13526 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 68

[A–91–73; FRL–5168–2]

RIN 2050–AD26

Accidental Release Prevention

Requirements: Risk Management

Programs Under Clean Air Act Section

112(r)(7)

AGENCY: Environmental Protection

Agency.

ACTION: Supplemental notice of

proposed rulemaking.

SUMMARY: On October 20, 1993, EPA

proposed risk management program

regulations, mandated under the

accidental release provisions of the

Clean Air Act (CAA). The purpose of the

proposed rule is to reduce the number

and severity of chemical accidents.

Based on information presented during

public hearings and in comments on the

proposed rule, EPA is requesting

additional comment on the following

regulatory options and issues:

approaches for increasing compliance

flexibility and decreasing cost while

still ensuring preparedness by tiering

the regulatory requirements to take into

consideration differences between

various types, classes, and kinds of

sources, devices, and systems; the

hazard assessment approaches

(including worst-case scenarios);

accident information reporting; public

participation in risk management

program and plan oversight; inherently

safer approaches for sources’ design and

operations; and the implementation of

CAA section 112(r) regulations,

including methods of integrating these

requirements into the title V permitting

requirements and the codification of

approved state section 112(r)

requirements.

DATES: Comments: Comments must be

submitted on or before May 12, 1995.

Hearings: The Agency will hold a

hearing on March 31 from 9 a.m. until

4 p.m.

ADDRESSES: Comments: Written

comments may be mailed or submitted

to: U.S. Environmental Protection

Agency, Attn: Docket (A–91–73), Room

1500, 401 M Street, SW, Washington,

DC 20460. Comments must be submitted

in duplicate. Comments may also be

faxed to the docket at 202–260–4400, as

long as faxes are followed by hard

copies.

Hearings: The hearing will be held at

the EPA Auditorium, 401 M Street, SW,

Washington, DC. People who want to

testify at this hearing should call 703–

934–3158 by March 27.

Docket: Supporting information used

in developing the accidental release

prevention regulations is contained in

Docket No. A–91–73. This docket is

available for public inspection and

copying between 8:00 a.m. and 5:30

p.m., Monday through Friday (except

government holidays) at the address

listed above. A reasonable fee may be

charged for copying.

FOR FURTHER INFORMATION CONTACT: Dr.

Lyse D. Helsing at (202) 260–6128,

Chemical Emergency Preparedness and

Prevention Office (5101), U.S.

Environmental Protection Agency, 401

M Street, SW, Washington, DC 20460, or

the Emergency Planning and

Community Right-to-Know Hotline at 1–

800–535–0202.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background

A. Statutory Authority

B. Relationship of Section 112(r) to Other

Requirements of the Clean Air Act

C. Summary of the Proposed Risk

Management Program Rule

II. Discussion of Issues and Approaches

A. Approaches for Tiering the Regulatory

Requirements

B. Hazard Assessment

C. Accident Information Reporting

D. Public Participation

E. Inherently Safer Approaches

F. Implementation and Integration of

Section 112(r) with State Programs

III. Required Analyses

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Enhancing the Intergovernmental

Partnership

D. Paperwork Reduction Act

I. Introduction and Background

A. Statutory Authority

This supplemental notice of proposed

rulemaking is being issued under

sections 112(r) and 301(a)(1) of the

Clean Air Act (CAA) as amended (42

U.S.C. 7412(r) and 7601(a)(1)).

B. Relationship of Section 112(r) to

Other Requirements of the Clean Air Act

The Clean Air Act Amendments of

1990 amend CAA section 112 and add

a new paragraph (r). The intent of CAA

section 112(r) is to prevent accidental

releases to the air and minimize the

consequences of releases by focusing

preventive measures on chemicals that

pose the greatest risk to the public and

the environment. For a summary of the

statutory requirements of section 112(r)

and related statutory provisions, see the

notice of proposed rulemaking (NPRM)

(58 FR 54190; October 20, 1993).

Since the October 20, 1993, notice,

the Environmental Protection Agency

(EPA) has taken various additional

regulatory actions relevant to the section

112(r) program. EPA promulgated the

List of Regulated Substances and

Thresholds for Accidental Release

Prevention on January 31, 1994 (59 FR

4478). The list of regulated substances

and thresholds will determine which

sources must comply with the accident

prevention regulations.

CAA section 112(l) contains the

statutory authority for EPA to approve

and delegate specific Federal authorities

to states. EPA promulgated a rule under

section 112(l) on November 26, 1993 (58

FR 62262) that addresses the approval of

both state programs for section 112 that

mirror the Federal requirements and

programs that differ from Federal

requirements. Approval of state rules

addressing section 112(r) requirements

is addressed in the section 112(l) rule.

Certain other regulatory actions that

predate the October 20, 1993, NPRM are

relevant to today’s supplemental notice.

Specifically, section 112(r) is addressed

in CAA title V, operating permits, and

the subsequent rulemaking in 40 CFR

part 70 (part 70) published on July 10,

1992 (57 FR 32250). Section 112(r)

listed substances are ‘‘regulated air

pollutants,’’ and the accident prevention

regulations developed under section

112(r)(7) are ‘‘applicable requirements’’

for the purposes of CAA title V and part

70.

C. Summary of the Proposed Risk

Management Program Rule

The proposed rule would require

sources to:

• Register with EPA not later than

three years after publication of the final

rule;

• Develop and implement a risk

management program that includes a

hazard assessment, prevention program,

and emergency response program, and

maintain on-site documentation of the

program’s implementation. The hazard

assessment would include offsite

consequence analyses and a five-year

accident history;

• Develop and submit to Federal,

state, and local authorities a risk

management plan (RMP) that

documents the risk management

program. This plan will be available to

the public; and

• Update the risk management

program and plan as required by rule,

audit, or process or chemical changes at

the source.

The risk management program

addresses the general requirements of

CAA section 112(r)(7)(B) for regulations

to provide for accidental release

detection and prevention. The risk

management plan, referred to as the
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13527

RMP in this notice, addresses the

specific requirements of CAA section

112(r)(7)(B) for a plan that provides

governmental entities and the public

with information on the hazards found

at sources and the source’s plans for

addressing the hazards. These hazards

would be identified and addressed

through implementation of the risk

management program elements.

Therefore, the RMP would summarize

the results of hazard assessments and

the implementation of the risk

management program requirements. The

proposed rule also contains a system to

audit the RMPs, including criteria for

selecting sources for audits.

II. Discussion of Issues and Approaches

During public hearings on the

proposed rule, in comments provided

on the proposed rule, and through

additional sources, EPA has learned that

six areas of the proposed rule need

clarification and further comment prior

to development of a final rule. In

addition to the regulatory provisions

and alternatives in the proposed rule,

EPA is requesting comment on

regulatory options under consideration

in the following areas: approaches for

tiering the regulatory requirements to

take into consideration differences

between various types, classes, and

kinds of sources, devices and systems;

the hazard assessment approaches

(including worst-case scenarios);

accident information reporting; public

participation in risk management

program and plan oversight; inherently

safer approaches for design and

operation; and the implementation of

section 112(r) regulations including

methods of integrating these

requirements into the title V permitting

requirements. All regulatory provisions

and alternatives under the proposed

rule remain as options for the final rule.

EPA will consider carefully comments

already submitted. Therefore,

commenters on this notice should not

duplicate comments already submitted,

but should focus on the issues in this

notice.

A. Approaches for Tiering the

Regulatory Requirements

Many commenters asked for a tiered

approach (i.e., applying different

requirements to different sources).

Commenters have presented several

reasons why a tiered approach is

needed:

• Commenters stated that, if a source

cannot cause offsite impacts, the source

should not have to meet the

requirements of the rule.

• Commenters stated that the rule

should be streamlined to ensure that the

requirements are appropriate for each

type of source covered and eliminate

duplicative coverage where possible.

Commenters argued that CAA section

112(r)(7)(B)(i) allows EPA to take into

account differences in size, operations,

processes, class and categories of

sources, and voluntary actions.

• Commenters, particularly states,

were concerned about whether the final

rule can be implemented effectively.

Substantial requirements imposed on

lower risk sources may undermine the

program because implementing agencies

and the public will find it more difficult

to identify and focus on the most

serious risks. Resources spent on

unproductive regulatory requirements

better might be used to analyze and

develop new accident prevention

technologies.

• Commenters have stated that, based

on their experience implementing

similar accident prevention rules in

New Jersey, California, and Delaware,

and implementing the OSHA PSM

standard, the rule would impose

substantially higher costs on affected

sources than EPA had originally

estimated. These commenters argued

that the costs of the rule should

reasonably be related to benefits

obtained. Commenters noted that EPA is

required under CAA section 112(r)(7)(C)

to consider the effects on small

businesses.

In light of data and information

supplied by commenters during the

initial comment period and developed

by EPA subsequent to publication of the

initial proposed rule, EPA believes that

it would be unreasonable to apply the

proposed rule prevention program to all

sources subject to part 68. EPA is

considering a tiered approach to achieve

the program objectives of ensuring that

the effort is appropriate to the potential

risk and recognizing the prevention

steps that sources are already required

to take under other regulatory programs.

EPA believes a tiered implementation

framework may be a reasonable way to

reduce the cost without sacrificing

accident prevention benefits.

EPA is proposing the use of three

tiers, representing increasing levels of

effort, in defining requirements for

sources. The tiers would apply to

different categories and classes of

sources based on their potential risk and

steps already being taken. In light of the

various comments summarized above,

EPA does not believe that the third tier,

which would be the proposed

prevention program and would entail

the greatest level of effort among the

alternatives discussed below should

apply to all sources. EPA solicits

comments on this position.

Under the Common Sense Initiative

(CSI), the Agency is working with a

broad cross section of stakeholders to

examine regulations affecting six

industry sectors. These sectors are

petroleum refining, metal finishing, iron

and steel, automobile manufacturing,

electronics and computers, and printing.

Under CSI, the Agency and stakeholders

together will be looking for approaches

that provide more environmental

protection at less cost for these industry

sectors. The tiering approaches

discussed in this notice incorporate

these CSI principles.

Discussion of Issues and Approaches

The CAA mandates that each source

with more than a threshold quantity of

a regulated substance develop and

implement a risk management plan that

includes an offsite consequence

analysis, a five-year accident history, a

prevention program, and an emergency

response program. Under its proposed

rule, EPA would require the submission

of an RMP that summarizes each of the

elements listed. The risk management

program specifies the activities required

for each of the broad elements. The

original proposal would require every

source affected by the rule to complete

all specified activities and submit an

RMP. EPA is proposing today to create

the following three tiers of risk

management programs:

Tier 1: A brief RMP would demonstrate

and certify that the source’s worstcase release would not reach any

public or environmental receptors of

concern.

Tier 2: A streamlined risk management

program would require sources to

conduct an offsite consequence

analysis, document a five-year

accident history, implement

prevention steps, have an emergency

response plan, and submit an RMP.

The rule would not require specific

steps to comply with the prevention

and emergency response programs.

Tier 3: The full risk management

program and plan would be that

described in the proposed rule.

In addition to the approach in the

proposed rule, EPA has developed two

alternative approaches to assigning

sources to the tiers in a way that takes

into consideration risk as well as

differences between types, classes, and

kinds of sources:

Approach 1: Sources that could meet

the requirements of Tier 1 would

comply with Tier 1; manufacturers

with 100 or more full-time employees

(FTEs) producing pulp (SIC code

2611), chlor-alkalis (2812), industrial

inorganics, not elsewhere classified
13528 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

(nec) (2819), plastics and resins

(2821), industrial organics, nec (2869),

nitrogen fertilizers (2873), agricultural

chemicals, nec (2879), and petroleum

refineries (2911) would comply with

Tier 3 requirements; all other sources

would comply with Tier 2

requirements. In addition, eight years

after the effective date of the rule,

sources in SIC codes 2812, 2819,

2869, 2873, and 2911 with 20 to 99

FTEs would be required to meet Tier

3 requirements.

Approach 2: Sources that could meet

the requirements of Tier 1 would

comply with Tier 1; other sources

with fewer than 100 full-time

employees (FTEs) would comply with

Tier 2 requirements; all other sources

would comply with Tier 3

requirements.

Discussion of Tier Requirements

Tier 1 (No Impact Tier). A source in

Tier 1 would be a source that is subject

to part 68 because it has more than a

threshold quantity of a regulated

substance, but that does not pose a risk

to public or environmental receptors. A

source would be eligible for Tier 1 if the

owner or operator can demonstrate that,

in a worst-case release, there are no

public and environmental receptors of

concern within the impact distances

specified by rule. Sources would not be

eligible for Tier 1 if they have had a

significant accidental release (as defined

in the proposed rule) in the previous

five years. To ensure that emergency

responders are aware of the hazards at

the sites, sources that exceed a

threshold only for flammable or

explosive regulated substances (i.e.,

they have no listed toxics above the

threshold quantity) would need to post

a sign at all normal access routes that

warns the public and emergency

responders about the hazard (fire or

explosion) and lists an emergency

contact telephone number. The owner

or operator of a source eligible for Tier

1 that handles a regulated toxic

substance would need to show that the

local emergency response plan prepared

under the Emergency Planning and

Community Right-to-Know Act of 1986

(EPCRA) section 303, 42 U.S.C. 11003,

specifically addresses their source. For

regulated substances that are not

extremely hazardous substances (EHSs)

under EPCRA, the owner or operator of

the source would need to certify that

source emergency response planning

and measures have been coordinated

with local first responders. EPA requests

comments on this approach. Sources

meeting these criteria would be required

to register, submit an RMP consisting of

the registration and standard oneparagraph statement (see rule text), and

maintain records of compliance with

these requirements.

The provisions described above

would satisfy each element of section

112(r)(7)(B)(ii) while recognizing that it

is reasonable for this class of sources to

be addressed in a simple manner. The

hazard assessment element of the

program would be satisfied by verifying

that there were no receptors within the

potential impact zone of the worst-case

accidental release and by the absence of

any significant accidental release within

the previous five years. In addition, EPA

proposes that, in lieu of obtaining a

professional survey, an owner or

operator could rely on visual

approximations of the distances

surrounding the source to public and

environmental receptors for comparison

to the distance generated by the worstcase release. The prevention program

would not require additional prevention

activities because the characteristics of

the process are such that there are no

potential public or environmental

impacts. A standardized RMP ensures

that local emergency planners and the

state know that the source has been

assessed by the owner or operator.

EPA believes that Tier 1 will be most

suitable for operations that handle

flammable substances or explosive

substances in locations that are

relatively distant from the public. In

lieu of presenting a distance table for

explosives in this part, EPA would

allow a source to be eligible for Tier 1

if it maintained a distance to the public

and environmental receptors consistent

with 27 CFR part 55 or 30 CFR parts 56,

57, or 77. These regulations,

promulgated by the Bureau of Alcohol,

Tobacco and Firearms (BATF) and the

Mine Safety and Health Administration

(MSHA) incorporate the American Table

of Distances (ATD). The distances

identified in the ATD are more

conservative than the EPA listing

criteria and should, therefore, protect

the public and the environment from

the effects that caused EPA to list

explosives.

Based on the known properties of

flammable substances and explosives, it

is possible to use conservative

assumptions and calculate the

maximum distance at which an

overpressure or heat effect of concern

can be detected. Distances for potential

impacts of accidental releases for

flammable substances and processes

could be determined by consulting

distance tables or derived using the

following calculation method described

in Flammable Gases and Liquids and

Their Hazards:

D = C × (nE)1/3,

where D is the distance in meters to a

1 psi overpressure; C is a constant for

damages associated with 1 psi

overpressures or 0.15, n is a yield factor

of the vapor cloud explosion derived

from the mechanical yield of the

combustion and is assumed to be 10

percent (or 0.1) and E is the energy

content of the explosive part of the

cloud in Joules. E can be calculated

from the mass of substance in kilograms

times the heat of combustion (hc) in

Joules per kilogram as follows:

E = mass × hc

Combining these two equations gives:

D = 0.15 × (0.1 × mass × hc)1/3

If distances to receptors are greater than

the distance given by the calculation

method, then a source could be eligible

for Tier 1.

EPA has received a study addressing

the potential consequences of accidental

releases from oil and gas exploration

and production (E&P) sources that may

provide a more suitable method for

calculating impact distances from these

sources than the general formula

presented above. The study, Hazard

Assessment of E&P Facilities Potentially

Subject to the EPA’s Risk Management

Program Regulations, was submitted by

the American Petroleum Institute in

January 1995 and is available in the

docket (see ADDRESSES section of this

rule). Generally the study purports to

show that given the composition of

produced hydrocarbons at the source

and certain physical characteristics of

an E&P source, such as operating phase

and piping size, one may estimate the

potential impact distances for vapor

cloud explosions and radiant heat

effects of an accidental release. EPA is

announcing the availability of this study

and seeks comment on whether EPA

should allow E&P sources to use the

results of the study to determine worstcase release impact distances.

For listed toxic substances, EPA is

proposing that sources use the lookup

tables discussed in Section B below.

Sources would use the lookup tables to

determine the impact distance for their

worst-case releases. If a source can

demonstrate that there are no public or

environmental receptors of concern

within the distance, the source would

be eligible for Tier 1.

EPA seeks comment on whether Tier

1 is appropriate for the sources

discussed above. In particular, EPA

seeks comment on whether Tier 1 is

appropriate for sources that have toxic

regulated substances present in more

than a threshold quantity. Should

sources be allowed to determine that

they have no offsite impacts for toxics
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13529

based on site-specific analyses rather

than the lookup tables? Is the criterion

of no significant accidental release in

the previous five years appropriate as a

condition for Tier 1 eligibility? Are

additional response preparedness

activities necessary beyond what has

been specified for sources in this tier?

Tier 2 (Streamlined Program). Sources

would be required to register with EPA,

conduct a hazard assessment, develop a

five-year accident history, prevention

program, and emergency response

program, and submit an RMP

summarizing these elements.

The rule would not specify the

prevention program in detail, but a

source’s program would have to cover

the statutory elements of training,

maintenance, safety precaution, and

monitoring. The prevention program

section of the RMP would describe the

steps the source takes to train

employees and maintain the facility, the

safety precautions used, and

monitoring. Sources may be able to meet

these requirements through compliance

with other, already existing Federal

regulations. For example, almost all

sources are subject to OSHA regulations.

The Hazard Communication Standard

(29 CFR 1910.1200) requires training on

hazards and preventive actions. OSHA

has numerous rules related to safety

precautions. Certain industries (e.g.,

handlers of anhydrous ammonia and

LPG) have specific OSHA standards.

Propane handlers are also generally

subject to state and local laws based on

NFPA–58, a storage and handling

standard for propane. Sources could cite

compliance with these standards as part

of their description of their prevention

steps. Sources that are in compliance

with the OSHA process safety

management (PSM) standard or with

chemical and refinery industry

standards would be able to cite

compliance with these because they

parallel EPA’s proposed prevention

program.

One mandated prevention element

not usually addressed in regulations,

except OSHA PSM, is maintenance.

Sources would be required to describe

how they maintain a safe facility; EPA

would not, however, specify

maintenance steps. EPA emphasizes

that, under CAA section 112(r)(1), all

sources already are required to identify

their hazards and design and maintain

a safe facility and would continue to be

subject to this general duty under

today’s proposed rule.

The response program would

document procedures for informing the

public and local entities about

accidental releases, procedures to be

used on site to respond to an accidental

release, and a description of employee

training measures regarding emergency

situations. EPA requests comment on

whether Tier 2 sources should be

required to exercise the emergency

response program under proposed

§ 68.45 or whether a streamlined

response program would be sufficient.

EPA notes that, for both Tier 2 and Tier

3 (described below), compliance with

other Federal contingency and

emergency response planning

requirements (e.g., RCRA, OPA–90)

would be considered adequate to meet

the emergency response requirements of

the rule. EPA asks for comment on what

other Federal emergency response

measures would satisfy the

requirements of section

112(r)(7)(B)(ii)(III). In particular, does

HAZWOPER (29 CFR 1910.120) fulfill

the requirement for ‘‘a response program

providing for specific actions * * * so

as to protect human health and the

environment’’? If a source is specifically

addressed in an emergency plan under

EPCRA section 303, should that satisfy

the response program element of the

CAA? Should EPA require that the LEPC

meet the membership, planning process,

and public availability requirements of

EPCRA sections 301, 303 and 324 for a

source to rely on an EPCRA local

emergency plan?

The streamlined approaches under

Tier 2 fulfill the statutory provisions of

section 112(r)(7)(B)(ii), while exercising

the discretion granted under section

112(r)(7)(B)(i) to recognize ongoing

prevention activities at classes of

sources. Requirements for hazard

assessments and response programs for

sources would be similar to those in the

original proposal as modified by other

portions of today’s notice. The five-year

accident history would be based on the

proposed rule. The prevention program

would place less burden on sources that

are subject to other governmental or

industrial programs or that seem to

present a lesser risk of a significant

accidental release than other sources,

based on public data and inferences

drawn from such data. The RMP will

fulfill the right-to-know aspects of

section 112(r) by requiring a source to

summarize data about its hazard

assessment, prevention, and response

program activities and make this

information available to the public. EPA

seeks comments on the proposed Tier 2

requirements. Specifically, EPA seeks

comment on whether additional,

specific prevention activities should be

required to address safety precautions,

maintenance, monitoring, and training

(e.g., any particular requirements of the

proposed rule targeted at these

activities) and on whether there are

additional governmental regulations and

industry or third-party standards which

fulfill the mandate of a prevention

program under section 112(r).

Tier 3—Full Rule. Tier 3 sources

would be required to comply with the

detailed prevention program of the rule,

as finalized. The RMP would address

hazard assessment, the prevention

program, and the emergency response

program. EPA intends that the final

prevention program will be the OSHA

PSM standard plus the requirement for

a management system.

Discussion of Assignment to Tiers

Sources would be eligible for Tier 1

based on a demonstration and

certification of no impact on public or

environmental receptors. All other

sources would be allocated to either

Tier 2 or Tier 3. Tier 2 is a default tier

for those sources not specifically

assigned to Tier 3.

EPA’s preferred approach would

assign sources in specific four-digit SIC

codes to Tier 3. To identify such SIC

codes, EPA analyzed its ARIP database

for the period from 1987 through 1993.

EPA believes that SIC codes in which

more than 10 sources with 100 or more

full-time employees reported regulated

substance releases (not limited to

accidental releases under part 68) and

more than 20 percent of such sources

had releases that had impacts onsite or

offsite would be candidate SIC codes for

Tier 3 during the initial implementation

of part 68. EPA also considered the

quantities released and the number of

sources in the SIC code as reported in

Census data. EPA used some judgment

when looking at SIC codes in Census

data because the Census reports only the

one SIC code per source that represents

the greatest financial activity even when

many SIC codes apply. Thus, the Census

may be likely to understate the total

number of sources in a 4-digit SIC code,

especially in the chemical industry,

because sources in certain industries

typically involve many different

operations. EPA believes that chemical

releases that are not accidental releases

and releases in which workers were

injured should be included in an

analysis of accidental releases for the

purposes of section 112(r) because all

such releases may indicate a failure of

company safety practices. EPA requests

comments on this conclusion and data

indicating that this assumption is valid

(or not) for the groups discussed below.

Based on the analysis described

above, EPA identified eight four-digit

SIC codes that have a release history

that supports requiring sources in such

codes to implement a Tier 3 program.
13530 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

These SIC codes are: 2611 (pulp mills),

2812 (chlor-alkali), 2819 (industrial

inorganics nec), 2821 (plastics and

resins), 2869 (industrial organics nec),

2873 (nitrogen fertilizer), 2879

(agricultural chemicals nec), and 2911

(refineries). In all of these industries, the

number of facilities reporting releases

was more than 20 percent of the number

in each SIC code using Census data.

Four industrial categories that EPA

does not believe would be appropriate

under the accident history criteria for

Tier 3 are 2865 (cyclic crudes), 3312

(steel mills), 2816 (industrial inorganic

pigments), and 4911 (electric utilities).

Less than 20 percent of the releases

reported from cyclic crude sources and

steel mills had impacts. In the cyclic

crude industrial category, while 16

sources reported releases

(approximately 25 percent of the SIC

code), only three sources had releases

with impacts. The largest release at 11

of the cyclic crude sources exceeded

1,000 pounds, and three of these sources

had largest releases exceeding 10,000

pounds. Given the size of releases from

cyclic crude sources, EPA requests

comments on whether they should be

required to meet Tier 3 requirements. In

the steel mill sector, while 18 sources

reported releases (approximately 14

percent of the industry), only 3 had

impacts. However, six of these sources

reported releases exceeding 10,000

pounds. The industrial inorganic

pigment industry was just below the

candidate SIC code criteria for facilities

reporting releases and percentage of

impact releases. While nearly half the

industry reported releases, only two

facilities had releases that were more

than 1000 pounds, and none had

releases that exceeded 10,000 pounds.

Although there were a high number of

releases reported by electric utilities,

only about 2 percent of the industry

accounted for the reported releases.

EPA would initially limit Tier 3 to

sources in the eight categories with 100

or more full-time employees because

these sources have the most significant

accident histories. However, certain

smaller sources also have accident

histories that would support eventual

Tier 3 treatment. EPA conducted an

analysis of sources with 20–99 full-time

employees and identified five categories

that, based on accident history, would

become Tier 3 sources 8 years after

promulgation: 2812, 2819, 2869, 2873,

and 2911. The flammable substance

accident history for refineries with 20–

99 full-time employees supports

eventually requiring these sources to

comply with Tier 3. The four other

industries all had a significant

percentage of impact releases relative to

the number of facilities reporting toxic

releases. Three groups (industrial

inorganics, industrial organics, and

nitrogen fertilizer) had more than ten

facilities reporting toxic releases, while

two groups (chlor-alkali and nitrogen

fertilizer) had more than 30 percent of

the SIC code reporting releases. EPA

may review this determination based on

data gathered during the eight-year

period. The full program would be

phased in to allow these sources to

benefit from the expertise gained by

governmental agencies and larger

industry during initial implementation

of the full program; the phase in would

also ease the cost burden on these

smaller companies by giving them more

time to implement the program. EPA

would calculate full-time employees

based on the definition in 40 CFR 372.3.

Full-time employees would include

contractors on site.

EPA also requests comment on a

second approach to tiering. EPA would

include in Tier 3 all sources with more

than 100 FTEs. Larger sources not

eligible for Tier 1 would be subject to

Tier 3 because of the size of their

operations and the likelihood that they

have larger quantities of regulated

substances on site, as well as because of

their technical capabilities to undertake

the program relative to most small

manufacturers and non-manufacturers.

EPA does not favor this approach,

however, because many of these large

sources do not have a significant record

of accidental releases.

EPA requests comment on the two

alternatives or on other criteria for

placing sources in tiers under the risk

management program. EPA may adopt,

in whole or in part, any or all of the

approaches to eligibility for Tier 2 in the

final rule. The first approach focuses on

industry segments that have a history of

releases from a number of sources. This

approach would remove from Tier 3

individual sources that may have had a

history of accidents, but are part of

sectors that have not had numerous

accidents. It would also remove from

Tier 3 entire sectors based on an

accident history, which in the future

may change. Should a change occur,

EPA would revise the rule to include

these sectors in Tier 3. Should such

sources and segments be exempt from

adopting process safety management

principles until problems in the

industry become pervasive? In addition

to placing sources in Tier 3 based on

industry segment, should a source be

placed in Tier 3 if it has had one or

more significant accidental releases in a

five-year period? Conversely, should a

source in an industry segment in Tier 3

be allowed to move to Tier 2 if it has

not had a significant accidental release

in the past five years? The Agency

requests comment on the oversight and

compliance burdens that would be

placed on implementing agencies and

sources by a site-specific tiering

approach. Should proximity to

significant numbers of people (either

residential population, workers, or other

people) be used (alone, or in

conjunction with other criteria

discussed above) to qualify a source for

potential Tier 3 treatment? Should EPA

structure the audit provisions of

proposed § 68.60 to allow for

implementing agencies to require Tier 2

sources to undertake more specific

prevention activities if an audit

uncovers inadequate risk management

programs? Are there additional

industries (two-digit or four-digit SIC

codes) that should not be eligible for

Tier 2 under either approach? Under

approach 2, are there sources with more

than 100 FTEs that should be eligible for

Tier 2 because of industry-specific

standards or the simplicity and nature

of their processes? EPA believes the

preferred approach is the most

appropriate level for national

implementation. EPA notes that state

implementing agencies have the

authority under the CAA to impose

more stringent requirements.

Qualified Third Party. EPA is seeking

comments on whether provisions

should be made to employ a ‘‘qualified

third party,’’ under implementing

agency oversight, to assist certain

regulated sources in achieving and

maintaining compliance with the RMP

rule. In raising this issue, EPA is

cognizant of the recent National

Performance Review recommendations

to OSHA on the use of third parties, and

growing reliance on ‘‘qualified third

parties’’ to facilitate compliance with

other regulations, to audit the

performance of regulated third parties,

and verify compliance status on a

periodic basis. Such arrangements,

thereby, assist both the regulated

community and the regulating agencies

in ensuring compliance with

regulations. EPA requests comments

whether to use qualified third parties for

this program as well as specific

suggestions on how appropriately to

include qualified third parties in the

present rulemaking.

One way to incorporate ‘‘qualified

third party’’ review into the RMP tiering

framework might be to assign certain

sources that participate in the Voluntary

Protection Program (VPP) to Tier 2. The

VPP is a voluntary program sponsored

by OSHA and industry that recognizes

strong safety practices, including

process safety management. Within
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13531

VPP, a ‘‘Star’’ rating indicates the

highest level of worker safety practices

in all aspects measured by the program,

while a ‘‘Merit’’ rating indicates sound

practices with specific qualifications.

One commenter suggested that EPA

should integrate Star and Merit status

into the risk management program. It is

not clear whether Star and Merit ratings

are relevant to protecting the public and

the environment from accidental

releases because the VPP only directly

measures worker safety impacts. EPA

invites comment on whether a source

that obtains Star rating or a Merit rating

without qualifications related to process

safety management should be eligible

for Tier 2 even when it is part of an

industry sector that otherwise is subject

to Tier 3. Should implementing agencies

and the public rely on Star or Merit

status as a good indicator that the source

poses a lesser risk of a significant

accidental release than other sources in

the same industry sector?

Comments on other types of

‘‘qualified third party’’ options to

facilitate responsible self-enforcement of

the RMP rule will also be useful,

particularly as they relate to subsectors

of regulated sources which have

demonstrated the capacity for

establishing and enforcing voluntary

safety procedures, or to subsectors in

which the regulated sources or their

associations have indicated an interest

in developing such capacity. Comments

from state and local officials, emergency

responders, and the public regarding the

use of third party arrangements are

sought.

B. Hazard Assessment

EPA received substantial comments

on hazard assessment topics during the

four public hearings, the comment

period, and a one-day forum on worstcase scenarios. Commenters made the

following main points:

• Commenters questioned the

intended use of the worst case, arguing

that EPA failed to provide a clear

description of its purpose.

• Commenters questioned whether

EPA would require sources to conduct

separate analyses for each hazard for

substances that are both flammable and

toxic. Commenters suggested that the

number of assessments could be limited

by analyzing only the substance that has

the potential for the most serious offsite

impacts.

• Commenters stated that, although

the proposed definition of worst case as

instantaneous loss of the total contents

of a process may be possible for sources

that have simple systems, instantaneous

loss of the total process contents is not

technically feasible for complex systems

and, therefore, would provide no useful

information to the public or the source.

• Commenters stated that failure to

account for at least well-designed

passive mitigation systems reduces the

incentive for installation of such

systems.

• Commenters argued that EPA

should specify in the final rule certain

methodological assumptions that

sources would use to analyze release

scenarios.

• Several commenters argued that the

worst-case meteorological conditions

defined in the proposed rule (F stability

and 1.5 meters/second wind speed)

were too conservative.

• Commenters expressed concern that

the results of the offsite consequence

analyses would be difficult to compare

between sources without specification

of the assumptions.

• Commenters asked for clarification

of what EPA expects sources to do to

define offsite populations and

environmental impacts.

Clarification of the Purpose of WorstCase Analyses. Sources and the public

need to assess and understand the

extent of the impact associated with an

uncontrolled major accident. EPA does

not intend that worst-case analyses

should be used as the sole or primary

basis for emergency planning or

accident prevention actions. The results

of the worst-case analyses, in

combination with other more likely

release scenario assessments, as

contained in the RMP, should be used

to build a dialogue and a working

partnership between the source and the

public, response agencies, workers, and

various levels of government for

chemical accident prevention, response,

and preparedness.

Worst-Case Release Definition

EPA is considering alternatives to the

definition of worst-case release in

proposed § 68.3. EPA is proposing to

redefine a worst-case release as the

release of the largest quantity of a

regulated substance resulting from a

vessel or process piping failure. The

worst-case analysis would involve a 10-

minute release under worst-case

meteorological conditions (F stability

and 1.5 meters per second wind speed)

and would consider passive mitigation

measures.

The 10-minute release time is used in

the Technical Guidance for Hazards

Analysis. EPA believes that this release

duration is reasonable and accounts for

comments arguing that an

‘‘instantaneous’’ release is not realistic.

As described in the Technical Guidance,

a 10-minute release is intended to

represent modeling of a continuous

release rather than a ‘‘puff’’ release.

Therefore, for modeling purposes, the

release rate (per minute) to the air for

gases would be the quantity released

divided by 10. Liquids would be

assumed to form a pool in 10 minutes,

with the release rate to the air

determined by volatilization rate. This

approach to liquid releases differs from

that of the Technical Guidance, which

specifies an instantaneous release.

Alternatively, the Technical Guidance

could be used, but no time frame would

be specified; the liquid quantity would

be assumed to form a pool for

calculation of the volatilization rate.

EPA requests comments on the

appropriate release duration and

justification for its basis.

EPA is considering the revision of

proposed § 68.15(c) to incorporate the

effects of passive mitigation systems,

but not active mitigation systems, into

the worst-case release scenario, if such

systems are capable of withstanding

destructive events (e.g., fires,

explosions, floods, hurricanes, and

earthquakes). Passive systems would

include dikes, catch basins, and drains

for liquids, and enclosures for both

liquids and gases. EPA requests

comment on its definition of ‘‘passive

mitigation system’’ and requests

examples of other such devices.

Scenarios involving passive mitigation

systems that have connections to the

environment (such as a rainwater drain

valve) would have to assume failure of

that connection. The threat of natural

disasters would be specific to certain

geographic regions, and sources could

certify that their passive mitigation

meets or exceeds local natural disaster

design standards as capable of

withstanding destructive natural events.

Underground storage tanks might also

be considered a passive mitigation

system for liquids to the degree that

overlying soils would reduce the

volatilization rate to the air in the event

of a worst-case accidental release.

However, overlying soil is not likely to

contain high pressure gas releases. EPA

requests comment on this issue.

Incorporation of passive mitigation

measures into the worst-case release

analysis could be left to implementing

agency discretion. Such discretion

would result in an increased

administrative burden on that agency

and cross-jurisdictional differences in

the methodology used for worst-case

analyses. EPA is considering allowing

the incorporation of active mitigation

measures in the hazard assessments for

more likely accidental release scenarios.

EPA seeks comment on several

possible ways to define the relevant

quantity of regulated substance in a
13532 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

vessel or process piping for a worst-case

release scenario. One alternative would

be to define the quantity as the

maximum possible vessel inventory,

without regard for operational practices

and administrative controls. This

quantity would represent a physical

maximum, but would exaggerate the

potential worst case for sources that

never operate at the physical maximum

inventory of the vessel. The process

piping failure scenario would assume

that the inventory contained in vessels

or other process equipment on either

side of the piping failure location would

be released through the pipe break at

full pipe flow.

A second, preferred alternative would

be to require that the determination of

the worst-case release scenario be based

on the maximum possible vessel

inventory unless there are internal

administrative controls (written

procedural restrictions) that restrict

inventories to less than the maximum.

The operational limit would be

described in the worst-case release

analysis in the RMP. Exceedance of any

administrative control on vessel

inventory would be a violation of

§ 68.15 (failure to perform a worst-case

analysis) unless the administrative

control was revised and the worst-case

analysis updated to reflect any changes

in the analysis. An exceedance would

also result in a violation of § 68.50

unless the RMP was updated within the

timeframes set out in that section.

Acknowledgement of such

administrative controls would reflect

the efforts of sources that have

intentionally reduced inventories of

regulated substances for process safety

reasons. EPA seeks comment on

whether administrative controls are

sufficiently reliable or whether a

mechanical control should be required

in addition to the administrative

control.

A third alternative for defining the

relevant quantity would be to base the

quantity on historic or projected

maximum operating inventories without

regard for administrative controls. The

maximum operating inventory would be

specified in the RMP. Exceedance of the

maximum operating inventory also

would be a violation of §§ 68.15 and

68.50 as described above. EPA does not

favor this third alternative because it

does not believe that historic or

projected operating practices represent

the maximum possible amount of a

chemical that could be stored in a vessel

unless there is a specific management

operational restriction at the source.

EPA is also considering providing the

implementing agency with the

discretion to determine the appropriate

quantity for the worst-case release

scenario on a site-specific or industryspecific basis. Implementing agency

discretion would result in an increased

administrative burden on the

implementing agency and crossjurisdictional differences in the

methodology used for the worst case

analyses. EPA also requests comment on

whether the scenario should consider

the additional amount of substance that

could potentially drain or flow from

process equipment interconnected with

the failed vessel or pipeline.

Applicability of the Hazard Assessment

Requirements

A number of commenters stated that

multiple analyses of similar substances

would not improve the information

provided to the public. EPA is

proposing the following requirements

for substances and processes affected by

the rule:

• A single worst-case release scenario

would be analyzed for all flammables on

site; only one flammable substance

would be analyzed for other more likely

scenarios as well;

• A single worst-case release scenario

would be analyzed for all explosives on

site; only one explosive substance

would be analyzed for other more likely

scenarios as well; and

• A single worst-case release scenario

would be analyzed for all toxic

substances at the source; other more

likely release scenarios would be

analyzed for each toxic substance

covered by the rule.

The appropriate hazard category would

be the hazard for which the regulated

substance was listed. This proposal

would reduce to a maximum of three

the number of worst-case analyses

required of each source in the RMP.

Additional screening analyses to

determine the appropriate worst-case

scenario may be necessary, but only one

worst-case release scenario would be

reported for each hazard category.

Sources would, within the constraints of

the worst-case release definition,

describe the greatest offsite impacts

presented by potential catastrophic

accidents involving regulated toxic,

flammable, and explosive substances.

The potential worst-case impacts of

substances and processes not described

in the RMP would be less than those

described. As an alternative, EPA could

require analysis of only one worst-case

scenario by each stationary source. This

approach would require the analysis of

the one scenario that presents the worst

offsite consequences. A significant

drawback to a one-scenario analysis is

that the different types of worst-case

hazards (for toxics, flammables and

explosives) would not all be described.

EPA would require more likely

release scenarios per hazard category for

flammables and explosives, but per

substance for listed toxics. Toxic

substances each have different exposure

concentrations of concern, but

flammables and explosives can be

treated uniformly within hazard

categories. EPA seeks comment on

whether a single toxic substance could

be considered representative of all toxic

substances at a source or in a process.

Hazard Assessment Methodology and

Calculations

EPA intends to develop ‘‘lookup’’

tables for all listed substances to assist

sources in determining the impact

distances for their release scenarios. The

tables will specify potential impact

distances for releases of substances

under conditions that are relevant to

dispersion. Sources will only have to

define their release scenarios and

develop the information, such as release

rate, needed to use the tables. The tables

will provide impact distances that

sources can then map. For explosives,

the American Table of Distances will

serve as the lookup table. For toxics and

flammables, the lookup tables will be

developed and made available for

public review and comment prior to the

publication of the final rule. The tables,

and accompanying guidance, will

represent a revision of the Technical

Guidance for Hazards Analysis. The

tables will provide distances under

varying conditions, including worstcase. In developing the tables, EPA will

select one level of concern value for

each toxic substance. EPA seeks further

comment on whether it should use a

single endpoint to the extent possible to

develop the tables (e.g., the 1/10 IDLH

unless one does not exist for a

substance), or a hierarchy of endpoints

(e.g., ERPG–3; if one does not exist, then

the 1/10 IDLH; and finally toxicity data

if no other value is available). For

flammables, should EPA use

overpressure or both overpressure and

radiant heat effects as endpoints? EPA

requests comment on the lookup table

approach. The tables and the

methodology used to develop them will

be made available for public review and

comment.

The purpose of providing lookup

tables is three-fold. First, if each source

conducts its own dispersion modeling,

the results will be extremely difficult to

compare among sources; different

models and different assumptions can

produce widely varying results. Second,

because of the differences in models and

the impact of changing assumptions
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13533

(e.g., a different wind speed), the results

of dispersion modeling are best used to

provide a general idea of impact; models

do not have a level of predictive

accuracy that can reliably differentiate

between, for example, a release with a

four-mile zone and one with a five-mile

zone. Third, dispersion modeling is

expensive, especially for sources that

are outside of the chemical industry.

Given that the results of sophisticated

modeling may not be more accurate

than results derived from simple tables,

EPA decided that a simpler approach

that would provide comparable data

among sources was preferable. Sources

that wish to conduct more sophisticated

modeling may, but would not be

required to do so, under the rule. For

sources that want to do modeling, a

number of models available in the

public domain exist; EPA has published

guidance on the use of these models. An

alternative approach would be to limit

use of the lookup tables to Tier 2

sources and require Tier 3 sources to

conduct air dispersion modeling. EPA

requests comments on this alternative.

Offsite Consequence Analysis

EPA agrees with commenters that

further direction is necessary with

respect to assessments of potentially

affected populations and the

environment. Section 68.15(e)(3) of the

proposed rule requires an analysis of

populations within distances of

potential exposure. The preamble to the

proposed rule specified that sensitive

populations potentially affected by a

release should be identified. Although

much of this information is readily

available, identification of some

sensitive populations, such as day care

centers and nursing homes, could

require considerable effort, especially

where the vulnerable zone crosses

several jurisdictions. In addition,

sources in the same area would be

required to duplicate each other’s

efforts.

To limit the effort required to define

offsite populations, EPA is proposing

that offsite populations be defined using

available Census data. Information on

the number of children and people over

65 may be considered a proxy for

sensitive populations. With the

assistance of the Bureau of the Census

and NOAA, EPA is developing a

geographic information system,

LandView, that will facilitate analysis of

resident populations. In addition, EPA

may require sources to identify public

arenas or institutions that are

potentially affected. These arenas or

institutions would be limited to those

identified on available street maps or

Census TIGER files.

EPA has proposed that sources

analyze both potential human health

impacts and environmental impacts in

hazard assessments and consider such

impacts in designing prevention and

response programs. ‘‘The environment’’

is specifically mentioned twice in

section 112(r)(7)(B) as a receptor to be

protected by emergency response

measures. First, section 112(r)(7)(B)(i)

states that regulations under

subparagraph B ‘‘shall include

procedures and measures for emergency

response after an accidental release of a

regulated substance in order to protect

human health and the environment.’’

Second, under the response program

provisions of the risk management plan,

the plan must address ‘‘specific actions

to be taken in response to an accidental

release of a regulated substance so as to

protect human health and the

environment.’’ Also, a third reference to

‘‘the environment’’ is ambiguous and

may refer not only to response

measures, but also to other aspects of

risk management plans (CAA

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

The structure of the CAA’s accidental

release provisions integrates the

assessment of potential hazards and the

prevention of accidents with response

planning to prevent potentially

hazardous conditions from resulting in

accidents and ensure that the response

measures are adequate in the event of an

accidental release. EPA supports this

integrated approach to planning with

respect to accidents. EPA believes it is

reasonable for sources to address not

only human health impacts, but also

environmental impacts in the hazard

assessment. In light of the mandatory

CAA language requiring that the

environment be addressed as a receptor

for purposes of emergency response,

EPA invites comments on this approach.

EPA recognizes that one of the

concerns of commenters about

addressing the environment in a hazard

assessment was that the proposed rule

discussion of environmental impacts

was not specific enough. Consequently,

EPA would revise § 68.15(e)(4) of the

proposed rule to require identification

of sensitive environments (rather than

analysis of potential environmental

damage) within the radius determined

by the worst-case and more likely

accidental release scenario analyses. In

addition, EPA would revise

§ 68.15(h)(3)(v) to require sources to list

the sensitive environments within the

accidental release scenario radii in the

RMP. To identify receptors, the source

could call the appropriate state or

Federal agencies to determine if any

sensitive environments were within the

impact distances.

EPA requests comments on the use of

all or part of Appendix I of the NOAA

Guidance for Facility and Vessel

Response Plans: Fish and Wildlife and

Sensitive Environments (59 FR 14714,

March 29, 1994) for determination of

sensitive environments. Appendix I lists

the following sensitive environments

and identifies responsible Federal

agencies: wetlands (as defined in 40

CFR part 230.3); critical habitat for

designated or proposed endangered/

threatened species; habitat used by

designated or proposed endangered/

threatened species or marine mammals;

national marine sanctuaries; national

parks; Federal wilderness areas;

national estuary program areas; near

coastal waters program areas; clean

lakes program critical areas; national

monuments; national recreational areas;

national preserves; national wildlife

refuges; coastal barrier resource system;

national river reach designated as

recreational; Federal or state designated

wild and scenic rivers; national

conservation areas; hatcheries;

waterfowl management areas; cultural

resources; areas of critical

environmental concern; and the

national forest system. Accidental

releases of volatile substances may not

represent a major threat to certain of the

sensitive environments listed above. For

example, wetlands, national marine

sanctuaries, national monuments,

national estuary program areas, near

coastal waters program areas, and clean

lakes program critical areas may not be

threatened by accidental releases to the

air. They could, however, be threatened

by volatile liquid releases. In addition,

deposition of listed substances from

accidental releases of toxics to the air

could also represent a threat to these

sensitive environments. EPA requests

comment on whether these, and other,

specific sensitive environments should

be removed from consideration for

identification of sensitive environments.

C. Accident Information Reporting

The proposed rule addresses

emergency notification (§ 68.45(b)) and

self-investigation of accidental releases

(§ 68.40). However, other than the fiveyear accident history in the RMP and

emergency reporting under the

Comprehensive Environmental

Response, Compensation, and Liability

Act (CERCLA) and EPCRA, sources are

not required to report any accident data

or results of accident investigations.

Certain accidental release information

that otherwise is not available could be

useful to states and EPA to learn which

types of sources are having problems,

understand more about accident causes,

track trends in chemical accidents and
13534 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

prevention activities, monitor the

progress of the risk management

program, focus future prevention

activities, and avoid overregulation of

industry sectors or substances.

EPA is evaluating how such

accidental release information needs

might be met so as to impose a minimal

burden on sources and avoid

redundancy. One approach would be to

require submission of information on

any accidental release of a regulated

substance if the release results in death,

injury, evacuation, property damage, or

offsite environmental impacts. If the

source experiencing such an accident is

subject to the OSHA PSM requirements

or Tier 3 requirements described above,

then the owner or operator could submit

to EPA and the state a copy of the

accident investigation report generated

under 29 CFR 1910.119(m)(4) or 40 CFR

68.40. For sources not subject to these

requirements, or alternatively all

sources, owners or operators could

submit an accidental release

information survey form to collect a

brief, but accurate description of the

event and its consequences, the

substance and amount released, root

causes, initiating events and

contributing factors causing the release,

and changes or potential changes at the

source to prevent a recurrence. EPA

requests specific information on the

types of questions that should be

included. EPA also seeks comments on

which accidents should be reported

(e.g., should any investigated deviation

be reported?), reporting triggers (e.g.,

threshold quantities or reportable

quantities released), whether reporting

formats can be used to streamline or

eliminate duplicative reporting, and if

the submission of these data raises

liability concerns.

Another approach EPA is considering

would be to have EPA request

information developed under existing

regulations, such as OSHA PSM

accident investigation requirements or

EPCRA section 304 follow-up notices.

Under this approach, sources would not

need to develop any new information

for EPA, but could provide EPA with

documents prepared under other

regulations. EPA could supplement

such information as necessary by

undertaking surveys to acquire specific

data on accidents based on these

existing documents. EPA requests

comment on this approach. Specifically,

EPA seeks information on what the

appropriate mechanism for obtaining

data on accidents would be.

The approach outlined above would

not affect a source’s current obligations

to report releases of certain regulated

substances under CERCLA section 103

or EPCRA section 304. For purposes of

CERCLA section 101(10)(H), part 68 is

not a control regulation, and the RMP is

not a permit allowing the accidental

release of any specific quantity of a

regulated substance.

D. Public Participation

A number of commenters have asked

that EPA require sources to involve the

public in development and review of

the risk management program. Several

commenters have identified key points

at which public involvement is

appropriate, including at the outset of

the planning process, upon completion

of the process hazard analysis (PHA),

prior to submittal of the RMP, prior to

RMP revisions, after an accident, after

an accident investigation, and during

response drills involving action outside

the plant.

EPA believes that the public is a key

stakeholder in preventing chemical

accidents and that sources have the

responsibility to make the public aware

of the hazards associated with potential

accidental releases. EPA is committed to

encouraging public involvement. EPA’s

favored approach would encourage

sources to use existing groups, primarily

the local emergency planning

committees (LEPCs), as a conduit for

communications between the source

and the public. Many sources covered

under part 68 are already obligated to

participate on, and perform emergency

preparedness and planning activities

with their LEPCs under EPCRA. In areas

where there is no functioning LEPC or

its equivalent, sources, local first

responders, citizens, and others need to

develop and support the LEPC or its

equivalent. EPA expects sources to work

with the LEPC during the development

of the RMP as well as after its

submission. Similarly, EPA expects the

public to contact the LEPC for

information from the source whenever it

has questions or concerns. EPA notes

that the RMP is not a one-time

document; the RMP reflects the risk

management program at the source and

will change as activities at the source

change. Sources, therefore, should be

involved in a continuing dialogue with

the LEPC about the prevention and

emergency response programs as they

evolve to address changes at the source.

EPA prefers this approach because, just

as one size of risk management program

is not appropriate for all sources, a rigid

set of public participation requirements

would not be reasonable for all sources.

A second approach would require a

source to take steps to involve the

public in discussions concerning the

content of its RMP and describe those

steps in the RMP. EPA would not

specify the steps, but would provide

guidance on ways a demonstration

could be made. The source could

describe its community outreach efforts

during the planning process in on-site

records that would be available to the

public or could summarize these

activities in the RMP. Similarly, a

source could maintain a record on site

of community outreach actions taken

after submittal of the RMP. EPA would

provide guidance on ways such a

demonstration could be made. For

example, sources could choose to notify

the public through a general circulation

newspaper that the RMP was available

and make copies available; the source

could publish the RMP in a newspaper

or on electronic bulletin boards; or the

source could hold a public meeting on

the RMP or use local TV public service

channels to target a local audience or to

broadcast logistics for upcoming

meetings. EPA requests comment on

whether public participation activities

should be limited to Tier 3 sources.

Another suggested approach for public

participation was to allow the public, by

petition, to trigger audits of completed

RMPs by the implementing agency. EPA

does not favor this approach because it

could generate an excessive burden for

implementing agencies.

E. Inherently Safer Approaches

The manufacture, processing, and use

of chemicals is inherently risky. EPA

believes that fulfillment of the risk

management program requirements

entails ongoing attention to hazard

identification, hazard analysis, risk

management (assessment, reduction and

control, or elimination), and public

outreach. This process should lead to

continuous improvement and the

evolution of safer sources through a

wide range of actions involving

reduction of the inherent risk and

control or mitigation of the hazards.

During the proposed rule hearings,

several presenters argued that, like

pollution prevention, accident

prevention could be more successful if

the program were to focus on the

elimination of hazards to make

processes inherently safer rather than on

an attempt to control or mitigate

existing hazards. It was suggested that

sources be required to examine different

approaches or technologies through a

process of technology options analysis

(TOA), or a ‘‘state-of-the-art’’ search and

analysis of safety alternatives as

required by New Jersey in its Toxic

Catastrophe Prevention Act regulations,

to find, and adopt, inherently safer

chemical pathways and processing

techniques. In addition to TOA and

state-of-the-art searches, the Center for
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13535

Chemical Process Safety has published

a guideline containing a checklist for

evaluating the inherent safety of

processes (Guidelines for Engineering

Design for Process Safety, CCPS, 1993).

Commenters suggested that EPA

formalize the search for alternative

technologies by making TOA or similar

reviews a required part of PHAs and by

requiring sources to document and

share the results in the RMP.

Such costly analyses are probably best

conducted during the design of new

processes, when, according to industry

commenters, they often are already part

of the design process to identify costeffective approaches to improving

safety. In addition, if alternative

technologies are discovered, whether for

new or existing processes, further

analysis is necessary to determine

whether risks are inadvertently being

transferred by the new technology from

one location to another. Adoption of

new technologies without such analyses

may inadvertently impose greater

individual or societal risk. EPA

recognizes, however, that there are

many opportunities to make processes

inherently safer without large-scale

adoption of new technologies. These

opportunities may become apparent

through the PHA. Some sources have

already performed such analyses and

have successfully taken action to make

their processes inherently safer.

Consequently, EPA does not favor

inclusion of a specific requirement in

the initial program for an analysis of the

inherent safety of processes or for

adoption of new technologies. EPA,

however, strongly encourages industry

to consider implementing inherently

safer approaches when appropriate and

include a discussion of any such studies

and actions it takes in RMP updates.

EPA is considering further study of this

issue with all stakeholders and requests

comment on this issue.

F. Implementation and Integration of

Section 112(r) With State Programs

Section 112(r) places responsibility on

sources to prevent accidents and share

information about their accident

prevention efforts. However, EPA

believes, and Congress intended, that

successful chemical emergency

prevention, preparedness, and response

efforts require active state and local

involvement. The legislative history and

CAA section 112(r) requirements

support and build on the existing state

and local infrastructure by requiring

that RMPs be submitted to states and

local planning entities. [See, e.g., S. Rep.

No. 228, 101st Congress, 1st session, at

193 and 225.] EPA encourages and

supports any state or local efforts to

develop comprehensive plans for

coordination and integration of section

112(r) with state and local programs

mandated under the CAA, EPCRA, and

other environmental statutes and

planning and safety programs under

OSHA and other agencies.

The ways in which state and local

organizations are, or could become,

involved in the implementation and

integration of section 112(r) are

described in more detail below. About

15 percent of the sources subject to the

section 112(r) requirements will already

have or will need to get operating

permits from state air permitting

authorities under part 70 by the time the

RMPs are due. In the final part 68 rule,

EPA intends to clarify the

responsibilities of sources subject to

part 70 permitting requirements and

section 112(r), the air permitting

authority with respect to section 112(r),

and state or local agencies who elect to

implement section 112(r) for all other

sources. EPA worked closely with and

directly involved several state and local

air program officials and state

emergency response and prevention

representatives in the development of

the preamble and regulatory language to

prepare approaches detailed in the

following sections. These approaches

best reflect the concerns of the states

about air permit program

implementation and the needs for

comprehensive participation in

chemical accident prevention,

preparedness, and response at the state

and local level.

Applicable Requirements and

Permitting Authority Responsibilities

for Section 112(r)

Under CAA section 504(a) and EPA’s

implementing regulations (§ 70.6(a)(1)),

part 70 permits must contain conditions

sufficient to assure compliance with all

CAA applicable requirements. Part 70

defines ‘‘applicable requirement’’ to

include any standard or requirement of

section 112, and includes any

requirement concerning accident

prevention under section 112(r)(7).

In the preamble to part 70 (57 FR

32275, July 21, 1992), EPA stated its

belief that section 112(r) was not

intended to be implemented or enforced

primarily through part 70 permits. EPA

cited the provisions of section

112(r)(7)(F), which provides that,

notwithstanding title V, no source must

obtain a permit solely because it is

subject to the requirements of section

112(r). The part 70 preamble stated that

it was sufficient for a part 70 source

subject to 112(r) to ‘‘indicate in its

permit [application] that it has complied

with any requirement to register an

RMP, or alternatively to indicate in its

compliance plan and schedule of

compliance its intent to comply with

such requirement.’’ Thus the preamble

set forth the view that all that was

required of a part 70 source with respect

to 112(r) was a statement in its permit

application that it has registered the

RMP or has submitted a schedule to do

so. By stating explicitly that section

112(r) requirements were not to be

implemented or enforced primarily

through the permit, the preamble

defined a narrow role for the permit:

one of ensuring submittal of the RMP,

but not ensuring the quality of the RMP

or the implementation or enforcement of

section 112(r) regulations in any

particular way. The preamble also did

not say what conditions must be in the

permit to assure compliance with

applicable 112(r) requirements (even

though the preamble went on to provide

that the RMP itself need not be included

in a title V permit). Finally, the

preamble was silent on the issue of

responsibilities the permitting authority

might have in assisting the

implementing agency in assuring

compliance with section 112(r)

requirements.

This view was necessarily

preliminary, since it was developed

before any part 68 rulemaking that

could clarify how the permit must

assure compliance with ‘‘applicable

requirements’’ relative to section 112(r).

The part 70 preamble does not preclude

part 68 rulemaking from clarifying and

even expanding the responsibilities of

permitting authorities (e.g., a

completeness review of the RMP) with

respect to implementation of section

112(r) requirements through part 70

permits.

Today’s proposal would go beyond

the part 70 preamble, principally by

setting forth the part 70 measures

necessary to ‘‘assure compliance with’’

applicable section 112(r) requirements.

In addition, today’s proposal would

establish limits on the responsibilities of

the air permitting authority for assuring

compliance with section 112(r) within

the part 70 program as opposed to the

greater responsibilities envisioned for

an implementing agency.

‘‘Applicable Requirements’’ for Part 70

Sources

One principal objective of the

regulations proposed today is to clarify

the minimum content of part 70 permits

with respect to section 112(r)

‘‘applicable requirements.’’ EPA also

intends to revise the definition in part

70 of ‘‘applicable requirement’’ relative

to section 112(r). This definition will

include the requirements of part 68,
13536 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

when promulgated, to which part 70

sources are subject. EPA expects to

define this term to mean §§ 68.10 to

68.58 or specific provisions within

those sections. The part 70 rulemaking

would be done as part of the phase II

rulemaking addressing remaining issues

raised by the part 70 litigants. This

rulemaking is expected to be proposed

this fall and finalized in early 1996.

EPA does not believe that each permit

must restate every requirement in

section 112(r) or part 68 as a permit

condition to comply with the part 70

applicable requirement definition. The

permit could instead meet this

requirement by containing a set of

standard conditions that require

compliance by the source with

applicable section 112(r) requirements.

These permit conditions are proposed

in § 68.58 and would require that each

permit contain, at a minimum,

conditions that require source action

consistent with the following:

(1) Registration with the implementing

agency (EPA or the appropriate state

or local agencies) and submittal of an

RMP, or a revised plan, to the part 70

permitting authority or other state or

local agency designated by the state

for this purpose, by the deadline

under this part and certification upon

submission that the plan is complete

and accurate;

(2) Submittal of any additional

information required for

completeness;

(3) Annual certification of

implementation of the risk

management program as described by

the RMP; and

(4) If the permit is issued prior to the

RMP submittal date, a compliance

schedule for submittal of the RMP.

In addition, the RMP would be a

reporting and recordkeeping

requirement under part 70. There is no

requirement to include the RMP in the

permit.

EPA proposes that a ‘‘complete’’ RMP

would be one certified by the source to

contain all necessary elements in

sufficient detail to meet part 68. The

necessary elements of an RMP are

contained in proposed § 68.50, and new

§§ 68.13 and 68.14. As general criteria

for completeness, an RMP would need

to address all aspects of the three main

elements of the risk management

program, i.e., hazard assessment,

prevention program, and emergency

response program. EPA intends to issue

guidance to assist sources and

permitting authorities in determining

completeness of RMPs, including a

checklist addressing the required

elements of an RMP.

The completeness review of the RMP

would be independent of the

completeness determination for the

permit application. While the RMP may

be submitted with the permit

application, in most situations the RMP

will be submitted separately on its own

deadline, since almost all permit

applications will have been submitted

well in advance of the RMP deadline.

Accordingly, if another state or local

agency has received 112(l) delegation as

the implementing agency for section

112(r), EPA presumes that agency,

under a cooperative agreement with the

permitting authority, could determine

completeness of the RMP. In this

situation, the state should establish

appropriate procedures to ensure review

of the plan for completeness. For

example, the agreement could specify

that the permit authority would not be

obligated to review the RMP for

completeness and could write the

permit to require submittal of the RMP

only to the state or local implementing

agency, rather than to the permitting

authority. Or, the state might decide that

the permitting authority should retain

the responsibility to review the RMP for

completeness, even if another state or

local agency has been designated as the

implementing agency. EPA requests

comment on this approach and whether

a designated agency should also include

EPA, provided that EPA and the

permitting agency agree that EPA

should take on the completeness review

responsibility as the implementing

agency.

The proposed permit conditions

should ensure a complete RMP

submittal, because failure to comply

with these conditions would be

enforceable as a permit violation. Other

permit conditions would call for the

source to submit a compliance schedule

if it has not yet completed its RMP, to

provide any information requested to

determine the RMP’s completeness, and

to revise, update, and resubmit existing

RMPs according to part 68 criteria. For

example, when a source covered by

section 112(r) and part 70 revises its

process to add or eliminate a regulated

substance, the source would need to

prepare a revised RMP according to

§ 68.50(h) and submit it to the air

permitting agency within 6 months.

Failure to do so would potentially be a

violation of both parts 68 and 70.

Further, the permit would require a

certification of the source’s

implementation of its risk management

program, as described by the RMP. With

the possible exception of the

compliance schedule, EPA believes

these permit conditions will be standard

terms applicable to all part 70 sources

subject to 112(r). EPA believes these

standard terms would live on in the

permit after submittal of the RMP, and

there would be no reason to change

them after an RMP is submitted or

revised.

EPA is not proposing any specific

requirements for part 70 permit

applications beyond those already

required in § 70.5, particularly the

requirements that sources must cite and

describe all applicable requirements,

certify compliance with those

requirements, or submit compliance

schedules as necessary. Sources that

submit applications after promulgation

of part 68 would cite and describe part

68 as the applicable requirement, certify

compliance (or that the source will

comply in the future), and submit a

compliance schedule for meeting

section 112(r) deadlines. Sources that

handle greater than threshold quantities

of section 112(r) regulated substances

should be able to identify themselves as

potentially subject to section 112(r) in

their initial part 70 applications. EPA is

not requiring that the RMP be submitted

with the permit application. Given the

expected promulgation date of part 68

and the three-year compliance date for

submittal of the RMP, EPA expects

submittal of permit applications and

issuance of most permits will occur long

before the submittal deadline for RMPs

(with the possible exception of part 70

programs with source-category limited

interim approvals where it could take

five years from interim approval to issue

all permits).

EPA also believes it is not necessary

to require submittal of the RMP as a

permit revision at the submittal

deadline for the RMP. EPA is concerned

that permitting authorities may be

required by state law or regulation to

process the application and to

incorporate RMP information in the

permit if the RMP were included as part

of the formal permit application. This

result obviously would not be desired.

The purpose of reviewing the RMP for

completeness is to obtain a complete

RMP, not to initiate any form of permit

action. EPA seeks comment, however,

on whether it should require the RMP

as part of the permit application, or as

an addendum to the application or to

allow the permitting authority the

option to ask for the RMP in either form

for permit applications after the date

plans must be submitted.

Role of Part 70 Permitting Authority

Under today’s proposal the part 70

permitting authority or the designated

agency (for completeness review) would

be responsible for:
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13537

(1) Verifying that an RMP was submitted

when required and that it is complete,

i.e., it contains the elements required

under §§ 68.50, 68.13, or 68.14;

(2) Verifying that the source has

submitted an annual certification that

it is properly implementing a risk

management program as required by

part 68 and as described by the RMP;

(3) Taking enforcement action

(including penalties) for failure to

submit a complete RMP revised plan,

or the annual certification; and

(4) Incorporating and enforcing permit

conditions specifying a compliance

schedule for submittal of a complete

RMP.

These four tasks are the extent of the

responsibilities of the permitting

authority, unless it is granted delegation

under section 112(l) as the

implementing agency. Tasks (1) and (2)

could be transferred to another state or

local agency designated by the state

under a cooperative agreement.

The first task of the permitting

authority or designated agency would be

to determine if the RMP is complete.

The permit would require the source to

submit the RMP by the part 68 deadline;

part 68 would require the source to

certify as to the RMP’s completeness. If

the RMP or any revisions were

determined to be incomplete, the

permitting authority or designated

agency would notify the source that the

submittal was incomplete, state the

deficiencies, and give the source a

deadline to submit the requested

information and/or revise the RMP. EPA

requests comment on the definition of a

complete RMP.

The obligation to submit an RMP to

the permitting authority or designated

agency is a reporting requirement of a

permit, but the contents of the RMP are

not permit terms or conditions. Under

today’s rule, the completeness

determination required under proposed

§ 68.58(b)(1) is independent of the

completeness determination required by

CAA section 502(b)(6). It is not

necessary for the permitting authority to

provide public notice of completeness

findings. The permitting authority may,

however, wish to document and provide

the public with a notice of completeness

findings using electronic bulletin boards

or other mechanisms. EPA seeks

comments on this approach. EPA also

seeks comment on whether it should

establish deadlines for the

determination of completeness by the

permitting authority. EPA could select

the 60-day deadline used for part 70

application completeness; however,

EPA is aware that some states may find

this deadline too short if a high number

of part 70 sources are subject to 112(r).

EPA solicits comments on other

possible deadlines: six months, one

year, or by permit renewal.

The permitting authority or

designated agency must be able to

determine if a source is subject to the

requirement to submit an RMP. EPA

believes that this capability is already

required under part 70 since, under that

regulation, a permitting authority must

be able to ask for any specific

information that may be necessary to

implement and enforce other applicable

requirements or to determine the

applicability of such requirements

[§ 70.5(c)(5)]. Thus, if a source fails to

mention whether it is subject to 112(r)

in its permit application, the permitting

authority must have the authority to ask

for information on the application to

determine section 112(r) applicability.

This information must be included in

permit applications due before the

promulgation of part 68, since the

permitting authority or designated

agency must determine which permits

will require reopening after part 68 is

promulgated if standard permit

conditions reflecting part 68 are not

added. EPA believes this approach is

sufficient and is prepared to rely on the

resourcefulness of permitting authorities

in identifying sources subject to 112(r),

but solicits comment on whether EPA

should make more specific demands of

permitting authorities in determining

applicability with respect to section

112(r) requirements.

The implementing agency will have

the authority under § 68.60 to require

revisions to the RMP. Permitting

authorities may find, as a result of the

completeness review or during regular

part 70 inspections, that revisions are

necessary. The permitting authority

should share this information with the

implementing agency for appropriate

action. The implementing agency

should also share findings from RMP

reviews and source audits with the

permitting authority. EPA requests

comment on whether the permitting

authority should be able to require

sources to make revisions to an RMP

whenever the permitting authority

determines revisions are necessary.

In light of the possibility that at least

some permitting authorities may need to

expand their capabilities to meet these

new responsibilities, states should

reexamine several aspects of their

current part 70 program. First, states

should assess whether they have

adequate legal authority to review RMPs

for completeness, or to require their

submission if not part of a permit

application. Second, states should

determine if they have adequate

statutory and regulatory authority to

determine whether a source is subject to

part 68. This authority may be vested in

an emergency response agency. Third,

many permitting authorities may face

resource or budget constraints if

additional workload were taken on to

implement section 112(r) requirements.

This might require an adjustment in fee

schedules, because there is no reason to

assume a decrease in other workload

costs. States may wish to consider

raising title V fees for all sources, raising

permit fees only for sources subject to

both parts 70 and 68, or imposing a fee

on all sources subject to part 68 to

provide resources for state and local

program implementation. Permitting

authorities may be limited on the

amount of fees collectable for permit

activities. EPA requests comment on

alternative funding mechanisms or the

resource reductions in other programs

that may be necessary to complete the

responsibilities described in this notice.

Fourth, some permitting agencies may

need to obtain technical training in the

implementation of section 112(r)

requirements. EPA intends to provide

training and technical assistance to

implementing agencies and permitting

authorities.

Given these expectations, EPA is

prepared to presume that approved part

70 permit programs are adequate to

carry out the additional section 112(r)

requirements proposed today, unless the

Agency receives specific information to

the contrary. EPA also assumes that if

modifications to state part 70 permit

programs are necessary, they can be

made with minimal burden.

Finally, under the CAA provisions,

permitting authority liability would

generally be determined by state law.

Congress’s intent in enacting section

112(r) was not to expand liability for

any government entity. Liability

associated with implementation of

section 112(r) is addressed below.

Incorporation of Part 68 Requirements

Into Part 70 Permits

According to the CAA, once part 68

requirements are promulgated, existing

sources have three years to comply with

these requirements. New sources

constructed after promulgation of part

68 must comply by three years after

promulgation except that sources

constructed later than 3 years after

promulgation must comply upon

startup. However, until the risk

management program rule is

promulgated, the only applicable

requirement for sources is the List of

Regulated Substances and their

Thresholds rule under section 112(r)(3)–

(5). Thus, EPA expects that when a
13538 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

source submits a part 70 application

before part 68 is final, it would identify

to the permitting authority those

activities at the source that are subject

to the part 68 requirements according to

the list rule criteria, but state that the

risk management program requirements

are not yet applicable to it. This

identification is consistent with the

requirement in § 70.5(c)(5) for the

permit application to include specific

information necessary to determine

whether the source is subject to

applicable requirements.

Permits issued before promulgation of

part 68 will presumptively need to be

reopened at the time of promulgation of

part 68 and revised within 18 months to

include the part 68 permit requirements.

Alternatively, the permitting authority

could place the standard part 68 permit

conditions in a permit issued before

promulgation of part 68 and make the

conditions effective upon promulgation

of part 68. Unlike most MACT

standards, EPA believes the part 68

permit requirements will be essentially

standard conditions with little sourceto-source variation. Consequently,

incorporating part 68 requirements

(unless they were included during

initial permit issuance) should require

only the part 70 administrative

amendment process. As proposed in the

part 70 revisions for MACT standards,

the permitting authority or designated

agency should provide to the public a

list of sources whose permits are

proposed to be reopened. Public

comment on the list of sources could

help the permitting authority identify

other sources subject to section 112(r).

Reopened and reissued permits would

include all permit requirements of

§ 68.58, including a compliance

schedule for submittal of the RMP

according to part 68 deadlines. After

part 68 is promulgated, part 70 permits

and applications will be required to

contain compliance schedules which, in

part, require the submittal of a complete

RMP.

Solicitation of Comment on Alternatives

Although no specific alternatives are

proposed, EPA seeks comment on two

other approaches for the definition of

applicable requirements, permitting

authority responsibilities, and permit

content with respect to section 112(r).

EPA will consider various alternatives

offered by commenters between these

two approaches as alternatives to the

approach described above.

The first option places no additional

responsibilities on the permitting

authority beyond those set forth in

EPA’s guidance contained in an April

13, 1993, policy memorandum from

John Seitz, Director of the Office of Air

Quality Planning and Standards

(OAQPS), to EPA Regional Air Division

Directors (available in the docket). In

that memorandum, EPA required part

70 permitting authorities to obtain legal

authority sufficient to: (1) Determine

whether a source is obligated to register

and submit an RMP; (2) secure

verification from part 70 sources that

any required submittal was prepared

and submitted; (3) obtain annual

certifications from sources that the plan

is being implemented; and (4) include

as a permit condition a compliance

schedule for submitting a plan if the

source fails to submit the plan when

originally due. Unlike today’s proposal,

this option does not require the

permitting authority to determine

completeness of the plan. It does not

make specific requirements with respect

to the content of part 70 permits. This

option would not rely significantly on

part 68 to expand or clarify the April 13

guidance.

An advantage of this approach is that

it imposes no additional expectation on

part 70 agencies or sources subject to

both part 68 and part 70 beyond the

April 13, 1993, policy memorandum.

Therefore, permitting authorities would

not be expected to reassess current legal

authority, resources or fee structure for

adequacy in implementing section

112(r).

However, the April 13 policy

guidance was prepared before the risk

management program rule was proposed

and before public comments were

received indicating that the relationship

between part 70 and part 68 was not

clear. Further, the April 13 criteria do

not account for implementation of the

risk management program by the source

(as opposed to implementation of the

plan) and there is no review of the RMP

by the permitting authority to ensure

that the plan contains the elements

required by part 68. Consequently, in a

June 24, 1994, memorandum (available

in the docket) from John Seitz and Jim

Makris, Director of the Chemical

Emergency Preparedness and

Prevention Office (CEPPO), to EPA

Regional Division Directors, EPA

indicated that the ‘‘approval criteria in

the April 13 memorandum * * * may

not be sufficient to ensure compliance

with all ‘applicable requirements’

established in the risk management

program rule.’’ By not requiring a

review of the RMP for completeness or

setting forth standard permit conditions

that would assure compliance with part

68, the permitting authority’s role in

implementing section 112(r) relies

mainly on the certification of submittal

of the RMP by the source. Air permitting

authorities would be unable to assure

compliance with the requirements of

part 68 as required unless another state

or Federal implementing agency agrees

to become the designated agency for that

state and is willing to certify for the air

permitting authority that the RMP is

complete. Such a program may fall short

of minimal title V statutory

requirements of assuring compliance

with all applicable requirements. The

Agency requests comment on whether

the permitting agency may be able to

satisfy title V by certification by the

implementing agency.

A second approach at the opposite

end of the spectrum would require

permits to address all the hazard

assessment, prevention program, and

emergency response program activities

under part 68, in addition to the

registration, RMP submission, program

implementation and plan revision

requirements. Each requirement in part

68 would be specified as a permit

condition. For example, the permit

would include a requirement for prestartup safety reviews of all process

changes or that accidental release

mitigation equipment at the source (e.g.,

spray curtains) be tested monthly. Upon

part 68 promulgation, all existing

permits at part 70 sources would need

to be reopened to add permit conditions

relative to section 112(r). The permitting

authority would need to examine

carefully each RMP and risk

management program at each permitted

source to make sure it is complete and

to craft the permit conditions specific to

each source and then issue a new

permit. Permitting authorities would be

expected to perform periodic

inspections of each permitted source to

verify whether the risk management

program was being implemented as

described by the RMP, to examine

program implementation to verify

compliance with permit conditions, and

to determine whether the RMP needed

to be revised as a result of permit

conditions or changes at the source.

This approach would be consistent

with approaches for implementation of

emission standards or other air toxics

provisions under titles III and V of the

Clean Air Act because it would

consolidate the essential elements of the

source’s compliance requirements in the

permit and would ensure the full

involvement of the permitting authority

in chemical accident prevention. It also

would provide significant enforcement

leverage through the permit and through

inspections to ensure compliance with

the source’s risk management program

and with the part 68 requirements.

This approach still does not call for

the permitting authority to perform
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13539

audits or to examine the quality of the

RMP or program, which EPA believes is

the responsibility of the implementing

agency. It does, however, impose

considerable resource and expertise

burden on the permitting authority. EPA

does not believe it is appropriate to

include risk management program

elements as permit conditions since

these elements will be highly sourcespecific and subject to change as the

source develops and implements its

program. The permit would need to be

changed every time the program or plan

changed. This approach appears to go

well beyond the need for part 70

permits to assure compliance with

applicable section 112(r) requirements

and duplicates other local, state, and

Federal efforts.

There may be alternatives to the two

extremes described in this section and

to the proposed approach. EPA requests

comment on other alternatives. EPA also

requests that if other approaches are

offered, commenters address the

advantages and disadvantages of the

approach with respect to the parts 68

and 70 programs and to the overall

chemical emergency prevention,

preparedness, and response effort.

Implementation of Section 112(r) for All

Sources

Congress intended a Federal-state

partnership in implementing all of

section 112, including section 112(r).

The implementation envisioned by

Congress for accident prevention

focuses on coordination and sharing of

accident prevention information among

various state and local agencies within

the same state. Implementation of

section 112(r) means that the

implementing agency takes

responsibility for the compliance and

enforcement of section 112(r)

requirements. Further, section

112(r)(7)(B)(iii) indicates that EPA shall

establish, by rule, an auditing system to

review regularly and, if necessary,

require revision in RMPs. Although

permitting authorities are responsible

for assuring part 70 source compliance

with part 68 requirements, EPA believes

that the implementing agency should

take responsibility for RMP reviews and

audits. Consequently, EPA believes the

implementing agency must: (1) Receive

part 68 registrations; (2) inspect sources

for compliance, regulatory development,

and enforcement; (3) receive, review,

and periodically audit RMPs according

to § 68.60; and (4) require revision of

plans when necessary to ensure

compliance with the requirements of

part 68.

In the proposed rule, ‘‘implementing

agency’’ was not defined. EPA is

proposing to define implementing

agency as the state or local agency that

obtains delegation for an accidental

release prevention program under

subpart B of part 63 under section

112(l). The implementing agency could,

but is not required to be the state or

local air permitting authority. EPA

encourages the permitting authority to

assess its capabilities with respect to

carrying out the duties of the

implementing agency and, if

appropriate, seek delegation for part 70

sources. If a state or local agency does

not take delegation, EPA would assume

the responsibility for implementation of

section 112(r).

EPA is also proposing that

implementing agencies develop their

own scheme to prioritize RMP reviews,

audits, and source inspections using

criteria as proposed in § 68.60. EPA

would not specify the number of

inspections, reviews, or audits to be

completed. Alternatively, EPA could

require that an implementing agency

review all RMPs within five years of

submission, or that no less than all Tier

3 submissions be reviewed and audited

within five years of submission, or that

a certain percentage (for example, 1.5

percent of all plans or only those in

certain tiers), be reviewed and audited

within five years of submission. In

addition, while paper reviews of the

RMPs are important, it is critical that

implementing agencies perform audits

at facilities to examine and compare

actual prevention practices at the source

with information contained in the RMP.

EPA recognizes that this effort can

consume considerable resources and

require particular expertise for

implementing agencies. EPA plans to

issue guidance for implementing

agencies on review and audit criteria

and to develop training for inspections,

reviews, and audits. In addition, EPA

would propose that implementing

agencies make use of safety audits

performed by sources, as required by

OSHA PSM (29 CFR part 1910.119(o))

and proposed § 68.38, as part of this

inspection process. The implementing

agency can use this information not

only to determine whether the source is

making progress toward accident

prevention, but also to offer assistance

to sources. EPA requests comment on

whether a minimum number of reviews

and audits should be established and, if

so, the minimum number, Tier and the

basis for the minimum number and Tier,

and the tools and training that should be

developed to assist implementing

agencies with audits at sources.

State and local involvement in the

implementation of the section 112(r)

requirements for all sources is critical to

the success of the accident prevention

program. In addition, air pollution

control, worker safety, pollution

prevention, and public safety goals can

be achieved most effectively only

through the direct involvement of state

and local officials. EPA expects that

SERCs, LEPCs, and other state and local

emergency preparedness and response

organizations will make full use of the

chemical emergency prevention,

preparedness, and response information

in the RMP, regardless of which agency

is implementing the section 112(r)

requirements.

A streamlined and cohesive section

112(r) program will be best achieved if

a state or local agency takes delegation

to be the implementing agency for all

section 112(r) sources. The use of tiered

approaches to implement the 112(r)

program would assist states by enabling

them to focus their greatest accident

prevention efforts on those sources that

pose the greatest potential risk to the

community. These approaches attempt

to minimize the additional effort needed

by states to cover all section 112(r)

sources. Table 1 below shows the kinds

of effort and expertise necessary for

review and audit of RMPs. If a state or

local organization has the resources and

expertise and is willing to become an

implementing agency for part 70

sources, EPA encourages it to consider

becoming an implementing agency for

all 112(r) sources, since the organization

would have had the experience of

dealing with the most complex RMPs,

reviews, and audits of part 70 sources.

EPA believes that divided

implementation of 112(r) for part 70

sources and non-part 70 sources,

between EPA and state and local

agencies, could cause considerable

confusion for the regulated community

and lead to ineffective and

uncoordinated chemical accident

prevention. Implementation for all

sources by one state organization could

serve to bring the state and local

coordination needed to achieve broad

environmental, worker, and public

safety goals.
13540 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

TABLE 1.—COSTS TO IMPLEMENTING AGENCY

Risk management program

and plan activity

National annualized implementation costs ($mm)

Until 1999 1999 to 2004 Yearly after 2004

Approach 1 Proposed rule Approach 1 Proposed rule Approach 1 Proposed rule

Program management ...................... 1.3 1.3 1.8 1.8 1.8 1.8

Auditor training ................................. 0.3 0.3

Technical help for sources ............... 0.5 0.5 0.3 0.3 0.08 0.08

Workshops/training ........................... 0.4 0.4 0.15 0.15

RMP filing ......................................... 0.06 0.06 0.05 0.05

Initial review of plan .......................... 0.5 1.1 0.5 1

Audits ................................................ 0.6 1.9 0.5 1.6

Totals ..................................... 2.6 2.6 3.5 5.4 2.6 4.2

[Note that the columns do not add to the total because EPA-only activities including registration and regional oversight are not included in the

table. All costs are annualized and discounted at a 4 percent rate. Approach 1 refers to the Tiering section. It assumes accident history is used

to segregate sources into tiers. The initial review and audits of Tier 2 sources should take 1 hour and 2 hours, respectively and that all Tier 2

manufacturers would be audited every 10 years. Non-manufacturers would be audited every 10 or 20 years. These figures are likely to be upperbound estimates; actual costs will vary based on the degree of selective program oversight necessary and cost savings as experience is gained.]

State or local organizations that want

to become an implementing agency for

section 112(r) can seek delegation under

section 112(l). Section 112(l) contains

the processes for (1) formally

transferring implementation and

enforcement responsibility from EPA to

a state or local agency; (2) transferring

responsibility for ensuring source

compliance with section 112

requirements to an agency other than

the permitting authority; and (3)

allowing states to implement and

enforce their own toxics requirements in

lieu of Federally promulgated section

112 requirements. EPA’s implementing

regulations for section 112(l) outline

several mechanisms for approval of state

and local air toxics programs and for

delegation of federal authorities to state

or local agencies (58 FR 62262;

November 26, 1993). Permitting

authorities with approved part 70

programs are well equipped to seek

delegation as the implementing agency

for part 70 sources, since the state’s

permit program contains adequate

authorities, adequate resources for

implementation, and an expeditious

compliance schedule as required under

section 112(l)(5).

Each state has the flexibility to place

the program in an appropriate agency,

including with the air permitting agency

if it so desires. A state may want to

consolidate both its occupational safety

and process safety management

programs in its worker safety agency.

Some states may wish to have an agency

that is currently a member of the SERC,

but not the air permitting authority,

serve as the implementing agency,

provided it can meet the approval

criteria of section 112(l) and coordinate

its activities with other affected state/

local programs. In states where the

SERC itself is a state agency, the state

may want the SERC to be the

implementing agency. EPA is requesting

that states that provide comments on

this notice indicate if they plan to

implement the program, and if so,

whether an agency that currently is a

member of the SERC, or if the SERC

itself will take responsibility.

EPA recognizes that states have

concerns about resources, availability of

expertise, and possible liability

associated with accidental release

prevention. EPA plans to develop

guidance and training and provide

assistance to states to help build

expertise and to illustrate how effective

programs can be developed and

implemented. EPA seeks input on the

types of training and technical

assistance states and local agencies will

need to promote efficient and effective

implementation of section 112(r)

regulations for all sources. The model

RMPs being developed for specific

industry sectors and technical guidance

to help sources comply with the

accidental release prevention

requirements also are designed to

minimize the burden on state and local

programs. EPA seeks input on the types

of guidance in support of program

implementation that would be most

useful to states.

EPA agrees that Congress did not

provide funding for implementation of

non-part 70 sources. EPA is exploring

the possible expansion of CAA section

105 grants to fund state programs that

will cover non-part 70 112(r) sources.

State and local organizations may also

wish to consider opportunities for

collecting fees specifically for section

112(r) activities, similar to fee-based

systems used for funding EPCRA

activities. Some states have established

‘‘polluter-pays’’ type fee systems that

are based on multiples of the threshold

quantity of extremely hazardous

substances or section 112(r)(3) regulated

substances handled at the source.

Sources could be required to submit a

fee to the implementing agency with

their registration or with their RMP.

EPA seeks comment on these

approaches, particularly with respect to

the experience of states that have tried

or are developing user fee systems.

Finally, states have raised concerns

about possible liability associated with

the section 112(r) program. Section

112(r), unlike other CAA requirements

that deal primarily with chronic

hazards, involves acute hazards with the

potential for catastrophic accidents

resulting in immediate deaths and

injuries. Generally, the liability of state

and local entities for their actions in

handling section 112(r) information

would be controlled by state law

concerning governmental immunity. As

the CAA and the legislative history of

section 112(r) make clear, Congress did

not intend to create new liability for

governmental entities when it enacted

the accident prevention provisions.

Specific language in section 112(r)(1)

was included to provide liability

protection to governments and to avoid

arguments from industry that the filing

of plans with emergency planners

somehow immunized a company from

liability. Section 112(r)(1) states that,

‘‘Nothing in [section 112(r)] shall be

interpreted, construed, implied, or

applied to create any liability or basis

for compensation for bodily injury or

any other injury or property damages to

any person which may result from

accidental release of such substances.’’

The Environment and Public Works

Committee inserted the above-quoted

provision into the Senate’s version of

the CAA Amendments explicitly

because of EPA’s concern that the

general duty clause and other portions

of the accident prevention provisions

would create some governmental
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13541

liability in the event of an accidental

release. (S. Rep. No. 228, 101st Cong.,

1st sess., at 210 (1989).) EPA expressed

concern that liability in the event of an

accident would shift to the government

if a source identified a potential event

in a hazard assessment, and the Agency

failed to require the source to remove or

reduce the hazard. (Id.) Another fear

was that an owner or operator would

argue that the Agency’s failure to

require a hazard to be addressed would

be a defense for a source in a liability

suit for injuries or damages caused to a

third party. (Id.) To prevent either

result, the Environment and Public

Works Committee included in the

precursor of section 112(r)(1) virtually

identical language to that quoted above.

(Id.)

State and local agencies are

encouraged to work with their attorneys

general to determine the extent of their

sovereign immunity under state law.

Under common law or statute, nearly all

states have retained some immunity

from tort suit. One common law theory

of sovereign immunity that may apply

in several states would be the immunity

that extends to purely governmental

activities, as distinguished from

proprietary activities. Emergency

prevention and response activities

would be examples of traditional

governmental activities under this

theory. Another immunity theory that

may apply provides immunity for

discretionary activities (activities that

involve judgment). Other states may

have enacted specific legislation that

prevents governments from being sued

for activities connected to emergency

response. If a state, in the judgment of

its attorney general, lacks sufficient

sovereign immunity to ensure state and

local agencies will not be subject to

liability for bodily injury or property

damage in the event of an accidental

release, then EPA encourages the state

to enact legislation specifically

providing immunity for state and local

agencies carrying out functions under

section 112(r). Of course, even with

sovereign immunity from tort suits,

EPA, states, and local entities may

remain subject to FOIA suits, penalties

for violation of trade secret protections

under section 114(c), or mandatory duty

suits (such as EPA’s failure to

promulgate regulations or act on listing

petitions) that may allow for attorney’s

fees.

III. Required Analyses

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735; October 4, 1993), EPA must

determine whether the regulatory action

is ‘‘significant,’’ and therefore subject to

OMB review and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

state, local, or tribal government or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Under the terms of the Executive

Order 12866, it has been determined

that this rule is a ‘‘significant regulatory

action.’’

EPA prepared a draft regulatory

impact analysis for the proposed list

rule and an addendum to the analysis

for the proposed risk management

program rule. EPA has prepared a

revised economic impact analysis (EIA)

for the risk management program rule to

reflect the final list rule, the impacts of

the options being considered in this

notice, and comments on the draft

regulatory impact analysis. The revised

EIA is available in the docket.

In developing its supplemental notice,

EPA considered creating three tiers for

risk management program requirements

described above. EPA analyzed the three

options for assigning sources to the

tiers, approaches 1 and 2 described in

Section IIA above and the application of

the proposed rule to all sources as

approach 3. Total annual costs and

benefits for each approach are presented

in Table 2. This table does not include

projected costs or benefits associated

with three issues upon which EPA is

taking comment in this notice: public

participation, accident reporting, and

inherently safer approaches because

EPA’s preferred approaches on these

issues would impose no additional

requirements on sources.

TABLE 2.—TOTAL ANNUALIZED COSTS AND BENEFITS

Approach Number of sources Annual cost of program Annual benefits of programs

1 ................................ 49,200 (Tier 1) ..................................... $104 million ......................................... $121.5 million.

72,100 (Tier 2).

1,300 (Tier 3).

2 ................................ 49,200 (Tier 1) ..................................... $339 million ......................................... $175 million.

57,100 (Tier 2).

16,300 (Tier 3).

3 ................................ 122,600 (Tier 3) ................................... $696 million ......................................... $299 million

Based on the final list and thresholds,

EPA estimates that approximately

122,600 sources would be affected by

the proposed rule. The primary cost for

Tier 2 was assumed to be the RMP. Tier

3 costs are strongly influenced by the

tiering assumptions and by whether

sources are expected to be covered by

the OSHA PSM standard. The analysis

assumed that a source in compliance

with the OSHA PSM standard for a

process would incur no additional costs

to comply with many elements of EPA’s

prevention program. In addition, for

some prevention program elements (e.g.,

training), some sources were assumed to

be in compliance because of current

activities; the only additional cost for

these sources was documentation for the

element. Large chemical companies and

all refineries were assumed to be

complying with industry standards that

are the equivalent of the prevention

program. These sources were assumed

to bear no additional costs for some

elements of the prevention program (for

processes not covered by OSHA).

Because EPA will require sources to

submit, in the RMP, information on

their hazards and steps being taken to

reduce risks, EPA expects that sources

and processes currently implementing

PSM under OSHA or industry standards

will take additional steps to ensure that

their PSM programs are effective.

Specifically, the EIA assumed that
13542 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

sources covered by other programs

would provide more program oversight,

would conduct more training and

refresher training, and carry out more

maintenance activities; sources were

also assumed to implement more capital

improvements. EPA notes that because

of a lack of data, the EIA made a number

of assumptions on which the cost

estimates are based. For example, the

analysis assumed the number of listed

toxic substances at large chemical

companies ranged from 4 to 12; the

analysis also assumed that the number

of covered processes was equal to the

number of substances. EPA seeks

comments and any data commenters

may be able to provide on whether these

assumptions are reasonable.

The draft RIA prepared for the

proposed list rule based its benefits

calculations on the assumption that

manufacturers and certain other sources

would have two significant releases per

year. Many commenters stated that this

assumption was not justified, based on

existing accident data. Consequently,

the benefits analysis has been revised to

reflect actual accident data and is based

on EPA databases, other accident

databases, and searches of newspaper

reports. Based on these data, the

annualized cost of all U.S. accidents

involving listed toxic substances was

estimated at $245 million; the

annualized cost of all accidents

involving listed flammables was

estimated at $767 million. The costs of

accidents includes deaths, injuries,

evacuations, property damage, lost

business, environmental damage, and

litigation.

Benefits attributable to the risk

management program rule are affected

by two factors: The extent to which

other, similar rules already provide the

benefit and the expected effectiveness of

these rules when fully implemented.

Most of the processes covered by EPA’s

rule are also covered by the OSHA PSM

rule. When OSHA adopted the PSM

standard, it estimated, based on

anecdotal evidence, that by 1997 the

standard would prevent 80 percent of

the accidents at OSHA-covered sources.

EPA believes that the risk management

program rule will increase compliance

with the OSHA standard and cause

many OSHA- and EPA-affected sources

to achieve a higher level of safety

because of the public availability of the

RMP and the reviews and audits that

will be conducted by implementing

agencies. The RMP submission will

provide implementing agency officials

with a better basis for identifying and

targeting problem sources; EPA expects

that the RMP information will also

benefit state and Federal OSHA

inspectors.

Based on an industry study, the

analysis estimated that the effectiveness

of the EPA standard in accident

reduction would be 50 percent.

Accident reduction from the EPA

standard applies to processes not

covered by the OSHA standard and to

the 20 percent of accidents not

prevented by the OSHA standard. EPA

estimates that the annual, quantifiable

benefits of the rule will range from

$121.5 million to $299 million,

depending on the approach.

The quantifiable benefits are probably

understated. Although the EIA assigns a

value to the likelihood of a Bhopal-scale

accident occurring in the U.S. in any

single year, the analysis did not attempt

to assign values to other catastrophic

accidents that have occurred elsewhere

in the world, but have not as yet

occurred in the U.S. For example, the

1984 explosion at a LPG gas terminal in

Mexico City killed more than 400

people offsite; an explosion in

Flixborough, England, damaged more

than 1,000 buildings offsite. Similar

sources exist in the U.S. and have the

potential to have catastrophic accidents

with offsite impacts. Because of the

difficulty of assigning probabilities and

values to such incidents, the EIA does

not include them among the

quantifiable benefits, but these sources

are covered by the proposed rule, and

compliance with the rule will reduce

the likelihood of such catastrophic

accidents.

Other, intangible benefits are also

attributable to the rule. For example, the

definition of offsite populations, using

Census data, will assist both sources

and the public to identify areas where

environmental justice concerns need to

be addressed. The process hazard

analysis is likely to identify areas where

pollution prevention steps can be

implemented, which may produce cost

savings and reduce potential health

effects offsite.

Most importantly, the information

available in the RMP will have an

intrinsic value to the public. EPA has

not attempted to measure the value of

this information, but experience with

EPCRA Toxic Release Inventory (TRI)

data indicates that such information

creates many benefits. The simple

requirement to make information public

under TRI has stimulated industry to

take steps to reduce emissions to avoid

public concern and assure the local

community that the source is a good

neighbor. The public benefits from the

reduced risk; the source benefits from

better relations with the community.

The latter can have direct, economic

benefits to the source. Industry

commenters on the rule noted that when

the public distrusts a source, the public

has resisted permit changes or zoning

variances that the source needs to

improve operations. Better information

and the public-industry dialogue that

follows can make it easier for sources to

gain public support for needed changes.

Government agencies and public

interest groups can target their efforts at

those sources that pose the greatest

potential risk, rather than assuming that

all sources pose a high level of risk or

misdirecting their efforts toward sources

that have effective safety programs.

B. Regulatory Flexibility Act

In accordance with the Regulatory

Flexibility Act of 1980, Federal agencies

must evaluate the effects of the rule on

small entities and examine alternatives

that may reduce the effects. EPA has

prepared an analysis of the effects on

small entities, available as Chapter 8 of

the EIA. EPA believes that the rule as

proposed in 1993 would create a severe,

adverse effect on small manufacturers.

For the smallest chemical

manufacturers, the initial costs of the

initial proposed rule could equal their

annual net income; for chemical

companies with 20 to 99 employees, the

initial cost of the proposed rule would

approach their annual net incomes. The

initial proposed rule imposes lower

costs on non-manufacturers and,

therefore, is less likely to create an

adverse impact on them. The tiering

approach considered in this notice

would reduce the impact on small

businesses significantly. Under the

tiering approach, the impact on small

business would be small. The tiering

approach would also substantially

reduce the impact on small

communities.

C. Enhancing the Intergovernmental

Partnership

The Clean Air Act requires EPA to

develop chemical accident prevention

regulations under section 112(r)(7) that

include release prevention and response

provisions, including RMPs. As

discussed above, Congress intended the

states to play a key role in implementing

the rule. Both state and local agencies

are mandated to receive the RMPs. This

interrelationship of Federal, state, and

local agencies is a continuation of the

philosophy developed under EPCRA,

where each level of government is seen

as a stakeholder with important roles to

play. To consult in a regular and

meaningful way with state, local, and

tribal officials in the development of the

risk management program rule, EPA has

met with state and local officials. Before
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13543

the proposed rule was drafted, EPA

conducted focus groups with state and

local officials in three states that had

risk management program laws. EPA

invited these states and several others to

attend a two-day seminar to elicit

further information. EPA has held

meetings with states several times

during the rule-making process, working

through its Regions and through

associations of state officials likely to be

involved in implementing the rule. In

addition, a large number of state and

local agencies attended the four public

hearings and submitted comments on

the proposed rule. During the

development of the implementation and

integration provisions (§ 68.58), EPA

consulted with state and local air and

emergency planning agencies. EPA will

seek further input from states during

development of the final rule.

D. Paperwork Reduction Act

The information collection

requirements in this notice have been

submitted for approval to the Office of

Management and Budget (OMB) under

the Paperwork Reduction Act, 44 U.S.C.

3501 et sec. An Information Collection

Request document has been prepared by

EPA (EPA No. 1656.02) and a copy may

be obtained from Sandy Farmer,

Information Policy Branch; EPA, 401 M

Street, SW (Mail Code 2136),

Washington, DC 20460 or by calling

(202) 260–2740.

This collection of information has an

estimated reporting burden averaging 3

to 4 hours per response for Tier 1, 16 to

30 hours per response for Tier 2, and for

Tier 3 10 to 88 hours per response for

non-chemical manufacturers and 392 to

3720 hours per response for chemical

manufacturers. There is no annual

recordkeeping burden for Tiers 1 and 2;

in Tier 3 there is an estimated annual

recordkeeping burden per respondent

averaging 11 hours (for the nonchemical industry) to 1000 hours (for

the chemical industry). These estimates

include time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information.

Send comments regarding the burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing this burden to

Chief, Information Policy Branch; EPA,

401 M Street, SW (Mail Code 2136),

Washington, DC 20460; and to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, Washington, DC 20503, marked

‘‘Attention: Desk Officer for EPA.’’ The

final Rule will respond to any OMB or

public comments on the information

collection requirements contained in

this proposal.

List of Subjects in 40 CFR Part 68

Environmental protection, Chemicals,

Hazardous substances,

Intergovernmental relations.

Dated: February 28, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, the proposal published on

October 20, 1993 (58 FR 54190) is

amended as set forth below.

PART 68—[AMENDED]

1. The authority citation for part 68

continues to read as follows:

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

2. Section 68.3 as proposed is now

amended by revising the introductory

text, adding five definitions and revising

one proposed definition ‘‘Worst case

release’’ to read as follows:

§ 68.3 Definitions.

As used in this part, all terms not

defined shall have the meaning given to

them by the Clean Air Act (42 U.S.C.

7401 et seq.). For purposes of § 68.58 of

this part, terms such as ‘‘permitting

authority,’’ ‘‘applicable requirement’’

and ‘‘source’’ have the same meaning

given to them in part 70 of this chapter

unless otherwise defined in this section.

* * * * *

Covered process means a process that

has a regulated substance present in

more than a threshold quantity as

determined under § 68.115.

* * * * *

Designated agency means the state or

local agency designated by the air

permitting authority as the agency

responsible for the review of an RMP for

completeness.

Full-time employee means 2,000

hours per year of full-time equivalent

employment. A source would calculate

the number of full-time employees by

totaling the hours worked during the

calendar year by all employees,

including contract employees, and

dividing that total by 2,000 hours.

Implementing agency means the state

or local agency that obtains delegation

for an accidental release prevention

program under section 112(l) of CAA

which is subpart E of part 63. The

implementing agency may, but is not

required to be, the state or local air

permitting agency. If a state or local

agency does not take delegation, EPA

will be the implementing agency for that

state.

Mitigation means activities,

technologies or equipment that are

designed to capture or control

substances after they are released to the

environment or upon loss of

containment. Passive mitigation means

equipment, devices or technologies that

function without human, mechanical or

other energy input.

* * * * *

Worst case release means the release

of the largest quantity of a regulated

substance resulting from a vessel or

process line failure.

3. Section 68.10 as proposed is

revised to read as follows:

§ 68.10 Applicability.

(a) Tier 1. The owner or operator of a

stationary source with a covered process

that meets the eligibility criteria of

§ 68.13 shall comply with §§ 68.12—

68.13 no later than [three years from the

date of final rule publication].

Alternative 1 for paragraphs (b), (c)

and (d):

(b) Tier 2. Except as provided in

paragraphs (a), (c), and (d) of this

section, the owner or operator of a

stationary source with a covered process

shall comply with §§ 68.12 and 68.14 no

later than [three years after the date of

final rule publication].

(c) Tier 3. Except as provided in

paragraph (a) of this section, the owner

or operator of a stationary source with

100 or more full-time employees shall

comply with §§ 68.12 and 68.15 through

68.55 no later than [three years from the

date of final rule publication] for any

covered process in Standard Industrial

Classification Code 2611, 2812, 2819,

2821, 2869, 2873, 2879, or 2911. For all

other covered processes at the stationary

source, the owner or operator shall

comply with §§ 68.12 and 68.14.

(d) Deferred Tier 3. Except as

provided in paragraph (a) of this

section, the owner or operator of a

stationary source that has 20 or more

full-time employees and a covered

process in Standard Industrial

Classification Code 2812, 2819, 2869,

2873, or 2911 shall:

(1) Comply with §§ 68.12 and 68.14

no later than [three years from the date

of final rule publication]; and

(2) Comply with §§ 68.12 and 68.15

through 68.55 no later than [eight years

from the date of final rule publication].

Alternative 2 for paragraphs (b) and (c):

(b) Tier 2. Except as provided in

paragraphs (a) and (c) of this section, the

owner or operator of a stationary source

with a covered process shall comply

with §§ 68.12 and 68.14 no later than

[three years after the date of final rule

publication].

(c) Tier 3. Except as provided in

paragraph (a) of this section, the owner

or operator of a stationary source with
13544 Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules

a covered process shall comply with

§§ 68.12 and 68.15 through 68.55 no

later than [three years from the date of

final rule publication] if the stationary

source has 100 or more full-time

employees.

4. Section 68.13 is proposed to be

added to subpart B to read as follows:

§ 68.13 No impact sources (Tier 1).

(a) Sources that exceed a threshold

quantity only for flammable or explosive

regulated substances.

(1) Eligibility. The owner or operator

of a stationary source that is subject to

this part and that does not exceed the

threshold quantity for a toxic substance

shall comply with paragraph (a)(2) of

this section if the source has not had

significant accidental release for 5 years

and:

(i) For a source that exceeds the

threshold for an explosive regulated

substance, the source is subject to 27

CFR part 55 or 30 CFR parts 56, 57, or

77 and the distance from the process to

a public or environmental impact is no

closer than the distance to inhabited

buildings provided in the American

Table of Distances (27 CFR 55.218) for

the quantity of explosives in the

process; or

(ii) For a source that exceeds the

threshold for a flammable regulated

substance, the distance from the point of

release under the worst case release

scenario to a public or environmental

impact is greater than the distance as

calculated using the following formula

for the maximum quantity present in the

process:

Distance (meters) = 0.15 × (0.1 x mass

× hc)1/3

where mass is the quantity of flammable

substance in kilograms, and hc is the

heat of combustion in Joules per

kilogram.

(2) Program and plan requirements. (i)

The owner or operator shall place a sign

at all normal access routes that warns

the public and emergency responders

concerning the hazard presented by the

regulated substance at the site and

provides an emergency contact

telephone number. Such sign shall be in

English and any other language

commonly spoken as a primary

language in the area.

(ii) The owner or operator shall

submit the following as a risk

management plan to the implementing

agency, the State Emergency Response

Commission (if the implementing

agency is not a member of such

Commission), the Local Emergency

Planning Committee with jurisdiction

for the area where the source is located:

(A) A copy of the registration required

by § 68.12 (this copy may be before the

certification required by § 68.12(b)(6));

(B) The following statement:

Based on the criteria in 40 CFR 68.13(a)(1),

the worst case accidental release for the

source described on the attached form

(registration) presents no potential for public

or environmental impact given the nature of

the process and the chemicals stored at the

source. For the past 5 years, this source has

not had a significant accidental release, as

defined in 40 CFR 68.3. No additional

measures are necessary to prevent public and

environmental impacts from accidental

releases. In the event of a fire or a release of

the regulated substance indicated on the

registration, entry within [distance for given

quantity of regulated substance under

American Table of Distances or paragraph

(a)(1)(ii) of this section] of the source may

pose a danger to public emergency

responders. Therefore, public emergency

responders should not enter this area except

as arranged with the contact person indicated

on the registration. The undersigned certifies

that, to the best of my knowledge,

information, and belief formed after

reasonable inquiry, the information

submitted is true, accurate, and complete.

[Signature].

(iii) The owner or operator shall

maintain for five years documentation

of the determination of eligibility under

paragraph (a)(1) of this section and a

copy of the risk management plan under

paragraph (a)(2)(ii) of this section.

(b) Sources that exceed a threshold

quantity for toxic regulated substances.

(1) Eligibility. The owner or operator

of a stationary source that exceeds the

threshold quantity for a toxic substance

shall comply with paragraph (b)(2) of

this section if:

(i) The stationary source has not had

a significant accidental release in the

last five years,

(ii) The stationary source can

demonstrate the lookup table distance

for a worst-case release is less than the

distance to a public or environmental

receptor; and

(iii) The emergency response plan

under 42 U.S.C. 11003 addresses

appropriate response to an accidental

release at the source.

(2) Plan and program requirements. (i)

The owner or operator of a stationary

source that meets the eligibility criteria

of paragraph (b)(1) of this section shall

submit the following as a risk

management plan to the implementing

agency, the State Emergency Response

Commission (if the implementing

agency is not a member of such

Commission), and the Local Emergency

Planning Committee with jurisdiction

for the area where the source is located:

(A) A copy of the registration required

by § 68.12 (this copy may be before the

certification required by § 68.12(b)(6));

(B) The following statement:

Based on the criteria in 40 CFR 68.13(b)(1),

the worst case accidental release for the

source described on the attached form

(registration) presents no potential for public

or environmental impact within lll

kilometers of the source given the nature of

the process and the chemicals stored at the

source. For the past 5 years, this source has

not had a significant accidental release, as

defined in 40 CFR 68.3. No additional

measures are necessary to prevent public and

environmental impacts from accidental

releases. In the event of an accidental release

of the regulated substance indicated on the

registration, emergency response should be

conducted according to the emergency

response plan under 42 U.S.C. 11003, which

is available at [location]. Therefore, public

emergency responders should not enter this

area except as provided under that plan. The

undersigned certifies that, to the best of my

knowledge, information, and belief formed

after reasonable inquiry, the information

submitted is true, accurate, and complete.

[Signature].

and

(ii) The owner or operator shall

maintain for five years documentation

of the determination of eligibility under

paragraph (b)(1) of this section and a

copy of the risk management plan under

paragraph (b)(2)(i) of this section.

5. Section 68.14 is proposed to be

added to subpart B to read as follows:

§ 68.14 Streamlined risk management

program (Tier 2).

(a) The owner or operator of a

stationary source eligible for this part

shall comply with § 68.15.

(b) The owner or operator of a

stationary source shall establish a

prevention program which includes

safety precautions and maintenance,

monitoring and employee training

measures to be used at the source to

prevent accidental releases. The

prevention program shall identify other

federal accident prevention

requirements to which the source is

subject, including national voluntary

standards and measures required by 42

U.S.C. 7412(r)(1).

(c) The owner or operator of a

stationary source shall prepare an

emergency response program which

documents specific actions to be taken

in an emergency response to an

accidental release, including:

(1) Procedures for informing the public

and local entities about accidental

releases;

(2) Procedures to be used on site to

respond to an accidental release;

and

(3) A description of the employee

training measures used to educate

employees regarding emergency

situations.
Federal Register / Vol. 60, No. 48 / Monday, March 13, 1995 / Proposed Rules 13545

(d) The owner or operator of a

stationary source shall submit a risk

management plan summarizing

paragraphs (a) through (c) of this section

to the implementing agency, the State

Emergency Response Commission (if the

implementing agency is not a member of

such Commission), and the Local

Emergency Planning Committee with

jurisdiction for the area where the

source is located. The owner or operator

shall retain a copy of the risk

management plan for 5 years.

6. Section 68.58 is proposed to be

added to subpart B to read as follows:

§ 68.58 Permit content and air permitting

authority requirements.

(a) The requirements in this section

apply to sources subject to both part 68

and part 70 of this Chapter. Each part 70

permit shall contain conditions

requiring the following provisions, for

any activity and/or emission unit

subject to this part:

(1) By the deadlines set out in this

part, the source shall register and

submit an RMP or revised plan and

shall certify upon submission that such

plan is accurate and complete.

Submission of the plan by deadlines

required under this part shall satisfy the

reporting requirements of 40 CFR

70.6(a)(3)(ii)(A).

(2) The source shall submit any

additional information requested by the

permitting authority or other designated

state or local agency necessary to

determine completeness of the RMP.

(3) The source shall annually certify

compliance with, and implementation

of, risk management program

requirements described in this part and

as described by the submitted RMP or

revised plan.

(4) For part 70 permits that are issued

prior to the deadline required for

registering and submitting the RMP and

do not contain permit conditions

meeting the provisions of paragraphs (a)

(1) through (3) of this section, the source

no later than [3 years from the effective

date of the final rule] shall submit an

application for a permit revision

consistent with § 70.7 of this chapter to

establish conditions consistent with

these required in paragraphs (a)(1)

through (3) of this section.

(5) For part 70 permits issued on or

after the deadline required for

registering and submitting the RMP, the

source shall register and submit any

plan required by this part no later than

[3 years from the effective date of the

final rule].

(6) For new emissions units or

activities at previously permitted part

70 sources which become subject to this

part after [the effective date of the final

rule], the source shall submit an

application for permit revision

consistent with the provisions of § 70.7

of this chapter upon startup of such

units and/or activities or no later than

[3 years from the effective date of the

final rule], whichever is later.

(7) If a previously permitted part 70

source has not submitted an RMP as

required, then the source shall provide:

(i) A compliance plan, including a

compliance schedule for the submittal

of the required plan; and

(ii) An application for a permit

revision to establish permit conditions

meeting paragraphs (a) (1) through (7) of

this section unless such conditions are

already contained within the part 70

permit.

(b) The permitting authority must, at

a minimum, perform the following tasks

to meet § 70.4(b)(3)(i) of this chapter

with respect to part 70 sources subject

to section 112(r) of CAA and this part.

(1) Verify that an RMP or a revised

plan is submitted when required by this

part, and that it is complete, i.e., it

contains the elements required under

§§ 68.50, 68.13, or 68.14;

(2) Verify that the source has

submitted an annual certification that it

is properly implementing a risk

management program as required by

this part and as described by the

applicable RMP;

(3) Take enforcement action

(including penalties) on sources that fail

to submit a complete plan or a revised

plan, an annual certification, or

accidental release report as required by

this part;

(4) Incorporate and enforce permit

conditions that specify a compliance

schedule for submittal of a complete

RMP, for permits issued prior to

reporting deadlines of this part or if a

part 70 source subject to this part fails

to submit a complete plan as required.

[FR Doc. 95–5656 Filed 3–10–95; 8:45 am]

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