From: Jones, Danielle [ mailto:Danielle_Y_Jones@omb.eop.gov ]

Sent: Wednesday, January 13, 2016 4:15 PM

To: Cogliano, Gerain < Cogliano.Gerain@epa.gov > Subject: EO 12866/13563 Interagency Review: Modernization of the Accidental Release Prevention Regulations Under Clean Air Act (RIN 2050

- AG82)
Attachments: EO 12866 Inter agency Comments RMP.docx

Hello Gerain,

Attached please find the interagency comments on the EPA’s Modernization of the Accidental Release Prevention Regulations Under Clean Air Act proposed rule. We are still waiting for comments from one additional review that will be sent separately.

Best,
Danielle

Danielle Y. Jone s Policy Analyst Office of Management and Budget Phone: (202) 395

- 1741 | djones@omb.eop.govAttachment: EO 12866 Interagency Comments RMP.docx 

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

2 1. EO 13650 directed EPA to consider the potential addition of new chemical hazards to its RMP regulations and requested comment in its RFI about potential additions and deletions to the
list. I may have missed it, but I only saw an explicit discussion about ammonium nitrate and didn't see any discussion in the draft proposed rule about other chemical hazards. Is EPA planning subsequent rulemaking to close out this EO direction? If so, CEQ would suggest that EPA discuss this in the preamble here.

2. OSHA also has an issue with the use of the word feasibility. As we have discussed in interagency coordination meetings, this term has legal meaning for OSHA and we will not be able to define

or use that term when we update the Process Safety Management (PSM) standard, which would create inconsistencies between PSM and RMP. As noted below, we suggest substituting “practicable” for “feasible”: these two words are synonyms.

3. Page 3, believe”P” in A FPM is Petrochemical (not Petroleum).

4. Table 1, Other manufacturing, is this missing a number or an extra comma?

5. Table 3, are these also 2014 dollar estimates?

6. Page 10, Recommended edit. However, EPA is proposing believes that revisions in order to could
fu rther protect human health and the environment from chemical hazards through advancement of process safety management based on lessons learned.

7. Page 11, If the analysis is to include IST, ISD, passive measures, active measures, and procedural measures, sho uldn’t the feasibility of all of those alternatives be considered? Recommend the following edits: “...and to evaluate the feasibility of any inherently safer technology or alternative (IST) identified.

8. Pa ge 13, recommend the following edit: “...and any safer t echnology or alternative ISTs implemented at the facility...”

9. Page 13, regarding LEPCs, are Tribal entities are included here? It may be helpfult to specify, both in this section and where appropriate throughout the Preamble.

10. Page 16, Suggested rewrite of t he following: “resulting in fires and explosions; damage to property; acute and chronic exposures of workers and nearby residents to hazardous materials, and resultant in damages to health.” To “causing fires and explosions; damage to property;
acute and c hronic exposures of or workers and nearby residents to hazardous materials, and resultant in serious injuries and deaths.”

11. Page 18, Does this Action Apply to Me?, spell out the first use of TQ.

12. Page 20 Insert comma between “Texas” and “killed”. Insert co mma between “Washington” and
“killed”. Insert comma between “California” and “area”.

13. Page 20, please insert the word “people” after the following: “15”, “170”, “seven” and “two”.

14. Page 25, EO 13650 directed EPA to consider the potential addition of new chemical hazards to its RMP regulations and requested comment in its RFI about potential additions and deletions to the list. We may have missed it, but only saw an explicit discussi on about ammonium nitrate and didn't see any discussion in the draft proposed rule about other chemical hazards. Is EPA planning subsequent rulemaking to close out this EO direction? If so, we would suggest that EPA discuss this in the preamble here.

15. Pa ge 28, footnote 17 insert, The OSHA definition provides that “ Catastrophic release means a major uncontrolled emission, fire, or explosion, involving one or more highly hazardous chemicals, that presents serious danger to employees in the workplace.”

16. Page 29, paragraph that starts with” EPA has not defined or clarified the term “imminent and substantial endangerment”

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

3 EPA switc hes from a discussion of accident investigation to accident history

– this does not make the accident investigation requirement “less vague”

– It applies only to accident history. Only the accident history requirement is “less vague.” Unless you read very carefully, you would think EPA was clarifying the catastrophic release definition, which it is not. EPA
reinforces this confusion in later text suggesting that EPA use the language for accident history for accident investigation without a hint that these were different kinds of requirements. Clearly the current accident history requirement applies to many more accidents and potenti al accidents than “catastrophic releases”. EPA is now asking the public as to whether it should equate the threshold for the two requirements, but without saying so. EPA should explain why it is now proposing to reduce the threshold for catastrophic
rele ase to be any sort of damage, instead of “substantial” or “major” as addressed in the current OSHA and EPA definitions. EPA needs to more transparently explain what it is doing. Why shouldn’t EPA retain consistency with the OSHA definition? EPA should request comment also on retaining the current catastrophic release definition, and retaining consistency with OSHA. Is OSHA planning also to downgrade the meaning of catastrophic release?

17. Page 39, suggest rewrite of the following: “Is a root cause ana lysis appropriate for every reportable accident and near miss, or should EPA limit the scope or applicability of the root cause analysis requirement? If so, how should EPA limit the scope or applicability of this proposed requirement?” to “EPA seeks commen t on whether a root cause analysis is appropriate for every reportable accident and near miss. Should EPA limit or increase the scope or applicability of the root cause analysis requirement?”

18. Page 41, footnote 51: In this 2004 guidance, EPA is distinguish ing between “minor accidents” not warranting accident investigation and catastrophic accidents that do. However, minor accidents would now be included in EPA’s new definition of “catastrophic”, because it now includes any type of property damage, shelter i n place or environmental damage, suggesting that EPA is modifying its 2004 views. It would be better to reserve accident reviews for “major” or “substantial” harm, rather than minor accidents, such as a small excursion in process limits. If EPA adheres to its current proposal approach for modifying the catastrophic definition, it should transparently explain that it is departing from the 2004 guidance cited here.

19. Page 44, paragraph starting with “Because it is difficult to prescribe the various types of incidents that may occur in RMP” Perhaps EPA should discuss OSHA’s parallel effort to define

near misses

– and that EPA could address this issue after OSHA is near completion of its work.

20. Page 44, regarding “The intent is not to include every minor inci dent or leak, but focus on serious incidents that could have resulted in a catastrophic release, although EPA acknowledges this will require subjective judgment.” EPA again talks about “serious” incidents, and not the minor incidents included in its new pr oposed definition of “catastrophic release”. EPA should
be consistent. Does EPA now intend to include “minor” accidents?

21. Page 45, suggested rewrite of the following: EPA seeks comment on whether the examples provided of a near miss are useful to help fa cilities identify incidents that should be investigated and whether further clarification of incidents requiring investigation is necessary.” To “EPA seeks comment on the guidance and examples provided of a near miss. Is further clarification
needed in thi s instance?”

22. Page 51, request the following to clarify the requirements for Federal facilities under PSM:
Facilities with state and local government employees at facilities in states under Federal OSHA authority are not covered by the OSHA PSM standard at facilities in states under Federal OSHA authority , as opposed to OSHA delegated State Plans.

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

4 23. Page 51, replace the sentence that reads “Facilities with government employees are not covered by the OSHA PSM standard if they are in states under Federal OSHA a uthority, as opposed to OSHA delegated State Plans” with the following text: “State and local government employers in
states without OSHA

- approved State Plans are not covered by the OSHA PSM standard.” As drafted, EPA’s text is incorrect because facilitie s with government employees in non state plan states could be covered by the PSM standard if private or federal employees are also exposed to
the PSM hazards.

24. On page 57 of the preamble, there is reference to the EPA’s third

- party framework for the
Formald ehyde standards rule. This rule has not been finalized. Recommend removing this
reference.

25. Page 57, footnote 77: These are not very analogous to the provision of professional auditing services. These are testing lab reports of compliance with specific tec hnical standards

– and there is little incremental cost difference between in house labs and third party labs for the completion of these tests. Little professional judgment is required. Indeed, for most of these situations, it is likely less expensive to send to outside labs rather than develop in

- house expertise. Either show how this is relevant, or delete.

26. Page 64, regarding “Under the first condition, a third

- party compliance audit would be required in lieu of an internal compliance audit if th ere has been an accidental release from an RMP facility meeting the five

- year accident history criteria as described in §68.42(a).” Again, the more relevant provision is the “catastrophic release “provision that requires the investigation of an
accidental release, not whether the accident will be included in the five year accident history. Third party audits should be reserved for major releases with offsite impacts, not any property damage or evacuations, however minor.

27. Page 66, suggest rewrite of the following: “EPA seeks comment on whether to further limit applicability of this provision.” To “EPA seeks comments and suggestions on the proposed third

party audit applicability requirements and whether to maintain or further limit applicability of this p rovision.”

28. Page 66, regarding “Alternatively, EPA could revise this provision to reduce its impact on small businesses.” Small business alternatives should include third party audits only upon request by state authority, after the facility notifies the sta te . Small business definition could be the existing SBA definition or a simplified employee definition such as 500 employees. EPA should also consider a five year phase

- in period for small firms, allowing the agency to review the utility of this practic e for small firms.

29. Page 69, regarding “be a licensed Professional Engineer (PE), or include a licensed PE on the audit team.” EPA should explicitly take comment on the other professional credentials recommended by the SERs: such as the Certified Hazardo us Materials Manager (CHMM) or the Dangerous Goods Safety Advisor (DGSA). One of the SERs pointed out that many of the EPA RMP inspectors are not Pes. What credentials were mentioned by the SERs and other
commenters that deserve consideration?

30. Page 71, regarding “EPA agrees that chemical facility security is a priority and seeks comments
on whether there is a need for third

- party audit provisions to specify security protections or whether existing non

- disclosure and contractual agreements should handle this independently.” EPA proposal should not exclude firms from auditing simply because an employee was previously associated with a firm, or may be associated with the firm in the future, so long as this person is not in charge of most likely the go

- to so urce, particularly for many small firms and all firms in rural America the audit team, but is just a member of the team. Retired employees are often the best choice for this function. Retirees that have no relationship with the company

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

5 except for a pensi on have little incentive to jeopardize the safety of the former fellow employees. There is widespread belief that it will be very hard for small firms (or large firms) to find qualified auditors who are not affiliated with the facility. The availability problem would contribute to unnecessarily higher costs than EPA projects. EPA should also include a provision for a waiver where the company can justify the use of an affiliated person and the state agrees. EPA should also consider the approach of (BS EE?) which allows a team member to be affiliated where the lead person was independent.

31. Page 76, regarding “EPA seeks comment, however, on whether we should also require draft
third

- party compliance audit reports to be submitted to the implementing agency at the same time, or before, such reports are provided to the owners and operators and whether such a requirement would be further effective in minimizing potential third

- party compliance audit bias.” Submission of draft reports to EPA is unlikely to promo te better audits. Auditing firms would seek ways to share early versions with firms without EPA knowledge, for example.

32. Page 76, regarding “Finally, EPA is proposing in §§68.59(c)(4) and 68.80(c)(4) that the audit report and related records cannot be cl aimed as confidential attorney work products even if the auditors are themselves, or managed by or report to, attorneys.” EPA should not interfere with attorney client privilege. This is unnecessary, and would compromise the honesty and value of
the audit . It should suffice to have access to the audit, if needed by the agency. This provision could harm companies who are trying to perform a proper audit, but would subject them to litigation liability. What is the justification for such a provision?

33. Page 77, regarding “Proposed §§68.59(d)(1) and 68.80(d)(1), if finalized, would require owners or operators, as soon as possible, but no later than 90 days after receiving the final audit report, to determine an appropriate response to each of the findings in t he audit report, and develop and provide to the implementing agency a findings response report.” EPA should provide an option for more than 90 day period, where needed.

34. Page 78, Clarify that IST is a subset given the comment in the executive summary above.
Recommend the following edit: “ STAA includes concepts known as IST or inherently safer design (ISD) which are those strategies that reduce or eliminate the hazards associated with materials and operations used in a process.”

35. Page 78, One of the key concep ts of IST is that the changes to the process are irreversible. Suggest inserting the work permanently. “IST or inherently safer design (ISD) are those strategies that permanently reduce or eliminate the hazards associated with materials and operations use d in a process.”

36. Page 78, four bullets, These four elements are usually thought of as IST

– is it possible to move these four elemts to the next section (#2) and keep this section focused on ISD?

37. Page 79, The definition of moderation here does not match th e definition listed in the reg text on page 199 “..Inherently safer technology or design ... moderate the use of regulated substances...” Perhaps EPA can review for consistency.

38. Page 79, Several incidents have proven that these actions are not always “inheren tly” safer. Please remove the term. “The hierarchy establishes that inherently safer options...”

39. Page 80, recommended edit: “For many years, EPA has recognized the importance of considering safer technologies or alternatives IST for improving process safety.

40. Page 81, EPA seeks comments and suggestions on the proposed third

- party audit applicability requirements and whether to maintain or further limit applicability of this provision. “While EPA believes that facilities should look for additional opportunities to increase safety, we believe that the facility owners or operators are generally in the best position to decide identify which

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

6 changes are feasible to implement for their particular process

. As a result, and that EPA should is not proposing to not requi re by regulation that a facility implement a particular IST.”

41. Page 81, recommend the following edits: However, since 1996 EPA has seen that advances in safer technologies ISTs and safer alternatives are becoming more widely available and are being adopted by some companies. Voluntary implementation of some safer technologies ISTs has been identified through surveys and studies and potential opportunities have been identified through EPA inspections and CSB incident investigations. EPA now believes that the re is a benefit in requiring that some facilities evaluate whether they can improve risk management of current hazards through potential implementation of safer technologies ISTs or risk management measures that are more robust and reliable than ones curre ntly in use at the facility.

42. Page 81, regarding “However, since 1996 EPA has seen that advances in ISTs and safer alternatives are becoming more widely available and are being adopted by some companies.” Why would a good PHA not include consideration of IS Ts?

43. Page 82, recommend the following edit: “...implement for their particular process and that EPA should not require that a facility implement a particular technology IST

. 44. Page 83, recommend the following edit: There was, however, no consensus about the role of government in the implementation of safer technologies and alternatives IST

. 45. Page 93, Suggested language to avoid unnecessarily undermining the justification for pote ntial state regulation, EPA enforcement actions (such as those that have led to settlements agreements with IST solutions), and other potential opportunities in the future. “EPA is not proposing to require sources affected by this provision to implement an evaluated IST or ISD

. because t T he decision to implement such measures must consider the numerous factors related to processes, facilities, and society at large. Improper implementation of a seemingly safer alternative may lead to undesired consequences . EPA believes that only qualified facility personnel should choose the best measures that can reduce the risk of an accident at the facility.

46. Page 93, Applicability: IST analysis should not be required for any small firms. This requirement is too expens ive for small firms and likely to be just a paperwork exercise. If the PHA does not yield such an alternative, it is unlikelythat it would be feasible, in any event. Perhaps this should be applicable only to large or complex manufacturing facilities, perhaps only those with Title V permits. Also, IST analysis should not be required for toll processors unless the toll processor has a long term relationship (three years or more) to produce the product. Furthermore, the toll processor should not be req uired to consider alternative substances to be produced for the
client firm. Alternatively, EPA could propose phasing in this requirement for small firms in five years, after EPA has reviewed the utility of these IST analyses for large firms.

47. Page 93, Applicability: Need to expand this section. EPA needs to account for the other consequences to workers, nearby populations, and the environment of this alternative. It could increase the risk of adverse environmental consequences to a larger population , shift the risk to another a transportation risk, or create other adverse environmental risks. The alternative may not be economically practicable, and could jeopardize the financial stability of the firm. Only the firms, in consultation with experts, a re able to make sound judgments in these often complex
determinations.

48. Page 94, recommend the following edit: “First, EPA is proposing that “IST or ISD design ”

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

7 49. Page 94, Definitions: The MultiSector General Permit (MSGP)

– of feasibility specifies what stormwater measures should be required for industrial permittees:
Feasible

– for the purposes of this permit, feasible means technologically possible and economically practicable and achievable in light of best industry practices.” Current text: EPA is p roposing to define “feasible” to mean capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors. Environmental factors could
include consid eration of risks transferred elsewhere if a new risk reduction measure is adopted. Better definition borrowing from MSGP definition and using EPA RMP text: Feasible means capable of being accomplished in a successful manner within a reasonable period of t ime, economically practicable, and not inconsistent with other economic, environmental, legal, social, and technological factors. Environmental factors include consideration of risks transferred to other locations, populations, or ecological systems, if a new risk reduction measure is adopted.

50. Page 97, recommend the following edit: “7. Guidance on Evaluating Safer Technologies and
Alternatives IST ” and “To conduct an STAA IST / ISD analysis...”

51. Page 98: recommend the following edits: “CCPS provides guidelines for what should be provided

in an inherent safety analysis and provides example rationales for why inherent safety review recommendations were rejected. Examples for why inherent safety rev iew recommendations may not be feasible, include when the recommendation:”

52. Page 100, request the following to properly identify the best practices website: One mechanism of collecting relevant information could be OSHA’s the National Working Group on Chemical Safety and Security’s best practices website, which collects and shares chemical safety and security best practices, including safer alternatives.

53. Page 103, recommended edit: However, EPA seeks comment on whether such requirements
should be consi dered for future rulemakings, including the scope of such requirements, or whether the Agency should publish guidance.

54. Page 104, Emergency Response Preparedness Requirements A. This is a controversial interpretation of the existing requirement. EPA needs to respond to the December 9 comments by Hydrite Chemical Company contending that EPA did not require small firms to be responding firms, and that the burden was on the LEPC to develop the response capability (see page 9). This new requirement places a large burden on small firms that needs to be accounted for in this rule. We oppose this burden being shifted to small firms.

55. Page 110, regarding “Therefore, in the event that the outcome of the coordination activities with local response authorities indic ates that local public emergency response capabilities are not adequate, the ultimate burden of providing for an appropriate response to releases of regulated substances from the source should rest with the owner or operator.” We don’t
believe the 1996 rul e was predicated on small firms taking this responsibility, nor is a good idea today. This should be a government responsibility. This concept would endanger the community. Furthermore, this should not be a requirement for any retailers that are almost universally too small to be a responding facility. This is not a clarification of the 1996 rule

– and should be treated as a substantive revision, if retained.

56. Page 110, regarding “EPA is proposing to add §68.93 to clarify emergency response coordination activities and require that these activities be documented and occur annually.” EPA’s response to LEPCs being unable to undertake the existing requirements is to double down and add to LEPC burdens. For example, coordination now becomes an annual requirem ent for notification

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

8 and drills, instead of allowing tailoring of the requirement to the need and available resources.
The annual coordination should be limited to annual notification drills.

57. Page 111, recommended edit: “EPA also proposes to revise §68. 95 to ensure that notification procedures include notifications to Federal, Tribal and state agencies and to require that emergency response plans be updated at least annually.”

58. Page 112, recommended edits for clarity: “EPA believes that these proposed amendments
would clarify existing obligations and prevent situations where neither regulated stationary sources nor local authorities are prepared to appropriately respond to accidental releases at the
source.”

59. Page 113, proposed rewrite for: “Will the pro posed amendments significantly improve emergency response planning and coordination?” to “Will the proposed amendments contribute to improvements in emergency response planning and coordination? Are there additional practices that EPA should consider that significantly improve planning and
coordination?”

60. Page 117, the reviewer has concerns because the quoted language overemphasizes research and test reactors. The NRC regulations referred to in the quoted language apply to all NRC

licensed reactors, includi ng the much larger commercial nuclear power reactors that generate electricity and operate at much higher temperatures, pressures, and power levels. Consequently, the NRC Staff recommends that the quoted language be revised as follows (deletions are shown by strikethrough and inserted text is shown by underlining): Other examples include exercises that the U.S. Nuclear Regulatory Commission (NRC), in conjunction with the Federal Emergency Management Agency (FEMA) , requires commercial nuclear power plant op erators to perform with and state and local governments perform at nuclear power plants

. These exercises evaluate both on

- site and offsite emergency response preparedness capabilities. The NRC also requires Research and Test Reactor (RTR) all nuclear rea ctor 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 Part 50 , and for commercial nuclear power reactors only, 10 CFR 50.47(b)

. React or O o perators of RTRs are required to train personnel and perform emergency preparedness exercises in order to test the adequacy of the plans, ensure personnel are familiar with their duties, and maintain response capabilities ensure the feasibility of the emergency preparedness plan

. 61. Page 118, for clarity, suggest including (as citation) these Federal regulations and corresponding applicability to current regulation. “Second, the Agency indicated that the additional requirements were already addressed in other Federal regulations...”

62. Page 119, recommended edit “ This exercise would include contacting the Federal, Tribal state, and local public emergency response authorities, and other external responders that would respond to accidental releases at the source.”

63. Page 120, what efforts are being proposed to encourage full participation in exercises? Is EPA proposing a notice schedule or sharing additional guidance for implementation?

64. Page 120, Field Exercises: This commenter does not support required field exercises, but supports the option to require tabletop exercises, discussed later in this text. We would reverse the order of these options. Many (if not most) LEPCs do not have the resources to perform field exercise.

65. Section 68.210 requires a summar y of the exercises be made available to the public in accordance with Section 68.205(b)(6)

– which ultimately takes you to the documentation requirements in Section 68.95(b)(3). Which are also described here in the preamble. This reviewer has concerns rega rding the sharing of all the elements listed in this section with the public. Sharing certain elements is essentially providing a listing of vulnerabilities.

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

9 These vulnerabilities could be used by a terrorist to either target a certain facility or the

vu lnerabilities could be exploited to increase the magnitude of an attack. We are also concerned that many facilities may not be experienced enough to develop one internal after action report and a second version of the after action report for the public. Recommend deleting lessons learned and recommendations for improvement from the documentation. Alternatively, EPA could consider being more specific and have facilities develop a separate document (or Appendix to the AAR) that is designed to be shared wi th the public that just provides a high level description of the scenario and participants.

66. Page 122, This reviewer has concerns that sharing this information with the public could highlight vulnerabilities that terrorists could exploit. Recommend deletin g this sentence, unless EPA inserts language about developing a separate public report (or Appendix). “The report would also include an evaluation of the adequacy of coordination with local emergency response authorities, and other external responders, as appropriate.”

67. Page 123, Recommend the following question for public comment: “What information regarding exercises would be most helpful to the public while maintaining a balance for security?”

68. Page 123, recommended edit: Will the proposed exercise requirements improve the ability of RMP facility personnel and local authorities to respond to accidental releases? Are there additional exercise provisions that EPA should consider to improve the ability of RMP facility personnel and local authorities to responds to accidental releases ?

69. Page 123, Alternative Options: Reverse order of these options. The alternative should be the proposed option. EPA should explicitly comment on the availability of LEPC resources. What
evidence does EPA have that field ex ercises are practicable for LEPCs?

70. Page 124, recommend edit: “In response to these issues, EPA is seeking proposing ways to enhance information sharing and collaboration between chemical facility owners and operators, tribal and local emergency planning committees, first responders, and the public.”

71. Page 124, regarding “Community residents and organizations consistently noted that they need basic information regarding chemical risks at facilities, presented in a clear and consistent
manner” Note there is no specific request for compliance audit reports, accident histories, IST analyses, and the other new information now being proposed by EPA. This information, should instead, be provided upon request by the LEPC, instead of adding to the pile of materials that LEPCs and the public would be unable to use. Has NASTTPO or any LEPCs expressed any information in the newly proposed categories of information to be made available without request? If so, please describe.

72. Page 127, Recommend the following edit: “However, in making information more readily available EPA must also recognize and balance the associated security concerns because the public sharing of specific facility information and any associated vulnerabilities has the potential
to aid terrorists in planning an attack.

73. Page 129, regarding “These meetings can provide opportunities for facilities to engage the public to address concerns and explain how facilities address risks that will prevent accidents.” As many SERs indicated, the past EPCRA expe rience showed that most meetings were not attended by the public. In the absence of an actual accident, the public is unlikely to be interested. EPA should fashion a meeting requirement only for actual chemical releases, and
the the discussion should tak e place at an LEPC meeting, to ensure engagement with the LEPC.

74. Page 130, regarding “The specific information that must be provided to LEPCs or emergency response officials is outlined below:” 40 CFR Section 68.155 already requires:
§ 68.155 Executive su mmary. The owner or operator shall provide in the RMP an executive summary that includes a brief description of the following elements:

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

10 (a) The accidental release prevention and emergency response policies at the stationary

source; (b) The stationary sou rce and regulated substances handled; (c) The worst

- case release scenario(s) and the alternative release scenario(s), including administrative controls and mitigation measures to limit the distances for each reported scenario; (d) The general accidental release prevention program and chemical

- specific prevention
steps; (e) The five

- year accident history; (f) The emergency response program; and (g) Planned changes to improve safety. This is likely the only information that the great majority of the LEPC s need. Why should we add to the facility and LEPC burdens of more?

75. Page 130, Accident History Information: Facilities should provide accident history, compliance audit reports, IST reports, and information on exercises only upon LEPC request. Incident investigation reports should go to LEPCs without request. LEPCs are already overburdened, so only the most important information should be required by rule to be provided to the LEPC. In this manner, LEPCs can control the material to be kept and reviewe d.

76. Page 131, Shouldn’t this be the same as the name of the analysis that EPA is requiring? Recommend the following edits: “ Safer Technologies and Alternatives Inherently Safer Technologies ( I ST AA ). ” And “For each process in NAICS codes 322, 324, and 325, a summary of
the safer technology or alternative IST or ISD identified...” and “A brief description of the safer technology or alternative IST or ISD and which type of measure best characterizes it: minimization, substitution, modernization, or simplification; ”

77. Page 132, recommend the following edits: “EPA believes that requiring facilities to provide to LEPCs summary information on findings from incident investigations, compliance audits, exercises, and safer technologies and alternatives IST employed...” and “Furthermore, EPA believes that disclosing information related to safer technologies and alternatives IST can help responders and planners to prioritize and allocate response resources.” And “Owner s and operators of Program 3 processes must submit all of the above information, as well as the safer technologies and alternatives IST information...”

78. Page 132, regarding “EPA believes that disclosing information related to IST can help responders and plann ers to prioritize and allocate response resources.” It is unlikely that IST information would help formulate the response plan. That is the function of the PHA and other information currently available under the RMP rule. The IST focuses on the alternati ves not adopted by the facility.

79. Page 133, Table 6: Please replace IST with STAA at (b)(5).

80. Page 134, recommend the following edit: “...compliance audits reports, incident investigation
reports, safer technologies and alternatives IST )?”

81. Page 134, recomme nded edit: “ EPA also seeks comment on whether to Alternatively, should

EPA require less information to be shared (e.g., limit incident investigation information to incidents with offsite impacts)?

82. Page 134, regarding “a standard format for summary information” Will this (proposed) template be posted to websites immediately, or will it require additional analysis and re

- write before sharing?

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

11 83. Page 134, this reviewer believes there are national security concerns with four data points in §68.210 Availab ility of Information to the Public, which proposes that facilities either post on their website or put in a public library:

• Chemical Name

• Chemical Quantity

• SDS

• First Responder POC

• Exercise After Action Reports This reviewer believes that sharing this infor mation with the public could assist terrorists in selecting targets and/or increasing the severity of an attack by decreasing first responder capability. There are at least four products from the Intelligence Community that support the notion that terroris ts are seeking to target law enforcement and first responders. Recommendation: this reviewer proposes that the following five items are deleted from being shared with the public:

• Chemical Name

• Chemical Quantity

• SDS

• First Responder POC

• Exercise After Actio n Reports

84. As stated above, this reviewer has concerns regarding the sharing of all the elements listed in this section with the public. Sharing certain elements is essentially providing a listing of vulnerabilities. These vulnerabilities could be used by a terrorist to either target a certain facility or the vulnerabilities could be exploited to increase the magnitude of an attack. This reviewer is also concerned that many facilities may not be experienced enough to develop one internal after action rep ort and a second version of the after action report for the public. Recommend deleting lessons learned and recommendations for improvement from the documentation. Alternatively, EPA could consider being more specific and have facilities develop a separate document (or Appendix to the AAR) that is designed to be shared with the public that just provides a high level description of the scenario and participants.

85. Page 134, regarding “Should EPA require owners or operators to submit information only up on receiving a request for the information from an LEPC or local responder?” Note: Mathy said during the December 17th call

– that it would be OK to make this on request by the LEPC. LEPCs are overwhelmed already.

86. Page 135, As per previous agreement, c hemical volume was not being shared with the public.
Revise as follows: “ Names and quantities of regulated substances held in a process above TQs; ”

87. Page 135, regarding “The facility’s accident history required under §68.42;” Does this include specific RMP violation information? Perhaps inlude as a separate category, if appropriate.

88. Page 136, suggested rewrite of: “EPA seeks comment on whether there is additional information that should be shared with the public.” To “EPA seeks comment on this approach. Is there additional information that should be shared with the public?”

89. Page 137, sentence to consider for public comment: “Is there an alternative way to improve community preparedness for safety purposes while balancing the security concerns to limit a

terr orist’s ability to use the information for an attack?”

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12 90. Page 137, Submission Dates and Updates: Again, this information should be on request, and not required annually. The chemical inventory information is already required to be updated annually

– and tha t is the important information for emergency preparedness.

91. Page 137, Public Meetings: The SERS provided substantial information about the lack of public attendance at these meetings

– particularly, Hydrite and Allied. Please describe the input from
the S ERs generally regarding the degree of public participation, and opine about EPA’s expectation of public participation in the absence of an accident. In addition, EPA should consider requiring those meetings only in conjunction with LEPC meetings to ensur e more participation and meaningful coordination with the LEPC which has responsibility over this facility.

92. Page 138, regarding “Additionally, EPA is proposing to require regulated facilities that have any accident meeting the five

- year accident history cr iteria of §68.42 to hold a public meeting within 30 days after the accident.” Suggest an option for later date with approval from the state.

93. Page 139, recommended edits: Additionally, should EPA consider EPA seeks comment on other options for when to re quire public meetings

. ?

94. Page 139, regarding “For example, rather than require regular public meetings, EPA could require public meetings upon request by LEPCs, emergency responders or the public.” This is the better option for public meetings, and only af ter an accident.

95. How is significant property damage defined?

96. Page 157, Compliance Dates, Recommend removing either “simplify” or “clarify” in the following sentence. “The provisions of this proposal modify terms of the existing rule, and, in some cases, simply clarify existing requirements.”

97. Page 168, recommend the following edits: “...and determine the feasibility of the safer technologies and alternatives ISTs and ISDs considered. Under the proposed information availability requirements of §68.205, the owner or operator must also submit to their LEPC a summary of the safer technologies and alternatives ISTs or ISDs implemented or planned, and annually update the summary as part of the calendar year submission described in §68.205(c).”

98. Page 168, Table 15, replace “IST and ISD” with “safer technologies and alternatives”.

99. Page 170, recommended edits: “EPA believes that the RMP regulations have been effective in preventing an d mitigating chemical accidents in the United States; however, EPA is proposing
believes that revisions could in order to further protect human health and the environment from chemical hazards through advancement of process safety management based on lesso ns learned.

100. Page 172, recommend the following edits: “...feasible inherently safer technology and
alternatives that are considered inherently safer technology or design.”

101. Page 176, Note that the monetized damages (which is only an estimate of the potential maximum amount of benefits) is very close in magnitude to the estimated (non

- maximum) costs. Given the lack of net benefits, EPA and the public should carefully scrutini ze the individual requirements to evaluate their individual costs and benefits. In other words, for example

- how much will sharing of accident history or IST analyses contribute to avoided or reduced accidents? How beneficial will be the public meetings when there have been no accident at the facility?

102. Page 181, regarding “The complete IRFA is available for review in the docket and is summarized here.” Chapter 7 of the RIA does not appear in the form of an IRFA

– please provide. No small business altern atives are analyzed.

103. Page 182, recommended edits: “EPA believes that the RMP regulations have been effective in preventing and mitigating chemical accidents in the United States; however, EPA is

## Summary of Interagency Working Comments on Draft Language under
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13 proposing believes that revisions in order to could further protect human health and the environment from chemical hazards through the advancement of process safety based on
lessons learned.

104. Page 184, Table 21: Please separate government and private entities in this table.

105. Page 193, recommended insert: As required by section 609(b) of the RFA, the EPA also convened a Small Business Advocacy Review (SBAR) Panel to obtain advice and recommendations from small entity representatives that potentially would be subject to the rule's requirements. The SBAR Panel evaluated the assembled materials and small

- entity
comments on issues related to elements of an IRFA. The SBAR report contains the recommendations to the EPA Administrator from the three federal panel members (EPA, the
Small Business Administration Office of Advocac y and the Office of Management and Budget Office of Interagency Affairs). This proposal was informed The small entity comments and the panel report recommendations were used in the development of this proposal, as provided in section 609(b) of the RFA. A copy of the full SBAR Panel Report is available in the rulemaking
docket.

106. Page 194, Could we see a copy of any written NASTTPO comments?

107. Page 198, 68.3, replace “feasible” with “practicable” (replace all other uses of feasible in the standard with pract icable.

108. Page 198, 68.3, consider defining

– STAA, accident or incident (based on the comments above)

109. Pa ge 200 , recommend the following edit: “ Inherently s S afer technology and alternatives or design means risk management measures that...”

110. Page 200, For the de finition of Inherently safer technology or design, as mentioned previously, the definition of moderation here does not matach the definition listed in the preamble on pages 78 & 79 “..using less hazardous conditions or a less hazardous form, or designing facilities that minimize the impact of a release of hazardous material or energy...” Perhaps EPA can review for consistency.

111. Page 210, 68.65(b)

– This changes requirements of an exclusive list versus the existing language which says, “This information shall consist of at least the following...” ie. OSHA requests adding back the “at least”.

112. Page 210, 68.67 (c)(2) “potential failure scenarios” are not defined and are not self

evident.

113. Page 210, 68.67(c)(8)(i)

– The first sentence clearly states that owner/operat ors should follow the hierarchy of controls in determining safeguards. The second sentence may give an owner/operator an out to use multiple lower level safeguards. Consider qualifying or deleting
the second sentence.

114. Page 211, recommend the following ed its: “(ii) The owner or operator shall determine the feasibility of the inherently safer technologies and alternatives designs considered.”

115. Page 223, (3) Documentation: All references for what to share with the public regarding the exercise summary seem to point to this provision. Please see comments from the preamble: This reviewer has concerns regarding the sharing of all the elements listed in this section with the public. Sharing certain elements is essentially providing a listing of vulnerabilities. These vulnerabilities could be used by a terrorist to either target a certain facility or the vulnerabilities could be exploited to increase the magnitude of an attack. This reviewer is also concerned that many facilities may not be experienced enough to develop one internal after action report and a second version of the after action report for the public.

## Summary of Interagency Working Comments on Draft Language under
EO12866 /13563 Interagency Review. Subject to Further Policy Review.

14 Recommend deleting lessons learned and recommendations for impro vement from the documentation. Alternatively, EPA could consider being more specific and have facilities develop a separate document (or Appendix to the AAR) that is designed to be shared with the public that just provides a high level description of the scenario and participants.

116. Page 227, recommend the following edits: “(ii) Whether any inherently safer technology

or alternative design measures were implemented. (iii) If any inherently safer technology or
alternative design measures were implemented, ide ntify the measure and the technology category (substitution, minimization, simplification, and/or moderation). ”

117. Page 231, recommend the following edits: “(5) Inherently s Safer technology and
alternatives . For each process in NAICS codes 322, 324, and 325, provide a summary of the inherently safer technologies (IST) or inherently safer designs (ISD ) , passive measures, active measures, or procedural measures implemented or...” and “(ii) A brief description of the safer technology or alternative IST or ISD and wh ich safer technology or alternative IST/ISD type of measure best characterizes it: minimization, substitution, moderation or simplification; ”

118. Page 23 3 , As noted above, we previously agreed that quantities would not be released publicly. Revise as follows: “(1) Regulated substances information. Names and quantities of regulated substances held in a process. ”

119. Page 233, Please see prior comments: this rev iewer proposes that the following four items are deleted from being shared with the public:

• Chemical Name and Chemical Quantity

• SDS

• First Responder POC

• Exercise After Action Reports

Third Party Audits

120. One of the rule provisions is for third

- party auditor s to maintain the audit report for five years after the completion of this requirement. Why is this for a period of five years? Is this based on industry best practices or based on other rule recordkeeping provisions? Recommend three years for maintaining the audit by the auditing firm.

121. EPA is proposing to have the auditor sharing the audit with the implementing agency. Is this a requirement in the current rule for the three year compliance audits?

122. EPA is proposing that both the auditor and the owner or op erator of the facility provide the implementing agency a copy of the third party audit. What is the rationale for this duplicative reporting? Recommend the owner or operator submit the audit report to the implementing agency.

123. EPA proposed that the owner or operator submit a copy of the draft audit to the implementing agency upon request. What is the rationale for the owner or operator to supply this preliminary draft report? Would the owner or operator even have access to the draft
version? Recommend that t he auditor supply the implementing agency with the draft audit
report upon request.

Incident investigation

124. This reviewer observed that there seems to be a disconnect in the timing between the proposed incident investigation requirements of sections 68.60/ 81 and the proposed emergency response exercise requirements of section 68.96. The draft proposed rule describes the

## Summary of Interagency Working Comments on Draft Language under
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15 proposed incident investigation requirements as follows: “EPA is proposing to require that facility owners or operators complete an incide nt investigation report within 12 months of an incident that resulted in, or could reasonably have resulted in, a catastrophic release.” The proposed emergency response exercise requirements are described as follows: “Section 68.96(b)(1) would require the owner or operator to conduct an emergency response field exercise involving the simulated accidental release of a regulated substance at least once every five years and within one year of any accidental release meeting the criteria in §68.42(a). The

purpo se of this provision is to reduce the impact of accidents by ensuring that emergency response personnel understand their roles in the event of an incident, that local responders are familiar with the hazards at a facility, and that the emergency response p lan is up

- to

- date.” This reviewer had some questions about the proposed requirement for a field exercise within one year of an accidental release. Specifically, it was not clear to this reviewer what the purpose of this field exercise would be (for example, would it be to evaluate corrective actions?) or what the benefit would be to the program. This reviewer noted that if the response of the facility and offsite response organizations to an actual event is satisfactory, then requiring an

exercise w ithin one year of the incident would seem to add little value, and if the response of the facility and offsite response organizations to an actual event is unsatisfactory, then one year may not be sufficient time to implement corrective actions prior to an other exercise. The draft proposed rule would require a facility owner or operator to complete an incident investigation within 12 months of the incident. If the purpose of the follow

- on exercise is to evaluate improvements to emergency response followin g an actual event, the corrective actions resulting from the incident investigation may not be completed in time to support an exercise within one

year. 125. Regarding the incident investigation and public meeting after an accident, what is the facility was des troyed or closed down permanently after the accident. Would the facility still have to comply with the requirements set forth in this rulemaking?

126. Page 37, the preamble mentions “basic” incident causes. This is the first only use of
“basic” in that contex t. Up to that point, the preamble uses both “fundamental” and “root” cause. The language should remain consistent to avoid confusion.

127. Much of the incident investigation and third

- party audit requirements depend upon the
nature of the incident that occurr ed and its consequences. Unfortunately, the preamble confuses the reader by using the words “accident,” “incident,” “accidental release,” and “catastrophic release” almost interchangeably. The regulatory text does not define “accident”
or “incident” so t he preamble should not use these words. Furthermore, the preamble should be absolutely clear when speaking about a release as to whether it is accidental or catastrophic.

Safer Technology

128. The preamble language on Safer Technology and Alternatives Analysi s (STAA) is very confusing. References to STAA, IST, and ISD are inconsistent which creates confusion about what EPA is proposing. This also creates confusion regarding certain examples provided. For instance, the example using the CSB Tesoro investigat ion mentions safer technologies, but then says that using of safer materials is inherently safer. OSHA believes that this is safer alternative, but not inherently safer.

129. STAA is an acronym for Safer Technology and Alternatives Analysis, but it appears tha t the only analysis proposed is one on inherent safety.

130. We would like to better understand the pros and cons of potentially applying the Safer Technology and Alternatives Analysis (STAA) requirements of the proposed rule to water supply

## Summary of Interagency Working Comments on Draft Language under
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16 and/or wastewater t reatment facilities, which have been identified by some outside experts as being potential sources for high

- consequence chemical releases and also having significant opportunities for low

- cost safer alternatives. Based on the summary of comments on the RF I, it sounds like AMWA was most concerned about EPA imposing requirements that force adoption of specific IST alternatives ( as well as highly burdensome analytical requirements, which seemed secondary to their first concern), which is not what EPA would p ropose for any covered

sector.
131. We would strongly recommend that EPA consider requiring facilities to send completed
STAA documentation to EPA. Even if EPA does not currently have the resources or anticipate getting sufficient resources for full review, th is would 1) enable future sampling to assess whether and how facilities are broadly complying and whether guidance, reminders, or other remedies might be need to ensure robust, meaningful compliance and 2) send a stronger signal (even if not backed up by f ull enforcement) to covered facilities that they shouldn't cheat or shortcut compliance. If there are strong reasons why EPA will not propose submitting these documents, we'd like to discuss and better understand. If the additional burden of sending in
do cumentation is an issue, did EPA consider just requiring submission from a subset of facilities
that have accidents or near misses?

132. Do the STAA requirements apply to all program 3 facilities? It looks like NAICS codes 322, 324 and 325 cover subsets of NAI CS codes that together include the universe of program 3 facilities, but we're looking for EPA confirmation. If that is the case, we would suggest saying that in the preamble.

133. Is EPA's proposed requirement for facility owner/operators to explain why a pot entially safer alternative is not being adopted comparable in rigor to Contra Costa County's requirement that the source "document the basis for this conclusion in meaningful detail" (EPA description from the preamble)?

134. Where are STAA documents produced by facility owner/operators stored and for how long? Does a sufficiently senior official (to ensure accountability) need to sign off on the
documents?

135. Would STAA documents be available to EPA, OSHA, and/or other inspectors who could verify that the owner/ operators are doing a robust job at meeting the STAA requirements (in the rare cases when inspections happen)?

- What other options has EPA considered to ensure compliance?

136. Why is 4 years needed for compliance with this requirement (STAA)? Has EPA
consid ered a shorter deadline?

137.

Information Sharing

138. EPA is proposing to two categories of information sharing: §68.205 Availability of information to the LEPC and emergency response officials and §68.210. This reviewer supports EPA’s proposal to share informa tion with first responders and LEPC members who have a need to know in order to assist with community preparedness. However, This reviewer has concerns regarding EPA’s proposal that facilities either post on their website or put in a public library (§68.21 0):

• Chemical Name

• Chemical Quantity

## Summary of Interagency Working Comments on Draft Language under
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17 • Safety Data Sheets

• First Responder Point of Contact Information

• Exercise After Action Reports (AAR) Availability of information to the public could assist terrorists in selecting targets and/or increasing the severity of an attack by decreasing first responder capability. Having facilities share this information would be precedent setting

– currently the CFATS, PSM, and ATF (liscensee/permittee) programs do not share this level of detail with the public due to security concerns. The EPA’s proposed level of detail may inadvertently provide a roadmap to assist terrorists. We note that placarding is a good e xample of balancing safety and security concerns. Through placarding, the public is aware of the hazard and can prepare accordingly but is not provided specifics that can assist terrorists in creating a targeting list. Chemical Name and Quantity
This re viewer believes that online access to a facility’s chemical inventory and chemical quantity would make facility targeting by terrorists much easier. DHS has maintained throughout the EO that first responders and LEPC members with a need to know should have access to information

– but that when it comes to the public, a balance of security is needed.

SDS SDS sheets provide information beyond chemical name and quantity. This information could be exploited by terrorists. First Responder POC
This reviewer is c oncerned that EPA’s proposal to provide first responder information to the public could provide terrorists with additional information to increase the impact of the incident by potentially:

• Diverting first responders with multiple incidents in their area o f responsibility;

or

• Prior to an incident, diminishing the capabilities of first responders; or

• Planning a second incident where first responders gather. There have been several intelligence products

- from DHS and the FBI and the National Counterintellige nce Center

- discussing how first responders may be potential targets for

terrorists. Exercise After Action Reports Sharing certain exercise after action report elements is essentially providing a listing of vulnerabilities. These vulnerabilities could be used by terrorists to either target a certain facility
or the vulnerabilities could be exploited to increase the ma gnitude of an attack.
This reviewer is concerned that many facilities may not be experienced enough to develop one internal after action report and a second version of the after action report for the public.

RIA Comments

139. Perhaps EPA can take another loo k at the third party compliance audit costs. The costs appear low to DHS (See p. 38 of the RIA). This reviewer suggests that compliance costs are up to 60,000 dollars for complex facilities. (5 people for one week is 200 labor hours. At 200 dollars

per hour, this comes out to 40,000 dollars already. Then you still need to add travel and per diem costs on top. In addition, time is needed to write up the report.

140. Perhaps EPA can take another look at travel expenses. The 100 dollars per day for travel and expenses seems low to DHS (See p. 50 of the RIA). The GSA rate for lodging in Washington,

## Summary of Interagency Working Comments on Draft Language under
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18 DC is at least 170 dollars. MIE is 69 dollars in DC. The GSA standard rate for lodging in non

urban areas is 89 dollars. In addition the MIE standard rate is 51 dollars.