17622 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 68 

[EPA–HQ–OLEM–2022–0174; FRL–5766.6– 

02–OLEM] 

RIN 2050–AH22 

Accidental Release Prevention 

Requirements: Risk Management 

Programs Under the Clean Air Act; 

Safer Communities by Chemical 

Accident Prevention 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is amending its Risk 

Management Program (RMP) regulations 

as a result of Agency review. The 

revisions include several changes and 

amplifications to the accident 

prevention program requirements, 

enhancements to the emergency 

preparedness requirements, 

improvements to the public availability 

of chemical hazard information, and 

several other changes to certain 

regulatory definitions or points of 

clarification. As major and other serious 

and concerning RMP accidents continue 

to occur, the record shows and EPA 

believes that this final rule will help 

further protect human health and the 

environment from chemical hazards 

through advancement of process safety 

based on lessons learned. These 

amendments seek to improve chemical 

process safety; assist in planning, 

preparedness, and response to Risk 

Management Program-reportable 

accidents; and improve public 

awareness of chemical hazards at 

regulated sources. While many of the 

provisions of this final rule reinforce 

each other, it is EPA’s intent that each 

one is merited on its own, and thus 

severable. 

DATES: This final rule is effective on 

May 10, 2024. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OLEM–2022–0174. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available electronically through https:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Deanne Grant, Office of Emergency 

Management, Mail Code 5104A, 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460; telephone number: 202–564– 

1096; email: grant.deanne@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Preamble acronyms and 

abbreviations. EPA uses multiple 

acronyms and terms in this preamble. 

While this list may not be exhaustive, to 

ease the reading of this preamble and for 

reference purposes, EPA defines the 

following terms and acronyms here: 

List of Abbreviations and Acronyms 

ANSI American National Standards 

Institute 

API American Petroleum Institute 

CAA Clean Air Act 

CAAA Clean Air Act Amendments 

CBI Confidential Business Information 

CCPS Center for Chemical Process Safety 

CERCLA Comprehensive Environmental 

Response, Compensation, and Liability Act 

CFATS Chemical Facility Anti-Terrorism 

Standards 

CFR Code of Federal Regulations 

CISA Cybersecurity & Infrastructure 

Security Agency 

CSB Chemical Safety and Hazard 

Investigation Board 

CSISSFRRA Chemical Safety Information, 

Site Security and Fuels Regulatory Relief 

Act 

CVI Chemical-terrorism Vulnerability 

Information 

DHS Department of Homeland Security 

DOJ Department of Justice 

DOT Department of Transportation 

EHS Extremely Hazardous Substances 

EJ Environmental Justice 

E.O. Executive Order 

EPA Environmental Protection Agency 

EPCRA Emergency Planning and 

Community Right-To-Know Act 

FBI Federal Bureau of Investigation 

FOIA Freedom of Information Act 

FR Federal Register 

GDC General Duty Clause 

HF hydrofluoric acid 

HHC highly hazardous chemical 

ICR Information Collection Request 

IIAR International Institute of Ammonia 

Refrigeration 

IPAWS Integrated Public Alert & Warning 

System 

ISD inherently safer design 

IST inherently safer technology 

LEPC Local Emergency Planning Committee 

LOPA Layers of Protection Analysis 

NAICS North American Industry 

Classification System 

NASTTPO National Association of SARA 

Title III Program Officials 

NECI National Enforcement and 

Compliance Initiative 

NJDEP New Jersey Department of 

Environmental Protection 

NRC National Response Center 

NRI National Risk Index 

NTTAA National Technology and Transfer 

Advancement Act 

OCA offsite consequence analysis 

OMB Office of Management and Budget 

OSHA Occupational Safety and Health 

Administration 

PES Philadelphia Energy Solutions 

PHA process hazard analysis 

PHMSA Pipeline and Hazardous Materials 

Safety Administration 

PRA Paperwork Reduction Act 

PSI process safety information 

PSM process safety management 

RAGAGEP recognized and generally 

accepted good engineering practices 

RCA root cause analysis incident 

investigation 

RFA Regulatory Flexibility Act 

RIA Regulatory Impact Analysis 

RMP Risk Management Program or risk 

management plan 

SARA Superfund Amendments and 

Reauthorization Act 

SCCAP Safer Communities by Chemical 

Accident Prevention 

SDS Safety Data Sheet 

SERC State Emergency Response 

Commission 

STAA safer technology and alternatives 

analysis 

TCPA Toxic Catastrophe Prevention Act 

TMA trimethylamine 

TQ threshold quantity 

UMRA Unfunded Mandates Reform Act 

The contents of this preamble are: 

I. Executive Summary 

A. Purpose of the Regulatory Action 

B. Summary of the Major Provisions of the 

Regulatory Action 

C. Costs and Benefits 

II. General Information 

A. Does this action apply to me? 

B. What action is the Agency taking? 

C. What is the Agency’s authority for 

taking this action? 

D. What are the incremental costs and 

benefits of this action? 

III. Background 

A. Overview of EPA’s Risk Management 

Program 

B. Events Leading to This Action 

C. EPA’s Authority To Revise the RMP 

Rule 

IV. Discussion of General Comments 

A. General Comments 

B. EPA Responses 

V. Prevention Program Requirements 

A. Hazard Evaluation Amplifications 

B. Safer Technology and Alternatives 

Analysis (STAA) 

C. Root Cause Analysis 

D. Third-Party Compliance Audits 

E. Employee Participation 

VI. Emergency Response 

A. Summary of Proposed Rulemaking 

B. Summary of Final Rule 

C. Discussion of Comments 

VII. Information Availability 

A. Summary of Proposed Rulemaking 

B. Summary of Final Rule 

C. Discussion of Comments and Basis for 

Final Rule Provisions 

VIII. Other Areas of Technical Clarification/ 

Enforcement Issues 

A. Summary of Proposed Rulemaking 


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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 17623 

B. Summary of Final Rule 

C. Discussion of Comments and Basis for 

Final Rule Provisions 

IX. Compliance Dates 

A. Summary of Proposed Rulemaking 

B. Summary of Final Rule 

C. Discussion of Comments and Basis for 

Final Rule Provisions 

X. Statutory and Executive Orders Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

I. Executive Summary 

A. Purpose of the Regulatory Action 

The purpose of this action is to make 

changes to the Risk Management 

Program (RMP) rule in order to improve 

safety at facilities that use and distribute 

hazardous chemicals. Because major 

and other serious and concerning RMP 

accidents continue to occur, this final 

rule aims to better identify and further 

regulate risky facilities to prevent 

accidental releases before they can 

occur. As explained in further detail in 

following sections of this preamble, EPA 

maintains that by taking a rule-based, 

prevention-focused approach in this 

action rather than the so-called 

‘‘compliance-driven,’’ mostly postincident, approach in the 2019 

reconsideration rule (84 FR 69834, 

December 19, 2019), this rule will 

further protect human health and the 

environment from chemical hazards 

through process safety advancement 

without undue burden. 

EPA proposed changes to its RMP 

regulations (40 Code of Federal 

Regulations (CFR) part 68) on August 

31, 2022 (87 Federal Register (FR) 

53556), after publishing a ‘‘Notice of 

virtual public listening sessions; request 

for public comment’’ (86 FR 28828) that 

solicited comments and information 

from the public regarding potential 

changes to the RMP regulations. EPA 

also hosted a series of virtual public 

hearings on September 26–28, 2022, to 

provide interested parties the 

opportunity to present data, views, or 

arguments concerning the proposed 

action. 

B. Summary of the Major Provisions of 

the Regulatory Action 

This action amends EPA’s RMP 

regulations at 40 CFR part 68. These 

regulations apply to stationary sources 

(also referred to as ‘‘facilities’’) that hold 

specific ‘‘regulated substances’’ in 

excess of threshold quantities. These 

facilities are required to assess their 

potential release impacts, undertake 

steps to prevent releases, plan for 

emergency response to releases, and 

summarize this information in a risk 

management plan (RMP) submitted to 

EPA. The release prevention steps vary 

depending on the type of process, but 

progressively gain granularity and rigor 

over three program levels (i.e., Program 

1, Program 2, and Program 3). 

The major provisions of this rule 

include several changes to the accident 

prevention program requirements, as 

well as enhancements to the emergency 

response requirements, and 

improvements to the public availability 

of chemical hazard information. Each of 

these provisions is introduced in the 

following paragraphs of this section and 

described in greater detail in sections V 

through VIII of this preamble. 

Additionally, certain revised 

provisions apply to a subset of the 

processes based on program levels 

described in 40 CFR part 68 (or in one 

case, to a subset of processes within a 

program level). A full description of 

these program levels is provided in 

section III.A. of this preamble. 

Additional provisions are targeted at 

subgroups of processes that pose an 

elevated likelihood of impacting nearby 

communities. Factors elevating the 

likelihood of impacting nearby 

communities include source-specific 

accident history, industry accident 

history, and co-location with multiple 

facilities. Furthermore, some sectors are 

targeted for additional provisions due to 

recent accidents and widely known 

safer alternative technologies. 

C. Costs and Benefits 

Approximately 11,740 facilities have 

filed current RMPs with EPA and are 

potentially affected by the rule. These 

facilities include petroleum refineries 

and large chemical manufacturers; water 

and wastewater treatment systems; 

chemical and petroleum wholesalers 

and terminals; food manufacturers, 

packing plants, and other cold storage 

facilities with ammonia refrigeration 

systems; agricultural chemical 

distributors; midstream gas plants; and 

a limited number of other sources, 

including Federal installations that use 

RMP-regulated substances. 

In total, EPA estimates annualized 

final rule costs of $256.9 million at a 3% 

discount rate and $296.9 million at a 

7% discount rate over a 10-year period. 

The largest annualized cost of the final 

rule is the Safer Technologies and 

Alternatives Analysis (STAA) 

implementation cost ($168.7 million at 

a 3% discount rate and $204.9 million 

at a 7% discount rate), followed by the 

practicability study ($27.0 million at a 

3% discount rate and $28.6 million at 

a 7% discount rate), the STAA initial 

evaluation ($18.5 million at a 3% 

discount rate and $19.7 million at a 7% 

discount rate), information availability 

($12.8 million at both 3% and 7% 

discount rates), employee participation 

plans ($11.5 million at both 3% and 7% 

discount rates), third-party audits ($7.5 

million at both 3% and 7% discount 

rates), rule familiarization ($5.8 million 

at a 3% discount rate and $6.8 million 

at a 7% discount rate), and community 

notification systems ($4.0 million at 

both 3% and 7% discount rates). The 

remaining provisions impose 

annualized costs under $1 million, 

including root cause analysis ($0.7 

million at both 3% and 7% discount 

rates), emergency backup power for 

perimeter monitors ($0.3 million at both 

3% and 7% discount rates), and RMP 

justifications for natural hazards, facility 

siting, recognized and generally 

accepted good engineering practices 

(RAGAGEP), and no backup power, 

each have annualized costs below $0.1 

million (at both 3% and 7% discount 

rates). 

The Agency has determined that 

among the 2,636 potentially regulated 

private sector small entities impacted, 

2,393, or 90.8 percent, may experience 

a cost of revenue impact of less than one 

percent, with an average small entity 

cost of $72,525; 167, or 6.3 percent, may 

experience an impact of between 1 and 

3 percent of revenues with an average 

small entity cost of $629,271; and 75, or 

2.8 percent, may experience an impact 

of greater than 3 percent with an average 

small entity cost of $1,083,823. The 

industry sectors of Farm Supplies 

Merchant Wholesalers and Farm 

Product Warehousing and Storage had 

the most entities potentially affected, 

with 146 and 96 entities, respectively. 

Within the Farm Supplies Merchant 

Wholesalers sector, the Agency 

determined that only 8 of the 146 small 

entities (6 percent of small entities) will 

experience impacts of between 1 and 3 

percent of revenues and only 2 small 

entities (1 percent of small entities) will 


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17624 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

1EPA estimated monetized damages from RMP 

facility accidents of $540.23 million per year. 

2Marsh JLT Specialty, ‘‘100 Largest Losses in the 

Hydrocarbon Industry,’’ 27th Edition, March 2022. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

from 1974 to 2021 in current and 2021 dollars and 

in a few cases, business loss costs. 

3Marsh JLT Specialty, ‘‘100 Largest Losses in the 

Hydrocarbon Industry,’’ 27th Edition, March 2022. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

from 1974 to 2021 in current and 2021 dollars and 

in a few cases, business loss costs. 

4Marsh JLT Specialty, ‘‘100 Largest Losses 1974– 

2015: Large property damage losses in the 

hydrocarbon industry,’’ 24th Edition, March 2016. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

and in a few cases, business loss costs. 

5 Guignet, Dennis, Robin R. Jenkins, Christoph 

Nolte, and James Belke. 2023a. The External Costs 

of Industrial Chemical Accidents: A Nationwide 

Property Value Study. Journal of Housing 

Economics. 62 (2023) 101954. 

6Union Carbide release of approximately 40 tons 

of methyl isocyanate into the air killed over 3,700 

people. Most of the deaths and injuries occurred in 

a residential area near the plant.; Lees, Frank P. 

Loss Prevention in the Process Industries, Volume 

3, 2nd ed. Appendix 5, Bhopal (Oxford: 

Butterworth-Heinemann, 1996). 

7As compared to consequences resulting from 

RMP accidents 2004–2020 listed in Appendix A of 

the Technical Background Document for Notice of 

Proposed Rulemaking: Risk Management Programs 

Under the Clean Air Act, section 112(r)(7); Safer 

Communities by Chemical Accident Prevention 

(April 19, 2022). 

8EPA estimated the values of injuries and deaths 

that occurred in Pasadena using the same values 

applied to injuries and deaths at RMP facilityreported accidents. See Exhibit 3–15 in the 

accompanying RIA for specific values and section 

3.2.5.1 ‘‘Fatalities and Injuries’’ in the RIA for 

detailed explanations of how those values were 

estimated. The $1.8 billion in property damage was 

estimated by Marsh JLT Specialty, ‘‘100 Largest 

Losses in the Hydrocarbon Industry,’’ 27th ed., 

March 2022. https://www.marsh.com/us/industries/ 

energy-and-power/insights/100-largest-losses/100- 

largest-losses-report-download.html. 

experience impacts of more than 3 

percent of revenue. Within the Farm 

Product Warehousing and Storage 

sector, the Agency determined that only 

5 of the 96 small entities (5 percent of 

small entities) will experience impacts 

of between 1 and 3 percent of revenues 

and no small entities will experience 

impacts of more than 3 percent of 

revenue. 

Among the 630 small government 

entities potentially affected, the 

minimum cost any entity will incur is 

$2,000; 365, or 58 percent, would incur 

costs ranging from $2,000 to $3,000; 

248, or 39 percent, will incur costs 

ranging from $3,000 to $10,000; and 17, 

or 3 percent, will incur costs greater 

than $10,000. EPA estimated that for the 

rule to have a larger than 1 percent 

impact on the government entity with 

the largest cost impact, the entity would 

need to have revenue of less than $120 

per resident. For the rule to have a 

larger than 1 percent impact on the 

smallest government entity identified in 

the data, the entity would need to have 

revenue of less than $650 per resident. 

Details of these analyses are presented 

in Chapter 8 of the RIA, which is 

available in the docket. 

Major and other serious and 

concerning RMP accidents have 

continued to occur. EPA anticipates that 

promulgation and implementation of 

this final rule will reduce the risk of 

such accidents and the severity of the 

impacts when they occur. RMP accident 

data show past accidents have generated 

highly variable impacts, so the impacts 

of future accidents are difficult to 

predict. Nevertheless, it is clear from 

RMP accident data 1 and other relevant 

data from RMP regulated industry 

sectors,2 that chemical accidents can 

impose substantial costs on firms, 

employees, emergency responders, the 

community, and the broader economy. 

Specifically, the EPA expects the final 

rule provisions to result in a reduced 

frequency and magnitude of damages 

from releases, including damages that 

are quantified for the baseline period 

such as fatalities, injuries, property 

damage, hospitalizations, medical 

treatment, sheltering in place, and 

evacuations. EPA also expects the final 

rule provisions to reduce baseline 

damages that are not quantified. These 

damages include potential health risks 

from toxic chemical exposure, lost 

productivity at affected facilities, 

emergency response costs, transaction 

costs from potential subsequent legal 

battles, property value losses in nearby 

neighborhoods, environmental damage 

and costs of evacuation and shelteringin-place events, and others. They have 

not been quantified because there is 

either limited or no information in the 

RMP data that could allow for precise 

quantification. However, in some cases, 

these damages could be even more 

detrimental to the facility and 

community than those damages that can 

be quantified. For example, regarding 

lost productivity, costs are highly 

variable based on the type of release, the 

extent of the damage, the location of the 

facility, and product being produced. 

Yet, Marsh Specialty, a risk 

management and energy consultancy, 

has collected data on 10,000 accidents 

in the petrochemical sector over 40 

years and published 27 editions of its 

‘‘100 Largest Losses’’ reports.3 Their 

data suggest that lost productivity is 

typically two or three times the cost of 

property damage.4 Another example of 

unquantified impacts can be examined 

with property value impacts. A recent 

hedonic property value analysis has 

examined the impact of RMP facility 

accidents on residential property values 

(Guignet et al. 2023a, b).5 The analysis 

found that accidents with only onsite 

impacts reduced nearby property values 

between zero and two percent. 

However, accidents with impacts that 

occurred offsite, including fatalities, 

hospitalizations, people in need of 

medical treatment, evacuations, 

sheltering in place events, and/or 

property and environmental damage, 

reduced home values by two to three 

percent. The lower values persisted for 

about 10 to 12 years on average. The 

paper estimates an average loss of 

$5,350 per home in 2021-year values. 

Aggregating across the communities 

near the 661 facilities that experienced 

an offsite impact accident in their data, 

they calculate a total $39.5 billion loss. 

These studies strongly suggest that 

preventing or mitigating an accident at 

a chemical facility may prevent or 

mitigate lost productivity at RMP 

facilities and property value losses in 

nearby neighborhoods. 

Further, in enacting section 112(r), 

Congress was focused on catastrophic 

accidents such as the 1984 Union 

Carbide industrial disaster in Bhopal, 

India,6 which are extremely rare, but 

very high consequence events. While 

large chemical facility accidents that 

have occurred in the U.S. and Europe 

have not approached this level of 

damage, it is possible that could 

happen. For example, one of the most 

consequential chemical accidents in the 

U.S.7 was the 1989 explosion at the 

Phillips facility in Pasadena, TX, that 

killed 23 workers ($239 million in 2022 

dollars), injured at least 150 more ($7.5 

million), and caused $1.8 billion in 

property damage.8

The five-year baseline period accident 

costs included in EPA’s analysis is $540 

million per year. This cost was 

estimated using impacts from accidents 

during 2016 through 2020 (the last year 

with complete data) reported to the 

RMP plan reporting database by facility 

owners and operators. EPA used this 

dataset due to a lack of alternative data 

describing accident impacts more 

comprehensively. This estimate does 

not include a major catastrophe on the 

scale of Union Carbide-Bhopal, or even 

Phillips-Pasadena. If the final rule 

provisions were to prevent or 

substantially mitigate even one accident 

of this magnitude, the benefits 

generated, quantified and unquantified, 

will be dramatic. Further, some 


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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 17625 

9For example, the Philadelphia Energy Solutions 

Refining and Marketing LLC facility in 

Philadelphia, PA, had a fire and explosions in the 

PES Girard Point refinery HF alkylation unit on 

June 21, 2019, which resulted in the release of HF. 

This facility deregistered the affected process before 

the deadline for their subsequent RMP report. For 

a description of damages from this accident see 

section 3.2.1 of the RIA and the CSB Report, Fire 

and Explosions at Philadelphia Energy Solutions 

Refinery Hydrofluoric Acid Alkylation Unit, 

Factual Update, October 16, 2019, https://

www.phila.gov/media/20191204161826/US-CSBPES-Factual-Update.pdf. 

10For descriptions on why EPA was unable to 

monetize each of these impacts, see Regulatory 

Impact Analysis: Safer Communities by Chemical 

Accident Prevention: Final Rule. This document is 

available in the docket for this rulemaking (EPA– 

HQ–OLEM–2022–0174). Chapter 6, Section 6.2. 

11Regulatory Impact Analysis: Safer 

Communities by Chemical Accident Prevention: 

Final Rule. This document is available in the docket 

for this rulemaking (EPA–HQ–OLEM–2022–0174). 

accidents that occurred at RMP facilities 

during the five-year period were not 

reported to EPA because the facility 

either closed after the accident, 

decommissioned the process, or 

removed the regulated substance from 

the process involved in the accident 

before it was required to submit a report 

to the RMP Database.9 Additionally, the 

many baseline accident impacts that are 

not reflected in the $540 million 

baseline accident cost estimate because 

EPA was unable to monetize them,10 yet 

are expected to be avoided as a benefit 

of the final provisions, include 

responder costs, transaction costs, 

property value reductions, unmonetized 

costs of evacuations and sheltering-inplace, the costs of potential health 

effects from exposure to toxic 

chemicals, and productivity losses, 

among others. The $540 million 

estimate also does not reflect the full set 

of baseline inefficiencies that may be 

mitigated due to the improved 

information offered by several of the 

final provisions such as the community 

notification requirements and the backup power for monitors. As the range of 

monetized accident impacts suggests 

(from $100 to $700 million for 2016 to 

2020 11), the variation in monetized 

damages is substantial. Preventing a 

single high-cost accident annually 

would offset annual rule costs. 

When considering this final rule’s 

likely benefits of avoiding some portion 

of the monetized accident impacts, as 

well as the additional nonmonetized 

benefits, EPA believes the costs of the 

rule are reasonable in comparison to its 

expected benefits. When assessing the 

reasonableness of the benefits and 

burdens of various regulatory options, 

EPA places weight on both preventing 

more common accidental releases 

captured in the accident history portion 

of the RMP database while also placing 

weight on less quantifiable potential 

catastrophic events. The Agency’s 

judgment as to what regulations are 

‘‘reasonable’’ is informed by both 

quantifiable and unquantifiable burdens 

and benefits as discussed more fully in 

section III.C of this preamble. 

II. General Information 

A. Does this action apply to me? 

This rule applies to those facilities 

(referred to as ‘‘stationary sources’’ 

under the Clean Air Act, or CAA (42 

U.S.C. 7412(r))) that are subject to the 

chemical accident prevention 

requirements at 40 CFR part 68. This 

includes stationary sources holding 

more than a threshold quantity (TQ) of 

a regulated substance in a process. 

Nothing in this rule impacts the scope 

and applicability of the General Duty 

Clause (GDC) in CAA section 112(r)(1), 

42 U.S.C. 7412(r)(1). See 40 CFR 68.1. 

Table 1 provides industrial sectors and 

the associated North American Industry 

Classification System (NAICS) codes for 

entities potentially affected by this 

action. The Agency’s goal is to provide 

a guide on entities that might be affected 

by this action. However, this action may 

affect other entities not listed in this 

table. If you have questions about the 

applicability of this action to a 

particular entity, consult the person(s) 

listed in the FOR FURTHER INFORMATION

CONTACT section of this preamble. 

TABLE 1—ENTITIES POTENTIALLY AFFECTED BY THE FINAL RULE

Sector NAICS codes Number of 

facilities Chemical uses 

Administration of environmental quality programs 

(i.e., governments, government-owned water).

92, 2213 (governmentowned).1,449 Use chlorine and other chemicals for water treatment. 

Agricultural chemical distributors/wholesalers ....... 11, 424 (except 4246, 

4247).

3,315 Store ammonia for sale; some in NAICS 111 and 

115 use ammonia as a refrigerant. 

Chemical manufacturing ........................................ 325 .................................. 1,502 Manufacture, process, store. 

Chemical wholesalers ............................................ 4246 ................................ 317 Store for sale. 

Food and beverage manufacturing ........................ 311, 312 .......................... 1,571 Use (mostly ammonia) as a refrigerant. 

Oil and gas extraction ............................................ 211 .................................. 719 Intermediate processing (mostly regulated flammable substances and flammable mixtures). 

Other ...................................................................... 21 (except 211), 23, 44, 

45, 48, 491, 54, 55, 56, 

61, 62, 71, 72, 81, 99.

246 Use chemicals for wastewater treatment, refrigeration, store chemicals for sale. 

Other manufacturing .............................................. 313, 314, 315, 326, 327, 

33.

375 Use various chemicals in manufacturing process, 

waste treatment. 

Other wholesale ..................................................... 421, 422, 423 ................. 39 Use (mostly ammonia) as a refrigerant. 

Paper manufacturing .............................................. 321, 322 .......................... 55 Use various chemicals in pulp and paper manufacturing. 

Petroleum and coal products manufacturing ......... 324 .................................. 156 Manufacture, process, store (mostly regulated 

flammable substances and flammable mixtures). 

Petroleum wholesalers ........................................... 4247 ................................ 367 Store for sale (mostly regulated flammable substances and flammable mixtures). 

Utilities/water/wastewater ....................................... 221 (non-governmentowned water).519 Use chlorine (mostly for water treatment) and 

other chemicals. 

Warehousing and storage ...................................... 493 .................................. 1,110 Use (mostly ammonia) as a refrigerant. 

Total ................................................................ ......................................... 11,740 


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17626 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

12Regulatory Impact Analysis: Safer 

Communities by Chemical Accident Prevention: 

Final Rule. This document is available in the docket 

for this rulemaking (EPA–HQ–OLEM–2022–0174). 

B. What action is the Agency taking? 

EPA is amending its RMP regulations 

as a result of Agency review. The 

revisions include several changes and 

amplifications to the accident 

prevention program requirements, 

enhancements to the emergency 

preparedness requirements, 

improvements to the public availability 

of chemical hazard information, and 

several other changes to certain 

regulatory definitions or points of 

clarification. Because major and other 

serious and concerning RMP accidents 

continue to occur, EPA believes that this 

final rule will help further protect 

human health and the environment 

from chemical hazards through 

advancement of process safety based on 

lessons learned. These amendments 

seek to improve chemical process safety; 

assist in planning, preparedness, and 

response to RMP-reportable accidents; 

and improve public awareness of 

chemical hazards at regulated sources. 

C. What is the Agency’s authority for 

taking this action? 

The statutory authority for this action 

is provided by section 112(r) of the CAA 

as amended (42 U.S.C. 7412(r)). Each 

modification of the RMP rule that EPA 

finalizes in this document is based on 

EPA’s rulemaking authority under CAA 

section 112(r)(7) (42 U.S.C. 7412(r)(7)). 

When promulgating rules under CAA 

section 112(r)(7)(A) and (B), EPA must 

follow the procedures for rulemaking set 

out in CAA section 307(d) (see CAA 

sections 112(r)(7)(E) and 307(d)(1)(C)). 

Among other things, CAA section 307(d) 

sets out requirements for the content of 

proposed and final rules, the docket for 

each rulemaking, opportunities for oral 

testimony on proposed rulemakings, the 

length of time for comments, and 

judicial review. 

D. What are the incremental costs and 

benefits of this action? 

1. Summary of Estimated Costs 

Table 2 presents a summary of the 

annualized final rule costs estimated in 

the Regulatory Impact Analysis (RIA).12

In total, EPA estimates annualized costs 

of $256.9 million at a 3% discount rate 

and $296.9 million at a 7% discount 

rate. 

TABLE 2—SUMMARY OF ESTIMATED ANNUALIZED COSTS [MILLIONS, 2022 DOLLARS] OVER A 10-YEAR PERIOD

Cost elements Total 

undiscounted 

Total 

discounted 

(3%) 

Total 

discounted 

(7%) 

Annualized 

(3%) 

Annualized 

(7%) 

Third-party Audits ................................................................. $75.2 $64.2 $52.8 $7.5 $7.5 

Root Cause Analysis ........................................................... 7.3 6.2 5.1 0.7 0.7 

Safer Technology and Alternatives Analysis (STAA): 

Initial Evaluation ............................................................ 176.4 158.2 138.3 18.5 19.7 

Practicability Study ....................................................... 256.9 230.2 201.0 27.0 28.6 

Implementation ............................................................. 1,700.4 1,438.9 1,172.6 168.7 204.9 

Backup Power for Perimeter Monitors ................................. 3.3 2.8 2.3 0.3 0.3 

Employee Participation Plan ................................................ 114.7 97.9 80.6 11.5 11.5 

RMP Justifications: 

No Backup Power ......................................................... .2 0.1 0.1 ** 0.0 ** 0.0 

Natural Hazards ............................................................ .4 0.4 0.3 ** 0.0 ** 0.0 

Facility Siting ................................................................. .4 0.4 0.3 ** 0.0 ** 0.0 

RAGAGEP .................................................................... .3 0.2 0.2 ** 0.0 ** 0.0 

Community Notification System ........................................... 39.7 33.9 27.9 4.0 4.0 

Information Availability ......................................................... 127.6 108.8 89.6 12.8 12.8 

Rule Familiarization ............................................................. 50.9 49.5 47.6 5.8 6.8 

Total Cost * ................................................................... 2,554.0 2,191.7 1,818.9 256.9 296.9 

* Totals may not sum due to rounding. 

** Costs are zero due to rounding, Unrounded costs are $42,307 for Natural Hazards and Facility Siting, $27,582 for RAGAGEP, and $15,798 

for No Backup Power. 

The largest annualized cost of the 

final rule is the STAA implementation 

cost ($168.7 million at a 3% discount 

rate and $204.9 million at a 7% 

discount rate), followed by 

practicability study ($27.0 million at a 

3% discount rate and $28.6 million at 

a 7% discount rate), STAA initial 

evaluation ($18.5 million at a 3% 

discount rate and $19.7 million at a 7% 

discount rate), information availability 

($12.8 million at both 3% and 7% 

discount rates), employee participation 

plans ($11.5 million at both 3% and 7% 

discount rates), third-party audits ($7.5 

million at both 3% and 7% discount 

rates), rule familiarization ($5.8 million 

at a 3% discount rate and $6.8 million 

at a 7% discount rate), and community 

notification systems ($4.0 million at 

both 3% and 7% discount rates). The 

remaining provisions impose 

annualized costs under $1 million, 

including root cause analysis ($0.7 

million at both 3% and 7% discount 

rates), emergency backup power for 

perimeter monitors ($0.3 million at both 

3% and 7% discount rates), and RMP 

justifications for natural hazards, facility 

siting, RAGAGEP, and no backup 

power, that each have annualized costs 

below $0.1 million (at both 3% and 7% 

discount rates). 

The Agency has determined that 

among the 2,636 potentially regulated 

private sector small entities impacted by 

this rule, 2,393, or 90.8 percent, may 

experience an impact of less than 1 

percent of revenue with an average 

small entity cost of $72,525; 167, or 6.3 

percent, may experience an impact of 

between 1 and 3 percent of revenues 

with an average small entity cost of 

$629,271; and 75, or 2.8 percent, may 

experience an impact of greater than 3 

percent with an average small entity 

cost of $1,083,823. Among the 630 small 

government entities potentially affected, 

none would incur costs of less than 

$2,000; 365, or 58 percent, would incur 

costs ranging from $2,000 to $3,000; 

248, or 39 percent, would incur costs 

ranging from $3,000 to $10,000; and 17, 

or 3 percent, would incur costs greater 


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13The Regulatory Flexibility Act defines small 

governments as governments of cities, counties, 

towns, townships, villages, school districts, or 

special districts, with a population of less than 

50,000. Most governmental RMP facilities are water 

and wastewater treatment systems and listed a city 

or county as the owner entity. 

14EPA used the August 1, 2021, version of the 

RMP database to complete its analysis because 

under 40 CFR 68.195(a), facilities are required to 

report RMP accidents and specific associated 

information within six months to the RMP database. 

Therefore, the RMP database as of August 1, 2021, 

is expected to include RMP accidents and their 

specific associated information as of December 31, 

2020. However, because accident data are reported 

to the RMP database by facility owners and 

operators, EPA acknowledges the likelihood of latereported accidents affecting these last few years of 

data because some facilities may have not reported 

their RMP accidents as they are required to do. See 

sections 3.2 and 3.3 of the RIA for more on this and 

other limitations on the number and costs of 

baseline accidents. 

15Further discussed in detail in Chapter 6 of the 

RIA. 

16For a description of damages from this case see 

section 3.2.1 of the RIA and the CSB Report, Fire 

and Explosions at Philadelphia Energy Solutions 

Refinery Hydrofluoric Acid Alkylation Unit, 

Factual Update, October 16, 2019, https://

www.phila.gov/media/20191204161826/US-CSBPES-Factual-Update.pdf. 

than $10,000. EPA estimated that for the 

rule to have a larger than 1 percent 

impact on the government entity with 

the largest cost impact, it would need to 

have revenue of less than $120 per 

resident. For the rule to have a larger 

than 1 percent impact on the smallest 

government entity identified in the data, 

it would need to have revenue of less 

than $650 per resident.13

2. Baseline Damages 

Accidents and chemical releases from 

RMP facilities occur every year. They 

cause fires and explosions, damage to 

property, acute and chronic exposures 

of workers and nearby residents to 

hazardous materials, and serious 

injuries and fatalities. EPA is able to 

present data on the total damages that 

currently occur at RMP facilities each 

year. In this final rule, EPA presents the 

data based on a 5-year baseline period 

(2016–2020), summarizes RMP accident 

impacts and, when possible, monetizes 

them. Due to a lack of alternative data 

describing RMP accident impacts more 

comprehensively, EPA chose this fiveyear dataset to reflect the most recent 

trends regarding RMP accidents.14 It is 

important to note, however, that many 

accident costs are not required to be 

reported under the RMP accident 

reporting provisions (40 CFR 68.42(b)) 

and thus are not reflected in the data. 

These include responder costs, 

transaction costs, property value 

reductions, unmonetized costs of 

evacuations and sheltering-in-place, the 

costs of potential health effects, and 

productivity losses, among others.15 In 

addition, some accidents that occurred 

at RMP facilities during the five-year 

period were not reported to EPA 

because the facility either closed after 

the accident, decommissioned the 

process, or removed the regulated 

substance from the process involved in 

the accident before it was required to 

submit a report to the RMP Database. 

For example, the Philadelphia Energy 

Solutions (PES) Refining and Marketing 

LLC facility in Philadelphia, PA, had a 

fire and explosions in the PES Girard 

Point refinery hydrofluoric acid (HF) 

alkylation unit on June 21, 2019, which 

resulted in the release of HF.16 This 

facility deregistered the affected process 

before the deadline for their subsequent 

RMP report. Due to the omission of such 

accidents and the omission of the cost 

categories listed in the beginning of this 

paragraph, the monetized costs of RMP 

accidents to society underestimate the 

number and magnitude of RMP 

chemical accidents. Nonetheless, EPA 

expects that some portion of future 

damages will be prevented through 

implementation of the final rule. Table 

3 presents a summary of the quantified 

damages identified in the analysis. 

TABLE 3—SUMMARY OF QUANTIFIED DAMAGES

[Millions, 2022 dollars] 

Unit 

value 

5-Year 

total 

Average/ 

year 

Average/ 

accident 

On site 

Fatalities ........................................................................................................... $10.4 $187.9 $37.57 $0.38 

Injuries ............................................................................................................. 0.05 28.75 5.75 0.06 

Property Damage ............................................................................................. ........................ 2,273 454.58 4.66 

Onsite Total .............................................................................................. ........................ 2,489.49 497.90 5.10 

Off site 

Fatalities ........................................................................................................... 10.4 0.00 0.00 0.00 

Hospitalizations ................................................................................................ 0.045 1.40 0.28 0.003 

Medical Treatment ........................................................................................... 0.001 0.13 0.03 0.0003 

Evacuations * ................................................................................................... 0.00 18.99 3.80 0.039 

Sheltering in Place * ......................................................................................... 0.00 12.58 2.52 0.026 

Property Damage ............................................................................................. ........................ 178.55 35.71 0.37 

Offsite Total .............................................................................................. ........................ 211.66 42.33 0.43 

Total ................................................................................................... ........................ 2,701.14 540.23 5.54 

* The unit value is $293 for evacuations and $147 for sheltering in place, so when expressed in rounded millions the value represented in the 

table is zero. 

In total, EPA estimated monetized 

damages from RMP facility accidents of 

$540.23 million per year, which are 

divided into onsite and offsite categories 

where possible. EPA estimated total, 

average annual onsite damages from 

chemical releases at RMP facilities of 

$497.90 million. The largest monetized 

category was onsite property damage, 

valued at $454.58 million. The next 

largest impacts were onsite fatalities 

($37.57 million) and injuries ($5.75 

million). 

EPA estimated total, average annual 

offsite damages of $42.33 million. 

Property damage again was the highest 

value category, estimated at 


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17628 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

17There are accidents at 97 facilities that were not 

matched in the small entity analysis, so it is not 

possible to determine if they are owned by small 

or large entities with the data EPA has. 18Marsh JLT Specialty, ‘‘100 Largest Losses in the 

Hydrocarbon Industry,’’ 27th Edition, March 2022. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

from 1974 to 2021 in current and 2021 dollars and 

in a few cases, business loss costs. 19Marsh JLT Specialty, ‘‘100 Largest Losses 

1974–2015: Large property damage losses in the 

hydrocarbon industry,’’ 24th Edition, March 2016. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

and in a few cases, business loss costs. 

20 Guignet, Dennis, Robin R. Jenkins, Christoph 

Nolte, and James Belke. 2023a. The External Costs 

of Industrial Chemical Accidents: A Nationwide 

Property Value Study. Journal of Housing 

Economics. 62 (2023) 101954. 

21As compared to consequences resulting from 

RMP accidents 2004–2020 listed in Appendix A of 

the Technical Background Document for Notice of 

Proposed Rulemaking: Risk Management Programs 

Under the Clean Air Act, section 112(r)(7); Safer 

Communities by Chemical Accident Prevention 

(April 19, 2022). 

22EPA estimated monetized damages from RMP 

facility accidents of $540.23 million per year. 

23Marsh JLT Specialty, ‘‘100 Largest Losses in the 

Hydrocarbon Industry,’’ 27th Edition, March 2022. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

from 1974 to 2021 in current and 2021 dollars and 

in a few cases, business loss costs. 

24For the discussion of how final rule provisions 

are intended to lower the likelihood of future 

accidents of the same or similar type, see section 

6.1.1 of the RIA. 

approximately $35.71 million. In 

decreasing order, the next largest 

average annual offsite impact was from 

evacuations ($3.80 million), then 

sheltering in place ($2.52 million), 

hospitalizations ($0.28 million), and 

medical treatment ($0.03 million). 

Regarding small entities, there were 

86 accidents at facilities owned by small 

entities in the 2016–2020 period, or 

about 18 percent of all accidents.17

These accidents cost $141.14 million in 

total over the 5-years, with an average 

cost of $28.23 million per year, and 

average per accident cost of $0.29 

million. These accidents costs represent 

about 5% of the costs of all accidents. 

EPA also evaluated the range of 

significant baseline damages in Table 3 

that could not be quantified. These 

damages include major catastrophic 

releases, potential health risks from 

toxic chemical exposure, lost 

productivity at affected facilities, 

emergency response costs, transaction 

costs from potential subsequent legal 

battles, property value losses in nearby 

neighborhoods, environmental damage, 

unquantified costs of evacuation and 

sheltering-in-place events, and others. 

They have not been quantified because 

there is either limited or no information 

in the RMP data. However, in some 

cases, these damages could be even 

more detrimental to the facility and 

community than those damages that can 

be quantified. For example, regarding 

lost productivity, costs are highly 

variable based on the type of release, the 

extent of the damage, the location of the 

facility, and product being produced. 

Yet, Marsh Specialty, a risk 

management and energy consultancy, 

has collected data on 10,000 accidents 

in the petrochemical sector over 40 

years and published 27 editions of its 

‘‘100 Largest Losses’’ reports.18 The data 

suggest that lost productivity may range 

from zero to four to five is typically two 

to three times the cost of property 

damage.19 Another example of 

unquantified impacts can be examined 

with property value impacts. A recent 

hedonic property value analysis has 

examined the impact of RMP facility 

accidents on residential property values 

(Guignet et al. 2023a, b).20 The analysis 

found that accidents with only onsite 

impacts reduced nearby property values 

between zero and two percent. 

However, accidents with impacts that 

occurred offsite, including fatalities, 

hospitalizations, people in need of 

medical treatment, evacuations, 

sheltering in place events, and/or 

property and environmental damage, 

reduced home values by two to three 

percent. The lower values persisted for 

about 10 to 12 years on average. The 

paper estimates an average loss of 

$5,350 per home in 2021-year values. 

Aggregating across the communities 

near the 661 facilities that experienced 

an offsite impact accident in their data, 

they calculate a total $39.5 billion loss. 

Further, the five-year baseline period 

included in this analysis ($540 million 

per year) does not include a major 

catastrophe. In enacting section 112(r), 

Congress was focused on catastrophic 

accidents such as Union CarbideBhopal, which are extremely rare, but 

very high consequence events. The large 

chemical facility accidents that have 

occurred in the U.S. and Europe have 

not approached this level of damage, 

although it is possible that could 

happen. As mentioned previously, one 

of the most consequential accidents in 

the U.S.,21 the explosion at the Phillips 

facility in Pasadena, TX, in 1989, killed 

23 workers ($239 million in 2022 

dollars), injured at least 150 more ($7.5 

million), and caused $1.8 billion in 

property damage. These baseline 

damages are discussed in greater detail 

in Chapter 6 of the RIA. 

3. Summary of Estimated Benefits 

RMP accident data show past 

accidents have generated highly variable 

impacts, so the impacts of future 

accidents are difficult to predict. 

Nevertheless, it is clear from RMP 

accident data 22 and other relevant data 

from RMP regulated industry sectors,23

that chemical accidents can impose 

substantial costs on firms, employees, 

emergency responders, the community, 

and the broader economy. 

Notwithstanding EPA’s current rules, 

RMP accidents have continued to occur. 

EPA anticipates that promulgation and 

implementation of this final rule will 

improve the health and safety protection 

provided by the RMP rule and result in 

a reduced frequency and magnitude of 

damages from releases, including 

damages that are quantified in Table 3 

such as fatalities, injuries, property 

damage, hospitalizations, medical 

treatment, sheltering in place, and so 

on. EPA also expects that the final rule 

provisions will reduce baseline damages 

that are not quantified in Table 3 such 

as lost productivity, responder costs, 

property value reductions, damages 

from catastrophes, transaction costs, 

environmental impacts, and so on. 

Although EPA was unable to quantify 

the reductions in damages that may 

occur as a result of the final rule 

provisions, EPA expects that a portion 

of future damages will be prevented by 

the final rule.24 Table 4 summarizes five 

broad social benefit categories related to 

accident prevention and mitigation, 

including prevention of RMP accidents, 

mitigation of RMP accidents, prevention 

and mitigation of non-RMP accidents at 

RMP facilities, and prevention of major 

catastrophes. The table explains each 

and identifies thirteen associated 

specific benefit categories, ranging from 

avoided fatalities to avoided emergency 

response costs. 


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25 Documents and information related to 

development of the list rule can be found in the 

EPA docket for the rulemaking, docket number A– 

91–74. 

26 Documents and information related to 

development of the 1996 RMP rule can be found in 

EPA docket number A–91–73. 27The regulation at 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. 

TABLE 4—SUMMARY OF SOCIAL BENEFITS OF FINAL RULE PROVISIONS

Broad benefit category Explanation Specific benefit categories 

Accident Prevention ........................................... Prevention of future RMP facility accidents ..... • Reduced Fatalities. 

• Reduced Injuries. 

• Reduced Property Damage. 

• Fewer People Sheltered-in-Place. 

Accident Mitigation ............................................. Mitigation of future RMP facility accidents. • Fewer Evacuations. 

• Avoided Health Risks from Exposure to 

Toxics. 

Non-RMP Accident Prevention and Mitigation .. Prevention and mitigation of future non-RMP 

accidents at RMP facilities. 

• Avoided Lost Productivity. 

• Avoided Emergency Response Costs. 

• Avoided Transaction Costs. 

• Avoided Property Value Impacts.* 

Avoided Catastrophes ........................................ Prevention of rare but extremely high consequence events. • Avoided Environmental Impacts. 

Information Availability ....................................... Provision of information to the public and 

emergency responders.

• Improved Efficiency of Property Markets. 

• Improved Resource Allocation. 

* These impacts partially overlap with several other categories. 

For details on how quantified benefits 

were estimated or discussion on 

unquantified benefits, including the 

difficulty in their quantification see 

Chapter 6 of the RIA. 

When considering this final rule’s 

likely benefits of this of avoiding some 

portion of the monetized accident 

impacts, as well as the additional 

nonmonetized benefits, EPA believes 

the costs of the rule are reasonable in 

comparison to its expected benefits. 

When assessing the reasonableness of 

the benefits and burdens of various 

regulatory options, EPA places weight 

on both preventing more common 

accidental releases captured in the 

accident history portion of the RMP 

database while also placing weight on 

less quantifiable potential catastrophic 

events. The Agency’s judgment as to 

what regulations are ‘‘reasonable’’ is 

informed by both quantifiable and 

unquantifiable burdens and benefits. 

III. Background 

A. Overview of EPA’s Risk Management 

Program 

EPA originally issued the RMP 

regulations in two stages. First, the 

Agency published the list of regulated 

substances and TQs in 1994: ‘‘List of 

Regulated Substances and Thresholds 

for Accidental Release Prevention; 

Requirements for Petitions Under 

Section 112(r) of the Clean Air Act as 

Amended’’ (59 FR 4478, January 31, 

1994), hereinafter referred to as the ‘‘list 

rule.’’ 25 The Agency then published the 

RMP regulations, containing risk 

management requirements for covered 

sources, in 1996: ‘‘Accidental Release 

Prevention Requirements: Risk 

Management Programs Under Clean Air 

Act Section 112(r)(7)’’ (61 FR 31668, 

June 20, 1996), hereinafter referred to as 

the ‘‘1996 RMP rule.’’ 26 27 Subsequent 

modifications to the list rule and the 

1996 RMP rule were made as discussed 

in the 2017 amendments rule 

(‘‘Accidental Release Prevention 

Requirements: Risk Management 

Programs Under the Clean Air Act’’; 82 

FR 4594 at 4600, January 13, 2017, 

hereinafter referred to as the ‘‘2017 

amendments rule’’). In addition to 

requiring implementation of 

management program elements, the 

RMP rule requires any covered source to 

submit (to EPA) a document 

summarizing the source’s risk 

management program—called a risk 

management plan (or RMP). 

Prior to development of EPA’s 1996 

RMP rule, the Occupational Safety and 

Health Administration (OSHA) 

published its Process Safety 

Management (PSM) standard in 1992 

(57 FR 6356, February 24, 1992), as 

required by section 304 of the 1990 

Clean Air Act Amendments (CAAA), 

using its authority under 29 U.S.C. 653. 

The OSHA PSM standard can be found 

in 29 CFR 1910.119. Both the OSHA 

PSM standard and EPA’s RMP rule aim 

to prevent or minimize the 

consequences of accidental chemical 

releases through implementation of 

management program elements that 

integrate technologies, procedures, and 

management practices. 

EPA’s RMP requirements include 

conducting a worst-case scenario 

analysis and a review of accident 

history, coordinating emergency 

response procedures with local response 

organizations, conducting a hazard 

assessment, documenting a management 

system, implementing a prevention 

program and an emergency response 

program, and submitting a risk 

management plan that addresses all 

aspects of the RMP for all covered 

processes and chemicals. A process at a 

source is covered under one of three 

different prevention programs (Program 

1, Program 2, or Program 3) based 

directly or indirectly on the threat posed 

to the community and the environment. 

Program 1 has minimal requirements 

and is for processes that have not had 

an accidental release with offsite 

consequences in the last 5 years before 

submission of the source’s risk 

management plan, and that have no 

public receptors within the worst-case 

release scenario vulnerable zone for the 

process. Program 3 applies to processes 

not eligible for Program 1, has the most 

requirements, and applies to processes 

covered by the OSHA PSM standard or 

classified in specified industrial sectors. 

Program 2 has fewer requirements than 

Program 3 and applies to any process 

not covered under Programs 1 or 3. 

Programs 2 and 3 both require a hazard 

assessment, a prevention program, and 

an emergency response program, 

although Program 2 requirements are 

less extensive and more streamlined. 

For example, the Program 2 prevention 

program was intended to cover, in many 

cases, simpler processes at smaller 

businesses and does not require the 

following process safety elements: 

management of change, pre-startup 

review, contractors, employee 

participation, and hot work permits. 

The Program 3 prevention program is 

similar to the OSHA PSM standard and 

designed to cover those processes in the 


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28https://obamawhitehouse.archives.gov/thepress-office/2013/08/01/executive-order-improvingchemical-facility-safety-and-security. 29https://www.epa.gov/petitions/petitions-officeland-and-emergency-management. 

30https://www.whitehouse.gov/briefing-room/ 

presidential-actions/2021/01/20/executive-orderprotecting-public-health-and-environment-andrestoring-science-to-tackle-climate-crisis/. 31EPA–HQ–OLEM–2021–0312. 

32EPA–HQ–OLEM–2021–0312–0011. 

33EPA–HQ–OLEM–2021–0312–0020. 

34 2023. EPA Response to Comments on the 2022 

SCCAP Proposed Rule (August 31, 2022; 87 FR 

53556). This document is available in the docket for 

this rulemaking. 

chemical industry. EPA notes that 

nothing in this final rule changes the 

applicability determinations or 

designations of whether a process at a 

stationary source is covered under one 

of the three different prevention 

programs. 

B. Events Leading to This Action 

On January 13, 2017, EPA published 

amendments to the RMP rule (82 FR 

4594). The 2017 amendments rule was 

prompted by E.O. 13650, ‘‘Improving 

Chemical Facility Safety and 

Security,’’ 28 which directed EPA (and 

several other Federal agencies) to, 

among other things, modernize policies, 

regulations, and standards to enhance 

safety and security in chemical 

facilities. The 2017 amendments rule 

contained various new provisions 

applicable to RMP-regulated facilities 

addressing prevention program 

elements (STAA, incident investigation 

root cause analysis, and third-party 

compliance audits); emergency response 

coordination with local responders 

(including emergency response 

exercises); and availability of 

information to the public. EPA received 

three petitions for reconsideration of the 

2017 amendments rule under CAA 

section 307(d)(7)(B).29 In December 

2019, EPA finalized revisions to the 

RMP regulations to reconsider the rule 

changes made in January 2017 

(‘‘Accidental Release Prevention 

Requirements: Risk Management 

Programs Under the Clean Air Act,’’ 84 

FR 69834, December 19, 2019, 

hereinafter referred to as the ‘‘2019 

reconsideration rule’’). The 2019 

reconsideration rule rescinded certain 

information disclosure provisions of the 

2017 amendments rule, removed most 

new accident prevention requirements 

added by the 2017 amendments rule, 

and modified some other provisions of 

the 2017 amendments rule. The rule 

changes made by the 2019 

reconsideration rule reflect the current 

RMP regulations to date. There are 

petitions for judicial review of both the 

2017 amendments and the 2019 

reconsideration rules. The 2019 

reconsideration rule challenges are 

being held in abeyance until March 1, 

2024, by which time the parties must 

submit motions to govern. The case 

against the 2017 amendments rule is in 

abeyance pending resolution of the 2019 

reconsideration rule case. 

On January 20, 2021, President Biden 

issued E.O. 13990, ‘‘Protecting Public 

Health and the Environment and 

Restoring Science to Tackle the 

ClimateCrisis.’’ 30 E.O. 13990 directed 

Federal agencies to review existing 

regulations and take action to address 

priorities established by the Biden 

Administration, which include 

bolstering resilience to the impacts of 

climate change and prioritizing EJ. As a 

result, EPA was tasked to review the 

current RMP regulations. 

While the Agency reviewed the RMP 

rule under E.O. 13990, the E.O. did not 

specifically direct EPA to publish a 

solicitation for comment or information 

from the public. Nevertheless, EPA held 

virtual public listening sessions on June 

16 and July 8, 2021, and had an open 

docket for public comment (86 FR 

28828, May 28, 2021). In the request for 

public comment, the Agency asked for 

information on the adequacy of 

revisions to the RMP regulations 

completed since 2017, incorporating 

consideration of climate change risks 

and impacts into the regulations and 

expanding the application of EJ. EPA 

received a total of 27,828 public 

comments in response to the request for 

comments. This included 27,720 

received at regulations.gov,31 35 

provided during the listening session on 

June 16, 2021,32 and 73 provided during 

the listening session on July 8, 2021.33

Most of the comments received in the 

docket were copies of form letters 

related to four different form letter 

campaigns. The remaining comments 

included 302 submissions containing 

unique content. Of the 302 unique 

submissions, a total of 163 were deemed 

to be substantive (i.e., the commenters 

presented both a position and a 

reasoned argument in support of the 

position). Information collected through 

these comments informed the proposal. 

EPA published the ‘‘RMP Safer 

Communities by Chemical Accident 

Prevention,’’ (SCCAP) proposed 

rulemaking on August 31, 2022 (87 FR 

53556), hereinafter referred to as the 

‘‘2022 SCCAP proposed rule.’’ The 2022 

SCCAP proposed rule included several 

changes and amplifications to the 

accident prevention program 

requirements, enhancements to the 

emergency preparedness requirements, 

improvements to the public availability 

of chemical hazard information, and 

several other changes to certain 

regulatory definitions or points of 

clarification. EPA hosted virtual public 

hearings on September 26, 27, and 28, 

2022 to provide interested parties the 

opportunity to present data, views or 

arguments concerning the proposed 

action. 

EPA received a total of 494 discrete 

public comments deemed as substantive 

(i.e., the commenters presented both a 

position and a reasoned argument in 

support of the position) on the proposed 

rulemaking. Of the 494 comments, 370 

were written submitted comments and 

124 were from members of the public 

that provided verbal comments at the 

public hearings on September 26, 27, 

and 28, 2022. Of the 370, 142 were from 

101 unique organizations, 6 were the 

result of various mass mail campaigns 

and contained numerous copies of 

letters or petition signatures 

(approximately 57,505 letters and 

signatures were contained in these 

several comments), and 31 were from 

individual citizens. Discussion of public 

comments can be found in topics 

included in this final rule and in the 

Response to Comments document,34

available in the docket for this 

rulemaking. 

The notice of proposed rulemaking 

(NPRM) discussed how the various 

proposed provisions amendments to the 

RMP rule were not only integrated, 

reinforcing, and complementary but also 

how each was merited on its own and 

severable. 87 FR 53566 (August 31, 

2022). For example, EPA noted that new 

substantive prevention requirements 

like STAA and third-party audits 

triggered by NAICS, location, and 

accident history were reinforced by 

provisions like local information access 

and enhanced employee participation. 

Nevertheless, in the body of the 

preamble for the 2022 SCCAP proposed 

rule, the Agency explained how each of 

these provisions would help prevent 

accidents and improve release 

mitigation and emergency response on 

its own merits. 

C. EPA’s Authority To Revise the RMP 

Rule 

The statutory authority for this action 

is provided by CAA section 112(r) (42 

U.S.C. 7412(r)). Each of the portions of 

the RMP regulations we are amending in 

this action are based on EPA’s 

rulemaking authority under CAA 

section 112(r)(7). Under CAA section 

112(r)(7)(A), EPA may set rules 

addressing the prevention, detection, 

and correction of accidental releases of 

substances listed by EPA (‘‘regulated 


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35See Motor Vehicle Manufacturers. Association 

of the United States, Inc. v. State Farm Mutual 

Automobile Ins. Co., 463 U.S. 29 (1983). In 

addressing the standard of review to reconsider a 

regulation, the Supreme Court stated that the 

rescission or modification of safety standards ‘‘is 

subject to the same test’’ as the ‘‘agency’s action in 

promulgating such standards [and] may be set aside 

if found to be ‘arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with 

law’ ’’ (463 U.S. at 41, quoting 5 U.S.C. 706). The 

same standard that applies to the promulgation of 

a rule applies to the modification or rescission of 

that rule. 

36The full quote from Fox states: ‘‘But [the 

Agency] need not demonstrate to a court’s 

satisfaction that the reasons for the new policy are 

better than the reasons for the old one; it suffices 

that the new policy is permissible under the statute, 

that there are good reasons for it, and that the 

agency believes it to be better, which the conscious 

change of course adequately indicates’’ (Federal 

Communications Commission v. Fox Television 

Stations, Inc., 556 U.S. at 515; emphasis original). 

37A full description of costs and benefits for this 

final rule can be found in the Regulatory Impact 

Analysis: Safer Communities by Chemical Accident 

Prevention: Final Rule. This document is available 

in the docket for this rulemaking (EPA–HQ–OLEM– 

2022–0174). 

38 Due to a lack of alternative data describing 

RMP accident impacts more comprehensively, EPA 

chose this five-year dataset to reflect the most 

recent trends regarding RMP accidents. EPA used 

the August 1, 2021, version of the RMP database to 

complete its analysis because under 40 CFR 

68.195(a), facilities are required to report RMP 

accidents and specific associated information 

within six months to the RMP database. Therefore, 

the RMP database as of August 1, 2021, is expected 

to include RMP accidents and their specific 

associated information as of December 31, 2020. 

However, because accident data are reported to the 

RMP database by facility owners and operators, 

EPA acknowledges the likelihood of late-reported 

accidents affecting these last few years of data 

because some facilities may have not reported their 

RMP accidents as they are required to do. See 

sections 3.2 and 3.3 of the RIA for more on this and 

other limitations on the number and costs of 

baseline accidents. 

39Further discussed in detail in Chapter 6 of the 

RIA. 

substances’’ listed in the tables 1 

through 4 to 40 CFR 68.130). Such rules 

may include requirements related to 

monitoring, data collection, training, 

design, equipment, work practice, and 

operations. In promulgating its 

regulations, EPA may draw distinctions 

between types, classes, and kinds of 

facilities by taking into consideration 

various factors including size and 

location. A more detailed discussion of 

the underlying statutory authority for 

the current RMP regulations appears in 

the initial 1993 action that proposed the 

RMP regulations (58 FR 54190–3, 

October 20, 1993). 

Under CAA 112(r)(7)(B)(i), Congress 

authorized EPA to develop ‘‘reasonable 

regulations and appropriate guidance’’ 

that provide for the prevention and 

detection of accidental releases and the 

response to such releases, ‘‘to the 

greatest extent practicable.’’ Congress 

required an initial rulemaking under 

this paragraph by November 15, 1993. 

Section 112(r)(7)(B) sets out a series of 

mandatory subjects to address, 

interagency consultation requirements, 

and discretionary provisions that 

allowed EPA to tailor requirements to 

make them reasonable and practicable. 

The prevention program provisions 

discussed in this action (hazard 

evaluations of natural hazards, power 

loss and stationary source siting, safer 

technologies and alternatives analysis, 

root cause analysis incident 

investigation, third party compliance 

auditing, and employee participation) 

derive from EPA’s authority to 

promulgate reasonable regulations for 

the ‘‘prevention and detection of 

accidental releases’’ (CAA section 

112(r)(7)(B)(i)). Similarly, the emergency 

coordination and exercises provisions in 

this rule derive from EPA’s authority to 

promulgate reasonable regulations to 

address ‘‘response to such [accidental] 

releases by the owners or operators of 

the source of such releases’’ Id. Section 

112(r)(7)(B)(i) calls for EPA’s regulations 

to recognize differences in ‘‘size, 

operations, processes, class and 

categories of sources.’’ For that reason, 

this action maintains distinctions in 

prevention program levels and in 

response actions authorized by this 

provision. Finally, the information 

availability provisions discussed in this 

action generally assist in the 

development of ‘‘procedures and 

measures for emergency response after 

an accidental release of a regulated 

substance in order to protect human 

health and the environment.’’ Id. These 

information availability provisions 

include requirements to disclose 

information to the public within a 6- 

mile radius of sources, and are designed 

to ensure that emergency plans for 

impacts on the community are based on 

more relevant and accurate information 

than would otherwise be available and 

ensures that the public can become an 

informed participant in such emergency 

planning. Also, as noted in the 2022 

SCCAP proposed rule, requiring that 

information be made available to the 

public strengthens the prevention 

program by leveraging public oversight 

of facilities—especially prevention 

provisions that are triggered by sourcespecific accident history (87 FR 53566, 

August 31, 2022). 

This rulemaking action finalizes 

substantive amendments to 40 CFR part 

68 and is authorized by CAA sections 

112(r)(7)(A) and (B), as explained in 

more detail in the proposed action (87 

FR 53563–6), and as explained herein. 

In considering whether it is legally 

permissible for EPA to modify 

provisions of the RMP regulations while 

continuing to meet its obligations under 

CAA section 112(r), the Agency notes 

that it has made discretionary 

amendments to the 1996 RMP rule 

several times without dispute over its 

authority to issue discretionary 

amendments. (See 64 FR 640, January 6, 

1999; 64 FR 28696, May 26, 1999; 69 FR 

18819, April 9, 2004.) According to the 

decision in Air Alliance Houston v. 

EPA, 906 F.3d 1049 (D.C. Cir. 2018), 

‘‘EPA retains the authority under 

Section 7412(r)(7) [CAA section 

112(r)(7)] to substantively amend the 

programmatic requirements of the [2017 

RMP amendments] . . . subject to 

arbitrary and capricious review’’ (906 

F.3d at 1066). Therefore, EPA is 

authorized to modify the provisions of 

the current RMP regulations if it finds 

that it is reasonable to do so.35

The Supreme Court has also 

recognized that agencies have broad 

discretion to reconsider a regulation at 

any time so long as the changes in 

policy are ‘‘permissible under the 

statute, . . . there are good reasons for 

[them], and that the agency believes 

[them] to be better’’ than prior policies. 

(See Federal Communications 

Commission v. Fox Television Stations, 

Inc., 556 U.S. 502, 515 (2009); emphasis 

in quote original.36) As explained in 

detail above and throughout this notice, 

the policy changes finalized in this 

action are permissible under the statute. 

Additionally, there are good reasons 

for the policies adopted in this rule. 

Accidental releases remain a significant 

concern to communities and cost 

society more than $540 million yearly.37

EPA monetized both onsite and offsite 

damages from RMP facility accidents 

from 2016–2020,38 when possible, to 

determine this amount. It is important 

to note, however, that many accident 

costs are not required to be reported 

under the RMP accident reporting 

provisions (40 CFR 68.42(b)) and thus 

are not reflected in the data. These 

include responder costs, transaction 

costs, property value reductions, 

unmonetized costs of evacuations and 

sheltering-in-place, the costs of 

potential health risks from exposure to 

toxic chemicals, and productivity 

losses, among others.39 As mentioned 

previously, some accidents that 

occurred at RMP facilities during the 

five-year period were not reported to 

EPA because the facility either closed 

after the accident, decommissioned the 

process, or removed the regulated 

substance from the process involved in 

the accident before it was required to 

submit a report to the RMP Database. 

For example, the Philadelphia Energy 


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40For a description of damages from this case see 

section 3.2.1 of the RIA and the CSB Report, Fire 

and Explosions at Philadelphia Energy Solutions 

Refinery Hydrofluoric Acid Alkylation Unit, 

Factual Update, October 16, 2019, https://

www.phila.gov/media/20191204161826/US-CSBPES-Factual-Update.pdf. 

41Technical Background Document for Notice of 

Proposed Rulemaking: Risk Management Programs 

Under the Clean Air Act, section 112(r)(7); Safer 

Communities by Chemical Accident Prevention 

(April 19, 2022). 

42EPA notes that the two industrial sectors that 

are the focus of more requirements under the 

SCCAP rule, petroleum refineries (NAICS 324) and 

chemical manufacturers (NAICS 325) have been 

responsible for 42% of the accidental releases in the 

RMP database over the years 2016–2020. 

Approximately 83% of the costs of RMP accidental 

releases during 2016–2020 are attributed to these 

sectors. More details on the number and costs of 

baseline RMP accidents can be found in the 

Regulatory Impact Analysis: Safer Communities by 

Chemical Accident Prevention: Final Rule. This 

document is available in the docket for this 

rulemaking (EPA–HQ–OLEM–2022–0174). 

Solutions Refining and Marketing LLC 

facility in Philadelphia, PA, had a fire 

and explosions in the PES Girard Point 

refinery HF alkylation unit on June 21, 

2019, which resulted in the release of 

HF.40 This facility deregistered the 

affected process before the deadline for 

their subsequent RMP report. Due to the 

omission of such accidents and the 

omission of the cost categories listed in 

the beginning of this paragraph, the 

monetized costs of RMP accidents to 

society underestimate the number and 

magnitude of RMP chemical accidents. 

EPA estimated total average annual 

onsite damages of $497.9 million. The 

largest monetized, average annual, 

onsite damage category was property 

damage, which resulted in average 

annual damage of approximately 

$454.58 million. The next largest impact 

was onsite fatalities ($37.57 million) 

and injuries ($5.75 million). EPA 

estimated total average annual offsite 

damages of $42.33 million. The largest 

monetized, average annual, offsite 

damage category was property damage, 

which resulted in average annual 

damage of approximately $35.71 

million. The next largest impact was 

from evacuations ($3.80 million), 

sheltering in place ($2.52 million), 

hospitalizations ($0.28 million), and 

medical treatment ($0.03 million). 

The risk of being impacted by an 

accidental release is even more apparent 

in communities where multiple RMP 

facilities are in close proximity to 

residential areas.41 The 2022 SCCAP 

proposed rule not only discussed data 

demonstrating this elevated risk, but 

also noted that a higher frequency of 

accidental releases in such communities 

is consistent with the common-sense 

notion that, while accidental releases 

are low-probability, high consequence 

events, the more facilities near a 

community, the higher the likelihood 

that the community will be faced with 

such an event, or multiple events (all 

other factors being equal). Lowering the 

probability and magnitude of accidents 

by putting more of a focus on 

prevention reduces the risks posed by 

these RMP facilities,42 which is one of 

the objectives of the present RMP 

amendments. 

EPA received various comments 

indicating that EPA has appropriate 

authority to revise RMP regulations. For 

the reasons stated directly above and 

throughout the proposal where we 

outline EPA’s statutory authority under 

CAA section 112(r)(7), EPA agrees with 

these comments. Conversely, EPA also 

received comments that EPA is 

exceeding its statutory authority 

because it does not have jurisdiction 

over worker safety issues. EPA disagrees 

that it has exceeded its statutory 

authority in this way in this rulemaking. 

EPA acknowledges that both EPA and 

OSHA have separate mandates under 

the Occupational Safety and Health Act 

(29 U.S.C. 651), the CAA, and the 

requirements enacted in the CAAA. In 

the 1990s, both Agencies fulfilled their 

mandatory duties to promulgate and 

issue the rules required by CAA sections 

112(r)(3)–(5) and 112(r)(7)(B), as well as 

section 304 of the CAAA. The focus of 

OSHA’s regulations in the PSM 

standard is on workplace safety, while 

EPA’s focus in the RMP regulations has 

been primarily on minimizing the 

public impacts of accidental releases 

through prevention and response. This 

rule maintains EPA’s focus on 

minimizing the public impacts of 

accidental releases even as it also 

reduces impacts on facilities and 

workers. As explained throughout the 

proposal and in this final action, the 

OSHA PSM standard and EPA RMP 

regulations are closely aligned in 

content, policy interpretations, and 

enforcement. This is not surprising, as 

accident prevention steps that make a 

process safe for workers often will be 

similar, or the same as, steps that would 

prevent deleterious impacts on the 

public. Congress recognized this 

relationship by requiring EPA to 

coordinate its requirements with those 

of OSHA in developing accident 

prevention regulations and requiring 

OSHA to coordinate with EPA when 

developing its PSM standard (see CAA 

section 112(r)(7)(D) and CAAA section 

304(a)). Therefore, since the inception of 

these regulations, EPA and OSHA have 

coordinated closely on their 

implementation in order to minimize 

regulatory burden and avoid conflicting 

requirements for regulated facilities. 

This coordination has continued 

throughout the development of this rule 

and is explained further in the relevant 

sections below. 

A couple of commenters called on 

EPA to exercise its ‘‘full statutory 

authority’’ to issue measures that 

prevent disasters ‘‘ ‘to the greatest extent 

practicable.’ ’’EPA disagrees with these 

comments. As mentioned above, while 

EPA is authorized to promulgate 

regulations that provide for the 

prevention and detection of accidental 

releases to the greatest extent 

practicable, so too must these 

regulations be reasonable. The relevant 

statutory phrase describing EPA’s 

authority to regulate under CAA section 

112(r)(7)(B)(i), authorizes ‘‘reasonable 

regulations . . . to provide, to the 

greatest extent practicable,’’ for the 

prevention and detection of and 

response to accidental releases of 

substances listed in 40 CFR 68.130. EPA 

interprets the term ‘‘practicable’’ in this 

context to include concepts such as 

cost-effectiveness of the regulatory and 

implementation approach, as well as the 

availability of relevant technical 

expertise and resources to the 

implementing and enforcement agencies 

and the owners and operators who must 

comply with the rule. Further, an 

interpretation of the statute that does 

not give meaning to the qualifier 

‘‘reasonable’’ to the authority to regulate 

‘‘to the greatest extent practicable,’’ as 

the commenters suggest, would be 

inconsistent with the structure of the 

statute. The terms ‘‘reasonable’’ and 

‘‘practicable’’ operate both as 

authorization for EPA’s regulations and 

as limitations on the scope of EPA’s 

authority under CAA section 

112(r)(7)(B)(i), while the phrase 

‘‘greatest extent practicable’’ directs 

EPA to select the regulatory option that 

‘‘provide[s] the greatest level of 

practicable protection’’ from ‘‘among 

those regulatory options that are 

reasonable.’’ 84 FR 69849 (Dec. 19, 

2019); see also 87 FR 53566 (Aug. 31, 

2022). To the extent both the 2019 

compliance-driven and the 2022 rulebased, prevention-focused approaches 

are reasonable, the approach of this final 

rule would be more protective and 

therefore be ‘‘ ‘to the greatest extent 

practicable’ among the reasonable 

approaches.’’ 

As recognized by the Supreme Court 

in Michigan v. EPA, 135 S. Ct. 2699, 

2707 (2015), ‘‘reasonable regulation’’ 

generally involves some sort of 

examination of the benefits and the 

burdens of a rule. Nevertheless, the 

Court in Michigan v. EPA did not 

mandate a strict analysis of quantified 


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43Regulatory Impact Analysis: Safer 

Communities by Chemical Accident Prevention: 

Final Rule. This document is available in the docket 

for this rulemaking (EPA–HQ–OLEM–2022–0174). 

44Senate Report at 135; House Report at 155; 

Representative Richardson, 136 Congressional 

Record 35082 (1990) (statement of Representative 

Richardson); 136 Congressional Record 36057 

(1990) (statement of Senator Durenberger). 

45 Due to a lack of alternative data describing 

RMP accident impacts more comprehensively, EPA 

chose this five-year dataset to reflect the most 

recent trends regarding RMP accidents. EPA used 

the August 1, 2021, version of the RMP database to 

complete its analysis because under 40 CFR 

68.195(a), facilities are required to report RMP 

accidents and specific associated information 

within six months to the RMP database. Therefore, 

the RMP database as of August 1, 2021, is expected 

to include RMP accidents and their specific 

associated information as of December 31, 2020. 

However, because accident data are reported to the 

RMP database by facility owners and operators, 

EPA acknowledges the likelihood of late-reported 

accidents affecting these last few years of data 

because some facilities may have not reported their 

RMP accidents as they are required to do. While 

some commenters have suggested that late reporting 

may impact the count of total accidents in recent 

years, neither the commenters nor EPA have 

identified any impacts of late reporting on the 

distribution of accidents by sector. See sections 3.2 

and 3.3 of the RIA for more on this and other 

limitations on the number and costs of baseline 

accidents. 

46 In the 2022 SCCAP proposed rule, EPA 

acknowledged the likelihood of late-reported 

accidents affecting the last few years of data. Based 

on its prior experience, EPA judged that there 

would be a slight increase in the number of 

accidents in the last few years of data. 

47 2023. EPA Response to Comments on the 2022 

SCCAP Proposed Rule (August 31, 2022; 87 FR 

53556). This document is available in the docket for 

this rulemaking. 

cost and benefits and limit the Agency 

to adopting only those measures that 

have quantified costs exceeding 

benefits. In assessing the types of 

benefits EPA should consider in a 

rulemaking under CAA 112(r)(7), EPA 

recognizes that a major purpose of the 

accidental release provisions of the CAA 

is to help mitigate and prevent large 

scale catastrophic incidents that are rare 

and therefore difficult to quantify.43

Both the Senate and the House 

committee reports on the CAAA 

specifically identify the Union CarbideBhopal incident as one that 

demonstrated the need for the 

accidental release prevention provision 

(House Report at 155–57; Senate Report 

at 134–35, 143–44). The congressional 

reports and floor debates also cite an 

EPA study identifying 17 events that, 

based only the volume and toxicity of 

the chemicals involved (and not 

accounting for factors such as location, 

climate, and operating conditions) had 

the potential for more damage than the 

Union Carbide-Bhopal incident.44

Therefore, when assessing the 

reasonableness of the benefits and 

burdens of various regulatory options, 

EPA places weight on both preventing 

more common accidental releases 

captured in the accident history portion 

of the RMP database while also placing 

weight on less quantifiable potential 

catastrophic events. Our judgment as to 

what regulations are ‘‘reasonable’’ is 

informed by both quantifiable and 

unquantifiable burdens and benefits. 

The fact that accidents continue to 

occur shows that we still have reason to 

exercise statutory authority to 

promulgate reasonable regulations to 

provide for the prevention and detection 

of those accidents to the greatest extent 

practicable when the opportunity exists 

to improve the performance of our 

regulatory program. In determining 

what is ‘‘reasonable’’ when developing 

regulations under CAA section 

112(r)(7)(B), EPA acknowledges that 

some facilities are less likely to have an 

accidental release than others and that 

the statute gives the Agency the 

authority to distinguish among classes 

of facilities. When developing this 

rulemaking, EPA therefore had the 

authority to include multiple factors 

when determining what is reasonable, 

such as frequency of RMP accidents or 

proximity to both nearby communities 

and other RMP facilities that could, as 

a result, make the communities and 

other facilities be more susceptible 

when it comes to being exposed to a 

worst-case scenario. For example, as 

mentioned in the proposed rulemaking, 

the per facility accident rate between 

2016 and 2020 45 for all regulated 

facilities was 3 percent (n = 382 

facilities reporting at least one accident 

out of 12,855 unique facilities reporting 

between 2016 and 2020), the sector 

accident rates (number of unique 

facilities with accidents per sector 

divided by the number of unique 

facilities in each sector) for petroleum 

and coal manufacturing were seven 

times higher (23 percent, n = 41 out of 

177) and two times higher for chemical 

manufacturing (6 percent, n = 96 out of 

1631). Also, based on accidents 

occurring between 2016 and 2020, 

communities located near facilities in 

NAICS 324/325 that are located within 

1 mile of another 324/325 facility are 1.5 

times more likely to have been exposed 

to accidents at these facilities as 

compared to communities near facilities 

in NAICS 324/325 that are not located 

within 1 mile of another 324/325 facility 

(87 FR 53578).46 Also mentioned in the 

proposed rulemaking, these surrounding 

communities would benefit from rulebased prevention prior to incidents, 

rather than the case-by-case oversight 

approach of the 2019 reconsideration 

rule (87 FR 53565). Therefore, EPA now 

believes the benefits of rule-based 

prevention for certain high-risk classes 

of facilities could help prevent high 

consequence accidents that affect 

communities and are therefore 

reasonable and necessary to meet the 

statutory objective ‘‘to the greatest 

extent practicable.’’ 

As mentioned in the proposed 

rulemaking, in contrast to the approach 

in the 2019 reconsideration rule, the 

approach taken in this action for the 

new prevention program provisions— 

STAA, root cause analysis incident 

investigation (RCA), and third-party 

compliance audits—refines the focused 

regulatory approach found in the 2017 

amendments rule, and finalizes 

provisions to better identify risky 

facilities to prevent accidental releases 

before they can occur. As explained in 

further detail in following sections of 

this preamble, EPA therefore maintains 

that by taking a rule-based, preventionfocused approach in this action rather 

than the so-called ‘‘compliance-driven’’ 

approach in the 2019 reconsideration 

rule, this rule will further protect 

human health and the environment 

from chemical hazards through process 

safety advancement without undue 

burden. Similarly, other modifications 

to approaches adopted in 2019 to 

information disclosure and emergency 

response will also better balance 

security concerns with improved 

community awareness and lead to better 

community preparedness for accidents. 

By contrast with the prior approach, the 

approach of this final rule is expected 

to be both reasonable and more 

protective, and thus provide for release 

prevention, detection, and response to 

the greatest extent practicable. EPA has 

determined, based on the updated 

factual and scientific record now before 

the agency, including a thorough 

evaluation of public comments, and in 

view of its statutory responsibilty and 

legal authority, to be the approach it 

needs to take, among the potentially 

available or reasonable approaches. 

IV. Discussion of General Comments 

This section of this preamble focuses 

on general comments on the 2022 

SCCAP proposed rule in its entirety and 

EPA’s response to those comments. 

Comments and discussion on provisionspecific topics can be found under each 

individual provision heading. 

Comments received on additional 

considerations posed in the 2022 

SCCAP proposed rule but outside the 

scope of this rulemaking are included 

the Response to Comments document,47

available in the docket for this 


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48For example, one such consideration posed 

outside the scope of this rulemaking was the need 

for reviewing the list of RMP-regulated substances. 

EPA still acknowledges the need for reviewing the 

list and will consider received comments when 

determining whether to take further action on this 

issue. 

49As part of this rule, EPA analyzed accidents 

from 2016 to 2020. The impacts of high 

consequence RMP-reportable accident events 

between 2016 and 2020 demonstrate the impact of 

low probability, high consequence events on annual 

averages. For more information see the Regulatory 

Impact Analysis: Safer Communities by Chemical 

Accident Prevention: Final Rule. 

50The U.S. Chemical Safety Board’s TPC incident 

investigation report outlines the safety issues 

contributing to the incident, conclusions, 

recommendations, and key lessons for the industry. 

https://www.csb.gov/tpc-port-neches-explosionsand-fire/. 

rulemaking.48 In the proposal EPA 

acknowledged the need for reviewing 

the list of RMP-regulated substances. 

Section 112(r)(3) requires periodic 

review of the RMP regulated substance 

list. A priority chemical for EPA’s 

upcoming review will be ammonium 

nitrate. EPA continues to review the 

stakeholder input from this solicitation. 

A. General Comments 

Many commenters provided general 

comments about the proposed 

rulemaking. Several commenters 

supported EPA’s proposed rule, 

including some offering suggestions for 

improvement. Several commenters 

requested EPA consider making the 

proposed rule stronger than it is 

currently written. Several of these 

commenters provided detailed examples 

of recent accidents and incidents, 

including health impacts to the 

community, dating back to 2004 that 

they hope stronger RMP regulations 

would prevent. A few commenters 

provided additional steps EPA should 

take in tandem with the proposed rule. 

Another commenter stated that the 

current process puts the onus on 

community members in close proximity 

to facilities to protect themselves when 

it is EPA’s responsibility to regulate 

these facilities and ensure that the 

public is safe. The commenter noted 

that there needs to be more enforcement 

by the Federal Government to hold 

facilities accountable, especially in 

States lacking enforcement. Several 

commenters stated that the proposed 

rule relies too much on voluntary 

commitments from RMP facilities. One 

commenter noted that the current 

process remains reactive rather than 

proactive and corrective rather than 

preventative. 

Several commenters opposed EPA’s 

proposed rule, including some 

recommending that EPA withdraw the 

proposed rule. A few commenters 

opposed the proposed rule due to what 

the commenters asserted are vague 

standards and definitions that could 

create uncertainties. Several 

commenters stated that the new 

requirements under the 2022 SCCAP 

proposed rule would impose 

unnecessary burdens to facilities, 

including new training and analyses, 

higher costs, or lower effectiveness of 

the program. Several commenters 

asserted that there is no basis or 

evidence that the 2022 SCCAP proposed 

rule is necessary. 

B. EPA Responses 

EPA is finalizing several amendments 

to the RMP rule to further protect 

human health and the environment 

from RMP accidents. The final rule’s 

emphasis is on protecting communities 

most at risk of having an accidental 

release from a facility in their midst. 

Under the final rule, facilities in these 

communities will be required to do 

more to prevent chemical accidents, 

including conducting an STAA, more 

thorough incident investigations, and 

third-party audits. The final rule also 

includes new prevention provisions that 

have not been addressed in prior RMP 

rules, including empowering workers to 

make safety decisions and report noncompliance. The Agency is also 

increasing access to RMP facility 

information for fenceline communities 

in commonly spoken languages. EPA 

believes this final rule promotes 

transparency and gives more 

opportunities for the public and workers 

to be involved in accident prevention 

and emergency planning. EPA believes 

that in most cases, facilities needing to 

adopt the finalized provisions from 

scratch are most likely facilities that 

have not fully developed strong 

programs to ensure their commitment to 

process safety; strengthening prevention 

and response programs at such facilities 

will help to prevent and minimize 

accidental releases of toxic and 

flammable regulated substances. 

EPA disagrees that that there is no 

basis or evidence that the proposed rule 

is necessary. Congress charged EPA to 

promulgate reasonable regulations to 

provide to the greatest extent practicable 

for the prevention and detection of 

accidental releases. Even when EPA has 

discharged its mandatory duty under 

CAA section 112(r)(7)(B), the Agency 

retains the discretion to amend the 

regulations when they can be improved 

to further the intent of the statute. 

Therefore, when major concerning RMP 

accidents, including major accidents, 

continue to occur as they have,49 it is 

EPA’s responsibility to further protect 

human health and the environment, if 

there are reasonable opportunities to do 

so. Many of the amendments being 

finalized in this action, some stronger 

than what was proposed, were informed 

by commenters, including many that 

suffer the consequences of accidents 

occurring at RMP facilities or work in 

RMP-covered processes. The 

amendments are also informed by RMP 

accident data which indicate trends in 

accident occurrence. For example, as 

discussed in the proposal, recent 

accidents highlight that while the 

annual count of accidents decreased 

overall between 2016 and 2020, in 2019, 

the TPC Group (TPC) explosion and fire 

in Port Neches, Texas, reported the 

largest number of persons ever 

evacuated (50,000 people) as the result 

of an RMP-reportable incident, as well 

as $153 million in offsite property 

damage.50 EPA did not conduct an 

inspection at TPC just prior to this 

accident because as indicated in the 

2019 reconsideration rule, EPA 

prioritizes inspections at facilities that 

have had accidental releases. TPC had 

no recent prior RMP accidental release 

and was not otherwise due for 

inspection under EPA’s routine 

oversight plan. Therefore, we believe 

our current enforcement resources, and 

even prioritizing inspections, are not 

capable of effectively addressing 

accident-prone facilities without 

additional regulatory requirements 

mandates. 

While large events are rare, CAA 

section 112(r) was intended as a 

prevention program for large 

catastrophic releases as well as more 

common accidental releases. Post-event 

compliance measures such as outreach 

and enforcement are ‘‘too little, too late’’ 

for such large, but rare, events. 

Therefore, this final rule provides 

additional prevention program 

provisions reasonably calculated for 

stationary sources handling dangerous 

chemicals to prevent potentially 

catastrophic incidents. EPA therefore 

believes the provisions of this final rule 

will be generally effective to help 

improve chemical process safety by 

preventing accidents that result in harm 

and damage; assist in planning, 

preparedness, and responding to RMPreportable accidents; and improve 

public awareness of chemical hazards at 

regulated sources. Thus, these are 

necessary updates to the existing RMP 

rule to ensure chemical accident 

prevention and mitigation. Further, 

while many of the provisions of this 

final rule reinforce each other, it is 

EPA’s intent that each one is merited on 

its own, and they are thus severable. 


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EPA also believes that because of the 

performance-based nature of the 

regulation, and the similar nature of 

these amendments, the requirements 

provide facility owners with latitude in 

their methods of implementing the 

requirements. This type of regulation 

does not create uncertainties or 

unnecessary burdens, but rather offers 

reasonable flexibilities in adopting the 

most effective measures to prevent and 

mitigate accidents. For example, while 

EPA requires implementation of at least 

one practicable passive measure, or its 

equivalent, the new STAA requirements 

are not prescriptive in nature as to what 

a facility can choose as its measure. The 

rule gives facilities flexibility and 

allows facility owners and operators to 

exercise reasonable judgement to 

determine what technology or risk 

reduction measures work best for their 

particular chemical uses, processes, or 

facility. The final rule’s emergency 

exercise requirements also give owners 

and operators significant flexibility in 

establishing exercise schedules and 

exercise scenarios. Other provisions of 

the final rule afford similar flexibilities. 

EPA agrees assistance, outreach, and 

enforcement will help ensure 

compliance with the rule. For example, 

enforcement of the RMP regulation has 

and will continue to occur. Because of 

that fact, EPA expects most facilities 

will proactively make the necessary 

prevention improvements in order to 

comply with the rule and thus avoid 

enforcement. Enforcement of RMP 

facilities remains an Agency priority, as 

indicated by its adoption as a National 

Enforcement and Compliance Initiative 

(NECI) since 2017. The goal of this NECI 

is to reduce the risk to human health 

and the environment by decreasing the 

likelihood of chemical accidents. 

Activities under the initiative include 

having regulated facilities and industry 

associations work to improve safety; 

increase compliance with RMP; and 

promote coordination and 

communication with State and local 

responders and communities. The 

capacity built by the NECI will continue 

to benefit oversight by EPA and its 

partner implementing agencies even 

after the NECI. Furthermore, EPA 

intends to publish guidance for certain 

provisions, such as STAA, root cause 

analysis, third-party audits, and 

employee participation. Once these 

materials are complete, owners and 

operators can familiarize themselves 

with resources and best practices that 

EPA has gathered and found to be useful 

in helping to develop and maintain 

strong prevention programs. The 

Agency views these compliance 

activities as a complement to strong 

accidental release prevention and 

response, but they are not a substitute 

for the stronger prevention measures 

and response provisions set forth in the 

final rule. 

V. Prevention Program Requirements 

A. Hazard Evaluation Amplifications 

1. Summary of Proposed Rulemaking 

a. Natural Hazards, 40 CFR 68.50 and 

68.67 

EPA proposed to require that hazard 

evaluations under 40 CFR 68.50(a)(5) 

and 68.67(c)(8) explicitly address 

external events such as natural hazards, 

including those caused by climate 

change or other triggering events that 

could lead to an accidental release. EPA 

proposed to define natural hazards as 

naturally occurring events with the 

potential for negative impacts, including 

meteorological hazards due to weather 

and climate, as well as geological 

hazards. 

In addition to the proposed approach, 

EPA requested comment on whether the 

Agency should specify geographic areas 

most at risk from climate or other 

natural events by adopting the list of 

areas exposed to heightened risk of 

wildfire, flooding storm surge, or coastal 

flooding. EPA further asked whether the 

Agency should require sources in areas 

exposed to heightened risk of wildfire, 

flooding, storm surge, coastal flooding, 

or earthquake, to conduct hazard 

evaluations associated with climate or 

earthquake as a minimum, while also 

requiring all sources to consider the 

potential for natural hazards unrelated 

to climate or earthquake in their specific 

locations. 

b. Power Loss, 40 CFR 68.50 and 68.67 

EPA proposed to require that hazard 

evaluations under 40 CFR 68.50(a)(3) 

and 68.67(c)(3) explicitly address the 

risk of power failure, as well as standby 

or emergency power systems. EPA also 

proposed to require that air pollution 

control or monitoring equipment 

associated with prevention and 

detection of accidental release from 

RMP-regulated processes have standby 

or backup power to ensure compliance 

with the intent of the rule. In addition 

to the proposed approach for standby or 

backup power for air pollution control 

or monitoring equipment, EPA 

requested comment on any potential 

safety issues associated with the 

requirement. 

c. Stationary Source Siting, 40 CFR 

68.50 and 68.67 

EPA proposed to require that hazard 

evaluations under 40 CFR 68.50(a)(6) 

and 68.67(c)(5) explicitly define 

stationary source siting as inclusive of 

the placement of processes, equipment, 

buildings within the facility, and 

hazards posed by proximate facilities, 

and accidental release consequences 

posed by proximity to the public and 

public receptors. 

d. Hazard Evaluation Information 

Availability, 40 CFR 68.170 and 68.175 

EPA proposed to require that risk 

management plans under 40 CFR 

68.170(e)(7) and 68.175(e)(8) include 

declined natural hazard, power loss, 

and siting hazard evaluation 

recommendations and their associated 

justifications. In addition to the 

proposed approach, EPA requested 

comment on whether the Agency should 

require declined natural hazard, power 

loss, and siting hazard evaluation 

recommendations to be included in 

narrative form and whether the Agency 

should provide specific categories of 

recommendations for facilities to choose 

from when reporting or allowing the 

owner or operator to post this 

information online and provide a link to 

their information within their submitted 

RMP. Further, EPA requested comment 

on methods to provide justification for 

declining relevant hazard evaluation 

recommendations. 

2. Summary of Final Rule 

Based on comments on both the 

proposed options and alternative 

approaches presented, EPA is finalizing 

the proposed provisions with the 

following modifications: 

• Revising the definition of ‘‘natural 

hazards’’ at 40 CFR 68.3 to mean 

meteorological, environmental, or 

geological phenomena that have the 

potential for negative impact, 

accounting for impacts due to climate 

change. 

• Revising the hazard evaluation 

regulatory text at 40 CFR 68.50(a)(5) and 

68.67(c)(8) to focus amplifying language 

on natural hazards rather than ‘‘external 

hazards’’ and include ‘‘exacerbate’’ as 

an influence on an accidental release 

from natural hazards in addition to 

‘‘cause.’’ EPA is also removing the 

description of climate change in this 

section of regulatory text because the 

definition of natural hazards at 40 CFR 

68.3 now includes accounting for 

climate change. 

• Revising 40 CFR 68.50(a)(3) and 

68.67(c)(3) to require monitoring 

equipment associated with prevention 

and detection of accidental releases 

from covered processes to have standby 

or backup power. 

• Revising 40 CFR 68.52(b)(9) and 

68.69(a)(4) to require documentation of 


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17636 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

51Technical Background Document for Notice of 

Proposed Rulemaking: Risk Management Programs 

Under the Clean Air Act, section 112(r)(7); Safer 

Communities by Chemical Accident Prevention 

(April 19, 2022). 

removal of monitoring equipment 

associated with prevention and 

detection of accidental releases from 

covered processes during imminent 

natural hazards. 

• Revising 40 CFR 68.50(a)(6) and 

68.67(c)(5) to correct the technical term 

of ‘‘facilities’’ to ‘‘stationary sources.’’ 

3. Discussion of Comments and Basis for 

Final Rule Provisions 

The discussion and basis for each 

provision is below. The section is 

organized by including comments and 

EPA’s responses grouped by the various 

aspects of each provision the Agency 

received comments on (italicized 

headings). The same organization is 

used for the Discussion of Comments 

and Basis for Final Rule Provisions 

sections throughout this preamble. 

a. Natural Hazards 

EPA’s Proposed Approach 

i. Comments 

Several commenters expressed 

support for EPA requiring facilities to 

conduct natural hazard assessments 

since natural hazards have the potential 

to initiate accidents at RMP facilities. A 

few commenters provided examples of 

natural disasters that have resulted in 

chemical accidents and stated that 

natural hazard assessments could better 

protect workers and surrounding 

communities from these types of 

incidents. One commenter suggested 

that EPA require that RMP facilities act 

to address all natural hazard threats as 

they will only worsen in the face of 

climate change. The commenter also 

suggested that the requirement should 

apply to all RMP facilities. 

One commenter noted that improving 

the resilience of facilities to extreme 

weather events is warranted because of 

the direct, substantial, and cumulative 

risk to EJ communities with EJ concerns 

that are more likely to be located in 

areas susceptible to flooding. One 

commenter noted that EPA’s findings on 

risks to facilities from natural hazards is 

consistent with States’ and 

municipalities’ analysis. The 

commenter noted that several States 

have already taken steps to require 

facilities to consider threats from 

extreme weather, including 

Massachusetts and New York. A couple 

of commenters expressed support for 

the inclusion of natural hazard analysis 

but recommended that EPA clarify the 

language in the proposed rule to better 

define natural hazards and climaterelated hazards. One of the commenters 

suggested that the definition of natural 

hazard assessments provided in the 

Center for Chemical Process Safety’s 

(CCPS), ‘‘Guidelines for Hazard 

Evaluation Procedures,’’ 3rd edition 

(2008) is suitable. 

Several commenters expressed 

opposition to the inclusion of natural 

hazard assessments. For example, 

several commenters stated that EPA has 

not provided sufficient justification for 

these new requirements. One of the 

commenters stated that EPA has not 

indicated why the existing regulations 

are inadequate. Similarly, several 

commenters noted that facilities are 

managing natural hazards well, and 

therefore the commenters suggested that 

additional requirements are not 

necessary. 

Several commenters noted that the 

number of accidental releases caused by 

natural hazards is small compared to 

other causes, and small compared to 

how many natural hazards occur daily, 

and therefore does not justify EPA 

adding additional requirements for 

assessing natural hazards or other 

external events. One of the commenters 

noted that the small number of 

accidents may be attributed to the 

effectiveness of existing regulations and 

voluntary measures regarding 

emergency planning. 

Several commenters noted that the 

natural hazard assessment provisions 

are already considered in the process 

hazard analysis (PHA) or other current 

regulations and are, therefore, 

redundant. Several commenters 

indicated that the natural hazard 

provisions in the proposed rule overlap 

with or are redundant of existing OSHA 

regulations and recommended that EPA 

not conflict or compete with OSHA 

standards, as including them in EPA’s 

rules would create duplicative work for 

facilities and introduce uneven 

enforcement between the two agencies. 

Several commenters stated that the 

proposed natural hazard assessment 

provisions are overly burdensome to 

facilities. One of the commenters stated 

that EPA does not have authorization 

from Congress to transform the PHA 

program to include natural hazards 

‘‘caused by climate change or other 

triggering events.’’ One commenter 

suggested that the determination of 

whether or not to implement additional 

layers of protection from natural 

hazards should be left to the facility and 

not subject to regulatory scrutiny. 

One commenter stated that the 

reference to external events should be 

removed because it is an undefined and 

vague term. The commenter added that 

the proposed requirement that the PHA 

include natural hazards ‘‘caused by 

climate change or other triggering 

events’’ is overly broad in that it appears 

to include events that go well beyond 

the proposed definition of natural 

hazards. The commenter stated that 

these broadly defined and ambiguous 

terms in the regulatory text could lead 

to an infinite list of external events and 

associated recommendations from the 

PHA a facility must consider. The 

commenter urged that EPA must 

provide much-needed clarity and 

explanation for the proposed language. 

ii. EPA Responses 

EPA agrees that natural hazards are 

hazards for chemical facilities because 

they have the potential to initiate 

accidents that threaten human health 

and the environment and disagrees with 

comments that the Agency did not 

provide sufficient justification for the 

new requirements. In the proposal, the 

Agency provided data which indicate 

that, while not all, some RMP accidents 

are being reported as having a natural 

cause as the initiating event and include 

unusual weather conditions as a 

contributing factor.51 EPA believes that 

adding clarifying language to a 

provision is a simple way to promote 

awareness of these potential accidents 

which should help prevent some. 

Additionally, EPA agrees that climate 

change increases the threat of extreme 

weather as a natural hazard and should 

be taken into account at covered 

facilities when evaluating hazard 

frequency and severity. EPA is 

finalizing the proposed provisions 

because the Agency believes that 

making the requirement more explicit to 

evaluate natural hazards, which 

includes taking into account climate 

change, in hazard evaluations for 

Program 2 and Program 3 RMPregulated processes will ensure that the 

threats of natural hazards are properly 

evaluated and managed to prevent or 

mitigate releases of RMP-regulated 

substances at covered facilities. EPA 

agrees that doing so will better protect 

surrounding communities from these 

types of incidents. 

In response to the comment that 

improving the resilience of facilities to 

extreme weather events is warranted 

due to the risk posed to communities 

with EJ concerns, EPA agrees that 

accidental releases of regulated 

chemicals from RMP-regulated facilities 

likely pose disproportionate risks to 

historically marginalized communities. 

EPA expects that the benefits of this 

clarified provision may lower potential 

exposure for fenceline communities 

with historically underserved and 


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52https://hazards.fema.gov/nri/natural-hazards. 

53https://www.fema.gov/sites/default/files/ 

documents/fema_climate-essentials_072023.pdf. 

54CCPS, CCPS Monograph: Assessment of and 

Planning For Natural Hazards (American Institute 

of Chemical Engineers, 2019), https://

www.aiche.org/sites/default/files/html/536181/ 

NaturalDisaster-CCPSmonograph.html. 

55https://hazards.fema.gov/nri/natural-hazards. 

56https://disgeoportal.egs.anl.gov/ClimRR/. 

57https://resilience.climate.gov/. 

58 87 FR 53567, August 31, 2022. 

overburdened populations by reducing 

disproportionate damages that RMPreportable accidents might otherwise 

inflict on those populations. 

EPA agrees with the comment that the 

Agency’s findings on risks to facilities 

from natural hazards are consistent with 

those of States that already require 

facilities to consider threats from 

extreme weather. However, because not 

all States require facilities to consider 

natural hazards, and because EPA 

continues to see natural hazards as a 

factor in RMP accidents, the Agency 

believes the requirement to evaluate and 

control natural hazards should be 

explicitly stated in the RMP regulation. 

Moreover, EPA notes that doing so is 

consistent with other countries that are 

also expanding efforts to address natural 

hazards at chemical facilities, as 

discussed in the 2022 SCCAP proposed 

rule (87 FR 53568). 

In response to the comments 

requesting that EPA better define 

natural hazards and climate-related 

hazards, EPA notes that it has revised its 

definition to be more closely align with 

language used in the Federal Emergency 

Management Agency’s (FEMA) National 

Risk Index (NRI) 52 and Climate 

Essentials for Emergency Managers 53

resources. For this final rule, EPA is 

defining natural hazards to mean 

meteorological, climatological, 

environmental, or geological 

phenomena that have the potential for 

negative impact, accounting for impacts 

due to climate change. Examples of such 

hazards include, but are not limited to, 

avalanche, coastal flooding, cold wave, 

drought, earthquake, hail, heat wave, 

hurricane, ice storm, landslide, 

lightning, riverine flooding, strong 

wind, tornado, tsunami, volcanic 

activity, wildfire, and winter weather. 

EPA believes CCPS’ definition and 

guidance 54 presented in the 2022 

SCCAP proposed rule, is still useful for 

facilities’ evaluation of natural hazards 

for process safety, however, the Agency 

believes these FEMA resources reflect a 

more comprehensive base to identify, 

evaluate and understand relative natural 

hazard risk, particularly how natural 

hazards must account for a changing 

climate. For example, the NRI identifies 

18 specific natural hazards, which EPA 

has identified in its definition, that are 

further supported as their designation as 

natural hazards and are able to be 

represented in terms of expected annual 

loss, which incorporate data for 

exposure, annualized frequency, and 

historic loss ratio.55 Additionally, the 

Climate Essentials for Emergency 

Managers points to many climate 

change resources including the Climate 

Risk & Resilience Portal 56 and the 

Climate Mapping for Adaption and 

Resilience Tool 57 that allows users to 

examine simulated future climate 

conditions associated with the natural 

hazards identified in the NRI. 

EPA disagrees that the natural hazard 

assessment provisions are redundant 

and will result in uneven enforcement 

due to them already being considered in 

both the PHA requirements and current 

OSHA regulations. EPA’s goal of this 

provision is to better reflect the 

Agency’s longstanding regulatory 

requirement, rather than to impose 

additional regulatory requirements (and 

thus potential additional costs) that 

conflict with the OSHA PSM regulatory 

requirements. In fact, EPA has 

coordinated with OSHA throughout the 

rulemaking process to ensure the intent 

of adding explicit natural hazard 

regulatory text does not create 

conflicting requirements between the 

two regulatory programs. 

In response to comments that the 

natural hazard assessment provisions 

are overly burdensome to facilities, and 

that the Agency does not have 

authorization from Congress to 

transform the PHA program to include 

natural hazards ‘‘caused by climate 

change or other triggering events’’, EPA 

disagrees. EPA has stated this provision 

makes more explicit what is already 

required in the RMP regulations. As 

noted in the proposed rule, since the 

1996 RMP rule, EPA has said events 

such as floods and high winds should 

be considered as potential releaseinitiating events when conducting a 

PHA, and the RMP guidance further 

expands on this point.58 Furthermore, 

the hazard evaluation amplifications 

reflect existing industry practice, and 

therefore, EPA assumes that these 

hazard evaluation amplifications 

impose no new requirements or costs on 

facilities that are in compliance with the 

RMP rule and common industry 

practice. By amplifying and making 

more explicit the need to evaluate 

natural hazards as potential causes of 

releases, EPA expects those facilities 

that are currently not performing such 

evaluations will better understand what 

the rule requires. Additionally, each 

modification of the RMP rule that EPA 

proposed and is finalizing is based on 

EPA’s rulemaking authority under CAA 

section 112(r)(7). EPA has outlined its 

authority for all the changes to the 

regulation in section III.C of this 

preamble. 

In response to comments that the 

determination of whether to implement 

additional layers of protection from 

natural hazards should be left to the 

facility and not subject to regulatory 

scrutiny, EPA notes that it is not 

requiring implementation of protective 

measures. At this time, EPA is simply 

emphasizing the already-existing 

requirement that the evaluation of 

natural hazards be explicitly included 

in hazard reviews and PHAs for 

Program 2 and Program 3 RMPregulated processes. The Agency 

expects stationary source management 

to make reasonable decisions based on 

the information collected through this 

provision, like other provisions in the 

PHA. EPA acknowledges that natural 

hazards and process operations vary 

throughout the United States, and 

implementation of protective measures 

will therefore also vary among RMP 

processes. However, because the RMP 

rule is performance-based, EPA believes 

that all regulated RMP facilities can 

ultimately be successful in addressing 

natural hazards for their locations 

within their risk management programs. 

In response to the comment that the 

reference to external events should be 

removed because it is vague and overly 

broad, EPA acknowledges that analysis 

of external events may be broader than 

expected. EPA is therefore revising the 

regulatory language in the final rule to 

focus on natural hazards rather than 

external hazards. Additionally, EPA is 

including ‘‘exacerbate’’ as an influence 

of an accident from natural hazards in 

addition to ‘‘cause’’ to further clarify the 

regulatory language. As a few 

commenters discussed, and EPA agrees, 

in some cases natural hazards can be a 

contributing factor for accidental 

releases, making them more extreme or 

likely, rather than causing them 

independently. Finally, EPA is 

removing the description of climate 

change in the hazard evaluation 

regulatory language to eliminate 

redundancy, as EPA is defining natural 

hazard as taking into account climate 

change impacts. 


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59https://www.gao.gov/assets/gao-22-104494.pdf. 

60https://www.ucsusa.org/sites/default/files/ 

2021-07/preventing-double-disasters%

20FINAL.pdf. 

61 David Flores, et al., Preventing ‘‘Double 

Disasters’’ (2021), https://www.ucsusa.org/sites/ 

default/files/2021-07/preventing-doubledisasters%20FINAL.pdf. 

62U.S. Government Accountability Office, 

Chemical Accident Prevention: EPA Should Ensure 

Regulated Facilities Consider Risks from Climate 

Change (2022), https://www.gao.gov/assets/gao-22- 

104494.pdf. 

63https://hazards.fema.gov/nri/. 

64https://www.fema.gov/sites/default/files/ 

documents/fema_climate-essentials_072023.pdf. 

Alternative Approaches for Specifying 

Areas Most at Risk and Identifying 

Sources With Heightened Risk of 

Climate Events or Earthquakes 

i. Comments 

Several commenters expressed 

support for EPA specifying areas most at 

risk from climate or other natural 

events. One of the commenters 

indicated that adopting the list of areas 

exposed to heightened risk of wildfire, 

flooding, storm surge, or coastal 

flooding is necessary because facilities 

would face difficulties in assessing 

future climate risks without this 

additional guidance from EPA. A couple 

of commenters recommended that EPA 

use the list in the U.S. Government 

Accountability Office’s 2022 report, 

‘‘Chemical Accident Prevention: EPA 

Should Ensure Regulated Facilities 

Consider Risks from Climate Change.’’ 59

One of the commenters also 

recommended using the list in the 2021 

report, ‘‘Preventing Double Disasters,’’ 

from David Flores et al.60 A couple of 

commenters suggested that the list of atrisk facilities or geographic areas should 

be regularly updated using the latest 

available data. A couple of commenters 

clarified that such a list of at-risk areas 

should not be used to limit the number 

of facilities that are required to conduct 

a natural hazard or climate change 

hazard analysis. 

A couple of commenters expressed 

opposition to the development of a list 

of geographic areas most at risk from 

natural hazards or climate-related 

hazards. One of the commenters 

indicated that such a list is not 

necessary because facilities in these 

areas are generally aware of the 

potential for those hazards. The 

commenter stated that EPA has not 

demonstrated sufficient need to apply 

geographic distinctions as a part of the 

regulatory approach. One commenter 

stated that according to the 

Intergovernmental Panel on Climate 

Change’s reporting, there are challenges 

with attributing events to climate 

change; therefore, the commenter stated 

that they oppose EPA specifying 

geographic areas most at risk from 

climate impacts. 

One commenter expressed support for 

EPA requiring sources in areas exposed 

to heightened risk of natural disasters to 

conduct hazard evaluations associated 

with climate or earthquakes as a 

minimum, while also requiring all 

sources to consider the potential for 

natural hazards unrelated to climate or 

earthquakes in their specific locations. 

Similarly, another commenter urged 

that it is EPA’s responsibility to regulate 

chemical facilities appropriately. The 

commenter noted that the co-location of 

multiple polluting sites in climate 

vulnerable areas is common, with 

roughly a third of the nation’s RMP 

facilities at increased risk from climate 

impacts; however, despite known risks, 

RMP facilities are not currently required 

to plan for scenarios such as inland 

flooding, coastal flooding, storm surge, 

and wildfires. 

Conversely, one commenter stated 

that EPA does not need to apply 

different regulatory requirements based 

on geography, since EPA has not 

demonstrated sufficient need to apply 

such geographic distinctions as part of 

any regulatory approach. Instead, the 

commenter stated that a general 

provision to require hazard reviews and 

PHAs to evaluate the potential for 

natural hazards, such as (but not 

necessarily limited to) specific 

examples, would be more practical. 

ii. EPA Response 

While EPA agrees it could be useful 

to specify areas most at risk from natural 

events and identify sources with 

heightened risk of climate events, EPA 

is not finalizing a regulatory provision 

that will adopt these approaches at this 

time. Rather, EPA will use these 

comments, as well as those received on 

guidance development, to update the 

current hazard evaluation guidance and 

initiate ways to share natural hazard 

resources with facility owners and 

operators to help them identify and 

evaluate potential natural hazard risks. 

EPA expects to develop and release this 

guidance approximately one year after 

this final rule. The 2022 SCCAP 

proposed rule identified relevant new 

studies for RMP facilities and the threat 

of natural hazards to them. Those 

studies included the Center for 

Progressive Reform, Earthjustice, and 

the Union of Concerned Scientists’ 

report ‘‘Preventing Double Disasters’’ 61

and the Government Accountability 

Office’s report ‘‘Chemical Accident 

Prevention: EPA Should Ensure 

Regulated Facilities Consider Risks from 

Climate Change.’’ 62 EPA also believes 

CCPS’ guidance presented in the 2022 

SCCAP proposed rule, is still useful for 

facilities’ evaluation of natural hazards 

for process safety. Lastly, EPA now also 

recognizes the identification of hazards 

in FEMA’s NRI 63 and Climate Essentials 

for Emergency Managers 64 as the most 

comprehensive foundation to identify, 

evaluate and understand relative natural 

hazard risk, particularly how natural 

hazards must account for a changing 

climate. EPA intends to incorporate and 

further evaluate other resources as a 

minimum in its guidance and expects 

that information available in these 

resources can be helpful to be consulted 

to complement a facility’s more 

localized information available from the 

State and local government. 

b. Power Loss 

EPA’s Proposed Approach 

i. Comments 

One commenter agreed with EPA’s 

approach to add regulatory text to 

emphasize that loss of power is among 

the hazards that must be addressed 

within hazard review. A few 

commenters expressed support for 

facilities having contingency plans to 

handle potential power loss. A few 

commenters noted that power loss has 

been identified as the cause of 

hazardous chemical releases, such as 

the Shell East Site and Arkema 

incidents, and stated it is clear that 

more stringent requirements are needed. 

One commenter stated that they did not 

oppose requiring hazard reviews and 

PHAs to address power loss, but noted 

that in many cases, a company’s RMP 

already considers both natural hazards 

and power loss. One commenter stated 

that facilities should provide 

information to local responders about 

their backup power capabilities during 

a hazard event, including the backup 

generation source, fuel type, capacity 

(operational hours), and process 

consequences for extended power loss. 

The commenter stated that the 

information provided should address 

how long a facility can maintain the 

RMP process(es) safely with backup 

power. Several commenters urged EPA 

to require facilities to have backup 

power systems. A few commenters 

noted that EPA should require facilities 

to have enough backup power to safely 

run or shut down the entire facility in 

the event of power loss. 

Several commenters noted that EPA 

has not provided data showing that 

power loss is a significant cause of 

accidents, and therefore the proposed 


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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 17639 

65Existing requirements of the hazards to be 

evaluated in hazard evaluations are found at 40 CFR 

68.50(a) for Program 2 processes and at 40 CFR 

68.67(a) through (c) for Program 3 processes. 

rule is unwarranted. A few commenters 

stated that from 2016–2020, only 7 out 

of 448 reported accidents were linked to 

power loss. A few commenters stated 

that EPA did not adequately consider 

the costs and benefits of the proposed 

power loss provisions. 

A couple commenters noted that 

EPA’s proposal to explicitly require 

evaluation of standby and emergency 

power systems diverges with OSHA’s 

PSM requirements in the PHA. The 

commenter stated that this proposal 

would inappropriately create an 

inconsistency between the two 

regulatory programs, injecting ambiguity 

and uncertainty into the PHA process. 

Another commenter urged EPA to not 

include these additional provisions in 

RMP regulations and instead allow 

OSHA to continue its oversight of these 

hazards. 

One commenter strongly supported 

requiring air pollution control or 

monitoring equipment associated with 

prevention and detection of accidental 

releases from RMP-regulated facilities to 

have standby or backup power. The 

commenter claimed, however, that the 

proposed amendments to 40 CFR 68.50 

and 68.67 are extremely vague regarding 

this requirement. 

Another commenter noted that, while 

fenceline monitors could detect an 

accidental release in some 

circumstances, high wind events such 

as hurricanes can render them useless 

such that a loss of power to monitors 

would have no adverse effect on the 

source or the surrounding community. 

A couple of commenters stated that a 

focus on maintaining air pollution 

control or monitoring equipment during 

a power loss, while important, may 

detract from the fundamental purpose of 

the RMP. 

One commenter requested that the 

final rule require all facilities to have 

real-time fenceline air monitors with 

enforcement mechanisms and robust 

penalties for intentionally removing air 

monitors from service. The commenter 

stated that there are currently no 

penalties for facilities that shut down 

their monitoring during an incident. 

The commenter requested that EPA 

strengthen the proposed rule to require 

expanded fenceline monitoring and 

adequate backup power for air monitors 

to operate continuously and that this be 

documented in a written plan that 

includes the location of the monitors. 

Conversely, a couple of commenters 

claimed that EPA made an unjustified 

assumption in the preamble of the 

proposed rule that facilities will remove 

air monitoring and control equipment 

from service prior to a natural disaster 

to evade monitoring requirements. The 

commenters stated that the suggestion 

that facilities attempt to evade 

regulatory agency requirements in the 

event of a natural disaster is improper 

and inappropriate. 

A few commenters stated that EPA’s 

proposal to explicitly require backup 

and emergency power systems exceeds 

the scope of RMP without proper 

justification. One commenter expressed 

concern that the proposed backup 

power requirements exceed EPA’s 

statutory authority and lack a reasoned 

basis. A couple of commenters also 

questioned whether EPA’s statutory 

authority allows it to require such 

actions. The commenters contended that 

air emission monitoring equipment is 

typically regulated under other EPA 

CAA regulatory programs (New Source 

Performance Standards, National 

Emission Standards for Hazardous Air 

Pollutants, and Title V permitting 

program). 

ii. EPA Responses 

EPA agrees that power loss can 

threaten RMP-regulated processes and 

cause accidental releases if not properly 

managed, and therefore disagrees that 

the provisions are unwarranted. In the 

proposed rule, EPA provided data 

showing that power loss has resulted in 

serious accidental release incidents at 

RMP-regulated facilities (87 FR 53569), 

and EPA believes making more explicit 

this already-existing accident 

prevention program requirement to 

evaluate hazards of the process 65 will 

ensure that threats of power loss are 

properly evaluated and managed to 

prevent or mitigate releases of RMPregulated substances at covered 

facilities. Therefore, EPA is finalizing 

the proposed revisions. 

In response to the comment that 

facilities should provide local 

responders with their backup power 

capabilities during a hazard event, EPA 

maintains that it is very important to 

ensure that Local Emergency Planning 

Committees (LEPCs) or local emergency 

response officials have the information 

necessary for developing local 

emergency response plans; however, 

EPA believes it is not necessary to 

specify in the RMP rule the types or 

format of information that LEPCs or 

emergency response officials may 

request. Section 303(d)(3) of the 

Emergency Planning and Community 

Right to Know Act already provides the 

necessary authority to allow LEPCs to 

request information needed to develop 

the local emergency response plan. 

Furthermore, as part of the annual 

coordination between facilities and 

local emergency responders, responders 

may obtain information on backup 

power as appropriate. 

In response to the comments 

requesting that EPA require facilities to 

have enough backup power to safely run 

in the event of power loss, EPA is not 

requiring implementation of standby or 

emergency power for the entirety of an 

RMP process at this time. However, the 

Agency is requiring the source to 

consider the appropriateness of backup 

power for their process and to explain 

decisions not to implement backup 

power. There may be situations where 

backup power is not critical to chemical 

release prevention, so the rule provides 

sources the opportunity to explain their 

decision-making. Such an approach is 

consistent with the performance-based 

structure of the rule that relies on 

examination of process safety issues by 

the source, rational decision-making on 

the part of owners and operators, and 

oversight by implementing agencies 

through compliance assistance and 

enforcement and the public through 

disclosure. EPA takes a slightly different 

approach with respect to backup power 

for monitors. EPA is requiring standby 

or backup power for air pollution 

control or monitoring equipment 

associated with prevention and 

detection of accidental releases from 

RMP-regulated processes and has 

amended regulatory language to reflect 

the requirement. EPA believes that 

doing so will help ensure compliance 

with the intent of the rule and ensure 

that the RMP-regulated substances at 

covered processes are continually being 

monitored so that potential exposure to 

chemical substances can be measured 

during and following a natural disaster. 

While the Agency acknowledges that 

there may be processes that do not 

require backup power, the Agency 

believes that once a facility has made 

and documented the determination that 

it is appropriate to have monitors for 

accidental releases, then ensuring their 

operation through requiring backup 

power is an appropriate operational 

requirement. 

In response to comments that the 

requirements would create 

inconsistency between EPA and OSHA 

regulatory programs, EPA seeks only to 

better reflect its longstanding regulatory 

requirement that loss of power is among 

the hazards that must be addressed 

within hazard evaluations, rather than 

impose additional regulatory 

requirements (and thus potential 

additional costs) that conflict with the 

OSHA PSM regulatory requirements. 


ddrumheller on DSK120RN23PROD with RULES3
17640 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

66The backup power requirement of this rule 

only addresses monitors for accidental releases of 

regulated substances under 40 CFR 68.130. This 

rule does not create any obligation to provide 

backup power to monitors that may be required by 

other CAA programs. 

67Marsh JLT Specialty, ‘‘100 Largest Losses in the 

Hydrocarbon Industry,’’ 27th Edition, March 2022. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

from 1974 to 2021 in current and 2021 dollars and 

in a few cases, business loss costs. 

In response to the comment that the 

amendments to 40 CFR 68.50 and 68.67 

are vague, EPA again notes these 

amplifications are already preexisting 

requirements. Also, EPA’s general 

approach in 40 CFR part 68 has been to 

recognize that process safety requires 

owners and operators to exercise 

reasonable judgement in making their 

facility safer. Therefore, EPA has, and 

continues to, allow substantial 

flexibility for sources on how to comply 

with the RMP rule. As noted in the 

proposal, EPA believes many facilities 

are already managing the hazard of 

power loss well and thus does not 

believe the amplification of power loss 

in the hazard evaluation regulatory text 

will negatively affect evaluation of this 

hazard. 

In response to comments regarding 

facilities’ removal of air monitoring 

equipment,66 EPA notes that the final 

rule is revising 40 CFR 68.52(b)(9) and 

68.69(a)(4) to require documentation of 

the removal of monitoring equipment 

for accidental releases during disasters 

in facility operating procedures. In 

doing so, the Agency addresses the 

concern that the threat of extreme 

weather events has, and will continue to 

be, used by some owners or operators to 

justify disabling equipment designed to 

monitor and detect chemical releases of 

RMP-regulated substances at their 

facility (87 FR 53571). To prevent 

accidental releases, RMP owners or 

operators are required to develop a 

program that includes monitoring for 

such releases. EPA does not believe all 

natural disasters should be treated as an 

exception to this requirement. However, 

EPA understands that, in some 

situations, such as hurricane winds, 

there is a potential for damage to, or by, 

monitoring equipment if not secured 

and allows a source to shut down 

monitoring equipment in such cases 

provided that an explanation is 

included in its RMP. 

EPA disagrees that the backup and 

emergency power system requirements 

exceed the scope of the RMP rule and 

EPA’s statutory authority and also 

disagrees that the monitoring 

requirements may detract from the 

fundamental purpose of the RMP rule. 

Each modification of the RMP rule that 

EPA proposed and is finalizing is based 

on EPA’s rulemaking authority under 

CAA section 112(r)(7). Both paragraph 

(A) and subparagraph (B)(i) of section 

112(r)(7) explicitly grant EPA the 

authority to require monitoring for 

accidental releases. See CAA section 

112(r)(7)(A)) (EPA ‘‘authorized to 

promulgate release prevention, 

detection, and correction requirements 

which may include monitoring’’); CAA 

section 112(r)(7)(B)(I) (as appropriate, 

the accidental release regulations shall 

cover the use, operation, and upkeep of 

equipment to monitor accidental 

releases). The original rule established, 

through its statutory authority, the 

requirement to monitor for accidental 

releases to help prevent and mitigate 

releases. Therefore, backup and 

emergency power system requirements 

being finalized in this rule simply 

ensure proper operation of monitors and 

continuous compliance with the 

existing requirement. 

In response to comments that EPA did 

not adequately consider the costs and 

benefits of the power loss provisions, 

EPA notes that it is not finalizing 

additional regulatory requirements from 

what already exists in the RMP 

regulations. The current RMP rule’s 

PHA requirements include determining 

and evaluating ‘‘the hazards of the 

process’’ as well as ‘‘engineering . . . 

controls applicable to the hazards and 

their interrelationships such as 

appropriate application of detection 

methodologies.’’ (40 CFR 68.67(c)(1) and 

(3)) Loss of power is one such hazard, 

and backup power is an engineering 

control applicable to the hazard and 

detection methodologies. Similar but 

less detailed requirements apply to 

Program 2 processes (40 CFR 68.50(a)). 

The hazard evaluation requirements 

reflect not only the OSHA and EPA 

rules but also existing industry 

recommended practices, and therefore, 

EPA assumes that these hazard 

evaluation amplifications impose no 

new requirements or costs on facilities. 

As EPA has discussed in prior RMP 

rulemaking RIAs, it is not possible to 

estimate quantitative benefits for 

proposed rule provisions as EPA has no 

data to project the specific contribution 

of each to an accident’s impacts. As 

shown by accident trends, accident 

frequency and severity are difficult to 

predict. However, the 2022 SCCAP 

proposed rule and the accompanying 

Technical Background Document show 

that past accidents have been caused by 

power failure, and the backup power 

provisions target these events. Based on 

RMP-reportable accident and other data 

from RMP regulated industry sectors,67

chemical accidents can impose 

substantial costs on firms, employees, 

emergency responders, the community, 

and the broader economy. Reducing the 

risk of such accidents, the severity of 

the impacts when accidents occur, and 

improving information availability, as 

the provisions of this final rule intend, 

will provide benefits to the potentially 

affected members of society. 

c. Stationary Source Siting 

EPA’s Proposed Approach 

i. Comments 

A few commenters expressed support 

for EPA’s proposal to amend regulatory 

text for Program 2 and 3 processes to 

define stationary source siting 

evaluations as including placement of 

processes, equipment, buildings, and 

hazards posed by proximate facilities 

and accident release consequences 

posed by proximity to the public. One 

commenter stated that doing so would 

ensure the protection of human health 

and the environment. Another 

commenter stated that EPA should 

require implementation of stationary 

source siting recommendations found in 

the analysis to the greatest extent 

practicable to assure protection for 

fenceline communities. Similarly, 

another commenter suggested that if it 

is practicable for a facility to take an 

action to eliminate or lessen hazards 

associated with RMP processes through 

different siting, it should be required to 

do so. 

Several commenters expressed 

concerns about the proposed 

requirements related to siting 

evaluations. Several commenters noted 

that implementing the facility siting 

requirements are unnecessary and 

duplicative because facilities covered by 

OSHA’s PSM regulations already 

undergo similar requirements. The 

commenters stated that this creates the 

opportunity for inconsistent 

enforcement between EPA and OSHA. 

Several commenters expressed 

concern that EPA did not define the 

term ‘‘proximate facilities.’’ Many 

commenters were also concerned that 

when these facilities are identified, it is 

not practical to expect them to share 

information with each other due to 

confidential business information (CBI) 

and security concerns. One of the 

commenters suggested that EPA update 

the regulatory text to make an allowance 

for instances where neighboring 

facilities do not cooperate in the siting 

evaluation. 


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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 17641 

68OSHA, Final Rule on Process Safety 

Management of Highly Hazardous Chemicals; 

Explosives and Blasting Agents, 29 CFR part 1910 

(1992), 57 FR 6356 (February 24, 1991), https://

www.osha.gov/laws-regs/federalregister/1992-02-24. 

69 61 FR 31687, June 20, 1996. 

A couple of commenters stated that it 

is impracticable for EPA to require 

existing facilities to move processes to 

comply with any new siting 

requirements. The commenters 

suggested that EPA clarify that these 

requirements do not apply to existing 

facilities. One commenter stated that 

imposing new siting requirements after 

a facility that has been established 

would raise fundamental fairness issues, 

as well as possible regulatory ‘‘takings’’ 

issues, potentially requiring 

compensation to the affected sources. 

One commenter noted that conducting a 

siting analysis is a significant 

undertaking for existing sources who do 

not have potential to cause offsite 

consequences. The commenter stated 

that it would be a costly and arduous 

undertaking to determine exactly what 

facilities are proximate and understand 

their internal operations. 

One of the commenters noted that the 

proposed requirements should be 

narrowly interpreted to preserve local 

zoning authority. Another commenter 

mentioned that neither the facility nor 

EPA have any authority or control over 

local zoning ordinances that may have 

allowed development within an area 

that EPA’s new criteria may deem to 

have inappropriate buffers or setbacks. 

Another commenter stated that the 

facility siting provision could negatively 

affect where facilities could be built, 

depending on the distance between a 

facility process and offsite populations. 

The commenter encouraged EPA to 

consider a policy restricting outside 

populations from building close to a 

facility which could interfere with real 

estate plans and impact local building 

regulations. 

ii. EPA Responses 

EPA agrees that amending the 

regulatory text to make more explicit the 

requirement that process hazard 

evaluations for both Program 2 (hazard 

review) and Program 3 (PHA) include in 

the siting evaluation the placement of 

processes, equipment, buildings, and 

hazards posed by proximate facilities, 

and accident release consequences 

posed by proximity to the public, will 

help ensure the protection of human 

health and the environment. As 

discussed in the proposal, siting of 

processes and equipment within a 

stationary source can impact the 

surrounding community, not only 

through the proximity of the accidental 

release to offsite receptors adjacent to 

the facility boundary (e.g., people, 

infrastructure, environmental 

resources), but also through increasing 

the likelihood of a secondary ‘‘knockon’’ release by compromising nearby 

processes. The proposal offered several 

examples of accidental releases which 

illustrate the significant effects of the 

lack of sufficient distance between the 

source boundary and neighboring 

residential areas. 

In response to comments that EPA 

should require implementation of 

stationary source recommendations, 

EPA notes that, at this time, the Agency 

is only choosing to make more explicit 

what is required to be addressed in a 

stationary source siting evaluation. 

Rather than propose additional 

requirements, EPA is instead 

expounding on the current regulatory 

text to ensure that siting evaluations 

properly account for hazards resulting 

from the location of processes, 

equipment, building, and proximate 

facilities, and their effects on the 

surrounding community. EPA continues 

to believe the performance-based nature 

of both this provision and the overall 

rule allow facility owners and operators 

the discretion to determine what risk 

reduction measures work best for their 

particular chemical use, process, or 

facility. Furthermore, EPA disagrees 

with comments that implementing the 

facility siting requirements would create 

the opportunity for inconsistent 

enforcement between EPA and OSHA. 

The OSHA PSM standard and RMP rule 

both require that facility siting be 

addressed as one element of a PHA (29 

CFR 1910.119(e)(3)(v) and 40 CFR 

68.67(c)(5)). In response to comments on 

the proposed PSM rule, OSHA indicated 

that facility siting should always be 

considered during PHAs and therefore 

decided to emphasize this element by 

specifically listing siting evaluation in 

regulatory text.68 EPA’s approach to the 

siting requirement is consistent with its 

general approach to PSM in the 1996 

RMP rule: sound, comprehensive PSM 

systems can protect workers, the public, 

and the environment.69

In response to the comments 

regarding the definition of ‘‘proximate 

facilities’’ and CBI, EPA notes that the 

provision is for facility owners and 

operators to be aware of and consider 

the apparent presence of facilities 

within release impact zones that could 

occur from their facility, and how those 

releases would be affected because of 

the presence of nearby facilities. While 

EPA encourages sharing of chemical and 

process information between facilities, 

particularly for emergency response 

purposes, EPA does not believe this is 

required in order to comply with the 

provision. Nevertheless, when 

conducting siting evaluations, EPA 

would reasonably expect sources to 

consult publicly accessible information 

on nearby sources, such as RMPs and 

information available through LEPCs. 

This type of information is not CBI. 

EPA disagrees that it is impracticable 

to require existing facilities to comply 

with siting requirements. EPA notes that 

there is a breadth of guidance on siting, 

and the Agency therefore believes there 

is adequate information available for 

facilities to comply with the text in this 

final rule. EPA expects facilities to 

continue to use available resources and 

any additional industry-specific 

guidance to properly evaluate siting 

hazards. The rule does not mandate that 

existing sources modify their footprint 

as a result of a siting analysis. The 

approach taken in this rule is similar to 

how hazard evaluations have proceeded 

in the past: require the analysis of 

hazards and rely upon owners and 

operators to use the information 

reasonably when determining what 

measures should be undertaken. The 

Agency also notes that Program 1 

processes are not covered by this 

requirement; Program 2 and 3 sources 

subject to this requirement will have 

undertaken offsite consequence analyses 

and determined that they may have 

offsite impacts that disqualify them 

from Program 1. Finally, while EPA has 

in the past discussed the potential for 

requiring minimal setbacks and other 

specific location restrictions, 

notwithstanding local zoning, the siting 

requirement in this rule does not 

contain such a restrictions on location. 

d. Hazard Evaluation Information 

Availability 

EPA’s Proposed Approach 

i. Comments 

Several commenters expressed 

support for EPA’s proposed hazard 

evaluation information availability 

requirements. One commenter stated 

that failing to finalize the proposal 

would be arbitrary and capricious 

because owners and operators can 

continue to ignore recommendations 

from hazard evaluations with no 

justification, even if the 

recommendations are feasible and 

effective. One commenter strongly 

supported EPA’s decision to require 

RMP facilities to report declined 

recommendations in hazard evaluations 

but also suggested there should be a 

baseline checklist of natural hazard 

mitigation measures. A couple of the 

commenters noted that facilities should 


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17642 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

70https://www.osha.gov/sites/default/files/ 

enforcement/directives/CPL02-02-045_CH-1_

20150901.pdf. 

be required to implement practicable 

recommendations. 

Several commenters expressed 

concern that there is no reasonable 

explanation for requiring the reporting 

of rejected recommendations. A few 

commenters mentioned that the 

proposed requirements are unnecessary 

because this information is already 

documented as part of the PHA or 

Layers of Protection Analysis (LOPA) 

and adding it to the RMP only produces 

double documentation without added 

benefit. Some commenters mentioned 

that EPA did not consider the labor 

costs and time that would be devoted to 

preparing a written justification for 

rejected recommendations. One of the 

commenters stated that the time and 

resources could be better spent on 

implementing accepted 

recommendations. A few commenters 

suggested that there is no evidence that 

requiring individual facilities to provide 

such documentation will reduce 

accident rates and may lead some to 

believe that it is possible to eliminate all 

risks, including potential risks, which 

could lead to a release. 

Some commenters noted that the 

requirement will likely cause facilities 

to consider a narrower scope of 

recommendations to avoid making this 

exercise more burdensome. Similarly, 

one commenter expressed concern that 

the proposed requirement will 

discourage facility leaders from pushing 

their PHA/LOPA teams from identifying 

unmitigated hazards to limit the amount 

of information they are required to 

report to EPA. Another commenter 

recommended that EPA make clear that 

an appropriately justified denial during 

initial review of a facility’s RMP plan 

should not have to be re-justified in 

subsequent reviews of the plan. 

ii. EPA Responses 

EPA believes that finalizing the 

hazard evaluation recommendation 

information availability provisions will 

enable the public to ensure facilities 

have conducted appropriate evaluations 

to address potential hazards that can 

affect communities near the fenceline of 

facilities. At this time, EPA is not 

requiring facilities to implement 

practicable recommendations from 

natural hazard, power loss, and siting 

hazard evaluations, as long as facilities 

list in their risk management plans the 

recommendations that were not 

implemented and the justification for 

those decisions. EPA disagrees that the 

requirements are unnecessary and 

provide no benefits. EPA believes the 

requirements are important to help the 

public understand how facilities 

address the hazards that may affect their 

community to keep the risk at or below 

an ‘‘acceptable level,’’ which include 

adherence to RAGAGEP, and the 

reasonable judgments and efforts of 

compliance programs aimed at 

preventing or mitigating accidental 

releases. In response to comments that 

requiring such documentation will not 

reduce accident rates, EPA believes that 

when local citizens have adequate 

information and knowledge about the 

risks associated with facility hazards, 

facility owners and operators may be 

motivated to further improve their 

safety performance in response to 

community oversight. At a minimum, 

better community understanding of 

identified hazards and remedies not 

implemented will promote better 

community emergency planning. 

In response to comments that EPA did 

not consider the costs of preparing 

written justifications for rejected 

recommendations, EPA notes that the 

RIA for the final rule estimates 

anticipated costs for preparing written 

justifications. 

In response to the comments that the 

requirement will discourage facilities 

from considering recommendations and 

identifying unmitigated hazards, EPA 

notes that the hazard evaluation 

requirements for Program 2 (40 CFR 

68.50) and Program 3 (40 CFR 68.67) 

processes remain unchanged—to 

identify, evaluate, and control hazards 

involved in the process, assuring the 

recommendations are resolved in a 

timely manner. When facilities fail to 

conduct these activities, they will not be 

in compliance with the hazard 

evaluation provisions. EPA believes the 

flexibility permitted in hazards 

evaluations, that is, allowing facility 

owners and operators to choose which 

recommendations will be implemented, 

is the best approach for exercising 

reasonable judgement to determine what 

risk reduction measures work best for 

their particular chemical use, process, 

or facility. However, EPA views 

choosing to leave hazards unaddressed 

out of fear of public scrutiny as not 

exercising reasonable judgement, 

particularly when it may leave the 

process more vulnerable to accidental 

releases. 

Methods To Provide Justification 

i. Comments 

A few commenters expressed support 

for using categories, such as those in 

OSHA’s 1994 Compliance Directive,70

for declining to adopt a PHA 

recommendation. One of the 

commenters noted that requiring owners 

and operators to choose one of four preselected categories makes it easier for 

owners and operators to understand and 

comply with their duties. The 

commenter suggested that EPA should 

not include alternative categories or a 

catch-all ‘‘other’’ category because doing 

so would dilute the purpose of the 

amendment by allowing facilities to 

decline recommendations for 

potentially insufficient reasons. Another 

commenter expressed concern that the 

list of possible natural hazards, loss of 

power, and siting evaluation 

recommendations that might not be 

adopted could be expansive; therefore, 

the commenter suggests EPA should 

provide specific categories of 

recommendations for facilities to choose 

from when reporting. 

One commenter recommended that 

the information be presented in a public 

and easily accessible space across many 

different sites and locations. Similarly, 

another commenter suggested that 

owners of RMP facilities should be 

obligated to post hazard-related 

information online and provide a link in 

risk management plans so responders 

and local communities can access this 

information. 

A commenter recommended that EPA 

require owners and operators to include 

not only documentation that one of the 

four justifications is met, but also a 

narrative explaining how the 

documentation shows that the 

justification has been met. Conversely, 

another commenter noted that requiring 

covered facilities to provide declined 

hazard evaluation recommendations in 

narrative form is an unnecessary 

intrusion into internal practices at a 

facility that does not improve that 

facility’s safety. 

One commenter noted that the 

proposed requirement for selection of 

‘‘preselected categories’’ does not 

appear in the proposed regulatory text 

and recommended that if EPA intends 

to make the use of these categories 

mandatory, it must put them into the 

regulatory text. The commenter also 

noted that these categories are good 

conclusions for internal facility 

evaluations that assess complex 

considerations, but they provide little to 

no useful information to LEPCs and 

local communities. 

ii. EPA Responses 

EPA agrees that requiring owners and 

operators to choose one of four preselected categories makes it easier for 

owners and operators to understand and 

comply with their duties and is thus 

finalizing this component in the rule. 

EPA is not requiring narrative 


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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 17643 

71https://www.epa.gov/rmp/rmpesubmit. 

72These changes will be made to the submission 

system prior to the 4-year compliance date as 

described further in section IX.C.8. of this 

preamble. 

73https://www.epa.gov/rmp/rmpesubmit-usersmanual. 

explanations to be reported as there is 

concern that such explanations may be 

greatly inconsistent as they would 

require large amounts of technically 

challenging and varying information to 

be comparably condensed. The Agency 

believes the four pre-selected categories 

ensures a balanced approach to 

providing beneficial data to the public 

as well as a straightforward method of 

reporting for facility owners/operators. 

While EPA is not adding the categories 

to the regulatory text, EPA will plan to 

revise its online RMP submission 

system, RMP*eSubmit,71 to include the 

categories,72 similar to the those in 

OSHA’s 1994 Compliance Directive, 

which will mimic the approach for 

other data components required by 40 

CFR 68.170 and 68.175. Sources will 

therefore be able to update their RMPs 

with the information once the 

additional data field is incorporated into 

the system, and in accordance with 

applicable compliance dates. EPA also 

plans to update the RMP*eSubmit 

User’s Manual 73 to provide guidance for 

entering declined recommendations and 

applying these categories to them. 

B. Safer Technology and Alternatives 

Analysis (STAA) 

1. Summary of Proposed Rulemaking 

a. Definitions, 40 CFR 68.3 

EPA proposed to define ‘‘inherently 

safer technology or design’’ (IST/ISD) to 

mean risk management measures that 

minimize the use of regulated 

substances, substitute less hazardous 

substances, moderate the use of 

regulated substances, or simplify 

covered processes in order to make 

accidental releases less likely, or the 

impacts of such releases less severe. 

EPA also proposed definitions for 

‘‘passive,’’ ‘‘active,’’ and ‘‘procedural’’ 

measures. EPA proposed to define 

‘‘passive measures’’ as risk management 

measures that use design features that 

reduce either the frequency or 

consequence of the hazard without 

human, mechanical, or other energy 

input. EPA proposed to define ‘‘active 

measures’’ as risk management 

measures or engineering controls that 

rely on mechanical, or other energy 

input to detect and respond to process 

deviations. Lastly, EPA proposed a 

definition for ‘‘procedural measures’’ as 

risk management measures such as 

policies, operating procedures, training, 

administrative controls, and emergency 

response actions to prevent or minimize 

incidents. 

Finally, EPA proposed to define 

‘‘practicability’’ as the capability of 

being successfully accomplished within 

a reasonable time, accounting for 

technological, environmental, legal, 

social, and economic factors. 

b. Process Hazard Analysis, 40 CFR 

68.67 

EPA proposed to modify the PHA 

provisions by adding an additional 

paragraph (c)(9) to 40 CFR 68.67 to 

require that the owner or operator of a 

facility with Program 3 processes in 

NAICS codes 324 and 325 located 

within 1 mile of another 324 and 325 

regulated facility process address safer 

technology and alternative risk 

management measures applicable to 

eliminating or reducing risk from 

process hazards. EPA proposed that ‘‘1 

mile’’ be interpreted to mean ‘‘1 mile to 

the nearest fenceline’’ for a facility with 

a NAICS 324 or 325 process. EPA 

proposed to add paragraph (c)(9)(i) to 

specify that the analysis include, in the 

following order, IST or ISD, passive 

measures, active measures, and 

procedural measures. EPA also 

proposed that all facilities with 324 

processes using hydrofluoric acid (HF) 

in an alkylation unit conduct an STAA 

for the use of safer alternatives 

compared to HF alkylation, regardless of 

proximity to another NAICS 324- or 

325-regulated facility process. 

EPA proposed to require owners and 

operators subject to the STAA provision 

to include an evaluation, including the 

results of the STAA analysis, as part of 

the PHA requirements in 40 CFR 

68.67(e). In addition, EPA proposed to 

add paragraph (c)(9)(ii) to require that 

the owner or operator determine and 

document the practicability of the IST 

or ISD considered. This process would 

be separate and additional to the PHA 

requirements in 40 CFR 68.67(e). As part 

of this analysis, owners and operators 

would be required to identify, evaluate, 

and document the practicability of 

implementing inherent safety measures, 

including documenting the 

practicability of publicly available safer 

alternatives. Lastly, EPA proposed to 

add paragraph (c)(9)(iii) to require that 

a facility’s STAA team include, and 

document the inclusion of, one member 

who works in the process and has 

expertise in the process being evaluated. 

In addition to the proposed approach 

to STAA, EPA sought feedback on the 

industry understanding of the 

practicability assessment, and how this 

might differ from the findings identified 

in the PHA, as well as the additional 

benefit of such a provision. EPA 

solicited comment on whether the 

Agency should only require the STAA 

as part of the PHA, without the 

additional practicability assessment. 

EPA also sought comment on other 

alternative approaches considered. One 

approach was applying STAA 

requirements to facility processes in 

NAICS codes 324 and 325 with a 

reportable accident within the last 5 

years. Another approach was applying 

these provisions to all NAICS codes 324 

and 325 facility processes. Lastly, EPA 

sought comment on whether the Agency 

should require implementation of 

technically practicable IST/ISD and 

STAAs. 

c. STAA Technology Transfer, 40 CFR 

68.175(e)(7) 

EPA proposed to add 40 CFR 

68.175(e)(7) to require owners or 

operators to report whether their current 

PHA addresses the STAA requirement 

proposed in 40 CFR 68.67(c)(9), whether 

any IST/ISD was implemented as a 

result of 40 CFR 68.67(c)(9)(ii), and if 

any IST/ISD was implemented, to 

identify the measure and technology 

category. 

2. Summary of Final Rule 

As discussed below, the final rule 

adopts three measures related to STAA: 

a broad requirement to conduct a STAA 

applicable to two sectors, petroleum 

refining (NAICS 324) and chemical 

manufacturing (NAICS 325); a 

requirement to conduct a practicability 

assessment for IST/ISD for a subset of 

facilities with processes in these sectors 

(co-located sources within 1 mile, 

refinery HF alkylation processes, and 

those that have had a reportable 

accident within the 5 preceding years); 

and a requirement for the same subset 

of facilities to implement at least one 

practicable passive measure or similarly 

protective active or procedural 

measure(s) after each STAA. These 

measures also are severable from each 

other. Even without a mandate to 

implement any measures resulting from 

an STAA or to conduct a formal, 

documented practicability assessment, 

an owner or operator of a facility may 

identify and decide to implement new 

prevention measures resulting from the 

STAA. Similarly, even without a 

requirement to implement practicable 

IST/ISD measures or conduct a broader 

STAA review, a practicability 

assessment may lead to the adoption of 

an IST or ISD at the subset of sources 

required to conduct such an assessment. 

Finally, the requirement for a subset of 

sources to implement a passive measure 

or an equally protective active 


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measure(s) or procedural control(s) does 

not depend on whether an IST/ISD 

practicability assessment was performed 

or whether the broader industry is 

performing a STAA. While each of these 

measures relate to STAA generally, they 

are distinct regulatory requirements of 

value independent of each other. 

The Agency acknowledges that, prior 

to this final rule, EPA has not made 

implementation of any IST/ISD or any 

measure identified in a STAA either a 

preferred option at proposal or an 

adopted requirement in a final rule. Our 

prior rulemakings have discussed our 

policy view of the merits of requiring 

implementation. Our prior decisions 

have not questioned what we view to be 

clear on the face of the statute: that the 

CAA authorizes EPA to require 

implementation of IST/ISD and other 

STAA measures. As discussed below 

(section V.B.3—Hydrogen fluoride), 

both subparagraphs (A) and (B) of CAA 

section 112(r)(7) authorize requiring 

implementation of safer technologies, 

and as discussed in the ‘‘safeguard 

implementation’’ section, EPA has 

appropriately justified our change in our 

view of the policy merits of the 

requirement promulgated in this final 

rule. The 2017 amendments rule, the 

2019 reconsideration rule, and the 2022 

SCCAP proposed rule all had vigorous 

discussion of the merits of 

implementing STAA throughout the 

rulemaking process, and the 2022 

SCCAP proposed rule solicited 

comment on whether implementation 

should be required. Therefore, sources 

were on notice that the decision was an 

open matter and any reliance that we 

would not adopt an implementation 

requirement in response to comments 

and data was not reasonable. Moreover, 

to the extent sources relied on our 

preferred option regarding 

implementation at proposal, EPA 

believes the compliance period is 

adequate to allows sources to meet the 

rule requirements. 

Based on comments on both the 

proposed options and the alternative 

approaches presented, EPA is finalizing 

the proposed provisions for STAA with 

the following modifications: 

• Revising 40 CFR 68.67(c)(9) to 

expand the STAA evaluation to all 

regulated facilities with Program 3 

processes in NAICS codes 324 and 325. 

• Revising 40 CFR 68.67(c)(9)(ii) to 

expand the IST/ISD practicability 

assessment to regulated facilities with 

Program 3 processes in NAICS codes 

324 and 325 that also have had at least 

one RMP-reportable accident under 40 

CFR 68.42 since the facility’s most 

recent PHA. 

• Adding 40 CFR 68.67(h) to require 

implementation of at least one passive 

measure at an applicable facility, or an 

inherently safer technology or design, or 

a combination of active and procedural 

measures equivalent to or greater than 

the risk reduction of a passive measure. 

3. Discussion of Comments and Basis for 

Final Rule Provisions 

a. General STAA Provision Comments 

STAA as Part of PHA 

i. Comments 

A couple of commenters stated that 

they support EPA’s proposal that 

owners and operators of RMP-covered 

facilities be required to include 

consideration and documentation of the 

feasibility of applying safer technologies 

and alternatives in their PHAs. One of 

the commenters noted, however, that 

only doing STAAs within the PHA will 

limit the effectiveness of the 

evaluations, and therefore, STAA 

should be evaluated within the PHA 

process as well as outside of the PHA in 

a separate study to evaluate each 

existing process. 

Some commenters expressed 

opposition to EPA requiring a 

mandatory STAA component in the 

PHA. A few commenters noted that 

mandating a full IST or ISD review 

would require a completely different 

PHA team, extensively increase the time 

and resources necessary to complete a 

PHA, require the PHA team to perform 

hazard assessments of ever-changing 

technology they may not be familiar 

with, and dilute a PHA’s core purpose. 

One commenter noted that the 

proposed rule’s STAA requirements do 

not acknowledge the value of the PHA 

risk assessment function. Another 

commenter stated that the analysis of 

passive measures, active measures, and 

procedural measures already occurs as 

part of the PHA, as required by 40 CFR 

68.67(c)(3) and (4) and (6) and (7), and 

no modification of the current 

regulations is thus required to ensure 

that this analysis occurs. The 

commenter added that STAA 

requirements will detract from and 

reduce the effectiveness of PHAs as it 

will divert resources from PHA 

processes that are currently working 

well at regulated facilities. The 

commenter noted the effectiveness of a 

PHA depends heavily upon the 

availability of high-quality process 

safety information (PSI), yet the 

proposed rule provides no direction on 

how the PHA team is to assemble the 

PSI needed to perform the STAA. The 

commenter explained that facilities 

would not normally have information 

about processes not in use there. The 

commenter added this detracts from the 

PHA focus on existing facility processes 

and potentially reduces the 

effectiveness of the analysis. 

ii. EPA Responses 

EPA believes that STAA analysis can 

be incorporated in the existing RMP 

PHAs by using PHA techniques such as 

the Hazard and Operability Study, 

What-If? Method, checklists, a 

combination of these, or other 

appropriate equivalent methodologies. 

(See 40 CFR 68.67(b)) These techniques 

themselves are not requirements, but 

tools available to help the facility owner 

or operator to identify, evaluate, and 

control the hazards involved in the 

process. The Agency also notes that, 

when EPA previously considered an IST 

requirement, commenters noted that 

‘‘PHA teams regularly suggest viable, 

effective (and inherently safer) 

alternatives for risk reduction,’’ and 

EPA observed that ‘‘good PHA 

techniques often reveal opportunities 

for continuous improvement of existing 

processes and operations’’ (61 FR 

31699–700). 

Therefore, EPA agrees with 

commenters expressing support for 

including a STAA in the PHA and 

disagrees with commenters that argue it 

is not appropriate to include a STAA in 

the PHA. In fact, the RMP PHA 

requirements include other aspects of 

analysis that are typically associated 

with process design. For example, the 

PHA must also address stationary 

source siting issues, which involve the 

location and proximity of the source 

relative to local populations. 

Nevertheless, EPA agrees that for 

situations where a STAA involves a 

novel process that is entirely different 

from the current process, the process 

design must exist or be developed 

within the industry, and PSI be 

compiled, to conduct a PHA for this 

new process. EPA does not expect 

facility owners or operators to research 

and create new processes or conduct 

research into all possibilities for the use 

of new chemicals. Instead, the STAA 

should focus on the industry known and 

existing substitute processes and 

chemicals that have been demonstrated 

to be safe in commercial use. 

If a facility is considering an IST 

chemical substitution or process change 

from their STAA that involves a 

significant redesign of their process, 

such efforts involved with redesign and 

its evaluation may need to be 

undertaken as part of a practicability 

study. The definition of practicability 

allows for consideration of 

technological factors, which could 

include whether the potential safer 


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74EPA estimated monetized damages from RMP 

facility accidents of $540.23 million per year. 75Marsh JLT Specialty, ‘‘100 Largest Losses in the 

Hydrocarbon Industry,’’ 27th Edition, March 2022. 

Accessed from https://www.marsh.com/uk/ 

industries/energy-and-power/insights/100-largestlosses.html. Marsh provides estimates of large 

property damage losses in the hydrocarbon industry 

from 1974 to 2021 in current and 2021 dollars and 

in a few cases, business loss costs. 

alternative can be designed and 

operated to meet the process functions 

needed. However, not all IST involves 

substituting a chemical or an entirely 

new process. Also, there are other types 

of IST measures (minimization, 

moderation, or simplification) that can 

be considered to address various points 

within the current process where 

hazards and risks exist. 

Facilities may, if desired, conduct a 

separate STAA analysis of each entire 

process, outside of the PHA process, as 

long as it is done in the same timeframe 

as the PHA, and the results are 

documented. If a facility does not have 

staff capable to identify and evaluate 

alternatives, the facility owner or 

operator may obtain outside assistance 

from engineering firms or consultants. 

Furthermore, the Agency has accounted 

for the technical capabilities of facilities 

in the sectors targeted for STAA when 

determining reasonable requirements 

that provide for the prevention of 

accidents to the greatest extent 

practicable. 

Due to the performance-based 

approach of the current RMP PHA 

requirements at 40 CFR 68.67(c)(3), to 

identify, evaluate, and control the 

hazards involved in the process, EPA 

believes some facilities may have 

already performed a STAA-type analysis 

as part of their PHA. If the facility has 

already performed such STAA analysis 

in the past, then the owner or operator 

should consider these analyses when 

updating or revalidating their PHAs and 

determine whether there is new 

information that should be considered 

as part of conducting the current STAA. 

Costs and Benefits of Implementing 

STAA as Part of PHA 

i. Comments 

A couple of commenters stated that 

the STAA provisions would not be costeffective. The commenters stated that 

the STAA represents 70 percent of the 

total costs EPA estimated apply to the 

proposed rule. The commenters noted 

that the proposed STAA requirement is 

solely for consideration of possible 

alternatives and has unproven and 

unquantified benefits that do not justify 

the annual cost of $51.8 million. One of 

the commenters added that EPA stated 

that they expect ‘‘some portion of future 

damages would be prevented through 

implementation of a Final Rule,’’ but 

they did not identify any benefits 

specifically tied to the STAA provision. 

The commenter stated that there is 

consensus on the theoretical value of 

STAA as a tool to inform future 

investment decisions and said that once 

a facility has committed to a particular 

production technology, STAA is not 

particularly useful nor informative. In 

contrast, another commenter stated that 

the costs of transitioning to safer 

alternatives are not sufficiently weighed 

against the costs of a major incident. 

The commenter provided an example 

that indicates that safety improvements 

could avoid major incidents costing 

owners $220 million on average. The 

commenter also noted that this figure 

does not include costs to society, such 

as human lives, economic stress, and 

health care and emergency service costs. 

ii. EPA Responses 

EPA disagrees that the benefits of the 

STAA requirements do not justify the 

costs. EPA believes that the STAA 

should identify potential IST process 

changes that, if implemented, would 

result in owners or operators using less 

hazardous substances, minimizing the 

amount of regulated substances present 

in a process, moderating process 

conditions and reducing process 

complexity. The STAA also should 

identify potential passive, active, or 

procedural safeguards that, when 

implemented, will result in changes to 

make processes safer. Such changes 

help reduce the prevalence of higher 

risk processes and thereby prevent 

accidents by either: (1) Eliminating the 

possibility of an accidental release 

entirely, by making a process more 

fault-tolerant, such that a minor process 

upset, or equipment malfunction does 

not result in a serious accidental release; 

and (2) reducing the severity of releases 

that do occur. 

RMP accident data show past 

accidents have generated highly variable 

impacts, so the impacts of future 

accidents are difficult to predict. 

Nevertheless, it is clear from RMP 

accident data 74 and other data from 

RMP regulated industry sectors,75 that 

chemical accidents can impose 

substantial costs on firms, employees, 

emergency responders, the community, 

and the broader economy. Because 

major and other concerning RMP 

accidents continue to occur, by lowering 

risk of accidents, the benefits include: 

reductions in the number of fatalities 

and injuries both onsite and offsite and 

residents evacuated or otherwise 

inconvenienced by sheltering in place; 

reductions in the damage caused to 

property onsite and offsite of the facility 

including damages to product, 

equipment, and buildings; reductions in 

damages to the environment and 

ecosystems; and reductions in resources 

diverted to extinguish fires and clean up 

affected areas. Preventing serious 

accidents avoids numerous direct costs, 

including worker, responder, and public 

fatalities and injuries, public 

evacuations, public sheltering in place, 

and property and environmental 

damage. It also avoids indirect costs, 

such as lost productivity due to lost or 

damaged property and business 

interruption both onsite and offsite, 

expenditure of emergency response 

resources and attendant transaction 

costs, and reduced offsite property 

values. Actions that prevent or reduce 

the severity of accidents in RMPcovered processes are also likely to 

prevent or mitigate non-RMP accidents 

at the same facilities because the same 

or similar actions can be taken for 

processes and equipment not subject to 

the regulation, often at minimal 

additional cost. 

Further, for IST/ISD practicability and 

implementation of certain measures, 

EPA recognizes facilities will most 

likely implement IST/ISD when an IST/ 

ISD’s net cost is less than a passive 

measure’s cost. The Agency assumes 

owners and operators will likely explore 

specific benefits to their facility when 

making decisions and expects the 

evaluation to consider several factors, 

such as: 

• Operating and Maintenance (O&M) 

cost—IST/ISD may have a change in 

O&M costs compared to passive 

measures. For example, chemicals used 

in the process may change, which could 

cause changes in recurring input costs, 

including potentially lower those costs. 

• Productivity improvements—IST/ 

ISD could result in productivity 

improvements from more efficient 

process and changes to input costs. 

• Safety improvements—IST/ISD may 

reduce risks of an accident more than 

would a passive-equivalent measure. A 

lower accident risk will result in facility 

safety benefits and social benefits from 

fewer accidents. 

• Capital/facility reduced losses— 

Similar to safety, a lower accident risk 

will reduce losses to capital as well as 

shorter than expected facility shutdown 

time from accidents. 

These facility specific factors will 

further help owners and operators 

justify identify facility-specific benefits 

associated with the costs to comply with 

this provision. EPA continues to believe 

the performance-based nature of both 

this provision and the overall rule allow 

facility owners and operators the 


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76This is further discussed in greater detail in 

Chapter 6 of the RIA. 

77EPA, Hydrogen Fluoride Study, Report to 

Congress section 112(n)(6) Clean Air Act As 

Amended, https://nepis.epa.gov/Exe/ZyPDF.cgi/ 

10003920.PDF?Dockey=10003920.PDF. 

78API, Recommended Practice 751 (2021), 

https://www.api.org/oil-and-natural-gas/healthandsafety/refinery-and-plant-safety/process-safety/ 

process-safety-standards/rp-751. 

discretion to determine which IST/ISDs 

and passive, active and procedural 

safeguard measures work best for their 

particular chemical use, process, or 

facility and for protecting the 

community potentially affected. 

EPA disagrees that the benefits of the 

STAA requirements are unproven. Since 

1996, EPA has seen that advances in 

ISTs and safer alternatives are becoming 

more widely available and are being 

adopted by some companies. Voluntary 

implementation of some ISTs has been 

identified through surveys and studies 

and potential opportunities have been 

identified through EPA enforcement 

cases and the U.S. Chemical Safety and 

Hazard Investigation Board (CSB) 

incident investigations. As discussed in 

the 2017 amendments rule (82 FR 4645, 

Jan. 13, 2017), the Contra Costa County 

Health Services and New Jersey 

Department of Environmental Protection 

(NJDEP) IST regulations have resulted in 

some facilities adopting IST measures. 

EPA disagrees that STAA is not useful 

or informative for facilities that have 

committed to a particular production 

technology. Innovations and research in 

chemical process safety have evolved 

and continue to evolve. For those 

facilities who have not considered 

adopting any IST or have only done so 

in limited fashion, EPA believes that 

there is value in requiring facilities with 

regulated substances to evaluate 

whether they can improve risk 

management of current hazards through 

potential implementation of ISTs or risk 

management measures that are more 

robust and reliable than ones currently 

in use at the facility. For those facilities 

who have already considered IST, EPA 

believes facilities should re-evaluate 

whether any improvements in hazard or 

risk reduction can be made. 

In response to the comment that EPA 

did not identify any benefits specifically 

tied to the STAA provision, EPA was 

able to qualitatively judge that the risk 

reduction from STAA implementation 76

reasonably justified the costs. In 

principle, the STAA eliminates or 

minimizes the opportunities for a 

chemical release because identification 

and implementation of ‘‘safer’’ 

technologies and alternatives, should 

result in a hazard or risk reduction for 

a particular RMP chemical or process. 

EPA recognizes that neither IST nor 

other procedural, active, or passive 

measures alone will eliminate all 

hazards or risks and that reliance on a 

combination of risk reduction measures 

will probably be needed for other points 

in a process. 

Hydrogen Fluoride 

i. Comments 

Some commenters were concerned 

that the proposed rule leaves the 

continued use of HF up to owners/ 

operators. A few commenters urged EPA 

to strengthen the proposed rule by 

requiring facilities to switch from HF or 

other acutely toxic substances to a safer 

alternative whenever feasible, since 

safer alternatives are available. One of 

the commenters noted the CSB’s 2022 

report recommendations that HF in 

remaining alkylation units in the U.S. be 

eliminated and replaced, if necessary, 

with less hazardous chemicals that are 

consistent with ISD. One commenter 

requested that safer alternatives to HF 

be implemented across all oil refineries 

in the U.S. 

One commenter stated that the 

proposed rule was not comprehensive 

enough to adequately mitigate the 

inherent risks associated with using HF. 

The commenter stated that asking these 

facilities to merely consider switching 

from HF alkylation to safer alternatives 

and requiring them to include an STAA 

as part of their PHA was not enough to 

eliminate the inherent risk of having HF 

onsite. A couple of commenters 

recommended that the use of HF in 

refineries be banned. One of the 

commenters urged EPA to establish an 

aggressive timeline to phase out HF’s 

use and said that further study is a 

waste of time. Another commenter 

contended that adding a larger scale ban 

of HF across all the oil refineries in the 

U.S. would safeguard millions of 

Americans from facing disaster in the 

event of an accidental release. Several 

commenters stated that the history of 

HF use and accidents supported the 

idea that stronger EPA action was 

necessary to protect communities. 

Several commenters stated a range of 

concerns regarding the dangers of HF. A 

few of the commenters specifically 

noted near misses or releases of HF and 

their associated harms and costs. One 

commenter noted the dangers of HF and 

the risks to communities, workforces, 

wildlife, hospitals, and first responders. 

Another commenter noted the risk of a 

catastrophic event caused not only by 

accidents and human error, but also 

from terrorism and natural disasters, 

which the commenter claimed cannot 

be mitigated. One commenter noted that 

earthquakes could cause the release of 

HF from refineries. One commenter 

noted the prevalence of refineries using 

HF near urban centers. Another 

commenter noted their concerns 

regarding the hazards of HF, specifically 

the dangers for nearby school children 

and a lack of emergency preparedness in 

schools. 

Conversely, one commenter urged 

EPA not to advance requirements 

specific to HF alkylation units. The 

commenter claimed that EPA has no 

legal authority to mandate STAA on 

existing processes and that the proposed 

STAA requirements on all HF alkylation 

processes at petroleum refineries are 

arbitrary and unlawful. The commenter 

claimed that EPA did not provide a 

meaningful account of the benefits 

associated with this requirement, failed 

to state specifically how this 

requirement would fulfill any statutory 

requirements of the RMP, and has little 

or no data to support its proposal. The 

commenter further claimed that the data 

indicates that the industry is safely 

managing the risks with HF. 

One commenter claimed that data 

show that HF alkylation processes are 

well managed by refiners. The 

commenter noted EPA’s 1993 report on 

HF 77 and the continuous improvement 

of industry-developed HF management 

policy American Petroleum Institute 

(API) Recommended Practice 751, ‘‘Safe 

Operation of Hydrofluoric Acid 

Alkylation Units’’ (RP 751).78 The 

commenter stated that RP 751 is 

recognized by OSHA and the CSB as 

providing effective guidance for the safe 

operation of HF alkylation units and 

management of HF catalyst. The 

commenter claimed that there have 

never been life-threatening injuries to 

people in surrounding communities 

stemming from HF-related incidents at 

refineries, which the commenter noted 

was because of multiple layers of 

mitigation technologies and emergency 

procedures. The commenter claimed 

that the benefits of STAA are flawed 

because the commenter noted that EPA 

failed to consider the measures taken at 

facilities that follow or audit against RP 

751. 

ii. EPA Responses 

EPA notes that HF is an extremely 

toxic chemical used for alkylation at 27 

percent of facilities in NAICS 324 (45 of 

163). EPA is requiring that all HF 

alkylation processes at petroleum 

refineries (NAICS 324) conduct an 

initial STAA evaluation, a practicability 

assessment for IST/ISD, and 


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79H.R. Rep. No. 101–952 (1990) (Conf. Rep.). 

80S. Rep. No. 101–228 (1989). 

implementation of at least one passive 

measure (or combination of active or 

procedural measures equivalent to the 

risk reduction of a passive measure), 

primarily due to recent incidents where 

HF was nearly released when there were 

explosions, fires, and other releases that 

could have triggered releases of HF. 

While API RP 751 offers industry 

guidance to help safely manage HF 

alkylation process and its hazards, those 

process hazards still exist. In contrast, 

there are recognized potentially safer 

chemical alternatives available for HF 

alkylation that have been successfully 

implemented by refineries, such as 

sulfuric acid alkylation, ionic liquid 

alkylation, or solid acid catalyst 

alkylation. These eliminate the hazard. 

With several known alternatives and 

with recent incident history, EPA 

believes the process of HF alkylation 

merits a rule-based prevention approach 

rather than only selective oversight. In 

response to the comments urging EPA to 

require facilities to switch from HF to a 

safer alternative whenever feasible, the 

practicability of these potentially safer 

alternatives is situation-specific, and 

owners and operators are usually in the 

best position to make these 

determinations. 

EPA summarized its legal authority 

for the various provisions of this final 

rule in the preamble to the proposed 

rule, specifically identifying STAA as a 

prevention measure authorized under 

CAA section 112(r)(7) (87 FR 53563–64, 

Aug. 31, 2022). EPA’s legal authority to 

require an STAA evaluation and 

implementation of reasonable STAA 

measures is well-established under both 

paragraphs (A) and (B) of CAA section 

112(r)(7). In authorizing rules for the 

prevention of accidental releases of 

regulated substances, subparagraph (A) 

of section 112(r)(7) specifically allows 

for rules that address design, 

equipment, and operations while 

permitting EPA to distinguish among 

classes of facilities based on factors 

‘‘including, but not limited to . . . 

location [and] process.’’ This language 

authorizes EPA to put restrictions on 

and impose requirements for 

permissible design of a process and the 

types of equipment used as well as 

continuing operation of such designs 

and technologies. With respect to HF 

alkylation processes, not only does the 

statute authorize consideration of 

location when identifying classes to 

regulate, it also provides that EPA may 

consider the ‘‘potency of substances’’ 

when making distinctions among 

facilities that are covered by regulations 

under section 112(r)(7)(A). As discussed 

in the proposed rule, HF is a 

particularly potent regulated substance. 

87 FR 53576 (Aug. 31, 2022). 

In addition to the authority granted by 

subparagraph (A), the authority in 

subparagraph (B) to develop ‘‘reasonable 

regulations [that] provide, to the greatest 

extent practicable, for the prevention 

and detection of accidental releases’’ 

authorizes reasonable regulations to 

mandate examination of potential 

methods to prevent releases, to examine 

the practicability of alternative designs 

and technologies, and to require 

adoption of release prevention measures 

when practicable. Many of the same 

terms appear in both subparagraph (B)(i) 

as in subparagraph (A)—the 

requirement to cover ongoing 

operations, the authority to recognize 

‘‘differences in . . . operations, 

processes and class . . . of sources,’’ 

while also granting authority to regulate 

‘‘use’’ of regulated substances. 

Subparagraph (7)(B)(ii) authorizes rules 

to ‘‘minimize’’ accidental releases, 

which encompasses a mandate to 

implement practicable passive 

mitigation measures or their equivalent 

active and procedural measures. STAA 

is a ‘‘safety precaution’’ under the 

prevention program. CAA 

112(r)(7)(B)(ii)(II). 

As noted in the 2017 amendments 

rule (82 FR 4630, Jan 13, 2017), both the 

Conference Report for the 1990 CAAA 79

and the 1989 Senate Report related to 

the CAAA 80 provide substantial 

support for the concepts of STAA. The 

Conference Report included support for 

‘‘a review of the efficacy of various 

prevention and control measures, 

including process changes or 

substitution of materials’’ (Conference 

Report pp. 340–41). Further, the Senate 

Report supported ‘‘release prevention 

measures’’ that contemplate IST and 

STAA (Senate Report p. 242). While 

neither the 1996 RMP rule nor the 2019 

reconsideration rule required IST or 

STAA, neither action based those 

decisions on a lack of authority under 

CAA section 112(r)(7) to require 

examination of safer alternatives at 

either existing or new processes. 

Furthermore, in discussing the 

purpose of the chemical accident 

provisions, the Senate Report identified 

a preference for measures that promote 

safer technologies to those that merely 

mitigate or respond to releases (pp. 208– 

209): 

Systems and measures which are 

effective in preventing accidents are 

preferable to those which are intended 

to minimize the consequences of a 

release. Measures which entirely 

eliminate the presence of potential 

hazards (through substitution of less 

harmful substances or by minimizing 

the quantity of an extremely hazardous 

substance present at any one time), as 

opposed to those which merely provide 

additional containment, are the most 

preferred. 

The Senate Report is entirely 

consistent with a preference for the 

hierarchy of controls that forms the 

basis of STAA. 

b. STAA Evaluation 

Applicability 

i. Comments 

Several commenters recommended 

that EPA expand STAA requirements to 

cover more facilities. Some of the 

commenters highlighted that the 

proposed rule would only require 

approximately 5 percent of RMP 

facilities to conduct STAAs, which is a 

small subset of facilities. Some of the 

commenters suggested EPA require all 

RMP facilities to develop a hierarchy of 

hazard controls in sequence and priority 

order to eliminate risks of catastrophic 

releases. One commenter noted that 

EPA has failed to justify excluding any 

refineries, chemical manufacturing 

plants, pulp/paper mills, wastewater 

treatment, agricultural chemical or 

fertilizer plants, or thousands of other 

hazardous facilities where safer 

technologies are available. 

One commenter claimed that there 

was no valid justification not to require 

a refinery or chemical manufacturer to 

assess IST and consider ways to operate 

more safely simply because it was not 

within 1 mile of another refinery or 

chemical plant. The commenter claimed 

that the 1-mile radius restriction was 

unworkable as well as unjustifiable and 

that it was unclear how to determine the 

distance restriction. The commenter 

stated that a 1-mile radius restricted the 

likely impact area for severe hazards 

and releases from refineries and 

chemical plants especially for 

communities where there are many 

facilities within a 1-to-10-mile radius 

that can impact health, the ability of 

communities to evacuate, and the ability 

of first responders to assist. The 

commenter additionally noted that a 

hurricane, flooding, wildfire, or 

earthquake tended to have impacts 

greater than a 1-mile radius. 

Several commenters stated that the 

use of the 1-mile distance from 

fencelines instead of process location is 

unreasonable as there are facilities that 

have processes hundreds of yards from 

their fenceline. The commenters 

suggested that this additional distance 

should be accounted for in this 


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17648 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

81Such data are also consistent with accident 

frequency data that formed part of the basis for the 

STAA applicability provisions in the 2017 

amendments rule. See 81 FR 13668–69, March 14, 

2016 (amendments rule NPRM); 82 FR 4632–34, 

January 13, 2017. 

82 Due to a lack of alternative data describing 

RMP accident impacts more comprehensively, EPA 

chose this five-year dataset to reflect the most 

recent trends regarding RMP accidents. EPA used 

the August 1, 2021, version of the RMP database to 

complete its analysis because under 40 CFR 

68.195(a), facilities are required to report RMP 

accidents and specific associated information 

within six months to the RMP database. Therefore, 

the RMP database as of August 1, 2021, is expected 

to include RMP accidents and their specific 

associated information as of December 31, 2020. 

However, because accident data are reported to the 

RMP database by facility owners and operators, 

EPA acknowledges the likelihood of late-reported 

accidents affecting these last few years of data 

because some facilities may have not reported their 

RMP accidents as they are required to do. See 

sections 3.2 and 3.3 of the RIA for more on this and 

other limitations on the number and costs of 

baseline accidents. 

83The list of these accidents and their details can 

be found in the Technical Background Document 

for Notice of Proposed Rulemaking: Risk 

Management Programs Under the Clean Air Act, 

section 112(r)(7); Safer Communities by Chemical 

Accident Prevention (April 19, 2022), Appendix A, 

https://www.regulations.gov/document/EPA-HQOLEM-2022-0174-0065. These accidents are 

specifically identified in Column BZ. 

provision and requested that EPA use 

distances between the covered processes 

at the adjacent stationary source as 

opposed to fencelines. 

A couple of commenters stated that 

STAA is inappropriate and costprohibitive for existing processes. These 

and other commenters urged that EPA 

should limit any STAA requirement to 

the design and development phases of 

new processes. A couple of commenters 

stated that the reasons different 

technologies are not implemented after 

a facility is already built are complex— 

ranging from chemical production or 

storage capability to life expectancy of 

operating equipment, capital 

expenditures, and market demands. 

Some commenters noted that EPA does 

not have the statutory authority under 

CAA section 112(r) to impose facility 

design requirements at any stage of a 

regulated facility’s lifespan, much less 

for existing facilities. 

A couple of commenters noted that 

the considerations of STAA would have 

little relevance among the diverse 

processes, formulations, and 

applications relevant to the fertilizer 

industry, specifically. The commenters 

added that forcing companies to 

incorporate this ill-fitting approach in 

their PHAs would lead to higher RMPcompliance costs that would be passed 

on to farmers and consumers. One of the 

commenters further added these 

increased costs provide no benefit to the 

communities in which regulated 

facilities are located. 

ii. EPA Responses 

EPA agrees in part with commenters 

requesting that the applicability of the 

STAA provision be expanded to apply 

to more facilities compared to the 

requirements included in the proposed 

rule. In this final rule, EPA is expanding 

the initial STAA evaluation to all 

Program 3 facilities with NAICS 324 and 

325 processes. EPA believes that high 

RMP accident frequency among NAICS 

324 and 325 processes as shown by 

recent data 81 presented in the proposed 

rule, is reasonable justification for 

requiring RMP owners and operators to 

evaluate safer technologies and 

alternatives to help prevent accidental 

releases. As noted in the proposed rule, 

between 2016 and 2020,82 sector 

accident rates (unique facilities having 

accidents) for NAICS 324 and 325 were, 

respectively, seven times higher (23 

percent, n = 41 out of 177) and two 

times higher (6 percent, n = 96 out of 

1631) than the rate for all RMPregulated facilities (87 FR 53578).83 By 

expanding applicability of the STAA 

evaluation to these additional NAICS 

324 and 325 processes, EPA expects to 

also capture complex facilities in less 

facility-dense areas that nonetheless 

may cause significant harm to human 

health and the environment. 

In response to the comment stating 

that EPA has failed to justify excluding 

any hazardous facilities where safer 

technologies or alternatives are 

available, EPA notes that it has provided 

justification for applying the STAA 

requirement to facilities with NAICS 

324 and 325 processes and does not 

believe that the final provisions have 

been limited arbitrarily, or that the 

Agency’s decision to limit applicability 

of the STAA provisions to the 

petroleum refining and chemical 

manufacturing sectors implies that other 

sectors do not have viable safer 

technology alternatives. EPA notes that 

sources involved in complex 

manufacturing operations have the 

greatest range of opportunities to 

identify and implement safer 

technologies, particularly in the area of 

inherent safety, because these sources 

generally produce, transform, and 

consume large quantities of regulated 

substances under sometimes extreme 

process conditions and using a wide 

range of complex technologies. 

Therefore, such sources can often 

consider the full range of inherent safety 

options, including minimization, 

substitution, moderation, and 

simplification, as well as passive, active, 

and procedural measures. Further, EPA 

notes that RMP facilities in the selected 

sectors have been responsible for a 

relatively large number of accidents, 

deaths, injuries, and property damage 

and have significantly higher accidents 

rates as compared to other sectors. The 

5 percent of sources mentioned by the 

commenter, augmented by those 

refineries and chemical manufacturer 

sources that have had accidents in the 

past 5 years, are responsible for 42% of 

the total accidents from RMP-covered 

sources over the period from 2016– 

2020, and 83% of the accident damage. 

Concentrating the most demanding 

requirements on this subset of sources 

recognizes the track record of 

heightened risk presented by these 

sources to their nearby communities. 

While EPA is not requiring all 

Program 3 sources, or all sources in 

industry sectors where feasible safer 

technology alternatives have been 

identified to perform a STAA, the 

Agency encourages such sources to 

consider performing a STAA, and to 

determine practicability of IST or ISD 

considered, even if they are not subject 

to the STAA provisions of the final rule. 

EPA expects guidance for this provision 

and the data resulting from the STAA 

Technology Transfer described in 

section e. of this section will be useful 

for all facilities to adopt to identify 

potential IST/ISD and safeguards. As 

noted in the preamble of the 2016 

proposed amendments rule, provisions 

in the existing rule provides several 

incentives to encourage the use of STAA 

and the adoption of safer technologies, 

including having applicability based on 

a chemical threshold, allowing a source 

to take credit for passive mitigation in 

calculating its worst-case scenario and 

both passive and active controls when 

calculating its alternative scenarios (81 

FR 13663, Mar. 14, 2016). Consistent 

with EPA’s general approach to the RMP 

regulations, the Agency allows 

flexibility for owners and operators to 

adopt various methods to meet 

performance standards, with more 

specific, demanding standards for 

sources that pose a greater likelihood of 

an accidental release and have greater 

complexity, and for sources that pose a 

greater risk to nearby communities. 

In the final rule, the definition of the 

1-mile radius is relevant to the 

applicability of the IST/ISD 

practicability assessment and safeguard 

implementation only. Acknowledging 

that refineries and chemical 

manufacturers have sector accident rates 

that are higher than the general rates for 

RMP-covered facilities, close co-location 

of sources in NAICS codes 324 and 325 

further increases the risk to the public 

that may be potentially exposed to a 


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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 17649 

84Regulatory Impact Analysis: Safer 

Communities by Chemical Accident Prevention: 

Final Rule. This document is available in the docket 

for this rulemaking (EPA–HQ–OLEM–2022–0174). 

release from multiple sources. It is 

appropriate to increase the stringency 

and transparency of the requirement for 

so situated sources. Discussion of the 

application of the 1-mile criteria is later 

discussed in the Practicability 

Assessment and Safeguard 

Implementation sections of this 

preamble. 

In response to the comments that the 

STAA requirement should be limited to 

the design and development phases of 

new Program 2 and Program 3 

processes, EPA disagrees. While the 

greatest potential opportunities for 

using IST may exist early in process 

design and development, many IST 

options may still be practicable after the 

initial design phase. Furthermore, 

STAA involves more than just IST. Safer 

technology alternatives also include 

passive measures, active measures, and 

procedural measures, and these 

measures can be modified and improved 

after the initial design of a facility. EPA 

notes that while many RMP-regulated 

facilities were originally constructed 

decades ago, major enhancements have 

been reported in some plants that have 

been operating for many years. 

Moreover, to the extent that particular 

measures are cost-prohibitive, the rule 

allows for that to be a factor in assessing 

whether a measure is practicable. 

The Agency disagrees with the 

comments that the CAA does not 

authorize the STAA provisions of this 

final rule. Both paragraphs (A) and (B) 

of CAA section 112(r)(7) authorize 

STAA and IST in particular. EPA cited 

all of section 112(r)(7) as authority for 

‘‘[e]ach of the portions of the Risk 

Management Program rule we propose 

to modify’’ (81 FR 13646, March 14, 

2016). The authority section for 40 CFR 

part 68 references CAA section 112(r) 

and is not limited to particular 

paragraphs. The proposed rule also 

noted that paragraph 112(r)(7)(A) had 

been invoked in the rulemaking petition 

on IST. Therefore, EPA provided 

sufficient notice that the Agency 

contemplated action under any 

authority under CAA section 112(r)(7). 

Nevertheless, EPA also views its 

authority to require STAA assessments 

or an IST review, or implementation of 

safeguards to reduce risk as being 

consistent with paragraph 112(r)(7)(B). 

Under paragraph (B), EPA has authority 

to develop ‘‘reasonable regulations . . . 

for the prevention of accidental 

releases.’’ The reduction in severity of 

conditions in a process plainly impacts 

the accidental release conditions and 

thus the modeling called for in section 

112(r)(7)(B)(ii)(I). Moreover, section 

112(r)(7)(B)(ii)(II) specifically mentions 

that prevention programs in risk 

management plans shall provide for 

‘‘safety precautions;’’ STAA measures 

are a type of safety precaution. Finally, 

as noted above, the Conference Report 

for the 1990 CAAA and the Senate 

Report both demonstrate that Congress 

intended the regulations to prioritize 

STAA as a prevention measure. 

With regard to comments relating to 

STAA requirements for the fertilizer 

industry, EPA is not requiring 

agricultural fertilizer retail facilities to 

perform a STAA, and thus there should 

be no burden to this particular industry 

as a result of the STAA provision. The 

STAA requirement in the PHA will only 

apply to Program 3 facilities in chemical 

manufacturing (NAICS code 325) and 

petroleum and coal products 

manufacturing (NAICS code 324). 

c. Practicability Assessment 

i. Comments 

One commenter expressed support for 

EPA’s proposal to require owners and 

operators to identify, evaluate, and 

document the practicability of 

implementing inherent safety measures, 

including documenting the 

practicability of publicly available safer 

alternatives. Another commenter stated 

that EPA should include the STAA 

practicability assessment as part of the 

PHA because such an assessment will 

provide additional context to the public, 

local officials, and emergency managers 

regarding a facility’s consideration of 

risk management. The commenter 

added that the assessment should be 

used internally by the facility to plan 

future process and technology 

improvements to increase safety. One 

commenter urged EPA to move beyond 

just the assessment and reporting of 

safer technologies and require that 

facilities implement the identified 

alternatives when practicable, working 

with employees and communities to do 

so expeditiously. 

One commenter opposed the 

proposed new 40 CFR 68.67(c)(9)(ii) and 

stated that EPA should not adopt the 

proposed practicability assessment 

requirement. The commenter expressed 

opposition to any requirement to 

consider IST in existing processes at 

covered stationary sources. A couple of 

commenters questioned how EPA, 

focused on process safety, would be able 

to assess social and economic factors as 

part of the PHA STAA component. The 

commenters noted that the 

consideration of ‘‘social’’ factors extend 

far beyond the traditional, performanceoriented ‘‘process safety’’ scope of a 

PHA, presenting a conflict with the 

scope of the PHA required by the OSHA 

PSM standard. The commenters also 

noted that EPA’s ‘‘practicability’’ 

definition and evaluation does not 

distinguish between technologies or 

practices that have been proffered in 

research papers or demonstrated in pilot 

plants versus at the large-scale facilities 

subject to the RMP and required to 

perform a STAA. The commenters 

emphasized that ‘‘real-world’’ 

technologies should be the focus of the 

STAA, not theoretical or possible 

technologies that have not been tested 

or tried at RMP-regulated sources. 

ii. EPA Responses 

In this final rule, EPA is expanding 

the applicability of the IST/ISD 

practicability assessment to apply to 

more facilities compared to the 

requirements included in the proposed 

rule. The IST/ISD practicability 

assessment will also apply to the owner 

or operator of a facility with Program 3 

processes in NAICS codes 324 and 325 

that has had an accidental release that 

meets the accident history reporting 

requirements under 40 CFR 68.42 since 

the facility’s most recent PHA. As EPA 

noted in the 2019 reconsideration rule, 

a past accident is one of the best 

predictors of future accidents that could 

potentially threaten a facility’s nearby 

community. Additionally, as indicated 

in the proposal, of the 70 facilities 

experiencing 2 or more incidents 

between 2016 and 2020, 43 (60 percent) 

were in NAICS 324 and 325. The 

facilities required to conduct 

practicability assessments for IST/ISDs 

identified in the STAA accounted for 

42% of all accidents and 83% of the 

cost of accidents among all RMP 

facilities during the period from 2016– 

2020.84 A more in-depth look at 

implementation of IST/ISD by: (1) These 

facilities with accidents; (2) those 

identified in the proposal at facilities 

with processes in NAICS 324 and 325 

located within 1 mile of another NAICS 

324 or 325 facility; (3) and facilities 

with hydrofluoric alkylation, should 

lead to avoiding or reducing hazards at 

these facilities. At this time, EPA 

believes it is best to further focus the 

practicability assessment of IST/ISD on 

this subset of facilities as they present 

an even more heightened risk to a 

facility’s surrounding community than 

other facilities with NAICS 324 and 325 

processes. 

EPA agrees that the practicability 

assessment will provide the public and 

local emergency managers with 

important context regarding a facility’s 


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85https://www.nj.gov/dep/enforcement/tcpa/ 

downloads/istguidance_rev2.pdf. 

consideration of safer technologies and 

alternatives. In response to the comment 

that the practicability assessment 

should be used by facilities to increase 

safety, EPA believes that the final rule 

will allow the owner or operator to 

consider the potential for risk reduction, 

risk transfers, and tradeoffs when 

determining whether it is practicable to 

implement ISTs or ISDs considered. IST 

is a relative concept dependent on the 

hazard, the technology, and the facility. 

Therefore, EPA is requiring facilities to 

only consider IST as a possibility for 

addressing hazards rather than requiring 

ISTs be implemented. The final rule 

will give the facility owner or operator 

the flexibility to assess and to determine 

the practicability of any measures 

considered based on various factors for 

IST (including those involving risk 

transference). 

In response to the comment that EPA 

should require facilities to implement 

identified alternatives when practicable, 

in this final rule, EPA is requiring 

implementation of at least one passive 

measure at an applicable facility, or an 

inherently safer technology or design, or 

a combination of active and procedural 

measures equivalent to or greater than 

the risk reduction of a passive measure; 

further discussion of this requirement is 

below in the Safeguard Implementation 

section (V.B.3.d) of this preamble. EPA 

is not requiring implementation of 

identified IST. EPA believes facility 

owners and operators will adopt IST 

even in the absence of a mandate when 

it is practicable technically and 

economically and when the hazard 

reduction is significant. Part of the basis 

for this belief is the likelihood that most 

of the economic savings resulting from 

reduced accidents will be from reduced 

onsite property damage to the owner or 

operator’s facility. 

In response to the comment that the 

consideration of ‘‘social’’ factors extends 

far beyond the traditional, performanceoriented ‘‘process safety’’ scope of a 

PHA, EPA disagrees. While the PHA 

identifies the hazards, the RMP PHA 

requires the facility to identify the risk 

management measures applicable to 

eliminating or reducing the risks from 

the process hazards. EPA believes that 

it is appropriate for a facility to consider 

the five practicability factors (i.e., 

economic, environmental, legal, social 

and technological) for evaluating the 

appropriateness of implementing for 

potential IST measures because some 

IST can involve significant costs or 

involve impacts that go beyond the 

facility. These factors are recognized 

and further discussed in in CCPS’ 2019 

‘‘Guidelines for Inherently Safer 

Chemical Processes, A Life Cycle 

Approach,’’ 3rd edition, and NJDEP’s 

Guidance for Toxic Catastrophe 

Prevention Act (TCPA), ‘‘Inherently 

Safer Technology (IST) Review,’’ 

Attachment 1 ‘‘Feasibility guidance.’’ 85

In response to comments stating that 

‘‘real-world’’ technologies should be the 

focus of the STAA, not theoretical or 

possible technologies that have not been 

tested or tried at RMP-regulated sources, 

EPA expects that facilities will only 

evaluate chemical substitutes that have 

already been shown to be commercially 

viable and does not expect facility 

owners or operators to expend a major 

effort on hypothetical or untested 

chemical substitutes or uses. This 

approach is consistent with EPA’s 

authority to require reasonable 

regulations that prevent accidental 

releases to the greatest extent 

practicable. 

In the final rule, the definition of the 

1-mile radius is relevant to the 

applicability of the practicability 

assessment and safeguard 

implementation only. Acknowledging 

that refineries and chemical 

manufacturers have sector accident rates 

that are higher than the general rates for 

RMP-covered facilities, close co-location 

of sources in NAICS codes 324 and 325 

further increases the risk to the public 

that may be potentially exposed to a 

release from multiple sources. In these 

sectors, the worst-case scenarios of 80 

percent of sources extend at least 1 mile, 

therefore the communities surrounding 

these sources will typically face 

multiple threats. It is appropriate to 

increase the stringency and 

transparency of the requirement for so 

situated sources. In the proposal, EPA 

proposed to define facility location 

based on distance to the facility 

fenceline but sought comment on other 

definitions of facility proximity. 

Recognizing that the distance from a 

process is a more accurate way to 

calculate a release scenario than the 

distance from a fenceline, EPA will 

nevertheless retain 1 mile from the 

fenceline as the applicability criterion, 

as opposed to 1 mile from process 

locations, both for simplicity in 

implementation and also in deference to 

restrictions on source-specific 

information on release scenarios. The 

Agency believes that regulated facilities, 

the public, and implementing agencies 

can more easily calculate and verify a 

fenceline-to-fenceline measurement 

than a process-to-process measurement 

because it does not require access to 

facility-specific process information. 

d. Safeguard Implementation 

i. Comments 

A couple of commenters 

recommended EPA require industries to 

seek out solutions that pose less 

inherent risk and danger to their 

employees and surrounding 

communities and that they implement 

all practicable alternatives that could 

eliminate risks of a catastrophic release. 

A couple of commenters urged EPA to 

require that facilities work with 

employees and communities to 

implement the identified alternatives 

when practicable. A few commenters 

called on EPA to add a requirement to 

implement recognized safer alternatives. 

One of the commenters stated that 

relying on voluntary measures alone 

does not satisfy the requirement of the 

Act for EPA to assure prevention ‘‘to the 

greatest extent practicable.’’ The 

commenter noted the proposal is 

inconsistent with the CSB 

recommendation requiring both 

assessment and implementation of IST. 

One commenter claimed that relying on 

voluntary implementation alone is 

insufficient to protect fenceline 

communities who have seen nearby 

facilities repeatedly refuse to implement 

safer ways to operate, no matter how 

inexpensive or easy they may be. 

Because risks faced by nearby 

communities impose costs that are 

external to the firm, there is a market 

failure and firms do not face an 

appropriate level of incentive to reduce 

these risks. The commenter stated that 

voluntary measures cannot be relied 

upon given that market failure has 

delayed and prevented common-sense 

solutions. The commenter stated that, 

while the STAA, practicability 

assessment, and justification report are 

all valuable and should be expanded 

and finalized, the rule should require 

the implementation of practicable IST 

through careful consultation with 

workers and worker representatives and 

community members. 

Some of the commenters asserted that 

EPA does not have the statutory 

authority, under section 112(r) of the 

CAA, to impose facility design 

requirements at any stage of a regulated 

facility’s lifespan, much less for existing 

facilities. Several commenters noted IST 

and ISD are in the best interest of 

facilities to implement where there are 

practical and effective; therefore, there 

is no reason to require it. The 

commenters also expressed concern 

over excessive costs to implement 

unnecessary technologies if required to 

implement inherently safer 

technologies. 


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86EPA, General RMP Guidance—Chapter. 6: 

Prevention Program (Program 2) (2004), pp. 6–11, 

https://www.epa.gov/sites/default/files/2013-11/ 

documents/chap-06-final.pdf. 

87EPA, General RMP Guidance—Chapter 7: 

Prevention Program (Program 3) (2004), pp. 7–7, 

https://www.epa.gov/sites/default/files/2013-11/ 

documents/chap-07-final.pdf. 

88https://www.csb.gov/husky-energy-superiorrefinery-explosion-and-fire/. 

89https://www.csb.gov/philadelphia-energysolutions-pes-refinery-fire-and-explosions-/. 

The commenters urged EPA to allow 

facilities to decide what is best on a 

case-by-case basis due to instances 

where adopting an inherently safer 

process may not actually make a process 

safer when put into practice. One 

commenter added there are cases where 

there are no safer alternatives and 

conducting an STAA is not necessary, 

does little to improve safety, and creates 

extra complexity for employers to 

present a case to regulators for their 

processes. The commenter also said that 

regulations should be straightforward 

and easy to understand, so a vague 

requirement to require facility owners to 

present a case that their processes are 

safe will create confusion and not 

improve safety. 

Some commenters noted that the 

proposed STAA requirement is solely 

for consideration of possible alternatives 

and has unproven and unquantified 

benefits that do not justify the annual 

cost of $51.8 million. One of the 

commenters added that EPA stated that 

they expect ‘‘some portion of future 

damages would be prevented through 

implementation of a Final Rule,’’ but 

they do not identify any benefits 

specifically tied to the STAA provision. 

The commenter expressed concern that 

EPA did not review and summarize 

literature on STAA in the proposed rule 

since there are a large amount of studies 

on its practical effectiveness; the 

commenter stated that there is 

consensus on its theoretical value as a 

tool to inform future investment 

decisions, and that once a facility has 

committed to a particular production 

technology, STAA is not particularly 

useful nor informative. 

ii. EPA Responses 

The CAA directs EPA to ‘‘promulgate 

reasonable regulations . . . to provide, 

to the greatest extent practicable, for the 

prevention and detection of accidental 

releases . . .’’ In some circumstances, 

solely relying on voluntary 

implementation of STAA measures is 

not reasonable and would be inadequate 

to prevent accidents ‘‘to the greatest 

extent practicable.’’ This is particularly 

true when safeguards are identified and 

generally deemed practicable, but not 

implemented. A reasonable decision to 

not implement such safeguards at a 

facility must be supported with a 

comprehensive review of factors like 

cost, risk reduction, risk transfer, 

employee input, and engineering that 

concludes the technology is not 

practicable contextually. EPA’s 2022 

SCCAP proposed rule emphasized the 

importance of identifying ‘‘new risk 

reduction strategies, as well as 

revisit[ing] strategies that were 

previously evaluated to determine 

whether they are now practicable as a 

result of changes in cost and 

technology.’’ Safer design and 

technology information and lessons 

learned are continually being generated, 

and facilities should integrate such 

updated information to help prevent 

accidents. 

Taking an important step to reinforce 

these crucial factors, this final rule is 

requiring processes subject to the IST 

practicability assessment to also 

implement at least one practicable 

passive measure resulting from the 

STAA evaluation. For this provision, 

practicable active and procedural 

measures or their combination can be 

implemented as a substitute to 

practicable passive measures if no 

practicable passive measures are 

identified or if they achieve layers of 

protection equivalent to or greater than 

the risk reduction of passive measures. 

This provision is intended to reduce the 

risks of the accidental releases by 

requiring processes that EPA has 

identified to present a heightened risk to 

a community to implement reliable 

safeguards necessary to help prevent or 

mitigate chemical releases and their 

consequences; in particular, the 

provision requires RMP-regulated 

facilities with P3 processes: (1) In 

NAICS codes 324 and 325 located 

within 1 mile of another NAICS 324 or 

325 facility; (2) in NAICS codes 324 and 

325 that has had an accidental release 

that meets the accident history reporting 

requirements under 40 CFR 68.42 since 

the facility’s most recent PHA; and (3) 

in NAICS 324 with hydrofluoric 

alkylation processes—to implement 

practicable safeguards that help prevent 

or mitigate chemical releases and their 

consequences. 

The PHA requirements at 40 CFR 

68.67 have always required sources to 

‘‘identify, evaluate and control the 

hazards involved in the process.’’ 

Currently the provision does not 

prescribe exactly which type or what 

measures must be implemented to 

control the hazards. In guidance, the 

Agency discusses how sources can 

resolve hazard evaluation 

recommendations after identifying and 

evaluating solutions to control hazards, 

stating that, ‘‘EPA does not require that 

you implement every recommendation. 

It is up to you to make reasonable 

decisions about which 

recommendations are necessary and 

feasible. You may decide that other 

steps are as effective as the 

recommended actions or that the risk is 

too low to merit the expense. You must, 

however, document your decision on 

each recommendation.’’ 86 Guidance 

further indicates, ‘‘You may not always 

agree with your PHA team’s 

recommendations and may wish to 

reject a recommendation. OSHA’s 

compliance directive CPL 2– 

2.45A(revised) states that you may 

decline a team recommendation if you 

can document one of the following: (1) 

The analysis upon which the 

recommendation is based contains 

relevant factual errors; (2) the 

recommendation is not necessary to 

protect the health of employees or 

contractors; (3) an alternative measure 

would provide a sufficient level of 

protection; or (4) the recommendation is 

infeasible. For part 68, you may also 

decline a recommendation if you can 

show that it is not necessary to protect 

public health and the environment.’’ 87

While EPA continues to believe that the 

source has the primary expertise and 

resources to weigh decisions on process 

design, process safety and accident 

prevention, EPA is concerned that 

controlling hazards and adopting 

reasonable safety measures and layers of 

protection necessary to keep the public 

and environment safe from chemical 

releases based on reasoned, documented 

decision-making do not always occur. 

In two recent CSB accident reports, 

‘‘FCC Unit Explosion and Asphalt Fire 

at Husky Superior Refinery’’ 88 and 

‘‘Fire and Explosions at Philadelphia 

Energy Solutions Refinery Hydrofluoric 

Acid Alkylation Unit,’’ 89 the CSB 

addresses safeguards that should have 

been in place to prevent or mitigate 

major accidents at refineries. These 

cases highlight the consequences to 

workers and the surrounding 

community when sources do not take 

the necessary steps to implement 

safeguards to control known hazards. 

On April 26, 2018, an explosion and 

subsequent fire occurred at Husky 

Energy’s Superior Refining Company 

LLC refinery in Superior, Wisconsin 

(Husky). The incident occurred during a 

planned maintenance event when 

flammable hydrocarbons inadvertently 

mixed with air. As a result of the 

explosion and fire, 36 refinery and 

contract workers were injured and 

sought medical attention. The CSB 

found that Husky failed to properly 


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90 If passive mitigation or other adopted 

mitigation measures would be sufficient to change 

all NAICS 324 or 325 processes to Program 1, then 

the source no longer would have an obligation to 

add additional mitigation measures in future PHAs, 

as the mandate for safeguard implementation only 

applies to Program 3 processes. If the adopted 

mitigation measure is insufficient to meet Program 

1 at all NAICS 324 and 325 processes at the source, 

then the potential for offsite impacts presenting risk 

would remain. 

91The 2019 reconsideration rule did not 

specifically discuss requiring or not requiring 

implementation of measures identified in a STAA 

because it more generally rescinded all prevention 

measures promulgated in 2017. With no 

requirement to perform an STAA, there was no 

need to assess whether implementation of measures 

identified in such an analysis needed to be 

implemented. The proposed rule and this final rule 

discuss the reasons for adopting a different broad 

approach to prevention than that adopted in 2019. 

implement safeguards that could have 

prevented the inadvertent mixing of air 

and hydrocarbons during the shutdown. 

The safeguards CSB identified, a steam 

barrier, gas purge, and slide valves, are 

typically vital to this type of process 

and are generally known and broadly 

applied within the refining industry. 

Not applying these safeguards allowed 

oxygen to enter and accumulate in 

process equipment containing 

flammable material, which ignited and 

exploded. 

On Friday June 21, 2019, Philadelphia 

Energy Solutions (PES) refinery in 

Philadelphia, Pennsylvania, had a 

release of propane and toxic 

hydrofluoric acid vapor from a ruptured 

pipe in the PES refinery alkylation unit. 

The vapor found an ignition source, 

causing a fire and multiple explosions. 

Five workers and a firefighter 

experienced minor injuries during the 

incident and response. The incident 

also resulted in estimated property 

damage of $750 million. The CSB 

determined the cause of rupture was 

from a piping component that corroded. 

CSB indicated that the absence of 

safeguards, remotely operated 

emergency isolation valves, and passive 

safeguards to prevent incident-induced 

damage to the water mitigation system, 

contributed to the severity of the 

incident. 

As discussed in previous 

rulemakings, the hierarchy of control 

methods in an STAA analysis—IST/ISD, 

passive, active, procedural— 

systematically provides for the 

identification of practicable control 

methods. The Agency expects the STAA 

analyses to lead to new hazard control 

approaches at sources where 

management finds such approaches to 

be reasonable and practicable. The 

Agency acknowledges requiring 

facilities to implement IST can involve 

extensive changes to a facility’s process, 

depending on the IST, especially if it 

involves substitution of alternative 

chemicals and/or major process 

redesign to existing processes. EPA 

believes that measures lower on the 

hierarchy of controls, passive, active 

and procedural measures, when 

implemented appropriately, can be used 

to help operate a hazardous chemical 

process safely and can also reduce 

hazard risks of that process. When 

compared with IST, these measures 

could also more likely be added, 

modified, and improved after the initial 

design or operation of a facility. 

Nothing in this rule forces the 

adoption or abandonment of any 

technology or design. The mandate we 

adopt is limited to selecting additional 

mitigation periodically for specific 

processes so long as the risk of an 

impact release persists,90 with a 

preference consistent with the wellunderstood hierarchy of controls. 

EPA is requiring implementation of 

passive measures as a priority rather 

than active and procedural because it is 

the next highest level below IST on the 

hierarchy of controls and the most 

reliable in comparison to active and 

procedural safeguards, as they reduce 

risks without human, mechanical, or 

other energy input. As discussed in 

CSB’s PES report, active safeguards that 

require a person or technology to trigger 

their activation have the potential to fail 

in major incidents involving fire or 

explosions, which was the case in the 

PES accident and could be a likely 

release scenario for flammable 

substances, which are regulated 

substances often present at refineries 

and chemical manufacturers. 

EPA recognizes that passive 

safeguards may not exist or may not be 

practicable for a variety of reasons and 

other safeguards are needed to cover 

gaps in process safety risk reduction. 

EPA also recognizes that a passive 

measure may be even more effective 

when applied appropriately with other 

measures. This concept of layers of 

protection acknowledges that individual 

safeguards are not completely reliable or 

effective, and thus multiple safeguards 

(‘‘layers’’) may be needed to minimize 

the chances of an initial fault 

propagating to a full-blown incident 

with potential for harm. This is often 

illustrated using the ‘‘Swiss Cheese’’ 

model for incidents. In this model, each 

safeguard layer has the potential to fail, 

with highly reliable safeguards (e.g., 

‘‘inherent’’ ones) having relatively few 

‘‘holes’’, and less reliable safeguards 

(e.g., ‘‘procedural’’) having more. While 

no single layer can adequately control 

the hazard, having enough adequately 

reliable safeguards can greatly reduce 

the chance of all of the ‘‘holes’’ lining 

up so that an incident actually occurs. 

This final rule will give the facility 

owner or operator the flexibility to 

assess and potentially implement IST, 

implement passive measures, or 

implement a combination of active and 

procedural measures to reduce risk 

associated with a process. The approach 

adopted in this final rule does not 

require a facility to implement a hazard 

reduction approach beyond what is to 

the greatest extent practicable among 

the reasonable options. 

EPA acknowledges that because the 

requirement to control hazards has been 

a PHA requirement since the inception 

of the rule, some passive (or equivalent) 

safeguards to control hazards are likely 

already in place within facility 

processes. Facilities that have already 

implemented passive measures or an 

equivalent level of risk reduction should 

document their implementation in their 

next PHA, determine whether there is 

additional information that should be 

considered in their STAA, and continue 

to consider additional passive (or 

equivalent) measures during subsequent 

PHA re-validation cycles. 

The Agency recognizes that requiring 

any implementation of STAA measures 

is a departure from both the 2017 

amendments rule (82 FR 4648–49, Jan. 

13, 2017) and the 2022 proposed rule 

and that the Agency identified reasons 

for not requiring implementation of any 

STAA in the 2022 proposed rule (87 FR 

53580, Aug. 31, 2022).91 However, the 

2017 amendments rule and the 2022 

proposed rule primarily focused 

discussion on the reasonableness of 

mandating adoption of IST/ISD rather 

than passive, active, or procedural 

measures. For example, in 2017, EPA 

explained that one reason the Agency 

did not require implementation of IST/ 

ISD is that a source may reasonably 

decide to employ more than one method 

of hazard reduction to address a hazard 

or that a given type of safer technology 

may not exist for a particular hazard 

point (82 FR 4649, Jan. 13, 2017); 

consistent with these observations, this 

rule allows a source to adopt layering 

active and procedural measures to 

achieve the equivalent risk reduction a 

passive measure would achieve and 

does not adopt a requirement for an IST/ 

ISD at each hazard point. The Agency 

retains substantial flexibility for owners 

and operators to select among passive 

measures they deem appropriate for 

their stationary sources. The final rule 

allows for consideration of factors 

highlighted in the 2017 amendments 

rule like chemical formula 

specifications for toll manufacturers, the 

potential for risk transfer, supply chain 


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92Changes include chemical reduction, chemical 

increase, change in process parameters, installation 

of process controls, installation of process 

detection, installation of perimeter monitoring, 

installation of mitigation systems, revised 

maintenance, revised training, revised operating 

procedures, or other changes not included in these 

categories. These change categories are those 

reported in RMPs under 40 CFR 68.175(e)(6). 

93The list of RMP facilities whose most current 

RMP plans (as of December 31, 2020) were 

reviewed is provided in the docket for this 

rulemaking, EPA–HQ–OLEM–2022–0174, RMP 

facilities in PHA_accident change analysis. 

limitations, and the need to address 

security implications of any change 

when assessing whether to reject 

particular passive measures. See 82 FR 

4635–36 (toll manufacturers), 4643 (risk 

transfer), 4648 (supply chain), and 4649 

(security). 

The 2022 proposed rule contended 

that a requirement for implementation 

of IST/ISD or any measure was 

unnecessary because sources were likely 

to implement practicable measures 

when economically and technically 

reasonable and risk reduction would be 

significant. EPA partially based this 

contention on the observation that most 

of the economic savings from reducing 

accidents would accrue to the source 

itself (87 FR 53580, Aug. 31, 2022). 

However, not all damages accrue to the 

source responsible for the accident. For 

example, offsite impacts such as 

injuries, sheltering in place events, 

evacuations, environmental damage, 

and so on are experienced by people 

other than the regulated facility. 

Because these costs are external to the 

facility, there is a market failure, and 

firms do not have an appropriate level 

of incentive to prevent them. This 

market failure has been noted by 

commenters with respect to catastrophic 

events, the prevention of which is a 

primary purpose of enacting CAA 

section 112(r). Catastrophic events 

impose extensive burdens on people 

external to the source responsible for 

the accident. Moreover, these incidents 

are low probability, high consequence 

events that are difficult for owners and 

operators to assess; therefore, it may be 

unreasonable to rely primarily on 

sources to make the ultimate decision 

on whether to adopt any measures at all. 

The standard adopted in this final rule 

for sources presenting elevated risks to 

communities, wherein EPA mandates 

adoption of at least one passive measure 

at the facility, or an inherently safer 

technology or design, or a combination 

of active and procedural measures 

equivalent to or greater than the risk 

reduction of a passive measure, 

reasonably addresses the potential 

market failure that would lead to less 

implementation than would be 

necessary for risk reduction. 

EPA disagrees with commenters 

indicating implementation of STAA 

measures has no proven benefits. A 

review of corrective actions following 

RMP accidents provides insight that 

practicable methods to address hazards 

are not infrequently found after 

accidents, which suggests the rule could 

be strengthened by providing incentives 

to implement those controls in advance 

of the accident. In reviewing RMP data 

from facilities subject to the 

practicability assessment and this STAA 

safeguard implementation provision 

(621 facilities), 59 percent of facilities 

indicated in their most recent PHA, 

some type of change was implemented. 

On average, 1.2 process safety 

changes 92 were implemented because of 

the PHA, but of those facilities having 

accidents (16.8 percent), an average of 

2.2 process safety changes were made 

after an accident occurred.93 This 

review was one piece of evidence 

supporting EPA’s reasoned judgment 

that the risk reduction benefits of the 

STAA implementation justified the 

costs. Therefore, as RMP facility process 

change data has shown, EPA expects 

there are benefits to make risk reduction 

changes through the PHA prior to an 

accident occurring. 

In response to comments concerning 

costs for implementing STAA measures, 

EPA believes there is an overemphasis 

on initial costs leading to less 

consideration of safer, reliable methods 

to reduce process risks. CCPS’ 2019 

‘‘Guidelines for Inherently Safer 

Chemical Processes, A Life Cycle 

Approach’’ discusses the tradeoff of 

initial and operating costs of 

implementing different STAA measures. 

CCPS indicates that while inherently 

safer and passive measures do tend to 

have higher initial capital costs, 

operating costs are usually lower than 

those for the other measures. For active 

measures as compared to inherently 

safer and passive measures, reliability is 

typically lower, and complexity is 

greater. Operating costs are also actually 

likely to be the greatest for active 

solutions. While procedural measures 

are most often tempting solutions due to 

their initial very low capital cost and 

typically lower complexity, they are 

often also the least reliable and should 

be considered only after other solutions 

have been explored. Similarly, EPA 

believes passive measures (or active/ 

procedural equivalent) measures that 

reduce risk and are practicable should 

be implemented. 

The Agency is not requiring formal 

practicability assessments (as is now 

required for IST) for passive, active, or 

procedural measures. Since evaluation 

of passive, active and procedural 

measures have been a part of the RMP 

rule, leading to implementation of some, 

it is expected that the determination of 

their practicability already occurs. The 

Agency believes the requirement to 

determine what actions are to be taken 

in 40 CFR 68.67(e) suffices as a 

practicability determination for the less 

extensive upgrades or changes to the 

process as compared to IST. However, to 

ensure the assessment determining a 

measure is not practicable complies 

with the final rule definition, sources 

will be required to document this 

conclusion to the implementing 

agency’s satisfaction; this requirement 

will help ensure costs alone are not the 

sole factor in determining practicability. 

Finally, contrary to the assertion that 

the statute does not authorize 

regulations that impose design 

standards, the Agency notes that the 

statute explicitly provides the 

Administrator with the authority to 

promulgate ‘‘design, equipment, work 

practice, and operational requirements’’ 

in CAA section 112(r)(7)(A), as well as 

requirements for ‘‘preventing accidental 

releases of regulated substances, 

including safety precautions and 

maintenance’’ in CAA section 

112(r)(7)(B)(ii)(II). The regulation 

promulgated in this final rule simply 

imposes standards on continuing safe 

operations and equipment. Furthermore, 

the regulations required by CAA section 

112(r)(7)(B)(i), ‘‘shall cover the use, 

operation, repair, replacement, and 

maintenance of equipment to monitor, 

detect, inspect, and control’’ accidental 

releases of regulated substances as 

appropriate (emphasis added). Terms 

such as ‘‘use’’ and ‘‘operation’’ 

necessarily allow EPA to address 

ongoing activities and not simply the 

pre-construction phase, and 

‘‘replacement’’ of ‘‘equipment’’ to 

‘‘control’’ releases authorizes EPA to 

require upgrades to release prevention 

measure such as practicable passive 

control measures. As discussed above, 

the Conference Report and the Senate 

Report provide ample support for 

requiring implementation of process 

and control measures to lessen the 

likelihood and impact of accidental 

releases. 

e. STAA Technology Transfer 

i. Comments 

Several commenters supported EPA’s 

proposed technology transfer 

provisions. A few commenters stated 

that EPA should require every RMP 

facility to routinely report the safer 

technologies/designs evaluated, 

implemented, or planned because, as 


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proposed, 95 percent of RMP facilities 

will not report any solutions data. One 

of the commenters stated this will allow 

EPA to better assess the impacts of its 

own activities for promoting prevention 

of catastrophic releases. Another 

commenter suggested that this reporting 

occur as a regular part of semi-annual 

CAA compliance reports, and at a 

minimum, as a regular part of RMP 

reporting to EPA. One commenter stated 

that EPA should require the STAAexempt 95 percent of RMP facilities to 

report whether they have evaluated IST/ 

ISD and, if so, identify the major options 

evaluated, implemented, or planned. 

The commenter stated that this 

approach would be low cost, fill a major 

information gap, and yield invaluable 

insights. Another commenter supported 

expanding the technology transfer 

provision to cover more facilities and 

gather additional valuable information, 

including on wastewater and water 

treatment plants. 

A couple of commenters opposed the 

submission of STAA findings as part of 

the STAA technology transfer section. 

One commenter noted that any 

submitted STAA findings would 

probably not consider the nuance of the 

real practicality of switching between 

technologies, and if facilities are not 

required to switch to alternate 

technologies, it is unclear how EPA 

intends to effectively use these data. 

Another commenter stated that EPA 

should not require reporting of STAA 

measures implemented in facilities’ risk 

management plans because this 

requirement would create significant 

potential for third parties to insert 

themselves into what is a highly 

technical and site-specific analysis. The 

commenter added that EPA does not 

provide a clear basis in the proposed 

rule for its assumption that reporting 

and public availability of information 

on IST/ISD measures implemented will 

improve facility safety or mitigate the 

potential for accidental releases in any 

measurable way; therefore, determining 

that reporting this information in the 

RMP is simply not justified. 

ii. EPA Responses 

EPA is requiring that basic 

information on IST, facility information, 

categories of safer design identified and 

implemented and causal factor for 

initiating safer design implementation 

be provided in the RMP submission in 

accordance with 40 CFR 68.175(e)(7). 

Facilities must provide in their RMP 

any IST/ISD measures implemented 

since the last PHA, if any, and the 

technology category (substitution, 

minimization, simplification and/or 

moderation). These technology transfer 

provisions apply to all facilities 

required to conduct any component of 

STAA (evaluation or practicability) 

under the final rule. This reporting is 

also voluntary for all other facilities, 

including deregistered facilities, by 

which EPA expects to capture useful 

information about how some facilities, 

on their own accord, choose to make 

their processes safer. EPA intends for 

this not to be a cumbersome exercise, 

but rather, one that is based on 

information facilities likely already 

have. The intended fields of check 

boxes, dates, and numbers that 

summarize STAA activities for this 

provision will help facilitate data 

analysis for EPA to compile and make 

available for other industries to identify 

safer alternatives. 

EPA believes that the primary utility 

of STAA information for the public is to 

identify whether facilities are 

implementing IST and the nature of that 

change. In addition to information 

exchanged through an information 

request under 40 CFR 68.210, EPA 

encourages facilities to provide 

information about any IST or other safer 

technology alternatives that the facility 

is using or could be using at the public 

meeting forum under 40 CFR 68.210 or 

any other community outreach 

opportunity. Facilities should expect 

that a community wants to discuss 

hazards and risks associated with their 

chemical processes. Effective 

communication with the public can be 

an opportunity to develop robust 

relationships with communities, and 

trust is gained when considering the 

needs and challenges facing those 

potentially affected by accidents. 

Additionally, as will be discussed 

further in the Information Availability 

section (VII) of this preamble, having 

information available to the public 

builds upon the planning approach of 

Emergency Planning and Community 

Right-to-Know Act (EPCRA) and Agency 

studies of the value of right-to-know in 

emergencies, and promotes accident 

prevention by facilitating public 

participation at the local level. The 

Agency expects a more informed and 

involved public to have less fear of the 

unknown. 

C. Root Cause Analysis 

1. Summary of Proposed Rulemaking 

a. Definition of ‘‘Root Cause’’ in 40 CFR 

68.3 

EPA proposed to define ‘‘root cause’’ 

in 40 CFR 68.3 to mean a fundamental, 

underlying, system-related reason why 

an incident occurred. 

EPA did not propose a definition of 

‘‘near miss’’ as part of the proposed 

rulemaking. Nevertheless, EPA solicited 

comments on a potential definition of 

‘‘near miss’’ that would address 

difficulties in identifying the variety of 

incidents that may occur at RMP 

facilities that could be considered near 

misses that should be investigated. EPA 

solicited comments on a universal ‘‘near 

miss’’ definition, as well as comments 

on strengths and limitations of the 

definition provided by NJDEP and how 

the definition may clarify requirements 

for incident investigations. EPA stated 

that, based on these comments, EPA 

may propose a definition of ‘‘near miss’’ 

in a future rulemaking. 

b. Incident Investigation/Root Cause 

Analysis, 40 CFR 68.60 and 68.81 

EPA proposed to revise 40 CFR 68.60, 

which is applicable to Program 2 

processes, and 40 CFR 68.81, which is 

applicable to Program 3 processes, by 

adding a new paragraph (h) which 

would require the owner or operator to 

investigate specific factors that 

contributed to an incident, for incidents 

that meet the accident history reporting 

requirements under 40 CFR 68.42. 

Proposed paragraph (h)(1) would 

require that a report be prepared at the 

conclusion of the investigation and 

completed within 12 months of the 

incident (though it allowed for facility 

owners or operators to request an 

extension from the implementing 

agency). Proposed paragraph (h)(2) 

would require specific factors to be 

investigated, including the initiating 

event, direct and indirect contributing 

factors, and root causes. Additionally, 

determination of root causes would be 

required by conducting an analysis for 

each incident using a recognized 

method. 

2. Summary of Final Rule 

EPA is finalizing the definition of root 

cause under 40 CFR 68.3 with 

modifications. Root cause will be 

defined as a fundamental, underlying, 

system-related reason why an incident 

occurred that identifies a correctable 

failure(s) in management systems and, if 

applicable, in process design. 

EPA is finalizing the provisions of the 

incident investigation sections at 40 

CFR 68.60(h) and 68.81(h) as proposed. 

Although EPA solicited comments on 

a potential definition of ‘‘near miss,’’ 

EPA is not finalizing a definition of 

‘‘near miss.’’ 


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94Technical Background Document for Notice of 

Proposed Rulemaking: Risk Management Programs 

Under the Clean Air Act, section 112(r)(7); Safer 

Communities by Chemical Accident Prevention 

(April 19, 2022). 

3. Discussion of Comments and Basis for 

Final Rule Provisions 

a. Definitions 

i. Comments 

Root cause. A couple of commenters 

expressed support for the proposed 

definition of ‘‘root cause.’’ However, a 

commenter requested that if EPA 

determines that all incident 

investigations require a root cause 

analysis, EPA update the definition for 

‘‘root cause’’ to remove the ‘‘systemrelated’’ and ‘‘in management systems’’ 

language. The commenter suggested that 

by focusing on system-related releases, 

EPA ignores that humans or 

environmental causes could be the 

cause of an incident. Conversely, 

another commenter suggested EPA 

revise the definition to state, ‘‘Root 

cause means a fundamental, underlying, 

system-related reason why an incident 

occurred that identifies a correctable 

failure(s) in process design and/or 

management systems.’’ 

Near miss. Several commenters 

supported the development of a 

definition of ‘‘near miss.’’ Additionally, 

one commenter expressed a concern 

about selective enforcement in the 

absence of a clarifying definition, while 

another commenter said that without 

specificity to define a near miss, the 

language might have established due 

process concerns as the proposal failed 

to provide adequate notice to the 

regulated community. However, several 

commenters opposed the development 

of a definition for ‘‘near miss,’’ stating 

that they oppose a definition due to the 

broad nature of facilities subject to the 

rule and that developing a definition 

would be difficult due to the context 

required to determine what a near miss 

is. Another commenter suggested that 

EPA provide guidance on near misses 

but allow facilities to determine their 

own definition. Additionally, several 

commenters opposed a universal 

definition of near miss, as a one-sizefits-all approach will be 

overburdensome and challenging for 

facilities to implement. 

ii. EPA Responses 

EPA is finalizing the proposed 

definition of ‘‘root cause’’ with 

modifications to include that the root 

cause must identify a correctable 

failure(s) in management systems, and if 

applicable, in process design. In 

finalizing this definition, EPA 

recognizes that an incident may have 

more than one root cause. EPA 

acknowledged in the proposal that the 

CCPS root cause definition identified 

that a root cause includes a correctable 

failure in management systems. EPA 

intended to use CCPS’ definition in its 

entirety due to its wide use among the 

process safety industry. As such, EPA 

will include management systems as a 

correctable failure that must be 

identified when determining root causes 

for incident investigations. EPA also 

believes adding process design to the 

definition of root cause is useful as 

process design points to a specific 

management system failure that may 

offer facilities an opportunity to design 

their process more safely. 

EPA did not propose a definition of 

near miss in the proposal. However, 

EPA will consider these comments 

when determining whether to develop a 

regulatory definition of ‘‘near miss’’ to 

identify incidents that require 

investigation in a future action. 

b. Root Cause Analysis 

i. Comments 

Many commenters supported the 

proposed approach to require facilities 

to conduct root cause analyses after an 

incident. One of the commenters 

suggested that the proposed 

requirements would likely prevent harm 

from repeated incidents. Another 

commenter noted that root cause 

analyses provide an additional 

opportunity to better understand the 

processes, procedures, and culture that 

may contribute to accidents. 

Several commenters did not support 

the revision of the incident investigation 

provision to include root cause analysis 

requirements. Several commenters 

suggested that EPA has not justified the 

additional regulation, shown that the 

current rules are ineffective, or proven 

that root cause analysis is effective at 

reducing accidents. A couple of the 

commenters stated that EPA does not 

provide data to show that repeat 

accidents are partially or fully caused by 

a facility’s failure to conduct a root 

cause analysis. A commenter also stated 

that the concept of ‘‘root cause’’ can be 

misleading, as there is not always a 

singular reason for why an incident 

occurred. The commenter said EPA 

should recognize that a root cause 

analysis is not always the most 

appropriate post-incident investigation 

method. Several commenters noted that 

the inclusion of the root cause analysis 

requirements is duplicative of existing 

regulations or common industry 

practices, is unnecessary, and thus will 

not result in meaningful benefits. 

Several commenters stated that OSHA 

PSM programs already include root 

cause analysis as a part of incident 

investigations. A couple of commenters 

suggested that EPA not expand incident 

investigation thresholds without 

coordination with OSHA’s anticipated 

updates to the PSM standard. One 

commenter noted that OSHA has 

primary jurisdiction on this issue, and 

therefore EPA should ensure 

consistency with current and future 

changes to the PSM. 

ii. EPA Responses 

EPA is finalizing the requirements as 

proposed. EPA agrees with those 

comments supporting the proposed 

provision and believes that requiring 

root cause analyses after RMP-reportable 

accidents, and including root cause 

information in incident investigation 

reports, is vital for understanding the 

nature of these events and how they 

may occur. 

In response to comments asserting 

that EPA has not justified the root cause 

analysis requirement or provided data to 

show that repeat accidents are partially 

or fully caused by a facility’s failure to 

conduct a root cause analysis, EPA 

acknowledges that such data has not 

been provided to show causation, but 

notes that EPA has not previously 

required a root cause analysis for 

incident investigations, and therefore, 

does not have data available to compare 

the frequency of repeat accidents at 

facilities conducting (or failing to 

conduct) root cause analyses. However, 

EPA did perform an analysis of EPA’s 

RMP accident reporting data and 

identified repeat accidents at facilities 

within the same process.94 The result of 

this analysis demonstrates that, among 

facilities reporting accidents, facilities 

that reported one accident often have a 

history of multiple accidents, thus 

indicating a failure to properly address 

circumstances leading to subsequent 

accidents. These accidents may have 

been preventable if root cause analyses 

had been required. EPA believes 

multiple accidents result, in part, from 

a failure to thoroughly investigate and 

learn from prior accidents. 

With regard to comments about the 

appropriateness of a root cause analysis 

as a post-incident investigation method, 

EPA has provided detailed background 

information on the usefulness of root 

cause analysis in both the 2016 

amendments proposed rule (81 FR 

13638) and the 2022 SCCAP proposed 

rule (87 FR 53556). EPA also notes that 

the final rule does not require facilities 

to use a specific root cause analysis 

method, select from a predetermined list 

of root causes, or force-fit investigation 

findings into an inappropriate category. 


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95Technical Background Document for Notice of 

Proposed Rulemaking: Risk Management Programs 

Under the Clean Air Act, section 112(r)(7); Safer 

Communities by Chemical Accident Prevention 

(April 19, 2022). 

96See 40 CFR 68.10 (Program 2 eligibility 

requirements). 

With regard to comments that noted 

potential overlap with existing 

regulations, EPA notes that a regulated 

source already subject to another 

requirement that duplicates the RMP 

root cause analysis requirement may use 

its compliance with the other 

requirement to demonstrate compliance 

with the equivalent RMP root cause 

analysis requirement. Additionally, EPA 

continues to routinely coordinate with 

OSHA to ensure that any incident 

investigation root cause analysis 

provisions do not contradict OSHA PSM 

requirements. 

c. Applicability of the Root Cause 

Analysis Requirements 

i. Comments 

A commenter expressed support for 

EPA’s proposal to limit the root cause 

analysis requirements to Program 2 and 

Program 3 processes. A couple of 

commenters recommended that EPA 

expand coverage of this requirement to 

apply to all RMP facilities. A couple of 

commenters proposed that EPA further 

limit facilities subject to the root cause 

analysis requirements. One of the 

commenters recommended that the root 

cause analysis requirement should only 

be mandated for Program 3 facilities, 

since they have the most complex 

processes, which is where root cause 

analyses are most useful. The 

commenter suggested that conducting 

root cause analyses is resource intensive 

and costly, and imposing the 

requirements on other non-Program 3 

facilities will be overly burdensome 

without commensurate benefits. 

Another commenter recommended that 

EPA only require root cause analyses for 

larger, more complex water systems, as 

the root cause analysis process is 

resource intensive and burdensome. 

Commenters asked EPA to clarify that 

root cause analysis is still required 

where a process is decommissioned or 

destroyed. 

ii. EPA Responses 

EPA is finalizing the applicability of 

the root cause analysis provision, as 

proposed. EPA believes this provision is 

most appropriate for Program 2 and 3 

processes because facilities with these 

processes have RMP-reportable 

accidents more often (Program 2 = 15 

percent, Program 3 = 83 percent of total 

accidents from 2004–2020) and pose a 

greater risk to the public because their 

worst-case scenario distance would 

affect public receptors. Program 1 

processes only account for few of the 

total RMP-reportable accidents (3 

percent of total accidents from 2004– 

2020), do not have recent accident 

history with specific offsite 

consequences, and have no public 

receptors within the worst-case release 

scenario distance.95

While it is true that most RMPreportable accidents occur at Program 3 

processes, EPA decided that there was 

little justification for limiting the root 

cause requirements to only Program 3 

processes, because serious accidents 

also occur at Program 2 processes (87 FR 

53593). Also, the Agency notes that 

some of the accidents at Program 2 

processes occur at publicly-owned 

water and wastewater treatment 

facilities that are not in Program 3 only 

because they are not located in a State 

with an OSHA-approved State Plan.96

While State and local government 

employees at facilities in States with 

OSHA-approved State Plans must 

comply with State Plan requirements 

that are at least as effective as the 

Federal OSHA PSM standard, State and 

local government employees at facilities 

in States under Federal OSHA authority 

are not covered by the OSHA PSM 

standard or any equivalent measures. 

This results in regulated processes at 

these sources being placed in Program 2, 

even though the processes generally 

pose the same risk as similar processes 

at publicly owned water or wastewater 

treatment processes that are located at 

sources in States with an OSHA State 

Plan. With regard to those commenters 

that recommended narrowing the 

applicability of the root cause analysis 

requirement because of the burden 

associated with the requirement, EPA 

notes that the burden of the proposed 

root cause analysis is relatively small. 

Few sources will have to conduct a root 

cause analysis because accidents occur 

at only a small number of sources, and 

many sources already perform root 

cause analyses in a manner consistent 

with industry or company protocols. 

Therefore, EPA does not believe that the 

anticipated burden of this requirement 

is a rationale for revising the 

applicability of the requirements. 

With regards to clarity on 

applicability of decommissioned or 

destroyed processes to the root cause 

analysis provision, the Agency did not 

propose, and therefore will not require, 

decommissioned or destroyed 

processes, as long as they remain in that 

decommissioned or destroyed state, to 

comply with this provision. As 

discussed in the previous rulemakings, 

commenters have not identified a 

significant number of release incidents 

at RMP facilities that had resulted in a 

destroyed or decommissioned process 

without any RMP accident report. The 

absence of a substantial number of 

examples leads the Agency to conclude 

that the gap is not significant enough to 

address at this time. 

d. Use of a Recognized Investigation 

Method 

i. Comments 

Several commenters provided 

feedback on the investigation methods 

and analysis elements described in the 

proposed rule. Several commenters 

noted that EPA should not mandate the 

use of a recognized method for the 

analysis, as there are many ways to 

conduct the analysis. One of the 

commenters indicated that prescribing a 

method may interfere with a facility’s 

engineering judgement and use of 

investigative practices that are tailored 

to their unique facilities. Another 

commenter said EPA should ensure that 

owners and operators have flexibility to 

modify recognized investigation 

methods to reflect the context, which 

may involve very complex or relatively 

simple processes or incidents. A couple 

of commenters requested that EPA 

define ‘‘recognized investigation 

method’’ to clarify what entity is 

approving a methodology. One of the 

commenters recommended revising the 

language to read ‘‘investigation method 

recognized by applicable industry code 

writing or RAGAGEP establishing 

body.’’ One commenter suggested that 

EPA require that incident investigations 

include staff with expertise in: the 

process involved, the facility’s root 

cause analysis method, and overseeing 

incident investigation analysis. 

ii. EPA Responses 

EPA is finalizing, as proposed, the 

requirements that root causes must be 

determined through the use of a 

recognized method. The final rule will 

allow the owner or operator to 

determine root causes using a 

‘‘recognized method’’ that is appropriate 

for their facility and circumstance. EPA 

disagrees that the Agency should 

specify recognized investigation 

methods or point to specific entities for 

such methods. Investigation methods 

evolve over time, and new methods may 

be developed. Therefore, any list 

promulgated by EPA in this rule may 

soon be obsolete. The Agency took a 

similar approach in the PHA 

requirements for the existing rule, 

where it listed several potential 

methods, but also included the option to 


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97CCPS 2019. Center for Chemical Process Safety, 

Guidelines for Investigating Process Safety 

Incidents, 3rd Edition, NY: AIChE. 

use an appropriate equivalent 

methodology. EPA recommends that 

owners and operators consult available 

literature on root cause investigation 

methodologies to select those 

appropriate for their facility and 

processes. For example, CCPS has 

published ‘‘Guidelines for Investigating 

Process Safety Incidents,’’ which 

provides extensive guidance on incident 

investigations, near miss identification, 

root cause analysis, and other related 

topics.97

In response to comments requesting 

that the incident investigation team be 

required to include someone 

knowledgeable in the root cause 

analysis technique, EPA believes this is 

already required under 40 CFR 68.60(c) 

and 68.81(c), where the incident 

investigation team is required to consist 

of ‘‘persons with appropriate knowledge 

and experience to thoroughly 

investigate and analyze the incident.’’ 

EPA intends this phrase to include a 

person knowledgeable in selection and 

use of root cause analysis techniques. 

e. Investigation Timeframe 

i. Comments 

Several commenters suggested a 

shorter investigation timeframe. A few 

commenters suggested an initial report/ 

investigation be completed within 90 

days, and a final report within a shorter 

timeframe, such as 6 months. One 

commenter also suggested EPA require 

initiation of incident investigations and 

root cause analyses within 24 hours 

after the incident. Several commenters 

supported the 12-month requirement for 

completing an incident investigation. A 

couple of commenters also supported 

EPA allowing extensions, when 

necessary. One commenter also said 

EPA should not question extension 

requests from facilities, as some 

thorough investigations will require 

more than 12 months. Several 

commenters opposed the regulatory 

deadlines for root cause analysis 

investigations. A couple of commenters 

stated that based on the complexity of 

the incident and level of input needed 

from external technical experts, a 12- 

month timeline may not provide enough 

time. One commenter requested that 

EPA clarify that the 12-month timeline 

is only for the completion of the 

investigation, not when the 

recommendations must be 

implemented. 

ii. EPA Responses 

After considering these comments, 

EPA has is finalizing the requirement to 

complete incident investigations within 

12 months as proposed. EPA believes 

that this timeframe will provide a 

reasonable amount of time to conduct 

most investigations, while also ensuring 

that investigation findings are available 

relatively quickly in order to assist in 

preventing future incidents. For very 

complex incident investigations that 

cannot be completed within 12 months, 

EPA is allowing an extension of time if 

the implementing agency (i.e., EPA and 

delegated authorities) approves such an 

extension, in writing. EPA encourages 

owners and operators to complete 

incident investigations as soon as 

practicable and believes that 12 months 

is typically long enough to complete 

even complex incident investigations. 

However, EPA has provided flexibility 

for facilities to request more time to 

complete investigations when they 

consult with their implementing agency 

and receive written approval for an 

extension. EPA also re-emphasizes the 

importance of implementing 

recommendations as soon as possible 

after incident investigation completion 

to prevent future similar incidents. 

D. Third-Party Compliance Audits 

1. Summary of Proposed Rulemaking 

a. Definitions, 40 CFR 68.3 

EPA proposed to define ‘‘third-party 

audit’’ to mean a compliance audit 

conducted pursuant to the requirements 

of 40 CFR 68.59 and/or 68.80, 

performed or led by an entity 

(individual or firm) meeting the 

competency and independence 

requirements in those sections. 

b. Compliance Audits, 40 CFR 68.58(a) 

and 68.79(a) 

EPA proposed to edit 40 CFR 68.58(a) 

and 68.79(a) to add the language ‘‘for 

each covered process’’ to compliance 

audits, self and third-party, to address 

compliance with the provisions of 

subpart C or D for each covered process. 

EPA also added a sentence at the end 

of the paragraph to reference when a 

compliance audit must be a third-party 

audit. 

c. Third-Party Audit Applicability for 

Compliance Audits, 40 CFR 68.58(f) and 

68.79(f) 

EPA proposed to add paragraph (f) to 

40 CFR 68.58 and 68.79 which 

identified third-party audit 

applicability. EPA proposed that the 

next required compliance audit for an 

RMP facility would be a third-party 

audit when one of the following 

conditions apply: 

• Two accidental releases within five 

years meeting the criteria in 40 CFR 

68.42(a), from a covered process have 

occurred. 

• One accidental release within five 

years meeting the criteria in 40 CFR 

68.42(a), from a covered process at a 

stationary source in NAICS code 324 or 

325, located within 1 mile of another 

stationary source having a process in 

NAICS code 324 or 325, has occurred. 

• An implementing agency requires a 

third-party audit due to conditions at 

the stationary source that could lead to 

an accidental release of a regulated 

substance, or when a previous thirdparty audit failed to meet the 

competency or independence criteria of 

40 CFR 68.59(c) or 68.80(c). 

In addition to the proposed approach 

for third-party audit applicability, EPA 

particularly sought comment on the two 

new conditions modified from the 2017 

amendments rule, which applied 

increased accident severity, frequency, 

and consequences as a basis for the 

proposed provision. 

d. Third-Party Audit Implementing 

Agency Notification and Appeals, 40 

CFR 68.58(g) and 68.79(g) 

EPA proposed to add paragraph (g) to 

40 CFR 68.58 and 68.79 which 

described the procedure when an 

implementing agency requires a thirdparty audit and proposed an internal 

appeals process. EPA proposed to 

require an implementing agency to 

provide written notice to the facility 

owner or operator stating the reasons for 

the implementing agency’s preliminary 

determination that a third-party audit is 

necessary. The owner or operator would 

have an opportunity to respond by 

providing information to, and 

consulting with, the implementing 

agency. The implementing agency 

would then provide a final 

determination to the owner or operator. 

If the final determination requires a 

third-party audit, the owner or operator 

would have an opportunity to appeal 

the final determination. EPA proposed 

that the implementing agency would 

provide a written, final decision on the 

appeal to the owner or operator after 

considering the appeal. 

e. Schedule for Conducting a ThirdParty Audit, 40 CFR 68.58(h) and 

68.79(h) 

EPA proposed to add paragraph (h) to 

40 CFR 68.58 and 68.79 which 

described the schedule for completing 

third-party audits. For third-party audits 

required pursuant to paragraph (f)(1) of 

the section, the proposed language 


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required the audit and associated report 

to be completed within 12 months of the 

second of 2 releases within 5 years. For 

third-party audits required pursuant to 

paragraph (f)(2) of the section, the 

proposed language required the audit 

and associated report to be completed 

within 12 months of the release. For 

third-party audits required pursuant to 

paragraph (f)(3) of the section, the 

proposed language required the audit 

and associated report to be completed 

within 12 months of the date of the final 

determination pursuant to paragraph 

(g)(3) of the section, or if the final 

determination is appealed pursuant to 

paragraph (g)(4) of the section, within 

12 months of the date of the final 

decision on the appeal. 

f. Third-Party Audits Applicability, 40 

CFR 68.59(a) and 68.80(a) 

EPA proposed to add 40 CFR 68.59 

and 68.80, which included requirements 

for both third-party audits and thirdparty auditors. In paragraph (a), EPA 

proposed that owners or operators 

engage a third-party to conduct an audit 

that evaluates compliance with the 

provisions of subpart C or D (as 

applicable) when the applicability 

criteria of 40 CFR 68.58(f) or 68.79(f) are 

met. 

g. Third-Party Auditors and Auditing 

Teams, 40 CFR 68.59(b) and 68.80(b) 

EPA proposed to include paragraph 

(b) to 40 CFR 68.59 and 68.80 which 

provides that owners or operators either 

engage a third-party auditor meeting the 

competency and independence criteria 

of paragraph (c) of the section, or 

assemble an auditing team, led by a 

third-party auditor meeting the 

competency and independence criteria 

of paragraph (c) of the section. The team 

may include other employees of the 

third-party auditing firm or other 

personnel, including facility personnel. 

h. Third-Party Auditor Qualifications, 

40 CFR 68.59(c) and 68.80(c) 

EPA proposed to include paragraph 

(c) to 40 CFR 68.59 and 68.80 which 

includes qualifications for third-party 

auditors and required facility owners 

and operators to document that the 

third-party auditor(s) meet the 

competency and independence 

requirements. Specifically, EPA 

proposed that facility owners or 

operators determine and document that 

the third-party auditors meet the 

competency requirements set forth in 

paragraph (c)(1) and the independence 

requirements in paragraph (c)(2). 

The proposed competency 

requirements for auditors require thirdparty auditors to be: 

• Knowledgeable with the 

requirements of 40 CFR part 68. 

• Experienced with the facility type 

and processes being audited and the 

applicable RAGAGEP; and 

• Trained or certified in proper 

auditing techniques. 

The proposed independence 

requirements that would apply to the 

third-party auditors require the thirdparty auditors to: 

• Act impartially when performing all 

activities under this section. 

• Receive no financial benefit from 

the outcome of the audit, apart from 

payment for the auditing services. 

• Ensure that all third-party 

personnel involved in the audit sign and 

date a conflict-of-interest statement 

documenting that they meet the 

independence criteria of this paragraph. 

• Ensure that all third-party 

personnel involved in the audit do not 

accept future employment with the 

owner or operator of the stationary 

source for a period of at least two years 

following submission of the final audit 

report. For purposes of this requirement, 

employment does not include 

performing or participating in thirdparty audits pursuant to 40 CFR 68.59 

or 68.80. 

In paragraph (c)(3), the proposed rule 

required the auditor to have written 

policies and procedures to ensure that 

all personnel comply with the 

competency and impartiality 

requirements. 

In addition to the proposed approach 

for third-party auditor qualifications, 

EPA particularly sought comment on 

the proposed independence criterion as 

it is modified from the 2017 

amendments rule. 

i. Third-Party Auditor Responsibilities, 

40 CFR 68.59(d) and 68.80(d) 

EPA proposed to include paragraph 

(d) to 40 CFR 68.59 and 68.80 which 

includes the responsibilities for thirdparty auditors. Specifically, EPA 

proposed that the owner or operator 

ensure that the third-party auditor: 

• Manages the audit and participates 

in audit initiation, design, 

implementation, and reporting. 

• Determines appropriate roles and 

responsibilities for the audit team 

members based on the qualifications of 

each team member. 

• Prepares the audit report and where 

there is a team, documents the full audit 

team’s views in the final audit report. 

• Certifies the final audit report and 

its contents as meeting the requirements 

of this section. 

• Provides a copy of the audit report 

to the owner or operator. 

j. Third-Party Audit Report, 40 CFR 

68.59(e) and 68.80(e) 

EPA proposed requirements for the 

audit report in paragraph (e) of 40 CFR 

68.59 and 68.80. Specifically, EPA 

proposed that the audit report: 

• Identify all persons participating on 

the audit team, including names, titles, 

employers and/or affiliations, and 

summaries of qualifications. For thirdparty auditors, include information 

demonstrating that the competency 

requirements in paragraph (c)(1) of the 

section are met. 

• Describe or incorporate by reference 

the policies and procedures required 

under paragraph (c)(3) of the section. 

• Document the auditor’s evaluation, 

for each covered process, of the owner 

or operator’s compliance with the 

provisions of this subpart to determine 

whether the procedures and practices 

developed by the owner or operator 

under this rule are adequate and being 

followed. 

• Document the findings of the audit, 

including any identified compliance or 

performance deficiencies. 

• Summarize any significant 

revisions (if any) between draft and final 

versions of the report. 

• Include the following certification, 

signed and dated by the third-party 

auditor or third-party audit team 

member leading the audit: 

I certify that this RMP compliance 

audit report was prepared under my 

direction or supervision in accordance 

with a system designed to assure that 

qualified personnel properly gather and 

evaluate the information upon which 

the audit is based. I further certify that 

the audit was conducted and this report 

was prepared pursuant to the 

requirements of subpart C of 40 CFR 

part 68 and all other applicable 

auditing, competency, independence, 

impartiality, and conflict of interest 

standards and protocols. Based on my 

personal knowledge and experience, 

and inquiry of personnel involved in the 

audit, the information submitted herein 

is true, accurate, and complete. 

k. Third-Party Audit Findings, 40 CFR 

68.59(f) and 68.80(f) 

EPA proposed requirements for the 

audit findings in paragraph (f) of 40 CFR 

68.59 and 68.80. EPA proposed in 

paragraph (f)(1), to 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 the audit report and develop 

and provide a findings response report. 

EPA proposed that the findings 

response report would include: 


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98 84 FR 69834 (69882). 

• A copy of the final audit report. 

• An appropriate response to each of 

the audit report findings. 

• A schedule for promptly addressing 

deficiencies. 

• A statement, signed and dated by a 

senior corporate officer, certifying that 

appropriate responses to the findings in 

the audit report have been identified 

and deficiencies were corrected, or are 

being corrected, consistent with the 

requirements of subpart C or D of 40 

CFR part 68. 

EPA proposed in paragraph (f)(2), to 

require the owner or operator to 

implement the schedule to address 

deficiencies identified in the audit 

findings response report, and document 

the action taken to address each 

deficiency, along with the date 

completed. 

Proposed paragraph (f)(3) required the 

owner or operator to provide a copy of 

documents required under paragraphs 

(f)(1) and (2) to the owner or operator’s 

audit committee of the Board of 

Directors, or other comparable 

committee, if applicable. 

l. Third-Party Audit Recordkeeping, 40 

CFR 68.59(g) and 68.80(g) 

Finally, in paragraph (g) of 40 CFR 

68.59 and 68.80, EPA proposed 

recordkeeping requirements for the 

owner or operator regarding third-party 

audits. The proposal required the owner 

or operator to retain records at the 

stationary source, including: the two 

most recent final third-party audit 

reports, related findings response 

reports, documentation of actions taken 

to address deficiencies, and related 

records. EPA proposed that these 

requirements would not apply to any 

documents that are more than five years 

old. 

2. Summary of Final Rule 

Based on review of comments, EPA is 

finalizing the proposed provisions for 

third-party audits with the following 

modifications: 

• EPA is revising the requirements in 

paragraph (f) of 40 CFR 68.58 and 68.79 

that triggered when a third-party audit 

would be required. For the final rule, 

two of the three proposed conditions 

(i.e., two accidental releases within five 

years meeting the criteria in 40 CFR 

68.42(a), from a covered process have 

occurred; or one accidental release 

within five years meeting the criteria in 

40 CFR 68.42(a), from a covered process 

at a stationary source in NAICS code 

324 or 325, located within 1 mile of 

another stationary source having a 

process in NAICS code 324 or 325, has 

occurred) are being replaced with one 

condition—one accidental release 

meeting the criteria in 40 CFR 68.42(a), 

from a covered process. The other 

condition allowing an implementing 

agency to require a third-party audit is 

being finalized as proposed. 

• EPA is not finalizing compliance 

audit language at 40 CFR 68.58(a) and 

68.79(a) which proposed auditing for 

every covered process at a facility. This 

corrects an error in the proposed 

rulemaking text. By not finalizing this 

language, compliance audits will remain 

consistent with the current practice, 

which allows for representative 

sampling. A discussion of representative 

sampling as an acceptable practice for 

compliance audits can be found in the 

reconsideration final rule.98

• EPA is also not finalizing 

compliance audit language at 40 CFR 

68.58(h) and 68.79(h) which proposed a 

12-month timeline for a third-party 

audit after a triggering criterion. The 

revised final requirement relies on the 

language at 40 CFR 68.58(f) and 68.79(f) 

which refers to the timeline of a thirdparty audit to be the ‘‘next required 

compliance audit,’’ which is at least 

every 3 years under 40 CFR 68.58(a) and 

68.79(a). 

3. Discussion of Comments and Basis for 

Final Rule Provisions 

In the proposed rule, EPA sought 

comment on several aspects of the 

Agency’s proposed approach for thirdparty audits. As described in the 

proposed rule, third-party audits were 

included in the 2017 amendments rule, 

and at that time EPA addressed many 

general comments regarding the 

inclusion of third-party audits in the 

RMP rule, including the justification for 

and legality of, third party audits, and 

the benefits of third-party audits. This 

final rule contains some differences 

from both the 2017 amendments rule 

and the 2022 SCCAP proposed rule. 

EPA specifically sought comment on 

some of the changes, including: the 

proposed approach for third party 

audits; the proposed independence 

criteria, as modified from the 2017 

amendments rule; whether the selected 

auditor should be mutually approved by 

the owner or operator and employees 

and their representatives; if direct 

participation from employees and their 

representative should be required when 

a third party conducts an audit; and, 

whether EPA should require declined 

findings be included in narrative form, 

or whether the Agency should provide 

specific categories of findings for 

facilities to choose from when reporting. 

The following discusses EPA’s basis for 

the third-party audit provisions adopted 

in this final rule. 

a. Proposed Approach for Third-Party 

Audits 

Regarding the proposed approach for 

third-party audits, EPA received 

comments supporting, opposing, and 

suggesting improvements to various 

aspects of the new proposed approach. 

Numerous commenters expressed 

support for restoring the third-party 

auditing requirements of the 2017 

amendments rule. One of the 

commenters noted that third-party 

auditing helps to ensure a systematic 

evaluation of the full prevention 

program for covered processes, while 

self-auditing may be insufficient to 

prevent accidents and ensure 

compliance. Another commenter 

emphasized that third-party audits will 

also ensure they are unbiased, compared 

to self-audits. Many commenters 

expressed opposition to the third-party 

audit provision. Some commenters 

argued that the third-party auditing 

requirements are unnecessary, would be 

too burdensome, and could be 

potentially costly for facilities. Some 

commenters proposed that the language 

in the provision should be revised to 

state that audits should be performed 

every three years, pointing out an 

inconsistency in when audits would be 

required. 

Several commenters recommended 

that the requirement triggering a thirdparty audit after 2 accidental releases 

within a 5-year period is not stringent 

enough, and facilities should be 

required to conduct a third-party audit 

after one accidental release or discovery 

of significant non-compliance. One of 

the commenters suggested that a 5-year 

window for accident history is too 

narrow. A few commenters suggested 

that third-party audits be required for all 

RMP facilities without waiting for an 

incident to occur. Several commenters 

opposed the 2-accident trigger for thirdparty compliance audits due to its vague 

nature that could result in facilities 

conducting audits when they are not 

warranted. One of the commenters 

suggested that EPA narrow the thirdparty audit trigger from reportable 

accidents to catastrophic releases. 

Another commenter noted that 

accidental releases already trigger 

incident investigations, including the 

proposed root cause analysis; therefore, 

an additional third-party audit will 

unnecessarily dilute the investigation 

effort and will be overly burdensome to 

facilities. 

Comments were received regarding 

the 1-mile audit triggering criteria, 

mostly in opposition, for various 


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reasons, including that it is too vague 

and overly broad. Another commenter 

interpreted this requirement as 

emphasizing protecting select facilities 

over protecting the public. One 

commenter suggested that this 

requirement could penalize facilities 

with an otherwise outstanding 

environmental and safety record 

because a neighboring facility within 

one mile does not. One commenter 

suggested that that the requirement 

triggering a third-party audit should be 

required after one accidental release at 

a facility with a 324 or 325 NAICS code 

regardless of location to another facility. 

Another commenter suggested that EPA 

develop a more user friendly, up-todate, and accessible method of 

determining if a facility is within 1 mile 

of another facility with a 324 or 324 

NAICS code to ensure compliance with 

this provision. 

ii. EPA Responses 

EPA agrees with the comments in 

support of the third-party compliance 

audit requirement to be included in the 

final rule and believes it is appropriate 

to require a subset of RMP-regulated 

facilities to engage competent and 

independent third-party auditors 

following the conditions set forth in this 

final rule after: (1) One accidental 

release meeting the criteria in 40 CFR 

68.42(a) from a covered process at a 

stationary source has occurred; or (2) an 

implementing agency requires a thirdparty audit due to conditions at the 

stationary source that could lead to an 

accidental release of a regulated 

substance, or when a previous thirdparty audit failed to meet the 

competency or independence criteria of 

40 CFR 68.80(c). As indicated in the 

proposal, EPA RMP accident history 

data show that, while 97 percent of all 

RMP facilities had no RMP-reportable 

accidents from 2016–2020, 3 percent of 

all RMP facilities had at least 1 RMPreportable accident and 0.5 percent (n = 

70) of all RMP facilities had 2 or more 

RMP-reportable accidents. EPA views 

one 40 CFR 68.42(a) accidental release 

as a serious matter, considering the 

possible outcomes are deaths, injuries, 

or significant property damage on site, 

or known offsite deaths, injuries, 

evacuations, sheltering in place, 

property damage, or environmental 

damage. Further, the average per 

accident damage estimate from 2016– 

2020 is $5.5 million. It is arguable that 

having even one accident should be a 

cause for concern considering most 

RMP facilities have never had any 

accidents. Additionally, of these 70 

facilities that had at least 1 RMPreportable accident, 61 percent (n = 43) 

had experienced another accident prior 

to 2016. EPA does not believe affected 

communities should have to experience 

the adverse consequences of a second 

reportable accident before an objective 

party comes in to evaluate the facility 

for compliance. The pattern of repeated 

accidents at RMP facilities provide a 

reasoned basis for EPA’s focus on these 

facilities to apply a greater level of risk 

reduction measures. 

EPA notes that under 40 CFR part 68, 

sources with any Program 2 and/or 

Program 3 processes are already 

required to conduct compliance audits 

every three years. This rule does not 

change the requirement that RMP 

facilities regularly conduct RMP 

compliance audits, but adds that, in 

specific situations, those audits must be 

performed by a third-party or a team led 

by a third-party, pursuant to the 

requirements and schedule in 40 CFR 

68.58 and/or 68.79 of the rule. EPA 

notes that having a third-party conduct 

a compliance audit does not preclude 

the facility from conducting an in-house 

compliance audit in tandem. If the goal 

is to ensure that preventative measures 

are in place to prevent future accidents, 

EPA hopes that a facility would want to 

implement all such measures to ensure 

it is compliant. EPA disagrees that the 

third-party audit requirement should be 

expanded to include, as some 

commenters suggested, all RMP 

facilities without waiting for an 

accident. While independent third-party 

audits help to ensure an independent 

systematic evaluation of the full 

prevention program at an RMP facility, 

EPA is not making this a regulatory 

requirement for all RMP sources before 

an accident, at this time, due to the 

increased burden associated with these 

audits. 

EPA acknowledges the costs 

associated with third-party audit 

requirements. Although this final rule 

requires a larger group of stationary 

sources to conduct third-party audits 

than the proposal, the costs are justified. 

The Agency believes the affected group 

of stationary sources are sources that 

will benefit from an independent 

objective audit of their compliance with 

prevention program requirements, as 

they have already had one RMPreportable accidental release. As 

described in the proposed rule, EPA 

recognizes that a relatively small 

number of RMP-regulated facilities have 

had RMP-reportable accidents. EPA 

continues to be concerned with these 

RMP facilities that—despite current 

RMP regulations, enforcement, and 

lessons learned from previous 

accidents—continue to have accidents 

and, in some cases, multiple accidents, 

thereby continuing to put nearby 

communities at risk. Sources that have 

had one accident are substantially more 

likely to have another accident than the 

general population of RMP-regulated 

sources. EPA is concerned that those 

facilities may not have been able to 

identify measures on their own (through 

incident investigations, hazard 

evaluations, and compliance self-audits) 

to properly evaluate and apply 

appropriate prevention program 

measures to stop accident releases from 

occurring. Considering the goal of the 

RMP regulations is to prevent accidental 

releases, EPA believes that the increased 

cost of third-party compliance audits at 

such facilities is therefore justified. 

In response to comments on when 

third-party audits are required, EPA is 

clarifying and finalizing that, whichever 

criteria triggers the requirement, a thirdparty need only be engaged for the next 

required compliance audit(s), which is 

no later than 3 years from the previous 

compliance audit. The revised final 

requirement relies on the language at 40 

CFR 68.58(f) and 68.79(f) which refer to 

the timeline of a third-party compliance 

audit to be the ‘‘next required 

compliance audit,’’ which is at least 

every 3 years under 40 CFR 68.58(a) and 

68.79(a). For example, if a facility 

conducted an internal compliance audit 

in August 2024 and had an RMPreportable accident in October 2024, the 

next compliance audit, required by 

August 2027, would be a third-party 

audit. EPA believes this approach is 

appropriate because it will allow the 

source to remain within their already 

required scheduled timing for audits. 

Further, when an accident occurs, the 

source will be required to conduct an 

RCA within 12 months; the 3-year 

finalized timeframe for the audit will 

give the source flexibility to accomplish 

both within their compliance due dates. 

If the third-party audit is completed 

after the RCA, it will give the source an 

additional opportunity to uncover 

deficiencies that led to the accident. In 

other words, the third-party audit will 

be a follow-up to review the RCA and 

ensure all practices to prevent an 

accident have been resolved. 

The third-party audit provision is 

intended to reduce the risk of future 

accidental releases by requiring an 

objective auditing process to assist 

owners and operators in determining 

whether facility procedures and 

practices comply with subparts C and/ 

or D of the RMP rule (i.e., the prevention 

program requirements), are adequate, 

and are being followed. Thus, EPA is 

finalizing requirements for third-party 

audits under 40 CFR 68.58 and 68.79 to 

require that owners and operators 


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99Response to Comments on the 2016 Proposed 

Rule Amending EPA’s Risk Management Program 

Regulations; https://www.epa.gov/sites/default/ 

files/2016-12/documents/rmp_rtc_compiled_12-21- 

16.pdf. 

ensure that third-party auditors meet 

qualification criteria, that audits are 

conducted and documented, and that 

findings are addressed pursuant to the 

requirements of 40 CFR 68.59 and 68.80, 

as applicable. 

b. Proposed Independence Criteria 

In the preamble to the 2022 SCCAP 

proposed rule, EPA sought comment on 

the proposed independence 

requirements modified from the 2017 

amendments rule. The modification was 

to remove the following auditor 

independence requirements contained 

in 40 CFR 68.59 and 68.80(c)(2)(iii) and 

(iv) to allow more flexibility in choosing 

auditors: 

• Auditors cannot have conducted 

past research, development, design, 

construction services, or consulting for 

the owner or operator within the last 2 

years. 

• Auditors cannot provide other 

business or consulting services to the 

owner or operator, including advice or 

assistance to implement the findings or 

recommendations of an audit report, for 

a period of at least 2 years following 

submission of the final audit report. 

i. Comments 

Many of the comments received 

regarding independence requirements 

did not address the change, which 

removed these two requirements. As 

with the 2017 amendments rule, EPA 

has received comments generally in 

support of the proposed independence 

requirements, and some generally 

opposed to the independence 

requirements. Such general comments 

were previously addressed by EPA 

during the 2017 rulemaking.99

However, EPA did receive some 

comments specifically regarding this 

proposal to remove these two 

independence requirements, generally 

in support of removing these 

requirements. One commenter 

supported removing these requirements, 

describing them as unrealistic and 

unworkable, and another commenter 

described them as onerous and 

unnecessary. This commenter further 

stated that these requirements would 

have resulted in an insufficient pool of 

qualified auditors, harmed the quality of 

audits, and significantly driven up 

costs. However, another commenter 

requested that EPA reconsider the 

proposal to remove the proposed 

auditor independence requirements, 

stating that auditor independence is of 

paramount importance. 

ii. EPA Responses 

EPA is finalizing the proposed 

independence requirements and 

believes this is an important and 

necessary aspect of third-party audits. 

EPA notes that these independence 

requirements were simplified and 

streamlined from the 2017 rule, which 

included a limitation for auditors who 

conducted consulting type services for 

the owner or operator within the last 

two years, or for a period of at least 2 

years following the audit report. EPA 

believes the provision, as adopted, 

ensures additional available 

independent auditors to act in an 

independent and impartial manner, 

allowing more flexibility in choosing 

auditors. 

c. Employee Participation 

In the preamble to the proposed rule, 

EPA sought comment on whether the 

selected auditor should be mutually 

approved by the owner or operator and 

employees and their representatives, 

and if direct participation from 

employees and their representative 

should be required when a third party 

conducts an audit. 

i. Comments 

EPA received comments in support 

and in opposition to these provisions. 

One commenter supported the provision 

that the selection of a third-party 

auditor be mutually approved by the 

owner or operator and employee 

representatives and suggested that 

employees and their representatives be 

involved in all stages of the audit. 

However, several commenters expressed 

opposition to a requirement that the 

selected auditor be mutually approved 

by the owner/operator, employees, and 

employee representatives. One 

commenter noting that this requirement 

would increase the time needed to vet 

and approve auditors, causing 

unnecessary delays. Another commenter 

suggested that the auditor be selected by 

facility management and that bringing 

unknowledgeable employees into the 

decision-making process would be 

burdensome and will not improve 

compliance. 

ii. EPA Responses 

While EPA encourages sources to 

include employee participation during 

third-party audits, EPA is not finalizing 

a provision that requires employee 

participation in third-party audits at this 

time. The Agency expects the 

enhancements to employee 

participation required by this rule will 

motivate owners and operators to 

recognize the benefit of involving their 

employees and their representatives in 

all aspects of the process safety 

management at their facility. 

d. Format of Declined Third-Party 

Compliance Audit Findings 

i. Comments 

EPA has received comments in 

support of, and in opposition to, 

requiring declined findings to be 

included in narrative form. One 

comment in support argued that more 

detailed information on the 

recommendations and decisions are 

needed to ensure that a facility does not 

avoid implementing necessary or 

practical recommendations. Another 

commenter noted that the suggested 

categories would fall short of capturing 

the reasons to decline an audit 

recommendation, such as a 

recommendation that is impractical or 

ineffective. 

Several commenters expressed 

opposition to requiring facilities to 

provide declined findings in narrative 

form in the RMP. Several commenters 

noted that this requirement would be 

overly burdensome. Several commenters 

raised concerns that the public release 

of this information would be confusing 

to those that are not knowledgeable 

about a facility’s processes. Some 

commenters noted that public pressure 

may result in difficult technical debates 

about unfounded findings or cause 

facilities to address findings they 

disagree with. Another commenter 

recommended that the justification for 

declined findings should be consistent 

with the criteria outlined by OSHA’s 

1994 Compliance Directive, asserting 

that this would make a narrative text in 

the RMP repetitive. One commenter 

noted concerns about releasing 

information to local responders, who 

may lack the expertise in chemical 

processes, could result in incorrect 

response activities during an accidental 

release. A couple of commenters 

suggested that this requirement would 

discourage facility leaders from 

encouraging audit teams to identify 

potential hazards to limit the 

information that must be reported to 

EPA. The commenters also suggested 

that audit findings are already readily 

available to EPA. Several commenters 

requested that EPA not mandate that 

facilities make declined findings 

publicly available online due to security 

concerns of releasing highly sensitive 

information. 


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ii. EPA Responses 

In the final rule, EPA is requiring 

facilities to choose from categories, 

similar to those in OSHA’s 1994 

Compliance Directive, as the Agency 

believes it will ease the use and general 

consistency for facilities to report and 

communities to review declined thirdparty audit recommendations. This 

format will also help EPA administer 

and track how facilities choose to 

comply with this provision. 

e. Reporting Requirements 

A commenter suggested that EPA 

ensure that the reporting requirements 

for Program 3 facilities match those for 

Program 2 facilities, noting that 40 CFR 

68.175(k) is missing the key language in 

proposed 40 CFR 68.170(i): ‘‘and 

findings declined from third-party 

compliance audits and justifications.’’ 

EPA notes that this was an error, and 

this has been corrected in the final rule. 

E. Employee Participation 

1. Summary of Proposed Rulemaking 

a. Recommendation Decisions, 40 CFR 

68.83(c) 

EPA proposed to revise 40 CFR 68.83, 

which is applicable to Program 3 

processes, by adding an additional 

provision, paragraph (c), to the written 

employee participation plan of action. 

Proposed paragraph (c) would require 

the owner or operator to consult with 

employees and their representatives on 

addressing, correcting, resolving, 

documenting, and implementing 

recommendations and findings of PHAs 

under 40 CFR 68.67(e), compliance 

audits under 40 CFR 68.79(d), and 

incident investigations under 40 CFR 

68.81(e). 

b. Stop Work Authority, 40 CFR 

68.83(d) 

EPA proposed to revise 40 CFR 68.83, 

which is applicable to Program 3 

processes, by adding an additional 

provision, paragraph (d), to the written 

employee participation plan of action. 

Proposed paragraph (d) would require 

the owner or operator to provide the 

following authorities to employees and 

their representatives, and to document 

and respond in writing, within 30 days 

of the authority being exercised: 

• Refuse to perform a task when 

doing so could reasonably result in a 

catastrophic release. 

• Recommend to the operator in 

charge of a unit that an operation or 

process be partially or completely shut 

down, in accordance with procedures 

established in 40 CFR 68.69(a), based on 

the potential for a catastrophic release. 

• Allow a qualified operator in charge 

of a unit to partially or completely shut 

down an operation or process, in 

accordance with procedures established 

in 40 CFR 68.69(a), based on the 

potential for a catastrophic release. 

c. Accident and Noncompliance 

Reporting, 40 CFR 68.62, 68.83(e) 

EPA proposed to add 40 CFR 68.62, 

which is applicable to Program 2 

processes, to require the owner or 

operator to: 

• Develop a written plan of action 

regarding the implementation of the 

employee participation requirements. 

• Develop and implement a process 

to allow employees and their 

representatives to anonymously report 

unaddressed hazards that could lead to 

a catastrophic release, unreported RMPreportable accidents, or any other 

noncompliance. 

• Provide employees and their 

representatives access to hazard reviews 

and to all other information required to 

be developed under this rule. 

EPA proposed to revise 40 CFR 68.83, 

which is applicable to Program 3 

processes, by adding an additional 

provision, paragraph (e), to the written 

employee participation plan of action. 

Proposed paragraph (e) would require 

the owner or operator to develop and 

implement a process to allow employees 

and their representatives to 

anonymously report unaddressed 

hazards that could lead to a catastrophic 

release, unreported RMP-reportable 

accidents, or any other noncompliance. 

In addition to the proposed approach 

to accident and noncompliance 

reporting, EPA solicited comment on 

whether owners and operators should: 

(1) Distribute an annual written or 

electronic notice to employees that 

employee participation plans and other 

RMP information is readily accessible 

upon request; (2) provide training for 

those plans; and (3) provide training on 

how to access the information. 

2. Summary of Final Rule 

EPA is finalizing the proposed 

provisions for employee participation 

with the following modifications: 

• Revising 40 CFR 68.83(c) to 

specifically apply only to those 

employees knowledgeable in the 

process. 

• Removing from 40 CFR 68.83(d) the 

stop work criterion allowing an 

employee to refuse to perform a task 

when doing so could reasonably result 

in a catastrophic release. 

• Revising 40 CFR 68.83(d) so that the 

two remaining stop work criteria 

specifically apply only to those 

employees knowledgeable in the 

process. 

• Removing from 40 CFR 68.83(d) the 

requirement to document and respond 

in writing within 30 days of the stop 

work authority being exercised. 

• Revising 40 CFR 68.62(b) and 

68.83(e) to allow the person reporting an 

unaddressed hazard, unreported 

accident, or noncompliance to decide 

whether or not they wish to make an 

anonymous report or attribute their 

identity to the report. 

• Revising 40 CFR 68.62(b) and 

68.83(e) to specify the methods of 

making a report to the owner and 

operator and EPA. 

• Adding a provision to 40 CFR 

68.62(b) and 68.83(e) to require the 

owner or operator to keep a written 

record of the report of noncompliance. 

• Adding a provision to 40 CFR 

68.62(a)(1) and 68.83(a)(1) for the owner 

or operator to provide an annual written 

or electronic notice to employees 

indicating RMP information is available. 

• Adding a provision to 40 CFR 

68.62(a)(2) and 68.83(a)(2) requiring the 

owner or operator to provide training on 

the written employee participation plan. 

• Revising 40 CFR 68.62(a) and 

68.83(a) to add the word ‘‘requirements’’ 

as a clarifying edit. 

3. Discussion of Comments and Basis for 

Final Rule Provisions 

a. Recommendation Decisions, 40 CFR 

68.83(c) 

i. Comments 

Many commenters expressed support 

for the proposed requirement in 40 CFR 

68.83(c) for the owner or operator to 

consult with employees and their 

representatives on addressing, 

correcting, resolving, documenting, and 

implementing recommendations and 

findings of PHAs, compliance audits, 

and incident investigations as a way of 

promoting collaboration between 

employees and management 

representatives. One State agency 

remarked that the goal of the provision 

is to ensure the team remains effective 

and is reflective of diverse viewpoints 

and backgrounds. However, other 

commenters opposed the provision, 

stating that transferring decision-making 

authority to employees presents 

additional legal issues in terms of 

employee responsibility and 

accountability, such as in the event an 

incident occurs, is investigated, and 

results in disciplinary action or legal 

liability. Another commenter noted that 

EPA’s use of ‘‘employees and their 

representatives’’ can be viewed too 

broadly. 


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ii. EPA Responses 

EPA disagrees that this provision 

presents additional legal issues. This 

provision does not transfer decisionmaking responsibility to employees and 

their representatives. The provision also 

does not attempt to shift ultimate 

accountability to the employee for 

decisions that the owner or operator is 

responsible for. For example, at 40 CFR 

68.67(e), the PHA provision indicates 

the owner or operator shall establish a 

system to promptly address the team’s 

findings and recommendations, to 

assure that the recommendations are 

resolved in a timely manner, and that 

the resolutions are documented. Despite 

this provision, the regulated entity 

remains the owner or operator of the 

stationary source. The requirement to 

consult with employees and their 

representatives does not make 

employees the decision-making 

authority. This provision does, however, 

provide for consultation that gives 

employees the opportunity to provide 

their input and perspective, based on 

their firsthand knowledge of specific 

process safety concerns, before final 

decisions are made regarding whether to 

implement recommended process safety 

solutions. This provision helps ensure 

that a well-informed approach is 

applied when finalizing resolutions for 

reducing hazards and mitigating process 

safety risks. 

In response to the comment that the 

term ‘‘employees and their 

representatives’’ can be viewed too 

broadly, EPA has amended the language 

to specify that the provision only 

applies to employees knowledgeable in 

the process and their representatives. 

EPA expects employees involved in the 

consultation to be knowledgeable in the 

process, as these employees are 

expected to have a better firsthand 

understanding of the process than 

employees who do not work in the 

process, who are new to the process, or 

who do not understand the process. 

EPA expects that these employees are 

likely to also be the employees that have 

the qualifications to participate as a 

team member when developing 

recommendations from incident 

investigations under 40 CFR 68.81(c), 

compliance audits under 40 CFR 

68.79(b), and PHAs under 40 CFR 

68.67(d). At 40 CFR 68.67(d), the PHA 

provision indicates that the PHA shall 

be performed by a team with expertise 

in engineering and process operations, 

and the team shall include at least one 

employee who has experience and 

knowledge specific to the process being 

evaluated. EPA believes it is prudent to 

apply at least the same qualification 

criterion to employees who can 

participate in developing 

recommendations as to those who can 

assist in deciding whether those 

recommendations will be implemented. 

After review of the comments, the 

Agency continues to believe that 

involving directly affected employees 

and their representatives in 

recommendation discussions and 

decisions will help ensure that the most 

effective recommendations for reducing 

hazards and mitigating risks to 

employees and the public are given the 

proper consideration. EPA is finalizing 

the proposed provision with the 

modification, for clarity, that those 

employees who are to be consulted on 

addressing, correcting, resolving, 

documenting, and implementing the 

recommendations and findings of PHAs, 

compliance audits, and incident 

investigations must be those 

knowledgeable in the process. 

b. Stop Work Authority, 40 CFR 

68.83(d) 

i. Comments 

Several commenters supported the 

proposed stop work authority provision 

of the employee participation plan 

under 40 CFR 68.83(d). One Federal 

agency indicated that any program that 

does not appropriately enable workers 

to freely exercise stop work authority in 

necessary circumstances would allow 

risks to occur and accumulate. Some 

commenters supported the provision in 

principle but recommended 

modifications. A couple of commenters 

recommended removing the 30-day 

response period arguing that it should 

not be necessary when the authority is 

primarily used in imminently dangerous 

situations. A few commenters asserted 

that EPA should also require prompt 

reports of all stop-work authority usage 

so that EPA and the public are made 

aware and can evaluate whether 

additional quick action is needed to 

support the workers, assure compliance, 

and save lives. 

Some commenters did not support the 

proposed stop work authority provision 

of the employee participation plan. One 

commenter noted that having uniform 

requirements and procedures for an 

operation shutdown ignores the diverse 

array of regulated facilities in terms of 

industry and process. The commenter 

asserted that EPA should allow for 

operational flexibility in recognition of 

these circumstances and emphasized 

the risk an abrupt shutdown of complex 

chemical processes would pose. 

Another commenter asserted that the 

underlying intent of the provision can 

be better addressed by establishing clear 

written guidelines on how employees 

can raise such concerns in ‘‘real time.’’ 

Several commenters claimed that the 

stop work authority could result in 

increased safety risks, indicating the 

potential for employees to lack adequate 

knowledge or training to make such a 

decision. The commenters expressed 

further concern that the frequency of 

transient operations could increase, and 

that more unplanned or abrupt 

shutdowns could occur, which are often 

dangerous. A few of the commenters 

noted that giving this authority to all 

employees would leave facilities more 

susceptible to RMP incidents occurring 

and make the processes at RMP-covered 

facilities less safe. 

A couple of commenters opposed the 

provision and noted that the language in 

the stop work authority provision would 

be too general, inevitably allowing every 

RMP covered process to be shut down 

by an employee. The commenters noted 

that this does not align with EPA’s 

stated purpose of the RMP rule, which 

is to improve safety at facilities. One 

State agency expressed concerns about 

and opposed the provision allowing 

employees to refuse to perform a task 

when they believe doing so could 

reasonably result in a catastrophic 

failure. The commenter further stated 

that it is extremely important that any 

stop work authority be implemented in 

a manner that minimizes the chance for 

adverse unintended consequences. 

ii. EPA Responses 

The proposed stop work provision 

within the employee participation 

section of this final rule is intended 

only to include the stop work 

authorities, established by the operating 

procedure provisions under 40 CFR 

68.69(a), into the written employee 

participation plan. This provision is not 

intended to create new authorities or 

require additional components to those 

already developed. The final rule 

conforms the amendments to this intent. 

Therefore, while EPA believes that it is 

useful to evaluate any stop work 

authority exercised, EPA expects these 

internal evaluations to already be 

occurring in the owner or operator’s 

annual review of operating procedures, 

through training activities, or when 

conducting compliance audits. The final 

rule does not add a provision to require 

evaluations be included in the written 

plan. Additionally, EPA agrees that stop 

work authorities are expected to be 

carried out in imminently dangerous 

situations such that a 30-day response to 

an authority being exercised long after 

the threat has passed may not be 

practical. Regarding providing reports of 

stop work to EPA, the Agency disagrees 


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100 87 FR 53591. 

that this is necessary because stop work 

should be exercised to prevent 

imminently dangerous situations from 

resulting in catastrophic releases and 

therefore should not be contingent on or 

require quick action by outside parties. 

Furthermore, the Agency does not have 

the capability or resources to 

immediately respond to all instances of 

stop work being exercised. If, for some 

reason, quick action by outside parties 

was needed, EPA believes that the 

emergency response plans required by 

the rule should already outline a plan 

for responding to dangerous situations 

by the facility and/or local responders 

as they will be the most familiar with 

the source’s processes and hazards. 

The proposed rule provided an 

extensive discussion of the stop work 

authority that is already inherent in the 

current RMP rule.100 As the proposed 

rule explained, the current RMP rule 

already addresses many aspects of a 

stop work authority that provides means 

for employees to identify and resolve 

imminent operational risks before they 

occur. Operating procedures, 

maintenance/mechanical integrity, and 

their associated training requirements, 

which are already mandatory under the 

rule, create a stop work authority as 

they address the circumstances and 

procedures to identify unsafe 

operations. EPA believes each facility’s 

individual operating procedures and 

approach to correcting equipment 

deficiencies give owners and operators 

the flexibility to design a stop work 

authority for their process operations 

that remains adaptable to the 

procedures already in place. Therefore, 

EPA disagrees with the comments that 

a stop work authority documented in 

the employee participation plan would 

cause more shutdowns and possibly 

more accidents, as the authority that is 

being provided by the final rule’s 

provisions leverages existing operating 

procedure and maintenance 

requirements. In reference to the 

comment citing the potential for an 

increase in safety risks when an 

employee lacks adequate knowledge to 

make a stop work decision, EPA has 

amended the provision to specify that 

this authority should be exercised only 

by employees knowledgeable in the 

process and their representatives. 

EPA disagrees that the new stop work 

authority provision does not align with 

the purpose of the RMP rule. Under the 

existing RMP rule, operating procedures 

are designed for, and assigned to, 

employees who will be trained on 

performing the tasks described, thereby 

producing employees knowledgeable in 

the process they are working in. 

However, because of the significant 

disruption to process operations that 

can occur when stop work authority is 

exercised, EPA agrees that it is useful to 

explicitly state that these authorities are 

applicable only to employees who are 

knowledgeable in the process. Further, 

EPA believes a work culture that 

promotes process safety allows for 

opportunities for employees to refuse to 

perform work. In a scenario where there 

is a potential for a catastrophic release, 

EPA believes it is important to take 

further steps to shutdown a process to 

prevent an accident. Rather than 

refusing to perform work only, steps 

necessary to shut down the process 

should be set in motion. Therefore, the 

Agency is deleting the change noted 

below from 40 CFR 68.83(d) to ensure 

that potentially imminent catastrophic 

releases are followed through with 

properly. The basis for including stop 

work authorities in the employee 

participation plan is to enhance 

authorities already provided to 

employees under the rule. 

After review of comments, EPA 

maintains that it is important to ensure 

facilities’ employees have authorities to 

manage unsafe work as they are one of 

the last lines of defense to protect 

human health and the environment 

from a catastrophic release. EPA, 

however, does agree with some 

recommendations offered in the 

comments to enhance the provision. 

Therefore, EPA is finalizing the 

proposed provision with the following 

modifications as discussed above: 

• Removing from 40 CFR 68.83(d) the 

requirement to document and respond 

in writing within 30 days of the stop 

work authority being exercised. 

• Removing from 40 CFR 68.83(d) the 

stop work criterion allowing an 

employee to refuse to perform a task 

when doing so could reasonably result 

in a catastrophic release. 

• Revising 40 CFR 68.83(d) so that the 

two remaining stop work criteria 

specifically apply to those employees 

knowledgeable in the process and their 

representatives. 

c. Accident and Non-Compliance 

Reporting, 40 CFR 68.62(b) and 68.83(e) 

i. Comments 

EPA received comments supporting, 

opposing, and suggesting improvements 

to the accident and non-compliance 

reporting provision. One commenter 

supported EPA’s proposal to require an 

anonymous reporting mechanism. The 

commenter stated that owners and 

operators should be required to make all 

employee participation plans and RMPs 

accessible and also should be required 

to provide annual training, at minimum, 

to facility employees. One of the labor 

commenters who supported the 

provision in principle also expressed 

concern that the language proposed 

does not adequately specify what the 

reporting process should be. The 

commenter also stated that the 

provision is of limited value since an 

employee could report anonymously 

without a formal process. The 

commenter likewise stated that the 

provision is restrictive since, as written, 

the requirement excludes reporting in 

situations where the reporter does not 

wish to remain anonymous. Although a 

couple of commenters agreed that it is 

important that employees can voice 

concern without fear of repercussions, 

these commenters stated that 

anonymous reports require someone to 

judge the validity of the report. Some of 

the industry commenters also stated that 

anonymous reports could create a 

burden. The commenters expressed 

further concern that, for example, 

reports could be filed by misinformed 

persons, thus necessitating the 

development of methods and time 

frames to determine the credibility of 

reports as well as when appropriate 

action should be taken. One of the 

commenters stated that a better 

approach is to allow RMP-regulated 

entities to continue efforts to improve 

safety cultures, strengthen safety teams, 

and foster employee communication in 

lieu of expending resources on 

anonymous reporting features. 

ii. EPA Responses 

EPA does not expect to see a ‘‘onesize fits-all’’ plan developed by sources 

for reporting areas of non-compliance. 

Some RMP facilities are less complex, 

operating with a handful of employees, 

while other RMP facilities have very 

complex processes that involve 

hundreds of employees. Like other 

provisions of the RMP regulation, the 

employee participation provisions allow 

facility owners and operators the 

flexibility to exercise reasonable 

judgement in determining how to best 

engage their employees and make them 

aware of their facility’s efforts to apply 

the RMP rule to process operations. In 

the absence of a more specific 

performance standard like RAGAGEP or 

a specific direction, the RMP rule relies 

on the reasonable judgments and efforts 

of regulated entities in designing 

compliance programs that are aimed at 

preventing or mitigating accidental 

releases. EPA agrees with commenters 

that it is useful for individual RMP 

facility owners and operators to 

continually improve their efforts to 


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101Some EPA resources to report RMP noncompliance include: https://echo.epa.gov/reportenvironmental-violations, https://www.epa.gov/ 

rmp/epa-regional-rmp-contacts. 

enhance safety cultures, strengthen 

safety teams, and foster employee 

communication. EPA also agrees that 

the most effective programs probably 

already comply with most aspects of the 

provision. EPA believes that sources 

should create a welcoming atmosphere 

for employees to discuss safety concerns 

internally. However, commenters, 

particularly commenters from labor 

organizations who supported the 

provision, stated that this is not always 

the case. Therefore, EPA maintains that 

this provision is necessary to establish 

a minimum standard for conduct. To 

ensure a consistent understanding of 

EPA’s expectations for this provision, 

modifications to the provision are 

discussed below. 

To clarify EPA’s intent in the 

proposal, EPA is specifically defining in 

this final rule that the process 

developed to report noncompliance 

must detail how to report to the owner 

or operator and/or EPA. It is 

understandable that in some instances 

employees will feel more comfortable 

reporting to one or the other entity (or 

both), which will be up to the reporter, 

but the details provided in the plan 

should provide clear instructions for 

how to report to both entities. Reporting 

areas of non-compliance to the owner or 

operator allows employers to become 

aware of areas of concern and/or 

opportunities to improve process safety. 

It is expected that validating reports will 

not impose a heavy burden on the 

owner or operator as they should 

already be familiar with their level of 

compliance with the rule through 

regular compliance monitoring 

activities, such as triennial compliance 

audits. While EPA is not prescribing 

details of how a facility needs to followup with the report, the owner or 

operator will be required to at least 

maintain a record of the report. EPA 

believes it is in the owner or operator’s 

best interest for the necessary follow-up 

to address employees’ process safety 

concerns and/or areas where the owner 

or operator may have fallen short on 

compliance with the rule. When an 

employer is engaged first and does not 

resolve an issue, it is expected that the 

next step for reporting noncompliance 

will be to report to EPA. Reporting areas 

of non-compliance to EPA 101 will allow 

the Agency’s Office of Enforcement and 

Compliance Assurance to determine the 

validity of the report received through 

appropriate levels of follow-up, 

investigation, and enforcement, if 

necessary. 

Regarding anonymous reporting, EPA 

recognizes both the concern for 

anonymity and the desire from 

employees wanting to identify 

themselves as the reporter. EPA believes 

this option to remain anonymous or not 

will be particularly useful if there are 

additional follow-up steps that the 

reporter and or the owner/operator must 

take in order to resolve an issue. 

Regarding the concern that reporting 

could create a burden or be performed 

by misinformed employees, EPA notes 

that the current Program 3 employee 

participation provisions under 40 CFR 

68.83 already provide employees access 

to all RMP-related information. The new 

requirement for Program 2 processes 

under 40 CFR 68.62(c) will allow this as 

well. However, EPA is concerned that 

some sources may provide RMP-related 

information to their employees without 

providing details or explanations of the 

information. EPA agrees with comments 

stating that workers without required 

information and training may be 

unaware of their opportunities and 

authorities to participate in hazard 

prevention, and that the lack of worker 

understanding will inevitably lead to 

less participation. Therefore, to ensure 

that employees are regularly reminded 

that RMP information is available to 

them, owners and operators of all 

Program 2 and Program 3 processes will 

be required to provide an annual written 

or electronic notice to employees 

indicating that RMP information is 

available. 

The Agency also believes that 

management, employees, and their 

representatives involved in the process 

could benefit from training on employee 

participation plans to ensure these 

facility stakeholders are aware of the 

information included in the plans or 

otherwise available. A more thorough 

understanding through the training may 

help reduce unvalidated noncompliance reports, some of which 

commenters indicated could become a 

concern associated with this 

noncompliance reporting provision. 

Ultimately EPA expects training on 

employee participation plans will help 

employees identify, and owners and 

operators correct, issues that may 

prevent and mitigate accidents. 

After review of EPA’s preferred 

approach, options, and comments, the 

Agency maintains that workers can play 

an important role in promoting process 

safety through reporting 

noncompliance. EPA, however, does 

agree with some recommendations 

offered in the comments to enhance the 

clarity of the provision. Therefore, EPA 

is finalizing the proposed provision 

with the following modifications as 

previously discussed: 

• Revising 40 CFR 68.62(b) and 

68.83(e) to specify the report methods to 

either or both the owner and operator 

and EPA. 

• Revising 40 CFR 68.62(b) and 

68.83(e) to let anonymity be decided by 

the reporter. 

• Adding a provision to 40 CFR 

68.62(b) and 68.83(e) to require the 

owner or operator to keep a written 

record of the report of noncompliance. 

• Adding a provision to 40 CFR 

68.62(a)(1) and 68.83(a)(1) for the owner 

or operator to provide an annual written 

or electronic notice to employees 

indicating RMP information is available. 

• Adding a provision to 40 CFR 

68.62(a)(2) and 68.83(a)(2) for training 

on the written employee participation 

plan. 

VI. Emergency Response 

A. Summary of Proposed Rulemaking 

1. Community Emergency Response 

Plan Amplifications, 40 CFR 68.90(b), 

68.95(c) 

EPA proposed to revise 40 CFR 

68.90(b)(1) and 68.95(c), which are 

applicable to non-responding and 

responding facilities respectively, to 

detail the required elements of the 

EPCRA community emergency response 

plan in RMP regulatory text. The 

proposed RMP regulatory text indicated 

that the EPCRA community emergency 

response plan should include: (1) 

Identification of facilities within the 

emergency planning district; (2) 

identification of routes likely to be used 

for the transportation of substances on 

the list of extremely hazardous 

substances (EHS); (3) identification of 

additional facilities contributing or 

subjected to additional risk due to their 

proximity to facilities, such as hospitals 

or natural gas facilities; (4) methods and 

procedures to be followed by facility 

owners and operators and local 

emergency and medical personnel to 

respond to any release of such 

substances; (5) designation of a 

community emergency coordinator and 

facility emergency coordinators, who 

shall make determinations necessary to 

implement the plan; (6) procedures 

providing reliable, effective, and timely 

notification by the facility emergency 

coordinators and the community 

emergency coordinator to persons 

designated in the emergency plan, and 

to the public, that a release has 

occurred; (7) methods for determining 

the occurrence of a release, and the area 

or population likely to be affected by 

such release; (8) description of 


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emergency equipment and facilities in 

the community and at each facility in 

the community, as well as an 

identification of the persons responsible 

for such equipment and facilities; (9) 

evacuation plans, including provisions 

for a precautionary evacuation and 

alternative traffic routes; (10) training 

programs, including schedules for 

training of local emergency response 

and medical personnel; and (11) 

methods and schedules for exercising 

the emergency plan. The proposed 

revisions also included that upon 

request of the LEPC or emergency 

response officials, the owner or operator 

would be required to promptly provide 

to the local emergency response officials 

information necessary for developing 

and implementing the community 

emergency response plan. 

2. Community Notification of RMP 

Accidents, 40 CFR 68.90(b), 68.95(a), (c) 

EPA proposed to revise and add 

provisions to 40 CFR 68.90(b), 

paragraphs (b)(3) and (6) respectively, 

pertaining to non-responding facility 

designation qualifications. Revised 

proposed paragraph (b)(3) would have 

required the owner or operator to 

provide to emergency responders timely 

data and information detailing the 

current understanding and best 

estimates of the nature of a release when 

there is a need for a response. Proposed 

paragraph (b)(6) would require the 

owner or operator to maintain and 

implement, as necessary, procedures for 

informing the public and the 

appropriate Federal, State, and local 

emergency response agencies about 

accidental releases of RMP-regulated 

substances. Proposed paragraph (b)(6) 

would additionally require the owner or 

operator to ensure that a community 

notification system is in place to warn 

the public within the area potentially 

threatened by the release. 

EPA proposed to revise 40 CFR 68.95, 

which is applicable to responding 

facilities, by revising paragraphs (a)(1)(i) 

and (c). Revised proposed paragraph 

(a)(1)(i) would have required the owner 

or operator to include in the procedures 

for informing the public about releases, 

assurance that a community notification 

system is in place to warn the public 

within the area threatened by the 

release. Revised proposed paragraph (c) 

would additionally require the 

emergency response plan to include 

providing timely data and information 

detailing the current understanding and 

best estimates of the nature of the 

release when a release occurs. 

3. Emergency Response Exercise 

Program, 40 CFR 68.96(b) 

EPA proposed to revise 40 CFR 68.96, 

which is applicable to responding 

facilities, by revising the frequency 

requirement for field exercises under 

paragraph (b)(1)(i) and the 

documentation requirements for field 

and tabletop exercises under paragraph 

(b)(3). Proposed paragraph (b)(1)(i) 

would require the owner or operator to 

conduct a field exercise at least once 

every 10 years unless the appropriate 

Federal, State, and local emergency 

response agencies agree in writing that 

such frequency is impractical. If 

emergency response agencies agree, the 

owner or operator shall consult with 

emergency response officials to 

establish an alternate appropriate 

frequency for field exercises. Proposed 

paragraph (b)(3) would require the field 

and tabletop exercise reports to include 

a description of the exercise scenario, 

names and organizations of each 

participant, an evaluation of the 

exercise results including lessons 

learned, recommendations for 

improvement or revisions to the 

emergency response exercise program 

and emergency response program, and a 

schedule to promptly address and 

resolve recommendations. 

B. Summary of Final Rule 

EPA is not finalizing the proposed 

community emergency response plan 

amplifications at 40 CFR 68.90(b)(1) and 

68.95(c). 

EPA is finalizing the proposed 

provisions for community notification 

of RMP accidents and the emergency 

response exercise program with the 

following modifications: 

• Revising 40 CFR 68.90(b)(3) and 

68.95(c) to allow other existing 

notification mechanisms or regulations 

that satisfy the notification 

requirements, if applicable. 

• Revising 40 CFR 68.90(b)(6) and 

68.95(a)(1)(i) to specify that the owner 

or operator should partner with local 

response agencies to ensure a 

community notification system is in 

place, and to document the 

collaboration. 

• Removing from 40 CFR 

68.96(b)(1)(i) the requirement that 

Federal and State agencies require 

consultation when determining a field 

exercise frequency less than once every 

10 years. 

• Revising 40 CFR 68.95(a)(1)(i) to 

add the word ‘‘potentially’’ as a 

clarifying edit. 

C. Discussion of Comments 

1. Community Emergency Response 

Plan Amplifications, 40 CFR 68.90(b), 

68.95(c) 

a. Comments 

EPA received comments supporting 

and opposing the proposal to revise 40 

CFR 68.90(b)(1) and 68.95(c) to detail 

the required elements of the EPCRA 

community response plan in RMP 

regulatory text. Some commenters in 

support of the amplifications indicated 

that it is important to reaffirm and 

ensure coordination with the EPCRA 

emergency response planning teams. 

Another commenter mentioned that the 

use of ‘‘should’’ in the community 

response plan renders the entire section 

as voluntary while the commenter 

suggested that the section should 

instead be required. Some commenters 

stated that EPA should not expand the 

regulatory language. One commenter 

expressed concern that it is not 

reasonable to expect facilities to ensure 

that plans include the features in 

proposed 40 CFR 68.90(b). The same 

commenter also asked for greater clarity 

over the use of the word ‘‘should,’’ 

rather than ‘‘must.’’ One commenter 

noted that it is inappropriate for EPA to 

put the responsibility of the community 

plan on the RMP facility. Some 

commenters expressed confusion over 

the requirement that RMP facilities 

assume responsibility for an emergency 

plan only if the LEPC’s current plan is 

inadequate. These commenters further 

explained that this places the burden of 

being held accountable on the RMP 

facility for the adequacy of a plan that 

they have no control over. 

b. EPA Responses 

EPA notes that the modification to 40 

CFR 68.90(b)(1) and 68.95(c) in the 

proposed rule was intended only to 

include details of EPCRA’s community 

emergency response plan requirements 

into RMP regulatory text for reference, 

not to ultimately transfer plan 

development and implementation 

responsibility to RMP facilities. Rather, 

EPA’s goal was to make it simpler for 

RMP-regulated facilities to be 

knowledgeable about the components of 

the community emergency response 

plan to ensure that they understand how 

their facility’s processes could impact 

the larger community emergency 

response plan and understand the 

facility’s role in coordination of the 

required plan provisions. While this 

proposed modification did not include 

a new regulatory requirement, EPA 

acknowledges the confusion expressed 

by including EPCRA requirements in 


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the RMP regulatory text. Therefore, after 

reviewing the comments, the Agency 

has decided not to finalize this 

proposed regulatory text modification. 

EPA notes that 40 CFR 68.90(b)(1) and 

68.95(c) will continue to reference the 

statutory citation for the EPCRA 

community response plan, 42 U.S.C. 

11003. EPA encourages owners and 

operators to be familiar with all the 

elements of the community emergency 

response plan to effectively consider the 

potential impacts of a chemical release 

from their facility on the community. 

2. Community Notification of RMP 

Accidents, 40 CFR 68.90(b), 68.95(a), (c) 

Providing Timely Data to First 

Responders 

a. Comments 

Some commenters supported the 

proposed provision for facility owners 

and operators to provide timely release 

data to local first responders when there 

is a need for such response. One 

commenter in support indicated that, 

while it is true that LEPCs and local first 

responders can utilize tools to perform 

analyses outside the fence line, the 

facility’s own first-hand information 

will improve this process and increase 

first responder awareness and safety 

during a response. Some supporters also 

offered modifications to the provision. 

One commenter suggested that EPA 

require a follow-up notice of the actual 

final release information in the shortterm in addition to the public meeting 

requirement. Similarly, another 

commenter pointed out that real-time 

air quality data should be made 

available to the public and not just 

select officials. Some commenters did 

not support the proposed provision. A 

few commenters stated that the 

requirement to provide ‘‘necessary 

entities’’ with ‘‘accurate and timely 

data’’ is duplicative and vague. These 

commenters urged EPA to remove this 

provision. Commenters added that 

facilities are already required to notify 

and provide information of certain 

releases to the National Response Center 

(NRC), State Emergency Response 

Commissions (SERCs), and LEPCs under 

EPCRA and the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

(CERCLA). 

b. EPA Responses 

EPA disagrees that the provision is 

duplicative and vague. EPA believes 

that the provision offers the appropriate 

level of flexibility that may be needed 

during accidental release events. As 

stated in the proposal, the expectation 

for this provision is for owners and 

operators to provide initial information 

about their release to local responders as 

soon as possible, and to provide more 

accurate data or correct erroneous data 

that had been previously relayed when 

new information is available. EPA 

acknowledges that the time to gather 

and update release information can vary 

widely depending on the circumstances, 

extent and consequences of the release, 

and the status of individuals conducting 

the investigation during the accident. 

EPA also acknowledges that local 

responders may be different entities 

(e.g., fire department, Hazmat team, 

police, etc.) depending on the 

community. The initial and follow-up 

information required by this provision 

will help facilitate proper 

communication among responders and 

the facility to ensure the appropriate 

type and level of response is provided 

during a release. 

While EPA encourages follow-up 

communication with local responders 

and the public after conclusion of 

response activities, EPA does not 

believe that an interim written followup-notice of the actual final release 

information should be required after the 

response ends. EPA believes that the 

public meeting requirement at 40 CFR 

68.210 and the five-year accident 

history requirement at 40 CFR 68.42 

provide adequate time for the facility to 

gather and finalize information to share 

with the public. The Agency notes that 

sources are required to update their 

accident histories in their RMPs within 

6 months of an RMP-reportable accident 

(40 CFR 68.195(a)). Additionally, many 

States separately require follow-up 

release reporting within a short time 

after response activities are concluded 

(e.g., 30 days), and this information may 

be publicly available. 

Regarding providing real time air 

quality data to the public, EPA 

acknowledges the need to consider 

expanding fenceline monitoring 

requirements for RMP-regulated 

facilities to provide real time data to 

local responders and the public. EPA 

took comment on this in the proposal 

and is reviewing the comments received 

in consideration for a future rulemaking. 

In response to the comment that 

facilities are already required to notify 

and provide information about 

imminent releases to the NRC, SERCs, 

and LEPCs under CERCLA and EPCRA, 

EPA has amended the language in the 

final rule to allow existing release 

notification requirements to satisfy this 

provision, if applicable. EPA 

acknowledges that EPCRA section 304, 

CERCLA section 103, and the CSB have 

similar Federal reporting requirements, 

and that there may also be State-only 

requirements for release notification and 

reporting that could meet this 

requirement. Therefore, EPA believes 

the amendment to this provision can 

help prevent any undue burden in 

complying with multiple requirements 

when a chemical release occurs. EPA 

believes this provision is particularly 

useful in closing regulatory gaps for 

chemical release notification where 

other statutory requirements do not 

apply. For example, reporting under 

EPCRA section 304 is required only to 

the SERC and LEPC, and reporting 

under CERCLA section 103 is required 

only to the NRC. Additionally, not all 

RMP regulated substances are EPCRA 

extremely hazardous substances and/or 

CERCLA hazardous substances (e.g., 

propane, butane, pentane, and hydrogen 

are regulated under RMP, but not under 

EPCRA section 304 or CERCLA section 

103); thus, while there might be some 

overlap, some chemicals will require 

only Federal release reporting under 

RMP. 

After review of comments, EPA 

maintains that the requirement to 

provide timely release data to 

responders in the case of an accidental 

release will help ensure that local 

responders have sufficient information 

to make the best decision on whether 

community notification is appropriate. 

Furthermore, EPA does agree with the 

recommendation offered in the 

comments to prevent undue burden in 

complying with multiple requirements 

when a chemical release occurs. EPA is 

therefore finalizing the proposed 

provision with the following 

modification as previously discussed— 

revising the proposed provisions for 40 

CFR 68.90(b)(3) and 68.95(c) to allow 

existing notification mechanisms or 

regulations to satisfy the RMP release 

notification requirements if applicable. 

Ensure a Community Notification 

System is in Place 

a. Comments 

Some commenters supported the 

provision that facilities ensure a 

community notification system is in 

place. One commenter explained that 

current notification procedures are 

inadequate, with some community 

members not learning about a release 

until hours afterward. One commenter 

noted that while they support the 

presence of State and/or local alerting 

authorities, EPA should consider that 

this notification system may not be 

appropriate for all communities, 

especially those that are dealing with 

systemic barriers to safety and justice. A 

few commenters suggested that, to 

remove the burden on facilities to 


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102A jurisdiction with the designated authority to 

alert and warn the public when there is an 

impending natural or human-made disaster, threat, 

or dangerous or missing person; https://

www.fema.gov/emergency-managers/practitioners/ 

integrated-public-alert-warning-system/publicsafety-officials/sign-up. 

ensure the notification systems of local 

responders, EPA should change ‘‘and 

ensure that’’ to ‘‘and partner to ensure 

that.’’ Some commenters opposed the 

language requiring RMP facilities to be 

responsible for community warning 

systems and notification of emergencies 

to the local community. Several 

commenters stated the requirements of 

public notification are better suited to 

third parties, LEPCs, and government 

agencies already tasked with this 

coordination. A couple of the 

commenters stated these agencies have 

the resources and infrastructure needed 

for disseminating emergency 

information to a community and 

coordinating local response. A few 

commenters noted that while Integrated 

Public Alert & Warning Systems 

(IPAWS) are in use in communities 

nationwide, many facilities are not in 

areas with these systems. Furthermore, 

a few commenters expressed that 

neither the burden of ensuring IPAWS 

capabilities nor providing direct 

notification to the public should fall on 

RMP facilities. Another commenter 

noted that IPAWS does not accept 

information from private entities, only 

government entities. One commenter 

stated that while they support the need 

for a community notification system, 

they believe EPA should ensure that 

RMP facilities covered under this rule 

are in areas already covered by the 

IPAWS and, if so, re-evaluate how this 

may impact local governments and their 

ability to allocate resources. 

b. EPA Responses 

In response to comments that the 

language in this provision should be 

changed from ‘‘and ensure that’’ to ‘‘and 

partner to ensure that’’ a community 

notification system is in place, EPA has 

amended the language as suggested. It 

was not EPA’s intention in the proposed 

provision to transfer inherent 

government responsibilities to RMP 

regulated facilities. Rather, EPA’s 

intention for this provision has always 

been for facility owners and operators to 

work with the local responders to 

ensure that, during a release, a 

notification system is in place that will 

notify the public of the impending 

situation. The Agency expects that in 

most cases government emergency 

response officials will be the entities 

providing the notice. However, for the 

purposes of this rule, regulated facilities 

which have accidental releases are 

responsible for ensuring a prompt 

emergency response to any release at 

their facility’s covered processes in 

order to protect human health and the 

environment. As discussed in the 

proposal, if local public responders are 

not capable of providing such a 

response, the owner or operator is 

ultimately responsible for ensuring 

effective emergency response to any 

release at their facility occurs. 

EPA expects the partnership between 

facility owners and operators and 

emergency response officials to ensure a 

public notification system is in place 

should occur at least during annual 

coordination discussions under 40 CFR 

68.93. Under 40 CFR 68.93, owners and 

operators are required, among others, to 

annually coordinate response needs 

with local emergency planning and 

response organizations to determine 

how the facility is addressed in the 

community emergency response plan. A 

component of the community 

emergency response plan is public 

notification of chemical releases, and it 

is expected that this component will be 

discussed and documented by the 

facility owner or operator as part of the 

annual coordination obligations. 

With regard to specific comments 

about IPAWS, EPA acknowledges that 

while IPAWS is not currently 

operational in all communities, it could 

be. IPAWS is available in all States 

statewide, and, if not currently available 

in certain local communities, it can be 

made available if the local designated 

government authorities apply to be an 

Alerting Authority.102 While IPAWS is 

a well-known option as a notification 

system compliant with this provision, 

EPA is not requiring the use of this 

specific system to be the one solely used 

to notify the public. EPA encourages 

facility owners and operators to work 

with response agencies to determine 

how best to alert a potentially affected 

community about impending chemical 

releases. 

After review of comments, EPA 

maintains that the requirement to 

ensure that, during a release, all 

necessary resources are in place for a 

community notification system to 

function and operate as expected will 

help protect the public from accidental 

releases. Furthermore, EPA agrees with 

the recommendation offered in the 

comments to enhance the provision. 

EPA is therefore finalizing the proposed 

provision with the following 

modification as previously discussed— 

revising the proposed provisions for 40 

CFR 68.90(b)(6) and 68.95(a)(1)(i) to 

specify that the owner or operator 

should partner with local response 

agencies to ensure a community 

notification system is in place and to 

document the collaboration. 

3. Emergency Response Exercises, 40 

CFR 68.96(b) 

Field Exercises 

a. Comments 

Several commenters expressed 

support for the 10-year timeline for 

conducting field exercises. One of the 

commenters noted that the timeline 

would allow local responders to 

maintain capabilities and familiarity 

with facility processes for responding to 

accidental releases. The same 

commenters added that the timeline 

also would allow industry to obtain 

appropriate staff, experts, and funds. A 

few commenters particularly expressed 

support for EPA’s efforts to encourage 

and require facilities to coordinate with 

LEPCs in circumstances where it is 

practical. Other commenters opposed 

the proposed provision, with some 

offering suggestions for improvement. 

Several commenters noted that EPA 

should recognize that not every location 

has a functioning LEPC that can 

coordinate field exercises with facilities 

and that clear carve outs should be 

established. The commenters suggested 

that EPA allow facilities to demonstrate 

a good faith effort to coordinate with 

LEPCs or demonstrate the absence of an 

LEPC as exemptions from this 

requirement. A few commenters 

expressed concerns regarding the 

proposed requirement for State and 

Federal approval of a change in 

frequency. The commenters noted that it 

would be inappropriate for EPA to 

provide Federal and State officials veto 

power over scheduling an exercise for 

which they have no required role. One 

of the commenters recommended that 

EPA remove the reference to Federal 

and State agencies, to clarify that RMP 

facilities do not need to obtain approval 

from Federal or State agencies if the 

local emergency responders have 

identified the frequency of an exercise 

is impractical. 

b. EPA Responses 

EPA agrees with comments that 

describe the varying capabilities of 

LEPCs and responding agencies and 

believes the approach the Agency offers 

supports those comments. The Agency 

believes the frequency exemption 

provided, which allows facilities and 

communities that do not have resources 

to complete field exercises every 10 

years to work together to determine a 

lesser frequency, is more useful than the 

Agency being more prescriptive about 

when the frequency does not apply. 


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EPA believes various communities have 

different concerns as to why they would 

need to conduct field exercises less 

frequently and therefore does not expect 

a one-size fits all approach to be 

appropriate in accommodating those 

various circumstances. Additionally, 

EPA understands that there may be 

cases where local emergency response 

agencies are unable or unwilling to 

coordinate with a regulated facility on 

exercise frequencies. In such cases, the 

owner or operator may establish 

appropriate exercise frequencies and 

plans on their own, provided they meet 

the minimum requirements set forth in 

40 CFR 68.96. The final rule will not 

specifically require the owner or 

operator to document unsuccessful 

coordination attempts, but EPA believes 

it will be in the owner or operator’s best 

interest to do so and allow the owner or 

operator to demonstrate their good faith 

efforts for consultation in the event that 

an implementing agency requests this 

information. 

In response to comments that EPA 

should remove the reference to 

consultation with Federal and State 

agencies when developing field exercise 

frequencies, EPA has amended the 

language to reflect that the consultation 

required for this provision need only be 

with local emergency responding 

agencies. EPA acknowledges that the 

emergency response exercise program 

provisions under 40 CFR 68.96(b), only 

require coordination with local public 

emergency response officials, and wants 

to remain consistent with activities that 

most likely will occur on the local level. 

Therefore, EPA is finalizing the 

requirement for facility owners and 

operators to coordinate with local 

emergency response officials to 

establish an appropriate frequency for 

field exercises at a minimum at least 

once every ten years unless the 

appropriate local emergency response 

agencies agree in writing that such 

frequency is impractical. EPA is not 

finalizing the requirement for Federal 

and State agencies to be consulted when 

coordinating the 10-year (or other 

determined) frequency. 

Emergency Exercise Reports 

a. Comments 

Several commenters expressed their 

support for the requirement that the 

current recommended field and tabletop 

exercise evaluation report components 

be mandatory. Other commenters 

opposed the provision. One of the 

commenters noted that EPA failed to 

consider the paperwork burden, hours 

and costs associated with requiring the 

reporting of such information. One 

commenter mentioned that, in 2019, 

EPA recognized that making the 

reporting requirements non-mandatory 

would reduce the regulatory burden and 

allow emergency response personnel the 

flexibility to decide which exercise 

documentation would be most 

appropriate for the facility and 

community. The commenter urged EPA 

to retain this flexibility and not add this 

requirement to the existing RMP rule. 

Another commenter noted that the 

proposed post-exercise reporting 

requirements provide little value to the 

program. 

b. EPA Responses 

EPA disagrees that the requirement of 

this provision—to make the scope and 

documentation requirements of the 

exercise evaluation report mandatory— 

is overly burdensome. While the 

elements of the evaluation report were 

not previously mandatory, there was 

already a requirement to develop a 

report. In most cases, for those 

previously voluntary report elements, 

particularly lessons learned and 

recommendations for improvement, 

EPA had expected these to be included 

in the report, as they are advantageous 

in assuring that over time emergency 

response efforts improved. Other report 

elements such as names and 

organizations of each participant are 

expected to be collected using low-cost 

methods, such as sign-in sheets or 

registration websites. Local emergency 

response organizations participating in 

exercises will also likely be able to 

assist the owner or operator in 

collecting and providing this 

information. EPA has updated the RIA 

to consider the minimal paperwork 

hours and costs associated with this 

provision. 

The Agency acknowledges that it had 

previously stated in the 2019 

reconsideration rule that the scope and 

documentation provisions left as 

discretionary would allow owners and 

operators to coordinate with local 

responders to design exercises that are 

most suitable for their own situations. 

Different facilities use a variety of 

emergency response equipment types 

and may have many different actions 

specified in their emergency response 

plans. However, as discussed in the 

proposal, EPA now finds it beneficial to 

provide consistency between exercise 

evaluation and incident investigation 

documentation requirements, as 

incident investigation reports can be 

used to satisfy response exercise 

evaluation report requirements under 

the current rule. Since EPA cannot 

anticipate all variations of incidents that 

may occur, EPA also cannot anticipate 

all variations of appropriate exercises. 

The current provision for incident 

investigation reports under 40 CFR 

68.60 and 68.81 identifies general topics 

that must be included in the report but 

does not contain further prescriptive 

requirements about how those topics 

need to be addressed. Similarly, so will 

similar general elements guide the 

content of exercise evaluation reports. 

The flexibility in both provisions allows 

participants to develop an evaluation 

that owners, operators, and responders 

can learn from. 

Upon consideration of comments, 

EPA is finalizing the provision to 

require mandatory reporting for exercise 

evaluation reports as proposed. 

VII. Information Availability 

A. Summary of Proposed Rulemaking 

EPA proposed to amend 40 CFR 

68.210 by adding new paragraphs (d), 

(e), and (f). Proposed 40 CFR 68.210(d) 

required the owner or operator of a 

stationary source to provide, upon 

request by any member of the public 

residing within six miles of the 

stationary source, certain chemical 

hazard information for all regulated 

processes in the language requested. 

EPA proposed to require the owner or 

operator to provide, as applicable: 

• Names of regulated substances held 

in a process. 

• Safety Data Sheets (SDS) for all 

regulated substances at the facility. 

• The facility’s five-year accident 

history required under 40 CFR 68.42. 

• Emergency response program 

information concerning the source’s 

compliance with 40 CFR 68.10(f)(3) and 

the emergency response provisions of 

subpart E, as applicable, including: (1) 

Whether the source is a responding 

stationary source or a non-responding 

stationary source; (2) name and phone 

number of local emergency response 

organizations with which the owner or 

operator last coordinated emergency 

response efforts, pursuant to 40 CFR 

68.180; and (3) for sources subject to 40 

CFR 68.95, procedures for informing the 

public and local emergency response 

agencies about accidental releases. 

• A list of scheduled exercises 

required under 40 CFR 68.96. 

• LEPC contact information, 

including LEPC name, phone number, 

and web address as available. 

Proposed 40 CFR 68.210(e) required 

the owner or operator to provide 

ongoing notification on a company 

website, social media platforms, or 

through other publicly accessible means 

that: 

• Information specified in proposed 

40 CFR 68.210(d) is available to the 


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103EPA. April 18, 2000. Assessment of the 

incentives created by public disclosure of off-site 

consequence analysis information for reduction in 

risk of accidental releases, at 2. 

public residing within six miles of the 

stationary source upon request. This 

notification is required to: (1) Specify 

the information elements, identified in 

40 CFR 68.210(b), that can be requested; 

and (2) provide instructions for how to 

request the information. 

• Identifies where to access 

information on community 

preparedness, if available, including 

shelter-in-place and evacuation 

procedures. 

Proposed 40 CFR 68.210(f) required 

the owner or operator to provide the 

requested information under proposed 

40 CFR 68.210(d) within 45 days of 

receiving a request. 

In addition to the proposed approach 

to this information availability 

provision, EPA also sought feedback on 

if the 6-mile radius for requesting 

information is appropriate, or if other 

alternative distances would be more 

suitable. The Agency also requested 

specific information on the increased 

likelihood of security threats arising 

from dissemination of this information, 

and which data elements, or 

combinations of elements, may pose a 

security risk if released to the public. 

B. Summary of Final Rule 

EPA is finalizing 40 CFR 68.210 with 

changes to address public comments, 

including potential security concerns. 

Under 40 CFR 68.210(d), the final rule: 

• Expands the population eligible to 

submit information requests to include 

members of the public residing, 

working, or spending significant time in 

a 6-mile radius from the fenceline of the 

facility, as opposed to just those 

residing in a 6-mile radius. 

• Includes a verification process to 

confirm that members of the public 

submitting information requests reside, 

work, or spend significant time in the 6- 

mile radius, and a recordkeeping 

component of the requestors. 

• Limits the language translations 

offered for information available upon 

request to at least two major languages 

used in the community (other than 

English), while the proposed rule would 

have required the owner or operator of 

a stationary source to provide 

information in any language requested. 

• Excludes dates of exercises 

occurring within one year of the date of 

request. 

• Expands the list of information 

required to be available upon request to 

include declined recommendations 

reported under 40 CFR 68.170(e)(7) and 

68.175(e)(7) through (9). 

C. Discussion of Comments and Basis 

for Final Rule Provisions 

1. Requirement To Make Information 

Available to the Public 

EPA’s Proposed Approach 

a. Comments 

Several commenters generally 

supported increasing information 

sharing and provided further 

recommendations in addition to the 

provisions outlined in the proposed 

rule. 

Several other commenters generally 

opposed the proposed information 

availability requirements, including 

those who opposed the provision 

because it may create unintended 

community anxiety. Several 

commenters noted that due to the 

complex technical information such as 

SDSs, it will have limited value or use 

to the public, and instead EPA’s efforts 

should focus on improving the LEPC’s 

ability to interpret the information. One 

commenter noted that the LEPC should 

be provided with relevant chemical 

hazard information, which then could 

be shared with local citizens. A 

commenter stated that the general 

premise that making the RMP more 

accessible to the public will encourage 

facility operators to be more safetyconscious via the imposition of 

‘‘community pressure and oversight’’ is 

misguided. The commenter added that 

requiring members of the public to 

‘‘pull’’ the information from the facility 

does little to promote proactive safety 

and accident/risk reduction at the 

fencelines as that public member must 

first have some idea that a facility 

presents a risk. 

Several commenters indicated that the 

proposed information availability 

requirements would be burdensome for 

facilities. A few commenters stated that 

EPA underestimates the costs to deliver 

community information requests. One 

commenter noted that facilities may not 

have the expertise for communicating 

the information as envisioned by EPA. 

One commenter stated that the 

requirement to disclose information 

would potentially make facilities with 

covered processes the target of high 

volumes of requests submitted by 

individuals or groups. 

A few commenters noted that the 

proposed requirements would be 

duplicative of EPCRA. Some 

commenters recommended EPA 

consider existing programs that already 

require facilities to report specific 

information. 

b. EPA Responses 

EPA continues to believe that 

providing chemical hazard information 

to the general public will allow people 

that live or work near a regulated 

facility to improve their awareness of 

risks to the community and to be 

prepared to protect themselves in the 

event of an accidental release. The 

public’s ability to participate in 

emergency planning and readiness is 

enhanced by being better informed 

about accident history, types of 

chemicals present, and how to interact 

with the stationary source. In drafting 

both the proposed and final rule, EPA 

has been selective in identifying what 

information a source must make 

available; for example, the Agency has 

not required the facility to provide an 

entire RMP to the public. 

The Agency disagrees that community 

involvement in prevention and response 

planning, which in effect is a form of 

oversight and may be perceived as 

‘‘pressure,’’ does not have value in 

minimizing the likelihood of accidental 

releases and in improving the responses 

to such releases. The statute itself 

provides support for the Agency’s 

position by generally making RMPs 

available to the public, subject to 

limited restrictions (42 U.S.C. 7414(c), 

42 U.S.C. 7412(r)(7)(H)). In the 2022 

SCCAP proposed rule, the Agency 

discussed its multiple means of access 

to information about a source to 

facilitate involvement about the risks a 

source presents (87 FR 53602). The 

Agency believes every RMP regulated 

source presents some level of risk, as 

each regulated source stores and 

manages toxic or flammable substances 

which may be accidentally released. 

Having the source provide the 

information set out in 40 CFR 68.210 

directly to the public within the 

confines of the final rule promotes 

accident prevention and response by 

facilitating public participation at the 

local level. 

Under CAA section 

112(r)(7)(H)(ii)(I)(bb), EPA conducted a 

benefits assessment in 2000, describing 

the benefits of providing community 

access to OCA information specifically 

but also addressing the benefits of 

public disclosure of risk management 

plan information. EPA found that public 

disclosure of risk management plan 

information would likely lead to a 

reduction in the number and severity of 

accidents.103 It also found that 

comparisons between facilities, 


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104https://data.census.gov/table?t=Language+

Spoken+at+Home. 

105https://www.lep.gov/language-accessplanning. 

106While not the basis of this provision, these 

language translation requirements advance the 

policies in Executive Orders 13166 and 14096: 88 

FR 25251 (April 26, 2023), https://www.federal

register.gov/documents/2023/04/26/2023-08955/ 

revitalizing-our-nations-commitment-toenvironmental-justice-for-all; 65 FR 50121 (August 

16, 2000), https://www.federalregister.gov/ 

documents/2000/08/16/00-20938/improving-accessto-services-for-persons-with-limited-englishproficiency. 

processes and industries would likely 

lead industry to make changes and 

would stimulate dialogue among 

facilities, the public, and local officials 

to reduce chemical accident risks. The 

approach taken in this final rule builds 

upon the planning approach of EPCRA 

and EPA studies of the value of ‘‘right 

to know’’ in emergencies. 

While EPA acknowledges the 

potential for ‘‘community anxiety’’ as a 

result from the affected public having 

easier access to information about safety 

risks, public participation in the prerulemaking listening sessions and 

during the public hearings in this 

rulemaking demonstrate that anxiety 

among the public near facilities already 

plainly exists as a result of the more 

cumbersome disclosure authorizations 

of the current rule. The Agency expects 

a more informed and involved public, as 

a result of this final rule, to have less 

fear of the unknown. 

In response to commenters 

recommending that the facility share the 

information with the LEPC, which 

would then be responsible for sharing 

the information with interested 

members of the public, EPA notes 

analysis of active facility risk 

management plan submissions 

demonstrates that 10 percent of active 

facilities have not provided the names 

or information about their LEPCs. 

Without further information as to why 

facilities left this portion of the risk 

management plan submission blank, it 

is possible that LEPCs may not exist for 

those facilities, that the LEPC may have 

existed but is inactive, or that the 

facility is not in communication with its 

LEPC. EPA routinely receives Freedom 

of Information Act (FOIA) requests for 

OCA and non-OCA versions of the risk 

management plan database from local 

and State emergency response entities, 

which may indicate that local 

emergency response entities also have 

difficulty in obtaining this information 

from facilities. Therefore, EPA believes 

that providing information solely to 

LEPCs would not be sufficient or 

improve safety as effectively as 

additionally requiring that information 

be provided directly to the affected 

public. 

Regarding comments on the burden of 

the information availability 

requirements, EPA notes that other 

statutes and regulatory programs, or 

other provisions of the RMP, require the 

stationary source to assemble the 

information that the rule makes 

available upon request (e.g., accident 

history, SDSs, and aspects of the 

emergency response program). Thus, the 

burden of making this information 

directly available from the source is 

minimal. 

Regarding comments stating that the 

proposed requirements are duplicative 

of existing reporting requirements, EPA 

believes, for the reasons already stated, 

that this information should be more 

easily accessible to the public than the 

existing approaches to access 

information under EPCRA and other 

programs/regulations. 

Translation Requirements 

A commenter stated that the 

information should be provided in plain 

language and in multiple languages. 

Another commenter stated it is difficult 

for facilities to translate technical 

information into multiple languages. A 

couple of commenters noted that the 

proposed translation requirements go 

beyond EPA authority and would be 

burdensome and costly. 

The final rule requires that language 

translations be offered in at least two 

other major languages in the 

community. EPA expects owners and 

operators to use the most recent Census 

Language Use data,104 or other recent 

authoritative information,105 to 

determine the two major languages 

spoken in a comparable size designation 

to the six-mile or worst-case release 

scenario distance radius of their facility. 

EPA believes this will provide the vast 

majority of the surrounding community 

with the information requested and 

account for language barriers while 

minimizing burden to facilities. 

Requiring translation in up to two of the 

major non-English languages of the 

community reflects a balance of the 

right-to-know purposes of CAA section 

112(r)(7)(B)(iii) with the time and 

financial burden of providing such 

translations. The Agency believes 

community involvement is integral to a 

well-functioning accident prevention 

program, and the translation 

requirement promotes accomplishing 

this objective.106

Notification Requirements 

One commenter noted that the 

information available to the public is 

meaningless if the public does not know 

it exists. Therefore, the commenter 

suggested that EPA require facilities to 

provide notice to communities within 

six miles that they have the right to 

request this information. 

EPA agrees with the commenter that 

the information availability 

requirements are most impactful if the 

public is aware of the availability of the 

information. Therefore, EPA is 

finalizing the proposed requirements 

that the owner or operator of the facility 

provide ongoing notification on either a 

company website, social media 

platforms, or through other publicly 

accessible means, that facility 

information is directly available to the 

public within six miles upon request. 

45-Day Disclosure Timeline 

A few commenters suggested EPA 

shorten the required response time. A 

couple of commenters specifically 

expressed concern that the 45-day 

period to receive information once 

requested is too long for people to wait 

for that urgently needed information. 

EPA is finalizing the 40 CFR 68.210(g) 

requirement that the facility owner or 

operator provide the information under 

40 CFR 68.210(d) to the requester within 

45 days of receiving a request. EPA 

selected 45 days because that timeframe 

is consistent with the requirement for 

the public availability provision of 

facility chemical inventory information 

(i.e., ‘‘Tier II information’’) under 

section 312(e)(3)(D) of EPCRA, which 

states, ‘‘a State emergency response 

commission or LEPC shall respond to a 

request for Tier II information under 

this paragraph no later than 45 days 

after the date of receipt of the request.’’ 

EPA believes the 45-day timeline 

appropriately balances the burden 

imposed on facilities to keep chemical 

hazard information updated and the 

need to provide the public with timely 

access to this information. EPA 

encourages facilities to update their 

chemical hazard information as needed 

to ensure that accurate information can 

be made available to the requester 

within the required timeframe. 

Suggestions for EPA To Disclose Facility 

Information 

Many commenters suggested that EPA 

create an online database to contain 

information from facilities. A couple of 

commenters stated that it is essential for 

EPA to take prompt action to provide 

publicly accessible information on RMP 

facility hazards and safety plans on the 

Agency’s website. Similarly, a few 

commenters stated that EPA should 

develop, maintain, and update a public, 

multilingual online database containing 

non-protected RMP information. 


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By policy, EPA has restricted access 

to the RMP database, even though only 

a portion of the database is restricted by 

CAA section 112(r)(7)(H) and its 

implementing regulations in 40 CFR 

part 1400. As described in the 2022 

SCCAP proposed rule, EPA intends to, 

at a prospective date, begin publishing 

non-OCA risk management plan data 

annually, less any CAA section 

112(r)(7)(H) protected sensitive 

information (87 FR 53602). The 

discussion in the proposed rule was 

intended to highlight some of the issues 

that are relevant to relaxing restrictions 

on data availability. 

Environmental Justice and Fenceline 

Communities 

Several commenters recommended 

EPA consider EJ and fenceline 

communities when developing 

information availability provisions, 

including, by championing community 

information as a fundamental EJ goal. 

One commenter suggested that EPA 

inform fenceline communities that they 

live near an RMP facility because, 

oftentimes, people are unaware that 

they live near RMP facilities. 

EPA has considered impacts and risks 

to local communities, including 

communities with EJ concerns and 

fenceline communities throughout the 

rulemaking process. EPA believes that 

the final information availability 

provision makes significant 

improvements to provide more 

information to the public, including 

communities with EJ concerns and 

fenceline communities. 

2. 6-Mile Radius 

a. Comments 

A few commenters supported EPA’s 

proposed approach of the 6-mile radius 

for requesting information. 

Several commenters recommended 

EPA abandon any geographic limitation 

and instead make basic emergency 

preparedness information commonly 

available to the public. One commenter 

emphasized that the proposed rule 

violates FOIA as non-OCA RMP data are 

public information. The commenter 

noted that EPA cannot deny public 

access to this information. The 

commenter also noted that this 

restriction would violate 42 U.S.C. 

7412(r)(7)(B), which requires EPA to 

provide prevention, incident detection, 

and response ‘‘to the greatest extent 

practicable.’’ One commenter stated that 

the proposal’s within 6-mile residency 

requirement creates an unnecessary 

obstacle to accessing information that 

could undermine EPA’s goals to address 

EJ, especially as people in fenceline 

communities may not have a trusting 

relationship with government 

authorities, a home address, or 

documented status to demonstrate their 

residency. The commenter requested 

EPA eliminate the requirement that 

community members demonstrate they 

live within six miles of a facility to 

access information. 

Several commenters suggested that 

the 6-mile radius lacks justification and 

is arbitrary. Some of the commenters 

expressed concerns that residents could 

use a P.O. Box within 6-miles of a 

facility to obtain access to and share 

information. Several commenters noted 

there are no means to retain or prevent 

information from being shared outside 

of its intended use. 

Many of the commenters referenced 

social media and other web-based 

networks as means of quickly spreading 

sensitive information. Some 

commenters added that terrorists and 

criminals would be able to readily 

obtain sensitive information and could 

easily falsify their identity or location. 

Several commenters requested EPA to 

clarify what is meant by the requirement 

of a person to ‘‘reside’’ within six miles 

of a facility and how a facility will be 

able to verify the information. 

A couple of the commenters suggested 

EPA build upon existing programs and 

safeguards, such as LEPCs, to protect 

sensitive chemical information instead 

of choosing to impose an arbitrary 6- 

mile threshold. One commenter added 

that EPA did not explain how the 6-mile 

radius requirement builds on existing 

regulatory programs designed by 

Department of Homeland Security 

(DHS) and EPA to safeguard sensitive 

information. One commenter 

recommended that anyone requesting 

information should be required to 

complete a mandatory background 

check before any information is shared. 

Another commenter stated that EPA 

should not put the responsibility of 

vetting community members on 

facilities. 

b. EPA Responses 

EPA believes the 6-mile radius 

restriction to be reasonable, as 90 

percent of all toxic worst-case distances 

to endpoints are within six miles or less, 

and almost all flammable worst-case 

distances are less than 1 mile (87 FR 

53601). The 6-mile radius for being able 

to request information from facilities 

allows people in most areas potentially 

impacted by a worst-case scenario to 

have access to information while also 

providing a limit on widespread access 

to nationwide assembly of data. EPA 

agrees with commenters that allowing 

only those individuals that reside 

within the 6-mile radius to access 

information is too limited and has thus 

expanded the provision in the final rule 

to also allow members of the public 

working or otherwise spending 

significant time in the 6-mile radius to 

request information from a facility. 

The 6-mile radius limitation also 

seeks to limit the potential security risk 

of allowing anonymous confidential 

access to this information to the entire 

public that was of concern to EPA in the 

2019 reconsideration rule. This 

approach strikes a better balance 

between those security concerns and the 

interests of people spending significant 

time near facilities who could benefit 

from the information, including 

personal preparedness in the event of an 

accident, knowledge of potential risks 

and safety conditions where one lives, 

and more informed participation in 

community emergency and safety 

planning. 

EPA is also clarifying in the final rule 

that the 6-mile radius is from the 

fenceline of the facility. EPA expects 

that in most cases, six miles from the 

fenceline is the appropriate definition, 

as opposed to six miles from process 

locations or any other location at the 

facility, because this consistent 

approach captures the wide variations 

of facility size, process locations and 

any process movement within the 

facility. It is also simpler to verify for 

the public and oversight agencies and 

does not require revealing of the precise 

location of the place in the process from 

which a release could occur, which may 

raise security concerns. 

In response to comments requesting 

clarification on what it means for a 

person to ‘‘reside’’ within six miles of a 

facility, the final rule specifies that 

members of the public residing, 

working, or spending significant time in 

a 6-mile radius from the fenceline of the 

facility are able to submit information 

requests to a source. EPA interprets 

residing as occupying a dwelling 

(owning or renting), working as having 

paid employment, and spending 

significant time as frequently using 

services, volunteering, visiting with 

family or friends, etc. 

Regarding concerns about the 

verification of the identity of members 

of the public requesting information, 

EPA is requiring sources to provide 

instructions for how to request the 

information, which should include the 

necessary verification components for 

the public within a 6-mile radius of the 

facility. Nothing in the rule requires a 

facility to accept a mere P.O. Box 

address as evidence of residence, 

employment, or presence within the 6- 

mile radius. For this final rule, EPA is 


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also requiring owners and operators to 

maintain a record of the requestors. The 

final rule leaves substantial flexibility 

for facilities to design a process for 

obtaining verification and keeping 

records of requestors that allows for 

facilities to have a suitable, minimally 

burdensome process for themselves and 

the community. The final rule allows for 

a straightforward process that does not 

hinder the right of the public to access 

this information, allows facilities to be 

aware who has their information, and 

permits oversight by implementing 

agencies. However, as this is a 

performance-based provision, just as 

most components of the rule, EPA 

recognizes that there is not a one-size 

fits all approach that works best for 

notifying the public that this 

information is available and verifying 

presence within a 6-mile radius. EPA 

expects facility owners and operators to 

notify the public that information is 

available in a variety of ways, such as 

using free or low-cost internet 

platforms, and social media tools that 

are designed for sharing information 

with the public. EPA also expects 

verification of the population within the 

6-mile radius to be carried out through 

many methods, such as asking a 

member of the public to provide a 

utility bill for verification of residence, 

pay stub for verification of employment, 

or specific documentation to verify 

significant time spent within the 6-mile 

radius. EPA encourages the facility 

owner or operator to coordinate 

information distribution and 

verification requirements with the LEPC 

or local emergency response officials to 

determine the best way to reach public 

stakeholders. EPA notes that the owner 

or operator shall document the method 

and the location of the notification in 

the RMP pursuant to 40 CFR 

68.160(b)(22). 

The 6-mile radius provision 

reasonably and practicably balances 

enhancing means of access for affected 

communities while also limiting 

security concerns about widespread, 

anonymous access that raised concerns 

in EPA’s 2019 reconsideration rule. 

Further, the final provisions do not limit 

or violate FOIA rights of the public to 

obtain Government-held records. 

3. Data Elements To Be Released to the 

Public 

a. Comments 

In the preamble of the proposed rule, 

EPA solicited comment on its 

announcement of its policy decision 

that, at some future date, EPA would 

post online portions of the RMP 

database that do not contain legally 

restricted information or information 

that raises significant security concerns. 

The Agency solicited comments to help 

identify such information. The comment 

solicitation did not propose regulatory 

changes, but instead sought public input 

on a policy position. Nevertheless, 

because some of the data elements EPA 

is considering releasing through policy 

change are the same data elements 

facilities will be required to disclose 

under the information availability 

regulatory provision in this final rule, 

discussion of the comments and the 

Agency’s rationale of releasing those 

data elements, through a future policy 

change and in this final rulemaking, is 

provided here. 

In response to this comment 

solicitation, many commenters 

discussed data elements that should not 

be publicly released in order to avoid 

security threats. One commenter stated 

that security sensitive information, such 

as OCA data, should only be publicly 

accessible through Federal Reading 

Rooms. A few commenters listed 

specific elements that should not be 

publicly available, citing a potential 

increased vulnerability to terrorist 

attacks. 

Data elements noted by commenters 

as posing security threats if released to 

the public, which the commenters 

argued should therefore not be 

disclosed, include: 

• Chemical hazard information. 

• Specific substance names and 

hazard characteristics. 

• Names of regulated substances held 

in a process, SDSs, and any site-specific 

information. 

• Information regarding hazardous 

substances on site. 

• Storage location and transportation 

information. 

• Emergency response details. 

• Audit reports and exercise 

schedules and summaries. 

• Accident history. 

One commenter stated that sensitive 

information, such as audit reports, 

exercise schedules and summaries, and 

emergency response details, does not 

prevent accidents or reduce potential 

harm, but does increase the 

vulnerability of a facility to attacks by 

terrorists or other criminals. One 

commenter stated that specific 

information regarding security threats is 

held by DHS, and providing 

documented security threats, or security 

risks from prior incidents or near 

misses, provides a road map for bad 

actors and propagates future security 

threats. 

A couple of commenters noted that 

some information, including CBI and 

trade secrets, should not be shared with 

the public. Another commenter stated 

that proprietary information about 

processes and chemicals should be in 

the safety plan without disclosing 

details that would allow the methods, 

procedures, or other intellectual 

property to be stolen. One commenter 

noted that EPA should reinstate 

previous language that enabled facilities 

to assert a claim of business 

confidentiality regarding any 

information they are required to make 

public under the RMP rule. 

b. EPA Responses 

The responses below address 

comments concerning the data elements 

required to be released by the source 

upon request. Additionally, EPA will 

consider the input from the commenters 

when the Agency proceeds with a 

policy decision on whether to put some 

portions of the RMP database online 

again in the future. As such, the 

responses that immediately follow are 

also provided to facilitate public 

dialogue about implementing EPA’s 

potential policy change. 

EPA agrees with commenters that 

suggested only information that could 

improve community awareness of risks 

should be made available to the public. 

Having the source provide the 

information set out in 40 CFR 68.210 

directly to the public promotes accident 

prevention by facilitating public 

participation at the local level. It should 

be noted that EPA has been selective in 

identifying what information a source 

must make available; for example, the 

Agency will not require the facility to 

provide an entire RMP to the public. 

EPA believes the public has a 

substantial interest in knowing what 

chemicals are present in the community 

and what it should do in the event of 

an accidental release involving facilities 

handling those chemicals. The public 

also has a substantial interest in having 

the opportunity to participate in an 

informed manner regarding emergency 

planning in its community. Facilitating 

access to information before an incident 

promotes more effective communication 

of information during responses to 

incidents, and thus promotes more 

effective response programs. (See the 

requirement in CAA section 

112(r)(7)(B)(ii)(III) for response 

programs to address informing the 

public.) The public’s ability to 

participate in emergency planning and 

readiness is materially advanced by 

being better informed about accident 

history, types of chemicals present, and 

how to interact with the stationary 

source. Nevertheless, of the information 

options proposed, EPA acknowledges 

some security concerns with releasing 


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107https://www.epa.gov/rmp/federal-readingrooms-risk-management-plans-rmp. 

information identifying actual 

upcoming dates of tabletop or field 

exercises. EPA is therefore requiring 

facilities to provide a list of exercises 

that will occur within the year, 

indicating that they will occur, rather 

than identifying the specific date they 

will occur. 

Although commenters did not 

explicitly request that the list of 

information required to be available 

upon request should include declined 

recommendations from new provisions, 

EPA is including this within the final 

rule. EPA intended this information to 

be available as the Agency indicated in 

the proposal that including this 

information in the RMP would 

ultimately enable the public to ensure 

facilities have conducted appropriate 

evaluations to address potential hazards 

that can affect communities near facility 

fencelines. When local citizens have 

adequate information and knowledge 

about facility hazards, EPA believes that 

facility owners and operators may be 

motivated to further improve their 

safety in response to community 

pressure and oversight. 

At this time, EPA will not require the 

owner or operator to make additional 

information available to the public, such 

as STAA reports, incident investigation 

reports (with root cause analyses), and 

third-party audit reports. EPA 

acknowledges there is public interest in 

having these reports available to them, 

but these documents, which can be 

lengthy (e.g., the sectors subject to 

STAA requirements have multiple 

processes and some PHAs are hundreds 

of pages), technically complex, and 

could contain not only CBI, but 

sensitive security information involving 

process or equipment vulnerabilities. 

Even sanitizing submitted documents 

and providing upfront justification of 

CBI claims would entail a significant 

level of burden upon industry and EPA. 

It would not be practical or a good use 

of resources to have thousands of 

documents submitted to EPA, to any 

other body, or with the RMP 

submission. However, EPA may explore 

opportunities to simplify this 

information for public access in a future 

rulemaking. 

EPA is committed to safeguarding 

OCA information in accordance with 

requirements specified in the 

CSISSFRRA, which allows for any 

member of the public to access paper 

copies of OCA information for a limited 

number of facilities. This OCA 

information remains accessible to the 

public only in Federal Reading 

Rooms 107 or upon voluntary disclosure 

by the source itself. CAA 

section112(r)(7)(H)(v)(III). 

EPA has received comments in the 

past with concerns regarding CBI and 

directs these commenters to the 

requirements in 40 CFR 68.152 for 

substantive criteria set forth in 40 CFR 

2.301. EPA acknowledges and shares 

industry’s concerns pertaining to 

protection of CBI information, but EPA 

believes that the Agency has addressed 

these concerns by providing the same 

CBI protections for the public 

information availability provisions that 

exist for the RMP under 40 CFR 68.151 

and 68.152 as for information contained 

in the RMP required under subpart G. 

As provided under 40 CFR 68.151(b)(3), 

an owner or operator of a stationary 

source may not claim five-year accident 

history information as CBI. As provided 

in 40 CFR 68.151(c)(2), an owner or 

operator of a stationary source asserting 

that a chemical name is CBI shall 

provide a generic category or class name 

as a substitute. CBI disclosure under 

EPCRA is controlled by that statute and 

rules implementing the information 

access provisions of EPCRA. 

Furthermore, EPA is not requiring 

STAA reports to be submitted to LEPCs 

or the public in the final rule, and, 

therefore, no CBI concerns exist for 

these reports. If an owner or operator 

has already claimed CBI for a portion of 

the RMP, then that claim still applies for 

the disclosure elements in the 

information availability provisions of 

the rule. The owner or operator should 

provide a sanitized version as described 

in the RMP*eSubmit User’s Manual. 

This policy is consistent with existing 

RMP guidance and practices. 

4. Security Concerns 

a. Comments 

A few commenters stated that there is 

no evidence that increasing information 

availability leads to security issues. 

Another commenter noted that there is 

no evidence that community members 

have caused a chemical disaster or that 

they pose any security risk. The 

commenter stated that a valuable way to 

address any security risks is to provide 

full public transparency and give 

facilities more incentive to prevent 

disasters by reducing or minimizing 

hazards up front. One commenter noted 

that eliminating chemical hazards and 

reducing risks present at industrial 

chemical facilities will not only prevent 

disasters in the event of an accident but 

will also prevent and reduce harm in 

the event of an intentional act, such as 

a cyberattack. 

Several commenters emphasized 

security risks of the proposed rule, 

including risks of terrorist attacks or 

criminal activity. One commenter stated 

that the proposed information 

disclosure requirements raise security 

risks and impose significant burdens 

with no added benefit. Another 

commenter noted that providing 

additional sensitive accident 

investigation and chemical information 

to the public could result in a national 

homeland security concern. 

Several commenters noted the 

additional risks of cybersecurity attacks. 

A commenter added that other Federal 

agencies opposed these requirements, 

citing security concerns detailed in a 

2000 report issued by the Department of 

Justice (DOJ). A couple of commenters 

noted that other Federal agencies raised 

security concerns with the proposed 

disclosure requirements during 

interagency review. 

Several commenters recommended 

that EPA withdraw its proposed 

information sharing provisions due to 

conflicts with information security 

protocols under DHS Chemical Facility 

Anti-Terrorism Standards (CFATS) 

regulations. One commenter noted that 

the availability of information 

requirements included in the proposed 

rule are in conflict with CSISSFRRA, 

U.S. Department of Transportation 

(DOT) Regulations, and DHS 

Regulations. A few commenters noted 

that the proposed public disclosure 

requirement is contrary to the Critical 

Infrastructure Information Act of 2002, 

and one commenter noted it is also in 

conflict with the Maritime 

Transportation Security Act. One 

commenter noted that EPA’s proposed 

information disclosure requirements 

may conflict with existing DHS 

regulations restricting the disclosure of 

Chemical-terrorism Vulnerability 

Information (CVI). 

b. EPA Responses 

EPA acknowledges the security 

concerns raised by commenters and is 

committed to ensuring a balance 

between making information available 

to the public while also safeguarding 

that information. EPA worked closely 

with Federal partners, including the 

DHS and the Federal Bureau of 

Investigation (FBI), to develop 

information availability requirements 

that strike a balance between security 

concerns and the need for sharing 

chemical hazard information with the 

public. EPA believes that the finalized 

approach is consistent with existing 

requirements to secure sensitive 


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108 Valeria Casson Moreno et al., ‘‘Analysis of 

Physical and Cyber Security-Related Events in the 

Chemical and Process Industry,’’ Process Safety and 

Environmental Protection 116 (2018), 621–31, 

doi:10.1016/j.psep.2018.03.026. 

109Matteo Iaiani et al., ‘‘Analysis of Events 

Involving the Intentional Release of Hazardous 

Substances from Industrial Facilities,’’ Reliability 

Engineering & System Safety 212 (2021), 107593, 

doi:10.1016/j.ress.2021.107593. 

110This is not a complete dataset, because it was 

developed based on publicly available information. 

Available in the supplemental material of Matteo 

Iaiani et al., ‘‘Analysis of Events Involving the 

Intentional Release of Hazardous Substances from 

Industrial Facilities,’’ Reliability Engineering & 

System Safety 212 (2021), 107593, doi:10.1016/ 

j.ress.2021.107593. 

111Holly Carter, John Drury, and Richard Amloˆt, 

‘‘Recommendations for Improving Public 

Engagement with Pre-incident Information 

Materials for Initial Response to a Chemical, 

Biological, Radiological or Nuclear (CBRN) 

Incident: A Systematic Review,’’ International 

Journal of Disaster Risk Reduction 51 (2020), 

101796, doi:10.1016/j.ijdrr.2020.101796. 

112 DOJ, Assessment of the Increased Risk of 

Terrorist or Other Criminal Activity Associated 

with Posting Off-Site Consequence Analysis 

Information on the internet (2000), https://

www.regulations.gov/document/EPA-HQ-OEM2015-0725-2003, EPA–HQ–OEM–2015–0725–2003. 

information. EPA also believes the 

current approach to notify the public 

that information is available upon 

request strikes an appropriate balance 

between various concerns, including 

information availability, community 

right-to-know, minimizing facility 

disclosure burden, and minimizing 

information security risks. 

EPA believes the information 

disclosures required by the final rule are 

fully consistent with the statutes and 

regulatory programs identified by the 

commenters as enacted after the 1990 

CAA Amendments. For example, 

CSISSFRRA specified that portions of 

RMPs containing ‘‘offsite consequence 

analysis information’’ (OCA 

Information), any electronic data base 

created from those portions, and any 

statewide or national ranking derived 

from such information is subject to 

restrictions on disclosure under CAA 

sections 112(r)(7)(H)(i)(III) and 

112(r)(7)(H)(v). Regulations jointly 

promulgated by EPA and the DOJ 

further define OCA Information in 40 

CFR 1400.2(j). The final rule will not 

require disclosure of release scenarios or 

rankings based on such scenarios, nor 

will it make available any information 

based on such scenarios. First, the 

Critical Infrastructure Information Act 

restricts information ‘‘not customarily in 

the public domain.’’ Further, CFATS 

creates a category of information, CVI, 

which protects certain information 

submitted to DHS and necessary to 

implement CFATS (see 6 CFR 27.400). 

In promulgating CFATS, DHS 

announced its intent to preserve Federal 

release disclosure, emergency planning, 

and accident prevention statutes, 

including EPCRA and CAA section 

112(r) (see 72 FR 17714, April 9, 2007). 

In this final rule, EPA creates no tension 

between after-enacted programs and 

enhancement of the RMP. The 

information that the final rule requires 

facilities to disclose largely draws on 

information otherwise in the public 

domain and simplifies the public’s 

access to it. EPA has acknowledged that 

there would be some value to 

assembling a centralized, anonymously 

accessible government database of 

already-public information relevant to 

identifying and prioritizing facilities for 

potential impacts. However, this final 

rule does not create a central database 

of the information required to be 

disclosed, nor does it permit 

anonymous access. The limits on 

disclosure and access are important 

steps to minimize security risks. EPA 

has therefore coordinated with both the 

DHS Cybersecurity & Infrastructure 

Security Agency (CISA) which manages 

the CFATS program and the FBI in 

order to take steps that will balance 

accident prevention and security 

interests. 

There exists no publicly available 

database of intentional acts upon the 

chemical process industries in the 

United States. In a 2021 study, 

researchers attempted to compile a 

database of such incidents, finding 

documentation of 84 incidents in the 

chemical and petrochemical 

industries.108 109 Root cause data on 

these incidents, which are not available, 

would be needed to determine if 

availability of information on the 

facility contributed to terrorist 

incidents, which were second to 

cybersecurity incidents as the most 

frequent overall cause. According to the 

database, no terrorist event in the 

process industries (excluding 

transportation and pipelines) has 

occurred in North America after the 

1970s.110 However, a lack of incidents 

may result from the safeguards currently 

in place. DHS promulgated CFATS in 

accordance with the Homeland Security 

Appropriations Act of 2007, owing to 

insufficient security at industrial 

facilities. In promulgating CFATS, DHS 

did not intend for information created 

under CAA section 112(r) to constitute 

‘‘Chemical-terrorism Vulnerability 

Information,’’ which is sensitive 

information pursuant to CFATS 

requirements (72 FR 17714). EPA 

routinely coordinates with DHS as part 

of the Chemical Facility Security and 

Safety Working Group and commits to 

working with DHS to find regulatory 

solutions that balance community rightto-know with security concerns. 

Accidental releases occur much more 

often than intentional events (about 100 

per year using EPA RMP-reportable 

accidents). Pre-incident information, 

such as the locations of facilities and 

potential disasters, allows communities 

to be more prepared for disasters,111

which DOJ also recognized in its 2000 

risk assessment.112 With over 20 years 

of data now, EPA has based many of the 

finalized provisions on prior accident 

information. EPA acknowledges that the 

Agency must consider whether some 

non-OCA data elements, or 

combinations of elements, may not be 

suitable for public release and should be 

restricted based on potential security 

risks. EPA has been and will continue 

to work with DHS, DOJ, and other 

Federal partners on identifying these 

risks. 

Commenters have referred to certain 

comments from other agencies in 

connection with drafts of prior RMP 

rulemakings. The cited material 

appeared in the docket as required by 

CAA section 307(d)(4)(B)(ii). Such 

material is explicitly excluded from the 

record for judicial review under CAA 

section 307(d)(7)(A). The introduction 

of this material into the record by these 

commenters is an attempt to avoid the 

exclusion under CAA section 

307(d)(7)(A). Moreover, the comments 

addressed early stages of the rules that 

prior Administrators signed, and not the 

versions of prior proposed and final 

rules that were published, and do not 

reflect the ultimate positions of sister 

agencies with respect to what was 

published. 

Regarding concerns that the 2000 DOJ 

report is in conflict with the information 

availability requirements, EPA believes 

the 6-mile radius provision ensures that, 

even if community members obtain 

information related to OCA data, it 

would require a difficult nationwidecoordinated effort among people within 

six miles of each facility to create the 

type of online database described in 

DOJ’s report. The provisions simply 

require RMP facilities to provide their 

chemical hazard information to 

communities within a 6-mile radius of 

the facility, when previously they were 

not required to. Because RMP facilities 

were, and will continue to be, in 

possession of this information, it is 

unlikely that such a change would 

result in any possible prejudice to the 

facilities based on their reliance on the 

2019 reconsideration rule provisions, 

which have only been in place for 4 

years. 


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113 40 CFR 68.200: ‘‘The owner or operator shall 

maintain records supporting the implementation of 

this part at the stationary source for five years, 

unless otherwise provided in subpart D of this 

part.’’ 

VIII. Other Areas of Technical 

Clarification/Enforcement Issues 

A. Summary of Proposed Rulemaking 

1. Process Safety Information, 40 CFR 

68.65 

EPA proposed to refine the language 

of 40 CFR 68.65 to clarify that the 

requirement to keep PSI up to date 

explicitly applies to Program 3 

processes. 

2. Program 2 and 3 Requirements for 

Compliance With RAGAGEP, 40 CFR 

68.48 and 68.65 

EPA proposed to harmonize 40 CFR 

68.48(b) and 68.65(d)(2) so that the 

requirements for compliance with 

RAGAGEP for Program 2 and Program 3 

processes are identical. Specifically, 

EPA proposed to require that Program 2 

processes and Program 3 processes 

document compliance rather than 

merely ‘‘ensure’’ compliance. EPA also 

proposed to remove the sentence 

‘‘Compliance with Federal or State 

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

be used to demonstrate compliance with 

this paragraph.’’ 

3. Retention of Hot Work Permits, 40 

CFR 68.85 

EPA proposed to require retention of 

hot work permits for five years, in 

accordance with the recordkeeping 

requirements in 40 CFR 68.200.113

4. Storage Incident to Transportation, 40 

CFR 68.3 

EPA proposed additional regulatory 

language that includes a specified 

number of hours that a transportation 

container may be disconnected from the 

motive power that delivered it to the 

site before being considered part of the 

stationary source. EPA proposed to 

apply a 48-hour time frame to this term. 

EPA also proposed to modify the 

definition of ‘‘stationary source’’ to 

further clarify ‘‘storage incident to 

transportation’’ in 40 CFR 68.3 by 

adding an explanation to the 

transportation container language in the 

stationary source definition. The 

proposed regulatory text would add 

examples of what a transportation 

container could be, such as a truck or 

railcar, and clarify that for RMP 

purposes, railyards and other stationary 

sources actively engaged in transloading 

activities may store regulated substances 

up to 48 hours total in a disconnected 

transportation container without 

counting the regulated substances 

contained in that transportation 

container toward the regulatory 

threshold. 

In addition to the proposed approach, 

EPA requested comment on suggestions 

for other appropriate time frames and 

any safety concerns that may arise from 

transportation containers being exempt 

from the RMP rule when disconnected 

for less than 48 hours. 

5. Retail Facility Exemption, 40 CFR 

68.3 

EPA proposed to adjust the regulatory 

text to clarify that the definition of 

‘‘retail facility’’ is one in which more 

than one-half of the ‘‘annual’’ income 

‘‘in the previous calendar year’’ is 

obtained from direct sales to end users 

or at which more than one-half of the 

fuel sold over that period, by volume, is 

sold through a cylinder exchange 

program. 

6. RAGAGEP Gap Analysis, 40 CFR 

68.69 and 68.175 

EPA proposed that the RMP 

regulations clarify that PHAs must 

include an analysis of the most recently 

promulgated RAGAGEP in order to 

identify any gap between practices 

related to the facility’s design, 

maintenance, and operation, and the 

most current version of RAGAGEP. 

EPA also proposed to require owners 

or operators to specify in their risk 

management plans why PHA 

recommendations associated with 

adopting practices from the most recent 

version of RAGAGEP were not 

implemented. EPA proposed to allow 

facilities to choose from pre-selected 

categories to provide justification for not 

implementing recommendations. 

B. Summary of Final Rule 

EPA is not finalizing the proposed 

supplementary storage incident to 

transportation language at 40 CFR 68.3. 

EPA is finalizing the provisions for 

PSI, Program 2 and 3 requirements for 

compliance with RAGAGEP, and the 

RAGAGEP gap analysis as proposed. 

EPA is finalizing the retention of hot 

work permits and retail facility 

exemption proposed changes with the 

following modifications: 

• Revising 40 CFR 68.85(b) to require 

retention of hot work permits for three 

years rather than five. 

• Revising 40 CFR 68.3 to clarify that 

‘‘year,’’ in the context of the definition 

of ‘‘retail facility,’’ can be calendar or 

fiscal year. 

C. Discussion of Comments and Basis 

for Final Rule Provisions 

1. Process Safety Information 

a. Comments 

A couple of commenters expressed 

support for EPA’s proposal to clarify 

that the requirement to keep PSI up to 

date explicitly applies to Program 3 

processes. Several commenters stated 

that the proposal to update the PSI 

requirements is unnecessary, redundant 

with OSHA PSM requirements, and 

burdensome. Another commenter 

asserted that EPA should not amend 40 

CFR 68.65(a) as proposed and should 

instead adhere to the existing regulatory 

language for Program 3 sources to 

ensure that the long-standing 

consistency between the RMP and PSM 

standard remain. Some of the 

commenters also stated that 

implementation would result in 

unnecessary costs on facilities. One 

commenter noted that, as currently 

written, the regulation does not impose 

a continuing obligation to maintain PSI. 

The commenter noted that as PHAs are 

conducted on five-year cycles, the 

applicable PSI need only be compiled 

on a corresponding five-year cycle and 

requiring that PSI be kept up to date 

will have associated costs that need to 

be accounted for in the RIA. 

b. EPA Responses 

EPA appreciates the support for the 

Agency’s clarifications to the PSI 

requirements and is finalizing the 

provision as proposed. EPA believes 

that refining the language of 40 CFR 

68.65 to reflect existing requirements 

clarifies that such PSI is required to be 

up to date for Program 3 processes—just 

as it is for Program 2 processes— 

without the need for evaluating 

compliance with management of 

change, conducting a pre-startup safety 

review, or meeting PHA requirements. 

EPA disagrees that clarifying the PSI 

requirements is unnecessary. For 

processes subject to Program 3 

requirements, the PSI requirements 

under 40 CFR 68.65 do not explicitly 

address updating PSI. Instead, that 

subject is addressed in several other 

parts of the Program 3 requirements, 

including the management of change 

requirements in 40 CFR 68.75, the prestartup review requirements in 40 CFR 

68.77, and the requirement to document 

that equipment complies with 

RAGAGEP in 40 CFR 68.65(d)(2). EPA is 

simply clarifying the PSI requirements 

in order to make the regulation more 

consistent throughout. 

Additionally, EPA disagrees that the 

regulation, as currently written, does 


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Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 17677 

not impose a continuing obligation to 

maintain PSI. The requirement in 40 

CFR 68.75(d) that PSI must be updated 

to reflect changes implies that PSI must 

be maintained. Further, the requirement 

to ‘‘document compliance with 

RAGAGEP’’ additionally supports that 

current PSI shall be maintained, since 

compliance cannot be documented 

without the maintaining of current PSI 

documents. 

In response to comments that the 

updated PSI requirements would be 

inconsistent or redundant with OSHA’s 

PSM requirements, EPA disagrees. EPA 

has coordinated with OSHA throughout 

the rulemaking process to ensure the 

intent of adding specificity and 

clarification to the RMP regulations 

does not create conflicting requirements 

with OSHA’s PSM standard. 

EPA disagrees that this modification 

will result in unnecessary costs on 

facilities. The intent of the changes to 

the regulatory text is to simplify 

implementation for facilities, as well as 

oversight, thereby improving chemical 

safety. The amendments do not change 

the meaning of the RMP rule. Therefore, 

EPA does not expect the changes to 

result in any additional costs for 

facilities. 

2. Program 2 and 3 Requirements for 

Compliance With RAGAGEP 

a. Comments 

A couple of commenters supported 

EPA’s proposal to clarify RAGAGEP 

requirements for Program 2 and Program 

3 processes. One commenter stated that 

it is important to clarify the RAGAGEP 

requirements because codes, standards, 

and practices change over time. The 

commenter also urged EPA to 

strengthen the proposed changes by 

expanding the scope of applicability of 

the RAGAGEP requirement to cover all 

facilities. The commenter noted that the 

CAA directs EPA to ensure RAGAGEP is 

fully included in the assessment and 

process safety requirements, and 

mandates implementation ‘‘to the 

maximum extent practicable.’’ Another 

commenter stated that the industrywide understanding of the RAGAGEP’s 

meaning varies widely, and the 

proposed clarification may help 

alleviate this problem and address the 

concern that Federal and State 

regulations may lag behind recognized 

industry standards for safety. 

A couple of commenters stated that 

the requirement that owners ensure and 

document that processes are designed in 

compliance with RAGAGEP is an 

already-existing PSM requirement, and 

revisions to the text are therefore not 

necessary. A couple of commenters 

opposed removing the sentence, 

‘‘Compliance with Federal or State 

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

be used to demonstrate compliance with 

this paragraph.’’ One commenter stated 

that if EPA feels that Federal or State 

regulations lag behind current 

RAGAGEP, then the Agency should 

advocate for those specific Federal or 

State regulations to be updated. The 

other commenter stated that the CAA 

does not grant EPA the authority to 

substitute compliance with current 

RAGAGEP for compliance with 

promulgated OSHA regulations. 

b. EPA Responses 

EPA is finalizing the proposed 

changes to the regulatory language. EPA 

agrees that doing so will clarify the 

requirements and address the concern 

that Federal or State regulations may lag 

behind current RAGAGEP. At this time, 

EPA is not expanding the scope of RMP 

applicability of RAGAGEP beyond 

Program 2 and 3 processes. EPA does, 

however, encourage all facilities to use 

RAGAGEP as it reflects well known 

industry practices and lessons learned 

shown to improve process safety and 

prevent accidents. 

EPA disagrees that the changes to the 

regulatory language are unnecessary. 

EPA has found that the distinction 

between ‘‘ensure’’ for Program 2 

processes and ‘‘document’’ for Program 

3 processes creates confusion, and 

requiring facilities to ‘‘document’’ 

compliance, rather than merely 

‘‘ensure’’ compliance, removes this 

ambiguity. With regards to Federal or 

State regulations that lag behind current 

RAGAGEP, EPA notes there is a 

difference when updated codes augment 

existing regulations versus when they 

conflict. To the extent they conflict, 

existing regulations reign over new 

RAGAGEP. However, if a facility can 

comply with existing regulations and 

new RAGAGEP, then there is an 

obligation to comply with both. EPA 

believes this provision will help resolve 

confusion when more current 

RAGAGEP identify potential 

shortcomings in a facility’s process. 

EPA has coordinated with OSHA 

throughout the rulemaking process to 

ensure the intent of adding specificity 

and clarification to the RMP regulations 

does not create conflicts with the 

requirements of the OSHA PSM 

standard. 

3. Retention of Hot Work Permits 

a. Comments 

A few commenters expressed support 

for the proposed five-year retention 

period for hot work permits. One of the 

commenters stated that the provision 

advances the rule’s directive to ensure 

prevention and compliance to the 

greatest extent practicable and assures 

compliance as expeditiously as 

practicable. Another commenter stated 

that these simple recordkeeping 

requirements are not burdensome, 

contribute to further safety, and can 

help demonstrate compliance in the 

event of an audit. 

Several commenters stated that the 

retention of hundreds of expired hot 

work permits for five years is 

unnecessary and creates a substantial 

recordkeeping and administrative 

burden for facilities. A few commenters 

noted that retaining the hot work 

permits for five years provides no added 

safety benefits to the facility or 

surrounding community. A commenter 

pointed out that facilities are already 

required to conduct compliance audits 

on three-year intervals and to retain the 

two most recent compliance audit 

reports, meaning that compliance audit 

documentation will be retained for at 

least six years. The commenter stated 

that these audits will review hot work 

compliance and are available to 

implementing agency personnel; 

therefore, the proposed hot work permit 

retention requirement is excessive in 

proportion to the marginal benefit to 

implementing agencies. 

A couple of commenters noted that 

OSHA does not require that permits be 

retained beyond the completion of the 

hot work task. Similarly, another 

commenter pointed out that EPA failed 

to acknowledge that a five-year record 

retention period for hot work permits 

would break from the existing PSM rule, 

where OSHA requires hot work permits 

to be maintained only during the hot 

work. The commenter recommended 

that EPA maintain consistency with the 

PSM rule. Another commenter agreed 

that there should be no requirement to 

retain hot work permits beyond the 

completion of the hot work authorized 

by each permit. 

Some commenters suggested retaining 

hot work permits for periods of time 

other than five years. A few commenters 

specified that a one-year retention 

requirement would be more appropriate. 

One commenter recommended reducing 

the retention period from five years to 

three years, since the three-year period 

is consistent with the three-year audit 

period under 40 CFR 68.58 and 68.79 

for Program 2 and 3 facilities. 


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114https://www.govinfo.gov/content/pkg/FR1998-01-06/pdf/98-267.pdf. 

115https://www.epa.gov/sites/default/files/2013- 

10/documents/chap-01-final.pdf (page 1–5). 

116United States v. Multistar Indus. Inc., No. 

2:21–cv–00262–TOR, 2023 WL 1802387 (E.D. Wash. 

Feb. 7, 2023). 

b. EPA Responses 

EPA agrees that adding a requirement 

to retain hot work permits after the 

completion of operations would help 

ensure prevention and compliance to 

the greatest extent practicable and 

contribute to further safety. However, 

based on comments on the proposed 

timeframe, EPA is finalizing a three-year 

retention period of hot work permits as 

opposed to the five years that were 

proposed. 

EPA does not agree that retention of 

hot work permits after the completion of 

operations is unnecessary. Under the 

existing RMP regulations, it can be 

difficult for implementing agencies, and 

the owner or operator, through the 

compliance audit provision (40 CFR 

68.58 and 68.79), to determine if the 

facility has been conducting hot work in 

compliance with the requirements of 40 

CFR 68.85, unless the facility is 

conducting hot work at the time of the 

inspection or audit and has hot work 

permits on file. Adding a requirement to 

retain hot work permits after the 

completion of operations will address 

this issue. EPA is finalizing a three-year 

retention period of hot work permits in 

order to make the requirement less 

burdensome for facilities conducting hot 

work often and to align the requirement 

with the three-year audit period under 

40 CFR 68.58 and 68.79. 

In response to comments that the 

proposed retention period would be 

inconsistent with OSHA’s PSM rule, 

EPA has coordinated with OSHA 

throughout the rulemaking process to 

ensure the intent of adding specificity 

and clarification to the RMP regulations 

does not create conflicts with the 

requirements of the OSHA PSM 

standard. 

4. Storage Incident to Transportation 

EPA’s Proposed Approach 

a. Comments 

One commenter expressed support for 

the proposed additional regulatory 

language and the proposed 48-hour time 

frame. Other commenters supported 

EPA’s proposal to continue to exclude 

facilities and equipment used in 

transportation and storage incident to 

transportation from the term ‘‘stationary 

source.’’ One commenter stated that 

doing so avoids duplication of the 

existing DOT regulations and continues 

the regulatory division of labor between 

EPA and DOT’s Pipeline and Hazardous 

Safety Administration (PHMSA). 

One commenter stated that 

transloading can take up to two months 

due to a variety of safety and logistics 

reasons, and requiring transloaders to 

move more quickly might increase the 

risks of release that the proposed rule 

seeks to minimize. A couple of 

commenters stated that the proposed 

definition of ‘‘stationary source’’ would 

conflict with DOT requirements and 

could create confusion. 

One commenter requested that 

facilities be given a minimum of 72 

hours before a disconnected 

transportation container is considered 

part of the stationary source. Similarly, 

another commenter stated that a time 

frame of 48 hours is too short with 

respect to rail transportation. The 

commenter asked EPA to consider 

eliminating the 48-hour requirement 

altogether, or at a minimum, extend it 

further for purposes of the RMP rule. 

The commenter noted that concerns 

over safety to the surrounding 

environment due to an extended 

timeframe should be mitigated by the 

fact that railcars designed to transport 

hazardous materials must meet rigorous 

design specifications as specified by 

PHMSA in 49 CFR part 179. 

A couple of commenters expressed 

safety concerns that arise from 

transportation containers being exempt 

from the RMP rule when disconnected 

for less than 48 hours. One commenter 

requested that EPA strengthen the 

proposed rule to immediately trigger 

threshold determination for the duration 

that a transportation container is on-site, 

regardless of whether it is attached to a 

source of power or in motion. The 

commenter added that the presence of 

chemical railcars multiplies the risk for 

communities by blocking emergency 

evacuation routes and increasing air 

pollution. Another commenter stated 

that there are cumulative impacts and 

risks regardless of the length of time at 

a location and asked EPA to work with 

local community groups to best resolve 

the safety concern. 

b. EPA Responses 

EPA is not finalizing the proposed 

regulatory language that includes a 

specified number of hours that a 

transportation container may be 

disconnected from the motive power 

that delivered it to the site before being 

considered part of the stationary source. 

As explained in the proposed rule, the 

term ‘‘storage not incident to 

transportation’’ is currently not defined 

in the RMP regulations. The proposed 

modification sought only to apply a 

specific timeframe to universally 

establish a structure to interpret the 

term. EPA hoped a specified timeframe 

would assist regulated entities and 

implementing agencies to more clearly 

determine when a transportation 

container used for onsite storage must 

be incorporated into a facility’s risk 

management plan. Nevertheless, after 

review of comments, EPA acknowledges 

some of the concerns with establishing 

a timeframe and chooses to further 

consider the feedback received on the 

proposed modification before pursuing 

the effort. EPA encourages regulated 

entities and implementing agencies to 

continue to rely on guidance EPA has 

provided to determine if a 

transportation container is considered a 

part of a stationary source. 

EPA has demonstrated its intent and 

application of when transportation 

containers are and are not part of the 

stationary source in guidance and 

through court decisions. In the January 

1998 amendments to the RMP rule (63 

FR 640),114 the Agency explained that 

EPA considers a container to be in 

transportation as long as it is attached 

to the motive power that delivered it to 

the site (e.g., a truck or locomotive). If 

a container remains attached to the 

motive power that delivered it to the 

site, even after a facility accepts 

delivery, it would be considered as still 

in transportation, and the contents 

would not be subject to threshold 

determination. Additionally, EPA’s 

guidance indicates that transportation 

containers used for storage which are 

not incident to transportation and 

transportation containers connected to 

equipment at a stationary source are 

considered part of the stationary source. 

Transportation containers that have 

been unhooked from the motive power 

that delivered them to the site (e.g., 

truck or locomotive) and left on a 

stationary source’s site for short-term or 

long-term storage are part of the 

stationary source.115

Since EPA’s proposal, courts have 

also spoken to this issue. In February 

2023, the U.S. Eastern District Court of 

Washington ruled in favor of the U.S. 

against Multistar Industries regarding 

RMP applicability to railcars used for 

stationary storage. The Court 

determined that railcars containing 

trimethylamine (TMA) in 2017 in 

Othello, WA, were used as storage 

outside the scope of transportation.116

The TMA-containing railcars sat for 

days or weeks before the TMA was 

eventually transloaded into trucks for 

transfer to the customer. Additionally, 

in 2017, the NC Department of Air 

Quality succeeded against Aberdeen 

Carolina & Western Railway in 

demonstrating that EPA’s longstanding 


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117Aberdeen Carolina & Western Railway v. NC 

Dept of Air Quality, Final Decision on Summary 

Judgment, State of North Carolina, County of 

Montgomery, 16 EHR 07190, May 22, 2017. 

interpretation of the term ‘‘stationary 

source’’ includes railcars disconnected 

from locomotive power and stored for 

extended periods of time. In that case, 

between 2012 and 2016, in Star, NC, 

railcars containing butane were stored 

on tracks awaiting placement at a 

nearby terminal for up to 360 days.117

5. Retail Facility Exemption 

a. Comments 

Several commenters opposed EPA’s 

proposed changes to the definition of 

‘‘retail facility.’’ A couple of 

commenters contended that the 

proposed changes to the definition lack 

justification. One of the commenters 

said that EPA failed to: (1) Provide any 

support for its assertion that owners and 

operators of facilities storing propane or 

other flammable substances are unclear 

how to determine whether they qualify 

as retail facilities, (2) provide any 

information to suggest that the current 

definition creates safety concerns, and 

(3) cite enforcement concerns at 

facilities claiming to be retail facilities. 

One commenter urged EPA to use the 

retail facility definition used for the 

RMP and OSHA PSM standard, which 

has been in place for a long time and is 

well understood by the industry and 

enforceable by the agencies. A couple of 

commenters urged EPA to maintain its 

existing definition of a retail facility, 

which is consistent with the definition 

set forth in the Fuels Regulatory Relief 

Act and OSHA PSM standard 

enforcement guidance and 

interpretations. 

A couple of commenters 

recommended that, if EPA moves 

forward to adjust the definition of retail 

facility, the Agency should provide 

businesses and/or facilities with the 

option of selecting either fiscal year or 

calendar year when determining annual 

income from direct sales to end users. 

Similarly, another commenter 

recommended changing ‘‘calendar year’’ 

to ‘‘fiscal year’’ to facilitate the income 

calculation for those companies whose 

fiscal year may not coincide with the 

calendar year. 

b. EPA Responses 

EPA disagrees that the proposed 

changes to the definition of ‘‘retail 

facility’’ lack justification. With the 

current definition, the period of sales to 

end users is unclear; it lacks a definite 

time frame in which to calculate 

whether more than one-half of the 

facility’s direct sales are to end users. 

Specifying a definite period of time 

eliminates this uncertainty and allows 

owners and operators to determine more 

accurately whether regulated substances 

in a process are subject to the RMP 

provisions. It also may reduce the 

amount of sales documentation that the 

owner or operator of a regulated facility 

must provide to establish its status as a 

retail facility. EPA is finalizing the ‘‘one 

year of sales activity’’ amendment 

because the Agency believes it captures 

the seasonality of propane sales at 

propane distribution facilities. 

EPA disagrees with comments arguing 

that EPA’s proposed definition would 

be inconsistent with OSHA’s PSM 

regulations. EPA has coordinated with 

OSHA throughout the rulemaking 

process to ensure the intent of adding 

specificity and clarification to the RMP 

regulations does not create conflicts 

with the requirements of the OSHA 

PSM. EPA believes that the provisions 

it proposed and is finalizing are 

compatible and do not conflict with the 

prevention provisions of OSHA’s PSM 

regulations. 

In response to comments 

recommending that EPA adjust the 

definition to provide facilities the 

option of selecting either fiscal year or 

calendar year, EPA agrees with this 

suggestion and is adopting it in the final 

rule. The Agency believes this option 

provides flexibility in using records in 

the configuration that may already exist 

at facilities. 

6. RAGAGEP Gap Analysis 

a. Comments 

Many commenters expressed 

opposition to EPA’s proposed 

RAGAGEP gap analysis provisions. One 

commenter stated that the existing RMP 

regulations already address gaps in 

RAGAGEP through the PSI requirement 

in 40 CFR 68.65(d)(3). Some 

commenters stated that conducting a 

gap analysis of RAGAGEP has no safety 

benefits. Another commenter contended 

that the proposal is an unnecessary 

intrusion into internal practices of a 

facility. The commenter added that, 

because EPA should not require 

disclosure of decisions not to 

implement RAGAGEP 

recommendations, there is no need to 

provide specific categories for reporting 

that information publicly. 

Several commenters stated that 

requiring facilities to include this 

information in their risk management 

plans would result in unnecessary costs 

on facilities. A few commenters noted 

that EPA’s failure to consider costs in 

the RIA deprives the public of an 

opportunity to assess the full costs and 

benefits of the proposal. One commenter 

stated that EPA provided no reasonable 

explanation for its proposed RAGAGEP 

requirements, nor did it consider the 

cost, including resources that may be 

diverted because of this paperwork 

exercise, or benefits of the requirement 

in the RIA. 

One commenter noted that the 

proposed gap analysis provision ignores 

several practical difficulties in 

implementation, such as how facilities 

are to identify the most current version 

of applicable RAGAGEP, how they are 

to account for non-mandatory 

RAGAGEP provisions in the analysis, 

and how this analysis can be completed 

in a timely manner. The commenter 

added that the proposed requirement 

ignores existing obligations to determine 

and document that equipment designed 

and constructed is in accordance with 

RAGAGEP. 

Some commenters said that the 

RAGAGEP analysis is ill-suited for the 

PHA team to perform. One commenter 

pointed out that industry standards are 

locked into place once a facility is 

constructed and each facility is 

designed, engineered, and built 

according to the standards of that time. 

The commenter added that in some 

cases it would be impossible to 

document that equipment, which may 

be 20 or 30 years old, complies with 

RAGAGEP when RAGAGEP continually 

changes. 

A couple of commenters stated that 

the proposed gap analysis provision 

encroaches on OSHA’s PSM regulation. 

Some commenters pointed out that EPA 

adopted their regulation verbatim from 

OSHA’s PSM regulation, and OSHA has 

made clear that its regulations require 

the verification of safe equipment, not a 

continual review of RAGAGEP. Several 

commenters said that EPA did not 

explain how the proposed gap analysis 

provision would work in tandem with 

OSHA regulation, which the proposal 

fails to repeal or revise. One of the 

commenters added that ignoring 

existing regulations is arbitrary 

government action. 

b. EPA Responses 

In response to comments that EPA 

provided no reasonable explanation for 

the requirement, there would be 

difficulty in implementing the 

provision, and costs for the requirement 

were not considered, EPA notes that this 

RAGAGEP gap analysis is already 

expected under 40 CFR 68.65(d)(2) and 

(3) for Program 3 processes. EPA notes 

this PHA modification merely clarifies 

when facilities must, at minimum, 

conduct or review previous analyses 

when determining their compliance 


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17680 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

118https://www.epa.gov/rmp/complying-processsafety-information-psi-resulting-new-and-updatedrecognized-and-generally. 

119https://yosemite.epa.gov/oa/rhc/ 

epaadmin.nsf/Filings/F8CDEF8A6F3440438525

88A90070FA45/$File/Par%20Hawaii

%20Refining%20(CAA112R-09-2022-0008)%20- 

%20Served.pdf. 

120https://yosemite.epa.gov/oa/rhc/ 

epaadmin.nsf/Filings/0D26DA8B081A54008525867

F00634AB2/$File/EPCRA-01-2021-0037%20and

%20CAA%20-01-2021-0038

%20ORPEL%20CAFO%20Respondent%20SignedRJO-Signed02-17-21%20(002).pdf. 

121S. Rep. 101–228 at 209, 1990 U.S.C.C.A.N. 

3385, 3595 (1989). 

with 40 CFR 68.65(d)(2) and (3). 

Therefore, EPA does not believe that the 

Agency must consider and assess the 

costs of this provision in the RIA. 

As indicated in a Frequently Asked 

Question,118 EPA expects owners and 

operators to regularly review new and 

updated RAGAGEP applicable to their 

industry to determine where safety gaps 

exist within their current process. If the 

updated document explicitly provides 

that new clauses or requirements are 

retroactive, those updates are relevant to 

determining whether the owner or 

operator’s practice continues to conform 

to RAGAGEP per 40 CFR 68.65(d)(2). 

Where RAGAGEP are updated to be 

more protective, but are not explicitly 

retroactive, per 40 CFR 68.65(d)(3), the 

owner or operator should thoroughly 

evaluate how their process could still be 

considered safe amid new industry 

knowledge. Simply indicating that a 

process incident has yet to occur is an 

inappropriate evaluation for choosing 

not to adhere to updated RAGAGEP, 

especially considering changes to 

RAGAGEP may result from industry 

accidents, industry operating 

experience, and improved 

understanding of existing and newly 

recognized hazards. Oftentimes it will 

be difficult for the owner or operator to 

document equipment is designed, 

maintained, inspected, testing, and 

operating in a safe manner when there 

is extensive industry knowledge that 

indicates aspects of older process 

operations are no longer safe. 

Evaluation of updated RAGAGEP 

already is an RMP requirement, as 

shown in enforcement actions against 

facilities not complying with this 

provision. For example, in 2022, EPA 

took an enforcement action against a 

refinery in Hawaii that failed to comply 

with the latest versions of applicable 

refining industry standards, API 

Recommended Practice 941, ‘‘Steels for 

Hydrogen Service at Elevated 

Temperatures’’ (8th edition, February 

2016), and 581, ‘‘Risk Based Inspection’’ 

(3rd edition, April 2016).119 In February 

2021, EPA also took an enforcement 

action against a seafood processing 

facility in Massachusetts that failed to 

comply with the latest version (at that 

time) of an applicable ammonia 

refrigeration industry standard, 

International Institute of Ammonia 

Refrigeration (IIAR) 2–2014, ‘‘Safe 

Design of Closed-Circuit Ammonia 

Refrigeration Systems.’’ 120 In both 

cases, the processes at these facilities 

were built prior to the updated 

RAGAGEP cited. 

EPA disagrees that the RAGAGEP 

analysis is ill-suited for the PHA team 

to perform. PHA teams should include 

staff who are aware of industry design 

standards. The PHA team requirement 

under 40 CFR 68.67(d) specifies that the 

PHA shall be performed by a team with 

expertise in engineering and process 

operations, and EPA expects an expert 

to be one that has knowledge of current 

industry standards. Additionally, 

industry trade associations are likely to 

ease the burden on facilities by 

identifying which of their current 

RAGAGEP should be broadly applied to 

the industry, regardless of when the 

process was designed. For example, the 

ammonia refrigeration industry has 

already done so, specifically in the 

ANSI/IIAR Standard 9–2020, ‘‘American 

National Standard for Minimum System 

Safety Requirements for Existing 

Closed-Circuit Ammonia Refrigeration 

Systems.’’ 

In response to comments that the 

provisions encroach on OSHA’s PSM 

regulations, EPA disagrees. This new 

PHA requirement is meant to 

complement OSHA’s equivalent 

requirement in 29 CFR 

1910.119(d)(3)(iii) and provide a 

framework for undertaking the analysis. 

While EPA favors consistency with 

OSHA’s PSM standard, EPA must also 

ensure compliance with the CAA. CAA 

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

Purpose and general duty, states that, ‘‘It 

shall be the objective of the regulations 

and programs authorized under this 

subsection to prevent the accidental 

release and to minimize the 

consequences of any such release of any 

substance listed pursuant to paragraph 

(3) or any other extremely hazardous 

substance.’’ Congress further clarified in 

legislative history that it intended 

facility owners and operators to 

implement all feasible means to reduce 

the threat of death, serious injury, or 

substantial property damage to satisfy 

the requirements of the GDC.121

Obligations under the regulatory 

program authorized by CAA section 

112(r)(7) build upon those under the 

general duty rather than undercut it. 

Accordingly, using the RMP regulations 

to permanently lock into place obsolete 

or out-of-date RAGAGEP is inconsistent 

with the purpose and intent of the CAA. 

IX. Compliance Dates 

The initial RMP rule applied three 

years after promulgation of the rule on 

June 20, 1996, which is consistent with 

the last sentence of CAA section 

112(r)(7)(B)(i). The statute does not 

directly address when amendments 

should become applicable. The 

provisions of this action modify terms of 

the existing rule, and, in some cases, 

clarify existing requirements. 

A. Summary of Proposed Rulemaking 

EPA proposed modifications to 40 

CFR 68.10 to establish compliance dates 

for an owner or operator to comply with 

the revised rule provisions as follows: 

• Require regulated sources to 

comply with new STAA, incident 

investigation root cause analysis, thirdparty compliance audit, employee 

participation, emergency response 

public notification and exercise 

evaluation reports, and information 

availability provisions, unless otherwise 

stated, three years after the effective 

date of the final rule (i.e., three years 

after the FR effective date). 

• Require regulated sources to 

comply with the revised emergency 

response field exercise frequency 

provision by March 15, 2027, or within 

10 years of the date of an emergency 

response field exercise conducted 

between March 15, 2017, and August 

31, 2022, in accordance with 40 CFR 

68.96(b)(1)(ii). 

• Allow regulated sources one 

additional year (i.e., four years after the 

effective date of the final rule) to update 

and resubmit risk management plans to 

reflect new and revised data elements. 

B. Summary of Final Rule 

EPA is finalizing the compliance 

dates as proposed with the following 

modification: 

• Adding a compliance date to 40 

CFR 68.10 to require standby or backup 

power for air monitoring and control 

equipment by three years after the 

effective date of the final rule (i.e., three 

years after the effective date of this 

action as provided in the Federal 

Register). 

C. Discussion of Comments and Basis 

for Final Rule Provisions 

1. General Comments 

a. Comments 

One commenter expressed support for 

the compliance dates proposed by EPA. 

Another commenter recommended that 

the compliance period under the 


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proposed rule be shortened to two years, 

at least for the emergency response 

public notification and exercise 

evaluation reports, employee 

participation, and information 

availability provisions. The commenter 

added that statutory language reflects 

Congress’s intent that EPA ensure 

adequate safeguards are promptly put in 

place to protect workers and 

surrounding communities from releases 

of dangerous chemicals. The commenter 

further stated that EPA’s proposal 

should contain shorter compliance 

deadlines as compared to the 1996 RMP 

rule because the proposed rule is not as 

extensive as developing a full RMP 

program. Another commenter opposed 

allowing companies three years after the 

effective date of the proposed rule to 

comply. The commenter stated that this 

period is too long, given that most 

companies are already complying with 

an existing version of the RMP rule. The 

commenter suggested a one-year 

timeline is most appropriate. 

Several commenters stated that there 

are too many proposed changes to 

accomplish in three years and asked 

EPA to extend the compliance deadlines 

to five years after the effective date of 

the proposed rule. The commenter 

stated that to the extent that EPA 

intends to rely on forthcoming guidance 

in interpreting and enforcing the new 

RMP provisions, it is imperative that 

these new requirements not take effect 

until at least three years after the 

relevant guidance is issued, instead of 

three years after the effective date of the 

final rule, as EPA has proposed. One 

commenter, who objected to the 

effective dates in the proposed rule and 

said they are too restrictive, said EPA 

failed to meet its CAA obligation to set 

RMP effective dates in a manner that 

assures compliance as ‘‘expeditiously as 

practicable.’’ 

b. EPA Responses 

EPA disagrees that the compliance 

dates for some or all provisions should 

be shortened to one or two years or 

should be lengthened to five years or 

three years after guidance is issued. The 

Agency believes there is a good balance 

with three years as the compliance date 

for most new provisions while also 

assuring compliance as expeditiously as 

practicable. Moreover, the initial 1996 

RMP rule required compliance per the 

statute within three years. EPA believes 

the provisions finalized in this rule are 

not as extensive as developing a full 

RMP program. Nevertheless, time is 

needed for facility owners and operators 

to understand the revised rule; train 

facility personnel on the revised 

provisions; learn new investigation 

techniques, as appropriate; research 

safer technologies; arrange for 

emergency response resources; 

incorporate changes into their RMPs; 

and establish a strategy to notify the 

public that certain information is 

available upon request. This time is 

necessary to achieve compliance with 

the new provisions because as a 

performance-based rule, EPA has not 

specified how facilities apply these 

provisions to manage and improve 

process safety at their facility, whether 

it involves conforming to minimum 

standards, such as codes, or trying to 

reduce risk to as low as reasonably 

practical, or whether it uses qualitative 

or quantitative assessments. 

Furthermore, EPA intends to publish 

guidance for certain provisions, such as 

STAA, root cause analysis, third-party 

audits, and employee participation, etc. 

Once these materials are complete, 

owners and operators can have time to 

familiarize themselves with the new 

materials if needing assistance in 

applying the provisions to improve 

process safety. EPA expects to develop 

and release this information 

approximately one year after this final 

rule. However, most provisions for a 

source are a site-specific determination, 

so EPA expects all regulated RMP 

facilities to be successful in beginning to 

address the provisions immediately. 

2. Safer Technologies and Alternatives 

Analysis 

One commenter pointed out that the 

effective date for the STAA requirement 

would disrupt PHA cycles. The 

commenter stated that the proposed 

STAA deadline is impracticable for 

facilities scheduled to complete their 

PHA update and re-validation any time 

after August 1, 2021. The commenter 

requested that EPA modify the effective 

date to perform a STAA as part of the 

next-scheduled PHA update and revalidation that occurs any time after 

three years from EPA’s issuance of the 

intended STAA guidance or the final 

rule’s effective date, whichever is later. 

EPA disagrees with commenters and 

is finalizing a three-year compliance 

date for the STAA evaluation and IST/ 

ISD practicability assessment. Sources 

subject to this provision are among the 

largest and most complex sources 

regulated under 40 CFR part 68, and 

therefore PHAs and PHA updates and 

revalidations at these sources typically 

require a significant level of planning. 

While PHA updates are normally done 

at five-year intervals, the Agency 

recognizes that some sources may be far 

enough along with their PHAs that they 

will not be able to schedule their STAAs 

as part of their PHAs. Such sources have 

the option of not performing STAA as 

part of their PHA so long as they 

perform a STAA within 3 years of the 

effective date of the final rule. 

Considering updates or revalidations to 

the initial STAA activities will likely 

require less effort, the Agency expects 

many of these sources will later 

incorporate further STAA updates on 

their normal PHA update schedule. 

Regarding the STAA safeguard 

implementation provision, since 

implementation (of at least one passive 

measure, or an inherently safer 

technology or design, or a combination 

of active and procedural measures 

equivalent to or greater than the risk 

reduction of a passive measure) is 

required each PHA cycle, EPA expects 

implementation to be commenced 

within that cycle and scheduled for 

completion as soon as practicable. 

3. Incident Investigation Root Cause 

Analysis 

EPA did not receive any comments 

specific to the three-year compliance 

date for incident investigation root 

cause analysis. Therefore, EPA is 

finalizing the date for this provision, as 

proposed. The Agency continues to rely 

on the rationale expressed in the 

proposed rulemaking (87 FR 53606). 

4. Third-Party Compliance Audits 

EPA did not receive any comments 

specific to the three-year compliance 

date for third-party compliance audits. 

Therefore, EPA is finalizing the date for 

this provision, as proposed. The Agency 

continues to rely on the rationale 

expressed in the proposed rulemaking 

(87 FR 53606). 

5. Employee Participation 

EPA did not receive any distinct 

comments specific to this issue other 

than as a general comment. Therefore, 

EPA is finalizing a three-year 

compliance date for this provision, as 

proposed. The Agency continues to rely 

on the rationale expressed in the 

proposed rulemaking (87 FR 53606). 

6. Emergency Response 

Public Notification. Regarding the 

community public notification system 

requirements, a commenter said they 

will take more than three years to 

implement because it will be a 

significant undertaking requiring 

involvement of and coordination with 

several different parties. 

EPA disagrees with commenters that 

this provision will take longer than 

three years to implement. This 

provision is for facility owners and 

operators to work with the local 

responders to ensure that, during a 


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release, a notification system is in place 

that will notify the public of the 

impending situation. EPA expects the 

partnership to occur at least during 

annual coordination discussions under 

40 CFR 68.93. Under 40 CFR 68.93, 

owners and operators are required to 

annually coordinate response needs 

with local emergency planning and 

response organizations to determine 

how the facility is addressed in the 

community emergency response plan, 

among other things. A component of the 

community emergency response plan is 

public notification of chemical releases; 

therefore, it is expected that this 

component will be discussed and 

documented by the facility owner or 

operator as part of the annual 

coordination obligations. Therefore, 

EPA is finalizing the 3-year compliance 

date as proposed. 

Field Exercises. A couple of the 

commenters suggested that EPA speed 

up compliance because 10 years is too 

long to wait for essential emergency 

planning, especially in communities 

with multiple RMP facilities. One 

commenter noted that five- to ten-year 

deadlines allow more time than 

necessary to comply and would allow 

another generation of children to grow 

up without even the protection of a 

basic emergency response exercise at 

the facility near them. 

EPA disagrees that field exercises 

should be required on an annual, 

biennial, or triennial basis. Requiring 

field exercises to be held at shorter 

minimum frequencies, such as these 

would significantly increase compliance 

costs to both regulated facilities and 

local responder agencies. Such an 

approach would discourage the 

participation of local emergency 

responders in field exercises, which is 

voluntary under the RMP rule. 

Additionally, table-top exercises of the 

emergency plan have value for 

protecting the nearby community, and 

these occur every three years. The 

community would not be without a type 

of ‘‘basic emergency response exercise.’’ 

Therefore, EPA is finalizing the 

compliance date for owners or operators 

of sources to have planned, scheduled, 

and conducted their first field exercise 

by March 15, 2027. 

Exercise Evaluation Reports. EPA did 

not receive any comments specific to 

the three-year compliance date for 

exercise evaluation reports other than as 

a general comment. Therefore, EPA is 

finalizing the date for this provision, as 

proposed. The Agency continues to rely 

on the rationale expressed in the 

proposed rulemaking (87 FR 53606). 

7. Information Availability 

A couple of commenters stated EPA’s 

proposal to delay information access for 

45 days after a request, and to require 

compliance after three years, is 

unlawful and arbitrary. These 

commenters stated that community 

members need information now—not 

three years from now—and that 45 days 

is far too long for a community member 

to have to wait for basic hazard 

information. The commenters also 

stated that EPA has failed to justify 

these delays when the provision would 

simply require a facility to provide only 

a portion of the information it already 

regularly reports to EPA itself, and that 

EPA has failed to show three years is the 

most expeditious compliance date 

practicable, or that three years is 

required to implement this provision. 

EPA disagrees with these commenters 

and is finalizing a three-year 

compliance date for the information 

availability provision. This means that 

three years after the effective date of the 

rule, the facility owner or operator must 

have notifications in place to inform the 

public that information specified in 40 

CFR 68.210(b) is available upon request. 

EPA believes that this timeframe is 

needed to allow facility staff an 

opportunity to determine the best 

method for providing notifications to 

the public, to assemble and format 

information, including securing 

appropriate language translation 

services, and to prepare to respond to 

information requests. EPA is therefore 

finalizing the three-year compliance 

date for the information availability 

provision. 

8. RMP Update 

A couple of commenters urged EPA to 

shorten the 4-year timeline for facilities 

to submit updated RMPs. 

EPA disagrees with commenters and 

is finalizing the four-year compliance 

date for this provision, as proposed. 

This timeframe will allow owners and 

operators an opportunity to begin to 

comply with revised rule provisions 

prior to certifying compliance in the 

RMP. Additionally, the Agency will 

revise its online RMP submission 

system, RMP*eSubmit, to include the 

additional data elements, and sources 

will not be able to update RMPs with 

new or revised data elements until the 

submission system is ready. Also, once 

it is ready, allowing an additional year 

for sources to update RMPs will prevent 

potential problems with thousands of 

sources submitting updated RMPs on 

the same day. 

9. Hazard Review Amplifications and 

Other Areas of Technical Clarification 

a. Comments 

One commenter asked EPA to clarify 

the required date for compliance with 

the natural hazard assessment and the 

power loss evaluations. The commenter 

asserted that this should occur as 

expeditiously as practicable, within one 

year after the effective date of the final 

rule, and facilities should be directed to 

report that they have completed these 

assessments soon after completion. 

Another commenter supported requiring 

backup power for air pollution control 

and monitoring equipment associated 

with the prevention and detection of 

accidental releases and suggested that 

EPA specify an appropriate compliance 

deadline, specifically no later than three 

years from the date of promulgation. 

One commenter pointed out that 

EPA’s proposal would require facilities 

to comply with the proposed revisions 

in the PHAs upon the effective date of 

the rule. The commenter said that the 

deadline is infeasible because it would 

take years to address the host of 

expansive new PHA requirements that 

require analysis of a wide range of 

issues. Accordingly, the commenter 

asked EPA to clarify that the deadline 

for any new requirements is when the 

PHA becomes due as part of its five-year 

cycle, or three years after the effective 

date of the final rule, whichever comes 

later. Referring to the natural hazards 

assessment, another commenter 

requested an implementation date of no 

sooner than five years after the effective 

date of the final rule. 

b. EPA Responses 

EPA notes that components of the 

hazards evaluation amplifications and 

the other areas of technical clarification 

in sections V.A. and VIII of this 

preamble impose no new requirements 

on facilities because they codify existing 

industry practice and re-emphasize 

current RMP requirements and do not 

change the meaning of the RMP rule. 

Compliance for these provisions is 

therefore already required and should 

be updated on their normal schedule. 

For example, an evaluation of natural 

hazards on a process should already be 

occurring as part of the hazard review 

(40 CFR 68.50) or PHA (40 CFR 68.67) 

and should be updated at least once 

every 5 years. Additionally, any update 

to the RMP required by 40 CFR 68.190 

should continue to occur as normal and 

should include updating the RMP with 

current information required by Subpart 

G. The intent of the amplifications and 

clarifications discussed in this final rule 

are to simplify implementation for 


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facilities, thereby improving chemical 

safety. 

In response to comments asking EPA 

to clarify the compliance date for 

requiring standby or backup power for 

continuous operation of air monitoring 

equipment associated with prevention 

and detection of accidental releases 

from covered processes, EPA has 

adopted the three-year compliance date 

and has amended the regulatory 

language. EPA believes three years will 

allow time to evaluate and secure 

standby or backup power needs for air 

monitoring equipment and assure their 

safe operation. 

X. Statutory and Executive Orders 

Reviews 

Additional information about these 

statutes and Executive orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is a ‘‘significant regulatory 

action’’, as defined under section 3(f)(1) 

of Executive Order 12866, as amended 

by Executive Order 14094. Accordingly, 

EPA, submitted this action to the Office 

of Management and Budget (OMB) for 

Executive Order 12866 review. 

Documentation of any changes made in 

response to the Executive Order 12866 

review is available in the docket. The 

EPA prepared an analysis of the 

potential costs and benefits associated 

with this action. This analysis, 

‘‘Regulatory Impact Analysis: Safer 

Communities by Chemical Accident 

Prevention Final Rule’’ (Docket ID 

Number EPA–HQ–OLEM–2022–0174), 

is also available in the docket. 

B. Paperwork Reduction Act (PRA) 

The information collection activities 

in this rule will be submitted for 

approval to OMB under the PRA. The 

Information Collection Request (ICR) 

document that EPA prepared has been 

assigned EPA ICR number 2725.02. You 

can find a copy of the ICR in the docket 

for this rule, and it is briefly 

summarized here. The information 

collection requirements are not 

enforceable until OMB approves them. 

EPA believes that the RMP 

regulations, originally promulgated on 

June 20, 1996, codified as 40 CFR part 

68, and later amended, have been 

effective in preventing and mitigating 

chemical accidents in the United States. 

However, EPA believes that revisions 

will likely further protect human health 

and the environment from chemical 

hazards through advancement of 

process safety based on lessons learned. 

The revisions in this final rule are a 

result of reviewing the existing RMP 

regulations and information gathered 

from the 2021 listening sessions. State 

and local authorities will use the 

information in RMPs to modify and 

enhance their community response 

plans. The agencies implementing the 

RMP rule use RMPs to evaluate 

compliance with 40 CFR part 68 and to 

identify sources for inspection because 

they may pose significant risks to the 

community. Citizens may use the 

information to assess and address 

chemical hazards in their communities 

and to respond appropriately in the 

event of a release of a regulated 

substance. These revisions are made 

under the statutory authority provided 

by section 112(r) of the CAA as 

amended (42 U.S.C. 7412(r)). 

Respondents/affected entities: The 

industries that are likely to be affected 

by the requirements in the regulation 

fall into numerous NAICS codes. The 

types of stationary sources affected by 

the rule range from petroleum refineries 

and large chemical manufacturers to 

water and wastewater treatment 

systems; chemical and petroleum 

wholesalers and terminals; food 

manufacturers, packing plants, and 

other cold storage facilities with 

ammonia refrigeration systems; 

agricultural chemical distributors; 

midstream gas plants; and a limited 

number of other sources that use RMPregulated substances. Among the 

stationary sources potentially affected, 

the Agency has determined that 2,636 

are regulated private sector small 

entities and 630 are small government 

entities. 

Respondent’s obligation to respond: 

Mandatory ((CAA sections 

112(r)(7)(B)(i) and (ii), CAA sections 

112(r)(7)(B)(iii), 114(c), CAA 114(a)(1))). 

Estimated number of respondents: 

11,740. 

Frequency of response: Occasional. 

Total estimated burden: 1,190,991 

hours (per year). Burden is defined at 5 

CFR 1320.3(b). 

Total estimated cost: $126,796,471 

(per year); includes $12,413,710 annual 

operations and maintenance costs and 

$78,400 annual capital costs. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

OMB approves this ICR, the Agency will 

announce that approval in the Federal 

Register and publish a technical 

amendment to 40 CFR part 9 to display 

the OMB control number for the 

approved information collection 

activities contained in this final rule. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. The small entities 

subject to the requirements of this 

action are small businesses and small 

governmental entities. The Agency has 

determined that among the 2,636 

potentially regulated private sector 

small entities so impacted, 2,393, or 

90.8 percent, may experience an impact 

of less than one percent with an average 

small entity cost of $72,525; 167, or 6.3 

percent, may experience an impact of 

between 1 and 3 percent of revenues 

with an average small cost entity of 

$629,271; and 75, or 2.8 percent, may 

experience an impact of greater than 3 

percent with an average small entity 

cost of $1,083,823. The industry sectors 

of Farm Supplies Merchant Wholesalers 

and Farm Product Warehousing and 

Storage had the most entities potentially 

affected, with 146 and 96 entities, 

respectively. Within the Farm Supplies 

Merchant Wholesalers sector, the 

Agency determined that only 8 of the 

146 small entities (6 percent of small 

entities) will experience impacts of 

between 1 and 3 percent of revenues 

and only 2 small entities (1 percent of 

small entities) will experience impacts 

of more than 3 percent of revenue. 

Within the Farm Product Warehousing 

and Storage sector, the Agency 

determined that only 5 of the 96 small 

entities (5 percent of small entities) will 

experience impacts of between 1 and 3 

percent of revenues and no small 

entities will experience impacts of more 

than 3 percent of revenue. 

Among the 630 small government 

entities potentially affected, the 

minimum cost any entity will incur is 

$2,000; 365, or 58 percent, would incur 

costs ranging from $2,000 to $3,000; 

248, or 39 percent, will incur costs 

ranging from $3,000 to $10,000; and 17, 

or 3 percent, will incur costs greater 

than $10,000. EPA estimated that for the 

rule to have a larger than 1 percent 

impact on the government entity with 

the largest cost impact, the entity would 

need to have revenue of less than $120 

per resident. For the rule to have a 

larger than 1 percent impact on the 

smallest government entity identified in 

the data, the entity would need to have 

revenue of less than $650 per resident. 

Details of these analyses are presented 

in Chapter 8 of the RIA, which is 

available in the docket. 


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D. Unfunded Mandates Reform Act 

(UMRA) 

This action contains a Federal 

mandate under UMRA, 2 U.S.C. 1531– 

1538, that may result in expenditures of 

$100 million or more for State, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 

one year. Accordingly, EPA has 

prepared a written statement required 

under section 202 of UMRA that is 

included in the RIA and briefly 

summarized here. 

Over the 23 years of implementing the 

RMP program and, most recently 

through E.O. 13990 listening sessions, 

meetings, and public hearings, EPA has 

engaged States and local communities to 

discuss chemical safety issues. In the 

two E.O. 13990 listening sessions and 

three proposal hearings, held between 

July 2021 and September 2022, States 

and local communities identified lack of 

facility coordination with local 

responders and the community as a key 

barrier to successful local community 

preparedness. Additionally, EPA has 

held consultations with States and local 

communities through participation in 

the National Association of SARA Title 

III Program Officials (NASTTPO) annual 

meetings to discuss key issues related to 

chemical facility and local community 

coordination and the areas of the RMP 

regulations which need to be 

modernized to facilitate this 

coordination and improve local 

emergency preparedness and 

prevention. Key priority options 

discussed with NASTTPO States and 

local communities included improving 

emergency response coordination 

between RMP facilities and LEPCs/first 

responders. 

This action is not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. On 

April 7, 2022, September 1, 2022, and 

September 5, 2023, EPA met with small 

governments concerning the regulatory 

requirements that might affect them. 

Also, through the May 28, 2021, notice 

of virtual public listening sessions; 

request for public comment (86 FR 

28828) and August 31, 2022, NPRM (87 

FR 53556), EPA sought feedback from 

governmental entities while formulating 

the revisions in this action. 

With regard to section 205 of UMRA, 

the Agency considered finalizing the 

regulatory requirements as proposed as 

well as the regulatory alternatives 

considered in Chapter 7 of the RIA. 

However, none of the alternative 

options successfully fulfilled the 

objectives of the rule, which seek to 

prevent or reduce the impacts of RMP 

accidents on communities near 

facilities. These objectives are 

accomplished by promoting prevention 

generally and through targeted 

enhanced measures at the most 

accident-prone facilities, which 

historically have had a disproportionate 

share of accidents and the costliest 

accidents. Some of these same facilities 

have widely known safer alternatives 

available. The objectives are also 

accomplished by enhancing emergency 

response training and planning through 

better information access and exchange 

among the facility, emergency 

responders, and the community 

potentially exposed to accidents. A 

market failure results when RMP 

accidents impose burdens on nearby 

communities. Firms do not have an 

appropriate level of incentive to prevent 

and/or mitigate these external costs. The 

Agency believes that the rule objectives 

to prevent or reduce the impacts of 

accidents on communities near facilities 

are best achieved by the selected 

provisions for this final rule, 

particularly, implementation of process 

safeguards or IST/ISD to prevent 

accidents and allowing a wider segment 

of the public potentially affected by 

accidents to access emergency 

preparedness information. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action has tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

federally recognized Tribal 

governments, nor preempt tribal law. 

There are approximately 260 RMP 

facilities located on tribal lands. Tribes 

could be impacted by the final rule 

either as an owner or operator of an 

RMP-regulated facility or as a Tribal 

government when the Tribal 

government conducts emergency 

response or emergency preparedness 

activities under EPCRA. 

EPA consulted with Tribal officials 

under the EPA Policy on Consultation 

and Coordination with Indian Tribes 

early in the process of developing this 

regulation to permit them to have 

meaningful and timely input into its 

development. On August 31, 2022, EPA 

sent a notification letter via email to 

Tribal leaders of all 574 federally 

recognized Tribes to inform them of the 

proposed rulemaking and to provide an 

opportunity to comment on the action 

through a Tribal consultation meeting 

on September 21, 2022. Approximately 

4 Tribal attendees participated in the 

meeting. During the consultation 

meeting, EPA presented information on 

the proposed action. A few Tribes 

provided comments during the webinar. 

No Tribes requested government to 

government consultation with EPA 

following the meeting. Additionally, 

EPA had an open docket for public 

comment on the proposal from August 

31–October 31, 2022. The Agency did 

not receive any comments from 

federally recognized Tribes. The 

notification letter and a list of attendees 

at the meeting is provided in the docket 

for this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045 directs Federal 

agencies to include an evaluation of the 

health and safety effects of the planned 

regulation on children in Federal health 

and safety standards and explain why 

the regulation is preferable to 

potentially effective and reasonably 

feasible alternatives. This action is not 

subject to Executive Order 13045 

because the EPA does not believe the 

environmental health risks or safety 

risks addressed by this action present a 

disproportionate risk to children. EPA 

believes that the revisions to the RMP 

regulations made by this final rule will 

further protect human health, including 

the health of children, through 

advancement of process safety. 

However, EPA’s Policy on Children’s 

Health applies to this action. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This action is not anticipated to have 

notable impacts on emissions, costs, or 

energy supply decisions for the affected 

electric utility industry. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 


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J. Executive Order 14096: Revitalizing 

Our Nation’s Commitment to 

Environmental Justice for All Executive 

Order 12898: Federal Actions To 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

EPA believes that the human health or 

environmental conditions that exist 

prior to this action result in or have the 

potential to result in disproportionate 

and adverse human health or 

environmental effects on communities 

with environmental justice concerns. 

EPA conducted an EJ analysis using 

the Agency’s EJ screening tool, 

EJSCREEN and the U.S. Census Bureau’s 

American Community Survey (ACS). 

The EJ analysis shows that historically 

underserved and overburdened 

populations live within proximity to 

RMP-regulated facilities and thus are at 

greater risk than other populations. The 

analysis also found evidence that 

regulated facilities are 

disproportionately located within 

historically underserved and 

overburdened communities. Thus, EPA 

recognizes that accidental releases of 

regulated chemicals from facilities 

regulated by this action will likely pose 

disproportionate risks to historically 

marginalized communities. However, 

EPA has concluded that the regulatory 

requirements will advance just 

treatment of those populations by 

reducing the disproportionate damages 

from accidental releases that RMPregulated facilities might otherwise 

inflict on those populations. EPA’s full 

EJ analysis is documented in 

‘‘Regulatory Impact Analysis: Safer 

Communities by Chemical Accident 

Prevention Final Rule,’’ which is 

available in the docket. 

EPA believes that this action is likely 

to reduce existing disproportionate and 

adverse effects on communities with EJ 

concerns. Because populations living 

closer to facilities are more likely to be 

exposed if an accidental release at an 

RMP facility occurs, these releases pose 

a greater risk to these communities. 

Therefore, the benefits of this regulation 

will include reduced risk for historically 

underserved and overburdened 

populations. 

EPA additionally identified and 

addressed EJ concerns by holding 

virtual public listening sessions on June 

16 and July 8, 2021, and had an open 

docket for public comment (86 FR 

28828). In the request for public 

comment, the Agency asked for 

information on the adequacy of 

revisions to the RMP regulations 

completed since 2017, incorporating 

consideration of climate change risks 

and impacts into the regulations, and 

expanding the application of EJ in the 

RMP. Following publication of the 

proposed rule, EPA held three public 

hearings (September 26, 27, and 28, 

2022) and had a 60-day open public 

comment period. Participants in the 

virtual public listening sessions and 

hearings included a wide range of 

stakeholders including environmental 

and community groups, individual 

regulated facilities, industry groups, 

local and State governments, Federal 

agencies, and private citizens. 

Information collected through oral 

testimonies and written comments from 

the listening sessions and hearings 

respectively informed the proposed and 

final rule. 

The information supporting this E.O. 

review is contained in Chapter 9 of the 

RIA, which is available in the docket for 

this action. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action meets the criteria set 

forth in defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 68 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Chemicals, 

Hazardous substances, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I, part 68, of 

the Code of Federal Regulations is 

amended as follows: 

PART 68—CHEMICAL ACCIDENT 

PREVENTION PROVISIONS 

■ 1. The authority citation for part 68 

continues to read as follows: 

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

7661–7661f. 

Subpart A—General 

■ 2. Amend § 68.3 by: 

■ a. Adding in alphabetical order the 

definitions for ‘‘Active measures,’’ 

‘‘Inherently safer technology or design,’’ 

‘‘Natural hazard,’’ ‘‘Passive measures,’’ 

‘‘Practicability,’’ and ‘‘Procedural 

measures’’; 

■ b. Revising the definition of ‘‘Retail 

facility’’; and 

■ c. Adding in alphabetical order the 

definitions for ‘‘Root cause’’ and ‘‘Thirdparty audit’’. 

The additions and revisions read as 

follows: 

§ 68.3 Definitions. 

* * * * * 

Active measures mean risk 

management measures or engineering 

controls that rely on mechanical or 

other energy input to detect and 

respond to process deviations. Examples 

of active measures include alarms, 

safety instrumented systems, and 

detection hardware (such as 

hydrocarbon sensors). 

* * * * * 

Inherently safer technology or design 

means risk management measures that 

minimize the use of regulated 

substances, substitute less hazardous 

substances, moderate the use of 

regulated substances, or simplify 

covered processes in order to make 

accidental releases less likely, or the 

impacts of such releases less severe. 

* * * * * 

Natural hazard means meteorological, 

climatological, environmental or 

geological phenomena that have the 

potential for negative impact, 

accounting for impacts due to climate 

change. Examples of such hazards 

include, but are not limited to, 

avalanche, coastal flooding, cold wave, 

drought, earthquake, hail, heat wave, 

hurricane, ice storm, landslide, 

lightning, riverine flooding, strong 

wind, tornado, tsunami, volcanic 

activity, wildfire, and winter weather. 

* * * * * 

Passive measures mean risk 

management measures that use design 

features that reduce either the frequency 

or consequence of the hazard without 

human, mechanical, or other energy 

input. Examples of passive measures 

include pressure vessel designs, dikes, 

berms, and blast walls. 

* * * * * 

Practicability means the capability of 

being successfully accomplished within 

a reasonable time, accounting for 

environmental, legal, social, 

technological, and economic factors. 

Environmental factors would include 

consideration of potential transferred 

risks for new risk reduction measures. 

Procedural measures mean risk 

management measures such as policies, 

operating procedures, training, 

administrative controls, and emergency 

response actions to prevent or minimize 

incidents. 

* * * * * 

Retail facility means a stationary 

source at which more than one-half of 

the annual income (in the previous 

calendar or fiscal year) is obtained from 

direct sales to end users or at which 


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more than one-half of the fuel sold, by 

volume, is sold through a cylinder 

exchange program. 

* * * * * 

Root cause means a fundamental, 

underlying, system-related reason why 

an incident occurred that identifies a 

correctable failure(s) in management 

systems, and if applicable, in process 

design. 

* * * * * 

Third-party audit means a compliance 

audit conducted pursuant to the 

requirements of § 68.59 and/or § 68.80, 

performed or led by an entity 

(individual or firm) meeting the 

competency and independence 

requirements described in § 68.59(c) or 

§ 68.80(c). 

* * * * * 

■ 3. Amend § 68.10 by: 

■ a. Revising paragraph (a) introductory 

text; 

■ b. Redesignating paragraphs (g) 

through (k) as paragraphs (j) through (n); 

■ c. Adding new paragraphs (g) through 

(i); and 

■ d. In newly redesignated paragraphs 

(j) through (l), removing the paragraph 

heading. 

The revisions and additions read as 

follows: 

§ 68.10 Applicability. 

(a) Except as provided in paragraphs 

(b) through (i) of this section, an owner 

or operator of a stationary source that 

has more than a threshold quantity of a 

regulated substance in a process, as 

determined under § 68.115, shall 

comply with the requirements of this 

part no later than the latest of the 

following dates: 

* * * * * 

(g) By May 10, 2027, the owner or 

operator shall comply with the 

following provisions promulgated on 

May 10, 2024: 

(1) Standby or backup power for 

continuous operation of monitoring 

equipment associated with prevention 

and detection of accidental releases 

from covered processes in §§ 68.50(a)(3) 

and 68.67(c)(3); 

(2) Third-party audit provisions in 

§§ 68.58(f) through (h), 68.59, 68.79(f) 

through (h), and 68.80; 

(3) Incident investigation root cause 

analysis provisions in §§ 68.60(h) and 

68.81(h); 

(4) Safer technology and alternatives 

analysis provisions in § 68.67(c)(9) and 

(h); 

(5) Employee participation provisions 

in §§ 68.62 and 68.83; 

(6) Emergency response provisions in 

§§ 68.90(b) and 68.95(a); and 

(7) Availability of information 

provisions in § 68.210(d) through (h). 

(h) By March 15, 2027, or within 10 

years of the date of an emergency 

response field exercise conducted 

between March 15, 2017, and August 

31, 2022, in accordance with 

§ 68.96(b)(1)(ii). 

(i) By May 10, 2028, the owner or 

operator shall comply with the risk 

management plan provisions of subpart 

G of this part promulgated on May 10, 

2024. 

* * * * * 

Subpart C—Program 2 Prevention 

Program 

■ 4. Amend § 68.48 by revising 

paragraph (b) to read as follows: 

§ 68.48 Safety information. 

* * * * * 

(b) The owner or operator shall ensure 

and document that the process is 

designed in compliance with recognized 

and generally accepted good 

engineering practices. 

* * * * * 

■ 5. Amend § 68.50 by: 

■ a. Revising paragraph (a)(3); 

■ b. Removing the period at the end of 

paragraph (a)(4) and adding a semicolon 

in its place; and 

■ c. Adding paragraphs (a)(5) and (6). 

The revision and addition read as 

follows: 

§ 68.50 Hazard review. 

(a) * * * 

(3) The safeguards used or needed to 

control the hazards or prevent 

equipment malfunction or human error 

including standby or emergency power 

systems; the owner or operator shall 

ensure monitoring equipment associated 

with prevention and detection of 

accidental releases from covered 

processes has standby or backup power 

to provide continuous operation; 

* * * * * 

(5) Natural hazards that could cause 

or exacerbate an accidental release; and 

(6) Stationary source siting, including 

the placement of processes, equipment, 

and buildings within the facility, and 

hazards posed by proximate stationary 

sources, and accidental release 

consequences posed by proximity to the 

public and public receptors. 

* * * * * 

■ 6. Amend § 68.52 by: 

■ a. Removing the word ‘‘and’’ at the 

end of paragraph (b)(7); 

■ b. Removing the period at the end of 

paragraph (b)(8) and adding ‘‘; and’’ in 

its place; and 

■ c. Adding paragraph (b)(9). 

The addition reads as follows: 

§ 68.52 Operating procedures. 

* * * * * 

(b) * * * 

(9) Documentation when monitoring 

equipment associated with prevention 

and detection of accidental releases 

from covered processes is removed due 

to safety concerns from imminent 

natural hazards. 

* * * * * 

■ 7. Amend § 68.58 by revising 

paragraph (a) and adding paragraphs (f) 

through (h) to read as follows: 

§ 68.58 Compliance audits. 

(a) The owner or operator shall certify 

that they have evaluated compliance 

with the provisions of this subpart, at 

least every three years to verify that the 

procedures and practices developed 

under this subpart are adequate and are 

being followed. When required as set 

forth in paragraph (f) of this section, the 

compliance audit shall be a third-party 

audit. 

* * * * * 

(f) The next required compliance 

audit shall be a third-party audit when 

one or more of the following conditions 

applies: 

(1) An accidental release meeting the 

criteria in § 68.42(a) from a covered 

process at a stationary source has 

occurred; or 

(2) An implementing agency requires 

a third-party audit due to conditions at 

the stationary source that could lead to 

an accidental release of a regulated 

substance, or when a previous thirdparty audit failed to meet the 

competency or independence criteria of 

§ 68.59(c). 

(g)(1) If an implementing agency 

makes a preliminary determination that 

a third-party audit is necessary pursuant 

to paragraph (f)(2) of this section, the 

implementing agency will provide 

written notice to the owner or operator 

that describes the basis for this 

determination. 

(2) Within 30 days of receipt of such 

written notice, the owner or operator 

may provide information and data to, 

and may consult with, the 

implementing agency on the 

determination. Thereafter, the 

implementing agency will provide a 

final determination to the owner or 

operator. 

(3) If the final determination requires 

a third-party audit, the owner or 

operator shall comply with the 

requirements of § 68.59, pursuant to the 

schedule in paragraph (h) of this 

section. 

(4) The owner or operator may appeal 

a final determination made by an 

implementing agency under paragraph 


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(g)(3) of this section within 30 days of 

receipt of the final determination. The 

appeal shall be made to the EPA 

Regional Administrator or, for 

determinations made by other 

implementing agencies, the 

administrator or director of such 

implementing agency. The appeal shall 

contain a clear and concise statement of 

the issues, facts in the case, and any 

relevant additional information. In 

reviewing the appeal, the implementing 

agency may request additional 

information from the owner or operator. 

The implementing agency will provide 

a written, final decision on the appeal 

to the owner or operator. 

(h) The audit and audit report shall be 

completed as in paragraph (a) of this 

section, unless a different timeframe is 

specified by the implementing agency. 

■ 8. Section 68.59 is added to subpart C 

to read as follows: 

§ 68.59 Third-party audits. 

(a) Applicability. The owner or 

operator shall engage a third party to 

conduct an audit that evaluates 

compliance with the provisions of this 

subpart in accordance with the 

requirements of this section when any 

criterion of § 68.58(f) is met. 

(b) Third-party auditors and auditing 

teams. The owner or operator shall 

either: 

(1) Engage a third-party auditor 

meeting all of the competency and 

independence criteria in paragraph (c) 

of this section; or 

(2) Assemble an auditing team, led by 

a third-party auditor meeting all of the 

competency and independence criteria 

in paragraph (c) of this section. The 

team may include: 

(i) Other employees of the third-party 

auditor firm meeting the independence 

criteria of paragraph (c)(2) of this 

section; and 

(ii) Other personnel not employed by 

the third-party auditor firm, including 

facility personnel. 

(c) Third-party auditor qualifications. 

The owner or operator shall determine 

and document that the third-party 

auditor(s) meet the following 

competency and independence 

requirements: 

(1) The third-party auditor(s) shall be: 

(i) Knowledgeable with the 

requirements of this part; 

(ii) Experienced with the stationary 

source type and processes being audited 

and applicable recognized and generally 

accepted good engineering practices; 

and 

(iii) Trained and/or certified in proper 

auditing techniques. 

(2) The third-party auditor(s) shall: 

(i) Act impartially when performing 

all activities under this section; 

(ii) Receive no financial benefit from 

the outcome of the audit, apart from 

payment for auditing services. For 

purposes of this paragraph (c)(2)(ii), 

retired employees who otherwise satisfy 

the third-party auditor independence 

criteria in this section may qualify as 

independent if their sole continuing 

financial attachments to the owner or 

operator are employer-financed or 

managed retirement and/or health 

plans; 

(iii) Ensure that all third-party 

personnel involved in the audit sign and 

date a conflict of interest statement 

documenting that they meet the 

independence criteria of this paragraph 

(c)(2); and 

(iv) Ensure that all third-party 

personnel involved in the audit do not 

accept future employment with the 

owner or operator of the stationary 

source for a period of at least two years 

following submission of the final audit 

report. For purposes of the requirement 

in this paragraph (c)(2)(iv), employment 

does not include performing or 

participating in third-party audits 

pursuant to § 68.80 or this section. 

(3) The auditor shall have written 

policies and procedures to ensure that 

all personnel comply with the 

competency and independence 

requirements of this section. 

(d) Third-party auditor 

responsibilities. The owner or operator 

shall ensure that the third-party auditor: 

(1) Manages the audit and participates 

in audit initiation, design, 

implementation, and reporting; 

(2) Determines appropriate roles and 

responsibilities for the audit team 

members based on the qualifications of 

each team member; 

(3) Prepares the audit report and, 

where there is a team, documents the 

full audit team’s views in the final audit 

report; 

(4) Certifies the final audit report and 

its contents as meeting the requirements 

of this section; and 

(5) Provides a copy of the audit report 

to the owner or operator. 

(e) Audit report. The audit report 

shall: 

(1) Identify all persons participating 

on the audit team, including names, 

titles, employers and/or affiliations, and 

summaries of qualifications. For thirdparty auditors, include information 

demonstrating that the competency 

requirements in paragraph (c)(1) of this 

section are met; 

(2) Describe or incorporate by 

reference the policies and procedures 

required under paragraph (c)(3) of this 

section; 

(3) Document the auditor’s evaluation 

of the owner or operator’s compliance 

with the provisions of this subpart to 

determine whether the procedures and 

practices developed by the owner or 

operator under this subpart are adequate 

and being followed; 

(4) Document the findings of the 

audit, including any identified 

compliance or performance deficiencies; 

(5) Summarize any significant 

revisions (if any) between draft and final 

versions of the report; and 

(6) Include the following certification, 

signed and dated by the third-party 

auditor or third-party audit team 

member leading the audit: 

I certify that this RMP compliance audit 

report was prepared under my direction or 

supervision in accordance with a system 

designed to assure that qualified personnel 

properly gather and evaluate the information 

upon which the audit is based. I further 

certify that the audit was conducted and this 

report was prepared pursuant to the 

requirements of subpart C of 40 CFR part 68 

and all other applicable auditing, 

competency, independence, impartiality, and 

conflict of interest standards and protocols. 

Based on my personal knowledge and 

experience, and inquiry of personnel 

involved in the audit, the information 

submitted herein is true, accurate, and 

complete. 

(f) Third-party audit findings—(1) 

Findings response report. As soon as 

possible, but no later than 90 days after 

receiving the final audit report, the 

owner or operator shall determine an 

appropriate response to each of the 

findings in the audit report, and develop 

a findings response report that includes: 

(i) A copy of the final audit report; 

(ii) An appropriate response to each of 

the audit report findings; 

(iii) A schedule for promptly 

addressing deficiencies; and 

(iv) A certification, signed and dated 

by a senior corporate officer, or an 

official in an equivalent position, of the 

owner or operator of the stationary 

source, stating: 

I certify under penalty of law that I have 

engaged a third party to perform or lead an 

audit team to conduct a third-party audit in 

accordance with the requirements of 40 CFR 

68.59 and that the attached RMP compliance 

audit report was received, reviewed, and 

responded to under my direction or 

supervision by qualified personnel. I further 

certify that appropriate responses to the 

findings have been identified and 

deficiencies were corrected, or are being 

corrected, consistent with the requirements 

of subpart C of 40 CFR part 68, as 

documented herein. Based on my personal 

knowledge and experience, or inquiry of 

personnel involved in evaluating the report 

findings and determining appropriate 

responses to the findings, the information 

submitted herein is true, accurate, and 


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complete. I am aware that there are 

significant penalties for making false material 

statements, representations, or certifications, 

including the possibility of fines and 

imprisonment for knowing violations. 

(2) Schedule implementation. The 

owner or operator shall implement the 

schedule to address deficiencies 

identified in the audit findings response 

report in paragraph (f)(1)(iii) of this 

section and document the action taken 

to address each deficiency, along with 

the date completed. 

(3) Submission to Board of Directors. 

The owner or operator shall 

immediately provide a copy of each 

document required under paragraphs 

(f)(1) and (2) of this section, when 

completed, to the owner or operator’s 

audit committee of the Board of 

Directors, or other comparable 

committee or individual, if applicable. 

(g) Recordkeeping. The owner or 

operator shall retain at the stationary 

source, the two most recent final thirdparty audit reports, related findings 

response reports, documentation of 

actions taken to address deficiencies, 

and related records. The requirement in 

this paragraph (g) does not apply to any 

document that is more than five years 

old. 

■ 9. Amend § 68.60 by adding paragraph 

(h) to read as follows: 

§ 68.60 Incident investigation. 

* * * * * 

(h) The owner or operator shall ensure 

the following are addressed when the 

incident in paragraph (a) of this section 

meets the accident history reporting 

requirements under § 68.42: 

(1) The report shall be completed 

within 12 months of the incident, unless 

the implementing agency approves, in 

writing, to an extension of time; and 

(2) The report in paragraph (d) of this 

section shall include factors that 

contributed to the incident including 

the initiating event, direct and indirect 

contributing factors, and root causes. 

Root causes shall be determined by 

conducting an analysis for each incident 

using a recognized method. 

■ 10. Section 68.62 is added to subpart 

C to read as follows: 

§ 68.62 Employee participation. 

(a) The owner or operator shall 

develop a written plan of action 

regarding the implementation of the 

employee participation requirements 

required by this section. 

(1) An annual written or electronic 

notice shall be distributed to employees 

and their representatives indicating that 

the plan is readily available to view, and 

how to access the information. 

(2) Training shall be provided as often 

as necessary to ensure employees and 

their representatives, and management 

involved in the process, are informed of 

the details of the plan. 

(b)(1) The owner or operator shall 

develop and implement a process to 

allow employees and their 

representatives to report to either or 

both the owner or operator and EPA 

unaddressed hazards that could lead to 

a catastrophic release, accidents covered 

by § 68.42(a) but not reported under 

§ 68.195(a), and any other 

noncompliance with this part. 

(2) The employee and their 

representatives may choose to report 

either anonymously or with attribution. 

(3) When a report is made to the 

owner or operator, a record of the report 

shall be maintained for three years. 

(c) The owner or operator shall 

provide to employees and their 

representatives access to hazard reviews 

and to all other information required to 

be developed under this subpart. 

Subpart D—Program 3 Prevention 

Program 

■ 11. Amend § 68.65 by revising 

paragraphs (a) and (d)(2) to read as 

follows: 

§ 68.65 Process safety information. 

(a) The owner or operator shall 

complete a compilation of written 

process safety information before 

conducting any process hazard analysis 

required by this part and shall keep 

process safety information up to date. 

The compilation of written process 

safety information is to enable the 

owner or operator and the employees 

involved in operating the process to 

identify and understand the hazards 

posed by those processes involving 

regulated substances. This process 

safety information shall include 

information pertaining to the hazards of 

the regulated substances used or 

produced by the process, information 

pertaining to the technology of the 

process, and information pertaining to 

the equipment in the process. 

* * * * * 

(d) * * * 

(2) The owner or operator shall ensure 

and document that the process is 

designed and maintained in compliance 

with recognized and generally accepted 

good engineering practices. 

* * * * * 

■ 12. Amend § 68.67 by: 

■ a. Revising paragraphs (c)(3) and (5); 

■ b. Removing the word ‘‘and’’ at the 

end of paragraph (c)(6); 

■ c. Removing the period at the end of 

paragraph (c)(7) and adding a semicolon 

in its place; and 

■ d. Adding paragraphs (c)(8) through 

(10) and (h). 

The revisions and additions read as 

follows: 

§ 68.67 Process hazard analysis. 

* * * * * 

(c) * * * 

(3) Engineering and administrative 

controls applicable to the hazards and 

their interrelationships such as 

appropriate application of detection 

methodologies to provide early warning 

of releases and standby or emergency 

power systems. (Acceptable detection 

methods might include process 

monitoring and control instrumentation 

with alarms, and detection hardware 

such as hydrocarbon sensors.) The 

owner or operator shall ensure 

monitoring equipment associated with 

prevention and detection of accidental 

releases from covered processes has 

standby or backup power to provide 

continuous operation; 

* * * * * 

(5) Stationary source siting, including 

the placement of processes, equipment, 

and buildings within the facility, and 

hazards posed by proximate stationary 

sources, and accidental release 

consequences posed by proximity to the 

public and public receptors; 

* * * * * 

(8) Natural hazards that could cause 

or exacerbate an accidental release; 

(9) Safer technology and alternative 

risk management measures applicable to 

eliminating or reducing risk from 

process hazards for the following 

covered processes and shall meet all of 

the following requirements: 

(i) For covered processes in NAICS 

codes 324 and 325, the owner or 

operator shall consider and document, 

in the following order of preference, 

inherently safer technology or design, 

passive measures, active measures, and 

procedural measures. A combination of 

risk management measures may be used 

to achieve the desired risk reduction. 

(ii) For covered processes in 

paragraphs (c)(9)(ii)(A) through (C) of 

this section, the owner or operator shall 

consider and document, in the 

following order of preference, 

inherently safer technology or design, 

passive measures, active measures, and 

procedural measures. A combination of 

risk management measures may be used 

to achieve the desired risk reduction. 

The owner or operator shall also 

determine and document the 

practicability of the inherently safer 

technologies and designs considered. 


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The owner or operator shall include in 

documentation any methods used to 

determine practicability. For any 

inherently safer technologies and 

designs implemented, the owner or 

operator shall document and submit to 

EPA a description of the technology 

implemented. 

(A) In NAICS codes 324 and 325, 

located within 1 mile of another 

stationary source having a covered 

process in NAICS code 324 or 325; 

(B) In NAICS code 324 with 

hydrofluoric acid alkylation covered 

processes; and 

(C) In NAICS codes 324 and 325 that 

have had one accident that meets the 

accident history reporting requirements 

under § 68.42 since the most recent 

process hazard analysis under this 

section. 

(iii) The analysis shall be performed 

by a team that includes members with 

expertise in the process being evaluated, 

including at least one member who 

works in the process. The team 

members shall be documented; and 

(10) Any gaps in safety between the 

codes, standards, or practices to which 

the process was designed and 

constructed and the most current 

version of applicable codes, standards, 

or practices. 

* * * * * 

(h)(1) Of the covered processes listed 

under paragraphs (h)(1)(i) through (iii) 

of this section, the owner or operator 

shall implement at least one passive 

measure at the stationary source, or an 

inherently safer technology or design, or 

a combination of active and procedural 

measures equivalent to or greater than 

the risk reduction of a passive measure, 

resulting from paragraph (c)(9)(i) of this 

section: 

(i) In NAICS codes 324 and 325, 

located within 1 mile of another 

stationary source having a covered 

process in NAICS code 324 or 325; 

(ii) In NAICS code 324 with 

hydrofluoric acid alkylation covered 

processes; and 

(iii) In NAICS codes 324 and 325 that 

have had one accident that meets the 

accident history reporting requirements 

under § 68.42 since the most recent 

process hazard analysis under this 

section. 

(2) If no passive measures are 

identified or all are not practicable, and 

no inherently safer technology or design 

is implemented, then the owner or 

operator shall implement at least one 

active measure. If no active measures 

are identified or all are not practicable, 

the owner or operator shall implement 

at least one procedural measure. 

(3) For passive and active measures 

not implemented, the owner or operator 

shall document sufficient evidence to 

demonstrate to the implementing 

agency’s satisfaction that implementing 

the measures is not practicable and the 

reasons for this conclusion. A claim that 

implementation is not practicable shall 

not be based solely on evidence of 

reduced profits or increased costs. 

■ 13. Amend § 68.69 by revising 

paragraph (a)(4) to read as follows: 

§ 68.69 Operating procedures. 

(a) * * * 

(4) Safety systems and their functions, 

including documentation when 

monitoring equipment associated with 

prevention and detection of accidental 

releases from covered processes is 

removed due to safety concerns from 

imminent natural hazards. 

* * * * * 

■ 14. Amend § 68.79 by revising 

paragraph (a) and adding paragraphs (f) 

through (h) to read as follows: 

§ 68.79 Compliance audits. 

(a) The owner or operator shall certify 

that they have evaluated compliance 

with the provisions of this subpart, at 

least every three years to verify that the 

procedures and practices developed 

under this subpart are adequate and are 

being followed. When required as set 

forth in paragraph (f) of this section, the 

compliance audit shall be a third-party 

audit. 

* * * * * 

(f) The next required compliance 

audit shall be a third-party audit when 

one or more of the following conditions 

applies: 

(1) An accidental release meeting the 

criteria in § 68.42(a) from a covered 

process at a stationary source has 

occurred; or 

(2) An implementing agency requires 

a third-party audit due to conditions at 

the stationary source that could lead to 

an accidental release of a regulated 

substance, or when a previous thirdparty audit failed to meet the 

competency or independence criteria of 

§ 68.80(c). 

(g)(1) If an implementing agency 

makes a preliminary determination that 

a third-party audit is necessary pursuant 

to paragraph (f)(2) of this section, the 

implementing agency will provide 

written notice to the owner or operator 

that describes the basis for this 

determination. 

(2) Within 30 days of receipt of such 

written notice, the owner or operator 

may provide information and data to, 

and may consult with, the 

implementing agency on the 

determination. Thereafter, the 

implementing agency will provide a 

final determination to the owner or 

operator. 

(3) If the final determination requires 

a third-party audit, the owner or 

operator shall comply with the 

requirements of § 68.80, pursuant to the 

schedule in paragraph (h) of this 

section. 

(4) The owner or operator may appeal 

a final determination made by an 

implementing agency under paragraph 

(g)(3) of this section within 30 days of 

receipt of the final determination. The 

appeal shall be made to the EPA 

Regional Administrator or, for 

determinations made by other 

implementing agencies, the 

administrator or director of such 

implementing agency. The appeal shall 

contain a clear and concise statement of 

the issues, facts in the case, and any 

relevant additional information. In 

reviewing the appeal, the implementing 

agency may request additional 

information from the owner or operator. 

The implementing agency will provide 

a written, final decision on the appeal 

to the owner or operator. 

(h) The audit and audit report shall be 

completed as in paragraph (a) of this 

section, unless a different timeframe is 

specified by the implementing agency. 

■ 15. Section 68.80 is added to subpart 

D to read as follows: 

§ 68.80 Third-party audits. 

(a) Applicability. The owner or 

operator shall engage a third party to 

conduct an audit that evaluates 

compliance with the provisions of this 

subpart in accordance with the 

requirements of this section when any 

criterion of § 68.79(f) is met. 

(b) Third-party auditors and auditing 

teams. The owner or operator shall 

either: 

(1) Engage a third-party auditor 

meeting all of the competency and 

independence criteria in paragraph (c) 

of this section; or 

(2) Assemble an auditing team, led by 

a third-party auditor meeting all of the 

competency and independence criteria 

in paragraph (c) of this section. The 

team may include: 

(i) Other employees of the third-party 

auditor firm meeting the independence 

criteria of paragraph (c)(2) of this 

section; and 

(ii) Other personnel not employed by 

the third-party auditor firm, including 

facility personnel. 

(c) Third-party auditor qualifications. 

The owner or operator shall determine 

and document that the third-party 

auditor(s) meet the following 

competency and independence 

requirements: 

(1) The third-party auditor(s) shall be: 


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17690 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

(i) Knowledgeable with the 

requirements of this part; 

(ii) Experienced with the stationary 

source type and processes being audited 

and applicable recognized and generally 

accepted good engineering practices; 

and 

(iii) Trained and/or certified in proper 

auditing techniques. 

(2) The third-party auditor(s) shall: 

(i) Act impartially when performing 

all activities under this section; 

(ii) Receive no financial benefit from 

the outcome of the audit, apart from 

payment for auditing services. For 

purposes of this paragraph (c)(2)(ii), 

retired employees who otherwise satisfy 

the third-party auditor independence 

criteria in this section may qualify as 

independent if their sole continuing 

financial attachments to the owner or 

operator are employer-financed or 

managed retirement and/or health 

plans; 

(iii) Ensure that all third-party 

personnel involved in the audit sign and 

date a conflict of interest statement 

documenting that they meet the 

independence criteria of this paragraph 

(c)(2); and 

(iv) Ensure that all third-party 

personnel involved in the audit do not 

accept future employment with the 

owner or operator of the stationary 

source for a period of at least two years 

following submission of the final audit 

report. For purposes of the requirement 

in this paragraph (c)(2)(iv), employment 

does not include performing or 

participating in third-party audits 

pursuant to § 68.59 or this section. 

(3) The auditor shall have written 

policies and procedures to ensure that 

all personnel comply with the 

competency and independence 

requirements of this section. 

(d) Third-party auditor 

responsibilities. The owner or operator 

shall ensure that the third-party auditor: 

(1) Manages the audit and participates 

in audit initiation, design, 

implementation, and reporting; 

(2) Determines appropriate roles and 

responsibilities for the audit team 

members based on the qualifications of 

each team member; 

(3) Prepares the audit report and, 

where there is a team, documents the 

full audit team’s views in the final audit 

report; 

(4) Certifies the final audit report and 

its contents as meeting the requirements 

of this section; and 

(5) Provides a copy of the audit report 

to the owner or operator. 

(e) Audit report. The audit report 

shall: 

(1) Identify all persons participating 

on the audit team, including names, 

titles, employers and/or affiliations, and 

summaries of qualifications. For thirdparty auditors, include information 

demonstrating that the competency 

requirements in paragraph (c)(1) of this 

section are met; 

(2) Describe or incorporate by 

reference the policies and procedures 

required under paragraph (c)(3) of this 

section; 

(3) Document the auditor’s evaluation 

of the owner or operator’s compliance 

with the provisions of this subpart to 

determine whether the procedures and 

practices developed by the owner or 

operator under this part are adequate 

and being followed; 

(4) Document the findings of the 

audit, including any identified 

compliance or performance deficiencies; 

(5) Summarize any significant 

revisions (if any) between draft and final 

versions of the report; and 

(6) Include the following certification, 

signed and dated by the third-party 

auditor or third-party audit team 

member leading the audit: 

I certify that this RMP compliance audit 

report was prepared under my direction or 

supervision in accordance with a system 

designed to assure that qualified personnel 

properly gather and evaluate the information 

upon which the audit is based. I further 

certify that the audit was conducted and this 

report was prepared pursuant to the 

requirements of subpart D of 40 CFR part 68 

and all other applicable auditing, 

competency, independence, impartiality, and 

conflict of interest standards and protocols. 

Based on my personal knowledge and 

experience, and inquiry of personnel 

involved in the audit, the information 

submitted herein is true, accurate, and 

complete. 

(f) Third-party audit findings—(1) 

Findings response report. As soon as 

possible, but no later than 90 days after 

receiving the final audit report, the 

owner or operator shall determine an 

appropriate response to each of the 

findings in the audit report, and develop 

a findings response report that includes: 

(i) A copy of the final audit report; 

(ii) An appropriate response to each of 

the audit report findings; 

(iii) A schedule for promptly 

addressing deficiencies; and 

(iv) A certification, signed and dated 

by a senior corporate officer, or an 

official in an equivalent position, of the 

owner or operator of the stationary 

source, stating: 

I certify under penalty of law that I have 

engaged a third party to perform or lead an 

audit team to conduct a third-party audit in 

accordance with the requirements of 40 CFR 

68.80 and that the attached RMP compliance 

audit report was received, reviewed, and 

responded to under my direction or 

supervision by qualified personnel. I further 

certify that appropriate responses to the 

findings have been identified and 

deficiencies were corrected, or are being 

corrected, consistent with the requirements 

of subpart D of 40 CFR part 68, as 

documented herein. Based on my personal 

knowledge and experience, or inquiry of 

personnel involved in evaluating the report 

findings and determining appropriate 

responses to the findings, the information 

submitted herein is true, accurate, and 

complete. I am aware that there are 

significant penalties for making false material 

statements, representations, or certifications, 

including the possibility of fines and 

imprisonment for knowing violations. 

(2) Schedule implementation. The 

owner or operator shall implement the 

schedule to address deficiencies 

identified in the audit findings response 

report in paragraph (f)(1)(iii) of this 

section and document the action taken 

to address each deficiency, along with 

the date completed. 

(3) Submission to Board of Directors. 

The owner or operator shall 

immediately provide a copy of each 

document required under paragraphs 

(f)(1) and (2) of this section, when 

completed, to the owner or operator’s 

audit committee of the Board of 

Directors, or other comparable 

committee or individual, if applicable. 

(g) Recordkeeping. The owner or 

operator shall retain at the stationary 

source the two most recent final thirdparty audit reports, related findings 

response reports, documentation of 

actions taken to address deficiencies, 

and related records. 

■ 16. Amend § 68.81 by adding 

paragraph (h) to read as follows: 

§ 68.81 Incident investigation. 

* * * * * 

(h) The owner or operator shall ensure 

the following are addressed when the 

incident in paragraph (a) of this section 

meets the accident history reporting 

requirements under § 68.42: 

(1) The report shall be completed 

within 12 months of the incident, unless 

the implementing agency approves, in 

writing, an extension of time; and 

(2) The report in paragraph (d) of this 

section shall include factors that 

contributed to the incident including 

the initiating event, direct and indirect 

contributing factors, and root causes. 

Root causes shall be determined by 

conducting an analysis for each incident 

using a recognized method. 

■ 17. Revise § 68.83 to read as follows: 

§ 68.83 Employee participation. 

(a) The owner or operator shall 

develop a written plan of action 

regarding the implementation of the 

employee participation requirements 

required by this section. 


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(1) An annual written or electronic 

notice shall be distributed to employees 

and their representatives indicating that 

the plan is readily available to view and 

how to access the information. 

(2) Training shall be provided as often 

as necessary to ensure employees and 

their representatives, and management 

involved in the process, are informed of 

the details of the plan. 

(b) The owner or operator shall 

consult with employees and their 

representatives on the conduct and 

development of process hazards 

analyses and on the development of the 

other elements of process safety 

management in this part. 

(c) The owner or operator shall 

consult with employees knowledgeable 

in the process and their representatives 

on addressing, correcting, resolving, 

documenting, and implementing 

recommendations and findings of 

process hazard analyses under 

§ 68.67(e), compliance audits under 

§ 68.79(d), and incident investigations 

under § 68.81(e). 

(d) The owner or operator shall 

provide the following authorities to 

employees knowledgeable in the 

process and their representatives: 

(1) Recommend to the operator in 

charge of a unit that an operation or 

process be partially or completely shut 

down, in accordance with procedures 

established in § 68.69(a), based on the 

potential for a catastrophic release; and 

(2) Allow a qualified operator in 

charge of a unit to partially or 

completely shut down an operation or 

process, in accordance with procedures 

established in § 68.69(a), based on the 

potential for a catastrophic release. 

(e)(1) The owner or operator shall 

develop and implement a process to 

allow employees and their 

representatives to report to either or 

both the owner or operator and EPA 

unaddressed hazards that could lead to 

a catastrophic release, accidents covered 

by § 68.42(a) but not reported under 

§ 68.195(a), and any other 

noncompliance with this part. 

(2) The employee and their 

representatives may choose to report 

either anonymously or with attribution. 

(3) When a report is made to the 

owner or operator, a record of the report 

shall be maintained for three years. 

(f) The owner or operator shall 

provide to employees and their 

representatives access to process hazard 

analyses and to all other information 

required to be developed under this 

part. 

■ 18. Amend § 68.85 by revising 

paragraph (b) and adding paragraph (c) 

to read as follows: 

§ 68.85 Hot work permit. 

* * * * * 

(b) The permit shall document that 

the fire prevention and protection 

requirements in 29 CFR 1910.252(a) 

have been implemented prior to 

beginning the hot work operations; it 

shall indicate the date(s) authorized for 

hot work; and identify the object on 

which hot work is to be performed. 

(c) The permit shall be retained for 

three years after the completion of the 

hot work operations. 

Subpart E—Emergency Response 

■ 19. Amend § 68.90 by: 

■ a. Revising paragraph (b)(3); 

■ b. Removing the word ‘‘and’’ at the 

end of paragraph (b)(4); 

■ c. Removing the period at the end of 

paragraph (b)(5) and adding ‘‘; and’’ in 

its place; and 

■ d. Adding paragraph (b)(6). 

The revision and addition read as 

follows: 

§ 68.90 Applicability. 

* * * * * 

(b) * * * 

(3) Appropriate mechanisms are in 

place to notify emergency responders 

when there is a need for a response, 

including providing timely data and 

information detailing the current 

understanding and best estimates of the 

nature of the accidental release. The 

owner or operator may satisfy the 

requirement in this paragraph (b)(3) 

through notification mechanisms 

designed to meet other Federal, State, or 

local notification requirements, 

provided the notification meets the 

requirements of this paragraph (b)(3), as 

appropriate; 

* * * * * 

(6) The owner or operator maintains 

and implements, as necessary, 

procedures for informing the public and 

the appropriate Federal, State, and local 

emergency response agencies about 

accidental releases and partnering with 

these response agencies to ensure that a 

community notification system is in 

place to warn the public within the area 

potentially threatened by the accidental 

release. Documentation of the 

partnership shall be maintained in 

accordance with § 68.93(c). 

■ 20. Amend § 68.95 by revising 

paragraphs (a)(1)(i) and (c) to read as 

follows: 

§ 68.95 Emergency response program. 

(a) * * * 

(1) * * * 

(i) Procedures for informing the 

public and the appropriate Federal, 

State, and local emergency response 

agencies about accidental releases, 

including partnering with these 

response agencies to ensure that a 

community notification system is in 

place to warn the public within the area 

potentially threatened by the accidental 

release. Documentation of the 

partnership shall be maintained in 

accordance with § 68.93(c); 

* * * * * 

(c) The emergency response plan 

developed under paragraph (a)(1) of this 

section shall include providing timely 

data and information detailing the 

current understanding and best 

estimates of the nature of the release 

when an accidental release occurs and 

be coordinated with the community 

emergency response plan developed 

under 42 U.S.C. 11003. The owner or 

operator may satisfy the requirement of 

this paragraph (c) through notification 

mechanisms designed to meet other 

Federal, State, or local notification 

requirements, provided the notification 

meets the requirements of this 

paragraph (c), as appropriate. Upon 

request of the LEPC or emergency 

response officials, the owner or operator 

shall promptly provide to the local 

emergency response officials 

information necessary for developing 

and implementing the community 

emergency response plan. 

■ 21. Amend § 68.96 by revising 

paragraphs (b)(1)(i) and (b)(3) to read as 

follows: 

§ 68.96 Emergency response exercises. 

* * * * * 

(b) * * * 

(1) * * * 

(i) Frequency. As part of coordination 

with local emergency response officials 

required by § 68.93, the owner or 

operator shall consult with these 

officials to establish an appropriate 

frequency for field exercises, and shall 

conduct a field exercise before March 

15, 2027, and at a minimum at least 

once every ten years thereafter, unless 

the appropriate local emergency 

response agencies agree in writing that 

such frequency is impractical. If local 

emergency response agencies so agree, 

the owner or operator shall consult with 

local emergency response officials to 

establish an alternate appropriate 

frequency for field exercises. 

* * * * * 

(3) Documentation. The owner or 

operator shall prepare an evaluation 

report within 90 days of each field and 

tabletop exercise. The report shall 

include a description of the exercise 

scenario, names and organizations of 

each participant, an evaluation of the 

exercise results including lessons 


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17692 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Rules and Regulations 

learned, recommendations for 

improvement or revisions to the 

emergency response exercise program 

and emergency response program, and a 

schedule to promptly address and 

resolve recommendations. 

* * * * * 

Subpart G—Risk Management Plan 

■ 22. Amend § 68.160 by: 

■ a. Removing the semicolons at the 

ends of paragraphs (b)(1) through (11) 

and adding periods in their place; 

■ b. Removing ‘‘; and’’ at the end of 

paragraph (b)(12) and adding a period in 

its place; 

■ c. Removing the semicolons at the 

ends of paragraphs (b)(13) through (19) 

and adding periods in their place; and 

■ d. Adding paragraph (b)(22). 

The addition reads as follows: 

§ 68.160 Registration. 

* * * * * 

(b) * * * 

(22) Method of communication and 

location of the notification that 

chemical hazard information is 

available to the public residing, 

working, or spending significant time 

within 6 miles of the stationary source, 

pursuant to § 68.210(d). 

■ 23. Amend § 68.170 by: 

■ a. Removing the word ‘‘and’’ at the 

end of paragraph (e)(5); 

■ b. Removing the period at the end of 

paragraph (e)(6) and adding ‘‘; and’’ in 

its place; 

■ c. Adding paragraph (e)(7); and 

■ d. Revising paragraph (i). 

The addition and revision read as 

follows: 

§ 68.170 Prevention program/Program 2. 

* * * * * 

(e) * * * 

(7) Recommendations declined from 

natural hazard, power loss, and siting 

hazard evaluations and justifications. 

* * * * * 

(i) The date of the most recent 

compliance audit; the expected date of 

completion of any changes resulting 

from the compliance audit and 

identification of whether the most 

recent compliance audit was a thirdparty audit, pursuant to §§ 68.58 and 

68.59; and findings declined from thirdparty compliance audits and 

justifications. 

* * * * * 

■ 24. Amend § 68.175 by: 

■ a. Removing the word ‘‘and’’ at the 

end of paragraph (e)(5); 

■ b. Removing the period at the end of 

paragraph (e)(6) and adding a semicolon 

in its place; 

■ c. Adding paragraphs (e)(7) through 

(9); and 

■ d. Revising paragraph (k). 

The addition and revision read as 

follows: 

§ 68.175 Prevention program/Program 3. 

* * * * * 

(e) * * * 

(7) Inherently safer technology or 

design measures implemented since the 

last PHA, if any, and the technology 

category (substitution, minimization, 

simplification and/or moderation); 

(8) Recommendations declined from 

natural hazard, power loss, and siting 

hazard evaluations and justifications; 

and 

(9) Recommendations declined from 

safety gaps between codes, standards, or 

practices to which the process was 

designed and constructed and the most 

current version of applicable codes, 

standards, or practices. 

* * * * * 

(k) The date of the most recent 

compliance audit; the expected date of 

completion of any changes resulting 

from the compliance audit and 

identification of whether the most 

recent compliance audit was a thirdparty audit, pursuant to §§ 68.79 and 

68.80; and findings declined from thirdparty compliance audits and 

justifications. 

* * * * * 

Subpart H—Other Requirements 

■ 25. Amend § 68.210 by adding 

paragraphs (d) through (h) to read as 

follows: 

§ 68.210 Availability of information to the 

public. 

* * * * * 

(d) Chemical hazard information. The 

owner or operator of a stationary source 

shall provide, upon request by any 

member of the public residing, working, 

or spending significant time within 6 

miles of the fenceline of a stationary 

source, the following chemical hazard 

information for all regulated processes: 

(1) Regulated substances information. 

Names of regulated substances held in 

a process; 

(2) Safety Data Sheets. SDSs for all 

regulated substances located at the 

facility; 

(3) Accident history information. 

Provide the five-year accident history 

information required to be reported 

under § 68.42; 

(4) Emergency response program. The 

following summary information 

concerning the stationary source’s 

compliance with § 68.10(f)(3) and the 

emergency response provisions of 

subpart E of this part as applicable: 

(i) Whether the stationary source is a 

responding stationary source or a nonresponding stationary source; 

(ii) Name and phone number of local 

emergency response organizations with 

which the owner or operator last 

coordinated emergency response efforts, 

pursuant to § 68.180; and 

(iii) For stationary sources subject to 

§ 68.95, procedures for informing the 

public and local emergency response 

agencies about accidental releases; 

(5) Exercises. A list of scheduled 

exercises, excluding dates, required 

under § 68.96 occurring within one year 

from the date of request; 

(6) LEPC contact information. Include 

LEPC name, phone number, and web 

address as available; and 

(7) Declined recommendations and 

justifications. Include declined 

recommendations and justifications 

required under §§ 68.170(e)(7) and 

68.175(e)(7) through (9). 

(e) Languages. The information shall 

be made available in English or in at 

least any two other commonly spoken 

languages by the population potentially 

affected, as requested. 

(f) Notification of availability of 

information. The owner or operator 

shall provide ongoing notification on a 

company website, social media 

platforms, or through other publicly 

accessible means that: 

(1) Information specified in paragraph 

(d) of this section is available to the 

public residing, working, or spending 

significant time within 6 miles of the 

stationary source upon request. The 

notification shall: 

(i) Specify the information elements, 

identified in paragraph (d) of this 

section, that can be requested; and 

(ii) Provide instructions for how to 

request the information including 

verification of presence within 6-miles 

(e.g., email, mailing address, and/or 

telephone or website request); and 

(2) Identify where to access 

information on community 

preparedness, if available, including 

shelter-in-place and evacuation 

procedures. 

(g) Timeframe to provide requested 

information. The owner or operator 

shall provide the requested information 

under paragraph (d) of this section 

within 45 days of receiving a request. 

(h) Recordkeeping. The owner or 

operator shall maintain a record of the 

members of the public requesting 

chemical hazard information for five 

years. 

[FR Doc. 2024–04458 Filed 3–8–24; 8:45 am] 

BILLING CODE 6560–50–P 


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