1 Document Submitted to Initiate E.O. 12866 Review Risk Management Program Re quest for Information (RFI) Legal Authority for (RFI) Items May 20, 2014 Office of Emergency Management Office of Solid Water and Emergency Response

US Environmental Protecti on Agency, Washington, D.C.

Legal Authority for RMP Request for Information (RFI) Items: Items are listed according to their numbering in sections II.C and II.D of the RMP RFI – the relevant legal authority citation is in blue text following each item

C. Items in OSHA’s RFI relevant to EPA’s RMP regulations

1. Update the list of regulated substances;

a. Adding additional toxic or flam mable substances to the list

b. Covering high and/or low explosives

c. Covering ammonium nitrate

d. Covering reactive substances and reactivity hazards

e. Covering additional categories of substances

f. Removing certain substances from the lis t or raising their threshold quantity

g. Reducing the threshold quantity for substances currently on the list For listing new substances or delisting ex isting substances: CAA Section 112(r)(3) - List of substances: “...The list may be re vised from time to time by the Administrator on the Administrator's own motion or by petitio n and shall be reviewed at least every 5 years.”

Factors to be considered in listing substances under pa ragraph (3): CAA Section 112(r)(4) [Subsection (B) added by the Chemical Safety Information, Site Security and Fuels Regulatory Re lief Act of 1999]- the Administrator-

(A) shall consider-

(i) the severity of any acute adverse hea lth effects associated with accidental releases of the substance; (ii) the likelihood of accidental rele ases of the substance; and (iii) the potential magnitude of human expos ure to accidental releases of the substance; and

For establishing threshold quantities: CAA Section 112(r)(5) - Threshold quantity: “At the time any substance is listed pursuant to paragraph (3), the Administrator shall establish by rule, a threshol d quantity for the substance, taking into account the toxicity, reactivity, volatility, dispersibil ity, combustibility, or flammability of the

substance and the amount of the substance whic h, as a result of an accidental release, is known to cause or may reasonably be anti cipated to cause death, injury or serious

adverse effects to human health fo r which the substance was listed.”2 2. Additional risk management program elements; Development of risk management program regulations: CAA Section 112(r)(7)(b)(i) - Within 3 years after November 15, 1990, the Administrator shall promulgate reasonable regulations and appropriate guida nce to provide, to th e greatest extent practicable, for the preventi on and detection of accident al releases of regulated substances and for response to such releases by the owners or opera tors of the sources

of such releases.

CAA Section 112(r)(7)(b)(ii) – The regulations under this subparagraph shall require the owner or operator of stat ionary sources at which a re gulated substance is present in more than a threshold quantity to prep are and implement a risk management plan to detect and prevent or minimize accidental releases of such substances from the stationary source, and to pr ovide a prompt emergency response to any such releases in order to protect human health and the environment. Such plan shall provide for compliance with the requirements of this s ubsection and shall also include each of the following: (I) a hazard assessment to assess the potential effects of an acc idental release of any regulated substance. This assessmen t shall include an estimate of potential release quantities and a determina tion of downwind effects, including potential exposures to affected popula tions. Such assessment shall include a previous release history of the past 5 years, including the size, concentration, and duration of releases, and shall in clude an evaluation of worst case accidental releases; (II) a program for preventing accidental releases of regulated substances, including safety precautions and maintenance, monitoring and employee training measures to be used at the source; and (III) a response program providing for specific ac tions to be taken in response to an accidental release of a regulated substan ce 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.

3. Define and require evaluati on of updates to applicable recognized and generally accepted good engineering practices; Same authority as C.2.

4. Extend mechanical integrity requirements to cover any safety-critical equipment; Same authority as C.2.

5. Require owners and operators to manage organizational changes; Same authority as C.2.

6. Require third-party compliance audits; Same authority as C.2.

7. Effects of OSHA PSM coverage on RMP applicability.3 Authority to assign source types to di fferent Program levels: CAA Section 112(r)(7)(b)(i) – “...the regula tions shall, as appropriate , recognize differences in size, operations, processes, class and categories of sources...”

Duty to coordinate RMP requirements w ith OSHA: CAA Section 112(r)(7)(D) – “In carrying out the authority of this paragra ph, the Administrator shall consult with the Secretary of Labor ... and sh all coordinate any require ments under this paragraph with any requirements established for comparable purposes by the Occupational Safety and Health Administration....”

D. Additional items for which EPA requests information

1. Inherently safer technol ogy (IST) options analysis; CAA Section 112(r)(7)(A) - Accident prevention: “...the Administrato r is authorized to promulgate release prevention, detection, and correction requi rements which may include monitoring, record keeping, reporting, training, vapor re covery, secondary containment, and other design, equipment, work practice, and operational requirements.”

CAA section 112(r)(7)(B)(i) “The Admini strator shall promulgate reasonable regulation . . . to provide, to the greatest ex tent practicable, for the prevention . . . of

accidental releases.”

CAA section 112(r)(7)(B)(ii) “The regulations under this subparagraph shall require . . . a risk management plan to detect and prevent or minimize accidental releases.”

2. Emergency drills to test a source’s emergency response program or plan; CAA Section 112(r)(7)(B)(i): “...the Administrator shall promulgate reasonable regulations and appropriate guidance to provide, to th e greatest extent practicable, for the prevention and detection of accidental rel eases of regulated substances and for response to such releases by the owners or operators of the sources of such releases....The regulations sh all include procedures and measures for emergency response after an accidental re lease of a regulated substan ce in order to protect human

health and the environment.”

CAA Section 112(r)(7)(B)(ii): “...The regul ations under this subparagraph shall require the owner or operator of stationary sources at which a regulated substance is present in more than a threshold quantity to ...provide a prompt emergency response to any such releases in order to prot ect human health and the environment.”

3. Automated detection and monitoring fo r releases of regulated substances; CAA Section 112(r)(7)(A) - Accident prevention: “...the Administrator is authorized to promulgate release preven tion, detection, and correcti on requirements which may include monitoring, record keeping, repor ting, training, vapor recovery, secondary containment, and other design, equipm ent, work practice, and operational requirements.”4 CAA Section 112(r)(7)(B)(i): “...the Admi nistrator shall promulgate reasonable regulations and appropriate gui dance to provide, to the grea test extent practicable, for the prevention and detection of accidental re leases of regulated substances and for response to such releases by the owners or operators of the source s of such releases. The Administrator shall utilize the expertis e of the Secretaries of Transportation and Labor in promulgating such regulations. As appropriate, such regul ations shall cover the use, operation, repair, replacement, a nd maintenance of equipment to monitor, detect, inspect, and control such releases...”

4. Additional stationary so urce location requirements; CAA Section 112(r)(7)(A) - Accident prevention: “...the Administrato r is authorized to promulgate release prevention, detection, and correction requi rements which may include monitoring, record keeping, reporting, training, vapor re covery, secondary containment, and other design, equipment, work practice, and operational requirements. Regulations promulgated under this paragraph may make distinctions between various types, classes, and kinds of facilities, devices a nd systems taking into consideration factors including, but not limited to, the size, location , process, process controls, quantity of substances handled, potency of substances , and response capabiliti es present at any stationary source.”

5. Compliance with emergency response progr am requirements in coordination with local responders. CAA Section 112(r)(7)(B)(i): “...the Administrator shall promulgate reasonable regulations and a ppropriate guidance to provide, to the greatest extent practicable, for the preventi on and detection of acci dental releases of regulated substances and for response to such releases by the owners or operators of

the sources of such releases. (ii) The regulations under this subparagraph sh all require the owner or operator of stationary sources at which a regulated substance is present in more than a threshold quantity to prepare and implement a risk ma nagement plan to detect and prevent or

minimize accidental releases of such substa nces from the stationary source, and to provide a prompt emergency response to any such releases in order to protect human health and the environment. Such plan shall provide for compliance with the requirements of this subsection and sha ll also include each of the following

... (I)... (II)... (III) a response program providing for specific ac tions 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.”

6. Incident investigation and accident history requirements . CAA Section 112(r)(7)(B)(ii)(I) [Such plan shall also include] “a hazar d assessment to assess the potential effects of an accidental release of any regulated substance. This assessment shall include an estimate of potential re lease quantities and a determination of downwind effects, including potential e xposures to affected populations. Such5 assessment shall include a previous release history of the past 5 years, including the size, concentration, and duration of releases...”

112(r)(7)(B)(ii)(II) [Such pl an shall also include] “a program for preventing
accidental releases of regulated substances, including safety precautions and

maintenance, monitoring and employee training measures to be used at the source”

7. Worst case release scenario quantity require ments for processes involving numerous small vessels stored together. Hazard assessment authority cited in D.6.

8. Public disclosure of information to promote regulatory compliance and improve community understanding of chemical risks. CAA Section 112(r)(7)(B)(iii) – “The owner or operator of each stationary source covered by clause (ii) shall register a risk management plan prepared under this subparagraph with the Administrator before the effective date of regulations under clause (i) in such form and manner as the Administrator shall, by rule, require. Plans prepared pursuant to this s ubparagraph shall also be submitted to the Chemical Safety and Hazard Investigation Board, to the State in which the stationa ry source is located, and to any local agency or entity having responsibility for planning for or responding

to accidental releases which ma y occur at such source, and shall be available to the public under section 7414(c) of this title.”

9. Threshold quantities and offsite conseque nce analysis endpoints for regulated substances based on Acute Exposure Guid eline Level (AEGL) toxicity values. Same authority as C.1.

10. Program 3 NAICS codes based on RMP accident history data. Authority to assign source types to di fferent Program levels: CAA Section 112(r)(7)(b)(i) – “...the regula tions shall, as appropriate , recognize differences in size, operations, processes, class and categories of sources...”

11. The “safety case” regulatory model. Same authority as C.2.

12. Streamlining RMP requirements. Same authority as previous items.