for ammonia production systems called hydraulic sh ock, which can cause catastrophic equipment failures. 28 EPA also discovered that Millard had two prior smaller ammonia releases in April 2007 and January 2010 caused by hydraulic shock. Company investigations of those incidents failed to identify and correc t this problem, which could have prevented the catastrophic release that occurred in August 2010. 5

. Current Use of Root Cause Analysis Root cause analysis of accidents is an accepted safe management practice used by many industries

. The American Chemistry Council (ACC) noted that root cause analysis is conducted routinely under a number of voluntary programs, including Responsible Care. 29 The Texas Pipeline Association (TPA) stated that a requirement to perform a root cause analysis was not needed because it is a common industry practice. 30 However, the Compressed Gas Association

27 Health and Safety Executive (United Kingdo m) and Scottish Environment Protection Agency. August 18, 2003. Major Incident Investigation Report

- BP Grangemouth Scotland, 29 th June

- 10 th May, 2000. A Public Report Prepared on Behalf of the Competent Authorit y. http://www.hse.gov.uk/comah/bpgrange/images/bprgrangemouth.pdf

. 28 EPA

. May 29, 2015. USA vs. Millard Refrigerated Services, LLC , US District Court for the Southern District of Alabama, Civil Action No. 15

- 186. pp. 9

- 11, and 19

- 20. Case 1:15

- cv - 00186

- WS

- M Document 5. http://www2.epa.gov/sites/production/files/2015

- 06/documents/millard

- c p.pdf

. See also http://www2.epa.gov/enforcement/millard

- refrigerated

- services

- llc

- clean

- air

- act

- caa - settlement

. 29 ACC

. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

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- 06 94 on Risk Management Program R

FI , p. 43 of 189. 30 TPA

. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

- 0328

- 0617 on Risk Management Program RFI , p. 8

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Page 36 of 234 (CGA) stated that they supported modifying current regulations to include a requirement that root

cause ana lyses be conducted for incidents but not for near misses or process upsets because defining a “near miss” or “process upset” is extremely difficult and will likely vary by industry, process, locations and the like

. 31 EPA addresses the difficulty of defining the term “near miss”, in S ection IV.A. 7 . Near Misses

. ACC also notes that there are a number of recognized industry resources to aid incident investigations of root causes. For example, CCPS offers several resources, including the

“ Guidelines for Investi gating Chemical Process Incidents,” 2 nd edition , which provides valuable, practical reference tools, and focuses on process

- related incidents with real or potential catastrophic consequences. 32 ACC further notes that there are a number of companies that provide excellent root cause failure analysis training. California’s Contra Costa County Health Services (CCHS) and the city of Richmond, CA each have incident investigation regulations in their Industrial Safety Ordinances (ISO) similar to those in §68.81 and, in addition, require a root cause analysis for each major chemical accident. 33 , 34 New Jersey’s Toxic Catastrophe Prevention Act (TCPA) requires investigation of all extraordinarily hazardous substance accidents or potential catastrophic events. The TCPA requirements have the same incident investigation requirements found in §68.81, but the TCPA

31 CGA

. October 29 , 2014. Comment No. EPA

- HQ

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- 2014

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- 0633 on Risk Manag ement Program RFI, p. 6 32 CCPS 2003. Center for Chemical Process Safety, Guidelines for Investigating Chemical Process Incidents, 2nd Edition, NY: AIChE. 33 Contra Costa County Board of Supervisors. 2006. California’s Contra Costa County ISO, pp. 5, 12

- 13, 17

- 19. http://cchealth.org/hazmat/pdf/iso/2006_iso_official_code_co mplete.pdf

. 34 A major chemical accident is defined in the ISO as one meeting a level 2 or 3 incident classification as determined by the county or one resulting in: one or more fatalities; at least three persons hospitalized for at 24 hours; on

- and/or of fsite property damage (including clean

- up and restoration activities) initially estimated at $500,000 or more; or a vapor cloud of flammables and/or combustibles that is more than 5,000 pounds.***E.O.12866 Review

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Page 37 of 234 investigation report requires additional information beyond the requirements in §68.81. 35 The TCPA investigation report must include:

• Time and location of the chemical accident or potential catastrophic event;

• A description of the chemical accident or potential catastrophic event in chronological order, providing all the relevant facts;

• The identity, amount, and duration of the chemical release if these facts can be reasonably determined based on the information obtained through the investigation;

• The consequences, if any, of the chemical accident or potential catastrophic event, includi ng the number of evacuees, injured, and fatalities, and the impact on the community;

• The factors that contributed to the chemical accident or potential catastrophic event that includes an identification of basic and contributory causes, either direct or in direct; and

• The names and position titles of the investigators. Once the incident scenario is understood and contributory causes identified, this information may be used to determine the incident’s root causes which are the underlying systemic reasons rel ated to a failure in a management system

. EPA believes that providing the following information is vital for understanding the nature of the incident and should be included in the incident investigation report:

• the chronological order of details of the in cidents,

• the chemical identity,

• amount and duration of the release,

• the impacts of the release, and

35 New Jersey Department of Environmental Protection (NJDEP) T CPA. March 29, 2012. NJDEP. Title 7, Chapter 31 TCPA Program Consolidated Rule Document, p. 62. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf

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Page 38 of 234 • basic and contributory causes, either direct or indirect

. Some facility owners or operators may already include this information in incident investigat ion reports prepared to comply with the RMP rule ; however , EPA is proposing that §§68.60 and 68.81 be revised to require this information to ensure clarity and consistency among reports. To better address causes of incidents and further reduce the occurre nce of catastrophic releases, EPA is proposing to require that for all Program 2 and 3 process incidents that resulted in, or could reasonably have resulted in , a catastrophic release, the owner or operator determine and identify the factors that contributed to the incident, including immediate and contributory causes, either direct or indirect, and root causes. EPA is proposing to define “root cause” in §68.3
to mean a fundamental, underlying, system

- related reason why an incident occurred that identifies a correctable failure(s) in management systems. Root causes shall be determined by conducting a root cause analysis for each incident using a recognized method or approach

. CCPS’ “ Guidelines for Investigating Chemical Process Incidents ” discusses incident investigation approaches and techniques and root cause analysis methods. 36 OSHA plans to develop a fact sheet on existing resource s that explain how to conduct

r oot cause analyses so the regulated community can better understand the causes of incidents and can increase its capability to effectively prevent future occurrences. 37 In order that lessons learned from incident investigations be applied, EPA is proposing to modify the hazard review requirement in §68.50(a)(2) and the PHA requirement in §68.67(c)(2) to require the owner or operator to address findings from all incident investigations required under §§68.60 and 68.81, respectively. EPA is also proposing to require that for incident investigations conducted by Program 2 sources, an incident investigation team be established and consist of at least one person knowledgeable in the process involved and other persons with

36 CCPS

. March 2003

. Guidelines for Investigati ng Chemical Process Incidents, 2 nd ed. 37 Chemical Facility Safety and Security Working Group. May 2014. EO 13650 Report to the President

– Actions to Improve Chemical Facility Safety and Security

– A Shared Commitment, p. 47. https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf

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Page 39 of 234 appropriate knowledge and experience to t horoughly investigate and analyze the incident

. This requirement is already part of Program 3 incident investigation requirements, and is a necessary component for investigations that would include analysis of root causes. EPA seeks comment on the proposed amendments of the incident investigation requirements to require root cause investigations for each incident which resulted in, or could reasonably have resulted in , a catastrophic release and on the proposed definition for root cause. 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? EPA also seeks comment on proposed amendments to require consideration of incident investigation findings, in the hazard review (§68.50) and PHA (§68.67) requirements. Finally, EPA seeks comment on the proposed additional requirement in §68.60 to require personnel with appropriate knowledge of the facility process and knowledge and experience in incident investigation techniques to participate on an incident investigation team.
6

. Decommissioned Processes EPA ha s encountered some cases where a facility chose not to conduct an incident investigation because the owner or operator elected to decommission the process involved, or because the process was destroyed in the incident

. While an investigation would have no impact on a decommissioned or destroyed process, other similar processes or operations at the facility, or at similar facilities, could potentially benefit from its findings. CCHS and two industry associations commented that there are lessons that can be learned from requiring investigations to be performed, even in cases where the owner or operator elects to***E.O.12866 Review

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Page 40 of 234 decommission the process involved or where the process is destroyed in the incident. 38 , 39 Therefore, EPA is proposing to revise §§68.60 and 68.81 to c larify that incident investigations are required even if the process involving the regulated substance is destroyed or decommissioned following or as the result of an incident

. EPA is also proposing to revise §68.190, which addresses updates to the RMP , to require that prior to any de

- registration of a process or stationary source that is no longer subject to the R isk M anagement P rogram rule, the owner or operator must report any accidents subject to the requirements of §68.42 and conduct incident investiga tions as required under §§68.60 and/or 68.81

. EPA seeks comment on the proposed revisions to require an owner or operator to meet applicable reporting and incident investigation requirements prior to de

- registering a process. 7

. Near Misses The current in cident investigation provisions require facilities with Program 2 and/or 3 processes to investigate incidents that could reasonably have resulted in a catastrophic release

. These types of incidents are sometimes characterized as “near misses” but there is confusion about what this term means. Several commenters on the Risk Management Program RFI, including the Society of Chemical Manufacturers and Affiliates (SOCMA), 40 American Petroleum Institute (API) , 41 G as Processors Association (GPA) , 42 National Oilseed P rocessors Association ( NOPA ) , & Corn Refiners Association (CRA) , 43 and American Fuel & Petroleum

38 CCHS

. October 28, 2014

. Comment No. EPA

- HQ

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- 2014

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- 0546 on Risk Management Program R FI , p. 12

. 39 I ndependent Petroleum Association of America (IPAA) and A merican Exploration & Production Council (AXPC). October 29, 2014. Comment No. EPA

- HQ

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- 0584 on Risk Management Progr am R FI , p. 33

. 40 SOCMA

. October 29, 2014

. Comment No. EPA

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- 2014

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- 0560 on Risk Management Prog ram RFI , p. 9. 41 API

. October 29, 2014

. Comment No. EPA

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- 0624 on Risk Management Program R

FI , p. 32. 42 GPA

. October 29, 2014

. Comment No. EPA

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- 2014

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- 0626 on Risk Management Program RFI , p. 12. 43 NOPA & CRA

. October 29, 2014

. Comment No. EPA

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- 0328 on Risk Management Progr am RFI , pp. 30

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Page 41 of 234 Manufacturers ( AFPM ) , 44 stated that they interpret the current requirements as including near misses. Other commenters (ACC, 45 TPA, 46 CGA, 31 DPC Industries, Inc. , 47 and Allied Universal Corp ( AUC ) 48 ) urged EPA to not require investigations of near misses because the term is vague, in

herently situation

- specific and not reducible to a singular definition

. CCPS defines a near miss as an event in which an accident causing injury, death, property damage, or environmental impact, could have plausibly resulted if circumstances had been sligh tly different. 49 EPA itself may have contributed to the confusion over the meaning of the term “near miss. ” In the 1993 proposed RMP rule (58 FR 54200, October 20 1993), EPA indicated that investigation of near misses could provide facilities with important information on problems that should be addressed before a significant accidental release occurs

. EPA considered a near miss as a mishap that did not result in a release for some reason, such as employee actions or luck

. However, in the primary in terpretive guidance document for the RMP rule, “ General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR Part 68) ” ( RMP Guidance ), originally published in 1999, EPA indicated that while the owner or operator “must investigate e ach incident which resulted in, or could have resulted in, a catastrophic release of a regulated substance,” the owner or operator was not required to investigate “minor accidents or near misses : ” You should also consider investigating minor accidents or near misses because they may help you identify problems that could lead to more serious accidents; however, you are not required to do so under part 68. 50

44 AFPM

. October 29, 2014

. Comment No. EPA

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- 0665 on Ris k Management Program R FI , pp. 46

- 47. 45 ACC

. October 29, 2014

. Comment No. EPA

- HQ

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- 06 94 on Risk Management Program R

FI , PDF pp. 44

- 45 of 189. 46 TPA

. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

- 0328

- 0617 on Risk Management Program R

FI , pp. 7

- 8. 47 DPC Industries, Inc. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

- 0328

- 0649 on Risk Management Program R FI , p. 4

. 48 AUC

. October 29, 2014

. Comment No. EPA

- HQ

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- 0646 on Risk Management Progr am RFI , p. 3. 49 CCPS

. March 2003. G uidelines for Investigating Chemical Process Incidents, 2 nd ed., p. 61. 50 See General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR p art 68), EPA

- 550

- B

- 04

- 001, April 2004, page 6

- 26. http://www2.epa.gov/rmp/guidance

- facilities

- risk

management

- programs - rmp#general***E.O.12866 Review

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Page 42 of 234 Here, EPA intended to differentiate between incidents, which “could have resulted in a catastrophic release,” and “minor accidents and [minor] near misses,” which are unlikely to have led to a catastrophic release

. EPA’s experiences with RMP facility inspections and incident investigations show there have been incidents that were not investigated, even though under slightly different circumstances, the incident could have resulted in a catastrophic release. While the se events did not result in deaths, injuries, adverse health or environmental effects, or sheltering

- in

- place, if circumstances had been slightly different, a catastrophic release could have occurred. For example, a runaway reaction that is brought under c ontrol by operators is a near miss that may need to be investigated to determine why the problem occurred, even if it does not directly involve a covered process both because it may have led to a release from a nearby covered process or because it may indi cate a safety management failure that applies to a covered process at the facility. Similarly, fires and explosions near or within a covered process, any unanticipated release of a regulated substance, and some process upsets could potentially lead to a ca tastrophic release. Facilities regulated under the NJ ’s TCPA program are required to investigate each regulated chemical (“extraordinarily hazardous substance”), involved in an accident or potential catastrophic event. 51 The NJDEP notes that “potential cat astrophic event” means an incident that could have reasonably resulted in a catastrophic release of a regulated chemical which includes incidents in which no regulated chemical was released or no regulated chemical was released beyond a permitted level, or in other words, a near miss. F acilities report accidents and potential catastrophic events annually to NJ

. NJDEP notes that e ach year, less than fifty percent of the

51 NJDEP TCPA. March 29, 2012. NJ Title 7, Chapter 31 TCPA Program Consolid ated Rule Document, p. 2. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf

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Page 43 of 234 facilities reported that they had one or more incidents. 52 Most of the incidents reported involved the release of a regulated chemical

. The number of near misses reported averaged less than 1 per facility. In its comments on the Risk Management Program RFI, GPA reasoned that requiring a root cause analysis for minor near misses would be burdens ome and costly and would discourage employees and contractors from reporting near misses because of the burden of conducting a rigorous investigation. 53 Similarly, some commenters, such as API thought that process upsets should not be included in incident i nvestigation requirements because there is no standard definition; process upsets vary across a wide range from product quality/efficiency issues to ones that represent near

- miss situations; and learning from process upset events that do potentially challe nge process safety systems can be accomplished via other means

. According to API, including all process upsets would overburden the root cause analysis/investigation resources within a facility

. 54 CCPS’s “ Process Safety Leading and Lagging Metrics

– You Don’t Improve What You Don’t Measure ” explains that a near miss has three essential elements. 55 These include:

• an event occurs, or a potentially unsafe situation is discovered;

• the event or unsafe situation had reasonable potential to escalate, and

• the pote ntial escalation would have led to adverse impacts

. The CCPS document and the CCPS “ Guidelines for Investigating Chemical Process Incidents ” contain many examples of near misses, which can be an actual event or discovery of a potentially

52 NJDEP

. October 21, 2014

. Comment No. EPA

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- 2014

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- 0338 on Risk Management Program R FI , p. 16. 53 GPA

. October 29, 2014

. Comment No. EPA

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- 2014

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- 0626 on Risk Management Program R

FI , p. 14. 54 API

. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

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- 0624 on Risk Management Program R

FI , p. 32. 55 CCPS

. Ja nuary 2011. Process Safety Leading and Lagging Metrics

– You Don’t Improve What You Don’t Measure, p. 36. CCPS, American Institute of Chemical Engineers, New York, NY. John Wiley and Sons

. http://www.aiche.org/sites/default/files/docs/pages/CCPS_ProcessSafety_Lagging_2011_2

- 24.pdf

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Page 44 of 234 unsafe situation. 56 Examples of incidents that should be investigated include some process upsets, such as: excursions of process parameters beyond pre

- established critical control limits; activation of layers of protection such as relief valves , interlocks, rupture discs, blowdown systems, halon systems, vapor release alarms, and fixed vapor spray systems; and activation of emergency shutdowns

. Near misses should also include any incidents at nearby processes or equipment outside of a regulated process if the incident had the potential to cause a catastrophic release from a nearby regulated process

. An example would be a transformer explosion that could have impacted nearby regulated process equipment causing it to lose containment of a regulated substance. Because it is difficult to prescribe the various types of incidents that may occur in RMP

regulated sectors that should be considered near misses, and therefore be investigated, EPA is not proposing a regulatory definition. Instead, EPA will rely on facility owners or o perators to decide which incidents to investigate, based on the seriousness of the incident, the process(es) involved, and the specific conditions and circumstances involved

. In the 1996 Response to Comments on the Final Rule, EPA acknowledged that the ra nge of incidents that reasonably could have resulted in a catastrophic release is very broad and cannot be specifically defined. 57 EPA decided to leave it up to the discretion of the owner or operator to de termine whether an incident could reasonably have resulted in a catastrophic release and to investigate such incidents. The intent is not to include every minor incident or leak, but focus on serious incidents that could have resulted in a catastrophic release, although EPA acknowledges this will require subjective judgment

. Finally, EPA expects that lessons learned from near miss incident investigations be considered when conducting a hazard review or PHA. Therefore, the proposed amendments to §§68.50(a)(2) and 68.67(c)(2) would require the hazard revie w and the PHA to include findings

56 CCPS

. March 2003. Guidelines for Investigating Chemical Process Incidents, 2 nd ed., p. 68. 57 EPA. May 14, 1996

. Risk Management Plan Rule, Summary and Response to Comments

. Volume 1, p. 16

- 4. Docket No

. A

- 91

- 73, Document No. IX

- C

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Page 45 of 234 from all incident investigations required under §§68.6 0 and 68.81

. This includes incidents that could reasonably have resulted in a catastrophic release (i.e., a near miss). 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

. 8

. Investigation Timeframe EPA believes incident investigations will result in improved process safety through the dissemination of lessons learned and the implementation of recommended corrective actions

. Conducting these investigations as soon as possible after an incident may yield bett er quality data and information, a lthough it may take time to collect, validate, and integrate data from a range of

sources . EPA has discovered situations where owners or operators of regulated facilities indefinitely delayed completing incident investigations. Therefore, in the Risk Manag ement Program RFI, EPA considered whether incident investigations should be required to be completed within a certain amount of time

. In their comments on the RFI, Mary Kay O ’ Connor Process Safety Center ( MKOPSC ) 58 stated that the timeframe requirement for an incident investigation to be completed should be based on the following factors: the consequence, the complexity of the incident, the process, the substance, and the investigation team’s experience, knowledge and members

. ACC 59 and API 60 noted that the time to complete an investigation is highly dependent on the complexity of the accident and the process and can require assistance from outside process experts that may not immediately be available. CCHS commented that a specific timeframe for incident investigations to be completed would benefit overall safety and

58 MKOPSC. October 29, 2014

. Comment No. EPA

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- 0543 on Risk Management Program R FI , p. 144. 59 ACC

. October 29, 2014

. Co mment No. EPA

- HQ

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- 2014

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- 06 94 on Risk Management Program R

FI , p. 44. 60 API

. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

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- 0624 on Risk Management Program R

FI , p. 32.***E.O.12866 Review

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Page 46 of 234 noted that most incidents can be investigated within six months. 61 However, CCHS stated that it may be appropriate that a specific time be required that could be changed by documen ted justification

. As to timeframes, some of the refineries in Contra Costa County, CA have corporate requirements to complete all investigations within 30 to 60 days. Exceptions can be granted for large events

. CCHS noted that there are challenges and lim itations to completing an incident investigation within a specified timeframe

. Other RFI commenters, such as TPA, 62 GPA, 63 and JR Simplot, 64 noted that having a specific timeline to complete an investigation could cause facilities to focus more on complying w ith a deadline at the expense of using the appropriate level of rigor and getting the right answer

. EPA’s own experience with accident investigation has shown that a major accident investigation can take up to a year or more

. Taking into consideration the need for completion of an investigation while allowing the proper time to determine the correct root causes, EPA is proposing to require that facility owners or operators complete an incident investigation report within 12 months of an incident that result ed in, or could reasonably have resulted in, a catastrophic release

. For very complex incident investigations that cannot be completed within 12 months, EPA is allowing an extension of time if the implementing agency approves, in writing

. EPA believes that 12 months is long enough to complete most complex accident investigations but will allow facilities more time if they consult with their implementing agency and receive approval for an extension of time

. EPA notes that the Agency’s own requirements under the Petroleum Refinery maximum achievable control technology (MACT) and New Source Performance Standards (NSPS) regulations already require root cause and corrective action analys e s for certain release events

61 CCHS

. October 28, 2014

. Comment No. EPA

- HQ

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- 2014

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- 0546 on Risk Manag ement Program R FI , p. 12

. 62 TPA

. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

- 0328

- 0617 on Risk Management Program R

FI , p. 9

. 63 GPA

. October 29, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0626 on Risk Management Program R

FI , p. 13. 64 JR Simplot

. October 29, 2014

. Comment No. EPA

- HQ

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- 2014

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- 0667 on Risk Management Program R FI , p. 31.***E.O.12866 Review

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Page 47 of 234 (see 40 CFR part s 63.648(j)(6) and (j)(7)) , and 60.103a(d) ) with a more stringent timeframe (i.e., 45 days) for completing the se analyses than the 12 months specified in this proposed rule

. RMP

regulated facilities that are also required to meet the MACT and NSPS root cause analysis requirements mu st continue to meet the timeframes specified under those rules as applicable. However, r oot cause analyses conducted to meet th o se requirements may also be used to comply with the root cause analysis requirements proposed herein , provided the analysis meet s the requirements of §68 .60 or §68 .81, as applicable

. EPA seeks comment on the appropriateness of establishing a specific timeframe for incident investigations to be completed and what that timeframe should be

. As an alternative, EPA considered whether the incident investigation should be completed prior to restart of the affected process, if the incident resulted in a process shutdown, to ensure that the causes of an incident have been addressed

. EPA seeks comment on whether to add this condition to the incident investigation requirements or whether there are other options to ensure that unsafe conditions that led to the incident are addressed before a process is re

- started. EPA also seeks comment on whether the different root cause analysis timeframes s pecified under the MACT and NSPS and proposed herein will cause any difficulties for sources covered under both rules, and if so, what approach EPA should take to resolve this issue

. 9

. Accident History Reporting Thorough investigations and reporting may h elp facilities identify and address root causes. Accident history reporting provides an avenue to disseminate lessons learned

. Local communities are interested in whether facilities are investigating incidents and taking steps to prevent future accidents

. EPA believes it is important to determine and report results of root cause analysis for accidents with reportable impacts in the RMP accident history

. Therefore, EPA has proposed that information on root causes analyzed as part of an incident investigation be included in the RMP accident history in §68.42. Because there can be numerous potential incident root***E.O.12866 Review

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Page 48 of 234 causes identified for a single incident, and in order to simplify reporting for the RMP accident history, EPA believes that the root cause information should be reported as root cause categories

. Various methods for identifying root causes have been published

. Some methods involve the use of root cause trees which show root cause categories for different PSM systems, where each category can be associat ed with many specific root cause deficiencies. 65 , 66 One root cause system uses the following list of root cause categories: Procedures; Training; Communications; Administrative/Management System; Personal Performance; Human Factors Engineering; Immediate Supervision; Equipment Design; Equipment/Records; Equipment Reliability/Maintenance; and Equipment Installation/Fabrication

. Another uses a slightly different list: Procedures, Training, Quality Control, Communications, Management System, Human Engineering and Immediate Supervision

. EPA will modify its on

- line reporting system for RMPs (RMP*eSubmit) to incorporate an appropriate list of root cause categories for RMP facility incident investigations of reportable accidents based on these categories. Because EPA is proposing that the incident investigation be required to be completed within 12 months, root causes may not be known until 12 months after an accidental release

. Section 68.195(a) currently requires that the accident history information in §68.42 b e submitted within six months of the release

. Because EPA is proposing to add accident root cause categories to §68.42, EPA is also proposing in §68.195(a)(2) that the root cause categories be submitted in the RMP within 12 months of the release

. EPA seek s comment on the appropriateness of requiring root cause reporting as part of the accident history requirements of §68.42, as well as the categories that should be considered and the timeframe within which the root cause information must be submitted. 10

. Proposed Revisions to Regulatory Text

65 Paradies, Mark, Unger, Linda and Busch, David

. 1996

. TapRooT® Root Cause TreeTM & User’s Manual , Rev

. 4. Systems Improvements, Inc., Knoxville, TN

. 66 ABS Group Inc . 1999

. Root Cause MapTM and Root Cause Analysis Handbook, A Guide to Effective Incident Investigation

. ABS Group, Inc., Risk & Reliability Division, Knoxville, TN.***E.O.12866 Review

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Page 49 of 234 a. Definitions (§68.3) EPA is proposing to add a definition of “root cause” and modify the definition of “catastrophic release” in §68.3

. b. Five

- year accident history (§68.42) EPA is proposing to amend paragraph (b) by adding a new subparagraph (b)(10) to require of incident investigation root cause categories to be reported. Current subparagraphs (b)(10) and (b)(11) will become subparagraphs (b)(11) and (b)(12), respectively.

c. Hazard review (§68.50) EPA is proposing to amend subparagraph (a)(2) by adding a phrase at the end to require the owner or operator to consider findings from incident investigations. This is similar to the revision proposed for Program 3 facilities in § 68.67( c )(2). d. Incident investigation (§§68.60 and 68.81) EPA is proposing to revise §68.60, which is applicable to Program 2 processes, and §68.81, which is applicable to Program 3 processes, by revising paragraph (a) to add subparagraphs (a)(1) and (a)( 2) to better clarify the scope of incidents that must be investigated. Subparagraph (a)(1) applies to an incident that resulted in a catastrophic release and clarifies that the owner or operator must investigate the incident even if the process involving t he regulated substance is destroyed or decommissioned. Subparagraph (a)(2) applies to a near

- miss, which is an incident that could reasonably have resulted in a catastrophic release. EPA is also removing the phrase “of a regulated substance” from paragraph (a) because it is duplicative

. The definition of catastrophic release refers to releases of regulated substances. EPA is also proposing to add a new paragraph (c) to §68.60 requiring that an incident investigation team be established and consist of at lea st one person knowledgeable in the process involved and other persons with appropriate knowledge and experience to thoroughly investigate and analyze the incident. This is similar to the requirement in §68.81(c) for Program 3 processes. Current paragraphs (c) through (f) would become paragraph (d) through (g)

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Page 50 of 234 EPA is also proposing to make changes to the new paragraph (d) in §68.60 and current paragraph (d) in §68.81 to revise the incident investigation report requirements. EPA is proposing to change the w ord “summary” to “report” and require facility owners or operators to complete incident investigation reports within 12 months unless the implementing agency approves, in writing, an extension of time. Furthermore, EPA is proposing to amend and add new sub paragraphs in the new paragraph (d) in §68.60 and current paragraph (d) in §68.81 requiring additional elements in an incident investigation report. EPA is proposing to:

• Revise paragraph (d)(1) to require the time and location of the incident in the invest igation report;

• Revise paragraph (d)(3) to specify that the description of the incident be in chronological order and provide all relevant facts;

• Add new paragraph (d)(4) to require that the investigation report include the name and amount of the regulated substance involved in the release or near miss and the duration of the event;

• Add paragraph (d)(5) to require a description of the consequences, if any, of the incident;

• Add paragraph (d)(6) to require a description of emergency response actions taken;

• Renumber current paragraph (d)(4) to (d)(7) and require additional criteria related to the factors contributing to the incident, including the ini tiating event, direct and indirect contributing factors, and root causes

. Add language to new paragraph (d)(7) to require that root causes must be determined through the use of a recognized method.

• Renumber the current paragraph (d)(5) to (d)(8) and add l anguage to require a schedule for addressing recommendations resulting from the investigation to be included in the investigation report.***E.O.12866 Review

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Page 51 of 234 Finally, EPA is proposing to amend the current paragraph (f) which would be the new paragraph (g) to add the word inc ident before investigation and change “summaries” to “reports” for consistency.

e. Process hazard analysis (PHA) (§68.67) EPA is proposing to add subparagraph ( c )(2) to require the owner or operator to address findings from incident investigations, as well as any other potential failure scenarios (e.g., incidents that occurred at other similar facilities and or processes). This is similar to the revision for Program 2 facilities in §68.50(a)(2). f. Updates (§68.190) EPA is proposing to amend paragraph (c) to require that the owner or operator report any accidents covered by §68.42 and conduct incident investigations required under §§68.60 and/or 68.81 prior to de

- registering a process or stationary source that is no longer subject to the RMP rule. 11

. Alternative Options EPA considered limiting these requirements to the original universe of Program 3
processes that existed before OSHA changed its PSM retail exemption . Accidents occur at a higher frequency in these processes as compared to processes cove red in Program 2. However, with the shift of many Program 2 processes into Program 3 due to OSHA’s revised policy on the PSM retail facility exemption, most of the accidents at remaining Program 2 processes occur at publicly owned water and wastewater trea tment facilities that are not in Program 3 because they
are not subject to OSHA PSM. 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. These processes pose the same risk as the publicly owned water/wastewater treatment processes that are in Program 3

. EPA decided that there was little justification for limiting the proposed requirements to the changed universe of Program 3
processes afte r the OSHA retail exemption change ; there are fewer than six reportable accidents a***E.O.12866 Review

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Page 52 of 234 year at remaining Program 2 processes

. Although the alternative would be slightly less burdensome on the regulated community, it would also likely prevent fewer accidents t han the proposed approach

. EPA seeks comment on the alternative approach and whether there are any other alternative options that EPA should consider prior to issuing a final action

. B . Third

- Party Compliance Audits In addition to strengthening the incident investigation requirements, EPA is proposing to strengthen the RMP rule’s compliance audit provisions to require independent third

- part y compliance audits after an accident or findings of significant non

- compliance by an implementing
agency for stationary sources with Program 2 and/or Program 3 processes

. Incident investigations often reveal that these facilities have deficiencies in some prevention program requirements relat ed to that process

. Compliance audits entail a systematic evaluation of the full prevention program for all covered processes

. As described below, in some cases, self

- auditing may be insufficient to prevent accidents , determine compliance with the RMP rule ’s p revention p rogram requirements , and ensure safe operation

. Stationary sources that have had accidents and/or substantial non

- compliance with Risk Management Program requirements pose a greater risk to the surrounding communities. EPA therefore believes it is appropriate to require such stationary sources to undergo objective auditing by competent and independent third

- party auditors

. Such independent third

- party auditing can assist the owners a nd operators, EPA (or the implementing agency), and the public to better determine whether the procedures and practices developed by the owner and/or operator under Subparts C and/or D of the RMP rule (i.e., the prevention program requirements) are adequat e and being followed. EPA and the CSB have cited poor compliance audits as a contributing factor to the severit y of past chemical accidents. The CSB identified a lack of rigorous compliance audits as a contributing factor behind the March 23, 2005 explosio n and fire at the BP Texas City Refinery***E.O.12866 Review

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Page 53 of 234 in Texas City, Texas. 67 This explosion and fir e killed 15 people, injured another 180, led to a shelter

- in

- place order that required 43,000 people to remain indoors, and damaged houses as far away as three

- quarters of a mile from the refinery. A CSB investigation of the July 2009 fire and explosion a t the Citgo Corpus Christi Refinery found that Citgo had never conducted a safety audit of hydrofluoric acid (HF) alkylation operations at either of its U.S. refineries equipped with HF alkylation units pursuant to recommendations in API Recommended Practi ce 751, Safe Operation of HF Alkylation Units. 68 The CSB recommended that within 60 days, Citgo complete a third

- party audit of all Citgo HF alkylation unit operations in the United States (Corpus Christi, TX and Lemont, IL) in accordance

w ith API Recommend ed Practice 751

. The CSB also specified qualifications for the selected lead auditor including extensive knowledge of HF hazards, HF alkylation units, and API 751. The CSB found that facility PSM audits failed to detect PSI and operating procedure deficien cies that contributed to the November 2003 chlorine release at DPC Enterprises, L.P. in Glendale, Arizona. 69 The CSB recommended that DPC use a qualified, independent auditor to evaluate DPC’s PSM and Risk Management Program s against best practices and implement audit recommendations in a timely manner at all DPC chlorine repackaging sites. The CSB also found numerous auditing deficiencies following the January 2008 explosion at Bayer CropScience, LP, in Institute, West Virginia. 70 The CSB recommended tha t Bayer commission an independent human factors and ergonomics study of all Institute site PSM

67 CSB . March 2007. Investigation Report : Refinery Explosion and Fire, BP, Texas City, Texas , March 23, 2005

. Report No. 2005

- 04

- I

- TX

. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf 68 CSB. December 9, 2009. Urgent Recommendations to Citgo. http://www.csb.gov/csb

- issues

- urgent

recommendations

- to

- citgo

- finds

- inadequate

- hydrogen

- fluoride

- water

- mit igation

- system

- during

- corpus christi

- refinery

- fire

- last

- july/ 69 CSB. February 2007. Investigation Report : Chlorine Release, DPC Enterprises, L.P., Glendale, Arizona, November 17, 2003

. Report No. 2004

- 02

- I

- AZ. http://www.csb.gov/assets/1/19/DPC_Report.pdf 70 CSB. January 2011. Investigation Report : Pesticide Chemical Runaway Reaction Pressure Vessel Explosion, Bayer CropScience LP, Institute, West Virginia, August 28, 2008

. Report No. 2008

- 08

- I

- W V. http:// www.csb.gov/assets/1/19/Bayer_Report_Final.pdf***E.O.12866 Review

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Page 54 of 234 and Risk Management Program covered process control rooms to evaluate the human

- control system interface, operator fatigue, and control system familiarity and tr aining. EPA has required third

- party audits in enforcement settlement agreements

. For example, EPA found multiple occasions of noncompliance with the Risk Management Program requirements at Tyson Foods, Inc. facilities through a series of inspections and i nformation requests

. Dating back to October 2006, violations included failures to follow the general industry standards to test or replace safety relief valves, improperly co

- located gas

- fired boilers and ammonia machinery, as well as failures to abide by the RMP rule’s prevention program and reporting requirements

. As part of a 2014 consent decree, Tyson Foods, Inc. agreed, in addition to paying a penalty of $3.95 million, to conduct pipe

- testing and third

- party audits of its ammonia refrigeration systems to improve compliance with Risk Management Program requirements at all 23 of the company’s facilities in four Midwestern states. 71 In March 2015, EPA Region 1 issued an administrative order on consent to Mann Distribution LLC and 3134 Post Road LLC (Respondents) regarding R esource Conservation and Recovery Act (RCRA) and CAA 112(r)(1) (the “ general duty clause ”) violations found during an April 4, 2013 inspection at a chemical distribution facility in Warwick, Rhode Island. 72 Like the Risk Management P rogram requirements, Section 112(r)(1) of the CAA addresses safe operation and prevention of accidental releases

. Unsafe conditions found during the inspection included, among other things, failure to have a fire suppression system, failure to inspect a f ire alarm, co

location of incompatible chemicals, and many RCRA generator violations

. The facility also had a prior history of non

- compliance

. The order requires Respondents to implement an independent third

- party inspection program , in addition to imposin g other compliance requirements

.

71 C onsent Decree , United States v. Tyson Foods, Inc., et al. , E.D. Miss., April 4, 2013. http://www2.epa.gov/enforcement/tyson

- foods

- inc 72 Finding of Violation and Administrative Order on Consent, In the Matter of Mann Distrib ution LLC and 3134 Post LLC, Docket Nos. RCRA

- 01

- 2015

- 0028 and CAA

- 01

- 2015

- 0029, March 17, 2015.***E.O.12866 Review

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Page 55 of 234 The proposed independent third

- party compliance audit requirements include a definition of “ t hird

- p arty a udit ” in § 68.3; modifications to existing §§ 68.58 and 68.79 to specify when a
t hird

- p arty audit must be performed; and the requirements for t hird

- p arty a uditor s and third

- party audit s in new §§ 68.59 and 68.80

. EPA is proposing to require third

- pa rty compliance audits to be conducted at stationary sources following an accident meeting the five

- year accident history criteria in § 68.42(a)

. EPA is also proposing a provision to allow an implementing agency to require a third

- party a u dit be performed at a facility under certain circumstances that suggest a heightened risk for an accident

. Th ese circumstances are: non - compliance with the Prevention Program requirements of S ubpart C (Program 2) or D (Program 3) , including non

- compliance with the competency, independence, or impartiality criteria of §68.59(b) or §68.80(b) regarding a previous third

- party audit

. All other stationary sources with Program 2 and Program 3 processes will continue to follow the current compliance audit requirements of §§ 68.58 and 68.79. Sections 68.58 and 68.79 of the RMP regulation (Program 2 and Program 3 Compliance Audits) require owners or operators of stationary sources with processes subject to Program 2 or Program 3 requirements to audit compliance with the p rovisions of Subpart C (Program 2 Prevention Program requirements) or Subpart D (Program 3 Prevention Program requirements) at least every three years

. The purpose of the compliance audits is to verify that the procedures and practices developed under Subparts C and D of the RMP rule are adequate and being followed

. These compliance audit provisions are similar to language to that is found in 29 CFR 1910.119(o) of the OSHA PSM standard

. Sections 68.58 and 68.79 of the RMP regulation and 1910.119(o) of
t he OSHA PSM standard require that the compliance audit be conducted by at least one person knowledgeable in the process, that audi t findings be addressed promptly, and that a report be generated documenting the findings of the audit. Currently, neither EP A nor OSHA requires employers to use independent third

- parties in conducting compliance audits. However, t hird

- party compliance auditors exist, both the RMP rule and the PSM standard permit their use, and they are utilized by some of the Risk Management***E.O.12866 Review

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Page 56 of 234 Pr ogram and PSM regulated community, both voluntarily, and pursuant to enforcement settlement agreements. EPA discussed the potential to use independent third

- party auditors for Risk Management Program compliance audits, in the preamble of the 1996 final RM P rule, as an issue for further consideration. 73 The preamble endorsed the concept of using third parties , citing the following

reasons: t o assist in rule complianc e and oversight, provided that any third

- party proposal not weaken the compliance responsibilities of facility owners or operators ; offer cost savings and benefits to the industry, community, and implementing agencies that significantly exceed the cost of implementing the approach ; lead to a net increase in process safety, particularly for smaller, less technically sophisticated facilities ; and promote cost

- effective A gency prioritization of oversight resources. At the time, EPA did not require the use of third

- party auditors because the Agency believed that several key issues, including qualification criteria, certification procedures, liability, and others, needed to be investigated. Based on EPA ’ s research of other third

- party audit programs as well as the Agency’s own experience with third

- party auditors in the context of enforcement settlements, the Agency is proposing third

- party audit requirements for the rule’s accident prevention program. Third

- party audits are required by other F ederal pro grams in appropriate existing rules , and rules currently in development , to ensure safe operations

. T he Administrative Conference of the United States ( ACUS ) “ Third

- Party Programs Final Report ” (October 22, 2012) describes a variety of third

- party programs in Food and Drug Administration (FDA), Consumer Product Safety Commission (CPSC), and Federal Communication Commission (FCC) regulations

. 74 Further examples follow

. The Bureau of Safety and Environmental Enforcement (BSEE) promulgated revisions to their Safety and Environmental Management Systems (SEMS II)

73 Accidental Release Prevention Requirements: Risk Management Programs Under C AA Section 112(r)(7), 61 FR 31705, June 20, 1996. http://www.gpo.gov/fdsys/pkg/FR

- 1996

- 06

- 20/pdf/96

- 14597.pdf 74 McCallister, Lesley. October 22, 2012. Third

- Party Programs Final Report (2012)

. http://www.acus.gov/report/third

- party

- programs - final

- report

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Page 57 of 234 requirements (78 FR 20423 , April 5, 2013) to help ensure the safe operations of offshore oil and natural gas drilling and production facilities

. BSEE’s SEMS standard, 30 CFR 250, Subpart S, requires audits conducted by an independent third

- party, subject to approval by BSEE, or by designate d and qualified personnel if the employer implements procedures to avoid conflicts of interest

. BSEE’s SEMS II revisions to the standard require that, by June 4, 2015, the team lead for compliance audits must be independent and represent an accredited audi t service provider

. In the preamble to its SEMS II final rule, BSEE discussed its third

- party

- auditing requirements as follows: Consistent audits performed by well trained and experienced auditors are critical to ensuring that SEMS programs are successful ly implemented and maintained on the [Outer Continental Shelf] OCS. As a result, we are adopting industry best practices related to SEMS audits and auditor qualifications. Industry is already voluntarily adopting these practices in many deepwater operation s. We believe that the application of these requirements to all OCS operations will result in more robust and consistent SEMS audits. (78 FR 20430 , April 5, 2013.) Independent third

- party audits or other forms of compliance verification are also required by a variety of EPA rules to promote compliance with regulatory standards

. Examples of EPA regulatory programs with built

- in third

- party verification include the EPA CAA wood stoves rule 75 and the EPA Third

- Party Certification Framewo rk for the Formaldehyd e Standards for Composite Wood Products. 76 Third

- party verification and certification approaches are also employ ed in a variety of

s tate regulatory settings

. Examples include the CAA Title II vehicle inspection, maintenance, and

em issions programs in autho rized s tates, 77 California’s mandatory greenhouse gas (GHG)

75 Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and Forced

- Air Furnaces, 80 F R 13671, March 16, 2015

. http://www.gpo.gov/fdsys/pkg/FR

- 2015

- 03

- 16/pdf/2015

- 03733.pdf 76 Formaldehyde; Third

- Party Certification Framework for the Formaldehyde Standards fo r Composite Wood Products, 78 F R 34796, June 10, 2013

. http :// www.gpo.gov/fdsys/pkg/FR

- 2013

- 06

- 10/pdf/2013

- 13254.pdf 77 See, e.g., Missouri Dept. of Nat. Resources and Missouri State Highway Patrol, First Annual Oversight Report of the Decentralized Gateway Vehicle Inspection Program (2008). http://www.dnr.mo.gov /gatewayvip/docs/enforcementrpt.pdf

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Page 58 of 234 reporting program, 78 and Massachusetts Underground Storage Tank (UST) third

- party inspection
program. 79 There are advantages to third

- party auditing, particularly with strong auditor competence and independence criteria

. According to the CCPS , ‘‘Third

- party auditors (typically, consulting companies who can provide experienced auditors) potentially provide the highest degree of objectivity .’’ 80 ACUS, in its “ Recommendation on Agency Use of Third

- Party Programs to Assess Regulatory Compliance ” (December 6, 2012) (Recommendation) , found that, when well

designed and implemented per the Recommendation , “[s]everal broad reasons support the growing use of third

- party programs in Federal regulation. ” Specifica lly, ACUS found that

... Federal regulatory agencies are faced with assuring the compliance of an increasing number of entities and products without a corresponding growth in agency resources

. Third

- party programs may leverage private resources and expertise in ways that make regulation more effective and less costly

. In comparison with other regulatory approaches, third

- party programs may also enable more frequent compliance assessment and more complete and reliable compliance data

. A leading scholar on regulatory third

- party programs likewise found that, when well

- designed and implemented, “third

- party verification could furnish more and better data about regulatory compliance” while providing additional compliance and resource savings benefit s. 81 An “independent third

- party” is a private auditor, inspector, or other type of verifier external to the facility. “Independent third

- party” excludes the regulated entity, which is the first

78 Cal. Code of Regs. Accreditation Requirements for Verification Bodies, Lead Verifiers, and Verifiers of Emissions Data Reports and Offset Project Data Reports. tit. 17 § 95132(b)(4) (2010); see also Cal. Code of Regs. tit. 17 § 95132(b)(1)(describing the firm requirement of having a lead verifier ); Cal. Code of Regs. tit. 17 § 95132(b)(2) (2010)(describing the lead verifier requirements) and Cal. C ode of Regs. tit. 17 § 95132(b)(1). https://govt.westlaw.com/calregs/Document/I047B3A909A3011E4A28EDDF568E2F8A2 ?viewType=Full Text&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=% 28sc.Default %29 79 MassDEP. 2015. UST Inspection Program

. http://www.mass.gov/eea/agencies/massdep/toxics/u st/third

party

- ust

- inspection

- program.html

. 80 CCPS. March 200 7. Guidelines for Risk Based Process Safety. http://www.aiche.org/ccps/resources/publications/books/guidelines

- risk

- based

- process - safety

. 81 Lesley K. McAllister

. Jan. 2012. Regulation by Third

- Party Verification. 53 B. C. L R EV . 1, 21

- 26

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Page 59 of 234 party (e.g., the stationary source and its parent company and subsidiaries), second parties within the firm’s industry or business community with whom the regulated entity has a supply

- chain relationship, and third parties that are not independent of the first party, which may include contractors, consultants, or pur chasers of the facility’s goods or services. 82 An independent third

party program should not be confused with a second party program in which a regulated source employs a contractor or consultant, even when t he contractor is a separate legal entity from the regulated facility and highly qualified

. If a regulated source provides direct or indirect control over the contractor or consultant preparing the audit report, including controlling the report’s scope or findings, or has other non

- audit relationships wit h the auditor, then the auditor is not a true independent third

- party. This is important because when developing a third

- party audit program, auditor independence can be critical to the success of the program.
T hird

- party compliance audit programs should also establish criteria and standards for auditor independence

. As documented in the ACUS Recommendation on Agency Use of Third

Party Programs to Assess Regulatory Compliance (December 6, 2012) , 83 the ACUS Third

- Party Programs Final Report (October 22, 2012 ) , and the McAllister law review article, auditor independence is critical to ensuring accurate and reliable independent third

- party auditing. 84 The literature on designing independent third

- party programs includes peer

- reviewed empirical studies emphasiz ing the importance of establishing criteria and features for auditor independence to promote accurate audit reports, including those summarized briefly below

. While it is not necessary that all audit s be conducted only by independent third parties, when in dependent third

- party auditing is necessary and appropriate, the literature indicates that, without

82 Lesley K. McAllister

. Jan. 2012. Regulation by Third

- Party Verification. 53 B.C. L. R EV

. 1, 22

- 23 at p. 37. 83 ACUS; Administrative Conference Recommendation 2012

- 7; Agency Use of Third

- Party Programs to Assess Regulatory Compliance (Adopted December 6, 2012) at 3

- 4. https://www.acus.gov/recommendation/agency

- use - third

- party

- programs - assess - regulatory

- complianc e . 84 See, e.g., Lesley K. McAllister

. Jan. 2012. Regulation by Third

- Party Verification. 53 B. C. L R EV . 1, pp. 3, 39

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Page 60 of 234 sufficient safeguards to ensure auditor independence, auditors are more likely to provide lenient or biased audit reports that can fail to accurately identi fy problems and violations by the regulated entity. One such study is a randomized control design field experiment in the State of Gujarat in India. 85 This study revealed weaknesses in the existing third

- party regulatory audit system and the potential for a series of market

- based alterations to dramatically improve auditor accuracy. In India, Gujarat Pollution Control Board regulates more than 20,000 industrial plants. From the universe of audit

- eligible plants located in two populous and heavily polluted i ndustrial regions, the researchers identified a study sample of 473 randomly

- selecte d plants, stratified by region. Half of the plants were randomly assigned into a control group. The other half of the plants, also randomly assigned, were informed by the S tate of changes to their audit regulation that included the following: plants would be randomly assigned auditors they were required to use (i.e., they could no longer choose their own auditors); auditors would be paid from a central pool rather than by th e plant for which they worked; auditor fees were set in advance at a flat rate (high enough to cover pollution measurement and give the auditor a modest profit); a random sample of each auditor’s pollution readings would be verified with follow

- up visits t o the audited plants by an independent technical agency; in year two of the experiment, the third

- party auditors were informed that their pay would be linked to their reporting accuracy as measured by the technical agency’s follow

- up visits. The researcher s found that, under the status quo system, the third

- party auditors systematically reported false pollution levels just below the applicable regulatory standard (also known as strategic misreporting) but the experimental changes significantly improved the truthfulness of the third

- party auditors’ reports, even for auditors operating in both markets who audited firms in both the control and treatment groups. Also, and importantly, once

85 Esther Duflo et al., Truth

- Telling By Third

- Party Auditors And The Response of Polluting Firms: Experimental Evidence From India, 128 Q. J. OF E CON

. 4 at 1499

- 1545 (2013).***E.O.12866 Review

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Page 61 of 234 the plants understood that their auditors would henceforth be reporting m ore accurately to the State, they reduced their actual pollution emissions. A pair of 2013 studies of independent third

- party vehicle emission testing in New York also considered factors impacting third

- party independence

. This research was based on millions of emission test results from thousands of test facilities. 86 The authors’ findings include that there is a relationship between testing facilities’ opportunities to “cross sell” other products and services to car owners and the test results

. The r esearchers found that, in pursuit of customer loyalty, facilities with more cross

- selling opportunities were incentivized to “pass” cars that facilities with fewer cross

- selling opportunities would not. 87 Further evidence suggests that many, if not most, o f some types of financial audits are flawed due to insufficient auditor competence , independence , and/or lack of public transparency

. Third

- party auditing is a linchpin of financial reporting

. But when the Public Company Accounting Oversight Board (PCAOB) released its third annual report on audits of broker

- dealers registered with the Securities and Exchange Commission (SEC), the PCAOB found audit deficiencies in portions of 70 of the 90 audits. Independence problems were found in 21 on the 90 audits where, contrary to SEC rules, firms helped with the bookkeeping or preparation of the financial statements they audited. 88 In 2014, the New York State Department of Financial Services (NYDFS) fined PricewaterhouseCoopers (“PwC”) Regulatory Advisory Services $25 million, suspended it for 24

86 Victor Manual Bennet, et al. August 2013. Customer

- Driven Misconduct How Competition Corrupts Business Practices. Management Science Vol. 59, No. 8, pp. 1725

- 1742. Lamar Pierce and Michael W. Toffel . Sept.

- Oct. 2013. The Role of Organizational Scope and Governance in Strengthening Private Monitoring. Organization Science Vol. 24, No. 5, pp. 1558

- 1584. http://www.hbs.edu/faculty/Pages/item.aspx?num=43347 87 Lamar Pierce and Michael W. Toffel. Sept.

- Oct. 2013. The Role of Organizational Scope and Governance in Strengthening Private Monitoring. Organization Science Vol. 24, No. 5, a t 1575. http://www.hbs.edu/faculty/Publication%20Files/11

- 0 04.pdf 88 PCAOB. Aug. 18 , 2014. Third Progress Report on PCAOB Inspections of Broker and Dealer Auditors Shows Continued High Number of Findings. http://pcaobus .org/Inspections/Documents/BD_Interim_Inspection_Program_2014.pdf***E.O.12866 Review

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Page 62 of 234 months from accepting consulting engagements at regulated financial institutions, and required it to implement a series of reforms after PwC improperly altered a report submitted to regulators on sanctions and anti

- money launde ring compliance at Bank of Tokyo Mitsubishi (BTMU)

. Under pressure from BTMU executives who received an advance draft of its report to review, PwC edited the report, and in the final version of the report which was sent to regulators, a number of key provi sions were deleted or otherwise significantly edited. 89 These recommendations, studies, and reports emphasize the importance of designing independent third

- party programs to embody auditor independence by building in appropriate criteria and processes for t hird

- party independence

. They identify a range of available design elements to promote such independence

. EPA consulted this literature in developing today’s proposed independent third

- party c ompliance auditing program. Industry recognizes the benefits of third

- party auditing programs and have established programs and standards for third

- party audits for some types of operations, many of which are also subject to the RMP rule. 90 T hese programs also demonstrate industry’s understanding that, in appropriate circumstances, third

- party auditing can provide benefits and results above those available through self

- auditing alone

. In addition, these program s and standards illustrate the range and variety of structural design elements that can be, and are, employed in third

- party programs to address auditor competence and independence, auditor certification, the audit process, auditor reporting, recordkeeping, and the public disclosure of audit results and associated inf ormation. Some industry groups, such as SOCMA and the Center for Offshore Safety (COS), require certain types of third

- party audits for their members

. SOCMA members are U.S.

89 Press Release: NYDFS Announces P wC Regulatory Advisory Services Will Face 24

- Month Consulting Suspension; Pay $25 Million; Implement Reforms After Misconduct During Work At BTMU. Aug. 18, 2014. http://www.dfs.ny.gov/about/press/pr1408181.htm 90 EPA has not formally evaluated these programs and standards or their outcomes

. This discussion is not a formal Agency review or endorsement of them.***E.O.12866 Review

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Page 63 of 234 companies engaging in the manufacturing or handling of synthetic and organic chem icals

. Active members have a mandatory requirement to participate in ChemStewards®, a program intended to promote continuous performance improvement in batch chemical manufacturing

. The program offers a three

- tiered approach to participation

. Each tier inc ludes a third

- party verified management system. 91 The COS strategy for promoting safety and protection of the environment includes third

- party auditing and certification of the COS member company’s SEMS and accreditation of the organizations (Audit Service Providers) providing the audit services. The third

- party audits are intended to ensure that COS member companies are implementing and maintaining SEMS throughout their deepwater operations. 92 ACC members are required to participate in a Responsible Care m an agement s ystem described by ACC as including , identifying, and acting to address potential hazards and risks associated with their products, processes, distribution and other operations. One of Responsible Care’s program elements is a process safety code c onsisting of eleven m anagement p ractices through which chemical manufacturers are encouraged to evaluate, demonstrate and continuously improve their product safety performance while making information about chemical products available to the public. 93 According to ACC, the Responsible Care Process Safety Code differs from regulatory standards that, by necessity, focus on process safety at an individual facility

. ACC contends that t he Process Safety Code is more universal

— it addresses issues across a di vision or corporation, and includes a company commitment to set process safety expectations, define accountability for process safety performance and allocate adequate resources to achieve performance expectations. 94

91 SOCMA. 2015. See http://www.socma.com/ChemStewards/

. 92 COS . 2013. See http://www.centerforoffshoresafety.org/ auditInfo.html

. 93 ACC. 2013. Responsible Care Product Safety Code. http://responsiblecare.americanchemistry.com/Responsible

- Care

- Program

- El ements/Product

- Safety

- Code

. 94 ACC. 2013. Responsible Care Process Safety Code

. http://responsiblecare.americanchemistry.com/Responsible

- Care

- Program

- Elements/Process

- Safety

- Code

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Page 64 of 234 The Responsible Care m anagement s ystem process includes mandatory certification, by auditors described by ACC as accredited and independent, to ensure the program participants have a structure and system in place to measure, manage and verify performance. 95
The API , in collaboration with i ndustry partners, has developed a Process Safety Site Assessment Program (PSSAP)

. According to API, the program is intended to provide for the assessment of API member sites’ process safety systems by third

- party teams of independent, industry

- qualified pr ocess safety expert assessors. Using industry

- developed protocols, API describes the process safety site assessments as evaluating the quality of written programs and effectiveness of field implementation for the following process safety areas that will be evaluated: Process Safety Leadership; Management of Change (MOC); Mechanical Integrity (focused on fixed equipment); Safe Work Practices; Operating Practices; Facility Siting; Process Safety Hazards; and HF Alkylation/RP 751

. The assessment teams produce reports that identify observations that site personnel should consider further but do not provide written recommendations. 96
1

. Applicability of Third

- Party Audit Requirements Currently, there are approximately 12,000 stationary sources with Program 2 and/o r Program 3 processes. The proposed rule would not require all of these RMP facilities to use third

party a uditors when conducting compliance audits under Subpart C or D

. Instead, EPA is proposing that owners or operators be required to perform third

- party c ompliance a udits at their facilities only under the following t wo conditions.

95 Certification must be renewed every three years, and companies can choose one of two certification options

. RCMS® certification in intended to verify that a company has implemented the Responsible Care M anagement System

. RC14001® certification combines Responsible Care and ISO 14001 certification

. See http://responsiblecare.americanchemistry.com/Responsible

- Care

- Program

- Elements/Management

System

- and

- Certi fication and http://responsiblecare.americanchemistry.com/Responsible

- Care

- Program

Elements/Process

- Safety

- Code/Responsible

- Care

- Process

- Safety

- Code

- PDF.pdf

. 96 API. 2015. PSSAP

. http://www.api.org/certification

- programs/process

- safety

- site

- assessment

- programs .***E.O.12866 Review

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Page 65 of 234 Under the first condition, a third

- part y c ompliance a udit would be required in lieu of an internal compliance audit if there has been an accidental release from a n RMP facility meeting the five

- year accident history criteria as described in §68.42(a)

. The existing five

- year accident history criteria include accidental releases from covered processes that resulted in deaths, injuries, or significant property damage on - si te ; or deaths, injuries, property damage, evacuations, sheltering in place, or environmental damage offsite

. EPA and other implementing agencies would learn about accidents meeting the five

- year accident history criteria because such accidents
must be incl uded within a facility’s RMP within six months of the accident, in accordance with §68.195(a)

. Following such an accident, the RMP facility ’s owner or operator would be required to engage a third

- party au ditor to conduct a compliance audit for the source

. Pursuant to § § 68.58(h) and 68.79(h), the third

- party aud it and associated report shall be completed, and submitted to the implementing agency pursuant to §68.59(c)(3) or §68.80(c)(3) as follows, unless a different timeframe is specified by the implementing agency: w ithin 12 months of when the third

- party audit is required pursuant to §68.5 8 ( f) and/or (g) or §68. 79 (f) and/or (g); or w ithin three years of completion of the previous compliance audit, whichever is sooner. The second condition is if an implement ing agency has made a determination that a third

party a udit at a n RMP facility is necessary, based on information about the facility or a prior third

- party audit at the facility

. Information about a n RMP facility that would lead to such a determination co uld be obtained from sources including an inspection of a facility by the implementing agency’s representatives

. Relevant information to support the determination may include evidence of significant non

- compliance with the prevention program requirements o f Subpart C or D of Part 68. Significant non

- compliance includes deficiencies relating to a previous third

- party audit (i.e., fail ure to meet the competency, independence, or impartiality criteria of §68.59(b) or §68.80(b) )

. If such a determination is made, the implementing agency must provide a written notice to the owner or operator of the facility stating the reasons for the determination that a third

- party***E.O.12866 Review

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Page 66 of 234 a udit must be performed

. The proposed rule provides for an opportun ity for the owner or operator to provide information and data to the implementing agency and to consult with the implementing agency about the need to perform a third

- party a udit at the facility source before the implementing agency representatives make a final determination

. EPA seeks comment on these proposed third

- party audit applicability requirements

. 2

. Alternative Options for Third

- Party Audit Applicability Criteria EPA considered requiring third

- party c ompliance a udit s for a larger universe of regulated facilities

. We considered whether to require third

- party c ompliance a udit s for all facilities with processes subject to Program 3 requirements at least every three years

. We also considered whether to require third

- part y c ompliance a udit s for all facilities with processes subject to Program 2 or Program 3 requirements every three years

. However, because EPA views facilities that have had accidents or significant non

- compliance as presenting higher risks to surrounding

co mmunities, the Agency is proposing to limit the applicability of this provision to these facilities

. EPA seeks comment on whether to further limit applicability of this provision. For example, EPA could consider limiting the provision to only Program 3 facilities that have had accidents or to only facilities that have accidental releases with offsite impacts . Alternatively, EPA could revise this provision to reduce its impact on small businesses

. When providing suggested alternatives, please include sugg estions for how to improve compliance with auditing provisions.
EPA also seeks com m

ent on whether there are other criteria that could require RMP facilities to perform third

- party c ompliance a udits

. For example, a third

- party audit could be required if an owner or operator of a facility were to learn or know of a condition or conditions at its facility suggesting a concern for, or potential risk of, future accidents

. Such conditions would need to be objective and reasonably ascertainable by the facility ow ners or operators , the implementing agency, and the public

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Page 67 of 234 EPA also seeks comment on the benefits and costs of proposing additional requirements for third

- party c ompliance a udits and recommendations for appropriate conditions suggesting a concern for, or potential risk of, future accidents

. 3

. Proposed Third

- Party Audit Requirements

a. Compliance Audit ( §§ 68.58 and 68.79) In order to prevent accidents and ensure compliance with P art 68 requirements , EPA is proposing to require certain RMP facilities to perform third

- party audits

. The p ropo sed changes to § § 68. 58 and 68.79 would add this require ment for both Program 2 and Program 3 processes, under certain conditions

. EPA proposes new paragraphs §§ 68.58(f) and 68.79(f) which describe when a third

- party audit is required

. Pursuant to these paragraphs, the next required compliance audit for a n RMP facility shall be a third

- party audit when one of the following conditions apply: (1) a n accidental release , meeting the criteria in § 68.42(a) , from a covered process has occurred ; or (2) a n implementing agency requires a third

- party audit based on non

- compliance w ith the requirements of this subpart, including when a previous third

- party audit failed to meet the competency, independence, or impartiality criteria of §68.59(b) or §68.80(b)

. The purpose is to help reduce the risk of future accidents by requiring an ob jective auditing process to determine whether the owner or operator of the facility is effectively complying with the prevention program requirements of Part 68. EPA proposes new paragraphs §§ 68.58(g) and 68.79(g ) , Implementing agency notification and appeals , which describe the proce dure for when a third

- party audit is required by an implementing agency

. Pursuant to these paragraphs, if an implementing agency makes a preliminary determination that a third

- party audit is necessary, the implementing agen cy will provide written notice to the facility owner or operator stating the reasons for the implementing agency’s determination

. The owner or operator has an opportunity to provide information to, and to consult with, the implementing agency. The implemen ting agency then provides a final***E.O.12866 Review

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Page 68 of 234 determination to the owner or operator

. If the final determination requires a third

- party audit, the owner or operator shall comply with the requirements of §68.59 and/ or §68.80, but also may choose to appeal the final det ermination

. After the appeal is considered, the implementing agency will provide a written, final decision on the appeal to the owner or operator. EPA proposes new paragraphs §§ 68.58(h) and 68.79(h), which describe the schedule for conducting third

- party a udits. The audit and associated report shall be completed, and submitted to the implementing agency as follows, unless a different timeframe is specified by the implementing agency: (1) w ithin 12 months of when any third

- party audit is required; or (2)

w it hin three years of completion of the previous compliance audit, whichever is sooner. b. Third

- party Audits (§§68.59 and 68.80) EPA is proposing new §§ 68. 59 and 68.80, which include the requirements for both third

party audits, and third

- party auditors. Sections 68.59(a) and 68.80(a) state that owners or operators shall engage a third

- party auditor to evaluate compliance with the provisions of this subpart in accordance with the requirements of this section when the criteria of §68.58(f) or §68. 79 ( f ) are met

. EPA is proposing, in §§ 68.59(b) and 68.80(b), that owners and operators of RMP facilities subject to these requirements determine and document the competency, independence, and impartiality of their auditors

. These sections require that the facility owners or operators be responsible for self

- determining and documenting that their third

- party auditors are competent and independent pursuant to the criteria listed in § 68.59(b)(1)

- (3) or § 68.80(b)(1)

- (3), by requiring specific provisions and safeguards in their contracts and relationships with their third

party auditors.
EPA seeks comment as to whether the requirement that owners and operators of RMP facilities be responsible for determining and documenting the competency, independence, and impartiality of their auditors is appropriate

. Alternative Option for Third

- Party Auditor Selection and Accreditation***E.O.12866 Review

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Page 69 of 234 EPA also considered an alternative approach, such as requiring auditors to have accreditation from a recognized auditing body or EPA

. M ost independent third

- party regulatory compliance verification programs require the qualifying third

- parties to apply for and receive accreditation from a qualified external party to ensure competency and independence

. Such an external accreditation approach c an add rigor to the process of confirming the competence and independence of the auditors but it also adds proc edures and costs

. Therefore, while EPA is not proposing that the Agency itself will accredit third

- party auditors, E PA seeks comment on whether t o require additional accreditation criteria and how to best establish and structure an accreditation program within the context of the RMP rule

. Auditor Competence
T hird

- party compliance verification programs should establish criteria and standards for auditor competence

. Typically, such criteria and standards combine specified minimum levels of education, knowledge, experience, and training

. EPA is proposing to require in proposed §§ 68.59(b)(1) (i)

– ( iv ) and 68.80(b)(1) (i)

– (iv) that third

- party a udit ors be :

• knowledgeable with the requirements of P art 68 ;

• experienced with the facility type and processes being audited and the applicable recognized and generally accepted good engineering practices (RAGAGEP) ;

• trained or c ertified in proper auditing techniques ; and

• be a licensed Professional Engineer (PE) , or include a licensed PE on the audit team

. EPA seeks comment on whether these criteria are appropriate and sufficient to ensure third

- party a uditors are competent to perform high

- quality complian ce audits

. EPA also seeks comment on whether the proposal to require that a third

- party auditor , or a member of the audit team, be a licensed PE is appropriate and whether there are enough licensed P E s to conduct third

party a udits for the universe of facilities that may become subject to these requirements. EPA also seeks comment regarding potentially relevant and applicable consensus standards and protocols***E.O.12866 Review

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Page 70 of 234 that might apply to the audits and be built and/or incorporated by reference into the rules. Th ese may include relevant and applicable American National Standards Institute (ANSI), A merican Society for Testing and Materials International (ASTM), European Committee for Standardization (CEM), International Organization for Standardization (ISO), and N ational Institute of Standards and Technology (NIST) standards

. Auditor Independence and Impartiality Proposed §§ 68.59(b)(2)(i)

– (vi) and 68.80(b) (2)(i)

– (vi) set forth the i ndependence and impartiality requirements for third

- party auditors and audit teams

. These include that third

- party auditors :

• a ct impartially when performing all third

- party audit activities ;

• r eceive no financial benefit from the outcome of the audit, apart from payment for the auditing services;

• n ot have conducted past research, development, design, construction services, or consulting for the owner or operator within the last 3 years ; 97

• n ot provide other business or consulting services to the owner or operator, including advice or assistance to implement the findings or recommendations in an audit report, for a period of at least 3 years following submission of the final audit report ;

• e nsure all personnel involved in the audit sign and date a conflict of interest
statement ; and

• e nsure all personnel involved in the audit do not accept future employment with the owner or operator of the facility for a period of at least 3 years following submission of the final audit report. For purposes of this requirement, employment does not include performing or participating in third

- party audits pursuant to § § 68.59 or 68.80

.

97 For purposes of this requirement, consulting does not include performing o r participating in third

- party audits pursuant to §68.59 or §68.80.***E.O.12866 Review

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Page 71 of 234 As required by section 609(b) of the RFA, the EPA convened a Small Business Advocacy Review (SBAR) Panel to obtain advice and recommendations from small entity representatives (SERs) that potentially would be subject to the rule's requirements. As part of the SBAR P anel process, S ERs raised concerns about the extent of the independence criteria and suggested this migh t limit the availability of qualified auditors. Specifically, SERs a sked how to apply the independence criteria to a company that employs personnel who previously worked for or otherwise engaged in consulting services with the facility. A udit firms with personnel who, before working for the firm, performed services for the owner or operator as an employee, contractor or consultant, meet the rule’s independence criteria when such personnel do not participate on, manage, or advise the audit teams. Additionally, employees of an auditing firm are not prohibited from accepting f uture employment with the owner/operator as long as they were not directly involved in performing or managing the audit. Another concern raised by SERs is ensuring that third

- party auditors do not pose a terrorism concern or release information that could compromise facility security or CBI . EPA agrees that chemical facility security is a priority and seeks comments on whether there is a need for third

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

- disclosure and contract ual agreements should handle this independently. EPA seeks comment on whether the proposed auditor independence criteria are appropriate and sufficient

. If not, we seek comment on how best to adjust the criteria for maximum auditing effectiveness and efficienc y, including comments or suggestions on how to provide more flexibility in the auditor independence criteria , or whether to eliminate the requirement for independence. EPA also seeks comments on whether the proposed 3

- year timeframe to separate th e audit from other business arrangements with the owner or operator is appropriate. Furthermore, EPA is requesting comment on whether the proposed auditor independence criteria should be modified so as to not exclude a retired employee from auditing a form er***E.O.12866 Review

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Page 72 of 234 employer ’ s facilit y if the employee’s sole continuing financial attachment to the owner or operator is an employer

- financed or employer

- managed retirement plan. While EPA is concerned such attachments could provide the auditor with incentives to ensure the facilities they audit are not financially negatively impacted by their audits, it could also, as a practical matter, limit the available pool of otherwise qualified and competent auditors. EPA seeks comment on the potential magnitude of such incentives and how to address th is concern in the rule. Auditor P olicies and P rocedures Proposed §§ 68.59(b)(3) and 68.80(b)(3) , if finalized, would require that owner or operators of RMP regulated facilities ensure that third

- party auditors have written policies and procedures to ensure that all personnel comply with the competency, independence, and impartiality requirements of these sections

. EPA seeks comment on these proposed provisions. Alternative Options for Auditor Qualifications EPA considered including alternative options in the proposed rule for owners and operators of stationary sources who cannot, despite best efforts, find a third

- party a uditor meeting all of the independence criteria

. Two specific options were considered

. Under the first option, owners and operators of RMP facilities , in addition to self

selecting their third

- party auditors pursuant to the specified independence criteria, would also self

- determine when it is impossible or impractical to hire such auditors a nd self

- select their alternative auditors

. Under this option, the owner or operator would be required to inform the implementing agency and the public of the alternative auditors , which could be accomplished by providing and/or publicly posting information on the alternative auditors and how they were selected

. The information could describe the steps taken to identify auditors meeting all of the rule’ s independence criteria, the identities and competencies of the alternative auditors, the regulatory indepe ndence criteria that the alternative auditors were unable to meet and why, and any steps taken to address or limit the impacts of the auditors’ lack of independence on the outcomes and reliability of their audits.***E.O.12866 Review

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Page 73 of 234 Under the second option, owners and operat ors who, despite best efforts, could not find auditors meeting all the rule’s independence criteria would be authorized to identify specific alternative auditors to the implementing agency and petition it for approval to engage those auditors

. This approac h would include a requirement for auditors not fully satisfying the rule’s independence criteria to prepare and implement Conflict of Interest Mitigation Plans similar to those required by the California Air Resources Board (CARB) under its Regulation for the Mandatory Reporting of GHG Emissions, 98 with associated reporting, recordkeeping, and due process procedures. Under this option, if, despite best efforts, an owner or operator cannot find a third

- party auditor meeting all of the criteria in §68.59( b ) or §68.80( b ), the owner or operator would be required to request approval, in writing , to the implementing agency to use an alternative third

- party auditor

. The implementing agency would then be required, within a specified time frame , to approve or disapprov e the proposed request and provide notice of its decision to the owner or operator

. The owner or operator’s request to use an alternative third

party auditor would include a description of the owner or operator’s efforts to find a n independent third

- party auditor, identification of the proposed alternative third

- party auditor (including the same information required pursuant to this rule for a fully qualified auditor), identification of the specific independence requirements the proposed alternative third

- p arty auditor meets and does not meet, and an organizational chart of the proposed alternative third

- party auditor and related entities with brief descriptions of the primary nature of the work each performs. The owner or operator’s request to use an identi fied alternative third

- party auditor would also include a Conflict of Interest Mitigation Plan demonstrating the steps the auditor would take to mitigate its inability to fully meet the independence requirements in §68.59( b ) or §68.80( b )

. These steps could include ensuring that any individual or organizational component of the auditor with conflicts of interest or impartiality concerns is removed from the audit and/or isolated from

98 C ARB

. July 23, 2015. Verification of GHG Emissions Data Reports

. http://www.arb.ca.gov/cc/reporting/ghg

- ver/ghg

- v er.htm

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Page 74 of 234 the individuals or organizational component conducting the audit, an explana tion of how and why the amount and nature of work previously performed should not be deemed to undermine the auditing team’s credibility and lack of bias, and descriptions of any other adjustments or circumstances taken to address actual or potential sourc es for conflicts of interest, with an appropriate certification signed and dated by a senior owner or operator official. If, pursuant to this option, the implementing agency approves the alternative third

- party auditor, it would provide written notice to t he owner or operator and, upon receipt of the approval, the owner or operator may engage the alternative auditor to conduct the audit under this section

. If the implementing agency does not approve the identified alternative auditor, the implementing agenc y would provide a written notice to the owner or operator stating the reasons for the decision

. Within a specified timeframe after receipt of such written notice, the owner or operator would be required to submit the name of another proposed auditor for th e implementing agency’s consideration

. In the alternative, the owner or operator would be able to appeal the implementing agency’s decision pursuant to the applicable agency’s processes

. EPA considered but did not propose other third

- party auditor indepen dence safeguards than those included in proposed §68.59( b ) (2) or §68.80( b ) (2)

. Examples include mandating the random assignment of auditors, paying them from a central pool of auditing funds, or requiring mandatory periodic auditor rotation after a specifi ed period of time

. Nor has EPA proposed provisions requiring owners and operators to provide advance notice to the implementing agency of third

- party auditor site visits to enable the implementing agency to accompany and observe the third

- party auditors on such visits. 99 EPA seeks comment on these alternative approaches.

99 Compare proposed 40 CFR 770.7(a)(3)(iv) of EPA’s proposed T oxic Substances Control Act (TSCA) formaldehyde in wood products third

- party program proposed rule: “(3) Responsibilities. EPA recognized Laboratory ABs must fulfill the requirements in paragraphs (b)(3)(i) through (xiii) of this section: ... (iv) Upon request, allow EPA representatives to accompany its assessors during an on

- site assessment to observe the audit of a TPC.” Formaldehyde; Third

- Party Certification Framework for the Formaldeh yde Standards for Composite Wood Products, 78 FR 34796, June 10, 2013. http :// www.gpo.gov/fdsys/pkg/FR

2013

- 06

- 10/pdf/2013

- 13254.pdf***E.O.12866 Review

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Page 75 of 234 EPA further seeks comment on whether there are any other alternative approaches to third

- party a uditor qualifications EPA should consider prior to issuing a final action. For example, EPA could, in the final rule, allow for audits to be performed by auditors with some potential conflicts of interest (e.g., employees of parent company, affiliates, ven dors/contractors that participated in developing the facility ’s RMP, etc.) and/or allow a person employed at the facility who is a registered PE to conduct the audit

. If such approaches are adopted in the final rule, the Agency could seek to place appropri ate restrictions on auditors and auditing using third parties with less than full independence from their client facilities in an effort to increase confidence that the auditors will act appropriately when performing their activities under the RMP rule

. Th e purposes of such provisions could include ensuring that auditor personnel who

assess a facility ’s compliance with the RMP rule do not receive any financial benefit from the outcome of their auditing decisions, apart from their basic salaries or remunerat ion for having conducted the audits

. EPA also specifically requests commenters to identify any supportive literature or data as EPA is presently not aware of literature or data showing that such provisions are effective in counteracting biases due to lack of impartiality or independence. There may be other options, in addition to the approaches taken in the proposed third

party compliance auditing program or identified above, that can also increase owner or operator flexibility without compromising audit a ccuracy. EPA seeks comment on such alternative auditor/auditing approaches. If non

- independent or limited independence third

- party auditing, second

- party auditing,

or enhanced self

- auditing is authorized, EPA seeks comment on how best to structure such auditing to maximize auditor independence and accurate auditing outcomes given the lack of complete independence

. EPA also seeks suggestions for what steps a facility should be required
to take if third

- party auditors who meet the proposed independence and competence criteri a are not available. If RMP facilities are allowed, in the final rule, to use enhanced self

- auditing in lieu of independent third

- party auditing, examples of the types of restrictions that could be placed on***E.O.12866 Review

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Page 76 of 234 such self

- auditing to potenti ally improve auditor impartiality and auditing outcomes appear in the U.S. and CARB v. Hyundai Motor Company, et al. C onsent D ecree . 100 Third

- P arty A udit R eport Proposed §§ 68.59(c) and 68.80(c) , if finalized, would require owners o r operators of stationary sources to ensure that their third

- party auditors prepare and submit audit reports

. Proposed §§ 68.59(c)(1) and 68.80(c)(1) , if finalized, would include requirements for the scope and content of these reports, including a statement to be signed by the third

- party auditor certifying that the t hird

- party audit was performed in accordance with the requirements of Subpart C or D

. Proposed §§68.59(c)(1) and 68.80(c)(1) , if finalized, would also require that the final third

- party audit reports must identify any ad justments made by the third

- party auditor to any draft third

- party audit reports provided to the owners or operators for their review or
comment

. EPA believes that these provisions are important to minimize third

- party compliance audit bias

. EPA’s intent i n allowing for owners and operators to receive and comment on draft third

- party compliance audit reports with these additional requirements is to promote factual and informative final third

- party compliance audit reports without compromising their accuracy and independence

. EPA seeks comment, however, on whether we should also require draft third

- party compliance audit reports to be submitted to the implementing agency at the same time, or before, such reports are provided to the owners and operators and wh ether such a requirement would be further effective in minimizing potential third

- party compliance audit bias

. Proposed §§ 68.59(c)(2) and 68.80(c)(2) , if finalized, would include requirements for the retention of reports and records by the third

- party aud itors

. Proposed §§ 68.59(c)(3) and 68.80(c)(3) , if finalized, would require the audit report to be submitted to the implementing agency at the same time, or before, it is provided it to the owner or operator

. Finally, EPA is proposing in §§ 68.59(c)(4) and 68.80(c)(4) that the audit report and related records cannot be

100 U.S District Court of D.C. November 11, 2014. Decree of Consent U.S California Air Resources Board v. Hyundai et al

. http://www2.epa.gov/sites/production/files/2014

- 11/documents/hyundai

- kia

- cd.pdf***E.O.12866 Review

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Page 77 of 234 claimed as confidential attorney work products even if the auditors are themselves, or managed by or report to, attorneys

. EPA seeks comment on these proposed requirements. Other O wner or O pe rator O bligations Proposed §§ 68.59(d) (1 ) and 68.80(d) (1 ) , if finalized, would require owners o r operators, as soon as possible, but no later than 90 days after receiving the final audit report, to determine an appropriate response to each of the findings in the audit report, and develop and provide to the implementing agency a findings response report

. This findings response report would include: a copy of the final audit report; an appropriate response to each of the audit report findings; a schedule for promptly addressing deficiencies; and a statement, signed and dated by a senior corporate officer, certifying that appropriate responses to the findings in the audit report have been identified and deficiencies were corrected, or are being corrected, consi stent with the requirements of subpart C or D of 40 CFR p art 68. The requirement to determine appropriate responses to findings is similar to existing compliance audit requirements that require the owner or operator to “promptly determine and document an a ppropriate response to each of the findings of the compliance audit.” EPA seeks comment on these proposed requirements. EPA also considered prescribing a timeframe within which deficiencies must be corrected , rather than rely on “promptly” address deficiencies

. However, EPA was unable to identify an appropriate timeframe given the variety of possible site

- specific actions that an owner or operator may take to address audit findings

. EPA seeks comment on whether to keep this
appro ach or substitute a specific number of days and, if the latter, what is a reasonable time period to specify and why. Proposed §§ 68.59(d)(2) and 68.80(d) (2) , if finalized, would require the owner or operator to implement the schedule and address deficiencie s identified in the audit findings response report, and document the action taken to address each deficiency, along with the date completed

. Proposed §§ 68.59(d)(3) and 68.80(d) (3) , if finalized, would require the owner or operator to provide a copy of docu ments required under paragraphs (d)(1) and (d)(2) to the owner or***E.O.12866 Review

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Page 78 of 234 operator’s audit committee of the Board of Directors, or other comparable committee, if one exists

. EPA seeks comment on these proposed requirements. Proposed §§68.59(e) and 68.80(e ) , if fi nalized, would require the owner or operator to retain records at the stationary source, including: the two most recent third

- party audit reports, related findings response reports, documentation of actions taken to address deficiencies, and related record s; and copies of all draft third

- party audit reports

. The owner or operator shall
p rovide draft third

- party audit reports, or other documents, to the implementing agency upon request

. For proposed §68.59(e) (Program 2 third

- party audit recordkeeping provision), t hese requirements , if finalized, would not apply to any documents that are more than five years old (for Program 3 third

- party audit records, as for the existing Program 3 compliance audits, the owner or operator woul d be required to retain records to support the two most recent audits)

. EPA seeks comment on these proposed requirements. C. Safer Technology and Alternatives Analysis (STAA) 1

. Meaning of STAA Safer technology and alternatives refer to risk reduction strategies developed through analysis using a hierarchy of process risk management strategies (or hierarchy of controls), which consists of those which are inherent, passive, active, and procedural. 101 This philosophy can be applied initially to all design p hases and then continuously throughout a process’s life cycle by identifying and assessing hazards and developing a control strategy

. IST or inherently safer design (ISD) are those strategies that reduce or eliminate the hazards associated with materials

a nd operations used in a process. The terms IST, ISD , and i nherent s afety are interchangeable terms that are used in the literature and in the field

. The four major inherently safer strategies (ISS) are :

• M inimization

– using smaller quantities of hazardous substances ;

101 CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2 nd ed. , American Institute of Chemical Engineers, CCPS New York, Wiley.***E.O.12866 Review

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Page 79 of 234 • S ubstitution

– replacing a material with a less hazardous substance ;

• M oderation

– using less hazardous conditions or a less hazardous form, or designing facilities that minimize the impact of a release of hazardous material or energy ; and

• S implific ation

– design facilities to eliminate unnecessary complexity and make operating errors less likely. The hierarchy establishes that inherently safer options (e.g., minimization , substitution, moderation , and simplification) are preferable and occupy the top of the hierarchy

. Passive strategies (process and equipment design) are preferable to active ones such as engineering controls (automatic digital or mechanical system controls), which are preferable to procedures or administrative options (controls requiri ng human action)

. However, risk reduction of a process hazard may also be achieved by using a combination of strategies, known as layers of protection. EPA is proposing to require analysis of safer technology and alter n atives as part of the PHA for a subse t of Program 3 processes. 2

. Inherently Safer Technology (IST) A July 2010 DHS report prepared by the CCPS described IST as a philosophy and an iterative process, including eliminating a hazard, reducing a hazard, substituting a less hazardous material, using less hazardous process conditions, and designing a process to reduce the potential for, or consequences of, human error, equipment failure, or intentional harm

. 102 It stated that there is no clear boundary between IST and passive, active , and procedur al risk management strategies

. CCPS further stated that ISTs are relative and can only be described as inherently safer when compared to a different technology, including a description of the hazard or set of hazards being considered, their location, and the potentially affected population

. Because an option may be inherently safer with regard to some hazards and inherently less safe with regard to

102 CCPS. July 2010. Final Report: Definition for IST in Production, Transportation, Storage, and Use. Prepared by: CCPS, American Institute of Chemical Engineers, New York, New York for Chemic al Security Analysis Center, Science & Technology Directorate, U.S. DHS Aberdeen Proving Ground, MD

. http://www.aiche.org/ccps/documents/definition

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Page 80 of 234 others, the decision process must consider the entire life cycle, the full spectrum of hazards and risks, and the potential for transfer of risk from one impacted population to another

. This report also noted that there is currently no consensus on either a quantification method for IST or a scientific assessment method for evaluation of IST options. The report s tates that risk can be reduced by many methods, including ISD , but those methods must include the full spectrum of risk reduction approaches (passive, active, and procedural risk management systems)

. Few technolog ies will be inherently safer with respect t o all hazards, and other approaches will usually be required to manage the full range of hazards and risks. As an example, the report points out that an IST with respect to a catastrophic release hazard may conflict with methods to minimize other hazards, such as theft or diversion of materials, contamination of product, or degradation of infrastructure

. It may not address other hazards at all, or it may create new hazards. 3

. EPA’s Past A pproach to STAA The RMP rule already embodies most aspects of the hierarchy of controls

. For example, §68.67 ( PHA ) requires owners and operators of Program 3 processes to address process hazards using engineering and administrative controls

. In most cases, t he rule’s requirements for compliance with RAGAGEP should ensure that equipment and processes are properly designed , using appropriate passive , active , and procedural controls

. The RMP rule also encourages passive and active mitigation for releases by allowing a source to account for such mitigation techniques in its offsite consequence analysis (see § § 68.25 and 68. 28 )

. However, the rule does not contain any explicit requirement for owners and operators to address the first tier of the hierarchy of controls

– i.e. inherent safety

. For many years, EPA has recognized the importance of considering IST for improving process safety. The preamble of the 1995 supplemental notice of proposed rulemaking for the Risk Management Program recognized “that there are many opportunities to make processes inherently safer without large scale adoption of new technologies (60 FR 13533, March 13, 1995). EPA also noted in the preamble to the 1996 final RMP rule, “Application of good PHA***E.O.12866 Review

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Page 81 of 234 techniques often reveals opportunities for continuous improvement of existing processes and operations wit hout a separate analysis of alternatives” (61 FR at 31674, June 20, 1996)

. The structure of the applicability provisions of the RMP rule, with TQs , encourages minimizing the presence of regulated substances in processes and encourages sources to continue to examine and adopt viable alternative processing technologies, system safeguards, or process modifications to make new and existing processes and operations inherently safer. EPA’s existing guidance on the “general duty clause” in CAA section 112(r)(1) s tates that, “The owners and operators should try to substitute less hazardous substances for extremely hazardous substances or minimize inventories when possible

. This is usually the most effective way to prevent accidents and should be the priority of a p revention program.” 103 In the 1996 final RMP rule, EPA decided not to mandate IST analysis, stating that “EPA does not believe that a requirement that owners or operators conduct searches or analyses of alternative process technologies for new or existing pr ocesses will produce significant additional benefits.” (61 FR 31688, June 2 0 , 1996)

. However, since 1996 EPA has seen that advances in ISTs and safer alternatives are becoming more widely available and are being adopted by some companies

. Voluntary impleme ntation of some IST s ha s been identified through surveys and studies and potential opportunities have been identified through EPA inspections and CSB incident investigations

. EPA now believes that there is a benefit in requiring that some facilities evaluate whether they can improve risk management of current hazards through potential implementation of ISTs or risk management measures that are more robust and reliable than ones currently in use at the facility

. While EPA believes that facilities should look for additional opportunities to increase safety, we believe that the facilit y owners or operators are in the best

103 EPA , Office of Solid Waste and Emergency Response and Office of Enforcement and Compliance Assurance . May 2000. Guidance for Implementation of the General Duty Clause, CAA Section 112(r)(1). EPA 550

- B00

- 002

. http://www2.epa.gov/rmp/guidance

- implementation

- general

- duty

- clause

- clean

- air

- act

- section

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Page 82 of 234 position to decide which changes are feasible to implement for their particular process and that EPA should not require that a facility implement a particular IST

. In addition, in CAA Section 112(r) enforcement cases, facilit y owners or operators have occasionally entered into consent agreements involving implementation of safer alternatives

. For example, a food processor in San Francisco had a release of anhydrous ammonia from its refrigeration system in 2009, resulting in evacuation of the facility and several neighboring businesses and hospitalization of 17 people

. As part of a consent decree , the facility owner or operator converted the anhydrous ammonia refrigeration system to a safer technology that uses glycol and less ammonia, along with implementing other safety measures and system upgrades. 104 Following community complaints and a 2011 EPA inspection, the owner o r operator of a fertilizer facility chose to remove a total of 99,000 pounds of anhydrous ammonia from the facility, thus reducing the risk to the surrounding population. 105 In another case, t he owner or operator of a dairy company agreed to reduce the anhyd rous ammonia inventory and improve release detection equipment at two facilities after two anhydrous ammonia releases in 2005 and 2007 ( the latter causing nine people to spend a night in the hospital) and after EPA identified CAA violations. 106 The owner or operator of a Connecticut metal finishing facility that used chlorine gas for treatment of cyanide waste agreed to implement a project to eliminate the use of chlorine by substituting liquid sodium hypochlorite after EPA found violations of accident
preven tion regulations. 107 A release from one of the chlorine cylinders at the facility could

104 EPA News Release. January 31, 2012 . South San Fr ancisco Food Processing Factory Will Pay Nearly $700,000 in Penalties, Spend $6 Million to Update Refrigeration System Safety. http://yosemite.epa.gov/opa/admpress. nsf/0/1c6b8ee238fd17d185257996005b892f

. 105 EPA News Release. August 14, 2013 . Abilene Products Co., Inc., Agrees to $90,660 Settlement for Violations of CAA at Abilene, Kan., Fertilizer Facility

. http://yosemite.epa.gov/opa/admpress.nsf/0/8BB676093B7826FF85257BC7006B3E4C

. 106 EPA News Release. October 1, 2012. Settlement with Suiza Dairy Corporation for Violations at facilities in Puerto Rico will make facilities safe r, benefit nearby communities. http://yosemite.epa.gov/opa/admpress.nsf/0/319D803456BF7B0885257A8A005A4238

. 107 EPA Region 1 . January 20, 2014. Consent Agreement and Final Order

- In the Matter of: Metal Finishing Technologies, LLC Docket Number: CAA

- 01

- 2013

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Page 83 of 234 potentially have impacted offsite public receptors in a densely populated area

. 108 Thus, EPA’s historic approach to STAA under CAA section 112(r) has resulted in chemical plant operators introducing safer technology and alternatives through implementation of existing rule provisions that address most of the hierarchy of controls, but the Agency has not mandated the use or

a nalysis of IST alternatives

. 4

. P ublic I nput on STAA Public feedback and input to the Working Group established to oversee EO 13650, showed there was broad agreement among facility owners and operators, plant workers, community members, and environmental and union organizations of the benefits of implement ing safer alternatives where feasible. There was, however, no consensus about the role of government in the implementation of IST

. Industry representatives are wary about process design and operational d ecisions, including choices of IST , being imposed through regulations

. Process design and operational decisions are technically complex and often difficult to regulate

. Conversely, many labor and environmental justice representatives believe the Federal
go vernment should have a larger role in encouraging IST , with particular emphasis on the opportunity to reduce the vulnerability of residents and workers from incidents. 109

a. Pending Petition on IST In July of 2012, a coalition representing 54 organizations and individuals petitioned EPA to use its rulemaking authority under CAA section 112(r)(7)(A), “to require the use of IST , where

http://yosemite.epa.go v/OA/RHC/EPAAdmin.nsf/Filings/3A95FA64BDE7026C85257C8600214551/$File/ CAFO%20CAA

- 01

- 2013

- 0073.pdf

. 108 EPA Region 1 . September 30, 2013. Administrative Complaint

- In the Matter of: Metal Finishing Technologies, LLC Docket Number: CAA

- 01

- 2013

- 0073. http://yosemite.epa.gov/OA/RHC/EPAAdmin.nsf/Filings/1BE4A3485C3E1E6B85257C1C0021490D/$File /CAA

- 01

- 2013

- 0073%20Complain t.pdf

. 109 Chemical Facility Safety and Security Working Group. May 2014. E O 13650 Report to the President

– Actions to Improve Chemical Facility Safety and Security

– A Shared Commitment

. EPA, the Department of Labor (DOL), DHS, the Department of Justice ( DOJ), the Department of Agriculture (DOA), and the Department of Transportation (DOT) . Washington, DC

. https://www.osha.gov/chemicalexecutiveorder/final_chemica l_eo_status_report.pdf

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Page 84 of 234 feasible, by facilities that use or store hazardous chemicals. ” The petitioners also requested that pending completion of such rulemaking, that EPA should revise its guidance concerning the enforcement of the CAA general duty clause, section 112(r)(1), 42 U.S.C. §7412(r)(1), to make clear that the duty to prevent rele ases of extremely hazardous substances includes the use, where feasible, of safer technologies to minimize the presence and possible release of hazardous chemicals

. 110 The petitioners state d that many Americans remain at risk of injury or death from the unforeseen release of harmful chemicals from nearby industrial parks, water treatment plants, etc., and that the DHS CFATS, which impose security measures on facilities presenting a high risk of vulnerability to releases of hazardous substances, do not cover water treatment facilities, many of which use and store significant quantities of chlorine gas. The petitioners cite d specific threats or accidents as examples of risks that, in their view , should have been addressed by taking steps to eliminate or minimize extremely hazardous substances 111 where feasible

. Examples they cite d include a 2009 explosion at a refinery in Corpus Christi, Texas, that resulted in the release of more than a ton of hydrogen fluoride, with a much larger release being narrowly avoided. 112 A 2008 explosion and fire at a Bayer CropScience facility in West Vi rginia, narrowly missed causing a breach in piping on the top of an

110 Greenpeace et al. July 25, 2012

. Petition to Prevent Chemical Disasters from Rick Hind of Greenpeace, Richard Moore of Los Jardines Institute and Scott Nelson of Public Citizen sent to EPA Administrator Lisa Jackson, EPA , Washing ton, DC , www.documentcloud.org/documents/404584

- petition

- to

- epa - to

- prevent

chem

- disasters

- filed.html

. 111 This not intended to specifically re ference the Extremely Hazardous Substances (EHSs) listed under §302 of EPCRA

. Section 112(r)(1) of the CAA provides a purpose and general duty to prevent the accidental release and to minimize the consequence of any release of any regulated substances prom ulgated by EPA under §112(r)(3) (40 CFR p art 130) and for “any other extremely hazardous substance. ” Although the term “any other extremely hazardous substance" is not defined, the legislative history of the 1990 CAA A indicate that the term would include a ny agent "which may or may not be listed or otherwise identified by any Government agency which may as the result of short

- term exposures associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, flammabili ty, volatility, or corrosivity. ” See: http://www2.epa.gov/sites/production/files/2013

- 10/documents/gdcregionalguidance.pdf

. 112 Petitioners are referring to an accident at the CITGO Refinery in Corpus Christi, Texas

. For more information on this accident, see CSB

. December 9, 2009. CITGO Refinery HF Release and Fire, Corpus Christi, Texas. Final Report, Urgent Recommendation. http://www.csb.gov/citgo

- refinery

- hydrofluoric

acid

- release

- and

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Page 85 of 234 aboveground tank of methyl isocyanate (MIC), which the petitioners claim ed , if breached, would have resulted in a deadly release of the same chemical responsible for the Bhopal, India disa ster. 113 They also identif ied a 2007 propane explosion and fire at a refinery in Texas that resulted in the release of nearly three tons of chlorine gas, with deaths and injuries avoided only by prompt evacuation of workers. The CSB , which reported the chlor ine release as 5,332 pounds, recommended the refinery replace chlorine used as a biocide in cooling water treatment with inherently safer materials, such as sodium hypochlorite, at all its refineries

. 114 The petitioners also cite d several examples where readily available IST approaches have already been used , such as substitution of liquid bleach or ultraviolet light for chlorine in water disinfection 115 , 116 and the use of alternatives to replace HF in gasoline refining. 117 b. N ational Academy of Scienc e s (NAS) and CSB I nvestigation F indings A 2012 report from the NAS that examined the 2008 Bayer CropScience accident in West Virginia and community concerns surrounding MIC (and other highly toxic materials), found that inherently safer process assessments can be valuable components of PSM that can help facility personnel consider the full range of options in p rocess design. 118 The NAS report found that while Bayer and previous owners of the site incorporated some considerations of IST , these companies "did not perform systematic and complete inherently safer process assessments on the processes

113 CSB. January 2011. Investigation Report : Pesticide Chemical Runaway Reaction Pressure Vessel Explosion, Bayer CropScience, LP, Institute, West Virginia, August 28, 2008. Report No. 2008

- 08

- I

- W V , pp. 88

- 89 , http://www.csb.gov/ass ets/1/19/Bayer_Report_Final.pdf

. 114 CSB

. July 9, 2008

. Investigation Report : LPG Fire at Valero

- McKee Refinery, Sunray, Texas , February 16, 2007 . Report No

. 2007

- 05

- I

- TX. http://www.csb.gov/assets/1/19/CSBFinalReportValeroSunray.pdf

. 115 Orum, Paul and Rushing, Reece. March 2, 2010. Leading Water Utilities Secure Their Chemicals

. Center for American Progress, Washington, DC

. https://www.americanprogress.org/issues/security/news/2010/03/02/7538/leading

- water

- utilities

- secure their

- chemicals/

. 116 M. McCoy. November 9, 2009. Clorox to Stop Using Chlorine. Chemical & Engineering News. http ://pubs.acs.org/cen/news/87/i45/8745notw2.html

. 117 Morris, J. and Hamby, C. May 19, 2014. Use of toxic acid puts millions at risk. Center for Public Integrity . Washington , DC. http://www.publicintegrity.org/2011/02/24/2118/use

- toxic

- acid

- puts

- millions

risk

. 118 NAS

. 2012. Summary

- The Use and Storage of MIC at Bayer CropScience

. pp. 3, 7

. http://dels.nas.edu/resources/static

- assets/materials

- based

- on - reports/reports

- in

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- Summary

Final.pdf

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Page 86 of 234 for manufacturing MIC or the carbamate pesticides at the Institute site. ” Thus , large amounts of MIC, phosgene, and other toxic materials were produced or stored at the site for decades. The NAS also found that industry as a whole lacks a common understanding of what is

nee ded to identify inherently safer processes and accurately quantify their benefits, including the potential for reduced emergency preparedness costs. The NAS panel noted that the goal of ISD is not only to prevent an accident, but also to reduce the consequ ences of an accident should one occur, thus allowing emergency preparedness planners to focus on more readily manageable scenarios. NAS found that inherently safer process assessments will not always result in a clear, well

- defined, and feasible path forwa rd. Although one process alternative may be inherently safer with respect to one hazard

— toxicity of byproducts, for example

— the process may present other hazards, such as an increased risk of fire or more severe environmental impacts. Choosing between opti ons for process design involves considering a series of tradeoffs and developing appropriate combinations of inherent, passive, active, and procedural safety systems to manage all hazards. A 2011 analysis of 63 CSB accident investigation reports, studies a nd bulletins by Canadian university researchers identified over 200 examples of recommendations for risk reduction measures from the hierarchy of controls that apply to the prevention of accidents or consequence mitigation. Thirty

- six percent of the examples involved inherent safety , 8% involved passive engineered safety, 14% involved active engineered safety and 42% involved procedural safety

. ISD items were observed to be equally split among the four primary ISD principles of minimization, s ubstitution, moderation and simplification. 119

119 Paul R. Amyo tte, Dustin K. MacDonald, Faisal I. Khan

. September 2011. An analysis of CSB investigation reports concerning the hierarchy of controls

. Process Safety Progress

. Volume 30, Issue 3, pp. 261

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Page 87 of 234 The CSB has released reports for two recent accidents that the Board indicated could have been avoided if safer technologies had been employed

. CSB found that the use of a safer material, such as high

- chromium steel, would have prevented the accelerated corrosion and failure of carbon steel involved in the equipment rupture at the Tesoro Refinery in Anacortes, Washington in 2010, which resulted in an explosion and fire that killed seven employees. 120 One recommend ation from this CSB accident investigation was that EPA should revise the RMP rule to require the documented use of inherently safer systems analysis and the hierarchy of controls to the greatest extent feasible when facilities are establishing safeguards for identified process hazards

. CSB also cited the failure to use more corrosion resistant high

- chromium steel as a factor in the 2012 Chevron Refinery accident in Richmond, CA which released hydrocarbons that ignited, endangering 19 employees. 121

c. State and Local IST P rograms Some state and local governments have included inherent safety requirements in their regulations

. An IST Review Rule was adopted under the New Jersey TCPA program in May 2008. 122 It requires IST reviews of all facilities covered by the TCPA by evaluating, at a minimum, the four IST principles: minimization, substitution, moderation, and simplification. NJDEP defined “ IST ” to mean “the principles or techniques that can be incorporated in a covered process to minimize or eliminate t he potential for an Extraordinarily Hazardous Substance release.” 123

120 CSB

. May 2014

. Investigation Report : Catastrophic Rupture of Heat Exchanger, Tesoro Anacortes Refinery, Anacortes, Washington, April 2, 2010

. R eport 2010

- 08

- I

- WA

. http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014

- May

- 01.pdf

. 121 CSB

. January 2014

. Regulatory Report : Chevron Richmond Refinery Pipe Rupture and Fire, Chevron Richmond Refinery #4 Crude Unit, Richmond, California, August 6, 2012. Report No

. 2012

- 03

- I

- CA

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

. 122 NJDEP

. March 29, 2012. NJDEP Title 7, Chapter 31 T CPA Program Consolidated Rule Document

. Pages 17, 66

- 68. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf

. 123 NJDEP uses the term “ Extraordinarily Hazardous Substance” to describe the substances that are subject to the NJ TCPA.***E.O.12866 Review

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Page 88 of 234 The rule includes a checklist developed under the direction of the New Jersey Domestic Security Preparedness Task Force. The NJDEP allows any available IST analysis method to be used to perform the IST review, but discusses two methods which are commonly used: (1) integrating IST into the facility’s PHA study and (2) reviewing and completing a checklist containing a number of practical inherent safety consid erations. 124 The NJDEP also requires an IST review report that include s:

• Information on the review team (name, position, qualifications , etc

. );

• IST analysis method used ;

• IST already present in the process ;

• Additional IST identified ;

• IST to be implemented , and a schedule for their implementation ; and

• A list of IST determined to be infeasible. A facility owner or operator must determine an identified alternative’s feasibility, and must provide written justification based on both qualitative and quantitative evaluations of environmental, human health and safety, legal, technological, and economic factors if it decides
not t o implement it. The ACC noted that NJDEP’s definition of inherent safety allowed “add

- on” safety equipment and included routine safety improvements that are not part of the inherent safety concept as defined by CCPS and others. 125 NJDEP visited every regulat ed facility and reviewed the IST report with the facility staff

. A January 2010 report prepared by the NJDEP to summarize the Department’s review of 85 IST reports indicated that approximately 48% of facilities reported

124 NJDEP , Bureau of Release Prevention. January 15, 2015. Gui dance for TCPA, IST Review , Rev. 1

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

. 125 ACC

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Page 89 of 234 that they had implemented or schedul ed to implement IST measures as a result of conducting the IST review. 126 California’s Contra Costa County’s ISO 127 and the City of Richmond, CA’s ISO 128 require owners and operators of stationary sources to consider ISS in the development and analysis of mitigation systems resulting from a PHA for each covered process, and in the design and review of new processes and facilities. Contra Costa County’s CC ISO defined ISS as

“ ISD strategies ” as discussed in the latest edi tion of the CCPS p ublication , “I nherently Safer Chemical Processes , ” 129 and to mean feasible alternative equipment, processes, materials, lay

- outs, and procedures meant to eliminate, minimize, or reduce the risk of a major chemical accident or release by modifying a process rather than adding external layers of protection. Examples include, but are not limited to, substitution of materials with lower vapor pressure, lower flammability, or lower toxicity; isolation of hazardous processes; and use of processes which operate at lower temperatures and/or pressures. The Contra Costa Coun ty ISO requires that the stationary source must select and implement ISS to the greatest extent feasible and as soon as administratively practicable

. If a stationary source concludes that implementation of an ISS is not feasible, the stationary source
must document the basis for this conclusion in meaningful detail. Contra Costa County requires the documentation to include sufficient evidence to demonstrate to CCH S ’s satisfaction that implementing the ISS is not feasible and the reasons for this conclusion. A claim that implementation of an ISS is not feasible can not be based solely on evidence of reduced profits or increased costs. A February 2013 report prepared by CCHS on their ISO program indicated tha t 4

126 NJDEP. January 15, 2010

. IST Implementation Summary

. http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_SUMWEB.pdf 127 Contra Costa County CA. 2006. I SO Code, Title 4

– Health and Safety, Division 450

– Hazardous Materials and Wastes, Chapter 450

- 8

– Risk Management

. Contra Costa County, California pp. 5, 21

- 22

. http:// cchealth.org/hazmat/pdf/iso/2006_iso_official_code_complete.pdf

. 128 The Richmond ISO is identical to the Contra Costa County ISO except it does not include the 2006 amendments made to the Contra Costa ISO which require a safety culture assessment, a human factors program, management of change for maintenance, health and safety positions, and a security vulnerability analysis. CCHS. July 26, 2011. ISO . City of Richmond Annual Performance Review and Evaluation Report. CCHS, Contra Costa County, CA

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

. 129 CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2 nd ed. , American Institute of Chemical Engineers, CCPS New York, Wiley.***E.O.12866 Review

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Page 90 of 234 of 7 facilities covered under the ordinance’s ISS provision implemented at least one inherently safer measure within the previous year. 130 The February 2014 CC H S ISO report 131 indicated that 3 of the 7 facilities reported three or more ISS implemented duri ng the last reporting year. In the city of Richmond, CA, as of July 2011, the two facilities covered by the Richmond ISO had implemented 62 safer alternative measures involving ISSs

. 132 In June 2014, the Contra Costa County ISO requirements were expanded to require evaluation and documentation of ISS analysis for new projects and processes and for existing processes, whenever major changes resulting from incident investigation recommendations, root cause analysis , or management of change review indicate that change could reasonably result in a major chemical accident or release. d. Industry and T rade A ssociation I nput Numerous trade associations (ACC , 133 SOCMA , 134 Independent Petroleum Association of America (IPAA) an d American Exploration & Production Council ( AXPC ) , 135 API , 136 Association of Metropolitan Water Agencies (AMWA) , 137 National Association of Chemical Distributors ( NACD) , 138 National Association of Manufacturers ( NAM) , 139 CGA , 140 Chlorine

130 CCHS. February 26, 2013. Annual Performance Review and Evaluation

- ISO. 131 CCHS. December 9, 2014. Annual Performance Review and Evaluation

- ISO

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

- report.pdf

. 132 CCHS. July 26, 2011. ISO . City of Richmond Annual Performance Review and Evaluation Report. http://cchealth.org/hazmat/pdf/iso/iso_report_richmond.pdf

. 133 ACC

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- 28 of 189. 134 SOCMA

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- 6. 135 IPAA and AXPC

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- 24. 136 API

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- 26. 137 AMWA. October 29, 2014

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- 7. 138 NACD. October 29, 2014

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Page 91 of 234 Institute (CI) , 141 American Fuel & Petrochemical Manufacturers (AFPM) , 142 Chemical Safety Advocacy Group ( CSAG) 143 ), one company, Axiall Corporation , 144 and the Mary Kay O’Connor Process Safety Center (MKOPSC) , 145 noted in their comments on EPA’s RFI, that IST is only one of many a pproaches that may be employed to achieve risk reduction

. The y also noted that identification and evaluation of a safer alternative is not an off

- the

- shelf concept, but requires a holistic and often complex evaluation involving various factors

. The comment ers also indicated that IST decisions must be process

- , site

- , and hazard

- specific, technically and economically feasible, and avoid shifting risk

. These commenters stated that a regulatory program focused exclusively on eliminating a safety hazard would o verlook other important considerations and risks that must be factored into an evaluation of a process change

. They further contended that i mproper implementation of a seemingly safer alternative may lead to undesired consequences

. The commenters argued th at b ecause an option may be inherently safer with regard to some hazards and inherently less safe with regard to others, decisions about the optimum strategy for managing risks from all hazards are required. In their comments on the RFI, AMWA 137 also stated that decisions to select the most appropriate water treatment methods are best made by water utility managers based on a variety of factors

. Most importantly, they stated, these managers should also determine which chemical will most effectively make water safe for public consumption and achieve compliance with the requirements of the Safe Drinking Water Act (SDWA). 146 According to AMWA, allowing

141 CI. October 29, 2014

. Comment No. EPA

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- 8. 142 AFPM

. October 29, 2014

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- 38. 143 CSAG. October 29, 2013

. Co mment No. EPA

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- 21. 144 Axiall Corp. October 29, 2013

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- 0549 on Risk Management Program R FI , pg. 5. 145 MKOPSC. October 29, 2014

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Page 92 of 234 Federal officials to “second

- guess” these local decisions

– with a focus on minimizing potential terror attack consequences offsite, rather than ensuring the appropriate treatment and safety of drinking water

– could lead to inadequately treated water and even detriments to public health

. AMWA also stated that if utilities were simply instructed to consider whether an alternative might be appropriate for them, the costs could be relatively small

. But, in AMWA’s view, if this analysis were required to inclu de numerous prescribed steps, calculations and justifications for subsequent decisions, then costs could quickly escalate beyond what is reasonable and affordable

. MunicpalH2O, a Risk Management Program /PSM compliance consultant for the water/wastewater t reatment industry, commented that implementing these changes is very expensive and cost prohibitive

. The commenter suggested that if a new requirement is placed on regulated water and wastewater facilities to perform an analysis of safer technolog y and alt ernatives, those facilities that have previously completed an analysis of safer technolog y and alternatives for their operation should be allowed to utilize their already completed analysis and be exempt from any future requirement in this area. 147
The American Water Works Association (AWWA) stated that it has found that options often classified as inherently safer may in fact have impacts that counter other Federal initiatives associated with the nation’s transportation systems, energy consumption, and carbon dioxide (CO 2 ) emissions. 148 Because of these risk tradeoffs, critical factors and variables, AWWA maintained that the choice of disinfectant should lie with qualified local officials, who are best acquainted with the specifics of their local situation

. NACD stated that requiring manufacturers to hold smaller quantities of hazardous materials on site would exhaust their limited inventories faster. 138 The commenter also indicated that d istributors would need to deliver hazardous chemicals to these facilities more frequently,

147 MunicipalH2O. October 28, 2103

. Comment No. EPA

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. October 29, 2103

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Page 93 of 234 thereby significantly increasing the number of miles driven to deliver the same amount of product and ultimately increasi ng and shifting risk to the public roadways. In addition, NACD suggested there is a higher risk of incident during product loading and unloading , and that m ore shipments would increase the number of times chemicals must be loaded and unloaded, thereby incr easing risk. NACD also stated that f ixed

- site risks are more manageable than those with a transportation component. 5 . Proposed Revisions to Regulatory Text Based on the considerations discussed above, EPA is proposing to modify the PHA provisions in §68.67 to require analysis of potential safer technology and alternatives that would include, in the following order of preference: IST or ISD, passive measures, active measures, and procedural measures. EPA is limiting the proposed provisions to Program 3 processes in the petroleum and coal products manufacturing (NAICS 324), chemical manufacturing (NAICS 325), and paper manufacturing (NAICS 322) sectors for reasons discuss ed in S ection IV.C. 6 . STAA Appli cability.

EPA is also proposing to require owners or operators to evaluate the feasibility of implementing any IST or ISD considered. EPA believes a feasibility analysis of any considered IST or ISD is necessary to ensure the facility owner or operator ser iously considers whether IST or ISD modifications could further reduce risks and prevent accidents at the facility. EPA is not proposing to require sources affected by this provision to implement an evaluated IST or ISD because the decision to implement s uch 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. This decision should be based on a careful analysis and take into account: the chemicals present and their associated hazards; the operations and process conditions involved; and the types of equipment used that are specific to the facility’s process.***E.O.12866 Review

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Page 94 of 234 a. Definitions (§68.3) EPA is proposing to add several definitions that relate to a STAA in §68.3. EPA is adding these definitions to describe risk reduction strategies that the owner or operator may use when considering safer technology and alternatives. First, EPA is proposing that “IST or design” would mean risk management measures that minimize the use of regulated substances, substitute less hazardous substances, moderate th e use of regulated substances, or simplify covered processes in order to make accidental releases less likely, or the impacts of such releases less severe. Second, EPA is proposing a definition for “p assive measures” that would mean risk management measur es that use design features that reduce the hazard without human, mechanical, or other energy input. Examples of passive measures include pressure vessel designs, dikes, berms, and blast walls. The third risk reduction measure that EPA is proposing to def ine is “active measures.” These involve engineering controls that rely on mechanical, or other energy input to detect and respond to process deviations. Examples of active measures include alarms, safety instrumented systems, and detection hardware (such a s hydrocarbon sensors). Lastly, “procedural measures” would mean risk management measures such as policies, operating procedures, training, administrative controls, and emergency response actions to prevent or minimize incidents. Examples of procedural me asures may include administrative limits on process vessel fill levels, procedural steps taken to avoid releases, etc. In order to evaluate the ISTs and ISDs considered, EPA is proposing to define “ feasible ” to 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

. b. Process hazard analysis (PHA) (§68.67)***E.O.12866 Review

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Page 95 of 234 EPA is proposing to modify the PHA provisions by adding paragraph (c)(8) to §68.67, to require that the owner or operator of a facility with Program 3 processe s in NAICS codes 322, 324, and 325 address safer technology and alternative risk management measures applicable to eliminating or reducing risk from process hazards. EPA is proposing to add paragraph (c)(8)(i) to specify that the analysis include, in the f ollowing order of preference: IST or design, passive measures, active measures, and procedural measures. The owner or operator may evaluate a combination of risk management measures to reduce risk. EPA is also proposing to add paragraph (c)(8)(ii) to requ ire that the owner or operator determine the feasibility of the IST or ISD considered. The results of the feasibility analysis must be documented as part of the current PHA requirements in §68.67(e), which requires the owner or operator to document actions to be taken and resolution of recommendations. The PHA must be updated and revalidated every five years in accordance with paragraph §68.67(f) and as such, this provides the owner or operator opportunities to evaluate the feasibility of IST or ISD consid ered since the last PHA review. EPA believes that five year revalidation will give the owner or operator the opportunity to identify new risk reduction strategies, as well as revisit strategies that were previously evaluated to determine whether they are n ow feasible. EPA seeks comment on these proposed revisions. 6. STAA Applicability EPA is proposing to limit the applicability of the STAA provisions to sources in the petroleum and coal products manufacturing (NAICS 324), chemical manufacturing (NAICS 32 5), and paper manufacturing (NAICS 322) sectors for two reasons. First, EPA believes that while most sectors regulated under 40 CFR part 68 could identify safer technology and alternatives, sources involved in complex manufacturing operations have the grea test range of opportunities to identify and implement safer technology, particularly in the area of inherent safety. These sources generally produce, transform, and consume large quantities of regulated substances under sometimes extreme process conditions and using a wide range of complex technologies.***E.O.12866 Review

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Page 96 of 234 Therefore, such sources can often consider the full range of inherent safety options, including minimization, substitution, moderation, and simplification, as well as passive, active, and procedural measures . This contrasts with regulated sources that simply sell or distribute a particular regulated substance, such as bulk anhydrous ammonia. Although such sources may also have opportunities to identify and implement IST, the existence of such sources is predi cated on handling and distributing a specific regulated substance. Therefore, their opportunities to implement certain IST strategies such as substitution or minimization may be limited. Similarly, sources involving relatively simpler chemical processes ma y have opportunities to implement chemical substitution strategies but may be limited in their ability to apply moderation and simplification strategies. Second, EPA notes that RMP facilities in the three selected sectors have been responsible for a relat ively large number of accidents, deaths, injuries, and property damage. 149 EPA compared the number of RMP accidents that occurred between January 1, 2004 and December 31, 2013 reported by twelve industry sectors to the number of facilities in each sector. Ea ch sector was comprised of industries based on similar operations involving the RMP substances and complexity. The twelve sectors were: petroleum and coal products manufacturing (NAICS 325), paper manufacturing (NAICS 322), chemical manufacturing (NAICS 32 4), food and beverage manufacturing (NAICS 311, 312), other manufacturing (all other NAICS 31

- 33), agricultural chemical distributors (NAICS 11, 42491), chemical/petroleum wholesalers (NAICS 4246, 4247), other wholesalers (all other NAICS 423, 424), wareho uses (NAICS 493), water supply/wastewater treatment (NAICS 22131, 22132, 924), oil/gas extraction (NAICS 211) and all other (NAICS 211 (except 22131 and 22132), 44, 45, 48, 54, 56, 61, 72). The sector accident rates (number of accidents divided by the num ber of facilities in each sector) ranged from 1.08 to 0.04. Three sectors have significantly higher accidents rates as compared to other sectors: 1.08

149 EPA. Date Technical Background Document for Notice of Proposed Rulemaking: Risk Management Program s under the Clean Air Act, Section 112(r)(7).***E.O.12866 Review

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Page 97 of 234 (petroleum and coal products manufacturing), 0.66 (paper manufacturing) and 0.36 (chemical manufacturing) . The petroleum and coal products manufacturing accident rate was 6

- 27 times higher, the paper manufacturing accident rate was about 4

- 6 times higher, and the chemical manufacturing accident rate was 2

- 9 times higher than other sectors

. Therefore, implemen tation of safer technology and alternatives by these facilities in the pulp/paper manufacturing , chemical manufacturing , and petroleum refining sectors may prevent serious accidental releases in the future. EPA seeks comment on whether the proposal to limi t the STAA provisions to Program 3 regulated processes in NAICS 322, 324, and 325 is appropriate. EPA also seeks comment on whether the Agency should further limit applicability of the STAA provisions to apply only during the design stage of new processes or facilities.
7

. Guidance on Evaluating IST Some owners or operators have already made process changes considered to be inherently safer, but others may not have sufficient information available to effectively assess whether their existing processes can incorporate inherently safer measures

. To assist owners or operators with evaluating options for safer alternatives, EPA and OSHA developed a chemical safety alert in June 2015 illustrating the concepts, principles and examples of safer technology and alte rnatives to make industry more aware of this information, while providing sources of information for further investigation and review. 150 To conduct an IST / ISD analysis, EPA and OSHA have said o wners or operators may

use any available methodology or guida nce to conduct their safer alternative analysis, such as approaches discussed by CCPS ( e.g., Hazard and Operability Study (HAZOP), What

- If?,

150 EPA and OSHA

. June 2015

. Chemical Safety Alert: Safer Technology and A lternatives. EPA 550

- F

15

- 503

. https://www2.epa.gov/rmp/chemical

- safety

- alert

- safer

- technology

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Page 98 of 234 Checklist, Consequence

- based methods), 151 the NJ TCPA IST guidance materials, 152 the Inherently Safer Systems Checklist provided by Contra Costa Hazardous Materials Program, 153 or the information on OSHA’s w ebpage , “ Transitioning to Safer Chemicals: A Toolkit for Employers and Workers

. ” 154 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. 155 Examples for why inherent safety review recommendations may not be feasible, include when the recommendation:

• Is in conflict with existing Federal, stat e and local laws.

• Is in conflict with RAGAGEP.

• Is economically impractical, such that the process unit would stop being fiscally feasible

. This can include consideration of:

o Capital investment;

o Product quality;

o Total direct manufacturing costs;

o Operability of the plant; and/or

o Demolition and future clean

- up and disposal cost.

• Would have a negative social impact

. Some examples could include an unacceptable visual or noise impact on the community, or increased traffic congestion.

151 CCPS. 2009. Inherently Safer Chemical Proces ses: A Life Cycle Approach, 2 nd ed. , American Institute of Chemical Engineers, CCPS New York, Wiley. 152 NJDEP , Bureau of Release Prevention . January 15, 2015. Guidance for TCPA , IST Review. http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_guidance.pdf . See also NJWEC. May 5, 2008. New Rule for IST Review by NJDEP

. http://www.njwec.org/PDF/Factsheets/CS_IST_FactSheet.pdf

. 153 CCHMP. June 15, 2011 . ISS Checklist (extracted from IST Checklist found in the CCPS Inherently Safer Chemical Processes, 2 nd ed

. , with incorporation of additional considerations ). http://cchealth.org/hazmat/pdf/iso/attachment_c.pdf

. 154 OSHA. Transitioning to Safer Chemicals, a Toolkit for Employers and Workers. https://www.osha.gov/dsg/safer_chemicals/index.html

. 155 CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2 nd ed. American Institute of Chemical Engineers, CCPS. New York, Wiley, 2009. Pgs. 200

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Page 99 of 234 • May violate a license agreeme nt that cannot be modified, and so must remain in effect.

• May decrease the hazard, but would increase the overall risk.

• Provides less risk reduction than an alternative recommendation. 8

. Alternative O ptions As an alternative option, EPA is seeking comment on whether to require facility owners or operators to implement any of the feasible options identified in the facility’s analysis

. This option would rely on the owner or operator to select the specific technology or design to implement

. EPA seeks comment on the factors EPA should consider when determining whether to require implementation of feasible options. EPA evaluated the NJDEP 122 and CCHS 131 IST analysis programs as possible models to use in the Risk Management Program requirements . EPA seeks comment on whether w e should include the following in our proposed STAA provisions:

• A spects of the NJDEP’s program, such as more prescribed documentation of STAA;

or

• Other aspects of CCHS’s program, such as requiring ISS analysis during the design of new processes, for PHA recommendations, or for major changes from an incident investigation recommendations, root cause analysis or management of change review that could reasonably result in a major chemical accident or release. Finally, EPA seek s comment on whether either EPA or a third

- party should create a “clearinghouse” of safer technolog y and alternatives that allow source owners or operator s to share useful information and/or consult to identify technologies to evaluate for their process

. We note that the concept of a cle aringhouse has drawn support in comments on the RFI from state and local officials, labor and environmental stakeholders, academics, and industry***E.O.12866 Review

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Page 100 of 234 representatives. 156 One mechanism of collecting relevant information could be OSHA’s best practices website , 157 which collects and shares chemical safety and security best practices, including s afer alternatives. Alternatively, EPA could require submission of STAA analyses, or information from those analyses, directly to EPA, and develop its own website. The inform ation shared on such a website may include practicable risk reduction measures that could be applied at various facilities to mitigate threats to the public, worker, health, environment, and facility during the production, transport, and use of chemicals. D. Stationary Source Location and Emergency Shutdown Serious accidents often highlight numerous safety concerns and emphasize the need to consider existing regulations, industry standards, recommended practices and guidance to reduce risks of future inci dents. Two issues of particular importance include the location of stationary sources and their emergency shutdown capabilities.
1

. Stationary Source Location The location of stationary sources, and the location and configuration of regulated processes and equipment within a source, can significantly affect the severity of an accidental release. The location of the stationary source in relation to public and environmental receptors may exacerbate the impacts of an accidental release, such as blast overpress ures or concentrations

156 AMWA. October 29, 2014. Comment No. EPA

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- 0639 on Risk Management P rogram RFI, p. 3 ; BlueGreen Alliance. October 27, 2014. Comment No. EPA

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- 0579 on Risk Management Program RFI. p. 6. www.bluegreenalliance.org ; BWD. October 24, 2014. Comment No. EPA

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- 0654 on Risk Management Program RFI. p. 3. Beaver Water District (BWD), Lowell, Arkansa s; CCHS. October 28, 2014. Comment No. EPA

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- 0546 on Risk Manage ment Program RFI, p. 8 ; CPCD. October 29, 2014. Comment No. EPA

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- 19 ; MKOPSC. October 29, 2014. Comment No. EPA

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- 0543 on Risk Management Program RFI, p. 105 ; Tickner, J. Octobe r 29, 2014. Comment No. EPA

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- 0688 on Risk Management Program RFI. p. 6. University of Massachusetts, Lowell, M assachusetts; TURI. October 29, 2014. Comment No. EPA

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- 0539 on Risk Management Program RFI. Toxics Use Reduction I nstitute (TURI), University of Massachusetts, Lowell, Massachusetts. p. 5; United Steelworkers. October 29, 2014. Comment No. EPA

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Page 101 of 234 of toxic gases, or conversely may allow such effects to dissipate prior to reaching receptors. The lack of sufficient distance between the source boundary and neighboring residential areas was a significant factor in the severity of several major chemical accidents, including, among others, the Bhopal disaster 158 and the recent West Fertilizer accident. In the Bhopal disaster, most of the deaths and injuries occurred in a residential area that had grown up next to the plant

. In the West Fertilizer accident, an apartment complex located approximately 450 feet from the source of the explosion was heavily damaged, resulting in 3 public fatalities (a total of 15 people were killed in the explosion). The explosion also caused over 200 injurie s, as well as damage to over 350 homes, three schools, and a nursing home located near the plant. 159 Facility designers have long recognized the potential benefits of adding buffer or safety

zones (i.e., controlled areas separating the public and other facilities from the consequences of process incidents ) when selecting the location for new chemical facilities

. For existing facilities, owners have sometimes compensated nearby residents to relocate away from the facility boundary in order to create a buf fer zone where one did not previously exist, or where adjacent residential areas had been developed after the facility itself was constructed. The selection of locations of processes and process equipment within a stationary source can impact the surround ing community not only by the proximity of the accidental release to offsite receptors near the facility boundary (e.g., people, infrastructure, environmental resources) but also by increasing the likelihood of subsequent releases from other nearby process es compromised by the initial release

. The 1984 disaster at the PEMEX liqu ef i e d petroleum gas (LPG) tank farm in San Juan Ixhuatepec, Mexico, illustrates the potential for such effects

. In this accident, an LPG pipeline rupture resulted in a large ground f ire that spread to nearby LPG

158 Lees, Frank P. 1996. Loss Prevention in the Process Industries, Volume 3, 2 nd ed. Appendix 5 Bhopal. Butterworth

- Heine mann, Oxford, Great Britain. 159 CSB. 2015. Final Investigation Report, West Fertilizer Plant Fire and Explosion, West, TX, April 17, 2013. R eport 2013

- 02

- I

- TX. http://www.csb.gov/west

- fertilizer

- explosion

- and

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Page 102 of 234 storage vessels, initiating a series of massive explosions

. The cascading explosions and fires ultimately destroyed the entire facility and many nearby residences, resulting in over 500 fatalities and thousands of severe injur ies. 160 In the United States in 2007 , a large fire at the Valero McKee refinery in Sunray, Texas, resulted in the release of chlorine gas and sulfuric acid from an adjacent process, which prevented responders from entering the area and extinguishing the fir e for more than two days. 161 At West Fertilizer, the Risk Management Program

- regulated anhydrous ammonia process was located near the AN storage area. Although the AN explosion did not cause any secondary release of anhydrous ammonia, the potential for a release existed. A 1994 explosion involving AN solution at Terra Industries in Port Neal, Iowa which killed four workers, also damaged on

site ammonia tanks, creating a n ammonia cloud that resulted in the evacuation of 2,500 people. 162 The PSM standard and RMP rule both require that facility siting be addressed as one element of a PHA (see 29 CFR 1910.11 9(e)(2) and (3)(v)), and 40 CFR 68.67(c)). While EPA has not provided any guidance on how to adequately address stationary source siting in the PHA, RMP facility owner s or operators can refer to industry guidance on siting considerations. The following publications provide guidance on facility siting:

• API Recommended Practi ce 752, Management of Hazards Associated With Location of Process Plant Buildings, 3 rd Edition, December 2009;

• API Recommended Practice 753, Management of Hazards Associated with Location of Process Plant Portable Buildings, First Edition, June 2007;

160 Lees, Frank P. 1996. Loss Prevention in the Process Industries, Volume 3, 2 nd ed

. Appendix 4 Mexico City. Butterworth

- Heinemann, Oxford, Great Britain. 161 CSB

. July 9, 2008

. Investigation Report : LPG Fire at Valero

- McKee Refinery, Sunray, Texas , February 16, 2007 . Report No

. 2007

- 05

- I

- TX. http://www.csb.gov/valero

- refinery

- propane - fire/

. 162 EPA , Region 7, Emergency Response and Removal Branch (Kansas City, KS) . January 1996. Chemical Accident Investigation Report : Terra Industries, Inc., Nitrogen Fertilizer Facility, Port Neal, Iowa (January 1996). ht tp://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf

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Page 103 of 234 • CCPS Guidelines for Evaluating Process Plant Buildings for External Explosions, Fires, and Toxic Releases, Second Edition, 2012; and

• CCPS Guidelines for Facility Siting and Layout (2003). The first three references listed above focus on providing guidance and best practices on establishing the location of occupied buildings within a facility, but generally do not address the potential risks to offsite receptors associated with the location of the facility or processes within the facility, nor do they consider t he potential for releases caused by natural hazards that may occur in particular locations. The CCPS Guidelines for Facility Siting and Layout address both external factors influencing site selection, as well as factors internal to the source that could in fluence site layout and equipment spacing. At this time, EPA is not proposing any additional requirements for location of stationary sources. 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. 2

. Emergency Shutdown In addition to properly locating stationary sources in relation to surrounding receptors, and locating processes within sources so as to minimize the possibil ity of cascading release events, accidents such as these highlight the importance of being able to quickly and safely shut down processes where accidental releases are occurring or may imminently occur

. The RMP regulation requires owners and operators of stationary sources to develop and implement written operating procedures for the safe and timely emergency shutdown of Program 2 and 3 processes, to ensure operator training for these procedures, and for maintaining the mechanical integrity of emergency sh utdown systems. However, the regulation does not explicitly require that all covered processes must include emergency shutdown systems. EPA encourages owner and operators of stationary sources to consider location of stationary sources and process equipmen t and the adequacy of emergency shutdown systems at***E.O.12866 Review

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Page 104 of 234 their facilities to determine if changes are necessary to both reduce risks of an accidental release and ensure that procedures are in

- place to mitigate those effects. Emergency shutdown or putting
a proc ess into a safe operation mode in the event of an emergency is a preventive safeguard to address hazard(s) identified as part of hazard review or PHA

. Thus, the hazard review required under § 68.50 or the PHA required under § 68.67 should identify the use of this safeguard, when appropriate

. At this time, EPA is not proposing any additional requirements for emergency shutdown systems

. However, EPA seeks comment on whether such requirements should be considered for future rulemakin gs, including the scope of s uch requirements , o r whether the A gency should publish guidance

. V. Emergency Response Preparedness Requirements A . Emergency Response Program Coordination with Local Responders Subpart E of the RMP rule , the emergency response provisions, applies to facilities with Program 2 or 3 processes

. These provisions require owners or operators of regulated facilities with Program 2 or 3 processes to coordinate with local response authorities and in some cases develop an emergency response program in accordance with §68.95 to address how the owner or operator of the facility will respond to accidental releases

. 163 The rule requires the owner or operator to prepare and implement an emergency response program to protect public health and the environment, unless the stationary source is included in the community emergency response plan developed under s ection 303 of E mergency Planning & Community Right

- to

- Know Act (EPCRA) (for sources with regulated toxic substances) and has coordinated response actions with the local fire department (for sources with only regulated flammable substances)

. An owner or

163 Owners or operators of stationary sources with Program 1 processes are required to coordinate emergency response procedures with local emergency planning and response organizations under §68 .10(b)(3))

. This proposal would not affect that requirement.***E.O.12866 Review

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Page 105 of 234 operator that needs to develop an emergency response program (i.e. , be a “responding” facility), will need to include the following elements in that program:

• A n emergency response plan ;

• P rocedures for the use of emergency response equipment and for its inspection, testing, and maintenance ;

• T raining for employees ; and

• Procedures to review and update the emergency response plan to reflect changes at the stationary source and ensure that e mployees are informed of changes

. The emergency response plan must also be coordinated with local response authorities.
An owner or operator of a facility who is relying on local responders to respond to an accidental release (i.e. , a “non

- responding” facility) when the stationary source has been included in the community emergency response plan developed under section 303 of EPCRA (for sources with regulated toxic substances) or has coordinated response actions with the local fire department (for sources with only regulated flammable substances , and without regulated toxic substances ) is not required to develop an emergency re sponse program . However, t he owner or operator must also ensure that appropriate notification mechanisms are in place to notify emergency responders when there is a need for a response. Risk Management Program regulated facilities must indicate within thei r RMP whether or not they are a responding facility (i.e., by indicating compliance with mandatory elements of emergency response plans required in §68.95(a)(1)). Our review of the RMP*Info database has indicated that the majority of RMP facilities claim t o be non

- responding facilities. 164 However, during facility inspections, EPA has often found that facilities either are not included in the community emergency plan or have not properly coordinated response actions with local

164 EPA. Date Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs under the Clean Air Act, Section 112(r)(7).***E.O.12866 Review

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Page 106 of 234 authorities. 165 , 166 , 167 State and local response officials echoed this concern during listening sessions conducted under EO 13650, and in feedback provided to EPA in conjunction with the RFI. 168 , 169 This problem occurs with both responding and non

- responding facilities, but it is
par ticularly troublesome for non

- responding facilities, because if the facility itself does not maintain the capability to respond to emergencies, and local authorities are not able to respond, then a proper response to an accidental release at the facility m ay not occur or may be significantly delayed

. Also, when local responders are unfamiliar with the hazards of the facility, they may not be prepared to safely respond

. Poor coordination between chemical facilities and local emergency responders has been id entified as a factor contributing to the severity of chemical accidents

. For example, following the August 2008 explosion and fire at the Bayer CropScience facility in Institute, West Virginia, the CSB found that lack of effective coordination between faci lity and local responders prevented responding agencies from receiving timely information updates about the continually changing conditions at the scene, prevented a public shelter

- in

- place order from reaching the local community, and may have resulted in toxic exposure to on

- scene public emergency responders

.

165 E PA Press Release . July 20, 2011

. National Chemical Company will Upgrade Facilities and Pay Fine to Settle Clean Air Violations. http://yosemite.epa.gov/opa/admpre ss.nsf/1e5ab1124055f3b28525781f0042ed40/9884f5d5e5e6368c85257 8d300642a3e!OpenDocument 166 EPA Press Release . February 13, 2013

. Koch Nitrogen Company to Pay $380,000 Civil Penalty for C

AA Violations at Facilities in Iowa and Kansas. http :// yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/a9537cb213c0371985257 b1100738628 !OpenDocument 167 E PA Press Release

. May 27, 2014

. EPA Moves to Improve Emergency Planning at Facilities in NJ and NY; Inspections Focus on Information on Chemical Hazards Needed by First Responders during Emergency Responses. http://yosemite.epa.gov/opa/admpress.nsf/0/C6DB6A8A0918857F85257CE5005FEE24 168 Gablehouse, T. October 28, 2014

. Comment No. EPA

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- 6, NASTTPO, Denver, CO. 169 Elder, M., October 29, 2014. Comment No. EPA

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- 0641 on Risk Management Program R FI , Oklahoma Hazardous Materials Emergency Response Commission (OHMERC).***E.O.12866 Review

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Page 107 of 234 Additionally, facility authorities initially prevented local responders from gaining access to the site of the incident

. 170 The April 10, 2013 accident at West Fertilizer resulted in the deaths of 12 fi rst responders. Although the accident is still under investigation, the CSB has indicated that the LEPC did not include the facility in the community emergency response plan

. 171 Another example is the August 2002 accidental chlorine release at the DPC Enterprises facility in Festus, Missouri, that resulted in sixty

- three people from the surrounding community seeking medical evaluation at the local hospital for symptoms of respirat ory distress

. The CSB investigation found that the DPC emergency response plan did not provide clear guidance on when facility emergency response personnel should respond to a release or when response by an offsite community hazardous materials response te am is required

. The CSB also found that coordination between local emergency planning and response entities and DPC was insufficient to ensure that the emergency plan would provide for timely community notification and mitigation of the release

. 172
CAA Sect ion 112 (r ) clearly anticipated that the R isk M anagement P rogram regulation would require regulated stationary sources to develop an emergency response program and provide for a respon se to releases of regulated substances

. Section 112(r)(7)(B)(ii) states that the regulations shall require the owner or operator to “provide a prompt emergency response to any such releases in order to protect human health and the environment,” and that the RMP shall include a response program providing for specific actions t o be taken in response to an accidental release of a regulated substance so as to protect human health and the

170 CSB. January 2011. Investigation Report: Pesticide Chemical Runaway Reaction Pressure Vessel Explosion , Bayer CropScience, LP, Institute, West Virginia, August 28, 2008

. Report No. 2008

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- W V, http://www.csb.gov/assets/1/19/Bayer_Report_Final.p df 171 CSB. April 22, 2014. News Conference Statement by CSB Chairperson Rafael Moure

- Eraso and Supervisory Investigator Johnnie Banks, , Dallas, TX, regarding West Fertilizer Accident

. http://www.csb.gov/assets/1/16/Statement_

- _News_Conference_(Final).pdf

. 172 CSB. May 2003. Investigation Report: Chlorine Release , DPC Enterprises, L.P., Festus, Missouri, August 14, 2002. Report No. 2002

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Page 108 of 234 environment, including procedures for informing the public and local agencies responsible for responding to accidental releases, emergency health care, and employee training measures. Accordingly, i n the preamble discussion of the 1996 final RMP rule, EPA explained that the option to be a non

- responding facility was contingent on local community responders’ ability to appropriately respond to the stationary source’s hazards. The final rule also provides relief for sources that are too small to respond to releases with their own employees; these sources will not be required to develop emergency response plans provided that procedures for notifying non - employee emergency responders have been adopted and that appropriate responses to their hazards have been addressed in the community emergency response plan developed under EPCRA (42 U.S.C. 11003) for toxics or coordinated with the local fire departmen t for flammables. (61 FR 31673, 31698, June 20, 1996.) EPA recognizes that some sources will only evacuate their employees in the event of a release. For these sources, EPA will not require the development of emergency response plans, provided that approp riate responses to their hazards have been discussed in the community emergency response plan developed under 42 U.S.C. 11003 for toxics or coordinated with the local fire department for flammables. (61 FR 31681, June 20, 1996.) Because many sources cov ered by this rule may be too small to handle emergency response themselves, EPA has provided, in this new section, the actions they must take if they will not respond to releases. Specifically, for sources with regulated toxic substances, the source must b e addressed in the community emergency response plan developed under EPCRA section 303. Sources with regulated flammable substances must coordinate response actions with the local fire department. These sources must also establish a mechanism to contact lo cal emergency responders. Sources that do not meet these requirements must comply with EPA’s emergency response program requirements. (61 FR 31712, June 20, 1996.) EPA also explained this point in the RMP Guidance : 173 If your employees will not respond to accidental releases of regulated substances, you need not comply with the emergency response plan and program requirements provided you coordinate with local response agencies to ensure that they will be prepared to respond to an emergency at your facility

. These excerpts from the 1996 final rule and RMP Guidance indicate that from its inception, the RMP rule has required that owners and operators of regulated sources must either meet the full

173 General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR Part 68), EPA

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Page 109 of 234 emergency response program requirements of §68.95 or ensure that local responders are capable of responding to releases at the source

. In spite of this fact, the history of poor emergency response coordination during accidental releases, EPA’s findings during compliance inspections, and recent feedback provided to EPA’s RFI and during EO 13650 listening sessions indicate that many regulated sources have not provided for a n adequate emergency response.
1

. Proposed Revisions to Emergency Resp onse Coordination Requirements EPA proposes to amend the rule requirements to clarify the obligations of the owner or operator of the stationary source to coordinate emergency response with local authorities

. In order to provide clarity, EPA is proposing to reorganize Subpart E to address the applicability provisions for responding and non

- responding sources in §68.90 , describe required coordination activities in new §68.93 , and include a new requirement in §68.95 for owners or operators of responding stationary sources to review and update their emergency response program at least annually

. EPA is proposing to reorganize §68.90 to specifically describe the applicability of the emergency response program requirements for non

- responding and responding facilities in paragraphs ( a ) and ( b ), respectively. The proposed revisions to §68.90 paragraph ( a ) describe the applicability provisions for

non - responding facilities

. The owne r or operator of a stationary source need not comply with the emergency response program requirements in §68.95 provided that after conducting coordination activities required under the proposed §68.93, the local response authorities and the owner or
opera tor of the stationary source determine that local public emergency response capabilities are adequate to respond to accidental releases at the stationary source; appropriate mechanisms are in place to notify emergency responders when an accident occurs; an d the LEPC or equivalent local response authorities have not requested in writing that the owner or operator develop an emergency response program for the stationary source in accordance with §68.95.***E.O.12866 Review

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Page 110 of 234 Section 68.90 paragraph ( b ) describes applicability provisions for responding facilities. The owner or operator of the stationary source would be required to comply with the emergency response program requirements of §68.95 when the outcome of the annual coordination activities with local response authoriti es required under §68.93 indicates that local public emergency response capabilities are not adequate to respond to accidental releases of regulated substances at the stationary source

. If, as a result of the annual coordination, the facility owner or oper ator must develop an emergency response program in accordance with §68.95, the owner or operator should develop the program as soon as reasonably practicable

. The owner or operator would also be required to comply with §68.95 upon receiving a written reque st to do so from the LEPC , local fire department, or other local emergency response officials having jurisdiction

. EPA believes that it is appropriate to provide a mechanism for the local emergency response officials to request that the owner or operator of the stationary source comply with the emergency response program requirements of §68.95 because it is the presence of the source and its attendant hazards that create a risk to the surrounding community of accidental releases

. Therefore, in the event th at 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 fro m the source should rest with the owner or operator

. This philosophy is consistent with the general duty clause of CAA section 112(r)(1), which among other things requires the owner or operator to minimize the consequences of accidental releases that do occur. EPA is proposing to add § 68.93 to clarify emergency response coordination activities and require that these activities be documented and occur annually

. Section 68.93 would require the owner or operator of a stationary source with a Program 2 or 3 p rocess to coordinate with local response authorities to ensure that appropriate resources and capabilities are in place to respond to an accidental release of a regulated substance

. As part of the coordination, the owner or operator and the local response authorities would work together to determine who will respond if an***E.O.12866 Review

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Page 111 of 234 incident occurs, and what would be an appropriate response

. Paragraph (a) would require coordination to occur at least annually, and more frequently if necessary , to address changes at the source ; in the source’s emergency action plan ; in local authorities’ response resources and capabilities ; or in the local community emergency response plan

. Paragraph (b) would require the owner or operator to document coordination with local authorities, including the names of individuals involved and their contact information (phone number, email address, and organizational affiliations), dates of coordination activities, and the nature of coordination activities

. The proposed p aragraph (c) s pecifies who should be involved in the coordination for both stationary sources with regulated toxic and flammable substances

. If a stationary source involves a regulated toxic substance , then the source must be included in the community emergency response plan developed under EPCRA. EPA also proposes to revise §68.95 to ensure that notification procedures include notifica t ions to Federal and state agencies and to require that emergency re sponse plans be updated at least annually. Specifically, EPA is revising §68.95(a)(1)(i) to add a reference to Federal and state agencies. EPA is also proposing to revise §68.95(a)( 4 ) to specify that the owner or operator review and update the program annu ally or more frequently if necessary (e.g., to incorporate lessons learned from incident investigations, or if changes occur in emergency notification systems, local responder organizations, stationary source hazards, or other critical
emergency response p lanning information). EPA is also proposing to revise §68.95(c) to replace local emergency planning committee with the acronym LEPC. Additio n ally, EPA is proposing to revise §68.3 to add LEPC for local emergency planning committee. The term is used through out the rule and means the LEPC as established under 42 U.S.C. 11001(c). Finally, EPA is proposing to revise §68.12 (General r equirements) to be consistent with these proposed coordination requirements. EPA is proposing revisions to Program 2 requirements under §68.12( c ) in which EPA would renumber paragraph §68.12(c)(4) and (c)(5) as §68.12(c)(5)***E.O.12866 Review

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Page 112 of 234 and (c)(6)

. N ew paragraph §68.12(c)(4) would specify the owner or operator’s requ i reme n ts to

c oordinate response actions with local emergency planning and respons e agencies as provided in §68.93

. EPA is proposing similar revisions to Program 3 requirements under §68.12(d). EPA would renumber paragraph §68.12( d )(4) and (d)(5) as §68.12( d )(5) and (d)(6)

. N ew paragraph §68.12( d )(4) would specify the owner or operator’s requ i reme n ts to c oordinate response actions with local emergency planning and response agencies as provided in §68.93

. EPA believes that t hese amendments would clarify existing obligations and prevent situations where neith er regulated stationary sources nor local authorities are prepared to appropriately respond to accidental releases at the source

. EPA recognizes that an appropriate
response

– even for responding facilities

– may sometimes involve evacuation of facility

em ployees, evacuation or sheltering of nearby residents, and implementation of other defensive measures to prevent harm to workers, responders, and the public

. However, planning for such situations should occur in advance, so that either the source or local responders are prepared to implement response measures that are appropriate to the hazards of the stationary source

. I f local public responders are not capable of responding to accidental releases at a stationary source, the owner or operator can continue to satisfy the applicable requirements of Subpart E (Emergency Response) in a number of different ways beyond training and equipping the source’s own employees to respond to releases

. For example, EPA has observed situations where stationary source owners or operators supplement their on

- site response capability using response contractors, or via mutual aid agreements with other nearby sources

. In the RMP Guidance , EPA explained that this may be the most appropriate course of action to comply with the emergency response requirements of Subpart E, particularly for small sources with few employees : 174

174 See General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR Part 68), EPA

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Page 113 of 234 EPA recognizes that, in some cases (particularly for retailers and other small operations with few employees), it may not be appropriate for employees to cond uct response operations for releases of regulated substances

. For example, it would be inappropriate, and probably unsafe, for an ammonia retailer with only one full

- time employee to expect that a tank fire could be handled without the help of the local fi re department or other emergency responder

. EPA does not intend to force such facilities to develop emergency response capabilities

. At the same time, you are responsible for ensuring effective emergency response to any releases at your facility

. If your l ocal public responders are not capable of providing such response, you must take steps to ensure that effective response is available (e.g., by hiring response contractors). Such arrangements would continue to be acceptable to the Agency as a means to meet a facility’s emergency response program obligations

. Alternatively, stationary source owners or operators can work with local emergency response officials to identify gaps in local responder capabilities, and assist local authorities in supplementing those capabilities , as appropriate , by providing the equipment or training needed to allow local public responders to prepare for and carry out an appropriate response to accidental releases at the source

. Close and ongoing coordination between stationary source owners or operators and local responders will allow such capability gaps to be quickly identified and corrected and appropriate response plans to be developed

. Coordination will also assist local responders in complying with other Federal, s tate, and local emergency preparedness, planning, and response requirements, such as planning requirements under EPCRA, training requirements under the OSHA Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120) , and other applicable requir ements. EPA seeks comment on this approach. Will the proposed amendments significantly improve emergency response planning and coordination? Should EPA further clarify what is necessary for RMP facility owners or operators to adequately coordinate their em ergency response program with local authorities? Should coordination activities and emergency plan updates be required annually, or is some other frequency appropriate? How should disagreements between local authorities and the source owner or operator con cerning which party should provide for an emergency response to releases of regulated substances at the source be resolved? When an LEPC mak es a written request for the owner or operator to comply with the emergency***E.O.12866 Review

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Page 114 of 234 response program requirements of §68. 95, should the LEPC be required to provide a rationale for the request that meets certain criteria, to ensure that the request is reasonable ? I f so, what criteria should be established ?
2

. Alternative Options EPA considered an alternative that would require owners and operators of all stationary sources with Program 2 or Program 3 processes to comply with the full emergency response program requirements of §68.95. Under this option, RMP facilities would still be required to perform the annual local coordinati on and to document activities described previously

. However, it would eliminate the flexibility of the current rule and require all Program 2 and 3 facilities to be “responding” facilities

. EPA did not propose this approach because it does not consider the existing capabilities of local responders and shifts to the regulated stationary sources the burden associated with developing and maintaining an appropriate and effective emergency response capability from local responders in communities that may have ad equate capabilities

. Additionally, EPA believes that this approach would place an unnecessary burden on small facilities. EPA seeks comment on th is alternative approach and whether there are any other alternative options that EPA should consider prior to i ssuing a final action.
B

. Facility Exercises Exercising an emergency response plan is critical to ensure that response personnel understand their roles, that local emergency responders are familiar with the hazards at the facility, and that the emergency response plan is appropriate and up

- to

- date. It ensures that personnel are properly trained and lessons learned from exercises can be used to identify future training needs. Poor emergency response procedures during some recent accidents have highlighted the need for facilities to conduct periodic emergency response exercises

. For example, the CSB’s investigation of the April 2004 vinyl chloride monomer (VCM) explosion at the FPC USA in***E.O.12866 Review

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Page 115 of 234 Illiopolis, Illinois found that the facility’s failure to rehearse a response to a large VCM release made the consequences of the accident significantly worse, and likely contributed to the deaths of operators at the facility

. 175 The CSB found that after the VCM release began, and despite knowingly working directly over a tox ic and highly flammable VCM cloud, two operators did not put on protective breathing apparatus, activate emergency alarms, or evacuate the facility, contrary to emergency response actions outlined in facility emergency procedures

. These operators consequen tly died as a result of injuries received during the ensuing explosion. Failure to conduct emergency exercises involving local authorities may also have resulted in injuries and fatalities to local responders

. As previously indicated, 12 local responders d ied as a result of injuries received during the West Fertilizer explosion, and the CSB investigation report findings show that inadequate emergency planning contributed to the severity of the accident and that responders were not sufficiently aware of the risks at the facility

. 176 According to accident history information obtained from EPA’s RMP national database, accidents occurring between 2004 and 201 4 resulted in at least 44 responder injuries and 2 additional fatalities. 177 The 2002 accident involving a chlorine release at DPC Enterprises in Festus, Missouri resulted in 66 people seeking medical attention at the local hospital, including 63 members of the community surrounding the facility

. The CSB’s investigation found tha t DPC’s emergency response plan had inadequate procedures for training and drills, and that these deficiencies resulted in DPC’s inadequate preparation for a large uncontrolled chlorine release. 178 In 2003, another DPC
E nterprises facility (in Glendale, Ariz ona) had an accident involving a large chlorine release

. In

175 CSB

. March 2007. Investigation Report : VCM Explosion, FPC ., Illiopolis, Illinois, April 23, 2004; Report No. 2004

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- IL

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

. 176 CSB

. 2015. Final Investigation Report : West Fertilizer Plant Fire and Explosion, West, TX, April 17, 2013

. R eport No. 2013

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. 177 EPA. Date Technical Background Document for Notice of Proposed Rulemaking: Risk Management Programs under the Clean Air Act, S ection 112(r)(7). 178 CSB

. May 2003. Investigation Report : Chlorine Release, DPC Enterprises, L.P., Festus, Missouri, August 14, 2002

. Report No. 2002

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. http://www.csb.gov/assets/1/19/DPC_ Report.pdf

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Page 116 of 234 that accident, 11 Glendale police officers responding to the accident were exposed to chlorine and required medical treatment

. The CSB’s investigation found that police officers responding to the accident to assist in evacuation of nearby residents entered the hazardous area without any respiratory protection

. The CSB recommended that the Glendale fire and police departments schedule periodic hazardous materials incident drills to ensure safe and e ffective responses to future hazardous materials incidents. 179 On April 12, 2004, a runaway chemical reaction at MFG Chemical, Inc., in Dalton, Georgia resulted in the release of toxic vapor clouds of allyl alcohol and allyl chloride into the surrounding com munity

. The accident resulted in the evacuation of more than 200 families and medical treatment for 154 people, including 15 responders

. The CSB found that MFG did not train or equip employees to conduct emergency mitigation actions, and that local emergen cy response agencies did not adequately prepare for responding to emergencies involving hazardous chemicals

. The CSB recommended that the facility obtain equipment and provide emergency response training to employees, and that local agencies conduct drills for emergencies at fixed facilities

. 180 Other EPA and Federal agency programs require exercises as an element of their
emergency response programs . For example, under the Oil Pollution Prevention regulation (40 CFR part 112), facilities subject to the Facil ity Response Plan (FRP) provisions are required to conduct exercises, including evaluation procedures (§112.21)

. FRP facilit y owners and operators are encouraged to follow the National Preparedness for Response Exercise Program (PREP) Guidelines , 181 which we re developed to provide a mechanism for compliance with EPA, U.S.

179 CSB . February 2007. Investigation Report : Chlorine Release, DPC Enterprises, L.P., Glendale, Arizona, November 17, 2003

. Report No. 2004

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. http://www.csb.gov/assets/1/19/D PC2

- _Final.pdf

. 180 CSB

. April 2006. Investigation Report : Toxic Chemical Vapor Cloud Release, MFG Chemical, Inc., Dalton, Georgia, April 12, 2004

. Report No. 2004

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

. 181 USCG, EPA, and DOI

. August 2002. National PREP Guidelines

. http://www.au.af.mil/au/awc/awcgate/uscg/prep_gid.pdf

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Page 117 of 234 Coast Guard (USCG), and U.S. Department of the Interior (DOI) exercise requirements for oil pollution response

. The PREP guidelines include both internal and external exercise components

. In

ternal exercises include notification exercises, emergency procedure exercises, spill management team tabletop exercises, and equipment deployment exercises. External exercises include area exercises that include members of the response community, and gove rnment

initiated unannounced exercises. Other examples include exercises that the U.S. Nuclear Regulatory Commission (NRC), in conjunction with the Federal Emergency Management Agency (FEMA) and s tate and local government s perform at nuclear power plants

. These exercises evaluate both on

- site and offsite emergency preparedness capabilities

. The NRC also requires Research and Test Reactor (RTR) 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 50

. Operators of RTRs are required to train personnel and perform emergency preparedness exercises in order to ensure the feasibility of the emergency preparedness plan. Some state and local regulati ons also require emergency response exercises

. For example, the NJ TCPA, which incorporates the requirements of 40 CFR part 68, contains certain additional provisions imposed under state law, including a requirement for regulated facilities to perform at l east one emergency response exercise per calendar year

. Non

- responding facilities are required to invite at least one outside responding agency designated in the emergency response plan to participate in the exercise, and employees of the facility are requ ired to perform their assigned responsibilities for all emergency response exercises

. Owners or operators of all other facilities are required to perform at least one full scale emergency response exercise in which the emergency response team as well as co ntainment, mitigation, and monitoring equipment are deployed at a strength appropriate to demonstrate the adequacy and implementation of the plan

. 182

182 NJDEP , Title 7, Cha pter 31 Toxic Catastrophe Prevention Act Program, Consolidated Rule Document, Section 7:31

- 5.2; http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_no%20 fonts.pdf***E.O.12866 Review

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Page 118 of 234 In comments received from the Agency’s recent RFI, the National Association of S uperfund Amendments and Reau thorization Act (SARA) Title Three Program Officials (NASTTPO), which represents members of State Emergency Response Commissions (SERCs), Tribal Emergency Response Commissions (TERCs), and LEPCs, has encouraged EPA to require RMP facilities to conduct exercises that include local first responders and realistic accident scenarios

. 183 In addition to specific Federal and s tate requirements for conducting exercises and the NASTTPO comments, industry guidelines recommend conducting exercises. The CCPS Guideli nes for Risk Based Process Safety recommend periodically testing the adequacy of emergency response plans and level of preparedness of responders, including contractors and local response agencies. 184 In the original proposed RMP rule (58 FR 54190, October 2 0, 1993), EPA had included within the emergency response program provisions a proposed requirement for regulated sources to conduct emergency exercises

. In the final RMP rule (61 FR 31668, June 20, 1996) , EPA decided not to finalize this requirement (and s everal other additional emergency response program provisions), for two reasons

. First, the A gency decided to limit the emergency response program requirements to the minimum requirements contained in CAA section 112(r)(7) in order to avoid inconsistency w ith other emergency response planning regulations

. Second, the Agency indicated that the additional requirements were already addressed in other Federal regulations and therefore, sources were already doing them

. However, EPA’s experience with implementing the RMP rule over nearly two decades, along with incidents such as those described above, indicate that many regulated sources do not regularly conduct emergency exercises that involve local

183 Gablehouse, T. October 28, 2014

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- 6, NASTTPO, Denver, CO. 184 CCPS. 2007. Guidelines for Risk Based Process Safety. American Institute of Chemical Engineers, C CPS , NY , Wiley. Pp. 513, 524

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Page 119 of 234 response authorities. The Agency now believes that adding this provision to t he regulation will likely reduce the severity of some accidents that do occur. 1

. Proposed Exercise Program Requirements In order to further improve coordination with community responders and ensure that both facility personnel and local responders have pr actice responding to accidental releases at RMP facilities, EPA is proposing to require most regulated facilities to perform exercises as an element of the emergency response program identified under Subpart E

. Proposed §68.96 would require both responding and non

- responding RMP facilities with any Program 2 or 3 process to perform emergency exercises

.
a. Notification Exercises EPA proposes a new paragraph §68.96(a) to require facilities with any Program 2 or Program 3 process to annually perform an exercise of the source’s emergency notification system. This exercise would include contacting the Federal , state, and local public emergency response authorities, and other external responders that would respond to accidental releases at the source. The purpose of these notifications is to ensure facility personnel understand how to initiate the notification system and to test the eme rgency contact information to ensure it is up

- to

- date

. As part of the notification exercise, the individual making the notifications should clearly indicate that the call is part of an exercise to test the notification system. The owner or operator would b e required to document these notification exercises and maintain a written record of each exercise conducted for a period of five years. The owner or operator would also be required to provide copies of the report to local response officials, and to make t he report available to the public in accordance with §§68.205 and 68.210. As non

- responding facilities will rely on local authorities to respond to accidental releases at the source, EPA believes that the proposed facility notification exercises will be an important supplement to the existing requirement for local emergency plan exercises under EPCRA s ection 303(c)(9), which requires local emergency plans to include methods and***E.O.12866 Review

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Page 120 of 234 schedules for exercising the plan

. Responding facilities will be required to meet additional field and tabletop exercise requirements below, which in many cases will also involve the participation of local authorities

. N otifications to Federal, state, and local officials conducted as part of the field or tabletop exercise may also serve to meet the annual notifi cation exercise requirements provided that the owner or operator documents these notification exercises

. EPA is also proposing to modify §68.95(a)(1)(i) to clarify that the emergency response program should include procedure s for performing appropriate notification s to Federal and state
emergency response agencies, as well as the public and local emergency response agencies, about accidental releases

. This could include , for example, any required notifica t i ons to the National Response Center , as required by section 1 03(a) of CERCLA , and/or notificati ons to the SERC as required by section 304 of EPCRA

. b. Responding Facility Field and Tabletop Exercises EPA is proposing a new paragraph §68.96(b) to require responding facilities to develop and implement an emergency response exercise program that uses the emergency response plan required under §68.95(a)(1). EPA is proposing to require two types of exercise s

– field exercises and tabletop exercises. The owner or operator would be required to coordinate with local public emergency response officials in planning and conducting exercises, and invite local officials to participate in exercises

. i

. Field Exercise s Field exercises involve the actual performance of emergency response functions during a simulated accidental release event. Field exercises involve mobilization of firefighters and/or hazardous materials response teams, activation of an incident command structure, deployment of response equipment, evacuation or sheltering of facility personnel as appropriate, and notification***E.O.12866 Review

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Page 121 of 234 and mobilization of law enforcement, emergency medical, and other response personnel as determined by the scenario and the source’s emergency response plan. 185 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 an y accidental release meeting the criteria in § 68.42(a)

. If the facility is required to conduct a field exercise as a result of a reportable accident, then this would effectively reset the timeframe for when the next five

- year field exercise is due. EPA is proposing that t he scope of the field exercises would include tests of:

• procedures for informing the public and the appropriate Federal, state, and local emergency response agencies about an accidental release;

• procedures and measures for emergency response after an accidental release of a regulated substance including evacuations and medical treatment;

• communications systems;

• mobilization of facility emergency response personnel;

• coordination with local emerg ency responders;

• equipment deployment, and

• other actions identified in the source’s emergency response plan, as appropriate

. ii

. Tabletop Exercises Tabletop exercises are discussion

- based exercises without the actual deployment of response equipment. Du ring tabletop exercises, responders typically assemble in a meeting location and simulate procedural and communications steps for response to a simulated accidental release, as determined by the scenario and the source’s emergency response plan. In § 68.96 (b)(2) EPA is proposing to require the owner or operator to annually conduct an emergency tabletop exercise involving the simulated accidental release of a regulated substance,

185 EPA . May 1988. Guide to Exercises in Chemical Emergency Preparedness Programs, OSWER 88006.***E.O.12866 Review

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Page 122 of 234 except during years when field exercises are conducted . The scope of a tabletop exercise would include tests of:

• procedures for informing the public and the appropriate Federal, state, and local emergency response agencies about an accidental release;

• procedures and measures for emergency response after an accidental release of a regulated substance including evacuations and medical treatment;

• identification of facility emergency response personnel and responsibilities;

• coordination with local emergency responders;

• procedures for the use of emergency response equipment, and other actions identified in the source’s emergency response plan, as appropriate.

c . Exercise Reports & Program Updates EPA is proposing in § 68.96(b) (3) to require the owner or operator to evaluate each exercise and prepare a written report within 90 days of the exercise. The report would include :

• a description of the exercise scenario ;

• names and associations of each exercise participant ;

• an evaluatio n of the results of the exercise including lessons learned ;

• recommendations for improvement or revisions to the emergency exercise program and emergency response program ; and

• a schedule to promptly address and resolve recommendations. The report would al so include an evaluation of the adequacy of coordination with local emergency response authorities, and other external responders, as appropriate

. Section 68.96(b)(3) would also require the owner or operator to update the emergency exercise program and emergency response program at least annually, and more frequently if necessary to incorporate recommendations and lessons learned from emergency response exercises, incident investigations, or other available information. The owner or operator would also b e required to***E.O.12866 Review

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Page 123 of 234 provide schedules of exercises and copies of exercise reports to local response officials, and to make exercise reports available to the public in accordance with §§68.205 and 68.210. Exercise reports would be maintained for five years. d

. Up dates to §68.12 (General requirements) EPA is proposing to revise §68.12 (General Requirements) to be consistent with these proposed exercise requirements. EPA is proposing to revise the Program 2 and Program 3 requirements under §68.12 by renumber ing para graph §68.12(c)(4) as §6 8.12(c)(5) (for Program 2) and §68.12(d)(4) as §68.12(d)(5) (for Program 3) , add ing a reference to exercise requirements , and correct ing citations to subpart E. EPA is aware that while not all facilities regulated under the RMP rule conduct emergency exercises, many do, and the Agency believes that exercises conducted in accordance with other Federal , state, or local requirements, or exercises conducted in conjunction with a facility’s trade association m embership or code of practice, etc., may be used to satisfy the new requirements to the extent those exercises address the specific regulatory provisions contained herein.
EPA seeks comment on this approach

. 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? Are annual exercises sufficient or should EPA consider alternative frequencies?
2

. Alternative Options EPA considered two alternative approaches to requiring emergency exercises. The first alternative option would also require responding and non

- responding facilities to conduct an annual emergency notification system exercise

. However, under this o ption responding facilities would additionally be required to conduct only annual tabletop exercises; emergency field exercises would not be required

. This alternative option would be a lower cost option for***E.O.12866 Review

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Page 124 of 2 34 responding facilities, as field deployment of th e source’s equipment and personnel would not be required

. However, it may also result in less realistic and less effective emergency exercises. The second alternative approach considered by EPA would contain the same provisions for notification exercises as in the proposed option , but would require responding facilities to conduct field exercises annually , instead of tabletop exercises

. This approach would be similar to the NJ TCPA emergency exercise provisions, and provide for a comprehensive test of all systems under the emergency exercise program for responding facilities. However, the costs of this approach would be significantly higher than the proposed approach. EPA seeks comment on these alternative approaches and whether there are any other alternative options that EPA should consider prior to issuing a final action

. VI . Information Availability Requirements Ensuring that communities, local planners, local first responders, and the public have appropriate chemical facility hazard

- related inf ormation is critical to the health and safety of the responders and the local community. Throughout the many public meetings and outreach efforts related to EO 13650, LEPCs, first responders, and members of the public stated that chemical facility information and data

- sharing efforts need significant improvement

. 186 Specifically, LEPCs and first responders want to have access to the most relevant chemical hazard and risk information for their needs, in a user

- friendly format , to better support planni ng and preparedness efforts

. Community residents and organizations consistently noted that they need basic information regarding chemical risks at facilities , presented in a clear and consistent manner

. In response to these issues, EPA is seeking ways to e nhance information sharing and collaboration between chemical facility owners and operators, tribal and local emergency planning committees, first responders, and the public

. Some public commenters responding to EPA’s RMP RFI

186 Chemical Facility Safety and Security Working Group. May 2014. EO 13650 Report to the President

– Actions to Improve Chemi cal Facility Safety and Security

– A Shared Commitment, pgs. 93

- 94. https:// www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf***E.O.12866 Review

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Page 125 of 234 elaborated the need for more p ublic access to information about the RMP facilities

. The Center for Science and Democracy (CSD) stated that public access to information is key to enabling communities to hold facility owners and operators accountable for reducing risks as much as possibl e, and for being prepared should an accident occur. According to CSD, f acility owners and operators should be responsible for ensuring that appropriate measures are in

- place to handle an emergency and should be fully communicating with local authorities on the development of community emergency response plans that include chemical facilities. 187 The MKOPSC stated that most of the information is already available online and from LEPCs and need not be provided on a website. But MKOPSC noted that LEPCs can utilize the information to understand the risk in the communities and involve local facilities, local officials, SERCs, local citizens and EPA to have dialogues to improve regulatory compliance and promote safety. MKOSPSC also believes it is als o important to let the public understand how the facilities address the hazard present in their community and keep the risk at or below the “acceptable level.” When local citizens have adequate information and knowledge, facility owners and operators may b e motivated to continuously improve their safety in response to community pressure and oversight. 188 CCHS noted that requiring facilit y owners or operators to make this information available on the company website would promote improved regulatory complianc e, because the more willing a facility is to be open and transparent the greater that company is willing to address issues that relate to safety. 189 The United Steel Workers (USW) state d that making unrestricted RMP information publicly available would incre ase compliance, as it enables communities to

187 CSD. October 20, 2014

. Comment No. EPA

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- 0424 on Risk Management Program RFI , pgs.2

- 3. 188 MKOPSC. October 29, 2014

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- 0543 on Risk Management Program RFI , pgs. 162, 165. 189 CCHS. October 28, 2014

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Page 126 of 234 hold facilities accountable and gives facilities greater incentive to strengthen safety measures and to comply with regulations. 190 The Coalition to Prevent Chemical Disasters (CPCD) believes that schools located within vulnerability zones of RMP facilities need to have chemical disaster drills in place, but that many schools are unaware of any risks

. In CPCD’s view, not informing communities about chemical risks reduces their ability to prepare for potential disas ters involving specific chemical releases. CPCD argues that f irst responders need to know what chemicals they are facing and what emergency equipment to use. CPCD believes that information, such as compliance audits and incident investigation reports, shou ld be disclosed to LEPCs and that with this information, active LEPCs can better include local communities in emergency planning and training. 191 CPCD made reference to testimony made six years prior to the West disaster by a former CSB chairperson about her concern for a lack of chemical emergency preparedness that our investigations have found among many communities where accidents strike

. Preventing accidents and mitigating their impact requires an active partnership between communities and industrial fac ilities. If that partnership is missing, the stage is set for a potentially s evere impact on the community. 192 Poor communication between facilit y personnel and first responders, as well as poor communication between facilit y personnel and communities, has been shown to contribute to the severity of chemical accidents. One example is the Bayer Crop S cience e xplosion that occurred in Institute, West Virginia, in 2008

. According to the CSB , The Bayer fire brigade was at the scene in minut es, but Bayer management withheld information from the county emergency response agencies that were desperate for information about what happened, what chemicals were possibly involved...The Bayer incident commander, inside the plant, recommended a

190 USW. October 29 , 2014

. Comment No. EPA

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- 0547 on Risk Management Program RFI , pg. 6. 191 CPCD. October 29, 2014

. Comment No. EPA

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- 0644 on Risk Management Program RFI , pgs. 36

- 37. 192 CSB. July 10, 2007. CSB News Release: CSB Chairman Merritt Describes the Lessons from Five Years of Board Investigations to Senate Committee, Urges Additional Resources and Clearer Authorities for Federal Safety Efforts. http://www.csb.gov/csb

- chairman

- merritt

- describes

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- lessons

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- years - of

- board

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senate

- committee

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Page 127 of 234 shelter i n place; but this was never communicated to 911 operators

. After a few hours of being refused critical information, local authorities ordered a shelter in place, as a precaution. 193
I mproper communication between the facility and the first responders durin g the accident led to a delay in implementing a public shelter

- in

- place order for the local community, and may have resulted in toxic exposure to on

- scene public emergency responders

. After a release of HF from the Citgo Refinery in Corpus Christi, Texas in July 2009, nearby residents complained of headaches, nausea, and respiratory issues, though Citgo claimed that the toxic cloud stopped at the plant fence line . According to reports, n eighbors could see the flames and smoke coming from the refinery, but they were unable to get information on the accident and potential risks to their community. 194 The previous examples and public comments demonstrate the need for better communication of the potential risks associated with accidental releases at stationary s ources . However, in making information more readily available EPA must also recognize and balance the associated secur ity concerns

. The RMP rule was published in 1996, before many computer

- based and other information

- sharing methods were widely used. At th e time of initial publication of the rule, EPA expected information to be disclosed to the public through disclosure of the entire
RMP

. After the CSISSFRRA was enacted on August 5, 1999, EPA restricted access to offsite
consequence analysis (OCA) data for the public and government officials to minimize the security risks associated with posting the information on the internet (65 FR 48108, August 4, 2000)

. Governmental officials continue to have electronic access to OCA information, subject to

193 CSB

. January 20, 2011. CSB issues report on 2008 Bayer Cropscience explosion: finds multiple deficiencies led to runaway chemical reaction; recommends states create chemical pla nt oversight regulation

. http://www.csb.gov/c sb

- issues

- report

- on - 2008

- bayer

- cropscience

- explosion

- finds

- multiple

deficiencies

- led

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- runaway - chemical

- reaction

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regulation/ 194 Morris, Jim and Chris Hamby , Center for Public Integrity. February 24, 2011; Updated May 19, 2014. Fueling Fears

- Use of toxic acid puts millions at risk. http://www.publicintegrity.org/201 1/02/24/2118/use

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Page 128 of 234 certain restr ictions, while the public may view OCA information only at Federal Reading Rooms around the country and only for a limited number of RMPs at any one time. The non

- OCA portions of the RMPs are available from EPA to the public either through Freedom of Infor mation Act ( FOIA ) request, by inspection at Federal Reading Rooms, or from a p erson’s SERC, LEPC, or related s tate or local government agencies. 195 EPA is proposing to require certain in formation to be made available to LEPCs and emergency response officials to help them to understand the potential risks at RMP regulated facilities, as well as to aid them in emergency planning and response activities. EPA is also proposing to amend the in formation sharing provisions for the public to make existing information more easily accessible to neighboring communities to encourage them to prepare for
an emergency . EPA also believes that the revisions will likely contribute to the prevention of futur e chemical accidents. Cognizant of the spirit and intent of the CSISSFRRA, the proposed revisions do not disclose the substance or form of information subject to restriction under CAA 112(r)(7)(H) or 40 CFR part 1400. EPA has two objectives for improving p ublic information sharing provisions of the RMP rule

. The first is to ensure that local emergency response and planning officials have the information they need to prepare for an emergency response to an accidental release at a stationary source

. This incl udes determining what information is appropriate to improve community emergency response plans and ensure the safety of the local responders and the community

. EPA must also determine the appropriate frequency for updating this information to avoid overwhe lming local planners while ensuring information is current. While developing emergency response plans, LEPCs and facility owners or operators should also involve local citizens to help them understand the appropriate actions they should take in the event o f an

195 See 40 CFR Part 1400: Accidental Release Prevention Requirements; Risk Management Programs Under the C AA Section 112(r)(7); Distribution of OCA Information (65 FR 48108, August 4, 2000). http://www.gpo.gov/fdsys/pkg/FR

- 2000

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Page 129 of 234 accidental release. This may reduce public panic and enable residents to act quickly and appropriately to protect themselves. The second objective is to help improve public awareness of risks in their communities and provide information on where they can learn mor e about preparedness and community emergency response plans

. Any publicly available information should be in a format that is easily accessible

. The goal is to encourage residents to learn about community emergency response plans and understan d what actions they need to take during an emergency to protect themselves

. EPA is proposing to add provisions for sharing information with LEPC s and/ or emergency response officials and revise the existing provisions for sharing information with the public

. EPA is also proposing that facilit y own e r s and operators conduct periodic public meetings to discuss chemical hazards present at facilit ies and provide information on any accident al release s that may occur . These meetings can provide opportuni ties for facilities to engage the public to address concerns and explain how facilities address risks that will prevent accidents

. A

. Proposed Public Disclosure Requirements to LEPCs or Emergency Response Officials EPA is proposing to add requirements to Subpart H

- Other Requirements that apply to all facilities regulated under the RMP rule , including facilities with Program 1 processes

. EPA proposes to add §68.205 to require owners and operators to provide information to local emergency responders and LEPCs

. If information required under this proposal is already available to the public on a company website, the owner or operator may comply by provid ing the website link to the first responders and LEPC

. Parag raph §68.205(a) would require that the RMP be accessible to local emergency responders and LEPCs in the exact same manner as the current requirement under §68.210(a)

. A reference to 42 U.S.C. 7414(c) , which covers information and reports (such as the RMP) required under section 42 U.S.C. 7412, is included to show the authority under which the non

- OCA portion of an RMP shall be available to the public, except for any information that would divulge methods or processes entitled to protection of CBI or trade

s ecrets. This reference is already part of the current §68.210(a). A reference to 40 CFR part 1400***E.O.12866 Review

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Page 130 of 234 has been added to address the disclosure restrictions under CSISSFRRA (i.e., restrictions on the disclosure of OCA information)

. EPA is not changing its policy regard ing OCA information

. The reference to 40 CFR part 1400 on ly clarif ies the statutory obligations that relate to securing this information. Under paragraph §68.205(b), EPA would require the owner or operator to provide summaries of specific chem ical hazard information for all of their regulated processes to the local emergency responders and the LEPC as part of their emergency response coordination efforts

. Th e facility should make information available in a manner that is understandable and avoids technical jargon . The information should be conveyed without revealing CBI or trade secret information

. The information must adequately explain the findings, results , or analysis being provided. The specific information that must be provided to LEP Cs or emergency response officials is outlined below: Information on Regulated Substances

. Information related to the names and quantities of regulated substances at the source (paragraph §68.205(b)(1))

. This only applies to regulated substances held in a process above the TQ

. Accident History Information

. The facility’s accident history information required under §68.42 (paragraph §68.205(b)(2)). Compliance Audit Reports

. Summaries of compliance audit reports required under § § 68.58 and 68.59 (for Program 2 processes), or §§ 68.79 and 68.80 (for Program 3 processes), as applicable (paragraph §68.205(b)(3))

. The audit report summary shall include:

• The date of the report ;

• The name and contact information of the auditor and the fac ility contact person ;

• A brief description of the audit findings ;

• An appropriate response to each of the findings ; and***E.O.12866 Review

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Page 131 of 234 • A schedule for addressing each of the findings

. Incident Investigation Reports. Summaries of incident investigation reports required under §68.60 (d) (for Program 2 processes) or §68.81( d ) (for Program 3 processes), as applicable (paragraph §68.205(b)(4)). The incident investigation report summary shall include:

• A description of the incident and events leading up to it, including a timeline;

• A brief description of the process involved;

• The names and contact information of personnel on the investigation team;

• The direct cause, contributing cause, and root cause of the incident;

• The on

- site and offsite impacts;

• The emergency response actions ta ken;

• Any recommendations; and

• A schedule for implementing recommendations, as applicable. Inherently Safer Technolog ies (IST)

. For each process in NAICS codes 322, 324, and 325 , a summary of the IST or ISD identified in accordance with §68.67(c)( 8 ) that the owner or operator has implemented or plans to implement (paragraph §68.205(b)(5))

. T he owner or operator shall update th is summary as part of the calendar year submission if any of the summary information has been revised as a result of the safer technology analysis that is conducted as part of the update to the PHA prepared in accordance with §68.67(f)

. The calendar year submission should also identify whether any revisions were incorporated

. The IST/ISD summary shall include, at a minimum:

• The RMP p rocess ID and process description, if provided, of the process affected;

• A brief description of the IST or ISD and which type of measure best characterizes it: minimization, substitution, modernization, or simplification;

• The names of the regulate d substance(s) whose hazard, potential exposure, or risk was or will be reduced as a result of the implementation and whether the substance is***E.O.12866 Review

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Page 132 of 234 listed as toxic or flammable. If the chemicals affected are a mixture of flammable

s ubstances , the name “flammable mixture” may be used, instead of the individual flammable substance names; and

• The dates of implementation or planned implementation.
Exercises. Information on emergency response exercises conducted under §68.96, including, at a minimum, schedu les for upcoming exercises, reports for completed exercises, and other related information (paragraph §68.205(b)(6)).
EPA believes that requiring facilities to provide to LEPCs summary information on findings from incident investigations, compliance audits , exercises , and IST employed, can demonstrate how a facility is improving its management of chemical risks and assist local emergency planners to understand and better prepare for these risks when developing community emergency response plans . Furthermore , EPA believes that disclosing information related to IST can help responders and planners to prioritize and allocate response resources.
T able 6 below summarizes the information to be provided under §68.205(b) to LEPCs or emergency response officials and identifies the applicable program level for each provision

. The owner or operator need only submit information that is applicable to the program

- level for each regulated process at the facility

. For example, owners or operators of Program 2 processes must submit information on regulated substances in accordance with §68.205(b)(1), accident history information in accordance with §68.205(b)(2), compliance audit report summaries to LEPC or emergency response officials in accordance with §68.205(b)(3) , inciden t investigation report summaries in accordance with §68.205(b)(4), and exercise schedules and report summaries in accordance with §68.205(b)(6)

. Owners an d operators of Program 3 processes must submit all of the above information, as well as the IST inform ation required under §68.205(b)(5)

. Owners and operators of Program 1 processes would be required to submit only information on regulated substances in accordance with §68.205(b)(1) and accident history information in accordance with §68.205(b)(2).***E.O.12866 Review

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Page 133 of 234 Table 6 : Public Disclosure Information Public disclosure information to be provided to LEPCs or emergency response officials in §68.205. Program Level(s) Applicability

Program 1, 2, or 3 (b)(1) Information on regulated substances 1, 2, 3 (b)(2) Accident history information 1, 2, 3 (b)(3) Compliance audit report summaries 2, 3 (b)(4) Incident investigation report summaries 2, 3 (b)(5) IST summary 3 * (b)(6) Exercise schedules and report summaries 2, 3 * Applies only to Program 3 facilities in NAICS codes 322, 324, and 325. Submission Dates and Updates. Acco r ding to §68.2 05(c) , EPA is proposing that the owner or operator update and submit summary information every calendar year, including all applicable information that was revised since the last submission. Classified Information. EPA is proposing to add § 68.205(d) to address protection of clas sified information from disclosure . This provision is identical to the current §68.210(b )

. Confidential Business Information. EPA is proposing to add the acronym CBI to §68.3 and to add § 68.205( e ) to describe the process for claiming and handling CBI. EPA is proposing that an owner or operator asserting a CBI claim for information required under this section should submit a sanitized version to the LEPC or emergency response officials, and submit to EP A both the sanitized version and a version containing the CBI along with a substantiation of the CBI claim at the time it is asserted. This process for assertion and substantiation of CBI claims is the

same as that required in §§ 68.151 and 68.152 for infor mation contained in the RMP

. As provided under § 68.151(b)(3), an owner or operator of a stationary source may not claim five

- year accident history information as CBI

. As provided in § 68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute in its submission. An owner or operator should be aware that anything they sen d to their LEPC in accordance with §68.205(e) becomes public information

. For any information claimed as CBI when submitted to EPA and later submitted to the LEPC, the CBI claim regarding such information is waived

. Therefore, if an owner or operator wants to maintain the confid e nt i ality of***E.O.12866 Review

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Page 134 of 234 information , when submitting such information to the LEPC, they should submit a sanitized version

. With these proposed requirements, EPA intends to ensure that LEPCs and emergency response officials have information on chemical hazards at regulated facilities and are better prepared to understand an d prepare for risks to the communities and emergency responders. EPA encourages local response officials to coordinate with owners or operators of regulated facilities and participate in emergency response exercises as time and resources allow. LEPC and lo cal emergency response officials should consider the information provided in the calendar year submissions to address the specific risks located within their communities when revising the community emergency response plan d eveloped under 42 U.S.C 11003.
E PA seeks comment on this approach

. Will the proposed requirements improve the community emergency planning and preparedness? Is there additional information that should be shared with LEPCs or emergency response officials? For example, sh ould EPA require the full safer technologies and alternatives analysis to be submitted to the LEPC ? Alternatively, should EPA require less information to be shared (e.g., limit incident investigation information to incidents with offsite impacts)? Should EPA require owners or operators to submit information only upon receiving a request for the information from an LEPC or local responder? Is the proposed timeframe for updating information sufficient to ensure information is up

- to

- date without overwhelming local emergency pl anning officials? Should EPA specify a standard format for summary information in order to make it easier for local officials to interpret the information (e.g., specify a one

- page summary template for information on regulated substances, compliance audits reports, incident investigation reports, IST)?
B . Proposed Revisions to Requirements for Information Availability to the Public Under paragraph §68.210(a), EPA is proposing to add a reference to 40 CFR part 1400 to address CSISSFRRA disclosure restrictio ns (i.e., for OCA information). EPA is not changing its***E.O.12866 Review

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Page 135 of 234 policy regard ing OCA information

. The reference to 40 CFR part 1400 only clarifies the statutory obligations that relate to securing this information. EPA is proposing to redesignate t he current para graph §68.210(b) that addresses the non

disclosure of classified information by the Department of Defense or other Federal agencies or their contractors as §68.210(e). EPA is proposing a new paragraph (b) to require the owner or operator of a stationary

s ource to distribute certain chemical hazard information for all regulated processes to the public in an easily accessible manner

. EPA is proposing to require the owner or operator to distribute the following information, as applicable:

• Names and quantities of regulated substances held in a process above TQs ;

• Safety Data Sheets (SDSs) for all regulated substances held above TQs at the facility ;

• The facility’s accident history required under §68. 42 ;

• I nformation concerning the source’s compliance with §68.10(b)(3) or the emergency
response provisions of Subpart E , in cluding :

o W hether the source is a responding stationary source or a non

- responding stationary source;

o N ame, organizational affiliation, phone number, and e - mail address of local emergency response organizations with which the source last coordinated emergency response efforts, pursuant to § 68.180 ; and

o For sources subject to §68.95, p rocedures for informing the public and local emergency response agencies about accidental releases

.

• Information on emergency response exercises required under §68.96, including schedules for upcoming exercises, reports for completed exercises as described in §68.96(b)(3), and any other related information; and***E.O.12866 Review

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Page 136 of 234 • LEPC contact info rmation, including LEPC name, phone number, web site address, and email addresses of LEPC contacts, as available. EPA believes that providing this information to the general public will allow people that live or work near a regulated facility to improve the ir awareness of risks to the community and to be prepared to protect themselves in the event of an accidental release

. EPA also thinks that requiring facilities to provide summary information on the facility’s emergency response plans and emergency exercises to the public, will pr ovide assurance to the communit y that the facility is adequately prepared to properly handle a chemical emergency, should it arise

. An additional benefit of sharing exercise schedules is to avoid unnecessary public alarm whe n exercises are conducted

. The facility owner or operator can make all the required information available to the public in a variety of ways

. For example, the owner or operator could comply by making the information available on the facility or company we bsite , if one is available

. If the facility doesn’t have a website, the owner or operator could establish one

. Alternatively, there are free or low cost internet platforms, file sharing services , and social media tools that are designed to share informatio n with the public. As another option, the facility could make the information available in hard copy at publicly accessible locations such as a public library or a local government office

. If the facility has the means to handle public visitors, it could c hoose to make the information available at the facility location. The facility could alternatively provide the information by email, upon request. EPA encourages the facility owner or operator to coordinate information distribution with the LEPC or local e mergency response officials to determine the best way to reach public stakeholders. EPA seeks comment on whether there is additional information that should be shared with the public. For example, should EPA require the STAA analysis proposed under § 68.67(c)(8), or a summary of that analysis, be shared with the public? Alternatively, should EPA further limit the information elements proposed?***E.O.12866 Review

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Page 137 of 234 EPA also seeks comment on the feasibility of these various options for providing information to the public and requests suggestions for other ways that the data could be made available

. Lastly, EPA seeks comment on any challenges facility owners or operators would have in providing the information or challenges public stakeholders would have in obtaining the infor mation

. In order to inform the public of the location of the information, EPA is proposing to require under § 68.160(b) that the facility report in their RMP the location or means of public

access to the information proposed to be disclosed under this subse ction

. Submission Dates and Updates. EPA is proposing that the owner or operator shall update and submit information required under §68.210(b) every calendar year, including all applicable information that was revised since the last update. Confidential Business Information. In §68.210(f), an owner or operator asserting CBI shall submit a sanitized version of the information required under this section to the public. Assertion of claims of CBI and substantiation of CBI claims shall be in the same manner a s required in §§ 68.151 and 68.152 for information contained in the RMP required under subpart G

. As provided in § 68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute. If an owner or operator has already claimed CBI for a portion of the RMP, then that claim still applies for the disclosure elements here. The owner or operator should provide a sanitized version as described in the RMP*eSubmit User’s Manua l

. 196 Public Meetings. When the CSISSFRRA was enacted in 1999, it included a section that required owner s or operator s of all facilities regulated under the RMP rule to hold a public meeting within 180 days of enactment. 197 The purpose of the public meeting was to describe and discuss the local implications of the RMP on the community. Two or more stationary sources

196 See EPA. March 2014. RMP*eSubmit Users Manual. http://www2.epa.gov/rmp/rmpesubmit

- users manual

. 197 Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, Public Law 106

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

- 113/pdf/STATUTE

- 113

- Pg207.pdf

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Page 138 of 234 were allowed to conduct a joint meeting, while small businesses were allowed to instead post a summary of thei r OCA information no later than 180 days after enactment. In paragraph §68.210(d)(1), EPA is proposing to require the owner or operator of a regulated stationary source to hold public meetings at least once every five years. Public meetings must address the chemical hazard information described under §68.210(b) and any other appropriate information that may improve safety and emergency preparedness activ ities in the community. The facility representative should describe the risks that are associated with the facility, and what the facility is doing to protect the public from those risks. In addition, the facility personnel should relay information that wo uld assist the public to prepare for accidental releases . For example, at the meeting , the facility representative should discuss the process for public emergency notification , procedures for sheltering in place or evacuating , and where to obtain further u pdates on the status of an emergency incident. The discussion should also address how the public can access community emergency response plans and identify what the community may expect to see dur ing a field exercise . EPA believes that it would be appropri ate for two or more nearby stationary sources to conduct a joint meeting to fulfil this requirement if such a meeting would be the most efficient manner of providing chemical hazard information for multiple sources to the public . This is consistent with th e public meeting provisions of CSISSFRRA. 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. This provides an opportunity for the owner or operator of the RMP facility to inform the community about the accident including, at a minimum, the information reportable under §68.42. This includes information on:

• When the accident occ urred;

• The nature of the accident including initiating event and contributing factors if known;***E.O.12866 Review

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Page 139 of 234 • Chemicals involved and quantities released;

• Weather conditions, if known;

• On

- site and offsite impacts;

• Emergency response notifications; and

• Operational or process changes that resulted, thus far, from investigation of the release

. For post

- accident public meetings, EPA expects that , in some cases , sources will have completed the incident investigation required under §68.60 or §68.81 prior to holding the public meeting

. This would allow the owner or operator to share appropriate information about the accident with the local community. However, in so me cases, such as for complex, protracted investigations, the source may need to hold a public meeting prior to completing the incident investigation

. In such cases, the owner or operator should consider holding a second public meeting after completing the incident investigation.
EPA seeks comment on this approach

. Will the proposed requirements improve the knowledge sharing between regulated facilities and the public? Is there additional information that should be shared with the public stakeholders ? Should EPA only require information to be shared upon request by the public? Alternatively, should EPA further limit the information we are proposing to be required, such as, a one page summary that addresses chemical hazard information and emergency respo nse measures? EPA could alternatively eliminate some of the required information elements or further limit information , such as by limit ing accident history information to only those with offsite impact

. Additionally, should EPA consider other options for when to require public meetings? For example, rather than require regular public meetings, EPA could require public meetings upon request by LEPCs, emergency responders or the public. Alternatively, instead of requiring a public meeting after reportable a ccidents, should EPA require owners and operators to meet only***E.O.12866 Review

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Page 140 of 234 with LEPCs and emergency responders? If EPA finalizes the requirement to hold post

- accident public meetings, should EPA extend the required timeframe to complete the meeting beyond 30 days, in order to give the owner or operator more time to learn about accident causal factors and prepare for a public meeting ? If so, what extended timeframe should EPA choose?
C

. Alternative Option s EPA considered an option limiting the requirement for public meetings to only P rogram 2 and P rogram 3 facilities; however, EPA did not propose this option because even though accidents at Program 1 facilities should not have significant public impacts, some communities near these facilities may still be interested i n understanding the risks at the facility and the procedures and controls that are in place to limit offsite impacts. Additionally, if a P rogram 1 facility does have an RMP reportable accident with offsite impacts, EPA believes they should be held to the s ame standard as other facilities and be required to hold a public meeting within 30 days of the incident to provide additional information on the accidental release. Nevertheless, EPA is interested in receiving public feedback on whether the public meeting requirement should be limited to Program 2 and 3 facilities. EPA is also considering an option for supporting the public disclosure provisions with a “score card” or a “grade” system that could be provided by an independent third

- party. The score
or gra de would be made available to the LEPCs and public to demonstrate the facility’s compliance with the RMP rule . This method could be used either instead of or in addition to what EPA is proposing. EPA requests information and recommendations on how to devel op such a
program , including the types of scoring criteria that should be used and any other issues that the Agency should consider when develop ing such a system. EPA seeks comment on th e s e alternative approach es and whether there are any other alternative options that EPA should consider for future actions

. VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule Technical Corrections***E.O.12866 Review

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Page 141 of 234 A stationary source subject to the RMP rule is required to submit a RMP in a method and format specified by the EPA, pursuant to §68.150(a). The CAA and 40 CFR Subpart G require that the RMP indicate compliance with the regulations at 40 CFR p art 68 and al so include information regarding the hazard assessment, prevention program, and emergency response
program. The RMP also includes stationary source registration information, such as name, location and contact information

. The EPA may review RMPs for inform ation gathering, inspection preparation, errors in submissions, and changes requiring a correction or re

- submission of the RMP

. The CAA requires that RMPs be made available to states, local entities responsible for planning or responding to accidental rele ases at the source, the CSB, and the public

. As a result, the information provided in a n RMP is intended to be easily understood, thus encouraging the public, local entities, and governmental agencies to interact with stationary sources on issues related t o accident prevention and preparedness. The RMP format consists of a combination of check

- off boxes, yes/no answers, numerical entries, and write

- in information pertaining to the data best describing the various elements of the risk management program at a source. The nine sections of a n RMP are: Registration Information; Toxics Worst Case ; Toxics Alternative Release ; Flammables Worst Case ; Flammables Alternative Release ; Accident History ; Prevention Program: Program Level 3; Prevention Program: Program Lev el 2; and Emergency Response. Data elements in these sections address compliance with each of the rule elements. Some sections may not be applicable to all stationary sources, as some sections apply only to processes with certain program levels, and

some a pply only to certain types of regulated substances (toxics or flammables). The RMP also includes an Executive Summary, which allows stationary sources to provide a brief description of the source’s prevention and preparedness activities as they relate to c overed processes, in a format that is easy to understand.***E.O.12866 Review

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Page 142 of 234 Based on feedback received from the regulated community and EPA ’s own experience, EPA is proposing to revise several data elements in Subpart G and to make technical corrections to the RMP rule. The following sections provide an overview of the proposed revisions. A. Deletions from Subpart G EPA is proposing to delete data elements that do not effectively assist the A gency in evaluating compliance with the RMP rule . EPA is also proposing to delete s ome data elements because the information can be obtained through improved coordination with Federal, s tate, and local agencies resulting from E O 13650, such as information currently required by §§68.160(b)(13) (the date of the last safety inspection of th e stationary source by a Federal, state, or local government agency) and 68.160(b)(19) (OSHA Voluntary Protection Program status). EPA is proposing to delete other data elements because we believe an on - site inspection or formal information request are bet ter ways to evaluate compliance with these Risk Management Program requirements (for example, some data elements pertaining to training , contractor safety, and maintenance/mechanical integrity ). By removing several RMP data elements, EPA expects that the r egulated community will find it easier to comply with Subpart G requirements

. In addition to burden relief for the regulated community, EPA expects that removing several RMP data elements will reduce the number of errors in RMPs submitted to the A gency . B. Revisions to Subpart G EPA is proposing to revise existing provisions in Subpart G as follows :

• Modernize requirements to include electronic contact information if it exists, such as

e - mail addresses and website homepages;

• Revise provisions to remove a portion of select data element s that would be better evaluated during an on

- site inspection or information request;

• Provide consistency with RMP*eSubmit;***E.O.12866 Review

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Page 143 of 234 • Provide more consistency in the data collected for similar data elemen ts in the Program 2 and 3 p revention p rogram s ; and

• Replace data element s that w ere not effective in demonstrating a stationary source’s compliance with the rule , with one that will demonstrate compliance

. Data elements that require a date to demonstrate compliance can become irrelevant during the typical five

- year RMP resubmission cycle

. An example is a stationary source that submitted an RMP to the EPA on January 8, 2015 that included an annual operating procedures review date of January 1, 2015 in its R MP in accordance with § 68.175(f)

. Assuming the stationary source will not have any changes that would require a resubmission of the RMP and the stationary source will not voluntarily correct the RMP with newer annual standard operating procedure (SOP) review dates, the January 1, 2015 annual SOP review date does not provide compliance information for years 2016

- 2019

. As a result, the annual SOP review date in this example only provide s compliance information for 2015

. Because the dates of most recent review or update of a process safety element in an RMP do not always reflect compliance with regulatory requirements, EPA is proposing to replace most of the se dates with the RMP Certifying Official ’s
attest ation that the stationary source complies with e ach Risk Management Program requirement

. Data elements for which the last review or revision dates are being replaced include:

• For Program 2 and 3: safety information, operating procedures, training programs, maintenance procedures, changes triggering rev iew of any of the previous data elements or the hazard review/PHA;

• For Program 3 only: management of change, pre

- startup review, employee participation plans, hot work permit procedures, contractor safety procedures and performance; and,

• For sources with Emergency Response P rogram s: emergency response plans and emergency response training of employees

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Page 144 of 234 EPA will still require the date of the most recent hazard review or PHA or their update (required every 5 years), date of most recent compliance audit (req uired every 3 years), and date of most recent incident investigation (required only when an incident occurs)

. These data elements are not updated as frequently as the other program elements, and are therefore more likely to indicate current compliance with regulatory requirements.
C. Additions to Subpart G In addition to removing and revising several RMP data elements, EPA is proposing to add several RMP data elements in Subpart G based on the proposed rule requirements discussed in this notice. This includes new data elements to address compliance with :

• Third

- party audit requirements,

• Root cause analysis requirements as part of incident investigations;

• IST analysis requirements in the PHA;

• Emergency response preparedness requirements including inform ation on local coordination and emergency response exercises; and

• Information sharing provisions. By adding these data elements to the RMP requirements in Subpart G EPA will be able to evaluate a stationary source’s compliance with these proposed rule req uirements once they are finalized

. D. Proposed Amendments and Technical Corrections 1. Proposed Revisions to § 68.160 (Regist ration) EPA is proposing to delete and reserve :

• §68.160(b)(13)

- The date of the last safety inspection of the stationary source by a Federal, state, or local government agency and the identity of the inspecting agency ; and

• §68.160(b)(19)

- OSHA Voluntary Protection Program status (Optional)

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Page 145 of 234 EPA is proposing to revise:

• §68.160(b)(1) by removing the method for obtaining latitu de and longitude ( but keep the rest of §68.160(b)(1) );

• §68.160(b)(4) by requiring an email address for the owner or operator, if that person has an e

- mail address, rather than making it optional;

• §68.160(b)(5) by removing “position” and requir ing an email address for the person with overall responsibility for RMP elements and implementation, if that person has

an e - mail address ( rather than making it optional );

• §68.160(b)(9) by adding “equivalent” to clarify that the number of full

- time employees means full

- time e quivalent employees to be consistent with RMP*eSubmit ;

• §68.160(b)(1 2) by adding the phrase “and if so” to clarify that if the stationary source has a CAA Title V operating permit, then the RMP plan must include the permit number;

• §68.160(b)(14) by r equir ing an email address for the contractor who prepared the RMP (if any) , if the contractor has an e

- mail address ;

• §68.160(b)(15) by r equir ing an email address for the source or parent company, if the source or parent company has an e

- mail address ;

• §68.160(b) (16) by r equir ing a source internet address, if the source has an internet address;

• §68.160(b)(17) by r equir ing a phone number at the source for public inquiries, if the source has a public inquiries phone number ;

• §68.160(b)(18) by r equir ing the name, pho ne number, e

- mail address, and internet address for the LEPC, if the LEPC has such information available; and***E.O.12866 Review

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Page 146 of 234 • §68.160(b)(20) by c hang ing facility to stationary source in subparagraphs (b)(20)(ii) and (b)(20)(iv). EPA is proposing to add the following RMP data elements that relate to the information sharing provisions being proposed in this notice :

• §68.160(b)(21) would require a n attestation that c hemical h azard

- r elated i nformation is available to the LEPC or e mergency r esponse o fficials, as set forth i n §68.205 ;

• §68.160(b)( 22) would require a n attestation that c hemical h azard

- r elated i nformation is available to the public, as set forth in §68.210 ; and

• §68.160(b)( 23 ) would require the d ate of most recent public meeting, as set forth in §68.210(d)

. 2. Pro posed Revisions to §68.170 (Prevention Program/Program 2) EPA is proposi n g to delete the requirement in §68.170(k) which identify t he date of the most recent change that triggered a review or revision of safety information, the hazard review, operating or maintenance procedures, or training

. EPA is proposing to revise:

• §68.170(a) by changing the reference to paragraph (k) to paragraph (j) because we are proposing to delete paragraph (k).

• §68.170(d) by r eorganiz ing into subparagraphs (d)(1) and (d)(2). EPA is proposing to replace the date of the most recent review or revision of the safety information with an attestation that the safety information requ i rements , in §68.48, are implemented. EPA is also proposing to m ove the requirement to list all F ederal and state regulations, industry specific and established company or stationary source design codes and standards that are applicable, and the requirement to identify those followed , into subparag r aph (d)(2).***E.O.12866 Review

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Page 147 of 234 • §68.170( e) by r eorganiz ing the date of completion of the most recent hazard review or hazard review update to §68.170(e)(1) and remov ing from §6 8.170(e)(1), t he requirement to identify an expected date of completion of any changes resulting from the hazard review;

• §68.170(f) by replacing t he date of the most recent review or revision of operating procedures with an attestation that the operating procedures requirements, in §68.52, are implemented;

• §68.170(g) by r eplac ing t he date of the most recent review or revision of training
programs with an attestation that training requirements, in §68.54, are implemented. EPA is also proposing to delete the requirements to identify the type s of training provided and competency testing used in subparagraphs (g)(1) and (g )(2);

• §68.170(h) by replacing t he date of the most recent review or revision of maintenance procedures and the date of the most recent equipment inspection or test and the equipment inspected or tested with an attestation that the maintenance requirements, in §68.56, are implemented;

• §68.170(i) by reorganizing into subparagraphs. EPA would add an attestation that the compliance audit requirements of §68.58 are implemented in subparagraph (i)(1) and move the requirement to identify the date of the most recent compliance audit to subparagraph (i)(2). EPA would remove the requirement to identify the date of completion of any changes resulting from the compliance audit; and, in subparagraph (i)(3), add a requirement that the owner or operator identify wheth er the most recent compliance audit was a third

- party audit, pursuant to §§68.58 and 68.59 ; and

• §68.170(j) by reorganizing into subparagraphs

. EPA would add an attestation that the incident investigation requirements, in §68.60, are implemented in subpara graph (j)(1) and move the date of the most recent incident investigation into subparagraph***E.O.12866 Review

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Page 148 of 234 (j)(2). EPA would delete the requirement to identify th e expected date of completion of any changes resulting from the investigatio n, and, in subparagraph (j)(3), wo uld add a requirement that the plan indicate whether root cause analyses have been completed for all accidents and incidents that are subject to the requirements of §68.60. 3. Proposed Revisions to § 68.175 (Prevention Program/Program 3) EPA is proposi n g to delete paragraph §68.17 5(p ) because we are addressing the data elements for contractor safety procedures in paragraph (o)

. EPA is proposing to revise the following provisions:

• §68.175(a) by changing the reference to paragraph (p) to paragraph (o) because we are proposing to combine the data elements in paragraphs (p) and (o) that show compliance with the requirements for contractor safety procedures.

• §68.175(d) by reorganizing into subparagraphs (d)(1) and (d)(2) . EPA is proposing to replace t he date of the most recent review or revis ion of the safety information with
an attest at ion that the PSI requirements, in §68.65, are implemented. EPA is also proposing to move the requirement to list all F ederal and state regulations, industry

specific and established company or stationary source design codes and standards that are applicable, and the requirement to identify those followed, in to sub paragraph (d)(2);

• §68.175(e) by r eorganiz ing existing requirements into subparagraphs (e)(1) and (e)(2) and adding new requirements addressing safer technology and alternatives in

new sub paragraph (e)(2)

. Sub paragraph (e)(1) would apply to information on the PHA or PHA update and revalidation information

. EPA would move the date of completion of the most recent PHA or update and require the plan identify the technique used to §68.170(e)(1)(i). EPA would delete the requirement to ident i fy t he expected date of completion of any changes resulting from the PHA

. Additional PHA***E.O.12866 Review

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Page 149 of 234 information would move to subparagraph (e)(1)(ii)

- (vi). EPA would add subparagraph (e)(2) to address requirements for safer alternatives including : an attestation that the PHA address safer technology and risk management measures, as required in §68.67(c) (8); whether any IST or ISD were implemented and if so, the technology category that describes the IST or ISD (i.e., substitution, minimization, simplification, and/or moderation) ;

• § 68.175(f) by replacing t he date of the most recent review or revision of operating procedures with an attestation that the operating procedures requirements, in §68.69, are implemented;

• §68.175(g) by r eplac ing the date of the most recent review or revision of training programs with an attestation that training requirements , in §68. 71, are implemented

. EPA is also proposing to delete the requ ir ements to identify the type s of training provided and competency testing used in subparagraphs (g)(1) and (g)(2);

• §68.175(h) by replacing t he date of the most recent review or revision of

m

aintenance procedures and the date of the most recent equipment inspection or test and the equipment inspected or tested with an attest at ion that the mechanical integrity requirements, in §68.73, are implemented;

• §68.175(i) by replacing t he date of the mos t recent change that triggered management of change procedures and the date of the most recent review or revision of management of change procedures with an attestation that the management of change requirements, in §68.75, are implemented;

• §68.175(j) by r eplacing t he date of the most recent pre

- startup review with an attestation that the pre

- startup review requirement, in §68.77, are implemented;

• § 68.175(k) by reorganizing into subparagraphs

. EPA would add an attestation that the compliance audit requirements of §68.79 are implemented in sub paragraph (k)(1)***E.O.12866 Review

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Page 150 of 234 and mov e the requirement to identify the date of the most recent compliance audit to sub paragraph (k)(2)

. EPA would r emove the requirement to ident i fy the expected date of completion of any chan ges resulting from the compliance audit ; and , in sub paragraph (k)(3) , add a requirement that the owner or operator identify whether the most recent compliance audit was a third

- party audit, pursuant to §§68.79 and 68.80;

• §68.175(l) by reorganizing into subparagraphs

. EPA would add an attestation that the incident investigation requirements, in §68.81, are implemented in sub paragraph (l)(1) and move the date of the most recent incident investigation in to sub paragraph (l)(2)

. EPA would delet e the requireme nt to identify th e expected date of completion of any changes resulting from the investigatio n; and, in sub paragraph (l)(3), would add a requir ement that the plan indicate whether root cause analyses have been completed for all accidents and incidents that are subject to the requirements of §68.81;

• §68.175(m) by replacing t he date of the most recent review or revision of employee participation plans with an attestation that employee participation requirements, §68.83, are implemented;

• §68.175(n) by replacin g t he date of the most recent review or revision of hot work permit procedures with an attestation that the hot work permit requ i rements, in §68.85, are implemented ; and

• § § 68.175(o) and 68.175(p) by replacing t he date of the most recent review or revision of contractor safety pro cedures and the date of the most recent evaluation of contractor safety performance with an attestation in §68.175(o) that the contractor safety requirements, in §68.67, are implemented

. 4. Proposed Revisions to § 68.180 (Emergency Response Program)***E.O.12866 Review

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Page 151 of 234 Subpart G §68.180 contains the e mergency r esponse p rogram data elements that must be included in the RMP. Although the data elements in §68.180 are intended to help identify whether stationary source personnel will respond to an accidental release of a regulated substance, the existing data elements do not clearly distinguish between responding stationary

sources and non

- responding stationary sources. As a result, many non

- responding stationary

sources are submitting RMPs to the EPA with errors, because they appear to be answering questions that were only m eant to be answered by responding sources. Consequently, the RMP data do not indicate with certainty, whether a stationary source is a responding or non

- responding stationary source. The proposed revisions to add e mergency response e xercises and revise loc al

c oordination provisions of the rule are intended to improve coordination with local response authorities and to bolster emergency response capabilities and preparedness for accidental releases

. Because of the proposed regulatory changes to s ubpart E

- e m ergency r esponse, and due to the difficulty in distinguishing between responding and non

- responding facilities in Subpart G §68.180, the EPA is proposing to completely revise and reorganize Subpart G §68.180 into the following three parts: requirements for (1) all non

- responding and responding stationary sources , (2) non

- responding stationary sources , and (3) responding stationary sources . The EPA believes that splitting Subpart G §68.180 into three parts will aid facilities’ understanding of the reporting requirements, reduce errors in submitted RMPs, and improve compliance with the RMP requirements. The proposed revisions to Subpart G §68. 180 will also improve EPA’s ability to evaluate a facility’s compliance with the proposed Emergency Response Program requirements. EPA is proposing to revise:

• §68.180(a) by deleting the phrase “the following information.” The text in sub paragraphs (a)(1) through (a)(3) would be reorganized and/or replaced. Subp aragraph (a)(1) would require the RMP to identify the name, organizational affiliation, phone number, and e

- mail address of local emergency planning and***E.O.12866 Review

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Page 152 of 234 response organizations with which the stationary source last coordinated emergency response efforts, pursuant to §68.10(b)(3) or § 68.93. Subp aragraph (a)(2) would require the RMP to identify whether coordination with the local emergency response organizations is occurring at least an nually, pursuant to § 68.93(a). Subp aragraph (a)(3) would require the RMP to identify a list of F ederal or state emergency plan requirements to which the stationary source is subject . EPA would delete sub paragraphs (a)(4) through (a)(6) ;

• §68.180( b) by replacing the current text with a requirement to identify whether the facility is a responding or non

- responding stationary source, pursuant to §68.90. EPA would reorganize the paragraph into subparagraphs as follows:

o Subp aragraph (b)(1) would apply to non

- responding stationary sources. In sub paragraphs (b)(1)(i) through (b)(1)(iii) the owner or operator would be required to identify whether the owner or operator has confirmed that local responders are capable of responding to accidental releases at the sou rce, whether appropriate notification mechanisms are in place, and whether a notification exercise occurs at least annually.

o Subp aragraph (b)(2) would apply to responding stationary sources. In sub paragraphs (b)(2)(i) through (b)(2)(v) the owner or operato r would be required to identify whether the LEPC or local response entity requested that the stationary source be a responding facility; whether the stationary source complies with requirements in §68.95; whether a notification exercises occurs at least

an nually, as required in §68.96(a); wh ether a field exercise is conducted every five years and after any reportable accidental release, pursuant to §68.96(b)(1)(i); and w hether a tabletop exercise occurs at least annually, except during the calendar year whe n a field exercise is conducted, as required in §68.96(b)(2)(i).***E.O.12866 Review

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Page 153 of 234 EPA is proposing to delete §68.180(c), which requires the owner or operator to list other Federal or state emergency plan requirements to which the stationary source is subject. 5

. Technica l Corrections a. Proposed revisions to §68.10 (Applicability) EPA is proposing to correct a typographical error in §68.10(b)(2). Section 68.10(b)(2) uses the term public receptor and indicates that public receptor is defined in §68.30; however the term pub lic receptor is defined in §68.3, not §68.30

. The proposed rule language corrects this typographical error. b. Proposed revisions to §68.48 (Safety information) EPA is proposing to remove the word “material” from the term Material Safety Data Sheet in §68.48(a)(1) to conform with OSHA’s revised terminology for SDS

. In 2012, OSHA made changes to its Hazard Communication Standard at 29 CFR 1910.1200 in order to alig n with the UN Globally Harmonized System of Classification and Labelling of Chemicals (GHS), Revision 3 (77 FR 17574, March 26, 2012). One change was the change in nomenclature from “Material Safety Data Sheets” to “Safety Data Sheets

. ” Consequently, OSHA made this change to the PSM standard at 1910.119(d)(1)(vii) (78 FR 9311, February 8, 2013). Chemical producers and users must comply with new SDS requirements by June 1, 2015. 198 In order to be consistent with OSHA and the UN GHS, EPA is proposing to replace “Material Safety Data Sheet” with “Safety Data Sheet” in §68.48(a)(1)

. c. Proposed revisions to §§68.54 and 68.71 (Training ) The RMP r ule requires initial and refresher training for employees operating a Program 2 or P rogram 3 covered process. Since the i nception of the r ule, however, there has been confusion on the types of employees that are considered workers operating a covered process. Although “employee” is not defined in §68.3, EPA has traditionally interpreted an employee to be any

198 OSHA Fact Sheet

- Hazard Communication Standard Final Rule

. https://www.osha.gov/dsg/hazcom/HCSFactsheet.html

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Page 154 of 234 worker that is i nvolved in operating a p rocess, including supervisors. This is consistent with the OSHA definition of employee set forth at 29 CFR 1910.2(d) in which an e mploy ee means an employee of an employer who is employed in a business of his employer which affects

commerce. EPA has noted during facility inspections that some owners and operators are confused about how the existing training requirements apply to supervisors involved in process operations. If a supervisor is involved in decision

- making for process operations, such as making changes to operating parameters, developing or approving operating procedures, or conducting emergency operations, then EPA expect s that the supervisor receives initial and refresher training appropriate to the supervisor’s responsibilities. In such cases, the training of a supervisor might not need to be as extensive as that of an operator, but EPA expects that the supervisor training woul d include process operations for which the supervisor might have decision

- making authority. For this reason, EPA is proposing to clarify that the training requirements in §§68.54 and 68.71 (for Program 2 and Program 3 facilities, respectively) apply to sup ervisors who are involved in operating a covered process by adding paragraph (e) to indicate that the term employee includes supervisors. Similarly, the EPA realizes that there may be other employee types involved in operating a covered process besides ope rators. For example, process engineers and maintenance technicians may occasionally be involved in process operations. The degree of involvement for these other employee types may vary greatly. Therefore, EPA is proposing to revise §68.54(d) to clarify tha t the requirement applies to employees involved in operating a process. For employees other than operators and supervisors, EPA expects that initial and refresher training will be appropriate to the employee’s responsibilities in operating the process. Fi

nally , EPA believes that Program 3 requirements in § § 68.71(a) and 68.71(b) provides clearer regulatory language regarding the applicability of employees subject to initial and refresher training requirements than the similar Program 2 requirements § § 68.54( a) and 68.54(b).***E.O.12866 Review

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Page 155 of 234 Specifically, § §68.71(a) and 68.71(b) indicates that initial and refresher training is required for employees “involved in” operating a covered process. Because EPA believes that this language can better facilitate compliance for Program 2 , the EPA is proposing to add similar language for Program 2 facilities at § § 68.54(a) and 68.54(b). d. Proposed revisions to §68.65 ( PSI )
EPA is proposing to revise §68.65(a) in order to remove irrelevant text regarding the timeframe for initial development of PSI and to more clearly demonstrate that PSI must be kept
up - to

- date. The EPA believes that these proposed changes will help Program 3 facilities to better comply with PSI requirements. EPA is proposing to revise §68.65(a) to remove the phrase “In accordance with the schedule set forth in §68.67 .” This language appears to have been adopted from OSHA’s PSM PHA completion schedule of May 1994 to May 199 7 and is not relevant to the RMP rule because the compliance date of June 21, 1999 is after OSHA’s PSM PHA completion schedule. Additionally, the only schedule currently referenced in §68.67 is in §68.67(e), which pertains to a written schedule of PHA corr ective actions. Because § 68.67(e) does not pertain to when a PHA must be completed, EPA is proposing to remove the phrase “In accordance with the schedule set forth in §68.67” from §68.65(a)

. Furthermore, EPA is proposing to add the phrase: “and shall kee p PSI up - to

- date.” EPA has always intended that PSI be kept up

- to

- date for Program 3 facilities. Updated PSI is necessary to properly update or revalidate the PHA every 5 years as required by § 68.67(f). PSI items that that need to be kept up

- to

- date include, but are not limited to, p iping and i nstrumentation d

iagrams, SDSs , hazard information, and changes to the design of the process. Although PSI must be updated for Program 3 facilities through m anagement of c hange requirements in §6 8.75(d), EPA believes that the proposed change makes it clearer that PSI must be kept up

- to

- date. This proposed change also ensures consistency with the s afety i nformation requirement for Program 2 facilities , where §68.48(a) indicates “The owner or operat or shall compile and maintain the***E.O.12866 Review

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Page 156 of 234 following up

- to

- date safety information...” EPA expects that revising §68.65(a) in this manner will further clarify the requirement that PSI must be completed prior to conducting a PHA

. Finally, i n order to be consistent wi th OSHA and the GHS, EPA is proposing to replace “Material Safety Data Sheet” with “Safety Data Sheet” in the note to §68.65(b). EPA is also proposing to remove the phrase “at least the following” in §68.65(b) because it is unnecessary.

e . Proposed revisi ons to §68.130 List of substances EPA is proposing revisions to Tables 1, 2, and 4 in §68.130 as follows: Table 1 to §68.130

- List of Regulated Toxic Substances and TQs for Accidental Release Prevention. EPA is proposing to correct a typographical error in the chemical abstracts service (CAS) number (no.) for allyl alcohol in Table 1 in §68.130

. The incorrect CAS n o. of 107

- 18

- 61 for allyl alcohol would be corrected to 107

- 18

- 6

. Table 2 to §68.130, List of Regulated Toxic Substances and TQs for Accidental Release Prevention . I n order to make the list of CAS no s . easier to search, EPA is proposing to right

justify the column of CAS no s . in Table 2 in §68.130

. This will match the alignment of the CAS

nos. in other tables in §68.130. Table 4 to §68.130

- List o f Regulated Flammable Substances and TQs for Accidental Release Prevention . EPA is proposing to correct a typographical error to a CAS no., right justify the first CAS nos. column and delete the second CAS nos. column. Table 4 in §68.130 currently has two columns with CAS nos . In the left column of CAS nos. , EPA is proposing to correct the CAS no . for 1, 3

- Butadiene, to read 106

- 99

- 0, instead of 196

- 99

- 0

. In addition, we are proposing to right

- justify the left column of CAS nos. in Table 4 to make it easier for users to read and find the CAS no. associated with a particular regulated substance. EPA is also proposing to remove the second column of CAS n os. (i.e., the CAS nos. column that appears after the chemical name col umn) because it is redundant

. f . Proposed revisions to §68. 200 (Recordkeeping)***E.O.12866 Review

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Page 157 of 234 EPA is proposing to revise §68.200 to clarify that records must be maintained at the stationary source. VIII . Compliance Dates The initial Risk Management Program rule applied 3 years after promulgation of the rule on June 20, 1996, which is consistent with the last sentence of CAA section 112(r)(7)(B)(i). The provisions of this proposal modify terms of the existing rule, and, in some cases, simply clarify existing requi rements. The statute does not directly address when amendments should become applicable. Therefore, i n modifications to §68.10, EPA is proposing to:

• Require compliance with emergency response coordination activities within one year of an effective date of a final rule;

• Provide up to three years for the owner or operator of a non

- responding stationary source to develop an emergency response program in accordance with §68.95 following an LEPC or equivalent’s written request to do so;

• Comply with new provisi ons , unless otherwise stated, four years after the effective date of the final rule; and

• Provide regulated sources one additional year (i.e., five years after the effective date of the final rule) to correct or resubmit RMPs to reflect new and revised dat a elements. EPA is proposing that within one year of the effective date of a final rule, the owner or operator of a stationary source comply with emergency response coordination activities in § §68.93(a) and 68.93(b). This includes coordinating response n eeds annually with local emergency planning and response organizations to ensure resources and capabilities are in place to respond to an accidental release of a regulated substance, and documenting coordination activities. EPA believes one year is suffici ent to arrange for and document coordination activities.***E.O.12866 Review

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Page 158 of 234 The coordination activities in this proposed rule mostly are clarifications of current requirements rather than new provisions. EPA is also proposing to require three years for the owner or operator of a stationary source to comply with emergency response program requirements of §68.95 after receiving a written request by an LEPC or equivalent to develop an emergency response program . This timeframe is consistent with the time established in the origi nal rule to comply with risk management program requirements and submit initial RMPs. Additionally, EPA is proposing to provide additional time for compliance with other proposed provisions (i.e., third

- party compliance audits, root cause analyses as part of incident investigations, STAA, emergency response exercises , and information availability provisions)

. For these provisions, the proposed rule requires affected facilities to comply by four years after the effective date of the rule. Our reasons for the four year phase for these modified requirements are set out below. For the third

- party audit and incident investigation root cause analysis provisions, this means that for any reportable accident occurring later than four years after th e effective date of the rule, the owner or operator of a source must conduct a third

- party audit

. For any incident that could reasonably have resulted in a catastrophic release (near miss) , the owner or operator has four years after the effective date of t he rule to comply with the proposed incident investigation root cause analysis requirements. For the STAA, emergency exercise, and information availability provisions, this means that the owner or operator must have completed or updated their PHA to includ e the STAA, conducted a notification exercise and at least one tabletop or field exercise , completed the initial calendar year submission of required information to LEPCs and the public , and held at least one public meeting by four years after the effectiv e date of the rule.
EPA is proposing to provide this additional time for several reasons. First, EPA believes that for most sources, the incident investigation root cause analysis and emergency response exercise requirements will involve training and program development activities that may***E.O.12866 Review

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Page 159 of 234 reasonably require significant tim e to complete. Second, the extended compliance timeframe will allow potential auditors enough time to meet the competency and independence criteria necessary to serve as a third

- party auditor. Third, for sources subject to the STAA provisions, EPA believes that in many cases these sources will prefer to perform a full PHA update when implementing the STAA requirements. Sources subject to this provision are among the largest and most complex sources regulated under 40 CFR part 68, and therefore PHAs and PHA updates at these sources typically require a significant level of effort. Since PHA updates are normally done at five year intervals, EPA believes it would be appropriate to allow most sources to adopt these provisions in their normal PHA update cycle if t hey so choose. Sources that performed their most recent PHA update immediately prior to the rule publication date would have up to four years to perform their next PHA update and adopt the STAA provisions. Most sources could schedule their PHA updates to i ncorporate the new STAA provisions on their normal PHA update schedule. Lastly, EPA intends to publish guidance for certain provisions, such as STAA , root cause analysis, and emergency response exercises. Once these materials are complete, owners and
op erators will need time to familiarize themselves with the new materials and incorporate them into their risk management programs. EPA is also proposing to provide one additional year for owners or operators to update RMPs to reflect proposed new or revised data elements in Subpart G of the rule. The additional year will allow owners and operators an opportunity to begin to comply with revised rule provisions prior to certifying compliance in the RMP. Additionally, the Agency will need to make significant re visions to its online RMP submission system, RMP*eSubmit, to accommodate the newly required and revised data elements, and sources will not be able to update RMPs with new or revised data elements until the submission system is ready. Also, once it is read y, allowing an additional year for sources to update RMPs will prevent potential problems with thousands of sources submitting updated RMPs on the same day. Examples for compliance and submission dates.***E.O.12866 Review

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Page 160 of 234 The following examples assume a hypothetical effectiv e date of June 5, 2017 for a final rule that includes the proposed provisions in Table 7 : Proposed Rule Provisions and Corresponding Compliance Dates with corresponding proposed compliance dates.
Table 7 : Proposed Rule Provisions and Corresponding Compliance Dates Rule provision Proposed Compliance Date Hypothetical Compliance Date Initiated after an RMP Reportable Accident? Third

- party audit F our years after effective date June 5, 2021 Yes Root cause analysis F our years after effective date June 5, 2021 Yes (also required after near misses) STAA F our years after effective date June 5, 2021 No Emergency response coordination activities Within one year of effective date June 5, 2018 No

LEPC re quires compliance with §68.95 (emergency response program) Within three years of receipt of written request N/A No
Emergency response exercises F our years after effective date June 5, 2021 Partially

- field exercise within one year Information sharing F our years after effective date June 5, 2021 Partially

- public meeting within 30 days Update RMP F ive years after effective date June 5, 2022 No ( b ut previously existing correction requirements of §68.1 95 still apply)
Example 1: Proposed provisions that would apply to a non

- responding stationary source Source A (see Table 8 ) is a non

- responding stationary source with a regulated process subject to Program 2 requirements. Source A’s owner submitted the latest RMP update to EPA on January 20, 20 15 and completed its latest compliance audit on August 11, 201 7

. The source is not in NAICS 322, 324, or 325, and therefore is not subject to the proposed STAA provisions. The source has not had any reportable acc idents since the effective date of a final rule

. Table 8 : Example 1, Source A Source A

— Program 2, Non

- responding Stationary Source***E.O.12866 Review

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Page 161 of 234 Date of Last RMP Update Last compliance audit Last accident January 20, 2015 August 11, 2017 N/A

In this example, the following proposed provisions would apply:

• Annual emergency response coordination activities in accordance with proposed §68.93;

• Notification exercises (proposed §68.96(a)); and

• Information availability provisions (proposed §§68.205 and 68.210). The owner or operator must coordinate response needs with local emergency planning and response organizations to ensure resources and capabilities are in place to respond to an accidental release of a regulated substance. Coordination activities must occur annually and be documented. Source A is a non

- responding facility, and the owner or operator would be required to conduct annual notification exercises. The owner or operator would also be required to annually provide information to the LEPC, and make certain infor mation easily accessible to the public. A public meeting would be scheduled once every five

- years to discuss chemical hazard information at the facility. Finally, beginning 5 years after the rule effective date, the owner or operator must update the RMP t o include all revised data elements specified in subpart G and §68.42. In this case, th e owner or operator would update their RMP no later than January 20 , 2020 (the source's next scheduled five

- year update), and again by June 5 , 2022 (the required resubmission date for the proposed rule). Table 9 Summary of proposed provisions that would apply to a non

- responding stationary

source summarizes the proposed provisions that would apply to Source A

. Table 9 : Summary of proposed provisions that would apply to a non
- responding stationary source Applicable Provisions: Timeframe Additional Information When to Complete E.O.12866 Review

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Page 162 of 234 Emergency response coordination activities W ithin one year of effective date of a final rule. Occurs annually Complete coordination activitie s before June 5, 2018 and document coordination
Notification e xercise By f our - years after effective date. Occurs annually Complete first notification exerci se by June 5, 202 1 Information availability provisions

Information to LEPC B y four

- years after effective date. Occurs annually. Includes information on regulated substances; accident histories; compliance audits; incident investigations (as applicable) and exercises. Complete first calendar year submission b y June 5, 202 1

Information to the public B y four

- years after effective date. Occurs annually. Incl udes information on: regulated substances including Safety Data Sheets; accident history; emergency response program; exercises; and LEPC contact information. Complete first calendar year submission b y June 5, 202 1

Public meeting B y four

- years after effec tive date. Once every five years. Also required within 30 days of an RMP reportable accident Complete ini tial public meeting b y June 5, 202 1

Update RMP B y five years after effective date Owner’s next 5

- year resubmission date occurs prior to effective date for provision, so owner must update RMP twice. Upd ate RMP on regular schedule ( by Jan uary 20, 2020) and again to include new information b y J une 5 , 202 2

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. If the LEPC submits a request to Source A’s owner requesting the source comply with the emergency response program requirements of §68.95, then Source A’s owner would have three years from the date of the letter to develop and implement an emergency respon se plan, obtain equipment , and train personnel in relevant procedures.***E.O.12866 Review

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Page 163 of 234 Once the owner has developed an emergency response program, the source is a responding facility and must also comply with tabletop and field exercise requirements for responding facili ties. Example 2A: Proposed provisions that would apply to a responding stationary source Source B (see Table 10 ) is a responding stationary source with a process subj ect to Program 3 requirements. Its latest RMP update was submitted June 30, 2020 (i.e., three years after the rule effective date). Its latest compliance audit was performed on April 6, 2020. The source is not in NAICS 322, 324, or 325, and therefore is not subject to the proposed STAA provisions, and the source has not had any reportable ac cidents since the effective date of a final rule

. Table 10 : Example 2A, Source B Source B

— Program 3, Responding Stationary Source Date of Last RMP Update Last compliance audit Last accident June 30, 2020 April 6, 2020 N/A

In this example, the following proposed provisions would apply:

• Annual emergency response coordination activities in accordance with proposed §68.93;

• Emergency response exercises (proposed §68.96); and

• Information availability provisions (proposed §§68.205 and 68.210)

. The own er or operator must coordinate response needs with local emergency planning and response organizations to ensure resources and capabilities are in place to respond to an accidental release of a regulated substance. Coordination activities must occur annual ly and be documented. Additionally, since Source B is a responding facility, the owner or operator would be required to conduct annual notification exercises, annual tabletop exercises (with a field exercise substituting for a tabletop exercise once every five years).***E.O.12866 Review

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Page 164 of 234 The owner or operator would be required to annually provide information to the LEPC and make information easily accessible to the public. A public meeting would be scheduled once every five

- years to discuss chemical hazard information at the facility. Finally, by five years after the rule effective date, t he owner or operator must update the RMP to include all revised data elements specified in subpart G and §68.42. Table 1 1 : Summary of proposed provisions that would apply to Source B summarizes the proposed provisions that would apply to Source B.
Table 1 1 : Summary of proposed provisions that would apply to Source B Applicable Provisions: Timeframe Additional Information When to Complete* Emergency response coordination activities W ithin one year of effective date of a final rule. Occurs annually Complete coordination activities before June 5, 2018 Emergency response exercises (proposed §68.96)
Notification exercise F our - years after effective date. Occurs annually Complete first notification exercise by June 5, 202 1

Field and t abletop e xercises F our - years after effective date. Tabletop exercise an nually, field exercise o nce every five years. No tabletop exercises in the year of a field exercise Complete first tab letop or field exercise b y June 5, 202 1 Information availability provisions

Information to LEPC F our - years after effective date. Occurs annually. Includes information on regulated substances; accident histories; compliance audits; incident investigations (as applicable) and exercises. Complete first calendar year submission by June 5, 2021

Information to the public F our - years after effective date. Occurs annually. Includes information on: regulated substances including Safe ty Data Sheets; accident history; emergency response program; exercises; and LEPC contact information. Complete first calendar year submission by June 5, 2021***E.O.12866 Review

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Page 165 of 234 Public meeting F our - years after effective date. Once every five years. Also required within 30 d ays of an RMP reportable accident Complete initial public meeting by June 5, 2021
Update RMP By f ive years after effective date Update RMP to include new information b y June 5, 202 2
* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. Example 2B: Additional proposed provisions that would apply to a responding stationary following an RMP reportable accident. See Table 1 2 below.
Table 1 2 : Example 2B, Source B Source B

— Program 3, Responding Stationary Source Date of Last RMP Update Last compliance audit Last accident June 30, 2020 April 6, 2020 July 5, 2021
In this example, Source B has an accidental release on July 5, 2021 that meets the reporting requirements of §68.42. As a result of the accident, Source B’s owner would be required to comply with the following additional proposed provisions:

• Accident history provisions of §68.42 (to report root causes identified during the incident investigation);

• Third

- party audit provisions of §68.80;

• Incident investigatio n and root cause analysis requirements of §68.81;

• Field exercise provisions of §68.96(b)(1)(i) (i.e., requiring a field exercise within one year of any accidental release required to be reported under §68.42); and

• Public meeting within 30 days of a repor table accident, pursuant to §68.210(d)(2). Chronologically, the first provision that would apply is the requirement to host a public meeting. Section 68.210(d)(2) requires the owner or operator to hold a public meeting within 30 days after the accident t o inform the public about the accident, including information required under §68.42, and other relevant information. An incident investigation must be initiated promptly, but no later than 48 hours following an incident. The proposed incident investigatio n provisions would require the owner or operator***E.O.12866 Review

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Page 166 of 234 to complete an incident investigation that includes a root cause analysis and other elements specified in §68.81(d), and an incident investigation report, within 12 months of the incident, unless the impleme nting agency approves an extension of time. A summary of the incident investigation report must be provided to the LEPC. The proposed third

- party audit provisions would require the owner or operator to hire a third

- party auditor to perform a third

- party compliance audit and submit an audit report to the implementing agency and owner or operator within 12 months of the accident (if the source’s next scheduled compliance audit was required sooner than one year following the incident, the third

- party a udit would be required to be completed by the scheduled compliance audit date unless the implementing agency approved an extension). The owner or operator must also complete an audit findings response report and submit it to the implementing agency within 90 days of receiving the audit report from the third

- party auditor. The owner or operator must also provide the audit findings response report, as well as a schedule to address deficiencies identified in the audit findings response report and documentation of actions taken to address deficiencies, to the owner or operator’s audit committee of the Board of Directors, or other comparable committee, if one exists. The owner or operator would also be required to conduct a field exercise meeting the requiremen ts of §68.96 within one year of the accidental release, and prepare an evaluation report within 90 days of completing the exercise. B y five years after the rule effective date, the owner or operator must update the RMP to include all revised data elements specified in subpart G and §68.42. Table 1 3 summarizes the additional provisions that would apply to Source B following an RMP reportable accident (in addition to complying with new requirements triggered by a reportable accident, the owner or operator mus t annually coordinate response needs with local emergency planning and response organizations , document coordination activities, and comply with the other information disclosure provisions as previously described).***E.O.12866 Review

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Page 16 7 of 234 Table 1 3 : Summary of additional proposed provisions that would apply to Source B following an RMP reportable accident Applicable Provisions following an RMP reportable accident: Timeframe Additional Information When to Complete*

Public meeting (every 5 years and within 30 days after an accident) F our - years after effective date. Within 30 days after an accident

- the five year interval for the next public meeting starts when a meeting takes place after the accident. Hold pub lic meeting b y August 4, 2021

Incident investigations F our - years after effective date. Initiate within 48 hours, complete investigation and root cause analysis within 12 months Complete report by July 5, 2022

Third

- party audit F our - years after effective date. Within 12 months of the accident or three years of previous audit, whichever is sooner Complete third

- party audit by July 5, 2022 Complete findings response report within 90 days of completing audit.

Field exercise F our - years after effective date. At least once every five years, and within one year of an RMP reportable accident Com plete field exercise b y July 5, 2022 Complete an evaluation report within 90 days of the exercise

Include new accident history information in RMP F ive

- years after effect ive date. Correct RM P within 6 months of accident (existing requirement); r eport complete accident information in next five

- year RMP update Correct RMP by January 5, 2022; report complete accident information by June 5, 2025

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. Example 3: Compliance date example for sources subject to STAA requirements Source C (see Table 1 4 ) is a petroleum refinery in NAICS 32411. Its latest RMP update was submitted on Mar ch 31 , 2018 (i.e., the year after the rule effective date). Its latest PHA revalidation was completed on March 7, 201 7 (i.e., approximately three months before the rule effective date ). Table 1 4 : Example 3, Source C Source C

— Program 3, NAICS 32411 Date of Last RMP Update Last PHA revalidation***E.O.12866 Review

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Page 168 of 234 March 31, 2018 March 7, 2017
Because the source is in NAICS 32411, it is subject to the proposed STAA provisions of §68.67(c)(8). Therefore, by four years after the rule effective date, the owner or operator must complete a PHA revalidation that addresses safer technology and alternative risk management measures, and determine the feasibility of the ISTs and ISDs considered. Under the proposed information availability requirements of §68.205, the owner or operator must also submit to their LEPC a summary of the IST s or ISD s implemented or planned, and annually update the summary as part of the calendar year submission described in §68.205(c). By June 5, 2018 the owner or operator of Source C must comply with the new emergency response coordination provisions, and by June 5, 2021, the owner or operator must also comply with other applicable proposed rule provisions including: third

- party audits; incident investigations; emergency response exercises; and information availability (including public meetings). By five years after the rule effective date, the owner or operator of S ource C must update the RMP to include all revised data elements specified in subpart G and §68.4 2. Table 1 5 : Compliance date example for sources subject to STAA requirements , summarizes the proposed STAA provisions that would apply to Source C.
Table 1 5 : Compliance date example for sources subject to STAA requirements Applicable Provisions: Timeframe Additional Information When to Complete*
STAA F our - years after effective date Occurs every five years as part of PHA revalidation. By June 5 , 202 1

Information availability to LEPC F our - years after effective date In addition to other information availability provisions, include information on IST or ISD to be implemented. Update every five years as part of calendar year update to LEPC. Provide in first calendar year submission to LEPC after completion of STAA or June 5, 20 2 1, whichever is later.***E.O.12866 Review

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Page 169 of 234 Update RMP F i ve years after rule effective date By June 5 , 202 2

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. I X . Statutory and EO Reviews A. E O 12866: Regulatory Planning and Review and EO 13563: Improving Regulation and Regulatory Review This action is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been docume nted in the docket. The EPA prepared a Regulatory Impact A nalysis (RIA) of the potential costs and benefits associated with this action. This RIA is available in the docket and is summarized here (Docket ID Number EPA

- HQ

- OEM

- 2015

- 0725)

. 1. Why EPA is Considering this Action In response to catastrophic chemical facility incidents in the United States, President Obama issued EO 13650, “Improving Chemical Facility Safety and Security,” on August 1, 2013. The EO establishes the Chemical Facility Safety and Security Working Group (Working Group),

co - chaired by the Secretary of Homeland Security, the Administrator of EPA, and the Secretary of Labor or their designated representatives at the Assistant Se cretary level or higher, and comprised of senior representatives of other Federal departments, agencies, and offices. The EO requires the Working Group to carry out a number of tasks whose overall goal is to prevent chemical accidents, such as the explosio n that occurred at the West Fertilizer facility in West, Texas, on April 17, 2013, which killed 15 people, most of whom were first responders, caused multiple injuries, and resulted in extensive building damage to the town. Section 6(a)(i) of EO 13650 req uires the Working Group to develop options for improved chemical facility safety and security that identify “improvements to existing risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, a nd regulations.’’ Section 6(c) of EO 13650 requires the Administrator of EPA to***E.O.12866 Review

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Page 170 of 234 review the Risk Management Program. As part of this effort to solicit comments and information from the public regarding potential changes to EPA’s RMP regulations (40 CFR part 68), on July 31, 2014, EPA published a n RFI (79 FR 44604). EPA believes that the RMP regulations have been effective in preventing and mitigating chemical accidents in the United States ; however, EPA is proposing revisions in order to further protect hum an health and the environment from chemical hazards through advancement of process safety management based on lessons learned. These revisions are a result of a review of the existing Risk Management Program and information gathered from the RFI and EO lis tening sessions, and are proposed under the statutory authority provided by CAA section 112(r) as amended (42 U.S.C. 7412(r)). 2. Description of Alternatives to the Proposed Rule The RIA analyzed the proposed new requirements and revisions to existing requirements as well as several alternatives for each. Third

- Party Audits

— (proposed revisions apply to existing §§68.58 and 68.79 and new §§68.59 and 68.80) The existing rule requires Program 2 and Program 3 processes to conduct a compliance audit at least once every 3 years. The proposed rule would require facilities to contract with an independent third

- party to conduct the next scheduled compliance audit following an RMP reportable accident or after an implementing agency determines that certain circumst ances exist that suggest a heightened risk for an accident. The third

- party would have to be someone with whom the facility does not have an existing or recent relationship and who meets specific qualification criteria. The low cost alternative would apply only for Program 2 and Program 3 processes after an RMP reportable accident or at the request of the implementing agency. The medium cost alternative would apply every three years for all compliance audits conducted for all
P rogram 3 processes. The high c ost alternative would apply every three years for all compliance audits conducted for Program 2 and Program 3 processes.***E.O.12866 Review

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Page 171 of 234 Root Cause Analysis

— (proposed revisions apply to §§68.60 and 68.81) The proposed rule would require facilities to conduct a root cause analysis as part of an incident investigation following an RMP reportable accident or an incident that could reasonably have resulted in an RMP reportable accident (i.e., “near miss”). A root cause analysis is a formal process to identify underlying reason s for failures that lead to accidental releases. These analyses usually require someone trained in the technique. The low cost alternative would apply the provision only to reportable accidents or near misses in P rogram 3 processes. The medium/high cost al ternative would apply to reportable accidents or near misses involving Program 2 and Program 3 processes. Safer Technology and Alternatives Analysis (STAA)

— (proposed revisions apply to §68.67) Under the proposed rule, facilities in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) with P rogram 3 processes would be required to conduct a STAA for each process as part of their PHA, which occurs every 5 years. The STAA includes two parts: t he initial analysis to identify alternatives, and a feasibility study to determine the costs and assess the reasonableness of implementing technology alternatives. The proposed rule is the low cost alternative, which would apply to all facilities with P rog ram 3 processes in NAICS codes 322, 324, and 325. The medium cost alternative would apply the requirement to all P rogram 3 processes. The high cost alternative would apply the requirement to all Program 3 processes and require facilities to implement feasi ble inherently safer technology and alternatives that are considered inherently safer technology or design. Coordination Activities

— (proposed revisions apply to §§68.90, new 68.93, and 68.95) Under the proposed rule, all facilities with Program 2 or Progra m 3 processes would be required to coordinate with local response agencies annually to determine response needs and ensure that response resources and capabilities are in place to respond to an accidental release of a regulated substance. The owner or oper ator would also be required to document coordination***E.O.12866 Review

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Page 172 of 234 activities. The proposed rule also includes a provision enabling the LEPC or local emergency response official to request, in writing, that the RMP

- facility owner or operator comply with the
emergency re sponse program requirements of §68.95. Section 68.95 requires the owner or operator to develop an emergency response program that includes an emergency response plan, procedures for use, inspection and maintenance of response equipment, training for respon ding employees, and procedures to review and update the program. Alternatives to this provision are similar to the proposed requirements. One alternative that imposes the same costs as the proposed option would eliminate the option for local officials
to request that a facility owner or operator comply with the requirements of §68.95. A second alternative is a high cost alternative and would require all facilities with Program 2 or Program 3 processes to comply with §68.95, regardless of local response cap ability. This would be analogous to the requirements under the Oil Pollution Prevention regulation (40 CFR Part 112) where all facilities subject to the FRP provisions at §112.20 are required to prepare and implement an emergency response plan for oil discharges into navigable waters or adjoining shorelines.
Exercises

— (proposed revisions apply to new §68.96) Notification Exercises. All facilities with Program 2 or Program 3 processes would be required to conduct a notification exercise annually to ensure that the contact list to be used in an emergency is complete, accurate, and up

- to

- date. Tabletop and Field Exercises. The proposed rule would require respond ing facilities to conduct annual exercises of their emergency response plans and invite local emergency response officials to participate. Under the low cost alternative, facilities would conduct tabletop exercises annually. Under the proposed rule, which is the medium cost alternative, facilities would conduct a full field exercise at least once every five years and tabletop exercises annually in the interim years. Facilities with a reportable accident would also have to conduct a full field exercise withi n a year of an RMP reportable accident, but this may not impose any additional burden under the***E.O.12866 Review

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Page 173 of 234 medium alternative as it would count as the required field exercise for the next 5

- year period. Under the high cost alternative, facilities would conduct full f ield exercises annually. Public Disclosure

— (proposed revisions apply to new §68.205 and existing §68.210) The proposed rule would require all facilities to disclose certain chemical hazard information to the public. The facility or its parent company, if a pplicable, would have to make the information available in an easily accessible manner, which might be presenting information on a company website, posting the information at public libraries, publishing it in local papers, or other means appropriate for p articular communities and facilities. The information to be disclosed includes names and quantities of regulated substances at the facility; SDS; accident history information; emergency response program information; and LEPC or local response agency
contac t information. In addition, facility owners or operators would be required to provide the LEPC or other local response agencies with information annually on all of the following that apply to the facility: regulated substances; five

- year reportable acciden t history; summaries of compliance audit reports; summaries of incident investigation reports; summaries of implementation of IST; and information on emergency response exercises, including schedules for upcoming exercises. Although EPA did not analyze alt ernatives for this provision, the different applicability for the STAA provision alternatives increases the cost of the medium/high alternative for disclosure to the LEPC because more facilities would have to report on that analysis. Public Meeting

— (propos ed revisions apply to §68.210) The proposed rule would require facilities to hold a public meeting for the local community at least once every 5 years or within a year of a reportable accident. The low cost alternative applies the requirement to facilities with Program 2 or Program 3 processes. The medium/high cost alternative would apply it to all facilities (i.e., P rogram 1 facilities would also be affected). 3. Summary of Costs***E.O.12866 Review

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Page 174 of 234 Approximately 12,500 facilities have filed current RMPs with EPA and are pote ntially affected by the proposed rule changes. These facilities range from petroleum refineries and large chemical manufacturers to water and wastewater treatment systems; chemical and petroleum wholesalers and terminals; food manufacturers, packing plants , and other cold storage facilities with ammonia refrigeration systems; agricultural chemical distributors; midstream gas plants; and a limited number of other sources that use RMP

- regulated substances. Table 16 presents the number of facilities according to the latest RMP reporting as of February 2015 by industrial sector and chemical use.
Table 16 : Number o f Affected Facilities by Sector Sector NAICS Codes Total Facilities Chemical Uses
Administration of environmental quality programs (i.e., governments) 924 1,923 Use chlorine and other chemicals for treatment
Agricultural chemical distributors/wholesalers 111, 112, 115, 42491 3,667 Store ammonia for sale; some in NAICS 111 and 115 use ammonia as a refrigerant Chemical manufacturing 325 1,46 6 Manufacture, process, store Chemical wholesalers 4246 333 Store for sale Food and beverage manufacturing 311, 312 1,476 Use (mostly ammonia as a refrigerant) Oil and gas extraction 211 741 Intermediate processing (mostly regulated flammable substances and flammable mixtures) Other 44, 45, 48, 54, 56, 61, 72 248 Use chemicals for wastewater treatment, refrigeration, store chemicals for sale Other manufacturing 313, , 326, 327, 33 384 Use various chemicals in manufacturing process, waste treatment Other wholesale 423, 424 302 Use (mostly ammonia as a refrigerant) Paper manufacturing 322 70 Use various chemicals in pulp and paper manufacturing Petroleum and coal products manufacturing 324 156 Manufacture, process, store (mostly regulated flammable substances and flammable mixtures) Petroleum wholesalers 4247 276 Store for sale (mostly regulated flammable substances and flammable mixtures)***E.O.12866 Review

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Page 175 of 234 Utilities 221 (except 22131, 22132) 343 Use chlorine (mostly for water treatment) Warehousing and storage 493 1,056 Use mostly ammonia as a refrigerant Water/wastewater Treatment Systems 22131, 22132 102 Use chlorine and other chemicals Total 12,542

Table 17 presents a summary of the annualized costs estimated in the regulatory impact analysis. In total, EPA estimates annualized costs of $ 162.6 million at a 3% discount rate and $ 165.3 million at a 7% discount rate

. Table 17 : Summary of Annualized Costs (Millions, 2014 dollars) Provision 3% 7% Third

- party Audits $5.0 $5.0 Incident Investigation/Root Cause $0.8 $0.8 STAA $34.8 $34.8 Coordination $6.3 $6.3 New Responders * $33.0 $35.6 Notification Exercises $1.4 $1.4

Facility Exercises $ 60.7 $ 60.7 Information Sharing (LEPC) $11.7 $11.7 Information Sharing (Public) $4.0 $4.0 Public Meeting $4.7 $4.7 Rule Familiarization $0.2 $0.3 Total Cost $ 162.6 $ 165.3 * Reflects costs for some facilities to convert from “non

- responding” to “responding” as a result of improved coordination with local emergency response officials. The largest average annual cost of the proposed rule is the exercise costs for current responders ($ 60.7 million), followed by new responders ($ 35.6 million), safer technology and alternatives analysis ($34.8 million), and information sharing (LEPC) ($ 11.7 mil lion). The remaining provisions impose average annual costs under $10 million, including coordination ($6.3 million), third

- party audits ($4.9 million), public meetings ($4.7 million), information sharing (public) ($4.0 million), notification exercises ($1 .4 million), incident investigation/root cause analysis ($0.8 million), and rule familiarization ($0. 3 million).***E.O.12866 Review

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Page 176 of 234 4. Summary of Potential Benefits EPA anticipates that promulgation and implementation of this rule would result in a reduction of the frequency and magnitude of damages from releases. Accidents and releases from RMP facilities occur every year, resulting in fires and explosions , property damage, acute and chronic exposures of workers and nearby residents to hazardous materials, and resultant damages to health. Although we are unable to quantify what specific damage reductions may occur as a result of these proposed revisions , we are able to present data on the total damages that currently occur at RMP facilities each year. The data presented a re based on a 10

- year baseline period, summarizing RMP accident impacts and, when possible, monetizing them. EPA expects that some portion of future damages would be prevented through implementation of a final rule. Table 18 presents a summary of the quant ified damages identified in the analysis.
Table 18 : Summary of Quant ified Damages Unit Value 10
- Year Total Ave/Year Average/Accident On
- site Fatalities $8,583,113 $ 497,820,554 $ 49,782,055 $ 328,161 Injuries $50,000 $105,150,000 $10,515,000 $69,314 Property Damage $2,054,895,236 $205,489,524 $1,354,578 On
- site Total $ 2,657 ,865,790 $ 265,786,579 $ 1,752,053 Offsite Fatalities $8,583,113 $8,583,113 $858,311 $5,658 Hospitalizations $36,000 $6,804,000 $680,400 $4,485 Medical Treatment $1,000 $14,807,000 $1,480,700 $9,761 Evacuations $ 181 $ 6,992,327 $ 699,233 $ 4,609 Sheltering in Place $ 91 $ 40,920,849 $ 4,092,085 $ 26,975 Property Damage $11,352,105 $1,135,211 $7,483 Offsite Total $ 89,459,394 $ 8,945,939 $ 58,971 Total $ 2,747,325,184 $ 274,732,518 $ 1,811,024

EPA monetized both on

- site and offsite damages . EPA estimated total average annual on site damages of $ 265.8 million. The largest monetized average annual on - site damage was avoided on - site property damage, which resulted in an average annual damage of approximately***E.O.12866 Review

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Page 177 of 234 $205.5 million. The next largest impact was avoided on - site fatalities ($ 49.8 million) and injuries ($10.5 million). EPA estimated total average annual offsite damages of $ 8.9 million. The largest monetized average annual offsite damage was from sheltering in place ($ 4.1 million), followed by medical treatment ($1.5 million), property damage ($1.1 million), fatalities ($0.9 million), evacuations ($0. 7 mi llion), and hospitalizations ($0.7 million). In total, EPA estimated monetized potential damages of $ 275 million per year. However, the monetized impacts omit many important categories of accident impacts including lost productivity, the costs of emergency response, transaction costs, property value impacts in the surrounding community (that overlap with other benefit categories), and environmental impacts. Also not reflected in the 10

- year baseline costs are the impacts of non

- RMP accidents at RMP faciliti es and any potential impacts of rare high consequence catastrophes. A final omission is related to the information provision. Reducing the probability of chemical accidents and the severity of their impacts, and improving information disclosure by chemical facilities, as the proposed provisions intend, would provide benefits to potentially affected members of society. Table 19 s ummarizes four broad social benefit categories related to accident prevention and mitigation including prevention of RMP accidents, mitigation of RMP accidents, prevention and mitigation of non - RMP accidents at RMP facilities, and prevention of major catastrophes. The table explains each and identifies ten associated specific benefit categories, ranging from avoided fata lities to avoided emergency response costs. Table 19 also highlights and explains the information disclosure benefit category and identifies two specific benefits associated with it: improved efficiency of property markets and allocation of emergency resou rces. Table 19 : Summary of Social Benefits of Proposed Rule Provisions Broad Benefit Category Explanation Specific Benefit Categories

Accident Prevention Prevention of future RMP facility accidents***E.O.12866 Review

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Page 178 of 234 • Reduced Fatalities
• Reduced Injuries
• Reduced Property Damage
• Fewer People Sheltered in Place
• Fewer Evacuations
• Avoided Lost Productivity
• Avoided Emergency Response Costs
• Avoided Transaction Costs
• Avoided Property Value Impacts*
• Avoided Environmental Impacts Accident Mitigation Mitigation of future RMP facility accidents
Non

- RMP accident prevention and mitigation Prevention and mitigation of future non

- RMP accidents at RMP facilities

Avoided Catastrophes Prevention of rare but extremely high consequence events

Information Disclosure Provision of information to the public and LEPCs • Improved efficiency of property markets
• Improved resource allocation * These impacts partially overlap with several other categories such as reduced health and environmental impacts. B. Paperwork Reduction Act (PRA) The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR numbe r 1656.16. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. This ICR would amend a previously approved ICR (1656.15 ), OMB Control No. 2050

- 0144. That ICR covers the risk management program rule, originally pro mulgated on June 20, 1996; the current rule, including previous amendments, is codified as 40 CFR part 68. This ICR addresses the following proposed information requirements that are part of a proposed revision to the rule: (1) Make certain information re lated to the risk management program available to the local community. (2) Provide the LEPC and local responders with summaries of certain activities under the risk management program.***E.O.12866 Review

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Page 179 of 234 (3) Hold a public meeting at least one every 5 years and within 30

- days of an accident subject to reporting under §68.42

. (4) Hire a third

- party to conduct the compliance audit after a reportable release. (5) Conduct and document a root cause analysis after a reportable release. (6) Conduct and document an incident investigat ion, including root cause analysis, after a near miss. (7) Conduct and document a safer technology and alternatives analysis. (8) Meet and coordinate with local responders to ensure adequate response capability exists

. (9) Conduct a notification drill to v erify information. (10) Conduct and document emergency response exercises. (11) Come into compliance with requirements for responding to a release with facility staff, including developing an emergency response plan, conducting emergency response exercises, documenting training, and providing information to the LEPC. EPA believes that the RMP regulations have been effective in preventing and mitigating chemical accidents in the United States

. H owever, EPA is proposing revisions to further protect h

uman health and the environment from chemical hazards through advancement of PSM based on lessons learned

– resulting in better coordination between facilities, LEPC’s, and the public. State and local authorities will use the information in RMPs to modify and enhance their community response plans. The agencies implementing the RMP rule will use RMPs to evaluate compliance with part 68 and to identify sources for inspection because they may pose significant risks to the community. Citizens may use the infor mation to assess and address chemical hazards in their communities and to respond appropriately in the event of a release of a regulated substance. These revisions are a result of a review of the existing Risk Management Program and are proposed under the statutory authority provided by section 112(r) of the CAA as amended (42 U.S.C. 7412(r)).***E.O.12866 Review

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Page 180 of 234 Some of the elements mandated in the regulation for the risk management plan may require the submittal of data viewed as proprietary, trade secret, or confidential. As described above, EPA has adopted procedures for sources to claim certain information as confidential business information. EPA encourages facilities that have CBI claims to submit substantiation with the RMP

. Respondents/affected entities: In total, t his ICR will affect 12,542 facilities and 1,72 4 LEPCs for the purposes of rule familiarization. Table 20 provides the breakdown of affected entities by NAICS and RMP program level.
Table 20 : Annual Number of Respondents Subject to New Information Collection Requirements under the Final Rule Sector Program 1 Program 2 Program 3 Totals NAICS 311 Food Manufacturer 3 11 1,371 1,385 NAICS 312 Beverage/Ice 0 0 91 91 NAICS 322 Pulp and Paper 1 1 68 70 NAICS 324 Petroleum 13 3 140 156 NAICS 325 Chemical 53 64 1,349 1, 46 5 Other Manufacturing 62 73 249 384 NAICS 4246 Chemical Distributors 6 0 327 333 NAICS 4247 Petroleum Distributors 14 0 262 276 NAICS 11, 12, 15, 42491 Agricultural 10 0 3,657 3,667

NAICS 211 Oil and Gas Exploration 310 41 390 741

NAICS 2213 Water/Wastewater* 1 10 91 102 NAICS 221, 222 Utilities 38 72 233 343 NAICS 493 Warehousing 70 0 986 1,056 NAICS 423, 424 Other Wholesale 5 0 297 302 NAICS 92 Governments 15 935 973 1,923 Other 41 62 144 24 8 Total 642 1,285 10,615 12,542 LEPCs (for Rule Familiarization ) 1,724 * Except government owned which appear as NAICS 92 Government.

Respondent’s obligation to respond: Respondents are mandated to comply with the information collection requests outlined in this ICR. Information collection for on

- site documentation is authorized by CAA sections 112(r)(7)(B)(i) and (ii), which state that “The Administrator shall promulgate reasonable regulations and appropriate guidance to provide ... for***E.O.12866 Review

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Page 181 of 234 the prevention and detection of accidental releases of regulated substances....” and “The regulations ... shall require the owner or operator ... to prepare and implement a risk management plan to detect and prevent or minimize accidental releases...” Information collection for submitting an RMP is authorized under CAA section 112(r)(7)(B)(iii), which states in relevant part that “The owner or operator of each stationary source...shall regi ster a risk management plan...with the Administrator before the effective date of the regulations...in such form and manner as the Administrator shall, by rule, require...and shall be available to the public under section 114(c).” Information collection fo r on - site documentation and submittal of RMPs is also authorized by CAA 114(a)(1). Estimated number of respondents: 12,542 Frequency of response: Varies from 1

- 5 years. RMP submissions are mandated every five years. Total estimated burden: 659,001 hours (per year ). Burden is defined at 5 CFR 1320.3(b). Total estimated cost: $ 5,529,000 annualized capital or operation and maintenance costs. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA’s regulations in 40 CFR are listed in 40 CFR part 9. Submit your comments on the Agency’s need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also sen d your ICR

- related comments to OMB’s Office of Information and Regulatory Affairs via email to oria_submissions@omb.eop.gov, Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after recei pt, OMB must receive comments no later than [ INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER ] . The EPA will respond to any ICR

- related comments in the final rule. C. Regulatory Flexibility Act (RFA)***E.O.12866 Review

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Page 182 of 234 Pursuant to section 603 of the RFA, the EPA prepared a n initial regulatory flexibility analysis ( I RFA) that examines the impact of the proposed rule on small entities along with regulatory alternatives that could minimize that impact. The complete I RFA is available for review in the docket and is summarized here. 1. Why EPA is Considering this Action The purpose of this action is to improve safety at facilities that use and distribute hazardous chemicals. In response to catastrophic chemical facilit y incidents in the United States, including the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17, 2013 that killed 15 people , President Obama issued E O 13650, “ Improving Chemical Facility Safety and Security,” on August 1 , 2013

. Section 6(a)(i) of EO 13650 requires that various Federal agencies develop options for improved chemical facility safety and security , including modernizing regulations. As a result, EPA is proposing revisions to the Risk Management Program ( 40 CFR part 68)

. For more information on EO 13650, see S ection II

. Background of this notice. 2. Objectives of, and Legal Basis for, the Proposed Rule EPA believes that the RMP regulations have been effective in preventing and mitigating chemical accidents in the United States ; however, EPA is proposing revisions in order to further protect human health and the environment from chemical hazards through the advancement of process safety based on lessons learned. These revisions are a result of a review of the ex isting Risk Management Program and information gathered from the RFI and EO listening sessions, and are proposed under the statutory authority provided by CAA section 112(r) as amended (42 U.S.C. 7412(r)). 3. Estimate of the Number of Small Entities to whi ch the Proposed Rule Will Apply The RMP rule affects a broad range of sectors (296 separate NAICS codes are listed in RMP filings; 240 of these are associated with small entities). The RMP data include facility and parent company name as well as the number of full time equivalents (FTE) for the facility and the***E.O.12866 Review

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Page 183 of 234 NAICS codes. To develop an estimate of the number of small entities, the analysis required a series of reviews of the data to identify the large entities and the small entities that were part of smal l firms owning multiple facilities. The data were reviewed to identify parent companies that were clear from the facility name, but not included in the parent company field. That made it possible to determine the total FTE for facilities belonging to the s ame parent company and compare that number to the Small Business Administration ( SBA ) standard (when in FTEs). If the total FTE exceeded the standard, all the facilities were classified as large. Where the facilities listed different NAICS codes, the analy sis applied either the code used for a majority of the facilities or, if no single code dominated, the code with the highest threshold. For example, if a firm had facilities in sectors where the standards were 500 and 1,000 FTE, the 1,000 FTE standards was used to determine if the firm was large. For remaining facilities, if there were multiple facilities belonging to a single firm and the total FTE approached the threshold or if the name included “USA” or “US holdings , ” which implied an international comp any, I nternet searches were conducted to identify whether the facilities belonged to a firm with other facilities or employees. The RFA defines small governments as governments of cities, counties, towns, townships, villages, school districts, or special d istricts, with a population of less than fifty thousand. 199 Most governmental RMP facilities are water and wastewater treatment systems and listed a city or county as the owning entity. A check of budgets that were available for some of the smallest cities indicated that (1) the systems are sub

- agencies of the city/county and (2) obtain some revenues from the g eneral fund although most of their revenues are derived from user fees. To determine which facilities belong to small governments, the populations for each of cities or counties were determined by checking the 2014 estimates from the Census. For special wa ter and

199 5 U.S.C. 602

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Page 184 of 234 irrigation districts, their Internet sites were checked for information on the population served.
T able 21 below presents the number of small and large facilities by program level.

Table 21: Number of Facilities Owned by Small and Large Entities b y Program Level RMP Program Small Large Total Program 3 3,996 6,619 10,615 Program 2 695 590 1285 Program 1 219 423 642 Total 4,910 7,632 12,542 4. Projected Reporting, Recordkeeping and Other Compliance Requirements of the Proposed Rule Under the proposed rule, all facilities would be required to make certain information available to the public and to the LEPC. P rogram 1 facilities would not likely have to spend more than an hour a year on this disclosure because the information disclosed to the pu blic is information every facility should have readily available and because the additional information disclosed to the LEPC relates to provisions that do not apply to P rogram 1 facilities. Therefore, the IRFA has not considered P rogram 1 small facilities in the analysis of impacts. Program 2 and Program 3 facilities would incur the same costs for the other proposed provisions except the STAA. Each facility would be required to disclose information annually, hold a public meeting at least once every 5 year s, and coordinate with the local responders and conduct a notification drill annually. If the facility is a responder, it would have to hold an annual exercise, including at least one full field exercise every 5 years. P rogram 3 facilities in NAICS codes 3 22, 324, and 325 would have to conduct an STAA as part their PHA every 5 years. If a facility has an accident, it would incur costs for obtaining a third

- party to conduct their next scheduled compliance audit. It would also incur additional costs to conduc t a root cause analysis as part of the incident investigation. Facilities would be required to conduct investigations of near misses, including a root cause analysis. Finally, if a facility has to become a responder, it would incur costs to develop an emer gency response plan, train personnel to respond, purchase and maintain equipment, and conduct exercises.***E.O.12866 Review

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Page 185 of 234 Table 2 2 presents three sets of costs : low year, annualized, and high year (excludes costs incurred after an accident or a near miss). Low

- year costs represent costs for years in which routine annual costs apply. These include costs for coordinating with local responders, conducting notification exercises (applies to all Program 2 and Program 3 facilities), conducting tabletop exercises (applies only to responders), and updating disclosure information to LEPC and the public. High

- year costs represent a year in which every applicable provision would occur, except costs incurred after an accident or “near miss

. ” This includes the routine annual costs and p eriodic costs that apply either every 3 or 5 years (i.e., field exercise in lieu of a tabletop exercise, public meeting, all public disclosure requirements, and STAA). Because the STAA provisions would only apply to a subset of facilities (i.e., those in N AICS 322, 324, and 325), these facilities are broken out separately in the last two rows of the table . Complex facilities are those categorized as NAICS 324 or 325 and simple facilities are all others. Annualized costs average the low costs incurred for fo ur years with the high costs incurred every fifth year. Table 2 2 : Low, Annualized, and High Year Combined Costs for Small Entities by Group Low Year Cost Annualized High Year Cost P rogram 2 and P rogram 3 facilities (excludes P rogram 3 facilities subject to STAA) Simple Complex Simple Complex Simple Complex

Non Responder $548 $903 $1,182 $2,027 $3,217 $5,280 Responder 0

- 19 FTE $6,577 $8,969 $7,175 $9,471 $12,347 $20,357 Responder 20+ FTE $7,711 $10,442 $9,899 $13,490 $18,151 $24,437 P rogram 3 facilities subject to STAA Non Responder n/a $903 n/a $6,190 n/a $26,097 Responder <20 FTE n/a $8,969 n/a $13,635 n/a $41,174

5. Related Federal Rules The Risk Management Program is one of several programs regarding chemical facility safety and security. EO 13650 directed F ederal agencies to identify ways to modernize policies, regulations, and standards to enhance safety and security in chemical facilities. The EO***E.O.12866 Review

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Page 186 of 234 established a Chemical Facility Safety and Security Working G roup to oversee this effort, which is tri

- chaired by the EPA, DOL, and DHS. Member s of the Working Group (at the management and staff level) regularly share information in order to coordinate activities on any work involving revisions in regulations, such as revisions to OSHA’s PSM standard and DHS’ CFATS regulations . These efforts also serve to avoid unnecessary duplication, overlap and conflicts with the Risk Management Program requirements. OSHA’s 29 CFR 1910.119 PSM standard. Mandated by the CAAA of 1990 and issued in 1992, the PSM standard sets requirements for the management of highly hazardous substances to prevent and mitigate hazards associated with catastrophic releases of flammable, explosive, reactive, and toxic chemicals that may endanger workers. The PSM standard covers the manufacturing of explosives and processes involving threshold quantities of flammable liquids and flammable gasses, as well as 137 other highly hazardous chemicals. The OSHA PSM standard , similar to the EPA RMP rule, aims to prevent or minimize the consequence of accidental chemical releases through implementation of management program elements that integrate technologies, procedures, and management practices . The EPA RMP regulation closely tracks the accident preventi on measures contained in the OSHA PSM standard because Section 112(r)(7)(D) of the CAA requires EPA to coordinate the RMP regulation with

“ any requirements established for comparable purposes ” by OSHA. Consequently, the OSHA PSM standard and EPA RMP regula tion are closely aligned in content, policy interpretations, Agency guidance, and enforcement. Since the inception of these regulations, EPA and OSHA have coordinated closely on their implementation in order to minimize regulatory burden and avoid conflic ting requirements for regulated facilities. For example, owners and operators of RMP covered processes also subject to the OSHA PSM standard will generally have met their RMP accident prevention program obligations if they have properly implemented their PSM program.***E.O.12866 Review

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Page 187 of 234 Occupational Safety and Health Act General Duty Clause. Section 5(a)(1) of the Occupational Safety and Health (OSH) Act requires employers to provide its employees with a workplace free from recognized hazards that are causing, or are likely t o, cause death or serious physical harm

. EPA’s EPCRA regulations (40 CFR 350

-372). Following the 1984 release of approximately 40 tons of MIC into the air in Bhopal, India, that killed over 3,700 people and the 1985 leak of 500 gallons of aldicarb oxime fr om a Union Carbide facility in Institute, West Virginia, Congress passed EPCRA in October 1986. The purpose of EPCRA is twofold: (1) t o encourage and support emergency planning efforts at the s tate and local levels, and (2) to provide the public and local governments with information concerning potential chemical hazards present in their communities. EPCRA created s tate and local infrastructure designed to (1) prepare for and mitigate the effects of a chemical incident and (2) ensure that information on che mical risks in the community is provided to the first responders and the public. These s tate and local entities are the SERCs, TERCs, LEPCs, and Tribal Emergency Planning Committees (TEPCs). Representatives on the LEPCs include local officials and planners , facility owners and operators, first responders, health and hospital personnel, environmental groups, and citizen/members of the public. A central requirement of LEPCs and TEPCs is to develop a local emergency response plan. These plans are required to:

• Identify facilities and transportation routes of extremely hazardous substances and assess the risk based on chemical information from facilities;

• Describe on

- site and offsite emergency response procedures;

• Designate a community coordinator and facilit y emergency coordinator(s) to implement the plan;

• Describe emergency notification procedures;***E.O.12866 Review

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Page 188 of 234 • Describe how to determine the probable affected area and population by releases (including identification of critical community receptors and assets);

• Describe local emergency equipment and facilities and the persons responsible for them;

• Describe evacuation plans;

• Identify the training program for emergency responders (including schedules); and

• Identify the methods and schedules for exercising emergency respo nse plans. Under the community right

- to

- know section of EPCRA, certain facilities that manufacture, process, or store any hazardous chemicals are required to submit an SDS or list of hazardous chemicals, grouped into hazard categories, to SERCs, TERCs, LEP Cs, TEPCs, and local fire departments. Under the Hazard Communication Standard, OSHA requires SDSs that describe the properties, hazards, and health effects of these chemicals as well as emergency response procedures and appropriate personal protection equ ipment. Facilities must also annually report their inventories of all on

- site chemicals for which SDSs are required that are stored above reporting threshold quantities to SERCs, LEPCs, and local fire departments. LEPCs must use information about chemical inventories at facilities and SDSs in developing their local emergency plans; this information must also be available to the public. CAA Section 112(r)(1) general duty clause. The statute requires facility owners and operators to identify hazards; design, maintain and safely operate a facility; and prevent and minimize releases of any regulated substances under §112(r)(3) (40 CFR Part 130) and “any other extremely hazardous substance.” 200

200 Although the term “any other extremely hazardous substance" is not defined, the legislative history of the 1990 CAA amendments indicates that the term would include any agent "which may or may not be listed or otherwise identified by any Government ag ency which may as the result of short

- term exposures associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, flammability, volatility, or corrosivity." See: http://www2.epa.gov/sites/production/files/2013

- 10/documents/gdcregionalguidance.pdf

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Page 189 of 234 DHS’s 6 CFR part 27 CFATS rule

. The CFATS program, established in 2007, regulates chemical facilities that present a high level of security risk to ensure they have security measures in place to reduce the risks associated with their possession of chemicals of interest (COI). There are 325 COI and 137 of the 140 RMP regulated substances are included on the list of COI. The CFATS program requires the development, submission, and implementation of Site Security Plans (SSPs) (or Alternative Security Programs in lieu of SSPs), which document the security measures high

- risk chemica l facilities use to satisfy the applicable risk

- based performance standards (RBPS) under CFATS. These plans are not “one

- size

- fits

- all,” but in

depth, highly customized, and dependent on each facility’s unique circumstances. Bureau of Alcohol, Tobacco, Fir earms and Explosives (ATF) requirements for explosives. ATF is responsible for enforcing Federal explosives laws that govern commerce in explosives in the United States, including licensing, storage, recordkeeping, and conduct of business. ATF conducts ins pections of Federal explosives licensees who manufacture, import, sell, or store explosives in the United States to ensure that explosives are managed in accordance with Federal law. 6. Description of Alternatives to the Proposed Rule The RIA analyzed the proposed new requirements and revisions to existing requirements as well as several alternatives for each. Third

- Party Audits

— (proposed revisions apply to existing §§68.58 and 68.79 and new §§68.59 and 68.80) The existing rule requires Program 2 and Program 3 processes to conduct a compliance audit at least once every 3 years. The proposed rule would require facilities to contract with an independent third

- party to conduct the next scheduled compliance audit following an RMP reportable accident or aft er an implementing agency determines that certain circumstances exist that suggest a heightened risk for an accident. The third

- party would have to be someone with whom the facility does not have an existing or recent relationship and who meets specific***E.O.12866 Review

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Page 190 of 234 qu alification criteria. The low cost alternative would apply only for Program 2 and Program 3 processes after an RMP reportable accident or at the request of the implementing agency. The medium cost alternative would apply every three years for all complianc e audits conducted for all
P rogram 3 processes. The high cost alternative would apply every three years for all compliance audits conducted for Program 2 and Program 3 processes. Root Cause Analysis

— (proposed revisions apply to §§68.60 and 68.81) The propo sed rule would require facilities to conduct a root cause analysis as part of an incident investigation following an RMP reportable accident or an incident that could reasonably have resulted in an RMP reportable accident (i.e., “near miss”). A root cause analysis is a formal process to identify underlying reasons for failures that lead to accidental releases. These analyses usually require someone trained in the technique. The low cost alternative would apply the provision only to reportable accidents or n ear misses in P rogram 3 processes. The medium/high cost alternative would apply to reportable accidents or near misses involving Program 2 and Program 3 processes. Safer Technology and Alternatives Analysis (STAA)

— (proposed revisions apply to §68.67) Unde r the proposed rule, facilities in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) with P rogram 3 processes would be required to conduct a STAA for each process as part of their PHA, which occurs every 5 years. The STAA includes two parts: the initial analysis to identify alternatives, and a feasibility study to determine the costs and assess the reasonableness of implementing technology alternatives. The proposed rule is the low cost alternative, which would apply to all facilities with P rogram 3 processes in NAICS codes 322, 324, and 325. The medium cost alternative would apply the requirement to all P rogram 3 processes. The high cost alternative would apply the requirement to all P ro gram 3 processes and require facilities to implement feasible inherently safer technology and alternatives that are considered inherently safer technology or design.***E.O.12866 Review

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Page 191 of 234 Coordination Activities

— (proposed revisions apply to §§68.90, new 68.93, and 68.95) Under the proposed rule, all facilities with Program 2 or Program 3 processes would be required to coordinate with local response agencies annually to determine response needs and ensure that response resources and capabilities are in place to respond to an acci dental release of a regulated substance. The owner or operator would also be required to document coordination activities. The proposed rule also includes a provision enabling the LEPC or local emergency response official to request, in writing, that the R MP

- facility owner or operator comply with the emergency response program requirements of §68.95. Section 68.95 requires the owner or operator to develop an emergency response program that includes an emergency response plan, procedures for use, inspection and maintenance of response equipment, training for responding employees, and procedures to review and update the program. Alternatives to this provision are similar to the proposed requirements. One alternative that imposes the same costs as the proposed option would eliminate the option for local officials to request that a facility owner or operator comply with the requirements of §68.95. A second alternative is a high cost alternative and would require all facilities with Program 2 or Program 3
process es to comply with §68.95, regardless of local response capability. This would be analogous to the requirements under the Oil Pollution Prevention regulation (40 CFR Part 112) where all facilities subject to the FRP provisions at §112.20 are required to pre pare and implement an emergency response plan for oil discharges into navigable waters or adjoining shorelines.
Exercises

— (proposed revisions apply to new §68.96) Notification Exercises. All facilities with Program 2 or Program 3 processes would be require d to conduct a notification exercise annually to ensure that the contact list to be used in an emergency is complete, accurate, and up

- to

- date. Tabletop and Field Exercises. The proposed rule would require responding facilities to conduct annual exercises of their emergency response plans and invite local emergency response***E.O.12866 Review

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Page 192 of 234 officials to participate. Under the low cost alternative, facilities would conduct tabletop exercises annually. Under the proposed rule, which is the medium cost alternative, facilities would conduct a full field exercise at least once every five years and tabletop exercises annually in the interim years. Facilities with a reportable accident would also have to conduct a full field exercise within a year of an RMP reportable accident, bu t this may not impose any additional burden under the medium alternative as it would count as the required field exercise for the next 5

- year period. Under the high cost alternative, facilities would conduct full field exercises annually. Public Disclosure

— (proposed revisions apply to new §68.205 and existing §68.210) The proposed rule would require all facilities to disclose certain chemical hazard information to the public. The facility or its parent company, if applicable, would have to make th e information available in an easily accessible manner, which might be presenting information on a company website, posting the information at public libraries, publishing it in local papers, or other means appropriate for particular communities and facili ties. The information to be disclosed includes names and quantities of regulated substances at the facility; SDS; accident history information; emergency response program information; and LEPC or local response agency contact information. In addition, faci lity owners or operators would be required to provide the LEPC or other local response agencies with information annually on all of the following that apply to the facility: regulated substances; five

- year reportable accident history; summaries of complian ce audit reports; summaries of incident investigation reports; summaries of implementation of IST; and information on emergency response exercises, including schedules for upcoming exercises. Although EPA did not analyze alternatives for this provision, th e different applicability for the STAA provision alternatives increases the cost of the medium/high alternative for disclosure to the LEPC because more facilities would have to report on that analysis. Public Meeting

— (proposed revisions apply to §68.210)***E.O.12866 Review

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Page 193 of 234 T he proposed rule would require facilities to hold a public meeting for the local community at least once every 5 years or within a year of a reportable accident. The low cost alternative applies the requirement to facilities with Program 2 or Program 3 pro cesses. The medium/high cost alternative would apply it to all facilities (i.e., P rogram 1 facilities would also be affected). 7. Small Business Advocacy Review As required by section 609(b) of the RFA, the EPA also convened a Small Business Advocacy Revi ew (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 I RFA. A copy of the full SBAR Panel Report is available in the rulemaking docket. D. Unfunded Mandates Reform Act (UMRA) This action contains a F ederal mandate under UMRA, 2 U.S.C. 1531

– 1538, that may result in expenditures of $ 1 0 0 million or more for state, local , and tribal governments, in the aggregate, or the private sector in any one year

. Accordingly, the EPA has prepared a written statement required under section 202 of UMRA. The statement is included in the docket for this action and briefly su mmarized here. Over the 16 years of implementing the RMP program and, most recently through EO 13650 listening sessions, webinars, and consultations, EPA has engaged s tates and local communities to discuss chemical safety issues. In the nine EO 13650 Impr oving Chemical Facility Safety and Security listening sessions and webinars, held between November 2013 and January 2014, s tates and local communities identified lack of chemical facility participation and coordination in local emergency contingency planni ng as a key barrier to successfu l local community preparedness. Additionally, EPA has had consultations with s tates and local communities through participation in the NASTTPO annual meetings to discuss key issues related to chemical facility and local comm unity coordination and what areas of the RMP***E.O.12866 Review

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Page 194 of 234 regulations need to be modernized to facilitate this coordination and improve local emergency preparedness and prevention. Key priority options discussed with NASTTPO s tates and local communities included: impro ving emergency response coordination between RMP facilities and LEPCs/first responder and requiring emergency response exercises of the RMP facility plan to involve LEPCs, first responders and emergency response personnel. This action may significantly or uniquely affect small governments. The EPA consulted with small governments concerning the regulatory requirements that might significantly or uniquely affect them. Through the July 31, 2014 RFI (79 FR 44604), EPA sought feedback from governmental entities while formulating the proposed revisions in this action

. Additionally, EPA participated in ongoing consultations with affected small entity representatives (including small governmental entities ) through a Small Business Advocacy Review (SBAR) panel . EPA convened an SBAR panel in accordance with t he requirements of the RFA, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA)

. E. E O 13132: Federalism This action does not have Federal ism implications. The EPA believes, however, that these proposed regulatory revisions may be of significant interest to local governments. Consistent with the EPA’s policy to promote communications between the EPA and state and local governments , and t o be tter understand the concerns of local governments, EPA sought feedback through the July 31, 2014 RFI (79 FR 44604). Additionally, consultations with governmental entities occurred through the SBREFA process.
F. EO 13175: Consultation and Coordination with Indian Tribal Governments This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. EPA will be consulting with tribal officials as it devel ops this regulation to permit them to have meaningful and timely input into its development. Consultation will include conference calls, webinars, and meetings with interested tribal representatives to ensure that their concerns are addressed before***E.O.12866 Review

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Page 195 of 234 the ru le is finalized. In the spirit of Executive Order 13175 and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits comment on this proposed rule from tribal officials.
G. EO 13045: Protection of Children from Environmental Health Risks and Safety Risks This action is not subject to EO 13045 because the EPA does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk
to children. The EPA b elieves that the proposed revisions to the Risk Management Program regulations would further protect human health , including the health of children, through advancement of process safety

. H. EO 13211: Actions That Significantly Affect Energy Supply, Distribution or Use This proposed action is not a ‘‘significant energy action’’ because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This proposed action is not anticipated to have notable impacts on emissions, costs or energy supply decisions for the affected electric utility industry.
I. National Technology Transfer and Advancement Act (NTTAA) This action involves technical standards. The EPA proposes to require third

- party auditors to be experienced with applicabl e RAGAGEP, which include Voluntary Consensus Standards (VCS) as well as other measures, for regulated processes being audited. Numerous different standards apply to processes regulated under the proposed rule and their application will
vary depending on the particular process and chemicals involved. EPA is not proposing to list all the various codes, standards and practices that would apply to the wide variety of chemical processes covered by this rule as doing so would be impracticable, give n that this rule affects sectors across many industries and listing the applicable RAGAGEP measures would require the EPA to update that list every time there was a change in the industry standards or best practices. The proposed rule would require third

- p arty auditors to be familiar with standards applicable to processes they audit, and to obtain their own copies of applicable standards where needed.***E.O.12866 Review

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Page 196 of 234 Auditors must be knowledgeable of applicable consensus standards because the accident prevention program pr ovisions of the existing rule (Subparts C and D) require owners or
op erators to comply with RAGAGEP. Therefore, auditors must be knowledgeable of those practices in order to perform an effective audit. EPA seeks comment on this proposed RAGAGEP requirement

. J. EO 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations The EPA believes the human health or environmental risk addressed by this action will not have potential dispro portionately high and adverse human health or environmental effects on minority, low income , or indigenous populations. The results of this evaluation are included in the RIA, located in the docket.***E.O.12866 Review

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Page 197 of 234 List of Subjects 40 CFR part 68 Environmental protection, Administrative practice and procedure, Air pollution control, Chemicals, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. Dated:

____________________________________________

___________________________________________________ Gina McCarthy , Administrator

.***E.O.12866 Review

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Page 198 of 234 For the reasons set out in the preamble, title 40, chapter I, Part 68, of the C FR is amended as follows: PART 68

— CHEMICAL ACCIDENT PREVENTION PROVISIONS 1. The authority citation for part 68 continues to read as follows : Authority : 42 U.S.C. 7412(r), 7601(a)(1), 7661

- 7661f. 2. Amend §68.3 to revise the definition of “catastrophic release” and add the following definitions in alphabetical order to read as follows:
§68.3 Definitions. * * * * * Active measures means risk management measures or engineering controls that rely on mechanical, or other energy input to detect and respond to process deviations. Examples of active measures include alarms, safety instrumented system s, and detection hardware (such as hydrocarbon sensors)
* * * * * Catastrophic release means a major uncontrolled emission, fire, or explosion, involving one or more regulated substances that results in deaths, injuries, or significant property damage on

- s ite, or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or environmental damage. CBI means confidential business information.
* * * * * Feasible means capable of being successfully accomplished within a reasonable time, a ccounting for economic, environmental, legal, social, and technological factors. Environmental factors would include consideration of potential transferred risks for new risk reduction measures. * * * * ****E.O.12866 Review

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Page 199 of 234 Inherently safer technology or design means risk m anagement measures that minimize the use of regulated substances, substitute less hazardous substances, moderate the use of regulated substances, or simplify covered processes in order to make accidental releases less likely, or the impacts of such release s less severe.
* * * * * LEPC means local emergency planning committee as established under 42 U.S.C. 11001(c). * * * * * Passive measures means risk management measures that use design features that reduce the hazard without human, mechanical, or other energy input. Examples of passive measures include pressure vessel designs, dikes, berms, and blast walls. * * * * * Procedural measures means risk management measures such as policies, operating procedures, training, administrative controls, and emergency response actions to prevent or minimize incidents.
* * * * *
Root cause means a fundamental, underlying, system

- related reason why an in cident occurred that identifies a correctable failure(s) in management systems. * * * * * Third

- party audit means a compliance audit conducted pursuant to the requirements of §§68.59 and/or 68.80, by an entity (individual or firm) meeting the competency, independence and impartiality criteria in those sections. * * * * * 3. Amend §68.10 as follows: a. Revise paragraph (a); b. Redesignate paragraphs (b) through (f) as paragraphs (f) through (j); c. Add new paragraphs (b) through (e); and***E.O.12866 Review

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Page 200 of 234 d. Revise redesignated paragraph (f)(2). §68.10 Applicability. (a) Except as provided in paragraphs (b) through (e) of this section, an owner or operator of a stationary source that has more than a threshold quantity of a regulated substance in a process, as determi ned under §68.115, shall comply with the requirements of this part no later than the latest of the following dates:
* * * * * (2) Three years after the date on which a regulated substance is first listed under §68.130; (3) The date on which a regulated s ubstance is first present above a threshold quantity in
a process; or (4) For any revisions to this part, the effective date of the final rule. (b) Within 1 year of [ INSERT DATE 1 YEAR A FTER THE EFFECTIVE D ATE OF THE FINAL RULE ] the owner or operator of a stationary source shall comply with the emergency response coordination activities in §68.93(a) and 68.93(b). (c) Within 3 years of the LEPC or equivalent requesting in writing, pursuant to §68.90(b)(2), the owner or operator must develop and implement an emergency response program in accordance with §68.95. (d) By [ INSERT DATE 4 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL
RULE ], the owner or operator shall comply with the following provisions promulgated on [Insert rule publication date]: (1) Third

- party audit provisions in §§68.58(f), 68.58(g), 68.58(h), 68.59, 68.79(f), 68.79(g), 68.79(h), and 68.80; (2) Incident investigation root cause analysis provisions in §§68.60(d)(7) and 68.81(d)(7) and the incident root cause category information provision in §68 .42(b)(10); (3) Safer technology and alternative analysis provisions in §68.67(c)(8); (4) Emergency response exercise provisions of §68.96, and;***E.O.12866 Review

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Page 201 of 234 (5) Availability of information provisions in §§68.205, 68.210(b), 68.210(c), and 68.210(d). (e) By [ INSERT DATE 5 YEARS AFTER E FFECTIVE DATE OF THE FINAL
RULE ], the owner or operator shall comply with the risk management plan provisions of Subpart G promulgated on [INSERT PUBLICATION DATE OF FINAL RULE].
* * * * * 4. Amend §68.12 to revise paragraphs (c) and (d ) to read as follows : §68.12 General requirements. * * * * * (c) * * * (4) Coordinate response actions with local emergency planning and response agencies as provided in §68.93; (5) Develop and implement an emergency response program, and conduct exercises, as provided in §§68.90 to 68.96; and (6) Submit as part of the RMP the data on prevention program elements for Program 2 processes as provided in §68.170. (d) * * * (4) Coor dinate response actions with local emergency planning and response agencies as provided in §68.93; (5) Develop and implement an emergency response program, and conduct exercises, as provided in §§68.90 to 68. 95 96 of this part; and (6) Submit as part of th e RMP the data on prevention program elements for Program 3 processes as provided in §68.175.***E.O.12866 Review

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Page 202 of 234 5. Amend §68.42 as follows: a. Redesignate paragraphs (b)(10) and (b)(11) as paragraphs (b)(11) and (b)(12); and
b. Add a new paragraph (b) (10) to read as follows : §68.42 Five
- year accident history. * * * * * (b) * * * (10) Categories of root causes identified based on the root cause analysis required in the incident investigation in accordance with § 68.60(d)(7) or § 68.81(d)(7);
* * * * *
6. Amend §68.48 to revise paragraph (a)(1) to read as follows : §68.48 Safety information

. (a) * * * (1) Safety Data Sheets (SDS) that meet the requirements of 29 CFR 1910.1200(g); * * * * *
7. Amend §68.50 to revise paragraph (a)(2) to read as follows : §68.50 Hazard review. (a) * * * (2) Opportunities for equipment malfunctions or human errors that could cause an accidental release, including findings from incident investigations;
* * * * * 8. Amend §68.54 as follows: a. Revise paragraphs (a), (b), and (d); and b. Ad d new paragraph (e).***E.O.12866 Review

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Page 203 of 234 §68.54 Training. (a) The owner or operator shall ensure that each employee presently involved in operating a process, and each employee newly assigned to a covered process have been trained or tested competent in the operating procedur es provided in §68.52 that pertain to their duties. For those employees already operating a process on June 21, 1999, the owner or operator may certify in writing that the employee has the required knowledge, skills, and abilities to safely carry out the d uties and responsibilities as provided in the operating procedures. (b) Refresher training. Refresher training shall be provided at least every three years, and more often if necessary, to each employee involved in operating a process to ensure that the employee understands and adheres to the current operating procedures o f the process. The owner or operator, in consultation with the employees operating the process, shall determine the appropriate frequency of refresher training.
* * * * * (d) The owner or operator shall ensure that employees involved in operating a proces s are trained in any updated or new procedures prior to startup of a process after a major change. (e) For the purposes of this section, the term employee also includes supervisors responsible for directing process operations. 9. Amend §68.58 as follows:

a . Revise paragraph (a); and b. Add new paragraphs (f) through (h). §68.58 Compliance audits
. (a) The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart for each covered process, at least every three years to verify that the procedures and practices developed under the rule are adequate and are being followed. When required as set for th in paragraph (f), the compliance audit shall be a third

- party audit.
* * * * ****E.O.12866 Review

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Page 204 of 234 (f) Third

- party audit applicability. The next required compliance audit shall be a third

party audit when one of the following conditions apply: (1) An accidental release me eting the criteria in § 68.42(a) from a covered process at a stationary source has occurred ; or (2) An implementing agency requires a third

- party audit based on non

- compliance with the requirements of this subpart, including when a previous third

- party audit failed to meet the competency, independence, or impartiality criteria of §68.59(b). (g) Implementing agency notification and appeals. (1) If an implementing agency makes a preliminary determination that a third

- party a udit is n ecessary pursuant to paragraph (f)(2) of this section , the implementing agency will provide written notice to the owner or operator stating the reasons for the implementing agency’s determination. (2) Within 30 days of receipt of such written notice, the o wner or operator may provide information and data to, and may consult with, the implementing agency on the determination. Thereafter, the implementing agency will provide a final determination to the owner or operator. (3) If the final determination requir es a third

- party audit, the owner or operator shall comply with the requirements of §68.59, pursuant to the schedule in paragraph (h). (4) Appeals. The owner or operator may appeal a final determination made by an implementing agency under paragraph (g)(2) of this section within 30 days of receipt of the final determination. The appeal shall be made to the EPA Regional Administrator, or for determinations made by other implementing agencies, the administrator or director of such implementing agency. The app eal shall contain a clear and concise statement of the issues, facts in the case, and any relevant additional information. In reviewing the appeal, the implementing agency may request additional information from the owner or operator. The implementing agen cy will provide a written, final decision on the appeal to the owner or operator.***E.O.12866 Review

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Page 205 of 234 (h) Schedule for conducting a third

- party audit. The audit and audit report shall be completed, and the audit report submitted to the implementing agency pursuant to §68.59( c)(3) as follows, unless a different timeframe is specified by the implementing agency: (1) Within 12 months of when any third

- party audit is required pursuant to paragraphs (f) and/or (g); or (2) Within three years of completion of the previous complianc e audit, whichever is

sooner. 10. Add §68.59 to Subpart C to read as follows : §68.59 Third
- party audits. (a) The owner or operator shall engage a third

- party auditor to evaluate compliance with the provisions of this subpart in accordance with the requirements of this section when either criterion of §68.58(f) is met

. (b ) Auditor qualifications

. The owner or operator shall determine and document that the auditor and/ or audit team are independent and impartial, and that the auditor’s or audit team’s credentials address the following competency requirements: (1) Competency requirements. The auditor/auditor team shall be: (i) Knowledgeable with the requirements of this part; (ii) Experienced with the stationary source type and processes being audited and applicable recognized and generally accepted good engineering practices; (iii) Trained or certified in proper auditing techniques; and (iv) A licensed Professional Engineer, or shall include a licensed PE on the audit team. (2) Independence and impartiality requirements. The auditor/audit team shall: (i) Act impartially when performing all activities under this section; (ii) Receive no financial benefit from the outcome of the audit, apart from payment for the auditing services ;***E.O.12866 Review

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Page 206 of 234 (iii) Not ha ve conducted past research, development, design, construction services, or consulting for the owner or operator within the last 3 years. For purposes of this requirement, consulting does not include performing or participating in third

- party audits pursuant to §§ 68.59 or 68.80; (iv) Not provide other business or consulting services to the owner or operator, including advice or assistance to implement the findings or recommendations in an audit report, for a period of at least 3 years following submission of the final audit report; (v) Ensure that all personnel involved in the audit sign and date the conflict of interest statement in § 68.59(d)(8) ; and (vi) Ensure that all personnel involved in the audit do not accept future employment with the o wner or operator of the stationary source for a period of at least 3 years following submission of the final audit report. For purposes of this requirement, employment does not include performing or participating in third

- party audits pursuant to §§ 68.59 o r 68.80. (3) The auditor shall have written policies and procedures to ensure that all personnel comply with the competency, independence, and impartiality requirements of this section. (c) Third

- party audit report. The owner or operator shall ensure that the auditor prepares and submits an audit report as follows: (1) The scope and content of each audit report shall: (i) I dentify the lead auditor or manager, participating individuals, and any other key persons part icipating in the audit, including names, titles, and summaries of qualifications demonstrating that the competency requirements in paragraph (b)(1) are met; (ii) Document the auditor’s evaluation, for each covered process, of the owner or operator’s compli ance with the provisions of this subpart to determine whether the procedures and practices developed by the owner or operator under this rule are adequate and being followed;***E.O.12866 Review

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Page 207 of 234 (iii) Document the findings of the audit, including any identified compliance or performance deficiencies; (iv) Include a summary of the owner’s or operator’s comments on, and identify any adjustments made by the auditor to, any draft a udit report provided by the auditor to the owner or operator for review or comment; and (v) Include the following certification, signed and dated by the auditor or supervising manager for the audit: “I certify that this RMP compliance audit report was prepared under my direction or supervision in accordance with a system designed to assure that qualifie d personnel properly gather and evaluate the information upon which the audit is based. I further certify that the audit was conducted and this report was prepared pursuant to the requirements of subpart C of 40 CFR Part 68 and all other applicable auditin g, competency, independence, impartiality, and conflict of interest standards and protocols. Based on my personal knowledge and experience, and inquiry of personnel involved in the audit, the information submitted herein is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment for knowing violations.” (2) The auditor shall retain copies of all audit reports and related records for a period of five y ears, and make them available if directed by the owner or operator, to the owner or operator and/or the implementing agency. (3) The auditor shall submit the audit report to the implementing agency at the same time, or before, it provides it to the owner o r operator. (4) The audit report and related records shall not be privileged as attorney

- client communications or attorney work products, even if written for or reviewed by legal staff. (d) Third

- party audit findings. (1) Findings response report. As soon as possible, but no later than 90 days after receiving the final audit report, the owner or operator shall determine an***E.O.12866 Review

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Page 208 of 234 appropriate response to each of the findings in the audit report, and develop and provide to the implementing agency a findings respons e report that includes: (i) A copy of the final audit report; (ii) An appropriate response to each of the audit report findings; (iii) A schedule for promptly addressing deficiencies; and (iv) A certification, signed and dated by a senior corporate offi cer, or an official in an equivalent position, of the owner or operator of the stationary source, stating: “I certify under penalty of law that the attached RMP compliance audit report was received, reviewed, and responded to under my direction or supervis ion by qualified personnel. I further certify that appropriate responses to the findings have been identified and deficiencies were corrected, or are being corrected, consistent with the requirements of subpart C of 40 CFR Part 68, as documented herein. Ba sed on my personal knowledge and experience, or inquiry of personnel involved in evaluating the report findings and determining appropriate responses to the findings, the information submitted herein is true, accurate, and complete. I am aware that there a re significant penalties for submitting false information, including the possibility of fines and imprisonment for knowing violations.” (2) Schedule to address deficiencies. The owner or operator shall implement the schedule to address deficiencies identif ied in the audit findings response report in paragraph (d)(1)(iii) and document the action taken to address each deficiency, along with the date completed. (3) Submission to board of directors. The owner or operator shall immediately provide a copy of each document required under paragraphs (d)(1) and (d)(2), when completed, to the owner or operator’s audit committee of the Board of Directors, or other comparable committee, if one exists. (e) Recordkeeping. The owner or operator shall retain at the stationa ry source, the following:***E.O.12866 Review

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Page 209 of 234 (1) The two most recent third

- party audit reports, related findings response reports, documentation of actions taken to address deficiencies, and related records. This requirement does not apply to any document that is more than five years old. (2) Copies of all draft third

- party audit reports. The owner or operator shall p rovide draft third

- party audit reports to the implementing agency upon request . This requirement does not apply to any draft audit reports that are more than five years old. 11. Revise §68.60 as follows: a. Revise paragraph (a); b. Redesignate paragraphs (c) through (f) as paragraphs (d) through (g); c. Add new paragraph (c); and d. Revise redesignated paragraphs (d) and (g). §68.60 Incident investigation. (a) The owner or operator shall investigate each incident that: (1) Resulted in a catastrophic release (including when the affected process is decommissioned or destroyed following, or as the result of, an incident); or (2) Could reasonably have resulted in a catastrophic release (i.e., was a near miss). * * * * * (c) An incident investigation team shall be established and consist of at least one person knowledgeable in the process involved and other persons with appropriate knowledge and experience to thorough ly investigate and analyze the incident. (d) A report shall be prepared at the conclusion of the investigation. The report shall be completed within 12 months of the incident, unless the implementing agency approves, in writing, an extension of time. The r eport shall include: (1) Date, time, and location of incident; (2) Date investigation began;***E.O.12866 Review

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Page 210 of 234 (3) A description of the incident, in chronological order, providing all relevant facts; (4) The name and amount of the regulated substance involved in the release (e.g., fire, explosion, toxic gas loss of containment) or near miss and the duration of the event; (5) The consequences, if any, of the incident including, but not limited to: injuries, fatalities, the number of people evacuated, the number of people shel tered in place, and the impact on the environment; (6) Emergency response actions taken; (7) The factors that contributed to the incident including the initiating event, direct and indirect contributing factors, and root causes. Root causes shall be determ ined by conducting an analysis for each incident using a recognized method; and (8) Any recommendations resulting from the investigation and a schedule for addressing them.
* * * * * (g) Incident investigation reports shall be retained for five years. 12. Amend §68.65 to revise the first sentence of paragraph (a) and revise paragraph (b) to read as follows : §68.65 Process safety information . (a) The owner or operator shall complete a compilation of written process safety information before conducting any process hazard analysis required by the rule, and shall keep process safety information up

- to

- date. * * * (b) Information pertaining to the hazards of the regulated substances in the process. This information shall consist of:
* * * * * (7) Hazardous effe cts of inadvertent mixing of different materials that could foreseeably

occur.***E.O.12866 Review

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Page 211 of 234 Note to paragraph (b): Safety Data Sheets (SDS) meeting the requirements of 29 CFR 1910.1200(g) may be used to comply with this requirement to the extent they contain the inform ation required by this subparagraph.
* * * * *
13. Amend §68.67 to revise paragraph (c) as follows : §68.67 Process hazard analysis. * * * * * (c) * * *
* * * * * (2) The findings from all incident investigations required under section 68.81, as well as any other potential failure scenarios;
* * * * * (6) Human factors; (7) A qualitative evaluation of a range of the possible safety and health effects of failure of controls; and (8) For processes in NAICS 322, 324, and 325, safer technology and alternativ e risk management measures applicable to eliminating or reducing risk from process hazards. (i) The owner or operator shall consider, in the following order of preference, inherently safer technology or design, passive measures, active measures, and proced ural measures. A combination of risk management measures may be used to achieve the desired risk reduction. (ii) The owner or operator shall determine the feasibility of the inherently safer technologies and designs considered.
* * * * * 14. Revise §68.7 1 to add a new paragraph (d) as follows :***E.O.12866 Review

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Page 212 of 234 §68.71 Training. * * * * * (d) For the purposes of this section, the term employee also includes supervisors with process operational responsibilities. 15. Amend §68.79 as follows: a. Revise paragraph (a); and b. Add new paragraphs (f) through (h). §68.79 Compliance audits. (a) The owner or operator shall certify that they have evaluated compliance with the provisions of this subpart for each covered process, at least every three years to verify that the proced ures and practices developed under the rule are adequate and are being followed. When required as set forth in paragraph (f), the compliance audit shall be a third

- party audit.
* * * * * (f) Third

- party audit applicability. The next required compliance au dit shall be a third

party audit when one of the following conditions apply: (1) An accidental release meeting the criteria in § 68.42(a) from a covered process at a stationary source has occurred ; or (2) An implementing agency requires a third

- party audit based on non

- compliance with the requirements of this subpart, including when a previous third

- party audit failed to meet the competency, independence, or impartiality criteria of §68.80(b). (g) Implementing agency notification and appeals. (1) If an imple menting agency makes a preliminary determination that a third

- party audit is necessary pursuant to paragraph (f)(2) of this section, the implementing agency will provide written notice to the owner or operator stating the reasons for the implementing agenc y’s determination.***E.O.12866 Review

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Page 213 of 234 (2) Within 30 days of receipt of such written notice, the owner or operator may provide information and data to, and may consult with, the implementing agency on the determination. Thereafter, the implementing agency will provide a final determination to the owner or operator. (3) If the final determination requires a third

- party audit, the owner or operator shall comply with the requirements of §68.80, pursuant to the schedule in paragraph (h). (4) Appeals. The owner or operator may appe al a final determination made by an implementing agency under paragraph (g)(2) of this section within 30 days of receipt of the final determination. The appeal shall be made to the EPA Regional Administrator, or for determinations made by other implementin g agencies, the administrator or director of such implementing agency. The appeal shall contain a clear and concise statement of the issues, facts in the case, and any relevant additional information. In reviewing the appeal, the implementing
agency may re quest additional information from the owner or operator. The implementing agency will provide a written, final decision on the appeal to the owner or operator. (h) Schedule for conducting a third

- party audit. The audit and audit report shall be completed, and the audit report submitted to the implementing agency pursuant to §68.80(c)(3) as follows, unless a different timeframe is specified by the implementing agency: (1) Within 12 months of when any third

- par ty audit is required pursuant to paragraphs (f) and/or (g); or (2) Within three years of completion of the previous compliance audit, whichever is

sooner. 16. Add §68.80 to Subpart D to read as follows : §68.80 Third
- party audits. (a) The owner or operator shall engage a third

- party auditor to evaluate compliance with the provisions of this subpart in accordance with the requirements of this section when either criterion of §68.79(f) is met.***E.O.12866 Review

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Page 214 of 234 (b ) Auditor qualifications. The owner or operator shall determine and document that the auditor and/ or audit team are independent and impartial, and that the auditor’s or audit team’s credentials address the following competency requirements: (1) Competency requirements. The auditor/auditor team shall be: (i) Knowledge able with the requirements of this part; (ii) Experienced with the stationary source type and processes being audited and applicable recognized and generally accepted good engineering practices; (iii) Trained or certified in proper auditing techniques; and (iv) A licensed Professional Engineer, or shall include a licensed PE on the audit team. (2) Independence and impartiality requirements . The auditor/audit team shall: (i) Act impartially when performing all activities under this section; (ii) Receive no financial benefit from the outcome of the audit, apart from payment for the auditing services; (iii) Not have conducted past research, development, design, construction services, or consulting for the owner or operator within the last 3 years. For purposes of this requirement, consulting does not include performing or participating in third

- party audits pursuant to §§68.59 or 68.80; (iv) Not provide other business or consulting services to the owner or operator, including advice or assistance to implement t he findings or recommendations in an audit report, for a period of at least 3 years following submission of the final audit report; (v) Ensure that all personnel involved in the audit sign and date the conflict of interest statement in § 68.59(d)(8) ; and (vi) Ensure that all personnel involved in the audit do not accept future employment with the owner or operator of the stationary source for a period of at least 3 years following submission of the final audit report. For purposes of this requirement, empl oyment does not include performing or participating in third

- party audits pursuant to § § 68.59 or 68.80.***E.O.12866 Review

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Page 215 of 234 (3) The auditor shall have written policies and procedures to ensure that all personnel comply with the competency, independence, and impartiality requi rements of this section. (c) Third

- party audit report. The owner or operator shall ensure that the auditor prepares and submits an audit report as follows: (1) The scope and content of each audit report shall: (i) I dentify the lead auditor or manager, pa rticipating individuals, and any other key persons participating in the audit, including names, titles, and summaries of qualifications demonstrating that the competency requirements in paragraph (b)(1) are met; (ii) Document the auditor’s evaluation, for each covered process, of the owner or operator’s compliance with the provisions of this subpart to determine whether the procedures and practices developed by the owner or operator under this rule are adequate and being followed; (iii) Document the finding s of the audit, including any identified compliance or performance deficiencies; (iv) Include a summary of the owner’s or operator’s comments on, and identify any adjustments made by the auditor to, any draft a udit report provided by the auditor to the own er or operator for review or comment; and (v) Include the following certification, signed and dated by the auditor or supervising manager for the audit: “I certify that this RMP compliance audit report was prepared under my direction or supervision in ac cordance with a system designed to assure that qualified personnel properly gather and evaluate the information upon which the audit is based. I further certify that the audit was conducted and this report was prepared pursuant to the requirements of subpa rt D of 40 CFR Part 68 and all other applicable auditing, competency, independence, impartiality, and conflict of interest standards and protocols. Based on my personal knowledge and experience, and inquiry of personnel involved in***E.O.12866 Review

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Page 216 of 234 the audit, the informati on submitted herein is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment for knowing violations.” (2) The auditor shall retain copies of all a udit reports and related records for a period of five years, and make them available if directed by the owner or operator, to the owner or operator and/or the implementing agency. (3) The auditor shall submit the audit report to the implementing agency at the same time, or before, it provides it to the owner or operator. (4) The audit report and related records shall not be privileged as attorney

- client communications or attorney work products, even if written for or reviewed by legal staff. (d) Third

- part y audit findings. (1) Findings response report. As soon as possible, but no later than 90 days after receiving the final audit report, the owner or operator shall determine an appropriate response to each of the findings in the audit report, and develop an d provide to the implementing agency a findings response report that includes: (i) A copy of the final audit report; (ii) An appropriate response to each of the audit report findings; (iii) A schedule for promptly addressing deficiencies; and (iv) A certification, signed and dated by a senior corporate officer, or an official in an equivalent position, of the owner or operator of the stationary source, stating: “I certify under penalty of law that the attached RMP compliance audit report was received, reviewed, and responded to under my direction or supervision by qualified personnel. I further certify that appropriate responses to the findings have been identified and deficiencies were corrected, or are being corrected, consistent with the requirement s of subpart D of 40 CFR Part 68, as documented herein. Based on my personal knowledge and experience, or inquiry of personnel involved in evaluating the report findings and determining appropriate responses to the findings, the information submitted herei n is***E.O.12866 Review

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Page 217 of 234 true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fines and imprisonment for knowing violations.” (2) Schedule to address deficiencies. The owner or operator shall implement the schedule to address deficiencies identified in the audit findings response report in paragraph (d)(1)(iii) and document the action taken to address each deficiency, along with the date completed. (3) Submission to board of directors. Th e owner or operator shall immediately provide a copy of each document required under paragraphs (d)(1) and (d)(2), when completed, to the owner or operator’s audit committee of the Board of Directors, or other comparable committee, if one exists. (e) Recor dkeeping. The owner or operator shall retain at the stationary source, the following: (1) The two most recent third

- party audit reports, related findings response reports, documentation of actions taken to address deficiencies, and related records. This re quirement does not apply to any document that is more than five years old. (2) Copies of all draft third

- party audit reports. The owner or operator shall provide draft third

- party audit reports to the implementing agency upon request. This requirement does not apply to any draft audit reports that are more than five years old. 17. Amend §68.81 to revise paragraphs (a) and (d) as follows : §68.81 Incident investigation. (a) The owner or operator shall investigate each incident that: (1) Resulted in a catastro phic release (including when the affected process is decommissioned or destroyed following, or as the result of, an incident); or (2) Could reasonably have resulted in a catastrophic release (i.e., was a near miss).
* * * * ****E.O.12866 Review

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Page 218 of 234 (d) A report shall be prepare d at the conclusion of the investigation. The report shall be completed within 12 months of the incident, unless the implementing agency approves, in writing, an extension of time. The report shall include: (1) Date, time, and location of incident;
* * * * * (3) A description of the incident, in chronological order, providing all relevant facts; (4) The name and amount of the regulated substance involved in the release (e.g., fire, explosion, toxic gas loss of containment) or near miss and the duration of the event; (5) The consequences, if any, of the incident including, but not limited to: injuries, fatalities, the number of people evacuated, the number of people sheltered in place, and the impact on the environment; (6) Emergency response actions taken; (7) The factors that contributed to the incident including the initiating event, direct and indirect contributing factors, and root causes. Root causes shall be determined by conducting an analysis for each incident using a recognized, method; and (8) Any recommendations resulting from the investigation and a schedule for addressing them. * * * * *
18. Revise §68.90 to read as follows : §68.90 Applicability. (a) Non

- responding stationary source. The owner or operator of a stationary source need not comply w ith §68.95 of this part provided that: (1) The coordination activities required under §68.93 indicate that adequate local public emergency response capabilities are available to appropriately respond to any accidental release of the regulated substances at the stationary source;***E.O.12866 Review

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Page 219 of 234 (2) Appropriate mechanisms are in place to notify emergency responders when there is a need for a response; and (3) The LEPC or equivalent has not requested in writing that the owner or operator comply with the requirements of §68.95. (b) Responding stationary source. The owner or operator of a stationary source shall coordinate response activities as described in §68.93. The owner or operator shall also comply with the requirements of §68.95 when: (1) The outcome of the response coordination activities demonstrates t hat local public emergency response capabilities are not adequate to appropriately respond to an accidental release of the regulated substances at the stationary source; or (2) The LEPC or equivalent requests in writing that the owner or operator of the
st ationary source comply with the requirements of §68.95. 19. Add §68.93 to Subpart E to read as follows : §68.93 Emergency response coordination activities

. The owner or operator of a stationary source shall coordinate response needs with local emergency pla nning and response organizations to ensure resources and capabilities are in place to respond to an accidental release of a regulated substance. (a) Coordination shall occur at least annually, and more frequently if necessary, to address changes: at the so urce; in the source’s emergency action plan; in local authorities’ response resources and capabilities; or in the local community emergency response plan. (b) The owner or operator shall document coordination with local authorities, including: the names o f individuals involved and their contact information (phone number, email address, and organizational affiliations); dates of coordination activities; and nature of coordination activities. (c) The owner or operator shall coordinate potential response acti ons as follows:***E.O.12866 Review

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Page 220 of 234 (1) For stationary sources with any regulated toxic substance held in a process above the threshold quantity, the owner or operator shall coordinate potential response actions with the LEPC or equivalent and ensure that the stationary sourc e is included in the community emergency response plan developed under 42 U.S.C. 11003; and/or (2) For stationary sources with only regulated flammable substances held in a process above the threshold quantity, the owner or operator shall coordinate respon se actions with the local fire department. 20. Amend §68.95 as follows: a. Revise paragraph (a)(1)(i); b. Revise paragraph (a)(4) by adding a sentence at the end; and c. Revise paragraph (c). 68.95 Emergency response program. (a) * * * (1) * * * (i) Procedures for informing the public and the appropriate Federal, state, and local emergency response agencies about accidental releases; * * * * * (4) * * * The owner or operator shall review and update the program annually, or more frequently if necessa ry, to incorporate recommendations and lessons learned from emergency response exercises and/or incident investigations, or other available information. * * * * * (c) The emergency response plan developed under paragraph (a)(1) of this section shall be coordinated with the community emergency response plan developed under 42 U.S.C. 11003. Upon request of the LEPC or emergency response officials, the owner or operato r shall promptly provide to the local emergency response officials information necessary for developing and implementing the community emergency response plan.***E.O.12866 Review

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Page 221 of 234 21. Add §68.96 to Subpart E to read as follows : §68.96 Emergency response exercises. (a) Notification exercises. At least once each calendar year, the owner or operator of a stationary source with any Program 2 or Program 3 process shall conduct an exercise of the source’s emergency response notification mechanisms required under §68.90(a)(2) or §68.95(a)(1)(i), as appropriate. Owners or operators of responding stationary sources may perform the notification exercise as part of the tabletop and field exercises required in §68.96(b). The owner/operator shall maintain a written record of each not ification exercise conducted over the last five years. (b) Emergency response exercise program. The owner or operator of a stationary source subject to the requirements of §68.95 shall develop and implement an exercise program for its
emergency response pr ogram, including the plan required under §68.95(a)(1). When planning emergency response field and tabletop exercises, the owner or operator shall coordinate with local public emergency response officials and invite them to participate in the exercise. The emergency response exercise program shall include: (1) Emergency response field exercises. The owner or operator shall conduct a field exercise involving the simulated accidental release of a regulated substance (i.e., toxic substance release or release of a regulated flammable substance involving a fire and/or explosion). (i) Frequency. The field exercise shall be conducted at least once every five years, and within one year of any accidental release required to be reported under §68.42. (ii) Scope. The fi eld exercise shall include tests of: procedures to notify the public and the appropriate Federal, state, and local emergency response agencies about an accidental release; procedures and measures for emergency response actions including evacuations and med ical treatment; communications systems; mobilization of facility emergency response personnel, including contractors, as appropriate; coordination with local emergency responders; equipment deployment; and any other action identified in the emergency respo nse program, as appropriate.***E.O.12866 Review

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Page 222 of 234 (2) Tabletop exercises. The owner or operator shall conduct a tabletop exercise involving the simulated accidental release of a regulated substance. The exercise shall involve facility emergency response personnel, response con tractors, and local emergency response and planning officials, as appropriate. (i) Frequency

. The owner or operator of a stationary source shall conduct tabletop exercises annually, except during the calendar year when a field exercise is conducted. (ii) Scope. The exercise shall include tests of: procedures to notify the public and the appropriate Federal, state, and local emergency response agencies; procedures and measures for emergency response including evacuations and medical treatment; identificatio n of facility emergency response personnel and/or contractors and their responsibilities; coordination with local emergency responders; procedures for equipment deployment; and any other action identified in the emergency response plan, as appropriate. (3) Documentation. The owner/operator shall prepare an evaluation report within 90 days of each exercise. The report shall include: a description of the exercise scenario; names and organizations of each participant; an evaluation of the exercise results incl uding lessons learned; recommendations for improvement or revisions to the emergency response exercise program and emergency response program, and a schedule to promptly address and resolve recommendations. 22. Amend §68.130 as follows: a. In Table 1, Lis t of Regulated Toxic Substances and Threshold Quantities for Accidental Release Prevention [Alphabetical Order

— 77 Substances], remove the CAS No. 107

- 18

- 61 in the row for Allyl alcohol [2

- Propen

- l

- ol] and replace it with CAS No. 107

- 18

- 6; b. In Table 2, Li st of Regulated Toxic Substances and Threshold Quantities for Accidental Release Prevention [CAS Number Order

— 77 Substances], in column 1 remove dots and right justify the CAS numbers in the column; and c. In Table 4, List of Regulated Flammable Substances and Threshold Quantities for Accidental Release Prevention, [CAS Number Order

— 63 Substances], in column 1 remove dots***E.O.12866 Review

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Page 223 of 234 and right justify the CAS numbers in the column; in column 1 remove CAS No. 196

- 99

- 0 in the row for 1,3

- Butadiene and replace it with CAS No. 106

- 99

- 0; and remove the third column (CAS No.). 23. Amend §68.160 to revise paragraph (b) as follows : §68.160 Registration. * * * * * (b) * * * (1) Stationary source name, street, city, county, state, zip code, latitude and longitude, and description of location that latitude and longitude represent; * * * * * (4) The name, telephone number, mailing address, and e

- mail address of the owner or operator; (5) The name and title of the person with overall responsibility for RMP elements and i mplementation, and the e

- mail address for that person;
* * * * * (9) The number of full

- time equivalent employees at the stationary source; * * * * * (12) If the stationary source has a CAA Title V operating permit, and if so, the permit number; (13) [Reserved]; (14) The name, mailing address, email address, and the telephone number of the contractor who prepared the RMP (if any); (15) Source or parent company e

- mail address (if an e

- mail address exists); (16) Source internet address (if an internet a ddress exists); (17) Phone number at the source for public inquiries (if a public inquiries phone number exists);***E.O.12866 Review

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Page 224 of 234 (18) LEPC name, phone number, e

- mail address, and internet address (if applicable and available); (19) [Reserved]; (20) * * *
* * * * * (ii) Corrections under §68.195 or for purposes of correcting minor clerical errors, updating administrative information, providing missing data elements or reflecting stationary source ownership changes, and which do not require an update and re

- submission as s pecified in §68.190(b);
* * * * * (iv) Withdrawals of an RMP for any stationary source that was erroneously considered subject to this part 68; (21) Whether chemical hazard information has been provided to the LEPC or emergency response officials, pursua nt to §68.205; (22) Location or means of public access for chemical hazard information made available to the public, pursuant to §68.210; and ( 23) Whether a public meeting has been held within the last five years and/or following a reportable accidental release, pursuant to §68.210(d).
24. Amend §68.170 as follows: a. Revise paragraphs (a), (e) , (f), and (h); b. Redesignate paragraph (d) as paragraphs (d)(1) and (d)(2) and revise;

c. Remove paragraphs (g)(1) and (g)(2) and revise paragraph (g);
d. Redesig nate paragraph (i) as paragraphs (i)(1) through (i)(3) and revise;

e . Redesignate paragraph (j) as paragraphs (j)(1) through (j)(3) and revise; and
f . Remove paragraph (k).***E.O.12866 Review

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Page 225 of 234 §68.170 Prevention program/Program 2. (a) For each Program 2 process, the owner or operator shall provide in the RMP the information indicated in paragraphs (b) through (j) of this section. If the same information applies to more than one covered process, the owner or operator may provide the information only once, but shall indicate to which processes the information applies.
* * * * * (d)(1) Whether safety information requirements, in §68.48, are implemented. (2) A list of all F ederal and state regulations, industry

- specific and established company or stationary source design codes and standards that are applicable, and identify those followed, to demonstrate compliance with the safety information requirements. (e) The most recent hazard review or hazard review update information, pursuant t o § 68.50, including: (1) The date of completion of the most recent hazard review or hazard review update; * * * * * (f) Whether operating procedure requirements, in § 68.52, are implemented. (g) Whether training requirements, in § 68.54, are implemented. (h) Whether maintenance requirements, in § 68.56, are implemented. (i)(1) Whether compliance audit requirements, in § 68.58, are implemented. (2) The date of the most recent compliance audit. (3) Whether the most recent compliance audit was a third

- party a udit, pursuant to §§68.58 and 68.59. (j)(1) Whether incident investigation requirements, in § 68.60, are implemented. (2) The date of the most recent incident investigation. (3) Whether root cause analyses have been completed for all accidents and incide nts that are subject to the incident investigation requirements in §68.60. 25. Amend §68.175 as follows :***E.O.12866 Review

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Page 226 of 234 a. Revise paragraphs (a), (f) , (h) through (j), and (m) through (o); b. Redesignate paragraph (d) as paragraphs (d)(1) and (d)(2) and revise; c. Revise paragraph (e) by redesignating paragraphs (e)(1) through (e)(6) as (e)(1)(i) through (e)(1)((vi) and adding a new paragraph (e)(2); d. Remove paragraphs (g)(1) and (g)(2) and revise paragraph (g);

e . Redesignate paragraph (k) as paragraphs (k)(1) through (k)(3) and revise; f . Redesignate paragraph (l) as paragraphs (l)(1) through (l)(3) and revise; and
g . Remove paragraph (p)

. §68.175 Prevention program/Program 3. (a) For each Program 3 process, the owner or operator shall provide the information indicated in paragraphs (b) through (o) of this section. If the same information applies to more than one covered process, the owner or operator may provide the information only once, but shall indicate to which processes the information applies.
* * * * * (d)(1) Whether process safety information requirements, in § 68.65, are implemented. (2) A list of all F ederal and state regulations, industry

- specific and established co mpany or stationary source design codes and standards that are applicable, and identify those followed, to demonstrate compliance with the safety information requirements. (e)(1)The most recent PHA or PHA update and revalidation information, pursuant to § 68.67, including: (i) The date of completion of the most recent PHA or update and the technique used; (ii) Major hazards identified; (iii) Process controls in use; (iv) Mitigation systems in use; (v) Monitoring and detection systems in use; and (vi) Changes since the last PHA.***E.O.12866 Review

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Page 227 of 234 (2)(i) Whether the current PHA addresses safer technology and alternative risk management measures, as required in §68.67(c)(8). (ii) Whether any inherently safer technology or design measures were implemented. (iii) If any in herently safer technology or design measures were implemented, identify the measure and the technology category (substitution, minimization, simplification, and/or moderation). (f) Whether operating procedure requirements, in § 68.69, are implemented. (g) Whether training requirements, in § 68.71, are implemented. (h) Whether mechanical integrity requirements, in § 68.73, are implemented. (i) Whether management of change requirements, in §68.75, are implemented. (j) Whether pre

- startup review requirements , in § 68.77, are implemented. (k)(1) Whether compliance audit requirements, in § 68.79, are implemented. (2) The date of the most recent compliance audit. (3) Whether the most recent compliance audit was a third

- party audit, pursuant to §§68.79 and 68.80. (l)(1) Whether incident investigation requirements, in § 68.81, are implemented. (2) The date of the most recent incident investigation. (3) Whether root cause analyses have been completed for all accidents and incidents that are subject to the incident investigation requirements in §68.81. (m) Whether employee participation requirements, in § 68.83, are implemented. (n) Whether hot work permit requirements, in § 68.85, are implemented. (o) Whether contractor safety requirements, in § 68.87, are implemented

. 26. Revise §68.180 to read as follows : §68.180 Emergency response program and exercises. (a) The owner or operator shall provide in the RMP:***E.O.12866 Review

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Page 228 of 234 (1) Name, organizational affiliation, phone number, and e

- mail address of local emergency planning and response organizations with which the stationary source last coordinated emergency response efforts , pursuant to §§68.10(b)(3) or 68.93; (2) Whether coordination with the local emergency response organizations is occurring at least annually, pursuant to 68.93(a); and (3) A list of F ederal or state emergency plan requirements to which the stationary source is subject. (b) The owner or operator shall identify whether the facility is a responding stationary

source or a non - responding stationary source, pursuant to §68.90.
For non

- responding stationary sources, the owner or operator shall identify: (i) Whether the owner or operator of the stationary source has confirmed that the local emergency response entity is capable of responding to accidental releases at the stationary source; (ii) Whether appropriate mechanisms are in place to notify public emergency responders whe n there is a need for emergency response; and (iii) Whether a notification exercise occurs at least annually, as required in §68.96(a). For responding stationary sources, the owner or operator shall identify: (i) Whether the LEPC or local response entity r equested the stationary source to be a responding stationary source as required in §68.90(a)(3); (ii) Whether the stationary source complies with emergency response program requirements in §68.95; (iii) Whether a notification exercise occurs at least annua lly, as required in §68.96(a); (iv) Whether a field exercise is conducted every five years and after any reportable accidental release, pursuant to §68.96(b)(1)(i); and (v) Whether a tabletop exercise occurs at least annually, except during the calendar ye ar when a field exercise is conducted, as required in §68.96(b)(2)(i). 27. Amend §68.190 by revising paragraph (c) to add a sentence at the end as follows :***E.O.12866 Review

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Page 229 of 234 68.190 Updates. * * * * * (c) * * * Prior to de

- registration the owner or operator shall meet applicable reporting and incident investigation requirements in accordance with §§68.42, 68.60, and/or 68.81. 28. Amend §68.195 as follows: a. Redesignate paragraph (a) as paragraph (a)(1) and revise; b. Add a new paragraph (a)(2)

. §68.195 Required correc tions. * * * * * (a) New accident history information

— (1) For any accidental release meeting the five

year accident history reporting criteria of §68.42 and occurring after April 9, 2004, the owner or operator shall submit the data required under §68.168, except for root cause information required in §68.42( b)(10), with respect to that accident within six months of the release or by the time the RMP is updated under §68.190, whichever is earlier. (2) Root cause information required under §68.42(b)(10) shall be submitted within 12 months, or by the alternativ e timeframe provided by an implementing agency, as specified in §§68.60(d) or 68.81 (d).
* * * * * 29. Revise §68.200 to read as follows : §68.200 Recordkeeping. The owner or operator shall maintain records supporting the implementation of this part at the stationary source for five years, unless otherwise provided in subpart D of this part. 30. Add §68.205 to read as follows : §68.205 Availability of information to the LEPC or emergency response officials.***E.O.12866 Review

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Page 230 of 234 (a) RMP availability . The RMP required under subpa rt G of this part shall be available to local emergency responders and LEPCs under 42 U.S.C. 7414(c) and 40 CFR Part 1400. (b) Chemical hazard information . The owner or operator of a stationary source shall provide summaries of chemical hazard information for all regulated processes to the LEPC or emergency response officials. Information shall include, as applicable: (1) Information on regulated substance s. Names and quantities of regulated substances held in a process. (2) Accident history information. Provide the five

- year accident history information required to be reported under §68.42. (3) Compliance audit reports. Summaries of compliance audit report s developed in accordance with §§68.58, 68.59, 68.79, or 68.80, as applicable, updated as part of the calendar year submission described in subparagraph (c). The summary shall include: (i) The date of the report; (ii) Name and contact information of auditor and facility contact person; (iii) Brief description of the findings; (iv) An appropriate response to each of the findings; and (v) Schedule for addressing each of the findings, as applicable. (4) Summaries of incident investigation reports develo ped in accordance with §§68.60(d) or 68.81(d), as applicable. The summary shall include: (i) Description of the incident and events leading up to it, including a timeline; (ii) Brief description of the process involved; (iii) Names and contact informatio n of personnel on the investigation team; (iv) Direct, contributing, and root causes of the incident; (v) On

- site and offsite impacts; (vi) Emergency response actions taken; (vii) Recommendations; and***E.O.12866 Review

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Page 231 of 234 (viii) Schedule for implementing recommendations, a s applicable. (5) Inherently safer technology. For each process in NAICS codes 322, 324, and 325, provide a summary of the inherently safer technologies (IST) or inherently safer designs (ISD) implemented or planned, in accordance with §68.67(c)(8). Update the summary, as part of the calendar year submission described in subparagraph (c), and following any revisions prepared in accordance with 68.67(f) and indicate when no revisions are incorporated, as applicable. The summary shall include: (i) The RMP pro cess ID and process description, if provided, of the process affected; (ii) A brief description of the IST or ISD and which IST/ISD type of measure best characterizes it: minimization, substitution, moderation or simplification; (iii) The name of the RMP regulated substance(s) whose hazard, potential exposure or risk was or will be reduced as a result of the implementation and whether the substance is listed as a toxic or flammable. If the chemicals affected are a mixture of flammables, the name “flammable mixture” may be used rather than the individual flammable substance names; and (iv) The date of implementation or planned implementation. (6) Exercises. Information on emergency response exercises required under §68.96. The information shall include sch edules for upcoming exercises, reports for completed exercises as described in §68.96(b)(3), and any other related information. (c) Submission dates and updates . The owner or operator shall update and resubmit summary information every calendar year, inclu ding all applicable information that was revised since the last submission. (d) The disclosure of information classified by the Department of Defense or other Federal agencies or contractors of such agencies shall be controlled by applicable laws, regulati ons, or executive orders concerning the release of classified information. (e) CBI . An owner or operator asserting CBI for information required under this section shall provide a sanitized version to the LEPC or emergency response officials. Assertion of***E.O.12866 Review

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Page 232 of 234 claims of CBI and substantiation of CBI claims shall be in the same manner as required in 40 CFR 68.151 and 68.152 for information contained in the RMP required under subpart G. As provided under 40 CFR 68.151(b)(3), an owner or operator of a stationary so urce may not claim five

- year accident history information as CBI. As provided in 40 CFR 68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute. 31. Amen d §68.210 as follows: a. Revise paragraph (a); b. Redesignate paragraph (b) as paragraph (e) and revise redesignated paragraph (e); and c. Add new paragraphs (b) through (d) and new paragraph (f). §68.210 Availability of information to the public. (a) RMP availability . The RMP required under subpart G of this part shall be available to the public under 42 U.S.C. 7414(c) and 40 CFR Part 1400. (b) Chemical hazard information . The owner or operator of a stationary source shall distribute chemical hazard information for all regulated processes to the public in an easily accessible manner, such as on a company website, including, as applicable: (1) Regulated substances information. Names and quantities of regulated substances held in a process. (2) Safety d ata sheets (SDS). SDSs for all regulated substances located at the facility. (3) Accident history information. Provide the five

- year accident history information required to be reported under §68.42. (4) Emergency response program. Summary information con cerning the source’s compliance with §68.10(b)(3) or the emergency response provisions of Subpart E, including: (i) Whether the source is a responding stationary source or a non

- responding stationary

source;***E.O.12866 Review

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Page 233 of 234 (ii) Name, organizational affiliation, phone nu mber, and e

- mail address of local emergency response organizations with which the owner or operator last coordinated emergency response efforts, pursuant to §68.180; and (iii) For sources subject to §68.95, procedures for informing the public and local

eme rgency response agencies about accidental releases; (5) Exercises. The summary information required under §68.205(b)(6). (6) LEPC contact information. Include LEPC name, phone number, web address, and email addresses of LEPC contacts, as available. (c) S ubmission dates and updates . The owner or operator shall update and submit information required under §68.210(b) every calendar year, including all applicable information that was revised since the last update. (d)(1) Public meetings . The owner or operato r of a stationary source shall hold a public meeting to discuss the chemical hazard information described in paragraph (b), as well as other relevant information at least once every five years. (2) Within 30 days of any accident subject to reporting under §68.42, the owner or operator of a stationary source shall hold a public meeting and provide information required under §68.42, and other relevant information. The five year interval for the next public meeting starts when a meeting takes place after an a ccident or after five years from the date of the last meeting, whichever comes first. (e) The disclosure of information classified by the Department of Defense or other Federal agencies or contractors of such agencies shall be controlled by applicable law s, regulations, or executive orders concerning the release of classified information. (f) CBI . An owner or operator asserting CBI for information required under this section shall provide a sanitized version to the public. Assertion of claims of CBI and s ubstantiation of CBI claims shall be in the same manner as required in 40 CFR 68.151 and 68.152 for information contained in the RMP required under subpart G. As provided under 40 CFR 68.151(b)(3), an***E.O.12866 Review

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Page 234 of 234 owner or operator of a stationary source may not claim five

- year accident history information as CBI. As provided in 40 CFR 68.151(c)(2), an owner or operator of a stationary source asserting that a chemical name is CBI shall provide a generic category or class name as a substitute.