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.

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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.

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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

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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?

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- 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 

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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.

Timothy R Gablehouse

Director, Government Relations

410 17th St, Ste 1375

Denver CO 80202

(303) 572-0050

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