Vol. 79 Thursday, 

No. 147 July 31, 2014 

Part VI 

Environmental Protection Agency 

40 CFR Part 68 

Accidental Release Prevention Requirements: Risk Management Programs 

Under the Clean Air Act, Section 112(r)(7); Proposed Rule 

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44604 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 68 

[EPA–HQ–OEM–2014–0328; FRL–9911–62– 

OSWER] 

RIN 2050–ZA07 

Accidental Release Prevention 

Requirements: Risk Management 

Programs Under the Clean Air Act, 

Section 112(r)(7) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Request for information. 

SUMMARY: The Environmental Protection 

Agency (EPA), in response to Executive 

Order 13650, requests comment on 

potential revisions to its Risk 

Management Program regulations and 

related programs. In this Request for 

Information (RFI), the Agency asks for 

information and data on specific 

regulatory elements and process safety 

management approaches, the public and 

environmental health and safety risks 

they address, and the costs and burdens 

they may entail. The EPA will use the 

information received in response to this 

RFI to inform what action, if any, it may 

take. 

DATES: Comments and additional 

material must be received on or before 

October 29, 2014. 

ADDRESSES: Submit comments and 

additional materials, identified by 

docket EPA–HQ–OEM–2014–0328 by 

any of the following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• Mail: Send comments to: OSWER 

Docket, EPA Docket Center, Mail Code 

2822–1T, Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460, Attention 

Docket ID No. EPA–HQ–OEM–2014– 

0328. Please include two copies of your 

comments. 

• Hand delivery: Deliver two copies 

of your comments to: Environmental 

Protection Agency, EPA Docket Center, 

Room 3334, 1301 Constitution Avenue 

NW., Washington, DC, Attention Docket 

ID No. EPA–HQ–OEM–2014–0328. Such 

deliveries are only accepted during the 

docket’s normal hours of operation and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OEM–2014– 

0328. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you submit an 

electronic comment, the EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If the EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, the EPA may not 

be able to consider your comment. 

Electronic files should not include 

special characters or any form of 

encryption and be free of any defects or 

viruses. For additional information 

about the EPA’s public docket, visit the 

EPA Docket Center homepage at: http:// 

www.epa.gov/dockets. 

Docket: The EPA has established a 

docket for this information request 

under Docket ID Number EPA–HQ– 

OEM–2014–0328. All documents in the 

docket are listed in the regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in regulations.gov 

or in hard copy at the EPA Docket 

Center, EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the EPA 

Docket Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

more detailed information on specific 

aspects of this RFI, contact Mr. James 

Belke, Chemical Engineer, United States 

Environmental Protection Agency, 

Office of Emergency Management, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460; telephone: (202) 564–8023; 

email: belke.jim@epa.gov. 

Electronic copies of this RFI and 

related news releases are available at 

EPA’s Web page at http://www.epa.gov/ 

emergencies. Copies of this RFI are also 

available at http://www.regulations.gov. 

SUPPLEMENTARY INFORMATION: Here are 

the contents of today’s notice. 

I. Background 

A. Statutory Authority 

B. Executive Order 13650 

C. EPA Risk Management Program 

Regulations 

II. Discussion and Request for Data, 

Information, and Comments 

A. Introduction 

B. Potential Costs and Economic Effects of 

Regulatory and Policy Changes 

C. Items in OSHA’s RFI Relevant to EPA’s 

RMP Regulation 

1. Update the List of Regulated Substances 

a. Adding Other Toxic or Flammable 

Substances 

b. Adding High and/or Low Explosives 

c. Adding Ammonium Nitrate 

d. Adding Reactive Substances and 

Reactivity Hazards 

e. Adding Other Categories of Substances 

f. Removing Certain Substances From the 

List or Raising Their Threshold Quantity 

g. Lowering the Threshold Quantity for 

Substances Currently on the List 

2. Additional Risk Management Program 

Elements 

3. Define and Require Evaluation of 

Updates to Applicable Recognized and 

Generally Accepted Good Engineering 

Practices 

4. Extend Mechanical Integrity 

Requirements To Cover Any SafetyCritical Equipment 

5. Require Owners and Operators To 

Manage Organizational Changes 

6. Require Third-Party Compliance Audits 

7. Effects of OSHA PSM Coverage on RMP 

Applicability 

D. Additional Items for Which EPA 

Requests Information 

1. Safer Technology and Alternatives 

Analysis 

2. Emergency Drills To Test a Source’s 

Emergency Response Program or Plan 

3. Automated Detection and Monitoring for 

Releases of Regulated Substances 

4. Additional Stationary Source Location 

Requirements 

5. Compliance With Emergency Response 

Program Requirements in Coordination 

With Local Responders 

6. Incident Investigation and Accident 

History Requirements 

7. Worst Case Release Scenario Quantity 

Requirements for Processes Involving 

Numerous Small Vessels Stored Together 

8. Public Disclosure of Information To 

Promote Regulatory Compliance and 

Improve Community Understanding of 

Chemical Risks 

9. Threshold Quantities and Off-Site 

Consequence Analysis Endpoints for 

Regulated Substances Based on Acute 

Exposure Guideline Level Toxicity 

Values 

10. Program 3 NAICS Codes Based on RMP 

Accident History Data 

11. The ‘‘Safety Case’’ Regulatory Model 

12. Streamlining RMP Requirements 

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Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 44605 

1 40 CFR part 68 is titled, ‘‘Chemical Accident 

Prevention Provisions,’’ but is more commonly 

known as the ‘‘RMP regulation,’’ the ‘‘Risk 

Management Program,’’ or ‘‘the RMP.’’ The RMP 

may also refer to the document required to be 

submitted under subpart F of 40 CFR part 68, the 

Risk Management Plan. This document generally 

uses RMP or Risk Management Program to refer to 

40 CFR part 68. See http://www.epa.gov/oem/

content/rmp/ for more information on the Risk 

Management Program. 

2 Documents and information related to 

development of the list rule can be found in the 

EPA docket for the rulemaking, docket number 

A–91–74. 

3 Documents and information related to 

development of the RMP regulation can be found 

in EPA docket number A–91–73. 

4The 40 CFR Part 68 RMP regulations apply to 

owners and operators of stationary sources that 

have more than a TQ of a regulated substance 

within a process. The regulations do not apply to 

chemical hazards other than listed substances held 

above a TQ within a regulated process. 

I. Background 

A. Statutory Authority 

The statutory authority for this action 

is provided by section 112(r) of the 

Clean Air Act (CAA) as amended (42 

U.S.C. 7412(r)) and by the Emergency 

Planning and Community Right-toKnow Act of 1986 (EPCRA), (42 U.S.C. 

11001–11050), which was enacted as 

Title III of the Superfund Amendments 

and Reauthorization Act of 1986 (Pub. 

L. 99– 499), (SARA). 

B. Executive Order 13650 

On August 1, 2013, President Obama 

signed Executive Order 13650, entitled 

Improving Chemical Facility Safety and 

Security. The Executive Order 

establishes the Chemical Facility Safety 

and Security Working Group (‘‘Working 

Group’’), co-chaired by the Secretary of 

Homeland Security, the Administrator 

of EPA, and the Secretary of Labor or 

their designated representatives at the 

Assistant Secretary level or higher, and 

composed of senior representatives of 

other Federal departments, agencies, 

and offices. The Executive Order 

requires the Working Group to carry out 

a number of tasks whose overall aim is 

to prevent chemical accidents, such as 

the explosion that occurred at the West 

Fertilizer facility in West, Texas, on 

April 17, 2013. 

Section 6 of the Executive Order is 

entitled ‘‘Policy, Regulation, and 

Standards Modernization’’, and among 

other things, requires certain federal 

agencies to consider possible changes to 

existing chemical safety and security 

regulations. Specifically, section 6(e)(ii) 

of the Executive Order requires the 

Secretary of Labor to issue a RFI 

designed to identify issues related to 

modernization of the Process Safety 

Management (PSM) standard and 

related standards necessary to meet the 

goal of preventing major chemical 

accidents. The Occupational Safety and 

Health Administration (OSHA) 

published a RFI responsive to this 

portion of the order on December 9, 

2013 (78 FR 73756; http://www.gpo.gov/ 

fdsys/pkg/FR-2013-12-09/pdf/2013- 

29197.pdf). The OSHA RFI requested 

information on 17 potential policy and 

rulemaking topics relating to 

modernization of the PSM standard and 

other related OSHA standards. 

While Executive Order 13650 does 

not specifically direct EPA to publish a 

similar RFI, EPA believes it is an 

appropriate step for several reasons. 

First, section 6(a)(i) of the order requires 

the Working Group to develop options 

for improved chemical facility safety 

and security that identify 

‘‘improvements to existing risk 

management practices through agency 

programs, private sector initiatives, 

Government guidance, outreach, 

standards, and regulations.’’ With regard 

to EPA specifically, section 6(c) of the 

order requires the Administrator of EPA 

and the Secretary of Labor to ‘‘review 

the chemical hazards covered by the 

Risk Management Program (RMP) and 

the Process Safety Management 

Standard (PSM) and determine if the 

RMP or PSM can and should be 

expanded to address additional 

regulated substances and types of 

hazards.’’ Information collected through 

this action will inform the results of this 

review. 

Second, the EPA RMP regulation 

closely tracks the accident prevention 

measures contained in the OSHA PSM 

standard because Section 112(r)(7)(D) of 

the CAA requires EPA to coordinate the 

RMP regulation with ‘‘any requirements 

established for comparable purposes’’ 

by OSHA. Consequently, the OSHA 

PSM standard and EPA RMP regulation 

are closely aligned in content, policy 

interpretations, Agency guidance, and 

enforcement. Since the inception of 

these regulations, EPA and OSHA have 

coordinated closely on their 

implementation in order to minimize 

regulatory burden and avoid conflicting 

requirements for regulated facilities. For 

example, owners and operators of RMPcovered processes also subject to the 

OSHA PSM standard will generally 

have met their RMP accident prevention 

program obligations if they have 

properly implemented their PSM 

program. This RFI will allow EPA to 

evaluate any potential updates to the 

RMP regulation in parallel to OSHA’s 

evaluation of potential updates to the 

PSM standard. Lastly, this RFI addresses 

a number of added topics in which the 

Agency is interested that are not raised 

in the OSHA RFI. 

Topics are divided into two 

categories—those addressed in parallel 

to the OSHA RFI, and additional topics 

not raised by OSHA. Readers are 

encouraged to review the OSHA RFI in 

detail, as this notice does not always 

reiterate OSHA’s full justification on the 

same or similar topics. 

Information collected under this RFI 

will inform EPA as it considers what 

actions, if any, may be necessary to 

update the RMP regulations. It does not 

commit the Agency to rulemaking. If the 

Agency elects to undertake rulemaking, 

it will do so in accordance with 

established rulemaking procedures as 

set forth in the Clean Air Act section 

307(d), 42 U.S.C. 7607(d). 

C. EPA Risk Management Program 

Regulations 

Both EPA’s 40 CFR part 68 RMP 

regulation 1 and OSHA’s 29 CFR 

1910.119 PSM standard were authorized 

in the Clean Air Act (CAA) 

Amendments of 1990 (1990 CAAA), in 

response to a number of catastrophic 

chemical accidents occurring 

worldwide that had resulted in public 

and worker fatalities and injuries, 

environmental damage, and other 

community impacts. OSHA published 

the PSM standard in 1992 (57 FR 6356, 

February 24, 1992), as required by 

section 304 of the 1990 CAAA, using its 

authority under 29 U.S.C. 653. 

The 1990 CAAA added to the 

accidental release provisions under 

CAA section 112(r). The statute required 

EPA to develop a list of at least 100 

regulated substances for accident 

prevention and related thresholds (CAA 

section 112(r)(3)–(5)), authorized 

accident prevention regulations (CAA 

section 112(r)(7)(A)), and required EPA 

to develop ‘‘reasonable regulations’’ 

requiring facilities with over a threshold 

quantity (TQ) of a regulated substance to 

undertake accident prevention steps and 

submit a ‘‘risk management plan’’ to 

various local, state, and federal planning 

entities (CAA section 112(r)(7)(B)). 

EPA published the RMP regulation in 

two stages. The Agency published the 

list of regulated substances and TQs in 

1994 (59 FR 4478, January 31, 1994) (the 

‘‘list rule’’) 2 and published the RMP 

final regulation, containing risk 

management requirements for covered 

sources, in 1996 (61 FR 31668, June 20, 

1996).3 4 Both the OSHA PSM standard 

and the EPA RMP regulation aim to 

prevent or minimize the consequences 

of accidental chemical releases through 

implementation of management 

program elements that integrate 

technologies, procedures, and 

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44606 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

management practices. In addition to 

requiring implementation of 

management program elements, the 

RMP regulation requires covered 

sources to submit a document 

summarizing the source’s risk 

management program—called a risk 

management plan—to EPA. The RMP 

regulation required covered sources to 

comply with its requirements and 

submit initial risk management plans to 

EPA by June 21, 1999. 

The RMP establishes three ‘‘program 

levels’’ for regulated processes: 

Program level 1 applies to processes 

that would not affect the public in the 

case of a worst-case release and with no 

accidents with specific off-site 

consequences within the past five years. 

Program 1 imposes limited hazard 

assessment requirements and minimal 

prevention and emergency response 

requirements. 

Program level 2 applies to processes 

not eligible for Program 1 or subject to 

Program 3, and imposes streamlined 

prevention program requirements, 

including safety information, hazard 

review, operating procedures, training, 

maintenance, compliance audits, and 

incident investigation elements. 

Program 2 also imposes additional 

hazard assessment, management, and 

emergency response requirements. 

Program level 3 applies to processes 

not eligible for Program 1 and either 

subject to OSHA’s PSM standard under 

federal or state OSHA programs or 

classified in one of ten specified North 

American Industrial Classification 

System (NAICS) codes listed at 40 CFR 

68.10(d)(1). Program 3 imposes elements 

nearly identical to those in OSHA’s 

PSM standard as the accident 

prevention program. The Program 3 

prevention program includes 

requirements relating to process safety 

information, process hazard analysis, 

operating procedures, training, 

mechanical integrity, management of 

change, pre-startup review, compliance 

audits, incident investigations, 

employee participation, hot work 

permits, and contractors. Program 3 also 

imposes the same hazard assessment, 

management, and emergency response 

requirements that are required for 

Program 2. 

EPA believes the RMP regulation has 

been effective in preventing and 

mitigating chemical accidents in the 

United States and protecting human 

health and the environment from 

chemical hazards. However, major 

incidents, such as the West, Texas 

explosion, highlight the importance of 

reviewing and evaluating current 

practices and regulatory requirements, 

and applying lessons learned to advance 

process safety management where 

needed. This RFI seeks public input on 

process safety and risk management 

issues relevant to the RMP regulation to 

inform potential actions that may 

further reduce the number of chemical 

accidents within the United States. 

II. Discussion and Request for Data, 

Information, and Comments 

A. Introduction 

This section discusses each RMP item 

and provides specific questions to 

collect data, information, and 

comments. The Agency invites the 

public to respond to any questions for 

which they have specific knowledge, 

data, or information, regardless of their 

involvement in RMP-covered 

operations. Note that at several points in 

this document, we discuss whether 

modifying, clarifying, strengthening, or 

making more explicit a requirement is 

an appropriate way to address an issue. 

The solicitation of comment on these 

matters should not be read as EPA, 

OSHA, the Department of Justice, or any 

other federal entity suggesting legal 

ambiguity in the relevant regulations or 

recognizing a particular interpretation 

by any regulated entity of either CAA 

section 112(r) or the RMP regulation. 

For purposes of this comment 

solicitation, exploration of ways to 

further clarify particular aspects of the 

current regulations should not be 

viewed as an indication that the current 

language is inadequate, or in any way 

undermines our ability to enforce these 

regulations as written. 

B. Potential Costs and Economic Effects 

of Regulatory and Policy Changes 

As part of this RFI, the Agency is 

requesting data and information on the 

potential costs and economic impacts of 

amending regulatory requirements 

relevant to the various issues identified, 

including any possible significant 

economic impact on a substantial 

number of small entities. EPA requests 

that commenters discuss potential 

economic impacts, whenever possible, 

in terms of quantitative benefits (e.g., 

reductions in injuries, fatalities, and 

property damage), costs (e.g., 

compliance costs, including paperwork 

burden, or decreases in production), and 

offsets to costs (e.g., less need for 

maintenance and repairs, less loss or 

waste of product) when responding to 

the questions in this RFI. EPA also 

requests that commenters provide data 

and information on economic effects 

that any amendments may have on 

market conditions or services (e.g., 

market structure and concentration), 

and in particular, any special 

circumstances related to small entities, 

such as potential market-structure 

disruptions or uniquely high costs that 

small entities may bear. 

EPA requests that commenters discuss 

economic impacts in as specific terms as 

possible. For example, if a regulatory or 

policy change would necessitate 

additional employee training, then 

helpful information would include the 

following: The training courses 

necessary; the types of employees or 

contractors who would receive the 

training; topics covered; any retraining 

necessary; and the training costs if 

conducted by a third-party vendor or inhouse trainer. The Agency invites 

comment on the time and level of 

expertise required to implement 

potential regulatory or policy changes 

discussed in this RFI, even if dollar-cost 

estimates are not available. For 

discussion of equipment-related costs, 

EPA requests that commenters estimate 

relevant factors, such as purchase price, 

cost of installation, cost of equipment 

maintenance, cost of training, and 

expected life of the equipment. The 

Agency also requests that, when 

responding to the questions in this RFI, 

commenters discuss any 

disproportionate impacts to 

communities near chemical facilities, 

particularly with respect to 

economically distressed, low-income, or 

predominantly minority communities. 

For example, disproportionate impacts 

could be changes that affect the number 

of local residents employed at a facility 

or the number of residents affected by 

a release from a facility. Commenters 

should also include specific information 

about any technical feasibility issues or 

implementation challenges associated 

with any of the possible revisions 

discussed in thie RFI. EPA also 

welcomes input on which potential 

amendments to regulatory requirements 

should be given priority for further 

development over any others along with 

the basis for such prioritization. For 

example, identify those issues posing a 

greater safety risk than others; those 

requiring less time or effort to amend; 

those with less costs to industry; or 

other reasons. 

C. Items in OSHA’s RFI Relevant to 

EPA’s RMP Regulation 

This section discusses items that are 

the same or related to items in the 

OSHA RFI that could also apply to or 

affect the RMP regulation. Each item 

discussion is followed by specific 

questions to collect data, information, 

and comments on each item. 

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Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 44607 

5 Documents and information related to deleting 

explosives from the list of RMP-regulated 

substances can be found in EPA docket number 

A–96–08. 

1. Update the List of Regulated 

Substances 

Section 112(r)(3) of the 1990 CAAA 

authorized EPA to develop a list of at 

least 100 substances which, in the case 

of an accidental release, are known to 

cause or may reasonably be anticipated 

to cause death, injury, or serious 

adverse effects to human health or to the 

environment. EPA was required to use, 

but was not limited to, the list of 

extremely hazardous substances (EHSs) 

published under the Emergency 

Planning and Community Right-toKnow Act (EPCRA), with modifications 

as appropriate. The initial list was also 

to include 16 substances specified by 

statute. EPA was to consider the 

following criteria: (1) The severity of 

any acute adverse health effects 

associated with accidental releases of 

the substances; (2) the likelihood of 

accidental releases of the substances; 

and (3) the potential magnitude of 

human exposure to accidental releases 

of the substances. The TQ for each 

substance was to account for the 

toxicity, reactivity, volatility, 

dispersibility, combustibility, or 

flammability of the substance, and the 

amount that if accidentally released 

could cause death, injury or serious 

adverse effects on human health. The 

list may not include any air pollutant 

for which a national primary ambient 

air quality standard has been 

established (except anhydrous sulfur 

dioxide which is required by statute to 

be included on the list), nor any CAA 

title VI stratospheric ozone pollutants. 

The list may be revised by EPA or by 

petition and it must be reviewed at least 

every 5 years. 

The August 1999 Chemical Safety 

Information, Site Security and Fuels 

Regulatory Relief Act amended section 

112(r)(4) of the CAA to exempt from 

RMP reporting ‘‘a flammable substance 

when used as a fuel or held for sale as 

a fuel at a retail facility . . . because of 

the explosive or flammable properties of 

the substance, unless a fire or explosion 

caused by the substance will result in 

acute adverse health effects from human 

exposure to the substance, including the 

unburned fuel or its combustion 

byproducts, other than those caused by 

the heat of the fire or impact of the 

explosion.’’ However, flammable 

substances used as a feedstock or held 

for sale as fuel at a wholesale facility are 

still covered. 

The list now consists of two 

categories of chemicals—77 toxic 

substances and 63 flammable 

substances. The regulated substances 

and TQs are found in 40 CFR 68.130. 

The list of toxic substances is based on 

a subset of the EHS acute toxics found 

in 40 CFR part 355. The RMP list of 

substances was further limited to gases 

and volatile liquids (vapor pressure 

equal to or greater than 10 mm of 

mercury (Hg) at 25 °C), focusing 

accident prevention regulations on 

those chemicals that were more likely to 

become airborne and have an adverse 

effect beyond a facility’s fence line in 

the event of an accidental release. 

Flammable gases and volatile 

flammable liquids with the National 

Fire Protection Association (NFPA) 

flammability ratings of 4 (i.e., gases and 

liquids having a flash point below 73 °F 

(22.8 °C) and a boiling point below 100 

°F (37.8 °C)) were listed. Only chemicals 

in commercial production were 

included on the list and several nonEHS toxic chemicals were listed based 

on high production volumes and 

accident history. Most of the sixteen 

substances mandated by statute were 

also identified through the listing 

criteria for toxic or flammable 

substances. 

The 1994 final list rule included as 

covered chemicals, any ‘‘high 

explosives’’ which were explosives 

classified by the Department of 

Transportation (DOT) as Class 1, 

Division 1.1 and listed as such in 49 

CFR 172.101 (the Hazardous Materials 

Table). Subsequently, the explosives 

were deleted from coverage in 1998 (63 

FR 640, January 6, 1998) 5 due to 

settlement of litigation with the Institute 

for Manufacturers of Explosives (IME) 

(discussed in more detail below). 

EPA is requesting information on 

whether the Agency should modify the 

list of regulated substances by: 

• Adding other toxic or flammable 

substances 

• Adding high and/or low explosives 

• Adding ammonium nitrate 

• Adding reactive substances and 

reactivity hazards 

• Adding other categories of substances 

• Removing certain substances from the 

list or raising their TQ 

• Lowering the TQ for substances 

currently on the list 

Each of these areas is briefly 

discussed below. 

a. Adding Other Toxic or Flammable 

Substances 

EPA is interested in determining 

whether there are other substances that 

meet the established acute toxicity or 

flammability criteria for listing, are in 

commerce, and are present in sufficient 

quantities that would present a risk to 

the community if accidentally released. 

EPA requests information on the 

following questions: 

i. What other chemical lists or other 

sources of information should be 

reviewed to identify acutely toxic or 

flammable chemicals meeting the RMP 

listing criteria? 

ii. What chemicals, if any, should 

EPA add to the RMP list of regulated 

toxic and flammable substances? Please 

provide references to the acute toxicity 

studies, sources of flammability 

information or summary results of such 

studies, information showing that the 

chemical meets the listing criteria or 

examples of incidents related to the 

hazards associated with the chemicals. 

iii. Please provide any information on 

the annual amount of the individual 

substance manufactured, imported or 

used, the extent of its availability in 

commerce and the types of U.S. 

industries that manufacture, import, or 

use the substance. 

iv. What would be the economic 

impacts of adding other toxic or 

flammable chemicals to the RMP list of 

substances? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to adding such chemicals to the RMP 

list of substances? 

b. Adding High and/or Low Explosives 

In light of the April 17, 2013 

explosion in West, Texas involving 

ammonium nitrate (AN) fertilizer, EPA 

is reconsidering whether it should 

include explosives on the RMP list. In 

addition to raising concerns about AN, 

this accident has shifted attention to 

how well facilities handling other 

potentially explosive materials are 

safeguarding communities from their 

hazards and whether emergency 

responders are prepared to deal with 

accidents involving such materials, 

whether or not they are designed to be 

used as explosives. This subsection of 

the RFI addresses explosives other than 

AN—Further discussion of regulating 

AN, including AN fertilizer, is covered 

later in this section. 

EPA listed high explosives on the 

RMP list in 1994 but removed them on 

January 6, 1998 (63 FR 640) (see 

discussion below regarding settlement 

of litigation with IME). 

The 1994 final RMP list rule (59 FR 

4478, January 31, 1994) included 

Division 1.1 explosives—a category of 

high explosives defined by DOT 

classification. DOT Division 1.1 

explosives are those that present a mass 

explosion hazard, which is an explosion 

that affects almost the entire load 

instantaneously. Explosives were 

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44608 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

6See 40 CFR part 370. 

7The 2013 List of Explosive Materials can be 

found at http://www.gpo.gov/fdsys/pkg/FR-2013-10- 

28/pdf/2013-25370.pdf. 

8 27 CFR part 555, Subpart K. 

9Sierra Chemical Co. Final Investigation Report, 

CSB, 9–23–1988. 

10CSB Report No. 2011–06–I–HI. 

initially listed because of their potential 

to cause off-site effects from blast waves. 

In addition, EPA believed that potential 

gaps existed in emergency planning and 

response communication that made risk 

management planning appropriate for 

sources with explosives. 

EPA chose to list only DOT Division 

1.1 explosives because EPA’s analysis 

indicated that low explosives, which 

primarily pose a fire hazard rather than 

a mass explosion hazard, were less 

likely to cause a catastrophic event 

when compared to the same quantity of 

high explosives. The deflagration or 

burning of a low explosive generates 

lower pressures and is less destructive 

than the detonation of a high explosive, 

although the Agency recognized that it 

may be possible for some low explosives 

to detonate under unusual conditions, 

with effects similar to the detonation of 

a high explosive. The DOT Division 1.1 

explosives were listed because of their 

potential to readily detonate, causing 

off-site impacts. High explosives were 

listed as a class, rather than as 

individual substances, because 

explosives are usually mixtures or 

formulations rather than specific 

chemicals. An individual chemical 

could be a component of a high 

explosive or a low explosive, or could 

be non-explosive, depending on various 

factors, such as particle size, 

concentration, and other components of 

the formulation. 

The Institute of Makers of Explosives 

(IME) petitioned for judicial review 

challenging the final listing of high 

explosives (IME v. EPA, D.C. Cir. No. 

94–1276). Among IME’s objections to 

the rule were that existing regulations 

by the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF), DOT, 

Mine Safety and Health Administration 

(MSHA), and OSHA already adequately 

regulated DOT Division 1.1 explosives. 

In a settlement with IME, the Agency 

agreed to propose delisting explosives 

and IME agreed to undertake certain 

measures to enhance local emergency 

response and dismiss its case if EPA 

ultimately delisted high explosives (61 

FR 13858, March 28, 1996). The 

measures that IME agreed to take 

included the following: 

• IME member companies would post 

at their facilities warning signs at all 

normal access routes stating, ‘‘Danger. 

Never Fight Explosive Fires. Explosives 

are stored on this site,’’ and providing 

an emergency phone number. 

• Whenever a new Division 1.1 

commercial explosives storage or 

manufacturing location is established at 

a temporary job site, IME member 

companies will notify Local Emergency 

Planning Committees (LEPCs) and other 

local authorities (e.g., fire departments 

and law enforcement agencies) of the 

type, quantity, and location of 

explosives on site. 

• At Division 1.1 commercial 

explosives storage or manufacturing 

locations with 5,000 pounds or more of 

Division 1.1 explosives (not including 

temporary job sites) where preparation 

of emergency response plans is not 

already required, IME member 

companies would prepare emergency 

response plans, notify LEPCs and other 

local authorities of the type, quantity, 

and location of explosives on site, 

provide the emergency response plans 

to local emergency responders, and 

respond to reasonable requests for 

information from said authorities. 

• IME member companies also would 

inform their customers and IME would 

inform other non-IME commercial 

explosives manufacturers of the 

contents of the Settlement Agreement 

and the actions to be taken. 

EPA proposed to delist high 

explosives from the RMP list on April 

15, 1996 (61 FR 16598) and removed 

high explosives in a January 6, 1998 

final rule (63 FR 640). The preambles to 

both rules discuss the measures IME 

was to take to enhance local emergency 

response. 

Even after the removal of high 

explosives from the RMP list, most 

forms of explosives (not just high 

explosives) remain subject to hazardous 

chemical inventory reporting 

requirements under EPCRA. The owner 

or operator of any facility with more 

than a reporting threshold of any 

hazardous chemical requiring a safety 

data sheet (formerly material safety data 

sheet) under the OSHA Hazard 

Communication Standard is required to 

submit safety data sheets to their State 

Emergency Response Commission 

(SERC), LEPC, and local fire 

department, and to annually report their 

inventory of hazardous chemicals to 

their SERC, LEPC, and local fire 

department.6 This information should 

better prepare local authorities to 

respond to emergencies at facilities that 

handle hazardous chemicals, including 

explosives. 

ATF regulates ‘‘explosive materials’’ 

which are defined as explosives, 

blasting agents, water gels and 

detonators. Explosive materials include, 

but are not limited to, all items in the 

‘‘List of Explosive Materials,’’ which is 

published annually.7

ATF regulations 8 provide specific 

construction requirements for storage of 

explosive materials in magazines and 

limit the amount of these materials that 

can be stored in each magazine. Such 

magazines must be regularly inspected 

and meet the Table of Distance 

requirements which specify distances 

that the materials must be stored away 

from inhabited buildings, public 

highways, and passenger railways, to 

ensure an accidental explosion will not 

produce blast waves that are hazardous 

to people at distances where the public 

could be affected. ATF inspects licensed 

facilities to ensure the safe and secure 

storage of explosives, their proper 

inventory and control, and accurate 

recordkeeping. However, ATF does not 

inspect or regulate manufacturing 

processes.9

OSHA regulates the manufacture, 

keeping, having, storage, sale, 

transportation, and use of explosives 

and blasting agents under its 

Occupational Safety and Health 

Standards for explosives and blasting 

agents (29 CFR 1910.109). Section 

1910.109(k)(2) of this standard also 

requires that explosive manufacturers 

meet the requirements of the PSM 

standard (29 CFR 1910.119). OSHA 

regulations provide construction 

requirements for explosive materials 

storage magazines and specify minimum 

distances between magazines with 

explosives and blasting agents, between 

stores of AN and blasting agents, and 

between blasting agents and inhabited 

buildings, passenger railroads, and 

public highways. Regulations involving 

the storage of all grades of AN, 

including fertilizer grade, but not 

blasting agents, are found at 29 CFR 

1910.109(i). 

Significant accidents involving 

explosives have raised questions 

concerning whether existing safety 

regulations are adequate. An April 8, 

2011 explosion at Donaldson 

Enterprises in Waikele, Hawaii, killed 

five workers who were disposing of 

fireworks. The U.S. Chemical Safety and 

Hazard Investigation Board (CSB) 

investigated the explosion and 

determined that gaps in federal 

regulations—specifically with regard to 

dismantling and disposal of 

explosives—contributed to the 

accident.10 The January 7, 1998, 

explosion at the Sierra Chemical 

Company’s Kean Canyon explosives 

manufacturing plant prompted the state 

of Nevada to develop regulations 

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11http://ndep.nv.gov/bapc/capp/capmore.html. 

12Chemical Advisory: Safe Storage, Handling, 

and Management of Ammonium Nitrate, EPA 550– 

S–13–001, published by EPA, OSHA, and ATF, 

August 2013. http://www.epa.gov/oem/docs/chem/

AN_advisory.pdf. 

13http://www.epa.gov/oem/docs/chem/cterra.pdf. 

covering certain explosives 

manufacturing facilities under the 

state’s Chemical Accident Prevention 

Program,11 which is similar to EPA’s 

RMP regulation. 

EPA is seeking information relating to 

the potential regulation of explosives 

under the RMP. EPA requests 

information on the following questions: 

i. Should EPA reconsider listing 

explosives on the RMP list? What are 

the safety gaps in current regulations 

and practice (e.g., EPCRA, other federal 

programs, state programs, and industry 

efforts) that can best be filled by 

expansion of the RMP? Are there other 

approaches for filling any such safety 

gaps? What type of explosive materials 

should be covered and why? How many 

facilities manufacture, store or use 

explosives and what are the typical 

quantities stored on-site by type of 

facility or industry? What TQs should 

be established, and what should be the 

basis for the TQs? If EPA were to list 

explosives and establish a TQ at 5,000 

pounds (the same TQ that was 

established for explosives in the 1994 

list rule), how many facilities would 

exceed that TQ and potentially be 

regulated? 

ii. Are there other incidents involving 

the manufacture and processing of 

explosive materials that should be 

reviewed to determine if covering these 

operations under the RMP would 

decrease the risk of an accidental 

explosion affecting an off-site 

community? Does the presence of 

explosives impose unique risks on rural, 

disadvantaged, or otherwise 

environmentally burdened 

communities? 

iii. Should the RMP regulation apply 

to manufacturers of explosives, end 

users, and/or explosive recyclers? 

iv. If the RMP regulation is amended 

to cover explosives, should EPA 

consider establishing requirements for 

safe separation distances between 

explosive materials and public receptors 

similar to those required by ATF and 

OSHA (see section II.D.4 of this RFI for 

additional discussion of stationary 

source location requirements)? What 

other requirements should EPA 

consider? Which if any of these 

requirements could have prevented or 

minimized the impacts of specific 

historical accidents? 

v. What would be the economic 

impacts of adding explosives to the 

RMP list of substances? Are there any 

special circumstances involving small 

entities that EPA should consider with 

respect to adding explosives to the RMP 

list of substances? 

vi. As an alternative to expanding the 

scope of the RMP, would expanded use 

of EPCRA information (such as better 

integration of information on explosive 

hazards into local emergency plans) and 

other governmental and industry 

programs (including voluntary 

programs) be able to address safety 

gaps? What are the advantages and 

disadvantages of such an approach 

relative to expansion of the RMP? 

c. Adding Ammonium Nitrate 

As previously discussed, EPA listed 

high explosives on the RMP list in 1994 

but removed them on January 6, 1998 

(63 FR 640). Some forms of AN 

formulated as explosives would have 

been covered under the 1994 RMP list 

rule, but the rule would not have 

included AN fertilizer, which was not 

classified as and was not intended to 

function as an explosive. However, the 

explosion at West Fertilizer has 

highlighted the explosive properties of 

AN fertilizer under certain conditions 

(heat, shock, contamination and/or 

confinement) and its potential to 

adversely impact communities if it 

decomposes and detonates. 

Industry manufactures millions of 

tons of AN annually in the United 

States. High-density or fertilizer-grade 

AN, with Chemical Abstracts Service 

Registry Number (CASRN) 6484–52–2, 

is commonly used in fertilizer; lowdensity or technical-grade AN is used to 

manufacture explosives or blasting 

agents. Approximately 80% of AN is 

used in explosives and blasting agents 

and 20% is used as a fertilizer. 

Blasting agents are relatively low 

sensitivity explosives which cannot be 

initiated by blasting caps and are 

unlikely to explode except under 

special conditions. A blasting agent is a 

fuel plus oxidizer, intended for blasting, 

and not otherwise classified as an 

explosive. Blasting agents are frequently 

formulated with AN as the oxidizer. 

Ammonium nitrate/fuel oil (ANFO or 

AN/FO) is a blasting agent widely used 

in coal mining, quarrying, metal mining, 

and civil construction. Mining and 

construction sites that use ANFO may 

not be as likely to have explosions 

adversely affecting the public because 

they are often remote. 

AN has an NFPA instability rating of 

3, indicating it is capable of detonation, 

explosive decomposition, or explosive 

reaction; ignition requires a strong 

initiating source or heating the 

substance under confinement. Stored 

AN is generally stable, but explosions of 

AN can be severe and have resulted in 

many injuries and fatalities. 

There are several examples of 

accidents involving AN. As discussed 

earlier, on April 17, 2013, an AN 

explosion at the West Fertilizer 

Company storage and distribution 

facility in West, Texas involving about 

30 tons of AN killed 15 people and 

injured over 160 others. As an initial 

action, EPA and its partner agencies 

OSHA and ATF issued an updated 

chemical advisory on the safe storage, 

handling, and management of AN.12

The deadliest industrial accident in 

United States history was an AN 

explosion in Texas City, Texas, on April 

16, 1947. In that case, the initial 

explosion of a ship carrying AN, and the 

subsequent chain reaction of fires and 

explosions in other ships and nearby 

oil-storage facilities, killed at least 581 

people and injured thousands of others. 

The AN was coated with wax, a 

combustible material, to prevent caking. 

New process technologies and safe 

practices introduced in the 1950s 

eliminated the use of wax coatings and 

AN currently produced for fertilizer use 

contains less than 0.2 percent 

combustible material. Ammonium 

nitrate with more than 0.2 percent 

combustible substances is now 

regulated by DOT as an explosive 

material with specific storage 

requirements and restrictions in cargo 

vessels. 

On September 21, 2001, a massive 

explosion occurred in a warehouse at 

the Azote de France fertilizer factory in 

Toulouse, France, involving 200–300 

tons of AN, which was stored in bulk in 

a hangar. The explosion resulted in the 

death of 30 people, 2,500 injuries, the 

destruction of the factory, and an 

additional 10,000 buildings being 

heavily damaged. The exact cause of 

this accident remains unknown. Storage 

of incompatible material with AN is 

believed to have been a factor. 

On December 13, 1994 at Terra 

Industries in Port Neal, Iowa, AN 

solution exploded in a neutralizer vessel 

in a manufacturing process that was in 

standby mode, causing four deaths.13

The blast resulted in major plant 

damage, including damage to on-site 

ammonia tanks, creating an ammonia 

cloud that resulted in the evacuation of 

2,500 people. 

EPA is requesting information on how 

to best address the safe storage, 

handling and risk management of AN. 

Despite its widespread use as an 

explosive and as a fertilizer, AN 

explosions are rare, but when they do 

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14TNT equivalent-weight calculation is a method 

for estimating the quantity of an explosive required 

to produce blast effects at various distances from 

the source of the explosion. The method uses the 

scaling law of distances, which relates quantity of 

explosive material and distance for a given 

overpressure. For explosives other than TNT, an 

empirically-derived equivalency factor is used to 

account for differences between the explosive 

characteristics of the actual explosive and those of 

an equivalent weight of TNT. Additional 

information on EPA’s threshold methodology for 

high explosives can be found in the Technical 

Background Document, Development of Threshold 

Quantities for List of Regulated Substances for 

Accidental Release Prevention, Clean Air Act 

Section 112(r). See: Technical Background 

Document for the Development of Threshold 

Quantities for List of Regulated Substances for 

Accidental Release Prevention, Clean Air Act 

Section 112(r). Original Docket# A–91–74, 

document # III–B–2, June 21, 1992. 

occur, can result in deaths, injuries, and 

extensive property damage. 

Currently, AN is not a listed 

substance under the RMP regulation. 29 

CFR part 1910.109(k)(2) requires that 

the manufacture of explosives shall also 

meet the requirements contained in 

§ 1910.119, thus manufacturing of 

explosives containing AN would be 

covered under PSM regulations. OSHA 

does not regulate AN storage and 

handling by distributors and users 

under the PSM standard, but it does 

regulate certain processes and activities 

involving AN under other specific 

standards (see below). Therefore, under 

federal regulations, AN distributors, 

such as bulk fertilizer retailers, are not 

required to implement any RMP or PSM 

accident prevention program elements 

(such as conducting a process hazard 

analyses, developing written operating 

procedures, etc.), perform an off-site 

consequence analysis, or develop an 

emergency action plan or emergency 

response plan. 

ATF regulates the storage and 

handling of AN as an explosive material 

(either as part of an explosive or as a 

blasting agent) (27 CFR 555.201–224). 

The ATF regulations specify 

construction requirements for storage 

magazines, limitations on the type and 

amount of material that can be stored in 

each type of magazine and minimum 

distances that must be maintained 

between AN in explosive materials and 

public receptors and between AN and 

explosives and blasting agents. 

OSHA regulates the storage, handling, 

and transportation of AN when it is 

used in explosives, water slurries, gels 

or blasting agents (29CFR 1910.109 (a)– 

(h), (k)) or when stored on-site with 

explosives or blasting agents, including 

their storage at use sites and mixing and 

packaging operations. The requirements 

detail various procedures and 

safeguards that must be followed for 

these operations. The OSHA standard 

requires minimum specified separation 

distances between AN and explosives or 

blasting agents stored on the same site. 

Construction requirements for buildings 

and bulk storage bins containing 

blasting agents (which can contain AN) 

are also specified. 

OSHA also regulates bulk storage of 

AN over 1,000 pounds in a building or 

structure in the form of crystals, flakes, 

grains, or prills including fertilizer 

grade, dynamite grade, nitrous oxide 

grade, technical grade, and other 

mixtures, but not blasting agents, 

containing 60 percent, or more, AN by 

weight, in 29 CFR 1910.109(i). This 

standard limits the dimensions of piles 

of bagged AN and bulk AN in storage 

bins, and specifies the conditions for 

storage and the type of the construction 

materials for storage bins. The standard 

does not specify minimum separation 

distances between stored AN and public 

receptors such as are required for 

explosives and blasting agents. The 

standard requires separation of AN from 

incompatible or combustible materials 

and use of fire-resistive building 

materials if combustible materials are 

stored within a certain distance. A 

building with more than 2,500 tons of 

bagged ammonium nitrate must be 

equipped with an automatic sprinkler 

system. 

OSHA’s PSM standard covers some 

reactive chemicals. Ammonium nitrate, 

although it is a reactive chemical 

(oxidizer) and met the original criteria 

that OSHA used to add substances for 

coverage, was not covered by the PSM 

standard. The Explosives and Blasting 

Agents standard is a specification 

standard based on a consensus standard, 

while PSM is a performance-based 

standard and would require employers 

to put management systems in place 

that would include requirements to 

evaluate hazards and follow industry 

recognized best practices. As explained 

above above, OSHA issued an RFI 

seeking, among other items, comments 

on potential revisions to its PSM 

standard and its Explosives and Blasting 

Agents standard. The RFI specifically 

invited comments on safe work 

practices for storing, handling, and 

managing ammonium nitrate and on 

regulatory requirements to improve its 

approach to preventing the hazards 

associated with ammonium nitrate. 

OSHA is working to determine whether 

ammonium nitrate hazards are best 

handled in the Explosives and Blasting 

Agents standard, the PSM standard, or 

a combination of both, and will pursue 

any appropriate regulatory changes as 

expeditiously as possible. As OSHA 

develops its approach to improve 

workplace safety associated with 

ammonium nitrate hazards, EPA will 

consider if additional action to protect 

the community is needed to 

complement OSHA regulations. EPA is 

considering whether the coverage 

provided to ammonium nitrate facilities 

will be sufficient or whether ammonium 

nitrate should be included in the RMP 

regulation. 

Because past AN accidents with 

adverse effects off-site, such as blast 

waves, have typically involved its 

storage in large quantities, EPA could 

list AN on the RMP list with a high 

threshold in order to prioritize process 

safety requirements for those facilities 

and locations where large amounts of 

AN are stored. When EPA had included 

high explosives on the RMP list, the TQ 

was based on a trinitrotoluene (TNT) 

equivalent weight; EPA could determine 

a threshold amount for AN, based on a 

TNT-equivalent weight calculation 

adjusted for AN.14 The RMP 

requirements for AN could be 

established at the statutory minima with 

more specific provisions tailored to 

particular types of facilities, e.g., 

manufacturers, fertilizer distributors 

and other facilities that have large 

amounts of explosives, blasting agents 

or fertilizers. EPA is authorized under 

CAA section 112(r)(5) to establish a 

greater TQ for, or to exempt entirely, 

any substance that is a nutrient used in 

agriculture when held by a farmer. 

Therefore, farmers who hold AN for use 

as a fertilizer could be exempted 

entirely in the same way as EPA has 

exempted farmers holding ammonia for 

use as a fertilizer (see 40 CFR 68.125). 

Alternatively, under CAA 

112(r)(7)(A), EPA could require safe 

storage practices of solid AN forms 

similar to the practices required in the 

OSHA standard for Explosives and 

Blasting Agents at 29 CFR 1910.109(i) or 

in the NFPA 400 Hazardous Materials 

Code, Chapter 11. Promulgating 

regulations separate from the RMP 

requirements may be more appropriate 

to cover facilities whose handling of this 

chemical does not involve typical 

manufacturing and processing 

operations normally seen with 

chemicals that are hazardous gases and 

liquids, such as fertilizer distribution 

facilities. However, manufacturers of 

AN who handle molten and liquid AN 

in processes involving chemical 

reactions, at elevated temperature and 

pressure, or in process vessels, tanks, 

pumps and associated control 

equipment may be more appropriately 

covered by the RMP regulation. 

EPA requests information on the 

following questions: 

i. Are there safety gaps in the current 

regulations for AN that could be 

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15These include methyltrichlorosilane (CASRN 

75–79–6), dimethyldichlorosilane (CASRN 75–78– 

5), and trimethylchlorosilane (CASRN 75–77–4). 

16EPA/OSHA, EPA/OSHA Joint Chemical 

Accident Investigation Report—Napp Technologies, 

Inc., Lodi, New Jersey (EPA–550–R–97–002, 

October, 1997). 

addressed using regulations under CAA 

section 112(r)? Should EPA regulate AN 

under CAA section 112(r) authority to 

improve chemical safety practices at 

facilities handling AN? What types of 

AN and AN facilities should be subject 

to the RMP regulations to prevent 

chemical accidents involving AN that 

could have adverse effects, such as blast 

overpressure, on the public, 

environment and off-site property? 

Should EPA consider safety regulations 

to cover the storage and handling of AN 

fertilizer only and continue to rely on 

ATF regulations and OSHA standards to 

cover AN in explosives and blasting 

agents? What role should voluntary 

industry programs (such as the one 

undertaken by IME for high explosives) 

have in a decision on whether safety 

gaps exist that warrant regulation under 

the RMP? Please discuss the economic 

impacts associated with the potential 

regulation of AN under CAA section 

112(r), including any special 

circumstances involving small entities 

that EPA should consider. 

ii. Should EPA amend the RMP 

requirements to address the hazard 

posed by AN? If so, what specific 

requirements would be appropriate for 

AN? Alternatively, should EPA use its 

regulatory authority under CAA 

112(r)(7)(A) to require more tailored 

safety steps for facilities handling AN 

and list AN at a high threshold to better 

focus these requirements on fewer 

holders of large quantities that pose the 

greatest risk? What would be the 

benefits of regulating AN under the 

RMP regulations as opposed to only 

maintaining the current SDS and 

hazardous chemical inventory reporting 

already required under EPCRA? 

iii. If EPA were to regulate AN under 

40 CFR part 68, what quantity of AN 

poses a sufficient hazard to be covered? 

What would be the basis for establishing 

this TQ? 

iv. Does your facility store, handle, or 

manage AN? If so, in what form (e.g., 

solid, liquid) and in what grade (e.g., 

high density, low density)? If you are 

not a manufacturer of AN, how does 

your facility process or use AN? What 

quantities of AN are typically stored at 

your facility at one time? 

v. Are there any other standards, 

including consensus standards, 

applicable to AN storage, handling, and 

management that your facility follows? 

If so, which ones? 

vi. Please provide any data or 

information on accidents involving the 

storage, handling, and management of 

AN that affected people or property. 

vii. Please provide data on the 

population surrounding AN sites, 

including socio-economic information 

and other environmental burdens on 

surrounding communities. 

viii. If EPA were to regulate AN under 

CAA Section 112(r), should EPA exempt 

farmers who store AN for use as a 

fertilizer? How many farmers would be 

eligible for such an exemption? Should 

there be any limits on such an 

exemption, such as maximum quantity 

on-site at any given time? Please 

provide the reasoning and any available 

data supporting your views. 

d. Adding Reactive Substances and 

Reactivity Hazards 

Although the chemicals listed in 40 

CFR 68.130 were listed based on their 

toxicity or flammability, a number of 

them could be considered reactive 

chemicals based on a variety of metrics, 

including consensus standard sources. 

For example, the RMP list currently 

includes three chlorosilanes listed as 

toxic substances.15 These compounds 

are included on the list because their 

levels of acute toxicity based on animal 

studies met the RMP listing criteria. 

However, they primarily produce acute 

toxic effects on exposed populations 

because of their rapid and intensive 

reaction with moisture in the air to 

produce hydrogen chloride, which can 

cause acute injury to any body tissue 

contacted as well as nasal, throat, or 

lung irritation, coughing, wheezing, and 

shortness of breath. Nevertheless, while 

certain listed substances such as these 

are reactive, the RMP list does not 

specifically focus on reactive chemicals. 

There are other chemicals that do not 

meet the RMP listing criteria, but could 

potentially be listed based on the 

hazards of their reaction byproducts 

(e.g., other chlorosilanes that produce 

hydrochloric acid upon release to the 

air). 

EPA has long been aware of the 

hazards associated with reactive 

chemicals. In the January 19, 1993 

proposed rule for listing substances (58 

FR 5102), we considered whether to 

include on the list chemicals whose 

reactive properties could cause effects, 

in the event of an accident, that would 

impact nearby communities. In order to 

meet the conditions in CAA section 

112(r)(3) for the listing of substances, 

EPA sought to determine the common 

physical-chemical characteristics or 

properties that would be used as criteria 

to identify a set of chemicals to be listed 

and to provide the technical basis for 

these criteria. For toxic and flammable 

substances, the listing criteria included 

inherent properties of the chemical 

substances, such as physical state or 

boiling point, that are indicators of the 

potential to pose a severe threat to the 

community. EPA attempted to evaluate 

the hazards associated with reactive 

substances and develop an adequate 

technical basis to determine potential 

effects on the community. One difficulty 

is that it is not feasible for national 

listing decisions to take into account 

process- and site-specific factors, which 

can vary widely. EPA has instead 

addressed these factors in the accident 

prevention regulations (e.g., owners and 

operators implement hazard controls 

based on a PHA or hazard review that 

identifies the specific hazards of their 

regulated processes). Using criteria from 

other organizations, for example, an 

NFPA instability rating of 4 assigned to 

materials that are readily capable of 

detonation, explosive decomposition, or 

explosive reaction at normal pressures 

and temperatures provides important 

information but gives little indication of 

the potential impact on a community 

from an accident that takes place inside 

an industrial facility. The 1993 

proposed rule requested comments from 

the public on approaches that could be 

used to evaluate the consequences to 

communities from incidents involving 

reactive substances. However, very few 

comments were received and no specific 

methods or listing criteria were 

identified by commenters. Several 

commenters suggested that a small 

number of highly reactive chemicals, 

specifically those that have toxic 

byproducts as a result of degradation or 

combustion, and have been involved in 

serious accidents, be added to the list. 

Several other commenters suggested 

deferring the listing of reactive 

substances based on the complexity of 

the technical issues, the lack of a 

methodology to screen reactive hazards, 

and the expectation that reactive 

substances are unlikely to migrate offsite. 

Serious accidents involving reactive 

chemicals have called attention to their 

hazards and raised questions regarding 

whether reactive chemicals are 

adequately regulated. In response to a 

1995 chemical explosion that killed five 

workers at Napp Technologies, Inc., in 

Lodi, New Jersey, OSHA and EPA 

investigated the accident and concluded 

in a jointly-issued report 16 that the 

explosion was most likely triggered by 

an uncontrolled chemical reaction of 

water, sodium hydrosulfite, and 

aluminum powder. However this 

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17CSB, Hazard Investigation—Improving Reactive 

Hazard Management, U.S. Chemical Safety and 

Hazard Investigation Board (Report No. 2001–01–H, 

October 2002). http://www.csb.gov/assets/1/19/

ReactiveHazardInvestigationReport.pdf. 

18The New Jersey Toxic Catastrophe Prevention 

Act is the state’s process safety regulation. It adopts 

the federal RMP requirements, and includes 

additional state-level requirements. See http://

www.nj.gov/dep/rpp/brp/tcpa/index.htm. 

19http://www.nfpa.org/catalog/

product.asp?pid=40013&cookie_test=1. 

20The definition of ‘‘reactive hazard substance 

(RHS) mixture’’ in the TCPA references a list of 

chemical functional groups specified in N.J.A.C. 

7:31–6.3(a), Table I, part D, Group II. Whether any 

of the chemical functional groups are present 

determines in part coverage of an RHS mixture 

under the TCPA. 

investigation did not result in any 

changes in OSHA or EPA regulations. 

In August 2000, after investigating a 

runaway reaction at Morton 

International in Patterson, New Jersey 

that injured nine employees, the CSB 

initiated a comprehensive review of 

reactive hazards nationwide and issued 

a final report 17 in 2002 with 

recommendations to reduce the number 

and severity of such incidents. The 

report recommended that EPA revise the 

RMP regulation to address catastrophic 

reactive hazards that have the potential 

to seriously impact the public, 

including those resulting from selfreactive chemicals and combinations of 

chemicals and process-specific 

conditions. It also recommended 

coverage of chemicals based on a class 

of highly reactive properties, similar to 

the way the existing PSM standard 

defines a class of flammable liquids or 

gases. The CSB argued that a 

performance-based approach to 

evaluating reactive hazards would allow 

for both a comprehensive analysis and 

flexibility in implementation, but 

cautioned that a proper analysis would 

require expertise in reactivity hazards. 

CSB also recommended that EPA 

modify the accident reporting 

requirements in risk management plans 

and in ‘‘RMP*Info’’ (EPA’s database for 

risk management plans) to define and 

record reactive incidents and add the 

term ‘‘reactive incident’’ to the four 

existing ‘‘release events’’ in EPA’s 

current 5-year accident reporting 

requirements (Gas Release, Liquid Spill/ 

Evaporation, Fire, and Explosion). 

According to CSB, structuring the 

information collection in this way 

would allow EPA and its stakeholders to 

identify and focus resources on industry 

sectors that experienced the incidents; 

chemicals and processes involved; and 

impacts on the public, the workforce, 

and the environment. Consequently, in 

2004 EPA amended the format for risk 

management plan submissions to 

include uncontrolled chemical reactions 

on the list of possible accident causes 

that covered sources may select when 

completing five-year accident history 

reports. Since amending the format, 29 

reactive chemical incidents have been 

reported in RMPs submitted to EPA. In 

total, these accidents resulted in zero 

deaths, 48 injuries, 190 people 

evacuated, approximately $3 million in 

off-site property damage, and 

approximately $33 million in onsite 

property damage. Processes in 16 

different NAICS codes were involved in 

these incidents; however, processes in 

NAICS 325211 (Plastics Material and 

Resin Manufacturing) accounted for 9 of 

the incidents. No other NAICS code 

accounted for more than 3 incidents. 

One approach to regulating reactive 

hazards is the approach adopted in the 

New Jersey Toxic Catastrophe 

Prevention Act (TCPA), which includes 

a ‘‘List of Individual Reactive Hazardous 

Substances,’’ as well as a list of 

‘‘Reactive Hazard Substances Mixture 

Functional Groups.’’ 18 TCPA includes 

substances with certain functional 

groups and molecular structures that 

have been identified as highly reactive, 

based on scientific research and 

accident history. Under the TCPA, 

covered facilities must determine if any 

of the chemicals they are intentionally 

mixing include components on the 

Functional Group list. If so, then the 

facility must determine the heat of the 

reaction and the corresponding TQ for 

TCPA coverage. This approach takes 

into account not only certain specific 

chemicals, but also their overall 

reactivity in determining the level of 

coverage. 

In 2010, the NFPA published the first 

edition of its Hazardous Materials Code 

(NFPA 400). NFPA 400 was 

subsequently updated in 2012 (i.e., 

NFPA 400 Hazardous Materials Code, 

2013 Edition).19 NFPA 400 specifies 

storage, use, and handling requirements 

for various categories of hazardous 

materials, including unstable (reactive) 

solids and liquids, water reactive solids 

and liquids, and others. EPA could 

adopt similar requirements as the basis 

for reactive hazards regulations. 

EPA is considering including reactive 

chemicals on the RMP list and is 

seeking information on potential 

approaches to addressing reactive 

hazards, including the approach used in 

the TCPA, application of the 

requirements contained in NFPA 400, or 

others. EPA requests information on the 

following questions: 

i. What are the best criteria to use in 

classifying reactive hazards? How do 

you identify a reactive chemical or a 

reactive mixture? 

ii. Should EPA add reactive chemicals 

to the list of RMP-covered chemicals in 

40 CFR 68.130? If so, which chemicals? 

What criteria should EPA consider 

using to establish TQs for reactive 

chemicals? Should EPA add only 

specific chemicals, or groups of 

chemicals defined by particular 

chemical characteristics? 

iii. Should EPA list additional 

chlorosilanes as toxic substances on the 

RMP list due to their reactive hazard 

due to formation of hydrochloric acid 

when a chlorosilane is accidentally 

released into the air and reacts with 

moisture? 

iv. If your facility is covered by the 

New Jersey TCPA, have those 

requirements been effective in 

protecting human health and the 

environment from reactive hazards? 

Please describe any economic impacts 

associated with TCPA coverage (e.g., 

costs and benefits, cost savings, shifts in 

usage of reactive chemicals, special 

circumstances involving small entities, 

etc.). 

v. Should EPA revise the RMP 

regulation to use chemical functional 

groups similar to those in the TCPA 20

to define hazardous reactive mixtures? If 

so, which chemical functional groups 

should EPA use? 

vi. Does your facility follow NFPA 

400 for reactive hazards? If so, please 

describe the economic impacts 

associated with following NFPA 400 

(e.g., cost of additional equipment, cost 

of additional training, benefits of quality 

management, special circumstances 

involving small entities, etc.). Is 

following NFPA 400 an effective way of 

protecting human health and the 

environment from reactive hazards? 

Please explain. 

vii. Has your facility implemented a 

reactive-hazards management program 

other than a program specified by the 

TCPA and NFPA 400? If so, please 

describe your facility’s program, 

whether it protects human health and 

the environment more or less than the 

TCPA and NFPA 400, whether it is 

voluntary or mandatory and, if the 

latter, under what authority, any 

economic impacts associated with the 

program, and any special circumstances 

involving small entities. 

viii. What alternative regulatory 

approach to TCPA or NFPA 400, if any, 

should EPA consider using to address 

reactive hazards? What would be the 

economic impacts of this approach and 

would there be any special 

circumstances involving small entities? 

Are there specific requirements that 

EPA should consider adding to the RMP 

regulations to ensure that owners and 

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Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 44613 

21http://www.epa.gov.cdr/. However, 

manufacturing or production volume data was only 

required for CDR when 2011 site-specific 

production volume for reportable chemicals 

equaled or exceeded 25,000 pounds. Chemicals 

manufactured only for non-TSCA uses such as 

pesticides or chemicals regulated by the FDA are 

not required to be reported under CDR. Also, small 

manufacturers (including importers) are generally 

exempt from CDR requirements if their annual 

company sales do not exceed certain limits. 

22http://www.epa.gov/enviro/index.html. 

23This CASRN is used for the ‘‘generic TDI’’ for 

any mixture of the 2,4-TDI and 2,6-TDI isomers, of 

varying ratio between the two specific isomers. 

24Senate Committee on Environment and Public 

Works, Clean Air Act Amendments of 1989, Senate 

Report No. 228, 101st Congress, 1st Session 211 

(1989), page 220. 

25See Senate Report at 560 (section 129(c)). 

operators adequately manage reactive 

hazards? 

ix. Please provide any data or 

information on accidents, near misses, 

or other safety-related incidents 

involving reactive hazards not covered 

under the existing RMP regulation. 

What reactive-hazards management 

requirements might have prevented 

these incidents if they had been 

included in the RMP regulation? 

e. Adding Other Categories of 

Substances 

This section addresses substances 

which are not traditionally classified as 

highly toxic, flammable, or explosive 

but that have nonetheless caused or 

contributed to serious accidents. Other 

categories of substances beyond highly 

toxic and flammable liquids and gases 

could cause death, injury, or serious 

adverse effects to human health or the 

environment in the event of an accident. 

For example, certain types of flammable 

and explosive solids and non-volatile 

liquids can explode and cause blast 

waves that have the potential to injure 

people and cause property damage 

beyond a facility’s fence line. Such 

explosions or detonations could involve 

categories of chemicals not currently 

regulated as RMP substances or 

previously discussed in this section as 

potential additions to the RMP list. 

Examples of these include organic 

peroxides, oxidizers, combustible dusts 

or other flammable solids. 

EPA requests information on the 

following questions: 

i. Should EPA consider adding 

organic peroxides, oxidizers, 

combustible dusts, flammable solids, or 

other additional types of chemicals to 

the RMP list? Are there any particular 

chemicals belonging to these or other 

classes which present a high hazard that 

could cause adverse effects beyond a 

facility’s fence line in the event of an 

accidental release? 

ii. If a particular new category of 

chemicals should be considered for 

inclusion on the RMP list, what criteria 

should be used to prioritize the 

hazard(s) and determine which 

chemicals should be listed? 

iii. If EPA were to add combustible 

dusts to the lists of covered chemicals, 

are there categories of dusts, such as 

agricultural dusts (e.g., grain dust, 

pesticide dust, etc.), that should be 

excluded? What factors, such as existing 

handling practices, accident history, 

and potential risk to surrounding 

communities should EPA consider in 

evaluating potential exclusions? 

f. Removing Certain Substances From 

the List or Raising Their Threshold 

Quantity 

EPA is also seeking information on 

whether certain substances should be 

removed from the current list of 

regulated substances. There are six RMP 

chemicals (four toxic, two flammable) 

for which EPA has never received a 

RMP report. The four toxic chemicals 

are arsenous trichloride (CASRN 7784– 

34–1), cyanogen chloride (CASRN 506– 

77–4), sulfur tetrafluoride (CASRN 

7783–60–0), and tetramethyl lead 

(CASRN 75–74–1). The two flammable 

chemicals are: chlorine monoxide 

(CASRN 7791–21–1) and ethyl nitrite 

(CASRN 109–95–5). EPA’s 2012 

Chemical Data Reporting (CDR) 

information on the production and use 

of chemicals manufactured or imported 

into the United States also showed no 

facilities reporting any data for these six 

chemicals, when searched by CASRN.21

EPA’s Envirofacts system,22 which 

contains reporting on chemicals from 

the various environmental databases 

and reporting systems managed by EPA, 

also did not show any reports for these 

six substances, when searched by 

CASRN. A search of the E-Plan 

database, which contains EPCRA Tier II 

Emergency and Hazardous Chemical 

Inventory reports for most states, 

showed that four of the six chemicals 

were reported in E-Plan for filing year 

2012, but only one facility each reported 

for three of the chemicals and five 

facilities reported for sulfur 

tetrafluoride. However, E-Plan only 

contains reports from about 40 states, 

and for several of these, the database 

does not contain complete information. 

The search results show that four of the 

six chemicals are in commerce, 

although the Tier II amounts reported 

on site were below RMP reporting 

thresholds. 

One of the sixteen substances 

mandated by Congress for the initial 

listing of regulated substances for 

accident prevention was toluene 

diisocyanate (TDI). In order to ensure 

that all forms of TDI were listed, the 

RMP list of toxic substances contains 

three listings representing this chemical, 

including both the 2,4 and 2,6 isomers 

(also listed as EHSs) and unspecified 

isomers or mixture of isomers (not listed 

as an EHS), all of which have distinct 

separate CAS Registry numbers. 

Toluene, 2,4-diisocyanate ............................................................................................................................... CASRN ................. 584–84–9 

Toluene, 2.6-diisocyanate ............................................................................................................................... CASRN ................. 91–08–7 

Toluene diisocyanate, unspecified isomer ..................................................................................................... CASRN ................. 26471–62–5 23

Although the vapor pressure for TDI 

is relatively low at ambient temperature 

(< 0.5 mm Hg) and does not meet the 

vapor pressure listing criteria of ≥ 10 

mm Hg for a regulated toxic substance, 

EPA believed that the language of CAA 

section 112(r)(3) precluded the Agency 

from omitting TDI from the initial list of 

RMP substances. The Senate Report on 

its version of the 1990 CAAA 24 says 

‘‘the Administrator is not authorized to 

remove substances from the initial list.’’ 

The format of CAA 112(r)(3), which 

mandates the initial list contain certain 

chemicals and requires a more 

expansive list by rulemaking, first 

appears in the Senate Bill. However, the 

statute itself does not prohibit later 

deletions of substances that were 

mandated for inclusion on the initial 

list. The final enacted CAA section 

112(r)(3) authorizes both additions and 

deletions from the list, in contrast to the 

version in the Senate Report that only 

authorized additions.25 The enacted 

language is similar to the structure of 

the hazardous air pollutant (HAP) 

‘‘initial list’’ under CAA section 112(b), 

which authorizes revisions and 

deletions and is cross-referenced in 

CAA section 112(b)(3) for its revision 

procedures. Fifty-three accidents 

involving TDI have been reported in 

RMP accident history reports since 

1995, but none of these resulted in 

fatalities or off-site injuries. 

Currently the TQ for all three TDI 

listings is 10,000 pounds. EPA is 

considering whether the TQ for TDI 

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44614 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

26USEPA. June 21, 1992. Technical Background 

Document for the Development of Threshold 

Quantities for List of Regulated Substances for 

Accidental Release Prevention, Clean Air Act 

Section 112(r). Original Docket# A–91–74, 

document # III–B–2. 

USEPA. January 14, 1994. Technical Background 

Document Supporting Development of Threshold 

Quantities for Regulated Substances under Section 

112(r) of the Clean Air Act. Original Docket# A–91– 

74, document # V–B–2. 

27http://www.cdc.gov/niosh/idlh/584849.html. 

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

29NFPA. 1994. NFPA 325 Guide to Fire Hazard 

Properties of Flammable Liquids, Gases and 

Volatile Solids, 1994 ed. National Fire Protection 

Association, Pg 325–77. 30NFPA. 2010. NFPA Fire Protection Guide to 

Hazardous Materials, 14th ed., Fire Hazard 

Properties of Flammable Liquids, Gases, and 

Volatile Solids. National Fire Protection 

Association. Pg. 325–95. 

should be higher because its much 

lower vapor pressure would result in a 

lower volatilization rate and less 

potential for an air release. The current 

TQs were assigned based on a ranking 

scheme using a Level of Concern (LOC) 

based on acute toxicity and the potential 

for airborne dispersion. For each 

chemical, a ranking factor was 

calculated that equaled the LOC divided 

by an air dispersion factor (V). 

Chemicals were assigned TQs of 500, 

1,000, 2,500, 5,000, 10,000, 15,000 or 

20,000 pounds based on the order of 

magnitude ranges of the ranking factors. 

The LOC was based on the Immediately 

Dangerous to Life and Health (IDLH) 

level developed by the National 

Institute of Occupational Safety and 

Health (NIOSH) or an approximation of 

the IDLH based on animal toxicity data. 

For gases, V = 1, while for liquids, V 

was based on a volatilization model 

using the molecular weight and boiling 

point of the chemical. The TQ 

methodology is described in detail and 

the ranking factors for each chemical are 

provided in the Technical Background 

Documents for the Development of 

Threshold Quantities,26 which are 

available in the public docket for this 

notice. The minimum level of TQ was 

set at 500 pounds to represent a drum 

sized container. The highest TQ of 

20,000 pounds represented typical 

handling quantities and allowed the 

range of thresholds to better reflect the 

relative hazards among the listed toxic 

chemicals. 

Applying EPA’s TQ ranking 

methodology, the ranking factor for TDI 

was 0.73, which was midrange for the 

toxic substances assigned the TQ of 

10,000 pounds. Other toxic chemicals 

assigned the 10,000 pounds TQ had 

ranking factors ranging from 0.3 to 0.9. 

The acute toxicity of TDI is relatively 

high compared to most of the other toxic 

chemicals. The LOC toxicity value of 

TDI is 0.07 g/m3 (10 ppm) and the LOC 

toxicity values for the other toxic 

chemicals range from 0.0025 g/m3 to 4.9 

g/m3 (the lower the LOC toxicity value, 

the more toxic the chemical). 

Although the vapor pressure of TDI is 

much less than the cutoff vapor pressure 

of 10 mm Hg used to select other liquid 

toxic substances, the air dispersion 

factor (V) does not use the vapor 

pressure at ambient temperature to 

determine the volatilization rate. 

Instead, the equation for calculating V 

uses the boiling point of the chemical to 

reflect worst case conditions of 

accidental releases that are likely to 

involve heat (e.g., fires, exothermic 

runaway reactions, or upset process 

conditions), which cause more rapid 

volatilization of the liquid. 

To assign TDI a TQ based on its vapor 

pressure, a different rationale would 

have to be used for determining the 

threshold such as using ambient liquid 

temperature conditions instead of 

boiling liquid temperatures for 

calculating the air dispersion factor V. 

EPA is requesting information on 

whether the methodology for assigning 

TQs should be changed to account for 

the much lower vapor pressure of TDI, 

and if so, information on a rationale for 

how it should be done. 

One consideration for retaining TDI 

on the list of substances despite its low 

vapor pressure is that TDI is known as 

a potent dermal and lung sensitizer. In 

sensitized individuals, exposure to even 

small amounts of diisocyanates may 

cause allergic reactions such as asthmas 

and severe breathing difficulties. The 

LOC toxicity value for TDI was based on 

a 1990 IDLH value of 10 ppm, which 

has since been revised to 2.5 ppm.27 The 

Acute Exposure Guideline Level–2 

(AEGL–2) for a 1-hour exposure has 

been established at 0.083 ppm 28 which 

is a concentration above which it is 

predicted that the general population, 

including susceptible individuals, could 

experience irreversible or other serious, 

long-lasting adverse health effects or an 

impaired ability to escape (see section 

II.D.9 later for further discussion about 

AEGLs). However, neither the revised 

IDHL or AEGL values are based on 

exposures of individuals or animals 

sensitized to TDI. Thus, some accidental 

releases of TDI that would not cause 

severe acute health effects in most 

individuals, may trigger breathing 

problems or severe allergic reactions in 

sensitized individuals. The sensitizing 

nature of TDI should be considered 

when evaluating whether to raise the 

TQ of TDI and perhaps should be 

considered as a reason for lowering the 

TQ instead of raising it. 

One of the flammable chemicals on 

the RMP list, 1,3-pentadiene (CASRN 

504–60–9), fails to meet the 

flammability criteria discussed earlier in 

this section. Its inclusion in the RMP 

list of flammable substances was due to 

a typographical error in the boiling 

point of the substance as reported by 

one reference source. NFPA had listed 

the boiling point for 1,3-pentadiene as 

¥43 °C,29 but according to other data 

sources, it is actually + 43 °C, which is 

above the cutoff of 37.8 °C for an NFPA 

flammability 4 rating. NFPA has since 

corrected the boiling point and changed 

the flammability rating to 3.30

Therefore, 1,3- pentadiene does not 

meet the flammability and volatility 

criteria for RMP-listed flammable 

substances. 

EPA requests information on the 

following questions: 

i. Would it be appropriate for EPA to 

delete TDI (a substance mandated by 

Congress to be included on the initial 

RMP list) from the RMP toxic 

substances list because its vapor 

pressure does not meet the vapor 

pressure listing criteria established by 

EPA? 

ii. If it is not appropriate to delete 

TDI, would it be appropriate for EPA to 

continue to list TDI on the RMP list but 

with a higher TQ for RMP reporting? 

Should the methodology for assigning 

TQs account for the much lower vapor 

pressure of TDI, and if so, how should 

this be done? Currently, the TQ for all 

three TDI listings is 10,000 pounds. 

iii. If it is not appropriate to delete 

TDI because it is a sensitizer, should 

EPA continue to list TDI on the RMP list 

but with a lower TQ because of its 

unique toxicity, and if so, what should 

be the basis for setting a lowered TQ? 

iv. Are there other listed substances 

that should have a higher TQ? If so, 

which ones, what are the appropriate 

TQs, and why? 

v. Should EPA delete from the RMP 

list any of the six substances for which 

the Agency has not received any RMP 

report if the Agency believes that they 

are not widespread in commerce or only 

stored in quantities well below the RMP 

TQ? EPA requests any available 

information about the extent of these six 

chemicals’ manufacture and use in 

commerce, including any annual 

amounts manufactured, imported or 

used in the U.S. 

vi. Is there any reason that EPA 

should not delete 1, 3-pentadiene from 

the RMP list as it does not meet the 

listing criteria for flammable substances 

and was erroneously listed? Are there 

any other RMP substances that are 

known to be listed based on erroneous 

data? 

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31American Institute of Chemical Engineers, 

Center for Chemical Process Safety, Guidelines for 

Risk Based Process Safety, New York, Wiley, 2007. 

32http://www.bsee.gov/Regulations-andGuidance/Safety-and-Environmental-ManagementSystems-SEMS/Fact-Sheet/. 33California Interagency Working Group on 

Refinery Safety: Improving Public and Worker 

Continued 

g. Lowering the Threshold Quantity for 

Substances Currently on the List 

EPA is also seeking information on 

whether the TQ for any substances 

currently on the list should be reduced: 

i. Are the current TQs protective of 

human health and the environment, or 

are there certain substances for which 

the TQ is too high? If so, which 

substances? For such substances, what 

TQ should EPA establish and what 

would it be based on? 

ii. What would be the economic 

impacts of any lowering of the TQ 

which might be warranted? Are there 

any special circumstances involving 

small entities that EPA should consider 

with respect to lowering of a TQ? 

2. Additional Risk Management Program 

Elements 

Approaches to chemical process 

safety have continued to evolve since 

both the RMP regulation and OSHA 

PSM standard were promulgated. New 

management system elements and best 

practices are now being used to address 

human health, worker safety and 

environmental protection. Lessons 

learned from data collected in RMP 

submissions regarding safety 

management systems have also 

informed EPA’s perspective on the 

issue. The Agency is requesting 

information on the management system 

elements OSHA has identified in their 

RFI, but with a focus on their 

applicability to the RMP requirements, 

and how they can enhance the 

protection of human health and the 

environment. 

Like OSHA, EPA is considering three 

elements taken from the Risk Based 

Process Safety Program recommended 

by the Center for Chemical Process 

Safety (CCPS): 31 (1) Measurements and 

Metrics; (2) Management Review and 

Continuous Improvement; and (3) 

Process Safety Competency. A 

‘‘Measurements and Metrics’’ element 

would require the facility to establish 

performance and efficiency indicators to 

track the effectiveness of the risk 

management system and to identify 

opportunities for improvement of its 

elements and work activities. This 

element would guide facilities in 

measuring the real-time performance of 

their process safety management 

systems An example of a measurement 

and metrics indicator would be to track 

the frequency of process upsets and 

near-miss accidents. A ‘‘Management 

Review and Continuous Improvement’’ 

element would focus on ongoing ‘‘due 

diligence’’ management reviews that fill 

the gap between day-to-day work 

activities and periodic formal audits. 

This element would require facilities to 

regularly evaluate the management 

systems in place, as opposed to waiting 

for an incident to occur, or for 

scheduled audits to identify 

deficiencies. A ‘‘Process Safety 

Competency’’ element would 

encompass three interrelated activities: 

(1) To continuously improve on 

knowledge and competency, (2) to 

ensure appropriate information is 

available to those who need it, and (3) 

to consistently apply lessons learned. 

The main focus of this competency 

element is organizational learning, so 

that the process knowledge can be 

applied to situations in order to 

effectively manage risk. 

The Agency is also requesting 

information on two additional 

management-system elements that were 

identified by OSHA in their review of 

relevant safety standards promulgated 

by other federal agencies. Specifically, 

the Bureau of Safety and Environmental 

Enforcement (BSEE) promulgated 

revisions to their Safety and 

Environmental Management Systems 

(SEMS II) requirements (78 FR 20423; 

April 5, 2013) to help ensure the safe 

operations of their regulated facilities. 

The revisions included a number of 

management-system elements not 

addressed in the RMP regulation. The 

two elements the Agency is focusing on 

are a ‘‘Stop Work Authority’’ and an 

‘‘Ultimate Work Authority.’’ In its SEMS 

II Fact Sheet,32 BSEE describes these 

elements as follows: 

• Developing and implementing a 

stop work authority that creates 

procedures and authorizes any and all 

offshore industry personnel who 

witness an imminent risk or dangerous 

activity to stop work. 

• Developing and implementing an 

ultimate work authority that requires 

offshore industry operators to clearly 

define who has the ultimate work 

authority on a facility for operational 

safety and decision-making at any given 

time. 

While the requirements under SEMS 

II focus on offshore facilities under the 

jurisdiction of BSEE, the concept of 

requiring these elements may be 

applicable to facilities subject to the 

RMP regulation. Established procedures 

for any and all employees on the facility 

to implement a stop work authority 

when witnessing an activity that creates 

a threat of danger, and clearly defined 

requirements establishing who has the 

ultimate authority on the facility for 

operational safety and decision making 

at any given time could help to better 

protect human health and the 

environment. 

In addition to the management system 

elements identified in the OSHA RFI, 

EPA is also interested in receiving 

public comment on whether there are 

other accident prevention elements that 

should be considered for inclusion in 

the RMP regulation. The Agency notes 

that both the CCPS Guidelines for Risk 

Based Process Safety and the BSEE 

SEMS regulations contain additional 

management system elements not 

present in the RMP regulation. One such 

element is ‘‘conduct of operations’’ 

which CCPS defines as ‘‘the execution 

of operational and management tasks in 

a deliberate and structured manner.’’ 

Conduct of operations includes a variety 

of measures such as formal 

communications between workers, work 

groups, and work shifts. It also involves 

establishing clear rules governing access 

to key process areas, such as control 

rooms, performing regular tours or 

rounds to monitor equipment status and 

keeping written shift logs of equipment 

status and ongoing process activities, 

maintaining clear and accurate labeling 

for process equipment, and maintaining 

good housekeeping in process areas. 

Another element contained in the 

CCPS Guidelines is ‘‘process safety 

culture.’’ CCPS defines process safety 

culture as ‘‘the combination of group 

values and behaviors that determine the 

manner in which process safety is 

managed.’’ Poor safety culture can lead 

to accidents by allowing production 

pressures to overshadow safety 

concerns, or by limiting the free 

exchange of important safety 

information among plant personnel. 

Safety culture has been implicated in 

recent serious accidents, such as the 

August 2012 accident at the Chevron 

refinery in Richmond, California. In that 

accident, the CSB found indications that 

a weak safety culture may have led to 

the normalization of deviance in the 

refinery’s mechanical integrity 

management system. Consequently, the 

California Interagency Working Group 

on Refinery Safety published a report 

concluding that both the California 

OSHA PSM requirements and the 

California Accidental Release 

Prevention RMP requirements should be 

strengthened to require California 

refineries to conduct safety culture 

assessments at least every three years.33

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44616 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

Safety at Oil Refineries, California Environmental 

Protection Agency, February 2014, http://

www.calepa.ca.gov/Publications/Reports/2014/

RefineryRpt.pdf. 

34CSB, Investigation Report—Xcel Energy 

Hydroelectric Plant Penstock Fire, U.S. Chemical 

Safety and Hazard Investigation Board (Report No. 

2008–01–I–CO, August 2010). http://www.csb.gov/

assets/1/19/Xcel_Energy_Report_Final.pdf. 

The BSEE SEMS regulations contain 

requirements to conduct a ‘‘Job Safety 

Analysis.’’ BSEE indicates that the Job 

Safety Analysis (JSA) is an operations/ 

task level hazard analysis technique 

used to identify risks to personnel 

associated with their job activities. The 

Agency is requesting public comment 

on whether these or other additional 

management system elements should be 

added to the RMP regulation, and 

whether and how these elements relate 

to prevention of accidental releases. 

Additionally, the Agency seeks public 

comment on whether management 

system elements that are currently 

contained within the RMP regulation 

should be modified, clarified or 

strengthened. For example: 

• Contractors are increasingly used in 

a variety of roles at chemical process 

facilities, yet the RMP rule imposes 

fewer safety requirements on contractor 

owners and operators than on the 

owners and operators of the regulated 

stationary source. In October 2007, five 

contractor workers were killed at Xcel 

Energy, in Georgetown, Colorado, when 

a fire occurred inside a tunnel at the 

company’s hydroelectric power plant. 

The CSB found that inadequate 

contractor safety practices and oversight 

contributed to the accident; 34

• The RMP rule requires owner/

operators to conduct a Process Hazard 

Analysis (PHA) for Program 3 processes 

and a hazard review for Program 2 

processes. PHAs and hazard reviews are 

intended to identify potential 

equipment malfunctions or human 

errors that could cause an accidental 

release, and safeguards needed to 

prevent such malfunctions and errors. 

However, the rule does not explicitly 

describe the types of failure scenarios or 

damage mechanisms that must be 

considered during PHAs and hazard 

reviews, and during some compliance 

inspections EPA has reviewed PHAs 

and hazard reviews that did not address 

failure scenarios such as natural 

disasters (e.g., floods, earthquakes, 

hurricanes, etc.), corrosion, vehicle 

collisions, and others. Additionally, the 

rule requires hazard reviews to be 

‘‘updated’’, and PHAs to be ‘‘updated 

and revalidated’’ at least every five 

years, but does not clearly define what 

is required in order for a hazard review 

to be updated or for a PHA to be 

updated and revalidated. EPA is 

interested in receiving comment on 

whether PHA and hazard review 

requirements should be clarified, and 

whether hazard review and PHA 

updates should be required more 

frequently than every five years, or 

whether certain events should trigger 

hazard review or PHA updates prior to 

the next scheduled 5-year update. 

• The Pre-Startup Review element 

(section 68.67) requires the owner or 

operator to perform a pre-startup review 

for new stationary sources and for 

modified stationary sources when the 

modification is significant enough to 

require a change in the process safety 

information. However, the rule does not 

clearly state what modifications would 

require a change in process safety 

information. Also, EPA notes that 

process unit startup is a significantly 

more hazardous period compared to 

normal process operations, and that 

serious accidents such as the March 23, 

2005 explosion at the BP America 

refinery in Texas City, Texas have 

occurred during process startup even 

when no significant equipment 

modifications were made to the process 

during the preceding turnaround. 

EPA requests information on any 

additional management-system 

elements or on potentially modifying, 

clarifying or expanding existing 

elements, including those discussed in 

this RFI, which would serve to improve 

protection of human health and the 

environment. The Agency welcomes 

data and information on managementsystem elements from consensus 

standards, safety organizations, federal 

standards, or other sources that could 

increase process safety if the RMP 

regulation were expanded to include 

them. The Agency invites the public to 

respond to any questions for which they 

have specific knowledge, data, or 

information, regardless of their 

involvement in RMP-regulated 

operations. Specifically, EPA requests 

information on the following questions: 

a. Does your facility follow any 

management-system elements not 

required under part 68 for RMPregulated operations? If so, please 

describe the additional managementsystem elements, the safety benefits, any 

economic impacts associated with 

following the elements, and any special 

circumstances involving small entities. 

b. Would expanding the scope of the 

RMP regulation to require additional 

management-system elements, or 

expanding the scope of existing RMP 

management-system elements, improve 

the protection of human health and the 

environment? Should EPA require 

safety culture assessments, job safety 

analyses, or any of the other new 

management system elements described 

above? If so, please describe the 

elements, the safety benefits, any 

economic impacts associated with 

expanding the scope of the RMP 

regulation in this way, and any special 

circumstances involving small entities 

that EPA should consider. Would 

current staff at a facility be able to 

implement these additional elements or 

would new staff need to be hired? 

c. In systems using management and 

metrics, how do facilities develop useful 

leading indicators? Do you track the 

frequency of events such as process 

upsets, accidental releases, and ‘‘near 

miss’’ incidents? Does tracking such 

events allow managers and employees 

to make changes that prevent accidental 

releases? What other metrics and 

indicators do you use, and how do they 

help prevent releases? 

d. Would requiring RMP facilities to 

conduct periodic safety culture 

assessments meaningfully strengthen 

the safety culture incentives that already 

exist, such as avoidance of deaths, 

injuries, property and environmental 

damage, production loss, community 

impacts, damage to company reputation, 

etc., that may result from accidents? 

e. Would expansion of the RMP 

employee participation provision to 

include requirements such as the SEMS 

II stop-work authority, or other efforts to 

involve employees in all managementsystem elements, enhance protection of 

human health and the environment? 

f. Are there any other managementsystem elements in the existing RMP 

regulation that EPA should expand or 

clarify (e.g., a new requirement that 

facilities perform a root-cause analysis 

for incidents under § 68.81, clarify PHA 

and hazard review requirements, require 

more frequent PHA and hazard review 

updates, strengthen contractor 

requirements, or require pre-startup 

reviews prior to all process startups)? If 

so, please describe the additional 

requirements, the safety benefits, any 

economic impacts associated with 

expanding the RMP regulation in this 

way, and any special circumstances 

involving small entities that EPA should 

consider. 

g. Are there any data or information 

on accidents, near misses, or other 

safety-related incidents that the facility 

could have prevented by following 

management-system elements not 

currently required under the RMP 

regulation? 

h. What would be the paperwork 

burden associated with the revisions to 

management-system elements discussed 

above? What special skills or training 

would employees need to implement 

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these elements, including associated 

reporting and recordkeeping 

requirements? What would be the costs 

of additional reporting and 

recordkeeping requirements, including 

costs for worker training and any 

required data management system 

upgrades? 

3. Define and Require Evaluation of 

Updates to Applicable Recognized and 

Generally Accepted Good Engineering 

Practices 

The OSHA PSM standard’s references 

to recognized and generally accepted 

good engineering practices (RAGAGEP) 

are almost identical to those contained 

in Subpart D of 40 CFR part 68 (i.e., 

Program 3 Prevention Program). 

§ 68.65(d)(2) requires the owner or 

operator to ‘‘document that equipment 

complies with recognized and generally 

accepted good engineering practices.’’ 

At facilities with ‘‘existing equipment 

designed and constructed in accordance 

with codes, standards, or practices that 

are no longer in general use,’’ 

§ 68.65(d)(3) further requires the owner 

or operator to ‘‘determine and document 

that the equipment is designed, 

maintained, inspected, tested, and 

operating in a safe manner.’’ These 

requirements parallel the requirements 

in paragraphs (d)(3)(ii) and (d)(3)(iii) of 

§ 1910.119, respectively, with the only 

difference being that OSHA uses the 

term ‘‘employer’’ where EPA uses the 

term ‘‘owner or operator.’’ The RMP rule 

and PSM standard also contain identical 

references to RAGAGEP in § 68.73/

§ 1910.119(j) (i.e., Mechanical Integrity). 

Additionally, Subpart C of 40 CFR part 

68 (i.e., Program 2 Prevention Program) 

contains references to RAGAGEP in 

§ 68.48 (Safety information) and § 68.56 

(Maintenance). 

EPA requests information on the 

following questions: 

a. What does your facility use as a 

definition for RAGAGEP? Would adding 

a definition for RAGAGEP to the RMP 

rule improve understanding of RMP 

requirements and prevent accidental 

releases? If so, what specific definition 

for RAGAGEP should EPA add to the 

RMP rule? What would be the economic 

impacts of adding such a definition? 

b. From what sources (e.g., codes, 

standards, published technical reports, 

guidelines, etc.) does your facility select 

applicable RAGAGEP for operations 

covered under the PSM standard? 

c. Does your facility evaluate updates 

to its selected RAGAGEP? If so, how 

does your facility monitor any updates, 

and how often do you evaluate them? 

d. Please provide any data or 

information on accidents, near misses, 

or other safety-related incidents 

involving failure to evaluate and/or 

implement updates to applicable 

RAGAGEP for RMP-covered processes. 

Would requiring employers to evaluate 

and/or implement updates to applicable 

RAGAGEP prevent such accidental 

releases? 

e. Should owners or operators covered 

by the applicable provisions of the RMP 

regulation be required to evaluate 

updates to applicable RAGAGEP? 

Should owners and operators be 

required to comply with new RAGAGEP 

requirements that occur after the owner 

or operator’s initial compliance with the 

applicable provision of the RMP 

regulation? How would such updates or 

new requirements be identified? What 

would be an appropriate time period in 

which to conduct this evaluation and/or 

to comply with updated RAGAGEP? 

What would be the economic impacts of 

this change? 

f. Would a requirement to evaluate 

updates to applicable RAGAGEP be 

more appropriate in another paragraph 

of the RMP rule? For example, should 

such a requirement become part of the 

Process Hazard Analysis revalidation 

requirements at § 68.67(f), or the 

management of change requirements at 

§ 68.75? How would EPA incorporate 

such a requirement for Program 2 

processes? 

4. Extend Mechanical Integrity 

Requirements To Cover Any SafetyCritical Equipment 

EPA is interested in receiving 

information on whether the scope of the 

mechanical integrity provisions of the 

RMP rule should be expanded to cover 

the mechanical integrity of any safetycritical equipment, and whether 

additional mechanical integrity 

requirements should be added to the 

rule’s provisions. In its RFI, OSHA notes 

that the mechanical integrity provisions 

of the PSM standard apply to six 

specific categories of equipment, 

including pressure vessels and storage 

tanks, piping systems (including piping 

components such as valves), relief and 

vent systems and devices, emergency 

shutdown systems, controls (including 

monitoring devices and sensors, alarms, 

and interlocks), and pumps. While these 

categories of equipment encompass 

most safety-critical equipment within 

regulated processes, during some 

compliance inspections EPA has 

observed that facilities have failed to 

apply mechanical integrity program 

measures to certain additional types of 

equipment and systems that could 

reasonably be judged to be critical to 

process safety. Examples of such 

equipment would include computer 

software systems that interact with 

process components, electrical power 

systems, and other utility systems that 

interact with pumps, valves, or control 

systems. 

EPA notes that the RMP Program 2 

maintenance requirements, which were 

intended as a streamlined version of the 

mechanical integrity requirements for 

Program 3 processes, apply to all 

process equipment, rather than being 

restricted to specific categories of 

equipment. This potentially causes the 

unintended result where certain aspects 

of a process subject to Program 2 must 

meet more rigorous maintenance 

requirements than the same equipment 

located in a Program 3 process. EPA is 

interested in receiving feedback on 

whether expanding the scope of the 

Program 3 mechanical integrity 

requirements or reducing the scope of 

the Program 2 maintenance 

requirements would appropriately 

address this potential discrepancy. 

In addition to expanding the scope of 

the rule’s existing mechanical integrity 

provisions to cover any safety critical 

equipment, EPA is also interested in 

whether additional requirements should 

be added to this section, or whether any 

existing requirements need to be 

clarified. For example, emergency 

shutdown systems are one type of 

process equipment covered under the 

rule’s mechanical integrity provisions. 

However, the regulation does not 

explicitly require that all covered 

sources install emergency shutdown 

systems. 

EPA requests information on the 

following questions: 

a. Should EPA amend the mechanical 

integrity provisions of the RMP rule to 

explicitly cover all safety critical 

process equipment? If so, what type(s) 

of equipment? Did you identify safetycritical equipment not explicitly 

covered under § 68.73? If so, how did 

your facility determine that the 

equipment was safety-critical, and does 

your facility treat the equipment as if it 

were RMP-covered for safety or other 

reasons? Did you identify the equipment 

as safety-critical through an RMP 

process hazard analysis? 

b. Please provide any data or 

information on accidental releases, near 

misses, or other safety-related incidents 

related to the mechanical integrity of 

safety-critical equipment not explicitly 

covered under § 68.73. 

c. Would expanding the scope of 

§ 68.73 to explicitly cover the integrity 

of all equipment critical to process 

safety make it more likely to prevent 

accidental releases? 

d. Should EPA add additional 

requirements to the mechanical integrity 

provisions, or clarify any existing 

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35United States of America Occupational Safety 

and Health Administration, BP Products North 

America Inc. Settlement Agreement, September 21, 

2005. 

36American Institute of Chemical Engineers, 

Center for Chemical Process Safety, Guidelines for 

Risk Based Process Safety, New York, Wiley, 2007. 

provisions? For example, should the 

Agency require that certain types of 

covered facilities install emergency 

shutdown systems, such as redundant 

power supplies, emergency flares, vents, 

or scrubbers, etc., in order to prevent 

accidental releases resulting from 

uncontrolled emergency shutdowns? 

e. Are there any other provisions of 

this section that should be enhanced or 

clarified? Does labeling § 68.73 as 

‘‘Mechanical Integrity’’ cause owners 

and operators to disregard or neglect the 

maintenance, functionality, or integrity 

of process components that would not 

typically be considered ‘‘mechanical’’ 

components, such as electrical and 

computer systems? 

f. What would be the economic 

impacts of revising the mechanical 

integrity provisions as discussed above? 

Are there any special circumstances 

involving small entities that EPA should 

consider with respect to revising the 

mechanical integrity provisions of the 

RMP? 

5. Require Owners and Operators To 

Manage Organizational Changes 

In its RFI, OSHA notes that while the 

PSM standard requires employers to 

establish and implement written 

procedures to manage change, including 

all modifications to equipment, 

technology, procedures, raw materials, 

and processing conditions other than 

replacement in kind, the standard does 

not explicitly require employers to 

follow management-of-change 

procedures for organizational changes, 

such as changes in management 

structure, budget cuts, or personnel 

changes. However, OSHA highlights a 

policy interpretation indicating that it is 

OSHA’s view that the PSM standard 

does cover organizational changes if the 

changes have the potential to affect 

process safety. Additionally, OSHA 

notes the 2005 BP Texas City Refinery 

accident, where the CSB identified a 

lack of organizational management of 

change as a significant causal factor in 

the accident. 

The RMP rule contains management 

of change requirements for Program 3 

processes (see § 68.75) that are virtually 

identical to the PSM standard. 

Therefore, EPA is also interested in 

receiving public comment on whether 

the RMP rule’s management of change 

requirements should be expanded to 

include management of organizational 

changes. 

EPA requests information on the 

following questions: 

a. What do you consider to be an 

organizational change within the 

context of process safety management 

practices? For example, would you 

consider the following, or similar, 

changes to be organizational changes: 

Reducing the number of operators in a 

shift; changing from 5-day to 7-day 

operations; changing from 8-hour to 12- 

hour operator shifts; replacing a unit 

manager; reducing the facility 

operations or maintenance budget; 

relocating a technical group to a remote 

corporate location; changing a 

supervisory or compensation structure; 

or hiring contractors to do work 

formerly performed by employees of the 

regulated facility? Are there other 

examples of organizational changes that 

may be relevant to safety management 

practices? 

b. If your facility has established and 

implemented written procedures for 

management of organizational changes, 

please describe any economic impacts 

associated with the procedures. Please 

note any implementation challenges 

that may be associated with requiring 

that such procedures be developed and 

followed. 

c. Would clarifying § 68.75 with an 

explicit requirement that employers 

manage organizational changes prevent 

accidental releases? What would be the 

economic impact of such a clarification? 

Are there any special circumstances 

involving small entities that EPA should 

consider with respect to this option? 

d. Please describe any organizational 

changes made in your facility that have 

had the potential to affect process 

operations. Were management-of-change 

procedures followed before making the 

changes? 

e. What do you consider to be the best 

safety practices concerning management 

of organizational change? 

f. Please provide any data or 

information on accidents, near misses, 

or other safety-related incidents 

involving the failure to manage 

organizational change. Would following 

management-of-change procedures 

under § 68.75 have prevented these 

incidents? 

6. Require Third-Party Compliance 

Audits 

Sections 68.58 and 68.79 of the RMP 

regulation (Program 2 and 3 Compliance 

Audits) are almost identical in language 

to that found in 1910.119(o) of the 

OSHA PSM standard, with PSM’s focus 

on worker safety and RMP’s on 

protecting human health and the 

environment. Both section 68.58 and 

68.79 require that ‘‘the owner or 

operator shall audit the compliance 

with the provisions of the subpart at 

least every three years.’’ In addition, 

both require that ‘‘the compliance audit 

shall be conducted by at least one 

person knowledgeable in the process.’’ 

Neither OSHA nor EPA requires 

employers to use a third-party in 

conducting compliance audits. 

There may be advantages to thirdparty audits. For example, OSHA’s RFI 

discusses CSB’s findings concerning a 

lack of rigorous compliance audits in 

the 2005 BP Texas City Refinery 

explosion accident. OSHA’s settlement 

with BP Texas City required BP to retain 

a third-party compliance auditor with 

adequate experience.35 The CCPS argues 

that experienced third-party auditors, 

like those provided by consulting 

companies, can provide the most 

objectivity.36

Additionally, BSEE’s Safety and 

Environmental Management Systems 

(SEMS) standard, 30 CFR 250, Subpart 

S, requires that audits be conducted by 

independent third-parties subject to 

BSEE approval, or to avoid conflict of 

interest, personnel that are considered 

to be qualified by the employer. In their 

revisions to the SEMs II final rule, BSEE 

discussed its third-party-auditing 

requirements. 

EPA seeks information on whether to 

revise 40 CFR 68.58 and 68.79 to require 

facility owners and operators to use a 

third-party for compliance audits, on 

whether requiring a third-party auditing 

process would increase protection of 

human health and the environment, and 

on whether the existing compliance 

audit requirements are sufficiently clear 

or if changes should be made to 

strengthen the audit requirements. 

Specifically, EPA requests information 

on the following questions: 

a. Does your facility use a third-party 

for conducting compliance audits under 

§ 68.58 and § 68.79 for safety or other 

reasons? What was the basis for that 

decision? How has it affected the overall 

safety record of your facility? 

b. Please provide any data or 

information on accidents, near misses, 

or other safety-related incidents that 

could have been prevented by 

conducting more effective compliance 

audits for operations covered under 

§ 68.58 and § 68.79. What were the 

deficiencies in those audits? Were the 

audits in question conducted by inhouse staff or a third party? 

c. Would revising § 68.58 and § 68.79 

to require owners and operators of RMPregulated facilities to use a third-party 

for compliance audits help prevent 

accidental releases? What would be the 

economic impacts of revising § 68.58 

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Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 44619 

37This would mean that formerly Program 2 

processes would henceforth be subject to the 5 

Program 3 management system elements not 

required under Program 2 (i.e., Management of 

change, Pre-startup review, Employee participation, 

Hot work permits, and Contractors), as well as the 

Continued 

and § 68.79 in this way (e.g., typical 

consultant fees, additional work hours 

required, special circumstances 

involving small entities, etc.)? 

d. Should EPA revise § 68.58 and 

§ 68.79 to require owners and operators 

to use compliance auditors (internal or 

third-party) with certain minimum 

credentials or certifications? If so, what 

minimum credentials or certifications 

should the Agency require? 

e. How should owners/operators of 

RMP-regulated facilities address the 

findings of the third-party auditor? 

Should EPA amend the RMP rule to 

require owners/operators to document 

how they addressed each of the findings 

of the third-party auditor? Should a 

timeframe for addressing those findings 

be included in the RMP regulation? 

Should EPA include a procedure for 

how an owner/operator may appeal the 

findings of the third-party auditor? 

f. Should EPA require facilities that 

have incidents or near misses to 

conduct a full compliance audit under 

§ 68.58 or § 68.79, as appropriate? 

Would such a requirement create a 

perverse incentive to underreport 

incidents or near misses? 

g. During compliance inspections at 

multiple-process sources, EPA 

inspectors have noted that some owners 

or operators have audited only a subset 

of covered processes at the source. 

Should EPA clarify § 68.58 and § 68.79 

to explicitly indicate that all covered 

processes must receive a full 

compliance audit at least every three 

years? 

h. Does the identity of the auditor 

(e.g., in-house, contractor, 

professionally-certified, party licensed 

by EPA) affect the credibility of the 

audit for potentially impacted 

communities? 

7. Effects of OSHA PSM Coverage on 

RMP Applicability 

RMP Program 2 applies to processes 

not eligible for Program 1 or subject to 

Program 3, whereas Program 3 applies 

to processes not eligible for Program 1 

and either subject to OSHA’s PSM 

standard under federal or state OSHA 

programs or classified in one of ten 

specified NAICS codes (see section 

II.B.10 for a listing of Program 3 NAICS 

codes). A review of the current RMP 

national database indicates that 

approximately 5,360 RMP facilities have 

reported Program 2 processes within 

their RMP (in most cases, these facilities 

have reported a single covered process). 

Approximately 4,000 (75 percent) of 

these are bulk agricultural chemical 

distributors such as West Fertilizer. 

These facilities generally store large 

quantities of anhydrous ammonia, as 

well as other agricultural chemicals, for 

distribution or sale. Although the 

presence of anhydrous ammonia above 

an RMP TQ in a process would 

normally make that process subject to 

both Program 3 requirements (assuming 

it did not qualify for Program 1 by virtue 

of its remote location and lack of 

accident history) as well as OSHA PSM, 

these facilities generally claim that they 

are exempt from the OSHA PSM 

standard, and therefore eligible for RMP 

Program 2, based on the OSHA ‘‘retail 

facility’’ exemption in 29 CFR 

1910.119(a)(2)(i). 

In its RFI, OSHA has requested 

information on whether that Agency 

should change its enforcement policy 

for retail facilities. OSHA notes that its 

current application of the PSM 

exemption for retail facilities is 

inconsistent with the normal meaning of 

‘‘retail’’ and the explanation of the 

purpose of the exemption provided in 

the preamble to the PSM standard. The 

OSHA RFI states: ‘‘As stated in the 

preamble, OSHA chose to exclude retail 

facilities from PSM coverage because 

the limited container, package, or 

allotment sizes of the chemicals 

typically found at these facilities do not 

present the same safety hazards as those 

encountered at establishments working 

with large, bulk quantities of materials. 

. . . As a result of increased workplace 

hazards associated with large, bulk 

quantities of highly hazardous 

chemicals, OSHA believes that only 

retail-trade facilities listed in NAICS 

sectors 44 and 45 that sell highly 

hazardous chemicals in small 

containers, packages, or allotments to 

the general public qualify for the retailfacilities exemption in 29 CFR 

1910.119(a)(2)(i).’’ 

If OSHA were to change its policy 

such that only facilities selling small 

containers, packages, or allotments to 

the general public would qualify for the 

retail facilities exemption, EPA believes 

that virtually every bulk agricultural 

chemical distribution facility process 

currently claiming Program 2 eligibility 

under the RMP regulation would 

henceforth be subject to Program 3 

(unless the process were to meet 

Program 1 eligibility criteria). 

Of the remaining (i.e., nonagricultural) Program 2 processes, over 

70 percent are water or wastewater 

treatment facilities located in states 

without federally-delegated, state-run 

occupational safety and health 

programs. These facilities are generally 

not subject to PSM requirements 

because they are operated by state or 

municipal government employees, who 

are not subject to federal OSHA 

standards in states without delegated 

OSHA programs, (i.e., federal OSHA 

only regulates private employers). It is 

a peculiarity of the RMP regulation that 

two identical RMP-covered water or 

wastewater treatment plants—one 

located in a state with a state OSHA 

program and the other in a state without 

a state-delegated OSHA program—are 

subject to different levels of accident 

prevention requirements under the RMP 

rule. Non-PSM-covered water and 

wastewater treatment facilities are not 

classified as Program 3, by definition. 

Water and wastewater treatment 

facilities are covered under the RMP 

regulation due to the presence of large 

quantities of highly toxic substances, 

such as chlorine and sulfur dioxide. 

Processes in private industry sectors 

involving similar quantities of these 

chemicals are virtually always subject to 

Program 3 as a result of their risk to 

nearby receptors. EPA is interested in 

receiving public comment on whether 

RMP-covered municipal water and 

wastewater plants that are not eligible 

for Program 1 should also be subject to 

RMP Program 3, regardless of whether 

or not they are located in a state with 

a federally-delegated OSHA program. 

Other than bulk agricultural chemical 

distributors and water and wastewater 

treatment facilities, there are fewer than 

400 RMP facilities currently reporting 

Program 2 processes to EPA. Of these, 

EPA believes that approximately half 

are either non-agricultural bulk 

chemical distributors that would also 

become Program 3 in the event that 

OSHA were to restrict eligibility for its 

PSM retail exemption, or processes that 

incorrectly reported as Program 2 in 

their RMP (i.e., processes that are 

actually already subject to Program 3). 

In summary, if OSHA were to restrict 

eligibility for its retail exemption to 

facilities selling small containers, 

packages, or allotments to the general 

public, and EPA were to require all 

RMP-covered water and wastewater 

treatment plants not eligible for Program 

1 to comply with Program 3, EPA 

believes that there would be 

approximately 200 RMP-covered 

processes nationwide that would remain 

eligible for Program 2. In light of these 

facts, EPA invites comment on whether 

it should modify Program 2 eligibility 

criteria, or alternatively, eliminate 

Program 2 and require all formerly 

Program 2 processes to comply with 

Program 3 or Program 1 requirements.37

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44620 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

more rigorous versions of the 7 Program 3 elements 

for which there are Program 2 analogs (e.g., 

Mechanical integrity under Program 3 vs 

Maintenance under Program 2). 

38 In this document, ‘‘safer technology and 

alternatives’’ refer to risk reduction strategies 

developed through an analysis using a hierarchy of 

controls. 

39http://www.epa.gov/emergencies/docs/chem/

gdcregionalguidance.pdf. 

40See 61 FR 31700. 

41Chemical Facility Safety and Security Working 

Group, Executive Order 13650 Report to the 

President—Actions to Improve Chemical Facility 

Safety and Security—A Shared Commitment, May 

2014; https://www.osha.gov/

chemicalexecutiveorder/final_chemical_eo_status_

report.pdf. 

42https://www.documentcloud.org/documents/

404584-petition-to-epa-to-prevent-chem-disastersfiled.html, at 10. 

43CCPS Final Report: Definition for Inherently 

Safer Technology in Production, Transportation, 

Storage, and Use, July 2010. 

44American Institute of Chemical Engineers, 

Center for Chemical Process Safety, Inherently Safer 

Chemical Processes: A Life Cycle Approach, Second 

Edition, New York, Wiley, 2009. 

EPA requests information on the 

following questions: 

a. Do you currently operate a facility 

with Program 2 covered processes? 

Please indicate what type of Program 2 

process your facility operates. Do you 

implement accident prevention 

measures that go beyond RMP Program 

2 for this process? If so, why? What 

additional prevention elements do you 

use? Do you believe Program 2 

requirements are necessary for the safe 

operation of this process? Do you have 

any Program 2 processes that may be 

adequately managed under Program 1? 

Please explain the basis for your views. 

b. Do you operate a water or 

wastewater treatment plant that is 

subject to the RMP regulation? If so, 

what level of accident prevention 

requirements do you believe are 

warranted for such facilities? If you 

operate a Program 2 process at a water 

or wastewater treatment plant, how 

much additional burden would be 

involved in implementing the 

additional RMP elements required for 

Program 3 processes? 

c. Should RMP-covered municipal 

water and wastewater plants that are not 

eligible for Program 1 always be subject 

to RMP Program 3, regardless of 

whether or not they are located in a 

state with a Federally-delegated OSHA 

program? Why or why not? 

d. If OSHA restricts its retail 

exemption to facilities selling regulated 

substances in small containers, should 

EPA eliminate RMP Program level 2 

entirely or alternatively, modify 

Program 2 prevention elements or 

otherwise change the eligibility criteria 

for Program 2? If so, why? 

e. Would eliminating Program level 2 

simplify rule compliance for the 

regulated universe and improve human 

and environmental health and safety, or 

does the current three-tiered prevention 

program framework under the RMP 

provide an appropriate level of 

protection? 

f. What would be the economic 

impacts of modifying or eliminating 

Program level 2? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to modifying or eliminating Program 2? 

D. Additional Items for Which EPA 

Requests Information 

This section discusses items that were 

not previously raised in the OSHA RFI. 

Each item discussion is followed by 

specific questions to collect data, 

information, and comments on each 

issue. 

1. Safer Technology and Alternatives 

Analysis 

EPA has recognized the importance of 

considering safer technology and 

alternatives techniques 38 that may 

result in improved process safety. EPA’s 

existing guidance 39 on the ‘‘general 

duty clause’’ in CAA section 112(r)(1) 

states that, ‘‘The owners and operators 

should try to substitute less hazardous 

substances for extremely hazardous 

substances or minimize inventories 

when possible. This is usually the most 

effective way to prevent accidents and 

should be the priority of a prevention 

program.’’ 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.’’ 40 Additionally, the structure of 

the applicability provisions of the RMP 

rule, with TQs, encourages minimizing 

the presence of regulated substances in 

processes. Thus, EPA’s historic 

approach to safer technology and 

alternatives under CAA section 112(r) 

has encouraged many chemical plant 

operators to introduce safer technology 

and alternatives to help reduce the 

overall risk of their facilities but has not 

mandated their use or analysis. As we 

noted in the preamble to the 1996 final 

RMP rule, ‘‘Application of good PHA 

techniques often reveals opportunities 

for continuous improvement of existing 

processes and operations without a 

separate analysis of alternatives’’ (61 FR 

31674, June 20, 1996). In addition, in 

CAA Section 112(r) enforcement cases, 

facilities have occasionally entered into 

consent agreements involving 

implementation of safer alternatives. As 

a result of the Executive Order 13650 

Report for the President,41 EPA and 

other agencies will be considering 

various additional actions related to 

safer technologies and alternatives. 

In July of 2012, a coalition 

representing 54 organizations and 

individuals petitioned EPA to use its 

rulemaking authority under CAA 

section 112(r)(7)(A), ‘‘to require the use 

of inherently safer technologies, where 

feasible, by facilities that use or store 

hazardous chemicals.’’ The petitioners 

also requested that ‘‘pending 

completion of a rulemaking under 

section CAA 112(r)(7)(A), EPA revise its 

guidance concerning the enforcement of 

the Clean Air Act’s general duty clause, 

section 112(r)(1), 42 U.S.C. 7412(r)(1), to 

make clear that the duty to prevent 

releases of extremely hazardous 

substances includes the use, where 

feasible, of safer technologies to 

minimize the presence and possible 

release of hazardous chemicals.’’42

While EPA shares the petitioner’s goal 

of preventing hazardous chemical 

releases and minimizing their risk to 

communities, the Agency requests 

additional information on possible 

approaches to promoting risk reduction 

through safer technology and 

alternatives. 

A July 2010 Department of Homeland 

Security (DHS) report prepared by 

CCPS 43 described inherently safer 

technology (IST) as a philosophy and an 

iterative process, including eliminating 

a hazard, reducing a hazard, substituting 

a less hazardous material, using less 

hazardous process conditions, and 

designing a process to reduce the 

potential for, or consequences of, 

human error, equipment failure, or 

intentional harm. It stated that there is 

no clear boundary between IST and 

other strategies, that ISTs are relative 

and can only be described as inherently 

safer when compared to a different 

technology, including a description of 

the hazard or set of hazards being 

considered, their location, and the 

potentially affected population. Because 

an option may be inherently safer with 

regard to some hazards and inherently 

less safe with regard to others, the 

decision process must consider the 

entire life cycle, the full spectrum of 

hazards and risks, and the potential for 

transfer of risk from one impacted 

population to another. This report also 

noted that there is currently no 

consensus on either a quantification 

method for IST or a scientific 

assessment method for evaluation of IST 

options. 

The CCPS has also published a 

guideline book 44 intended to provide 

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45http://dels.nas.edu/resources/static-assets/

materials-based-on-reports/reports-in-brief/MICSummary-Final.pdf 

46See: http://www.nj.gov/dep/rpp/brp/tcpa/

downloads/IST_guidance.pdf; http://

www.njwec.org/PDF/Factsheets/CS_IST_

FactSheet.pdf. 

47See: http://www.nj.gov/dep/rpp/brp/tcpa/

downloads/IST_SUMWEB.pdf. 

48See: http://cchealth.org/hazmat/pdf/iso/2006_

iso_official_code_complete.pdf. 

49See: http://cchealth.org/hazmat/pdf/iso/isoreport.pdf. 

50See: http://www.csb.gov/assets/1/7/Tesoro_

Anacortes_2014-May-01.pdf. 

51See: http://www.csb.gov/assets/1/19/Chevron_

Interim_Report_Final_2013-04-17.pdf. 

tools and guidance on approaches to 

implementing inherent safety. Among 

other information, the book contains an 

extensive checklist intended to assist 

industrial facilities with reviewing 

existing hazards and their safeguards, 

evaluating the feasibility of inherently 

safer alternatives, and documenting the 

results of this analysis. 

A 2012 National Academy of Sciences 

report 45 found that while inherently 

safer process assessments can be 

valuable components of process safety 

management, inherently safer process 

assessments will not always result in a 

clear, well-defined, and feasible path 

forward. Although one process 

alternative may be inherently safer with 

respect to one hazard—toxicity of 

byproducts, for example—the process 

may present other hazards, such as an 

increased risk of fire or more severe 

environmental impacts. Choosing 

between options for process design 

involves considering a series of tradeoffs 

and developing appropriate 

combinations of inherent, passive, 

active, and procedural safety systems to 

manage all hazards. 

There are some state and local 

governments that have included 

inherent safety requirements in their 

regulations. An IST Review Rule was 

adopted under the New Jersey TCPA 

program in May 2008. It requires IST 

reviews of all facilities covered by the 

TCPA by evaluating the four IST 

principles: Minimization, substitution, 

moderation, and simplification. The 

rule includes a checklist developed 

under the direction of the New Jersey 

Domestic Security Preparedness Task 

Force. The New Jersey Department of 

Environmental Protection recommends 

three methods for IST analysis: 46 (1) 

Reviewing and completing a checklist 

containing a number of practical 

inherent safety considerations, (2) 

avoiding a particular hazard at a part of 

the process by employing a particular 

inherently safety strategy and (3) 

integrating IST into the facility’s PHA 

study. A facility must determine an 

identified alternative’s feasibility, and 

must provide written justification based 

on both qualitative and quantitative 

evaluations of environmental, human 

health and safety, legal, technological, 

and economic factors if it decides not to 

implement it. For IST alternatives 

implemented, an implementation 

schedule must be provided. A January, 

2010 report prepared by the New Jersey 

Department of Environmental Protection 

to summarize the Department’s review 

of 85 IST reports indicated that 

approximately 48% of facilities reported 

that they had implemented or scheduled 

to implement IST measures as a result 

of conducting the IST review.47

California’s Contra Costa County’s 

Industrial Safety Ordinance 48 requires 

stationary sources to consider IST in the 

development and analysis of mitigation 

systems resulting from a process hazard 

analysis for each covered process, and 

in the design and review of new 

processes and facilities. The stationary 

source must select and implement 

inherently safer systems to the greatest 

extent feasible, documenting in detail a 

determination that an inherently safer 

system is not feasible. A February, 2013 

report prepared by Contra Costa County 

Health Services indicated that 4 of 7 

facilities covered under the ordinance’s 

IST provision implemented at least one 

inherently safer measure within the 

previous year.49

The CSB has released reports for two 

recent accidents that the Board 

indicated could have been avoided if 

safer technologies had been employed. 

CSB found that the use of a safer 

material, such as high-chromium steel, 

would have prevented the accelerated 

corrosion and failure of carbon steel 

involved in the equipment rupture at 

the Tesoro Refinery in Anacortes, 

Washington in 2010, which resulted in 

an explosion and fire that killed seven 

employees.50 CSB also cited the failure 

to use more corrosion resistant highchromium steel as a factor in the 2012 

Chevron Refinery accident in 

Richmond, CA which released 

hydrocarbons that ignited, endangering 

19 employees.51

An additional complication to 

assessing safer technologies and 

alternatives is the varying amount and 

quality of information available 

regarding their implementation by 

industry. While some facilities have 

converted to processes considered to be 

inherently safer, other facilities may not 

have sufficient information available to 

effectively assess the impacts from 

changing existing processes to ones 

considered inherently safer. The 

differences that exist among chemical 

facilities, in terms of chemical process, 

facility layout, and ability to finance 

implementation, may challenge 

mandatory implementation of safer 

technologies and alternatives at 

regulated entities. 

EPA is planning the following steps to 

advance safer technologies and 

alternatives: 

• Publishing a joint alert with OSHA 

illustrating the concepts, principles and 

examples of safer technology and 

alternatives to make industry more 

aware of this information, while 

providing sources of information for 

further investigation and review, 

• Publishing a voluntary guidance 

document with OSHA for operators on 

how to reduce risks by employing safer 

technology and alternatives, by offering 

a more thorough examination of 

alternative measures and safety 

techniques, including examples of safer 

technology and alternatives or practices, 

• Based on the evaluation of feedback 

from the alert, guidance, and this RFI, 

EPA would consider proposing an 

amendment to the RMP regulations that 

requires: 

Æ An analysis and documentation of 

safer technologies and alternatives 

Æ Integration of the safer technologies 

and alternatives analysis into the PHA 

Æ Implementation of safer 

technologies and alternatives where 

feasible; EPA would not make any 

determination regarding the specific 

analysis, technology, design, or process 

selection by chemical facility owners or 

operators. 

EPA requests information on the 

following questions: 

a. Should EPA require a safer 

alternatives options analysis either as a 

new prevention program element, as 

part of the existing PHA/Hazard Review 

element, or as a separate new 

requirement under CAA section 112(r)? 

b. How should safer alternatives be 

defined if it were to be a requirement 

under CAA section 112(r) regulations? 

What specifically should a safer 

alternatives analysis require and how 

would this differ from what is already 

required under other provisions of the 

RMP? 

c. How should industries determine if 

a safer alternative exists for their 

particular process? What safer 

alternative chemicals are available for 

the listed RMP chemicals and for 

ammonium nitrate? 

d. What should facilities consider 

when determining if such technologies, 

when identified, are effective, available, 

and economically justified for their 

particular process or facility? Can the 

RMP national database, Lessons Learned 

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52https://www.llis.dhs.gov/topics/chemicalfacility-safety-and-security. 

53CCPS, Inherently Safer Chemical Processes: A 

Life Cycle Approach, Second Edition (2009), 

Appendix A. 

54A copy of the National Preparedness for 

Response Exercise Program (PREP) Guidelines, 

August 2002, can be accessed on the USCG Web site 

at http://www.uscg.mil/vrp/faq/oil.shtml under 

‘‘Additional References.’’ 

55Center for Chemical Process Safety, Guidelines 

for Risk Based Process Safety, American Institute of 

Chemical Engineers, New York, New York, 2007. 

Information System 52 or other federal 

databases be structured to promote the 

exchange of information both within 

industry and with other stakeholders on 

potentially safer technologies? 

e. If EPA were to require facilities to 

undertake an evaluation of the potential 

to incorporate safer alternatives, what 

minimum criteria should this evaluation 

be required to meet? How would the 

evaluation determine if a particular 

alternative is feasible, cost effective and 

results in less risk? What requirements 

or incentives, if any, should there be for 

implementation of identified safer 

alternatives? How should any such 

requirements be structured and 

enforced? 

f. Should EPA require facilities to use 

a safer alternatives evaluation method 

such as the CCPS Inherently Safer 

Technology Checklist? 53

g. How should EPA and facilities 

address the risk tradeoffs that could 

result when changing a process to 

incorporate safer alternatives? 

h. Should EPA consider requirements 

similar to those used by the State of 

New Jersey or Contra Costa County, 

California, and if so, why? What have 

been the benefits of such programs in 

risk reduction or process safety for the 

facilities covered under these 

requirements? What have been the 

limitations or drawbacks of these 

programs? 

i. If EPA were to develop regulatory 

requirements for safer alternatives, 

which facilities should be subject to 

those requirements? Should all RMP 

facilities be subject to such 

requirements, or only ‘‘high risk’’ 

facilities, such as refineries and large 

chemical plants? How would ‘‘high 

risk’’ be defined? Are there particular 

processes or chemicals that should be 

targeted or prioritized for 

implementation of such requirements? 

j. What barriers exist for industry to 

adopt safer alternatives? What 

incentives can be used by government to 

have facilities implement safer 

alternatives? Should the Agency provide 

special recognition to companies that 

implement safer alternatives? 

k. What are other options (other than 

regulatory requirements) exist to 

encourage facilities to investigate, 

develop or implement safer alternatives 

and how can EPA further these efforts? 

l. If RMP facilities are required to 

perform safer alternative options 

analyses and implementation plans, 

should EPA require that the analyses 

and/or implementation plans be 

submitted to the Agency? Should EPA 

have any role in approving such 

analyses or plans? In lieu of an 

approval, can EPA promote safer 

alternatives through reporting and the 

dissemination of information on 

potentially applicable practices? 

m. If RMP facilities are required to 

consider safer alternative options, what 

role should local communities have in 

these analyses? Should facilities be 

required to disclose these analyses or 

recommendations resulting from such 

analyses to local authorities or the 

public prior to the selection of options? 

Are there any other disclosure options 

that will ensure that decisions on 

implementing safer technologies are 

made with transparency? Are there any 

means of oversight other than disclosure 

that would ensure that safer alternatives 

analyses are thorough and 

implementation decisions are 

appropriate? 

n. What would be the economic 

impacts of requiring facilities to analyze 

safer alternative options? Are there any 

special circumstances involving small 

entities that EPA should consider? 

2. Emergency Drills To Test a Source’s 

Emergency Response Program or Plan 

Under Subpart E of 40 CFR part 68, 

RMP-covered facilities are required to 

coordinate emergency response actions 

with local emergency planning and 

response agencies. RMP facilities with 

Program 2 and Program 3 processes 

must also develop and implement an 

emergency response program in 

accordance with § 68.95 if facility 

personnel will respond to accidental 

releases. As part of the emergency 

response program, an emergency 

response plan must be maintained at the 

stationary source; the program must 

include procedures for the use of 

emergency response equipment and for 

its inspection, testing, and maintenance; 

training for all employees in relevant 

procedures; and 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. For those Program 2 and 

Program 3 facilities at which facility 

employees will not respond to 

accidental releases, coordination with 

community emergency planners and 

responders is required and an 

appropriate mechanism must be in 

place to notify responders when there is 

a need for a response. 

Exercising response plans is critical to 

ensure that response personnel 

understand their roles, local emergency 

responders are familiar with the hazards 

at the facility, and that the emergency 

response plan is appropriate and up to 

date. It ensures that personnel are 

properly trained and can be used to 

identify future training needs. Other 

EPA and Federal agency programs 

require exercises and drills as an 

element of their emergency response 

programs. For example, under the Oil 

Pollution Prevention regulation (40 CFR 

part 112), Facility Response Plan (FRP) 

holders are required to conduct drills 

and exercises, including evaluation 

procedures (§ 112.21). Exercises at FRP 

facilities may follow the National 

Preparedness for Response Exercise 

Program (PREP) Guidelines 54 which 

were developed to provide a mechanism 

for compliance with EPA, U.S. Coast 

Guard (USCG), and U.S. Department of 

the Interior (DOI) exercise requirements 

for oil pollution response. The PREP 

guidelines include both internal and 

external exercise components. Internal 

exercises include notification exercises, 

emergency procedures exercises, spill 

management team tabletop exercises, 

and equipment deployment exercises. 

External exercises include area 

exercises, that include members of the 

response community, and governmentinitiated unannounced exercises. 

Another example are exercises that 

the U.S. Nuclear Regulatory 

Commission (NRC), in conjunction with 

the Federal Emergency Management 

Agency (FEMA) and State and local 

government perform at nuclear power 

plants. The exercises evaluate both onsite and off-site emergency preparedness 

capabilities. The NRC also requires 

Research and Test Reactor (RTR) 

emergency plans to address the 

necessary provisions for coping with 

radiological emergencies at each facility 

in accordance with 10 CFR 50.54(q) and 

Appendix E to 10 CFR 50. Operators of 

RTRs are required to train personnel 

and perform emergency preparedness 

exercises in order to ensure the 

feasibility of the emergency 

preparedness plan. 

Finally, industry guidelines 

recommend conducting exercises and 

drills. The CCPS Guidelines for Risk 

Based Process Safety 55 recommend 

periodically testing the adequacy of 

emergency response plans and level of 

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preparedness of responders, including 

contractors and local response agencies. 

In order to improve coordination with 

community responders and ensure that 

facility personnel have practice 

responding to accidental releases, EPA 

is considering requiring RMP-regulated 

facilities to perform exercises or drills as 

an element of the emergency response 

program identified under Subpart E of 

the RMP regulation. 

In considering this issue, EPA 

requests information on the following 

questions: 

a. Are RMP-regulated facilities 

currently exercising their emergency 

response plans? If so, are they doing 

these exercises to comply with other 

federal, state or local regulatory 

requirements? What references or 

guidelines were used to develop the 

exercise program? 

b. What should be the scope of an 

exercise/drill program? Should the 

exercise/drill program include internal 

(emergency response, notifications, and 

evacuation) and external elements 

(involving community and federal and 

state responders, as appropriate)? What 

elements should be exercised as part of 

the drill/exercise program? For example, 

should the program include 

communications, coordination, 

logistics, and evacuations/accounting 

for personnel, etc? What response 

scenarios should be considered for the 

exercise/drill program? 

c. How frequently should drills/

exercises be performed? 

d. Who should be involved in the 

exercise program? How should the 

management team be engaged as part of 

the drills/exercises? How should 

contractors be included in the exercise/ 

drill planning and when conducting 

exercises/drills? Who should be the 

designated official responsible for 

coordinating the exercises and drills 

conducted at the RMP facility? How 

should other federal, state and local 

agencies be included in the exercise/

drill program? 

e. Should all RMP facilities be 

required to participate in some type of 

exercise/drill program or only those 

who are required to develop an 

emergency response program? Should 

Program 1 facilities (and Program 2/

Program 3 facilities that do not respond 

to accidental releases with their own 

employees) be required to conduct 

external exercises with community 

responders and test notification 

procedures? Should Program 2 and 

Program 3 facilities whose employees 

respond to accidental releases conduct 

both internal and external exercises? 

f. How should lessons learned and 

recommendations be documented and 

addressed? What timeframe should be 

considered for completing such records? 

How long should records of exercises/

drills be maintained? 

g. Should stationary source operators 

be required to document and address 

lessons learned and recommendations 

when they respond to an actual 

accidental release? 

h. Should information such as the 

date of the most recent exercise 

involving the emergency response plan 

be required to be reported to EPA in the 

facility’s RMP? 

i. What would be the economic 

impacts and paperwork burden of 

requiring an exercise/drill program for 

all or a subset of RMP facilities? Would 

such a requirement substantially 

improve preparedness for dealing with 

emergency situations? Are there any 

special circumstances involving small 

entities that EPA should consider with 

respect to an exercise/drill program? 

3. Automated Detection and Monitoring 

for Releases of Regulated Substances 

A process hazards analysis is 

intended not only to identify existing 

hazards, but also the likelihood that 

safety and mitigating systems, including 

detection and monitoring equipment, 

would function properly to eliminate or 

reduce the consequences that may occur 

as a result of those hazards. The RMP 

Program 3 Prevention Program requires 

regulated facilities to conduct a process 

hazard analysis (§ 68.67). The rule 

specifically requires a facility’s hazard 

analysis to address engineering and 

administrative controls applicable to the 

hazards and their interrelationships, 

such as appropriate application of 

detection methodologies to provide 

early warning of releases. Examples of 

acceptable detection methods identified 

in this requirement include process 

monitoring and control instrumentation 

with alarms, and detection hardware. 

Likewise, emergency response 

procedures can reduce the severity of a 

release and protect employees, 

emergency responders, and the public 

from harmful exposure to the regulated 

substances. RMP-regulated facilities 

must have procedures or mechanisms in 

place for informing the public and local 

emergency response agencies about 

accidental releases. These process 

hazards analysis and emergency 

program elements, while addressing 

detection methodologies, early 

warnings, and incident notifications, 

include no specific requirements for 

automated detection and monitoring 

systems to be installed. The active use 

of such systems may enhance both the 

prevention of and the response to 

accidental releases. However, the 

Agency understands that the need for 

and appropriate deployment of such 

systems is likely to be highly sitespecific, and that facilities may already 

have appropriate incentives to deploy 

such systems where warranted and costeffective. 

The Agency recognizes that even 

equipment that is properly designed and 

maintained can sometimes fail. 

Automated detection and monitoring 

systems can be used not only to assess 

the effectiveness of existing control 

measures, but also to provide early 

warning of system upsets which could 

be acted upon to prevent a more serious 

or catastrophic incident. Linking these 

with alert systems and proper 

communications with the public and 

first responders may enhance 

emergency response efforts in the event 

of an incident, resulting in better 

protection of human health and the 

environment. For example, large 

increases in emissions due to a piping 

leak, a significant tear in a storage vessel 

seal, or other similar event can signal a 

process upset. Systems in place to 

detect leaks (or the conditions that 

might result in leaks) in a timely 

manner would allow for corrective 

measures to be taken more rapidly than 

if a facility relied solely on traditional 

monitoring and inspection methods. 

RMP inspection and enforcement 

history has shown this to be of concern, 

particularly for facilities that are not 

staffed on a full-time basis and which 

may also be located in close proximity 

to population centers or 

environmentally sensitive areas. 

While facilities may identify the 

benefits of installing automated 

detection and monitoring systems as 

they conduct their process hazards 

analysis, or as they develop their 

emergency response plan, the decision 

to invest in such equipment may be 

influenced by many factors. For 

example, automated detection and 

monitoring technologies may not be 

available for particular chemical 

hazards, or industry standards may not 

address their proper use. They may also 

be costly. Nevertheless, the Agency is 

requesting information on the need for 

new or expanded requirements for 

automated detection and monitoring 

systems that would supplement either 

the existing process hazard analysis 

and/or emergency response 

requirements. Specifically, EPA requests 

information on the following questions: 

a. Should facilities be required to 

install monitoring equipment or sensors 

to detect releases of RMP regulated 

substances, or the conditions that could 

lead to such a release? Should the 

systems provide for continuous 

mstockstill on DSK4VPTVN1PROD with PROPOSALS4

44624 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

56See Matthews, Joe. ‘‘Paying neighbors to move 

Mossville: Residents of this Louisiana town, like 

those in Wagner’s Point here, faced a showdown 

with Condea Vista. Their experience is instructive.’’ 

The Baltimore Sun 6 Dec. 1998, and Gallagher, 

John. ‘‘Marathon offers to buy out Detroit 

homeowners near refinery amid $2.2B expansion.’’ 

The Detroit Free Press 2 Nov 2011. 

detection and monitoring? How should 

any such requirements be crafted to 

provide appropriate site-specific 

flexibility? 

b. Are there specific issues that need 

to be considered for unmanned and/or 

remote facilities? 

c. Should an automated mechanism to 

notify, alert and warn the local 

responders and surrounding public of 

an incident be considered as part of any 

detection and monitoring system 

requirement? If so, how should the 

potential for false alarms be addressed 

within such a requirement? 

d. How can a requirement for 

automated detection and monitoring 

systems be best coordinated with the 

community emergency response plan? 

What are the advantages/disadvantages 

between continuous monitoring 

conducted by automated systems in 

contrast to third-party alarm agencies? 

e. How would a requirement for 

appropriate detection thresholds be best 

established for activating alarms and/or 

alerts? 

f. How would the significance and 

appropriate protective response action 

of the alarms/alerts be best 

communicated to responders and the 

public (including shelter-in-place and 

evacuations)? 

g. What involvement should LEPCs 

and SERCs have in the development of 

the emergency response plan, 

particularly with respect to what actions 

are to be taken in the event of an 

incident where and alarm/alert is 

activated? 

h. How frequently should monitoring 

equipment or sensors to detect releases 

of RMP-regulated substances be tested? 

How should these tests be documented? 

How long should records of such tests 

be maintained? Should automated 

monitoring records for periods of 

normal operations be maintained, so 

that past records may serve as an aid in 

determining what may have gone wrong 

prior to an accident (e.g., a gradual 

increase in emissions)? Should EPA 

specify requirements in this area, or are 

these aspects of program 

implementation best left to the facility? 

i. Leak detection and repair programs 

are common under the CAA’s routine 

emission programs. Can these programs 

be integrated with the accidental release 

prevention program to reduce accidental 

releases and to simplify requirements 

for stationary sources subject to both the 

RMP and these other programs? Are 

there jurisdictional issues that prevent 

integration? 

j. What would be the economic 

impacts of specifying additional 

monitoring and detection requirements 

in the RMP? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to such monitoring and detection 

requirements? 

4. Additional Stationary Source 

Location Requirements 

EPA is considering whether to amend 

40 CFR part 68 to provide more specific 

requirements to address stationary 

source siting. In 2005, a series of 

explosions occurred at the BP Texas 

City refinery during the restarting of a 

hydrocarbon isomerization unit. Fifteen 

workers were killed and 180 others were 

injured. Many of the victims were in or 

around work trailers located near an 

atmospheric vent stack. The CSB 

investigation identified the siting of the 

trailers as a key factor that led to the 

fatalities. The PSM standard and RMP 

rule both require that facility siting be 

addressed as one element of a PHA (see 

29 CFR 1910.11 9(e)(2) and (3)(v)), and 

40 CFR 68.67(c)). While EPA has not 

provided any guidance on how to 

adequately address stationary source 

siting in the PHA. RMP facility owner/ 

operators can refer to industry guidance 

on siting considerations. The following 

publications provide guidance on 

facility siting: 

• American Petroleum Institute (API) 

Recommended Practice 752, 

Management of Hazards Associated 

With Location of Process Plant 

Buildings, 3rd Edition, December 2009; 

• API Recommended Practice 753, 

Management of Hazards Associated 

with Location of Process Plant Portable 

Buildings, First Edition, June 2007 

• CCPS, Guidelines for Facility Siting 

and Layout (2003); and 

• CCPS, Guidelines for Evaluating 

Process Plant Buildings for External 

Explosions and Fires, and Toxic 

Releases, 2nd Edition (2012). 

Both the siting of processes within a 

stationary source and the siting of the 

stationary source itself can affect the 

impact of an accidental release. Siting 

within a stationary source can impact 

the surrounding community not only by 

the proximity of the accidental release 

to off-site receptors adjacent to the 

facility boundary (e.g., people, 

infrastructure, environmental resources) 

but also by increasing the likelihood of 

a secondary ‘‘knock-on’’ release through 

compromising nearby processes. 

Siting of a stationary source itself may 

allow the potential impact of an 

accidental release to dissipate 

depending on the distance from the 

source to receptors. The lack of 

sufficient distance between the source 

boundary and neighboring residential 

areas was a significant factor in the 

severity of several major chemical 

accidents, including, among others, the 

Bhopal disaster and the recent West 

Fertilizer accident. Facility designers 

have long recognized the potential 

benefits of adding buffer or safety 

zones—controlled areas separating the 

public and other facilities from the 

consequences of process incidents— 

when selecting the location for new 

chemical facilities (see, e.g., CCPS 

(2003)). For existing facilities, owners 

have sometimes compensated nearby 

residents to relocate away from the 

facility boundary in order to create a 

buffer zone where one did not 

previously exist, or where adjacent 

residential areas had been developed 

after the facility itself was constructed.56

Should EPA amend the RMP rule to 

include more specific siting 

requirements as part of the PHA by, for 

example, establishing buffer or setback 

zone requirements for new covered 

stationary sources, or by establishing 

safety criteria for siting of occupancies 

inside the facility? Would such 

requirements provide significant 

incremental protection over current 

industry practice based on the 

references cited above? In considering 

this issue, EPA requests information on 

the following questions: 

a. Would additional specifics on 

stationary source siting and occupancy 

siting under the RMP minimize the 

impacts of chemical accidents to local 

communities? How should RMP 

stationary source siting requirements 

relate to OSHA PSM and other industry 

standards? 

b. What guidance should EPA 

consider in the development of 

stationary source siting requirements? 

c. What information should EPA 

consider in the development of 

stationary source buffer or setback zones 

for different risks? How should EPA 

address siting when limited space is 

available? 

d. What administrative processes and 

controls should be incorporated into 

stationary source siting requirements? 

e. What safety and process devices, 

instruments and controls should be 

incorporated into stationary source 

siting requirements? 

f. What criteria are appropriate for 

siting of occupancies (such as offices, 

control rooms, cafeterias, etc.) near an 

RMP-regulated process? 

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g. How often should stationary source 

siting be evaluated for effectiveness? 

What criteria should be used? 

h. What documentation should be 

required for evaluating stationary source 

siting determinations? 

i. Is it appropriate to reflect the 

environmental burden of the 

surrounding community in siting 

criteria for either new facilities or 

expansions within an existing site? Is it 

appropriate to consider chronic burdens 

or only burdens associated with 

accidental releases? 

j. What challenges would the agency 

face in specifying uniform siting 

requirements for the wide variety of 

covered sites? What site specific factors 

would need to be addressed? 

k. If EPA mandated siting criteria, 

how should EPA account for local 

zoning codes when establishing such 

criteria? Would setting federal 

requirements overstep into the normal 

state and local zoning process, or would 

it act as a supplemental measure 

ensuring minimal safety standards 

across the country? 

l. What would be the economic 

impacts of specifying additional siting 

requirements? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to siting requirements? 

5. Compliance With Emergency 

Response Program Requirements in 

Coordination With Local Responders 

Subpart E of the RMP regulation offers 

owners and operators of RMP-covered 

facilities with Program 2 or 3 processes 

two emergency response options. For 

facilities whose employees will respond 

to accidental releases of regulated 

substances, section 68.95 of the 

regulation requires owners or operators 

to implement an emergency response 

program that includes an emergency 

response plan, procedures for the use of 

emergency response equipment, training 

for employees, procedures to review and 

update the response plan, and other 

elements. These ‘‘responding’’ facilities 

are also required to coordinate their 

emergency plan with local response 

authorities. 

For facilities whose employees will 

not respond to releases, the RMP 

regulation states that owners and 

operators of these sources need not 

comply with the provisions of section 

68.95 provided that the source is 

included in the community emergency 

response plan (for sources with 

regulated toxic substances) or has 

coordinated response actions with the 

local fire department (for sources with 

only regulated flammable substances), 

and that appropriate notification 

mechanisms are in place to notify 

emergency responders when there is a 

need for a response. 

Subpart E can be read as offering 

owners or operators the choice of 

whether to be a responding or nonresponding facility. RMP-regulated 

facilities indicate within their risk 

management plan whether or not they 

are a ‘‘responding’’ facility (i.e., by 

indicating compliance with mandatory 

elements of emergency response plans 

required in section 68.95(a)(1)), and 

EPA has found that the majority of RMP 

facilities claim to be ‘‘non-responding’’ 

facilities. However, during facility 

inspections, EPA has often found that 

facilities are either not included in the 

community emergency plan or have not 

properly coordinated response actions 

with local authorities. This problem 

occurs with both responding and nonresponding facilities, but it is 

particularly troublesome for nonresponding facilities, because if the 

facility itself does not maintain the 

capability to respond to emergencies, 

and local authorities are not able to 

respond, then a proper response to an 

accidental release at the facility may not 

occur or may be significantly delayed. 

EPA requests comment on whether this 

problem could be addressed through 

better enforcement of existing 

requirements, and if so, how best to do 

this. 

In some cases, accidental releases 

have been made significantly worse due 

to poor emergency response planning 

and coordination. For example, 

following the August 2008 explosion 

and fire at the Bayer CropScience 

facility in Institute, West Virginia, poor 

coordination between the facility 

incident commander and local 

authorities prevented important 

information, including a shelter-in-place 

order, from being timely communicated 

to local authorities. Additionally, 

facility authorities initially prevented 

local responders from gaining access to 

the site of the incident. 

EPA is considering whether the 

Emergency Response provisions in 

Subpart E of the RMP regulation should 

be revised to state more explicitly that 

owners and operators of RMP-regulated 

facilities must comply with the 

emergency response program 

requirements of section 68.95 unless 

local public responders both have the 

means and agree to respond to releases 

of regulated substances at the facility, 

and to describe what facility owners or 

operators must do to coordinate with 

local authorities on the development of 

community emergency response plans. 

EPA requests information on the 

following questions: 

a. Do you own or operate an RMPregulated facility that relies on public 

authorities to respond to accidental 

releases of regulated substances at the 

facility? What steps do you take to 

ensure that public responders are 

prepared to properly respond to 

accidental releases at your facility? 

Should EPA clarify what steps RMP 

facilities should take in order to 

properly coordinate their emergency 

response plan with the community 

emergency response plan? 

b. If your facility uses its own 

employees or response contractors 

provided by the facility to respond to 

emergencies, what factors led to your 

decision to use your own employees or 

contractors to conduct emergency 

response operations? What steps have 

you taken to coordinate with local 

responders on emergency response 

planning? 

c. Are you a member of an LEPC, 

municipal fire department or municipal 

hazardous materials response team? If 

so, do you believe that ‘‘nonresponding’’ RMP facilities in your 

jurisdiction have generally provided the 

appropriate information and support to 

your organization to ensure an 

appropriate response to hazardous 

substance emergencies at those 

facilities? Is your organization capable 

of responding appropriately to such 

events at RMP facilities? How often do 

you visit RMP facilities in your 

jurisdiction? Do you conduct emergency 

drills at RMP facilities? Do you believe 

that RMP facilities should generally 

respond to emergencies using their own 

employees, or rely on public 

responders? Should EPA clarify what is 

necessary for RMP facilities to 

adequately coordinate their emergency 

response plan with the community 

emergency response plan? Would new 

regulations in this area significantly 

improve emergency response planning 

in your area? 

d. Are there certain substances or 

types of facilities that present particular 

response challenges for local 

authorities? If so, which substances or 

types of facilities? Should such facilities 

be required to prepare and implement 

comprehensive emergency response 

programs instead of relying primarily on 

public responders? Do public 

responders in your area have adequate 

existing authority to require this now? 

e. If public responders are not capable 

of responding to a particular type of 

chemical or release event at an RMPregulated facility, should the owner or 

operator of the facility be required to 

provide for an effective response, either 

with the facility’s own employees, 

response contractors, a mutual aid 

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44626 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

57 Joint Chemical Safety Board, Occupational 

Safety and Health Administration, National 

Institute for Occupational Safety and Health, and 

EPA Roundtable on Developing Improved Metrics 

on Accidental Chemical Process Releases, 

November 14, 2002. 

agreement with nearby facilities, or 

some other means? 

f. What would be the economic 

impacts of expanding the emergency 

response requirements as discussed 

above? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to modifying emergency response 

requirements? 

6. Incident Investigation and Accident 

History Requirements 

Incident investigations and accident 

history reporting can provide valuable 

information about potential hazards and 

the steps needed to prevent future 

events. Many times, the cause of an 

incident is the result of a series of other 

problems that need to be addressed to 

prevent recurrences. For example, an 

operator’s mistake may be the result of 

poor training, inappropriate procedures, 

or poor design of control systems; 

equipment failure may result from 

improper maintenance, misuse of 

equipment (e.g., operating at too high a 

temperature), or use of incompatible 

materials. Through incident 

investigation a facility owner or 

operator would determine not only the 

initiating event that led to the release, 

but more importantly its root cause(s). 

Accident history reporting provides an 

avenue to disseminate that information. 

Thorough investigations and reporting 

may help facilities identify and address 

root causes. 

The RMP’s incident investigation 

requirements closely track those 

established in OSHA’s PSM accident 

investigation requirements. Likewise, 

EPA’s hazard assessment requirements 

include a five-year accidental release 

history, which has some overlap with 

similar OSHA process hazard analysis 

requirements. While most catastrophic 

releases affect workers first, there are 

incidents where workers are protected 

but the public and the environment may 

be threatened, e.g. emergency relief 

devices working as designed to vent 

hazardous atmospheres away from the 

workplace and into the air where they 

may be carried downwind. Although the 

PHA process may have recognized and 

addressed the potential off-site impact 

associated with safety measures that 

protect workers (e.g. an emergency vent 

scrubber system), the RMP requires that 

facilities consider such possibilities and 

integrate the protection of workers, the 

public, and the environment into one 

program. Thus, RMP facilities must 

investigate each significant incident 

which resulted in, or could reasonably 

have resulted in a catastrophic release. 

A catastrophic release is defined for 

purposes of the RMP as one where a 

major uncontrolled emission, fire, or 

explosion, involving one or more 

regulated substances presents an 

imminent and substantial endangerment 

to public health and the environment. 

Imminent and substantial endangerment 

includes off-site consequences such as 

death, injury, or adverse effects to 

human health or the environment, or 

the need for the public to shelter-inplace or be evacuated to avoid such 

consequences. In contrast, the accident 

history requirement includes a five-year 

record of only those accidents from 

covered processes that resulted in 

deaths, injuries, or significant property 

damage on-site, or known off-site 

deaths, injuries, evacuations, sheltering 

in place, property damage, or 

environmental damage. Near-miss 

accidents or accidents with only the 

potential for consequences are not 

required to be included, and the 

accident history requirement applies 

only to covered processes. 

EPA has encouraged facilities to 

investigate all accidental releases. 

However, the focus of the current 

incident investigation and accident 

history reporting requirements is 

limited. EPA’s experiences with RMP 

facility inspections and incident 

investigations show there have been 

incidents that were not investigated, 

even though under slightly different 

circumstances, the incident could have 

resulted in a catastrophic release. While 

these unplanned ‘‘near miss’’ events did 

not result in deaths, injuries, adverse 

health or environmental effects, or 

sheltering-in-place, only a fortunate 

break in the chain of events prevented 

a catastrophic release of a regulated 

substance from happening. For example, 

a runaway reaction that is brought 

under control by operators is a near 

miss that may need to be investigated to 

determine why the problem occurred, 

even if it does not directly involve a 

covered process. Similarly, fires and 

explosions near or within a covered 

process, any unanticipated release of a 

regulated substance, and process upsets 

that could have led to a release of a 

regulated substance may also be one 

step away from initiating a chain of 

events leading to a catastrophic release. 

Additionally, there have been some 

cases where the facility chose not to 

conduct an investigation because the 

owner/operator elected to 

decommission the process involved, or 

because the process was destroyed in 

the incident. While an investigation 

would have no impact on a 

decommissioned or destroyed process, 

other similar processes or operations at 

the facility, or at similar facilities, could 

potentially benefit from its findings. In 

other instances, facilities have failed to 

investigate serious releases because they 

determined there were no actual or 

potential off-site consequences. 

Investigating these types of incidents 

and including them as part of the RMP 

accident history report could provide 

facilities with important information on 

what problems could lead to an 

incident, and allow for the facility to 

address them before a catastrophic 

release occurs. Further, including some 

of these incidents as part of the accident 

history could also improve process 

safety at facilities with similar 

processes, where operators could learn 

from the shared information. 

Incident investigations may result in 

improved process safety through the 

dissemination of lessons learned and 

the implementation of recommended 

corrective actions. Conducting these 

investigations as soon as possible after 

an incident may yield better quality data 

and information, though time may also 

be required to collect, validate, and 

integrate data from a range of sources. 

EPA has discovered situations where 

incident investigations by regulated 

facilities have been indefinitely delayed. 

Delays could result in an increased risk 

of incident recurrence as root causes 

and the appropriate corrective actions 

are not necessarily promptly identified 

or implemented. The value of 

conducting incident investigations and 

communicating lessons learned in a 

timely manner was also recognized by 

the CSB. In recommendations to the 

Agency, the CSB called for RMP 

accident histories to be updated on a 

more timely basis in view of the 

valuable information they provide for 

chemical accident prevention and 

preparedness efforts by government, 

industry and the public.57 EPA agreed 

with the CSB recommendation and 

amended the RMP accident history 

requirements to require that facilities 

who have had an accident meeting the 

criteria for the five-year accident history 

to update their RMP accident history to 

include the new accident history 

information within six months of the 

date of the accident. 

The Agency is considering whether 

broadening the incident investigation 

and accident history requirements to 

include clear requirements to 

investigate near misses and determine 

root causes of accidents, near misses, 

and process upsets would promote 

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increased safety. The Agency is 

requesting information on the 

appropriateness of requiring root cause 

investigations of incidents, process 

upsets and near-misses, and of 

establishing specific time frames for 

incident investigations to be completed. 

Specifically, the Agency requests 

detailed information on the following 

questions: 

a. Are the RMP incident investigation 

requirements too narrowly focused? 

Would identifying a broader range of 

incidents requiring investigation (e.g., 

near misses) help prevent additional 

accidental releases? Please provide 

specific examples where possible. EPA 

requests information on alternative 

definitions or incident classifications 

that could be included within the rule’s 

incident investigation requirements. 

b. Are there any data or information 

on process upsets, near misses or other 

incidents that were not required to be 

investigated, but where an investigation 

and resulting changes in management 

systems might prevent accidental 

releases? 

c. Does your facility routinely 

investigate incidents not required to be 

investigated under part 68? If so, please 

describe the types of incidents 

investigated, and the effects these 

investigations have had on facility 

operations. 

d. Would a specific time frame for 

incident investigations to be completed 

benefit overall safety? What should be 

the basis for establishing an appropriate 

timeframe requirement for an incident 

investigation to be completed? What are 

the challenges and limitations to 

completing an incident investigation 

within a specified timeframe? 

e. Are there benefits from requiring 

that investigations must be performed 

even in cases where the owner/operator 

elects to decommission the process 

involved, where the process is 

destroyed in the incident, or where a 

facility determines there were no actual 

or potential off-site consequences? 

Would such a requirement provide a 

disincentive to decommission 

potentially risky processes? 

f. Would a modification of the 

definition of ‘‘catastrophic release’’ 

assist in addressing the concerns 

regarding the appropriate scope of 

incidents that require investigation? 

g. Would a modification of the 

accident history reporting requirements 

to reflect a broader range of incidents 

being investigated assist in 

disseminating lessons learned across 

industry? 

h. Should EPA require facilities that 

have incidents or near misses to 

conduct a full compliance audit under 

§ 68.58 and § 68.79? 

i. Is it appropriate for facilities to 

share the results of accident 

investigations with the local community 

or alternatively a summary of the 

accident, and its root cause? Is there an 

appropriate role for the local 

community in conducting 

investigations? 

j. What would be the economic 

impact of broadening the RMP incident 

investigation requirements to require 

root cause investigations of near misses? 

Are there any special circumstances 

involving small entities that EPA should 

consider? Would small businesses have 

the capacity to investigate near miss 

incidents? 

7. Worst Case Release Scenario Quantity 

Requirements for Processes Involving 

Numerous Small Vessels Stored 

Together 

Section 68.25(b) of the RMP rule 

requires the owner or operator to 

determine a worst-case release quantity. 

The regulation states that ‘‘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.’’ Based on a review 

of past RMP submissions and facility 

inspections, EPA believes that in most 

cases the current requirements result in 

a reasonable estimate of worst case 

releases. However, for certain categories 

of facilities, like chemical warehouses, 

where large numbers of regulated 

chemical containers are stored closely 

together, the Agency has questions 

about whether a different approach 

would better characterize the potential 

process hazards and associated risks. 

This is of particular concern for those 

cases where each storage container may 

only contain a few pounds of a 

regulated substance, but there are 

numerous such containers stored in 

close proximity to one another. 

This type of situation occurred on 

June 24, 2005, where a fire involving 

propylene cylinders occurred at the St. 

Louis Praxair Distribution site. A small 

fire that began in one propylene 

cylinder spread to other nearby 

propylene cylinders and then to 

acetylene and propane cylinders. The 

exploding cylinders flew up to 800 feet 

in the air, started fires, and damaged 

property in the community. The fire 

consumed 8,000 cylinders, or almost the 

entire inventory of flammable gases at 

the facility. Similar accidents have 

occurred at Air Liquide in Phoenix, 

Arizona in June 1997, Airgas in Tulsa, 

Oklahoma in August 2003, and Praxair 

in Fresno, California in July 2005. An 

October 2006 accident in Apex, North 

Carolina, involving numerous small 

containers of flammable and toxic 

materials stored at a hazardous waste 

disposal facility caused a fire, multiple 

explosions, and the release of a toxic 

vapor cloud that resulted in the 

evacuation of 16,000 nearby residents. 

EPA seeks information on whether to 

revise section 68.25(b) of the RMP 

regulation to better account for 

processes involving numerous small 

vessels stored together, such as on 

pallets, cylinder racks, and in groups. 

EPA is looking for information on 

whether including the entire quantity in 

one location or one process, instead of 

just the single largest vessel or pipe, 

would better represent the true worst 

case scenario quantity, and thereby 

increase protection to human health and 

the environment and help prevent 

future accidents from occurring. EPA 

also requests comment on whether there 

are ways of grouping vessels or pipes 

short of including all the vessels or 

pipes at a facility that would be 

appropriate for worst case scenario 

analysis. EPA is also interested in 

receiving information on whether worstcase scenario requirements should 

account for the potential cascading 

effects of separate facilities that are 

interconnected (e.g., a manufacturer that 

provides product to an adjacent source 

through an interconnecting pipeline). 

Specifically, EPA requests information 

on the following questions: 

a. Should EPA revise § 68.25(b) to 

require the owner or operator of any 

regulated process involving numerous 

small containers stored together to 

consider as the worst case release 

quantity the sum of the quantity of all 

containers in the process, or a subset of 

such containers, or the containers 

within one storage area of the process? 

b. Would revising the worst case 

scenario quantity determination 

requirement in this manner better 

represent the true worst case scenario 

for such processes? 

c. Would this change promote 

stronger process safety controls and 

help prevent accidents? 

d. In situations where numerous small 

containers are stored together, are there 

any kinds of protective barriers or other 

methods of storage that would reduce 

the likelihood of a release from one 

container causing additional releases 

from adjacent or nearby containers? 

Should such barriers or storage methods 

be incorporated into the rule’s worst 

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58http://www.epa.gov/oppt/aegl/. 

case scenario requirements, and if so, 

how? Would revising § 68.25(b) cause 

any type of additional burden on 

facilities where large amounts of 

chemicals are stored together? 

e. If EPA were to revise § 68.25(b) to 

take into account numerous small 

vessels being stored together, what 

types/kinds of vessels should be 

covered? Should there be any limits on 

the size of containers subject to the 

aggregation requirement? What would 

such limits be based on? Similarly, 

should there be a specific distance 

between vessels established in order to 

consider them as grouped together for 

purposes of worst case scenario 

calculations? What would that distance 

be based on? 

f. Should EPA revise § 68.25 to 

require the owner or operator of a 

regulated process to consider the 

potential for worst case release 

scenarios to involve adjacent facilities 

or other nearby facilities that are 

interconnected through pipelines? 

Would this change raise any 

confidentiality or security issues? How 

would EPA adjust its worst case 

scenario modeling requirements to 

account for such a change? 

g. What would be the economic 

impacts of modifying the worst case 

scenario analysis requirements as 

discussed above? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to worst case scenario analysis? 

8. Public Disclosure of Information To 

Promote Regulatory Compliance and 

Improve Community Understanding of 

Chemical Risks 

EPA is seeking public comment on 

whether there are additional steps the 

Agency could take to improve 

compliance through increased 

information disclosure to the public and 

local authorities. For example, would 

requiring RMP-covered facilities to post 

on a company Web site unrestricted 

(i.e., non-off-site consequence analysis) 

RMP information, such as the facility’s 

RMP executive summary, emergency 

contact information, identity of the 

LEPC, or links to the local emergency 

response plan and/or the facility’s most 

recent EPCRA Tier II report, lead to 

improvements in facility safety and 

better regulatory compliance? Would 

disclosing a summary of the facility’s 

compliance audit, PHA, or incident 

investigation reports to the LEPC result 

in improvements in emergency planning 

and response? Would such disclosures 

raise any concerns regarding facility 

security or proprietary business 

information? 

We note that the RMP rule was 

published in 1996 before many of the 

current information-sharing 

technologies were conceived. While the 

Agency has modernized mechanisms for 

reporting and handling risk 

management plans, we have made only 

minor adjustments to the RMP rule for 

new information technologies. We have 

not systematically reviewed the rule to 

see if enhanced facility and community 

interaction through the use of these 

technologies can promote safer 

operations, perhaps at a reduced cost of 

compliance and oversight. 

Ensuring that communities, local 

planners and local first responders have 

appropriate facility chemical hazard 

information is critical to the health and 

safety of the responders and the local 

community. In response to Executive 

Order 13650, EPA seeks to find ways to 

enhance information sharing and 

collaborative planning between 

chemical facility owners and operators, 

tribal and local emergency planning 

committees and first responders. EPA is 

interested in identifying ways to make 

RMP-regulated facility information more 

readily available to local responders and 

local communities without creating 

additional security concerns. EPA 

requests information on the following 

questions: 

a. Should EPA amend the RMP 

regulation to require RMP-regulated 

facilities to post chemical hazard-related 

information on their Web sites (if they 

have one) such as RMP chemical names, 

chemical quantities, executive 

summaries, links to LEPCs, community 

emergency plans, Safety Data Sheets 

(SDS) for hazardous chemicals present 

on site, EPCRA Tier 2 reports, release 

notification reports, accident history 

and cause and other similar 

information? What requirements should 

be considered for facilities that do not 

have a Web site? 

b. Would requiring facilities to make 

this information available on the 

company Web site promote improved 

regulatory compliance? What additional 

economic burden would be associated 

with such a requirement? 

c. Do RMP-regulated facility owners/ 

operators have any safety or security 

concerns with posting the executive 

summary from the RMP, or linking to 

EPCRA reports and community 

response plans on the company Web 

sites? Please explain any concerns 

regarding specific elements of this 

information. 

d. Would posting the RMP executive 

summary on a Web site cause facility 

owner/operators to remove important 

information from the executive 

summary? Does EPA need to better 

define the contents of an executive 

summary in order to allay security 

concerns? 

e. Is there other information (webbased or otherwise) that would assist 

local communities, emergency planners, 

and responders in understanding 

facility risks that should be made 

publicly available? For example, would 

disclosure of the facility’s PHA or 

compliance audit to local authorities 

such as the LEPC result in improved 

safety? 

f. Does your facility interact with 

community groups (e.g., a citizen 

advisory panel)? If so, what information 

do you provide to such groups? 

g. Are there other activities or 

measures that RMP-facility owner/

operators can use to ensure that 

communities, planners, and responders 

have access to appropriate information? 

h. Can the use of social media or other 

forms of community outreach be 

incorporated into hazard assessment, 

prevention, and response to leverage 

community involvement in oversight? 

For example, would increased public 

disclosure of RMP-related information, 

such as accidental releases, near misses, 

and subsequent safety enhancements, or 

increased community involvement in 

facility emergency response planning, 

lead to improvements in facility safety? 

Please identify aspects of the RMP rule 

where there are opportunities for 

community involvement. 

9. Threshold Quantities and Off-Site 

Consequence Analysis Endpoints for 

Regulated Substances Based on Acute 

Exposure Guideline Level Toxicity 

Values 

EPA is considering the use of Acute 

Exposure Guideline Levels (AEGLs)58

developed by the National Advisory 

Committee (NAC) for AEGLs for 

Hazardous Substances (NAC/AEGL 

Committee) to recalculate RMP 

reporting thresholds and toxic 

endpoints for off-site consequence 

analyses in order to better reflect the 

potential for adverse effects of an 

accidental release upon a community. 

EPA originally set the TQs for the 

RMP toxic substances using a ranking 

method similar to that used in 

developing the threshold planning 

quantities (TPQs) for the EPCRA EHSs. 

A factor for each toxic chemical based 

on its toxicity level of concern ‘‘LOC’’ 

and its potential to become airborne and 

disperse ‘‘V’’, was derived and used to 

develop a ranking factor equal to LOC 

divided by V. Chemicals with lower 

ranking factors were assigned lower 

thresholds. A low numerical LOC value 

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59USEPA/FEMA/DOT, Technical Guidance for 

Hazard Analysis, Emergency Planning for 

Hazardous Substances, December 1987, http://

www2.epa.gov/sites/production/files/2013-08/

documents/technical_guidance_for_hazard_

analysis.pdf. 

60USEPA. June 21, 1992. Technical Background 

Document: Development of Threshold Quantities 

for List of Regulated Substances for Accidental 

Release Prevention, Document No. II–B–2, Docket 

No. A–91–74, page 7. 

61 see: http://www.epa.gov/oppt/aegl/. 62http://response.restoration.noaa.gov/erpgs. 

represents a high toxicity and a high 

value of V represents a high potential 

for air dispersion. Therefore, the ranking 

factor was designed such that lower 

LOC values or higher V values (or both) 

resulted in lower ranking factors. For 

example, the V for all gases is assigned 

a value of 1, which is higher than the 

calculated values of V for all liquids. 

For the RMP substances, thresholds 

were assigned based on order of 

magnitude ranges in the ranking factor, 

using TQ categories of 500 pounds, 

1,000 pounds, 2,500 pounds, 5,000 

pounds, 10,000 pounds, 15,000 pounds 

and 20,000 pounds (59 FR 4478, January 

31, 1994). 

The toxicity LOC was the maximum 

short term exposure concentration level 

in air for each chemical that would not 

lead to serious irreversible health effects 

in the general population when exposed 

for a relatively short duration. The 

Immediately Dangerous to Life and 

Health (IDLH) value developed by the 

National Institute of Occupational 

Safety and Health (NIOSH) or an 

approximation of the IDLH based on 

animal toxicity data was used as the 

basis for the LOC. 

The IDLH is defined as the maximum 

concentration from which one could 

escape within 30 minutes without any 

escape-impairing symptoms or any 

irreversible health effects. The IDLH 

was presented in the 1990 edition of the 

NIOSH Pocket Guide to Chemical 

Hazards and was used where available 

to develop the LOC toxicity levels for 

RMP toxic substances. For substances 

without a published IDLH value, a value 

equivalent to the IDLH was derived 

from mammalian toxicity data using a 

methodology described in Appendix D 

of the Technical Guidance for Hazard 

Analysis, Emergency Planning for 

Hazardous Substances.59

In some cases, revised or updated 

toxicity data were used, based on the 

December 1990 Registry of Toxic Effects 

of Chemical Substances (RTECS) rather 

than the toxicity data used to derive 

TPQs for EHSs. 

EPA is considering recalculating the 

current IDLH-based TQs for the 

following reasons: 

• The IDLH is based upon response of 

healthy male worker-population and 

does not take into account the exposure 

of more sensitive individuals, such as 

the elderly, pregnant women, children 

or people with various health problems. 

• The IDLH is based upon a 

maximum 30-minute exposure period 

which may not reflect (may 

underestimate) actual exposures to 

accidental airborne releases. 

• The IDLH may not reflect the 

concentration that could result in 

serious but reversible injury because 

IDLHs were designed only to protect 

workers against concentrations that 

would prevent death or irreversible 

health effects or would prevent other 

deleterious effects (e.g. disorientation or 

incoordination) that would prevent 

escape. 

EPA recognized the limitation of 

using the IDLH values when it 

developed the TPQs for the EHSs in 

1986 and 1987, but the agency was only 

just beginning the development of more 

appropriate chemical emergency 

exposure levels for the general public. 

Therefore, EPA chose to continue using 

the IDLH because there were many more 

published IDLH values available than 

other potential exposure limits and 

because there was already a method 

available for deriving an IDLH 

equivalent from toxicity data.60

Due to the limitations outlined above, 

EPA is now considering the use of 

AEGLs to recalculate RMP TQs. AEGLs 

represent threshold exposure limits 

(exposure levels below which adverse 

health effects are not likely to occur) for 

the general public and are applicable to 

emergency exposures ranging from 10 

minutes to 8 hours. AEGLs are 

developed by the National Advisory 

Committee (NAC) for AEGLs for 

Hazardous Substances (NAC/AEGL 

Committee), which was established to 

identify, review, and interpret relevant 

toxicologic and other scientific data and 

develop AEGLs for high-priority acutely 

toxic chemicals.61 AEGLs are developed 

for five exposure periods (10 and 30 

minutes, 1 hour, 4 hours, and 8 hours) 

and distinguished by varying degrees of 

severity of toxic effects. AEGLs are 

designed to protect the general 

population, including susceptible 

subpopulations, such as infants, 

children, the elderly, persons with 

asthma, and those with other illnesses, 

which are groups not generally 

considered in the development of 

workplace exposure levels. AEGLs have 

been developed or are now under 

development for 471 priority chemicals. 

A chemical may have up to three 

AEGLs values, each of which 

corresponds to a specific tier of health 

effects. The three AEGL tiers are defined 

as follows: 

• AEGL–1 is the airborne 

concentration, expressed as parts per 

million or milligrams per cubic meter 

(ppm or mg/m3) of a substance above 

which it is predicted that the general 

population, including susceptible 

individuals, could experience notable 

discomfort, irritation, or certain 

asymptomatic nonsensory effects. 

However, the effects are not disabling 

and are transient and reversible upon 

cessation of exposure. 

• AEGL–2 is the airborne 

concentration (expressed as ppm or mg/ 

m3) of a substance above which it is 

predicted that the general population, 

including susceptible individuals, could 

experience irreversible or other serious, 

long-lasting adverse health effects or an 

impaired ability to escape. 

• AEGL–3 is the airborne 

concentration (expressed as ppm or mg/ 

m3) of a substance above which it is 

predicted that the general population, 

including susceptible individuals, could 

experience life-threatening health 

effects or death. 

The use of AEGLs to recalculate RMP 

reporting thresholds would better reflect 

the potential for adverse effects of an 

accidental release upon individuals in a 

community compared to IDLHs because 

AEGLs take into account the potential 

exposure of more sensitive individuals, 

the potential for longer periods of 

exposure, and the potential for serious 

but reversible injuries. 

In situations where no AEGL exists 

for a chemical, EPA would use 

Emergency Response Planning 

Guidelines (ERPGs), if available, to 

recalculate reporting thresholds. ERPGs 

estimate the concentrations at which 

most people will begin to experience 

health effects if they are exposed to a 

hazardous airborne chemical for 1 hour. 

(Similar to IDLH values, however, 

sensitive members of the public—such 

as old, sick, or very young people— 

aren’t covered by these guidelines and 

may experience adverse effects at 

concentrations below the ERPG values.) 

ERPGs are developed by the Emergency 

Response Planning committee of the 

American Industrial Hygiene 

Association (AIHA). ERPGs could be 

used to help protect the public when 

AEGLs aren’t available and there has 

been a chemical release that is shortterm in duration. There are about 145 

chemicals with ERPGs.62 A chemical 

may have up to three ERPG values, each 

of which corresponds to a specific tier 

of health effects. 

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44630 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

The three ERPG tiers are defined as 

follows: 

• ERPG–3 is the maximum airborne 

concentration below which it is 

believed that nearly all individuals 

could be exposed for up to 1 hour 

without experiencing or developing lifethreatening health effects. 

• ERPG–2 is the maximum airborne 

concentration below which it is 

believed that nearly all individuals 

could be exposed for up to 1 hour 

without experiencing or developing 

irreversible or other serious health 

effects or symptoms which could impair 

an individual’s ability to take protective 

action. 

• ERPG–1 is the maximum airborne 

concentration below which it is 

believed that nearly all individuals 

could be exposed for up to 1 hour 

without experiencing other than mild 

transient health effects or perceiving a 

clearly defined, objectionable odor. 

EPA previously used EPRG values in 

1996 (61 FR 31668, June 20, 1996) to 

establish toxic endpoints (i.e., air 

concentrations) for each RMP toxic 

chemical to be used when conducting 

the off-site consequence analysis (OCA). 

The endpoints chosen were the ERPG– 

2 values developed by AIHA; the toxic 

endpoint was the level of concern (LOC) 

from EPA’s 1987 Technical Guidance 

for Hazards Analysis for those 

substances that did not have an 

established ERPG–2, updated where 

necessary to reflect new toxicity data. 

EPA chose ERPG–2 values first because 

they were specifically developed by a 

scientific committee for emergency 

planning to protect the general public in 

emergency situations and are subject to 

peer review. EPA had rejected use of the 

ERPG–3, which is a lethal exposure 

level, because it is not protective 

enough of the public in emergency 

situations. 

One consequence however, of the 

agency using separate toxicity values for 

TQs (based upon IDLH) and toxic 

endpoints (based upon EPRG–2) for the 

RMP regulations as a whole is some 

inconsistency in the representation of 

the relative toxicities of certain 

substances compared to others. For 

example, chlorine and sulfur dioxide 

have relatively similar ERPG–2 toxic 

endpoints, 0.0087 mg/L and 0.0078 mg/ 

L, respectively, but chlorine is listed 

with a reporting threshold of 2,500 

pounds while sulfur dioxide has a 

reporting threshold of 5,000 pounds. As 

gases, both chlorine and sulfur dioxide 

have the same air dispersion factor (V) 

of 1. The difference in thresholds is due 

to the use of 1990 IDLH values, with 

chlorine having an IDLH (0.087 mg/L or 

30 ppm), that suggests it is three times 

more toxic than sulfur dioxide (IDLH of 

0.261 mg/L or 100 ppm). To remedy 

such issues, EPA is considering the use 

of AEGLs as the basis for determining 

both the RMP reporting thresholds and 

the toxic endpoints. Furthermore, in 

those cases where an AEGL is not 

available, using EPRG–2 values to 

calculate both the reporting threshold 

and toxic endpoint will also remove 

such inconsistencies. Finally, using 

AEGLs when available to recalculate 

current toxic endpoints will also take 

into account the potential exposure of 

more sensitive individuals, which is not 

addressed when using ERPG–2 values. 

With few exceptions, AEGL–2 values 

are significantly lower than LOC values 

for a given substance, and generally 

somewhat lower than the corresponding 

ERPG–2 value. However, this does not 

necessarily mean that TQs would 

always decrease. As indicated above, 

when originally developing TQs, EPA 

used the LOC value divided by the V 

factor for each chemical to develop a 

ranking index. Substituting AEGL–2 

values for LOC values and recalculating 

the ranking index values would 

generally result in much lower index 

values. However, index values do not 

correlate directly to a TQ. Instead, a 

range of index values was assigned a 

TQ. For example, all substances with 

index values less than 0.01 were 

assigned a TQ of 500 pounds, 

substances with index values greater 

than or equal to 0.01 and less than 0.05 

were assigned a TQ of 1000 pounds, 

substances with index values greater 

than or equal to 0.05 and less than 0.1 

were assigned a TQ of 2500 pounds, and 

so on, up to the maximum TQ value of 

20,000 pounds. If EPA used the new 

index values to assign TQs based on 

these current ranges, then TQs for 

substances that currently have higher 

TQs would tend to drop, while TQs for 

substances with lower TQs would 

generally remain unchanged. Therefore, 

under this scenario, most substances 

would be grouped into the lower TQs. 

Alternatively, if EPA established TQs 

by redefining the index value ranges for 

each TQ according to the new range of 

index values alone (i.e., disregarding the 

old index ranges), then the change 

would have the effect of reshuffling 

substances into new TQs. In this 

scenario, incorporating AEGL values 

would likely result in reducing the TQ 

for some substances (those with the 

lowest AEGL-to-LOC ratio), while 

raising it (or causing no change) for 

others. As the purpose of assigning TQs 

according to a distribution of index 

values was to assign lower TQs to the 

more toxic and easily dispersed 

substances and higher TQs to less toxic 

and less easily dispersed substances, 

this approach may be more appropriate. 

Adopting AEGL–2 values in place of 

ERPG–2 values to establish new toxic 

endpoints would have a more direct 

effect. AEGL–2 values are often, but not 

always, lower than the existing toxic 

endpoints. Where the AEGL value is 

lower than the current toxic endpoint 

for a particular substance, the new toxic 

endpoint would likewise be lower, and 

vice versa. The practical effect of 

changing toxic endpoints would be to 

change the off-site consequence analysis 

distance to endpoint for a given 

substance and release quantity. For all 

processes containing substances with 

new lower toxic endpoints, larger worst 

case and alternative release scenario 

zones would result, whereas processes 

containing substances with new higher 

toxic endpoints would have smaller offsite consequence zones. If most toxic 

endpoints were to either decrease or 

remain the same, another result would 

likely be that fewer regulated processes 

would be eligible for Program 1. 

EPA requests information on the 

following questions regarding 

recalculating reporting thresholds and/

or toxic endpoints using AEGLs (or 

EPRG values when AEGLs are not 

available): 

a. Would revising the RMP rule to 

incorporate AEGL–2 and ERPG–2 values 

(when an AEGL is not available), as the 

basis for TQs and toxic endpoints make 

the RMP rule more protective of human 

health and the environment? Would it 

result in significant changes to the 

universe of RMP-regulated facilities due 

to potential changes in TQs? If so, what 

number and types of facilities would be 

most affected and what changes would 

occur? 

b. The IDLH values used for setting 

the existing TQs are based on an 

exposure period of 30 minutes. If the 

IDLH was not available, the acute 

toxicity data used to determine the 

equivalent IDLH varied depending on 

the chemical and actual study, and 

these numbers typically ranged from 1 

to 8 hours. The ERPG–2 values used for 

the toxic endpoints represent an 

exposure period of 1 hour. Given that 

AEGLs are established with five 

different exposure periods (10 minutes, 

30 minutes, 1 hour, 4 hours, and 8 

hours), which exposure time should be 

used if the AEGL is used to determine 

the TQs and/or toxic endpoints? 

c. What should be the hierarchy for 

developing an alternative or equivalent 

LOC when an AEGL value has not been 

established for a toxic substance? 

Should ERPG values be used instead if 

they exist? If no ERPG value exists, 

should an LOC based on the IDLH value 

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Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 44631 

63The 1996 final RMP rule based Program 3 

eligibility on the old Standard Industrial 

Classification (SIC) code system, which assigned 

four-digit codes to different industry sectors. 

However, in 1997, the U.S. Government, in 

cooperation with the governments of Canada and 

Mexico, adopted a new industry classification 

system, the North American Industry Classification 

System (NAICS), to replace the SIC codes. NAICS 

codes are either five or six digits, depending on the 

degree to which the sector is subdivided. As a 

result, in 1999 EPA revised RMP requirements 

whose applicability was originally based on SIC 

codes (64 FR 964, January 6, 1999). All ‘‘SIC code’’ 

references were replaced with ‘‘NAICS code’’ and 

the nine SIC codes subject to Program 3 prevention 

program requirements were replaced with ten 

NAICS codes. 

64EPA Report: Development of Decision Criteria 

For Accident History by SIC Code Approach and 

100 or More Employee Approach, EPA Docket 

Number HQ–OAR–2004–0365, February 28, 1995. 

65We note that for purposes of categorizing RMP 

processes based on accident frequency, some 

different NAICS codes represent essentially the 

same type of chemical process. For example, 

facilities in NAICS 311615 (poultry processing) and 

49312 (refrigerated warehousing and storage) 

generally become RMP-regulated as a result of using 

large anhydrous ammonia refrigeration systems. 

Similarly, there are several NAICS codes for RMPregulated processes that represent bulk storage of 

anhydrous ammonia by agricultural chemical 

distribution facilities. EPA could account for this by 

aggregating accidents from similar process types 

when updating Program 3 NAICS codes. 

be used instead if it exists? If there is no 

IDLH value, how should the LOC be 

calculated for either the TQ or toxic 

endpoint? Is there an alternate method 

for establishing an equivalent LOC for 

those chemicals not having an AEGL or 

ERPG that will result in an appropriate 

TQ? 

d. Currently, RMP worst-cast 

scenarios can be based on 10-minute or 

60-minute release times. Because many 

AEGL–2 values are established for 1- 

hour, 4-hour and 8-hour exposure 

periods, should requirements for 

determining the worst-case and 

alternative release scenarios also 

incorporate four and eight hour release 

times using the 4-hour and 8-hour 

AEGL–2 values for a particular toxic 

chemical? 

e. Should EPA consider using AEGL– 

1 rather than AEGL–2 values for 

calculating reporting thresholds and 

toxic endpoints in order to address 

acute effects that are transient and 

reversible (such as discomfort and 

irritation)? 

f. What would be the economic 

impacts of recalculating TQs as 

discussed above? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to recalculating TQs? 

10. Program 3 NAICS Codes Based on 

RMP Accident History Data 

When developing the RMP, the 

Agency scaled the regulatory 

requirements based on the potential risk 

posed by a source and the steps needed 

to address the risk, rather than imposing 

identical requirements on all sources. 

To this end, processes subject to RMP 

requirements were divided into three 

tiers: Programs 1, 2, and 3 (see section 

I.C). 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. The Agency established the 

most stringent RMP requirements under 

Program 3 for those industry sectors that 

represented a potentially higher risk of 

accidental releases. 

Industry accident records represent a 

reasonable criterion for identifying high 

risk sources. If an entire industry has a 

long history of accidental releases, it 

may indicate that the materials handled 

and handling conditions generate a 

higher potential for serious releases, or 

that the government or industry 

standards applicable to that industry 

area are not effectively minimizing 

risks. Additionally, accident history 

associated with industry sectors was 

identified by EPA as a better surrogate 

for underlying risk than individual 

source accident histories because 

accidents are rare events; a source with 

no accidental releases over the previous 

five years is not necessarily safe. 

Further, serious chemical accidents 

occur infrequently even at sources with 

poor process safety practices. 

Program 3 eligibility is based in part 

on the NAICS associated with the 

covered process.63 The specific codes 

identified for Program 3 were based on 

an analysis of reported accident 

histories within industry areas, selecting 

those that evidenced a higher risk 

potential.64 EPA selected the industry 

sectors that showed a high frequency of 

the most serious accidents across a 

significant percentage of all sources 

within the sector to avoid 

mischaracterizing an industry based on 

isolated, problematic sources. 

Accounting for the number of reports 

from individual sources was intended to 

avoid selecting a sector because of a 

small number of sources with serious 

safety problems. The analysis included 

not only off-site impacts, but also 

accidental releases that caused death, 

hospitalizations, or injuries on site, as 

these may serve as an indicator of 

significant safety problems that could 

lead to releases with off-site impacts. 

Program 3 applies to processes not 

eligible for Program 1 and in NAICS 

32211 (pulp mills), 32411 (petroleum 

refineries), 32511 (petrochemical 

manufacturing), 325181 (alkalies and 

chlorine), 325188 (all other inorganic 

chemical manufacturing), 325192 (other 

cyclic crude and intermediate 

manufacturing), 325199 (all other basic 

organic chemical manufacturing), 

325211 (plastics and resins), 325311 

(nitrogen fertilizer), and 32532 

(pesticide and other agricultural 

chemicals). Program 3 also applies to all 

processes subject to the OSHA PSM 

standard, unless the process is eligible 

for Program 1. 

The RMP national database now 

contains nearly two decades of accident 

history reports from covered sources, 

and the Agency believes that these 

reports represent a more comprehensive 

picture of the relative accident risks 

associated with different industry 

sectors regulated under the rule than 

was available to the Agency prior to the 

rule’s publication. Based on these 

accident reports, the ten NAICS codes 

most frequently associated with 

accidents in RMP-regulated processes 

are 32411 (petroleum refineries), 325199 

(all other basic organic chemical 

manufacturing), 325188 (all other basic 

inorganic chemical manufacturing), 

22131 (water supply and irrigation 

systems), 42491 (farm supplies 

merchant wholesalers), 22132 (sewage 

treatment facilities), 325181 (alkalies 

and chlorine manufacturing), 311615 

(poultry processing), 49312 (refrigerated 

warehousing and storage), and 32211 

(pulp mills).65 The Agency is requesting 

information on the appropriateness of 

reevaluating the NAICS industry sectors 

originally identified to determine 

Program 3 applicability based on the 

collected RMP data. Specifically, EPA 

requests information on the following 

questions: 

a. Should industry sectors represented 

in RMP data as those with the most 

accidental releases be used to update 

and replace the existing set of Program 

3 NAICS codes with a new set? 

b. How can the RMP accident history 

data best be used to update the current 

list of NAICS codes that trigger Program 

3 requirements? Should the agency take 

into account the number of sources in 

each sector, or the severity of reported 

accidents, or other factors, in selecting 

updated Program 3 NAICS codes? Is the 

methodology used to develop the SIC/

NAICS code list applicable to the RMP 

accident history database? 

c. Would limiting the data analysis or 

the selection of NAICS codes to only 

those industry sectors represented in the 

RMP data provide a complete and 

accurate picture of high risk industry 

sectors? 

d. Should an analysis of the RMP data 

be combined with an analysis of other 

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44632 Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 

66http://www.csb.gov/working-papers-on-thesafety-case-regulatory-model-and-its-attributes/. 

67At its January 15, 2014, meeting, the Board 

refused to endorse this aspect of the draft report. 

The majority directed the CSB staff to revise the 

report within 120 days. http://

www.contracostatimes.com/rss/ci_24922079. 

68http://www.csb.gov/assets/1/19/CSB_Chevron_

Richmond_Refinery_Regulatory_Report.pdf. 

69http://www.nrc.gov/info-finder.html. 

70http://www.nrc.gov/reading-rm/doccollections/nuregs/staff/sr1100/v29/fy2014-cbj.pdf. 

current accident history databases to 

inform any revisions/updates? If so, 

what other databases should be used? 

How much weight should be given to 

the RMP data set in comparison to other 

sources? 

e. Should the original NAICS codes 

continue to be included? Would not 

including the NAICS codes historically 

identified under Program 3 cause 

increase risks to those industry sectors 

by having them no longer subject to the 

more stringent measures? 

f. Should an analysis of accident 

history data be limited to a specific time 

frame? 

g. Would it cause confusion within 

the regulated community to change the 

list of NAICS codes for which Program 

3 is required? 

h. What would be the economic 

impacts of modifying the list of NAICS 

codes for which Program 3 is required? 

Are there any special circumstances 

involving small entities that EPA should 

consider with respect to modifying the 

list of covered NAICS codes? 

11. The ‘‘Safety Case’’ Regulatory Model 

The ‘‘safety case’’ regulatory model 66

is a framework for regulating high-risk 

industries where owners or operators of 

industrial facilities are required to 

demonstrate to the regulator that they 

have reduced risks to a level that is ‘‘as 

low as reasonably practicable’’, or 

ALARP. In the safety case model, 

operators must present to regulators a 

structured argument, supported by a 

body of evidence that provides a 

compelling, comprehensible and valid 

case that a system is safe for a given 

application in a given operating 

environment. This regulatory approach 

is used in the chemical and refining 

industries by some countries outside the 

U.S., including the United Kingdom, 

Australia, Norway, and others, and is 

similar in practice to the U.S. regulatory 

regime for nuclear reactor facilities 

regulated by the NRC. 

In its December 2013 Draft Regulatory 

Report on the Chevron Richmond 

Refinery Pipe Rupture and Fire, the CSB 

advocates the safety case approach as a 

safety management framework for U.S. 

refineries.67 The CSB specifically 

recommends that the California 

legislature adopt the safety case 

approach for refineries in California, 

and that OSHA, as part of that Agency’s 

response to Executive Order 13650, 

‘‘develop questions and evaluate issues 

raised from the findings and 

conclusions in this report concerning 

the safety case regime.’’ As the CSB 

report was published after OSHA 

published its RFI under Executive Order 

13650, OSHA was not able to include 

questions concerning the CSB’s safety 

case recommendation within its RFI. 

However, because the OSHA PSM 

standard and EPA RMP regulation are 

closely linked, and together constitute 

the federal regulatory framework for 

chemical process safety management 

regulation in the U.S., EPA believes it is 

appropriate for the Agency to raise this 

issue within this RFI. 

Completely replacing the current RMP 

regulation (and PSM standard) with a 

safety case approach would require 

significant changes to the existing 

regulatory regime for chemical process 

safety in the United States. 

Nevertheless, EPA is requesting public 

comment on whether EPA and OSHA 

should consider these actions. As an 

alternative to a wholesale adoption of 

the safety case approach, EPA and/or 

OSHA could potentially implement 

selected aspects of the approach within 

the current regulatory framework. For 

example, EPA and OSHA could require 

owners and operators to submit a PHA 

or a similar document to EPA and 

OSHA, and require Agency approval of 

the PHA. Also, EPA and OSHA could 

limit the applicability of the safety case 

approach to selected categories of highrisk facilities, such as petroleum 

refineries. 

EPA requests information on the 

advantages and disadvantages of 

adopting a safety case approach to 

replace the RMP regulation and PSM 

standard, or alternatively, of 

incorporating aspects of the approach 

into current regulations or for selected 

categories of facilities. In particular, 

EPA requests information on the 

following questions: 

a. If you own or operate any RMP or 

PSM-covered facilities and also own or 

operate facilities in countries that use a 

safety case regulatory regime, please 

describe the process of developing and 

obtaining approval for your safety case. 

How long does development and 

approval of a safety case take for a large 

petroleum refinery or chemical 

processing facility? What are the 

advantages and disadvantages of the 

safety case approach in comparison to 

the existing U.S. regulatory regime for 

chemical process safety? Is there any 

evidence that the safety case approach 

reduces the frequency and severity of 

accidental releases and near misses? If 

so, please provide any information, 

data, or studies to EPA that demonstrate 

these effects. How expensive is it for 

facility owners to implement the safety 

case approach in comparison to 

implementing RMP or PSM? Do you 

already incorporate aspects of the safety 

case approach in your risk management 

program? 

b. The CSB Draft Regulatory Report on 

the Chevron Richmond Refinery Pipe 

Rupture and Fire 68 highlights the NRC 

as a U.S. regulator that has established 

a safety case approach for licensing and 

oversight of commercial nuclear power 

plants in the United States. The NRC 

oversees approximately 100 nuclear 

reactor and 3000 nuclear materials 

facilities in the U.S.69; the NRC has 

nearly 4000 employees and an annual 

budget of over $1 billion.70 What 

additional resources would be required 

by EPA and OSHA in order to establish 

and oversee a safety case regulatory 

regime for RMP and PSM-covered 

facilities? 

c. Is the safety case approach suitable 

for all RMP and PSM covered facilities, 

or, if adopted, should it be limited to 

only the most high-risk facilities, such 

as petroleum refineries and other highrisk chemical processing facilities? 

d. What would be the economic 

impacts of moving to a safety case based 

regulatory regime for chemical facility 

safety? Are there any special 

circumstances involving small entities 

that EPA should consider with respect 

to safety case based approach? 

12. Streamlining RMP Requirements 

In addition to the items listed above, 

EPA is interested in gathering 

information on any other areas within 

part 68 that should be modernized, 

strengthened, or clarified. In particular, 

EPA invites comment on any potential 

revisions to the RMP rule that would 

make it easier for regulated sources to 

comply with its requirements. EPA also 

requests information on the following 

questions: 

a. Are there steps that EPA could take 

to simplify the process of determining 

whether the RMP rule applies to 

particular facilities? Are there other 

potential revisions to the rule that 

would make it easier for regulated 

entities to comply with its provisions? 

b. Are there steps that EPA could take 

to simplify the RMP submission 

process? For example, are there 

advances in electronic reporting or 

information technology that EPA could 

use in order to make RMP submissions 

easier? 

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Federal Register / Vol. 79, No. 147 / Thursday, July 31, 2014 / Proposed Rules 44633 

c. Should EPA require that RMP 

submissions be certified by a senior 

corporate official, such as the Chief 

Executive Officer, Chief Financial 

Officer, Chief Operations Officer, or the 

equivalent to ensure corporate-wide 

awareness and accountability in the 

RMP submission? 

d. Is the three-tiered program level 

structure of the RMP regulation 

appropriate, or should EPA consider 

simplifying the rule to make only two 

program tiers, or only a single 

prevention program applicable to all 

facilities? 

e. Are the accident prevention 

program elements clearly defined? 

Should EPA further clarify any of the 

existing elements? 

f. Are the regulatory terms and 

definitions contained in section 68.3 

sufficiently clear? Are there additional 

terms that EPA should define in this 

section? 

Dated: July 24, 2014. 

Mathy Stanislaus, 

Assistant Administrator, Office of Solid Waste 

and Emergency Response. 

[FR Doc. 2014–18037 Filed 7–30–14; 8:45 am] 

BILLING CODE 6560–50–P 

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