31668 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 68

[FRL–5516–5]

RIN 2050–AD26

Accidental Release Prevention

Requirements: Risk Management

Programs Under Clean Air Act Section

112(r)(7)

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Clean Air Act requires

EPA to promulgate regulations to

prevent accidental releases of regulated

substances and reduce the severity of

those releases that do occur. EPA is

promulgating rules that apply to all

stationary sources with processes that

contain more than a threshold quantity

of a regulated substance. Processes will

be divided into three categories based

on: the potential for offsite

consequences associated with a worstcase accidental release; accident history;

or compliance with the prevention

requirements under OSHA’s Process

Safety Management Standard. Processes

that have no potential impact on the

public in the case of an accidental

release will have minimal requirements.

For other processes, sources will

implement a risk management program

that includes more detailed

requirements for hazard assessment,

prevention, and emergency response.

Processes in industry categories with a

history of accidental releases and

processes already complying with

OSHA’s Process Safety Management

Standard will be subject to a prevention

program that is identical to parallel

elements of the OSHA Standard. All

other processes will be subject to

streamlined prevention requirements.

All sources must prepare a risk

management plan based on the risk

management programs established at the

source. The source must submit the plan

to a central point specified by EPA; the

plan will be available to state and local

governments and the public. These

regulations will encourage sources to

reduce the probability of accidental

releases of substances that have the

potential to cause immediate harm to

public health and the environment and

will stimulate the dialogue between

industry and the public to improve

accident prevention and emergency

response practices.

DATES: The rule is effective August 19,

1996.

ADDRESSES: Supporting material used in

developing the proposed rule,

supplemental notice, and final rule is

contained in Docket No. A–91–73. The

docket is available for public inspection

and copying between 8:00 a.m. and 5:30

p.m., Monday through Friday (except

government holidays) at Room 1500,

401 M St. SW, Washington, DC 20460.

A reasonable fee may charged for

copying.

FOR FURTHER INFORMATION CONTACT:

Craig Matthiessen at (202) 260–8600,

Chemical Emergency Preparedness and

Prevention Office, U.S. Environmental

Protection Agency, 401 M St. SW,

Washington, DC 20460, or the

Emergency Planning and Community

Right-to-Know Hotline at 1–800–424–

9346 (in the Washington, DC,

metropolitan area, (703) 412–9810).

SUPPLEMENTARY INFORMATION: Judicial

Review. Accidental Release Prevention

Requirements: Risk Management

Programs Under Clean Air Act Section

112(r)(7) were proposed in the Federal

Register on October 20, 1993 (58 FR

54190). A supplemental notice was

issued on March 13, 1995 (60 FR

13526). This Federal Register action

announces the EPA’s final decisions on

the rule. Under section 307(b)(1) of the

Act, judicial review of the Accidental

Release Prevention Requirements: Risk

Management Programs is available only

by the petition for review in the U.S.

Court of Appeals for the District of

Columbia Circuit within 60 days of

today’s publication of this final rule.

Under section 307(b)(2) of the Act, the

requirements that are the subject of

today’s notice may not be challenged

later in civil or criminal proceedings

brought by the EPA to enforce these

requirements.

Regulated Entities

Entities potentially regulated by this

action are those stationary sources that

have more than a threshold quantity of

a regulated substance in a process.

Regulated categories and entities

include:

Category Examples of regulated entities

Chemical Manufacturers .................................................... Industrial organics & inorganics, paints, pharmaceuticals, adhesives, sealants, fibers

Petrochemical ..................................................................... Refineries, industrial gases, plastics & resins, synthetic rubber

Other Manufacturing ........................................................... Electronics, semiconductors, paper, fabricated metals, industrial machinery, furniture,

textiles

Agriculture .......................................................................... Fertilzers, pesticides

Public Sources ................................................................... Drinking and waste water treatment works

Utilities ................................................................................ Electric and Gas Utilities

Others ................................................................................. Food and cold storage, propane retail, warehousing and wholesalers

Federal Sources ................................................................. Military and energy installations

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether a

stationary source is regulated by this

action, carefully examine the provisions

associated with the list of substances

and thresholds under § 68.130 (59 FR

4478), the proposed modifications (61

FR 16598, April 15, 1996) and the stay

of implementation of the affected

provisions until the proposed

modifications are final published

elsewhere in today’s Federal Register,

and the applicability criteria in § 68.10

of today’s rule. If you have questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

The following outline is provided to

aid in reading this preamble:

I. Introduction and Background

A. Statutory Authority

B. Background

II. Discussion of Final Rule

A. Applicability

B. Program Criteria and Requirements

C. Hazard Assessment

D. Prevention Programs

E. Emergency Response

F. Risk Management Plan (RMP)

G. Air Permitting

H. Other Issues

III. Discussion of Comments

A. Tiering

1. Rationale

2. Program 1 vs. Program 2 and Program 3

Criteria
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31669

a. Potential for Offsite Impact

b. Accident History

c. Other

3. Program 2 vs. Program 3 Criteria

a. Number of Employees

b. SIC Code

c. Site-specific, Risk-based Criteria

d. Accident History

e. Other

4. Program 1 Requirements

a. Certification of No Environmental

Impact

b. Signs

c. Emergency Response Program

d. Other

5. Program 2 Requirements

a. Streamlined Program

b. Other Regulations

c. Emergency Response Program

B. Offsite Consequence Analysis

1. Worst-Case Release Scenario

2. Mitigation Systems

a. Worst-Case Release Scenario

b. Alternative Scenarios

3. Populations Affected

4. Number of Scenarios

5. Technical Guidance

6. Modeling Parameters

a. Endpoints

b. Meteorology

C. Consideration of Environmental Impact

1. Inclusion of Environmental Impacts

2. Environments to be Considered

3. Level of Analysis Required

D. Program 3 Consistency with OSHA PSM

Standard

1. Prevention Program

2. Enforcement

3. Exemptions

E. Relationship to Air Permits

1. General Relationship between the Part

68 and Part 70 programs

2. Impact of EPA’s Proposal on Air

Permitting Programs

3. Part 68 as an ‘‘Applicable Requirement’’

under Part 70

4. Role of the Air Permitting Authority

5. Air Permit Application Contents

6. Air Permit Contents

7. Completeness Review

8. Interaction of the Implementing Agency

and the Permitting Authority

9. Designated Agency

10. Reopening Air Permits to Incorporate

Section 112(r) Requirements

11. Use of Air Funds

12. Other Issues

F. General Definitions

1. Significant Accidental Release

2. Stationary Source

3. Process

4. Offsite

5. Other Definitions

G. Risk Management Plan (RMP)

1. Level of Detail

2. RMP Content

3. Submission

4. Other Issues

H. Prevention Program

I. Accident History

J. Emergency Response Program

K. Registration

L. Model Risk Management Programs

M. Implementing Agency Audits

N. Public Participation

O. Inherently Safer Technologies

P. Coverage by Other Regulations

1. General Issues

2. DOT Transportation Regulations

3. Other EPA Regulations

4. Other Federal Regulations

5. State and Local Regulations

Q. Industry-Specific Issues

1. Oil and Gas Facilities

2. Retail Facilities

a. Propane Retailers

b. Ammonia Retailers

3. Refrigeration Systems

4. Other Operations

R. Implementing Agency Delegation

S. Accident Reporting

T. Other Issues

1. OSHA VPP

2. Qualified Third Party

3. Documentation

IV. Section-by-Section Analysis of the Rule

V. Required Analyses

A. E.O. 12866

B. Regulatory Flexibility Act

C. Unfunded Mandate Reform Act

D. Paperwork Reduction Act

E. Submission to Congress and the General

Accounting Office

I. Introduction and Background

A. Statutory Authority

This rule is promulgated under

sections 112(r), 301(a)(1), Title V of the

Clean Air Act (CAA) as amended (42

U.S.C. 7412(r), 7601(a)(1), 7661–7661f).

B. Background

The CAA Amendments of 1990

amend section 112 and add paragraph

(r). The intent of section 112(r) is to

prevent accidental releases to the air

and mitigate the consequences of such

releases by focusing prevention

measures on chemicals that pose the

greatest risk to the public and the

environment. Section 112(r)(3)

mandates that EPA promulgate a list of

regulated substances, with threshold

quantities; this list defines the

stationary sources that will be subject to

accident prevention regulations

mandated by section 112(r)(7). EPA

promulgated its list of substances on

January 31, 1994 (59 FR 4478) (‘‘List

Rule’’).

As noted elsewhere in today’s Federal

Register, EPA has stayed certain

provisions of part 68 that were

promulgated as part of the List Rule.

The stayed provisions are being

addressed in amendments to the List

Rule, which were proposed in 61 FR

16598 (April 15, 1996). Therefore, EPA

has not taken final action on provisions

of the Risk Management Program rule

that apply to regulated substances,

mixtures, and stationary sources

addressed by the stayed provisions.

Final action will be deferred until EPA

takes final action on the proposed

amendments to the List Rule.

Section 112(r)(7) mandates that EPA

promulgate regulations and develop

guidance to prevent, detect, and

respond to accidental releases.

Stationary sources covered by these

regulations must develop and

implement a risk management program

that includes a hazard assessment, a

prevention program, and an emergency

response program. The risk management

program must be described in a risk

management plan (RMP) that must be

registered with EPA, submitted to state

and local authorities, and made

available to the public. On October 20,

1993, EPA published a Notice of

Proposed Rulemaking (NPRM) for the

section 112(r)(7) regulations (58 FR

54190). (For a summary of the statutory

requirements of section 112(r) and

related statutory provisions, see the

October 20, 1993, NPRM).

Following publication of the proposed

rule, EPA held four public hearings and

received approximately 770 written

comments. Because of these comments,

EPA issued a supplemental notice of

proposed rulemaking (SNPRM) on

March 13, 1995 (60 FR 13526) for

comment on: approaches for setting

different requirements for sources that

pose different levels of hazard (tiering);

worst-case releases and other hazard

assessment issues; accident information

reporting; public participation;

inherently safer approaches; and

implementation and integration of

section 112(r) with state programs,

particularly state air permitting

programs. EPA held a public hearing on

March 31, 1995, in Washington, DC, and

received more than 280 written

comments. Today’s rule reflects EPA’s

consideration of all comments; major

issues raised by commenters and EPA’s

response are briefly discussed in

Section III of this preamble. A summary

of all comments submitted and EPA’s

response to them is available in the

Docket (see ADDRESSES).

EPA has proposed to delist explosives

from § 68.130. Consequently, explosives

are not addressed in this rule. EPA had

also requested at the time of the final

List Rule comments on whether

flammable substances, when used as

fuel, posed a lesser intrinsic hazard than

the same substance handled otherwise

(59 FR 4500, January 31, 1994). The

comments submitted lacked data that

would justify a lesser level of hazard

consideration for flammable fuels;

hence, the Agency will not adopt a fuel

use exemption for purposes of threshold

quantity determination.

With today’s rule, EPA continues the

philosophy that the Agency embraced in

implementing the Emergency Planning

and Community Right-to-Know Act of
31670 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

1986 (EPCRA). Specifically, EPA

recognizes that regulatory requirements,

by themselves, will not guarantee safety.

Instead, EPA believes that information

about hazards in a community can and

should lead public officials and the

general public to work with industry to

prevent accidents. For example, today’s

rule requires covered sources to provide

information about possible worst-case

scenarios. EPA intends that officials and

the public use this information to

understand the chemical hazards in the

community and then engage in a

dialogue with industry to reduce risk. In

this way, accident prevention is focused

primarily at the local level where the

risk is found. Further, today’s rule

builds on existing programs and

standards. For example, EPA has

coordinated with Occupational Safety

and Health Administration (OSHA) and

the Department of Transportation (DOT)

in developing this regulation. To the

extent possible, covered sources will not

face inconsistent requirements under

these agencies’ rules. EPA is

encouraging sources to use existing

emergency response programs, rather

than develop a separate and duplicative

program under this rule. In addition,

today’s rule scales requirements based

on the potential risk posed by a source

and the steps needed to address the risk,

rather than imposing identical

requirements on all sources.

To accommodate the concerns of

small businesses, EPA is providing

guidance with reference tables that

covered sources can use to model the

offsite consequences of a release. EPA is

providing a model RMP guidance for the

ammonia refrigeration industry, and

will develop similar guidance for

propane handlers and drinking water

systems. As today’s rule is

implemented, EPA hopes that other

industry sectors will work with EPA to

develop model RMPs for other

processes, thereby reducing costs for

individual sources. Finally, today’s rule

requires industry to submit RMPs

centrally in a format and method to be

determined by EPA. Working with

stakeholders, EPA will develop

mechanisms to allow industry to use

appropriate electronic technology to

register with EPA and submit RMPs. In

turn, all interested parties will be able

to access electronically the data in

RMPs. This method of submission and

access avoids a potentially significant

amount of paperwork for all involved

parties and promotes uniformity. Users

will be able to develop databases for

specific purposes and compare RMPs

for various sites across the country. In

turn, industries’ use of the data will

promote continuous improvement, for

example, through new safety

technologies. As the method for

submitting RMPs is developed, EPA

invites the participation of all

stakeholders, including industry, state

and local governments, local emergency

planning committees, environmental

groups, and the general public.

II. Discussion of Final Rule

A. Applicability

The owner or operator of a stationary

source that has more than a threshold

quantity of a regulated substance in a

process must comply with these

requirements no later than June 21,

1999; three years after the date on which

a regulated substance is first listed

under § 68.130; or the date on which a

regulated substance is first present in

more than a threshold quantity in a

process, whichever is later.

B. Program Criteria and Requirements

Under today’s rule, processes subject

to these requirements are divided into

three tiers, labeled Programs 1, 2, and 3.

EPA has adopted the term ‘‘Program’’ to

replace the term ‘‘Tier’’ found in the

SNPRM to avoid confusion with Tier I

and Tier II forms submitted under

EPCRA, also known as Title III of the

Superfund Amendments and

Reauthorization Act of 1986 (SARA

Title III). Eligibility for any given

Program is based on process criteria so

that classification of one process in a

Program does not influence the

classification of other processes at the

source. For example, if a process meets

Program 1 criteria, the source need only

satisfy Program 1 requirements for that

process, even if other processes at the

source are subject to Program 2 or

Program 3. A source, therefore, could

have processes in one or more of the

three Programs.

Program 1 is available to any process

that has not had an accidental release

with offsite consequences in the five

years prior to the submission date of the

RMP and has no public receptors within

the distance to a specified toxic or

flammable endpoint associated with a

worst-case release scenario. Program 3

applies to processes in Standard

Industrial Classification (SIC) codes

2611 (pulp mills), 2812 (chlor-alkali),

2819 (industrial inorganics), 2821

(plastics and resins), 2865 (cyclic

crudes), 2869 (industrial organics), 2873

(nitrogen fertilizers), 2879 (agricultural

chemicals), and 2911 (petroleum

refineries). Program 3 also applies to all

processes subject to the OSHA Process

Safety Management (PSM) standard (29

CFR 1910.119), unless the process is

eligible for Program 1. Owners or

operators will need to determine

individual SIC codes for each covered

process to determine whether Program 3

applies. All other covered processes

must satisfy Program 2 requirements.

Program requirements and differences

are illustrated on Tables 1 and 2:

TABLE 1—PROGRAM ELIGIBILITY CRITERIA

Program 1 Program 2 Program 3

No offsite accident history ................................ ...................................................................... Process is subject to OSHA PSM.

No public receptors in worst-case circle ........... The process is not eligible for Program 1 or 3 Process is in SIC code 2611, 2812, 2819,

2821, 2865, 2869, 2873, 2879, or 2911.

Emergency response coordinated with local responders.......................................................................

TABLE 2—COMPARISON OF PROGRAM REQUIREMENTS

Program 1 Program 2 Program 3

Hazard Assessment:

Worst-case analysis .......................................... Worst-case analysis ......................................... Worst-case analysis.

Alternative releases .......................................... Alternative releases.

5-year accident history ...................................... 5-year accident history ..................................... 5-year accident history.

Management Program:

Document management system ....................... Document management system.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31671

TABLE 2—COMPARISON OF PROGRAM REQUIREMENTS—Continued

Program 1 Program 2 Program 3

Prevention Program:

Certify no additional steps needed ................... Safety Information ............................................ Process Safety Information.

Hazard Review ................................................. Process Hazard Analysis.

Operating Procedures ...................................... Operating Procedures.

Training ............................................................. Training.

Maintenance ..................................................... Mechanical Integrity.

Incident Investigation ........................................ Incident Investigation.

Compliance Audit ............................................. Compliance Audit.

...................................................................... Management of Change.

...................................................................... Pre-startup Review.

...................................................................... Contractors.

...................................................................... Employee Participation.

...................................................................... Hot Work Permits.

Emergency Response Program:

Coordinate with local responders ..................... Develop plan and program ............................... Develop plan and program.

Risk Management Plan Contents:

Executive Summary .......................................... Executive Summary. ......................................... Executive Summary

Registration ....................................................... Registration ....................................................... Registration.

Worst-case data ................................................ Worst-case data ............................................... Worst-case data.

5-year accident history ...................................... Alternative release data .................................... Alternative release data.

Certification ....................................................... 5-year accident history ..................................... 5-year accident history.

Prevention program data .................................. Prevention program data.

Emergency response data ............................... Emergency response data.

Certification ....................................................... Certification.

The owner or operator of a covered

process must: (1) prepare and submit a

single risk management plan (RMP),

including registration that covers all

affected processes and chemicals; (2)

conduct a worst-case release scenario

analysis, review accident history, ensure

emergency response procedures are

coordinated with community response

organizations to determine eligibility for

Program 1 and, if eligible, document the

worst case and complete a Program 1

certification for the RMP; (3) conduct a

hazard assessment, document a

management system, implement a more

extensive, but still streamlined

prevention program, and implement an

emergency response program for

Program 2 processes; and (4) conduct a

hazard assessment, document a

management system, implement a

prevention program that is

fundamentally identical to the OSHA

PSM Standard, and implement an

emergency response program for

Program 3 processes.

Measures taken by sources to comply

with OSHA PSM for any process that

meets OSHA’s PSM standard are

sufficient to comply with the prevention

program requirements of all three

Programs. EPA will retain its authority

to enforce the prevention program

requirements and the general duty

requirements of CAA Section 112(r)(1).

EPA and OSHA are working closely to

coordinate interpretation and

enforcement of PSM and accident

prevention programs. EPA will also

work with state and local agencies to

coordinate oversight of worker and

public safety and environmental

protection programs.

C. Hazard Assessment

EPA has adopted the worst-case

definition proposed in the SNPRM. For

all substances, the worst-case release

scenario will be defined as the release

of the largest quantity of a regulated

substance from a vessel or process line

failure, including administrative

controls and passive mitigation that

limit the total quantity involved or the

release rate. For most gases, the worstcase release scenario assumes that the

quantity is released in 10 minutes. For

liquids, the scenario assumes an

instantaneous spill; the release rate to

the air is the volatilization rate from a

pool 1 cm deep unless passive

mitigation systems contain the

substance in a smaller area. For

flammables, the worst case assumes an

instantaneous release and a vapor cloud

explosion.

For the final rule, EPA has adopted

the term ‘‘alternative release scenarios’’

to replace the term ‘‘other more likely

scenarios’’ found in the NPRM and

SNPRM. The non-worst-case accidental

releases for the hazard assessment

portion of the risk management plan

were presumed ‘‘more likely to occur’’

and ‘‘more realistic’’ than the worst

case. EPA believes sources should have

flexibility to select non-worst-case

scenarios that are the most useful for

communication with the public and first

responders and for emergency response

preparedness and planning.

Catastrophic accidental releases are

typically rare events; the words ‘‘more

likely’’ suggests certainty of occurrence.

Consequently, the scenarios other than

worst case provided in the hazard

assessment are called alternative release

scenarios. For alternative scenarios,

sources may consider the effects of both

passive and active mitigation systems.

One worst-case release scenario will

be defined to represent all toxics, and

one worst-case release scenario will be

defined to represent all flammables held

above the threshold at the source.

Additional worst-case release

scenario(s) must be analyzed and

reported if such a release from another

covered process at the source

potentially affects public receptors that

would not be potentially affected by the

first scenario. EPA recognizes that this

approach may be problematic for some

sources such as batch processors and

warehouses where use of listed

substances or inventory may vary

considerably within an RMP reporting

period. EPA suggests that owners or

operators of such processes develop a

worst-case scenario for future chemical

use and inventory based on past

practices to minimize the need for

frequent revision of their worst-case

scenario. For alternative release

scenarios, one scenario is required for

each toxic substance and one to

represent all flammable substances held

in covered processes at the source.

An endpoint is needed for the offsite

consequence analysis. Appendix A of

today’s rule lists the endpoints for toxic

substances that must be used in worst-
31672 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

case and alternative scenario

assessment. The endpoint for a toxic

substance is its Emergency Response

Planning Guideline level 2 (ERPG–2)

developed by the American Industrial

Hygiene Association (AIHA). If a

substance has no ERPG–2, then the

endpoint is the level of concern (LOC)

from the Technical Guidance for

Hazards Analysis, updated where

necessary to reflect new toxicity data.

EPA recognizes the limitations

associated with ERPG–2 and LOC values

and is working with other agencies to

develop Acute Exposure Guideline

Limits (AEGLs). When these values have

been developed and peer-reviewed, EPA

intends to adopt them through

rulemaking as the toxic endpoints for

this rule. For flammables, vapor cloud

explosion distances will be based on an

overpressure of 1 psi; for alternative

flammable releases, radiant heat

distances will be based on an exposure

of 5 kW/m2 for 40 seconds. For vapor

cloud fires and jet fires, the lower

flammability limit provided by the

National Fire Protection Association

(NFPA) or other sources shall be used.

EPA selected 1.5 meter per second

(m/s) wind speed and F atmospheric

stability class as the default worst-case

scenario meteorological conditions. If

the owner or operator has

meteorological data that show that

higher minimum wind speeds or less

stable atmospheric class conditions

existed at the source at all times in the

previous three years, then the higher

wind speed and different stability class

may be used. Alternative release

analyses may use site-specific, typical

meteorological conditions. If the owner

or operator has no data on typical

meteorological conditions, then

conditions used in the RMP Offsite

Consequence Analysis Guidance (3 m/s

and D stability), may be used. Although

EPA is providing technical guidance

and reference tables for worst-case and

alternative release scenario assessments,

owners or operators may use any

generally recognized, commercially or

publicly available air dispersion

modeling techniques, provided the

modeling parameters specified in the

rule are used.

For the hazard assessment and the

RMP, populations potentially affected

are defined as those within a circle that

has as its center the point of release and

its radius the distance to the toxic or

flammable endpoint. Owners or

operators may use Census data to define

this population, and may update those

data if they are inaccurate. EPA suggests

that owners or operators use LandView,

an electronic publication of

environmental, geographic and

demographic information published by

EPA and the Bureau of Census. The

presence of schools, hospitals, other

institutions, public arenas, recreational

areas, and large commercial and

industrial developments that can be

identified on street maps within this

circle must be noted in the RMP, but the

number of people occupying them need

not be enumerated. The presence of

environmental receptors within this

circle must also be listed. EPA has

defined environmental receptors as

natural areas such as national or state

parks, forests, or monuments; officially

designated wildlife sanctuaries,

preserves, refuges, or areas; and Federal

wilderness areas, that can be exposed to

an accidental release. All of these can be

identified on local U.S. Geological

Survey maps or maps based on USGS

data.

The five-year accident history will

cover all accidents involving regulated

substances, but only from covered

processes at the source that resulted in

serious on site or certain known offsite

impacts in the five years prior to the

submission of each RMP. EPA has

replaced the definition of significant

accidental release with specific

definitions of the types of releases to be

covered under each of the specific

requirements previously associated with

this definition.

D. Prevention Programs

EPA has retained the management

system requirement proposed in the

NPRM, but only for Program 2 and 3

processes. EPA has moved the

management system requirement from

the prevention program section to the

general requirements section because it

should be designed to oversee the

implementation of all elements of the

risk management program. The owner or

operator must designate a qualified

person or position with overall

responsibility for the program and

specify the lines of authority if

responsibility for implementing

individual requirements is assigned to

other persons or positions.

In the SNPRM, EPA proposed a

Program 2 prevention program that

covered training, maintenance, safety

precautions, and monitoring, but did

not specify any particular actions. EPA

solicited comment on whether specific

prevention activities should be required

for Program 2 sources, such as any of

the specific activities initially proposed

in the NPRM. For today’s rule, EPA has

developed seven specific elements for

the Program 2 prevention program:

safety information (§ 68.48), hazard

review (§ 68.50), operating procedures

(§ 68.52), training (§ 68.54), maintenance

(§ 68.56), compliance audits (§ 68.58),

and incident investigation (§ 68.60).

Most Program 2 processes are likely to

be relatively simple and located at

smaller businesses. EPA believes

owners or operators of Program 2

processes can successfully prevent

accidents without a program as detailed

as the OSHA PSM, which was primarily

designed for the chemical industry. EPA

combined and tailored elements

common to OSHA’s PSM and EPA’s

NPRM to generate Program 2

requirements and applied them to nonpetrochemical industry processes. EPA

is also developing model risk

management programs (and RMPs) for

several industry sectors that will have

Program 2 processes. These model

guidances will help sources comply by

providing standard elements that can be

adopted to a specific source. EPA

expects that many Program 2 processes

will already be in compliance with most

of the requirements through compliance

with other Federal regulations, state

laws, industry standards and codes, and

good engineering practices.

The Program 3 prevention program

includes the requirements of the OSHA

PSM standard, 29 CFR 1910.119 (c)

through (m) and (o), with minor

wording changes to address statutory

differences. This makes it clear that one

accident prevention program to protect

workers, the general public, and the

environment will satisfy both OSHA

and EPA. For elements that are in both

the EPA and OSHA rules, EPA has used

OSHA’s language verbatim, with the

following changes: the replacement of

the terms ‘‘highly hazardous substance,’’

‘‘employer,’’ ‘‘standard’’ and ‘‘facility’’

with ‘‘regulated substance,’’ ‘‘owner or

operator,’’ ‘‘part or rule,’’ and

‘‘stationary source’’; the deletion of

specific references to workplace impacts

or to ‘‘safety and health;’’ changes to

specific schedule dates; and changes to

references within the standard. The

‘‘safety and health’’ and ‘‘workplace

impacts’’ references occur in OSHA’s

PSM standard in process safety

information (29 CFR 1910.119 (d)(2)(E)),

process hazards analysis (29 CFR

1910.119(e)(3)(vii)), and incident

investigation (29 CFR 1910.119(m)(1)).

These changes are designed to ensure

that OSHA retains its oversight of

actions designed to protect workers

while EPA retains its oversight of

actions to protect public health and the

environment and to remove possible

interpretations that certain elements of

process safety management fail to

account for offsite impacts. Commenters

were particularly concerned about the

phase-in of process hazard analyses
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31673

(PHAs). Under the final rule, PHAs

conducted for OSHA are considered

adequate to meet EPA’s requirements.

They will be updated on the OSHA

schedule (i.e., by the fifth anniversary of

their initial completion). This approach

will eliminate any need for duplicative

analyses. Documentation for the PHA

developed for OSHA will be sufficient

to meet EPA’s purposes.

EPA anticipates that sources whose

processes are already in compliance

with OSHA PSM will not need to take

any additional steps or create any new

documentation to comply with EPA’s

Program 3 prevention program. Any

PSM modifications necessary to account

for protection of public health and the

environment along with protection of

workers can be made when PSM

elements are updated under the OSHA

requirements. EPA has modified the

OSHA definition of catastrophic release,

which serves as the trigger for an

incident investigation, to include events

‘‘that present imminent and substantial

endangerment to public health and the

environment.’’ As a result, this rule

requires investigation of accidental

releases that pose a risk to the public or

the environment, whereas the OSHA

rule does not. EPA recognizes that

catastrophic accidental releases

primarily affect the workplace and that

this change will have little effect on

incident investigation programs already

established. However, EPA needs to

ensure that deviations that could have

had only an offsite impact are also

addressed.

E. Emergency Response

EPA has adopted the emergency

response requirements found in the

statute, without additional specific

planning requirements beyond those

necessary to implement the statute. This

action is consistent with the Agency’s

effort to develop a single Federal

approach for emergency response

planning. The Presidential Review of

Federal release prevention, mitigation,

and response authorities (required

under section 112(r)(10) of the Clean Air

Act) found that there is seldom harmony

in the required formats or elements of

response plans prepared to meet various

Federal regulations. Accordingly, EPA

has committed not to specify new plan

elements and/or a specific plan format

in today’s rule beyond those that are

statutorily required. EPA believes that

plans developed to comply with other

EPA contingency planning requirements

and the OSHA Hazardous Waste and

Emergency Operations (HAZWOPER)

rule (29 CFR 1910.120) will meet most

of the requirements for the emergency

response program. In addition, EPA and

other National Response Team agencies

have prepared Integrated Contingency

Plan Guidance (‘‘one plan’’) (NRT, May

1996). The NRT and the agencies

responsible for reviewing and approving

federal response plans to which the one

plan option applies agree that integrated

response plans prepared in the format

provided in this guidance will be

acceptable and be the federally

preferred method of response planning.

An emergency response plan that

includes the elements specified in this

guidance can be used to meet the

requirements in today’s rule. The final

rule also provides relief for sources that

are too small to respond to releases with

their own employees; these sources will

not be required to develop emergency

response plans provided that

procedures for notifying non-employee

emergency responders have been

adopted and that appropriate responses

to their hazards have been addressed in

the community emergency response

plan developed under EPCRA (42 U.S.C.

11003) for toxics or coordinated with

the local fire department for

flammables.

F. Risk Management Plan (RMP)

Owners or operators must submit

their first RMP by the date specified in

§ 68.10. After the RMP is submitted,

changes at the source may require

updates to the RMP other than the

standard update every five years. If a

new substance or new process is added,

the RMP will need to be revised and

submitted by the date the substance is

first in the process above the threshold

quantity. If changes to processes require

revised hazard assessments or PHAs, or

if a process changes Program level, the

source must submit a revised RMP

within six months.

EPA intends that the RMP will be

submitted in a method and format to a

central point as specified by EPA.

States, local entities including local

emergency planning committees

(LEPCs), and the public will be able to

access all RMPs electronically. This

process will relieve states and local

entities of the burden of filing

documents and providing public access

to them without limiting these agencies’

or the public’s access to the information.

The RMP is a multi-purpose

document. The CAA requires that the

RMP indicate compliance with the

regulations and also include the hazard

assessment, prevention program, and

emergency response program. EPA is

mandated to develop a program for

auditing RMPs and requiring revisions,

where appropriate. The RMP, therefore,

must include enough data to allow the

implementing agency to determine,

through review of the RMP, whether the

source is in compliance with the rule.

EPA, however, believes that the RMP

must serve another function; to provide

information to the public in a form that

will be understandable and will

encourage the public to use the

information to improve the dialogue

with sources on issues related to

prevention and preparedness.

To meet both of these purposes, the

RMP will consist of the source’s

registration; an executive summary that

will provide a brief description of the

source’s activities as they relate to

covered processes and program

elements; and data elements that

address compliance with each of the

rule elements. While the public and

implementing agencies could make use

of all sections of the RMP, the executive

summary will provide text descriptions

and give the source a chance to explain

its programs in a format that will be

easy for communities to read and

understand. The data elements will

provide the implementing agency with

the basic data it needs to assess

compliance without asking for detailed

documentation. The Agency is

considering development of an RMP

form where the data elements of the

form would provide the implementing

agency with the basic data it needs to

assess compliance without asking for

detailed documentation. All data

elements would be checkoff boxes, yes/

no answers, or numerical entries.

This approach will provide data that

anyone can download or search. States,

communities, trade associations, or

public interest groups may want to use

the data or a subset of the data to create

databases that allow them to compare

sources in the same industry or same

area. For example, a local entity will be

able to download data from all reporting

sources that are similar to ones in its

community to determine whether the

quantities stored and process controls

used are typical. The information will

provide the public with data that will

enhance their dialogue with sources. It

will also help sources and trade

associations to understand practices in

their industries and identify practices

that could be used to reduce risks. The

risk management program

documentation will remain at the source

and will be available for review by EPA

and the implementing agency.

G. Air Permitting

The SNPRM discussed the

relationship between section 112(r) and

CAA air permitting requirements for

sources subject to both provisions.

Under the CAA, air permitting

authorities must ensure that sources are
31674 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

in compliance with applicable

requirements to issue a permit. Because

section 112(r) is an applicable

requirement, EPA has identified in the

final rule the permit conditions and the

actions owners or operators and air

permitting authorities must take to

ensure compliance. The permit must

identify part 68 as an applicable

requirement and establish conditions

that require the owner or operator of the

source to submit either a compliance

schedule for meeting the requirements

of part 68 by the date specified in

§ 68.10(a) or, as part of the compliance

certification submitted under 40 CFR

70.6(c)(5), a certification statement that,

to the best of the owner or operator’s

knowledge, the source is in compliance

with all requirements of this part,

including the registration and

submission of the RMP. The owner or

operator must also submit any

additional relevant information

requested by the air permitting authority

or designated agency to ensure

compliance with the requirements of

this section. If a permit is already issued

that does not contain the provisions

described above, then, the owner or

operator or air permitting authority shall

initiate permit revision or reopening

according to the procedures in 40 CFR

70.7 or 71.7 to incorporate the terms and

conditions as described above. EPA also

allows the state to assign the authority

to implement and enforce these

requirements to another agency or

agencies (the ‘‘designated agency’’) to

take advantage of resources or accident

prevention expertise that might be

available in these other agencies.

Finally, the air permitting authority or

designated agency must: (1) Verify that

the source owner or operator has

registered and submitted an RMP or a

revised plan when required; (2) verify

that the source owner or operator has

submitted the proper certification or

compliance schedule; (3) for some or all

sources, use one or more mechanisms

such as, but not limited to, a

completeness check, source audits,

record reviews or facility inspections to

ensure that permitted sources are in

compliance; and (4) initiate enforcement

action, based on the requirements of this

section, as appropriate.

H. Other Issues

In the SNPRM, EPA discussed three

other issues raised by commenters:

accident information reporting, public

participation, and inherently safer

technologies. EPA has decided not to

develop any requirements related to

these issues at this time. Although EPA

continues to believe that accident

reports that provide more detail on the

causes and impacts of accidents could

be useful, the Agency has decided to

limit such reporting required under this

rule to the five-year accident history

mandated by the CAA. When necessary,

EPA will use its authority to investigate

individual accidents and to seek

additional information to the extent

authorized by CAA section 114 (i.e., to

determine compliance with this rule

and CAA section 112(r)(1), to support

further rule development, and to assist

research on hazard assessment).

Secondly, the Agency encourages

sources, the public, and local entities to

work together on accident prevention

issues, but believes that the wide variety

and large number of sources subject to

this rule make any single mandatory

approach to public participation

inappropriate. RMP information should

be used as the basis for dialogue

between the community and sources on

accidental release prevention, risk

reduction and preparedness for

emergency response. Industry and the

public should continue to use the LEPC

as a mechanism for this dialogue.

Finally, EPA does not believe that a

requirement that owners or operators

conduct searches or analyses of

alternative process technologies for new

or existing processes will produce

significant additional benefits. Many

commenters, including those who

support these analyses, indicated that

an assessment of inherently safer design

alternatives has the most benefit in the

development of new processes. Industry

generally examines new process

alternatives to avoid the addition of

more costly administrative or

engineering controls associated with a

design that may be more hazardous in

nature. Although some existing

processes may be judged to be

inherently less safe than others, EPA

believes most of these processes can be

safely operated through management

and control of the hazards without

spending resources searching for

unavailable or unaffordable new process

technologies. Application of good PHA

techniques often reveals opportunities

for continuous improvement of existing

processes and operations without a

separate analysis of alternatives. EPA

encourages owners or operators to

continue to examine and adopt viable

alternative processing technologies,

system safeguards, or process

modifications to make new and existing

processes and operations inherently

safer. Through the process and

prevention program information in the

RMP, sources can demonstrate, and

users of the RMP information can

observe and promote, progress toward

safer processes and operations.

EPA is considering the development

of incentives and awards to stimulate

inherently safer alternative research and

development, public outreach and

education, and risk communication

efforts. The Agency welcomes ideas and

participation in this effort.

III. Discussion of Comments

EPA received 1220 comments,

including 180 relevant comments

submitted for the List Rule, 757

comments on the NPRM, and 283

comments on the SNPRM. The

commenters represented 92 chemical

manufacturers, 81 other chemical users,

111 petroleum industry companies, 174

industry trade associations, 40 other

trade associations, 58 agricultural

supply retailers, 102 propane retailers,

132 explosives users, 29 water treatment

facilities, 26 utilities, 66 state agencies,

63 local governments, 8 other Federal

agencies, 52 academics and consultants,

61 environmental groups, 6 labor

unions, and 31 private citizens. The

remaining 88 letters were requests for

extensions of the comment period,

interim or duplicate sets of comments,

or had been sent to the incorrect docket.

The major issues raised by the

commenters are briefly addressed

below; a complete presentation of the

Agency’s response to the comments

received on this rulemaking is available

in the Risk Management Program Rule:

Summary and Response to Comments in

the docket (see ADDRESSES).

Many commenters requested that

EPA’s list be identical to OSHA’s list of

highly hazardous substances and no

thresholds should be less than OSHA’s.

These comments were addressed in the

final list rule (59 FR 4478; January 21,

1994) and background material related

to these issues is available in docket

number A–91–74 (see ADDRESSES).

A. Tiering

Commenters on the NPRM suggested

that EPA create different levels of

requirements for sources that pose

different risks. In the SNPRM, EPA

proposed three tiers: a low hazard tier

for sources whose worst-case release

would not affect any public or

environmental receptors of concern; a

medium hazard tier for sources that

were not eligible or covered by the low

or high hazard tiers; and a high hazard

tier based on either industry sector

accident history and number of

employees or simply based on the

number of employees. Generally,

commenters were concerned that all

processes at a source would need to be

eligible for Program 1 before any process

could be. EPA has revised the rule to

clarify that eligibility for any tier
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31675

(Program) is based on process criteria,

not source. If a process meets Program

1 criteria, the owners or operators need

only meet Program 1 requirements for

that process even if other processes at

the source are subject to Program 2 or

Program 3.

1. Rationale. Only 2 of the 57

commenters opposed tiering arguing

that the CAA mandates that all covered

sources be required to complete a full

prevention program and that Congress

had considered and rejected

exemptions. One commenter argued that

EPA had already accounted for

‘‘differences in size, operations,

processes, class and categories of

sources’’ in developing the list and

thresholds. Most commenters supported

tiering as an appropriate way to

recognize different levels of risks and to

allow sources and emergency

responders to focus on the highest risk

processes.

EPA disagrees that the CAA requires

all covered processes to comply with

the same detailed risk management

program. EPA listed regulated

substances because of their inherent

hazards, such as toxicity and volatility.

EPA did not consider, nor does the CAA

indicate that it may consider,

‘‘differences in size, operations,

processes, class and categories of

sources’’ in selecting chemicals or

setting thresholds. In establishing

section 112(r)(7) requirements, however,

Congress clearly recognized that a ‘‘onesize-fits-all’’ approach may not be

appropriate for these regulations and

directed EPA to consider these factors in

the development of the accident

prevention regulations. Furthermore,

EPA strongly disputes the assertion that

it has exempted any source from

regulation by creating different

programs for different sources. As noted

below, all covered processes will be

addressed in RMPs that contain hazard

assessment, prevention, and response

information, as required by statute.

2. Program 1 vs. Program 2 and

Program 3 Criteria. Commenters

generally supported Program 1 for lowrisk sources, but argued that few, if any,

sources would qualify because the

requirements were too stringent.

a. Potential for Offsite Impact.

Commenters generally agreed that

sources that can demonstrate no offsite

impact should be eligible for Program 1,

but only public health should be

considered, not environmental impacts.

Others stated that only sources posing a

threat of ‘‘considerable’’ impacts should

not be eligible for Program 1. One

commenter stated that EPA’s worst-case

scenario is unrealistic and its use as a

Program 1 trigger is unreasonable. Other

commenters want EPA to allow sitespecific modeling for the offsite

consequence analysis, rather than lookup tables.

In today’s rule, EPA specifically

allows owners or operators to use sitespecific air dispersion modeling for

their offsite consequence analyses. EPA

disagrees that offsite impacts should be

limited to ‘‘considerable’’ impacts.

When offsite impacts are possible, it

may be reasonable to implement some

additional measures to reduce

accidental releases, especially when the

burden of measures such as additional

training or safety precautions is low.

Programs 2 and 3 provide flexibility to

allow source-specific consideration of

the appropriate level of effort. Program

1 requires no additional prevention

measures, which is only categorically

justifiable if such measures would not

reduce offsite impact. It is reasonable to

couple a no impact criterion with a

conservative worst-case scenario to

conclude categorically the public would

not benefit from additional prevention

measures. If no impact can be

demonstrated for a conservative worstcase release, then no impact is likely to

occur for any other release event, and

the process could be judged to pose a

low threat to the surrounding area.

EPA has decided that potential impact

on environmental receptors resulting

from a worst-case scenario will not be

a criterion to determine eligibility for

Program 1. EPA agrees that very little,

if any, data exist on the potential acute

environmental impacts or

environmental endpoints associated

with listed chemicals upon accidental

release. In addition, the offsite

consequence distances estimated using

human acute toxicity or overpressure

effects may not be directly relevant to

environmental effects. However, owners

or operators will be required to

document in the RMP the presence of

such receptors within the distance

determined for the worst case. EPA

believes that natural resource agencies

and the public will be able to benefit

from the environmental receptors

information in the RMP in discussions

with the source.

b. Accident History for Program 1.

Many commenters objected to accident

history as a Program 1 criterion, arguing

that a process that had a significant

accidental release in the previous five

years may have been changed to reduce

or eliminate future events and public

impact. Several commenters suggested

that such processes that otherwise meet

Program 1 criteria should remain

eligible, but be required to justify and

document the changes. Some

commenters also objected to EPA’s

proposed definition of significant

accidental release, arguing that many

companies and emergency responders

conservatively evacuate or shelter-inplace during minor incidents. Under the

proposed definition, these actions

disqualify a process from Program 1

even if there were no offsite impacts.

Some commenters stated that the

accident history provision was

unnecessary because, by definition, a

Program 1 process is not capable of an

accidental release that could affect

public receptors.

EPA has decided to retain the

accident history criterion for Program 1

processes, excluding events with

evacuations and shelterings in place,

and to drop the definition of significant

accidental release. Program 1 eligibility

is not a one-time exercise; owners or

operators must certify in each RMP that

no qualifying releases have occurred

since the previous RMP submission and

provide current worst-case release data

indicating no offsite impacts are

anticipated in the future. Program 1

criteria and accident history provide

owners or operators an opportunity to

demonstrate to the community ongoing

excellence in accident prevention and

an incentive to search for and

implement ways, such as inventory

reduction, to reduce the potential for

offsite impacts associated with large

scale accidental releases. Further, the

unique circumstances surrounding past

accidents can provide a reality check on

the theoretical modeling and worst-case

scenario claims used for the offsite

consequence assessment and serve to

verify that administrative controls and

passive mitigation measures work as

intended. EPA decided to delete public

evacuations or shelterings-in-place as

criteria for Program 1 eligibility. EPA is

that inclusion of these criteria in

Program 1 eligibility may create a

perverse incentive not to report releases

and it may encourage sources and local

emergency officials to take more

chances during an event when there

may be potential exposures that do not

rise to the endpoint specified in this

rule but would otherwise be worthy of

precautionary actions by the source or

by local officials. If the evacuation or

sheltering takes place because of a

concern for public exposure to an

endpoint as specified in this rule, then

public receptors necessarily would be

under the worst case distance and the

process would not be eligible for

Program 1 under the criteria of the rule.

Owners or operators of processes that

meet Program 1 eligibility requirements

are required to report a 5 year accident

history for that process. If local
31676 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

emergency planners, first responders or

the public have concerns about

processes in Program 1 because of a past

evacuation or sheltering-in-place event,

then mechanisms under EPCRA could

be used to gather more information from

the source about its prevention program

(such as EPCRA sections 302(b)(2)

[designation of a facility if it does not

already handle extremely hazardous

substances listed under section 302] and

303(d)(3) [provision of information to

the emergency planning committee])

and involve the source in emergency

planning. Sources and local first

responders should be discussing

evacuation and sheltering-in-place

criteria and decisions as part of

emergency response planning.

c. Other. Many commenters asked that

specific industries such as ammonia

refrigeration, retail fertilizer outlets, all

flammables, and all non-PSM sources be

assigned to Program 1. EPA disagrees

because each source has unique

surroundings that must be considered in

the worst-case assessment and each

source must demonstrate favorable

accident history. All ammonia

refrigeration units covered by this rule

are already subject to OSHA PSM; many

of these have had accidents that affected

the community and should be required

to complete the requirements of the

hazard assessment and emergency

response program and provide the

community with full RMP information.

According to the industry, a typical

ammonia fertilizer retailer handles 200

tons of ammonia. Some retailers may be

very geographically isolated and can

qualify for Program 1, but EPA expects

that most will be subject to Program 2.

Given the large quantity of ammonia

involved, EPA considers it important

that the community have information on

offsite consequences from these sources

and that the owner or operator takes the

necessary steps to address accidental

release prevention and emergency

response.

EPA expects that some sources

handling flammables will qualify for

Program 1 because the distance to a 1

psi overpressure is generally less than

distances to toxic endpoints.

Nonetheless, those sources handling

flammables in sufficient quantity to

generate a potential offsite impact

should provide the community with

information on hazards and address

prevention and response steps. Many

sources handling flammables are

already subject to PSM; the only

additional steps required under this rule

are completion of the hazard assessment

and emergency response programs and

submission of an RMP.

EPA does not agree that non-PSM

sources should be assigned to Program

1. Many of these sources could have an

accidental release that can affect the

community. OSHA exempted retailers

because they are covered by other

OSHA or state regulations that address

workplace safety, not because they are

incapable of having offsite impacts. All

retailers are in Program 2 unless they

can meet Program 1 criteria; thus, they

should be taking prevention steps and

will be providing the community with

information. Compliance with other

existing Federal and state programs may

satisfy many Program 2 prevention

requirements, thereby limiting the

burden. In addition, EPA expects to

develop model risk management

programs for these sectors. Public

sources in states without delegated

OSHA programs are not covered by

OSHA PSM because OSHA is barred by

law from regulating them. Nonetheless,

these sources may pose a threat to the

community. Today’s rule places these

sources in Program 2.

3. Program 2 vs. Program 3 Criteria. In

the SNPRM, EPA’s preferred approach

assigned sources to Program 3 based on

SIC code and number of employees;

sources in specified SIC codes with 100

or more full-time employees (FTE)

would have been subject to the full

program in 3 years; sources in a subset

of these SIC codes with 20 to 99 FTEs

would have been subject to the full

program in 8 years. The alternative was

to impose the full program on all

sources with more than 100 FTEs. Most

SNPRM commenters submitted

suggestions and arguments about this

approach.

a. Number of Employees. Only two

commenters supported using the

number of employees as the sole

criterion, arguing it would be the easiest

approach to implement with the greatest

amount of industry participation.

Commenters opposed it because the

number of employees proposed does not

reliably correlate with risk, hazard, or

quantity on site, and because it could

act as an incentive to reduce

employment. In addition, some

commenters stated that smaller sources

may have fewer resources to manage

hazards and, therefore, may pose a

greater risk to the public.

EPA agrees and has deleted the

number of employees as a Program 3

criterion. Although size of a source in

the manufacturing sectors may be

related to the quantities on site and

complexity of the processes, many other

sources may have similar characteristics

with fewer employees. Complexity is

more directly associated with the type

of industry (i.e., SIC code) than with

number of employees; a highly

automated process may involve fewer

employees and be more complex than a

more labor intensive process. Quantity,

if relevant, can be directly measured

rather than indirectly by number of

employees. In addition, EPA was

concerned that the data on which the

Agency based its proposed approach

may not be representative of all

accidental releases. These data, drawn

from reports to the National Response

Center and EPA regions, appear to

indicate that larger sources have more

and larger accidental releases than do

smaller sources. This finding, however,

may in part reflect different levels of

reporting, rather than different levels of

accidents. Both Federal and state

officials report that the number of

releases has risen in recent years as

more sources learn about their reporting

obligations. EPA has decided that,

because the processes within the SIC

codes basically handle the same

chemicals in the same way, smaller

sources should not be moved to a

different Program based on the number

of employees.

b. SIC Code. Fifty-seven commenters,

particularly those in the oil industry,

utilities, and public systems, supported

the use of SIC codes based on accident

history; 28 commenters opposed it.

Supporters argued that industry

accident records represented a

reasonable criterion for identifying highrisk sources. If an entire industry has a

long history without accidental release,

it may indicate that the materials

handled and handling conditions

generate a smaller potential for serious

releases or that the industry is

effectively controlled by government or

industry standards. Some commenters

argued that industry accident histories

reflect underlying risk better than

individual source accident histories

because accidents are rare events; a

source with no accidental releases over

the previous five years is not necessarily

safe.

Commenters opposing the use of SIC

codes stated that the approach is

arbitrary, that accidents with only onsite

effects should not be used, that sources

in other industry sectors handle similar

quantities and pose similar risks, and

that sources within an industry that

have successful risk management

practices are penalized by a few isolated

sources within the industry.

EPA has decided to retain the use of

SIC codes, adding SIC 2865 based on

further review of accident histories, and

to add coverage by the OSHA PSM

standard as a separate criterion for

Program 3. EPA selected the SIC codes

by analyzing accident data filed by
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31677

sources in response to EPA’s request for

information in the Accidental Release

Information Program (ARIP). ARIP

collects data from certain sources that

report releases under CERCLA section

103. EPA selected the SIC codes that

showed a high frequency of the most

serious accidents across a significant

percentage of all sources within the SIC

code to avoid mischaracterizing an

industry based on isolated, problematic

sources. Data on the selection criteria

were summarized in the SNPRM and

the docket at the time of the SNPRM.

The accident history of the cyclic crudes

industry (SIC code 2865) is similar to

that of the categories selected. EPA

disagrees that only offsite impacts

should be considered; accidental

releases that caused death,

hospitalizations, or injuries on site are

also of concern because they indicate

significant safety problems that could

lead to releases that cause impacts

offsite. The SIC codes selected by EPA

are basically the same ones OSHA

selected for its PSM program inspection

focus. EPA disagrees that sources are

‘‘penalized’’ by this approach because

owners or operators of processes in

these SIC codes have an opportunity to

present their safety record, demonstrate

the success of their accident prevention

programs, and communicate with the

local community the basis for their risk

management practices. Sources that

receive Merit or Star status in the OSHA

Voluntary Protection Program will be

favorably distinguished from others in

the same industry when implementing

agencies are selecting sources for audits

(see section III.T.1 below).

EPA agrees that serious accidents

occur infrequently even at sources with

poor safety practices and that industrywide accident records provide a better

mechanism than the accident history at

a single source for identifying those

sectors whose chemicals and processes

may lead to serious releases. A high

proportion of the sources in some SIC

codes reported releases; EPA’s analysis

specifically took into account the

number of reports from individual

sources to avoid selecting an SIC code

because of a small number of sources

with serious safety problems.

The OSHA PSM already applies to

most covered processes in the selected

SIC codes. EPA expects that there will

be fewer than 400 additional processes

assigned to Program 3 that are not

already subject to the OSHA PSM

standard at the approximately 1,400

sources in these SIC codes and that all

of these sources will already have other

processes covered by OSHA PSM.

Consequently, fulfilling the RMP

requirements imposes little additional

burden.

EPA decided to include all covered

processes currently subject to the OSHA

PSM standard in Program 3 to eliminate

any confusion and inconsistency

between the prevention requirements

that the owners or operators of such

processes must meet. EPA’s Program 3

prevention program is identical to the

OSHA PSM standard. Including OSHA

PSM processes in Program 3, therefore,

imposes no additional burden on these

processes; the only new requirements

for such processes are the hazard

assessment, emergency response

program, and the RMP, which are the

same under Programs 2 and 3.

c. Site-Specific, Risk-based Criteria.

Many commenters stated that Program

assignment should be based on sitespecific risk-based criteria. Accident

history is one such criterion and is

discussed separately in Section

III.A.3.d. Other criteria suggested

include population density or

proximity, quantity on site, number of

substances held above the threshold,

process conditions, toxicity, volatility,

alternative release scenario results, or

combinations of these factors as a risk

index.

EPA agrees with commenters that

Program assignments should be riskbased to the extent possible; however, as

the variety of suggestions indicates, a

considerable number of variables would

need to be considered. EPA knows of no

standard approach or equation that is

used and generally accepted. The

variety of suggestions indicate the

likelihood that any proposed formula

would meet opposition. No commenter

provided a method to comprehensively

address these factors on a nation-wide

basis.

An important consideration for EPA

in developing the rule provisions for

Program assignment was to avoid undue

complexity, confusion, and resource

expenditure by sources and

implementing agencies implementing

the rule’s criteria. To some extent, EPA

has incorporated risk factors, including

site-specific factors, in determining

which sources are eligible for which

Program. For example, Program 1

eligibility already considers the

potential for offsite impacts; any process

for which there are no public receptors

within the distance to an endpoint from

a worst-case release may be eligible for

Program 1, provided there have been no

releases with certain offsite

consequences within the previous five

years. Today’s rule allows sources to

consider passive mitigation and

administrative controls in conducting

the worst-case release analysis. Such

site-specific considerations affect the

extent of potential exposure to a worstcase release, and thus are reflected in

the Program 1 eligibility criteria.

Elements of risk such as process

complexity and accident history are also

reflected the design of Program 2 and

Program 3 requirements and the

assignment of processes to these

Programs. Program 2 sources generally

handle and store regulated substances,

but do not react or manufacture them.

EPA believes Program 2 sources can

take prevention steps that are less

detailed than those in the OSHA PSM

standard and still accomplish accident

prevention that is protective of any

population nearby. Program 3 is

reserved for processes already subject to

the OSHA PSM standard and processes

with high accidental release histories.

The SIC codes with an accident history

selected by EPA for Program 3 are

typically complex processes. The PSM

standard was designed for, and is

particularly appropriate for, these

processes.

EPA takes issue with the

appropriateness of some of the

suggested factors. Meteorological

conditions vary too much to be

considered in determining a risk level.

Chemical quantity alone does not

accurately relate to risk because the

location and handling conditions can

dramatically change the potential for

exposures.

In addition, EPA has implementation

concerns about a detailed, national,

multi-factor, risk-based approach, were

it to be feasible. States such as Delaware

have used a simple version of a riskbased approach and found that it

created serious problems for the state

and the sources. Smaller sources and

those without technical staff have had

great difficulty in implementing the

approach and have had to rely on state

officials to determine applicability for

them. Delaware specifically

recommended that EPA not attempt

implementing a similar approach on a

national basis because of the burden it

imposes on the state and the confusion

and uncertainty it creates for sources.

Delaware has fewer than 100 sources;

nationally, EPA estimates that 66,000

sources will be subject to the rule,

approximately 62,000 of which are

outside of the chemical and refining

sectors. If implementing agencies had to

help most of these sources determine

the index score and Program for each

process, not only would the burden on

the agencies be extreme, but

implementation would also be delayed.

Furthermore, were EPA to simply

identify risk factors without an index

and leave the determination of Program
31678 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

level to sources or implementing

agencies, the process for such sitespecific determinations would be even

more complex and resource intensive

for sources and implementing agencies;

it would create disincentives for a state

to become involved and to take on the

role of an implementing agency. EPA

believes it is better to have sources and

agencies focus their resources on

prevention activities.

EPA considered, but decided against,

a less comprehensive risk-based

approach using proximity or population

density as criteria for distinguishing

between Program 2 and 3. EPA

recognizes that accidental releases from

sources near or in densely populated

areas may harm more individuals and

be perceived to pose a greater risk than

other sources. However, as stated above,

EPA believes that the type of process, its

complexity and accident history should

be considered for Program 2 or 3

assignment, regardless of the number of

people potentially exposed. In other

words, EPA does not believe the

streamlined Program 2 prevention

elements should apply to a complex

Program 3 process just because fewer

persons could be potentially exposed or

that the Program 3 prevention elements

should apply to a Program 2 process

because more people could be

potentially exposed. EPA believes that

populations offsite should be protected

from harm based on the type of process;

the Program 2 prevention elements,

properly applied to the expected types

of Program 2 processes, serves to protect

off-site populations, just as the Program

3 prevention elements for complex

processes serves to protect offsite

populations.

If Program assignments were based on

the alternative release scenario results,

sources would not have the flexibility

and latitude in today’s rule for these

scenarios because more definite criteria

would need to be considered to ensure

the proper scenarios and results are

assessed. This places more emphasis

and burden for sources on the offsite

consequence assessment rather than on

accident prevention and communication

with the public and first responders.

Furthermore, because active mitigation

includes process and control equipment

that may fail, considering such

equipment in evaluating risk would not

be appropriate without detailed review

by the source and oversight by the

implementing agency.

Some commenters suggested yet

another variation of a less

comprehensive, ‘‘risk’’-based approach

that would have EPA use a site-specific

analysis of likelihood of release to

assign Program levels. Many of the same

difficulties in developing a ‘‘risk index’’

for determining Program assignments

would apply to an attempt to

incorporate likelihood in a more

sophisticated manner than EPA was

able to do in its analysis of accident

history by SIC code. In addition to the

substance-specific properties considered

as part of the chemical listing criteria,

the site-specific likelihood of a release

depends on a number of factors,

including the appropriateness of the

equipment in use, the maintenance of

that equipment, operator performance,

and safety systems and their

performance. Evaluating site-specific

likelihood of release requires data on

each of these items; such data rarely

exist especially for complex processes

where a variety of equipment must be

evaluated along with the performance of

multiple operators and maintenance

workers. Using surrogate data (e.g.,

manufacturer’s failure rate data)

introduces error of an unknown

magnitude to the analysis. Such

analyses are very costly and produce

results that are, at best, questionable.

EPA also believes that assessing the

likelihood of a release at most sites for

site-specific individualized Programlevel determinations is neither

technically feasible nor cost-effective. In

most cases, the data do not exist to

conduct a meaningful analysis; where

they do exist, the cost of developing a

defensible analysis and overseeing it

could well exceed the cost of

compliance with the rule. Such an

approach would resemble a permit

program, which would be resourceintensive for sources and implementing

agencies. EPA determined that the

simpler approach for assigning sources

to Program 1 would provide regulatory

relief for those sources that could not

affect the public while allowing other

sources to devote their resources to

prevention activities rather than to

analyses that would be subject to legal

challenges.

EPA notes that sources have the

flexibility to implement appropriate

accident prevention measures based on

the hazards and risks discovered in the

hazard review or process hazard

analysis. The structure of Programs 2

and 3, therefore, reflect site-specific risk

criteria. Further, the purpose of the risk

management program and RMP effort is

to prevent accidents and facilitate local

level dialogue about the risks,

prevention measures, and emergency

response effort in place at the source.

The local community and first

responders may have far different

concerns that should, and can be

addressed better through today’s

approach than those reflected by a risk

index approach.

d. Accident History. Some

commenters argued that EPA should

assign sources to Program 3 based on

the accident history of the source. One

commenter suggested that any source

with no accidental release that exceeded

a reportable quantity (as defined in

CERCLA) for the previous five years

should be in Program 2. Others argued

that a source should be in Program 2 if

it had no significant accidental release

in the previous five years. Some

commenters said that a one-release

standard was too stringent and that two

or more significant accidental releases

should be allowed before a source was

assigned to Program 3. Another

commenter suggested that a source with

no significant accidental releases in the

past five years and with few potentially

impacted neighbors should be placed in

Program 2.

Other commenters opposed this

approach, arguing that, in many cases,

sources take steps to prevent

recurrences following a serious release.

In some cases, the offsite impacts from

releases are minor and would not justify

assigning a source to a particular

Program. Other commenters stated that

the absence of an accidental release can

be indicative of lower risk, but it can

also simply mean that a release has not

yet occurred. Several commenters noted

that a five-year time period is

statistically insignificant because

accidental releases are infrequent

events.

EPA agrees that source-specific

accident history is not a reasonable

basis for assigning processes to

Programs 2 and 3. Given the relative

infrequency of serious accidents, a fiveor even ten-year period without an

accident may not be indicative of safe

operations. In addition, the criteria

necessary to define the types of past

accidental release for the purposes of

program classification would need to be

based on a wide variety of variables and

site-specific factors, which would lead

to confusion and unnecessary

complexity. Factors such as weather

conditions at the time of the release,

rather than the size of a source or its

management practices, often determine

whether a release has offsite

consequences. EPA believes that

accident history is appropriately used

on an industry-wide basis as described

above for selection of Program 3

sources. If accidental releases with

consequences appear to occur at a large

proportion of sources within an SIC

code, where similar processes,

equipment and chemicals are used, then

it is reasonable to conclude that
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31679

processes in that SIC code pose a greater

likelihood of a high hazard release than

others. This approach removes the need

for at least one accident to occur at

every source that EPA believes ought to

be assigned to a particular Program,

especially when such accidents are rare

events. EPA is also concerned that using

source-specific accident history as a

criterion would create an incentive for

sources to fail to report releases. Finally,

as EPA has stated, assignments to

Program 2 and 3 also consider the

appropriateness of the prevention steps

for the types of sources. EPA believes

that both Programs move sources to

greater accident prevention.

e. Other. Some commenters asked that

the implementing agency be given

discretion to move a source into a

different Program based on local

concerns and knowledge. EPA notes

that states have the authority, under the

CAA, to impose more, but not less,

stringent standards than EPA (see CAA

section 112(r)(11)).

A few commenters suggested that

Program 2 be limited to sources for

which a model risk management

program had been developed. The

models would be designed to reflect

risks associated with categories of

sources that all use the same type of

equipment and handle the substances in

the same way (e.g., propane retailers

and users, ammonia retailers). EPA

considered this approach and decided

that the Program 2 prevention program

provides a better, generic prevention

approach for processes for which the

more detailed PSM program would be

inappropriate. Limiting Program 2 to

those industrial sectors where industryspecific models are feasible would place

some manufacturing sources at a

disadvantage simply because their

chemical uses, processes, and

equipment were too varied to allow

development of a model or because

there are too few sources to justify use

of EPA or industry resources to develop

a model. In addition, if EPA were to

limit Program 2 to sources with model

programs, Program 2 regulations would

need sufficient specificity to enforce the

use of these models; otherwise, sources

would be able to ignore both PSM and

the models. EPA is also concerned that

codifying the model plans could stifle

innovation in safety practices. If

industry codes or other Federal

regulations on which parts of the

models may be based were updated,

EPA would have to revise its models;

given the time needed to propose and

adopt regulations, sources might have to

delay implementation of new systems

and, in some cases, might be caught

between complying with a revised EPA

or OSHA regulation or state law or

complying with the model.

Consequently, EPA decided it was better

to have models available as guidance,

but not require compliance with them.

Further, EPA believes that the key

elements of good accident prevention

practices are captured within the

requirements of the Program 2

prevention program. Model programs

and plans are likely to build on these

approaches, making it easier for sources

in Program 2 to use models that are later

developed by others.

EPA is working with industry to

develop model risk management

programs and RMPs for ammonia

refrigeration systems, propane

distributors and users, and water

treatment systems. EPA also expects to

develop models for ammonia retailers

and wastewater treatment systems. EPA

encourages other industrial sectors to

work together on additional model

development.

4. Program 1 Requirements.

Commenters were generally opposed to

posting signs, and certification of no

environmental impact.

a. Certification of No Environmental

Impact. Many commenters stated that it

would be ‘‘virtually impossible’’ to

certify ‘‘no potential for environmental

impacts,’’ as required by the SNPRM.

Commenters said that the definition of

environmental impact was too vague,

that the list of environments suggested

in the SNPRM was too broad, and that

the language seemed to require a full

environmental consequence assessment,

making the requirement impossible.

One commenter noted that companies

would find it difficult to assert that

there could be ‘‘no environmental

impacts’’ even after an environmental

consequence assessment reveals

insignificant impacts. Two commenters

suggested that EPA substitute ‘‘low

potential for environmental impact’’ or

‘‘no potential for long-term, adverse

environmental impact.’’ Other

commenters requested that

environmental impact be dropped or

that the requirement be changed to

mirror the Program 1 eligibility criteria

with an indication in the RMP that no

environmental receptors of concern

were within the worst-case distance to

an endpoint.

As described above in section

III.A.2.a. Potential for Offsite Impact,

EPA has decided not to make the

presence of environmental receptors a

part of the eligibility criteria for Program

1 and has deleted the certification

requirement. Instead, owners or

operators of all covered processes will

have to identify in the RMP any

environmental receptors that are within

the distance potentially affected by the

worst case.

b. Signs. Commenters generally

opposed the SNPRM requirement that

sources with Program 1 processes post

signs warning of the hazards on site if

the only regulated substances present at

the site above the threshold quantity

were listed for flammability.

Commenters stated that local and state

fire and safety codes often already

require such signs. In addition, sources

are already required under EPCRA

section 312 to file annual inventories

with the LEPC and fire department that

identify hazards on site. Signs would

have fulfilled the emergency response

program requirements for a source.

Because Program 1 eligibility will now

be determined on a by-process basis

rather than by source-wide criteria and

because EPA has revised the emergency

response program provisions as noted

below, EPA has dropped the

requirement for signs.

c. Emergency Response Program. In

the SNPRM, EPA asked whether

additional emergency response planning

and coordination should be required for

Program 1 processes. Some commenters

supported this requirement, while

others stated that most sources are

already covered by EPCRA and

participate in community response

planning. Commenters stated that

because the worst-case release could not

reach public receptors, such efforts were

not necessary.

In the final rule, EPA is requiring the

owner or operator of a Program 1

process to ensure that any necessary

response actions have been coordinated

with local response agencies. EPA

believes that local responders may

become involved in an incident, even if

the public is not threatened. No

additional CAA-related planning

activities are required, however.

d. Other. Many commenters stated

that, since Program 1 processes generate

no offsite impact, they should be

exempt from this rule. One commenter

objected to Program 1 because members

of the public, particularly first

responders and business visitors, could

still be hurt by a release. Other

commenters suggested that the annual

EPCRA section 312 form could be

amended to indicate that a source was

covered by the rule, replacing the RMP

registration form.

The CAA requires that all sources

with more than a threshold quantity of

a listed substance register an RMP,

perform a hazard assessment, and

develop accidental release prevention

and emergency response programs.

Therefore, total exemption of processes

that meet Program 1 criteria is not
31680 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

possible. See S. Rep. No. 228, 101st

Cong., 1st session, at 208 (‘‘Senate

Report’’) (precursor of RMP provision

mandating hazard assessments for

sources that exceed threshold for listed

substance); 136 Congressional Record

S16927 (daily ed. October 27, 1990)

(remarks of Sen. Durenburger, sources

with more than a threshold quantity are

subject to regulations); 136 Cong. Rec.

H12879 (daily ed. Oct. 26,

1990)(remarks of Rep. Barton)(all users

of hazardous chemicals are required to

plan for accidents). Moreover, even if an

exemption for processes that exceed a

threshold were permissible, the owner

or operator would need to take steps

that are equivalent to the hazard

assessment to establish eligibility for the

exemption. The offsite consequence

analysis is the most significant burden

for a Program 1 process under this rule.

The minimal additional actions required

in today’s rule for Program 1 simply

establish a record of eligibility and a

response coordination mechanism.

EPA recognizes that emergency

responders and site visitors could be

hurt by an accidental release from any

process, but notes that responder safety

is covered by OSHA and EPA under the

HAZWOPER regulations. It is the

owners’ or operators’ responsibility to

inform visitors about the hazards and

the appropriate steps to take in the

event of an accidental release from any

process subject to today’s rule.

Finally, EPA has based the

registration information requirements in

today’s rule on the EPCRA section 312

Tier II form. The CAA requires that the

RMP be registered with EPA. Because

the EPCRA form is not submitted to

EPA, it would not substitute for

registration with EPA either in its

present or amended form. Completion of

the registration portion of the RMP

should impose little additional burden

on owners or operators. However, EPA

recognizes the information overlap

between the Tier II form and the RMP

registration and is considering use of the

RMP registration for the Tier II reporting

requirement.

5. Program 2 Requirements.

Commenters were generally concerned

about the lack of specific requirements

for the Program 2 streamlined

prevention program and emergency

response requirements, and how

compliance with other regulations

would be incorporated.

a. Streamlined Program. Commenters

stated that the Program 2 prevention

program does not provide much, if any,

regulatory relief because sources would

need to address most of the ten elements

of the Program 3 prevention program.

Others said that the majority of the

sources affected by the rule are already

covered by OSHA PSM and chemical

industry standards, the Program 2

requirements do not satisfy the CAA

mandate, and that only a full process

hazard analysis would meet the hazard

assessment requirements under section

112(r). Another commenter argued that

EPA’s statement that sources must

comply with the CAA’s general duty

clause was inadequate because EPA has

not used, and has no policy about, the

clause.

EPA agrees that the preferred

approach in the SNPRM did not provide

sufficient detail on Program 2

prevention requirements to distinguish

it from Program 3. EPA solicited

comments on whether Program 2 should

require additional, specific prevention

steps. Today’s rule provides specific

requirements as discussed in section I.D

above and in Section IV below. In the

RMP, the owner or operator will be

required to report on other Federal or

state regulations, industry codes, and

standards used to comply with

prevention elements as well as any

major hazards, process controls,

mitigation systems, monitoring and

detection systems examined in the

hazard review. This streamlined

prevention program addresses many of

the PSM elements as the basis for sound

prevention practices, but is tailored to

processes with less complex chemical

uses; this program provides

considerable regulatory relief by

substantially reducing the

documentation and recordkeeping

burden of PSM. In addition, EPA will

provide guidance and model risk

management programs to further assist

Program 2 processes in developing and

maintaining good prevention program

practices.

EPA disagrees that only a full PHA

would meet the requirements of the Act.

Section 112(r) does not contain detailed

requirements for the hazard assessment,

beyond the key components of

accidental release scenarios and a fiveyear accident history. EPA believes that

a PHA is more appropriately considered

an element of a prevention program,

such as PSM. The statute does not

mandate detailed PHA engineering

analyses for all sources, whether as part

of the hazard assessment or the

prevention program. EPA believes PHAs

involve a more detailed engineering

analysis than is necessary to prevent

accidents at Program 2 sources. The

‘‘hazard review’’ provisions of Program

2 should be sufficient to detect process

hazards at these simpler processes. EPA

recognizes that although hazard

assessments and PHAs or process

hazard reviews are discreet elements

that can be performed independently,

hazard assessment results can enhance

PHA or process hazards reviews and in

turn, the results of the PHA or review

can enhance the hazard assessment.

EPA encourages owners or operators to

make maximum use of the PHA or

review and hazard assessment

information to manage risks and prevent

accidents.

Finally, sources with Program 2

requirements, as well as sources with

Program 1 or 3 requirements, must

comply with the general duty clause of

CAA Section 112(r)(1). The general duty

clause provides that owners and

operators have a general duty to identify

hazards that may result from accidental

releases, design and maintain a safe

facility, and minimize the consequences

of any releases that occur. The general

duty clause is a self-executing statutory

requirement: it requires no regulations

or other EPA action to take effect. The

clause provides a separate statutory

mechanism that EPA will use in

appropriate circumstances to ensure the

protection of public health and the

environment. To date, EPA has

undertaken several inspections designed

in part to determine compliance with

Section 112(r)(1). As appropriate at a

future date, EPA may issue policies or

guidance on application of the general

duty clause.

b. Other Regulations. Commenters

generally agree that OSHA PSM,

HAZWOPER, the OSHA hazard

communication standard (29 CFR

1910.1200), and NFPA–58 are examples

of other regulations or voluntary

industry standards that could be cited to

meet the requirements of a Program 2

prevention program. Commenters

requested that EPA provide a matrix or

crosswalk that indicates which other

regulations, standards, and codes met

specific requirements. One commenter

opposed the use of other regulations or

referencing of voluntary industry

standards, stating that, other than OSHA

PSM, no other OSHA standard

addresses safety precautions or

maintenance. Another commenter

objected that this approach creates

another documentation burden without

any commensurate benefit.

EPA agrees that the SNPRM preferred

approach for Program 2 was not specific

enough and has provided more detailed

requirements in this rule as noted

above. EPA continues to believe that

many of the Program 2 prevention

requirements are already met through

industry compliance with existing

regulations and voluntary standards. For

example, ammonia retailers whose

processes are designed to meet the

OSHA ammonia handling rule (29 CFR
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31681

1910.111) should be able to meet the

Program 2 requirement that the process

design meets good engineering

practices. This effectively allows

sources to cite compliance with these

other regulations and standards instead

of developing specific, duplicative

elements solely to comply with Program

2. EPA will also use these existing

regulations and standards as it develops

model programs.

c. Emergency Response Program.

Commenters supported considering

HAZWOPER programs as adequate to

meet the Program 2 emergency response

program. A few commenters said that

HAZWOPER is inadequate because it

does not consider offsite impacts or the

environment. Some commenters also

said that coverage of a source by an

EPCRA community emergency response

plan should be sufficient. Others said

that any contingency plan developed

under Federal or state law should be

considered sufficient because the

requirements under these programs are

generally consistent with EPA’s

proposed emergency response program;

one commenter noted that, for

flammable processes, compliance with

29 CFR 1910.38 should be adequate

because the response is usually

evacuation of employees. Five

commenters opposed any requirement

that sources with Program 2 processes

conduct drills or exercises because they

represent lower hazards.

Consistent with its efforts to

consolidate Federal emergency planning

requirements, EPA has included

language in the final rule that will allow

any source in compliance with another

Federal emergency response program

that includes the elements specified in

this rule to use that program to meet

these requirements. In particular, this

applies to response plans prepared in

accordance with the National Response

Team’s Integrated Contingency Plan

Guidance (‘‘one plan’’) (NRT, May

1996). EPA believes that sources should

have a single response plan; creation of

multiple response plans to meet slightly

different Federal or state standards is

counterproductive, diverting resources

that could be used to develop better

response capabilities.

EPA recognizes that some sources will

only evacuate their employees in the

event of a release. For these sources,

EPA will not require the development of

emergency response plans, provided

that appropriate responses to their

hazards have been discussed in the

community emergency response plan

developed under 42 U.S.C. 11003 for

toxics or coordinated with the local fire

department for flammables.

B. Offsite Consequence Analysis

1. Worst-Case Release Scenario. EPA

proposed in the NPRM to define the

worst-case release as the ‘‘loss of all of

the regulated substance from the process

* * * that leads to the worst offsite

consequences’’ and that the scenario

should assume ‘‘instantaneous release.’’

Hundreds of commenters stated that

instantaneous loss of the total process

contents is not technically feasible for

complex systems and, therefore,

represents a non-credible worst case

that would provide no useful

information to the public or the source

for risk communication, accident

prevention, and emergency

preparedness. Many commenters also

argued that this approach differed from

the release modeling assumptions

contained in EPA’s Technical Guidance

for Hazards Analysis, which has been

the basis for community emergency

planning activities under EPCRA.

Although some commenters were

generally opposed to the concept of

worst case, most of the commenters

were supportive of an approach similar

to that taken in the Technical Guidance.

In response to these comments, EPA

proposed in the SNPRM to redefine a

worst-case scenario as the release, over

a 10-minute period, of the largest

quantity of a regulated substance

resulting from a vessel or process piping

failure. The 10-minute release time is

drawn from the Technical Guidance for

Hazards Analysis. EPA believes this

duration is reasonable and accounts for

comments arguing that an

‘‘instantaneous’’ release is unrealistic

for large-scale releases.

EPA has decided to adopt the SNPRM

approach for worst-case toxic vapor

releases in the final rule because most

of the SNPRM comments agreed that the

redefinition is generally more credible

and that the 10-minute time frame

particularly applies to vapor releases.

Although some commenters argued that

this approach still does not account for

all process-specific conditions, EPA

believes it is reasonable and

representative of accident history. EPA

notes that owners or operators may use

air dispersion modeling techniques that

better account for site-specific

conditions, provided modeling

parameters as specified in the rule are

applied. This release scenario will apply

to substances that are gases at ambient

conditions, including those liquefied

under pressure. Gases liquefied by

refrigeration only may be analyzed as

liquids if the spill would be contained

by passive mitigation systems to a depth

greater than 1 cm.

Under the SNPRM, worst-case liquid

spills were assumed to form a pool in

10 minutes, with the release rate to the

air determined by volatilization rate.

EPA recognized that this approach

differs from the use of an instantaneous

release in the Technical Guidance,

which EPA cited as an alternative to its

favored approach. The few comments

received were divided between support

of this approach and arguments that the

10-minute time frame was unrealistic

for liquid releases (particularly for

pipelines and connected equipment)

and thus did not properly account for

process-specific conditions.

EPA’s approach for the liquid worstcase scenario in the final rule is similar

to the Technical Guidance methodology,

in which the total quantity of liquid in

a vessel or pipeline is instantaneously

spilled upon failure, considering

administrative controls or passive

mitigation discussed below. The rate of

release to the air is not instantaneous; it

is determined by the volatilization rate

of the spilled liquid, which depends on

the surface area of the pool formed after

the spill. The pool surface area is

determined by assuming the spilled

liquid rapidly spreads out and forms a

one-centimeter deep pool, unless

passive mitigation systems contain the

pool to a smaller area. EPA believes this

approach is reasonable because total

vessel or pipeline failure will generally

lead to immediate and rapid spillage

followed by pool volatilization. Further,

if the liquid were assumed to spill over

a particular time frame rather than

instantaneously, owners or operators

would need to calculate the amount of

vapor emitted to the air as the liquid is

spilled, in addition to the volatilization

rate as the pool spreads out and reaches

its maximum size. Computer-based

models are available for such

calculations, but they are complex and

require considerable data input to use.

EPA believes that liquid spillage from a

worst-case scenario is likely to be

extremely rapid such that the most

significant portion of the release rate is

given by pool volatilization;

consequently, liquid release time is not

necessary. Liquid spill rates and times

could be reflected in alternative

scenarios discussed below.

As proposed, the worst-case for

flammables assumes that the total

quantity of the substance in the vessel

or pipeline vaporizes, resulting in a

vapor cloud explosion. If the vapor

cloud explosion is modeled using a

TNT-equivalent methodology, then a 10

percent yield factor must be used.

EPA requested comment in the

SNPRM on whether the worst-case

scenario should include an additional
31682 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

amount of substance that could

potentially drain or flow from process

equipment interconnected with the

failed vessel or pipeline. Many

commenters opposed this option,

suggesting that it is technically

uncertain and would have little value in

terms of what they saw as EPA’s

intended purpose for the worst-case

assessment. Other commenters

requested that ‘‘interconnected

equipment’’ be defined and clarified.

Given the assumption of rapid release

associated with initial equipment

failure, EPA agrees that determination of

the spill rate from connected piping and

equipment is likely to be technically

complex, very different from that of the

quantity in the vessel or failed pipeline,

and likely to extend the duration of

volatilization rather than affecting the

rate overall. Therefore, EPA has not

included this requirement in the final

rule.

EPA also sought comment in the

SNPRM on options for the

determination of the relevant quantity of

regulated substance in a vessel or

process piping for a worst-case release

scenario: the maximum possible vessel

inventory (design capacity) at any time

without regard for operational practices

and administrative controls; the

maximum possible vessel inventory

unless there are internal administrative

controls (written procedural

restrictions) that limit inventories to less

than the maximum; or historic or

projected maximum operating

inventories without regard to

administrative controls. EPA preferred

that the maximum vessel inventory

including administrative controls that

might limit or raise the vessel quantity

to be used in the worst-case assessment

and reported in the worst-case release

analysis section of the RMP. If the

quantity used in the assessment were

exceeded (e.g., an administrative control

were ignored), then the source would be

in violation of the rule (i.e., failure to

perform a worst-case analysis) and RMP

reporting unless the administrative

control was revised, the worst-case

analysis updated to reflect any changes

in the analysis, and a revised RMP

submitted. This approach acknowledges

the efforts by sources to increase process

safety by intentionally reducing the

inventory of regulated substances (e.g.,

vessels kept at half capacity to allow for

process upsets, emergency shutdowns,

and deinventorying or maintenance

turnarounds). EPA notes that at some

sources, as a result of inventory

reduction measures, the largest quantity

may be held in a transportation

container that is loaded or unloaded at

the source (See section P.2).

A few commenters supported the

other options, noting that administrative

controls may fail, potentially generating

a larger scenario. However, the majority

of commenters supported EPA’s

preferred approach based on the

historical reliability of such controls at

many sources and the role that such a

provision could play in encouraging

their use at additional locations. Other

commenters asked whether mechanical

controls, alone or in combination with

administrative controls, should be

incorporated into the proposal.

Although mechanical controls may also

serve to limit the quantity, EPA has

decided not to include them in the

quantity determination for the worstcase release scenario because the

definition for administrative control as

‘‘written procedural mechanisms used

for hazard control’’ provides a backup

for possible failure of mechanical

controls. For more discussion of

mechanical controls, see section

III(B)(2), mitigation systems, below.

In the SNPRM, EPA considered

providing the implementing agency

with the discretion to determine the

appropriate quantity for the worst-case

release scenario on a site-specific or

industry-specific basis. EPA noted in

the SNPRM, and most of the few

comments received on this issue agreed,

that implementing agency discretion

would result in increased administrative

burden on the implementing agency and

cross-jurisdictional differences in the

methodology used for the worst-case

analyses. EPA has decided not to

incorporate this approach in the final

rule. States, however, may impose more

stringent requirements, such as

additional modeling, under state

authority.

In the NPRM worst-case definition,

EPA did not specify what constitutes or

how to determine the worst offsite

consequences. Some commenters

indicated that without clear direction,

EPA’s proposed worst case might not

actually capture the scenario that leads

to the most severe offsite impact. In the

SNPRM, EPA indicated that the worstcase scenario should be the scenario

that generates the greatest distance to a

specified endpoint (i.e., the toxic vapor

cloud or blast wave from a vapor cloud

explosion that travels the farthest).

EPA recognizes that there may be

other release scenarios that could

generate a greater distance than the

release from the largest vessel or

pipeline. Consequently, EPA has added

paragraph (h) to § 68.25 to require

owners or operators to consider other

scenarios if those scenarios generate

greater distances to the endpoint than

the distance generated by the largest

vessel or pipeline scenario. Owners or

operators need to consider releases from

smaller vessels if those vessels contain

the substance at higher temperature or

pressures or if they are closer to public

receptors. In some cases, the largest

vessel will be a storage vessel where the

substance is held at ambient conditions.

A reactor vessel may hold a smaller

quantity, but at high pressures and

temperatures, generating a release that

could travel farther offsite to an

endpoint. Vessel location is important,

especially at large sources. A smaller

vessel located nearer to the stationary

source boundary may generate a greater

impact distance than a larger vessel

farther away. This difference may be

particularly important for flammables,

because impact distances for

flammables are generally shorter than

those for toxic releases.

2. Mitigation Systems

a. Worst-case scenario. In the NPRM

worst-case scenario, EPA indicated that

sources must assume that both active

and passive systems fail to mitigate the

release. Commenters were generally

split between those who wanted passive

(as well as certain redundant active)

mitigation systems to be included and

those who argued that historical

evidence from catastrophic releases

suggests that the worst case should

assume the failure of all such systems.

Those who supported mitigation argued

that inclusion provides a more credible

scenario for improved risk

communication, accident prevention,

and emergency planning.

EPA proposed in the SNPRM to

include passive mitigation systems in

the worst-case release scenario as long

as the system is capable of

withstanding, and continuing to

function as intended during and after a

destructive event, such as an

earthquake, storm, or explosion, which

causes a vessel or pipeline to fail.

Passive systems such as dikes, catch

basins, and drains for liquids, and

enclosures for both liquids and gases,

could be assumed to mitigate the

release. Some commenters opposed this

approach, arguing again that the worst

case should account for the possibility

of passive mitigation failure. The

majority supported this approach

because the assumption that passive

systems specifically designed and

installed as protection against a

potential catastrophe fail is unrealistic.

Furthermore, the approach recognizes

and encourages prevention through

additional passive mitigation and

supports more realistic emergency
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31683

planning. A few commenters also

suggested that active mitigation

measures that were unlikely to fail (e.g.,

redundant or backup systems) should be

considered, for similar reasons.

Historical data, however, indicate that

certain events compromise active

mitigation systems (e.g., explosions

have destroyed fire water piping

systems).

For the final rule, EPA has decided to

adopt the SNPRM approach. Passive

mitigation systems would be defined as

those systems that operate without

human, mechanical, or other energy

input and would include building

enclosures, dikes, and containment

walls. EPA also agrees that reservoirs or

vessels sufficiently buried underground

are passively mitigated or prevented

from failing catastrophically. In this

case, sources should evaluate the failure

of piping connected to underground

storage for the worst case or alternative

case scenarios. In addition to the

requirements outlined in § 68.25, EPA

provides guidance on how passive

mitigation would affect release rate and

distance to endpoints in its RMP Offsite

Consequence Analysis Guidance.

b. Alternative scenarios. EPA initially

proposed that sources could include

passive mitigation systems in their

alternative scenario assessments, but

that active mitigation systems (e.g.,

excess flow valves, fail-safe and

automatic shutdown valves, scrubbers,

flares, deluge systems, and water

curtains) would be assumed to fail.

Some commenters generally opposed

inclusion of any mitigation systems in

the hazard assessment, while other

commenters noted that the alternative

release scenario should recognize and

encourage industry accident prevention

efforts, specifically the installation of

additional mitigation systems, and

support more realistic emergency

planning.

EPA proposed in the SNPRM to allow

sources to consider passive and active

mitigation measures in the alternative

release scenario assessment.

Commenters supported this approach

and EPA has decided to retain it in the

final rule. EPA agrees that the

assumption that both passive and active

mitigation measures fail when such

measures are specifically designed and

installed to mitigate catastrophic

releases is unrealistic for the alternative

scenarios. Although not required, EPA

notes that sources may choose to apply

passive and active mitigation measures

to a worst-case type scenario to

illustrate the capabilities of such

systems to reduce the potential impact

of a worst-case accidental release. In

addition to the requirements outlined in

§ 68.28, EPA provides guidance in its

RMP Offsite Consequence Analysis

Guidance on how passive and active

mitigation would affect release rate and

distance to endpoints.

3. Populations Affected. EPA

described in the NPRM preamble certain

locations (e.g., schools and hospitals)

where sensitive populations might be

present and proposed in the rule that

owners or operators identify potentially

exposed populations as part of the

offsite consequence assessment.

Commenters generally opposed

requirements for population surveys;

several commenters suggested that

Census data or other readily available

population information should be

sufficient, while other commenters

indicated that the LEPC or other local

planning entities were the appropriate

entity to prepare these data.

EPA believes owners or operators

need to be aware of the magnitude of

impact on populations associated with

the worst-case and alternative scenarios.

However, EPA learned that, although

much of this information is readily

available, identification of some

sensitive populations could require

considerable effort, especially if the

distance to an endpoint generated in the

offsite consequence assessment is large

or crosses several jurisdictions.

Consequently, EPA proposed in the

SNPRM that offsite populations be

defined using available Census data;

information on the number of children

and people over 65 could be considered

a proxy for sensitive populations,

thereby accomplishing the same

objective as the proposed rule. EPA also

indicated that it has developed a

geographic information system,

LandView, that will facilitate analysis of

resident populations. (LandView can be

ordered from the U.S. Bureau of the

Census customer service at (301) 457–

4100.) In general, commenters agreed

with the SNPRM approach. However,

some commenters questioned the

accuracy of potentially ten-year-old

Census data and requested additional

flexibility, or a greater role for local

government, in this analysis.

EPA has decided to adopt the

approach outlined in the SNPRM for the

final rule. Sources will be allowed to

use available Census data to estimate

populations potentially affected.

Sources may update these data if they

believe the data are inaccurate, but are

not required to do so. Populations shall

be reported to two significant digits.

Because Census data are limited to

residential populations, sources will

also have to note in the RMP whether

other, non-residential populations, such

as schools, hospitals, prisons, public

recreational areas or arenas, and major

commercial or industrial areas, are

within the distance to an endpoint.

These institutions and areas are those

that can generally be found on local

street maps. Sources will not be

required to estimate the number of

people who might be present at these

locations. EPA provides further

guidance on the identification of

affected populations in its RMP Offsite

Consequence Analysis Guidance.

4. Number of Scenarios In the NPRM.

EPA required a worst-case release

scenario for each regulated substance.

Commenters requested clarification,

because one substance could be present

in more than one process at the source

and sources would need to select the

‘‘worst’’ worst case for substances in

multiple processes. In addition, one

process may have several, similar listed

substances and multiple worst-case

analyses of similar substances (e.g.,

flammables) would not provide

additional useful information to the

public.

EPA proposed in the SNPRM that

sources report in the RMP one worstcase release scenario representative of

all toxic substances present at the

source and one worst-case release

scenario representative of all flammable

substances present at the source. Even

though additional screening analyses to

determine the appropriate worst-case

scenario might be necessary, this

approach reduces to a maximum of two

the number of worst-case analyses

reported in the RMP by a source. In

general, commenters favored this

approach, particularly for flammables,

which do not produce markedly

different adverse effects. A few

commenters argued that a single toxic

substance should not be considered

representative of all toxic substances at

a source, since there are considerable

differences in toxic endpoint and

adverse affect.

EPA has decided to adopt the

approach outlined in the SNPRM for the

final rule: report one worst-case release

scenario for all flammables and one

worst-case release scenario for all toxics

at the source. EPA notes that the worstcase scenario is designed principally to

support a dialogue between the source

and the community on release

prevention, and not to serve as the sole

or primary basis for local emergency

planning. The ‘‘worst’’ worst-case

release scenario will inform the broadest

range of individuals that they may be

impacted by the source so that they may

participate in dialogue with the source

about prevention, preparedness, and

emergency response actions. Lesser

worst-case release scenarios would not
31684 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

inform any person not already within

the range of the ‘‘worst’’ worst case even

though the health effects may be

different; consequently, EPA believes

that only a single toxic worst case is

necessary. However, sources must also

analyze and report another worst-case

release scenario (for flammables or

toxics) if such a release from another

location at the source potentially affects

public receptors different from those

potentially affected by the first scenario

(e.g., if a large-sized source is located

between two communities and has a

covered process adjacent to each

community).

In the NPRM, EPA did not specify the

number of alternative scenarios to be

reported for each regulated substance.

EPA noted in the preamble that this

approach, while providing flexibility,

may also create uncertainty about what

EPA will consider to be an adequate

number of scenarios. While a few

commenters argued against scenarios

beyond the worst case, many

commenters supported a requirement

for a maximum of two: the worst case

plus one additional scenario; others

supported a maximum of three. Many of

the commenters noted that local entities

could request further information under

EPCRA section 303(d)(3) authority if

they desired. At the same time, a

number of commenters suggested that

this determination should be made by

the source based on their scenario

analysis, perhaps in coordination with a

local agency.

In the SNPRM, EPA proposed to

require one alternative release scenario

for all flammable substances at the

source and one alternative scenario for

each toxic substance at the source. As

discussed above, the listed flammable

substances behave similarly upon

release and have the same endpoint,

while each toxic substance has a

different endpoint and different

atmospheric behavior. EPA sought

comment on whether one toxic

substance alternative scenario could

represent all toxic substances at a source

or in a process. Although commenters

generally agreed with the approach for

flammables, only a few argued that a

single alternative scenario for all toxics

was also appropriate; most others

supported EPA’s proposal.

Upon review of the comments, EPA

has decided to adopt the approach

outlined in the SNPRM: an alternative

release scenario must be reported in the

RMP for each toxic held above the

threshold at the source, and one

alternative scenario must be reported

that represents all flammables held

above the threshold. As EPA noted in

the SNPRM preamble and commenters

echoed, the differences in the hazards

posed by individual toxic regulated

substances are significant and should be

reflected in the alternative scenarios.

This information has significant value

for emergency planning purposes and

could increase public interest in

prevention at the source.

5. Technical Guidance The proposed

rule required sources to evaluate the

consequences (vapor cloud dispersion,

blast wave, or radiant heat modeling

calculations) associated with the worstcase and alternative release scenarios.

EPA did not specify a methodology or

models, expecting that sources would

have, contract for, or find the expertise

and modeling tools needed to perform

potentially complex modeling

calculations. Because of the potential

burden associated with this approach,

EPA began working on the development

of a set of simple, generic tools that

could provide useful results and become

part of the technical guidance for the

rule. Based on its experience in

developing the Technical Guidance for

Hazards Analysis and on advice from

commenters, EPA understands that a

generic methodology depends on

approximations to capture a wide

variety of situations, will likely ignore

site-specific conditions, and potentially

may generate overly conservative or less

realistic estimates of offsite impacts. In

spite of these limitations, EPA believes

that generic modeling tools are capable

of supporting greater understanding of

the hazards posed by substances and

emergency planning. Commenters

agreed this approach would reduce the

burden on smaller sources unfamiliar

with such activities as long as use of the

guidance was not mandatory, and the

guidance addressed specific industry

sectors or was used as part of a

screening process to focus resources on

significant problem areas. Many

commenters recommended that sources

be given the flexibility to use any

appropriate modeling techniques for the

offsite consequence analysis to take

advantage of expertise and to apply sitespecific considerations to the hazard

assessment. Other commenters argued

that EPA should establish mandatory

guidelines or specify certain dispersion

modeling tools to make release scenario

results more comparable across sources.

Some commenters were concerned

about the development of modeling

tools by EPA outside of the rulemaking

process and requested the opportunity

to participate in their development.

In the SNPRM, EPA stated it would

develop a generic methodology and

reference tables in an offsite

consequence assessment guidance to

assist sources with the analyses required

by the rule. EPA believed that the

Technical Guidance could be revised,

expanded, and updated to address the

rule requirements. The methodologies

and tables would be subject to public

review prior to publication of the final

rule; once finalized, the tables would

replace the Technical Guidance. EPA

added that sources that wish to conduct

more sophisticated modeling could do

so, provided the techniques used

account for the modeling parameters

described in the rule. Alternatively, EPA

proposed that only Program 2 sources

use the guidance; Program 3 sources

would be required to conduct their own

dispersion modeling.

Most commenters supported the

SNPRM approach, especially if sources

were given the option to use their own

site-specific modeling. Some

commenters argued that the generic

methodology and reference tables and

the option for site-specific modeling

should be applied to processes in all

three Programs, while others suggested

that they be applied only to a specific

Program. In recognition of these

comments, EPA prepared draft

modeling methodologies and reference

tables, provided an opportunity for their

review (see 61 FR 3031, January 30,

1996), and has published them as the

RMP Offsite Consequence Analysis

Guidance. EPA intends to conduct peer

review of the RMP Offsite Consequence

Analysis Guidance and will revise it as

appropriate. For the final rule, EPA will

allow sources in all Programs to use the

guidance or conduct their own sitespecific modeling, provided the

modeling techniques used account for

the parameters described in the rule. For

example, EPA’s Office of Air Quality

Planning and Standards has prepared a

publicly available modeling tool called

TScreen that can assist owners and

operators with consequence

assessments. EPA also encourages local

emergency planners, fire departments,

and others who use tools such as

CAMEO/ALOHA or other modeling

techniques to assist businesses in their

community who may need help in their

modeling efforts. EPA believes the final

rule approach takes advantage of the

broad range of expertise and modeling

tools already available and will provide

more useful results at the local level for

chemical emergency prevention,

preparedness, and response. This

approach will also stimulate accidental

release modeling research, new and

existing model development, and model

validation to generate new tools for

better understanding of hazards and the

behavior of substances in accidental

release situations.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31685

6. Modeling Parameters. a. Endpoints.

In the NPRM, EPA did not specify toxic

or flammable substance endpoints that

must be used in the offsite consequence

assessment modeling. Most commenters

recommended that EPA specify

endpoints to provide a consistent basis

for modeling; many favored the use of

existing standards or guidelines,

primarily the emergency response

planning guidelines (ERPGs) developed

by the American Industrial Hygiene

Association for toxic substances. For

flammables, commenters suggested

overpressure, heat radiation, and

explosion or flammability limits. In

addition to other specific standards, a

few commenters recommended a

hierarchy of values if certain levels for

some chemicals were not available.

In the SNPRM, EPA indicated that it

would select one endpoint for each

toxic substance for use in the offsite

consequence assessment methodology

and sought comment on whether it

should use a single endpoint to the

extent possible (e.g., the Immediately

Dangerous to Life and Health (IDLH)

value developed by the National

Institute for Occupational Safety and

Health (NIOSH), unless one does not

exist for a substance), or a hierarchy of

endpoints (e.g., ERPGs; if one does not

exist, then the IDLH; and finally toxicity

data if no other value is available). EPA

also asked whether overpressure or both

overpressure and radiant heat effects

should be used for flammable substance

endpoints. Some commenters supported

the use of ERPG values for the toxic

substance endpoint, or a hierarchy of

values beginning with the ERPG. Others

opposed IDLH or the IDLH divided by

10 for technical reasons.

EPA agrees with commenters that one

toxic endpoint should be set for each

substance. The endpoint for each listed

toxic substance is provided in Appendix

A to the final rule. The endpoint,

applicable whether the source uses the

EPA guidance or conducts site-specific

modeling described below, is the AIHA

ERPG–2 or, if no ERPG–2 is available,

the level of concern (LOC) developed for

the Technical Guidance, corrected

where necessary to account for new

toxicity data. The LOCs that were based

on IDLHs have been updated only if the

IDLHs were revised between the original

LOC listing in 1987 and the 1995 IDLH

revisions. The most recent IDLH

revisions were not used because they

are based on a methodology that EPA

has not reviewed; the previous IDLH

methodology was reviewed by EPA’s

Science Advisory Board for use as

LOCs. EPA chose the ERPG–2 first

because ERPGs are subject to peer

review and are specifically developed

by a scientific committee for emergency

planning to protect the general public in

emergency situations. The ERPG–2

represents the maximum airborne

concentration below which the

committee judges that nearly all

individuals could be exposed for up to

an hour without experiencing or

developing irreversible or other serious

human health effects or symptoms that

could impair their ability to take

protective action. EPA rejected the

ERPG–3, which is a lethal exposure

level, because it is not protective

enough of the public in emergency

situations. About 30 listed toxic

substances have ERPGs. EPA chose to

use LOC levels for substances with no

ERPG because LOCs have been peer

reviewed by EPA’s Science Advisory

Board, they are intended to be

protective of the general public for

exposure periods of up to an hour, they

are widely used by the emergency

response planning community, and, for

a majority of the listed toxic substances,

there are no acceptable alternatives.

EPA notes that, for substances with both

values, the LOC is comparable to, and

in some cases is identical to, the ERPG–

2.

EPA recognizes potential limitations

associated with the ERPG and LOC and

is working with other agencies to

develop Acute Exposure Guideline

Limits (AEGLs). See Establishment of a

National Advisory Committee for Acute

Exposure Guideline Levels (AEGLs) for

Hazardous Substances, (60 FR 55376;

October 31, 1995). When these values

have been developed and peerreviewed, EPA intends to adopt them,

through rulemaking, as the toxic

endpoint for substances under this rule.

As proposed, vapor cloud explosion

distances will be based on an

overpressure of 1 psi, and for analysis

of worst-case releases, a yield factor of

10 percent. Yield factors (the percentage

of the available energy released in the

explosion process) can vary

considerably. EPA selected 10 percent

to generate conservative worst-case

consequences. For flammables, EPA

selected a radiant heat exposure level of

5 kW/m2 for 40 seconds as

recommended by the commenters, and,

for vapor cloud fire and jet fire

dispersion analysis, the lower

flammability limit (LFL) as specified by

NFPA or other recognized sources.

b. Meteorology. In the NPRM, EPA

proposed that sources model the

downwind dispersion of the worst-case

release scenario using an F atmospheric

stability class and 1.5 m/s wind speed

and model the alternative release

scenarios using both the worst-case

conditions and the meteorological

conditions prevailing at the source. EPA

did not revise the meteorological

assumptions in the SNPRM.

Several commenters argued that the

worst-case meteorological conditions

were too conservative or not applicable

on a national basis and that site-specific

conditions should be used, while others

agreed that for worst case, minimum

wind speeds and the most stable

atmospheric conditions should be used.

In the final rule, EPA has decided that

sources must conduct worst-case

dispersion modeling using an F

atmospheric stability class and a 1.5

m/s wind speed. A higher wind speed

or less stable atmospheric stability class

may be used if the owner or operator

has local meteorological data applicable

to the source that show that the lowest

recorded wind speed was always greater

or the atmospheric stability class was

always less stable during the previous

three years.

In the final rule, EPA also requires

sources to conduct alternative release

scenario dispersion modeling using the

typical meteorological conditions

applicable to the source. If

meteorological data are not available,

typical conditions in the RMP Offsite

Consequence Analysis Guidance may be

used. EPA believes typical

meteorological conditions should be

used to generate realistic hazard

assessments for communication with

the public and first responders and for

emergency planning.

C. Consideration of Environmental

Impact

The issue of whether and how

environmental impacts should be

addressed in the hazard assessment and

the rule in general drew considerable

comment. The comments divide into

three questions: Should EPA consider

environmental impacts from accidental

releases? If so, which environments

should be identified? What constitutes

an environmental impact?

1. Inclusion of Environmental

Impacts. Environmental groups argued

that the CAA requires assessment of

potential impacts to the environment

and that the environmental receptors

listed in the SNPRM should be

broadened. One commenter stated that

since the CAA Amendments of 1990

strengthened limits of continuous air

toxic emissions, wildlife is now

threatened more by accidental releases.

However, the majority of commenters

on this issue, principally industry

groups, opposed consideration of the

environment because it is adequately

protected by other environmental

statutes, environmental protection in

section 112(r) relates only to emergency
31686 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

response, and Congress intended in

section 112(r) for the environment to be

addressed only to the extent that human

health is protected. Several commenters

argued that flammable substances were

unlikely to generate environmental

impacts. Commenters also stated that

many industries have voluntarily

developed nature reserves around their

sources, often at the urging of

government agencies. Additional

regulations based on ‘‘environmental’’

impact consideration would ‘‘penalize’’

these sources for their efforts. Finally,

two commenters noted that EPA’s

endpoints are based on acute human

effects; applying these to the

environment may not be valid.

EPA disagrees that section 112(r) was

not intended to protect the environment

as well as human health. Although

section 112(r)(5) links the threshold

quantity to human health, section

112(r)(3) requires EPA to select

substances that could impact human

health and the environment. EPA agrees

that the only time sections

112(r)(7)(B)(I) and (ii) mention

protection of the environment is in

conjunction with emergency response;

however, this is also true for protection

of human health. Congress did not

intend to limit concern about either

impact strictly to emergency response

procedures; Congress may not have

mentioned either impact relative to

prevention because the act of preventing

an accident eliminates the impact on

both. When accidents occur, human

health and the environment need

protection. By mentioning both impacts

in the response or post accident phase,

Congress was stressing its concern for

the environment as well as human

health. Given the integrated nature of

the RMP, it would be an inappropriately

narrow reading of CAA section

112(r)(7)(B) to say environmental

impacts must be ignored in hazard

assessments and in the design of the

prevention program, but must be

accounted for in emergency response. In

addition, section 112(r)(9) provides

authority for EPA to take emergency

action when an actual or threatened

accidental release of a regulated

substance may cause imminent and

substantial endangerment to human

health, welfare, or the environment.

Clearly, section 112(r)(9) allows EPA to

take action to prevent, as opposed to

simply respond to, accidental releases to

protect the environment. Because

section 112(r)(7) is intended to prevent

situations that could lead to emergency

orders under section 112(r)(9), it is

logical to conclude that Congress meant

EPA to develop regulations that would

prevent accidental releases that could

cause environmental damage. Although

the consequences may not be precisely

known, EPA believes that impacts could

occur at environmental receptors

located within the distance to a human

acute exposure endpoint associated

with a worst-case or alternative scenario

because wildlife may be more sensitive

or require less exposure to cause an

adverse effect than humans.

2. Environmental Receptors to Be

Considered. In the SNPRM, EPA

proposed that sources report in their

RMP which sensitive environments

listed by the National Oceanographic

and Atmospheric Administration

(NOAA) for the Clean Water Act are

within the distance determined by the

worst-case or alternative case scenario.

A few commenters argued that the list

should include state and local level

analogues to Federal entities (e.g., state

parks), all surface waters that are

fishable or swimmable or supply

drinking water, and ground water

recharge areas. Many commenters

opposed the NOAA list, arguing that the

list is extremely broad, covers millions

of acres in primarily rural areas, and

contains areas that are difficult for both

the regulated community and the

government to clearly identify (e.g.,

habitat used by proposed threatened or

endangered species, cultural resources,

and wetlands). They stated that the

NOAA list is not appropriate for this

rule because it represents guidance

applicable to offshore sources, and to a

limited number of very large onshore

sources, that could have catastrophic oil

spills. A few commenters suggested

limiting the list to Federal Class I areas

designated under the CAA prevention of

significant deterioration program, or

reducing the list of sensitive areas to

national parks and the designated

critical habitat for listed endangered

species, and limiting environmental

concern to those accidents that generate

a significant and long-term impact, such

as an actual ‘‘taking’’ of an endangered

species.

For the final rule, EPA has not used

the NOAA list. Instead EPA requires

owners or operators to indicate in the

RMP the environmental receptors

located within circles whose radii are

the distances to an endpoint for the

worst-case and alternative release

scenarios. EPA agrees with commenters

that the locations of certain natural

resources are difficult to identify.

Consequently, EPA has defined

environmental receptors as natural areas

such as national or state parks, forests,

or monuments; officially designated

wildlife sanctuaries, preserves, refuges,

or areas; and Federal wilderness areas,

that can be exposed to an accidental

release. All such receptors typically can

be found on local U.S. Geological

Survey (USGS) maps or maps based on

USGS data. Habitats of endangered or

threatened species are not included

because the locations of these habitats

are frequently not made public to

protect the species. Natural resource

agencies will have access to the RMP

information and can raise concerns with

local officials about potential harm to

these habitats, as necessary. Local

emergency planners and responders

may want to consult with

environmental management agencies as

part of emergency preparedness.

3. Level of Analysis Required. In the

SNPRM, EPA proposed that sources

only identify sensitive environments

within the area of the worst-case release,

rather than analyzing potential impacts.

A few commenters opposed this

approach, stating that the CAA requires

that sources analyze impacts. Most

commenters supported EPA’s position

because extensive expertise at

considerable cost is required to

adequately assess all environmental

impacts associated with the

environments list EPA provided.

Commenters stated that this cost would

make fewer resources available for

prevention activities and providing no

benefit. Other commenters noted that

much of the data needed for such

analyses is not available.

EPA agrees that extensive

environmental analysis is not justified.

Irreversible adverse effect exposure

level data for the wide variety of

environmental species potentially

exposed in an accidental release event

are not available for most of the listed

substances. EPA believes that

identification of potentially affected

environmental receptors in the RMP is

sufficient for purposes of accident

prevention, preparedness, and response

by the source and at the local level.

D. Program 3 Consistency with OSHA

PSM Standard

1. Prevention Program. In EPA’s

original proposal, the prevention

program requirements were based on

the elements of OSHA’s PSM standard

(29 CFR 1910.119), and some

commenters supported this approach.

But EPA added a paragraph to each

OSHA prevention program element to

explain the purpose of the provision

and, in some instances, added

additional recordkeeping, reporting, or

substantive provisions to ensure that

statutory requirements were met.

Several commenters argued that these

additions cause confusion and appear to

require sources to create two separate
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31687

prevention programs, which could

cause conflicting inspection and

enforcement actions and greater cost for

sources that must comply with both the

OSHA and EPA requirements. Many

commenters suggested that EPA simply

reference the OSHA requirements.

EPA agrees that the Program 3

prevention program requirements

should be identical to OSHA’s PSM

standard to avoid confusion and

redundant requirements and to ensure

that sources develop one accidental

release prevention program that protects

workers, the general public, and the

environment. Therefore, EPA has moved

the Management System requirement

(see section I.D) supported by most

commenters to a section separate from

the Prevention Program and deleted the

introductory paragraphs and

modifications to the PSM language. The

Agency recognizes that many workplace

hazards also threaten public receptors

and that the majority of accident

prevention steps taken to protect

workers also protect the general public

and the environment; thus, a source

owner or operator responsible for a

process in compliance with the OSHA

PSM standard should already be in

compliance with the Program 3

prevention program requirements.

EPA did not cross-reference sections

of the PSM standard in today’s rule

because, under Office of Federal

Register requirements at 1 CFR

21.21(c)(2), EPA cannot adopt OSHA’s

requirements. EPA and OSHA have

separate legal authority to regulate

chemical process safety to prevent

accidental releases. Furthermore, crossreferencing the OSHA standard would

be tantamount to a delegation of

authority to set standards in this area

from the Administrator of EPA to the

Secretary of Labor, because OSHA

would be able to modify the PSM

requirements without an EPA

rulemaking under CAA § 307(d). The

Senate explicitly considered and

rejected the possibility of the

Administrator delegating to OSHA

responsibility for hazard assessment.

Senate Report at 226. As that term was

used in the Senate bill, hazard

assessment included many of the

elements of PSM.

With the exception of some key terms

and phrases, the Program 3 prevention

program language in the final rule is

identical to the OSHA standard

language (the rulemaking docket

contains a side-by-side analysis of the

OSHA standard and EPA rule text with

word differences highlighted). Most of

the differences are terms based on

specific legislative authorities given to

OSHA or EPA that have essentially the

same meaning:

OSHA term EPA term

Highly hazardous substance .................................................................... Regulated substance.

Employer ................................................................................................... Owner or operator.

Facility ....................................................................................................... Stationary source.

Standard ................................................................................................... Rule or part.

EPA also agrees with commenters that sound process safety management systems ideally address chemical accident

prevention in a way that protects workers, the public, and the environment. Since OSHA’s responsibility is to protect

workers, there are phrases in the OSHA standard that are designed to focus employer attention on accidents that

affect the workplace. It could be argued that these phrases inadvertently exclude consideration of offsite impacts. EPA

has deleted the phrases noted below to ensure that all sources implement process safety management in a way that

protects not only workers, but also the public and the environment:

OSHA PSM requirement EPA program 3 requirement

1910.119(d)(2)(E) An evaluation of the consequences of deviations, including those affecting the safety and health of employees.68.65(c)(1)(v) An evaluation of the consequences of deviations.

1910.119(e)(3)(ii) The identification of any previous incident which had

a likely potential for catastrophic consequences in the workplace.

68.67(c)(2) The identification of any previous incident which had a likely potential for catastrophic consequences.

1910.119(e)(3)(vii) A qualitative evaluation of a range of the possible

safety and health effects of failure of controls on employees in the

workplace.

68.67(c)(7) A qualitative evaluation of a range of the possible safety

and health effects of failure of controls.

1910.119(m)(1) The employer shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release

of a highly hazardous chemical in the workplace.

68.81(a) The owner or operator shall investigate each incident which

resulted in, or could reasonably have resulted in a catastrophic release of a regulated substance.

EPA also made changes to specific

schedule dates to coordinate with the

OSHA PSM requirements, made internal

references consistent, and added a

provision to the PHA section

specifically grandfathering all OSHA

PHAs and allowing sources to update

and revalidate these PHAs on their

OSHA schedule. EPA believes these

modifications do not cause source

owners or operators to make major

adjustments to their PSM systems

established under OSHA. These minor

modifications ultimately lead to the

development of one comprehensive

process safety management system

satisfying both OSHA and EPA that

works to prevent accidents affecting

workers, the public, and the

environment.

EPA also modified the OSHA

definition of catastrophic release, which

serves as a trigger for an accident

investigation, to include events ‘‘that

present imminent and substantial

endangerment to public health and the

environment.’’ This modification, in

combination with the changes noted

above, ensure that sources covered by

both OSHA and EPA requirements must

investigate not only accidents that

threaten workers, but also those that

threaten the public or the environment.

EPA agrees with commenters and

recognizes that most catastrophic

accidental releases affect workers first.

However, the Agency also believes that

there are accidental release situations

where workers are protected but the

public and the environment are

threatened, e.g. vessel

overpressurizations that cause

emergency relief devices to work as

designed and vent hazardous

atmospheres away from the workplace

and into the air where they are carried

downwind. Although many sources

through the PHA process will have

recognized and addressed the potential

impact offsite associated with safety

measures that protect workers (e.g. an
31688 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

emergency vent scrubber system), EPA

believes that the requirements in today’s

rule ensure that all sources routinely

consider such possibilities and integrate

the protection of workers, the public,

and the environment into one program.

2. Enforcement. Many commenters

expressed concern for conflicting audit

procedures, interpretations, and

enforcement actions when EPA and

OSHA auditors inspect the same

processes. EPA has no authority to

exempt a source covered under the PSM

standard and today’s rule from any

prospect of an EPA enforcement action

for violations of section 112(r) and EPA

regulations issued under it. EPA and

OSHA are working closely to ensure

that enforcement actions are based on

consistent interpretations and

coordinated to avoid overlapping audits.

Such coordination in enforcement was

recognized as an appropriate method for

exercising the Administrator’s duty to

coordinate the EPA program with OSHA

(Senate Report at 244).

3. Exemptions. Many commenters

suggested that the Agency exempt small

businesses or certain industry sectors

because the rule is too costly, some

industries are already subject to

substantial regulation by other Federal

or state agencies, OSHA exempts certain

industries from the PSM standard, and

some sources have effective selfpolicing regimes in place.

Regardless of whether the source is

covered under some other Federal, state,

or local program, EPA has no authority

to exempt a source that has more than

a threshold quantity of a regulated

substance from complying with the risk

management program rule (CAA section

112(r)(7)(B)(ii)). EPA established the

tiered approach to acknowledge that

different industries pose different

potential risks to human health and the

environment and that elements of other

regulatory programs may serve to

prevent accidents. EPA believes that

owners or operators can indicate in their

Program and RMP how compliance with

other particular regulations and

standards satisfies Program or RMP

elements, thereby, avoid duplication.

Only those processes in certain SIC

codes or covered by OSHA’s PSM

standard must implement the full PSM

program under Program 3. A source

owner or operator can demonstrate

compliance with the Program 2 or 3

prevention program under today’s rule

for a covered process by showing that it

complies with the PSM standard. This

approach is consistent with the

authority to set different standards for

different types of sources under CAA

section 112(r)(7)(B)(I).

E. Relationship to Air Permitting

Several commenters on the NPRM

requested that EPA clarify the

relationship between the risk

management program and the air permit

program under Title V of the CAA for

sources subject to both requirements. In

the SNPRM, EPA indicated that in Title

V, section 502(b)(5)(A), Congress clearly

requires that permitting authorities must

have the authority to ‘‘assure

compliance by all sources required to

have a permit under this title with each

applicable standard, regulation or

requirement under this Act.’’ EPA

further states in part 70.2 that

‘‘Applicable Requirement means * * *

(4) Any standard or other requirement

under section 112 of the Act, including

any requirement concerning accident

prevention under section 112(r)(7) of the

Act; * * *’’ Consequently, EPA must

require that air permitting authorities

implementing Title V permit programs

be able to assure compliance with

section 112(r). In the SNPRM, EPA

attempted to identify the section 112(r)

‘‘applicable requirements,’’ clarify the

minimum content of part 70 permits

with respect to these requirements, and

to specify the role and responsibilities

of the part 70 permitting authority in

assuring compliance with these

requirements.

The sections below address the major

issue areas raised by commenters on the

SNPRM. More detail can be found in the

Risk Management Program Rule:

Summary and Response to Comments in

the Docket. The SNPRM also addressed

the role and responsibilities of the

implementing agency with respect to

section 112(r). This issue is addressed

separately in Section R below.

1. General relationship between the

part 68 and air permitting programs.

Some commenters agreed with EPA’s

proposed role for the air permitting

authority with respect to section 112(r),

but encouraged EPA to avoid new,

confusing, and duplicative state and

source permitting requirements. A few

commenters suggested that all part 68

requirements should become permit

conditions, that it be fully enforced

through the part 70 permitting program,

and that anything less violates the CAA.

Most commenters (state air permitting

authorities and industry), opposed

EPA’s proposal stating that Congress did

not intend, and legislative history does

not support, section 112(r) to be

implemented or enforced through the

Title V permit program.

EPA agrees that Congress did not

intend for section 112(r) to be

implemented and enforced primarily

through Title V and recognizes the

potential for confusion and burden on

sources and air permitting authorities

associated with section 112(r). EPA

believes that the requirements in today’s

rule are flexible, impose minimal

burden, address the concerns raised by

commenters and satisfy the CAA

requirement for assurance of

compliance with section 112(r) as an

applicable requirement for permitting.

The requirements apply only to sources

subject to both part 68 and parts 70 or

71; there are no permitting requirements

on sources subject solely to part 68. EPA

agrees that ideally, one authority should

implement part 68 oversight; however,

air permitting authorities should not be

responsible for implementation just as

implementing agencies should not be

responsible for permitting (see

implementing agency discussion in

Section R, below). The air permitting

authority has the flexibility under

today’s rule to obtain assistance,

expertise or resources from other

agencies in fulfilling its responsibilities

with respect to section 112(r). This will

foster interaction and coordination of air

pollution, pollution prevention, public

and worker safety and health and

environmental programs at the state and

local levels leading to more effective

oversight.

2. Impact of EPA’s proposal on air

permitting programs. Several

commenters stated that EPA’s proposal

places an unreasonable burden on air

permitting programs because states

would need to amend or develop new

legislative authority and implementing

regulations which diverts limited state

resources away from the development

and operation of more important routine

emissions permit programs.

EPA disagrees that today’s rule places

an unreasonable burden on air

permitting programs. Part of the

approval process for a state air

permitting program is confirmation that

states have the authority to ensure that

sources are in compliance with air

toxics requirements under section 112

including section 112(r). The provisions

of section 68.215 are sufficient to meet

the obligations under part 70. Thus, for

state and local agencies that have

approved part 70 programs, states

would need to develop new legislative

authorities only if they seek delegation

to implement part 68 beyond the narrow

responsibilities provided in § 68.215

(see Section R, below). State obligations

under § 68.215, which should be

covered by permit fees (see section E.11,

below), should not impose a substantial

burden on state resources because the

rule streamlines the RMP requirements

and establishes centralized

recordkeeping for RMPs.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31689

3. Part 68 as an ‘‘applicable

requirement’’ under part 70. As

described above, the CAA requires that

air permitting authorities ensure that

sources are in compliance with

applicable requirements as a condition

of permitting. In the preamble of

previous rulemakings for part 70 (57 FR

32301), EPA indicated that the

definition of ‘‘applicable requirement’’

under Title V includes ‘‘any

requirement under section 112(r) to

prepare and register a risk management

plan (RMP).’’ This explanatory

statement preceded development of part

68, which implements section 112(r)(7).

In the SNPRM, EPA proposed more

specific provisions to assure compliance

with applicable requirements for section

112(r) than the part 70 preamble so that

air permitting authority responsibility is

clear. EPA believed that all elements of

part 68 are applicable requirements;

however, compliance with applicable

requirements could be assured by

including generic terms in permits and

certain minimal oversight activities.

Together, these steps ensure that

permitted sources fulfill their accident

prevention and information sharing

responsibilities.

EPA proposed standard permit

conditions that would allow air

permitting authorities to verify

compliance with part 68. Commenters

stated that alteration of the part 70 rule

definition of the term ‘applicable

requirement’ under the part 68

rulemaking is inappropriate and that the

role of the air permitting authority with

respect to section 112(r) should be

defined in part 70 rulemakings rather

than in part 68.

EPA’s action today does not alter the

definition of ‘‘applicable requirements’’

under 40 CFR 70.2, which already

includes ‘‘any requirement concerning

accident prevention under section

112(r)(7).’’ Rather, EPA is establishing

very simple permit terms and flexible,

minimal oversight responsibilities that

will assure compliance with part 68.

EPA disagrees that part 68 cannot

establish more specific terms for permits

than those given in part 70 or 71 with

respect to section 112(r). As mentioned

in the SNPRM preamble, part 70 does

not preclude EPA from clarifying or

even expanding air permitting

responsibilities. Specific permit

requirements are useful to clearly

establish the minimum permit

conditions and state responsibilities

essential to ensuring compliance with

part 68 and to reduce uncertainties that

may lead to overly broad interpretations

of the requirements. However, air

permitting authorities still have the

flexibility to establish additional terms

for the permit if it so chooses.

4. Role of the air permitting authority.

In the SNPRM, EPA proposed certain air

permitting authority responsibilities

necessary to ensure that sources are in

compliance with part 68 for purposes of

permitting. Commenters stated that the

role of the Title V permitting authority

should be defined in part 70, not in part

68 and opposed EPA’s proposal arguing

that it causes unnecessary confusion for

sources. Commenters also argued that

air permitting authorities do not have

the relevant expertise needed and that

states should have the flexibility to

implement risk management programs

in whichever agency they see fit. Other

commenters argued that air permitting

authorities, without section 112(l)

delegation, could not accept the

responsibilities assigned by the SNPRM

and that EPA was unlawfully attempting

to delegate the responsibility for

implementing section 112(r) to the state

permitting authorities. Several

commenters believed the permitting

authority should have no

responsibilities beyond those set forth

in EPA’s April 13, 1993, policy

memorandum from John Seitz, Director

of the Office of Air and Quality

Planning and Standards (OAQPS), to

EPA Regional Air Division Directors,

available in the docket because states

invested significant resources and effort

into the development of their programs,

guided by this EPA memorandum.

However, a state permitting authority

stated that the EPA memorandum did

not account for many of the key program

elements, including the necessary

incorporation of standard permit

conditions. Many commenters also

opposed requiring extensive details or

all aspects of part 68 compliance in the

permit, finding this approach excessive

and overly burdensome on both state air

permitting authorities and sources and

contrary to the law and Congressional

intent in that it would have required

section 112(r)(7) to be fully

implemented by state permit programs.

Several commenters were concerned

that a single violation of part 68 could

potentially be enforced by both the

permitting authority and the

implementing agency. One commenter

suggested that the only case where a

violation of a part 68 requirement

should also be considered a violation of

part 70 would be the failure to register

an RMP on time under the requirements

of § 68.12. Another commenter

requested that, at § 68.58(b)(3), EPA

should allow the state the discretion to

determine whether a penalty should be

assessed. Several commenters, uncertain

how the Programs proposed by EPA in

the SNPRM would affect the role of the

permitting authority, suggested that EPA

develop a process to inform states of the

tiering approach and to exclude

Program 1 and 2 sources from additional

permitting requirements.

EPA believes that part 68 should more

clearly define the role of the air

permitting authority with respect to

section 112(r). Part 70 requirements

were established well before part 68 and

are therefore vague. Consequently, EPA

is using part 68 to clarify the applicable

requirements, to specify permit terms

and to establish the minimum permit

conditions and activities to avoid

misinterpretations and to ensure

compliance with part 68. EPA agrees

that air permitting authorities may not

have the expertise necessary with

respect to part 68; consequently, the

requirements in today’s rule only

specify the actions the state must take

to assure that sources have met their

part 68 responsibilities while giving the

state flexibility to assign or designate by

agreement entities other than the

permitting authority to carry out these

activities. The elements in today’s rule

are the minimal components of a

successful compliance program;

anything less falls short of the statutory

requirements of assuring compliance

with all applicable requirements. EPA

also disagrees that it is forcing

delegation on air permitting authorities

to implement section 112(r). As

described in the SNPRM and above, air

permitting authorities must ensure that

sources are in compliance with

applicable requirements for purposes of

permitting. This is not section 112(r)

implementation (see section R below).

EPA is merely specifying more clearly

the requirements already upon air

permitting authorities; without the

specification given in today’s rule, it

could be argued that air permitting

authorities are obligated to review and

evaluate the adequacy of RMP

submissions. EPA agrees that oversight

of the adequacy of part 68 compliance,

including RMPs, is not an appropriate

activity for the air permitting authority

and is more appropriately an

implementing agency duty. Delegation

of these implementing agency activities

can only be accomplished through a

delegation consistent with part 63,

subpart E.

EPA also maintains that the air

permitting authority role should be

more specifically defined than that

offered by the April 13, 1993,

memorandum. The April 1993 policy

was prepared prior to the NPRM and

SNPRM, it does not account for

implementation of the risk management

program by the source (as opposed to
31690 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

implementation of the plan), and there

is no mechanism, such as a review of

the RMP by the permitting authority, to

ensure that the plan contains the

elements required by part 68. These

deficiencies were previously indicated

by EPA in a June 24, 1994,

memorandum from John Seitz and Jim

Makris, Director of the Chemical

Emergency Preparedness and

Prevention Office (CEPPO) to EPA

Regional Division Directors, which

stated that ‘‘approval criteria in the

April 13 memorandum may not be

sufficient to ensure compliance with all

‘applicable requirements’ established’’

in the risk management program rule.

EPA acknowledges that states may have

invested considerable resources and

effort in development of air permitting

programs based on the April 13, 1993

policy. However, EPA also believes that

the minimum requirements and

flexibility offered by today’s rule allow

air permitting authorities to fold these

activities into their programs with

minimal burden. EPA recognizes that

there may be multiple agency oversight

related to permitting and part 68. As

mentioned above, today’s rule allows

the air permitting authority the

flexibility to use other agencies, such as

the implementing agency or a

designated agency (upon agreement), to

better coordinate at the state and local

level. In addition, EPA must note that

there is no ‘approval’ of either initial or

revised RMP submissions.

EPA agrees that requiring the permit

to contain extensive details of part 68

compliance goes well beyond the need

for part 70 permits to assure compliance

with applicable section 112(r)

requirements and it would impose

considerable resource and expertise

burdens on the permitting authority.

EPA has maintained that it is not

appropriate to include risk management

program elements as permit conditions

since these elements will be highly

source-specific and subject to change as

the source develops and implements its

programs.

While enforcement would primarily

occur using part 68 authority, EPA

agrees that the permitting authority also

has the authority to pursue violations

under part 70 and sources could be

subject to multiple violations. This is no

different from any other standard

promulgated by EPA that becomes an

applicable requirement for permitting.

EPA agrees that the air permitting

authority has the discretion to

coordinate with the implementing

agency with respect to penalty

assessment associated with § 68.58(b)(3)

in the SNPRM (§ 68.215(e)(4) under

today’s rule).

Finally, the tiering (Program)

approach benefits sources as well as air

permitting authorities. EPA has

simplified the tiering provisions so

sources and air permitting authorities

should be able to readily determine the

Program requirements each process

must satisfy, leading to more effective

oversight. EPA has also streamlined the

RMP reporting requirements and is

working on electronic submission of

RMP information which serve to reduce

the burden on air permitting authorities

and implementing agencies.

5. Title V permit application contents.

Many commenters stated that sources

regulated under parts 70 or 71 and part

68 should only be required to certify

whether they are subject to section

112(r) in their initial permit application

to allow timely processing. Although

EPA indicated that it did not want the

RMP included in permit applications or

in the permit, many commenters stated

their opposition because the additional

time required for RMP review could

delay permit grants and, in some states,

the RMP could be included in the

source’s permit. Several commenters

suggested that the air permitting

authority should decide whether it

wants the RMP; one commenter stated

that sources would have a significant

incentive to comply with such a request,

given the permitting authority’s ability

to withdraw an application shield.

Others stated that the permitting

authority should be prohibited from

asking for the RMP as part of the permit

application.

As EPA has indicated, the RMP

should not be submitted with the permit

application or made part of the permit.

EPA is working to streamline permit

application requirements and has

indicated that the minimum with

respect to section 112(r) is a ‘‘check

box’’ for the source to note whether it

is subject to section 112(r), and either

certification that the source is in

compliance with part 68 or has a plan

for achieving compliance. Any other

requirements are up to the air

permitting authority. All sources will be

required to submit their RMP to a

central point to be specified by EPA and

will be immediately available to local

responders and the state which may

elect to make it available to air

permitting authorities.

6. Air permit contents. EPA proposed

in the SNPRM that each permit contain

standard conditions that address key

compliance elements in part 68 and

mechanisms for compliance plans,

certifications and revisions. Although

EPA indicated it did not believe the

RMP should be part of the permit, two

commenters suggested that it should be

included while most others indicated

that it should not or that the air

permitting authority should decide.

Several commenters supported no more

than the four conditions proposed in the

SNPRM while others suggested

requirements including: prompt

development and updating of a

complete RMP; no conditions other than

an indication that a source is subject to

part 68; provisions stating the need to

register according to § 68.12; a condition

stating that the source will comply with

all part 68 requirements; and a standard

provision recognizing that the

implementing agency has the section

112(r) enforcement authority.

Except for the provisions of

§ 68.215(a), EPA does not believe that

the RMP or all or any portion of the

remainder of part 68 should become

permit conditions because the RMP and

part 68 elements will be highly sourcespecific and subject to frequent change

introducing unnecessary complexity

and delaying permit implementation.

The provisions of § 68.215 should allow

the air permitting authority to

implement the conditions in a

standardized way across many sources

with minimal burden. EPA has revised

§ 68.215 to require that all permits

contain a statement listing part 68 as an

applicable requirement and that

conditions shall be added that require

the source to submit a compliance

schedule for meeting the requirements

of part 68 or, as part of the compliance

certification all permitted sources must

submit under 40 CFR 70.6(c)(5), a

certification statement that, to the best

of the owner or operator’s knowledge,

the source is in compliance with all

requirements of this part, including the

registration and submission of the RMP.

EPA had amended the authority citation

for part 68 to include CAA Title V

because EPA is promulgating permit

terms and oversight duties. Consistent

with parts 70 and 71, the permit shield

provisions of parts 70 and 71 would not

apply to the substantive requirements of

part 68 because the detailed substantive

requirements of part 68 are not

addressed in the Title V permit or

permit application. If a permit without

these conditions has already been

issued, then when the permit comes up

for renewal under part 70 or 71

requirements (40 CFR Part 70.7), the

owner or operator shall submit an

application for a revision to its permit

to incorporate these conditions. The

suggested alternative conditions, not

adopted, generally help assure

compliance only with portions of part

68, such as registration or the

preparation of the RMP, or omit critical
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31691

information, such as whether the source

is subject to part 68 or what its

compliance status is. The implementing

agency’s enforcement authority is

apparent on the face of the CAA.

7. Completeness review. As part of

ensuring compliance, EPA proposed in

the SNPRM that within a certain timeframe the air permitting authority must

verify that an RMP containing the

required elements had been submitted

and indicated in the preamble that it

would assist air permitting authorities

by developing a checklist. EPA stated

that this review is independent of

completeness reviews required for

permit applications to avoid interfering

with the permit process. Further, air

permitting authorities could arrange for

other agencies, including the

implementing agency, to perform the

completeness review. EPA also

requested comment on whether the

permitting authority should be able to

require sources to make revisions to an

RMP.

Most commenters disagreed with this

proposal arguing that if a completeness

check is necessary, it should be

performed by the implementing agency

since most air permitting authorities

will not have the technical expertise

(e.g., chemical process safety) required

to adequately review RMPs for technical

completeness. Commenters also argued

that a completeness review would be

merely procedural, it duplicates effort

without creating any real benefit, it

consumes scarce resources, and it leads

to inconsistent RMP review without

ensuring the source is in compliance

with risk management program

requirements. Some commenters

suggested that the completeness review

could be better defined only as a review

of source self-certification that a

complete RMP was submitted rather

than a substantive review. Some

commenters generally agreed that

completeness checks should be

completed within sixty days. Finally,

most commenters argued that only the

implementing agency should be able to

require revisions to the RMP. Otherwise,

another revision review, appeal and

verification process would be necessary,

duplicating the process already

established for the implementing

agency.

Based on these comments, EPA has

decided not to require that air

permitting authorities perform a

completeness check as part of the

verification of compliance with part 68.

EPA has modified the rule requirements

so that the air permitting authority may

select for itself one or more appropriate

mechanisms (such as source audits,

record reviews, source inspections or

completeness checks) and time-frame in

conjunction with source certifications,

to ensure that permitted sources are in

compliance with the part 68

requirements. Without some kind of

oversight, source self-certification is not

a sufficient means of compliance

assurance, given that an RMP contains

information essential at the local level

for emergency prevention,

preparedness, and response and is not

subject to routine, case-by-case review

for quality. These oversight mechanisms

do not need to be used on each source

in order to be effective. EPA agrees that

the review for quality or adequacy of the

RMP is best accomplished by the

implementing agency on a frequency

and scope that may vary. EPA is willing

to work with air permitting authorities

on guidance, checklists or other tools to

assist in the development of compliance

mechanisms related to the RMP. In

addition, EPA is willing to assist air

permitting authorities in electronic

checks once the electronic system for

RMP submittal is developed. EPA

emphasizes that if an RMP

completeness check is used by the air

permitting authority, it should remain

independent of the completeness

determination for the permit

application. The RMP will most likely

be submitted at a different time than a

permit application, since almost all

permit applications will have been

submitted well in advance of the risk

management program rule deadline. If

the completeness check determines that

an incomplete RMP has been submitted,

the permitting authority can request

additional information under

§ 68.215(b) and should coordinate with

the implementing agency on necessary

RMP revisions. The completeness

checks are facial reviews of RMPs to

verify that there are no omissions. Such

checks could be performed on a select

basis and occasionally integrated with a

multi-purpose source inspection

conducted to ensure that the air source

is in compliance with its permit.

8. Interaction of the implementing

agency and the permitting authority. In

the SNPRM, EPA attempted to delineate

the specific requirements unique to the

air permitting authority and the

implementing agency. The role of the

state is described in more detail in E.4

while the implementing agency is

discussed in R. Commenters on the

SNPRM suggested that EPA should

require the implementing agency to

certify to permitting authorities whether

part 68 sources regulated under part 70

are in compliance with part 68

requirements. Such certification should

be deemed sufficient to ‘‘assure

compliance’’ with the applicable

requirement under part 70. Other

commenters suggested that the

permitting authority could simply

consult with the implementing agency

when it believes there is a problem

requiring attention or that the

implementing agency should notify the

permitting authority of any problems in

part 68 compliance, so that the

permitting authority may then expand

the permit conditions accordingly.

EPA does not believe it is necessary

to define the interaction between the

permitting authority and the

implementing agency. Ideally, this

coordination and interaction should

occur at the state or local level.

Coordination of other CAA programs

(Title V, SBAP, and other 112 programs)

with the 112(r) program will ensure that

the programs are more consistently

implemented and enforced, while

easing regulatory burden and providing

the public greater access to information.

However, when EPA is the

implementing agency, it stands ready to

work with air permitting authorities on

oversight associated with permitting

and enforcement of the part 68

requirements. Today’s rule also

provides the state the flexibility to

assign some or all of its responsibilities

by prior cooperative agreements or

memoranda of understanding to the

implementing agency or another state,

local, or Federal ‘‘designated agency.’’

EPA recognizes that each state is

structured differently and will have

different impediments and

opportunities; therefore each state has

the flexibility to place the program in an

appropriate agency or department,

including the air permitting agency.

9. The ‘‘designated agency.’’ In the

SNPRM, EPA proposed to define the

designated agency as the state or local

agency designated by the air permitting

authority as the agency responsible for

the review of an RMP for completeness.

This provision was designed to give the

air permitting authority the flexibility to

obtain expertise from other agencies to

fulfill its responsibilities. Several

commenters believed the SNPRM does

not clearly allow the permitting

authority to delegate tasks to a

designated agency and the permitting

authority should be able to delegate

more than the completeness review, e.g.,

enforcement. Some commenters

requested that EPA redefine the term to

allow permitting authorities to delegate

tasks to EPA or other Federal agencies;

while one commenter argued that EPA

should not allow the permitting

authority to designate EPA as the

designated agency.
31692 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

EPA agrees that the definition should

be revised to give the air permitting

authority more flexibility. EPA has

dropped the mandatory completeness

review, added broader implementation

and enforcement activities, and

included Federal agencies in the

designated agency definition. Thus, a

‘‘designated agency’’ may be any state,

local, or Federal agency designated by

the state as the agency to carry out the

provisions of § 68.215, provided that

such designation is in writing and, in

the case of a Federal agency, consented

to by the agency. The parties to any

such designation should negotiate the

terms and details of any agreements.

10. Reopening part 70 permits to

incorporate section 112(r) requirements.

In the preamble to the SNPRM, EPA

indicated that part 68 requirements

should be incorporated into part 70 or

71 permits using the part 70

administrative amendment process

because of the timing difference

between part 68 and air permitting.

Most commenters agreed with this

approach or indicated that permits

should not be reopened at all; instead,

sources that submitted permit

applications prior to promulgation of

the final section 112(r) regulations

should not be subject to enforcement

action under Title V until after the first

renewal of the permit (i.e., after 5 years).

As discussed under section E.6, if a

permit without the necessary part 68

conditions has already been issued, then

the owner or operator or air permitting

authority shall initiate a permit revision

or reopening according to the

procedures detailed in 40 CFR 70.7 or

71.7 to incorporate the terms and

conditions under paragraph (a) of

§ 68.215. Although EPA has not

completed part 70 permit streamlining

efforts, the requirements for permit

revisions or reopenings should be

complete by the time sources will be

required to be in compliance with the

part 68 requirements. Under the most

recent part 70 proposal, the part 68

requirements would be classified as

‘‘less environmentally significant’’ and

the associated procedures would be

followed. Sources with such permits

shall be subject to enforcement under

authorities other than Title V.

11. Use of Title V funds. In the

SNPRM, EPA indicated that activities

conducted by air permitting authorities

should be covered by fees collected

under part 70 since part 68 is an

‘‘applicable requirement.’’ EPA also

acknowledged that air permitting

authorities may not have planned for

section 112(r) activities and requested

input on alternative funding

mechanisms or whether resources

would need to be reduced in other

programs to allow completion of part 68

responsibilities.

Several commenters raised concerns

about the impact of the section 112(r)

requirements on state and local air

permitting authorities because funding

will be needed and it may not be

possible in the current political climate

for the permitting authorities to raise the

necessary fees through Title V. Some

commenters argued that funding

decisions should be left up to the air

permitting authorities.

EPA agrees that funding decisions

regarding the part 68 program should be

made at the discretion of the state and

local agencies. However, air permitting

authorities need to be aware that the

CAA requires states to impose permit

fees that are sufficient to cover the

direct and indirect costs of

implementing the permit program,

including part 68 activities and

activities conducted by state designated

agencies. EPA believes the straightforward and flexible requirements

established in today’s rule impose

minimal additional burden on air

permitting authorities. Funding

associated with section 112(r)

implementation is addressed in section

R, below.

12. Other issues. In the SNPRM

preamble, EPA stated that it worked

closely with and directly involved

several state and local air program

officials and state emergency response

and prevention representatives in the

development of the preamble and

regulatory language to prepare the

approaches described. EPA stated that

the proposed approaches ‘‘best reflect

the concerns of the states about air

permit program implementation and the

needs for comprehensive participation

in chemical accident prevention,

preparedness, and response at the state

and local level.’’ Two commenters

disagreed, arguing that in January 1995,

the National Governors Association

(NGA) and ECOS (organization of state

environmental officials) presented

numerous recommendations to EPA

Assistant Administrator Mary Nichols

for changes in several clean air

programs; regarding section 112(r),

NGA/ECOS recommended that Title V

permitting authorities be required only

to certify that an RMP has been

submitted. These commenters believe

that the SNPRM fails to adequately

address states’ central concern;

requiring permitting authorities to

review RMPs will encumber an already

overtaxed system.

Although EPA disagrees that the

proposal fails to adequately address

states’ concerns, EPA agreed that the air

permitting authority requirements could

be more sharply focused to minimize

the burden. EPA believes that today’s

rule is the product of many hours of

hard work with state and local air

permitting authorities to recognize their

concerns and to develop a rule that is

effective, flexible and imposes the least

economic burden possible.

F. General Definitions

1. Significant Accidental Release. In

the NPRM, EPA proposed to define

significant accidental release as ‘‘any

release of a regulated substance that has

caused or has the potential to cause

offsite consequences such as death,

injury, or adverse effects to human

health or the environment or to cause

the public to shelter in place or be

evacuated to avoid such consequences.’’

This definition was key to the

applicability of a number of rule

requirements, including hazard

assessment, accident history, and

accident investigation. Only four of

more than 115 commenters supported

this proposal arguing that the definition

should be protective of the public and

should consider inconvenience to the

public and precautionary measures

taken. Other commenters argued that

Congress intended for the section 112(r)

rules to address catastrophic releases,

not those with minor impacts, and that

this definition overly broadens the

scope of the rule diverting resources and

increasing cost for little additional

benefit. Many commenters stated that

‘‘injury’’ and ‘‘adverse effects’’ are

undefined and could mean any health

impact from irreversible effects to minor

irritation requiring no medical

treatment. ‘‘Potential to cause’’ was also

considered too vague. As discussed in

Section III.C, many commenters

objected to consideration of

environmental impacts. Commenters

also opposed sheltering-in-place and

evacuation as criteria because these

actions are often precautionary and, in

many cases, are later viewed as

unnecessary and may discourage

owners or operators from making

recommendations to evacuate or shelterin-place. Several commenters submitted

alternative definitions where injuries

were limited to those that require

hospitalization, adverse effects were

limited to serious effects, and

environmental effects were limited to

those that generate human deaths or

hospitalizations. Some suggested that all

environmental effects be dropped.

EPA agrees that the definition as

proposed was too vague and subject to

a wide variety of interpretations. In

addition, EPA decided that a single

definition does not adequately address
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31693

the criteria needed for all affected

sections of the rule. For example, the

five-year accident history requirement

depends on the offsite impacts

generated by the accident while

endpoint criteria are used for the worstcase and alternate scenario offsite

consequence assessments.

Consequently, EPA has decided to drop

the definition and instead identify the

criteria for the types of releases or

impacts that should be addressed by the

appropriate requirement. EPA has

considered the suggestions offered by

commenters and added definitions of

the terms ‘‘environmental receptor,’’

‘‘injury,’’ ‘‘medical treatment,’’ and

‘‘public receptor’’ and adopted (with

modifications as described above) the

OSHA definition of catastrophic release.

EPA notes that sources should be aware

that within the definition of Injury,

direct consequences include effects

caused by shrapnel and debris set in

motion by a vapor cloud explosion. EPA

adopted its Medical Treatment

definition from one OSHA uses for

logging occupational injuries and

illness. Finally, under the

environmental and public receptor

definitions, sources should note that

certain parks and recreational areas may

be both if the public could be exposed

as a result of an accidental release.

2. Stationary Source. Commenters

requested that EPA state whether the

term stationary source covers the entire

‘‘facility’’ or simply a single process and

provide guidance on which

requirements apply source-wide and

which are process-specific. EPA also

received comments regarding the

relationship or overlap between the

stationary source definition and DOT

regulations. These are discussed in

section III.P.2 below.

In the List and Thresholds rule, EPA

defined stationary source to include an

entire ‘‘facility.’’ Sources will be

required to submit one RMP and one

registration as part of that RMP for all

processes at the source with more than

a threshold quantity of a regulated

substance. Although the management

system applies to all Program 2 and 3

processes, the prevention program

elements are process-specific. The

hazard assessment requirements apply

to the regulated substances, but only in

covered processes. As a practical matter,

the emergency response program will

probably apply to the entire source

although technically it applies only to

covered processes.

3. Process. Several commenters

argued that the definition of process was

susceptible to overly expansive

interpretations and asked that certain

activities such as storage at sources or

distribution terminals be excluded.

Many commenters sought clarification

of ‘‘close proximity’’ and

‘‘interconnected vessel.’’ Commenters

also wanted the definition to be

consistent with OSHA.

EPA adopted OSHA’s definition of

process in the original proposal and for

the final rule. This definition

specifically covers storage (as well as

handling and processing) of regulated

substances. EPA disagrees that storageonly sources are adequately covered by

SPCC regulations since the regulations

under SPCC and OPA–90 cover oil

terminals and releases to water. This

rule is directed at accidental releases of

regulated substances (not including oil)

to the ambient air. Generally, OSHA

PSM also covers these chemical

terminals; consequently, the only

additional steps these sources will need

to take will be to conduct the hazard

assessment and submit the RMP, as

existing emergency response plans may

meet the emergency response program

requirements.

Since EPA’s definition is identical to

OSHA’s, EPA will coordinate

interpretations of the definition of

process with OSHA to ensure that the

rule is applied consistently. OSHA has

stated that processes are in ‘‘close

proximity’’ if a release from one could

lead to a release from the other. Owners

or operators must be able to demonstrate

that an ‘‘effective barrier’’ exists to

prevent a release from one process from

affecting another. OSHA has interpreted

‘‘interconnected vessel’’ to mean vessels

connected by any means, such as

piping, valves or hoses, even if these are

occasionally disconnected. EPA will

also adhere to these interpretations.

4. Offsite. One commenter stated that

EPA’s proposed definition of offsite

should be expanded to include the air

above and below the point of release to

cover exposure to the upper atmosphere

and groundwater. Another asked EPA to

limit the definition to areas frequented

by the public. Two commenters

opposed including areas on site where

the public has access because OSHA

already covers these areas.

In the final rule, EPA has retained a

definition of offsite as ‘‘areas beyond the

property boundary of the stationary

source or areas within the property

boundary to which the public has

routine and unrestricted access during

or outside business hours.’’ OSHA’s

jurisdiction includes visitors that may

be on the property of a facility who are

conducting business as employees of

other companies but does not

necessarily extend to casual visitors or

to areas within a facility boundary to

which the public has routine and

unrestricted access at any time.

5. Other Definitions. Commenters

raised questions about several other

definitions. Three commenters

suggested changes or clarifications to

the definition of accidental release.

EPA’s definition is the statutory

definition. Commenters also proposed

modifications to the definition of

‘‘analysis of offsite consequence.’’ As

noted above, EPA has determined that

this definition is not needed and has

deleted it from the final rule.

Commenters sought clarification of

the definition of mitigation systems and

whether personnel should be

considered an active mitigation system.

Others asked for a list of passive

mitigation systems and provided

proposals. These commenters also

objected to limiting passive systems to

those that capture or control released

substances; they suggested that systems

that are designed to prevent releases or

control the volume or rate of a release,

such as vent/catch tanks, quench tanks,

blowdown tanks, elevated stacks and

high velocity stacks, adsorbents

including carbon beds, neutralization

tanks, double-walled vessels or

pipelines, chemical sewers, closed drain

header systems for flammables, vaporliquid separators, fire barriers,

explosion-resistant walls, isolation

distances, barriers to prevent free access

of air flow after a release, containment

buildings, pre-charged water spray

systems, closed vent systems, and filters

should also be considered passive

mitigation. One commenter suggested

that active mitigation systems should be

defined as those that require manual

activation or an energy source (other

than gravitational attraction) to perform

their intended function.

For the final rule, EPA has decided to

define passive mitigation systems as

those systems that operate without

human, mechanical, or other energy

input and would include building

enclosures, dikes, and containment

walls but excludes active mitigation

systems such as excess flow valves, failsafe systems, scrubbers, flares, deluge

systems, and water curtains. In addition

to the requirements outlined in §§ 68.25

and 68.28, EPA provides further

guidance on the consideration of the

effect of passive mitigation in its RMP

Offsite Consequence Analysis Guidance.

EPA does not believe that all systems

designed to prevent releases or control

the volume or rate of a release should

be considered passive mitigation,

consistent with its intent to reflect the

potential for failure of any system that

requires human, mechanical, or other

energy inputs.
31694 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

G. Risk Management Plan (RMP)

In the NPRM, EPA proposed that

owners or operators of stationary

sources covered by the requirements

submit an RMP summarizing the key

elements of its risk management

program. In the NPRM preamble, EPA

indicated that summaries of the

information requested (e.g., hazard

assessment and emergency response

program) would provide the most useful

information to the public and local

agencies without overburdening them

with unneeded detailed information.

EPA further stated that the RMP should

serve to provide local and state agencies

and the public with sufficient

information to determine if additional

details are needed. These details would

be available, if needed, to implementing

agency officials conducting audits or

compliance inspections.

1. Level of Detail. Most commenters

agreed with EPA’s proposal noting that

the public should be able to identify key

hazard and risk management

information from the RMP without

being overwhelmed by extraneous

documentation that is more

appropriately maintained on site. A

detailed submission would not be costeffective and could threaten plant

security; these commenters expressed

fears of terrorism, thieves, and

saboteurs.

Other commenters disagreed and

argued that summaries would not

provide enough information while ‘‘full

disclosure’’ would support an informed

public. Some commenters argued that

the public could be misled by a

summary derived from a ‘‘full’’ RMP

withheld from the public by the source.

Further, several commenters made the

general argument that right-to-know

provisions should be strengthened and

that the public should be given full

access to all risk management program

information including PHAs and actual

operating procedures. Individual

commenters also requested public

access to specific information regarding

such details as worst-case scenarios and

descriptions of chemical accidents.

Some commenters argued that an

informed public and public scrutiny, in

general, can act as a powerful force in

reducing risk and preventing accidents

at stationary sources.

EPA agrees that an informed public is

a key element of sound chemical

emergency prevention, preparedness,

and response. However, EPA also

believes that it is essential for the public

to focus on the information essential at

the local level for prevention,

preparedness, and response and has

decided to maintain its proposed

requirement that the RMP provide

certain information about the risk

management programs at a source. EPA

notes that its previous use of the word

summary was not intended to imply

that the source prepares a ‘‘full’’ RMP

document from which a source extracts

summary information that is shared

with the public. Rather, the source is

obligated to develop certain information

about the hazards, prevention, and

emergency response programs from the

array of documentation at the source to

prepare an RMP. EPA believes it would

be impractical to require sources to

share all documentation used for the

safe operation of the processes at a

source. Not only is much of this

information likely to be confidential,

but significant technical expertise and

time are necessary to extract,

understand, and to make meaningful

judgments about the adequacy of the

information. The RMP will consist of an

executive summary and required data

elements addressing all elements of the

risk management program as described

below. Detailed supporting

documentation will be maintained on

site available to the implementing

agency for review.

2. RMP Contents. Most commenters

requested that EPA generally limit the

level of detail required, the number of

scenarios, or the number of pages in the

RMP. Other commenters recommended

EPA require submission of only

information specified in the CAA and

incorporate other detailed information

by reference. Commenters also noted

that documenting each action taken to

address a hazard, the date on which the

action started (or is scheduled to start),

and the actual or scheduled completion

date would prove impractical. EPA

received many comments stating that

the requirement that exact dates on

which training, emergency exercises, or

rescue drills, are conducted would be

impractical and unnecessary.

Commenters seeking more

comprehensive RMPs argued in favor of

requiring an index or bibliography of

detailed information or a catalog of all

available documents, an investigation

and analysis of all other credible release

scenarios, and submission of

assumptions, methodology, and

modeling methods used to determine

worst-case accidents.

As described above, EPA is

considering development of a reporting

mechanism and form to collect key data

elements. As discussed below, this

approach will foster electronic

submission and immediate availability

to Federal, state and local entities, and

the public. To make such submission

possible, EPA wants to collect data that

generally can be reported by numerical

information, yes/no answers, and check

boxes. For the offsite consequence

analyses, owners or operators will be

asked to provide distance to the

endpoint, populations and

environments affected, and enough of

the data used to determine these

distances so that local entities and the

public can check the distance against

the distance derived from EPA’s

reference tables or a model identified in

the RMP. If EPA’s guidance was not

used, sources will need to indicate

which models were used. Many of the

parameters for modeling are set in the

rule and do not need to be respecified

in the RMP. The rule requires only one

alternative release scenario per toxic

substance and one for all flammables;

owners or operators may submit

additional scenarios.

For prevention programs, owners or

operators must provide information

(primarily dates) that will allow the

implementing agency to assess whether

the source is in compliance with the

rule elements. For the PHA, owners or

operators must state which technique

was used for each covered process, the

general hazards associated with the

chemicals and process, the process

controls in use, mitigation and

monitoring or detection systems in use,

and changes instituted since the last

PHA (Program 3) or hazard review

(Program 2) update. Through lists and

checkoff boxes, EPA can collect a

significant amount of information on

current safety practices without

requiring sources to develop lengthy

documentation that would have proved

a burden to both the source and any

government or public data user and

reduced the potential for electronic

submission. EPA believes this approach

provides the Agency and others with a

mechanism for identifying industry

practices and controls from almost

70,000 sources that would not be

feasible otherwise. EPA notes that some

of the largest chemical sources and

refineries may be providing data on 30

or more processes. In the format

proposed in the NPRM, these sources

might have submitted several thousand

pages each; analyzing such submissions

would have been a daunting task for the

implementing agencies and probably

would have made it impossible for

public interest groups to review an

industry as a whole. With electronic

submission, such reviews will be easier.

The implementing agency or EPA can

seek additional details from individual

sources, as needed. EPA has eliminated

the requirement to provide dates of

training and emergency exercises or
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31695

drills because the Agency agrees that

this amount of detail is unnecessary and

impractical.

3. Submission. In the NPRM

preamble, EPA proposed that computer

software be developed that would

provide sources with a standard format

for completing the information required

in the RMP; that local authorities be

allowed to designate the state as the

receiving entity; or that RMPs be

submitted only on request from the

state, or local entity.

Many commenters, particularly those

in the potentially regulated community,

supported submission of the RMP upon

request or mandatory submission to the

implementing agency with submission

by request to other organizations. Others

recommended submission to the LEPC

and public with submission by request

to the implementing agency, and SERC.

Most commenters favored reducing the

paperwork burden and electronic

submission because it would reduce

time and errors, provide more

consistency, and make information

more useful for the LEPC and regulatory

agencies. Only two commenters

opposed electronic filing because all

sources may not have the computer

capability.

Commenters also supported the

development of a standard RMP format

regardless of whether the RMP is

submitted electronically because

standardization would ensure

submissions were manageable and

useful and would ease burdens on both

regulated and reviewing entities.

EPA has decided to work toward

electronic submission of RMPs. The

Agency believes this will meet

numerous objectives of the program and

will address several issues. First,

electronic submission would reduce the

burden on regulated and receiving

entities. The Agency has noted that

information management of regulatory

documents is not a cost-free

requirement, and that duplication of

effort, including system development,

personnel resources, and storage and

maintenance efforts could be significant.

Electronic submissions would reduce

the paperwork burden on sources and

state and local governments and would

further serve to comply with the

Paperwork Reduction Act of 1995,

which supports the maximum feasible

use of electronic submission. Second,

EPA wishes to limit the information

management burden on local entities so

they can focus on the chemical safety

issues raised by this rule.

Third, electronic submissions would

benefit affected communities and the

general public. Besides having the RMP

provide the statutorily required

information on compliance with the

regulations to the implementing agency,

EPA believes the specific value of RMP

information is for the local community

to understand its community’s risk from

chemical accidents and to help them

work with sources using these

chemicals to reduce such risks. The

Agency believes this objective would

not be served well with a centralized

paper information source and that using

an electronic medium would support

better access to information. With

electronic submission of RMPs to a

central point, states, local entities, and

the public will have access to all RMPs

electronically. RMP information may

also be made available on-line via

libraries and other institutions.

Electronic submissions further address

the issue of standardized RMPs. The

RMP data elements included in the

submission will be checkoff boxes, yes/

no answers, or numerical entries to ease

the burden of submission and reception

and will promote consistency and

uniformity. The Agency intends to

develop technical guidance for the

submission of the RMPs, which will

provide for submission and receipt of an

electronic formatted document

containing the data elements outlined in

§§ 68.160 through 68.180.

4. Other Issues. In the NPRM, EPA

proposed that RMPs be resubmitted

within six months of an information

change. Several commenters argued it

would generate a continual flow of

paperwork and recommended an update

frequency requirement of once a year.

EPA has retained the requirement that

the RMP be resubmitted within six

months of the elimination of a substance

in a process or at the source, a change

in Program status for a process, or if a

process change at the source requires a

revised hazard assessment or hazard

review/PHA. To be consistent with the

statutory requirements for compliance,

the RMP would also have to be updated

on the date an already regulated

substance becomes present in a process

above the threshold or within three

years of the date when EPA lists a new

substance. EPA believes that with a

standardized format and electronic

filing, updates can be rapidly and easily

made, and this information should be

promptly shared. EPA changed the

update schedule for hazard assessments

to make them consistent with the RMP

update. EPA also specified when offsite

consequence analyses require update;

the rule states that these analyses need

to be reviewed and changed if on-site

changes may be reasonably expected to

change the distance to an endpoint by

a factor of two or more. EPA notes that

this change is likely to reduce the

number of updates required. For PHAs,

only major changes to a process or

installation of new processes is likely to

trigger a revised PHA. EPA expects that

relatively few sources will need to

update either their offsite consequence

analyses or PHAs/hazard reviews more

frequently than once every five years

because the majority of sources have

simple processes that do not change

frequently. Chemical industry sources

may need to submit more updates if

processes are changing significantly.

The RMP should reflect such significant

changes.

EPA proposed that RMPs be

submitted to implementing agencies,

SERCs, and LEPCs, and be made

available to the public. Several

commenters recommended that

additional parties, local fire officials in

particular, also receive RMPs. One

commenter stated that EPCRA requires

various reports go to local fire

departments, and another commenter

noted that RMP information may be

better used by emergency management

agencies, fire departments, and

hazardous materials teams. Because

EPA plans to have RMPs submitted to

and available from a central point in

electronic format, any agency that wants

the information will be able to access it

directly on-line. The RMP will be

immediately available to local

responders and the state. Thus, this

manner of submission fulfills the

requirements of CAA section

112(r)(7)(B)(iii). Additional submission

requirements are, therefore,

unnecessary.

The Department of Defense (DOD)

commented concerning the lack of a

rule provision explicitly declaring that

information that is classified under

applicable laws and Executive Orders

(E.O.s) is not to be included in the RMP.

EPA is clarifying that such classified

information is protected from disclosure

by including a specific regulatory

exemption for such information.

Furthermore, EPA is clarifying that no

provision of part 68 requires the

disclosure of classified information in

violation of Federal law, regulations, or

E.O.s. Finally, EPA is also promulgating

a definition of ‘‘classified information’’

that adopts the definition under the

Classified Information Procedures Act.

EPA has found no relevant statutory

language superseding or impliedly

repealing the Classified Information

Procedures Act or applicable E.O.s

regarding disclosure of classified

information, nor has EPA found any

legislative history indicating that

Congress intended to supersede or

repeal these provisions when it

established the requirement to prepare
31696 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

publicly-available RMPs. The provision

for exemptions from standards and

limitations established under CAA

section 112 narrowly addresses the

procedures for an exemption when ‘‘the

President determines that the

technology to implement such standard

is not available and * * * it is in the

national security interests of the United

States to do so.’’ CAA § 112(i)(4). The

focus of section 112(i)(4) is on the

technical capability to meet a limitation;

for example, the provision would apply

when an emission standard requires a

control device that precludes national

security-related equipment from

functioning. Section 112(i)(4) does not

consider or address the availability or

distribution of classified information to

the public, nor does the legislative

history demonstrate that such disclosure

was contemplated.

The requirement of section

112(r)(7)(B)(iii) to make RMPs publicly

available must read in congruence with

the provisions prohibiting disclosure of

classified information. ‘‘Classified

information,’’ as defined by the

Classified Information Procedures Act,

18 U.S.C. App. 3, section 1(a), is ‘‘any

information or material that has been

determined by the United States

Government pursuant to an Executive

order, statute, or regulation, to require

protection against unauthorized

disclosure for reasons of national

security. * * *’’ ‘‘National security

* * * means the national defense and

foreign relations of the United States’’

18 U.S.C. App. 3, section 1(b). Criminal

penalties exist for unauthorized

disclosure of classified information that

has been designated by the Department

of Defense or defense agencies for

limited or restricted dissemination or

distribution. 18 U.S.C. 793. It is not

reasonable to interpret the CAA to

require the disclosure of classified

information in violation of criminal law.

It has been EPA’s long-standing policy

to interpret information disclosure

provisions in its statutes as being

consistent with national security law to

the maximum extent possible and to

require such information to be

maintained in accordance with the

originating agency’s requirements.

Federal Facilities Compliance Strategy

(November 1988), at page V–6.

Therefore, EPA is promulgating

language in § 68.150(d) to clarify its

intent with respect to the disclosure of

classified information in RMPs by

specifically exempting classified

information from the RMP except by

means of a classified annex submitted to

appropriately cleared Federal or state

representatives with proper security

clearances. Furthermore, EPA is

promulgating § 68.210(b) to clarify that

disclosure of classified information is

controlled by the Classified Information

Procedures Act, E.O.s 12958 and 12968,

and other laws, regulations, and E.O.s

applicable to classified information.

Finally, in § 68.3, EPA is defining

classified information by promulgating

the definition under the Classified

Information Procedures Act.

H. Prevention Program

In the NPRM preamble, EPA noted

that the CAA requires the risk

management program to include a

prevention program that covers safety

precautions and maintenance,

monitoring, and employee training

measures. Because OSHA PSM covers

this same set of elements, EPA proposed

a prevention program that adopted and

built on OSHA PSM. The proposed

requirements for EPA’s prevention

program included a management system

requirement and sections covering nine

elements: process hazard analysis,

process safety information, operating

procedures (SOPs), training,

maintenance, pre-startup review,

management of change, safety audits,

and accident investigation.

To assist in describing its prevention

program, EPA included a section in its

preamble comparing its prevention

program to OSHA PSM standard. EPA

noted that with the exception of the

management system requirement, the

proposed prevention program covered

the same elements as OSHA’s PSM and

generally used identical language except

where the statutory mandates of the two

agencies dictated differences. EPA

added introductory paragraphs to most

sections to provide additional

information. Further, in some of the

sections, EPA proposed additional

requirements and established different

deadlines. The majority of comments

EPA received concerned conflicts and

differences between EPA’s proposed

requirements and OSHA PSM standard.

In the final rule, the Program 3

prevention program is the OSHA PSM

standard for parallel elements, with

minor wording changes to address

statutory differences. For elements that

are in both the EPA and OSHA rules,

EPA has used OSHA’s language

verbatim, changing only certain

regulatory terms (e.g., highly hazardous

chemical to regulated substance and

employer to owner/operator) and dates.

The sections of the OSHA PSM standard

were not cross-referenced for the

reasons discussed in section III.D of this

preamble. Key issues under PSM are

discussed below; the remainder are

addressed in the Response to Comments

Document.

Management. In the NPRM preamble,

EPA stated the purpose of its proposed

management system is to ensure

integration of all prevention program

elements. EPA proposed that owners or

operators identify a single person or

position that has the overall

responsibility for the development,

implementation, and integration of the

risk management program requirements.

When responsibility for implementing

individual requirements of the risk

management program is assigned to

persons other than the person

designated, the names or positions of

these people shall be documented and

the lines of authority defined through an

organization chart or similar document.

Several commenters agreed with this

approach because it serves a useful

purpose and many PSM sources already

implement management systems. Many

commenters opposed the requirement

for submission of an organization chart

of their source because it would be of

no value to EPA and that continual

updating would waste company

resources.

EPA has decided to maintain its

management system requirements in the

final rule for sources with processes in

Program 2 and 3, but has moved it to

general requirements (§ 68.15) because it

is the entire risk management program

that should be managed, not just the

prevention program. EPA has also

revised the requirement to provide

flexibility in indicating lines of

authority; an organization chart is not

absolutely required and is not included

in the RMP.

Management of Change. Some

commenters objected to EPA’s

definition of replacement in kind,

asking that EPA adopt the OSHA PSM

definition. Other commenters stated that

management of change procedures

should only be implemented when the

changes had the potential to increase

the risk (e.g., an increase in inventory,

an introduction of a new substance).

As part of its efforts to strengthen

coordination between the two programs,

EPA will use the OSHA definition for

‘‘replacements in kind’’: ‘‘a replacement

which satisfies the design

specification.’’ OSHA defined this term

to address a concern expressed by

commenters on its standard that failing

to define ‘‘replacements in kind’’ could

result in misunderstandings such as

employers believing that only a

replacement with the same brand and

model number could be characterized as

a ‘‘replacement in kind.’’ OSHA

promulgated a definition in recognition

of these comments, and EPA
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31697

understands it to reflect a concept

understood in industry.

Further, EPA does not agree that

management of change requirements

should exclude changes that reduce the

risk of an accidental release. The

Agency does not believe that only

changes to ‘‘critical systems’’ should be

subject to management of change

procedures. As EPA stated in the NPRM

preamble, most process changes

improve process safety or efficiency.

However, even these changes may result

in unintended effects when source

owners and operators fail to evaluate the

consequences of the change. Therefore,

the Agency continues to believe that a

change that reduces the risk of an

accidental chemical release may,

nonetheless, be an appropriate subject

for a management of change procedure.

Failure to subject such changes to a

management of change process could

inadvertently result in a change that was

believed to lower risk when such a

change, in fact, increases risk. Regarding

the comment about critical systems,

EPA notes that chemical processes are

integrated systems, and that a change in

one part of the process can have

unintended effects in other parts of the

system—irrespective of whether the

system is ‘‘critical.’’ Consequently, EPA

agrees with OSHA that source owners

and operators must establish and

implement written management of

change procedures for any change to a

regulated substance, process technology,

or equipment and any change to a

source that affects the covered process.

Other Provisions. Several commenters

stated that EPA should include in its

risk management program the OSHA

PSM provisions on contractors,

employee participation, and hot work

permits that EPA had not proposed in

its prevention program. The NPRM

solicited comment on whether to

include these provisions (58 FR 54205;

October 20, 1993). Commenters argued

that contractors have been responsible

for a number of accidents that have

affected the public and the

environment. Commenters presented

the same argument to support inclusion

of the hot work permit requirements. A

substantial number of commenters also

argued that employee participation is a

key factor in successful implementation

of PSM. A few commenters supported

EPA’s initial position that these

requirements were more properly OSHA

concerns.

In response to the former commenters’

arguments and to ensure consistency

between the elements of the two rules,

EPA has decided to add these sections

to its Program 3 prevention program.

EPA believes that each of these elements

is important to the implementation of an

effective prevention program. Worker

participation in PHAs and other

elements is critical to the success of

process safety because workers are

intimately familiar with the process and

equipment operation, possible failure

modes and consequences of deviations.

It also serves as a mechanism for greater

communication and understanding of

specific process hazards (as opposed to

the general chemical hazards) and the

importance of developing and following

proper procedures. Similarly, contract

employees have been involved in a

number of major accidents in recent

years; for example, the explosion in

Pasadena, Texas, in 1989, which killed

23 workers, has been attributed to

improper maintenance practices by

contractor employees. Oversight of

contractors, therefore, can be critical for

accident prevention. Finally, hot work

permits ensure that use of flame or

spark-producing equipment is carefully

controlled. Not only are many of the

listed substances highly flammable, but

fires in the vicinity of vessels or pipes

containing the toxic substances can lead

to releases of these substances.

I. Accident History

In the NPRM, EPA required sources to

document a five-year history of releases

that caused or had the potential to cause

offsite consequences for each regulated

substance handled at the source. EPA

specified that the accident history

should include the nature of any offsite

consequences, such as deaths, injuries,

hospitalizations, medical treatments,

evacuations, sheltering-in-place, and

major offsite environmental impacts

such as soil, groundwater, or drinking

water contamination, fish kills, and

vegetation damage.

A few commenters argued that

releases with only the potential for

offsite consequences should not be

included, while other commenters were

evenly divided on whether near-miss

events should be included in the

accident history. A number of

commenters indicated that releases with

on-site consequences should be added

to the accident history. Several

commenters requested that EPA clarify

that the accident history applies only to

covered processes.

In recognition of these comments, in

the final rule, only those accidents from

covered processes that resulted in

deaths, injuries, or significant property

damage on-site, or known offsite deaths,

injuries, evacuations, sheltering in

place, property damage, or

environmental damage need to be

included in the five-year accident

history. Near-miss accidents or

accidents with only the potential for

offsite consequences (that did not meet

any of the previous criteria) would not

need to be included. Because the

accident history is, by statute, an aspect

of the hazard assessment, and the

hazard assessment provisions apply

only to covered processes, EPA believes

that requiring the accident history to

address accidental releases from

processes not covered by this rule

would be inconsistent with the structure

of part 68. EPA notes that such releases

may be subject to reporting under other

statutes; the Agency may investigate

such releases to determine the need for

a response action under CERCLA and to

determine whether CAA section

112(r)(1) has been violated.

J. Emergency Response Program

In the proposed rule, EPA required

sources to develop an emergency

response plan that defines the steps the

source and each employee should take

during an accidental release of a

regulated substance. EPA noted that

most sources are already required to

have at least part of the emergency

response plan in place as a result of

other EPA (Spill Prevention, Control,

and Countermeasures and Resource

Conservation and Recovery Act) and

OSHA (emergency action plans and

HAZWOPER) regulations and requested

comment on how the proposed

requirements could best be integrated

with these existing programs to

minimize duplication. Many of the

commenters were particularly

concerned with the potential for

increased duplication of emergency

planning requirements at the state and

Federal levels that would require

expenditure of additional resources

without improving source emergency

response capabilities. Most of these

commenters suggested that EPA allow

compliance with other Federal

regulatory programs to meet the

mandate of the Clean Air Act for an

emergency response program, while

other commenters recommended that

EPA work with other agencies to

develop a format for a single,

comprehensive response plan for the

source. Some commenters addressed

related concerns with respect to state

program or voluntary initiatives.

EPA has decided to adopt the

emergency response requirements found

in the statute, without additional

specific planning requirements. This

action is consistent with the Agency’s

effort to develop a single Federal

approach for emergency response

planning. The Review of Federal

Authorities for Hazardous Materials

Accident Safety, (required under section
31698 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

112(r)(10) of the Clean Air Act) reported

little harmony in the required formats or

elements of response plans prepared to

meet various Federal regulations.

Accordingly, EPA has committed not to

specify new plan elements or a specific

plan format in today’s rule. EPA

believes that plans developed to comply

with other EPA contingency planning

requirements and the OSHA Hazardous

Waste and Emergency Operations

(HAZWOPER) rule (29 CFR 1910.120)

will meet the requirements for the

emergency response program provided

that they address the elements in

section 68.95(a). EPA believes that

coordination of the emergency response

plan with the community emergency

response plan will help ensure that

offsite response issues are addressed. In

addition, EPA and other National

Response Team agencies have prepared

Integrated Contingency Plan Guidance

(‘‘one plan’’) (NRT, May 1996). An

emergency response plan that includes

the elements specified in this guidance

can be used to meet the requirements in

today’s rule. The final rule also provides

relief for sources that are too small to

respond to releases with their own

employees; these sources will not be

required to develop emergency response

plans provided that appropriate

responses to their hazards have been

discussed in the community emergency

response plan developed under EPCRA

(42 U.S.C. 11003) for toxics or

coordinated with the local fire

department for flammables.

K. Registration

In the NPRM, EPA proposed that

sources register with the EPA

Administrator by three years after the

publication date of the final rule, or

within three years of the date on which

a source becomes subject to the risk

management program requirements as

mandated by the CAA. While a number

of commenters agreed with this

proposal, a greater number requested

that EPA accelerate the registration to

between six months and two years of

promulgation of the rule so that

implementing agencies could better

determine resource allocation and

conduct more extensive outreach and

technical assistance to sources

developing risk management programs

and preparing RMPs.

EPA agrees that earlier registration

could aid outreach efforts and help

implementing agencies focus resources.

However, since the first RMP need not

be submitted until June 21, 1999, an

earlier, pre-registration would impose

an additional burden on sources. Some

sources may reduce inventories, make

process modifications or switch

chemicals prior to the first RMP due

date and, consequently, will not be

subject to the rule. If EPA required a

pre-registration, these sources would

have to deregister at that time. Further,

states and local agencies already have

information gathered under EPCRA

section 312 that could be used for early

identification and outreach to sources

covered by this rule. EPA is also

working with trade associations and

other representatives of affected

industries to ensure that sources are

aware of the rule. Instead, in today’s

rule, the registration is included as part

of the RMP to limit the number of filings

made by sources.

EPA also proposed that sources

submit written registration information.

A number of commenters advocated

either the modification of existing forms

(e.g., the EPCRA Tier II form) or an

electronic filing system for the

submission of this information. Since

the RMP and the registration are

consolidated into one submission, this

issue is addressed generally in Section

III.G.

Under the proposed rule sources

would need to submit an amended

notice to the Administrator and the

implementing agency within 60 days if

information in the registration is no

longer accurate. Many commenters

argued that six months or a year is

needed to ensure compliance with the

certification requirements. EPA agrees

with commenters and in the final rule

has lengthened the time for submission

of an amended registration to six

months which should be enough time to

modify the information and to

electronically resubmit the registration

and RMP.

L. Model Risk Management Programs

Commenters supported the

development of model risk management

programs and RMPs, stating that the

models were needed by smaller

businesses and public systems that lack

the expertise to implement process

safety management. Commenters

specifically supported development of

models for industries with wellunderstood processes and practices,

such as chlorination systems, propane

and ammonia retailers, and refrigeration

systems. A few commenters asked that

the models be made available for public

review. Others said the models should

be published as guidance, not

regulations.

EPA is working with industry groups

to develop model programs for ammonia

refrigeration, propane handling, and

water treatment. After having provided

the public with an opportunity to

review a draft of the ammonia model

program, EPA today is issuing a

guidance on a model program for this

industry (see Model Risk Management

Program for Ammonia Refrigeration).

EPA encourages other industry groups

to work with the Agency to develop

models for their sectors. EPA notes that

the models are particularly relevant to

sources with Program 2 processes.

Because EPA has adopted the OSHA

PSM standard, EPA has not provided an

EPA guidance on PSM compliance. EPA

will also publish general technical

guidance to help sources understand

and comply with the rule which will

include Program 2 prevention program

guidance. The RMP Offsite Consequence

Analysis Guidance contains reference

tables for the offsite consequence

analysis, which can be used instead of

site-specific modeling. EPA emphasizes

that the models are guidance, not

regulations; sources are not required to

use them.

M. Implementing Agency Audits

EPA originally proposed in § 68.60

seven criteria an implementing agency

could use to determine whether to audit

a source’s RMP. EPA also proposed that

the implementing agency have the

authority to determine whether an RMP

should be revised and to direct the

owner or operator to make revisions.

Many commenters suggested that the

Agency lacked statutory authority to

specify measures to correct risk

management program elements through

the RMP, and that RMP changes based

on implementing agency directives will

be costly.

EPA or other implementing agencies

have general inspection and

enforcement authority under CAA

sections 112(r)(7)(E), 113, and 114 to

compel source owners and operators to

correct deficiencies in the risk

management program. EPA intends to

use the audit process as a way to verify

the quality of the program summarized

in the RMP. When it is reasonable, EPA

will require modifications to the RMP

that may lead to quality improvements

in the underlying program.

EPA notes that many commenters

were uncertain of the distinction among

audits conducted under § 68.220,

reviews by the permitting authority

under § 68.215, and inspections. CAA

section 112(r)(7)(B)(iii) requires EPA to

develop, by regulation, a system for

auditing RMPs. These audits will review

the information submitted by sources to

determine whether the source is in

compliance with the rule elements. For

example, the implementing agency will

consider whether the dates for reviews

and revisions of various elements are

consistent with the steps sources are
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31699

required to take. If a source reported a

major change on a date later than the

last date on which safety information

and operating procedures were

reviewed, the implementing agency

could seek further information about

why such reviews had not been

conducted and require updates if the

agency determined that the source

should have reviewed the documents.

Audits may be detailed paper reviews or

may be done at a source to confirm that

on-site documentation is consistent

with reported information.

In contrast, the air permitting

authority or its designated agency may

be reviewing the RMP for completeness,

rather that the quality of the RMP

contents. Inspections are generally more

extensive in scope than audits although

they may include a review of the

accuracy of the RMP information.

Inspections will consider whether the

source is in compliance with part 68 as

a whole, not just with the RMP

requirements, and may review both the

documentation kept at the source and

operating practices.

Regarding comments that making

changes to the RMP would be too costly,

EPA has endeavored to ameliorate the

cost burden of this rule by using a

tiering approach to make the risk

management program elements on

which the RMP rests appropriate for

sources of various sizes and complexity.

In addition, EPA is considering

development of a standard RMP

reporting format and data elements,

which should significantly reduce the

time and effort necessary to revise the

RMP. Any source owner or operator can

further limit the costs associated with

revising its RMP by submitting a timely,

complete, and valid plan in the first

instance.

N. Public Participation

In the SNPRM, EPA requested

comments on how public participation

in the risk management program process

might be encouraged. EPA’s preferred

approach was to encourage the public

and sources to use existing groups,

primarily the LEPC, as a conduit for

communications between the source

and the public throughout the RMP

development process. A substantial

number of commenters supported this

approach, stating that the LEPC was

well placed to interpret the RMP

information for the public. Commenters

said that LEPCs and their member

organizations have considerable

experience and have established rapport

in dealing with the community. Others

stated that this role is a logical

extension of current LEPC

responsibilities under EPCRA, although

funding for LEPCs was a concern.

A number of commenters opposed

this approach because some LEPCs are

not functional and that LEPCs are not a

substitute for public participation. A

few LEPCs also objected to assuming

any additional role. Commenters

suggested that EPA should require

public participation in the development

of the RMP and require all major

sources to have a public participation

strategy. Industry commenters generally

opposed any mandated public

participation requirements because

direct involvement in risk management

program development would delay the

process and would represent an

unwarranted and inappropriate

interference in management and site

control responsibilities. A few

commenters supported the SNPRM

suggestion that public participation be

limited to sources with Program 3

processes because these sources

represent the greatest risk. Other

commenters opposed this idea,

preferring the decision to be left to local

authorities.

EPA has not adopted any specific

public participation requirements. EPA

plans to make the RMP immediately

available to any member of the public.

LEPCs and others will be able to

compare their sources with similar

sources in other areas to determine

whether quantities on sites, process

controls, mitigation systems, and

monitoring systems are significantly

different. This information will give the

public an opportunity to gain a better

understanding of local industries and

carry on a more informed dialogue with

sources on their prevention practices.

EPA continues to encourage sources to

work with the LEPCs and other

community groups to provide

information to the public and ensure an

on-going dialogue during and after RMP

development and submission. The

public is a valuable resource and a key

stakeholder in chemical accident

prevention, preparedness, and response

at the local level.

A number of commenters said that

EPA should prohibit the public from

triggering an audit through petitions

because this approach would open the

process to litigation; a petition process

would be expensive, time-consuming,

and increase the time needed to

complete the RMP. Some commenters

said it would impose an excessive

burden on the implementing agency.

Two commenters favored public

petitions to trigger audits. One said that

the audits should be conducted by

qualified third parties, subject to

community selection and supervision.

EPA has not included public petitions

as a mechanism for periodic audits of

sources under § 68.220. States, however,

are able to adopt more stringent

requirements.

O. Inherently Safer Technologies

In response to the NPRM, a number of

commenters stated that EPA should

require sources to conduct ‘‘technology

options analyses’’ to identify inherently

safer technologies. In the SNPRM, EPA

solicited comments on this issue, but

did not propose a requirement for such

analyses.

A number of commenters stated that

EPA should require analyses of

inherently safer technologies, at least for

sources with Program 3 processes or

new processes. Some commenters

argued that inherent safety is primary

prevention (directed at the source of the

hazard), while EPA’s proposed

requirements are secondary prevention

(control of the hazard). One commenter

asked that sources be required to

provide full economic and technical

analyses of options. Commenters argued

that without a technology options

analysis requirement, industry will not

conduct these analyses because, unlike

its pollution prevention efforts, EPA has

provided no incentive for safer plants.

Other commenters strongly opposed

any requirement for these analyses

because PHA teams regularly suggest

viable, effective (and inherently safer)

alternatives for risk reduction, which

may include features such as inventory

reduction, material substitution, and

process control changes. These changes

are made as opportunities arise, without

regulation or adopting of completely

new and unproven process

technologies. Commenters said that

similar analyses are frequently

conducted during the design phase of a

process or source where there are

sufficient economic incentives to design

a process with as few costly additional

safety features as possible without new

EPA requirements. Commenters also

said that a requirement would prove

costly, without providing commensurate

benefits.

EPA has decided not to mandate

inherently safer technology analyses.

EPA does not believe that a requirement

that sources conduct searches or

analyses of alternative processing

technologies for new or existing

processes will produce additional

benefits beyond those accruing to the

rule already. As many commenters,

including those that support such

analyses, pointed out, an assessment of

inherently safer design alternatives has

the most benefit in the development of

new processes. Industry generally
31700 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

examines new process alternatives to

avoid the addition of more costly

administrative or engineering controls

to mitigate a design that may be more

hazardous in nature. Although some

existing processes may be superficially

judged to be inherently less safe than

other processes, EPA believes these

processes can be safely operated

through management and control of the

hazards without spending resources

searching for unavailable or

unaffordable new process technologies.

Good PHA techniques often reveal

opportunities for continuous

improvement of existing processes and

operations. EPA encourages sources to

continue to examine and adopt viable

alternative processing technologies,

system safeguards, or process

modifications to make new and existing

processes and operations inherently

safer. EPA included questions related to

process modifications in the RMP so

that sources can demonstrate, and users

of the RMP information can observe,

progress toward safer processes and

operations.

P. Coverage by Other Regulations

A large number of commenters

expressed concerns about duplication

between the risk management program

rule and other Federal and state

regulations. Issues related to overlap

between this rule and OSHA PSM are

discussed in Section III.D of this

preamble; issues related to overlap

between this rule and other emergency

response planning regulations are

discussed in Section III.J of this

preamble.

1. General Issues. A substantial

number of commenters stated that EPA

had failed to consider other regulations

to which sources are subject that cover

some of the same requirements as this

rule. They noted that many sources are

covered by DOT rules, other EPA rules,

OSHA rules, and, in some cases, other

agency or state rules. Some commenters

argued that these other regulations

essentially prevent accidents and,

therefore, this rule is not needed.

Commenters stated that EPA should

define jurisdictional and enforcement

boundaries so that sources subject to

multiple regulations are not subjected to

multiple enforcement actions for the

same violation. Other commenters said

that EPA should clearly identify which

similar requirements imposed by other

programs satisfy this rule and what

additional steps are needed. Some

commenters said that any source

covered by another, similar rule should

be excluded from this rule. Others

suggested that EPA explicitly crossreference other applicable rules. A few

commenters stated that EPCRA

reporting requirements provide ample

information to local entities and no

further reporting is needed.

EPA disagrees with some of these

comments. Except for the OSHA PSM

rule, no other rule cited by the

commenters addresses accidental

releases of regulated substances to the

extent that today’s rule does. Some

Federal and state rules for certain

industries provide design standards;

compliance with these rules will satisfy

parts of today’s rule. For example,

sources in compliance with 29 CFR

1910.111 for handling of anhydrous

ammonia may not need to take

additional steps to ensure the safe

design of the process. These other

standards generally do not cover

training, maintenance, hazards analysis,

and accident investigation, which are all

key elements in process safety

management. In addition, none of the

Federal rules require offsite

consequence analyses or reporting to the

public on the results of these analyses

and on prevention steps. Information

submitted under EPCRA, which consists

primarily of annual inventories, is not

equivalent to the RMP information.

Nevertheless, EPA agrees with

commenters that duplication should be

minimized, which is why the

emergency response and Program 2

prevention program steps recognize that

meeting other requirements will satisfy

elements of this rule. The model risk

management programs that EPA is

developing with industry will explicitly

cite other regulations, as well as codes

and standards, that satisfy specific

elements of this rule.

2. DOT Transportation Regulations.

Commenters concerned with overlap

with DOT regulations focused on two

issues: pipeline regulations, and

loading/unloading and storage

regulations. Commenters asked EPA to

exclude pipelines and transportation

containers connected for loading or

unloading since these are adequately

covered by DOT regulations. Some

commenters disagreed and wanted

loading and unloading of transportation

containers to be included because many

accidents occur during these

procedures.

In the final List Rule, EPA defined

stationary source to include

‘‘transportation containers that are no

longer under active shipping orders and

transportation containers that are

connected to equipment at the

stationary source for the purposes of

temporary storage, loading, or

unloading.’’ One commenter stated that

the 1993 oleum release in Richmond,

California, demonstrated that DOT

regulations do not adequately address

risk management of loading and

unloading. The other commenters,

however, said that loading and

unloading were covered by DOT

regulations and should not be subject to

this rule. They noted that DOT has

adopted regulations requiring training

for anyone who loads or unloads

hazardous materials. They further said

that at distribution centers, regulated

substances are not used or processed,

and, if in packages, the containers are

not opened.

Several commenters were concerned

that EPA regulation in this area could

create problems with DOT’s preemption

of state rules. Under U.S. law, states

may not adopt regulations in certain

specified areas that are not substantively

the same as DOT rules or in other areas

that pose an obstacle to DOT goals

under Federal Hazardous Materials

Transportation Law. If state laws are

authorized by Federal law, however,

states could develop different

requirements than DOT imposes. In this

case, the commenter said, if EPA were

to regulate loading and unloading under

the CAA, the states would have the

authority under the CAA to impose

more stringent requirements on this

activity.

EPA disagrees with the commenters

concerning the scope of the Hazardous

Materials Transportation Act

preemption authority in this area. EPA’s

definition of stationary source clearly

covers transportation containers only

when they are no longer in

transportation in commerce and was

addressed in the List Rule. EPA believes

commenters have overstated the extent

of any preemption problem. EPA’s

interpretation today is consistent with

DOT’s, as explained in ‘‘California and

Los Angeles County Requirements

Applicable to the On-Site Handling and

Transportation of Hazardous

Materials—Preemption Determination’’

(60 FR 8774, 8776–78, February 15,

1995). EPA notes that in many cases

warehouses and wholesalers take

delivery of materials and resell them;

EPA considers this storage to be covered

by today’s rule. EPA believes that DOT

standards for container integrity satisfy

process safety information

requirements. The same applies to DOT

standards for training requirements for

loading and unloading; that training

satisfies the training requirements of

this rule for loading and unloading.

Requirements for the PHA only apply to

connections to transportation containers

and for storage of containers.

3. Other EPA Regulations. Many

commenters stated that other EPA

regulations cover the same activities and
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31701

should be deferred to or referenced to

prevent duplicative requirements and

enforcement. A number of commenters

said that regulations under the Clean

Water Act, specifically the Spill

Prevention, Control, and

Countermeasure (SPCC) and Oil

Pollution Act of 1990 (OPA–90) rules,

duplicate many of the provisions of this

rule. Other commenters argued the

Underground Storage Tank (UST) rules

require sources to comply with

requirements equivalent to many of the

notification, prevention, and emergency

response provisions. A few commenters

stated that EPCRA already covers the

right-to-know provisions; others stated

that the risk management program

regulations should support existing

EPCRA rules. Three commenters said

that EPA should exempt any source

covered by the Resource Conservation

and Recovery Act (RCRA) because the

rules under that act already impose

comprehensive risk management

requirements.

As discussed in Section III.J,

emergency response plans developed

under SPCC, OPA–90, or RCRA can be

used to meet the emergency response

requirements of this rule. EPA notes,

however, that SPCC, OPA–90, and UST

rules do not address storage, handling,

and release prevention for regulated

substances. SPCC and OPA–90 rules

apply to oil; UST rules apply to oil and

gasoline. The processes addressed by

these rules, therefore, do not overlap

with the processes covered by today’s

rule.

RCRA requirements apply only to

certain activities undertaken at sources

that may be subject to the requirements

of today’s final rule. As noted above,

EPA anticipates that emergency

response plans developed under RCRA

can be used to meet the emergency

response requirements of this rule. In

addition, certain training and other

release prevention activities required

under RCRA may satisfy certain of the

prevention program requirements for

Program 2 processes.

4. Other Federal Regulations. A

number of commenters stated that EPA

should not cover outer continental shelf

(OCS) sources because they are

adequately regulated under the Marine

Mineral Service, Pipeline Safety Act,

and OPA–90. The mining industry said

that they should not be covered because

their handling of explosives is regulated

in great detail by the Mine Safety and

Health Administration and the Bureau

of Alcohol, Tobacco, and Firearms. In

its proposed rule (61 FR 16598, April

15, 1996), EPA has proposed to delist

explosives and proposed a stay of the

affected list provisions; elsewhere in

today’s Federal Register, EPA has

stayed implementation of the affected

provisions until these changes are

finalized. OCS sources are not subject to

part 68 because the connection between

this part and protection of ambient air

quality is too remote; therefore, CAA

section 328 proscribes EPA’s

jurisdiction.

5. State and Local Regulations.

Commenters sought clarification of how

risk management programs

implemented under state laws in

Delaware, New Jersey, California, and

Nevada would be treated. Some

commenters said sources complying

with these state rules should be

grandfathered into EPA’s rule for at least

five years. California commenters asked

that risk management prevention

programs (RMPPs) developed and

submitted under California’s rule be

considered in lieu of the required RMP.

Some commenters asked that

documentation created to meet the state

requirements be considered adequate to

meet EPA’s program so that additional

documentation need not be created just

to meet slightly different rules. A few

commenters suggested that EPA should

explicitly preempt any state risk

management program regulations that

are not submitted to and approved by

EPA. Other states said that EPA should

defer to state rules on hydrogen sulfide

and propane.

None of the four state risk

management program rules is identical

to EPA’s or each other. The Delaware,

New Jersey, and Nevada programs

closely parallel the OSHA PSM rule; the

California program is less specific. EPA

expects that sources in compliance with

these state programs will have

completed most of the steps required

under EPA’s rule. EPA notes that these

sources are generally also covered by

OSHA PSM and, therefore, should be in

compliance with a significant portion of

EPA’s rule.

In relation to the request for

grandfathering, EPA does not have the

authority to grandfather compliance

with programs that the Agency has not

reviewed and approved. EPA expects

that these four states will seek

delegation of the 112(r) program under

CAA section 112(l). At that time, EPA

will review the state programs and

approve them if they are as stringent as

EPA’s rule and meet other section 112(l)

requirements. If states are granted

delegation, they will have the authority

to grandfather previous compliance.

Because the CAA specifically grants

states the right to impose more stringent

regulations, EPA cannot preempt state

programs as one commenter requested.

EPA believes that substitution of the

RMPP for the RMP for California

sources is not feasible. The California

RMPPs are voluminous documents,

submitted per process, not per source.

These documents could not be

submitted electronically. Because EPA

is concentrating on submission of data

elements, EPA believes that its RMP

requirements can be met quickly by any

source that has completed an RMPP.

Completion of the RMP will not impose

a large burden on sources. If the RMPP

has summary sections, these may be

directly transferable for use as the

executive summary.

In regard to other state laws, states

may include them as part of their CAA

section 112(l) submission for EPA’s

review and approval. These laws,

however, must be as stringent as EPA’s;

that is, they must cover all elements of

the rule with requirements that at least

match EPA’s. EPA notes that state

propane laws are generally based on

NFPA–58, which EPA is using to help

develop its model risk management

program for propane distributors and

users. Therefore, sources in compliance

with NFPA–58 requirements may meet

many of the requirements of Program 2,

as defined in the model.

Q. Industry-Specific Issues

A number of industries submitted

comments on issues that were particular

to them, in many cases seeking

exemption from the rule.

1. Oil and Gas Facilities. Industry

commenters argued that components of

the oil and gas industries should be

excluded from EPA’s risk management

program; in particular, that EPA should

exempt the following operations and

facilities from RMP requirements:

• Atmospheric storage and transfer of

flammable liquids;

• Retail facilities;

• Marketing terminals and bulk

plants;

• Remote, low-risk petroleum

operations;

• Oil and gas exploration, production

and processing facilities;

• Crude oil separation, handling, and

storage operations;

• Subsurface hydrocarbon reservoirs;

• All transportation and facilities

incident to transportation; and

• Outer continental shelf facilities.

Commenters noted that these industries

and facilities pose a low risk to the

public for a number of reasons.

Significant accidental releases are

highly unlikely because these facilities

handle materials which, given site

conditions, have limited potential for

release to the air or offsite impacts.

Existing regulations reduce the potential
31702 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

for significant accidental releases.

Additionally, commenters argued that

the RMP provisions extend beyond

EPA’s statutory authority and run

counter to the Domestic Natural Gas and

Oil Initiative established by President

Clinton.

Commenters stated that most of the

exploration and production facilities are

remotely located and argued that even

the tiering approach that EPA proposed

in the SNPRM did not provide adequate

relief for these sources, which pose

minimal risks. They noted that OSHA

specifically excludes remotely located

sources, retail facilities, DOT-regulated

sources, and atmospheric storage tanks.

A number of commenters said that EPA

had never included most of these

sources in its economic analysis,

implying that EPA did not intend to

cover them in these regulations; they

requested an explicit statement to that

effect. One commenter opposed an

exemption for oil and gas sources and

pipeline and other transportation

companies, arguing that these sources

have some of the most common or worst

accidents.

EPA does not agree that marketing

terminals or bulk plants should be

excluded if there are regulated

substances present above their threshold

quantities. Although EPA did not

specifically exempt gasoline and

naturally occurring hydrocarbons (e.g.,

crude oil), it did not intend to cover

regulated flammables in these mixtures.

In its proposed rule (61 FR 16598, April

15, 1996), EPA has proposed to revise

the criteria for flammable mixtures and

to exclude naturally occurring

hydrocarbons prior to processing at a

gas processing plant or refinery.

Flammable mixtures would be covered

only if they met all of the NFPA–4

criteria. Gasoline and crude oil are

listed with NFPA 3 flammability ratings

in NFPA 325 M, Fire Hazard Properties

of Flammable Liquids, Gases, and

Volatile Solids, 1991. Elsewhere in

today’s Federal Register, EPA has

stayed implementation of the risk

management program rule for

substances and processes that would be

affected by the proposed changes. As

EPA explained in the preamble to the

final list rule, the Agency has not

adopted OSHA’s exemption for

atmospheric storage of flammables

because, unlike OSHA, EPA has listed

only flammable gases and highly

volatile flammable liquids. EPA

considers these substances to be

intrinsically hazardous, regardless of

storage conditions and, therefore, does

not believe it is appropriate to provide

an exemption for such tanks.

2. Retail Facilities. The rule is

expected to cover a substantial number

of retail facilities, specifically those

handling propane and ammonia as a

fertilizer. Approximately 100

commenters requested that EPA exempt

propane retailers from coverage under

the risk management program, primarily

due to the effectiveness of the existing

regulatory structure for the industry (in

particular, NFPA Standard 58). At the

same time, more than 50 commenters

requested that EPA exempt agricultural

chemical retailers (with inventories of

ammonia fertilizer) from coverage under

the risk management program because

of the existing state and Federal

regulation of these operations.

a. Propane Retailers. Commenters

argued that the primary thrust of the

proposed regulations is to preclude

unwarranted risk to the surrounding

community from an accidental failure of

a storage tank. They stated that the basic

purpose of NFPA 58, the Storage and

Handling of Liquefied Petroleum Gases,

is to prevent such releases through

design and engineering. This standard

requires fire safety analyses, distance

separation between the storage tank and

surrounding exposures, and approval of

plans for new or existing facilities by

local authorities. They noted that NFPA

58 has been adopted as state law in 48

of the 50 states and that the two

remaining states (California and Texas)

have similar rules. They said that

propane storage containers are

manufactured strictly to the

specifications of the American Society

of Mechanical Engineers. According to

commenters, emergency response

planning is already covered by NFPA–

58, OSHA, and DOT. Because of

compliance with this standard and state

law, commenters argued that the rule

would not provide any improvement in

safety. A number of commenters argued

that propane was a heating fuel, not a

chemical, and did not pose the same

level of risk as larger quantities of

propane held and used as a chemical

feedstock. One commenter noted that

OSHA had exempted retailers and

propane when used as a fuel.

In contrast, one state, which also

regulates propane under its state risk

management program law, argued that

propane is not sufficiently regulated. It

stated:

Fire authorities inspect each new

facility before propane is introduced.

They concentrate on adequate fire water

supply, electrical code compliance, and

distance separation requirements. Some

fire authorities are not technically

capable of determining if the facility

piping system complies with NFPA 58.

There are no follow-up inspections to

assure continuing compliance and no

requirements under NFPA 58 for

training distribution plant operators or

mechanics, written maintenance

programs, or procedures to control

change. During our inspections, we have

identified some facilities that were not

in conformance with NFPA 58.

EPA does not agree with commenters

who are seeking exemption of propane

retailers and users. In a supplemental

notice, EPA sought comment on

whether flammable substances, when

used as a fuel, posed a lesser intrinsic

hazard than the same substances

handled otherwise; no data were

submitted to EPA to justify this

position. Further, EPA has considerable

accident data for propane that illustrates

its potential to affect the public located

nearby. As a result, EPA continues to

believe that the hazard posed by

propane is inherent and does not vary

with its use. Because of a lack of data

justifying a different level of hazard for

flammables used as fuel, the Agency

will not adopt a fuel use exemption

similar to that provided by OSHA.

Furthermore, EPA notes that many

propane retailers are relatively close to

other commercial buildings and the

community. Should a fire or explosion

occur, the community could be

substantially impacted. EPA believes

the community and sources need to be

aware of the potential risk and

understand the steps the source is

taking to limit the potential for a release.

Because EPA recognizes that the full

PSM standard is not appropriate for

propane retailers, EPA has assigned

propane retailers and users to Program

2. Compliance with most aspects of

Program 2 should be simple. For

example, use of tanks that meet relevant

ASME standards and retention of the

material safety data sheets required by

OSHA will satisfy the safety information

requirements of § 68.48. Furthermore,

EPA is developing a model risk

management program to help sources

comply. This model is being based on

NFPA–58 standards, where they apply,

so that sources already in compliance

with NFPA–58 will be in substantial

compliance with Program 2. The model

will help sources comply with other

elements in a cost-effective manner.

b. Ammonia Retailers. Ammonia is

sold as a fertilizer from agricultural

retailers, primarily in the Middle West,

Great Plains, and West. Commenters

stated that the retail fertilizer industry is

already governed by OSHA’s Health and

Safety Standards, which are specifically

applicable to the storage and handling

of anhydrous ammonia. They noted that

this standard (29 CFR 1910.111) is based

on ANSI K61.1 and sets forth extensive
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31703

requirements applicable to the design,

construction, location, installation, and

operation of anhydrous ammonia

facilities. Measures designed to

adequately provide for the prevention of

and response to accidental releases are

an integral part of this standard. Some

commenters said that if EPA did not

exempt retail sources, ammonia retailers

should be deemed to be in compliance

with the prevention program. In

addition, commenters said they are

regulated under state laws and are

subject to EPCRA reporting

requirements. Many commenters argued

that retail fertilizer sources have an

excellent safety record. They stated that

retail fertilizer facilities are limited in

size, do not involve complex processing

and manufacturing operations, and are

located in rural areas; consequently,

they present a low risk to the

surrounding communities. Commenters

objected to the regulations because they

would impose a substantial burden on

what are small operations. Some

commenters argued that, because

Congress had granted EPA the authority

to exempt ammonia when held by a

farmer for use as a fertilizer, EPA could

grant retail ammonia sources the same

exemption.

Although EPA recognizes that other

regulatory programs address safety for

agricultural retailers and that such

operations do not involve complex

processing or manufacturing, EPA

disagrees with the conclusions of these

commenters. According to the industry,

the typical ammonia retailer has 200

tons of ammonia on site at times. Even

in rural areas, release of even a fraction

of this quantity could affect the

community. Sources constructed and

operated consistent with the relevant

ANSI standard will meet the EPA rule

for subjects addressed by both. EPA

recognizes the OSHA standard for

anhydrous ammonia handling and

hopes to work with the ammonia

industry to develop a model risk

management program for ammonia

retailers. This model would be based on

the OSHA standard, where applicable.

The standard, however, does not

include some elements mandated by the

CAA as part of the prevention program,

specifically training and maintenance

programs. In addition, EPA believes that

there is a further need to convey

information on hazards and risk

management practices of these

operations to the public and local

entities. The model will provide

guidance to help sources comply with

these elements in a cost-effective

manner. Finally, EPA does not agree

that the Congressionally allowed

exemption of farmers can be extended to

non-farmers. See 136 Cong. Rec. S2284

(March 7, 1990) (colloquy between Sens.

Kerrey and Chafee).

3. Refrigeration Systems. A number of

commenters stated that ammonia used

in a refrigeration system should be

exempted from this rule because these

systems pose little risk to the public.

One commenter said that EPA should

exempt roof-mounted air handlers,

pipes, and components. Some

commenters said that the industry was

already overregulated and the

imposition of this rule would be a

burden.

The CAA requires EPA to impose this

rule on any source with more than a

threshold quantity of a regulated

substance. Therefore, EPA cannot

exempt ammonia refrigeration systems

that contain more than 10,000 pounds of

ammonia. In addition, ammonia

refrigeration plants have had a

substantial number of accidents where

the ammonia has migrated offsite,

indicating that these systems do pose a

risk to the public. At the same time, it

should be noted that all of these

refrigeration systems are already

covered by the OSHA PSM standard.

Consequently, the only additional steps

sources will have to take are to conduct

the hazard assessment, comply with the

emergency response requirements, and

file the RMP. EPA worked with the

International Institute of Ammonia

Refrigeration to develop a model risk

management program that will facilitate

compliance and reduce the burden on

sources (Model Risk Management

Program for Ammonia Refrigeration).

For most of these sources, which have

only one chemical, the RMP will be a

very brief document.

4. Other Operations. Comments were

submitted on a range of other industries.

The warehouse industry said that it

should be exempted where material is

received and shipped in packages that

are not opened; commenters noted that

they are covered by DOT packaging

regulations. EPA believes that

warehouses must be covered if they

have more than a threshold quantity of

a regulated substance. Under the OSHA

definition of process, which EPA has

adopted, packages of a substance stored

in the same room may be counted

toward the threshold quantity if the

packages could release their contents in

the same event. EPA notes that

warehouse fires have created major

incidents in the past 10 years, and the

Agency believes that warehouses should

take the steps necessary to prevent and

mitigate such incidents. EPA is

interested in working with the industry

to create a model risk management

program that would help sources

develop a hazard assessment process

that can account for potentially

changing contents of a warehouse.

Batch processors face related

problems with changing chemicals on

site. EPA is willing to work with

industry to develop a generic approach

to risk management programs. EPA

believes, however, that most batch

processors will already be covered by

OSHA PSM. The RMP Offsite

Consequence Analyses Guidance will

reduce the burden of developing

multiple release scenario analyses. To

minimize the need for continual

revision of their worst-case scenario to

accommodate periodic inventory

changes, sources such as warehouses

and batch processors may want to

analyze their expected chemical

inventory in developing a scenario that

represents the worst case for the

foreseeable future, even if the substance

is not currently in use at the source.

A number of commenters raised

questions about coverage of POTWs. A

specific concern was EPA’s statement in

the NPRM that substances in waste

streams would not be covered by the

rule. This statement is based on the

belief that the regulated toxic substances

will not constitute more than one

percent of any waste stream received by

a POTW. Consequently, they will not be

considered in calculations of threshold

quantities. No waste stream is likely to

meet EPA’s flammability criteria.

POTWs are likely, however, to be

covered because of regulated substances

they use to treat wastes.

R. Implementing Agency Delegation

EPA received a number of comments

to the NPRM regarding the role and

potential burden on LEPCs, SERCs, and

other local agencies that may result from

implementation of the risk management

program. In the SNPRM preamble, EPA

indicated that EPA and the states share

the responsibility for protecting public

health and the environment and

encouraged state and local agencies to

seek delegation for this program because

their participation is essential to

successful chemical accident

prevention, preparedness and response

and recognized by the legislative history

and the CAA section 112(r)

requirements by requiring that RMPs be

submitted to states and local planning

entities. States are already involved in

chemical emergency preparedness and

planning through the requirements of

EPCRA.

Commenters on the SNPRM requested

that the final rule clearly state that EPA

is the implementing agency unless a

state or local agency is granted a
31704 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

delegation of authority under section

112(l). Several commenters indicated

that EPA should allow states the

flexibility to designate the most

appropriate implementing agency, such

as OSHA or the state agency that

administers and enforces the OSHA

PSM standard, rather than mandating

the air permitting authority or a SERC

agency in the final rule. A number of

commenters on the SNPRM and NPRM

suggested that existing local emergency

planning agencies (e.g., LEPCs, fire

departments) would be best suited to

serve as implementing agencies, in part

because they are closest to the

communities at risk. However, many

commenters (including LEPCs that

commented) argued that LEPCs would

be unprepared to take on such a burden

and that even a minimal role in

implementing section 112(r), including

mere storage of RMPs, would

overwhelm their limited resources and

technical expertise. In addition,

commenters indicated that LEPCs, as

mostly volunteer agencies, would not

and could not have the authority

necessary to implement and enforce the

RMP rule.

The implementing agency is the state

or local agency that obtains delegation

of the section 112(r) program under

section 112(l). As stated in the

definition of Implementing Agency in

today’s rule, until a state or local agency

is granted delegation of the risk

management program under CAA

section 112(l), EPA will serve as the

implementing agency. States may select

any state or local agency to implement

this program, including an air

permitting authority or a state OSHA

program, provided the agency has the

expertise, legal authority and resources

to implement the program; the state

must also have the authority to enforce

the program. EPA realizes that, in most

cases, LEPCs will not have the authority

to be implementing agencies, but they

should be involved as much as possible

in the program.

Commenters on the SNPRM suggested

that EPA should avoid adding specific

implementation details to the final rule

so that states would have the flexibility

to develop or continue programs that

meet local needs. Other commenters,

however, suggested that EPA should

issue delegation guidance and to define

the elements of an adequate state

program to avoid inconsistent

interpretations and implementation of

the rule. Commenters representing

companies that operate in several states

were particularly concerned about

maintaining uniform implementation.

EPA has not added specific state or

local implementation requirements to

today’s rule because the Agency already

promulgated sufficient provisions for

delegation of accident prevention

programs under section 112(r) to states

and local authorities under 40 CFR part

63, subpart E, which implements CAA

§ 112(l). As EPA discussed in the

SNPRM, implementing agencies will be

responsible for such tasks as reviewing

RMP information, auditing and

inspecting a percentage of sources

annually, requiring revisions to the RMP

as necessary, and assisting the

permitting authority in ensuring

compliance. States have the flexibility

to implement their own programs,

however the CAA requires that state or

local program requirements must be as

stringent as EPA’s and must include

EPA regulated substances and

processes. This means that California,

Delaware, Nevada, and New Jersey will

need to revise their existing program

requirements, substance lists, and in

some cases, thresholds, to meet EPA’s

requirements and to obtain section

112(r) delegation. EPA intends to issue

additional guidance that will help state

and local agencies obtain program

delegation. EPA must review delegation

requests submitted under 40 CFR part

63, subpart E to ensure that state and

local programs requirements are as

stringent as EPA’s. With respect to

nationwide uniform implementation,

EPA notes that the CAA specifically

grants states the right to develop more

stringent requirements; consequently,

there may be state-to-state variations.

Many states, however, are prohibited

under their state laws from adopting

regulations that are more stringent than

Federal rules.

One commenter on the NPRM

indicated that EPA’s estimation of the

costs of implementing the section 112(r)

program is extremely low, representing

demands that are 65 to 75 percent lower

than those experienced by states

implementing similar programs. LEPCs

and state governments were concerned

about the imposition of section 112(r)

requirements on state and local

governments as an unfunded mandate.

Several state agencies indicated that the

considerable financial burden imposed

by section 112(r) implementation would

prohibit them from seeking section

112(l) delegation. Commenters

encouraged EPA to develop guidance on

potential funding mechanisms,

including descriptions of the fee

systems used by existing state programs

for accidental release prevention.

Several commenters indicated that the

political climate at the state and local

level would make it impossible to levy

new, or raise existing, fees.

Since states are not required to seek

delegation of this program, it does not

constitute an unfunded mandate (see

also section V.C). Before EPA grants

delegation, state or local agencies must

show that they have the resources to

implement and enforce the risk

management program rules. EPA

recognizes that there is no Federal

funding associated with implementation

of section 112(r) but believes that the

tiered program levels and centralized

electronic submission of RMPs in

today’s rule substantially reduces the

cost and resource demand for state and

local entities seeking delegation. State

and local agencies that fully implement

section 112(r) will be able to develop

and operate a program that best fits their

individual needs, resources, and

structures. As part of consideration of

the costs to implement section 112(r),

state and local agencies should also

weigh the benefits of integrating

accident prevention with pollution

prevention, environmental protection,

and worker and public health and safety

at the state level, and the benefits to

local industry associated with state,

rather than Federal, implementation of

this program. Many states and local

agencies have established a close

working relationship with the sources in

their jurisdiction. In addition, a number

of state and local publicly owned

sources are covered by this rule; state

implementation can serve to enhance

compliance that may otherwise require

increased coordination with EPA.

Although other states have successfully

‘‘self-funded’’ their accident prevention

programs with various state authorized

fees, EPA recognizes that it may be

difficult for state or local agencies to

generate the resources necessary to fund

full section 112(r) implementation.

Several commenters on the SNPRM

requested guidance and training for

sources, local entities, and

implementing agencies on

understanding hazard assessments, and

conducting program inspections,

reviews, and audits. EPA recognizes the

need for guidance and training for

implementing agencies and sources.

EPA plans to modify and to continue

offering its four-day Chemical Safety

Audit workshop to other federal agency

representatives, state and local

government officials, and industry

representatives as an introduction to

chemical process safety, current

industry chemical accident prevention

practices and understanding the

elements of the risk management

program. EPA is ready to assist state and

local agencies through its regional

offices to coordinate state and local
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31705

programs and to help in obtaining

program delegation and development of

resources to fund state or local

programs. Region 4 in Atlanta, Georgia,

for example, has developed an

integrated section 112(r) work group of

state and local air pollution control,

SERC, and LEPC representatives who

participate in workshops, seminars, and

pilot studies designed to foster local

program implementation and to build a

support network. EPA also continues to

work with NOAA to enhance modeling

and information management tools

contained in the Computer Aided

Management of Emergency Operations

(CAMEO) and Areal Locations of

Hazardous Atmospheres (ALOHA)

software for local emergency planners

and responders.

Two commenters on the NPRM

requested that EPA address the issue of

tort liability in the event that an

accidental release occurs after an RMP

has been submitted to the implementing

agency. One other commenter believed

that the implementing agency must be

held accountable for RMP content while

another believed that EPA must ensure

that adequate limits to implementing

agency liability exist.

The primary responsibility for

accident prevention rests with the

owners or operators of sources. Section

112(r) does not create a basis for

implementing agency tort liability under

federal law. CAA § 112(r)(1). When EPA

is the implementing agency, it is

immune from tort liability under state

law. States that are implementing

agencies generally will have protection

from liability under their state laws. If

a state has waived its sovereign

immunity, EPA cannot take steps to

alter that situation. EPA encourages

states concerned about this issue to

discuss the matter with their attorneys

general to determine whether state law

protects them from liability.

S. Accident Information Reporting

In the SNPRM, EPA discussed the

possibility of additional accident

reporting to support a variety of future

accident prevention activities. EPA

proposed that sources either submit an

OSHA PSM or Program 3 investigation

report for certain accidental releases or

a survey form that collects certain

accident data. Otherwise EPA could use

existing authorities to collect additional

accident data from existing information,

as needed.

Most commenters opposed EPA’s

proposal for additional accident

reporting requirements, especially the

collection of accident investigations

prepared under Program 3 or OSHA

PSM, because it increases costs, it

would have no benefit, it generates

significant liability issues, and it would

divert limited resources away from

activities with greater public health

benefit. Commenters supported the use

of existing reports since this approach

should not generate an additional

burden, such reports are available

through EPA and OSHA under other

regulations and they should be adequate

for the objectives outlined by EPA.

EPA agrees with commenters and has

decided not to adopt any additional

accident reporting requirements. EPA

will rely on the five-year accident

history for the immediate future and,

based on that information, determine

whether additional information and

requirements are needed. EPA has the

authority under CAA section 114 to

investigate releases and seek additional

information as needed.

T. Other Issues

1. OSHA VPP. In the SNPRM, EPA

asked whether the OSHA Voluntary

Protection Program (VPP) protects

public health and the environment and

suggested that one approach to third

party review (discussed below) would

be to assign sources that participate in

VPP to Program 2. Many commenters

supported VPP participation as a

criterion for assigning a source to

Program 2. Several of these commenters

noted, however, that because VPP

sources are probably already covered by

OSHA PSM, assigning them to Program

2 would provide no reduction in burden

or regulatory relief. One commenter

suggested that EPA could allow VPP

sources the flexibility to determine,

with the LEPC, what the offsite

consequence analysis would cover.

Seven commenters opposed VPP

participation as a Program 2 criterion

because VPP does not address offsite

consequences, no evidence was

presented that PSM is being carried out

adequately at VPP sources, and this

approach would discriminate against

other voluntary programs.

After consideration of the comments,

EPA has decided not to use VPP

participation as a Program 2 criterion,

but has adopted language in the final

rule to exempt sources with a Star or

Merit ranking under OSHA’s VPP from

selection for audits based on the criteria

in § 68.220 (b)(2) and (b)(7); such a

source may be audited if it has an

accidental release that requires an

accident investigation under these

regulations. This decision recognizes

that such sources have active accident

prevention programs and should not be

regarded in the same way as other

sources within the same industry or as

other sources in general. In addition, it

thus provides a similar degree of benefit

with respect to EPA auditing as it does

with respect to OSHA auditing. EPA

agrees that VPP sources would gain no

benefit by assignment to Program 2. EPA

does not believe it is appropriate to

adjust the hazard assessment

requirements for VPP sources; this

information is essential to local

emergency preparedness and response

and for public dialogue.

2. Qualified Third Party. In the

SNPRM, EPA sought comments on

whether sources should be allowed to

have qualified third parties assist them

in achieving and maintaining

compliance. Eight commenters

supported third party reviews as a way

to reduce implementing agency efforts.

One commenter stated that sources

should be required to hire a qualified

third party to assess their activities.

Most commenters, however, expressed

some reservations including greater cost

if sources were required to hire third

parties, when many sources already

have staff qualified to implement the

risk management program. Commenters

said that a third party review would be

particularly costly for retailers who will

have model programs and stated that

use of third parties would add another

layer of bureaucracy to the process. A

number of commenters said that EPA

should fund third parties. Commenters

also stated that use of third parties

might confuse the issue of who was

responsible for safety and for

enforcement; they said that EPA must

make it clear that the owner or operator

of the source remains responsible for

accidents and that the implementing

agency retains enforcement authority.

Finally, several commenters asked who

would determine the qualifications of a

qualified third party.

EPA is not requiring use of qualified

third parties in this rule. EPA, however,

endorses the concept of offering sources

the option of using third parties to assist

owner/operators in meeting their

obligations under the rule. Based on the

comments, EPA recognizes that any

third party proposal must:

• Not weaken the compliance

responsibilities of source owner/

operators;

• Offer cost savings and benefits to the

industry, community, and

implementing agencies that significantly

exceed the cost of implementing the

qualified third party approach;

• Lead to a net increase in process

safety, particularly for smaller, less

technically sophisticated sources; and

• Promote cost-effective agency

prioritization of implementing agency

oversight resources.
31706 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

Several key issues need further

discussion before the use of a qualified

third party may be offered as an option.

These include qualification criteria,

certification procedures, liability, and

other critical issues associated with the

use of a qualified third party. Therefore,

following promulgation of this rule,

EPA proposes to call a meeting to solicit

input from trade associations,

professional and technical societies,

states, and other interested parties to

address these issues and investigate the

need for developing a process and a

national exam to qualify third parties.

3. Documentation. Commenters

expressed a number of concerns about

the level of recordkeeping and the

availability of information. Some

commenters stated that records need to

be maintained for longer than five years;

commenters suggested 10 years, 20

years, and the life of the source. One

commenter suggested that records

should be kept for the life of the process

and then seven years thereafter to

ensure that records would be available

if a lawsuit was initiated. Industry

commenters said that only current

documents and data should be

maintained to prevent confusion from

having multiple versions of the same

document. One commenter stated that

policies and procedures should be kept

until they are superseded, then they

should be destroyed; retaining old,

superseded information is unsafe and

unacceptable and can result in

accidents.

One commenter said that sources

should be required to develop and

maintain a master index or catalogue of

documents relevant to the proposed rule

to support public access. Another

commenter stated that, in addition to

maintaining records supporting the

implementation of the risk management

program, the owner or operator should

submit the records to the implementing

agency. A third commenter said that the

rule should require that all records

supporting compliance with the rule be

organized and readily available through

the designated contact person at the

source to the implementing agency for

inspection.

Other commenters said the proposed

recordkeeping was excessive. One stated

that EPA is forcing industries towards

‘‘defensive universal recordkeeping,’’

retaining mountains of documents

because EPA has not specified what

records need to be kept. Another

commenter said that an examination of

the proposal indicated that no fewer

than about 22 separate written

documents are required to be

maintained on site or submitted to the

responsible regulatory agency and other

parties. One commenter noted that more

resources will be spent on filling out

paperwork than on actual spill

prevention.

In the final rule, EPA has adopted the

OSHA PSM language for Program 3

processes; therefore, documentation for

PSM elements is dictated by that rule.

For other elements of the risk

management program and for processes

in other tiers, EPA has set a period of

five years for the maintenance of

supporting documentation. EPA agrees

with commenters that only current

versions of documents and procedures

should be retained. On the issue of

records submitted to the implementing

agency, EPA believes that the provisions

outlined in the final rule (as described

in Subpart G to part 68) will limit the

volume of such documentation. The

implementing agency and EPA will

have access to all on-site documentation

when needed. Much of the on-site

documentation will be confidential and

protected under Section 114(c) of the

CAA. The burden on the implementing

agency will be substantially reduced

because it will not have to establish

protected trade secret files and

procedures.

Finally, EPA agrees with commenters

that level of recordkeeping should be

kept as low as possible consistent with

EPA’s statutory mandate. EPA has

reduced the documentation

requirements for Program 2 processes

(particularly with respect to the

prevention program) because it believes

that for these sources, the benefit of the

records does not offset the cost of

creating and maintaining files.

IV. Section-by-Section Analysis of the

Rule

This section discusses specific

changes to the rule that are not

otherwise described in this preamble.

The rule has been renumbered to

include new sections and subparts. The

hazard assessment requirements have

been divided into separate sections in

subpart B. The Program 2 prevention

program requirements are in subpart C;

Program 3 prevention program elements

are in Subpart D. Emergency response

requirements are in subpart E, RMP

requirements in subpart G. The

registration requirement, proposed

§ 68.12, has been moved to the RMP

subpart. Tables 3 and 4 present the

distribution of NPRM and SNPRM

sections and derivation of final rule

sections.

TABLE 3.—DISTRIBUTION TABLE

NPRM and SNPRM citations Final rule citations

68.3 Definitions ..................................................................................... 68.3 Definitions.

68.10 Applicability .................................................................................. 68.10 Applicability.

68.12 Registration .................................................................................. 68.160 Registration.

68.13 No Impact Sources (Tier 1) ......................................................... 68.10(b) Applicability.

68.12(b) General Requirements.

68.14 Streamlined Risk Management Program (Tier 2) ........................ Subpart C Program 2 Prevention Program (68.48–68.60).

68.15 Hazard Assessment ..................................................................... Subpart B Hazard Assessment (68.20–68.42).

68.20 Prevention Program—Purpose .................................................... Deleted.

68.22 Prevention Program—Management System ............................... 68.15 Management.

68.24 Prevention Program—Process Hazard Analysis ......................... 68.67 Process Hazard Analysis.

68.26 Prevention Program—Process Safety ......................................... 68.65 Process Safety Information.

68.28 Prevention Program—Standard Operating Procedures .............. 68.69 Operating Procedures.

68.30 Prevention Program—Training ..................................................... 68.71 Training.

68.32 Prevention Program—Maintenance (mechanical integrity) ......... 68.73 Mechanical Integrity.

68.34 Prevention Program—Pre-Startup Review .................................. 68.77 Pre-Startup Review.

68.36 Prevention Program—Management of Change ........................... 68.75 Management of Change.

68.38 Prevention Program—Safety Audits ............................................ 68.58 Compliance Audits.

68.79 Compliance Audits.

68.40 Prevention Program—Accident Investigation .............................. 68.60 Incident Investigation.

68.81 Incident Investigation.

68.45 Emergency Response Program ................................................... 68.95 Emergency Response Program.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31707

TABLE 3.—DISTRIBUTION TABLE—Continued

NPRM and SNPRM citations Final rule citations

68.50 Risk Management Plan ................................................................ Subpart G Risk Management Plan (68.150–68.190).

68.55 Recordkeeping Requirements ...................................................... 68.200 Recordkeeping.

68.58 Permit Content and Air Permitting Authority Requirements ........ 68.215 Permit Content and Air Permitting Authority or Designated

Agency Requirements.

68.60 Audits ........................................................................................... 68.220 Audits.

TABLE 4.—DERIVATION TABLE

Final rule citations NPRM and SNPRM citations

68.3 Definitions ..................................................................................... 68.3 Definitions.

68.10 Applicability .................................................................................. 68.10 Applicability, SNPRM 68.13.

68.12 General Requirements ................................................................. SNPRM 68.13, 68.14.

68.15 Management ................................................................................ 68.22 Prevention Program—Management.

68.20 Applicability (Hazard Assessment) .............................................. 68.10 Applicability.

68.22 Offsite Consequence Analysis Parameters (Hazard Assessment).68.15(e) Hazard Assessment.

68.25 Worst-Case Release Analysis (Hazard Assessment) ................. 68.15(c) Hazard Assessment.

68.28 Alternative Release Analysis (Hazard Assessment) ................... 68.15(d) Hazard Assessment.

68.30 Defining Offsite Impacts—Population (Hazard Assessment) ...... 68.15(e)(3) Hazard Assessment.

68.33 Defining Offsite Impacts—Environment (Hazard Assessment) ... 68.15(e)(4) Hazard Assessment.

68.36 Review and Update (Hazard Assessment) .................................. 68.15(g) Hazard Assessment.

68.39 Documentation (Hazard Assessment) ......................................... 68.15(h) Hazard Assessment.

68.42 Five-year Accident History (Hazard Assessment) ....................... 68.15(f) Hazard Assessment.

68.48 Safety Information (Program 2) ................................................... 68.14(b) Streamlined Risk Management Program (Tier 2); 68.26 Process Safety Information.

68.50 Hazard Review (Program 2) ........................................................ 68.14(b) Streamlined Risk Management Program (Tier 2); 68.24 PHA.

68.52 Operating Procedures (Program 2) ............................................. 68.14(b) Streamlined Risk Management Program (Tier 2); 68.28 SOPs.

68.54 Training (Program 2) .................................................................... 68.14(b) Streamlined Risk Management Program (Tier 2); 68.30 Training.

68.56 Maintenance (Program 2) ............................................................ 68.14(b) Streamlined Risk Management Program (Tier 2); 68.32 Maintenance.

68.58 Compliance Audits (Program 2) ................................................... 68.38 Prevention Program—Safety Audits.

68.60 Incident Investigation (Program 2) ............................................... 68.40 Prevention Program—Incident Investigation.

68.65 Process Safety Information (Program 3) ..................................... 68.26 Prevention Program—Process Safety.

68.67 Process Hazard Analysis (Program 3) ........................................ 68.24 Prevention Program—Process Hazard Analysis.

68.69 Operating Procedures (Program 3) ............................................. 68.28 Prevention Program—Standard Operating Procedures.

68.71 Training (Program 3) .................................................................... 68.30 Prevention Program—Training.

68.73 Mechanical Integrity (Program 3) ................................................. 68.32 Prevention Program—Maintenance (mechanical integrity).

68.75 Management of Change (Program 3) .......................................... 68.36 Prevention Program—Management of Change.

68.77 Pre-Startup Review (Program 3) ................................................. 68.34 Prevention Program—Pre-Startup Review.

68.79 Compliance Audits (Program 3) ................................................... 68.38 Prevention Program—Safety Audits.

68.81 Accident Investigation (Program 3) .............................................. 68.40 Prevention Program—Accident Investigation.

68.83 Employee Participation (Program 3) ............................................ 68.24(f) Process Hazard Analysis.

68.85 Hot Work Permit (Program 3) ...................................................... NPRM Preamble (58 FR 54205).

68.87 Contractors (Program 3) .............................................................. NPRM Preamble (58 FR 54205).

68.90 Applicability (Emergency Response) ........................................... 68.45(a) Emergency Response Program.

68.95 Emergency Response Program ................................................... 68.45(b)–(f) Emergency Response Program.

68.150 Submission (Risk Management Plan) ........................................ 68.50(a) Risk Management Plan.

68.155 Executive Summary (Risk Management Plan) .......................... 68.50(a) Risk Management Plan.

68.160 Registration (Risk Management Plan) ....................................... 68.12 Registration.

68.165 Offsite Consequence Analysis (Risk Management Plan) .......... 68.50(c) Risk Management Plan.

68.168 Five-Year Accident History (Risk Management Plan) ............... 68.15(f) Hazard Assessment.

68.170 Prevention Program/Program 2 (Risk Management Plan) ........ 68.14(b) Streamlined Risk Management Program (Tier 2); 68.50(g).

68.175 Prevention Program/Program 3 (Risk Management Plan) ........ 68.50(g) Risk Management Plan.

68.180 Emergency Response Program (Risk Management Plan) ........ 68.50(e) Risk Management Plan.

68.185 Certification (Risk Management Plan) ....................................... 68.50(g) Risk Management Plan.

68.13(a) No Impact Sources.

68.190 Updates (Risk Management Plan) ............................................. 68.50(h) Risk Management Plan.

68.200 Recordkeeping ........................................................................... 68.55 Recordkeeping Requirements.

68.210 Availability of Information to the Public ...................................... 42 U.S.C. 7412.

68.215 Permit Content and Air Permitting Authority or Designated

Agency Requirements.

68.58 Permit Content and Air Permitting Authority Requirements.

68.220 Audits ......................................................................................... 68.60 Audits.

Appendix A—Table of Toxic Endpoints .................................................... 68.15(h)(3)(iii) Hazard Assessment.

Section 68.3, Definitions, has been

revised to add or delete a number of

definitions. A definition of

administrative controls has been added

that is derived from the definition used
31708 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

by the Center for Chemical Process

Safety (CCPS).

The definition of analysis of offsite

consequences has been deleted.

A definition of catastrophic release

has been added that is adapted from

OSHA’s definition of catastrophic

release (29 CFR 1910.119); OSHA’s

language on danger to employees in the

workplace has been changed to

imminent and substantial endangerment

to public health and the environment.

A definition of classified information

has been added. The definition is

adopted from the Classified Information

Procedures Act.

The proposed definition of covered

process is unchanged.

The proposed definition of designated

agency has been revised to indicate that

the state, not the state air permitting

authority, shall select an agency to

conduct activities required by § 68.215.

As discussed above, a definition of

environmental receptor has been added

to list the receptors of concern.

The definition of full-time employee

has been deleted.

A definition of hot work has been

adopted verbatim from the OSHA PSM

standard.

The definition of implementing

agency is adopted as proposed in the

SNPRM.

A definition of injury has been added.

A definition of major change has been

added to clarify the types of changes

that necessitate actions to manage

change. The definition will help sources

understand when they are required to

take steps to review their activities for

new hazards.

A definition of mechanical integrity

has been added to clarify the

requirements of maintenance sections.

A definition of medical treatment has

been added to clarify what constitutes

an injury. The definition is adapted

from an OSHA definition used by

sources in logging occupational injuries

and illnesses.

The proposed definition of mitigation

has been changed by adding a definition

of active mitigation.

A definition of offsite has been

changed to clarify that areas within the

source would be considered offsite if the

public has routine and unrestricted

access during or outside of business

hours. Areas within a source’s

boundaries that may be considered

offsite are public roads that pass

through sections of the site and natural

areas owned by the source to which the

public has unrestricted access. For some

sites, parking lots within the boundary

may be offsite if the source cannot

restrict access.

A definition of population has been

added. Population is defined as the

public.

A definition of public has been added

to state that all persons except

employees and contractors at the

stationary source are members of the

public. A number of commenters stated

that employees at other facilities should

not be considered part of the public.

EPA disagrees because these employees

may not be trained in protective actions

or have protective equipment

appropriate for releases from covered

processes.

A definition of public receptor has

been added. Some commenters stated

that EPA should include public roads

within this definition. EPA decided that

inclusion of public roads was

unwarranted. EPA recognizes that

people on public roads may be exposed

during a release. In most cases,

however, vehicles on public roads will

be able to leave the area quickly and

further access can be blocked, especially

in isolated areas. If public roads were

included, almost no sources would be

eligible for Program 1 because there will

be public roads leading to the source. In

those cases where public roads are

heavily traveled, there will be other

public receptors near the source and,

therefore, the source’s processes will not

qualify for Program 1.

OSHA’s definition of replacement in

kind has been adopted.

The definition of significant

accidental release has been deleted.

A definition of typical meteorological

conditions has been added which means

the temperature, wind speed, cloud

cover, and atmospheric stability class

prevailing at the source. Data on the first

three of these are available from local

meteorological stations (e.g., airports).

Atmospheric stability class can be

derived from cloud cover data.

The definition of worst-case release

has been revised to clarify that the

release is the one that leads to the

greatest distance to the applicable

endpoint.

Section 68.10, Applicability, has been

revised to change the term ‘‘tier’’ to

‘‘Program.’’ The section now details the

eligibility criteria for all three programs.

Paragraph (a) has been revised to be

consistent with statutory language on

compliance dates. Sources must comply

with the requirements by June 21, 1999,

three years after EPA first lists a

substance, or the date on which a source

first becomes subject to this part,

whichever is latest. After June 21, 1999,

sources that begin using a regulated

substance that has been listed for at

least three years must be in compliance

with the requirements of part 68 on the

day they bring the substance on site

above a threshold quantity.

The Program 1 eligibility

requirements have been revised to

clarify that the criteria are applied to a

process, not the source as a whole, as

discussed above. EPA has deleted

requirements for explosives because the

Agency is proposing to delist

explosives. The types of accidents that

will disqualify a process from Program

1 are now specified in the rule as those

accidental releases of a regulated

substance that led to offsite exposure to

the substance, its reaction products,

overpressure generated by an explosion

involving the substance, or radiant heat

generated by a fire involving the

substance which resulted in offsite

death or injury (as defined by the rule),

or response or restoration activities at an

environmental receptor. These

accidental release criteria eliminate the

need for a definition of significant

accidental release, which has been

deleted. Offsite environmental response

or restoration would include such

activities as collection, treatment and

disposal of soil, shutoff of drinking

water, replacement of damaged

vegetation, or isolation of a natural areas

due to contamination associated with an

accidental release. The distance

calculation equation for flammables has

been dropped, and the worst-case

release endpoint for flammables is

specified which allows the source to use

the reference tables or their own

methodology to determine the distance

to the endpoint. The requirement that

the community have an EPCRA

emergency response plan has been

replaced by a requirement that the

source coordinate emergency response

procedures with local community

responders.

As discussed above, the eligibility

criteria for Program 2 and 3 have been

changed. Both apply to processes, not

sources.

Paragraph (e) states that if a process

no longer meets the eligibility criteria of

its Program level, the source must

comply with the requirements of the

new Program level and the update the

RMP according to § 68.190. This

paragraph clarifies the responsibility of

the source when a process becomes

ineligible for a Program level (e.g.,

public receptors move within the

distance to an endpoint for a Program 1

process or OSHA changes the

applicability of its PSM standard).

Proposed § 68.12, Registration, has

been dropped. Registration

requirements are now part of the RMP

requirements in subpart G, § 68.160.

New § 68.12, General Requirements,

has been added to provide a roadmap
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31709

for sources to use to identify the

requirements that apply to processes in

each of the three tiers. The Program 1

requirements, in proposed § 68.13, have

been included in this section. Owners or

operators of Program 1 processes are

required to analyze and document in the

RMP the worst-case release to ensure

that they meet the eligibility criteria of

no public receptors within the distance

to the endpoint. As discussed above, the

requirement to post signs has been

dropped. The certification statement has

been revised to be consistent with the

eligibility requirements. If a source has

more than one Program 1 process, a

single certification may be submitted to

cover all such processes.

The Program 2 requirements specify

the sections of the rule that apply to

these processes.

The Program 3 requirements specify

the sections of the rule that apply to

these processes.

Proposed § 68.22, Management, has

been moved from the prevention

program to § 68.15 in subpart A-General.

The section has been adopted as

proposed except that the purpose

sentence in paragraph (a) has been

dropped and a phrase at the beginning

of paragraph (b) has been deleted as

unnecessary.

A new subpart B has been created to

cover the hazard assessment

requirements. The proposed § 68.15 has

been divided into separate sections to

cover the parameters, the different types

of analyses, the identification of offsite

populations and environments,

documentation and updates, and the

five-year accident history. EPA believes

that limiting each section to a single

topic will make the rule easier to

understand.

Section 68.20 has been added to

specify which hazard assessment

requirements apply to Program 1, 2, and

3 processes. All sources are required to

complete a worst-case release analysis

for regulated substances in covered

processes, based on the requirements of

§ 68.25. Program 2 and 3 processes must

also perform alternative release analyses

required by § 68.28. All sources must

complete the five-year accident history

for all covered processes.

A new § 68.22 has been added to list

the parameters to be used in the offsite

consequence analyses. Owners or

operators who choose to use their own

air dispersion modeling tools must use

the parameters specified in paragraphs

(a), (e), (f), and (g) of this section; they

must use the meteorological parameters

specified in paragraph (b) of this section

unless they can demonstrate that the

conditions do not exist at their site.

Paragraph (c) specifies the ambient

temperature and humidity for worst

case (highest daily maximum over the

previous three years and average

humidity); if a source uses the guidance,

it may use average temperature and

humidity (25° C and 50 percent) as

default values. EPA recognizes that

these values are less conservative than

the worst-case meteorological

conditions, but determined that they

represent a reasonable average to be

used for developing tables. Providing

tables for a variety of temperatures and

humidity would have made the

guidance much more voluminous and

difficult to use. EPA is requiring sources

that use dispersion models instead of

the guidance to use actual temperature

and humidity data applicable to the site.

EPA believes this approach represents a

reasonable tradeoff. The guidance

generates conservative results even with

the less conservative assumptions about

temperature and humidity; air

dispersion modeling will generally

produce less conservative results and,

therefore, should be based on actual

data for these variables. Average data

applicable to the source may be used for

alternative scenarios. Paragraph (d)

requires that the release height for

worst-case be at ground level (zero feet).

Paragraph (e) specifies that urban or

rural topography be used as appropriate

in modeling. Paragraph (f) requires

sources to use models or tables

appropriate for the density of the

substance being released (e.g., dense

gases must be modeled using tables or

models that account for the behavior of

dense gases). Dense gases are typically

those that are heavier than air as well as

those that form aerosols and behave as

if they are heavier than air upon release.

For worst-case releases, liquids (other

than gases liquefied by refrigeration

only) shall be considered to be released

at the highest daily maximum

temperature or at process temperature,

whichever is higher. For alternative

scenarios, substances may be considered

to be released at ambient or process

temperatures as appropriate. Owners or

operators may choose to use EPA’s RMP

Offsite Consequence Analysis Guidance

for their offsite consequence analyses.

All of the parameters specified here are

reflected in this guidance.

A new § 68.25 has been added on the

worst-case release analysis. As

discussed above, the section requires

one worst-case release for toxics and

one for flammables. If additional

scenarios, for either class of substances,

would potentially expose receptors not

exposed by the worst-case release, the

additional scenario shall be analyzed

and reported. This provision is to take

into account the possibility that at large

sources, vessels at opposite ends of the

source may expose different

populations.

The section specifies how maximum

quantity in a vessel or pipe is to be

determined, the scenarios to be

considered for toxic gases, toxic gases

liquefied by refrigeration only, toxic

liquids, and flammables, the parameters

to be used, consideration of passive

mitigation, and factors to be considered

in selecting the worst-case scenario. The

section also specifies that sources may

use proprietary models if the source

provides the implementing agency

access to the model and explains

differences between the model and

publicly available models, if requested.

This approach will allow sources to use

the most appropriate models available,

while preserving the transparency of the

results.

A new § 68.28 has been added on

alternative release scenario analysis. As

discussed above, the section requires

one alternative release analysis for all

flammables held above the threshold in

processes at the source and one

alternative release analysis for each

toxic held above the threshold in

processes. For each scenario, the owner

or operator shall select a scenario that

is more likely to occur than the worst

case; and that will reach an endpoint

offsite, unless no such scenario exists.

The section includes a list of scenarios

that owners/operators may want to

consider, but does not dictate a

particular scenario. EPA has provided

additional direction and suggestions for

defining these scenarios in the RMP

Offsite Consequence Analysis Guidance.

As noted above, the section references

the parameters to be used and allows

consideration of both passive and active

mitigation systems. The section

specifies factors to be considered in

selecting alternative scenarios;

specifically, sources shall consider

releases that have been documented in

the five-year accident history; or failure

scenarios identified through the PHA or

hazard review.

A new § 68.30 has been added on

defining offsite impacts—population.

The section specifies that populations

are to be defined for a circle with a

radius that is the distance to the

endpoint. Owners or operators are

required only to estimate the residential

population within the circle to two

significant digits and may use Census

data to make these estimates. Owners or

operators are also required to note, in

the RMP, the presence of any major

institutions, such as schools, hospitals,

prisons, public recreational areas,

arenas, and major commercial and
31710 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

industrial developments, but they are

not required to estimate the number of

people present at such sites. These

additional locations are those that

would normally be shown on area street

maps.

A new § 68.33 has been added on

defining offsite impacts to the

environment. As discussed above, the

owners or operators are required only to

identify any environmental receptors

within the circle with a radius

determined by the distance to the

endpoint. The owners or operators are

not required to assess the potential

types or degree of damage that might

occur from a release of the substance.

The environmental receptors are those

that can be identified on U.S. Geological

Survey local topographical maps or

maps based on U.S.G.S. data.

A new § 68.36 has been added to list

the requirements for reviewing and

updating the offsite consequence

analysis. As proposed, if no changes

occur at the site, the analyses must be

reviewed and updated at least once

every five years. If changes at the site

occur that would reasonably be

expected either to increase or decrease

the distance to the endpoint by a factor

of two or more, owners/operators are

required to update the offsite

consequence analysis within six

months. The time for the reanalysis has

been changed to six months to make it

consistent with the update requirements

for the RMP. The proposed requirement

for reviewing the analyses based on

offsite changes has been deleted. A

number of commenters objected to the

requirement because it would have

compelled them to track changes over

very large areas. Because the distance to

the endpoints, especially for toxics, may

be as much as 40 km, the area affected

could easily exceed 1,000 square miles.

EPA agreed with commenters that there

was little benefit from requiring sources

to track offsite changes and redo

analyses because the public is aware of

the changes.

A new § 68.39 has been added to list

the documentation related to the offsite

consequence analyses that must be

retained on site. For both types of

scenarios, the documentation shall

include a description of the scenarios

identified, assumptions and parameters

used, the rationale for the selection of

specific scenarios; assumptions shall

include use of mitigation and any

administrative controls that were

assumed to limit the quantity that could

be released. Documentation shall

include the effect of the mitigation and

controls on the release quantity. The

documentation shall also include the

estimated quantities released, release

rates, and durations of release. The

owners or operators shall also identify

the methodology used to determine

distance to endpoints (i.e., EPA’s

guidance or an air dispersion model)

and the data used to estimate

population and environmental receptors

potentially affected. EPA has deleted the

proposed requirement for

documentation of endpoints because

these are now dictated by the rule. EPA

has also dropped the requirement for

documentation of distance calculations;

distances will either be determined from

EPA’s reference tables or by an air

dispersion model.

A new § 68.42 has been added to

detail the requirements for the five-year

accident history. As discussed above,

the accident history is limited to

accidental releases of listed substances

from covered processes only. The only

accidental releases that must be

included in the history are those that

resulted in deaths, injuries, or

significant property damage on site, or

known offsite deaths, injuries,

evacuations, sheltering in place,

property damage, or environmental

damage. Although language related to

the types of environmental damage

listed in the proposed rule has been

dropped, EPA intends that

environmental damage not be limited to

environmental receptors; events where

any known environmental impact of any

kind (e.g., fish or animal kills, lawn,

shrub, or crop damage), should be

included in the history.

The data required on each accident

include date, time, and approximate

duration of the release; chemical(s)

released; estimated quantity in pounds;

the type of release event and its source;

weather conditions (if known); on-site

impacts and known offsite impacts; the

initiating event and contributing factors

(if known); whether offsite responders

were notified (if known); and

operational or process changes that

resulted from the release. Estimates may

be provided to two significant digits.

EPA expects that for accidents that

occur after the publication of this rule,

sources will be able to document

weather conditions, initiating events

and contributing factors, and

notification of offsite responders as

these items would be part of the

incident investigation. The Agency

recognizes, however, that for incidents

that occur before the rule is final,

sources may not have this information

unless OSHA PSM already would

require the source to gather such

information (e.g., initiating event and

contributing factors). EPA has dropped

the requirement that the concentration

of the released substance be reported.

Concentration at the point of release is

assumed to be 100 percent except for

substances in solution, where the

concentration at the point of release is

assumed to be the percentage of the

solution as held or processed. The data

provided will allow the source or the

public to estimate the concentration

offsite.

Because the five-year accident history

will initially cover releases that

occurred before this rule is

promulgated, EPA is requiring reports

on weather conditions only if the source

has a record. For future releases, EPA

encourages the owners or operators keep

a record of wind speed and temperature

if possible as these conditions have a

significant impact on the migration of a

release offsite. The rule specifies that

the source must document known

offsite impacts. The source is not

required to conduct research on this

subject, but must report impacts of

which it is aware through direct

reporting to the source or claims filed,

or reasonably should have been aware of

from publicly available information.

The source is not required to verify the

accuracy of public or media reports.

A new subpart C has been created to

include the requirements of the

prevention program for Program 2

processes.

New § 68.48 details the safety

information that sources will be

required to develop. The information is

a subset of the information required

under the OSHA rule and is limited to

those items that are likely to apply to

Program 2 processes: MSDSs, maximum

intended inventory, safe upper and

lower process parameters, equipment

specifications, and the codes and

standards used to design, build, and

operate the process. Because Program 2

processes are generally simple, EPA

determined that items such as process

chemistry, process flow diagrams,

detailed drawings on equipment, and

material and energy balances are not

necessary for these processes.

Evaluation of consequences of

deviations will be handled under the

process review and the offsite

consequence analysis.

Paragraph (b) of § 68.48 requires

owners or operators to ensure that the

process is designed in compliance with

good engineering practices. The

paragraph states that compliance with

Federal or state regulations that address

industry-specific safe design or with

industry-specific design codes may be

used to demonstrate compliance.

NFPA–58 for propane handlers and

OSHA’s rule for ammonia handling (29

CFR 1910.111) are examples of such

design codes.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31711

The final paragraph of § 68.48

requires owners or operators to update

the safety information if a major change

makes it inaccurate.

New § 68.50 sets the requirements for

a hazard review. The section lists the

hazards and safeguards that the owners

or operators must identify and review.

The section states that owners or

operators may use checklists, such as

those provided in model risk

management programs, to conduct the

review. For processes that are designed

to industry standards (e.g., NFPA–58) or

Federal/state design rules, owners or

operators need only check their

equipment closely to ensure that it has

been fabricated and installed according

to the standards or rules and is being

operated appropriately. In this case, the

standard or rule-setting body has, in

essence, conducted the hazard review

and designed the equipment to reduce

hazards. Like the PHA required under

PSM, the hazard review must be

documented and the findings resolved.

The review must be updated at least

once every five years or when a major

change occurs. A streamlined version of

the PHA requirement, the review

recognizes that for simple processes

some of the OSHA requirements, such

as the requirement for a team and a

person trained in the technique, may

not be necessary. Most Program 2

processes will have model risk

management programs that will assist

owners or operators in conducting the

review.

New § 68.52 covers operating

procedures. The section allows owners

or operators to use standardized

procedures developed by industry

groups or provided in model risk

management programs as a basis for the

SOPs. Owners or operators will need to

review standardized SOPs to ensure that

they are appropriate for their operations;

some may need to be tailored. The steps

covered in the SOP are adapted from the

OSHA PSM standard. Certain elements

of the PSM requirement (e.g., safety and

health consideration) were dropped

because they are generally covered in

training provided under the OSHA

hazard communication standard. Other

elements were not included because

they are covered by other OSHA rules

or may not apply to the kinds of sources

in Program 2. The section requires that

the SOPs be updated whenever

necessary.

New § 68.54 covers training and is a

streamlined version of the OSHA PSM

requirement. The primary difference

with the OSHA PSM training element is

that the documentation requirements

have been dropped. EPA believes that

for Program 2 sources, which generally

will have simple processes and few

employees involved in the process, the

level of documentation required by

OSHA PSM is not needed. The section

specifically states that training

conducted to comply with other Federal

or state rules or industry codes may be

used to demonstrate compliance with

the section if the training covers the

SOPs for the process. Workers must be

retrained when SOPs change as a result

of a major change.

New § 68.56 covers maintenance and

requires owners or operators to prepare

and implement procedures for

maintenance and train workers in these

procedures. The owners or operators are

also required to inspect and test process

equipment consistent with good

engineering practices. The OSHA list of

equipment has been dropped because it

seemed too detailed for the simpler

Program 2 processes. Similarly, the

OSHA PSM requirements for

documentation, equipment deficiencies,

and quality assurance seem too

burdensome given the type of processes

in Program 2. EPA emphasizes that

sources should address equipment

deficiencies when they arise.

New §§ 68.58 and 68.60 on

compliance audits and accident

investigation are adopted directly from

the OSHA PSM standard. EPA believes

that these two elements are critical to

good prevention practices and that no

changes are needed from the OSHA

requirements. EPA has added a

provision to clearly indicate that audit

reports more than five-years old need

not be retained.

The Program 3 prevention program is

codified in new subpart D. As explained

above, the subpart adopts the OSHA

PSM standard with only minor editorial

changes necessitated by the different

statutory authorities of the two agencies.

Throughout the subpart, ‘‘employer’’

has been changed to ‘‘owner or

operator,’’ ‘‘facility’’ to ‘‘stationary

source,’’ and ‘‘highly hazardous

chemical’’ to ‘‘regulated substance.’’

EPA has reordered the elements

somewhat so that the order reflects the

progression in which sources will

generally implement the program. For

example, process safety information,

which is needed for the PHA, now

precedes that section. Pre-startup

review, which is the last step of

management of change procedures, now

follows management of change. The

reordering does not reflect any change

in the content.

Section 68.65, process safety

information, is adopted directly from

OSHA. The only changes are the

following: references to other

requirements have been changed to

reflect the appropriate EPA section

numbers; the phrase ‘‘highly hazardous

chemical’’ has been changed to

‘‘regulated substance’’; the word

‘‘standard’’ has been changed to ‘‘rule’’

in paragraph (a); and the date when

material and energy balances are needed

for new processes has been changed to

June 21, 1999. The words ‘‘including

those affecting the safety and health of

employees’’ has been deleted from the

requirement for the evaluation of the

consequences of deviations (paragraph

(c)(1)(v)) because EPA has no authority

to regulate the workplace. Further, EPA

believes this change reflects EPA’s

desire that sources implement one

prevention program that protects the

safety and health of workers, the public

and the environment and should have

no effect on sources already complying

with the OSHA PSM rule.

Section 68.67, process hazard

analysis, has been adopted from the

OSHA rule with a few changes. The

OSHA schedule for completion of PHAs

has been replaced with the compliance

date of this rule; a new sentence has

been added to state that PHAs

conducted to comply with OSHA PSM

are acceptable as the initial PHA under

this rule. These PHAs shall be updated

and revalidated based on their OSHA

completion date. This provision will

ensure that sources do not need to

duplicate PHAs already completed or

change their update schedule.

In paragraph (c)(2), the phrase ‘‘in the

workplace’’ has been deleted from the

requirement to identify previous

incidents with the potential for

catastrophic consequences because EPA

does not have the authority to regulate

the work place. EPA believes that this

change will have no effect on the rule;

any incident with the potential for

catastrophic consequences in the

workplace will also have had the

potential for catastrophic consequences

offsite. Similarly, the phrase ‘‘on

employees in the workplace’’ has been

deleted from paragraph (c)(7), which

requires a qualitative evaluation of a

range of the possible safety and health

effects of failure of controls. By deleting

the language, rather than changing it,

EPA is consistent with its authority

without imposing any new requirements

on sources. A new sentence has been

added to paragraph (f) to state that PHAs

updated and revalidated under the

OSHA rule are acceptable for EPA’s

purposes. Throughout this section,

internal references have been changed.

To maintain consistency with OSHA

PSM, proposed paragraph (j), which

would have required the evaluation of

mitigation and detection systems, has

been dropped, as have proposed
31712 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

references to offsite consequences and

public health and the environment.

Evaluation of mitigation and detection

systems is normally part of the PHA

process and of management’s decisions

on implementing recommendations and,

therefore, EPA decided that a separate

requirement was not needed. EPA will

collect information on monitoring,

detection, and mitigation systems used

in each Program 2 and 3 process as part

of the RMP. Proposed paragraph (a),

which was advisory, has been dropped.

Section 68.69, Operating Procedures,

has been adopted verbatim from OSHA

except for changing ‘‘employer’’ to

‘‘owner or operator.’’ Proposed

paragraph (a) has been deleted to ensure

consistency with OSHA.

Section 68.71, Training, has been

adopted verbatim from OSHA except for

changing ‘‘employer’’ to ‘‘owner or

operator’’ and changes in referenced

sections. Proposed paragraph (a) has

been deleted to ensure consistency with

OSHA, as has proposed paragraph (e).

Section 68.73, Mechanical Integrity

proposed as Maintenance, has been

adopted verbatim from OSHA except for

changing ‘‘employer’’ to ‘‘owner or

operator.’’ Proposed paragraph (a) has

been deleted to ensure consistency with

OSHA. The proposed requirements to

develop a critical equipment list,

document training, and ‘‘maintain’’ as

well as inspect and test under paragraph

(d) have been dropped to ensure

consistency with OSHA.

Section 68.75, Management of

Change, has been adopted verbatim

from OSHA except for changing

‘‘employer’’ to ‘‘owner or operator’’ and

changes to referenced sections.

Proposed paragraph (a) has been deleted

to ensure consistency with OSHA.

EPA’s proposed paragraph (b), which

defined changes not covered by the

section, has also been dropped in favor

of OSHA’s definition of ‘‘replacement in

kind.’’

Section 68.77, Pre-Startup Review,

has been adopted verbatim from OSHA

except for changing ‘‘employer’’ to

‘‘owner or operator’’ and changes to

referenced sections. Proposed paragraph

(a) and the reference to emergency

response training in proposed paragraph

(c)(4) have been deleted to ensure

consistency with OSHA.

Section 68.79, Compliance Audits,

has been adopted verbatim from OSHA

except for changing ‘‘employer’’ to

‘‘owner or operator’’ and changes to

referenced sections. Proposed paragraph

(a) has been deleted to ensure

consistency with OSHA.

Section 68.81, Accident Investigation,

has been adopted verbatim from OSHA

except for changing ‘‘employer’’ to

‘‘owner or operator’’ and ‘‘highly

hazardous chemical’’ to ‘‘regulated

substance’’ and changes to referenced

sections. Proposed paragraphs (a) and

(b), the latter of which would have

required written procedures, have been

deleted to ensure consistency with

OSHA. References to significant

accidental release have been dropped

because the phrase is no longer used.

Although EPA has adopted OSHA’s

language, EPA has changed the

definition of catastrophic release.

Consequently, this section requires

owners or operators to investigate

accidents that resulted in or could

reasonably have resulted in a release

that presented serious danger to public

health or the environment. EPA does

not believe that, except in isolated

cases, the modification to this provision

will require sources to investigate

accidents that they would not

investigate under the OSHA rule.

Section 68.83, Employee

Participation, has been adopted

verbatim from OSHA except for

changing ‘‘employer’’ to ‘‘owner or

operator.’’ Although EPA did not

propose adopting this section, the

Agency solicited comments on this

issue, and commenters convinced the

Agency that employee participation is

an important component of a complete

prevention program.

Section 68.85, Hot Work Permit, has

been adopted verbatim from OSHA

except for changing ‘‘employer’’ to

‘‘owner or operator.’’ Although EPA did

not propose adopting this section, the

Agency solicited comments on this

provision and decided that it was

valuable to maintain consistency with

the OSHA PSM elements and that the

hot work permit was important to good

prevention practices.

Section 68.87, Contractors, has been

adopted verbatim from OSHA except for

changing ‘‘employer’’ to ‘‘owner or

operator,’’ changing to referenced

sections, and deleting OSHA’s

paragraph 29 CFR 1910.119(h)(2)(vi).

Although EPA did not propose adopting

this section, the Agency solicited

comments on this issue. Commenters

argued that contractor practices are an

important component of a complete

prevention program. A number of major

accidents have resulted from contractor

mistakes. EPA agrees with the

commenters and has included the

provision in the final rule. EPA has,

however, deleted the requirement that

employers maintain an occupational

injury and illness log for contract

employees because the Agency does not

have the authority to impose this

requirement.

EPA has placed the emergency

response requirements in a new Subpart

E and divided the proposed emergency

response section into two separate

sections, an applicability section and a

section to cover the emergency response

program.

A new § 68.90, Applicability, has

been added. Because many sources

covered by this rule may be too small

to handle emergency response

themselves, EPA has provided, in this

new section, the actions they must take

if they will not respond to releases.

Specifically, for sources with regulated

toxic substances, the source must be

addressed in the community emergency

response plan developed under EPCRA

section 303. Sources with regulated

flammable substances must coordinate

response actions with the local fire

department. These sources must also

establish a mechanism to contact local

emergency responders. Sources that do

not meet these requirements must

comply with EPA’s emergency response

program requirements.

Section 68.95, Emergency Response

Program, is adopted from § 68.45 of the

proposed rule. The program has four

components: an emergency response

plan, procedures for use of response

equipment and its maintenance, training

for employees, and procedures to

update the plan after changes to the

source. The required elements of the

plan are those specified in CAA section

112(r)(7)(B)(ii): procedures for informing

the public and local response agencies;

documentation of emergency medical

treatment; and procedures and measures

for emergency response. As explained

above, EPA decided that, to avoid

inconsistency with other emergency

response planning regulations, the rule

would be limited to the statutory

requirements. Consequently, EPA has

deleted the following proposed

requirements: documentation of

evacuation routes (which should be

covered under the emergency action

plans required by OSHA under 29 CFR

1910.38); descriptions of all response

and mitigation technologies available at

the source; documentation of the

maintenance and training programs;

emergency response drills and

exercises; revision of the plan based on

the findings of the drills and exercises;

and documentation of management’s

response to findings and a schedule for

completion. EPA believes that these

requirements are addressed in other

Federal regulations and, therefore,

sources are already doing them. By not

including them, EPA, however, avoids

the possibility that slightly different

wording could lead to unnecessary

additional effort on the part of sources.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31713

EPA has added a paragraph (b) to this

section to state that compliance with

other Federal contingency plan

regulations or use of the National

Response Team’s Integrated

Contingency Plan Guidance (‘‘One

Plan’’) that results in a written plan that

addresses the elements in paragraph (a)

shall satisfy the requirements of the

rule, provided that the owner or

operator also complies with paragraph

(c) of this section.

Paragraph (c) is adopted from

proposed paragraph § 68.45(g) and

requires coordination of the plan with

the local community emergency

response plan. References to the local

emergency planning committee (LEPC)

have been changed to ‘local emergency

response officials’ to recognize and

include other local groups that may be

in charge of coordinating emergency

planning. LEPCs would be included in

this category.

A new Subpart G has been created to

cover the Risk Management Plan. The

Risk Management Plan includes three

main sections, an executive summary,

the registration, and data elements that

provide information on the offsite

consequence analyses, the five-year

accident history, the prevention

program, and the emergency response

program. The subpart includes separate

section to address each of these, plus

sections on submission, certifications,

and updates.

New § 68.150, Submission, has been

added. As discussed above, an owner or

operator shall submit a single RMP for

the source, regardless of the number of

covered processes or the tiers for which

they are eligible. All RMPs will be

submitted in a manner and method EPA

will specify by the compliance date to

a point designated by EPA; no other

submission will be required because

other agencies and the public will have

access to the submissions on-line. As

required by the CAA, the first RMP must

be submitted by June 21, 1999, three

years after EPA first lists a substance, or

the date on which a source first becomes

subject to this part, whichever is latest.

As discussed above under applicability,

after June 21, 1999, sources that begin

using a substance that has been listed

for at least three years will be required

to submit their RMPs on the date the

substance is first on site above the

threshold quantity. Sources that begin

using such a regulated substance prior

to June 21, 1999 will need to be in

compliance with the rule on June 21,

1999. The final paragraph states that,

except for a classified annex that would

not be publicly available, the RMP shall

exclude classified information.

New § 68.155 details the requirements

for the executive summary. The

summary shall include brief

descriptions of the following items: the

source’s prevention and emergency

response approach; the stationary

source and regulated substances; worstcase release scenario(s) and alternative

release scenario(s), including any

administrative controls applied to limit

the release quantity; the general

prevention program and chemicalspecific prevention steps; the five-year

accident history; the emergency

response program; and planned changes

to improve safety. EPA anticipates that

none of these items should require more

than a half page of text. Because this

information may be filed electronically,

EPA is not asking sources to submit

maps of the worst-case or alternative

release scenario circles. The data

submitted under each of these sections

will allow state or local agencies and the

public to map the circles.

Section 68.160, Registration, replaces

proposed § 68.12. The registration shall

include the following data: stationary

source name, street, city, county, state,

zip code, latitude, and longitude; the

stationary source and corporate Dun and

Bradstreet numbers; the name,

telephone number, and mailing address

of the owner/operator; the name and

title of the person responsible for

implementation of the risk management

program; the name, title, telephone

number, and 24-hour telephone number

of the emergency contact; the stationary

source EPA identifier; the number of

full-time employees at the stationary

source; whether the stationary source is

subject to 29 CFR 1910.119; whether the

stationary source is subject to 40 CFR

part 355; and the date on which the

stationary source last had a safety

inspection by a Federal, state, or local

government agency.

For each covered process, the source

must list the regulated substances

present above a threshold quantity

(name and CAS number), the maximum

quantity of each substance in the

process, the SIC code of the process, and

the Program level that applies to the

process. This process information

provides a simple method for describing

covered processes and identifying

Program levels.

The reporting of the quantity has been

changed; rather than have sources report

in ranges, the rule requires that the

quantity be reported to two significant

digits. EPA has found that the reporting

ranges are so broad (generally an order

of magnitude) that data analysis is

extremely difficult. By limiting the

reporting to two significant digits, EPA

will allow sources to estimate

quantities, but still provide more precise

data than are currently available. EPA

has added a requirement for reporting

full-time employees. These data are easy

for sources to provide and will enhance

the Agency’s ability to assess the impact

of its rule on businesses of various sizes.

The EPA identifier will be the unique

number EPA will assign to each source

and will allow EPA to cross reference

other reporting to the Agency. Use of the

identifier also means that EPA may not

need to collect certain data on this form

because they will be available from the

identifier database; EPA may revise the

requirements when the identifier rule is

promulgated.

EPA has deleted the certification

statement proposed for the registration

because the RMP as a whole will have

a certification statement that will cover

all elements, including registration.

Corrections to the registration will be

treated as corrections to the RMP and

must be filed within six months of the

change, rather than the 60 days

proposed for registration changes.

The registration now requires the

owners or operators to check off the

agency that last conducted a safety

inspection at the source and provide the

date. The inspection does not need to

have been related to prevention

practices as defined in this rule, but

may instead cover fire safety, workplace

safety, etc.

New § 68.165 covers the requirements

for reporting on the offsite consequence

analysis. As discussed in Section III.B,

the RMP shall include data on one worst

case release scenario for each Program 1

process; and, for Program 2 and 3

processes, one worst case release

scenario for toxics and one for

flammables (for sources with substances

in both hazard classes). If additional

worst-case release scenarios are required

under § 68.25 for either class, data on

that scenario must also be reported.

Sources with Program 2 and 3 processes

will also provide data on one alternative

release scenario to cover all flammables

in covered processes and an alternative

release scenario for each toxic substance

held in covered processes.

For each reported scenario, the

owners or operators shall provide the

following data: chemical name; physical

state (toxics only); basis of results and

model (if used); scenario; quantity

released in pounds; release rate;

duration; wind speed and stability

(toxics only); topography (toxics only);

distance to endpoint; public and

environmental receptors within the

distance; passive mitigation considered;

and active mitigation (alternative

releases only) considered. A number of

the data elements are not relevant to all
31714 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

flammable releases; for example, in the

worst-case release flammables are

assumed to be released and explode

almost instantly so that release rate,

duration, wind speed and stability, and

topography are not factors in

determining distances.

The purpose of requiring these data

elements, rather than the proposed

summary of the assessment, is to

provide the public with the essential

estimates of distance to the endpoints

and provide enough data on the release

scenario to allow agencies or the public

to confirm the distance estimate. With

the data provided, a public agency will

be able to use EPA’s guidance to

determine the distance for a particular

chemical release and compare that

distance with the one reported by the

source. This ability will be particularly

important when a source has chosen to

use an air dispersion model rather than

the reference table. The proposed rule

approach, which required a summary of

the assessment, would have resulted in

considerable variation in the

information submitted, as happened in

the Kanawha Valley exercise. In that

case, each source decided on the level

of information to provide; although each

provided maps, it was not possible, in

many cases, to determine how the

distances were estimated because much

of the underlying data was not reported.

EPA believes that these requirements

will impose a minimal burden on

sources, because they will already have

the data from completing the analyses,

will ensure that the same data are

reported by all sources, and will provide

enough data to evaluate the results

using publicly available documents and

models.

New § 68.168 on the five-year

accident history simply references the

data elements listed in § 68.42(a). The

data elements will be reported for each

accidental release covered by the

accident history requirement.

New § 68.170, Prevention Program/

Program 2, requires owners or operators

with Program 2 processes to list the

name of chemical(s) in, and SIC code

for, the Program 2 process; to provide

the dates of the most recent revisions or

reviews of the prevention program

elements; to provide, based on the

hazard review, information on the major

hazards, process controls, mitigation

systems, monitoring or detection

systems, and changes since the last

hazard review; to list any state or federal

regulations of industry-specific design

codes or standards being used to

demonstrate compliance with

prevention program elements; to list the

type of training and competency testing

used; to provide the date of the most

recent change that triggered a review or

revision of prevention elements; and to

provide the date of the completion of

any changes resulting from hazard

reviews, audits, or incident

investigations. EPA recognizes that not

all recommendations resulting from

hazard reviews, audits, or incident

investigations result in changes; some or

all may be resolved without changes.

However, if any changes are made, the

owners or operators shall report in the

RMP the date when such changes are

complete or expected to be complete.

New § 68.175, Prevention Program/

Program 3, requires owners or operators

with Program 3 processes to list the

name of chemical(s) in, and SIC code

for, the Program 3 process; to provide

the dates of the most recent revisions or

reviews of the prevention program

elements; to provide, based on the PHA,

information on the major hazards,

process controls, mitigation systems,

monitoring or detection systems, and

changes since the last PHA; to list the

type of training and competency testing

used; to provide the date of the most

recent change that triggered a review or

revision of prevention elements; and to

provide the date of the completion of

any changes resulting from PHAs,

audits, or incident investigations. As

above, EPA recognizes that not all

recommendations resulting from PHAs,

audits, or incident investigations result

in changes; some or all may be resolved

without changes. However, if any

changes are made, the owners or

operators shall report in the RMP the

date when such changes are complete or

expected to be complete.

New § 68.180, Emergency Response

Program, requires owners or operators to

answer questions about the required

content of the emergency response plan,

providing the date of the most recent

training of employees update of the

plan, indicate whether the source

emergency response plan has been

coordinated with the LEPC plan,

provide the name and telephone

number of the local agency with which

the plan has been coordinated, and list

other Federal or state emergency

planning requirements to which the

source is subject.

New § 68.185, Certification, specifies

the certification requirements that

owners or operators must complete

when the RMP is submitted.

New § 68.190 details the requirements

for updating the RMP. The plan must be

updated at least once every five years.

If a new substance is added to an

already covered process or a new

covered process is added, the RMP must

be updated on the date on which the

regulated substance is first present

above a threshold quantity. If EPA lists

a new substance that the source has

above a threshold quantity, the RMP

must be updated within three years of

the date of listing. If a change at the

source leads to a revised offsite

consequence analysis, process hazard

analysis or review, or a process changes

Program level, the RMP must be revised

and resubmitted within six months of

the change. Subsequent updates will be

required within five years of the update.

A new Subpart H, Other

Requirements, has been added.

New § 68.200, Recordkeeping, simply

states that records will be maintained

for five years unless otherwise specified

in the Program 3 prevention program.

New § 68.210, Availability of

information to the public, has been

added and a paragraph included to

provide that classified information is

protected under applicable laws,

regulations, and executive orders.

New § 68.215, Permit content and air

permitting authority or designated

agency requirements, has been added to

define the requirements for including

part 68 in Part 70 and 71 permits, as

discussed above.

Section 68.220, Audits, has been

revised to change references in

paragraph (a). A new paragraph (c) has

been added to specify the sources that

have achieved a star or merit rating

under OSHA’s VPP program will be

exempt from audits if the audit program

is based on industry accident history or

on neutral random oversight and if the

source has not had an accidental release

that requires investigation under the

rule. Paragraph (h) has been revised to

clarify that the source must revise the

RMP 30 days after completion of the

actions detailed in the implementation

plan, not 30 days after the issuance of

the final determination.

Appendix A has been added to

provide the toxic endpoints.

V. Required Analyses

A. E.O. 12866

Under Executive Order (E.O.) 12866

(58 FR 51735; October 4, 1993), EPA

must determine whether a regulatory

action is ‘‘significant’’ and, therefore,

subject to OMB review and the

requirements of the E.O. The Order

defines ‘‘significant regulatory action’’

as one that is likely to result in a rule

that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

state, local, or tribal government or

communities.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31715

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the E.O.

Under terms of E.O. 12866, EPA has

determined that today’s final

rulemaking is a ‘‘significant regulatory

action.’’ EPA, therefore, has developed

an economic impact analysis for the

final rule, (Economic Analysis in

Support of Final Rule on Risk

Management Program Regulations for

Chemical Accidental Release

Prevention), which is available in the

docket.

In developing the final rule, EPA

notes that it has taken actions to

streamline requirements whenever

possible and has tailored the

requirements through the use of

Programs. This approach differed from

the proposed rule, which imposed what

are now Program 3 requirements on all

sources and processes. EPA has also

changed substantially the requirements

for two elements of the rule, the offsite

consequence analysis and the RMP. For

the offsite consequence analysis, EPA

decided to develop methodologies and

look-up tables so sources would not

need to spend resources obtaining air

dispersion models; EPA also reduced

the requirements to define offsite

populations by allowing sources to use

Census data and to identify only those

institutions and developments that

appear on local maps (as opposed to

identifying day care centers and nursing

homes). For the RMP, EPA has limited

the requirements for information to that

which can be reported as data elements.

In contrast, the rule as proposed would

have required sources to document for

each process all major hazards, the

consequences of each of these hazards,

the risk reduction steps taken to address

each hazard, and the consequences of

each risk reduction step. The result

would have been, for large, complex

sources, documents of a 1,000 pages or

more.

To analyze the cost impacts of the

various approaches, EPA considered

three possible options in the final EIA:

the final rule, an option that imposed

final rule Program 3 requirements on all

sources, and an option that imposed

proposed rule requirements on all

sources. The last of these options was

considered to evaluate the impact of

changing the requirements for the offsite

consequence analysis and RMP.

Based on the final list and thresholds,

EPA estimates that approximately

66,100 sources will be affected by the

rule. EPA expects that about 360 sources

and approximately 410 processes will

be eligible for Program 1. These sources

are primarily gas processors that,

because they are remote and unstaffed,

are not covered by OSHA PSM. EPA

also estimated that approximately 50

processes using toluene di-isocyanate

(TDI) may qualify for Program 1 based

on the relatively low volatility of TDI.

Program 2 is expected to include 40,200

sources and 47,700 processes; these

sources include all retailers, propane

users, public drinking water and

wastewater systems and public electric

utilities not subject to OSHA PSM,

wholesalers, processes at Federal

facility processes, and non-chemical

manufacturers. Program 3 is expected to

cover 25,500 sources and 43,800

processes. These sources include

manufacturers, electric utilities, POTWs

and drinking water sites covered by

OSHA PSM, wholesalers, ammonia

refrigeration systems, gas utilities, gas

processors, and Federal facilities. All of

these sources are already covered by

OSHA PSM for at least one regulated

substance; EPA estimates that about 370

non-OSHA Program 3 processes in the

specified SIC codes will be covered.

Sources that already have a high

quality PSM program would not need to

take any additional actions to satisfy

EPA’s Program 3 prevention program,

but the analysis assumed that many

sources may still be in the process of

improving their PSM programs after

achieving initial compliance. The public

scrutiny expected to follow submission

of the RMP is likely to encourage

sources to ensure that their prevention

efforts are fully implemented and

effective. To account for these efforts,

the analysis assumed that sources

covered by OSHA would improve

training, maintenance, and management

oversight and, in some cases, institute

additional capital improvements.

The rule provides sources three years

to come into compliance with the rule.

The rule, however, will impose

continuing costs as sources implement

their risk management programs. Initial

compliance, therefore, covers the cost of

meeting the requirements of the rule by

the three-year compliance date. These

costs are presented as a single figure,

but are assumed to be incurred over a

three-year period. Total costs to

industry were estimated by multiplying

the estimated unit costs of compliance

with the risk management program

elements by the estimated number of

affected sources. Because many sources

already implement some of the risk

management requirements (e.g.,

training), cost estimates were adjusted

to account for the expected likelihood

that a source is already human health

(death or injury), responses to these

threats (evacuations, sheltering in place)

threats to the environment, and

economic damages (lost production,

property damages, and litigation).

Additional benefits may be provided by

making information available to the

public in the RMP. These benefits,

however, cannot be quantified.

B. Regulatory Flexibility Act

In accordance with the Regulatory

Flexibility Act of 1980, Federal agencies

must evaluate the impacts of rules on

small entities and consider less

burdensome regulatory alternatives. As

originally proposed in 1993, EPA

believes that the rule would have

created a severe, adverse impact on

small manufacturers. In February 1995,

EPA published a supplemenatal

proposal which introduced a tiering

approach for this regulation. By using

the tiering approach and streamlining

the Program 2 requirements, this final

rule significantly reduces the impact on

small businesses. The tiering approach

also significantly reduces the impact on

small communities.

EPA has developed a Regulatory

Flexibility Analysis for this final rule

evaluating the effects on small entities,

which is presented in Chapter 7 of the

EIA. The number of small

manufacturers was estimated to be 960

sources with fewer than 20 FTEs, and

2,000 sources with between 20 and 99

FTEs. The number of small nonmanufacturers is more difficult to

determine. Virtually all retailer and

wholesalers have fewer than 100 FTEs.

Industry estimates, however, indicate

that about 80 percent of the affected

retailers may be owned by larger

companies; the analysis assumed that

3,700 retailers were small businesses.

No information was available to

estimate the percentage of wholesalers

that might be owned by large

corporations. The analysis assumed that

all wholesalers were small. The total

number of small businesses, therefore,

was estimated to be 8,160.

Public drinking water and waste

water systems affected by the rule

generally serve a minimum of 10,000

people. Approximately 980 water

systems are estimated to serve between

10,000 and 25,000 people.

Approximately 500 water systems are

estimated to serve between 25,000 and

50,000 people. Consequently, 1,480

drinking water systems would be

considered small governmental entities.

The number of small POTWs was
31716 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

estimated to include all systems treating

less than 10 mgd and 59 percent of

those treating between 10 and 25 mgd

(based on the ratio of drinking water

systems in this category that serve

populations below 50,000).

Approximately 2,600 POTWs were

estimated to serve between 10,000 and

25,000 people and 180 to serve between

25,000 and 50,000, for a total of 2,800

POTWs. A total of approximately 4,300

small governmental entities would be

affected by this rule.

The total number of small entities

affected by this rule was estimated to be

12,500 or 19 percent of the affected

universe. No detailed analysis of the

impact on small entities was performed

because of the relatively low cost of the

rule for small entities. Initial costs are

considerably less than one percent of

sales for all small manufacturers.

Subsequent year costs will be even

lower. Costs for non-manufacturers are

very low (less than $1,000 per year for

initial compliance). These sums do not

impose a serious adverse burden on

these sources. Only chemical

manufacturers with complex processes

and 20 to 99 FTEs have initial costs that

exceed $6,000 per year. The costs for

these sources, $28,000 to $30,000 per

year for the first three years, represent

less than 0.5 percent of sales. It should

be noted that all of the costs for small

manufacturers assume that the sources

will take additional efforts, above their

actions to comply with the OSHA rule,

to improve the quality of the risk

management programs. If they do not

take additional actions, their costs

would be substantially lower.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on state, local,

and tribal governments and the private

sector. Under section 202 of UMRA,

EPA must generally prepare a written

statement, including a cost-benefit

analysis for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to state, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective, or least burdensome

alternatives that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law.

Moreover, section 205 allows EPA to

adopt an alternative other than the least

costly, most cost-effective, or least

burdensome alternative if the

Administrator publishes with the final

rule an explanation of why the

alternative was not adopted. Before EPA

establishes any regulatory requirements

that significantly or uniquely affect

small governments, including tribal

governments, it must have developed

under section 203 of UMRA, a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input

into the development of the regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this rule

contains a Federal mandate that may

result in expenditures of $100 million or

more for state, local, and tribal

governments, in the aggregate, or to the

private sector, in any one year.

Accordingly, EPA has prepared, under

section 202 of the UMRA, a written

statement which is summarized below.

EPA is required to promulgate this

rule under CAA section 112(r). In the

first and third year of initial

compliance, the cost of the rule to the

regulated community will exceed $100

million; in all subsequent years the

costs will be below $100 million. EPA

has developed an economic impact

analysis, discussed above, that evaluates

several regulatory alternatives. EPA has

adopted the least costly of these

alternatives. EPA estimates that

annualized costs for state and local

governments will be $13 million;

annualized costs for the private sector

are estimated to be $72 million.

Consistent with the intergovernmental

consultation provisions of section 204 of

the UMRA and Executive Order 12875

‘‘Enhancing the Intergovernmental

Partnership,’’ EPA has involved state,

local and business representatives in

focus groups to develop the rule. EPA

included representatives of state

government in the rulemaking

workgroup process, available to the

public under CAA section 114(c) and 40

CFR part 2; EPA does not believe that

any of the requested information will be

considered confidential.

The public reporting burden will

depend on the regulatory program into

which the 66,100 sources are placed.

The public reporting burden for rule

familiarization is estimated to range

from 4 to 68 hours per source for all

three program tiers. The public

reporting burden to prepare and submit

the registration and other RMP elements

is estimated to be 0.5 hours for sources

with only Program 1 processes, between

6.0 and 11.25 hours for Program 2

sources, and between 6.25 and 30.5

hours for Program 3 sources. The RMP

is submitted once, at the end of the

three year compliance period. The

public recordkeeping burden to

maintain on-site documentation is

estimated to range from 10 to 180 hours

for Program 2 sources and from 52 to

1,200 hours for Program 3 sources. Onsite documentation must be developed

and maintained on an ongoing basis,

which varies by rule element; based on

the statute of limitation for this rule,

documentation must generally be

maintained for five years. The total

annual public reporting burden for rule

familiarization, to complete the RMP,

and to maintain on-site documentation

is estimated to be about 3.36 million

hours over three years, or an annual

burden of 1.119 million hours. No

capital costs are expected to be incurred

to maintain or submit this

documentation.

Burden means the total time, effort, or

financial resources expended by persons

to generate, maintain, retain, or disclose

or provide information to or for a

Federal agency. This includes the time

needed to review instructions; develop,

acquire, install, and use technology and

systems for the purposes of collecting,

validating, and verifying information,

processing and maintaining

information, and disclosing and

providing information; adjust the

existing ways to comply with any

previously applicable instructions and

requirements; train personnel to be able

to respond to a collection of

information; search data sources;

complete and review the collection of

information; and transmit or otherwise

disclose the information.

E. Submission to Congress and the

General Accounting Office

Under section 801(a)(1)(A) of the

Administrative Procedures Act (APA) as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, EPA submitted a report containing

this rule and other required information

to the U.S. Senate, the U.S. House of

Representatives and the Comptroller

General of the General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is a

‘‘major rule’’ as defined by section

804(2) of the APA as amended.
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31717

List of Subjects in 40 CFR Part 68

Environmental protection, Chemicals,

Hazardous substances,

Intergovernmental relations.

Dated: May 24, 1996.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, 40 CFR Part 68 is amended as

follows:

PART 68—[AMENDED]

1. The authority citation for part 68 is

revised to read as follows:

Authority: 42 U.S.C. 7412(r), 7601(a)(1),

7661–7661f.

2. Part 68 is amended by

redesignating Subpart C (§§ 68.100—

68.130) as Subpart F.

Subpart A—[Amended]

4. Section 68.3 is amended to add the

following definitions:

§ 68.3 Definitions.

Act means the Clean Air Act as

amended (42 U.S.C. 7401 et seq.)

* * * * *

Administrative controls mean written

procedural mechanisms used for hazard

control.

AIChE/CCPS means the American

Institute of Chemical Engineers/Center

for Chemical Process Safety.

* * * * *

API means the American Petroleum

Institute.

ASME means the American Society of

Mechanical Engineers.

Catastrophic release means a major

uncontrolled emission, fire, or

explosion, involving one or more

regulated substances that presents

imminent and substantial endangerment

to public health and the environment.

Classified information means

‘‘classified information’’ as defined in

the Classified Information Procedures

Act, 18 U.S.C. App. 3, section 1(a) as

‘‘any information or material that has

been determined by the United States

Government pursuant to an executive

order, statute, or regulation, to require

protection against unauthorized

disclosure for reasons of national

security.’’

Covered process means a process that

has a regulated substance present in

more than a threshold quantity as

determined under § 68.115.

Designated agency means the state,

local, or Federal agency designated by

the state under the provisions of

§ 68.215(d) .

* * * * *

Environmental receptor means natural

areas such as national or state parks,

forests, or monuments; officially

designated wildlife sanctuaries,

preserves, refuges, or areas; and Federal

wilderness areas, that could be exposed

at any time to toxic concentrations,

radiant heat, or overpressure greater

than or equal to the endpoints provided

in § 68.22(a) , as a result of an accidental

release and that can be identified on

local U. S. Geological Survey maps.

Hot work means work involving

electric or gas welding, cutting, brazing,

or similar flame or spark-producing

operations.

Implementing agency means the state

or local agency that obtains delegation

for an accidental release prevention

program under subpart E, 40 CFR part

63. The implementing agency may, but

is not required to, be the state or local

air permitting agency. If no state or local

agency is granted delegation, EPA will

be the implementing agency for that

state.

Injury means any effect on a human

that results either from direct exposure

to toxic concentrations; radiant heat; or

overpressures from accidental releases

or from the direct consequences of a

vapor cloud explosion (such as flying

glass, debris, and other projectiles) from

an accidental release and that requires

medical treatment or hospitalization.

Major change means introduction of a

new process, process equipment, or

regulated substance, an alteration of

process chemistry that results in any

change to safe operating limits, or other

alteration that introduces a new hazard.

Mechanical integrity means the

process of ensuring that process

equipment is fabricated from the proper

materials of construction and is

properly installed, maintained, and

replaced to prevent failures and

accidental releases.

Medical treatment means treatment,

other than first aid, administered by a

physician or registered professional

personnel under standing orders from a

physician.

Mitigation or mitigation system means

specific activities, technologies, or

equipment designed or deployed to

capture or control substances upon loss

of containment to minimize exposure of

the public or the environment. Passive

mitigation means equipment, devices, or

technologies that function without

human, mechanical, or other energy

input. Active mitigation means

equipment, devices, or technologies that

need human, mechanical, or other

energy input to function.

NFPA means the National Fire

Protection Association.

Offsite means areas beyond the

property boundary of the stationary

source, and areas within the property

boundary to which the public has

routine and unrestricted access during

or outside business hours.

OSHA means the U.S. Occupational

Safety and Health Administration.

Owner or operator means any person

who owns, leases, operates, controls, or

supervises a stationary source.

Population means the public.

* * * * *

Public means any person except

employees or contractors at the

stationary source.

Public receptor means offsite

residences, institutions (e.g., schools,

hospitals), industrial, commercial, and

office buildings, parks, or recreational

areas inhabited or occupied by the

public at any time without restriction by

the stationary source where members of

the public could be exposed to toxic

concentrations, radiant heat, or

overpressure, as a result of an accidental

release.

* * * * *

Replacement in kind means a

replacement that satisfies the design

specifications.

RMP means the risk management plan

required under subpart G of this part.

SIC means Standard Industrial

Classification.

* * * * *

Typical meteorological conditions

means the temperature, wind speed,

cloud cover, and atmospheric stability

class, prevailing at the site based on

data gathered at or near the site or from

a local meteorological station.

* * * * *

Worst-case release means the release

of the largest quantity of a regulated

substance from a vessel or process line

failure that results in the greatest

distance to an endpoint defined in

§ 68.22(a).

5. Section 68.10 is added to subpart

A to read as follows:

§ 68.10 Applicability.

(a) An owner or operator of a

stationary source that has more than a

threshold quantity of a regulated

substance in a process, as determined

under § 68.115, shall comply with the

requirements of this part no later than

the latest of the following dates:

(1) June 21, 1999;

(2) Three years after the date on

which a regulated substance is first

listed under § 68.130; or

(3) The date on which a regulated

substance is first present above a

threshold quantity in a process.

(b) Program 1 eligibility requirements.

A covered process is eligible for
31718 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

Program 1 requirements as provided in

§ 68.12(b) if it meets all of the following

requirements:

(1) For the five years prior to the

submission of an RMP, the process has

not had an accidental release of a

regulated substance where exposure to

the substance, its reaction products,

overpressure generated by an explosion

involving the substance, or radiant heat

generated by a fire involving the

substance led to any of the following

offsite:

(i) Death;

(ii) Injury; or

(iii) Response or restoration activities

for an exposure of an environmental

receptor;

(2) The distance to a toxic or

flammable endpoint for a worst-case

release assessment conducted under

Subpart B and § 68.25 is less than the

distance to any public receptor, as

defined in § 68.30; and

(3) Emergency response procedures

have been coordinated between the

stationary source and local emergency

planning and response organizations.

(c) Program 2 eligibility requirements.

A covered process is subject to Program

2 requirements if it does not meet the

eligibility requirements of either

paragraph (b) or paragraph (d) of this

section.

(d) Program 3 eligibility requirements.

A covered process is subject to Program

3 if the process does not meet the

requirements of paragraph (b) of this

section, and if either of the following

conditions is met:

(1) The process is in SIC code 2611,

2812, 2819, 2821, 2865, 2869, 2873,

2879, or 2911; or

(2) The process is subject to the OSHA

process safety management standard, 29

CFR 1910.119.

(e) If at any time a covered process no

longer meets the eligibility criteria of its

Program level, the owner or operator

shall comply with the requirements of

the new Program level that applies to

the process and update the RMP as

provided in § 68.190.

6. Section 68.12 is added to subpart

A to read as follows:

§ 68.12 General requirements.

(a) General requirements. The owner

or operator of a stationary source subject

to this part shall submit a single RMP,

as provided in §§ 68.150 to 68.185. The

RMP shall include a registration that

reflects all covered processes.

(b) Program 1 requirements. In

addition to meeting the requirements of

paragraph (a) of this section, the owner

or operator of a stationary source with

a process eligible for Program 1, as

provided in § 68.10(b), shall:

(1) Analyze the worst-case release

scenario for the process(es), as provided

in § 68.25; document that the nearest

public receptor is beyond the distance

to a toxic or flammable endpoint

defined in § 68.22(a); and submit in the

RMP the worst-case release scenario as

provided in § 68.165;

(2) Complete the five-year accident

history for the process as provided in

§ 68.42 of this part and submit it in the

RMP as provided in § 68.168;

(3) Ensure that response actions have

been coordinated with local emergency

planning and response agencies; and

(4) Certify in the RMP the following:

‘‘Based on the criteria in 40 CFR 68.10,

the distance to the specified endpoint

for the worst-case accidental release

scenario for the following process(es) is

less than the distance to the nearest

public receptor: [list process(es)].

Within the past five years, the

process(es) has (have) had no accidental

release that caused offsite impacts

provided in the risk management

program rule (40 CFR 68.10(b)(1)). No

additional measures are necessary to

prevent offsite impacts from accidental

releases. In the event of fire, explosion,

or a release of a regulated substance

from the process(es), entry within the

distance to the specified endpoints may

pose a danger to public emergency

responders. Therefore, public

emergency responders should not enter

this area except as arranged with the

emergency contact indicated in the

RMP. The undersigned certifies that, to

the best of my knowledge, information,

and belief, formed after reasonable

inquiry, the information submitted is

true, accurate, and complete. [Signature,

title, date signed].’’

(c) Program 2 requirements. In

addition to meeting the requirements of

paragraph (a) of this section, the owner

or operator of a stationary source with

a process subject to Program 2, as

provided in § 68.10(c), shall:

(1) Develop and implement a

management system as provided in

§ 68.15;

(2) Conduct a hazard assessment as

provided in §§ 68.20 through 68.42;

(3) Implement the Program 2

prevention steps provided in §§ 68.48

through 68.60 or implement the

Program 3 prevention steps provided in

§§ 68.65 through 68.87;

(4) Develop and implement an

emergency response program as

provided in §§ 68.90 to 68.95; and

(5) Submit as part of the RMP the data

on prevention program elements for

Program 2 processes as provided in

§ 68.170.

(d) Program 3 requirements. In

addition to meeting the requirements of

paragraph (a) of this section, the owner

or operator of a stationary source with

a process subject to Program 3, as

provided in § 68.10(d) shall:

(1) Develop and implement a

management system as provided in

§ 68.15;

(2) Conduct a hazard assessment as

provided in §§ 68.20 through 68.42;

(3) Implement the prevention

requirements of §§ 68.65 through 68.87;

(4) Develop and implement an

emergency response program as

provided in §§ 68.90 to 68.95 of this

part; and

(5) Submit as part of the RMP the data

on prevention program elements for

Program 3 processes as provided in

§ 68.175.

7. Section 68.15 is added to subpart

A to read as follows:

§ 68.15 Management.

(a) The owner or operator of a

stationary source with processes subject

to Program 2 or Program 3 shall develop

a management system to oversee the

implementation of the risk management

program elements.

(b) The owner or operator shall assign

a qualified person or position that has

the overall responsibility for the

development, implementation, and

integration of the risk management

program elements.

(c) When responsibility for

implementing individual requirements

of this part is assigned to persons other

than the person identified under

paragraph (b) of this section, the names

or positions of these people shall be

documented and the lines of authority

defined through an organization chart or

similar document.

8. Subpart B—is added to read as

follows:

Subpart B—Hazard Assessment

Sec.

68.20 Applicability.

68.22 Offsite consequence analysis

parameters.

68.25 Worst-case release scenario analysis.

68.28 Alternative release scenario analysis.

68.30 Defining offsite impacts —

population.

68.33 Defining offsite impacts —

environment.

68.36 Review and update.

68.39 Documentation.

68.42 Five-year accident history.

Subpart B—Hazard Assessment

§ 68.20 Applicability.

The owner or operator of a stationary

source subject to this part shall prepare

a worst-case release scenario analysis as

provided in § 68.25 of this part and

complete the five-year accident history

as provided in § 68.42. The owner or
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31719

operator of a Program 2 and 3 process

must comply with all sections in this

subpart for these processes.

§ 68.22 Offsite consequence analysis

parameters.

(a) Endpoints. For analyses of offsite

consequences, the following endpoints

shall be used:

(1) Toxics. The toxic endpoints

provided in Appendix A of this part.

(2) Flammables. The endpoints for

flammables vary according to the

scenarios studied:

(i) Explosion. An overpressure of 1

psi.

(ii) Radiant heat/exposure time. A

radiant heat of 5 kw/m2 for 40 seconds.

(iii) Lower flammability limit. A

lower flammability limit as provided in

NFPA documents or other generally

recognized sources.

(b) Wind speed/atmospheric stability

class. For the worst-case release

analysis, the owner or operator shall use

a wind speed of 1.5 meters per second

and F atmospheric stability class. If the

owner or operator can demonstrate that

local meteorological data applicable to

the stationary source show a higher

minimum wind speed or less stable

atmosphere at all times during the

previous three years, these minimums

may be used. For analysis of alternative

scenarios, the owner or operator may

use the typical meteorological

conditions for the stationary source.

(c) Ambient temperature/humidity.

For worst-case release analysis of a

regulated toxic substance, the owner or

operator shall use the highest daily

maximum temperature in the previous

three years and average humidity for the

site, based on temperature/humidity

data gathered at the stationary source or

at a local meteorological station; an

owner or operator using the RMP Offsite

Consequence Analysis Guidance may

use 25°C and 50 percent humidity as

values for these variables. For analysis

of alternative scenarios, the owner or

operator may use typical temperature/

humidity data gathered at the stationary

source or at a local meteorological

station.

(d) Height of release. The worst-case

release of a regulated toxic substance

shall be analyzed assuming a ground

level (0 feet) release. For an alternative

scenario analysis of a regulated toxic

substance, release height may be

determined by the release scenario.

(e) Surface roughness. The owner or

operator shall use either urban or rural

topography, as appropriate. Urban

means that there are many obstacles in

the immediate area; obstacles include

buildings or trees. Rural means there are

no buildings in the immediate area and

the terrain is generally flat and

unobstructed.

(f) Dense or neutrally buoyant gases.

The owner or operator shall ensure that

tables or models used for dispersion

analysis of regulated toxic substances

appropriately account for gas density.

(g) Temperature of released substance.

For worst case, liquids other than gases

liquified by refrigeration only shall be

considered to be released at the highest

daily maximum temperature, based on

data for the previous three years

appropriate for the stationary source, or

at process temperature, whichever is

higher. For alternative scenarios,

substances may be considered to be

released at a process or ambient

temperature that is appropriate for the

scenario.

§ 68.25 Worst-case release scenario

analysis.

(a) The owner or operator shall

analyze and report in the RMP:

(1) For Program 1 processes, one

worst-case release scenario for each

Program 1 process;

(2) For Program 2 and 3 processes:

(i) One worst-case release scenario

that is estimated to create the greatest

distance in any direction to an endpoint

provided in Appendix A of this part

resulting from an accidental release of

regulated toxic substances from covered

processes under worst-case conditions

defined in § 68.22;

(ii) One worst-case release scenario

that is estimated to create the greatest

distance in any direction to an endpoint

defined in § 68.22(a) resulting from an

accidental release of regulated

flammable substances from covered

processes under worst-case conditions

defined in § 68.22; and

(iii) Additional worst-case release

scenarios for a hazard class if a worstcase release from another covered

process at the stationary source

potentially affects public receptors

different from those potentially affected

by the worst-case release scenario

developed under paragraphs (a)(2)(i) or

(a)(2)(ii) of this section.

(b) Determination of worst-case

release quantity. The worst-case release

quantity shall be the greater of the

following:

(1) For substances in a vessel, the

greatest amount held in a single vessel,

taking into account administrative

controls 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.

(c) Worst-case release scenario—toxic

gases.

(1) For regulated toxic substances that

are normally gases at ambient

temperature and handled as a gas or as

a liquid under pressure, the owner or

operator shall assume that the quantity

in the vessel or pipe, as determined

under paragraph (b) of this section, is

released as a gas over 10 minutes. The

release rate shall be assumed to be the

total quantity divided by 10 unless

passive mitigation systems are in place.

(2) For gases handled as refrigerated

liquids at ambient pressure:

(i) If the released substance is not

contained by passive mitigation systems

or if the contained pool would have a

depth of 1 cm or less, the owner or

operator shall assume that the substance

is released as a gas in 10 minutes;

(ii) If the released substance is

contained by passive mitigation systems

in a pool with a depth greater than 1 cm,

the owner or operator may assume that

the quantity in the vessel or pipe, as

determined under paragraph (b) of this

section, is spilled instantaneously to

form a liquid pool. The volatilization

rate (release rate) shall be calculated at

the boiling point of the substance and at

the conditions specified in paragraph

(d) of this section.

(d) Worst-case release scenario—toxic

liquids.

(1) For regulated toxic substances that

are normally liquids at ambient

temperature, the owner or operator shall

assume that the quantity in the vessel or

pipe, as determined under paragraph (b)

of this section, is spilled

instantaneously to form a liquid pool.

(i) The surface area of the pool shall

be determined by assuming that the

liquid spreads to 1 centimeter deep

unless passive mitigation systems are in

place that serve to contain the spill and

limit the surface area. Where passive

mitigation is in place, the surface area

of the contained liquid shall be used to

calculate the volatilization rate.

(ii) If the release would occur onto a

surface that is not paved or smooth, the

owner or operator may take into account

the actual surface characteristics.

(2) The volatilization rate shall

account for the highest daily maximum

temperature occurring in the past three

years, the temperature of the substance

in the vessel, and the concentration of

the substance if the liquid spilled is a

mixture or solution.

(3) The rate of release to air shall be

determined from the volatilization rate

of the liquid pool. The owner or

operator may use the methodology in

the RMP Offsite Consequence Analysis

Guidance or any other publicly

available techniques that account for the

modeling conditions and are recognized

by industry as applicable as part of
31720 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

current practices. Proprietary models

that account for the modeling

conditions may be used provided the

owner or operator allows the

implementing agency access to the

model and describes model features and

differences from publicly available

models to local emergency planners

upon request.

(e) Worst-case release scenario—

flammables. The owner or operator shall

assume that the quantity of the

substance, as determined under

paragraph (b) of this section, vaporizes

resulting in a vapor cloud explosion. A

yield factor of 10 percent of the

available energy released in the

explosion shall be used to determine the

distance to the explosion endpoint if the

model used is based on TNT-equivalent

methods.

(f) Parameters to be applied. The

owner or operator shall use the

parameters defined in § 68.22 to

determine distance to the endpoints.

The owner or operator may use the

methodology provided in the RMP

Offsite Consequence Analysis Guidance

or any commercially or publicly

available air dispersion modeling

techniques, provided the techniques

account for the modeling conditions and

are recognized by industry as applicable

as part of current practices. Proprietary

models that account for the modeling

conditions may be used provided the

owner or operator allows the

implementing agency access to the

model and describes model features and

differences from publicly available

models to local emergency planners

upon request.

(g) Consideration of passive

mitigation. Passive mitigation systems

may be considered for the analysis of

worst case provided that the mitigation

system is capable of withstanding the

release event triggering the scenario and

would still function as intended.

(h) Factors in selecting a worst-case

scenario. Notwithstanding the

provisions of paragraph (b) of this

section, the owner or operator shall

select as the worst case for flammable

regulated substances or the worst case

for regulated toxic substances, a

scenario based on the following factors

if such a scenario would result in a

greater distance to an endpoint defined

in § 68.22(a) beyond the stationary

source boundary than the scenario

provided under paragraph (b) of this

section:

(1) Smaller quantities handled at

higher process temperature or pressure;

and

(2) Proximity to the boundary of the

stationary source.

§ 68.28 Alternative release scenario

analysis.

(a) The number of scenarios. The

owner or operator shall identify and

analyze at least one alternative release

scenario for each regulated toxic

substance held in a covered process(es)

and at least one alternative release

scenario to represent all flammable

substances held in covered processes.

(b) Scenarios to consider. (1) For each

scenario required under paragraph (a) of

this section, the owner or operator shall

select a scenario:

(i) That is more likely to occur than

the worst-case release scenario under

§ 68.25; and

(ii) That will reach an endpoint

offsite, unless no such scenario exists.

(2) Release scenarios considered

should include, but are not limited to,

the following, where applicable:

(i) Transfer hose releases due to splits

or sudden hose uncoupling;

(ii) Process piping releases from

failures at flanges, joints, welds, valves

and valve seals, and drains or bleeds;

(iii) Process vessel or pump releases

due to cracks, seal failure, or drain,

bleed, or plug failure;

(iv) Vessel overfilling and spill, or

overpressurization and venting through

relief valves or rupture disks; and

(v) Shipping container mishandling

and breakage or puncturing leading to a

spill.

(c) Parameters to be applied. The

owner or operator shall use the

appropriate parameters defined in

§ 68.22 to determine distance to the

endpoints. The owner or operator may

use either the methodology provided in

the RMP Offsite Consequence Analysis

Guidance or any commercially or

publicly available air dispersion

modeling techniques, provided the

techniques account for the specified

modeling conditions and are recognized

by industry as applicable as part of

current practices. Proprietary models

that account for the modeling

conditions may be used provided the

owner or operator allows the

implementing agency access to the

model and describes model features and

differences from publicly available

models to local emergency planners

upon request.

(d) Consideration of mitigation.

Active and passive mitigation systems

may be considered provided they are

capable of withstanding the event that

triggered the release and would still be

functional.

(e) Factors in selecting scenarios. The

owner or operator shall consider the

following in selecting alternative release

scenarios:

(1) The five-year accident history

provided in § 68.42; and

(2) Failure scenarios identified under

§§ 68.50 or 68.67.

§ 68.30 Defining offsite impacts—

population.

(a) The owner or operator shall

estimate in the RMP the population

within a circle with its center at the

point of the release and a radius

determined by the distance to the

endpoint defined in § 68.22(a).

(b) Population to be defined.

Population shall include residential

population. The presence of institutions

(schools, hospitals, prisons), parks and

recreational areas, and major

commercial, office, and industrial

buildings shall be noted in the RMP.

(c) Data sources acceptable. The

owner or operator may use the most

recent Census data, or other updated

information, to estimate the population

potentially affected.

(d) Level of accuracy. Population shall

be estimated to two significant digits.

§ 68.33 Defining offsite impacts—

environment.

(a) The owner or operator shall list in

the RMP environmental receptors

within a circle with its center at the

point of the release and a radius

determined by the distance to the

endpoint defined in § 68.22(a) of this

part.

(b) Data sources acceptable. The

owner or operator may rely on

information provided on local U.S.

Geological Survey maps or on any data

source containing U.S.G.S. data to

identify environmental receptors.

68.36 Review and update.

(a) The owner or operator shall review

and update the offsite consequence

analyses at least once every five years.

(b) If changes in processes, quantities

stored or handled, or any other aspect

of the stationary source might

reasonably be expected to increase or

decrease the distance to the endpoint by

a factor of two or more, the owner or

operator shall complete a revised

analysis within six months of the

change and submit a revised risk

management plan as provided in

§ 68.190.

§ 68.39 Documentation

The owner or operator shall maintain

the following records on the offsite

consequence analyses:

(a) For worst-case scenarios, a

description of the vessel or pipeline and

substance selected as worst case,

assumptions and parameters used, and

the rationale for selection; assumptions

shall include use of any administrative
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31721

controls and any passive mitigation that

were assumed to limit the quantity that

could be released. Documentation shall

include the anticipated effect of the

controls and mitigation on the release

quantity and rate.

(b) For alternative release scenarios, a

description of the scenarios identified,

assumptions and parameters used, and

the rationale for the selection of specific

scenarios; assumptions shall include

use of any administrative controls and

any mitigation that were assumed to

limit the quantity that could be released.

Documentation shall include the effect

of the controls and mitigation on the

release quantity and rate.

(c) Documentation of estimated

quantity released, release rate, and

duration of release.

(d) Methodology used to determine

distance to endpoints.

(e) Data used to estimate population

and environmental receptors potentially

affected.

§ 68.42 Five-year accident history.

(a) The owner or operator shall

include in the five-year accident history

all accidental releases from covered

processes that resulted in deaths,

injuries, or significant property damage

on site, or known offsite deaths,

injuries, evacuations, sheltering in

place, property damage, or

environmental damage.

(b) Data required. For each accidental

release included, the owner or operator

shall report the following information:

(1) Date, time, and approximate

duration of the release;

(2) Chemical(s) released;

(3) Estimated quantity released in

pounds;

(4) The type of release event and its

source;

(5) Weather conditions, if known;

(6) On-site impacts;

(7) Known offsite impacts;

(8) Initiating event and contributing

factors if known;

(9) Whether offsite responders were

notified if known; and

(10) Operational or process changes

that resulted from investigation of the

release.

(c) Level of accuracy. Numerical

estimates may be provided to two

significant digits.

9. Subpart C is added to read as

follows:

Subpart C—Program 2 Prevention Program

Secs.

68.48 Safety information.

68.50 Hazard review.

68.52 Operating procedures.

68.54 Training.

68.56 Maintenance.

68.58 Compliance audits.

68.60 Incident investigation.

Subpart C—Program 2 Prevention

Program

§ 68.48 Safety information.

(a) The owner or operator shall

compile and maintain the following upto-date safety information related to the

regulated substances, processes, and

equipment:

(1) Material Safety Data Sheets that

meet the requirements of 29 CFR

1910.1200(g);

(2) Maximum intended inventory of

equipment in which the regulated

substances are stored or processed;

(3) Safe upper and lower

temperatures, pressures, flows, and

compositions;

(4) Equipment specifications; and

(5) Codes and standards used to

design, build, and operate the process.

(b) The owner or operator shall ensure

that the process is designed in

compliance with recognized and

generally accepted good engineering

practices. Compliance with Federal or

state regulations that address industryspecific safe design or with industryspecific design codes and standards may

be used to demonstrate compliance with

this paragraph.

(c) The owner or operator shall update

the safety information if a major change

occurs that makes the information

inaccurate.

§ 68.50 Hazard review.

(a) The owner or operator shall

conduct a review of the hazards

associated with the regulated

substances, process, and procedures.

The review shall identify the following:

(1) The hazards associated with the

process and regulated substances;

(2) Opportunities for equipment

malfunctions or human errors that could

cause an accidental release;

(3) The safeguards used or needed to

control the hazards or prevent

equipment malfunction or human error;

and

(4) Any steps used or needed to detect

or monitor releases.

(b) The owner or operator may use

checklists developed by persons or

organizations knowledgeable about the

process and equipment as a guide to

conducting the review. For processes

designed to meet industry standards or

Federal or state design rules, the hazard

review shall, by inspecting all

equipment, determine whether the

process is designed, fabricated, and

operated in accordance with the

applicable standards or rules.

(c) The owner or operator shall

document the results of the review and

ensure that problems identified are

resolved in a timely manner.

(d) The review shall be updated at

least once every five years. The owner

or operator shall also conduct reviews

whenever a major change in the process

occurs; all issues identified in the

review shall be resolved before startup

of the changed process.

§ 68.52 Operating procedures.

(a) The owner or operator shall

prepare written operating procedures

that provide clear instructions or steps

for safely conducting activities

associated with each covered process

consistent with the safety information

for that process. Operating procedures

or instructions provided by equipment

manufacturers or developed by persons

or organizations knowledgeable about

the process and equipment may be used

as a basis for a stationary source’s

operating procedures.

(b) The procedures shall address the

following:

(1) Initial startup;

(2) Normal operations;

(3) Temporary operations;

(4) Emergency shutdown and

operations;

(5) Normal shutdown;

(6) Startup following a normal or

emergency shutdown or a major change

that requires a hazard review;

(7) Consequences of deviations and

steps required to correct or avoid

deviations; and

(8) Equipment inspections.

(c) The owner or operator shall ensure

that the operating procedures are

updated, if necessary, whenever a major

change occurs and prior to startup of the

changed process.

§ 68.54 Training.

(a) The owner or operator shall ensure

that each employee presently operating

a process, and each employee newly

assigned to a covered process have been

trained or tested competent in the

operating procedures provided in

§ 68.52 that pertain to their duties. For

those employees already operating a

process on June 21, 1999, the owner or

operator may certify in writing that the

employee has the required knowledge,

skills, and abilities to safely carry out

the duties and responsibilities as

provided in the operating procedures.

(b) Refresher training. Refresher

training shall be provided at least every

three years, and more often if necessary,

to each employee operating a process to

ensure that the employee understands

and adheres to the current operating

procedures of the process. The owner or

operator, in consultation with the

employees operating the process, shall

determine the appropriate frequency of

refresher training.
31722 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

(c) The owner or operator may use

training conducted under Federal or

state regulations or under industryspecific standards or codes or training

conducted by covered process

equipment vendors to demonstrate

compliance with this section to the

extent that the training meets the

requirements of this section.

(d) The owner or operator shall ensure

that operators are trained in any

updated or new procedures prior to

startup of a process after a major change.

§ 68.56 Maintenance.

(a) The owner or operator shall

prepare and implement procedures to

maintain the on-going mechanical

integrity of the process equipment. The

owner or operator may use procedures

or instructions provided by covered

process equipment vendors or

procedures in Federal or state

regulations or industry codes as the

basis for stationary source maintenance

procedures.

(b) The owner or operator shall train

or cause to be trained each employee

involved in maintaining the on-going

mechanical integrity of the process. To

ensure that the employee can perform

the job tasks in a safe manner, each such

employee shall be trained in the hazards

of the process, in how to avoid or

correct unsafe conditions, and in the

procedures applicable to the employee’s

job tasks.

(c) Any maintenance contractor shall

ensure that each contract maintenance

employee is trained to perform the

maintenance procedures developed

under paragraph (a) of this section.

(d) The owner or operator shall

perform or cause to be performed

inspections and tests on process

equipment. Inspection and testing

procedures shall follow recognized and

generally accepted good engineering

practices. The frequency of inspections

and tests of process equipment shall be

consistent with applicable

manufacturers’ recommendations,

industry standards or codes, good

engineering practices, and prior

operating experience.

§ 68.58 Compliance audits.

(a) The owner or operator shall certify

that they have evaluated compliance

with the provisions of this subpart at

least every three years to verify that the

procedures and practices developed

under the rule are adequate and are

being followed.

(b) The compliance audit shall be

conducted by at least one person

knowledgeable in the process.

(c) The owner or operator shall

develop a report of the audit findings.

(d) The owner or operator shall

promptly determine and document an

appropriate response to each of the

findings of the compliance audit and

document that deficiencies have been

corrected.

(e) The owner or operator shall retain

the two (2) most recent compliance

audit reports. This requirement does not

apply to any compliance audit report

that is more than five years old.

§ 68.60 Incident investigation.

(a) The owner or operator shall

investigate each incident which resulted

in, or could reasonably have resulted in

a catastrophic release.

(b) An incident investigation shall be

initiated as promptly as possible, but

not later than 48 hours following the

incident.

(c) A summary shall be prepared at

the conclusion of the investigation

which includes at a minimum:

(1) Date of incident;

(2) Date investigation began;

(3) A description of the incident;

(4) The factors that contributed to the

incident; and,

(5) Any recommendations resulting

from the investigation.

(d) The owner or operator shall

promptly address and resolve the

investigation findings and

recommendations. Resolutions and

corrective actions shall be documented.

(e) The findings shall be reviewed

with all affected personnel whose job

tasks are affected by the findings.

(f) Investigation summaries shall be

retained for five years.

10. Subpart D is added to read as

follows:

Subpart D—Program 3 Prevention Program

Sec.

68.65 Process safety information.

68.67 Process hazard analysis.

68.69 Operating procedures.

68.71 Training.

68.73 Mechanical integrity.

68.75 Management of change.

68.77 Pre-startup review.

68.79 Compliance audits.

68.81 Incident investigation.

68.83 Employee participation.

68.85 Hot work permit.

68.87 Contractors.

Subpart D—Program 3 Prevention

Program

§ 68.65 Process safety information.

(a) In accordance with the schedule

set forth in § 68.67, the owner or

operator shall complete a compilation of

written process safety information

before conducting any process hazard

analysis required by the rule. The

compilation of written process safety

information is to enable the owner or

operator and the employees involved in

operating the process to identify and

understand the hazards posed by those

processes involving regulated

substances. This process safety

information shall include information

pertaining to the hazards of the

regulated substances used or produced

by the process, information pertaining

to the technology of the process, and

information pertaining to the equipment

in the process.

(b) Information pertaining to the

hazards of the regulated substances in

the process. This information shall

consist of at least the following:

(1) Toxicity information;

(2) Permissible exposure limits;

(3) Physical data;

(4) Reactivity data:

(5) Corrosivity data;

(6) Thermal and chemical stability

data; and

(7) Hazardous effects of inadvertent

mixing of different materials that could

foreseeably occur.

Note to paragraph (b): Material Safety Data

Sheets meeting the requirements of 29 CFR

1910.1200(g) may be used to comply with

this requirement to the extent they contain

the information required by this

subparagraph.

(c) Information pertaining to the

technology of the process.

(1) Information concerning the

technology of the process shall include

at least the following:

(i) A block flow diagram or simplified

process flow diagram;

(ii) Process chemistry;

(iii) Maximum intended inventory;

(iv) Safe upper and lower limits for

such items as temperatures, pressures,

flows or compositions; and,

(v) An evaluation of the consequences

of deviations.

(2) Where the original technical

information no longer exists, such

information may be developed in

conjunction with the process hazard

analysis in sufficient detail to support

the analysis.

(d) Information pertaining to the

equipment in the process.

(1) Information pertaining to the

equipment in the process shall include:

(i) Materials of construction;

(ii) Piping and instrument diagrams

(P&ID’s);

(iii) Electrical classification;

(iv) Relief system design and design

basis;

(v) Ventilation system design;

(vi) Design codes and standards

employed;

(vii) Material and energy balances for

processes built after June 21, 1999; and

(viii) Safety systems (e.g. interlocks,

detection or suppression systems).
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31723

(2) The owner or operator shall

document that equipment complies

with recognized and generally accepted

good engineering practices.

(3) For existing equipment designed

and constructed in accordance with

codes, standards, or practices that are no

longer in general use, the owner or

operator shall determine and document

that the equipment is designed,

maintained, inspected, tested, and

operating in a safe manner.

§ 68.67 Process hazard analysis.

(a) The owner or operator shall

perform an initial process hazard

analysis (hazard evaluation) on

processes covered by this part. The

process hazard analysis shall be

appropriate to the complexity of the

process and shall identify, evaluate, and

control the hazards involved in the

process. The owner or operator shall

determine and document the priority

order for conducting process hazard

analyses based on a rationale which

includes such considerations as extent

of the process hazards, number of

potentially affected employees, age of

the process, and operating history of the

process. The process hazard analysis

shall be conducted as soon as possible,

but not later than June 21, 1999. Process

hazards analyses completed to comply

with 29 CFR 1910.119(e) are acceptable

as initial process hazards analyses.

These process hazard analyses shall be

updated and revalidated, based on their

completion date.

(b) The owner or operator shall use

one or more of the following

methodologies that are appropriate to

determine and evaluate the hazards of

the process being analyzed.

(1) What-If;

(2) Checklist;

(3) What-If/Checklist;

(4) Hazard and Operability Study

(HAZOP);

(5) Failure Mode and Effects Analysis

(FMEA);

(6) Fault Tree Analysis; or

(7) An appropriate equivalent

methodology.

(c) The process hazard analysis shall

address:

(1) The hazards of the process;

(2) The identification of any previous

incident which had a likely potential for

catastrophic consequences.

(3) Engineering and administrative

controls applicable to the hazards and

their interrelationships such as

appropriate application of detection

methodologies to provide early warning

of releases. (Acceptable detection

methods might include process

monitoring and control instrumentation

with alarms, and detection hardware

such as hydrocarbon sensors.);

(4) Consequences of failure of

engineering and administrative controls;

(5) Stationary source siting;

(6) Human factors; and

(7) A qualitative evaluation of a range

of the possible safety and health effects

of failure of controls.

(d) The process hazard analysis shall

be performed by a team with expertise

in engineering and process operations,

and the team shall include at least one

employee who has experience and

knowledge specific to the process being

evaluated. Also, one member of the

team must be knowledgeable in the

specific process hazard analysis

methodology being used.

(e) The owner or operator shall

establish a system to promptly address

the team’s findings and

recommendations; assure that the

recommendations are resolved in a

timely manner and that the resolution is

documented; document what actions are

to be taken; complete actions as soon as

possible; develop a written schedule of

when these actions are to be completed;

communicate the actions to operating,

maintenance and other employees

whose work assignments are in the

process and who may be affected by the

recommendations or actions.

(f) At least every five (5) years after

the completion of the initial process

hazard analysis, the process hazard

analysis shall be updated and

revalidated by a team meeting the

requirements in paragraph (d) of this

section, to assure that the process

hazard analysis is consistent with the

current process. Updated and

revalidated process hazard analyses

completed to comply with 29 CFR

1910.119(e) are acceptable to meet the

requirements of this paragraph.

(g) The owner or operator shall retain

process hazards analyses and updates or

revalidations for each process covered

by this section, as well as the

documented resolution of

recommendations described in

paragraph (e) of this section for the life

of the process.

§ 68.69 Operating procedures.

(a) The owner or operator shall

develop and implement written

operating procedures that provide clear

instructions for safely conducting

activities involved in each covered

process consistent with the process

safety information and shall address at

least the following elements.

(1) Steps for each operating phase:

(i) Initial startup;

(ii) Normal operations;

(iii) Temporary operations;

(iv) Emergency shutdown including

the conditions under which emergency

shutdown is required, and the

assignment of shutdown responsibility

to qualified operators to ensure that

emergency shutdown is executed in a

safe and timely manner.

(v) Emergency operations;

(vi) Normal shutdown; and,

(vii) Startup following a turnaround,

or after an emergency shutdown.

(2) Operating limits:

(i) Consequences of deviation; and

(ii) Steps required to correct or avoid

deviation.

(3) Safety and health considerations:

(i) Properties of, and hazards

presented by, the chemicals used in the

process;

(ii) Precautions necessary to prevent

exposure, including engineering

controls, administrative controls, and

personal protective equipment;

(iii) Control measures to be taken if

physical contact or airborne exposure

occurs;

(iv) Quality control for raw materials

and control of hazardous chemical

inventory levels; and,

(v) Any special or unique hazards.

(4) Safety systems and their functions.

(b) Operating procedures shall be

readily accessible to employees who

work in or maintain a process.

(c) The operating procedures shall be

reviewed as often as necessary to assure

that they reflect current operating

practice, including changes that result

from changes in process chemicals,

technology, and equipment, and

changes to stationary sources. The

owner or operator shall certify annually

that these operating procedures are

current and accurate.

(d) The owner or operator shall

develop and implement safe work

practices to provide for the control of

hazards during operations such as

lockout/tagout; confined space entry;

opening process equipment or piping;

and control over entrance into a

stationary source by maintenance,

contractor, laboratory, or other support

personnel. These safe work practices

shall apply to employees and contractor

employees.

§ 68.71 Training.

(a) Initial training. (1) Each employee

presently involved in operating a

process, and each employee before

being involved in operating a newly

assigned process, shall be trained in an

overview of the process and in the

operating procedures as specified in

§ 68.69. The training shall include

emphasis on the specific safety and

health hazards, emergency operations

including shutdown, and safe work

practices applicable to the employee’s

job tasks.
31724 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

(2) In lieu of initial training for those

employees already involved in

operating a process on June 21, 1999 an

owner or operator may certify in writing

that the employee has the required

knowledge, skills, and abilities to safely

carry out the duties and responsibilities

as specified in the operating procedures.

(b) Refresher training. Refresher

training shall be provided at least every

three years, and more often if necessary,

to each employee involved in operating

a process to assure that the employee

understands and adheres to the current

operating procedures of the process. The

owner or operator, in consultation with

the employees involved in operating the

process, shall determine the appropriate

frequency of refresher training.

(c) Training documentation. The

owner or operator shall ascertain that

each employee involved in operating a

process has received and understood the

training required by this paragraph. The

owner or operator shall prepare a record

which contains the identity of the

employee, the date of training, and the

means used to verify that the employee

understood the training.

§ 68.73 Mechanical integrity.

(a) Application. Paragraphs (b)

through (f) of this section apply to the

following process equipment:

(1) Pressure vessels and storage tanks;

(2) Piping systems (including piping

components such as valves);

(3) Relief and vent systems and

devices;

(4) Emergency shutdown systems;

(5) Controls (including monitoring

devices and sensors, alarms, and

interlocks) and,

(6) Pumps.

(b) Written procedures. The owner or

operator shall establish and implement

written procedures to maintain the ongoing integrity of process equipment.

(c) Training for process maintenance

activities. The owner or operator shall

train each employee involved in

maintaining the on-going integrity of

process equipment in an overview of

that process and its hazards and in the

procedures applicable to the employee’s

job tasks to assure that the employee can

perform the job tasks in a safe manner.

(d) Inspection and testing. (1)

Inspections and tests shall be performed

on process equipment.

(2) Inspection and testing procedures

shall follow recognized and generally

accepted good engineering practices.

(3) The frequency of inspections and

tests of process equipment shall be

consistent with applicable

manufacturers’ recommendations and

good engineering practices, and more

frequently if determined to be necessary

by prior operating experience.

(4) The owner or operator shall

document each inspection and test that

has been performed on process

equipment. The documentation shall

identify the date of the inspection or

test, the name of the person who

performed the inspection or test, the

serial number or other identifier of the

equipment on which the inspection or

test was performed, a description of the

inspection or test performed, and the

results of the inspection or test.

(e) Equipment deficiencies. The

owner or operator shall correct

deficiencies in equipment that are

outside acceptable limits (defined by the

process safety information in § 68.65)

before further use or in a safe and timely

manner when necessary means are

taken to assure safe operation.

(f) Quality assurance. (1) In the

construction of new plants and

equipment, the owner or operator shall

assure that equipment as it is fabricated

is suitable for the process application

for which they will be used.

(2) Appropriate checks and

inspections shall be performed to assure

that equipment is installed properly and

consistent with design specifications

and the manufacturer’s instructions.

(3) The owner or operator shall assure

that maintenance materials, spare parts

and equipment are suitable for the

process application for which they will

be used.

§ 68.75 Management of change.

(a) The owner or operator shall

establish and implement written

procedures to manage changes (except

for ‘‘replacements in kind’’) to process

chemicals, technology, equipment, and

procedures; and, changes to stationary

sources that affect a covered process.

(b) The procedures shall assure that

the following considerations are

addressed prior to any change:

(1) The technical basis for the

proposed change;

(2) Impact of change on safety and

health;

(3) Modifications to operating

procedures;

(4) Necessary time period for the

change; and,

(5) Authorization requirements for the

proposed change.

(c) Employees involved in operating a

process and maintenance and contract

employees whose job tasks will be

affected by a change in the process shall

be informed of, and trained in, the

change prior to start-up of the process

or affected part of the process.

(d) If a change covered by this

paragraph results in a change in the

process safety information required by

§ 68.65 of this part, such information

shall be updated accordingly.

(e) If a change covered by this

paragraph results in a change in the

operating procedures or practices

required by § 68.69, such procedures or

practices shall be updated accordingly.

§ 68.77 Pre-startup review.

(a) The owner or operator shall

perform a pre-startup safety review for

new stationary sources and for modified

stationary sources when the

modification is significant enough to

require a change in the process safety

information.

(b) The pre-startup safety review shall

confirm that prior to the introduction of

regulated substances to a process:

(1) Construction and equipment is in

accordance with design specifications;

(2) Safety, operating, maintenance,

and emergency procedures are in place

and are adequate;

(3) For new stationary sources, a

process hazard analysis has been

performed and recommendations have

been resolved or implemented before

startup; and modified stationary sources

meet the requirements contained in

management of change, § 68.75.

(4) Training of each employee

involved in operating a process has been

completed.

§ 68.79 Compliance audits.

(a) The owner or operator shall certify

that they have evaluated compliance

with the provisions of this section at

least every three years to verify that the

procedures and practices developed

under the standard are adequate and are

being followed.

(b) The compliance audit shall be

conducted by at least one person

knowledgeable in the process.

(c) A report of the findings of the

audit shall be developed.

(d) The owner or operator shall

promptly determine and document an

appropriate response to each of the

findings of the compliance audit, and

document that deficiencies have been

corrected.

(e) The owner or operator shall retain

the two (2) most recent compliance

audit reports.

§ 68.81 Incident investigation.

(a) The owner or operator shall

investigate each incident which resulted

in, or could reasonably have resulted in

a catastrophic release of a regulated

substance.

(b) An incident investigation shall be

initiated as promptly as possible, but

not later than 48 hours following the

incident.

(c) An incident investigation team

shall be established and consist of at

least one person knowledgeable in the
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31725

process involved, including a contract

employee if the incident involved work

of the contractor, and other persons

with appropriate knowledge and

experience to thoroughly investigate

and analyze the incident.

(d) A report shall be prepared at the

conclusion of the investigation which

includes at a minimum:

(1) Date of incident;

(2) Date investigation began;

(3) A description of the incident;

(4) The factors that contributed to the

incident; and,

(5) Any recommendations resulting

from the investigation.

(e) The owner or operator shall

establish a system to promptly address

and resolve the incident report findings

and recommendations. Resolutions and

corrective actions shall be documented.

(f) The report shall be reviewed with

all affected personnel whose job tasks

are relevant to the incident findings

including contract employees where

applicable.

(g) Incident investigation reports shall

be retained for five years.

§ 68.83 Employee participation.

(a) The owner or operator shall

develop a written plan of action

regarding the implementation of the

employee participation required by this

section.

(b) The owner or operator shall

consult with employees and their

representatives on the conduct and

development of process hazards

analyses and on the development of the

other elements of process safety

management in this rule.

(c) The owner or operator shall

provide to employees and their

representatives access to process hazard

analyses and to all other information

required to be developed under this

rule.

§ 68.85 Hot work permit.

(a) The owner or operator shall issue

a hot work permit for hot work

operations conducted on or near a

covered process.

(b) The permit shall document that

the fire prevention and protection

requirements in 29 CFR 1910.252(a)

have been implemented prior to

beginning the hot work operations; it

shall indicate the date(s) authorized for

hot work; and identify the object on

which hot work is to be performed. The

permit shall be kept on file until

completion of the hot work operations.

§ 68.87 Contractors.

(a) Application. This section applies

to contractors performing maintenance

or repair, turnaround, major renovation,

or specialty work on or adjacent to a

covered process. It does not apply to

contractors providing incidental

services which do not influence process

safety, such as janitorial work, food and

drink services, laundry, delivery or

other supply services.

(b) Owner or operator responsibilities.

(1) The owner or operator, when

selecting a contractor, shall obtain and

evaluate information regarding the

contract owner or operator’s safety

performance and programs.

(2) The owner or operator shall inform

contract owner or operator of the known

potential fire, explosion, or toxic release

hazards related to the contractor’s work

and the process.

(3) The owner or operator shall

explain to the contract owner or

operator the applicable provisions of

subpart E of this part.

(4) The owner or operator shall

develop and implement safe work

practices consistent with § 68.69(d), to

control the entrance, presence, and exit

of the contract owner or operator and

contract employees in covered process

areas.

(5) The owner or operator shall

periodically evaluate the performance of

the contract owner or operator in

fulfilling their obligations as specified

in paragraph (c) of this section.

(c) Contract owner or operator

responsibilities. (1) The contract owner

or operator shall assure that each

contract employee is trained in the work

practices necessary to safely perform

his/her job.

(2) The contract owner or operator

shall assure that each contract employee

is instructed in the known potential fire,

explosion, or toxic release hazards

related to his/her job and the process,

and the applicable provisions of the

emergency action plan.

(3) The contract owner or operator

shall document that each contract

employee has received and understood

the training required by this section.

The contract owner or operator shall

prepare a record which contains the

identity of the contract employee, the

date of training, and the means used to

verify that the employee understood the

training.

(4) The contract owner or operator

shall assure that each contract employee

follows the safety rules of the stationary

source including the safe work practices

required by § 68.69(d).

(5) The contract owner or operator

shall advise the owner or operator of

any unique hazards presented by the

contract owner or operator’s work, or of

any hazards found by the contract

owner or operator’s work.

11. Subpart E is added to read as

follows:

Subpart E—Emergency Response

Sec.

68.90 Applicability.

68.95 Emergency Response Program.

Subpart E—Emergency Response

§ 68.90 Applicability.

(a) Except as provided in paragraph

(b) of this section, the owner or operator

of a stationary source with Program 2

and Program 3 processes shall comply

with the requirements of § 68.95.

(b) The owner or operator of

stationary source whose employees will

not respond to accidental releases of

regulated substances need not comply

with § 68.95 of this part provided that

they meet the following:

(1) For stationary sources with any

regulated toxic substance held in a

process above the threshold quantity,

the stationary source is included in the

community emergency response plan

developed under 42 U.S.C. 11003;

(2) For stationary sources with only

regulated flammable substances held in

a process above the threshold quantity,

the owner or operator has coordinated

response actions with the local fire

department; and

(3) Appropriate mechanisms are in

place to notify emergency responders

when there is a need for a response.

§ 68.95 Emergency response program.

(a) The owner or operator shall

develop and implement an emergency

response program for the purpose of

protecting public health and the

environment. Such program shall

include the following elements:

(1) An emergency response plan,

which shall be maintained at the

stationary source and contain at least

the following elements:

(i) Procedures for informing the

public and local emergency response

agencies about accidental releases;

(ii) Documentation of proper first-aid

and emergency medical treatment

necessary to treat accidental human

exposures; and

(iii) Procedures and measures for

emergency response after an accidental

release of a regulated substance;

(2) Procedures for the use of

emergency response equipment and for

its inspection, testing, and maintenance;

(3) Training for all employees in

relevant procedures; and

(4) Procedures to review and update,

as appropriate, the emergency response

plan to reflect changes at the stationary

source and ensure that employees are

informed of changes.

(b) A written plan that complies with

other Federal contingency plan
31726 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

regulations or is consistent with the

approach in the National Response

Team’s Integrated Contingency Plan

Guidance (‘‘One Plan’’) and that, among

other matters, includes the elements

provided in paragraph (a) of this

section, shall satisfy the requirements of

this section if the owner or operator also

complies with paragraph (c) of this

section.

(c) The emergency response plan

developed under paragraph (a)(1) of this

section shall be coordinated with the

community emergency response plan

developed under 42 U.S.C. 11003. Upon

request of the local emergency planning

committee or emergency response

officials, the owner or operator shall

promptly provide to the local

emergency response officials

information necessary for developing

and implementing the community

emergency response plan.

12. Subpart G is added to read as

follows:

Subpart G—Risk Management Plan

Sec.

68.150 Submission.

68.155 Executive summary.

68.160 Registration.

68.165 Offsite consequence analysis.

68.168 Five-year accident history.

68.170 Prevention program/Program 2.

68.175 Prevention program/Program 3.

68.180 Emergency response program.

68.185 Certification.

68.190 Updates.

Subpart G—Risk Management Plan

§ 68.150 Submission.

(a) The owner or operator shall submit

a single RMP that includes the

information required by §§ 68.155

through 68.185 for all covered

processes. The RMP shall be submitted

in a method and format to a central

point as specified by EPA prior to June

21, 1999.

(b) The owner or operator shall

submit the first RMP no later than the

latest of the following dates:

(1) June 21, 1999;

(2) Three years after the date on

which a regulated substance is first

listed under § 68.130; or

(3) The date on which a regulated

substance is first present above a

threshold quantity in a process.

(c) Subsequent submissions of RMPs

shall be in accordance with § 68.190.

(d) Notwithstanding the provisions of

§§ 68.155 to 68.190, the RMP shall

exclude classified information. Subject

to appropriate procedures to protect

such information from public

disclosure, classified data or

information excluded from the RMP

may be made available in a classified

annex to the RMP for review by Federal

and state representatives who have

received the appropriate security

clearances.

§ 68.155 Executive summary.

The owner or operator shall provide

in the RMP an executive summary that

includes a brief description of the

following elements:

(a) The accidental release prevention

and emergency response policies at the

stationary source;

(b) The stationary source and

regulated substances handled;

(c) The worst-case release scenario(s)

and the alternative release scenario(s),

including administrative controls and

mitigation measures to limit the

distances for each reported scenario;

(d) The general accidental release

prevention program and chemicalspecific prevention steps;

(e) The five-year accident history;

(f) The emergency response program;

and

(g) Planned changes to improve safety.

§ 68.160 Registration.

(a) The owner or operator shall

complete a single registration form and

include it in the RMP. The form shall

cover all regulated substances handled

in covered processes.

(b) The registration shall include the

following data:

(1) Stationary source name, street,

city, county, state, zip code, latitude,

and longitude;

(2) The stationary source Dun and

Bradstreet number;

(3) Name and Dun and Bradstreet

number of the corporate parent

company;

(4) The name, telephone number, and

mailing address of the owner or

operator;

(5) The name and title of the person

or position with overall responsibility

for RMP elements and implementation;

(6) The name, title, telephone number,

and 24-hour telephone number of the

emergency contact;

(7) For each covered process, the

name and CAS number of each

regulated substance held above the

threshold quantity in the process, the

maximum quantity of each regulated

substance or mixture in the process (in

pounds) to two significant digits, the

SIC code, and the Program level of the

process;

(8) The stationary source EPA

identifier;

(9) The number of full-time

employees at the stationary source;

(10) Whether the stationary source is

subject to 29 CFR 1910.119;

(11) Whether the stationary source is

subject to 40 CFR part 355;

(12) Whether the stationary source has

a CAA Title V operating permit; and

(13) The date of the last safety

inspection of the stationary source by a

Federal, state, or local government

agency and the identity of the

inspecting entity.

§ 68.165 Offsite consequence analysis.

(a) The owner or operator shall submit

in the RMP information:

(1) One worst-case release scenario for

each Program 1 process; and

(2) For Program 2 and 3 processes,

one worst-case release scenario to

represent all regulated toxic substances

held above the threshold quantity and

one worst-case release scenario to

represent all regulated flammable

substances held above the threshold

quantity. If additional worst-case

scenarios for toxics or flammables are

required by § 68.25(a)(2)(iii), the owner

or operator shall submit the same

information on the additional

scenario(s). The owner or operator of

Program 2 and 3 processes shall also

submit information on one alternative

release scenario for each regulated toxic

substance held above the threshold

quantity and one alternative release

scenario to represent all regulated

flammable substances held above the

threshold quantity.

(b) The owner or operator shall

submit the following data:

(1) Chemical name;

(2) Physical state (toxics only);

(3) Basis of results (give model name

if used);

(4) Scenario (explosion, fire, toxic gas

release, or liquid spill and

vaporization);

(5) Quantity released in pounds;

(6) Release rate;

(7) Release duration;

(8) Wind speed and atmospheric

stability class (toxics only);

(9) Topography (toxics only);

(10) Distance to endpoint;

(11) Public and environmental

receptors within the distance;

(12) Passive mitigation considered;

and

(13) Active mitigation considered

(alternative releases only);

§ 68.168 Five-year accident history.

The owner or operator shall submit in

the RMP the information provided in

§ 68.42(b) on each accident covered by

§ 68.42(a).

§ 68.170 Prevention program/Program 2.

(a) For each Program 2 process, the

owner or operator shall provide in the

RMP the information indicated in

paragraphs (b) through (k) of this

section. If the same information applies
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31727

to more than one covered process, the

owner or operator may provide the

information only once, but shall

indicate to which processes the

information applies.

(b) The SIC code for the process.

(c) The name(s) of the chemical(s)

covered.

(d) The date of the most recent review

or revision of the safety information and

a list of Federal or state regulations or

industry-specific design codes and

standards used to demonstrate

compliance with the safety information

requirement.

(e) The date of completion of the most

recent hazard review or update.

(1) The expected date of completion

of any changes resulting from the hazard

review;

(2) Major hazards identified;

(3) Process controls in use;

(4) Mitigation systems in use;

(5) Monitoring and detection systems

in use; and

(6) Changes since the last hazard

review.

(f) The date of the most recent review

or revision of operating procedures.

(g) The date of the most recent review

or revision of training programs;

(1) The type of training provided—

classroom, classroom plus on the job, on

the job; and

(2) The type of competency testing

used.

(h) The date of the most recent review

or revision of maintenance procedures

and the date of the most recent

equipment inspection or test and the

equipment inspected or tested.

(i) The date of the most recent

compliance audit and the expected date

of completion of any changes resulting

from the compliance audit.

(j) The date of the most recent

incident investigation and the expected

date of completion of any changes

resulting from the investigation.

(k) The date of the most recent change

that triggered a review or revision of

safety information, the hazard review,

operating or maintenance procedures, or

training.

§ 68.175 Prevention program/Program 3.

(a) For each Program 3 process, the

owner or operator shall provide the

information indicated in paragraphs (b)

through (p) of this section. If the same

information applies to more than one

covered process, the owner or operator

may provide the information only once,

but shall indicate to which processes

the information applies.

(b) The SIC code for the process.

(c) The name(s) of the substance(s)

covered.

(d) The date on which the safety

information was last reviewed or

revised.

(e) The date of completion of the most

recent PHA or update and the technique

used.

(1) The expected date of completion

of any changes resulting from the PHA;

(2) Major hazards identified;

(3) Process controls in use;

(4) Mitigation systems in use;

(5) Monitoring and detection systems

in use; and

(6) Changes since the last PHA.

(f) The date of the most recent review

or revision of operating procedures.

(g) The date of the most recent review

or revision of training programs;

(1) The type of training provided—

classroom, classroom plus on the job, on

the job; and

(2) The type of competency testing

used.

(h) The date of the most recent review

or revision of maintenance procedures

and the date of the most recent

equipment inspection or test and the

equipment inspected or tested.

(i) The date of the most recent change

that triggered management of change

procedures and the date of the most

recent review or revision of

management of change procedures.

(j) The date of the most recent prestartup review.

(k) The date of the most recent

compliance audit and the expected date

of completion of any changes resulting

from the compliance audit;

(l) The date of the most recent

incident investigation and the expected

date of completion of any changes

resulting from the investigation;

(m) The date of the most recent

review or revision of employee

participation plans;

(n) The date of the most recent review

or revision of hot work permit

procedures;

(o) The date of the most recent review

or revision of contractor safety

procedures; and

(p) The date of the most recent

evaluation of contractor safety

performance.

§ 68.180 Emergency response program.

(a) The owner or operator shall

provide in the RMP the following

information:

(1) Do you have a written emergency

response plan?

(2) Does the plan include specific

actions to be taken in response to an

accidental releases of a regulated

substance?

(3) Does the plan include procedures

for informing the public and local

agencies responsible for responding to

accidental releases?

(4) Does the plan include information

on emergency health care?

(5) The date of the most recent review

or update of the emergency response

plan;

(6) The date of the most recent

emergency response training for

employees.

(b) The owner or operator shall

provide the name and telephone

number of the local agency with which

the plan is coordinated.

(c) The owner or operator shall list

other Federal or state emergency plan

requirements to which the stationary

source is subject.

§ 68.185 Certification.

(a) For Program 1 processes, the

owner or operator shall submit in the

RMP the certification statement

provided in § 68.12(b)(4).

(b) For all other covered processes,

the owner or operator shall submit in

the RMP a single certification that, to

the best of the signer’s knowledge,

information, and belief formed after

reasonable inquiry, the information

submitted is true, accurate, and

complete.

§ 68.190 Updates.

(a) The owner or operator shall review

and update the RMP as specified in

paragraph (b) of this section and submit

it in a method and format to a central

point specified by EPA prior to June 21,

1999.

(b) The owner or operator of a

stationary source shall revise and

update the RMP submitted under

§ 68.150 as follows:

(1) Within five years of its initial

submission or most recent update

required by paragraphs (b)(2) through

(b)(7) of this section, whichever is later.

(2) No later than three years after a

newly regulated substance is first listed

by EPA;

(3) No later than the date on which a

new regulated substance is first present

in an already covered process above a

threshold quantity;

(4) No later than the date on which a

regulated substance is first present

above a threshold quantity in a new

process;

(5) Within six months of a change that

requires a revised PHA or hazard

review;

(6) Within six months of a change that

requires a revised offsite consequence

analysis as provided in § 68.36; and

(7) Within six months of a change that

alters the Program level that applied to

any covered process.

(c) If a stationary source is no longer

subject to this part, the owner or

operator shall submit a revised
31728 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

registration to EPA within six months

indicating that the stationary source is

no longer covered.

13. Subpart H is added to read as

follows:

Subpart H—Other Requirements

Sec.

§ 68.200 Recordkeeping.

§ 68.210 Availability of information to the

public.

68.215 Permit content and air permitting

authority or designated agency

requirements.

68.220 Audits.

Subpart H—Other Requirements

§ 68.200 Recordkeeping.

The owner or operator shall maintain

records supporting the implementation

of this part for five years unless

otherwise provided in Subpart D of this

part.

§ 68.210 Availability of information to the

public.

(a) The RMP required under subpart

G of this part shall be available to the

public under 42 U.S.C. 7414(c).

(b) The disclosure of classified

information by the Department of

Defense or other Federal agencies or

contractors of such agencies shall be

controlled by applicable laws,

regulations, or executive orders

concerning the release of classified

information.

§ 68.215 Permit content and air permitting

authority or designated agency

requirements.

(a) These requirements apply to any

stationary source subject to this part 68

and parts 70 or 71 of this Chapter. The

40 CFR part 70 or part 71 permit for the

stationary source shall contain:

(1) A statement listing this part as an

applicable requirement;

(2) Conditions that require the source

owner or operator to submit:

(i) A compliance schedule for meeting

the requirements of this part by the date

provided in § 68.10(a) or;

(ii) As part of the compliance

certification submitted under 40 CFR

70.6(c)(5), a certification statement that

the source is in compliance with all

requirements of this part, including the

registration and submission of the RMP.

(b) The owner or operator shall

submit any additional relevant

information requested by the air

permitting authority or designated

agency.

(c) For 40 CFR part 70 or part 71

permits issued prior to the deadline for

registering and submitting the RMP and

which do not contain permit conditions

described in paragraph (a) of this

section, the owner or operator or air

permitting authority shall initiate

permit revision or reopening according

to the procedures of 40 CFR 70.7 or 71.7

to incorporate the terms and conditions

consistent with paragraph (a) of this

section.

(d) The state may delegate the

authority to implement and enforce the

requirements of paragraph (e) of this

section to a state or local agency or

agencies other than the air permitting

authority. An up-to-date copy of any

delegation instrument shall be

maintained by the air permitting

authority. The state may enter a written

agreement with the Administrator under

which EPA will implement and enforce

the requirements of paragraph (e) of this

section.

(e) The air permitting authority or the

agency designated by delegation or

agreement under paragraph (d) of this

section shall, at a minimum:

(1) Verify that the source owner or

operator has registered and submitted

an RMP or a revised plan when required

by this part;

(2) Verify that the source owner or

operator has submitted a source

certification or in its absence has

submitted a compliance schedule

consistent with paragraph (a)(2) of this

section;

(3) For some or all of the sources

subject to this section, use one or more

mechanisms such as, but not limited to,

a completeness check, source audits,

record reviews, or facility inspections to

ensure that permitted sources are in

compliance with the requirements of

this part; and

(4) Initiate enforcement action based

on paragraphs (e)(1) and (e)(2) of this

section as appropriate.

§ 68.220 Audits.

(a) In addition to inspections for the

purpose of regulatory development and

enforcement of the Act, the

implementing agency shall periodically

audit RMPs submitted under subpart G

of this part to review the adequacy of

such RMPs and require revisions of

RMPs when necessary to ensure

compliance with subpart G of this part.

(b) The implementing agency shall

select stationary sources for audits

based on any of the following criteria:

(1) Accident history of the stationary

source;

(2) Accident history of other

stationary sources in the same industry;

(3) Quantity of regulated substances

present at the stationary source;

(4) Location of the stationary source

and its proximity to the public and

environmental receptors;

(5) The presence of specific regulated

substances;

(6) The hazards identified in the RMP;

and

(7) A plan providing for neutral,

random oversight.

(c) Exemption from audits. A

stationary source with a Star or Merit

ranking under OSHA’s voluntary

protection program shall be exempt

from audits under paragraph (b)(2) and

(b)(7) of this section.

(d) The implementing agency shall

have access to the stationary source,

supporting documentation, and any area

where an accidental release could occur.

(e) Based on the audit, the

implementing agency may issue the

owner or operator of a stationary source

a written preliminary determination of

necessary revisions to the stationary

source’s RMP to ensure that the RMP

meets the criteria of subpart G of this

part. The preliminary determination

shall include an explanation for the

basis for the revisions, reflecting

industry standards and guidelines (such

as AIChE/CCPS guidelines and ASME

and API standards) to the extent that

such standards and guidelines are

applicable, and shall include a timetable

for their implementation.

(f) Written response to a preliminary

determination.

(1) The owner or operator shall

respond in writing to a preliminary

determination made in accordance with

paragraph (e) of this section. The

response shall state the owner or

operator will implement the revisions

contained in the preliminary

determination in accordance with the

timetable included in the preliminary

determination or shall state that the

owner or operator rejects the revisions

in whole or in part. For each rejected

revision, the owner or operator shall

explain the basis for rejecting such

revision. Such explanation may include

substitute revisions.

(2) The written response under

paragraph (f)(1) of this section shall be

received by the implementing agency

within 90 days of the issue of the

preliminary determination or a shorter

period of time as the implementing

agency specifies in the preliminary

determination as necessary to protect

public health and the environment.

Prior to the written response being due

and upon written request from the

owner or operator, the implementing

agency may provide in writing

additional time for the response to be

received.

(g) After providing the owner or

operator an opportunity to respond

under paragraph (f) of this section, the

implementing agency may issue the

owner or operator a written final

determination of necessary revisions to
Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations 31729

the stationary source’s RMP. The final

determination may adopt or modify the

revisions contained in the preliminary

determination under paragraph (e) of

this section or may adopt or modify the

substitute revisions provided in the

response under paragraph (f) of this

section. A final determination that

adopts a revision rejected by the owner

or operator shall include an explanation

of the basis for the revision. A final

determination that fails to adopt a

substitute revision provided under

paragraph (f) of this section shall

include an explanation of the basis for

finding such substitute revision

unreasonable.

(h) Thirty days after completion of the

actions detailed in the implementation

schedule set in the final determination

under paragraph (g) of this section, the

owner or operator shall be in violation

of subpart G of this part and this section

unless the owner or operator revises the

RMP prepared under subpart G of this

part as required by the final

determination, and submits the revised

RMP as required under § 68.150.

(i) The public shall have access to the

preliminary determinations, responses,

and final determinations under this

section in a manner consistent with

§ 68.210.

(j) Nothing in this section shall

preclude, limit, or interfere in any way

with the authority of EPA or the state to

exercise its enforcement, investigatory,

and information gathering authorities

concerning this part under the Act.

14. Part 68 Appendix A is added to

read as follows:

APPENDIX A TO PART 68—TABLE OF TOXIC ENDPOINTS

[As defined in § 68.22 of this part]

CAS No. Chemical name

Toxic

endpoint

(mg/L)

107–02–8 ............................. Acrolein [2-Propenal] ........................................................................................................................... 0.0011

107–13–1 ............................. Acrylonitrile [2-Propenenitrile] ............................................................................................................. 0.076

814–68–6 ............................. Acrylyl chloride [2-Propenoyl chloride] ................................................................................................ 0.00090

107–18–6 ............................. Allyl alcohol [2-Propen-1-ol] ................................................................................................................ 0.036

107–11–9 ............................. Allylamine [2-Propen-1-amine] ............................................................................................................ 0.0032

7664–41–7 ........................... Ammonia (anhydrous) ......................................................................................................................... 0.14

7664–41–7 ........................... Ammonia (conc 20% or greater) ......................................................................................................... 0.14

7784–34–1 ........................... Arsenous trichloride ............................................................................................................................. 0.010

7784–42–1 ........................... Arsine .................................................................................................................................................. 0.0019

10294–34–5 ......................... Boron trichloride [Borane, trichloro-] ................................................................................................... 0.010

7637–07–2 ........................... Boron trifluoride [Borane, trifluoro-] ..................................................................................................... 0.028

353–42–4 ............................. Boron trifluoride compound with methyl ether (1:1) [Boron, trifluoro[oxybis[methane]]-, T-4 ............. 0.023

7726–95–6 ........................... Bromine ............................................................................................................................................... 0.0065

75–15–0 ............................... Carbon disulfide .................................................................................................................................. 0.16

7782–50–5 ........................... Chlorine ............................................................................................................................................... 0.0087

10049–04–4 ......................... Chlorine dioxide [Chlorine oxide (ClO2)] ............................................................................................ 0.0028

67–66–3 ............................... Chloroform [Methane, trichloro-] ......................................................................................................... 0.49

542–88–1 ............................. Chloromethyl ether [Methane, oxybis[chloro-] .................................................................................... 0.00025

107–30–2 ............................. Chloromethyl methyl ether [Methane, chloromethoxy-] ...................................................................... 0.0018

4170–30–3 ........................... Crotonaldehyde [2-Butenal] ................................................................................................................. 0.029

123–73–9 ............................. Crotonaldehyde, (E)-, [2-Butenal, (E)-] ............................................................................................... 0.029

506–77–4 ............................. Cyanogen chloride .............................................................................................................................. 0.030

108–91–8 ............................. Cyclohexylamine [Cyclohexanamine] .................................................................................................. 0.16

19287–45–7 ......................... Diborane .............................................................................................................................................. 0.0011

75–78–5 ............................... Dimethyldichlorosilane [Silane, dichlorodimethyl-] .............................................................................. 0.026

57–14–7 ............................... 1,1-Dimethylhydrazine [Hydrazine, 1,1-dimethyl-] .............................................................................. 0.012

106–89–8 ............................. Epichlorohydrin [Oxirane, (chloromethyl)-] .......................................................................................... 0.076

107–15–3 ............................. Ethylenediamine [1,2-Ethanediamine] ................................................................................................. 0.49

151–56–4 ............................. Ethyleneimine [Aziridine] ..................................................................................................................... 0.018

75–21–8 ............................... Ethylene oxide [Oxirane] ..................................................................................................................... 0.090

7782–41–4 ........................... Fluorine ................................................................................................................................................ 0.0039

50–00–0 ............................... Formaldehyde (solution) ...................................................................................................................... 0.012

110–00–9 ............................. Furan ................................................................................................................................................... 0.0012

302–01–2 ............................. Hydrazine ............................................................................................................................................ 0.011

7647–01–0 ........................... Hydrochloric acid (conc 30% or greater) ............................................................................................ 0.030

74–90–8 ............................... Hydrocyanic acid ................................................................................................................................. 0.011

7647–01–0 ........................... Hydrogen chloride (anhydrous) [Hydrochloric acid] ............................................................................ 0.030

7664–39–3 ........................... Hydrogen fluoride/Hydrofluoric acid (conc 50% or greater) [Hydrofluoric acid] ................................. 0.016

7783–07–5 ........................... Hydrogen selenide .............................................................................................................................. 0.00066

7783–06–4 ........................... Hydrogen sulfide ................................................................................................................................. 0.042

13463–40–6 ......................... Iron, pentacarbonyl- [Iron carbonyl (Fe(CO)5), (TB–5–11)-] .............................................................. 0.00044

78–82–0 ............................... Isobutyronitrile [Propanenitrile, 2-methyl-] ........................................................................................... 0.14

108–23–6 ............................. Isopropyl chloroformate [Carbonochloride acid, 1-methylethyl ester] ................................................. 0.10

126–98–7 ............................. Methacrylonitrile [2-Propenenitrile, 2-methyl-] ..................................................................................... 0.0027

74–87–3 ............................... Methyl chloride [Methane, chloro-] ...................................................................................................... 0.82

79–22–1 ............................... Methyl chloroformate [Carbonochloridic acid, methylester] ................................................................ 0.0019

60–34–4 ............................... Methyl hydrazine [Hydrazine, methyl-] ................................................................................................ 0.0094

624–83–9 ............................. Methyl isocyanate [Methane, isocyanato-] .......................................................................................... 0.0012

74–93–1 ............................... Methyl mercaptan [Methanethiol] ........................................................................................................ 0.049

556–64–9 ............................. Methyl thiocyanate [Thiocyanic acid, methyl ester] ............................................................................ 0.085

75–79–6 ............................... Methyltrichlorosilane [Silane, trichloromethyl-] .................................................................................... 0.018

13463–39–3 ......................... Nickel carbonyl .................................................................................................................................... 0.00067

7697–37–2 ........................... Nitric acid (conc 80% or greater) ........................................................................................................ 0.026
31730 Federal Register / Vol. 61, No. 120 / Thursday, June 20, 1996 / Rules and Regulations

APPENDIX A TO PART 68—TABLE OF TOXIC ENDPOINTS—Continued

[As defined in § 68.22 of this part]

CAS No. Chemical name

Toxic

endpoint

(mg/L)

10102–43–9 ......................... Nitric oxide [Nitrogen oxide (NO)] ....................................................................................................... 0.031

8014–95–7 ........................... Oleum (Fuming Sulfuric acid) [Sulfuric acid, mixture with sulfur trioxide] .......................................... 0.010

79–21–0 ............................... Peracetic acid [Ethaneperoxoic acid] .................................................................................................. 0.0045

594–42–3 ............................. Perchloromethylmercaptan [Methanesulfenyl chloride, trichloro-] ...................................................... 0.0076

75–44–5 ............................... Phosgene [Carbonic dichloride] .......................................................................................................... 0.00081

7803–51–2 ........................... Phosphine ............................................................................................................................................ 0.0035

10025–87–3 ......................... Phosphorus oxychloride [Phosphoryl chloride] ................................................................................... 0.0030

7719–12–2 ........................... Phosphorus trichloride [Phosphorous trichloride] ............................................................................... 0.028

110–89–4 ............................. Piperidine ............................................................................................................................................. 0.022

107–12–0 ............................. Propionitrile [Propanenitrile] ................................................................................................................ 0.0037

109–61–5 ............................. Propyl chloroformate [Carbonochloridic acid, propylester] ................................................................. 0.010

75–55–8 ............................... Propyleneimine [Aziridine, 2-methyl-] .................................................................................................. 0.12

75–56–9 ............................... Propylene oxide [Oxirane, methyl-] ..................................................................................................... 0.59

7446–09–5 ........................... Sulfur dioxide (anhydrous) .................................................................................................................. 0.0078

7783–60–0 ........................... Sulfur tetrafluoride [Sulfur fluoride (SF4), (T-4)-] ................................................................................ 0.0092

7446–11–9 ........................... Sulfur trioxide ...................................................................................................................................... 0.010

75–74–1 ............................... Tetramethyllead [Plumbane, tetramethyl-] .......................................................................................... 0.0040

509–14–8 ............................. Tetranitromethane [Methane, tetranitro-] ............................................................................................ 0.0040

7750–45–0 ........................... Titanium tetrachloride [Titanium chloride (TiCl4) (T-4)-] ..................................................................... 0.020

584–84–9 ............................. Toluene 2,4-diisocyanate [Benzene, 2,4-diisocyanato-1-methyl-] ...................................................... 0.0070

91–08–7 ............................... Toluene 2,6-diisocyanate [Benzene, 1,3-diisocyanato-2-methyl-] ...................................................... 0.0070

26471–62–5 ......................... Toluene diisocyanate (unspecified isomer) [Benzene, 1,3-diisocyanatomethyl-] ............................... 0.0070

75–77–4 ............................... Trimethylchlorosilane [Silane, chlorotrimethyl-] ................................................................................... 0.050

108–05–4 ............................. Vinyl acetate monomer [Acetic acid ethenyl ester] ............................................................................. 0.26

[FR Doc. 96–14597 Filed 6–19–96; 8:45 am]

BILLING CODE 6560–50–M

40 CFR Part 68

[FRL–5516–6]

List of Regulated Substances and

Thresholds for Accidental Release

Prevention; Final Rule—Stay of

Effectiveness

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: On April 15, 1996, the

Environmental Protection Agency (EPA)

proposed several modifications to

provisions of the rule listing regulated

substances and establishing threshold

quantities under section 112(r) of the

Clean Air Act as amended (List Rule

Amendments). The proposed List Rule

Amendments, if promulgated in a final

rule, would clarify or establish that part

68 does not apply to several types of

processes and sources. In addition, EPA

proposed, pursuant to Clean Air Act

section 301(a)(1), 42 U.S.C. 7601(a)(1),

to stay the effectiveness of provisions

that would be affected by the proposed

List Rule Amendments, for so long as

necessary to take final action on the

proposed List Rule Amendments. EPA

received no adverse public comment on

the short-term stay. Today EPA is

amending part 68 to promulgate the

stay, under which owners and operators

of processes and sources that EPA has

proposed not be subject to part 68

would not become subject to part 68

until EPA has determined whether to

proceed with the List Rule

Amendments. The effect of today’s

action will be to give owners and

operators of sources affected by the

proposed List Rule Amendments the

same amount of time to achieve

compliance with the requirements of

part 68 as owners and operators of other

sources in the event that EPA does not

proceed with the List Rule Amendments

as proposed.

EFFECTIVE DATE: June 20, 1996.

FOR FURTHER INFORMATION CONTACT:

Vanessa Rodriguez, Chemical Engineer,

Chemical Emergency Preparedness and

Prevention Office, Environmental

Protection Agency (5101), 401 M St.

SW., Washington, DC 20460, (202) 260–

7913.

SUPPLEMENTARY INFORMATION:

I. Background and Discussion

On April 15, 1996, EPA proposed

amendments to regulations in 40 CFR

part 68 that, inter alia, list regulated

substances and establish threshold

quantities for the accident prevention

provisions under Clean Air Act section

112(r). 61 FR 16598. Readers should

refer to that document for a complete

discussion of the background of the rule

affected. The amendments proposed in

that document (‘‘List Rule

Amendments’’) would, if promulgated,

delete explosives from the list of

regulated substances, modify threshold

provisions to exclude flammable

substances in gasoline and in naturally

occurring hydrocarbon mixtures prior to

entry into a processing unit or plant,

modify the threshold provisions for

other flammable mixtures, and clarify

the definition of stationary source with

respect to transportation, storage

incident to transportation, and naturally

occurring hydrocarbon reservoirs.

On the same date, EPA proposed to

stay provisions of part 68 that were

affected by the proposed List Rule

Amendments until such time as EPA

takes final action on the proposed List

Rule Amendments. 61 FR 16606. EPA

proposed a stay of 18 months because it

believed such a period would be

sufficient to take final action on the List

Rule Amendments and believed that

owners and operators affected by the

List Rule Amendments should have the

same certainty about whether they are

subject to part 68 as owners and

operators of other sources have when

they begin their regulatory compliance

planning. In general, owners and

operators of sources subject to the ‘‘Risk

Management Program’’ final rule

promulgated elsewhere in today’s

Federal Register, have three years from

today to achieve compliance with part

68.