February 19, 2016

The Honorable Gina McCarthy

Administrator

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Dear Administrator McCarthy:

Enclosed for your consideration is the Report of the Small Business Advocacy Review Panel (SBAR 

Panel or Panel) convened for EPA’s planned proposed rulemaking entitled “Risk Management 

Modernization.” This notice of proposed rulemaking is being developed by the U.S. Environmental 

Protection Agency (EPA) under the Clean Air Act (CAA). 

Both EPA’s 40 CFR part 68 Risk Management Program regulation1 and the Occupational Safety and 

Health Administration’s (OSHA’s) 29 CFR 1910.119 Process Safety Management (PSM) standard were 

authorized in the 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.

EPA published the Risk Managment Program regulation in two stages. The Agency published the list of 

regulated substances and threshold quantities in 1994 (59 FR 4478, January 31, 1994) (the “list rule”) 

and published the Risk Managment Program final regulation, containing risk management requirements 

for covered sources, in 1996 (61 FR 31668, June 20, 1996) (the “RMP rule”).2

Both the OSHA PSM standard and the EPA RMP rule aim to prevent or minimize the consequences of 

accidental chemical releases through implementation of management program elements that integrate 

process safety technologies, procedures, and management practices. In addition to requiring 

implementation of management program elements, the RMP rule requires covered sources to submit a

document (i.e., Risk Management Plan (also referred to as an RMP) summarizing the source’s Risk 

Management Program to EPA. The RMP rule required covered sources to comply with its requirements 

and submit initial RMPs to EPA by June 21, 1999. Each RMP must be revised and updated at least once 

every five years from the date the Plan was initially submitted.

On August 1, 2013, President Obama signed Executive Order 13650, entitled Improving Chemical Facility 

Safety and Security (EO 13650 or the EO). The EO was prompted by recent major chemical accidents, 

including the explosion at the West Fertilizer facility in West, Texas on April 17, 2013. EO 13650 directs 

the federal government to carry out a number of tasks whose overall goal is to prevent chemical 

accidents. Among the tasks discussed, the EO directs agencies to consider possible changes to existing 

chemical safety regulations such as EPA’s RMP regulation. On July 31, 2014, EPA published a Request 

for Information (RFI) notice (79 FR 44604) to solicit comments and information from the public regarding 

potential changes to EPA’s RMP regulations.

On November 4, 2015, EPA’s Small Business Advocacy Chairperson convened this Panel under section 

609(b) of the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA). In addition to its chairperson, the Panel consists of the Director of 

 1 40 CFR part 68 is titled, “Chemical Accident Prevention Provisions,” but is more commonly known as the “RMP 

regulation,” the “RMP rule” or the “Risk Management Program.” This document uses all three terms to refer to 40 

CFR part 68. The term “RMP” refers to the document required to be submitted under subpart F of 40 CFR part 68, 

the Risk Management Plan. See http://www2.epa.gov/rmp for more information on the Risk Management Program.

2 40 CFR Part 68 applies 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.
ii

the Office of Emergency Management’s Regulations Implementation Division (OEM/RID) within EPA’s 

Office of Land and Emergency Management (OLEM)3, the Administrator of the Office of Information and 

Regulatory Affairs within the Office of Management and Budget (OMB), and the Chief Counsel for 

Advocacy of the Small Business Administration (SBA). It is important to note that the Panel’s findings 

and discussion are based on the information available at the time this report was drafted. EPA is 

continuing to conduct analyses relevant to the proposed rule, and additional information may be 

developed or obtained during this process as well as from public comment on the proposed rule. The 

options the Panel identified for reducing the rule’s economic impact on small entities will require further 

analysis and/or data collection to ensure that the options are practicable, enforceable, protective of public 

health, environmentally sound and consistent with the CAA.

SUMMARY OF SMALL ENTITY OUTREACH

In 2013 and 2014, as part of the EO 13650 activities, the federal government held a dozen listening 

sessions, supplemented by two online webinars. The locations for listening sessions were selected to 

reach as many and as diverse stakeholder groups as possible. Many listening sessions were held both 

during and outside of work hours to maximize stakeholder participation.4

EPA also held several meetings with trade associations, include those representing small businesses, to 

discuss the actions the agency is considering under the EO and how we can partner with industry to 

improve chemical safety.

Prior to convening the Panel, EPA conducted outreach with small entities that will potentially be affected 

by these regulations. In September, 2015, EPA invited SBA, OMB, and 32 potentially affected small 

entity representatives to a conference call and solicited comments from them on preliminary information 

sent to them. EPA shared the small entities’ written comments with the Panel as part of the Panel 

convening document.

After the SBAR Panel was convened, the Panel distributed additional information to the small entity 

representatives (SERs) on November 4, 2015, for their review and comment and in preparation for 

another outreach meeting. On November 19, 2015, the Panel met with the SERs to hear their comments 

on the information distributed in these mailings. The SERs were asked to provide written feedback on 

ideas under consideration for the proposed rulemaking. The Panel received written comments from the 

SERs in response to the discussions at this meeting and the outreach materials. See Section 6 of the 

Panel report for a complete discussion of SER comments. Their full written comments are also included 

in Appendix A. In light of these comments, the Panel considered the regulatory flexibility issues specified 

by RFA/SBREFA and developed the findings and discussion summarized below. 

PANEL FINDINGS AND DISCUSSION

Under section 609(b) of the RFA, the Panel is to report its findings related to these four items:

1) A description of and, where feasible, an estimate of the number of small entities to which the 

proposed rule will apply.

2) A description of the projected reporting, recordkeeping and other compliance requirements of 

the proposed rule, including an estimate of the classes of small entities which will be subject 

to the requirement and the type of professional skills necessary for preparation of the report 

or record.

3) Identification, to the extent practicable, of all relevant federal rules which may duplicate, 

overlap or conflict with the proposed rule.

 3 The office previously known as the Office of Solid Waste and Emergency Response (OSWER) has been renamed 

to the Office of Land and Emergency Management (OLEM). The old office name “OSWER” may be retained on 

earlier materials prepared for the pre-Panel and Panel process. 4 For a list of locations and notes for these sessions go to http://www.regulations.gov, docket # DHS-2013-0075.
iii

4) A description of any significant alternatives to the planned proposed rule which would 

minimize any significant economic impact of the proposed rule on small entities consistent 

with the stated objectives of the authorizing statute.

The Panel’s most significant findings and discussion with respect to each of these items are summarized 

below. To read the full discussion of the Panel findings and recommendations, see Section 7 of the 

Panel report.

A. Number and Types of Entities Affected

For a complete description of the small entities to which the proposed rules may apply, see Sections 3 

and 4 of the Panel report.

B. Recordkeeping, Reporting, and Other Compliance Requirements

The potential reporting, recordkeeping, and compliance requirements are still under development. EPA 

expects that the proposed rule would include the following additional reporting, recordkeeping and 

compliance requirements: 

• Hire a third-party to conduct the compliance audit after an RMP reportable accident;

• Conduct and document a root cause analysis after an RMP reportable accident;

• Conduct and document an incident investigation, including root cause analysis, after a near miss;

• Conduct and document a safer technology alternatives analysis;

• Meet and coordinate with local responders;

• Come into compliance with requirements for responding to a release using facility staff, including 

developing an emergency response plan, conducting exercises, documenting training, and 

providing information to the Local Emergency Planning Committee (LEPC);

• Conduct a notification drill to verify emergency contact information;

• Conduct and document emergency response exercises;

• Make certain information related to the risk management program available to the local 

community;

• Provide the LEPC and local responders with summaries of certain activities under the risk 

management program, upon request; and

• Hold a public meeting within 30 days of an RMP reportable accident.

The Panel recommends that reporting and recordkeeping requirements should be streamlined if 

practicable. The Panel specifically highlighted a need for streamlining recordkeeping requirements for 

exercises. The Panel anticipates that the requirements will be the minimum required by the statute to 

ensure compliance with the RMP requirements.

C. Related Federal Rules

The Panel recommends that EPA review the Emergency Planning and Community Right-to-Know Act 

(EPCRA) to ensure that provisions from this rule are not duplicative of other information reporting 

requirements. Several SERs commented that the information EPA would require facility owners or 

operators to report to LEPCs is already being collected and made available under EPCRA. As such, EPA 

may find value in reevaluating the information provided under EPCRA to achieve the objectives intended.

See Section 2.4 of the Panel report for a discussion of related federal rules.

D. Regulatory Flexibility Alternatives

The Panel agrees that EPA should explore regulatory alternatives and provide flexibility where 

appropriate. This flexibility can lessen impacts to small entities, as well as to entities not classified as 

small. The SERs suggested alternative approaches for additional regulatory flexibility that are described 

further in this section. The Panel recommends that EPA should include SER suggestions for additional 
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flexibility, where appropriate, and in other cases EPA should request comment on the other alternatives to 

give others affected by this rule the opportunity through notice and comment rulemaking to weigh in.

Third-Party Compliance Audits

Eliminate provision

SERs identified that this provision is unnecessary because the existing incident investigation 

requirements are adequate, more appropriate, and already accomplish the desired remediation objectives 

of this provision. SERs also emphasized that internal auditors are more effective at performing these 

audits because they are more familiar with the facility processes and the facilities have a vested interest 

in completing an objective and thorough audit. SERs suggested that this provision, to require a third-party 

audit after an accident, should be deleted. SERs were substantially concerned about the availability of 

auditors that were knowledgeable in their industry. Finally, SERs pointed out that EPA already has 

authority to compel third-party audits as a corrective action and therefore can do so on a case-by-case 

basis.

Limit applicability

SERs suggested limiting the requirement to a subset of Program 3 facilities. SERs further suggested that 

the requirement should be limited to those facilities with a major accident that has offsite impacts. EPA 

notes that the requirement would apply to a subset of facilities: only facilities with RMP reportable 

accidents (i.e., accidental releases meeting the criteria of §68.42). 

Independence criterion

SERs indicated that EPA should allow auditors who are associated with the company because these 

personnel have the proper training and familiarity with processes. SERs indicated that retired employees 

are among the best source of auditing expertise and suggest that they should not be barred from 

conducting third-party audits. The SERs also indicated that they should be allowed to use firms that have 

performed past work because these firms tend to have the necessary expertise and familiarity with the 

facility. One SER suggested EPA consider revising the criteria to be similar to the Department of the 

Interior’s Bureau of Safety and Environmental Enforcement (BSEE) provision for third-party audits in 30 

CFR 250.1920(a). BSEE only requires that the person leading the audit team be independent of the 

facility being audited. This allows the facility to use individuals with specialized knowledge as part of the 

team.

Eliminate independence criterion

SERs suggested that the focus should be on the qualifications of the auditors and the core contents of the 

acceptable audits rather than restricting post-accident audits to non-associated or independent auditors 

as currently defined. SERs also indicated that EPA should allow third-party auditors who are associated 

with the company because these personnel have the proper training and familiarity with processes. 

Examples include: allowing retired employees to conduct audits or limiting the criterion to individuals 

conducting the audit rather than the entire company. Moreover, the SERs specifically suggested that 

small business should be allowed to use qualified auditors that are associated with the company because 

they are less able to absorb significant costs of third-party audits done by non-associated third-party 

auditors. 

Professional Engineer (PE) requirement

The Panel also heard concerns on whether it is necessary to include a PE in the audit team. SERs 

expressed concerns that the requirement of a license is too restrictive because it requires five years of 

experience and two exams to obtain a professional license. SERs also supported that the elements of an 

RMP audit are within the purview of a safety and environmental professional rather than an engineer. 

SERs also made specific suggestions about other relevant professional credentials, including Certified 

Safety Professional (CSP), Certified Industrial Hygienist (CIH), Certified Fire Protection Specialist (CFPS), 

Certified Hazardous Materials Manager (CHMM), Certified Professional Environmental Auditor (CPEA), 

Dangerous Goods Safety Advisor (DGSA) or Certified Process Safety Auditor (CPSA) qualifications. EPA 

is proposing that a PE be part of the audit team because these professionals have an ethical obligation to 

be independent (and not only because of their engineering background).
v

Auditor availability

SERs expressed concerns about the availability of third-party auditors who are qualified with knowledge 

and experience with a facility’s process, being able to meet the independence criterion. SERs noted that 

qualified auditing firms with specific industry expertise could be a very few, making it more difficult to 

choose an unaffiliated firm. SERs emphasized that the problem of auditor availability will be exacerbated 

for those facilities in rural areas who will have to seek out contractors outside of their immediate vicinity, 

which will add to their costs.

Security

Furthermore, if EPA requires third-party audits, SERs urged EPA to include protection of confidential 

business information (CBI) and address other security concerns. SERs requested that EPA include 

provisions to ensure that third-party auditors do not pose a terrorism concern or release information that 

could cause a security concern, and the auditor will protect CBI from disclosure, for the facilities that they 

audit.

Panel recommendations:

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

consider proposing streamlined independence requirements for small businesses (i.e. based on size of 

the facility).The Panel also recommends that EPA limit the independence criteria to individuals 

participating in the audit rather than the entire company. 

The Panel also recommends that EPA seek comments on:

• Eliminating the independence requirement, in its entirety, and retaining existing requirement for 

compliance audits;

• Limiting applicability of the third-party audit provision by only requiring third-party audits, for P3 

facilities, triggered by major accidents that have offsite impacts and how to define or characterize 

“major accidents with offsite impacts”;

• Deleting the current PE requirement and considering other independent accreditation for thirdparty auditors which also carry ethical requirements, such as CSP, CIH, CFPS, CHMM, CPEA, or 

CPSA; and

• The impacts a third-party auditor may have on a facility’s security and the measures that should 

be included in the rule provision to protect facilities from terrorism or release of CBI from a thirdparty auditor. 

SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that EPA employ the BSEE approach for small firms, using a 

simplified small business size standard, such as 250 employees. Secondly, the Office recommends that 

small firms can submit a waiver request of the independence requirement, based on consideration of the 

specific facts, such as the limited availability of qualified independent auditors. A waiver may be 

appropriate where the firm has been working closely with highly qualified auditors with specific expertise 

in the industrial processes.

Incident Investigations & Root Cause Analysis

Eliminate provision

EPA understands root cause analysis to be a term understood by industry as encompassing several 

different methodologies, all capable of pointing out the “root cause(s)” of a problem or accident. However, 

during the Panel outreach meetings and panel discussions, SERs expressed the need for more guidance 

on what a root cause analysis includes, and questioned whether a root cause analysis provision is 

necessary based on the current incident investigation provision of the RMP rule. There was discussion, 

during pre-panel and panel outreach meetings, about whether EPA was requiring a specific methodology. 

EPA confirmed that it was not requiring a specific methodology. SERs commented that it is a common 

business practice to evaluate the cause of any incident and to address it in a way to prevent its 

reoccurrence and that this proposal will merely add an additional paper work and reporting requirement.
vi

Limit applicability

SERs suggested limiting the applicability of this provision; the SERs questioned whether a root cause 

analysis is necessary or appropriate for every RMP reportable accident and near miss. Others specifically 

stated that it may be too burdensome or not feasible to conduct a root cause analysis on every near miss. 

SERs expressed concern that this would be especially burdensome for small businesses who will need to 

hire outside experts to conduct these analyses or incur the expense to train an existing employee. SERs 

also stated that the root cause analyses would be costly. Other SERs suggested that the requirement for 

a root cause analysis for a near miss should be eliminated altogether and instead should be reserved for 

incidents that have actual releases.

New Definitions

SERs also expressed concern over EPA’s definition of “catastrophic release.” EPA is proposing to modify 

the definition of catastrophic release to use the same definition currently being used to identify reportable 

accidents under the five year accidental history requirement. Some SERs opposed the proposed changes 

to the EPA definition of “catastrophic release” and expressed concern that these revisions would expand 

the scope of when incident investigations are required. Some SERs believed that the redefining of 

“catastrophic release” was broadening the definition to include OSHA jurisdiction-related events. SERs 

believed that the catastrophic release definition should be limited to incidents involving loss of life, serious 

injury or significant damage or loss of offsite property.

SERs requested that EPA clarify what is meant by a “near miss.” EPA noted that we will work with OSHA 

to provide guidance on “near misses.” For example, in the materials presented to the SERs, EPA has 

stated that a near miss would trigger analyses of process upsets such as activation of relief valves, 

interlocks, blowdown systems or rupture disks.

While some SERs recommended that EPA not move forward with these definitions, others recognized the 

need for clearer definitions and suggested seeking public comment on this issue. However, the SERs 

requesting clearer definitions were not supporting broadening the scope of RMP reportable accidents, 

only clarity regarding the current definition.

Panel recommendations:

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

clarify its intent that incident investigations are not intended to cover minor accidents or minor near 

misses that could not reasonably have resulted in a catastrophic release. The Panel further recommends 

that EPA consider proposing to require root cause analysis only for reportable releases, not including 

near misses. The Panel recommends that EPA clarify in the preamble the comparative advantages of a 

root cause analysis to the current incident investigation requirements in §§68.60 and 68.81 of the rule. 

The Panel recommends that EPA seek comments on:

• Whether the root cause analysis requirement should be eliminated;

• The revised definition of catastrophic release and whether it should be limited to loss of life, 

serious injury or significant damage or loss of offsite property; and 

• Examples of near misses.

SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that EPA retain the root cause analysis requirement, but not 

revise the definition of catastrophic release from the 1996 version which SBA believes is limited to major 

accidents, and maintains consistency with the current OSHA PSM definition of catastrophic release which 

refers to a “major uncontrolled emission, fire or explosion,” presenting a “serious danger.”
vii

Safer Alternatives Analysis (SAA)

Eliminate provision

Several SERs questioned the value of requiring the SAA, which they viewed as a highly labor and 

resource intensive review, without a requirement to implement the resulting recommendations, which in 

their view could result in a paperwork exercise and a waste of resources. SERs predicted that the 

analysis will likely produce limited options, which will not be justified by the cost of doing the analysis. 

SERs also cautioned that it could raise liability issues for facilities not implementing recommendations 

from the analysis. SERs also pointed to EPA’s rationale in the 1996 rule for rejecting this requirement and 

asserted that there are still no additional benefits gained from this analysis that will not already be gained 

through the existing process hazard analysis (PHA) requirements. SERs identified that the SAA 

requirement would be unnecessary because the existing PHA methodologies already provide successful 

risk mitigation.

Feasibility

EPA has proposed to define feasible as “[c]apable of being successfully accomplished within a 

reasonable period of time, accounting for economic, environmental, legal, social and technological 

factors.” SERs raised questions about how the evaluation would determine what is feasible and what is 

inherently safer technology. SERs asked if the feasibility evaluation takes into account life-cycle effects, 

and tradeoffs between costs, safety to the public, workers and effects on the environment. One SER 

appreciated EPA’s plan to simply require that facilities consider the feasibility of the SAA 

recommendations, rather than require implementation of these recommendations.

Design stage

Some SERs indicated that safer alternatives should be identified in the design stage of a process or 

facility, rather than during a PHA, because the costs to incorporate safer alternatives for an existing 

process could be prohibitive. One SER quoted EPA’s assertion that this type of assessment “had the 

most benefit in the design of new processes.” Some SERs also noted that this analysis will require 

additional staffing, such as design engineers, in addition to the chemical and mechanical engineers 

staffed for PHA analyses. SERs identified that most small facilities do not have design engineers on staff 

able to conduct this analysis, and as a result, would have to incur additional expense to retain them. 

Batch toll manufacturers

Batch toll manufacturer SERs expressed concern that this requirement may result in loss of business if 

they will be required to evaluate alternatives for custom formula blends. SERs also expressed concerns 

that the analysis required by this provision will not be feasible for products regulated by the Food and 

Drug Administration (FDA) because they are subject to FDA approval. SERs further questioned whether 

the SAA should be applied to chemicals or processes that were required by government regulations, such 

as FDA and EPA (under the Federal Insecticide, Fungicide, and Rodenticide Act).

Panel recommendations: 

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

explain what evidence it has that causes it to reconsider the 1996 assessment that analysis of inherently 

safer technology was unlikely to yield additional benefits. 

The Panel further recommends that EPA seek comments on:

• Whether to eliminate this requirement;

• Limiting this provision to require analyses only to be conducted at the design stage of new 

processes; and

• Exempting batch toll manufacturers from this requirement.

SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that small firms (under 250 employees) should not be subject 

to this provision until three years after the rule’s compliance date for large firms. This would allow EPA to 

re-examine the utility of such a provision for large firms for possible application to the firms for which this 
viii

is most burdensome. Experimentation with different regulatory approaches is an innovation 

recommended by the Administrative Conference of the United States (Administrative Conference 

Recommendation 2014–5; Retrospective Review of Agency Rules). “Where it is legally permissible and 

appropriate, agencies should consider designing their regulations in ways that allow alternative 

approaches in the rule that could help the agency in a subsequent review of the rule to determine whether 

there are more effective approaches to implementing its regulatory objective. For example, agencies 

could allow for experimentation, innovation, competition, and experiential learning (calling upon the 

insights of internal statistical offices, as well as policy and program evaluation offices, in order to design 

plans for reassessing regulations, to the extent they have such resources).” 79 Fed. Reg. 75116 (Dec. 17, 

2014). This approach of delaying compliance for small firms until EPA can review the utility of the 

provision for large firms is appropriate for a potentially costly new requirement. 

The Office also recommends that batch toll processors be exempt from this provision unless the firm has 

a contractual relationship with the customer of five or more years, given that this requirement is unlikely to 

yield practical information for contracts of short duration. 

Local Coordination

The current rule requires facilities to develop an emergency response program in accordance with the 

requirements of §68.95 except when: the community emergency response plan addresses toxic 

substances at the facility, or the owner/operator at the facility has coordinated response actions for 

flammable substances with the local fire department; and has a mechanism in place to notify emergency 

responders when there is a need for a response. 

Responsibility to ensure adequate emergency response capabilities

Most SERs expressed frustration with the requirement to coordinate with local emergency response 

officials because some LEPCs are not active or do not have sufficient resources to fully implement 

EPCRA emergency planning requirements. For example, SERs stated that the majority of fire 

departments are served by volunteers that often do not have the resources to coordinate with facilities. 

Some SERs believed that the coordination requirement was satisfied simply by notifying the LEPC (for 

toxic substances) or the local fire department (for flammable substances) of substances without 

confirming that the facility is included in the community response plan or coordinating response actions 

with the fire department. SERs suggested that the responsibility to ensure that a local community has 

properly planned for a possible event at a regulated facility should be borne by the community and not by 

the facility as currently required in EPCRA. However, EPA notes that the current RMP rule includes a 

corresponding requirement for facilities to develop an emergency response program except when the 

community emergency response plan addresses toxic substances at the facility, or the owner/operator at 

the facility has coordinated response actions for flammable substances with local fire departments. EPA 

believes a simple notification does not meet the statutory requirements under CAA section 

112(r)(7)(B)(ii)(III)5 and the pursuant RMP regulatory requirements on when to develop an emergency 

response program. If an LEPC is inactive, then no community response plan has been developed, and as 

a result, a source with toxic substances is obligated to develop an emergency response program. In the 

1996 final rule, EPA elaborated that when the source is not addressed in the community response plan or 

has not coordinated response actions with the local fire department, then the source must comply with the 

emergency response program requirements.

Because many sources covered by this rule may be too small to handle emergency response 

themselves, EPA has provided, in this new section, the actions they must take if they will not 

respond to releases. Specifically, for sources with regulated toxic substances, the source must be 

addressed in the community emergency response plan developed under EPCRA section 303. 

Sources with regulated flammable substances must coordinate response actions with the local 

fire department. These sources must also establish a mechanism to contact local emergency 

responders. Sources that do not meet these requirements must comply with EPA’s 

 5 CAA section 112(r)(7)(B)(ii)(III) requires a response program providing for specific actions to be taken in response 

to an accidental release of a regulated substance so as to protect human health and the environment, including 

procedures for informing the public and local agencies responsible for responding to accidental releases, emergency 

health care, and employee training measures.
ix

emergency response program requirements. (emphasis added; see 61 FR 31712, June 20, 

1996.)

Eliminate provision

SERs suggested that EPA address violations of the existing requirements rather than impose additional 

requirements on facilities. Many SERs expressed concerns of inactive or non-responsive and nonexisting LEPCs; their overall sense is that without actual coordination with LEPCs, the required 

documentation of coordination will only be a paperwork exercise. 

SERs also expressed concerns that the provision will result in additional facilities becoming responders 

and that this transition will be costly and difficult for small businesses to absorb. SERs were also 

concerned that the consequences of the coordination requirement will incentivize local governments to 

renounce future response at facilities. SERs noted that small facilities do not have the capability to 

provide response without the assistance of local responders and forcing them to become responding 

facilities may run them out of business. EPA has estimated that its clarification of local coordination 

requirements could cause several thousand facilities to become responders. SERs also indicated that 

EPA underestimated the costs of new responding facilities by not including firefighting equipment costs. 

Finally, SERs expressed concerns with the provision empowering LEPCs to require a facility to develop

an emergency response program and noted that LEPCs do not have legal authority to evaluate the 

adequacy of such programs. In sum, the SERs favored elimination of this requirement.

Panel recommendations: 

This provision is likely to be one of the most costly requirements of the EPA modernization proposal, and 

thus, requires careful consideration. Based on the concerns and recommendations provided by the SERs, 

the Panel recommends that EPA explain how coordination should occur between local emergency 

response officials and small facilities and clarify requirements for facilities that make a “good faith” effort 

to coordinate with local emergency response officials. 

The Panel also recommends that EPA seek comment on the proposed frequency for annual coordination.

SBA Office of Advocacy recommendations:

While EPA believes that the current regulation clearly places responsibilities on the facilities to meet the 

emergency response requirements alone in the absence of a public response mechanism, the SERs 

have disagreed with this interpretation. The SBA Office of Advocacy is unsure about which legal 

interpretation is correct, although the Office does believe that it is not appropriate to place this 

responsibility on small firms in these situations.

In a related rulemaking, the 1980 EPA emergency preparedness rule for hazardous waste generators (40 

CFR 265.37) only required generators to “attempt” to make arrangements with local responders, and to 

document any failure to complete such arrangements, recognizing the difficulty of achieving such 

arrangements across the country. Today, just as in 1980, the unavailability of local resources to provide 

the response function is still a problem. The Office recommends that EPA use this approach for 

emergency response within the RMP rule. This is one mechanism whereby the facility can demonstrate 

its “good faith” in making such arrangements.

Emergency Response Exercises

EPA is considering requiring responding facilities to conduct field exercises every five years, tabletop 

exercises annually in the interim years, and invite local response programs to participate. Non-responding 

and responding facilities would be required to conduct annual notification exercises. SERs have 

expressed that the proposed requirements for the field and tabletop exercises are too prescriptive and 

that the burden is inappropriately being placed on the facilities. SERs also observed that these 

requirements would create more resource demands on the local response community, which is already 

overburdened by the current requirements. One SER suggested that field exercises should allow for 

offsite activities such as a week of training at a reputable fire school. EPA notes that the purpose of a fullfield exercise is to ensure that the facility’s response plan is appropriate to ensure adequate response 

capabilities at the facility- offsite training does not accomplish that goal.
x

SERs also expressed concern that the field exercises can be very expensive because it will require using 

equipment, production curtailment, employee evacuation, local responder participation, and hours of 

planning and coordinating. SERs also expressed concern that local emergencies may force the facility to 

postpone an exercise which could be difficult to reschedule. SERs further noted that requiring a field 

exercise for facilities with a small number of employees may not be practical, for instance, when there are 

only one or two people in the facility and local responders are unable to participate. SERs overwhelmingly 

suggested that the agency should focus its efforts on helping fire departments and LEPCs with their 

resources instead of applying this requirement to regulated facilities.

Panel recommendations:

Based on the concerns and recommendations provided by the SERs, the Panel recommends that EPA 

clarify that participation by local responders is not required for a facility to comply with the requirements in 

this provision and that field exercises and drills required by other state and federal regulations could meet 

this requirement if the facility’s emergency response plan is tested as part of those exercises. 

Finally, the Panel recommends that EPA seek comments on: 

• Whether the exercise provision should be eliminated; 

• How to address postponement and rescheduling issues (which SERs have indicated may take up 

to a year); 

• Limiting the requirement to only tabletop exercises; and

• The frequency of required field and tabletop exercises.

SBA Office of Advocacy recommendations:

The SBA Office of Advocacy recommends that the Agency propose tabletop exercises alone, and include 

no minimum requirements for field exercises. The Office is concerned that LEPCs cannot achieve 

compliance with the current EPCRA requirements, and that adding to them would be counterproductive. 

Field exercises at the facility without LEPC participation would be of limited value.

Information Sharing

Information for LEPCs 

SERs expressed concern over the burden of summarizing highly technical information and the capacity 

for an LEPC to effectively use that information in decision-making, due to differences in expertise, as well 

as resource constraints. Specifically, SERs questioned the value of sharing information on compliance 

audits and SAA. SERs pointed out that the most useful information is the chemical hazard information.

The SERs also indicated that the executive summary requirement of the RMP rule in §68.155 was 

designed to provide the most relevant and easily understandable information to the public. The executive 

summary requires facilities to describe the stationary source and the regulated substances handled; 

accidental release prevention and emergency response policies; general accidental release prevention 

program and chemical-specific prevention steps; five-year accident history; the emergency response 

program; and planned changes to improve safety.

Several SERs suggested allowing an LEPC to request information, such as an accident history for a 

facility, if needed, rather than requiring all of the information to be provided upfront. SERs expressed 

concerns that this will be an unnecessary and duplicative provision because adequate information is 

already being shared under existing requirements. EPA noted that currently, LEPCs may obtain RMPs 

from EPA, but those plans have limited information concerning facility emergency response programs, 

accidental releases, compliance audits, etc. In order for LEPCs to fully develop a local emergency 

response plan, it is useful for them to have summaries of key analysis, lessons learned, and changes 

(including information in compliance audits, incident investigations, safer alternatives implemented, and 

drill and exercise reports) from the facility. Additionally, EPA noted that EPCRA only requires reporting of 

chemical inventories and notification of an accidental release. It does not require reporting of results from 

compliance audits, incident investigations, safer alternatives, and drills/exercises.
xi

Panel recommendations for LEPC information sharing:

In light of these concerns, the Panel recommends that EPA consider only requiring facilities to develop 

chemical hazard information summaries and allowing LEPCs to make reasonable requests for additional 

information. The Panel also recommends making chemical hazard information available upon request by 

the LEPC rather than requiring it to be automatically submitted by the facility. This will help ensure that 

the LEPC receives and is able to get the necessary information to help conduct their activities, and is not 

overburdened by information that it has not requested. 

The Panel also recommends that EPA seek comment on: 

• Narrowing the approach to require a one page summary of each significant chemical hazard 

during a fire identifying the product, its properties, its location and firefighting measures for 

responders-- a one-page summary of information that addresses chemical hazard information 

and emergency response measures;

• Limiting the amount of information to be shared with LEPCs; and

• Whether EPA should specify a format for summary information to make it easier for local officials 

to find and interpret the information that they need.

Information for the public

SERs noted that adequate information is already available for public access through the Right-to-Know 

Network, including the executive summary of the RMPs. EPA noted that it is not requiring new information 

to be provided;6 instead, it is requiring information to be provided in a more easily accessible manner. 

SERs also expressed that they are comfortable with responding to specific information requests rather 

than a mandate that repackages existing public information. One SER commented that Chemical Facility 

Anti-Terrorism Standards sites are unable to share the proposed information.

Panel recommendations for public information sharing:

Based on the concerns of the SERs, the Panel recommends that EPA seek comments on: 

• Ways to limit the scope of the information elements shared with the public as well as the format in 

which information should be provided (e.g. a one-page summary of information that addresses 

chemical hazard information and emergency response measures);

• Whether the existing RMP data, including the executive summary, are adequate for the public in 

the absence of a specific request, and 

• Whether additional information should only be provided to the public upon request.

Public meetings

Several SERs questioned the value of public meetings and noted that, when held in the past, public 

meetings were not well attended. SERs further noted that in the absence of an accident, most past public 

meetings had no public attendees. Some SERs suggested altering the requirement to allow for the 

request of a public meeting if an LEPC or community felt it was necessary. Additionally, SERs expressed 

concern about the requirement to hold public meetings 30 days after an accident; the SER suggestions 

included expanding the timeframe from 60 days to 9 months. SERs indicated that many small business 

may still be handling the aftermath of accidents, conducting incident investigations, and arranging audits 

in this time period, with limited attention to devote to educating the public. 

Panel recommendations for public meetings: 

Given these concerns, the Panel recommends that EPA require that a public meeting be held only after 

an RMP reportable accident. EPA should consider allowing the public meeting to be combined with any 

meeting open to the general public (e.g. city council, municipal board, or LEPC meeting). 

The Panel also recommends that EPA seek comments on: 

• Whether it is appropriate to require public meetings; 

 6 With the exception of exercise information because this is a new provision.