From: Cogliano, Gerain 

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

To: 'Jones, Danielle' <Danielle_Y_Jones@omb.eop.gov>

Cc: Jutras, Nathaniel <Jutras.Nathaniel@epa.gov>; Farber, Glenn <Farber.Glenn@epa.gov>

Subject: Response to Interagency Comments on RMP rule

Attachments:

NATTSPO comments 

0679.pdf

OK MERC 

comments 0641.pdf

EO 12866 

Interagency Commen 

EO 12866 

Interagency Commen 

EO12866_RMP 

Modernization 2050 

Hi Danielle, 

The following RMP-related files are attached:

• The two interagency comment documents with responses included following each 

comment;

• A copy of RFI comments submitted by NASTTPO and the OK SERC in response to Interagency 

Comments #71 and #106; and

• A redline copy of the preamble and reg text with interagency comments and responses 

inserted in the margins.

EPA’s OGC weighed in on select issues (OSHA feasibility vs. practicability comment and the attorneyclient privilege comment) and also gave us some minor edits to clarify the revised LEPC disclosure 

provision.

We are working on revising the RIA to remove the five-year requirement for periodic public 

meetings and only require them after an RMP reportable accident. Most of the costs have been 

updated, but we are now revising the analysis on impacts to small entities and this will take a few 

additional days to complete. We expect to have a revised version of the RIA by the end of this week. 

We will likely need to revise the RFA section of the preamble to reflect RIA revisions, once complete. 

Additionally, we will incorporate revisions to the preamble/reg. text to reflect Federal Register 

format edits while the interagency reviewers review these responses. 

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

Thanks!

Gerain Cogliano

OLEM's Regulatory Steering Committee Representative

Policy and Regulatory Management Team Leader

Policy Analysis and Regulatory Management Staff (PARMS)

Office of Program Management (OPM)

Office of Land and Emergency Management (OLEM)

EPA West Room 4130

Phone Number: 202-566-1929

Fax Number: 202-566-1934

Mail Code: 5103T

cogliano.gerain@epa.gov
Attachment: NATTSPO comments 0679.docs

National Association of SARA Title III

Program Officials

Concerned with the Emergency Planning and Community Right-to-Know Act

October 28, 2014 Electronically Submitted

Re: Accidental Release Prevention Requirements: Risk Management Programs Under

the Clean Air Act, Section 112(r)(7)

Docket No. EPA-HQ-OEM-2014-0328

The National Association of SARA Title III Program Officials (NASTTPO) is made up

of members and staff of State Emergency Response Commissions (SERCs), Tribal

Emergency Response Commissions (TERCs), Local Emergency Planning Committees

(LEPCs), various federal agencies, and private industry. Members include state, tribal, or

local government employees as well as private sector representatives with Emergency

Planning and Community Right to Know (EPCRA) program responsibilities, such as

health, occupational safety, first response, environmental, and emergency management.

The membership is dedicated to working together to prepare for possible emergencies

and disasters involving hazardous materials.

This is obviously a complex and lengthy Request for Information. NASTTPO does not

have information to provide on all elements. The bulk of our input will come on the

issues listed in Section II – D of the Request. We have also noted several items that we

believe are high-priority that EPA should be move rapidly to adopt.

Section II – C – 6: Third-Party Compliance Audits

We believe that the current requirement for owner/operator compliance audits under the

current regulation are not effective. The problems are the lack of a definition of

qualifications for the auditor, guarantees of independence of the auditor, the lack of

specific response requirements to audit findings, the lack of specific standards against

which to audit, and the lack of a requirement for a written report and certification by the

auditor.

While we agree that third-party compliance audits are the most effective approach

because of the independence and hopeful objectivity of third-party auditors, this is the

most expensive approach for the regulated industry. Also, absent definition of the other

factors noted above, we do not believe that mandating third-party auditors alone will be

effective to a presumed objective of reducing accidents. In order to encourage the use of

third-party auditors we propose that the frequency of audits may be extended if they are

used. Also, we believe that any new process must be audited within two years of when

the process is put into operation.
Page 2

We suggest the following:

- EPA should clarify that all covered processes must receive a full audit of all

aspects of the RMP submittal every three years.

- The qualifications of the auditor must be stated in a written report of the audit,

which is to be signed and certified by the auditor.

- The audit report must describe how the independence and objectivity of the

auditor is protected by written corporate policies and organizational structure

unless a third-party auditor is used.

- Companies that use a third-party auditor and evaluate all aspects of regulated

processes (inclusive of inherently safer technology as discussed below) would be

allowed to audit every five years provided that the audit occurred in the year prior

to any RMP update.

- A copy of the auditor’s report shall be kept by the facility to be accessed by EPA

or State inspectors. The report shall automatically be provided to the fire

department and LEPC with jurisdiction over the facility.

- The audit of the emergency response and coordination requirements must include

an interview with a responsible official of the fire department and LEPC with

jurisdiction over the facility. The audit findings on this topic shall be shared with

this official and the LEPC chair who shall have at least two weeks to comment if

they wish. Any such comments must be included as an appendix to the audit

report.

- The audit must expressly identify whether corrective actions are required. The

facility shall, within 60 days, prepare a response and strategic plan to address any

corrective action identified in the report.

- If corrective actions have not been taken within one year of the audit report, that

fact shall be documented in a written report prepared by the facility and shared

with the local fire department and LEPC.

- Ideally EPA would also create an on-line report to be filed as a supplement to the

facility’s RMP that would capture corrective actions not corrected within one

year.

Section II – C –7: Effect of OSHA PSM Coverage on RMP Applicability

We believe that EPA has done a good job in evaluating this issue and identifying the

choices. It is our view that EPA should eliminate Program 2 as that act will reduce

confusion and have the effect of improving human and environmental safety. By placing

the very few current Program 2 facilities into Program 3 a much more level playing field

and greater degree of certainty will be created. We recommend that EPA take this action

if OSHA modifies its retail exemption.
Page 3

Our view on this topic is based primarily on the belief that water and wastewater

treatment facilities with large quantities of regulated chemicals are not inherently safer

than similar industrial facilities with the same chemicals. They should, therefore, be

treated the same and be classified as Program 3 if not eligible for Program 1. Whether or

not these facilities are located in a State with federally-delegated OSHA program should

make no difference.

Section II – D – 1: Safer Technology and Alternatives Analysis

We do not believe that requiring some sort of safer technology analysis is feasible as a

regulatory requirement. EPA has done a good job in pointing out the reasons why this is

true and the difficulties that would be encountered. While we believe that accident

investigations are useful, the sort of “20-20 hindsight” recommendations on safer

technology found in accident investigation reports do not typically flow from a safer

technology analysis conducted without the focus on a specific accident.

More fundamentally, our concern is that a safer technology analysis will not prevent all

accidents. We do not believe that human factors such as an operational bias towards

production rather than safety, or failures to manage change, adequately training for

employees and the failure to follow standards can be eliminated by this analysis. We are

also quite concerned that the use of a safer technology analysis will be used as a

substitute for appropriate emergency preparedness and accident prevention programs.

We agree with EPA’s proposed steps to advance safer technologies. Nonetheless, we

suggest that incentives be provided to adopt the recommendations that EPA will provide.

As we noted in the section on audits, a facility that adopts these recommendations and

conducts third-party audits to determine when these recommendations should be adopted

for both new processes and as part of corrective actions, should receive some benefit.

We believe that benefit should reflect the likelihood that these facilities will benefit from

the analysis and reduce the likelihood of accidents.

The benefit we have in mind is that a third-party auditor would include a section on the

auditor’s review of public accident investigation reports of similar facilities and similar

processes along with materials on safer technology analysis made available by EPA and

OSHA. The auditor would identify corrective actions based upon that review. If the

facility adopted the recommended corrective actions, the frequency of audits should be

extended.

Also, we believe that a facility adopting a strategic plan to incorporate safer technology

recommendations should have an extended period of time to install those

recommendations. We would allow two years for this process before a facility would

have to file the corrective actions supplement to their RMP for safer technology

recommendations.

Section II – D – 2: Emergency Drills to Test a Source’s Emergency Response Program or

Plan
Page 4

No emergency response program or plan can be considered adequate without frequent

exercises and drills to identify gaps and inform program and plan improvements. EPA

must require exercises and drills. These exercises and drills must include local first

responders and the scenarios being exercised must be based upon realistic accident

scenarios. EPA should take this action at the earliest possible opportunity.

We believe that facility employees will always respond to an accident even if their plan is

to run away. It’s absurd in our view to allow a facility that brings hazardous chemicals to

a community to have no responsibility to deal with accidents that have the potential to

impact the community.

An emergency plan should be required of all Program 2 and 3 facilities. It is our position

that few of these facilities now routinely exercise in conjunction with local emergency

responders and that the coordination obligation is ineffective.

In our view coordination is more than simply telling the community what chemicals a

facility possesses. It should mean that a facility must create and adapt emergency plans

and procedures that reflect the capabilities of the local first responders and the

characteristics of the community. In other words, facilities have a responsibility to work

with the community to respond to accidents involving the hazardous chemicals the

facility has brought to the community. That responsibility should require a facility to

work with the community to fill capability and preparedness gaps.

At a minimum EPA should require all Program 2 and 3 facilities to prepare and

coordinate an emergency response plan and exercises/drills that incorporate these

elements:

- How many employees are routinely present in the areas with hazardous

chemicals?

- If “just running” is the intended plan who makes the decision to run, who is

responsible for determining if everyone gets out, where do they go and who is

responsible for the final “head count” so that first responders don’t risk their lives

trying to rescue people that aren’t in danger.

- How are first responders notified that an accident has occurred and that an

evacuation is underway?

- How are neighboring facilities or vulnerable institutions such as schools notified

of the accident and informed on whether they should take protective actions such

as “shelter-in-place” or evacuation?

- Exercises must include communications, coordination with local first responders,

and neighbors as appropriate. All activities, such as evacuations and notification

procedures, should be drilled.

- What is the plan if an injured employee cannot evacuate?
Page 5

- We support the use of PREP or other recognized exercise protocols for facilities

that develop an emergency response plan and anticipate a substantial employee

response to accidents.

- Exercises or drills of notification, communication and evacuation plans should be

conducted annually for all facilities; however, full-scale exercises of all plan

elements need only be conducted every three years for those facilities that develop

emergency response plans.

- After action reports identifying planning gaps must be prepared for all exercises.

- Corrective action to address planning gaps identified in after action reports shall

be addressed by the facility within six months. A follow-up report discussing

how the gaps were addressed shall be prepared by the facility within this six

month period and shall be shared with the first responders and others that

participated in the exercise/drill.

Section II – C –3: Automated Detection and Monitoring for Releases of Regulated

Substances

We believe this is inherently an issue that should be addressed by SERCs and, more

importantly, LEPCs. While notice to the community and first responders is obviously

critical, automation of these systems can be problematic and expensive. As a result, this

should be a requirement that dovetails with the emergency plan coordination requirement.

It should be made clear that coordination includes the obligation for a facility to adapt its

plans to the needs and capabilities of the community.

There are several situations in which a facility might be required to create rapid or

automated notification systems. These will chiefly involve accidents where vulnerable

institutions should take action to protect themselves because first responders lack the

capacity to take preemptive actions or when the accident may have such an immediate

impact that time is of the essence. Examples include the protection of students at schools

in close proximity to regulated facilities or when water intakes or ventilation equipment

must be closed to prevent adverse consequences.

Section II – C – 5: Compliance with Emergency Response Program Requirements in

Coordination with Local Responders

As is obvious from the comments above, this is our biggest concern with the existing

program and should be highest priority for action by EPA.

Facilities should be required to prepare an emergency response plan and develop

emergency response capability unless first response agencies expressly and in writing

have certified that they have the capability and agree to respond to releases of regulated

substances at the facility. If the local first response agencies do not provide such a

certification then facilities should be required to provide an effective response either

using its own employees, mutual aid or contractors. An effective response means a
Page 6

Timothy R Gablehouse

response that will timely mitigate a release so that harm to neighboring facilities, the

public and environment is minimized.

The plans for a facility’s emergency plans, along with any mutual aid agreements or

contractors, shall be provided to the LEPC and fire department with jurisdiction over the

facility. Both the fire department and LEPC may provide comments to the facility and

these comments shall be made available to inspectors evaluating whether the facility has

complied with the regulatory requirement.

Section II – C – 7: Worst Case Scenario Quantity Requirements ...

We believe that EPA should amend the regulation so that numerous small containers

stored together are considered for purposes of determining the worst case scenario. All

such containers stored in one area should be counted. Barriers or other control systems

designed to prevent releases or protect containers from damage may be used to reduce the

quantities counted.

Section II – C – 8: Public Disclosure of Information ...

We are pleased to see that EPA is considering options to make information available to

the public. We believe that the proposals suggested by EPA would be effective in

improving communication regarding hazards between facilities and communities.

Our view is that the RMP executive summary should be posted on the Web by the facility

unless arrangements have been made to have the executive summary posted by the LEPC

or SERC. To make this effective, EPA must better define the elements of the executive

summary so that the name of the chemical, a summary description of the process in

which the chemical is used and a description of the facility’s accident prevention program

are included. Critically, EPA must require that the executive summary include contact

information at the facility from which additional information can be obtained. The

facility may provide the opportunity for a member of the public to review a copy of their

RMP or a referral to the LEPC or EPA reading room.

Thank you.

Director, Government Relations

410 17th St, Ste 1375

Denver CO 80202

(303) 572-0050