### U.S. Environmental Protection Agency


### Documentation of OMB Review Under Executive Order 12866 Title of Action:

Docket#: FRL#: RIN: This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 12866 , titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also: (1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and Regulatory Affairs (OIRA) for review under the E.O., i.e. , the text of the draft regulatory action and, if applicable, an assessment of the potential costs and benefits, as well as additional information for those actions that are determined to be economically significant under the E.O. (Information requirements are described in sections 6(a)(3)(B) and (C)). (2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was subsequently issued, using a method that is complete, clear, and simple. (3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA. 

### For this regulatory action, were substantive changes made to information reviewed under E.O. 12866? [Please check the appropriate answer.] 

### No. [In the docket, include the information identified in item (1) below.] 

### Yes. [In the docket, include the information identified in items (1) – (3) below.] 

### Accordingly, the Agency has included this form and the following information in the public docket for this regulatory action: [Please check the appropriate information.] 

### (1) A copy of the information that was provided to OIRA for review under the E.O. (2) Documentation of any substantive changes made to the draft regulatory text that was submitted to OIRA when compared with what was subsequently made publicly available. The documentation is provided on the pages following this form. Changes made at the suggestion or recommendation of OIRA, if any, are clearly identified through attribution to OIRA. EPA has used one or more of the following methods to note changes: [Select the appropriate option(s).] 

### (a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made. (b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes to show the substantive changes that were made. (c) Note to the file - A document that identifies the substantive changes that were made, with page and paragraph references to the draft regulatory action that was submitted. If you have any questions about this regulatory action or this documentation, please call the contact: Name: Email: Phone: Revised 05/05/2010 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7)

EPA-HQ-OEM-2014-0328 9911-62-OSWER 2050-ZA07

James Belke belke.jim@epa.gov 202-564-8023*** E.O. 12866 Review

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### 1 EO12866_Risk Management Program Request for Information 2050-AZ07 RFI FR doc _20140514 redlined response to interagency comments_2014071 4



### 6560-50-P ENVIRONMENTAL PRO TECTION AGENCY 40 CFR Part 68 [EPA-HQ-OEM-2014-0328; FRL- XXXX-XX9911-62 -OSWER] RIN 2050-ZA07 Accidental Release Prevention Requiremen ts: Risk Management Programs Under the Clean Air Act, Section 112(r)(7) AGENCY: Environmental Protection Agency (EPA). ACTION: Request for information.

________________________________________________________________________ SUMMARY: In response to Executive Order 13650, theThe Environmental Protection Agency (EPA )), in response to Executive Order 13650, requests comment on potential revisions to its Risk Management Program regulations and relate d programs. In this Request for Information (RFI), the Agency asks for information and da ta on specific regulatory elements and process safety management approaches, and the public and environmental h ealth and safety risks they address ., and the costs and burdens they may entail. The EPA will use the information received in response to this RFI to determineinform what action, if any, it may take. DATES: Comments and additional material on this Request for Information must be received on or before [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].*** E.O. 12866 Review

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### 2 ADDRESSES: Submit comments and additional materi als, identified by docket EPA-HQ-OEM2014-0328 by any of the following methods:

 http://www.regulations.gov : Follow the on-line instructions for submitting comments.

 Mail: Send comments to: OSWER Docket, EPA Docket Center, Mail Code 28221T, Environmental Protection Agency, 1200 Penns ylvania Avenue, N.W., Washington DC 20460, Attention Docket ID No. EPA–HQ–OE M–2014–0328. Please include two copies of your comments.

 Hand delivery: Deliver two copies of your comments to: Environmental Protection Agency, EPA Docket Center, Room 3334, 1301 C onstitution Avenue, NW, Washington DC, Attention Docket ID No. EPA–HQ–OEM–2014–0328. Such deliveries are only accepted during the docket’s normal hours of operation and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-HQ-OEM-2014-0328. The EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov , including any personal information provided, unless the comment include s information claimed to be confidential business information (CBI) or other information whos e disclosure is restrict ed by statute. Do not submit information that you consider to be CBI or otherwis e protected through www.regulations.gov . The http://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you submit an electronic comment, the EPA recommends that you include your name and ot her contact information in the body of your comment and with any disk or CD-ROM you subm it. If the EPA cannot read your comment due*** E.O. 12866 Review

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### 3 to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electr onic files should not include special characters or any form of encryption and be free of any defects or viruse s. For additional information about the EPA’s public docket, visit the EPA Docket Center homepage at: http://www.epa.gov/dockets

. Docket: The EPA has established a docket fo r this information request under Docket ID Number EPA-HQ-OEM-2014-0328. All documents in the docket are listed in the regulations.gov index. Although list ed in the index, some informa tion is not publicly available, e.g., CBI or other information whose disclosure is restricted by st atute. Certain other material, such as copyrighted material, will be publicly av ailable only in hard copy. Publicly available docket materials are available eith er electronically in regulations .gov or in hard copy at the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Pu blic Reading Room is (202) 566-1744, and the telephone number for the EPA Do cket Center is (202) 566-1742. FOR FURTHER INFORMATION: For more detailed information on specific aspects of this RFI, contact Mr. James Belke, Chemical Engi neer, United States Environmental Protection Agency, Office of Emergency Management, 1200 Pennsylvania Ave., NW, Washington, DC, 20460; telephone: (202) 564-8023; email: belke.jim@epa.gov

. Electronic copies of this RFI and related news releases are available at EPA’s Web page

at http://www.epa.gov/emergencies . Copies of this RFI are also available at http://www.regulations.gov

. SUPPLEMENTARY INFORMATION: Here are the contents of today’s notice. I. Background A. Statutory Authority*** E.O. 12866 Review

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### 4 B. Executive Order 13650 C. EPA Risk Management Program Regulations II. Discussion and Request for Data, Information , and Comments A. Introduction B. Potential Costs and Economic Effects of Regulatory and Policy Changes C. Items in OSHA’s RFI relevant to EPA’s RMP regulation 1. Update the List of Regulated substancesSubstances a. Adding Other Toxic or Flammable Substances b. Adding High and/or Low Explosives c. Adding Ammonium Nitrate d. Adding Reactive Substances and Reactivity Hazards e. Adding Other Categories of Substances f. Removing Certain Substances from the List or Raising their Threshold Quantity g. ReducingLowering the Threshold Quantity for S ubstances Currently on the List 2. Additional Risk Management Program Elements 3. Define and Require Evaluation of Updates to Applicable Recognized and Generally Accepted Good Engineering Practices 4. Extend Mechanical Integrity Requirements to Cover Any Safety-Critical Equipment 5. Require Owners and Operators to Manage Organizational Changes 6. Require Third-Party Compliance Audits 7. Effects of OSHA PSM Covera ge on RMP Applicability D. Additional Items for which EPA Requests Information 1. Safer Technology and Alternatives Analysis 2. Emergency Drills to Test a Source’s Emergency Response Program or Plan 3. Automated Detection and Monitoring fo r Releases of Regulated Substances 4. Additional Stationary So urce Location Requirements 5. Compliance with Emergency Response Progr am Requirements in Coordination with Local Responders 6. Incident Investigation and A ccident History Requirements 7. Worst Case Release Scenario Quantity Requirements for Processes Involving Numerous Small Vessels Stored Together 8. Public Disclosure of Information to Promote Regulatory Compliance and Improve Community Understanding of Chemical Risks 9. Threshold Quantities and OffsiteOff-site Consequence Analysis Endpoints for Regulated Substances Based on Acute Exposure Guideline Level Toxicity Values 10. Program 3 NAICS Codes Based on RMP Accident History Data 11. The “Safety Case” Regulatory Model 12. Streamlining RMP Requirements I. Background A. Statutory Authority The statutory authority for this action is provided by section 112(r) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412(r)) and by the Emergency Planning and Community Right-*** E.O. 12866 Review

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### 5 to-Know Act of 1986 (EPCRA), (42 U.S.C. 11001 - 11050), which was enacted as Title III of the Superfund Amendments and Reauthorizati on Act of 1986 (Pub. L. 99– 499), (SARA). B. Executive Order 13650 On August 1, 2013, President Obama signed Executive Order 13650, entitled Improving Chemical Facility Safety and Security. The executive orderExecutive Order establishes the Chemical Facility Safety and Security Working Group (“Worki ng Group”), co-chaired by the Secretary of Homeland Security, th e Administrator of EPA, and th e Secretary of Labor or their designated representatives at the Assistant Secret ary level or higher, and composed of senior representatives of other Federal departments, agencies, and offices. The Executive Order requires the Working Group to carry out a numbe r of tasks whose overall aim is to prevent chemical accidents, such as the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17, 2013. Section 6 of the Executive Order is en titled “Policy, Regulation, and Standards Modernization”, and among other things, requires cer tain federal agencies to consider possible changes to existing chemical safety and security re gulations. Specifically, section 6(e)(ii) of the Executive Order requires the Secretary of Labor to issue a RFI designed to identify issues related to modernization of the Process Safety Mana gement (PSM) standard and related standards necessary to meet the goal of preventing major chemical accidents. The Occupational Safety and Health Administration (OSHA) published a RFI responsive to this por tion of the order on December 9, 2013 (78 FR 73756 ).; http://www.gpo.gov/fdsys/pkg/FR-2013-12-09/pdf/2013- 29197.pdf ). The OSHA RFI requested information on 17 potential policy and rulemaking topics relating to modernization of the PSM standa rd and other related OSHA standards.*** E.O. 12866 Review

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### 6 While Executive Order 13650 does not requirespecifically direct EPA to publish a similar RFI, EPA believes it is an appropria te step for several reasons. Fi rst, section 6(a)(i) of the order requires the Working Group to develop options for improved chemical facility safety and security that identify “improvements to exis ting risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations.” With regard to EPA specifically, section 6(c) of the order requires the Administrator of EPA and the Secretary of Labor to “review the chemi cal hazards covered by the Risk Management Program (RMP) and the Process Safety Manageme nt Standard (PSM) and determine if the RMP or PSM can and should be expanded to address additional regulated substances and types of hazards.” Information collected through this action will inform the results of this review. Second, the EPA RMP regulation incorporates by designclosely tracks the accident prevention measures containe d in the OSHA PSM standard because Section 112(r)(7)(D) of the CAA requires EPA to coordinate the RMP regul ation with “any requirements established for comparable purposes” by OSHA . Consequently, the OSHA PSM standard and EPA RMP regulation are closely aligned in content, policy interpretations, Agency guidance, and enforcement. Since the inception of these regu lations, EPA and OSHA have coordinated closely on their implementation in order to minimi ze regulatory burden and avoid conflicting requirements for regulated facilities. For ex ample, 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 pr operly implemented their PSM program. This RFI will allow EPA to evaluate any potential actionupdates to the RMP regulation in parallel to OSHA’s actions onOSHA’sevalu ation of poten tial updates to the PSM standard. Lastly, this RFI*** E.O. 12866 Review

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### 7 addresses a number of added topics in which the Agency is interest ed that are not raised in the
OSHA RFI. Lastly, this RFI addresses a number of added t opics the Agency is interested in that are not raised in the OSHA RFI. Topics are divided into two categories – those addressed in parallel to the OSHA RFI, and additional topics not raised by OSHA. Read ers are encouraged to review the OSHA RFI in detail, as this notice does not al ways reiterate OSHA’s full justification on the same or similar topics. Information collected under this RFI will info rm EPA as it considers what actions, if any, may be necessary to update the RMP regulations. It does not commit the Agency to rulemaking. If the Agency elects to undertake rulemaki ng, it will do so in accordance with established rulemaking procedures as set forth in the Clean Air Act section 307(d), 42 U.S.C. 7607(d). C. EPA Risk Management Program Regulations Both EPA’s 40 CFR part 68 RMP regulation 1 

### and OSHA’s 29 CFR 1910.119 PSM standard were authorized in the Clean Air Act (CAA) Amendments of 1990 (1990 CAAA), in response to a number of catastroph ic chemical accidents occurring worldwide that had resulted in public and worker fatalitie s and injuries, environmental damage, and other community impacts. OSHA published the PSM standard in 1992 (57 FR 6356, February 24, 1992), as required by section 304 of the 1990 CAAA, us ing its authority under 29 U.S.C. 653.

1 40 CFR part 68 is titled, “Chemical Accident Prevention Provisions,” but is more commonly known as the “RMP regulation,” the “Risk Management Program,” or “the RMP.” The RMP may also refer to the document required to be submitted under subpart F of 40 CFR part 68, the Risk Management Plan. This document generally uses RMP or Risk Management Program to refer to 40 CFR part 68. See http://www.epa.gov/oem/content/rmp/ for more information on the Risk Management Program.*** E.O. 12866 Review

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### 8 The 1990 CAAA added to the accidental release provision s under CAA section 112(r). The statute required EPA to develop a list of at least 100 regulated substances for accident prevention and related thresholds (CAA section 112(r)(3)-(5)), authorized accident prevention regulations (CAA section 112(r)(7)(A)), and requ ired EPA to develop “reasonable regulations” requiring facilities with over a threshold quantity (TQ) of a re gulated 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 stag es. The Agency published the list of regulated substances and TQs in 1994 (59 FR 4478, January 31, 1994) (the “list rule”) 2 

### and published the RMP final regulati on, containing risk management requirements for covered sources, in 1996 (61 FR 31668, June 20, 1996 )). 3



### . ,4 

### Both the OSHA PSM standard and the EPA RMP regulation aim to prevent or minimize the consequences of accidental chemical releases through implementation of management program elements that integrate technologies, procedures, and management practices. In addi tion to requiring implementation of management program elements, the RMP regulation requi res covered sources to submit a document summarizing the source’s risk management program – called a risk management plan – to EPA. The RMP regulation required covered sources to comply with its requirements and submit initial risk management plans to EPA by June 21, 1999. The RMP establishes three “program levels” for regulated processes:

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

‐ 91

‐ 74. 3 Documents and information related to development of the RMP regulation can be found in EPA docket number A

‐ 91

‐ 73. 4 The 40 CFR Part 68 RMP regulations apply to owners and operators of stationary sources that have more than a TQ of 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.*** E.O. 12866 Review

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### 9 Program level 1 applies to processes that w ould not affect the public in the case of a worst-case release and with no accidents with specific offsiteoff-site consequences within the past five years. Program 1 imposes limited hazard assessment requirements and minimal prevention and emergency response requirements. Program level 2 applies to processes not elig ible for Program 1 or subject to Program 3, and imposes streamlined prevention program requi rements, including safety information, hazard review, operating procedures, training, maintenance, comp liance audits, and incident investigation elements. Program 2 also imposes additional hazard assessment, management, and emergency response requirements. Program level 3 applies to processes not elig ible for Program 1 and either subject to OSHA's PSM standard under federal or state OS HA programs or classified in one of ten specified North American Indus trial Classification System (NAICS) codes listed at 40 CFR 68.10(d)(1). 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 relating to process safety information, proce ss hazard analysis, operating procedures, training, mechanical integrity, management of change, pr e-startup review, compliance audits, incident investigations, employee particip ation, hot work permits, and contractors. Program 3 also imposes additionalthe same hazard assessment, management, and emergency response requirements that are required for Program 2

. EPA believes the RMP regulation has been effective in preventing and mitigating chemical accidents in the United States and pr otecting human health and the environment from chemical hazards. However, major incidents, su ch as the West, Texas explosion, highlight the importance of reviewing and evaluating current practices and regulat ory requirements, and*** E.O. 12866 Review

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### 10 applying lessons learned to continuously advance process safety management where needed

. This RFI seeks public input on process safety and risk management issues relevant to the RMP regulation to inform potential act ions that may further reduce th e number of chemical accidents within the United States. II. Discussion and Request for Data, Information, and Comments
A. Introduction This section discusses each RMP item and pr ovides specific questions to collect data, information, and comments. The Agency invites th e public to respond to any questions for which they have specific knowledge, data, or informa tion, regardless of their involvement in RMPcovered operations. Note that a 

### t several points in this document, we discuss whether modifying, clarifying, strengthening, or making more explicit a requirement is an appropriate way to address an issue. The solicitation of comment on these matters should not be read as EPA, OSHA, the Department of Justice, or any other federal entity admitting or acknowledgingsuggesting legal ambiguity in the relevant regulations or recognizing ana particular interpretation or action of a facility owner or operato r is permissible underby any regulated entity of either CAA section 112(r) or the RMP regulation. For purposes of this comment solicitation, we may treat a subjectexploration of ways to further clarify par ticular aspects of the current regulations should not be viewedas potentially requiring modifiedan indication that the current language oris inadequate, or in any way undermines our ability to enforce these regulations as an addition to the RMP regulation when we already view the RMP regulation as addressing the subjectwritten

. B. Potential Costs and Economic Effects of Regulatory and Policy Changes As part of this RFI, the Agency is reque sting data and information on the potential costs and economic impacts of amending regulatory requi rements relevant to the various issues*** E.O. 12866 Review

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### 11 identified, including any possible significant economic impact on a substantial number of small entities. EPA requests that commenters discuss potential economic impact s, whenever possible, in terms of quantitative benefits (e.g., reductions in injuries, fatalities, and property damage), costs (e.g., compliance costs , including paperwork burden, or decreases in production), and offsets to costs (e.g., less need for maintenance and repairs , less loss or waste of product ) when responding to the questions in this RFI. EPA also requests that commenters provide data and information on economic effects that any amendments may have on market conditions or services (e.g., market structure and concentration), and in particular, any special circumstances related to small entities, such as potential market -structure disruptions or uniquely high costs that small entities may bear. EPA requests that commenters discuss economic impacts in as specific terms as possible. For example, if a regulatory or policy change would necessitate additional employee training, then helpful information would include the follo wing: the training course s necessary; the types of employees or contractors w ho would receive the training; topics covered; any retraining necessary; and the training costs if conducted by a third-party ve ndor or in-house trainer. The Agency invites comment on the time and level of expertise required to implement potential regulatory or policy changes discussed in this RFI, even if dollar-cost estimates are not available. For discussion of equipment-related costs, EP A requests that commenters estimate relevant factors, such as purchase price, cost of instal lation, cost of equipment maintenance, cost of training, and expected life of the equipment. Th e Agency also requests that, when responding to the questions in this RFI, commenters discuss an y disproportionate impact s to communities near chemical facilities, particularly with resp ect to economically dist ressed, low-income, or predominantly minority communities. For example, disproportionate impacts could be changes*** E.O. 12866 Review

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### 12 that affect the number of local residents empl oyed at a facility or the number of residents affected by a release from a facility. Commenters should also incl ude specific information about any technical feasibility issues or implementati on challenges associated with any of the possible revisions discussed in thie RF I. EPA also welcomes input on which potential amendments to regulatory requirements should be given priority for further de velopment over any others along with the basis for such prioritization. For example, identify those issues posing a greater safety risk than others; those requiring le ss time or effort to amend; those with less costs to industry; or other reasons.

C. Items in OSHA’s RFI rele vant to EPA’s RMP regulation This section discusses items that are the same or related to items in the OSHA RFI that could also apply to or affect the RMP regulation. Each item di scussion is followed by specific questions to collect data, in formation, and comments on each issue.item
1. Update the listList of regulated substancesRegulated Substances Section 112(r)(3) of the 1990 CA AA authorized EPA to devel op a list of at least 100 substances which, in the case of an accidental re lease, are known to cause or may reasonably be anticipated to cause death, injury, or serious adverse effects to huma n health or to the environment. EPA was required to use, but was not limited to, the list of extremely hazardous substances (EHSs) published under the Emergenc y Planning and Community Right-to-Know Act (EPCRA), with modifications as appropriate. Th e initial list was also to include 16 substances specified by statute. EPA was to consider the following criteria: 1) the severity of any acute adverse health effects associated with accidental releases of the substances; 2) the likelihood of accidental releases of the substances; and 3) the potential magnitude of human exposure to*** E.O. 12866 Review

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### 13 accidental releases of the substa nces. The TQ for each substance was to account for the toxicity, reactivity, volatility, dispersibility, combustibilit y, or flammability of the substance, and the amount that if accidentally rel eased could cause death, injury or serious adverse effects on human health. The list may not include any air pollutant for which a national primary ambient air quality standard has been established (except anhydrous sulf ur dioxide which is required by

statute to be included on the list ), nor any CAA title VI stratospheric ozone pollutants. The list may be revised by EPA or by petition and it must be reviewed at least every 5 years. The August , 1999 Chemical Safety Information, S ite Security and Fuels Regulatory Relief Act amended section 112(r)(4) of the C AA to exempt from RMP reporting “a flammable substance when used as a fuel or held for sale as a fuel at a retail facility... because of the explosive or flammable properties of the substa nce, unless a fire or explosion caused by the substance will result in acute adverse health e ffects from human exposure to the substance, including the unburned fuel or its combustion byproducts, other than those caused by the heat of the fire or impact of the explosi on.” However, flammable substances used as a feedstock or held for sale as fuel at a wholesale facility are still covered. The list now consists of two categories of chemicals – 77 toxic substances and 63 flammable substances. The regulated substanc es and TQs are found in 40 CFR 68.130. The list of toxic substances is based on a subset of the EHS acute toxics found in 40 CFR part 355. The RMP list of substances was further limited to gase s and volatile liquids (va por pressure equal to or greater than 10 mm of mercury (Hg) at 25° C), focusing accident prevention regulations on those chemicals that were more likely to become airborne and have an adverse effect beyond a facility’s fence line in the even t of an accidental release.*** E.O. 12866 Review

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### 14 Flammable gases and volatile flammable li quids with the National Fire Protection Association (NFPA) flammability ratings of 4 (i.e ., gases and liquids having a flash point below 73°F (22.8°C) and a boiling point below 100°F ( 37.8°C)) were listed. Only chemicals in commercial production were includ ed on the list and several non-EHS toxic chemicals were listed based on high production volumes and accident history. Most of the sixteen substances mandated by statute were also identified bythrough the listing criteria for toxic or flammable substances. The 1994 final list rule include d as covered chemicals, any “high explosives” which were explosives classified by the Department of Tr ansportation (DOT) as Class 1, Division 1.1 and listed as such in 49 CFR 172.101 (the Hazardous Mate rials Table). Subsequently, the explosives were deleted from coverage in 1998 (63 FR 640, January 6, 1998) 5 

### . due to settlement of litigation with the Institute for Manufacturers of Explosives (IME ) (discussed in more detail below). EPA is requesting information on whether the Agency should modify the list of regulated substances by:

 Adding other toxic or flammable substances

 Adding high and/or low explosives

 Adding ammonium nitrate

 Adding reactive substances and reactivity hazards

 Adding other categories of substances

 Removing certain substances from the list or raising their TQ

5 Documents and information related to deleting explosives from the list of RMP

‐ regulated substances can be found in EPA docket number A

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### 15  ReducingLowering the TQ for substances currently on the list Each of these areas is briefly discussed below.

a. Adding otherOther Toxic or Flammable Substances EPA is interested in identifyingdetermining whether there are other substances that meet the established acute toxicity or flammability criteria for listing, are in commerce, and are present in sufficient quantities that would present a risk to the community if accidentally released. EPA requests information on the following questions: i. What other chemical lists or other s ources of information should be reviewed to identify acutely toxic or flammable chem icals meeting the RMP listing criteria? ii. What chemicals, if any, should EPA add to the RMP list of regulated toxic and flammable substances? Please provide refe rences to the acute toxicity studies, sources of flammability information or summary results of such studies, information showing that the chemical meets the listing criteria or incident examples of incidents related to the hazards associated with the chemicals. iii. Please provide any information on the annual amount of the individual substance manufactured, imported or used, the extent of its availability in commerce and the typetypes of U.S. industries that manufacture, import, or use the substance. iv. What would be the economic impacts of adding other toxic or flammable chemicals to the RMP list of substan ces? Are there any special circumstances involving small entities that EPA should consid er with respect to adding such chemicals to the RMP list of substances? b. Adding High and/or Low Explosives*** E.O. 12866 Review

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### 16 In light of the April 17, 2013 explosion in West, Texas involving ammonium nitrate (AN) fertilizer, EPA is consideringreconsidering whether it should revisit listinginclude explosives on the RMP list. EPA listed high explosives on the RMP lis t in 1994 but removed them on January 6, 1998 (63 FR 640). Some forms of AN formulated as explosives would have been covered under the 1994 RMP list rule, but th e rule would not have include d AN fertilizer, which was not classified as and was not intendedIn addition to function as an explosive. However, the explosion at West Fertil izer highlighted the explosive prope rties of AN fertilizer under certain conditions (heat, shock, contaminati on and/or confinement) and its potential to adversely impact communities if it decomposes and detonates. Thisraising concerns about AN, this accident has shifted attention to how well facilities handling other potentially explosive materials are safeguarding communities from their hazards and whether emergency responders are prepared to deal with accidents involving su ch materials, whether or not th ey are designed to be used as explosives. This subsection of the RFI addres ses explosives other than AN - Further discussion of regulating AN, including AN fertilizer, is covered later in this section. EPA listed high explosives on the RMP list in 1994 but removed them on January 6, 1998 (63 FR 640) (see discussion below regarding se ttlement of litigation w ith IME). The 1994 final RMP list rule (59 FR 4478, January 31, 1994) included Division 1.1 explosives - a category of high explosives defined by DOT classifi cation. DOT Division 1.1 explosives are those that present a mass explos ion hazard, which is an explosion that affects almost the entire load instantane ously. Explosives were initially listed because of their potential

to cause offsiteoff-site effects from blast waves. In addi tion, EPA believed that potential gaps existed in emergency planning and response communication that made risk management planning appropriate for sources with explosives.*** E.O. 12866 Review

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### 17 EPA chose to list only DOT Division 1.1 explosives because EPA's analysis indicated that low explosives, which primarily pose a fire hazard rather than a mass explosion hazard, were less likely to cause a catastrophic event when co mpared to the same quantity of high explosives. The deflagration or burning of a low explosive generates lower pre ssures and is less destructive than the detonation of a high expl osive, although the Agency rec ognized that it may be possible for some low explosives to detonate under unus ual conditions, with e ffects similar to the detonation of a high explosive. The DOT Divisi on 1.1 explosives were listed because of their potential to readily detonate, causing offsiteoff-site impacts. High explosives were listed as a class, rather than as individual substances, because explosives are usually mixtures or formulations rather than specific chemicals. An individual chemical could be a component of a high explosive or a low explosive, or could be non-explosive, de pending on various factors, such as particle size, concentration, and ot her components of the formulation. The Institute of Makers of Explosives (IME) petitioned for judici al review challenging the final listing of high explosives ( IME v. EPA , D.C. Cir. No. 94-1276). Among IME’s objections to the rule , it argued were that existing regulations by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), DOT , Mine Safety and Health Administration (MSHA), and OSHA already adequately regulated DOT Division 1.1 explosives. In a settlement with IME, the Agency agreed to propose deli sting explosives and IM E agreed to undertake certain measures to enhance local emergency response and dismiss its case if EPA ultimately delisted high explosives (61 FR 13858, March 28, 1996). The measures that IME agreed to take included the following:*** E.O. 12866 Review

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### 18  IME member companies would post at their facilities warning signs at all normal access routes stating, ‘‘Danger. Never Fight Explosive Fires. Explosives are stored on this site,’’ and providing an emergency phone number.

 Whenever a new Division 1.1 commercial explosives storage or manufacturing location is established at a tempor ary job site, IME member companies wouldwill notify Local Emergency Planning Committees (LEPCs) and other local authorities (e.g., fire departments and law enforcemen t agencies) of the type, quantity, and location of explosives on site.

 At Division 1.1 commercial e xplosives storage or manuf acturing locations with 5,000 pounds or more of Division 1.1 explosives (n ot including temporar y job sites) where preparation of emergency response plan s is not already required, IME member companies would prepare emergency respons e plans, notify LEPCs and other local authorities of the type, quantity, and locat ion of explosives on site, provide the emergency response plans to local emergency responders, and respond to reasonable requests for information from said authorities.

 IME member companies also would inform their customers and IME would inform other non-IME commercial explosives manu facturers of the contents of the Settlement Agreement and the actions to be taken. EPA proposed to delist high explosives from the RMP list on April 15, 1996 (61 FR 16598) and removed high explosives in a January 6, 1998 final rule (63 FR 640). Both rules have discussion in theirThe preambles ofto both rules discuss the measures IME was to take to enhance local emergency response.*** E.O. 12866 Review

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### 19 Even after the removal of high explosives fr om the RMP list, most forms of explosives (not just high explosives) remainedremain subject to hazardous chemical inventory reporting requirements under EPCRA. The owner or operator of any facility with more than a reporting threshold of any hazardous chemical requiring a safe ty data sheet (formerly material safety data sheet) under the OSHA Hazard Communication Standard is required to submit safety data sheets to their State Emergency Response Commission (S ERC), LEPC, and local fire department, and to annually report their inventor y of hazardous chemicals to their SERC, LEPC, and local fire department. 6 

### This information should better prepare local authorities to res pond to emergencies at facilities that handle hazardous chemicals, including explosives. ATF regulates “explosive materials” which ar e defined as explosives, blasting agents, water gels and detonators. Explosive materials include, but are not limited to, all items in the “List of Explosive Material s,” which is published annually 7



### . ATF regulations 8 

### provide specific construction requir ements for storage of explosive materials in magazines and limit the amount of th ese materials that can be stored in each magazine. Such magazines must be regularly inspected and meet the Table of Distance requirements which specify distances that the ma terials must be stored away from inhabited buildings, public highways, and passenger railways, to ensure an accidental explosion will not produce blast waves that are hazardous to people at distances where the public could be affected. ATF inspects licensed facilities to ensure the safe and secure stor age of explosives , their proper

6 See 40 CFR part 370 7 The 2013 List of Explosive Materials can be found at http://www.gpo.gov/fdsys/pkg/FR

‐ 2013

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‐ 28/pdf/2013

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### 20 inventory and control, and accurate recordkeeping. However, ATF does not inspect or regulate manufacturing processes. 9 

### OSHA regulates the manufacture, keeping, ha ving, storage, sale, transportation, and use of explosives and blasting agents under its Occupational Safety and Health Standards for explosives and blasting agents (29 CFR 1910.109). Section 1910.109(k)(2) of this standard also requires that explosive manufact urers meet the requirements of the PSM standard (29 CFR 1910.119). OSHA regulations also provide construction requirem ents for explosive materials storage magazines and specify minimum distan ces between magazines with explosives and blasting agents, between stores of AN and blas ting agents, and between blasting agents and inhabited buildings, passenger railroads, and public highways. Regulations involving the storage of all grades of AN, including fertilizer grade, but not blasting agents, are found at 29 CFR 1910.109(i). Significant accidents involving explosives have raised questions concerning whether existing safety regulations are ad equate. An April 8, 2011 explosion at Donaldson Enterprises in Waikele, Hawaii, killed five workers who were disposing of fireworks. The U.S. Chemical Safety and Hazard Investigation Board (CSB) inve stigated the explosion and determined that gaps in federal regulations – specifically with re gard to dismantling and disposal of explosives – contributed to the accident 10 

### . The January 7, 1998, explosion at the Sierra Chemical Company’s Kean Canyon explosives manufact uring plant prompted the state of Nevada to develop regulations covering certain expl osives manufacturing faciliti es under the state’s Chemical Accident Prevention Program 11 

### , which is similar to EPA’s RMP regulation.

9 Sierra Chemical Co. Final Investigation Report, CSB, 9

‐ 23

‐ 1988. 10 CSB Report No. 2011

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‐ HI 11 http://ndep.nv.gov/bapc/capp/capmore.html*** E.O. 12866 Review

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### 21 EPA is seeking information relating to the pot ential regulation of explosives under the RMP. EPA requests information on the following questions: i. Should EPA reconsider listing explosives on the RMP list? What are the safety gaps in the current regulatory environmentre gulations and practice (e.g., EPCRA, other federal programs, state programs, and indus try efforts) that ca n best be filled by expansion of the RMP? Are there other approaches for filling any such safety gaps? What type of explosive material s should be covered and why? How many facilitlies manufacture, store or use expl osives and what are the typi cal quantities stored on-site by type of facility or industry? What TQs should be established, and what should be the basis for the TQs ? If EPA were to list explos ives and establish a TQ at 5000 pounds (the same TQ that was established for explosives in the 1994 list rule), how many facilities would exceed that TQ and potentially be regulated ? ii. Are there other incide nts involving the manufacture and processing of explosive materials that should be revi ewed to determine if cove ring these operations under the RMP would decrease the risk of an accidental explosion affecting the off-site communityan off-site community? Does th e presence of explosives impose unique risks on rural, disadvantaged, or otherwise environmentally burdened communities ? iii. Should the RMP regulation apply to manufacturers of explosives, end users, and/or explosive recyclers? iv. If the RMP regulation is amended to cover explosives, should EPA consider establishing requirements for safe separati on distances between explosive materials and public receptors similar to those re quired by ATF and OSHA (see section II.D.4 of this RFI for additional discussion of stationary source lo cation requirements)?*** E.O. 12866 Review

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### 22 What other requirements should EPA consider ? Which if any of these requirements could have prevented or minimized the im pacts of specific historical accidents? v. What would be the econo mic impacts of adding expl osives to the RMP list of substances? Are there any special circum stances involving small entities that EPA should consider with respect to adding expl osives to the RMP list of substances? Does the presence of explosives impose unique risks on rural, disadvantaged, or otherwise environmentally burdened communities? vi. As an alternative to expanding the scope of the RMP, would expanded use of EPCRA information (such as better integration of information on explosive hazards into local emergency plans) and other govern mental and industry programs (including voluntary programs) be able to address safety gaps? What are the advantages and disadvantages of such an approach relative to expansion of the RMP?

c. Adding Ammonium Nitrate : As previously discussed, EPA listed high explosives on the RMP list in 1994 but removed them on January 6, 1998 (63 FR 640). So me forms of AN formulated as explosives would have been covered under the 1994 RMP list ru le, but the rule would not have included AN fertilizer, which was not classified as and wa s not intended to functi on as an explosive. However, the explosion at West Fertilizer ha s highlighted the expl osive properties of AN fertilizer under certain conditi ons (heat, shock, contamination and/or confinement) and its potential to adversely impact communities if it decomposes and detonates. Industry manufactures millions of tons of AN annually in the United States. High-density or fertilizer-grade AN, with Chemical Abst racts Service Registry Number (CASRN) 6484-52-2, is commonly used in fertilizer; low-density or technical-grade AN is used to manufacture*** E.O. 12866 Review

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### 23 explosives or blasting agents. Approximately 80% of AN is used in explosives and blasting agents and 20% is used as a fertilizer. Blasting agents are relatively low sensitivity explosives which cannot be initiated by blasting caps and are unlikely to e xplode except under special conditions. A blasting agent is a fuel plus oxidizer, intended for blasting, and not otherwise classifi ed as an explosive. Blasting agents are frequently formulated with AN as the oxidizer. Ammonium nitrate/fuel oil (ANF O or AN/FO) is a blasting agent widely used in coal mining, quarrying, metal mining, and civil construc tion. Mining and construction sites that use ANFO may not be as likely to have explosions adversely aff ecting the public because they are often remote. AN has an NFPA instability rating of 3, i ndicating it is capable of detonation, explosive decomposition, or explosive reaction; ignition re quires a strong initiating source or heating the substance under confinement. Stored AN is genera lly stable, but explosions of AN can be severe and have resulted in many in juries and fatalities. There are several examples of accidents involvi ng AN. As discussed earlier, on April 17, 2013, an AN explosion at the West Fertilizer Comp any storage and distribution facility in West, Texas involving about 30 tons of AN killed 15 peopl e and injured over 160 others. As an initial action, EPA and its partner agenci es OSHA and ATF issued an updated chemical advisory on the safe storage, handling, and management of AN. 12


### The deadliest industrial accident in United St ates history was an AN explosion in Texas City, Texas, on April 16, 1947. In that case, the in itial explosion of a ship carrying AN, and the

12 Chemical Advisory: Safe Storage, Handling, and Management of Ammonium Nitrate, EPA 550

‐ S

‐ 13

‐ 001, published by EPA, OSHA, and ATF, August , 2013. http://www.epa.gov/oem/docs/chem/AN_advisory.pdf*** E.O. 12866 Review

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### 24 subsequent chain reaction of fire s and explosions in other ships and nearby oil-storage facilities, killed at least 581 people and injured thousands of others. The AN was coated with wax, a combustible material, to prevent caking. New pro cess technologies and safe practices introduced in the 1950s eliminated the use of wax coatings and AN currently produce d for fertilizer use contains less than 0.2 percent combustible mate rial. Ammonium nitrate with more than 0.2 percent combustible substances is now regulated by DOT as an explosive material with specific storage requirements and restrictions in cargo vessels. On September 21, 2001, a massive explosion oc curred in a warehouse at the Azote de France fertilizer factory in Toulouse, France, i nvolving 200-300 tons of AN, which was stored in bulk in a hangar. The explosion resulted in the d eath of 30 people, 2,500 injuries, the destruction of the factory, and an additional 10,000 buildings being heavily damaged. The exact cause of this accident remains unknown. Storage of incompatible ma terial with AN is believed to have been a factor. On December 13, 1994 at Terra Industries in Port Neal, Iowa, AN solution exploded in a neutralizer vessel in a manufacturing process that was in standby mode, causing four deaths 13



### . The blast resulted in major plant damage, incl uding damage to on-site ammonia tanks, creating an ammonia cloud that resulted in the evacuation of 2,500 people. EPA is requesting information on how to best address the safe storage, handling and risk management of AN. Despite its widespread use as an explosive and as a fertilizer, AN explosions are rare, but when they do occur, can result in deaths, injuries, and extensive property damage.

13 http://www.epa.gov/oem/docs/chem/cterra.pdf*** E.O. 12866 Review

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### 25 Currently, AN is not a listed s ubstance under the RMP regulation. 29 CFR part 1910.109(k)(2) requires that the manu facture of explosives shall also meet the requirements contained in §1910.119, thus manufacturing of e xplosives containing AN would be covered under PSM regulations. OSHA does not regulate AN storage and handling by distributors and users under the PSM standard ., but it does regulate certain pro cesses and activities involving AN under other specific standards (see below). Therefore, under federal regulations, AN distributors, such as bulk fertilizer retailers, are not required to implement any RMP or PSM accident prevention program elements (such as conducting a process hazard analyses, developing written operating procedures, etc.), perform an off-site consequence analysis, or develop an emergency action plan or emergency response plan. ATF regulates the storage and handling of AN as an explosive material (either as part of an explosive or as a blasting agent) (27 CFR 555.201-224) . The ATF regulations specify construction requirements for stor age magazines, limitations on th e type and amount of material that can be stored in each type of magazine and minimum distances that must be maintained between AN in explosive materials and public receptors and between AN and explosives and blasting agents. OSHA regulates the storage and, handling , and transportation of AN when it is used in explosives, water slurries, gels or blasting agents (29CFR 1910.109 (a) – (h), ( j), ( k)) or when stored on-site with explosives or blasting agents , including their storage at use sites and mixing and packaging operations. The requirements deta il various procedures and safeguards that must be followed for these operations . The OSHA standard requires minimum specified separation distances between AN and explosives or blasting agents stored on the same site. Construction*** E.O. 12866 Review

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### 26 requirements for buildings and bulk storage bins containing blasting agents (which can contain AN) are also specified.
OSHA also regulates bulk storage of AN over 1000 pounds in a building or structure in the form of crystals, flakes, grai ns, or prills includi ng fertilizer grade, dynamite grade, nitrous oxide grade, technical grade, and other mixtures , but not blasting agents, containing 60 percent, or more, AN by weight , in 29 CFR 1910.109(i ) for storage of AN over 1000 pounds in a building or structure.). This standard limits the dimensions of piles of bagged AN and bulk AN in storage bins, and specifies the conditions for storage and the type of the construction materials for storage bins. The standard does not specify minimum separation distances between stored AN and public receptors such as are required for explosives and blasting agents. The standard requires separation of AN from incompatible or combustible materials and use of fire-resistive building materials if combustible materials are stor ed within a certain distance. A building with more than 2,500 tons of bagged ammonium nitrate must be equipped with an automatic sprinkler system. OSHA CFR 1910.109 (a-h) covers storage, handling and transportation requirements of explosives and blasting agents, including their storage at use sites and mixing and packaging operations. The requirements deta il various procedures and safeguards that must be followed for these operations. Approximately 80% of AN is used in blasting agents and 20% is used as a fertilizer. OSHA’s PSM standard covers some reactive chem icals. Ammonium nitr ate, although it is a reactive chemical (oxidizer) and me t the original criteria that OS HA used to add substances for coverage, was not covered by the PSM standard. The Explosives and Blasting Agents standard is a specification standard ba sed on a consensus standard, while PSM is a performance-based standard and would require employers to put ma nagement systems in place that would include*** E.O. 12866 Review

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### 27 requirements to evaluate hazards and follow indus try recognized best practices. As explained above above, OSHA issued an RFI seeking, amon g other items, comments on potential revisions to its PSM standard and its Explosives and Bl asting Agents standard. The RFI specifically invited comments on safe work practices for storing, handling, and managing ammonium nitrate and on regulatory requirements to improve its appro ach to preventing the hazards associated with ammonium nitrate. OSHA is working to determ ine whether ammonium n itrate hazards are best handled in the Explosives and Blasting Agents st andard, the PSM standar d, or a combination of both, and will pursue any appropriate regulatory changes as expediti ously as possible. As OSHA develops its approach to improve workplace safety associated with ammonium nitrate hazards, EPA will consider if additional action to protect the community is needed to complement OSHA regulations. EPA is considering whether the coverage provided to ammonium nitrate facilities will be sufficient or whether ammonium nitrate should be included in the RMP regulation. Blasting agents are relatively low sensitivity explosives which cannot be initiated by blasting caps and are unlikely to e xplode except under special conditions. Ammonium nitrate/fuel oil (ANFO or AN/FO ) is a bulk industrial explosive widely used in coal mining, quarrying, metal mining, and civil construction. Mining and constructi on sites that use ANFO may not be as likely to have explosions advers ely affecting the public because they are often

remote. Because past AN accidents with adverse effect s off-site, such as blast waves, have typically involved its storage in large quanti ties, EPA could list AN on the RMP list with a high threshold in order to prioritize process safety requirements for those facilities and locations where large amounts of AN are st ored. When EPA had included high explosives on the RMP list, the TQ was based on a trinitrotoluene (TNT) weight equivalent weight ; EPA could*** E.O. 12866 Review

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### 28 determine a threshold amount for AN, based on a TNT-equivalent weight calculation adjusted for AN 14 

### . The RMP requirements for AN could be adjusted to meetestablished at the statutory minima and to tailorwith more specific provisions fortailored to particular types of facilities, e.g., manufacturers, fertilizer distributors and other fa cilities that have larg e amounts of explosives, blasting agents or fertilizers. EPA is aut horized under CAA section 112(r)(5) to establish a greater TQ for, or to exempt en tirely, any substance that is a nu trient used in agriculture when held by a farmer. Therefore, farmers who hold AN for use as a fertilizer could be exempted entirely , in the same way as EPA has done forexempted farmers holding ammonia for use as a fertilizer (see 40 CFR 68.125). Alternatively, under CAA 112(r)(7)(A), EPA could require safe storage practices of solid AN forms similar to thosethe practices required in the OSHA standard for Explosives and Blasting Agents at 29 CFR 1910.109(i) or in th e NFPA 400 Hazardous Materials Code, Chapter 11. Promulgating regulations separate from th e RMP requirements may be more appropriate to cover facilities whose handling of this chemi cal does not involve typi cal manufacturing and processing operations normally seen with chemical s that are hazardous gases and liquids, such as fertilizer distribution facilities. However, ma nufacturers of AN who handle molten and liquid AN in processes involving chemical reactions, at elevated temperature and pressure, or in

14 TNT equivalent

‐ weight calculation is a method for estimating the quantity of an explosive required to produce blast effects at various distances from the source of the explosion. The method uses the scaling law of distances, which relates quantity of explosive material and distance for a given overpressure. For explosives other than TNT, an empirically

‐ derived equivalency factor is used to account for differences between the explosive characteristics of the actual explosive and those of an equivalent weight of TNT. Additional information on EPA’s threshold methodology for high explosives can be found in the Technical Background Document, Development of Threshold Quantities for List of Regulated Substances for Accidental Release Prevention, Clean Air Act Section 112(r). See: Technical Background Document for the Development of Threshold Quantities for List of Regulated Substances for Accidental Release Prevention, Clean Air Act Section 112(r). Original Docket# A

‐ 91

‐ 74, document # III

‐ B

‐ 2, June 21, 1992.*** E.O. 12866 Review

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### 29 process vessels, tanks, pumps and associated control equipment may be more appropriately covered by the RMP regulation. EPA requests information on the following questions: i. Are there safety gaps in the current re gulations for AN that c ould be addressed using regulations under CAA section 112(r)? Should EPA regulate AN under CAA section 112(r) authority to improve chemical safety practices at facilities handling AN? What types of AN and AN facilities should be s ubject to the RMP regulations to prevent chemical accidents involving AN that coul d have adverse effects, such as blast overpressure, on the public, environment and off-site property? Should EPA consider safety regulations to cover the storag e and handling of AN fertilizer only and continue to rely on ATF regulations and OSHA standards to cover AN in explosives and blasting agents? What ro le should voluntary industry programs (such as the one undertaken by IME for high explosives) have in a decision on whether safety gaps exist ? that warrant regulation under the RMP? Please discuss the economic impacts associated with the potential regulation of AN under CAA section 112(r), including any special circumstances involving sm all entities that EPA should consider. ii. Should EPA amend the RMP requireme nts to address the hazard posed by AN? If so, what specific requirements w ould be appropriate for AN? Alternatively, should EPA use its regulatory authority under CAA 112 (r)(7)(A) to require more tailored safety steps for facilities handling AN and list AN at a high threshold to better focus these requirements on fewer holders of large qua ntities that pose the greatest risk? What would be the benefits of regulating AN unde r the RMP regulations as opposed to only*** E.O. 12866 Review

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### 30 maintaining the current SDS and hazardous chemical inventory reporting already required under EPCRA? iii. If EPA were to regulate AN under 40 CFR part 68, what quantity of AN poses a sufficient hazard to be covered? What woul d be the basis for establishing this TQ? iv. Does your facility store, handle, or manage AN? If so, in what form (e.g., solid, liquid) and in what grade (e.g., high de nsity, low density)? If you are not a manufacturer of AN, how does your facility process or use AN? What quantities of AN are typically stored at your facility at one time? v. Are there any other standards, includi ng consensus standards, applicable to AN storage, handling, and management that your facility follows? If so, which ones? vi. Please provide any data or informati on on accidents involving the storage, handling, and management of AN that a ffected people or property. vii. Please provide data on the popula tion surrounding AN sites, including socioeconomic information and other environmental burdens on surrounding communities. viii. If EPA were to regulate AN under CAA Section 112(r), should EPA exempt farmers who store AN for use as a fertilizer? How ma ny farmers would be eligible for such an exemption? Should there be any limits on such an exemption, such as maximum quantity on-site at any given time? Pleas e provide the reasoning and any available data supporting your views. d. Adding Reactive Substances and Reactivity Hazards : Although the chemicals listed in 40 CFR 68.130 were listed based on their toxicity or flammability, a number of them could be consid ered reactive chemicals based on a variety of metrics, including consensus standard sources. For example, the RMP list currently includes*** E.O. 12866 Review

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### 31 three chlorosilanes listed as toxic substances 15 

### . These compounds are included on the list because their levels of acute toxicity based on animal studies met the RMP listing criteria. However, they primarily produce acute toxic effects on exposed populations because of their rapid and intensive reaction with moisture in the air to pr oduce hydrogen chloride, which can cause acute injury to any body ti ssue contacted as well as nasa l, throat, or lung irritation, coughing, wheezing, and shortness of breath. Neverthe less, while certain listed substances such as these are reactive, the RMP list does not spec ifically focus on reactive chemicals. There are other chemicals that do not meet the RMP listing cr iteria, but could potential ly be listed based on the hazards of their react ion byproducts (e.g., other chlorosilanes that produce hydrochloric acid upon release to the air). EPA has long been aware of the hazards associ ated with reactive chemicals. In the January 19, 1993 proposed rule for listing substances (58 FR 5102) , we considered whether to include on the list chemicals whose reactive properti es could cause effects, in the event of an accident, that would impact nearby communities. In order to meet the conditions in CAA section 112(r)(3) for the listing of substances, EPA sought to determine the common physical-chemical characteristics or properties that would be used as criteria to id entify a set of chemicals to be listed and to provide the technical basis for these criteria. For toxic and flammable substances, the listing criteria included inhere nt properties of the chemical s ubstances, such as physical state or boiling point, that are indicators of the poten tial to pose a severe thre at to the community. EPA attempted to evaluate the hazards associat ed with reactive substances and develop an adequate technical basis to determine potential e ffects on the community. One difficulty is that it

15 These include methyltrichlorosilane (CASRN 75

‐ 79

‐ 6), dimethyldichlorosilane (CASRN75

‐ 78

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### 32 is not feasible for national listing decisions to take into account process- and site-specific factors, which can vary widely. EPA has instead addres sed these factors in the accident prevention regulations . (e.g., owners and operators implement h azard controls based on a PHA or hazard review that identifies the specific h azards of their regulated processes). Using criteria from other organizations, for example, an NFPA 4 instability rating of 4 assi gned to materials that are readily capable of detonation, explosive d ecomposition, or explosive reaction at normal pressures and temperatures , provides important information but gives little indication of the potential impact on a community from an accident that takes place inside an industrial facility. The 1993 proposed rule requested comments from the public on approaches that could be used to evaluate the consequences to communities fr om incidents involving reactive substances. However, very few comments were received and no specific methods or listing criteria were identified by commenters. Several commenters su ggested that a small nu mber of highly reactive chemicals, specifically those that have toxic byproducts as a resu lt of degradation or combustion, and have been involved in serious accidents, be added to the list. Several other commenters suggested deferring the listing of reactive substan ces based on the complexity of the technical issues, the lack of a methodology to screen reac tive hazards, and the e xpectation that reactive substances are unlikely to migrate offsiteoff-site

. Serious accidents involving re active chemicals have called at tention to their hazards and raised questions regarding whethe r reactive chemicals are adequately regulated. In response to a 1995 chemical explosion that killed five work ers at Napp Technologies , Inc., in Lodi, New Jersey, OSHA and EPA investigated the accident and concluded in a jointly-issued report 16 

### that

16 EPA/OSHA, EPA/OSHA Joint Chemical Accident Investigation Report

– Napp Technologies, Inc., Lodi, New Jersey (EPA

‐ 550

‐ R

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### 33 the explosion was most likely triggered by an unc ontrolled chemical reaction of water, sodium hydrosulfite, and aluminum powder. However this investigation di d not result in any regulatory action from eitherchanges in OSHA or EPA regulations

. In August 2000, after investig ating a runaway reaction at Morton Intern ational in Patterson, New Jersey that injured nine employees , the CSB initiated a comprehensive review of reactive hazards nationwide and issued a final report 17 

### in 2002 with recommendations to reduce the number and severity of such incidents. Th e report recommended that EPA revise the RMP regulation to address catastrophic reactive hazards th at have the potential to seriously impact the public, including those resulting fr om self-reactive chemicals and combinations of chemicals and process-specific conditions. It also recommende d coverage of chemicals based on a class of highly reactive properties, similar to the way the existing PSM standard defines a class of flammable liquids or gases. The CSB argued that a performance-based ap proach to evaluating reactive hazards would allow for both a comp rehensive analysis and flexibility in implementation, but cautioned that a proper analys is would require expertise in reactivity hazards. CSB also recommended that EPA modify the accident reporting requirements in risk management plans and in “RMP*Info” (EPA’s data base for risk manageme nt plans) to define and record reactive incidents and add the term "r eactive incident" to the four existing "release events" in EPA's current 5-year accident re porting requirements (Gas Release, Liquid Spill/Evaporation, Fire, and Expl osion). According to CSB, structuring the information collection in this way would allow EPA and its st akeholders to identify and focus resources on

17 CSB, Hazard Investigation

– Improving Reactive Hazard Management, U.S. Chemical Safety and Hazard Investigation Board (Report No. 2001

‐ 01

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### 34 industry sectors that experience d the incidents; chemicals and processes involved; and impacts on the public, the workforce, and the environmen t. Consequently, in 2004 EPA amended the format for risk management plan submissions to include uncontrolled chemical reactions on the list of possible accident causes that covered sources may select when completing five-year accident history reports. Since amending the format, 29 reactive chemical incidents have been reported in RMPs submitted to EPA. In total, thes e accidents resulted in zero deaths, 48 injuries, 190 people evacuated, approximately $3 million in off-site property damage, and approximately $33 million in onsite property damage. Processe s in 16 different NAICS codes were involved in these incidents; however, processes in NAICS 325211 (Plastics Material and Resin Manufacturing) accounted for 9 of the incidents. No other NAICS code accounted for more than 3 incidents. One approach to regulating reactive hazards is the approach adopted in the New Jersey Toxic Catastrophe Prevention Act (TCPA), whic h includes a ‘List of Individual Reactive Hazardous Substances,’ as well as a list of ‘Reactive Hazard Substanc es Mixture Functional Groups.’ 18 

### They includeTCPA includes substances with certain f unctional groups and molecular structures that have been identi fied as highly reactive, based on scientific research and accident history. Under the TCPA, covered facilities must determine if any of the chemicals they are intentionally mixing incl ude components on the Functional Group list. If so, then the facility must determine the heat of th e reaction and the corresponding TQ for TCPA coverage. This approach takes into account not only certain specif ic chemicals, but also their overall reactivity in determining the level of coverage.

18 The New Jersey Toxic Catastrophe Prevention Act is the state’s process safety regulation. It adopts the federal RMP requirements, and includes additional state

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### 35 In 2010, the NFPA published the first editi on of its Hazardous Materials Code (NFPA 400). NFPA 400 was subsequently updated in 2 012 (i.e., NFPA 400 Hazardous Materials Code, 2013 Edition) 19 

### . NFPA 400 specifies storage, use, and handling requirements for various categories of hazardous materials, including unstabl e (reactive) solids and liquids, water reactive solids and liquids, and others. EPA could adopt similar requirements as the basis for reactive hazards regulations. EPA is considering including reactive ch emicals on the RMP list and is seeking information on potential approaches to addressing reactive hazards, including the approach used in the TCPA, application of the requirements c ontained in NFPA 400, or others. EPA requests information on the following questions: i. What are the best criteria to use in cl assifying reactive hazards? How do you identify a reactive chemical or a reactive mixture? ii. Should EPA add reactive chemicals to the li st of RMP-covered chemicals in 40 CFR 68.130? If so, which chemicals? What criteria should EPA c onsider using to establish TQs for reactive chemicals? Should EPA add only specific chemicals, or groups of chemicals defined by par ticular chemical characteristics? iii. Should EPA list additional chloro silanes as toxic substances on the RMP list due to its their reactive hazard from formingdue to formation of hydrochloric acid when a chlorosilane is accidentally released into the air and reacts with moisture? iv. If your facility is covered by the New Je rsey TCPA, have those requirements been effective in protecting human health a nd the environment from reactive hazards? Please describe any economic impacts associ ated with TCPA coverage (e.g., costs

19 http://www.nfpa.org/catalog/produ ct.asp?pid=40013&cookie_test=1*** E.O. 12866 Review

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### 36 and benefits, cost savings, shifts in usage of reactive chemicals, special circumstances involving small entities, etc.).

v. Should EPA revise the RMP regulation to us e chemical functional groups similar to those in the TCPA 20 

### to define hazardous reactive mi xtures? If so, which chemical functional groups should EPA use? vi. Does your facility follow NFPA 400 for reactive hazards? If so, please describe the economic impacts associated with follo wing NFPA 400 (e.g., cost of additional equipment, cost of additional training, benefits of quality management, special circumstances involving small entities, etc. ). Is following NFPA 400 an effective way of protecting human health and the environment from reactive hazards? Please explain. vii. Has your facility implemented a reactive-h azards management program other than a program specified by the TCPA and NFPA 400? If so, please describe your facility’s program, whether it protects human health a nd the environment more or less than the TCPA and NFPA 400, whether it is voluntary or mandatory and, if the latter, under what authority, any economic impacts associated w ith the program, and any special circumstances involving small entities. viii. What alternative regulatory approach to TCPA or NFPA 400, if any, should EPA consider using to comprehensively address reactive hazard s? What would be the economic impacts of this approach and w ould there be any special circumstances involving small entities? Are there sp ecific requirements that EPA should

20 The definition of “reactive hazard substance (RHS) mixture” in the TCPA references a list of chemical functional groups specified in N.J.A.C. 7:31

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### 37 consideringconsider adding to the RMP regulations to ensure that owners and operators adequately manage reactive hazards? ix. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving reactiv e hazards not covered under the existing RMP regulation. MightWhat reactive-hazards management requirements in the RMP regulationmight have prevented thethese incidents if they had been included in the RMP regulation ?

e. Adding Other Categories of Substances This section addresses substan ces which are not traditionally classified as highly toxic, flammable, or explosive but that have nonetheless caused or cont ributed to serious accidents. Other categories of substances beyond highly to xic and flammable liquids and gases could cause death, injury, or serious adverse effects to human health or the environment in the event of an accident. For example, certain types of flamma ble and explosive solids and non-volatile liquids can explode and cause blast waves that have the potential to injure pe ople and cause property damage beyond a facility’s fence line. Such expl osions or detonations could involve categories of chemicals not currently regulated as RMP substances or previously discussed in this section as potential additions to the RMP list. Examples of these include organic peroxides, oxidizers, combustible dusts or other flammable solids. EPA requests information on the following questions: i. Should EPA consider adding these examplesorganic peroxides, oxidizers, combustible dusts, flammable solids, or other additional types of chemicals , or are to the RMP list? Are there any particular chemicals bel onging to these or other classes which*** E.O. 12866 Review

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### 38 present a high hazard that could cause advers e effects beyond a facility’s fence line in the event of an accidental release? ii. If a particular new category of chemi cals should be considered for inclusion on the RMP list, what criteria should be used to prioritize the hazard(s ) and determine which chemicals should be listed? iii. If EPA were to add combustible dusts to the lists of covered chemicals, are there categories of dusts, such as agricultural dus ts (e.g., grain dust, pe sticide dust, etc.), that should be excluded? What factors, such as existing handling practices, accident history, and potential risk to surrounding communities should EPA consider in evaluating potential exclusions? f. Removing Certain Substances from the List or Raising Their TQ:their Threshold Quantity EPA is also seeking information on whether certain substances should be removed from the current list of regulated substances. Th ere are six RMP chemicals (four toxic, two flammable) for which EPA has never received a RMP report. The four toxic chemicals are arsenous trichloride CASRN 7784-34-1), cyanog en chloride (CASRN 506-77-4), sulfur tetrafluoride (CASRN 7783-60-0) , and tetramethyl lead (CASRN 75-74-1). The two flammable chemicals are: chlorine monoxi de (CASRN 7791-21-1) and ethyl nitrite (CASRN 109-95-5). EPA’s 2012 Chemical Data Reporting (CDR) information on the production and use of chemicals manufactured or imported into the Unit ed States also showed no facilities reporting any data for these six chemicals, when searched by CASRN 21 

### . EPA’s Envirofacts system 22 

### ,

21 http://www.epa.gov.cdr/ However, manufacturing or production volume data was only required for CDR when 2011 site

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### 39 which contains reporting on chemicals from th e various environmental databases and reporting systems managed by EPA, also did not show any re ports for these six substances, when searched by CASRN. A search of the E-Plan database , which contains EPCRA Tier II Emergency and Hazardous Chemical Inventory reports for most st ates, showed that four of the six chemicals were reported in E-Plan for filing year 2012, but only one facility each repo rted for three of the chemicals and five facilities repor ted for sulfur tetrafluoride. However, E-Plan only contains reports from about 40 states, and for several of these, the database does not contain complete information. The search results show that four of the six chemicals are in commerce, although the Tier II amounts reported on site were below RMP reporting thresholds. One of the sixteen substances mandated by Co ngress for the initial listing of regulated substances for accident prevention was toluene diisocyanate (TDI). TheIn order to ensure that all forms of TDI were listed, the RMP list of toxic substances cont ains three listings representing this chemical, which includesincluding both the 2,4 and 2,6 isomers (also listed as EHSs) and the unspecified isomerisomers or mixture of isomers (not listed as an EHS), all of which have distinct separate CAS Registry numbers , in order to ensure all forms of TDI were covered:. Toluene, 2,4-diisocyanate CASRN 584-84-9 Toluene, 2.6-diisocyanate CASRN 91-08-7 Toluene diisocyanate, unspeci fied isomer CASRN 26471-62-5 23

reported under CDR. Also, small manufacturers (including importers) are generally exempt from CDR requirements if their annual company sales do not exceed certain limits.

22 http://www.epa.gov/enviro/index.html 23 This CASRN is used for the “generic TDI” for any mixture of the 2,4

‐ TDI and 2,6

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### 40 Although the vapor pressure for TDI is relatively low at ambient temperature (< 0.5 mm Hg) and does not meet the vapor pressure listing criteria of ≥ 10 mm Hg for a regulated toxic substance, EPA believed that the language of CAA section 112(r)(3) precluded the Agency from omitting TDI from the initial list of RMP substances. The Senate Report on its version of the
1990 CAAA 24 

### says “the Administrator is not authorized to remove substances from the initial list.” Fifty-three accidents involving TDI have been reported in RMP accident history reports since 1995, but none of these resulted in fataliti es or offsiteThe format of CAA 112(r)(3), which mandates the initial list contain certain ch emicals and requires a more expansive list by rulemaking, first appears in the Senate Bill. Howe ver, the statute itself does not prohibit later deletions of substances that were manda ted for inclusion on the initial list. The final enacted CAA section 112(r)(3) authorizes bo th additions and deletions from the list, in contrast to the version in the Senate Report th at only authorized additions. 25 

### The enacted language is similar to the structure of the hazardous air pollutant (HAP ) “initial list” under CAA section 112(b), which authorizes revisions an d deletions and is cross-referencedin CAA section 112(b)(3) for its revision procedures. Fifty-three accidents invo lving TDI have been reported in RMP accident history reports since 1995, but none of these resulted in fatalities or off-site injuries. Currently the TQ for all th ree TDI listings is 10,000 pounds. EPA is considering whether the TQ for TDI should be higher because its much lower vapor pressure would result in a lower volatilization rate a nd less potential for an air release. The current TQs were assigned based on a ranking scheme using a Level of Concern (LOC) based on acute toxicity and the potential for airborne dispersion. For each chemical, a ranking factor was calculated that equaled the LOC

24 Senate Committee on Environment and Public Works, Clean Air Act Amendments of 1989, Senate Report No. 228, 101st Congress, 1st Session 211 (1989), page 220. 25 See Senate Report at 560 (section 129(c )).*** E.O. 12866 Review

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### 41 divided by an air disp ersion factor (V). Chemicals were assigned TQs of 500, 1,000 Currently the TQ for all three TDI listi ngs is 10,000 pounds. EPA is consid ering whether the TQ for TDI should be higher because its much lower vapor pr essure would result in a lower volatilization rate and less potential for an air release. The current TQs were assigned based on a ranking scheme using a Level of Concern (LOC) based on acute toxicity and the potential for airborne dispersion. For each chemical, a ranking factor was calculated that equaled the LOC divided by an air dispersion factor (V). Chemicals were assigned TQs of 500, 1000 , 2,500, 5,000, 10,000, 15,000 or 20,000 pounds based on the order of magnit ude ranges of the ranking factors. The LOC was based on the Immediately Dangerous to Life and Health (ID LH) level developed by the National Institute of Occupational Safety a nd Health (NIOSH) or an approximation of the IDLH based on animal toxicity data. For ga ses, V = 1, while for liquids, V was based on a volatilization model using the molecular weight and boiling poi nt of the chemical. The TQ methodology is described in detail and the ranking factors for each chemical are provided in the Technical Background Documents for the Development of Threshold Quantities 26 

### , which are available in the public docket fo r this notice. The minimum level of TQ was set at 500 pounds to represent a drum sized container. The highest TQ of 20,000 pounds repres ented typical handling quantities and allowed the range of thresholds to better reflect the relative hazards among the listed toxic chemicals. Applying EPA’s TQ ranking methodology, the ranking factor for TDI was 0.73, which was midrange for the toxic substances assigned the TQ of 10,000 pounds. Other toxic chemicals

26 USEPA. June 21, 1992. Technical Background Document for the Development of Threshold Quantities for List of Regulated Substances for Accidental Release Prevention, Clean Air Act Section 112(r). Original Docket# A

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‐ 74, document # III

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‐ 2. USEPA. January 14, 1994. Technical Background Document Supporting Development of Threshold Quantities for Regulated Substances under Section 112(r) of the Clean Air Act. Original Docket# A

‐ 91

‐ 74, document # V

‐ B

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### 42 assigned the 10,000 pounds TQ had ranking factors rang ing from 0.3 to 0.9. The acute toxicity of TDI is relatively high compared to most of th e other toxic chemicals. The LOC toxicity value of TDI is 0.07 g/m 3 

### (10 ppm) and the LOC toxicity values for the other toxic chemicals range from 0.0025 g/m 3 

### to 4.9 g/m 3 

### (the lower the LOC toxicity value , the more toxic the chemical). Although the vapor pressure of TDI is much less than the cutoff vapor pressure of 10 mm Hg used to select other liquid toxic substances , the air dispersion fact or (V) does not use the vapor pressure at ambient temperature to determ ine the volatilization rate. Instead, the equation for calculating V uses the boiling point of the ch emical to reflect worst case conditions of accidental releases that are like ly to involve heat (e.g., fires, exothermic runaway reactions, or upset process conditions), which cause more rapid volatilization of the liquid. To assign TDI a TQ based on its vapor pressure , a different rationale would have to be used for determining the threshold such as us ing ambient liquid temperature conditions instead of boiling liquid temperatures fo r calculating the air dispersion factor V. EPA is requesting information on whether the methodology for assigning TQs should be changed to account for the much lower vapor pressure of TDI, and if so, information on a rationale for how it should be done. One consideration for retaining TDI on the li st of substances despite its low vapor pressure is that TDI is known as a potent dermal and lung sensitizer. In sensitized individuals, exposure to even small amounts of diisocyanates may cause allergic reactions such as asthmas and severe breathing difficulties. The LOC toxicity value for TDI was based on a 1990 IDLH value of 10 ppm, which has since been revised to 2.5 ppm 27 

### . The Acute Exposure Guideline

27 http://www.cdc.gov/ni osh/idlh/584849.html*** E.O. 12866 Review

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### 43 Level -2 (AEGL-2) for a 1-hour exposu re has been established at 0.083 ppm 28 

### which is a concentration above which it is predicted that the general population, including susceptible individuals, could experience irre versible or other serious, long-la sting adverse health effects or an impaired ability to escape (see section II. D.9 later for further di scussion about AEGLs). However, neither the revised IDHL or AEGL va lues are based on exposur es of individuals or animals sensitized to TDI. Thus, some accidental releases of TDI that would not cause severe acute health effects in most individuals, may trigger breathing problems or severe allergic reactions in sensitized individuals . The sensitizing nature of TDI should be considered when evaluating whether to ra ise the TQ of TDI and perhaps should be considered as a reason for lowering the TQ instead of raising it. One of the flammable chemicals on the RMP list, 1,3-pentadiene ( CASRN504CASRN
504 -60-9), fails to meet the flammab ility criteria discussed earlier in this section. Its inclusion in the RMP list of flammable substances was due to a typographical error in the boiling point of the substance as reported by one reference source. NFPA had listed the boiling point for 1,3- pentadiene as - 43 o C 29 

### , but according to other data sources, it is actually + 43 o C, which is above the cutoff of 37.8 o C for an NFPA flammab ility 4 rating. NFPA has since corrected the boiling point and changed the flammability rating to 3

. 30



### . Therefore, 1,3- pentadiene does not meet the flammability and volatility criter ia for RMP-listed flammable substances.

28 http://www.epa.gov/oppt/aegl/pubs/tsd47.pdf

29 NFPA. 1994. NFPA 325 Guide to Fire Hazard Properties of Flammable Liquids, Gases and Volatile Solids, 1994 ed. National Fire Protection Association, Pg 325

‐ 77.

30 NFPA. 2010. NFPA Fire Protection Guide to Hazardous Materials, 14 th ed., Fire Hazard Properties of Flammable Liquids, Gases, and Volatile Solids. National Fire Protection Association. Pg. 325

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### 44 EPA requests information on the following questions: i. Would it be appropriate for EPA to delete TDI (a substance The Senate Report on its version of the 1990 CAAA 31 

### says “the Administrator is not authorized to remove substances from the initial list.” The format of CAA 112(r)(3), which mandates listing certain chemicals and requires a mo re expansive list by rulemaking, first appears in the Senate Bill. Nevertheless, the statute itself does not address deletions from the initial list. Would it be appropr iate for EPA to delete TDI (a substance mandated by Congress to be included on th e initial RMP list) from the RMP toxic substances list because its vapor pressure does not meet the vapor pressure listing criteria established by EPA? ii. If it is not appropria te to delete TDI, would it be a ppropriate for EPA to continue to list TDI on the RMP list but with a higher TQ for RMP reporting? Should EPA change the methodology for assigning TQs be changed to account for the much lower vapor pressure of TDI, and if so, how should itthis be done? Currently, the TQ for all three TDI listings is 10,000 pounds. iii. If it is not appropriate to delete TDI because it is a sensitizer, should EPA continue to list TDI on the RMP list but with a lower TQ because of its unique toxicity, and if so, what should be the basis for setting a lowered TQ? iv. Are there other listed substances that s hould have a higher TQ? If so, which ones, what are the appropria te TQs, and why?

31 Senate Committee on Environment and Public Works, Clean Air Act Amendments of 1989, Senate Report No. 228, 101st Congress, 1st Session 211 (1989), page 220.*** E.O. 12866 Review

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### 45 v. Should EPA delete from the RMP list any of the six substances for which the Agency has not received any RMP report if the Agency believes that they are not widespread in commerce or only stored in quantitie s well below the RMP TQ? EPA requests any available information about the extent of these six chemicals’ manufacture and use in commerce, including any annual amounts manufactured, imported or used in the U.S. vi. Is there any reason that EPA should not dele te 1, 3-pentadiene from the RMP list as it does not meet the listing criteria for fl ammable substances and was erroneously listed? Are there any other RMP substan ces that are known to be listed based on erroneous data?
g. ReducingLowering the TQThreshold Quantity for Substances Currently on the List : EPA is also seeking information on whether the TQ for any substa nces currently on the list should be reduced: i. Are the current TQs protective of human health and the environment, or are there certain substances for which the TQ is too high? If so, which substances? For such substances, what TQ should EPA establ ish and what would it be based on? ii. What would be the economic impacts of any lowering of the TQ which might be warranted? Are there any sp ecial circumstances involvi ng small entities that EPA should consider with respect to lowering of a TQ?
2. Additional Risk Management Program Elements

. Approaches to chemical process safety ha ve continued to evolve since both the RMP regulation and OSHA PSM standa rd were promulgated. New management system elements and best practices are now being recognized as essentialused to address human health, worker safety and environmental protection. Lessons learne d from data collected in RMP submissions*** E.O. 12866 Review

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### 46 regarding safety management systems have also informed EPA’s perspective on the issue. The Agency is requesting information on the manage ment system elements OSHA has identified in their RFI, but with a focus on their applicability to the RMP requirements, and how they can enhance the protection of human h ealth and the environment. Like OSHA, EPA is considering requiring three elements taken from the Risk Based Process Safety Program recommended by the Ce nter for Chemical Process Safety (CCPS) 32 

### : (1) Measurements and Metrics; (2) Management Review and Continuous Improvement; and (3) Process Safety Competency. A “Measurements a nd Metrics” element would require the facility to establish performance and e fficiency indicators to track the effectiveness of the risk management system and to identify opportunities for improvement of its elements and work activities. This element would guide facilities in measuring the real-time performance of their process safety management systems An exampl e of a measurement and metrics indicator would be to track the frequency of process upsets a nd near-miss accidents. A “Management Review and Continuous Improvement” element would focu s on ongoing ‘due diligence’ management reviews that fill the gap between day-to-day work activities and periodic formal audits. This element would require facilities to regularly ev aluate the management systems in place, as opposed to waiting for an incident to occur, or for scheduled audits to identify deficiencies. A “Process Safety Competency” element would enco mpass three interrelated activities: (1) to continuously improve on knowledge and competency, (2) to ensure appropriate information is available to those who need it, and (3) to consis tently apply lessons learned. The main focus of

32 American Institute of Chemical Engineers, Center for Chemical Process Safety, Guidelines for Risk Based Process Safety , New York, Wiley, 2007*** E.O. 12866 Review

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### 47 this competency element is organizational learnin g, so that the process kno wledge can be applied to situations in order to effectively manage risk. The Agency is also requesting informa tion on two additional management-system elements that were identified by OSHA in their review of relevant safety standards promulgated by other federal agencies. Specifically, the Bure au of Safety and Environmental Enforcement (BSEE) promulgated revisions to their Safety and Environmen tal Management Systems (SEMS II) requirements (78 FR 20423; April 5, 2013) to he lp ensure the safe operations of their regulated facilities. The revi sions included a number of management-system elements not addressed in the RMP regulation. The two elements the Agency is focusing on are a “Stop Work Authority” and an “Ultimate Work Au thority.” In its SEMS II Fact Sheet 33 

### , BSEE describes these elements as follows:

• Developing and implementing a stop work authority that creates procedures and authorizes any and all offshore industry pe rsonnel who witness an imminent risk or dangerous activity to stop work.

• Developing and implementing an ultimate work authority that requires offshore industry operators to clearly define who has the ultimate wo rk authority on a facility for operational safety and deci sion-making at any given time. While the requirements under SEMS II focus on offshore facilities under the jurisdiction of BSEE, the concept of requiring these elements may be applicable to facilities subject to the RMP regulation. Established procedures for any and all employees on the facility to implement a stop work authority when witnessing an activity that creates a threat of danger, and clearly

33 http://www.bsee.gov/Regulations

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‐ Guidance/Safety

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‐ Management

‐ Systems

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### 48 defined requirements establishing who has the ul timate authority on the facility for operational safety and decision making at any given time would also servecould help to better protect human health and the environment. In addition to the management system elemen ts identified in the OSHA RFI, EPA is also interested in receiving public comment on whether there are othe r accident prevention elements that should be considered for inclusion in th e RMP regulation. The Agency notes that both the CCPS Guidelines for Risk Based Process Safe ty and the BSEE SEMS regulations contain additional management system elements not presen t in the RMP regulation. One such element is “conduct of operations” which CCPS defines as “the execution of operational and management tasks in a deliberate and structured manner.” Conduct of operations in cludes a variety of measures such as formal communications betwee n workers, work groups, and work shifts. It also involves establishing clear rules governing access to key process areas, such as control rooms, performing regular tours or rounds to mon itor equipment status and keeping written shift logs of equipment status and ongoing process activ ities, maintaining clear and accurate labeling for process equipment, and maintaining good housekeeping in process areas. Another element contained in the CCPS Guidelines is “process safety culture.” CCPS defines process safety culture as “the combina tion of group values and behaviors that determine the manner in which process safety is managed.” Poor safety culture can lead to accidents by allowing production pressures to overshadow safety concerns, or by limiting the free exchange of important safety information among plant personne l. Safety culture has been implicated in recent serious accidents, such as the August , 2012 accident at the Chevron refinery in Richmond, California. In that accident, the CSB found indica tions that a weak safety culture may have led to the normalization of deviance in the refinery’s mechanical integrity management system.*** E.O. 12866 Review

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### 49 Consequently, the California In teragency Working Group on Refine ry Safety published a report concluding that both the Calif ornia OSHA PSM requirements a nd the California Accidental Release Prevention RMP requirements should be stre ngthened to require Ca lifornia refineries to conduct safety culture assessments at least every three years 34



### . The BSEE SEMS regulations contain requireme nts to conduct a “Job Safety Analysis.” BSEE indicates that the Job Safe ty Analysis (JSA) is an operations/task level hazard analysis technique used to identify risks to personnel associated with thei r job activities. The Agency is requesting public comment on whether these or ot her additional management system elements should be added to the RMP regulation, and whethe r and how these elements relate to prevention of accidental releases. Additionally, the Agency seeks public co mment on whether management system elements that are currently cont ained within the RMP regulation s hould be modified, clarified or strengthened. For example:

 Contractors are increasingly used in a variet y of roles at chemical process facilities, yet the RMP rule imposes fewer safety requirements on contractor owners and operators than on the owners and operat ors of the regulated stationary source . In October 2007, five contractor workers were killed at Xcel Energy, in Georgetown, Colorado, when a fire occurred inside a t unnel at the company’s hydroelectric power

34 California Interagency Working Group on Refinery Safety: Improving Public and Worker Safety at Oil Refineries , California Environmental Protection Agency, February 2014, http://www.calepa.ca.gov/Publicatio ns/Reports/2014/RefineryRpt.pdf

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### 50 plant. The CSB found that inadequate c ontractor safety practices and oversight contributed to the accident 35 

### ;

 The RMP rule requires owner/operators to conduct a Process Hazard Analysis (PHA) for Program 3 processes and a hazard revi ew for Program 2 processes. PHAs and hazard reviews are intended to identify potential equipment malfunctions or human errors that could cause an accidental releas e, and safeguards needed to prevent such malfunctions and errors. However, the rule does not explicitly de scribe the types of failure scenarios or damage mechanisms th at must be considered during PHAs and hazard reviews, and during some complian ce inspections EPA has reviewed PHAs and hazard reviews that did not address failu re scenarios such as natural disasters (e.g., floods, earthquakes, hurricanes, etc.), corrosion, vehicle collisions, and others. Additionally, the rule requir es hazard reviews to be “updated”, and PHAs to be “updated and revalidated” at l east every five years, but does not clearly define what is required in order for a hazard review to be updated or for a PHA to be updated and revalidated. EPA is interested in re ceiving comment on whether PHA and hazard review requirements should be clarified, a nd whether hazard review and PHA updates should be required more frequently than ever y five years, or whether certain events should trigger hazard review or PHA update s prior to the next scheduled 5-year update.

 The Pre-Startup Review element (section 68.67) requires the owner or operator to perform a pre-startup review for new stati onary sources and for modified stationary

35 CSB, Investigation Report

– Xcel Energy Hydroelectric Plant Penstock Fire, U.S. Chemical Safety and Hazard Investigation Board (Report No. 2008

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### 51 sources when the modification is significant enough to require a change in the process safety information. However, the rule does not clearly state what modifications would require a change in process safety information. Also, EPA notes that process unit startup is a significantly more h azardous period compared to normal process operations, and that serious accidents such as the March 23, 2005 explosion at the BP America refinery in Texas City, Texas ha ve occurred during process startup even when no significant equipment modifications were made to the process during the preceding turnaround. EPA requests information on any additional management-system elements or on potentially modifying, clarifyi ng or expanding existing elements , including those discussed in this RFI, which would serve to improve protec tion of human health and the environment. The Agency welcomes data and information on management-system elements from consensus standards, safety organizations, federal standard s, or other sources that could increase process safety if the RMP regulation were expanded to include them. The Agency invites the public to respond to any questions for which they have specific knowledge, data, or information, regardless of their involvement in RMP-re gulated operations. Specifically, EPA requests information on the following questions:

a. Does your facility follow any management-s ystem elements not required under part68 for RMP-regulated operations? If so, please describe the additional managementsystem elements, the safety benefits, any economic impacts associated with following the elements, and any special circum stances involving small entities. b. Would expanding the scope of the RMP regul ation to require additional managementsystem elements, or expanding the scope of existing RMP management-system*** E.O. 12866 Review

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### 52 elements, improve the protection of human health and the environment? Should EPA require safety culture assessments, job sa fety analyses, or any of the other new management system elements described a bove? If so, please describe the elements, the safety benefits, any economic impacts as sociated with expandi ng the scope of the RMP regulation in this way, and any speci al circumstances involving small entities that EPA should consider. Would current staff at a facili ty be able to implement these additional elements or would new staff need to be hired?

c. In systems using management and metrics, how do facilities develop useful leading indicators? Do you track the fr equency of events such as process upsets, accidental releases, and “near miss” incidents? Does tracking such events allow managers and employees to make changes that prevent acc idental releases? What other metrics and indicators do you use, and how do they help prevent releases? d. Would requiring RMP faciliti es to conduct periodic sa fety culture assessments meaningfully strengthen the safety culture incentives that already exist, such as avoidance of deaths, injuries, property a nd environmental damage, production loss, community impacts, damage to company reputation, etc., that may result from accidents? d.e. Would expansion of the RMP employee participation provision to include requirements such as the SEMS II stop-work authority, or other efforts to involve employees in all management-system elements, enhance protection of human health and the environment? e.f. Are there any other management-system elem ents in the existing RMP regulation that EPA should expand or clarify (e.g., a new requi rement that facilities perform a root-*** E.O. 12866 Review

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### 53 cause analysis for incidents under § 68.81, clarify PHA and hazard review requirements, require more frequent P HA and hazard review updates, strengthen contractor requirements, or re quire pre-startup reviews prior to all process startups)? If so, please describe the additional require ments, the safety benefits, any economic impacts associated with e xpanding the RMP regulation in this way, and any special circumstances involving small en tities that EPA should consider. f.g. Are there any data or information on workplace accidents, near misses, or other safety-related incidents that the fa cility could have prevented by following management-system elements not current ly required under the RMP regulation? h. What would be the paperwork burden associ ated with the revisions to managementsystem elements discussed above? What sp ecial skills or trai ning would employees need to implement these elements, includi ng associated reporti ng and record-keeping requirements? What would be the costs of additional reporting and record-keeping requirements, including costs for worker tr aining and any required data management system upgrades?
3. Define and Require Evaluation of Updates to Applicable Recognized and Generally Accepted Good Engineering Practices

. The OSHA PSM standard’s references to recognized and generally accepted good engineering practices (RAGAGEP) are almost identical to those contained in Subpart D of 40
CFR part 68 (i.e., Program 3 Prevention Program). § 68.65(d)(2) requires th e owner or operator to “document that equipment complies with re cognized and generally accepted good engineering practices.” At facilities with “existing equipment designed and constructed in accordance with codes, standards, or practices th at are no longer in general use,” § 68.65(d)(3) further requires the*** E.O. 12866 Review

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### 54 owner or operator to “determine and documen t that the equipment is designed, maintained, inspected, tested, and operating in a safe manner.” These requirements parallel the requirements in paragraphs (d)(3)(ii) and (d)(3)(iii) of § 1910.119, respectively, with th e only difference being that OSHA uses the term “employer” where EPA uses the term “owner or operator.” The RMP rule and PSM standard also contain id entical references to RAGAGEP in § 68.73 / § 1910.119(j) (i.e., Mechanical Integrity). A dditionally, Subpart C of 40 CFR part 68 (i.e., Program 2 Prevention Program) contains references to RAGAGEP in § 68.48 (Safety information) and § 68.56 (Maintenance). EPA requests information on the following questions:

a. What does your facility use as a defi nition for RAGAGEP? Would adding a definition for RAGAGEP to the RMP rule improve understanding of RMP requirements and prevent accidental releases ? If so, what specific definition for RAGAGEP should EPA add to the RMP rule ? What would be the economic impacts of adding such a definition? b. From what sources (e.g., codes, standard s, published technical reports, guidelines, etc.) does your facility se lect applicable RAGAGEP fo r operations covered under the PSM standard?

c. Does your facility evaluate updates to its selected RAGAGEP? If so, how does your facility monitor any updates, and how often do you evaluate them? d. Please provide any data or information on accidents, near misses, or other safetyrelated incidents involving fa ilure to evaluate and/or im plement updates to applicable RAGAGEP for RMP-covered processes. Would requiring employers to evaluate and/or implement updates to applicable RAGAG EP prevent such acci dental releases?*** E.O. 12866 Review

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### 55 e. Should owners or operators covered by the applicable provisions of the RMP regulation be required to ev aluate updates to applicab le RAGAGEP? Should owners and operators be required to comply w ith new RAGAGEP requirements that occur after the owner or operator’s initial complia nce with the applicab le provision of the RMP regulation? How would such updates or new requirements be identified? What would be an appropriate time period in wh ich to conduct this evaluation and/or to comply with updated RAGAGEP? What would be the economic impacts of this change? f. Would a requirement to evaluate updat es to applicable RAGAGEP be more appropriate in another paragraph of the RMP rule? For example, should such a requirement become part of the Process H azard Analysis revalidation requirements at § 68.67(f), or the management of change requirements at § 68.75? How would EPA incorporate such a requirement for Program 2 processes?
4. Extend Mechanical Integrity Requirements to Cover Any Safety-Critical Equipment

. EPA is interested in receiving informati on on whether the scope of the mechanical integrity provisions of the RMP rule should be ex panded to cover the mechanical integrity of any safety-critical equipment, and whether additiona l mechanical integrity requirements should be added to the rule’s provisions. In its RFI, OSHA notes that the mechanical integrity provisions of the PSM standard apply to six specific categor ies of equipment, includi ng pressure vessels and storage tanks, piping systems (including pi ping components such as va lves), relief and vent systems and devices, emergency shutdown systems, controls (including monitoring devices and sensors, alarms, and interlocks), and pumps. While these categories of equipment encompass most safety-critical equipment within regulated processes, during some compliance inspections*** E.O. 12866 Review

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### 56 EPA has observed that facilities have failed to apply mechanical integrity program measures to certain additional types of equipment and systems that could reasonably be judged to be critical to process safety. Examples of such equipmen t would include computer software systems that interact with process components, electrical power systems, and othe r utility systems that interact with pumps, valves, or control systems. EPA notes that the RMP Program 2 maintenan ce requirements, which were intended as a streamlined version of the mechanical integrity requirements for Program 3 processes, apply to all process equipment, rather than being restrict ed to specific categorie s of equipment. This potentially causes the unintended result where certain aspects of a process subject to Program 2 must meet more rigorous maintenance requirements than the same equipment located in a Program 3 process. EPA is interested in re ceiving feedback on whether expanding the scope of the Program 3 mechanical integrity requirements wouldor reducing the scope of the Program 2 maintenance requirements would appropriately address this pote ntial discrepancy. In addition to expanding the scope of the ru le’s existing mechanical integrity provisions to cover any safety critical equipment, EPA is al so interested in whether additional requirements should be added to this section, or whether any ex isting requirements need to be clarified. For example, emergency shutdown systems are one t ype of process equipment covered under the rule’s mechanical integrity provisions. However, the regulation does not e xplicitly require that all covered sources install em ergency shutdown systems. EPA requests information on the following questions:

a. Should EPA amend the mechanical integrity pr ovisions of the RMP rule to explicitly cover all safety critical process equipment? If so, what type(s) of equipment? Did you identify safety-critical equipmen t not explicitly covered under § 68.73? If so,*** E.O. 12866 Review

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### 57 how did your facility determine that the equipment was safety-critical, and does your facility treat the equipment as if it were RMP-covered for safety or other reasons? Did you identify the equipment as safety -critical through an RMP process hazard analysis? b. Please provide any data or information on acci dental releases, near misses, or other safety-related incidents related to the mechanical integrity of safety-critical equipment not explicitly covered under § 68.73.

c. Would expanding the scope of § 68.73 to explicitly cover the integrity of all equipment critical to process safety ma ke it more likely to prevent accidental releases? d. Should EPA add additional requirements to the mechanical integrity provisions, or clarify any existing provisions? For example, should the Agency require that certain types of covered facilities install emergency shutdown systems, such as redundant power supplies, emergency flares, vents, or scrubbers, etc., in order to prevent accidental releases resulting from uncontrolled emergency shutdowns?

e. Are there any other provisions of this section that should be enhanced or clarified? Does labeling § 68.73 as “Mechanical Integrity” ca use owners and operators to disregard or neglect the maintenance, functionality, or integrity of process components that would not typically be c onsidered “mechanical” components, such as electrical and computer systems? f. What would be the economic impacts of revi sing the mechanical integrity provisions as discussed above? Are ther e any special circumstances i nvolving small entities that*** E.O. 12866 Review

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### 58 EPA should consider with respect to revisi ng the mechanical integrity provisions of the RMP?
5. Require Owners and Operators to Manage Organizational Changes

. In its RFI, OSHA notes that while the PSM st andard requires employers to establish and implement written procedures to manage change , including all modifications to equipment, technology, procedures, raw materials, and proce ssing conditions other than replacement in kind, the standard does not explicitly require employers to follow management-of-change procedures for organizational changes, such as changes in management structure, budget cuts, or personnel changes. However, OSHA highlights a policy inte rpretation indicating that it is OSHA’s view that the PSM standard does cove r organizational changes if the changes have the potential to affect process safety. Additionally, OSHA not es the 2005 BP Texas City Refinery accident, where the CSB identified a lack of organizational management of change as a significant causal factor in the accident. The RMP rule contains management of ch ange requirements for Program 3 processes (see § 68.75) that are virtually identical to the PSM st andard. Therefore, EP A is also interested in receiving public comment on whether the RMP rule’s management of change requirements should be expanded to include manage ment of organizational changes. EPA requests information on the following questions:

a. What do you consider to be an organizationa l change within the context of process safety management practices? For exampl e, would you consider the following, or similar, changes to be organizational change s: reducing the number of operators in a shift; changing from 5-day to 7-day ope rations; changing from 8-hour to 12-hour operator shifts; replacing a unit manager; reducing the facility operations or*** E.O. 12866 Review

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### 59 maintenance budget; relocating a technical group to a remote corporate location; changing a supervisory or compensation stru cture; or hiring cont ractors to do work formerly performed by employees of the regulated facility? Are there other examples of organizational changes that may be re levant to safety management practices? b. If your facility has establis hed and implemented written procedures for management of organizational changes, please describe any economic impacts associated with the procedures. Please note any implementation cha llenges that may be associated with requiring that such procedures be developed and followed.

c. Would clarifying § 68.75 with an explicit requireme nt that employers manage organizational changes prevent accidental releases? What would be the economic impact of such a clarification? Are ther e any special circumstances involving small entities that EPA should consider with respect to this option? d. Please describe any organizati onal changes made in your facility that have had the potential to affect proce ss operations. Were management-of-change procedures followed before making the changes?

e. What do you consider to be the best safe ty practices concerning management of organizational change? f. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents involving the failure to manage organizat ional change. Would following management-of-change procedures under § 68.75 have prevented these incidents?
6. Require Third-Party Compliance Audits

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### 60 Sections 68.58 and 68.79 of the RMP regulati on (Program 2 and 3 Compliance Audits) are almost identical in language to that f ound in 1910.119(o) of the OSHA PSM standard, with PSM’s focus on worker safety and RMP’s on prot ecting human health an d the environment. Both section 68.58 and 68.79 require that “the owne r or operator shall audi t the compliance with the provisions of the subpart at least every th ree years.” In addition, both require that “the compliance audit shall be conducted by at leas t one person knowledgeable in the process.” Neither OSHA nor EPA requires empl oyers to use a third-party in conducting compliance audits. There may be advantages to third-party au dits. For example, OSHA’s RFI discusses CSB’s findings concerning a lack of rigorous compliance audits in the 2005 BP Texas City Refinery explosion accident. OSHA’s settlement with BP Texas City required BP to retain a third-party compliance auditor with adequate experience 36 

### . The CCPS argues that experienced third-party auditors, like thos e provided by consulting compan ies, can provide the most objectivity 37



### . Additionally, BSEE’s Safety and Environmenta l Management Systems (SEMS) standard, 30 CFR 250, Subpart S, requires th at audits be conducted by indepe ndent third-parties subject to BSEE approval, or to avoid conflic t of interest, personnel that are considered to be qualified by the employer. In their revisions to the SE Ms II final rule, BSEE disc ussed its third-partyauditing requirements. EPA seeks information on whether to revi se 40 CFR 68.58 and 68.79 to require facility owners and operators to use a third-party for compliance audits , on whether requiring a thirdparty auditing process would increase protection of human health and the environment, and on

36 United States of America Occupational Safety and Health Administration, BP Products North America Inc. Settlement Agreement, September 21, 2005 37 American Institute of Chemical Engineers, Center for Chemical Process Safety, Guidelines for Risk Based Process Safety, New York, Wiley, 2007*** E.O. 12866 Review

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### 61 whether the existing compliance au dit requirements are sufficiently clear or if changes should be made to strengthen the audit requirements. Specifically, EPA requests information on the following questions:

a. Does your facility use a third-party fo r conducting compliance audits under § 68.58 and § 68.79 for safety or other reasons? What was the basis for that decision? How has it affected the overall safe ty record of your facility? b. Please provide any data or information on workplace accidents, near misses, or other safety-related incidents that could have been prevented by conducting more effective compliance audits for operations covered under § 68.58 and § 68.79. What were the deficiencies in those audits? Were the a udits in question condu cted by in-house staff or a third party?

c. Would revising § 68.58 and § 68.79 to require owners and operators of RMPregulated facilities to use a third-party fo r compliance audits help prevent accidental releases? What would be the economic impacts of revising § 68.58 and § 68.79 in this way (e.g., typical consultant fees, ad ditional work hours required, special circumstances involving small entities, etc.)? d. Should EPA revise § 68.58 and § 68.79 to require owners and operators to use compliance auditors (internal or third-part y) with certain minimum credentials or certifications? If so, what minimum creden tials or certifications should the Agency require?

e. How should owners/operators of RMP-regulat ed facilities address the findings of the third-party auditor? Should EPA amend the RM P rule to require owners/operators to document how they addressed each of the fi ndings of the third-party auditor? Should*** E.O. 12866 Review

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### 62 a timeframe for addressing those findings be included in the RMP regulation? Should EPA include a procedure for how an owner/ operator may appeal the findings of the third-party auditor? f. Should EPA require facilities that have incidents or near misses to conduct a full compliance audit under § 68.58 or § 68.79, as appropriate ? Would such a requirement create a perverse incentive to underreport incidents or near misses ?
g. During compliance inspections at multiple-process sources, EPA inspectors have noted that some owners or operators have audited only a subset of covered processes at the source. Should EPA clarify § 68.58 and § 68.79 to explicitly indicate that all covered processes must receive a full comp liance audit at least every three years? h. Does the identity of the a uditor (e.g., in-house, contractor, professionally-certified, party licensed by EPA) affect the credibility of the audit for potentially impacted communities?
7. Effects of OSHA PSM Covera ge on RMP Applicability

. RMP Program 2 applies to processes not eligib le for Program 1 or subject to Program 3, whereas Program 3 applies to processes not eligib le for Program 1 and either subject to OSHA's PSM standard under federal or state OSHA programs or classified in one of ten specified NAICS codes (see section II.B.10 for a listing of Program 3 NAICS codes). A review of the current RMP national database indicates that approxima tely 5360 RMP facilities have reported Program 2 processes within their RMP (i n most cases, these facilities have reported a single covered process). Approximately 4000 (75 percent) of th ese are bulk agricultural chemical distributors such as West Fertilizer. These facilities gene rally store large quantitie s of anhydrous ammonia, as well as other agricultural chemicals, for distribution or sale. Although the presence of*** E.O. 12866 Review

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### 63 anhydrous ammonia above an RMP TQ in a proce ss would normally make that process subject to both Program 3 requirements (assuming it did not qualify for Program 1 by virtue of its remote location and lack of accident history) as well as OSHA PSM, these facilities generally claim that they are exempt from the OSHA PSM standard, and theref ore eligible for RMP Program 2, based on the OSHA “retail facili ty” exemption in 29 CFR 1910.119(a)(2)(i). In its RFI, OSHA has requested information on whether that Agency should change its enforcement policy for retail facilities. OSHA notes that its current application of the PSM exemption for retail facilities is inconsistent with the normal meani ng of “retail” and the explanation of the purpose of the exemption provided in the preamble to the PSM standard. The OSHA RFI states: “As stated in the preamble, OSHA chose to exclude retail facilities from PSM coverage because the limited cont ainer, package, or allotment sizes of the chemicals typically found at these facilities do not present the sa me safety hazards as those encountered at establishments working with large, bulk quant ities of materials.... As a result of increased workplace hazards associated with large, bulk quantities of highly hazardous chemicals, OSHA believes that only retail-trade facilities liste d in NAICS sectors 44 and 45 that sell highly hazardous chemicals in small containers, packages, or allotments to the general public qualify for the retail-facilities exemption in 29 CF R 1910.119(a)(2)(i).” If OSHA were to change its policy such that only fac ilities selling small containers, packages, or allotments to the general public w ould qualify for the retail facilities exemption, EPA believes that virtually every bulk agricu ltural chemical distribut ion facility process currently claiming Program 2 eligibility under th e RMP regulation would henceforth be subject to Program 3 (unless the process were to meet Program 1 eligibility criteria).*** E.O. 12866 Review

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### 64 Of the remaining (i.e., non-agricultural) Pr ogram 2 processes, ove r 70 percent are water or wastewater treatment facili ties located in states without federally-delegated, state-run occupational safety and health programs. Thes e facilities are genera lly not subject to PSM requirements because they are operated by stat e or municipal government employees, who are not subject to federal OSHA standards in states without delegated OSHA programs, (i.e., federal OSHA only regulates private empl oyers). It is a peculiarity of the RMP regulation that two identical RMP-covered water or wastewater treatmen t plants – one located in a state with a state OSHA program and the other in a state without a state-delegate d OSHA program – are subject to different levels of accident prevention requi rements under the RMP rule. Non-PSM-covered water and wastewater treatment facilities are no t classified as Program 3, by definition. Water and wastewater treatment faciliti es are covered under the RMP regul ation due to the presence of large quantities of highly toxic substances, such as chlorine and sulfur dioxide. Processes in private industry sectors involving similar quanti ties of these chemicals are virtually always subject to Program 3 as a result of their risk to nearby receptors. EPA is interested in receiving public comment on whether RMP-covered municipal water and wastewater plants that are not eligible for Program 1 should also be subject to RMP Program 3, regardless of whether or not they are located in a state with a federally-delegated OSHA program. Other than bulk agricultural chemical dist ributors and water and wastewater treatment facilities, there are fewer than 400 RMP facilities currently re porting Program 2 processes to EPA. Of these, EPA believes that approximately half are either non-agri cultural bulk chemical distributors that would also become Program 3 in the event that OSHA were to restrict eligibility for its PSM retail exemption, or processes that incorrectly reported as Program level 2 in their RMP (i.e., processes that are actually already s ubject to Program 3). In summary, if OSHA were*** E.O. 12866 Review

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### 65 to restrict eligibility for its retail exemption to facilities selling small containers, packages, or allotments to the general public, and EPA we re to require all RMP-covered water and wastewater treatment plants not eligible for Pr ogram 1 to comply with Program 3, EPA believes that there would be approximately 200 RMP-cove red processes nationwide that would remain eligible for Program 2. In light of these facts, EPA invites co mment on whether it should modify Program 2 eligibility criteria, or alternativel y, eliminate Program 2 and require all formerly Program 2 processes to comply with Program 3 or Program 1 requirements 38



### . EPA requests information on the following questions:

a. Do you currently operate a f acility with Program 2 c overed processes? Please indicate what type of Program 2 proce ss your facility operates. Do you implement accident prevention measures that go beyond RMP Program 2 for this process? If so, why? What additional preven tion elements do you use? Do you believe Program 2 requirements are necessary for the safe operati on of this process? Do you have any Program 2 processes that may be adequately managed under Program 1? Please explain the basis for your views. b. Do you operate a water or wastewater trea tment plant that is subject to the RMP regulation? If so, what level of accide nt prevention requirements do you believe are warranted for such facilities? If you ope rate a Program 2 process at a water or wastewater treatment plant, how much additional burden would be involved in implementing the additional RMP elements required for Program 3 processes?

38 This would mean that formerly Program 2 processes would henceforth be subject to the 5 Program 3 management system elements not required under Program 2 (i.e., Management of change, Pre

‐ startup review, Employee participation, Hot work permits, and Contractors), as well as the more rigorous versions of the 7 Program 3 elements for which there are Program 2 analogs (e.g., Mechanical integrity under Program 3 vs Maintenance under Program 2).*** E.O. 12866 Review

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### 66 c. Should RMP-covered municipal water and wastew ater plants that are not eligible for Program 1 always be subject to RMP Program 3, regardless of whet her or not they are located in a state with a Federally-de legated OSHA program? Why or why not? d. If OSHA restricts its retail exemption to facilities selling regulated substances in small containers, should EPA eliminat e RMP Program level 2 entirely or alternatively, modify Program 2 preven tion elements or otherwise change the eligibility criteria for Program 2? If so, why?

e. Would eliminating Program level 2 simplify rule compliance for the regulated universe and improve human and environmenta l health and safety, or does the current three-tiered prevention program framewor k under the RMP provide an appropriate level of protection? f. What would be the economic impacts of modi fying or eliminating Program level 2? Are there any special circumstances involvi ng small entities that EPA should consider with respect to modifying or eliminating Program 2?
D. Additional Items for Whichwhich EPA Requests Information This section discusses items that were not prev iously raised in the OSHA RFI. Each item discussion is followed by specific questions to collect data, information, and comments on each issue.
1. Safer Technology and Alternatives Analysis

. EPA has recognized the importance of considering safer alternativetechnology and alternatives techniques 39 

### that may result in improved proce ss safety. EPA’s existing guidance 40

39 In this document, “safer technology and alternatives” is intendedrefer to encompass various similar terms including inherently safer technology, inherently safer processes, and the likerisk reduction strategies developed through an analysis using a hierarchy of controls

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### 67 on the “general duty clause” in CAA section 112( r)(1) states that, “The owners and operators should try to substitute less hazardous substa nces for extremely hazardous substances or minimize inventories when possible. This is the usually the most effective way to prevent accidents and should be the prio rity of a prevention program.” When EPA issued the RMP rule, we noted, “Good PHA techniques often reveal o pportunities for continuo us improvement of existing processes and operations. EPA encourages sources to continue to examine and adopt viable alternative processing tec hnologies, system safeguards, or process modifications to make new and existing processes and operations inherently safer.” 41 

### Additionally, the structure of the applicability provisions of the RMP rule, with TQs, encourages minimizing the presence of regulated substances in processes. T hus, EPA’s historic approach to safer alternatives under CAA section 112(r) has been to support and encourage them but not mandate their use or analysis 42 

### technology and alternatives under CAA sect ion 112(r) has encouraged many chemical plant operators to introduce safer technology and a lternatives to help redu ce the overall risk of their facilities but has not mandated their use or analysis. As we noted in the preamble to the 1996 final RMP rule, “Application of good PHA techniques often rev eals opportunities for continuous improvement of existing processes an d operations without a separate analysis of alternatives” (61 FR 31674, June 20, 1996). In addition, in CAA Section 112(r) enforcement cases, facilities have occasionally entered into consent agreements involving implementation of safer alternatives. As a result of the Executive Order 13650 Report for the President 43 

### , EPA and

40 http://www.epa.gov/emergencies/do cs/chem/gdcregionalguidance.pdf 41 See 61 FR 31700. 42 In CAA Section 112(r) enforcement cases, facilities have occasionally entered into consent agreements involving implementation of safer alternatives. 43 Chemical Facility Safety and Security Working Group, Executive Order 13650 Report to the President

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### 68 other agencies will be considering various additi onal actions related to safer technologies and alternatives

. In July of 2012, a coalition representing 54 or ganizations and indivi duals petitioned EPA to use its rulemaking authority under CAA section 112(r)(7)(A), and to issue guidance under the general duty clause in section 112(r)(1) to “to require the use of inherently safer chemical processestechnologies , where feasible, atby facilities that use or store hazardous chemicals .” The petioners also requested that “pending completion of a rulemaking under section CAA 112(r)(7)(A), EPA revise its guidance concerning th e enforcement of the Clean Air Act’s general duty clause, section 112(r)(1), 42 U.S.C. § 7412(r)(1), to make clear that the duty to prevent releases of extremely hazardous substances includes the use, where feasible, of safer technologies to minimize the presence a nd possible release of hazardous chemicals” 44 

### . While EPA shares the petitioner’s goal of preventing ha zardous chemical releases and minimizing their risk to communities, the Agency requests additional information on the best wayspossible approaches to promotepromoting risk reduction through a safer technology and alternatives approach

. A July 2010 Department of Homeland S ecurity (DHS) report prepared by CCPS 45 

### described inherently safer technology (IST) as a philosophy and an iterat ive process, including eliminating a hazard, reducing a hazard, subs tituting a less hazardous material, using less hazardous process conditions, and designing a process to reduce the potential for, or consequences of, human error, equi pment failure, or intentional harm. It stated that there is no clear boundary between IST and other strategies, th at ISTs are relative and can only be described

44 https://www.documentclou d.org/documents/404584

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### 69 as inherently safer when compared to a diffe rent technology, includi ng 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 re gard to some hazards and inherently less safe with regard to others, the decision process must c onsider 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 ther e is currently no consensus on e ither a quantification method for IST or a scientific as sessment method for evaluation of IST options. The CCPS has also published a guideline book 46 

### intended to provide tools and guidance on approaches to implementing inherent safety. Among other information, the book contains an extensive checklist intended to assist industrial faci lities with reviewi ng existing hazards and their safeguards, evaluating the f easibility of inherently safer alternatives, and documenting the results of this analysis. A 2012 National Academy of Sciences report 47 

### found that while inherently safer process assessments can be valuable components of proc ess safety management, inherently safer process assessments will not always resu lt in a clear, well-defined, an d feasible path forward. Although one process alternative may be inherently safer with respec t to one hazard—toxicity of byproducts, for example—the process may present othe r hazards, such as an increased risk of fire or more severe environmental impacts. Choosing between options for process design involves considering a series of tradeoffs and de veloping appropriate combinations of inherent, passive, active, and procedural safe ty systems to manage all hazards.

46 American Institute of Chemical Engineers, Center for Chemical Process Safety, Inherently Safer Chemical Processes: A Life Cycle Approach, Second Edition, New York, Wiley, 2009 47 http://dels.nas.e du/resources/static

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### 70 There are some state and local governmen ts that have included inherent safety requirements in their regulations. An IST Review Rule was adopted under the New Jersey TCPA program in May 2008. It requires IST review s of all facilities covered by the TCPA by evaluating the four IST principles: minimiza tion, substitution, modera tion, and simplification. The rule includes a checklist deve loped under the direction of the New Jersey Domestic Security Preparedness Task Force. The New Jersey Depa rtment of Environmenta l Protection recommends three methods for IST analysis 48 

### : (1) reviewing and completing a checklist containing a number of practical inherent safety c onsiderations, (2) avoidi ng a particular hazard at a part of the process by employing a particular inherently safe ty strategy and (3) integrating IST into the facility’s PHA study. A facility must determine thean identified alternative’s feasibility, and must provide written justification based on bot h qualitative and quantit ative evaluations of environmental, human health and safety, legal, technological, and economic factors if it decides not to implement it. For IST alternatives implemented, an implementation schedule must be provided. A January, 2010 report prepared by th e New Jersey Department of Environmental Protection to summarize the DepartmentsDepartment’s review of 85 IST reports indicated that approximately 48% of facilities reported that they had implemented or scheduled to implement IST measures as a result of conducting the IST review

. 49



### . California’s Contra Costa County’ s Industrial Safety Ordinance 50 

### requires stationary sources to consider IST in the development and analysis of mitigation systems resulting from a process hazard analysis for each covered process, and in the design and review of new processes and facilities. The stationary s ource must select and implement inherently safer systems to the

48 See: http://www.nj.gov/dep/rpp/brp/t cpa/downloads/IST_guidance.pdf ; http://www.njwec.org/PDF/Fact sheets/CS_IST_F actSheet.pdf 49 See: http://www.nj.gov/dep/rpp/brp/t cpa/downloads/IST_SUMWEB.pdf 50 See: http://cchealth.org/hazmat/pdf/iso /2006_iso_official_code_complete.pdf*** E.O. 12866 Review

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### 71 greatest extent feasible, documenting in detail a determination that an inherently safer system is not feasible. A February, 2013 report prepared by Contra Costa County Health Services indicated that 4 of 7 facilities covered under the ordinance’s IST provision implemented at least one inherently safer measure within the previous year

. 51



### . The CSB has released reports for two recent accidents that the Board indicated could have been avoided if safer technologies had be en employed. CSB found th at the use of a safer material, such aas high-chromium steel, would have pr evented 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 expl osion and fire that killed seven employees 52 

### . CSB also cited the failure to use mo re corrosion resistant high-chromi um steel as a factor in the 2012 Chevron Refinery accident in Richmond, CA which released hydrocarbons that ignited, endangering 19 employees 53



### . An additional complication to assessing safer technologies and alternatives is the varying amount and quality of information available re garding their implementation by industry. While some facilities have converted to processes generally deemed asconsidered to be inherently safer, other facilities may not have sufficient informa tion available to effectively assess the impacts from changing existing processes to ones considered inherently safer. The differences that exist among chemical facilities, in terms of chemical process, facility layout, and ability to finance implementation, may challenge mandatory implementation of safer technologies and alternatives at regulated entities.

51 See: http://cchealth.org/ hazmat/pdf/iso/iso

‐ report.pdf 52 See: http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014

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‐ 01.pdf 53 See: http://www.csb.gov/assets/1/19/Ch evron_Interim_Report_Final_2013

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### 72 EPA is consideringplanning the following optionssteps to advance safer technologies and alternatives:

• Publishing ana joint alert or advisory to notify regula ted facilities ofwith OSHA illustrating the concepts, principles and examples of safer alternative technologies technology and alternatives to make industry more aware of the need to consider this approachinformation , while providing

. sources of information on analysis and alternatives for further investigation and review,

• Publishing a voluntary guidance document with OSHA for operators on how to reduce risks by employing safer technology and alternatives, by offering a more thorough examination of alte rnative measures and safety techniques, including examples of safer technology and alternatives or practices,

• Based on the evaluation of feedback from the alert, guidance, and this RFI, EPA would consider proposing an amendment to the RMP regulations that requires:

o An analysis and documentation of safer technologies and alternatives

o Integration of the safer technologies and alternatives analysis into the PHA

o Implementation of safer technologies and alternatives where feasible; EPA would not make any determination regarding the specific analysis, technology, design, or process selection by chemical facility owners or operators. EPA requests information on the following questions:

a. Should EPA require a safer alternatives opti ons analysis either as a new prevention program element or, as part of the existing PHA/Hazard Review element under*** E.O. 12866 Review

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### 73 authority of CAA section 112(r)(7)(B), or as a separate new requirement under CAA section 112(r )(7)(A )? b. How should safer alternatives be defined if it were to be a requirement under CAA section 112(r) regulations? What specifically should a safer alternatives analysis require and how would this differ from what is already required under other provisions of the RMP?

c. How should industries determine if a safer alternative exists fo r their particular process? What safer alternative chemicals are available for the listed RMP chemicals and for ammonium nitrate? d. What should facilities consider when de termining if such technologies, when identified, are effective, available, and affordableeconomically justified for their particular process or facility? Can the RMP *Info national database, Lessons Learned Information System 54 

### or other federal databases be structured to promote the exchange of information both within i ndustry and with other stakeholders on potentially safer technologies?

e. If EPA were to require facilities to u ndertake an evaluation of the potential to incorporate safer alternatives, what should be theminimum criteria required to make should this evaluation be required to meet ? How would the evaluation determine if a particular alternative is feasible, co st effective and results in less risk? What requirements or incentives, if any, should th ere be for implementation of identified safer alternatives? How should any such requirements be structured and enforced?

54 https://www.llis.dhs.gov /topics/chemical

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### 74 f. Should EPA require facilities to use a safer alternatives evaluation method such as the CCPS Inherently Safer Technology Checklist 55 

### ?
g. How should EPA and facilities address the risk tradeoffs that could result when changing a process to incorporate safer alternatives? h. Should EPA consider similar IST requirements similar to those used by the State of New Jersey or Contra Costa County, Californi a, and if so, why? What have been the benefits of such programs in risk reduction or process safety for the facilities covered under these requirements? What have been the limita tions or drawbacks of these programs? i. If EPA were to develop regulatory requirement s for safer alternatives, which facilities should be subject to those requirements? S hould all RMP facilities be subject to such requirements, or only “high ri sk” facilities, such as refi neries and large chemical plants? How would “high risk” be defined? Are there particular processes or chemicals that should be targeted or prioritized for implementation of such requirements? j. What barriers exist for industr y to adopt safer alternatives ? What incentives can be used by government to have facilities im plement safer alternatives? Should the Agency provide special recognition to comp anies that implement safer alternatives? k. What are other options (other than regul atory requirements) exist to encourage facilities to investigate, develop or impl ement safer alternatives and how can EPA further these efforts? Should EPA consider producing a safer alternatives alert, advisory, and/or guidance in lieu of regulations?

55 CCPS, Inherently Safer Chemical Processes: A Life Cycle Approach, Second Edition (2009), Appendix A*** E.O. 12866 Review

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### 75 l. If RMP facilities are required to perform safer alternative options analyses and implementation plans, should EPA require th at the analyses and/or implementation plans be submitted to the Agency? Should EPA have any role in approving such analyses or plans? In lieu of an approval, can EPA promote safer alternatives through reporting and the dissemination of informa tion on potentially applicable practices?

m. If RMP facilities are required to consider safer alternative options, what role should local communities have in th ese analyses? Shoul d facilities be required to disclose these analyses or recommendations resulting from such analyses to local authorities or the public prior to the sele ction of options? Are there any other disclosure options that will ensure that decisions on implem enting safer technologies are made with transparency? Are there any means of overs ight other than disc losure that would ensure that safer alternatives analyses are thorough and implementation decisions are appropriate?

n. What would be the economic impacts of requiring facilities to analyze safer alternative options? Are there any special ci rcumstances involving small entities that EPA should consider?
2. Emergency Drills to Test a Source’s Emergency Response Program or Plan

. Under Subpart E of 40 CFR part 68, RMP-covered facilities are required to coordinate emergency response actions with local emer gency planning and response agencies. RMP facilities with Program 2 and Program 3 pro cesses must also develop and implement an emergency response program in accordance with § 68.95 if facility personnel will respond to accidental releases. As part of the emergency response program, an emergency response plan must be maintained at the stati onary source; the program must in clude procedures for the use of*** E.O. 12866 Review

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### 76 emergency response equipment and for its inspecti on, testing, and maintenance; training for all employees in relevant procedures; and procedur es to review and update, as appropriate, the emergency response plan to reflect changes at th e stationary source and ensure that employees are informed of changes. For those Program 2 and Program 3 facilities at which facility employees will not respond to acc idental releases, coordinati on with community emergency planners and responders is required and an appr opriate mechanism must be in place to notify responders when there is a need for a response. Exercising response plans is critical to en sure that response personnel understand their roles, local emergency responders are familiar wi th 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 can be used to identify future tr aining needs. Other EPA and Federal agency programs require exercises and drills as an el ement of their emergency response programs. For example, under the Oil Pollution Prevention regulation (40 CFR part 112), Facility Response Plan (FRP) holders are required to conduct drills and exercises, including evaluation procedures (§ 112.21). Exercises at FRP facilities may follo w the National Preparedness for Response Exercise Program (PREP) Guidelines 56 

### which were developed to provide a mechanism for compliance with EPA, U.S. Coast Guard (USCG), and U.S. Department of the Interior (DOI) exercise requirements for oil pollution response. The PREP guidelines in clude both internal and external exercise components. Internal exerci ses include notification exercises, emergency procedures exercises, spill management team tabletop exercises, and equipment deployment

56 A copy of the National Preparedness for Response Exercise Program (PREP) Guidelines, August 2002, can be accessed on the USCG Web site at http://www.uscg.mil/ vrp/faq/oil.shtml under “Additional References.”*** E.O. 12866 Review

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### 77 exercises. External exercises include area exer cises, that include members of the response community, and government-initia ted unannounced exercises. Another example are exercises that the U. S. Nuclear Regulatory Commission (NRC), in conjunction with the Federal Emergency Manage ment Agency (FEMA) and State and local government perform at nuclear power plants. The exercises evaluate both onsiteon-site and offsiteoff-site emergency preparedness capabilities. Th e 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 feasibili ty of the emergency preparedness plan. Finally, industry guideline s recommend conducting exercises and drills. The CCPS Guidelines for Risk Based Process Safety 57 

### recommend periodically te sting the adequacy of emergency response plans and level of prepared ness of responders, including contractors and local response agencies. In order to improve coordination with comm unity responders and ensure that facility personnel have practice responding to accidental releases, EPA is considering requiring RMPregulated facilities to perform exercises or dr ills as an element of the emergency response program identified under Subpart E of the RMP regulation. In considering this issue, EPA requests information on the following questions:

a. Are RMP-regulated facilities currently exer cising their emergency response plans? If so, are they doing these exercises to comp ly with other federal, state or local

57 Center for Chemical Process Safety, Guidelines for Risk Based Process Safety , American Institute of Chemical Engineers, New York, New York, 2007.*** E.O. 12866 Review

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### 78 regulatory requirements? What references or guidelines were used to develop the exercise program? b. What should be the scope of an exercise /drill program? Should the exercise/drill program include internal (emergency res ponse, notifications, and evacuation) and external elements (involving community and federal and state responders, as appropriate)? What elements should be ex ercised as part of the drill/exercise program? For example, should itthe program include communications, coordination, logistics, and evacuations/accounting for personnel, etc? What response scenarios should be considered for the exercise/drill program?

c. How frequently should drills/exercises be performed? d. Who should be involved in the exercise program? How should the management team be engaged as part of the drills/exercises? How should c ontractors be included in the exercise/drill planning and when conducti ng exercises/drills? Who should be the designated official responsible for coordina ting the exercises and drills conducted at the RMP facility? How should other federal, state and local agencies be included in the exercise/drill program?

e. Should all RMP facilities be required to par ticipate in some type of exercise/drill program or only those who are required to develop an emergency response program? Should Program 1 facilities (and Program 2/ Program 3 facilities that do not respond to accidental releases with their own em ployees) be required to conduct external exercises with community responders a nd test notification procedures? Should Program 2 and Program 3 facilities whose em ployees respond to ac cidental releases conduct both internal and external exercises?*** E.O. 12866 Review

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### 79 f. How should lessons learned and recommenda tions be documented and addressed? What timeframe should be considered for completing such records? How long should records of exercises/drills be maintained?
g. Should stationary source operators be required to document and address lessons learned and recommendations when they re spond to an actual accidental release? h. Should information such as the date of the most recent exercise involving the emergency response plan be required to be reported to EPA in the facility’s RMP? i. What would be the economic impacts a nd paperwork burden of requiring an exercise/drill program for all or a subs et of RMP facilities? Would such a requirement substantially improve prep aredness for dealing with emergency situations? Are ther e any special circumstances i nvolving small entities that EPA should consider with respect to an exercise/drill program?
3. Automated Detection and Monitoring fo r Releases of Regulated Substances

. A process hazards analysis is intended not onl y to identify existing hazards, but also the likelihood that safety and mitigating systems, including detection and monitoring equipment, would function properly to elimin ate or reduce the consequences that may occur as a result of those hazards. The RMP Program 3 Prevention Pr ogram requires regulated facilities to conduct a process hazard analysis (§ 68.67). The rule specifically requires a facility’s hazard analysis to address engineering and administrative contro ls applicable to the hazards and their interrelationships, such as appr opriate application of detectio n methodologies to provide early warning of releases. Examples of acceptable dete ction methods identified in this requirement include process monitoring and control instrument ation with alarms, and detection hardware. Likewise, emergency response procedures can re duce the severity of a release and protect*** E.O. 12866 Review

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### 80 employees, emergency responders, and the public from harmful exposure to the regulated substances. RMP-regulated faci lities must have procedures or mechanisms in place for informing the public and local emergency respon se agencies about accid ental releases. These process hazards analysis and emergency pr ogram elements, while addressing detection methodologies, early warnings, and incident notif ications, include no specific requirements for automated detection and monitoring sy stems to be installed. The active utilizationuse of such systems may enhance both the prevention of and the response to accidental releases . However, the Agency understands that the n eed for and appropriate deployment of such systems is likely to be highly site-specific, and that facilities may al ready have appropriate in centives to deploy such systems where warranted and cost-effective

. The Agency recognizes that even equipment th at is properly designed and maintained can sometimes fail. Automated detection and monitoring systems can be used to not only to assess the effectiveness of existing control measures, but also to provide early wa rning of system upsets which could be acted upon to prevent a more seri ous or catastrophic incident. Linking these with alert systems and proper communications with the public and first responders may enhance emergency response efforts in the event of an in cident, resulting in bett er protection of human health and the environment. For example, large increases in emissions due to a piping leak, a significant tear in a storage vessel seal, or other similar event can signal a process upset. Systems in place to detect leaks (or the conditions that might result in leaks) in a timely manner would allow for corrective measures to be taken more rapidly than if a facility relied solely on traditional monitoring and inspection methods. RMP inspection and enforcement history has shown this to be of concern, particularly for fac ilities that are not staffed on a full-time basis and*** E.O. 12866 Review

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### 81 which may also be located in close proximity to population centers or environmentally sensitive

areas. While facilities may identify the benefits of installing automated detection and monitoring systems as they conduct their process hazards analysis, or as they develop their emergency response plan, the decision to invest in such equipment may be influenced by many factors. For example, automated detection and monitoring technologies may not be available for particular chemical hazards, or industry st andards may not address their proper use. They may also be costly. Nevertheless, the Agency is requesti ng information on the need for new or expanded requirements for automated detection and monitoring systems that would supplement either the existing process hazard analysis and/ or emergency response requirements. Specifically, EPA requests information on the following questions:

a. Should facilities be required to install monitoring equi pment or sensors to detect releases of RMP regulated substances, or the conditions that could lead to such a release? Should the systems provide for continuous detec tion and monitoring? How should any such requirements be crafted to provide appropriate site-specific flexibility? b. Are there specific issues that need to be considered fo r unmanned and/or remote facilities?

c. Should an automated mechanism to notify, al ert and warn the local responders and surrounding public of an incident be cons idered as part of any detection and monitoring system requirement? If so, how should the potential for false alarms be addressed within such a requirement?*** E.O. 12866 Review

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### 82 d. How can a requirement for automated detection and monitoring systems be best coordinated with the community emer gency response plan? What are the advantages/disadvantages between of continuous monitoring conducted by automated systems in contrast to third-party alarm agencies?

e. How would a requirement for appropriate det ection thresholds be best established for activating alarms and/or alerts? f. How would the significance and appropria te protective response action of the alarms/alerts be best communicated to re sponders and the public (including shelterin-place and evacuations)?
g. What involvement should LEPCs and SERCs have in the development of the emergency response plan, particularly with re spect to what actions are to be taken in the event of an incident wher e and alarm/alert is activated? h. How frequently should monitoring equipment or sensors to detect releases of RMPregulated substances be tested? How s hould these tests be documented? How long should records of such tests be maintained ? Should automated monitoring records for periods of normal operations be maintained, so that past records may serve as an aid in determining what may have gone wr ong prior to an accident (e.g., a gradual increase in emissions)? Should EPA specify requirements in this area, or are these aspects of program implementati on best left to the facility? i. Leak detection and repair programs ar e common under the CAA’s routine emission programs. Can these programs be integrated with the accidental release prevention program to reduce accidental releases and to simplify requirements for stationary*** E.O. 12866 Review

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### 83 sources subject to both the RMP and thes e other programs? Are there jurisdictional issues that prevent integration? j. What would be the economic impacts of specifying additional monitoring and detection requirements in the RMP? Are there any special circumstances involving small entities that EPA should consider with respect to such monitoring and detection requirements?
4. Additional Stationary So urce Location Requirements

. As part of the directive under Executive Order 13650 to prevent chemical accidents, EPA
EPA is considering whether to amend 40 CFR part 68 to provide more specific requirements to address stationary source siting. In 2005, a series of explosions occurred at the BP Texas City refinery during the restarting of a hydrocarbon isomerization unit. Fifteen workers were killed and 180 others were injured. Many of the victims we re in or around work trailers located near an atmospheric vent stack. The CSB i nvestigation identified the siting of the trailers as a key factor that led to the fatalities. 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)). However,While EPA has not provided any guidance on how to adequately address stationary source siting in the PHA. RMP facility owner/operators can refer to industry standards to addressguidance on siting considerations. The fo llowing publications provide guidance on facility siting:

• American Petroleum Institute (API) R ecommended Practice 752, Management of Hazards Associated With Location of Process Plant Buildings, 3 rd 

### Edition, December 2009;*** E.O. 12866 Review

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### 84 • API Recommended Practice 753, Management of Hazards Associated with Location of Process Plant Portable Buildings, First Edition, June 2007

• CCPS, Guidelines for Facility Siting and Layout (2003); and

• CCPS, Guidelines for Evaluating Process Plan t Buildings for External Explosions and Fires, and Toxic Releases, 2 nd 

### Edition (2012). Both the siting of processes w ithin a stationary source and the siting of the stationary source itself can affect the impact of an accidental release. Siti ng within a stationary source can impact the surrounding community not only by the proxi mity of the accidental release to off-site receptors adjacent to the facility boundary (e.g., pe ople, infrastructure, environmental resources) but also by increasing the like lihood of a secondary “knock-on ” release through compromising nearby processes. Siting of a stationary source itse lf may allow the potential imp act of an accidental release to dissipate depending on the distance from th e source to receptors. The lack of sufficient distance between the source boundary and neighboring residential areas was a significant factor in the severity of several majo r chemical accidents, including, among others, the Bhopal disaster and the recent West Fertilizer accident. Faci lity designers have long recognized the potential benefits of adding buffer or safety zones - c ontrolled areas separating the public and other facilities from the consequences of process incidents – when selecting the location for new chemical facilities (see, e.g., CCPS (2003)). Fo r existing facilities, owners have sometimes compensated nearby residents to relocate away from the facility boundary in order to create a*** E.O. 12866 Review

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### 85 buffer zone where one did not previously exist, or where adjacent residential areas had been developed after the facility itself was constructed 58



### . Should EPA amend the RMP rule to include more specific siting requirements as part of the PHA by, for example, establishing buffer or setback zone requirements for new covered stationary sources, or by establishi ng safety criteria for siting of o ccupancies inside the facility? Would such requirements provide significant in cremental protection ov er current industry practice based on the references cited above? In considering this issue, EPA requests information on the following questions:

a. Would additional specifics on stationary s ource siting and occupancy siting under the RMP minimize the impacts of chemical accidents to local communities? How should RMP stationary source siting requirement s relate to OSHA PSM and other industry standards? b. What guidance should EPA consider in the development of stati onary source siting requirements?

c. What information should EPA consider in the development of stationary source buffer or setback zones for different ri sks? How should EPA address siting when limited space is available? d. What administrative processes and controls should be incorporat ed into stationary source siting requirements?

e. What safety and process devices, instrument s and controls should be incorporated into stationary sour ce siting requirements?

58 See Matthews, Joe. “Paying neighbors to move Mossville: Residents of this Louisiana town, like those in Wagner’s Point here, faced a showdown with Condea Vista. Their experience is instructive.” The Baltimore Sun 6 Dec. 1998

. Web. 8 May 2014 , and Gallagher, John. “Marathon offers to buy out Detroit homeowners near refinery amid $2.2B expansion.” The Detroit Free Press 2 Nov 2011. Web. 8 May 2014.*** E.O. 12866 Review

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### 86 f. What criteria are appropriate for siting of o ccupancies (such as offices, control rooms, cafeterias, etc.) near an RMP-regulated process?
g. How often should stationary source siting be evaluated for effectiveness? What criteria should be used? h. What documentation should be required fo r evaluating stationary source siting determinations? i. Is it appropriate to reflect the environm ental burden of the surrounding community in siting criteria for either new facilities or e xpansions within an existing site? Is it appropriate to consider chr onic burdens or only burdens associated with accidental releases?
g. What challenges would the agency face in specifying uniform siting requirements for the wide variety of covered sites? What site specific factors would need to be addressed? h. If EPA mandated siting criteria, how s hould EPA account for local zoning codes when establishing such criteria? Would set ting federal requirements overstep into the normal state and local zoning process, or would it act as a supplemental measure ensuring minimal safety st andards across the country? i. What would be the economic impacts of sp ecifying additional siting requirements? Are there any special circumstances involvi ng small entities that EPA should consider with respect to siting requirements?
5. Compliance with Emergency Response Progr am Requirements in Coordination with Local Responders

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### 87 Subpart E of the RMP regulation offers owne rs and operators of RMP-covered facilities with Program 2 or 3 processes two emergency re sponse options. For faci lities whose employees will respond to accidental releases of regulat ed substances, section 68.95 of the regulation requires owners or operators to implement an emergency response program that includes an emergency response plan, procedures for the use of emergency response equipment, training for employees, procedures to review and update the response plan, and other elements. “RespondingThese “responding ” facilities are also required to coordinate their emergency plan with local response authorities. For facilities whose employees will not res pond to releases, the RMP regulation states that owners and operators of th ese sources need not comply w ith the provisions of section 68.95 provided that the source is included in the commun ity emergency response pl an (for sources with regulated toxic substances) or ha s coordinated response actions with the local fire department (for sources with only regulated flammable s ubstances), and that a ppropriate notification mechanisms are in place to notify emergency resp onders when there is a need for a response. Subpart E can be read as offering owners or operators the choice of whether to be a responding or non-responding facility. However, EPA did not intend to allow sources handling TQs of RMP-regulated substances to fail to pr ovide for an adequate emergency response in situations where local public re sponders are not able to respo nd to releases at the source. RMPregulated facilities indicate within their risk management plan whether or not they are a “responding” facility (i.e., by i ndicating compliance with mandatory elements of emergency response plans required in section 68.95(a)(1)), and EPA has found that the majority of RMP facilities claim to be “non-res ponding” facilities. However, dur ing facility inspections, EPA has often found that faci lities are either not included in the co mmunity emergency plan or have not*** E.O. 12866 Review

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### 88 properly coordinated response actio ns with local authorities. Th is problem occurs with both responding and non-responding facilit ies, but it is particularly 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 may not occur or may be significantly delayed. EPA requests comment on whether this problem could be addressed thr ough better enforcement of existing requirements, and if so, how best to do this. In some cases, accidental releases have b een made significantly worse due to poor emergency response planning and coordinati on. For example, following the August 2008 explosion and fire at the Bayer CropScience facility in Institute, West Virginia, poor coordination between the facility incident comm ander and local authorities prevented important information, including a shelter-in-place orde r, from being timely communicated to local authorities. Additionally, facility authorities initially prev ented local responders from gaining access to the site of the incident. In another instance, the emergenc y responder fatalities at West Fertilizer may also be tied to the facility’s failure to adequate ly coordinate with responders in advance of the incident.
EPA believes thatis considering whether the Emergency Response provisions in Subpart E of the RMP regulation should be clarifiedrevised to state more explicitly that owners and operators of RMP-regulated f acilities must comply with the emergency response program requirements of section 68.95 unless local public responders both have the means and agree to respond to releases of regulated subs tances at the facility, and to de scribe what facility owners or operators must do to coordinate with local authorities on the deve lopment of community emergency response plans.*** E.O. 12866 Review

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### 89 EPA requests information on the following questions:

a. Do you own or operate an RMP-regulated facil ity that relies on public authorities to respond to accidental releases of regulated substances at the facility? What steps do you take to ensure that pub lic responders are prepared to properly respond to accidental releases at your facility? Shoul d EPA clarify what steps RMP facilities should take in order to properly coordinate their emergency response plan with the community emergency response plan? b. If your facility uses its own employees or response contractors provided by the facility to respond to emergencies, what factors led to your decision to use your own employees or contractors to conduct emer gency response operations? What steps have you taken to coordinate with local responders on emergency response planning?

c. Are you a member of an LEPC, municipal fire department or municipal hazardous materials response team? If so, do you belie ve that “non-responding” RMP facilities in your jurisdiction have generally provide d the appropriate information and support to your organization to ensure an appr opriate response to hazardous substance emergencies at those facilities? Is your organization capable of responding appropriately to such events at RMP facili ties? How often do you visit RMP facilities in your jurisdiction? Do you conduct emerge ncy drills at RMP facilities? Do you believe that RMP facilities should generally respond to em ergencies using their own employees, or rely on public responders? Should EPA should clarify what is necessary for RMP facilities to adequately coordinate their emergency response plan with the community em ergency response plan? Would new regula tions in this area significantly improve emergency re sponse planning in your area?*** E.O. 12866 Review

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### 90 d. Are there certain substances or types of facilities that present particular response challenges for local authorities? If so, whic h substances or types of facilities? Should such facilities be required to prepar e and implement comprehensive emergency response programs instead of relyi ng primarily on pub lic responders? Do public responders in your area have adequate existing authority to require this now?

e. If public responders are not capab le of responding to a partic ular type of chemical or release event at an RMP-regulated facil ity, should the owner or operator of the facility be required to provide for an effective response, ei ther with the facility’s own employees, response contractors, a mutual aid agreement with nearby facilities, or some other means? f. What would be the economic impacts of expanding the emergency response requirements as discussed above? Are th ere any special circumstances involving small entities that EPA should consider with respect to modifying emergency response requirements?
6. Incident Investigation and A ccident History Requirements

. Incident investigations and accident history reporting can provide valuable information about potential hazards and the st eps needed to prevent future events. Many times, the cause of an incident is 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; equipment failure may result from improper maintenance, misuse of equipment (e.g., operati ng at too high a temperature), or use of incompatible materials. Through incident inve stigation a facility owner or operator would determine not only the initiating event that led to the release, but more importantly its root*** E.O. 12866 Review

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### 91 cause(s). Accident history re porting provides an avenue to disseminate that information. Without thoroughThorough investigations and reporting , may help facilities may miss opportunities to identify and address root causes. The RMP’s incident investigation requireme nts closely track those established in OSHA’s PSM accident investigation requirements. Likewise, EPA's hazard assessment requirements include a five-year a ccidental release history, which has some overlap with similar OSHA process hazard analysis requirements. Wh ile most catastrophic releases affect workers first, there are incidents where workers are prot ected but the public and the environment may be threatened, e.g. emergency relief devices work ing as designed to vent hazardous atmospheres away from the workplace and into the air wh ere they may be carried downwind. Although the PHA process may have recognized and addressed the potential off-site impact offsite associated with safety measures that protect workers (e.g. an emergency vent scrubber system), the RMP requires that facilities consider such possibilities and integrate the protection of workers, the public, and the environment into one program. Thus, RMP facilities must investigate each significant incident which resulted in, or could reasonably have re sulted in a catastrophic release. A catastrophic release is define d for purposes of the RMP as one where a major uncontrolled emission, fire, or explosion, involving one or mo re regulated substances presents an imminent and substantial endangerment to public health and the environment. Imminent and substantial endangerment includes offsiteoff-site consequences such as death, injury, or adverse effects to human health or the environment, or the need for the public to shelter-in-p lace or be evacuated to avoid such consequences. In contrast, the acc ident history requirement includes a five-year record of only those accidents from covered pr ocesses that resulted in deaths, injuries, or significant property dama ge on-site, or known offsiteoff-site deaths, injuries, evacuations,*** E.O. 12866 Review

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### 92 sheltering in place, property damage, or environm ental damage. Near-miss accidents or accidents with only the potential for consequences are not required to be included, and the accident history requirement applies only to covered processes. EPA has encouraged facilities to investigate all accidental releases. However, the focus of the current incident investigation and accident history reporting requirements is limited. EPA’s experiences with RMP facility in spections and incident investig ations show there have been incidents that were not inves tigated, even though under slightly different circumstances, the incident could have resulted in a catastrophic re lease. While these unplanned “near miss” events did not result in deaths, injuries, adverse health or environmental effects, or sheltering-in-place, only a fortunate break in the chain of events prevented a catastrophic release of a regulated substance from happening. For example, a runawa y reaction that is brought under control by operators is a near miss that may need to be i nvestigated to determine why the problem occurred, even if it does not directly involve a covered pr ocess. Similarly, fires a nd explosions near or within a covered process, any unanticipated rele ase of a regulated substance, and process upsets that could have led to a rele ase of a regulated substance ma y also be one step away from initiating a chain of events leading to a catastrophic release. Additionally, there have been some cases where the facility chose not to conduct an investigation b ecause the owner/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 th e facility, or at similar facilities, wouldcould potentially benefit from its findings. In othe r instances, facilities have failed to investigate serious releases because they claimeddetermined there were no actual or potential offsiteoff-site consequences. Investigating these types of in cidents and including them as part of the RMP accident history*** E.O. 12866 Review

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### 93 report could provide facilities w ith important information on what problems could lead to an incident, and allow for the facili ty to address them before a cat astrophic release occurs. Further, including some of these incident s as part of the accident hist ory could also improve process safety at facilities with similar processes, where operators could learn from the shared information. Incident investigations may result in improved process safety through the dissemination of lessons learned and the im plementation of recommended corre ctive actions. Conducting these investigations as soon as possible after an incident willmay yield better quality data and information , though time may also be required to collect , validate, and integrate data from a range of sources . EPA has discovered situations where incident investigations by regulated facilities have been indefinitely delayed. Delays could result in an increas ed risk of incident recurrence as root causes and the appropriate corrective actions are not necessarily promptly identified or implemented. The need forvalue of conducting incident investigations and communicating lessons learned in a timely mann er was also recognized by the CSB. In recommendations to the Agency, the CSB called for RMP accident histories to be updated on a more timely basis in view of the valuable in formation they provide for chemical accident prevention and preparedness efforts by government, industry and the public 59 

### . EPA agreed with the CSB recommendation and amended the RMP acci dent history requirements to require that facilities who have had an accident meeting the criteria for the five-year accident history to update their RMP accident history to include th e new accident history information within six months of the date of the accident.

59 Joint Chemical Safety Board, Occupational Safety and Health Administration, National Institute for Occupational Safety and Health, and EPA Roundtable on Developing Improved Metrics on Accidental Chemical Process Releases, November 14, 2002*** E.O. 12866 Review

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### 94 The Agency believesis considering whether broadening the incide nt investigation and accident history requirements to include clear requirements to investigate near misses and determine root causes of accidents, near misses, and process upsets would promote increased safety. The Agency is requesting information on the appropriateness of requiring root cause investigations of incidents, pr ocess upsets and near-misses, and of establishing specific time frames for incident investigati ons to be completed. Specificall y, the Agency requests detailed information on the following questions:

a. Are the RMP incident investigation requi rements too narrowly focused? Would identifying a broader range of incidents requiring investigatio n (e.g., near misses) help prevent additional accidental releases? Please provide specific examples where possible. EPA requests information on altern ative definitions or incident classifications that could be included w ithin the rule’s incident investigation requirements. b. Are there any data or information on proce ss upsets, near misses or other incidents that were not required to be investigated, but where an investigation and resulting changes in management systems mi ght prevent accidental releases?

c. Does your facility routinely i nvestigate incidents not require d to be investigated under part 68? If so, please describe the ty pes of incidents investigated, and the safety benefits youreffects these i nvestigations have had on facility had accrued as a resultoperations

. d. Would a specific time frame for incident investigations to be completed benefit overall safety? What should be the basis for establishing an a ppropriate timeframe*** E.O. 12866 Review

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### 95 requirement for an incident investigation to be completed? What are the challenges and limitations to completing an incident i nvestigation within a specified timeframe?

e. Is Are there a need to clarifybenefits from requiring that investigations must be performed even in cases where the owne r/operator elects to decommission the process involved, where the process is destro yed in the incident, or where a facility claims determines there were no actual or potential offsiteoff-site consequences ? Would such a requirement provide a disinc entive to decommission potentially risky
processes ? f. Would a modification of the de finition of "catastr ophic release" assist in addressing the concerns forregarding the need to investigate a br oader setappropriate scope of incidents that require investigation ?
g. Would a modification of the accident hist ory reporting requirements to reflect a broader range of incidents being investigat ed assist in dissemi nating lessons learned across industry? h. Should EPA require facilities that have incidents or near misses to conduct a full compliance audit under § 68.58 and § 68.79? i. Is it appropriate for facilities to share the results of accident investigations with the local community or alternatively a summary of the accident, and its root cause? Is there an appropriate role for the local community in conducting investigations? j. What would be the economic impact of br oadening the RMP incident investigation requirements to require root cause investigations of near misses? Are there any special circumstances involving small entit ies that EPA should consider? Would small businesses have the capacity to investigate near miss incidents?*** E.O. 12866 Review

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### 96 7. Worst Case Release Scenario Quantity Requirements for Processes Involving Numerous Small Vessels Stored Together

. Section 68.25(b) of the RMP ru le requires the owner or ope rator to determine a worstcase release quantity. The regulati on states that “the worst case release quantity shall be the greater of the following: (1) For substances in a vessel, the gr eatest amount held in a single vessel, taking into account administrative cont rols that limit the maximum quantity; or (2) For substances in pipes, the greatest amount in a pipe, taking into account administrative controls that limit the maximum quantity.” Based on a review of past RMP submissions and facility inspections, EPA believes that in most cases the current requirements re sult in a reasonable estimate of worst case releases. However, for cer tain categories of facilities, like chemical warehouses, where large numbers of regulated chem ical containers are st ored closely together, the Agency has questions about whether a diffe rent approach would be tter characterize the potential process hazards and associated risks. This is of particular concern for those cases where each storage container may only contain a few pounds of a regulated substance, but there are numerous such containers stored in close proximity to one another. This type of situation occurred on Ju ne 24, 2005, where a fire involving propylene cylinders occurred at the St. L ouis Praxair Distribution site. A small fire that began in one propylene cylinder spread to other nearby propylene cylinders and then to acetylene and propane cylinders. The exploding cylinders flew up to 800 feet in the air, started fires, and damaged property in the community. The fire consumed 8, 000 cylinders, or almost th e entire inventory of flammable gases at the facility. Similar accide nts have occurred at Air Liquide in Phoenix, Arizona in June 1997, Airgas in Tulsa, Okla homa in August 2003, and Praxair in Fresno, California in July 2005. An October 2006 accide nt in Apex, North Carolina, involving*** E.O. 12866 Review

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### 97 numerous small containers of flammable and toxi c materials stored at a hazardous waste disposal facility caused a fire, multiple explosions, and th e release of a toxic vapo r cloud that resulted in the evacuation of 16,000 nearby residents. EPA seeks information on whether to revise section 68.25(b) of th e RMP regulation to better account for processes involving numerous sma ll vessels stored togeth er, such as on pallets, cylinder racks, and in groups. EPA is looking fo r information on whether including the entire quantity in one location or one process in worst case considerations , instead of just the single largest vessel or pipe, would be tter represent the true worst cas e scenario quantity, and thereby increase protection to human health and the envi ronment and help prevent future accidents from occurring. EPA also requests comment on whether ther e are ways of grouping vessels or pipes short of including all the vessels or pipes at a facility that would be appropriate for worst case scenario analysis. EPA is also interested in receiv ing information on whether worst-case scenario requirements should account for the potentia l cascading effects of separate facilities that are interconnected (e.g., a manuf acturer that provides product to an adjacent source through an interconnecting pipeline). Specifically, EPA re quests information on the following questions:

a. Should EPA revise § 68.25(b) to require the owner or operator of any regulated process involving numerous small containers st ored together to consider as the worst case release quantity the sum of the quantity of all containers in the process, or a subset of such containers, or the containers within one storage area of the process? b. Would revising the worst case scenario quant ity determination requirement in this manner better represent the true worst case scenario for such processes?

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### 98 d. In situations where numerous small containers are stored together, are there any kinds of protective barriers or other methods of storage that would reduce the likelihood of a release from one container causing addi tional releases from adjacent or nearby containers? How shouldShould such barriers or storage methods be incorporated into the rule’s worst case scenario requirements ?, and if so, how? Would revising § 68.25(b) cause any type of additional burde n on facilities where large amounts of chemicals are stored together?

e. If EPA were to revise § 68.25(b) to take into account numerous small vessels being stored together, what types/ki nds of vessels should be c overed? Should there be any limits on the size of containers subject to the aggregation requirement? What would such limits be based on? Similarly, shoul d there be a specific distance between vessels established in order to consider them as grouped together for purposes of worst case scenario calculations? What would that distance be based on? f. Should EPA revise § 68.25 to require the owner or opera tor of a regulated process to consider the potential for worst case release s cenarios to involve adja cent facilities or other nearby facilitie s that are interconnect ed through pipelines? Would this change raise any confidentiality or security issues ? How would EPA adjust its worst case scenario modeling requirements to account for such a change?
g. What would be the economic impacts of m odifying the worst case scenario analysis requirements as discussed above? Are th ere any special circumstances involving small entities that EPA should consider with respect to worst case scenario analysis?
8. Public Disclosure of Information to Promote Regulatory Compliance and Improve Community Understanding of Chemical Risks

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### 99 EPA is seeking public comment on whether th ere are additional steps the Agency could take to improve compliance through increased in formation disclosure to the public and local authorities. For example, would requ iring RMP-covered facilities to post on a company website unrestricted (i.e., non- offsiteoff-site consequence analysis) RMP information on a company website , such as the facility’s RMP executive summary, emergency contact information, identity of the LEPC, or links to the local emergency re sponse plan and/or the f acility’s most recent EPCRA Tier II report, lead to improvements in faci lity safety and better regulatory compliance? Would disclosing a summary of the facility’s comp liance audit, PHA, or incident investigation reports to the LEPC result in improveme nts in emergency planning and response? Would such disclosures raise any concerns re garding facility security or proprietary business information? We note that the RMP rule was published in 1996 before many of the current information-sharing technologies were conc eived. While the Agency has modernized mechanisms for reporting and handling risk ma nagement plans, we have made only minor adjustments to the RMP rule for new informati on technologies. We ha ve not systematically reviewed the rule to see if e nhanced facility and community in teraction through th e use of these technologies can promote safer operations, perh aps at a reduced cost of compliance and oversight. Ensuring that communities, local planners and local first responders have appropriate facility chemical hazard informati on is critical to the health and safety of the responders and the local community. As directed by theIn response to Executive Order 13650, EPA seeks to find ways to enhance information sharing and coll aborative planning between chemical facility owners and operators, tribal a nd local emergency planning comm ittees and first responders. EPA is interested in identifying ways to make RMP-regulated facility information more readily*** E.O. 12866 Review

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### 100 available to local responders and local co mmunities without creating additional security concerns. EPA requests informa tion on the following questions:

a. Should EPA amend the RMP regulation to re quire RMP-regulated facilities to post chemical hazard-related information on their websites (if they have one) such as RMP chemical names, chemical quantities, executive summaries, links to the LEPCLEPCs , community emergency planplans , Safety Data Sheets (SDS) for hazardous chemicals present on site, EPCRA Tier 2 reports, rele ase notification reports , accident history and cause and other similar information? What requirements should be considered for facilities that do not have a website? b. Would requiring facilities to make this information available on the company website promote improved regulatory compliance ? What additional economic burden would be associated with such a requirement?

c. Do RMP-regulated facility ow ners/operators have any safe ty or security concerns with posting the executive summary from the RMP, or linking to EPCRA reports and community response plans on the company websites? Please explain any concerns regarding specific elements of this information. d. Would posting the RMP executive su mmary on a website cause facility owner/operators to remove important information from the executive summary? Does EPA need to better define the conten ts of an executive summary in order to allay security concerns?

e. Is there other information (web-based or otherwise) that would assist local communities, emergency planners, and res ponders in understanding facility risks that should be made publicly available? For exam ple, would disclosure of the facility’s*** E.O. 12866 Review

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### 101 PHA or compliance audit to local authorities such as the LEPC result in improved safety? f. Does your facility interact w ith community groups (e.g., a citizen advisory panel)? If so, what information do you provide to such groups?
g. Are there other activities or measures that RMP-facility owner/ operators can use to ensure that communities, planners, and responders have access to appropriate information? h. Can the use of social media or other forms of community outreach be incorporated into hazard assessment, prevention, and re sponse to leverage community involvement in oversight? For example, would increased pub lic disclosure of RMP-related information, such as accidental releases , near misses, and subsequent safety enhancements, or increased community invol vement in facility emergency response planning, lead to improveme nts in facility safety? Please identify aspects of the RMP rule where there are opportunities for community involvement.
9. TQsThreshold Quantities and OffsiteOff-site Consequence Analysis Endpoints for Regulated Substances Based on Acute Exposure Guideline Level Toxicity Values

. EPA is considering the use of Acute Exposure Guideline Levels (AEGLs) 60 

### developed by the National Advisory Committee (NAC) for AE GLs for Hazardous Substances (NAC/AEGL Committee) to recalculate RMP reporti ng thresholds and toxic endpoints for offsiteoff-site consequence analyses in order to better reflect the potential for a dverse effects of an accidental release upon a community.

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### 102 EPA originally set the TQs for the RMP toxi c substances using a ranking method similar to that used in developing the threshold plan ning quantities (TPQs) for the EPCRA EHSs. A factor for each toxic chemical based on its toxi city level of concern “L OC” and its potential to become airborne and disperse “V”, was derived and used to develop a ranking factor equal to LOC divided by V. Chemicals with lower ranking factors were assigned lower thresholds. A low numerical LOC value represents a high toxici ty and a high value of V represents a high potential for air dispersion. Therefore, the ra nking factor was designed such that lower LOC values or higher V values (or both) resulted in lower ranking factors. For example, the V for all gases is assigned a value of 1, which is higher than the calculated values of V for all liquids. For the RMP substances, thresholds were assigned ba sed on order of magnitude ranges in the ranking factor, using TQ categories of 500 pounds, 1,000 pounds, 2,500 pounds, 5,000 pounds, 10,000 pounds, 15,000 pounds and 20,000 pounds (59 FR 4478, January 31, 1994). The toxicity LOC was the maximum short term exposure concentration level in air for each chemical that would not lead to serious irreversible health effects in the general population when exposed for a relatively short duration. The Immediately Dangerous to Life and Health (IDLH) value developed by the Natio nal Institute of Occupational Sa fety and Health (NIOSH) or an approximation of the IDLH based on animal toxi city data was used as the basis for the LOC. The IDLH is defined as the maximum concentration from which one could escape within 30 minutes without any escape-impairing symptoms or any irreversible hea lth effects. The IDLH was presented in the 1990 edition of the NIOS H Pocket Guide to Chemical Hazards and was used where available to develop the LOC toxicity levels for RMP toxic substances. For substances without a published IDLH value, a va lue equivalent to the IDLH was derived from*** E.O. 12866 Review

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### 103 mammalian toxicity data using a methodology de scribed in Appendix D of the Technical Guidance for Hazard Analysis, Emergency Planning for Hazardous Substances 61



### . In some cases, revised or updated toxicity data were used, based on the December 1990 Registry of Toxic Effects of Chem ical Substances (RTECS) rather th an the toxicity data used to derive TPQs for EHSs. EPA is considering recalculating the current TQs IDLH- based upon IDLH valuesTQs for the following reasons:

 The IDLH is based upon response of healt hy male worker-population and does not take into account the exposure of more se nsitive individuals, su ch as the elderly, pregnant women, children or people with various health problems.

 The IDLH is based upon a maximum of 30 minutes-minute exposure period which may

not be realistic forreflect (may unde restimate) actual exposures to accidental airborne releases.

 The IDLH may not indicatereflect the concentration that co uld result in serious but reversible injury because IDLHs were designed only to protect workers against concentrations that would prev ent death or irreversible hea lth effects or would prevent other deleterious effects (e.g. disorientation or incoordinatio n) that would prevent escape

. EPA recognized the limitation of using the IDLH values when it developed the TPQs for the EHSs in 1986 and 1987, but the agency was onl y just beginning the development of more appropriate chemical emergency ex posure levels for the general public. Therefore, EPA chose to continue using the IDLH because there were ma ny more published IDLH values available than

61 USEPA/FEMA/DOT, Technical Guidance for Hazard Analysis, Emergency Planning for Hazardous Substances, December 1987, http://www2.epa.gov/sites /production/files/2013

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### 104 other potential exposure limits and because ther e was already a method available for deriving an IDLH equivalent from toxicity data. 62 

### Due to the limitations outlined above, EPA is now considering the use of AEGLs to recalculate RMP TQs. AEGLs re present threshold exposure limits (exposure levels below which adverse health effects are not likely to occu r) for the general public and are applicable to emergency exposures ranging from 10 minutes to 8 hours. AEGLs are developed by the National Advisory Committee (NAC) for AEGLs for Ha zardous Substances (NAC/AEGL Committee), which was established to identif y, review, and interpret relevant toxicologic and other scientific data and develop AEGLs for high-pr iority acutely toxic chemicals 63 

### . AEGLs are developed for five exposure periods (10 and 30 minutes, 1 hou r, 4 hours, and 8 hours) and distinguished by varying degrees of severity of toxic effects. AEGLs are designed to protect the general population, including susceptible subpopulations, such as infants, children, the elderly, persons with asthma, and those with other illnesses, wh ich are groups not generally considered in the development of workplace exposure levels. AEGLs for 471 priority chemicals have been developed or are now under development . for 471 priority chemicals. A chemical may have up to three AEGLs valu es, each of which corresponds to a specific tier of health effects. The three AEGL tiers are defined as follows:

 AEGL-1 is the airborne concentration, expr essed as parts per million or milligrams per cubic meter (ppm or mg/m 3 

### ) of a substance above whic h it is predicted that the general population, including susceptible individuals, could experience notable

62 USEPA. June 21, 1992. Technical Background Document: Development of Threshold Quantities for List of Regulated Substances for Accidental Release Prevention, Document No. II

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### 105 discomfort, irritation, or certain asymptom atic nonsensory effects. However, the effects are not disabling and are transient and reversible upon ce ssation of exposure.

 AEGL-2 is the airborne concentr ation (expressed as ppm or mg/m 3 

### ) of a substance above which it is predicted that the general population, incl uding susceptible individuals, could experience irreversible or other serious , long-lasting adverse health effects or an impaired ability to escape.

 AEGL-3 is the airborne concentr ation (expressed as ppm or mg/m 3 

### ) of a substance above which it is predicted that the general population, incl uding susceptible individuals, could experi ence life-threatening health effects or death. The use of AEGLs to recalculate RMP repor ting thresholds would better reflect the potential for adverse effects of an accidental release upon individuals in a community compared to IDLHs because theyAEGLs take into account the potentia l exposure of more sensitive individuals, the potential for longer periods of exposure, a nd the potential for serious but reversible injuries. In situations where no AEGL exists for a chemical, EPA would use Emergency Response Planning Guidelines (ERPGs), if available, to recalculate reporting thre sholds. ERPGs estimate the concentrations at which most people will be gin to experience health effects if they are exposed to a hazardous airborne chemical for 1 hour. (Similar to IDLH values, however, sensitive members of the public—such as old, sick, or very young people—aren't covered by these guidelines and they may experience adverse effects at concentrations below the ERPG values.) ERPGs are developed by the Emergency Response Planning committee of the American Industrial Hygiene Asso ciation (AIHA). ERPGs shouldcould be used to help protect the public when AEGLs aren't available and th ere has been a chemical release th at is short-term in duration.*** E.O. 12866 Review

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### 106 There are about 145 chemicals with ERPGs

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### . A chemical may have up to three ERPG values, each of which corresponds to a sp ecific tier of health effects. The three ERPG tiers are defined as follows:

 ERPG-3 is the maximum airborne concentration below which it is believed that nearly all individuals coul d be exposed for up to 1 hour without experiencing or developing life-threaten ing health effects.

 ERPG-2 is the maximum airborne concentration below which it is believed that nearly all individuals coul d be exposed for up to 1 hour without experiencing or developing irreversible or other serious health effect s or symptoms which could impair an individual's ability to take protective action.

 ERPG-1 is the maximum airborne concentration below which it is believed that nearly all individuals coul d be exposed for up to 1 hour without experiencing other than mild transient health effects or pe rceiving a clearly defi ned, objectionable odor. EPA previously used EPRG values in 1996 (61 FR 31668, June 20, 1996) to establish toxic endpoints (i.e., air concentrations) for each RMP toxic chemical to be used when conducting the off-site consequence analysis (O CA). The endpoints chosen were the ERPG-2 values developed by AIHA; the toxic endpoint was the level of concern (LOC) from EPA’s 1987 Technical Guidance for Hazards Analysis for those substances that did not have an established ERPG-2, updated where necessary to reflect new toxicity data. EPA chose ERPG-2 values first because they were specifically developed by a scientific committee for emergency planning to protect the general public in emergency situatio ns and are subject to peer review. EPA had

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### 107 rejected use of the ERPG-3, whic h is a lethal exposure level, because it is not protective enough of the public in emergency situations. One consequence however, of the agency using separate toxicity values for TQs (based upon IDLH) and toxic endpoints (b ased upon EPRG-2) for the RMP regulations as a whole is some inconsistency in the representation of the rela tive toxicities of certain substances compared to others. For example, chlorine and sulfur dioxide , both have relatively similar ERPG-2 toxic endpoints, 0.0087 mg/L and 0.0078 mg/L, respectively, both based on their ERPG-2 values. Butbut chlorine is listed with a reporting threshold of 25002,500 pounds while sulfur dioxide has a reporting threshold of 50005,000 pounds. As gases, both chlorine and sulfur dioxide have the same air dispersion factor (V) of 1. The difference in thresholds was based onis due to the use of 1990 IDLH values , with chlorine having an IDLH (0.087 mg/L or 30 ppm), which appears asthat suggests it is three times more toxic than thesulfur dioxide ( IDLH of sulfur dioxide ( 0.261 mg/L or 100 ppm). To remedy such issues, EPA is considering the use of AEGLs as the basis for determining both the RMP reporting thresholds and the toxic endpoints. Furthermore, in those cases where an AEGL is not available, us ing EPRG-2 values to calculate both the reporting threshold and toxic endpoint will also remove su ch inconsistencies. Finally, using AEGLs when available to recalculate current toxic endpoints will also take in to account the potential exposure of more sensitive individuals, which is not a ddressed when using ERPG-2 values. Concerning the agency’s suggestion to r ecalculate reporting th resholds and toxic endpoints using AEGLs (or EPRG-2 values wh en AEGLs are not available), EPA requests information on the following questions:With few exceptions, AEGL-2 values are significantly lower than LOC values for a given substan ce, and generally somewhat lower than the corresponding ERPG-2 value. Howe ver, this does not necessarily mean that TQs would always*** E.O. 12866 Review

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### 108 decrease. As indicated above, when origina lly developing TQs, EPA used the LOC value divided by the V factor for each chemical to develop a ranking index. Substituting AEGL-2 values for LOC values and recalculating the rank ing index values would generally result in much lower index values. However, index values do not correlate directly to a TQ. Instead, a range of index values was assigned a TQ. For example, all substances with i ndex values less than 0.01 were assigned a TQ of 500 pounds, substances w ith index values greater than or equal to 0.01 and less than 0.05 were assigned a TQ of 1000 pounds, substances with index values greater than or equal to 0.05 and less than 0.1 were a ssigned a TQ of 2500 pounds, and so on, up to the maximum TQ value of 20,000 pounds. If EPA used the new index values to assign TQs based on these current ranges, then TQs for substances that currently have higher TQs would tend to drop, while TQs for substances with lower TQs would generally remain unchanged. Therefore, under this scenario, most substances w ould be grouped into the lower TQs. Alternatively, if EPA established TQs by rede fining the index value ranges for each TQ according to the new range of index values alone (i.e., disregarding the old index ranges), then the change would have the effect of reshuffling substances into new TQs. In this scenario, incorporating AEGL values woul d likely result in reducing the TQ for some substances (those with the lowest AEGL-to-LOC ratio), while rais ing it (or causing no change ) for others. As the purpose of assigning TQs according to a distribution of index values was to assign lower TQs to the more toxic and easily dispersed substances and higher TQs to less toxic and less easily dispersed substances, this appr oach may be more appropriate. Adopting AEGL-2 values in place of ERPG-2 values to establish new toxic endpoints would have a more direct effect. AEGL-2 va lues are often, but not always, lower than the existing toxic endpoints. Where the AEGL value is lower than the current toxic endpoint for a*** E.O. 12866 Review

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### 109 particular substance, the new toxic endpoint would likewise be lower, and vice versa. The practical effect of changing toxic endpoints would be to change the off-site consequence analysis distance to endpoint for a given substance and release quantity. For all processes containing substances with new lower toxic endpoints, larger worst case a nd alternative re lease scenario zones would result, whereas processes containi ng substances with new higher toxic endpoints would have smaller off-site consequence zones. If most toxic endpoints were to either decrease or remain the same, another result would likely be that fewer regulated processes would be eligible for Program 1. EPA requests information on the following que stions regarding recalculating reporting thresholds and/or toxic endpoints using AE GLs (or EPRG values when AEGLs are not available):

a. Would revising the RMP rule to incorporat e AEGL-2 and ERPG-2 values (when an AEGL is not available), as the basis for TQs and toxic endpoints make the RMP rule more protective of human health and the environment? Would it result in significant changes to the universe of RMP-regulated faci lities due to potent ial changes in TQs? If so, whatnumber and types of facilities would be most affected and what changes would occur? b. The IDLH values used for se tting the existing TQs are ba sed on an exposure period of
30 - minutes. If the IDLH was not available, th e acute toxicity data used to determine the equivalent IDLH varied depending on the chemical and actual study, and these numbers could typically varyranged from 1 to 8 hours. The ERPG-2 values used for the toxic endpoints represent an exposure timeperiod of 1 hour. Given that AEGLs are established with five different expos ure periods (10 minutes, 30 minutes, 1 hour, 4*** E.O. 12866 Review

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### 110 hours, and 8 hours), which exposure time shoul d be used if the AEGL is used to determine the TQs and/or toxic endpoints?

c. What should be the hierarchy for developing an alternative or equivalent LOC when an AEGL value has not been established for a toxic substance? Should ERPG values be substitutedused instead if they exist? If no ERPG value exists, should an LOC based on the IDLH value be used instead if it exists? If there is no IDLH value, how should the LOC be calculated for either the TQ or toxic endpoint? Is there an alternate method for establis hing an equivalent LOC for those chemicals not having an AEGL or ERPG that will result in an appropriate TQ? d. Currently, RMP worst-cast scenarios can be based on 10-minute or 60-minute release times. Because many AEGL-2 values are established for 1-hour, 4-hour and 8-hour
exposure timesperiods , should requirements for determining the worst-case and alternative release scenarios also incorporat e four and eight hour release times using the 4-hour and 8-hour AEGL-2 values for a particular toxic chemical?

e. Should EPA consider using AEGL-1 rather than AEGL-2 values for calculating reporting thresholds and toxi c endpoints in order to coveraddress acute effects that are transient and reversible (such as discomfort and irritation)? f. What would be the economic impacts of r ecalculating TQs as discussed above? Are there any special circumstan ces involving small entities that EPA should consider with respect to recalculating TQs?
10. Program 3 NAICS Codes Based on RMP Accident History Data

. When developing the RMP, the Agency scaled the regulatory requirements based on the potential risk posed by a source a nd the steps needed to address the risk, rather than imposing*** E.O. 12866 Review

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### 111 identical requirements on all sources. To this en d, processes subject to RMP requirements were divided into three tiers: Programs 1, 2, and 3 (see s ection I.C). Eligibility for any given Program is based on process criteria so that classification of one proce ss in a Program does not influence the classification of other processes at the sour ce. The Agency established the most stringent RMP requirements under Program 3 for those indu stry sectors that re presented a potentially higher risk of accidental releases. Industry accident records represent a reasona ble criterion for identifying high risk sources. If an entire industry has a long history of accidental releases, it may indicate that the materials handled and handling condi tions generate a higher potentia l for serious releases, or that the government or industry standards applicable to that industry area are not effectively minimizing risks. Additionally, accident history associated with industry sectors was identified by EPA as a better surrogate for underlying risk than individual source acci dent histories because accidents are rare events; a source with no accidenta l releases over the previous five years is not necessarily safe. Further, serious chemical acci dents occur infrequently even at sources with poor process safety practices. Program 3 eligibility is based in part on the NAICS associated with the covered
process 65 

### . The specific codes identified for Program 3 were based on an analysis of reported

65 The 1996 final RMP rule based Program 3 eligibility on the old Standard Industrial Classification (SIC) code system, which assigned four

‐ digit codes to different industry sectors. However, in 1997, the U.S. Government, in cooperation with the governments of Canada and Mexico, adopted a new industry classification system, the North American Industry Classification System (NAICS), to replace the SIC codes. NAICS codes are either five or six digits, depending on the degree to which the sector is subdivided. As a result, in 1999 EPA revised RMP requirements whose applicability was originally based on SIC codes (64 FR 964, January 6, 1999). All "SIC code" references were replaced with "NAICS code" and the nine SIC codes subject to Program 3 prevention program requirements were replaced with ten NAICS codes.*** E.O. 12866 Review

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### 112 accident histories within industry areas, selecting those that evidenced a higher risk potential 66



### . EPA selected the industry sectors that showed a high frequency of the most serious accidents across a significant percentage of all sources within the sector to avoid mischaracterizing an industry based on isolated, problematic sources. Accounting for the num ber of reports from individual sources was intended to avoid selecting a sector because of a small number of sources with serious safety problems. The analysis included not only offsiteoff-site impacts, but also accidental releases that caused death, hospitalizat ions, or injuries on site, as these may serve as an indicator of significant safety proble ms that could lead to releases with offsiteoff-site impacts. Program 3 applies to processes not eligible for Program 1 and in NAICS 32211 (pulp mills), 32411 (petroleum refineries), 32511 (petrochem ical manufacturing), 325181 (alkalies and chlorine), 325188 (all other inorganic chemical manufacturing), 325192 (other cyclic crude and intermediate manufacturing), 325199 (all other basic organic chemical manufacturing), 325211 (plastics and resins), 325311 (nit rogen fertilizer), and 32532 (pes ticide and other agricultural chemicals). Program 3 also applies to all pr ocesses subject to the OSHA PSM standard, unless the process is eligible for Program 1. The RMP national database now contains near ly two decades of accident history reports from covered sources, and the Agency believes that these reports represent a more comprehensive picture of the relative accident ri sks associated with different industry sectors regulated under the rule than was available to the Agency prior to the rule’s publication. Based on these accident reports, the ten NAICS codes mo st frequently associat ed with accidents in RMP-regulated processes are 32411 (petroleum refineries), 3 25199 (all other basic organic

66 EPA Report: Development of Decision Criteria For Accident History by SIC Code Approach and 100 or More Employee Approach, EPA Docket Number HQ

‐ OAR

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### 113 chemical manufacturing), 325188 (all other basi c inorganic chemical manufacturing), 22131 (water supply and irrigation systems), 42491 (farm supplies merchant wholesalers), 22132 (sewage treatment facilities) , 325181 (alkalies and chlorine manufacturing), 311615 (poultry processing), 49312 (refrigerated warehousi ng and storage), and 32211 (pulp mills). 67 

### The Agency is requesting information on the approp riateness of reevaluating the NAICS industry sectors originally identified to determine Pr ogram 3 applicability based on the collected RMP data. Specifically, EPA requests information on the following questions:

a. Should industry sectors represented in RMP data as those with the most accidental releases be used to update and replace th e existing set of Program 3 NAICS codes with a new set? b. How can the RMP accident history data best be used to update the current list of NAICS codes that trigger Program 3 require ments? Should the agency take into account the number of sources in each sector , or the severity of reported accidents, or other factors, in selecting updated Progra m 3 NAICS codes? Is the methodology used to develop the SIC/ NAICS code list a pplicable to the RMP accident history database?

c. Would limiting the data analys is or the selection of NAICS codes to only those industry sectors represented in the RMP data provide a complete and accurate picture of high risk industry sectors?

67 We note that for purposes of categorizing RMP processes based on accident frequency, some different NAICS codes represent essentially the same type of chemical process. For example, facilities in NAICS 311615 (poultry processing) and 49312 (refrigerated warehousing and storage) generally become RMP

‐ regulated as a result of using large anhydrous ammonia refrigeration systems. Similarly, there are several NAICS codes for RMP

‐ regulated processes that represent bulk storage of anhydrous ammonia by agricultural chemical distribution facilities. EPA could account for this by aggregating accidents from similar process types when updating Program 3 NAICS codes.*** E.O. 12866 Review

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### 114 d. Should an analysis of the RMP data be comb ined with an analysis of other current accident history databases to inform a ny revisions/updates? If so, what other databases should be used? How much weight should be given to the RMP data set in comparison to other sources?

e. Should the original NAICS codes continue to be included? Would not including the NAICS codes historically identified under Program 3 cause increase risks to those industry sectors by having them no longer subj ect to the more stringent measures? f. Should an analysis of accident history da ta be limited to a specific time frame?
g. Would it cause confusion with in the regulated community to change the list of NAICS codes for which Program 3 is required? h. What would be the economic impacts of modi fying the list of NAICS codes for which Program 3 is required? Are there any sp ecial circumstances involving small entities that EPA should consider with respect to m odifying the list of cove red NAICS codes?
11. The “Safety Case” Regulatory Model

. The “safety case” regulatory model 68 

### is a framework for regul ating high-risk industries where owners or operators of indus trial facilities are required to demonstrate to the regulator that they have reduced risks to a level that is “as lo w as reasonably practicable”, or ALARP. In the safety case model, operators must present to re gulators a structured argument, supported by a body of evidence that provides a compelling, comprehens ible and valid case that a system is safe for a given application in a given operating environment. This regula tory approach is used in the chemical and refining industries by some countri es outside the U.S., including the United

68 http://www.csb.gov/working

‐ papers ‐ on ‐ the

‐ safety

‐ case ‐ regulatory

‐ model

‐ and

‐ its

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### 115 Kingdom, Australia, Norway, and othe rs, and is similar in practice to the U.S. regulatory regime for nuclear reactor facilities regulated by the NRC. In its December 2013 Draft Regulatory Report on the Chevron Richmond Refinery Pipe Rupture and Fire, the CSB advocates the safe ty case approach as a safety management framework for U.S. refineries 69 

### . The CSB specifically reco mmends that the California legislature adopt the safety case approach for refine ries in California, and that OSHA, as part of that Agency’s response to Execu tive Order 13650, “develop questions and evaluate issues raised from the findings and conclusions in this report c oncerning the safety case regime.” As the CSB report was published after OSHA publishe d its RFI under Executive Order 13650, OSHA was not able to include questions c oncerning the CSB’s safety case r ecommendation within its RFI. However, because the OSHA PSM standard and EPA RMP regulation are closely linked, and together constitute the federal regulatory framew ork for chemical process safety management regulation in the U.S., EPA believes it is appropriate for the Agency to raise this issue within this
RFI. Completely replacing the current RMP regulat ion (and PSM standard) with a safety case approach would require significant changes to the existing regulatory regime for chemical process safety in the United St ates. Nevertheless, EPA is reque sting public comment on whether EPA and OSHA should consider these actions. As an alternative to a w holesale adoption of the safety case approach, EPA and/or OSHA could pot entially implement selected aspects of the approach within the current regulatory framew ork. For example, EPA and OSHA could require owners and operators to submit a PHA or a similar document to EPA and OSHA, and require

69 At its January 15, 2014, meeting, the Board refused to endorse this aspect of the draft report. The majority directed the CSB staff to revise the report within 120 days. http://www.contracostatimes.com/rss/ci_24922079

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### 116 Agency approval of the PHA. Also, EPA and OS HA could limit the applicability of the safety case approach to selected categ ories of high-risk facilities, such as petroleum refineries. EPA requests information on the advantages a nd disadvantages of adopting a safety case approach to replace the RMP re gulation and PSM standard, or al ternatively, of incorporating aspects of the approach into current regulations or for selected categories of facilities. In particular, EPA requests inform ation on the following questions:

a. If you own or operate any RMP or PSM-cove red facilities and al so own or operate facilities in countries that use a safety case regulatory regime, please describe the process of developing and obt aining approval for your safety case. How long does development and approval of a safety case take for a large petroleum refinery or chemical processing facility? What are the advantages and disadvantages of the safety case approach in comparison to the existing U.S. regulatory regime for chemical process safety? Is there any evid ence that the safety case approach reduces the frequency and severity of accidental re leases and near misses? If so, please provide any information, data, or studies to EPA that demonstrate these effects. How expensive is it for facility owners to implement the safety case approach in comparison to implementing RMP or PSM? Do you already incorporate aspects of the safety case approach in your risk management program? b. The CSB Draft Regulatory Report on the Ch evron Richmond Refinery Pipe Rupture and Fire 70 

### highlights the NRC as a U.S. regulator that has established a safety case approach for licensing and oversight of co mmercial nuclear power plants in the United States. The NRC oversees a pproximately 100 nuclear reactor and 3000

70 http://www.csb.gov/assets/1/19/CSB_Chevro n_Richmond_Refinery_ Regulatory_Report.pdf*** E.O. 12866 Review

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### 117 nuclear materials facilities in the U.S. 71 

### ; the NRC has nearly 4000 employees and an annual budget of over $1 billion 72 

### . What additional resource s would be required by EPA and OSHA in order to es tablish and oversee a safety case regulatory regime for RMP and PSM-covered facilities?

c. Is the safety case approach suitable for all RMP and PSM covered facilities, or, if adopted, should it be limited to only the most high-risk facilities , such as petroleum refineries and other high-risk ch emical processing facilities? d. What would be the economic impacts of m oving to a safety case based regulatory regime for chemical facility safety? Ar e there any special circumstances involving small entities that EPA should consider with respect to safety cas e based approach?
12. Streamlining RMP Requirements In addition to the items listed above, EPA is interested in gathering information on any other areas within part 68 that should be modern ized, strengthened, or cl arified. In particular, EPA invites comment on any potentia l revisions to the RMP rule that would make it easier for regulated sources to comply with (or make it more difficult to violate) its requirements. EPA also requests information on the following questions:

a. Are there steps that EPA could take to si mplify the process of determining whether the RMP rule applies to particular facilities ? Are there other poten tial revisions to the rule that would make it easier for re gulated entities to comply with (or more difficult to violate) its provisions?

71 http://www.nrc.gov/info

‐ finder.html 72 http://www.nrc.gov/reading

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### 118 b. Are there steps that EPA could take to simplify the RMP submission process? For example, are there advances in electronic reporting or informa tion technology that EPA could use in order to make RMP submissions easier?

c. Should EPA require that RMP submissions be certified by a senior corporate official, such as the Chief Executive Officer, Chie f Financial Officer, Chief Operations Officer, or the equivalent to ensure cor porate-wide awareness and accountability in the RMP submission? d. Is the three-tiered program level struct ure of the RMP regulation appropriate, or should EPA consider simplifying the rule to make only two program tiers, or only a single prevention program app licable to all facilities?

e. Are the accident prevention program elemen ts clearly defined? Should EPA further clarify any of the existing elements? f. Are the regulatory terms and definitions cont ained in section 68.3 sufficiently clear? Are there additional terms that EPA should define in this section?

Dated:

___________________________________________________ Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response.