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From: Cogliano, Gerain 

Sent: Tuesday, February 23, 2016 3:26 PM

To: Jones, Danielle <Danielle_Y_Jones@omb.eop.gov>

Cc: Farber, Glenn <Farber.Glenn@epa.gov>

Subject: EO 12866 Review of RMP Rule: Revised RIA and NPRM

Attachments:

EO12866_RMP 

Modernization 2050-AG82 NPRM Proposal&Rule_20160223_redline.docx

EO12866_RMP 

Modernization 2050-AG82 NPRM RIA_20160223 redline.docx

Hi Danielle, 

Attached is the revised RIA and NPRM (redlined-strikeout versions).

For the RIA, please note (1) the suggested counter-text change to Section 5.7 on the 

cost uncertainty discussions as found on pages 83 and 85, (2) the UMRA written statement and 

(3) the IRFA (section 7.3.3).

For the NPRM, the IRFA info has been included in the RFA summary, revised the PRA 

section based on OEI’s ICR liaison’s edits, added language pertaining to the voluntary 

implementation efforts (page 192) and added language pertaining to the public hearing.

Thanks!

Gerain Cogliano

OLEM's Regulatory Steering Committee Representative

Policy and Regulatory Management Team Leader

Policy Analysis and Regulatory Management Staff (PARMS)

Office of Program Management (OPM)

Office of Land and Emergency Management (OLEM)

EPA West Room 4130

Phone Number: 202-566-1929

Fax Number: 202-566-1934

Mail Code: 5103T

cogliano.gerain@epa.gov
Attachment: EO12866_RMP Modernization 2050-AG82 NRPM ProposalRule

_20160223_redline.docx

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EO12866_RMP Modernization 2050-AG82 NPRM Proposal&Rule_2016021820160223

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[EPA-HQ-OEM-2015-0725; FRL-xxxx-xx-OSWER9940-94-OLEM]

RIN 2050-AG82

Accidental Release Prevention Requirements: Risk Management Programs Under the 

Clean Air Act, Section 112(r)(7)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

________________________________________________________________________

SUMMARY: The Environmental Protection Agency (EPA), in response to Executive Order (EO) 

13650, is proposing to amend its Risk Management Program regulations. The proposed revisions 

include several changes to the accident prevention program requirements including an additional 

analysis of safer technology and alternatives for the process hazard analysis for some Program 3 

processes, third-party audits and incident investigation root cause analysis for Program 2 and 

Program 3 processes, enhancements to the emergency preparedness requirements, increased

public availability of chemical hazard information, and several other changes to certain regulatory 

definitions and data elements submitted in risk management plans. These proposed amendments 

seek to improve chemical process safety, assist local emergency authorities in planning for and 

responding to accidents, and improve public awareness of chemical hazards at regulated sources.

DATES: Comments. Comments and additional material must be received on or before [INSERT 

DATE 90 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

Under the Paperwork Reduction Act (PRA), comments on the information collection provisions 

are best assured of consideration if the Office of Management and Budget (OMB) receives a copy 

Commented [A1]: Edits since last OMB submission

Commented [A2]: IA v.5 Comments:

Comment 1: reporting of methane and other GHG releases.

To the extent allowed under Section 112(r)(7) of the Clean Air Act, 

DOE recommends requiring reporting and

quantification of methane and other greenhouse gas emissions 

resulting from an accidental release. Increased reporting

of accidental releases would allow for improved quantification of 

climate-related damages associated with hazardous

release.”

Comment 2: climate resilience planning.

Climate-related impacts—such as more frequent and intense heatwaves, rising sea levels, and more frequent and

severe weather events—pose increasing risks to energy 

infrastructure. To the extent allowed under the Clean Air Act,

DOE recommends that climate resilience planning be a required 

component of covered facilities’ risk management plans

(RMPs) and process hazard analysis (PHA).”

Commented [A3R2]: These suggested comments are beyond 

the scope of this rulemaking.

Commented [A4]: IA Comment #127 Much of the incident 

investigation and third-party audit requirements depend upon the 

nature of the incident that occurred and its consequences. 

Unfortunately, the preamble confuses the reader by using the 

words “accident,” “incident,” “accidental release,” and 

“catastrophic release” almost interchangeably. The regulatory text 

does not define “accident” or “incident” so the preamble should 

not use these words. Furthermore, the preamble should be 

absolutely clear when speaking about a release as to whether it is 

accidental or catastrophic.

Commented [A5R4]: All of these words are used in the current 

reg. text. Both accidental release and catastrophic release are 

defined in 68.3. The definition of catastrophic release is the subject 

of extensive discussion in this proposal. The current rule 

differentiates between accidents (i.e. events that have had 

specified impacts) and incidents (which also include events with no 

impacts but could have had impacts under slightly different 

circumstances).

Commented [A6]: IA v.4 Comment A Page 1 – Prefer 90 Day 

Comment Period to 60 Days

Commented [A7R6]: EPA is maintaining the 60-day timeframe.
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of your comments on or before [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION 

IN THE FEDERAL REGISTER].

Public Hearings. The EPA will hold a public hearings on this proposed rule on March 29, 

2016[INSERT DATE] at in Washington, DC[INSERT LOCATION], and on [INSERT DATE], 

at [INSERT LOCATION].

ADDRESSES: Comments. Submit comments and additional materials, identified by 

docket EPA-HQ-OEM-2015-0725 to the Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the online instructions for submitting comments. Once 

submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish 

any comment received to its public docket. Do not submit electronically any information you 

consider to be Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a 

written comment. The written comment is considered the official comment and should include 

discussion of all points you wish to make. The EPA will generally not consider comments or 

comment contents located outside of the primary submission (i.e., on the web, cloud, or other file 

sharing system). For additional submission methods, the full EPA public comment policy, 

information about CBI or multimedia submissions, and general guidance on making effective 

comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

Public Hearings. A public hearing will be held in Washington, DC[INSERT CITY, 

STATE] on March 29, 2016 [INSERT DATE] at William J. Clinton East Building Room 1153 

(Map Room), 1201 Constitution Ave. NW, Washington DC 20460[INSERT LOCATION]. The 

hearing will convene at 9:00 AM through 8:00 PM. There will be one hour recesses for lunch and 

dinner[INSERT LOGISTICS]. The sessions will run from 9:00 AM to 12:00 Noon, with a break 

between 12:00 Noon and 1:00 PM, continuing from 1:00 PM to 4:30 PM, with a break from 4:30 

to 5:30 PM, and continuing from 5:30 PM to 8:00 PM. Persons wishing to preregister may be 

assigned a time according to this schedule. The evening session beginning at 5:30 PM will be 
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extended one hour after all scheduled comments have been heard to accommodate those wishing 

to make a comment as a walk-in registrant. The public hearing in [INSERT CITY, STATE OF 

LOCATION #2] will be held on [INSERT DATE], at [INSERT LOCATION #2]. The hearing 

will convene at [INSERT LOGISTICS]. Please register at https://rmp-proposedrule.eventbrite.com to speak at the hearing. The last day to preregister in advance to speak at the 

hearing is March 24, 2016 [INSERT DATE], for the [INSERT CITY, STATE] hearing and 

[INSERT DATE], for the [INSERT CITY, STATE] hearing. Additionally, requests to speak will 

be taken the day of the hearing at the hearing registration desk, although preferences on speaking 

times may not be able to be fulfilled. If you require the service of a translator or special 

accommodations such as audio description, please let us know at the time of registration. If you 

require an accommodation, we ask that you pre-register for the hearing, on or before March 21, 

2016, to allow sufficient time to arrange such accommodations.

The hearing will provide interested parties the opportunity to present data, views or 

arguments concerning the proposed action. The EPA will make every effort to accommodate all 

speakers who arrive and register. Because this hearing is being held at U.S. government facilities, 

individuals planning to attend the hearing should be prepared to show valid picture identification 

to the security staff in order to gain access to the meeting room. Please note that the REAL ID 

Act, passed by Congress in 2005, established new requirements for entering federal facilities. If 

your driver’s license is issued by Alaska, American Samoa, Arizona, Kentucky, Louisiana, 

Maine, Massachusetts, Minnesota, Montana, New York, Oklahoma or the state of Washington, 

you must present an additional form of identification to enter the federal building. Acceptable 

alternative forms of identification include: Federal employee badges, passports, enhanced driver’s 

licenses and military identification cards. In addition, you will need to obtain a property pass for 

any personal belongings you bring with you. Upon leaving the building, you will be required to 

return this property pass to the security desk. No large signs will be allowed in the building, 
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cameras may only be used outside of the building and demonstrations will not be allowed on 

federal property for security reasons.

The EPA may ask clarifying questions during the oral presentations, but will not respond 

to the presentations at that time. Written statements and supporting information submitted during 

the comment period will be considered with the same weight as oral comments and supporting 

information presented at the public hearing. Verbatim transcripts of the hearing and written 

statements will be included in the docket for the rulemaking. The EPA will make every effort to 

follow the schedule as closely as possible on the day of the hearing; however, please plan for the 

hearing to run either ahead of schedule or behind schedule.

FOR FURTHER INFORMATION CONTACT: James Belke, United States Environmental 

Protection Agency, Office of Solid Waste and Emergency ResponseLand and Emergency 

Management, 1200 Pennsylvania Ave., NW (Mail Code 5104A), Washington, DC, 20460; 

telephone number: (202) 564-8023; email address: belke.jim@epa.gov.

Electronic copies of this Notice of Proposed Rulemaking (NPRM) and related news 

releases are available on EPA’s website at http://www.epa.gov/rmp. Copies of this NPRM are 

also available at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION: Acronyms and Abbreviations. We use multiple 

acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of 

this preamble and for reference purposes, the EPA defines the following terms and acronyms 

here:

ACC American Chemistry Council

ACUS Administrative Conference of the United States

AFPM American Fuel & Petroleum Petrochemical Manufacturers

AMWA Association of Metropolitan Water Agencies

AN ammonium nitrate

Commented [A8]: IA Comment #3 Page 3, believe”P” in AFPM 

is Petrochemical (not Petroleum).

Commented [A9R8]: Change incorporated here and on page 

41. Duplicative spelling of AFPM on page 91 deleted.
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ANSI American National Standards Institute

API American Petroleum Institute

ASTM American Society for Testing and Materials

AUC Allied Universal Corp

AWWA American Water Works Association

AXPC American Exploration & Production Council

BSEE Bureau of Safety and Environmental Enforcement

BTMU Bank of Tokyo Mitsubishi

CAA Clean Air Act

CAAA Clean Air Act Amendments

CARB California Air Resources Board

CAS Chemical Abstracts Service

CBI confidential business information

CCHMP Contra Costa Hazardous Materials Program

CCHS Contra Costa County Health Services

CCPS Center for Chemical Process Safety

CEM European Committee for Standardization

CFATS Chemical Facility Anti-Terrorism Standards

CFR Code of Federal Regulations

CGA Compressed Gas Association

CI Chlorine Institute

CO2 Carbon dioxide

COS Center for Offshore Safety

CPCD Coalition to Prevent Chemical Disasters

CPSC Consumer Product Safety Commission

CRA Corn Refiners Association
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CSAG Chemical Safety Advocacy Group

CSB Chemical Safety and Hazard Investigation Board

CSD Center for Science and Democracy

CSISSFRRA Chemical Safety Information, Site Security and Fuels Regulatory Relief Act

DHS Department of Homeland Security

DOI Department of the Interior

DOT Department of Transportation

EHS extremely hazardous substance

EO Executive Order

EPA Environmental Protection Agency

EPCRA Emergency Planning & Community Right-To-Know Act

FCC Federal Communications Commission

FDA Food and Drug Administration

FEMA Federal Emergency Management Agency

FOIA Freedom of Information Act

FPC Formosa Plastics Corporation

FR Federal Register

FRP facility response plan

GHG greenhouse gas

GHS Globally Harmonized System of Classification and Labelling of Chemicals

GPA Gas Processors Association

HAZOP hazard and operability study

HF hydrofluoric acid

IPAA Independent Petroleum Association of America

ISD inherently safer design

ISO industrial safety ordinance

Commented [A10]: IA v.3 Comment #13 In the acronym 

section in the beginning, DOI should be spelled out as “Department 

of the Interior.”

Commented [A11R10]: Change incorporated.
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ISOM isomerization

ISS inherently safer design strategies

IST inherently safer technology

LEPC local emergency planning committee

LPG liquefied petroleum gas

MACT maximum achievable control technology

MIC methyl isocyanate

MKOPSC Mary Kay O’Connor Process Safety Center

MOC management of change

NACD National Association of Chemical Distributors

NAICS North American Industrial Classification System

NAM National Association of Manufacturers

NAS National Academy of Sciences

NASTTPO National Association of SARA Title III Program Officials

NIST National Institute of Standards and Technology

NJDEP New Jersey Department of Environmental Protection

NOPA National Oilseed Processors Association

NPRM Notice of Proposed Rulemaking

NRC Nuclear Regulatory Commission

NSPS New Source Performance Standards

NTTAA National Technology Transfer Advancement Act

NYDFS New York State Department of Financial Services

OCA offsite consequences analysis

OCS outer continental shelf

OHMERC Oklahoma Hazardous Materials Emergency Response Commission

OMB Office of Management & and Budget
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OSHA Occupational Safety and Health Administration

PCAOB Public Company Accounting Oversight Board

PE professional engineer

PHA process hazard analysis

PRA Paperwork Reduction Act

PREP preparedness for response exercise program

PSI process safety information

PSM process safety management

PSSAP Process Safety Site Assessment Program

PVC polyvinyl chloride

PwC PricewaterhouseCoopers

RAGAGEP recognized and generally accepted good engineering practices

RCRA Resource Conservation and Recovery Act

RFA Regulatory Flexibility Act

RFI request for information

RMP Risk Management Plan

RTR research and test reactor

SARA Superfund Amendments and Reauthorization Act

SBAR Small Business Advocacy Review

SBREFA Small Business Regulatory Enforcement Fairness Act

SDS safety data sheet

SDWA Safe Drinking Water Act

SEC Securities and Exchange Commission

SEMS Safety and Environmental Management Systems

SER small entity representative

SERC state emergency response commission
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SOCMA Society of Chemical Manufacturers and Affiliates

SOP standard operating procedure

STAA safer technology and alternatives analysis

TCPA Toxic Catastrophe Prevention Act

TEPC tribal emergency planning committees

TERC tribal emergency response commission

TPA Texas Pipeline Association

TQ threshold quantity

TSCA Toxic Substances Control Act

UMRA Unfunded Mandates Reform Act

USCG United States Coast Guard

UST underground storage tank

USW United Steel Workers

VCM vinyl chloride monomer

VCS voluntary census standards

Organization of this Document. The contents of this preamble are:

I. General Information

A. Executive Summary

B. Does This Action Apply to Me?

II. Background

III. Additional Information

A. What Actions Are Not Addressed in This Rule?

B. What is the Agency’s Authority for Taking This Action?

IV. Prevention Program Requirements

A. Incident Investigation and Accident History Requirements

B. Third-Party Compliance Audits

C. Safer Technology and Alternatives Analysis (STAA)

D. Stationary Source Location and Emergency Shutdown

V. Emergency Response Preparedness Requirements

A. Emergency Response Program Coordination with Local Responders

B. Facility Exercises

VI. Information Availability Requirements

A. Proposed Public Disclosure Requirements to LEPCs or Emergency Response Officials

B. Proposed Revisions to Requirements for Information Availability to the Public 

C. Alternative Options
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VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule Technical 

Corrections

A. Deletions from Subpart G

B. Revisions to Subpart G

C. Additions to Subpart G

D. Proposed Amendments and Technical Corrections

VIII. Compliance Dates

IX. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review 

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13045: Protection of Children from Environmental Health Risks and 

Safety Risks

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or 

Use

I. National Technology Transfer and Advancement Act (NTTAA)

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations

A redline version of the regulatory language that incorporates the proposed changes in 

this action is available in the docket for this action.

I. General Information

A. Executive Summary

1. Purpose of the Regulatory Action

The purpose of this action is to improve safety at facilities that use and distribute 

hazardous chemicals. In response to catastrophic chemical facility incidents in the United States, 

including the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17, 

2013 that killed 15 people, President Obama issued Executive Order 13650, “Improving 

Chemical Facility Safety and Security,” on August 1, 2013.

1

Section 6(a)(i) of Executive Order 13650 requires that various Federal agencies develop 

options for improved chemical facility safety and security that identify “improvements to existing 

 

1

 For more information on the Executive Order see https://www.whitehouse.gov/the-pressoffice/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
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risk management practices through agency programs, private sector initiatives, Government 

guidance, outreach, standards, and regulations.” One agency program presently in existence is the 

Risk Management Program implemented by EPA under section 112(r) of the Clean Air Act (42 

U.S.C. 7412(r)). Section 6(c) of Executive Order 13650 requires the Administrator of EPA to 

review the chemical hazards covered by the Risk Management Program and expand, implement 

and enforce the Risk Management Program to address any additional hazards. As part of this 

effort to solicit comments and information from the public regarding potential changes to EPA’s 

Risk Management Program regulations (40 CFR part 68), on July 31, 2014, EPA published a 

“Request for Information” notice or “RFI” (79 FR 44604). 

EPA believes that the Risk Management Program regulations have been effective in 

preventing and mitigating chemical accidents in the United States. However, EPA is 

proposingbelieves that revisions in order tocould further protect human health and the 

environment from chemical hazards through advancement of process safety management based 

on lessons learned. These revisions are a result of a review of the existing Risk Management 

Program and information gathered from the RFI and Executive Order listening sessions.

2. Summary of the Major Provisions of the Regulatory Action 

This action proposes to amend EPA’s Risk Management Program regulations at 40 CFR 

part 68. These regulations apply to stationary sources (also referred to as “facilities”) that hold 

specific “regulated substances” in excess of threshold quantities. These facilities are required to

assess their potential release impacts, undertake steps to prevent releases, plan for emergency 

response to releases, and summarize this information in a risk management plan (RMP) submitted 

to EPA. The release prevention steps vary depending on the type of process, but progressively 

gain specificity and rigor over three program levels (i.e., Program 1, Program 2, and Program 3).

The major provisions of this proposed rule include several changes to the accident 

prevention program requirements, as well as enhancements to the emergency response

requirements, and improvements to the public availability of chemical hazard information. Each 

Commented [A12]: IA Comment #6 Page 10, Recommended 

edit. However, EPA is proposing believes that revisions in order to

could further protect human health and the environment from 

chemical hazards through advancement of process safety 

management based on lessons learned.

Commented [A13R12]: Change incorporated.
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of these proposed revisions is introduced in the following paragraphs of this Section section and 

described in greater detail in Sections sections IV – VI, later in this noticedocument.

Certain proposed provisions would apply to a subset of the processes based on program 

levels described in 40 CFR part 68 (or in one case, to a subset of processes within a program 

level). A full description of these program levels is provided in Section section II of this 

noticedocument.

a. Accident Prevention Program Revisions

This action proposes three changes to the accident prevention program requirements. 

First, the proposed rule would require all facilities with Program 2 or 3 processes to conduct a 

root cause analysis as part of an incident investigation of a catastrophic release or an incident that 

could have reasonably resulted in a catastrophic release (i.e., a near-miss). This provision is 

intended to reduce the number of chemical accidents by requiring facilities to identify the 

underlying causes of an incident so that they may be addressed. Identifying the root causes, rather 

than isolating and correcting solely the immediate cause of the incident, will help prevent similar 

incidents at other locations, and will yield the maximum benefit or lessons learned from the 

incident investigation. 

Second, the proposed rule would require regulated facilities with Program 2 or 3 

processes to contract with an independent third-party to perform a compliance audit after the 

facility has a reportable release. Compliance audits are required under the existing rule, but are 

allowed to be self-audits (i.e., performed by the owner or operator of the regulated facility). This 

provision is intended to reduce the risk of future accidents by requiring an objective auditing 

process to determine whether the owner or operator of the facility is effectively complying with

the accident prevention procedures and practices required under 40 CFR part 68. 

The third proposed revision to the prevention program would add an element to the 

process hazard analysis (PHA), which is updated every five years. Specifically, owners or 

operators of facilities with Program 3 regulated processes in North American Industrial 
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Classification System (NAICS) codes 322 (paper manufacturing), 324 (petroleum and coal 

products manufacturing), and 325 (chemical manufacturing) would be required to conduct a safer 

technology and alternatives analysis (STAA) as part of their PHA, and to evaluate the feasibility 

of any inherently safer technology (IST) identified. The current PHA requirements include 

consideration of active, passive, and procedural measures to control hazards. The proposed 

modernization effort continues to support the analysis of those measures and adds consideration 

of IST alternatives. The proposedis provision is intended to reduce the risk of serious accidental 

releases by requiring facilities in these sectors to conduct a careful examination of potentially

safer technology and designs that they could implement in lieu of, or in addition to, their current 

technologies. Data compiled from RMPs suggest processes in these NAICS codes have a 

disproportionate share of reportable releases.

At this time, EPA is not proposing any additional requirements either for location of 

stationary sources (related to their proximity to public receptors) or emergency shutdown 

systems. However, EPA seeks comment on whether such requirements should be considered for 

future rulemakings, including the scope of such requirements, or whether the Agency should 

publish guidance.

b. Emergency Response Enhancements

This action also proposes to enhance the rule’s emergency response requirements. 

Owners or operators of all facilities with Program 2 or 3 processes would be required to 

coordinate with the local emergency response agencies at least once a year to ensure that 

resources and capabilities are in place to respond to an accidental release of a regulated substance.

As a result of improved coordination between facility owners and operators and local emergency 

response officials, EPA believes that some facilities that are currently designated as nonresponding facilities may become responding facilities (i.e., develop an emergency response 

program in accordance with § 68.95).

Commented [A14]: IA Comment #2 OSHA also has an issue 

with the use of the word feasibility. As we have discussed in 

interagency coordination meetings, this term has legal meaning for 

OSHA and we will not be able to define or use that term when we 

update the Process Safety Management (PSM) standard, which 

would create inconsistencies between PSM and RMP. As noted 

below, we suggest substituting “practicable” for “feasible”: these 

two words are synonyms.

Commented [A15R14]: EPA disagrees. If OSHA uses the term 

feasible in another standard, and gave it the normal meaning, then 

this should be consistent with the proposed definition in this notice. 

However, EPA added language seeking comment on what term 

should be used (feasible or practicable) on page 97 of the 

preamble.

Commented [A16]: IA Comment #7 Page 11, If the analysis is 

to include IST, ISD, passive measures, active measures, and 

procedural measures, shouldn’t the feasibility of all of those 

alternatives be considered? Recommend the following edits: “...and 

to e#7 valuate the feasibility of any inherently safer technology or 

alternative (IST) identified.

Commented [A17R16]: Recurring comment. We intended to 

restrict the analysis of feasibility to IST. We believe the current 

regulation already incorporates the other elements of the STAA 

(PHA already considers active, passive and procedural measures 

and therefore already accounts for these elements). However, to be 

consistent with the Hierarchy of controls that is well understood, 

the proposed provision includes all of the elements. The IST portion 

is the incremental difference between the current rule and the 

proposed rule.

Commented [A18]: IA v.3 Comment #12 EPA responded to 

several questions about whether to refer to STAA instead of IST 

with the answer that “We believe the current regulation already 

incorporates the other elements of the STAA (PHA already 

considers active, passive and procedural measures and therefore 

already accounts for these elements)” (e.g., page 11, comment 7). I 

would like to follow up with a request to make that clear on page 

11 of the executive summary by saying the following in the text 

where comment 7 was located: “The current PHA requirement 

includes consideration of active, passive, and procedural measures. 

The proposed modernization effort continues to support the 

analysis of those measures and adds consideration of Inherently 

Safer Technologies and Inherently Safer Design alternatives.”

Commented [A19R18]: Change incorporated with 

modifications. 
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Additionally, all facilities with Program 2 or 3 processes would be required to conduct 

notification exercises annually to ensure that their emergency contact information is accurate and 

complete. This provision is intended to reduce the impact of accidents by ensuring that 

appropriate mechanisms and processes are in place to notify local responders when an accident 

occurs. One of the factors that can contribute to the severity of chemical accidents is a lack of 

effective coordination between a facility and local emergency responders. Increasing such

coordination and establishing appropriate emergency response procedures can help reduce the

effects of accidents. 

This action also proposes to require that all facilities subject to the emergency response 

program requirements of subpart E of the rule (or "responding facilities") conduct a full field 

exercise at least once every five years and one tabletop exercise annually in the other years. 

Responding facilities that have an RMP reportable accident would also have to conduct a full 

field exercise within a year of the accident. The purpose of this provision is to reduce the impact 

of accidents by ensuring that emergency response personnel understand their roles in the event of 

an incident, that local responders are familiar with the hazards at a facility, and that the 

emergency response plan is up-to-date. Improved coordination with emergency response 

personnel will better prepare responders to respond effectively to an incident and take steps to 

notify the community of appropriate actions, such as shelter-in-place or evacuation.

c. Enhanced Availability of Information

This action proposes various enhancements to the public availability of chemical hazard 

information. The proposed rule would require all facilities to provide certain basic information to 

the public through easily accessible means such as a facility website. If no website exists, the 

owner or operator may provide the information at public libraries or government offices, or use 

other means appropriate for particular locations and facilities. In addition, a subset of facilities 

would be required, upon request, to provide the Local Emergency Planning Committee (LEPC), 
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Tribal Emergency Planning Committee (TEPC)2 or other local emergency response agencies with 

summaries related to: their activities on compliance audits (facilities with Program 2 and Program

3 processes); emergency response exercises (facilities with Program 2 and Program 3 processes);

accident history and investigation reports (all facilities that have had RMP reportable accidents);

and any ISTs implemented at the facility (a subset of Program 3 processes). The proposed rule 

would also require all facilities to hold a public meeting for the local community at least once 

every 5 years and within a specified timeframe after an RMP reportable accident. This provision 

will ensure that first responders and members of the community have easier access to appropriate

facility chemical hazard information, which can significantly improve emergency preparedness

and their understanding of how the facility is addressing potential risks. 

In addition to the major provisions described previously in this Sectionsection, this action 

proposes revisions to clarify or simplify the RMP submission. These changes are intended to 

reduce the compliance burden on facilities and increase their understanding of the RMP 

requirements. We are also proposing technical corrections to various provisions of the rule.

3. Costs and Benefits

a. Summary of Potential Costs

Approximately 12,500 facilities have filed current RMPs with EPA and are potentially 

affected by the proposed rule changes. These facilities range from petroleum refineries and large 

chemical manufacturers to water and wastewater treatment systems; chemical and petroleum 

wholesalers and terminals; food manufacturers, packing plants, and other cold storage facilities 

with ammonia refrigeration systems; agricultural chemical distributors; midstream gas plants; and 

a limited number of other sources, including Federal installations, that use RMP-regulated 

substances.

 

2

 Note for the purposes of this document the term TEPC can be substituted for LEPC, as appropriate.

Commented [A20]: IA Comment #9 Page 13, regarding LEPCs, 

are Tribal entities are included here? It may be helpfult to specify, 

both in this section and where appropriate throughout the 

Preamble.

Commented [A21R20]: Change incorporated.

Commented [A22]: IA Comment #8 Page 13, recommend the 

following edit: “...and any safer technology or alternative ISTs

implemented at the facility...”

Commented [A23R22]: EPA chose to highlight the ISTs 

implemented because we believe that this puts additional emphasis 

on this part of the analysis to encourage serious consideration of 

IST. The other parts of the hierarch of controls are already 

incorporated in the PHA and reported in the RMP.

Commented [A24]: IA v.2 Comment #1 EPA Guidance entitled 

“Guidance for Implementing Agencies (February 1998, 

>http://www.epa.gov/sites/production/files/2013-

10/documents/iguidfnl.pdf<)” states: “EPA expects that the rule 

will cover all petroleum refineries, many chemical manufacturers 

(mostly manufacturers of basic chemicals), food processors and 

distributors who have ammonia refrigeration systems, other 

manufacturers such as pulp and paper mills and primary and 

secondary metal manufacturers, propane and agricultural retailers, 

chemical wholesalers, drinking water and wastewater treatment

systems, electric utilities, and Federal installations, such as military 

bases and Department of Energy facilities.” EPA’s proposed rule 

currently does not discuss the applicability of the rule to Federal 

installations, and it would be useful to clarify the applicability. At 

this time, the only mention of Department of Defense or other 

Federal agencies is with respect to disclosure of information: “The 

disclosure of information classified by the Department of Defense 

or other Federal agencies or contractors of such agencies shall be 

controlled by applicable laws, regulations, or executive orders 

concerning the release of classified information.”

Commented [A25R24]: Change incorporated.
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Table 1 presents the number of facilities according to the latest RMP reporting as of 

February 2015 by industrial sector and chemical use. 

Table 1: Number of Affected Facilities by Sector

Sector NAICS Codes Total 

Facilities Chemical Uses

Administration of 

environmental quality 

programs (i.e., 

governments)

924 1,923 Use chlorine and other 

chemicals for treatment

Agricultural chemical 

distributors/wholesalers

111, 112, 115, 

42491 3,667

Store ammonia for sale; some 

in NAICS 111 and 115 use 

ammonia as a refrigerant

Chemical manufacturing 325 1,466 Manufacture, process, store

Chemical wholesalers 4246 333 Store for sale

Food and beverage 

manufacturing 311, 312 1,476 Use−mostly ammonia as a refrigerant

Oil and gas extraction 211 741

Intermediate processing

(mostly regulated flammable 

substances and flammable 

mixtures)

Other 44, 45, 48, 54, 56, 

61, 72 248

Use chemicals for 

wastewater treatment, 

refrigeration, store chemicals 

for sale

Other manufacturing 313, , 326, 327, 33 384

Use various chemicals in 

manufacturing process, waste 

treatment

Other wholesale 423, 424 302 Use (mostly ammonia as a 

refrigerant)

Paper manufacturing 322 70

Use various chemicals in 

pulp and paper 

manufacturing

Petroleum and coal 

products manufacturing 324 156

Manufacture, process, store

(mostly regulated flammable 

substances and flammable 

mixtures)

Petroleum wholesalers 4247 276

Store for sale (mostly 

regulated flammable 

substances and flammable 

mixtures)

Utilities 221 (except 22131, 

22132) 343 Use chlorine (mostly for water treatment)

Warehousing and storage 493 1,056 Use mostly ammonia as a 

refrigerant

Water/wastewater 

Treatment Systems 22131, 22132 102 Use chlorine and other chemicals

Total 12,542

Commented [A26]: IA Comment #4 Table 1, Other 

manufacturing, is this missing a number or an extra comma?

Commented [A27R26]: Change incorporated.
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Table 2 presents a summary of the annualized costs estimated in the regulatory impact

analysis3. In total, EPA estimates annualized costs of $162.6158.3 million at a 3% discount rate 

and $165.3161.0 million at a 7% discount rate.

Table 2: Summary of Annualized Costs (Millions, 2014 dollars)

Provision 3% 7%

Third-party Audits $5.0 $5.0

Incident Investigation/Root 

Cause $0.8 $0.8

STAA $34.8 $34.8

Coordination $6.3 $6.3

New Responders* $33.0 $35.6

Notification Exercises $1.4 $1.4

Facility Exercises $60.7 $60.7

Information Sharing 

(LEPC) $11.7 $11.7

Information Sharing 

(Public) $4.0 $4.0

Public Meeting $4.70.4 $4.70.4

Rule Familiarization $0.23 $0.3

Total Cost+ $162.6158.

3

$165.316

1.0

* Reflects costs for some facilities to convert from “non-responding” to 

“responding” as a result of improved coordination with local emergency 

response officials.

+ Totals may not sum due to rounding.

The largest average annual cost of the proposed rule is the exercise costs for current 

responders ($60.7 million), followed by new responders (facilities that will comply with the 

emergency response program requirements of § 68.95 as a result of local coordination activities 

or receiving a written request from the facility’s LEPC) ($35.6 million), safer technology and 

alternatives analysisSTAA ($34.8 million), and information sharing (LEPC) ($11.7 million). The 

remaining provisions impose average annual costs under $10 million each, including coordination 

 

3

 A full description of costs and benefits for this proposed rule can be found in the Regulatory Impact 

Analysis for Proposed Revisions to the Accidental Release Prevention Requirements: Risk Management 

Programs Under the Clean Air Act, Section 112(r)(7). This document is available in the docket for this 

rulemaking (Docket ID Number EPA-HQ-OEM-2015-0725). 
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Page 19 of 266

($6.3 million), third-party audits ($5.04.9 million), public meetings ($4.70.4 million), information

sharing (public) ($4.0 million), notification exercises ($1.4 million), incident investigation/root 

cause analysis ($0.8 million), public meetings ($0.4 million), and rule familiarization ($0.3

million). 

b. Summary of Potential Benefits

EPA anticipates that promulgation and implementation of this rule would result in a 

reduction of the frequency and magnitude of damages from releases. Accidents and releases from 

RMP facilities occur every year, causingresulting in fires and explosions; damage to property; 

acute and chronic exposures of workers and nearby residents to hazardous materials, and resultant 

resulting in serious injuries and deathdamages to health. Although we are unable to quantify what 

specific reductions may occur as a result of these proposed revisions, we are able to present data 

on the total damages that currently occur at RMP facilities each year. The data presented is based 

on a 10-year baseline period, summarizing RMP accident impacts and, when possible, monetizing 

them. EPA expects that some portion of future damages would be prevented through 

implementation of a final rule. Table 3 presents a summary of the quantified damages identified 

in the analysis. 

Table 3: Summary of Quantified Damages (2014 dollars)

Unit Value 10-Year Total Ave/Year Average/Accident

On-site

Fatalities $8,583,113 $497,820,554 $49,782,055 $328,161

Injuries $50,000 $105,150,000 $10,515,000 $69,314 

Property Damage $2,054,895,236 $205,489,524 $1,354,578 

On-site Total $2,657,865,790 $265,786,579 $1,752,053

Offsite

Fatalities $8,583,113 $8,583,113 $858,311 $5,658 

Hospitalizations $36,000 $6,804,000 $680,400 $4,485 

Medical Treatment $1,000 $14,807,000 $1,480,700 $9,761 

Evacuations $181 $6,992,327 $699,233 $4,609

Sheltering in Place $91 $40,920,849 $4,092,085 $26,975

Property Damage $11,352,105 $1,135,211 $7,483 

Offsite Total $89,459,394 $8,945,939 $58,971

Commented [A28]: IA Comment #10 Page 16, Suggested 

rewrite of the following: “resulting in fires and explosions; damage 

to property; acute and chronic exposures of workers and nearby 

residents to hazardous materials, and resultant in damages to 

health.” To “causing fires and explosions; damage to property; 

acute and chronic exposures of or workers and nearby residents to 

hazardous materials, and resultant in serious injuries and deaths.” 

Commented [A29R28]: Change incorporated.

Commented [A30]: IA Comment #5 Table 3, are these also 

2014 dollar estimates?

Commented [A31R30]: Yes. Title of table amended.
***E.O.12866 Review – Revised Version – Do Not Cite, Quote, or Release During Review***

Page 20 of 266

Total $2,747,325,184 $274,732,518 $1,811,024

EPA monetized both on-site and offsite damages. EPA estimated total average annual onsite damages of $265.8 million. The largest monetized average annual on-site damage was on-site 

property damage, which resulted in average annual damage of approximately $205.5 million. The 

next largest impact was on-site fatalities ($49.8 million) and injuries ($10.5 million).

EPA estimated total average annual offsite damages of $8.9 million. The largest 

monetized average annual offsite damage was from sheltering in place ($4.1 million), followed 

by medical treatment ($1.5 million), property damage ($1.1 million), fatalities ($0.9 million), 

evacuations ($0.7 million), and hospitalizations ($0.7 million).

In total, EPA estimated monetized damages from RMP facility accidents of $275 million 

per year. However, the monetized impacts omit many important categories of accident impacts 

including lost productivity, the costs of emergency response, transaction costs, property value 

impacts in the surrounding community (that overlap with other benefit categories), and 

environmental impacts. Also not reflected in the 10-year baseline costs are the impacts of nonRMP accidents at RMP facilities and any potential impacts of rare high consequence 

catastrophes. A final omission is related to the information provision. Reducing the probability of 

chemical accidents and the severity of their impacts, and improving information disclosure by 

chemical facilities, as the proposed provisions intend, would provide benefits to potentially 

affected members of society.

Table 4 summarizes four broad social benefit categories related to accident prevention 

and mitigation including prevention of RMP accidents, mitigation of RMP accidents, prevention 

and mitigation of non-RMP accidents at RMP facilities, and prevention of major catastrophes. 

The table explains each and identifies ten associated specific benefit categories, ranging from 

avoided fatalities to avoided emergency response costs. Table 4 also highlights and explains the 
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Page 21 of 266

information disclosure benefit category and identifies two specific benefits associated with it: 

improved efficiency of property markets and allocation of emergency resources.

Table 4: Summary of Social Benefits of Proposed Rule Provisions

Broad Benefit 

Category Explanation Specific Benefit Categories

Accident Prevention Prevention of future RMP 

facility accidents

 Reduced Fatalities

 Reduced Injuries

 Reduced Property Damage

 Fewer People Sheltered in 

Place

 Fewer Evacuations

 Avoided Lost Productivity

 Avoided Emergency Response 

Costs

 Avoided Transaction Costs

 Avoided Property Value 

Impacts*

 Avoided Environmental 

Impacts

Accident Mitigation Mitigation of future RMP 

facility accidents

Non-RMP accident 

prevention and 

mitigation

Prevention and mitigation of 

future non-RMP accidents at 

RMP facilities

Avoided Catastrophes

Prevention of rare but 

extremely high consequence 

events

Information 

Disclosure

Provision of information to the 

public and LEPCs

 Improved efficiency of property 

markets

 Improved resource allocation

* These impacts partially overlap with several other categories such as reduced health and environmental impacts.

B. Does This Action Apply to Me?

This rule applies to those facilities (referred to as ‘‘stationary sources’’ under the CAA) 

that are subject to the chemical accident prevention requirements at 40 CFR part 68. This includes 

stationary sources holding more than a threshold quantity (TQ) of a regulated substance in a 

process. Table 5 below provides industrial sectors and the associated NAICS codes for entities 

potentially affected by this action. The Agency’s goal is to provide a guide for readers to consider 

regarding entities that potentially could be affected by this action. However, this action may 

affect other entities not listed in this table. If you have questions regarding the applicability of this 

action to a particular entity, consult the person(s) listed in the introductory section of this notice 

action under the heading entitled FOR FURTHER INFORMATION CONTACT.

Table 5: Industrial Sectors and Associated NAICS Codes for Entities Potentially 

Affected by Proposed Action

Commented [A32]: IA Comment #11 Page 18, Does this Action 

Apply to Me?, spell out the first use of TQ.

Commented [A33R32]: Change incorporated. Removed 

spelling of acronym on page 22.
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Page 22 of 266

Sector NAICS Code

Administration of Environmental Quality Programs 924

Agricultural Chemical Distributors

Animal Production and Aquaculture

Crop Production

Farm Supplies Merchant Wholesalers

Support Activities for Agriculture and Forestry

112

111

42491

115

Beverage Manufacturing

Food Manufacturing

3121

311

Chemical and Allied Products Merchant Wholesalers 4246

Chemical Manufacturing 325

Oil and Gas Extraction 211

Other4 313, 326, 327, 33, 44, 45, 48, 54, 

56, 61, 72

Other Wholesale

Merchant Wholesalers, Durable Goods

Merchant Wholesalers, Nondurable Goods

423

424

Paper Manufacturing 322

Petroleum and Coal Products Manufacturing 324

Petroleum and Petroleum Products Merchant 

Wholesalers

4247

Utilities 221 (except 22131 and 22132 

described below)

Warehousing and Storage 493

Water/Wastewater Treatment Systems

Sewage Treatment Facilities

Water Supply and Irrigation Systems

22132

22131 

II. Background

Recent catastrophic chemical facility incidents in the United States prompted President 

Obama to issue Executive Order 13650, “Improving Chemical Facility Safety and Security,” on 

August 1, 2013.

5 The purpose of the Executive Order is to enhance the safety and security of 

chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, 

workers, and communities. The Executive Order establishes the Chemical Facility Safety and 

Security Working Group (“Working Group”), co-chaired by the Secretary of Homeland Security, 

 

4 For descriptions of NAICS codes, see http://www.census.gov/cgi-bin/sssd/naics/naicsrch

5 For more information on the Executive Order see https://www.whitehouse.gov/the-pressoffice/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
***E.O.12866 Review – Revised Version – Do Not Cite, Quote, or Release During Review***

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the Administrator of EPA, and the Secretary of Labor or their designated representatives at the 

Assistant Secretary level or higher, and composed of senior representatives of other Federal 

departments, agencies, and offices. The Executive Order requires the Working Group to carry out 

a number of tasks whose overall aim is to prevent chemical accidents, such as the explosion that 

occurred at the West Fertilizer facility in West, Texas, on April 17, 2013.

6

In addition to the 

tragedy at the West Fertilizer facility, a number of other incidents have demonstrated a significant 

risk to the safety of American workers and communities. On March 23, 2005, explosions at the 

BP Refinery in Texas City, Texas, killed 15 people and injured more than 170 people.

7 On April 

2, 2010, an explosion and fire at the Tesoro Refinery in Anacortes, Washington, killed seven

people.

8 On August 6, 2012, at the Chevron Refinery in Richmond, California, a fire involving 

flammable fluids endangered 19 Chevron employees and created a large plume of highly 

hazardous chemicals that traveled across the Richmond, California, area.9 Nearly 15,000 residents 

sought medical treatment due to the release. On June 13, 2013, a fire and explosion at Williams 

Olefins in Geismar, Louisiana, killed two people and injured many more.

10

Section 6 of the Executive Order is entitled “Policy, Regulation, and Standards 

Modernization.” This section, among other things, requires certain Federal agencies to consider 

possible changes to existing chemical safety and security regulations. To solicit comments and 

information from the public regarding potential changes to EPA’s Risk Management Program 

 

6

 CSB. January 20165. Final Investigation Report, West Fertilizer CompanyPlant Fire and Explosion, 

West, TX, April 17, 2013. REPORT 2013-02-I-TX. 

http://www.csb.gov/west-fertilizer-explosion-and-fire-/.

7

 U.S. Chemical Safety and Hazard Investigation Board (CSB). March 2007. Investigation Report: 

Refinery Explosion and Fire, BP, Texas City, Texas, March 23, 2005. Report No. 2005-04-I-TX.

http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf.

8 CSB. May 2014. Investigation Report: Catastrophic Rupture of Heat Exchanger, Tesoro Anacortes 

Refinery, Anacortes, Washington, April 2, 2010. Report No. 2010-08-I-WA.

http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014-May-01.pdf.

9 CSB. January 2014. Regulatory Report: Chevron Richmond Refinery Pipe Rupture and Fire, Chevron 

Richmond Refinery #4 Crude Unit, Richmond, California, August 6, 2012. Report No. 2012-03-I-CA. 

http://www.csb.gov/assets/1/19/CSB_Chevron_Richmond_Refinery_Regulatory_Report.pdf.

10 CSB. June 27, 2013. Testimony of Rafael Moure-Eraso, Ph.D. Chairperson, CSB Before the U.S. Senate 

Committee on Environment and Public Works, pg. 8.

http://www.csb.gov/assets/1/19/CSB_Written_Senate_Testimony_6.27.13.pdf

Commented [A34]: IA Comment #12 Page 20 Insert comma 

between “Texas” and “killed”. Insert comma between 

“Washington” and “killed”. Insert comma between “California” and 

“area”.

Commented [A35R34]: Changes incorporated throughout the 

document.

Commented [A36]: IA Comment #13 Page 20, please insert the 

word “people” after the following: “15”, “170”, “seven” and “two”.

Commented [A37R36]: Changes incorporated.
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Page 24 of 266

regulations (40 CFR part 68), on July 31, 2014, EPA published an RFI (79 FR 44604). 

Information collected through the RFI has informed this proposal. Readers are encouraged to 

review the RFI, as this notice action will not reiterate the full discussion of all of its topics.

EPA received a total of 579 public comments on the RFI. Several public comments were 

the result of various mass mail campaigns and contained numerous copies of letters or petition 

signatures. Approximately 99,710 letters and signatures were contained in these several 

comments. Discussion of RFI public comments pertaining to topics included in this proposal can 

be found below in Section section IV. Prevention Program Requirements, Section section V. 

Emergency Response Preparedness Requirements and Section section VI. Information 

Availability Requirements.

EPA seeks comment on the proposed amendments. Any suggestions for alternative 

options should include an appropriate rationale and supporting data for the Agency to be able to 

consider it for a final action.

A. Overview of EPA’s Risk Management Program Regulations. 

Both EPA’s 40 CFR part 68 RMP regulation11 and Occupational Safety and Health 

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

authorized in the Clean Air Act Amendments of 1990 (1990 CAAA). This was in response to a 

number of catastrophic chemical accidents occurring worldwide that had resulted in public and 

worker fatalities and injuries, environmental damage, and other community impacts. OSHA 

published the PSM standard in 1992 (57 FR 6356, February 24, 1992), as required by section 304 

of the 1990 CAAA, using its authority under 29 U.S.C. § 653.

 

11

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

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

terms to refer to 40 CFR part 68. The term “RMP” refers to the document required to be submitted under 

subpart F of 40 CFR part 68, the Risk Management Plan. See http://www2.epa.gov/rmp for more 

information on the Risk Management Program.
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The 1990 CAAA added accidental release provisions under section 112(r). The statute 

required EPA to develop a list of at least 100 regulated substances for accident prevention and 

related thresholds (CAA section 112(r)(3) through- (5)), and authorized EPA to issue accident 

prevention regulations (CAA section 112(r)(7)(A)). The statute also required EPA to develop 

“reasonable regulations” requiring facilities with over a threshold quantity (TQ) of a regulated 

substance to undertake accident prevention steps and submit a “risk management plan” to various 

local, state, and Federal planning entities (CAA section 112(r)(7)(B)).

EPA published the RMP regulation in two stages. The Agency published the list of 

regulated substances and TQs in 1994 (59 FR 4478, January 31, 1994) (the “list rule”)12 and 

published the RMP final regulation, containing risk management requirements for covered 

sources, in 1996 (61 FR 31668, June 20, 1996) (the “RMP rule”).13,14 Both the OSHA PSM 

standard and the EPA RMP rule aim to prevent or minimize the consequences of accidental 

chemical releases through implementation of management program elements that integrate 

technologies, procedures, and management practices. In addition to requiring implementation of 

management program elements, the RMP rule requires covered sources to submit (to EPA) a 

document summarizing the source’s risk management program – called a Risk Management Plan 

(or RMP). The RMP rule required covered sources to comply with its requirements and submit 

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

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

EPA later revised the list rule and the RMP rule. EPA modified the regulated list of 

substances by exempting solutions with less than 37% concentrations of hydrochloric acid (62 FR 

 

12

 Documents and information related to development of the list rule can be found in the EPA docket for 

the rulemaking, docket number A-91-74.

13

 Documents and information related to development of the RMP rule can be found in EPA docket 

number A-91-73.

14

 40 CFR part 68 applies to owners and operators of stationary sources that have more than a TQ of a 

regulated substance within a process. The regulations do not apply to chemical hazards other than listed 

substances held above a TQ within a regulated process. 
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Page 26 of 266

45130, August 25, 1997). EPA also deleted the category of Department of Transportation

Division 1.1 explosives, and exempted flammable substances in gasoline used as fuel and in 

naturally occurring hydrocarbon mixtures prior to initial processing (63 FR 640, January 6, 1998). 

EPA subsequently modified the RMP rule five times. First, in 1999, EPA revised the

facility identification data and contact information reported in the RMP (64 FR 964, January 6, 

1999). Next, EPA revised assumptions for the worst case scenario analysis for flammable 

substances and clarified what the Agency means by chemical storage not incidental to 

transportation (64 FR 28696, May 26, 1999). After the Chemical Safety Information, Site 

Security and Fuels Regulatory Relief Act (CSISSFRRA) was enacted on August 5, 1999, EPA 

excluded regulated flammable substances when used as a fuel or held for sale as a fuel at a retail 

facility (65 FR 13243, March 13, 2000). Later, EPA restricted access to offsite consequence 

analysis (OCA) data for the public and government officials to minimize the security risks 

associated with posting the information on the Internet (65 FR 48108, August 4, 2000). Finally, 

EPA revised the RMP executive summary to remove a requirement to describe the OCA; revised 

reporting deadlines for RMP reportable accidents and emergency contact changes; and made 

other minor revisions to RMP facility contact information (69 FR 18819, April 8, 2004).

The RMP rule establishes three “program levels” for regulated processes:

Program 1 applies to processes that would not affect the public in the case of a worst-case 

release and that have had no accidents with specific offsite consequences within the past five 

years. Program 1 imposes limited hazard assessment requirements, requires coordination with 

local response agencies, and requires submission of an RMP.

Program 2 applies to processes not eligible for Program 1 or subject to Program 3, and 

imposes streamlined prevention program requirements, including safety information, hazard 

review, operating procedures, training, maintenance, compliance audits, and incident 

investigation elements. Program 2 also imposes additional hazard assessment, management, and 

emergency response requirements.
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Page 27 of 266

Program 3 applies to processes not eligible for Program 1 and either subject to OSHA’s 

PSM standard under Federal or state OSHA programs or classified in one of ten specified 

industry sectors identified by their 2002 NAICS codes listed at § 68.10(d)(1). These industries 

were selected because they had a higher frequency of the most serious accidents as compared to 

other industry sectors. The ten NAICS codes and the industries they represent are 32211 (pulp 

mills), 32411 (petroleum refineries), 32511 (petrochemical manufacturing), 325181 (alkalies and 

chlorine manufacturing), 325188 (all other basic inorganic chemical manufacturing), 325192 

(cyclic crude and intermediate manufacturing), 325199 (all other basic chemical manufacturing), 

325211 (plastics material and resin manufacturing), 325311 (nitrogenous fertilizer 

manufacturing), or 32532 (pesticide and other agricultural chemicals manufacturing).15 Program 3 

imposes elements nearly identical to those in OSHA’s PSM standard as the accident prevention 

program. The Program 3 prevention program includes requirements relating to process safety 

information (PSI), PHA, operating procedures, training, mechanical integrity, management of 

change (MOC), pre-startup review, compliance audits, incident investigations, employee 

participation, hot work permits, and contractors. Program 3 also imposes the same hazard 

assessment, management, and emergency response requirements that are required for Program 2.

On July 22, 2015, OSHA issued a revised interpretation to its PSM retail exemption at 29 

CFR 119(a)(2)(i).

16 This interpretation now only allows facilities in NAICS codes 44 and 45, the 

retail trade, to be eligible for the retail exemption. As a result of this change, many agricultural 

chemical distributors who sell bulk anhydrous ammonia and some chemical warehouses, are no 

longer exempt from the PSM standard. This makes them subject to RMP Program 3 

requirements, whereas before most were covered under Program 2. 

 

15

 NAICS codes 325181 and 325188 are now combined and represented as 2012 revised NAICS code 

325180 (other basic inorganic chemical manufacturing). NAICS code 325192 is now 2012 revised NAICS 

code 325194 (cyclic crude, intermediate, and gum and wood chemical manufacturing).

16 See OSHA PSM Retail Exemption Policy

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29528
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EPA believes the RMP rule has been effective in preventing and mitigating chemical 

accidents in the United States and protecting human health and the environment from chemical 

hazards. However, major incidents, such as the West, Texas, explosion, highlight the importance 

of reviewing and evaluating current practices and regulatory requirements, and applying lessons 

learned from other incident investigations to advance process safety where needed.

III. Additional Information

A. What Actions Are Not Addressed in This Rule?

Under Section section 6 of Executive Order 13650, “Improving Chemical Facility Safety 

and Security,” the Executive Order Working Group (chaired by EPA, OSHA, and Department of 

Homeland Security ([DHS])) was tasked with enhancing safety at chemical facilities by 

identifying key improvements to existing risk management practices through guidance, policies, 

procedures, outreach, and regulations. As part of this task, the Working Group solicited public 

comment on potential options for improving chemical facility safety. Additionally, EPA gathered 

information from the public regarding potential changes to EPA’s Risk Management Program 

regulations (40 CFR part 68) via a RFI (79 FR 44604, July 31, 2014). Using the results from 

these efforts as well as information collected through implementing the Risk Management 

Program, EPA is proposing revisions to the RMP rule to advance chemical facility safety.

However, this proposed rule does not address all of the topics included in the RFI. For example, 

EPA will is not be proposing any revisions to the list of regulated substances and is therefore not 

addressing ammonium nitrate (AN) in this proposed rule. EPA may propose listing additional 

hazardous substances in a separate action.

Currently AN is not listed as a regulated substance under the RMP rule or the OSHA 

PSM standard. Required safe handling and storage practices for AN are covered under OSHA’s 

Explosives and Blasting Agents Standard (29 CFR 1910.109) and includes coverage of fertilizer 

grade AN in section 1910.109(i). Section 1910.109(k)(2) requires that manufacturing of 

explosives must meet requirements under OSHA’s PSM standard (29 CFR 1910.119); this would 

Commented [A38]: IA Comment #14 Page 25, EO 13650 

directed EPA to consider the potential addition of new chemical 

hazards to its RMP regulations and requested comment in its RFI 

about potential additions and deletions to the list. We may have 

missed it, but only saw an explicit discussion about ammonium 

nitrate and didn't see any discussion in the draft proposed rule 

about other chemical hazards. Is EPA planning subsequent 

rulemaking to close out this EO direction? If so, we would suggest 

that EPA discuss this in the preamble here. 

Commented [A41R40]: EPA is considering actions under EO 

13650 separately from this rulemaking and has not made any 

decisions on whether to revise the list of substances to address 

other chemical hazards at this time. However, EPA believes it is 

appropriate to discuss AN since this was involved in the West 

Fertilizer explosion. EPA added a sentence on page. 26 of the 

preamble indicating that we may address other chemical hazards at 

a later date.

Commented [A40]: IA Comment #1 EO 13650 directed EPA to 

consider the potential addition of new chemical hazards to its RMP 

regulations and requested comment in its RFI about potential 

additions and deletions to the list. I may have missed it, but I only 

saw an explicit discussion about ammonium nitrate and didn't see 

any discussion in the draft proposed rule about other chemical 

hazards. Is EPA planning subsequent rulemaking to close out this 

EO direction? If so, CEQ would suggest that EPA discuss this in the 

preamble here.

Commented [A39R38]: EPA is considering actions under EO 

13650 separately from this rulemaking and has not made any 

decisions on whether to revise the list of substances to address 

other chemical hazards at this time. However, EPA believes it is 

appropriate to discuss AN since this was involved in the West 

Fertilizer explosion. EPA added a sentence on page. 26 of the 

preamble indicating that we may address other chemical hazards at 

a later date.

Commented [A42]: IA v.2 Comment #2 Page 25, recommended 

edit: (chaired by EPA, OSHA, and Department of Homeland Security 

[(DHS]))

Commented [A43R42]: Change incorporated.

Commented [A44]: Added to address IA comments #1 and #14.
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include any explosive manufacturing process involving AN. OSHA is considering whether AN 

should be added to the § 1910.119 Appendix A list of chemicals subject to the PSM standard, 

which could expand the standard’s applicability to include processes at fertilizer mixers, 

distributors and wholesalers who store and handle AN. OSHA is also considering whether to 

make changes to the AN storage and handling requirements in their Explosives and Blasting 

Agents standard, which has requirements for AN stored with and without, explosives and blasting 

agents. DHS is considering potential modifications of its Chemical Facility Anti-Terrorism 

Standards (CFATS) regulation, including reviewing the applicability and/or modification of 

screening TQs for chemicals of interest in Appendix A in 6 CFR part 27, which include AN (79 

FR 48693, August 18, 2014).

17 We plan to coordinate any potential change to the list of 

substances 40 CFR part 68 with the actions of these other agencies. Therefore, EPA is not 

presently proposing that AN be added to the list of substances subject to the RMP rule, but the 

Agency may elect to propose such a listing at a later date. 

B. What is the Agency’s Authority for Taking This Action?

The statutory authority for this action is provided by section 112(r) of the CAA as 

amended (42 U.S.C. 7412(r)). Each of the portions of the Risk Management Program rule we 

propose to modify in this notice document are based on EPA’s rulemaking authority under 

section 112(r)(7) of the CAA (42 U.S.C. 7412(r)(7)). A more detailed discussion of the 

underlying statutory authority for the current requirements of the Risk Management Program rule 

appears in the noticeaction that proposed the Risk Management Program (58 FR 54190, 54191-93 

([Oct. 20, 1993)). ]). The prevention program provisions discussed below (auditing, incident 

investigation, and safer technologies alternatives analysis) address the “prevention and detection 

of accidental releases.” The emergency coordination and exercises provisions in this rule modify 

existing provisions that provide for “response to such release by the owners or operators of the 

 

17

 CFATS. 79 FR 48693, August 18, 2014. http://www.regulations.gov/#!documentDetail;D=DHS-2014-

0016-0001.
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sources of such releases.” (CAA 112(r)(7)(B)(i)). This paragraph calls for EPA’s regulations to 

recognize differences in “size, operations, processes, class and categories of sources.” In this 

noticedocument, we propose to maintain distinctions in prevention program levels and in 

response actions authorized by this provision. The information disclosure provisions discussed in 

this noticedocument generally assist in the development of “procedures and measures for 

emergency response after an accidental release of a regulated substance in order to protect human 

health and the environment.” This information disclosure ensures the emergency plans for 

impacts on the community are based on more relevant and accurate information than would 

otherwise be available and ensures that the public can become an informed participant in such 

emergency planning.

IV. Prevention Program Requirements

A. Incident Investigation and Accident History Requirements

1. Summary of Existing Investigation Requirements

Currently, owners or operators of facilities with processes subject to Program 2 and 

Program 3 are required to investigate each incident which resulted in, or could reasonably have

resulted in a catastrophic release (§§ 68.60 and 68.81). The RMP rule defines a catastrophic 

release in § 68.3 as a major uncontrolled emission, fire, or explosion, involving one or more 

regulated substances that presents an imminent and substantial endangerment to public health and 

the environment. Imminent and substantial endangerment includes offsite consequences such as 

death, injury, or adverse effects to human health or the environment, or the need for the public to 

shelter-in-place or be evacuated to avoid such consequences. 

Facility owners or operators are required to determine the factors that contributed to the 

incident and develop recommendations resulting from the investigation. The PHA (§ 68.67 (c)(2)) 

is required to address previous incidents which had a likely potential for catastrophic 

consequences. In the preamble to the existing final rule, EPA explained that while most 

catastrophic releases affect workers first, there are incidents where workers are protected but the 
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public and the environment may be threatened (e.g., emergency relief devices are designed to 

vent hazardous atmospheres away from the workplace and into the air where they may be carried 

downwind). The PHA should recognize and address the potential offsite impact associated with 

safety measures that protect workers (e.g., by installing a control device on an emergency vent). 

The RMP rule requires that facility owners and operators consider such possibilities and integrate 

the protection of workers, the public, and the environment into one program. Thus, RMP facility 

owners and operators must investigate each significant incident which resulted in, or could 

reasonably have resulted in a catastrophic release with on- or offsite consequences. 

2. Catastrophic Release Definition

In the 1996 final rule (61 FR 31687, June 20, 1996), EPA developed a definition of 

catastrophic release similar to the definition OSHA used in the PSM standard, with modifications 

to cover events that presented imminent and substantial endangerment to public health and the 

environment.18 This ensured that owners or operators of sources covered by both OSHA and EPA 

requirements investigated not only accidents that threatened workers, but also those that 

threatened the public and the environment. Because EPA modified OSHA’s definition of 

catastrophic releases so that offsite impacts were covered, there has been confusion among some 

owners and operators of facilities subject to the RMP rule; some believe they should not have to 

investigate accidents involving only workers for the purposes of fulfilling requirements under the 

RMP rule. EPA recognized that the PHA process must address potential offsite impacts 

associated with safety measures that also protect workers, and that the final rule would ensure that 

all sources routinely consider such possibilities and integrate protection of workers, the public 

and the environment into one program. In similar fashion, EPA believes that incident 

18

 The OSHA definition provides that “of cCatastrophic release is means similar to the current definition 

of the term in the RMP rule. However, OSHA’s definition pertains to incidents that a major uncontrolled 

emission, fire, or explosion, involving one or more highly hazardous chemicals, that presents serious 

danger to employees in the workplace.” (see 29 CFR 1910.119(b) for the full definition)

Commented [A45]: Edits in the footnote are to address Federal 

Register review-Quoting regulatory text is unacceptable, please fix 

and please fix any other text you have quoted in this document.
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investigation was not intended to be and should not be limited to only those incidents with offsite 

impacts. 

Learning from accident causes identified from incident investigations involving only 

workers can also lead to preventing incidents with further impacts to the surrounding community 

and therefore, findings and recommendations from all incidents, regardless of who is impacted, 

should be addressed. In the preamble to the 1996 final RMP rule (61 FR 31711, June 20, 1996), 

EPA emphasized that “any incident with the potential for catastrophic consequences in the 

workplace will also have had the potential for catastrophic consequences offsite.” Thus, facility 

owners or operators should be investigating incidents even if they only impacted workers, as 

these could have potentially been an accident impacting the public or the environment. 

EPA has not defined or clarified the term “imminent and substantial endangerment” but 

did make revisions in the 1996 final RMP rule in order to better define accidents to be reported 

under the RMP accident history requirements. To make the requirement less vague and less 

subject to a wide variety of interpretations, the final rule required that accident history shall 

include all accidental releases from covered processes “that resulted in deaths, injuries, or 

significant property damage on site, or known offsite deaths, injuries, evacuations, sheltering in 

place, property damage, or environmental damage.” EPA also provided a definition for “offsite” 

and “injury.” 

EPA is proposing to modify the definition of catastrophic release to be identical to the 

description definition of RMP reportable of accidental releases required to be reported under the 

accident history reporting requirements in § 68.42. The proposed definition, in § 68.3, to replaces

“that presents imminent and substantial endangerment to public health and the environment” with 

mean an uncontrolled emission, fire, or explosion, involving one or more regulated 

substancesimpacts that resulted in deaths, injuries, or significant property damage on- site, or 

known offsite deaths, injuries, evacuations, sheltering in place, property damage, or 

environmental damage. This better defines the impacts for incidents requiring investigations that 

Commented [A46]: IA Comment #16 Page 29, paragraph that 

starts with” EPA has not defined or clarified the term “imminent 

and substantial endangerment”

EPA switches from a discussion of accident investigation to accident 

history – this does not make the accident investigation requirement 

“less vague” – It applies only to accident history. Only the accident 

history requirement is “less vague.” Unless you read very carefully, 

you would think EPA was clarifying the catastrophic release 

definition, which it is not. EPA reinforces this confusion in later 

text suggesting that EPA use the language for accident history for 

accident investigation without a hint that these were different 

kinds of requirements.

Clearly the current accident history requirement applies to many 

more accidents and potential accidents than “catastrophic 

releases”. EPA is now asking the public as to whether it should 

equate the threshold for the two requirements, but without saying 

so. 

EPA should explain why it is now proposing to reduce the threshold 

for catastrophic release to be any sort of damage, instead of 

“substantial” or “major” as addressed in the current OSHA and EPA 

definitions. EPA needs to more transparently explain what it is 

doing. Why shouldn’t EPA retain consistency with the OSHA 

definition? EPA should request comment also on retaining the 

current catastrophic release definition, and retaining consistency 

with OSHA. 

Is OSHA planning also to downgrade the meaning of catastrophic 

release?

Commented [A47R46]: EPA disagrees with the premise that 

the current incident investigation criteria includes a subset of 

accidents to be reported (i.e., something more severe). It would 

have been inconsistent to require reporting about contributing 

factors of an accident that does not need to be investigated. 

Therefore, EPA believes it is necessary to provide clarification and is 

making the catastrophic release definition consistent with the 

accident history reporting requirements of the rule.

Commented [A48]: IA Comment #95 How is significant 

property damage defined?

Commented [A49R48]: There is no definition for significant 

property damage in the existing RMP rule. EPA has not proposed 

any changes to this term in the NPRM.

Commented [A50]: IA v.4 Comment-B Page 30 – OGC 

comments precluding use of regulatory text – is counterproductive.

EPA needs to explain the actual words in definitions – this makes 

the preamble harder to read and follow. Can EPA work around 

whatever this rule is to discuss the actual regulatory text so that the 

...

Commented [A51R50]: The Federal Register will not publish 

this document if the preamble quotes regulatory text. These 

changes are to address the FR concerns.

Commented [A52]: IA v.3 Comment #5 Page 30, edit: EPA is 

proposing to modify the definition of catastrophic release to be 

identical to the definition of reportable accidents. Under the new 

proposal, a catastrophic release also means...

Commented [A53R52]: Changes incorporated with 

modifications.

Commented [A54]: Edits to address Federal Register reviewQuoting regulatory text is unacceptable, please fix and please fix 

any other text you have quoted in this document.

1
Page 32: [1] Commented Author 

IA v.4 Comment‐B Page 30 – OGC comments precluding use of regulatory text – is

counterproductive.

EPA needs to explain the actual words in definitions – this makes the preamble harder to read and

follow.   Can EPA work around whatever this rule is to discuss the actual regulatory text so that the reader can

understand the discussion?   See other comments with the same problem – including discussion of catastrophic

release on page 32.   How do we explain the definition change, without citing the words of the definition – and

making the case that this is just a clarification?  EPA needs to return to the earlier words to make this

understandable.   Also – page 42 – root cause.

Expanded comments for page 32

pg 32b
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caused or could have caused these impacts and clarifies EPA’s intent, rather than leaving it open 

for interpretation. This is consistent with the accident impacts that must be reported under the 5-

year accident history, which EPA considered relevant to include in 1996 “because it may reflect 

safety practices at the source” and because “accidental releases from covered processes which 

resulted in deaths, injuries, or significant property damage on-site, involve failures of sufficient 

magnitude that they have the potential to affect offsite areas.”19

As required by section 609(b) of the RFA, the EPA convened a Small Business 

Advocacy Review (SBAR) Panel to obtain advice and recommendations from small entity 

representatives (SERs) that would potentially be subject to the rule's requirements. As part of the 

SBAR Panel process, some SERs indicated that EPA’s proposed modification of the definition of 

catastrophic release would in effect expand that definition, and thereby require investigation of 

incidents that did not fall under the previous definition. SERs noted that EPA’s current definition

includes releases that present an imminent and substantial endangerment to public health and the 

environment, and that such releases represent only “major” accidents, and not smaller releases 

that endanger only workers or on-site property. As noted above, EPA’s view is that accidents 

with only on-site impacts warrant investigation because they have the potential to affect offsite 

areas. Additionally, since such accidents already clearly fall within the accident history reporting 

criteria, regulated sources would already need to investigate them, even without the incident 

investigation provisions, in order to determine the accident history information required under 

§68.42, which includes data (e.g., initiating event and contributing factors) that could only be 

determined through an investigation. Therefore, EPA believes that redefining the term 

catastrophic release to include the categories of accidents that require reporting under the accident 

history provisions clarifies, rather than expands, that definition. Nevertheless, EPA seeks 

comment on the proposed revision to the catastrophic release definition, whether it expands the 

 

19

 EPA. May 1424, 1996. Risk Management Plan Rule, Summary and Response to Comments. Volume 1, 

pp. 3-11 and 17-4. Docket No. A-91-73, Document No. IX-C-1.

Commented [A55]: IA Comment #15 Page 28, footnote 17 

insert, The OSHA definition provides that “Catastrophic release

means a major uncontrolled emission, fire, or explosion, involving 

one or more highly hazardous chemicals, that presents serious 

danger to employees in the workplace.”

Commented [A56R55]: This was the original footnote 17. 

Change incorporated as a footnote to the first sentence of this 

section on page 29.

Commented [A57]: New preamble discussion to address OMB 

comment that we be careful not to expand, rather than clarify, the 

catastrophic release definition.
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scope of the current definition instead of clarifying it, and whether itthe definition should be 

limited to loss of life; serious injury; significant damage; or loss of offsite property.

3. Root Causes

The cause of an incident is often the result of a series of other problems that need to be 

addressed to prevent recurrences. For example, an operator’s mistake may be the result of poor 

training, inappropriate procedures, or poor design of control systems; and equipment failure may 

result from improper maintenance, misuse of equipment (e.g., operating at too high a 

temperature), or use of incompatible materials. These types of causes are commonly referred to as 

causal factors (also known as contributing causes, contributory causes, contributing factors, or 

critical factors). The Center for Chemical Process Safety (CCPS) defines a causal factor as a 

major unplanned, unintended contributor to the incident (a negative occurrence or undesirable 

condition), that if eliminated would have either prevented the occurrence, or reduced its severity 

or frequency.20 These are factors that facilitate the occurrence of an incident such as physical 

conditions and management practices. Causal or contributing factors usually have underlying 

reasons why they occurred, which are known as root causes. 

Most root causes are associated with weaknesses, defects or breakdowns in management 

systems.21 Identifying root causes provides the mechanism for understanding the interaction and 

impact of system management failures, so that the root causes can be addressed and the maximum 

benefit is obtained from an incident investigation. CCPS defines a root cause as a fundamental, 

underlying, system-related reason why an incident occurred that identifies a correctable failure(s) 

in management systems. There is typically more than one root cause for a process safety incident. 

Correcting only the immediate cause of an incident (e.g., operator error) may prevent the identical 

incident from occurring at the same location, but may not prevent similar incidents. Instead, 

 

20

 CCPS. March 2003. Guidelines for Investigating Chemical Process Incidents, 2nd ed., pp.3, 62, 181, 

434. CCPS, American Institute of Chemical Engineers, New York, NY. John Wiley and Sons.

21

 EPA recognizes that some root causes could be events that management systems could not have 

prevented or protected against. The analytic techniques used to identify root causes account for such events. 

Commented [A58]: Change addresses SBAR panel 

recommendation.

Commented [A59]: IA v.3 Comment #14 Page 31, 

recommended edit: EPA seeks comment on the proposed revision 

to the catastrophic release definition, whether it is consistent with 

the current definition and whether it should be limited to loss of 

life; serious injury; significant damage; or loss of offsite property.

Commented [A60R59]: Change incorporated with 

modifications. EPA also added additional discussion to clarify that 

the intent of the proposed changes is clarification. 
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identifying and addressing incident contributing factors and their root causes helps eliminate or 

substantially reduce the risk of reoccurrence of the incident and other similar incidents. The 

current rRisk mManagement pProgram incident investigation requirements under §§ 68.60 and 

68.81 do not explicitly require root causes to be determined and reported, rather they only require 

“the factors that contributed to the incident.” Facility owners and operators that conduct incident 

investigations that only identify “factors that contributed to the incident” may miss identifying the 

underlying, system-related reason why an incident occurred (which would be revealed in a root 

cause analysis). Thus EPA is proposing to require a root cause analysis to ensure that, the current 

requirements may not result in facilities determineing the type ofunderlying causes of an incident, 

that if identified and addressed, would help to reduce or eliminate the potential for additional 

accidents that could resulting from deficiencies of the same process safety management 

practicesystem identified in the root cause.

4. Lack of Root Cause Analysis for Prior Incidents

Below are examples of incident investigations that identified similar prior incidents 

within the same facility or company where root causes for the prior incidents were not analyzed 

and determined. This resulted in missed opportunities to address the proper causes of the 

incidents, share the lessons learned and prevent further similar incidents. 

On January 21, 1997, at a Tosco refinery, effluent piping on a hydrocracker reactor 

ruptured, causing an explosion and fire, killing one operator and injuring 46 other Tosco and 

contractor personnel. The accident was caused by an uncontrolled temperature excursion in the 

reactor resulting in an excessively high temperature that caused the pipe to rupture.22 Operators 

did not follow prescribed emergency depressurizing procedures for extremely high temperature 

occurrences and attempted to control the temperature by other means. Investigations of prior 

incidents involving unsafe temperature excursions were inadequate and not all these excursions 

22

 EPA. November 1998. EPA Chemical Accident Investigation Report, Tosco Avon Refinery, Martinez, 

CA. EPA 550-R-98-009. http://nepis.epa.gov/Exe/ZyPDF.cgi/10003A2E.PDF?Dockey=10003A2E.PDF.

Commented [A61]: Added to address SBAR panel 

recommendation.
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were documented. Failure to investigate these “near-misses” resulted in a missed opportunity to 

determine why operators were not following prescribed emergency depressurizing procedures and 

to develop solutions to address the cause. After the 1997 accident, the company designed the 

depressurizing system to activate automatically when the reactor temperature exceeded safe 

operating limits. 

On September 10, 1997, an explosion occurred in a resins production unit at GeorgiaPacific Resins, Inc. in Columbus, Ohio, causing the death of one worker, four injuries, extensive 

damage to the plant, and sheltering in place for nearby residents, a vocational school and 

businesses.23 Three firefighters received first-degree burns. An accident investigation determined 

that raw materials and a catalyst were charged too quickly to a reactor, causing a runaway 

reaction generating too much heat and pressure, which caused the reactor to explode. Prior to the 

accident, the facility had recently experienced a near miss involving similar circumstances.24 An 

operator added chemicals to a batch resin process at too high a rate. Other alert operators noted 

the procedural deviation and were able to prevent an accident. The company investigated the 

accident and disciplined the operator, but took no other actions.

An accident on June 22, 1997, at a Shell olefins plant involved a release of flammable 

gases from a structural failure and drive shaft blowout from a 36 inch diameter failed check (nonreturn) valve, resulting in a massive explosion and fire causing extensive damage to the facility, 

damage to nearby residential property, several worker injuries, and sheltering in place for nearby 

residents. An EPA/OSHA accident investigation determined that these check valves were not 

appropriately designed and manufactured for the heavy-duty service to which they were subjected 

 

23

 EPA, Office of Solid Waste and Emergency Response. August 1999. How to Prevent Runaway 

Reactions, Case Study: Phenol-Formaldehyde Reaction Hazards. EPA 550-F99-004. 

http://archive.epa.gov/emergencies/docs/chem/web/pdf/gpcasstd.pdf.

24 Belke, James C (EPA). 1997. Recurring Causes of Recent Chemical Accidents. 

http://psc.che.tamu.edu/wp-content/uploads/recurring-causes-of-recent-chemical-accidents.pdf.
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in the olefins production unit.25 Similar problems with the check valves had occurred previously 

at the facility and at other facilities owned by the company, but the occurrences were not 

adequately investigated and did not identify all the factors involved in the valves’ failure. The 

other valve failure occurrences did not result in as severe consequences as the 1997 event and 

were treated as maintenance failures, not incidents or accidents. Thus, the lessons that could have 

been learned from these prior failures were not adequately identified, shared, and implemented.

On April 8, 1998, at a Morton International chemical plant, a runaway reaction in a 

process kettle caused an overpressure of the vessel, blew off the top hatch, and spewed a stream 

of gas and liquid through the roof of the building and down onto the surrounding community. 

Residents in a 100 city-block area were confined to their homes. Nine workers were injured, two 

with severe burns. The U.S. Chemical Safety Board (CSB) determined that Morton could have 

corrected safety problems in the process if they had conducted investigations into any of the eight 

prior instances when process temperatures exceeded the normal range.26 Process and design 

changes resulting from such investigations could have prevented the 1998 explosion. 

On April 23, 2004, an explosion and fire at the Formosa Plastics Corporation (FPC 

USA), Illiopolis, Illinois, (Formosa-IL) polyvinyl chloride (PVC) manufacturing facility killed 

five and severely injured three workers. The explosion and fire destroyed most of the reactor 

facility and adjacent warehouse and ignited PVC resins stored in the warehouse. Smoke from the 

smoldering fire drifted over the local community, and as a precaution, local authorities ordered an 

evacuation of the community for two days. CSB determined that this incident occurred when an 

operator drained a full, heated, and pressurized PVC reactor and bypassed a pressure interlock.27

 

25

 EPA and OSHA. June 1998. EPA/OSHA Joint Chemical Accident Investigation Report, Shell Chemical 

Company, Deer Park, TX. EPA 550-R-98-005. 

http://nepis.epa.gov/Exe/ZyPDF.cgi/100039YA.PDF?Dockey=100039YA.PDF.

26 CSB. 2000. Investigation Digest: Morton International Explosion, Paterson, NJ, April 8, 1998. 

http://www.csb.gov/assets/1/19/Morton_Digest.pdf.

27 CSB. March 2007. Investigation Report: VCM Explosion, Formosa Plastics Corp., Illiopolis, Illinois, 

April 23, 2004. Report No. 2004-10-I-IL. http://www.csb.gov/assets/1/19/Formosa_IL_Report.pdf

http://www.csb.gov/assets/1/19/Formosa_IL_Report.pdf.
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The safeguards to prevent bypassing the interlock were insufficient for the high risk associated 

with this activity. Two similar incidents at FPC USA PVC manufacturing facilities highlighted 

problems with safeguards designed to prevent inadvertent discharge of an operating reactor. The 

FPC USA Environmental Health & Safety group had received reports of both incidents, but did 

not recognize a key similarity: operators could mistakenly go to the wrong reactor and bypass 

safeguards to open a reactor bottom valve. 

On March 23, 2005, at the BP Texas City Refinery in Texas City, TXTexas, explosions 

and fires killed 15 people and injured another 180, required shelter-in-place for 43,000 people, 

damaged nearby houses, and resulted in financial losses exceeding $1.5 billion. The incident 

occurred during the startup of an isomerization (ISOM) unit when a raffinate splitter tower was 

overfilled and pressure relief devices opened, resulting in a flammable liquid geyser from a 

blowdown stack that was not equipped with a flare. The release of flammables led to an explosion 

and fire. All of the fatalities occurred in or near office trailers located close to the blowdown 

drum. A CSB investigation found that in the years prior to the incident, eight serious releases of 

flammable material from the ISOM blowdown stack had occurred, and most ISOM startups 

experienced high liquid levels in the splitter tower.28 The investigation identified root causes of 

the accident involving senior leadership failures including: 

 ineffective safety culture leadership and oversight;

 ineffective evaluation of safety implications or organization, personnel, and policy

changes; and

 inadequate resources to prevent major accidents.

Root causes identified involving plant management failures included: 

 lack of an effective reporting and learning culture (incidents were often ineffectively 

investigated);

28

 CSB. March 2007. Investigation Report: Refinery Explosion and Fire, BP, Texas City, Texas, March 23, 

2005. Report No. 2005-04-I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf . 
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 use of outdated plant policies and procedures; 

 poor design of the ISOM unit; 

 inadequate supervision of operators; 

 inadequate training of operators; and

 ineffective consideration of human factors regarding training, staffing, and work 

schedules for operators. 

The ineffective investigation of previous incidents resulted in a failure to identify, or act 

upon, lessons from incidents and near-misses. This includes a failure to incorporate relevant 

safety lessons from a British government investigation29 of incidents at BP’s Grangemouth, 

Scotland, refinery, which were relevant to the Texas City refinery. 

On August 23, 2010, the Millard Refrigerated Service warehouse in Theodore, AL 

Alabama, had a release of approximately 32,000 pounds of anhydrous ammonia from a cracked 

pipe, when refrigeration equipment malfunctioned. The ammonia travelled directly over a 

shipyard in Mobile, AL Alabama, where more than 800 people were working, causing 152 people 

to be treated at hospitals, four of whom were admitted into intensive care units. An EPA 

investigation of the incident revealed that Millard failed to adequately address a well-known risk 

for ammonia production systems called hydraulic shock, which can cause catastrophic equipment 

failures.30 EPA also discovered that Millard had two prior smaller ammonia releases in April 

2007 and January 2010 caused by hydraulic shock. Company investigations of those incidents 

 

29

 Health and Safety Executive (United Kingdom) and Scottish Environment Protection Agency. August 

18, 2003. Major Incident Investigation Report-BP Grangemouth Scotland, 29th June- 10th May, 2000. A 

Public Report Prepared on Behalf of the Competent Authority. 

http://www.hse.gov.uk/comah/bpgrange/images/bprgrangemouth.pdf.

30 EPA. May 29, 2015. USA vs. Millard Refrigerated Services, LLC, US District Court for the Southern 

District of Alabama, Civil Action No. 15-186. pp. 9-11, and 19-20. Case 1:15-cv-00186-WS-M Document 

5. http://www2.epa.gov/sites/production/files/2015-06/documents/millard-cp.pdf.

See also http://www2.epa.gov/enforcement/millard-refrigerated-services-llc-clean-air-act-caa-settlement.
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failed to identify and correct this problem, which could have prevented the catastrophic release 

that occurred in August 2010. 

5. Current Use of Root Cause Analysis

Root cause analysis of accidents is an accepted safe management practice used by many 

industries. The American Chemistry Council (ACC) noted that root cause analysis is conducted 

routinely under a number of voluntary programs, including Responsible Care.31 The Texas 

Pipeline Association (TPA) stated that a requirement to perform a root cause analysis was not 

needed because it is a common industry practice.32 However, the Compressed Gas Association 

(CGA) stated that they supported modifying current regulations to include a requirement that root 

cause analyses be conducted for incidents but not for near misses or process upsets because 

defining a “near miss” or “process upset” is extremely difficult and will likely vary by industry, 

process, locations and the like.33 EPA addresses the difficulty of defining the term “near miss”, in 

Section section IV.A.7. Near Misses. 

ACC also notes that there are a number of recognized industry resources to aid incident 

investigations of root causes. For example, CCPS offers several resources, including the 

“Guidelines for Investigating Chemical Process Incidents,” 2nd edition, which provides valuable, 

practical reference tools, and focuses on process-related incidents with real or potential 

catastrophic consequences.34 ACC further notes that there are a number of companies that provide 

excellent root cause failure analysis training. 

31 ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0694 on Risk Management Program 

RFI, p. 43 of 189. 

32

 TPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0617 on Risk Management Program 

RFI, p. 8. 

33 CGA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0633 on Risk Management Program 

RFI, p. 6 

34

 CCPS 2003. Center for Chemical Process Safety, Guidelines for Investigating Chemical Process 

Incidents, 2nd Edition, NY: AIChE. 
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California’s Contra Costa County Health Services (CCHS) and the city of Richmond, CA 

California, each have incident investigation regulations in their Industrial Safety Ordinances 

(ISO) similar to those in § 68.81 and, in addition, require a root cause analysis for each major 

chemical accident.35,36

New Jersey’s Toxic Catastrophe Prevention Act (TCPA) requires investigation of all 

extraordinarily hazardous substance accidents or potential catastrophic events. The TCPA 

requirements have the same incident investigation requirements found in § 68.81, but the TCPA 

investigation report requires additional information beyond the requirements in § 68.81. 37 The 

TCPA investigation report must include:

 Time and location of the chemical accident or potential catastrophic event;

 A description of the chemical accident or potential catastrophic event in 

chronological order, providing all the relevant facts;

 The identity, amount, and duration of the chemical release if these facts can be 

reasonably determined based on the information obtained through the investigation; 

 The consequences, if any, of the chemical accident or potential catastrophic event, 

including the number of evacuees, injured, and fatalities, and the impact on the 

community;

 The factors that contributed to the chemical accident or potential catastrophic event 

that includes an identification of basic and contributory causes, either direct or 

indirect; and

 

35

 Contra Costa County Board of Supervisors. 2006. California’s Contra Costa County ISO, pp. 5, 12-13, 

17-19. http://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.

36

 A major chemical accident is defined in the ISO as one meeting a level 2 or 3 incident classification as 

determined by the county or one resulting in: one or more fatalities; at least three persons hospitalized for at 

24 hours; on- and/or offsite property damage (including clean-up and restoration activities) initially 

estimated at $500,000 or more; or a vapor cloud of flammables and/or combustibles that is more than 5,000 

pounds.

37

 New Jersey Department of Environmental Protection (NJDEP) TCPA. March 29, 2012. NJDEP. Title 7, 

Chapter 31 TCPA Program Consolidated Rule Document, p. 62. 

http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf.

Commented [A62]: IA Comment #126 Page 37, the preamble 

mentions “basic” incident causes. This is the first only use of 

“basic” in that context. Up to that point, the preamble uses both 

“fundamental” and “root” cause. The language should remain 

consistent to avoid confusion.

Commented [A63R62]: The reference to “basic” is because 

this language is quoting NJ TCPA requirements.
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 The names and position titles of the investigators. 

Once the incident scenario is understood and contributory causes identified, this 

information may be used to determine the incident’s root causes which are the underlying 

systemic reasons related to a failure in a management system. 

EPA believes that providing the following information is vital for understanding the 

nature of the incident and should be included in the incident investigation report:

 the chronological order of details of the incidents, 

 the chemical identity, 

 amount and duration of the release, 

 the impacts of the release, and 

 basic and contributory causes, either direct or indirect. 

Some facility owners or operators may already include this information in incident investigation 

reports prepared to comply with the RMP rule; however, EPA is proposing that §§ 68.60 and 

68.81 be revised to require this information to ensure clarity and consistency among reports. 

To better address causes of incidents and further reduce the occurrence of catastrophic 

releases, EPA is proposing to require that for all Program 2 and Program 3 process incidents that

resulted in, or could reasonably have resulted in, a catastrophic release, the owner or operator 

determine and identify the factors that contributed to the incident, including immediate and 

contributory causes, either direct or indirect, and root causes. EPA is proposing to define “root 

cause” in (see § 68.3 for the proposed definition). to mean a fundamental, underlying, systemrelated reason why an incident occurred that identifies a correctable failure(s) in management 

systems.

Root causes shall be determined by conducting a root cause analysis for each incident 

using a recognized method or approach. CCPS’ “Guidelines for Investigating Chemical Process 

Incidents” discusses incident investigation approaches and techniques and root cause analysis 

Commented [A64]: Edits to address Federal Register reviewQuoting regulatory text is unacceptable, please fix and please fix 

any other text you have quoted in this document.
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methods.38 OSHA plans to develop a fact sheet on existing resources that explain how to conduct 

root cause analyses so the regulated community can better understand the causes of incidents and 

can increase its capability to effectively prevent future occurrences.39 

In order that lessons learned from incident investigations be applied, EPA is proposing to 

modify the hazard review requirement in § 68.50(a)(2) and the PHA requirement in § 68.67(c)(2) 

to require the owner or operator to address findings from all incident investigations required 

under §§ 68.60 and 68.81, respectively. EPA is also proposing to require that for incident 

investigations conducted by Program 2 sources, an incident investigation team be established and 

consist of at least one person knowledgeable in the process involved and other persons with 

appropriate knowledge and experience to thoroughly investigate and analyze the incident. This 

requirement is already part of Program 3 incident investigation requirements, and is a necessary 

component for investigations that would include analysis of root causes. 

EPA seeks comment on the proposed amendments of the incident investigation 

requirements to require root cause investigations for each incident which resulted in, or could 

reasonably have resulted in, a catastrophic release and on the proposed definition for root cause. 

EPA seeks comment on whetherIs a root cause analysis is appropriate for every RMP reportable 

accident and near miss. S, or should EPA eliminate the root cause analysis, or revise to limit or 

increase the scope or applicability of the root cause analysis requirement? If so, how should EPA 

limit revise the scope or applicability of this proposed requirement? EPA also seeks comment on 

proposed amendments to require consideration of incident investigation findings, in the hazard 

review (§ 68.50) and PHA (§ 68.67) requirements. Finally, EPA seeks comment on the proposed 

additional requirement in § 68.60 to require personnel with appropriate knowledge of the facility 

38 CCPS. March 2003. Guidelines for Investigating Chemical Process Incidents, 2nd ed. 

39

 Chemical Facility Safety and Security Working Group. May 2014. Executive Order 13650 Report to the 

President – Actions to Improve Chemical Facility Safety and Security – A Shared Commitment, p. 47. 

https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf.

Commented [A65]: IA Comment #17 Page 39, suggest rewrite 

of the following: “Is a root cause analysis appropriate for every 

reportable accident and near miss, or should EPA limit the scope or 

applicability of the root cause analysis requirement? If so, how 

should EPA limit the scope or applicability of this proposed 

requirement?” to “EPA seeks comment on whether a root cause 

analysis is appropriate for every reportable accident and near miss. 

Should EPA limit or increase the scope or applicability of the root 

cause analysis requirement?

Commented [A66R65]: Change incorporated with 

modifications to also address SBAR panel recommendations.
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process and knowledge and experience in incident investigation techniques to participate on an 

incident investigation team. 

6. Decommissioned Processes

EPA has encountered some cases where a facility chose not to conduct an incident 

investigation because the owner or operator elected to decommission the process involved, or 

because the process was destroyed in the incident. While an investigation would have no impact 

on a decommissioned or destroyed process, other similar processes or operations at the facility, or 

at similar facilities, could potentially benefit from its findings. 

CCHS and two industry associations commented that there are lessons that can be learned 

from requiring investigations to be performed, even in cases where the owner or operator elects to 

decommission the process involved or where the process is destroyed in the incident.40, 41

Therefore, EPA is proposing to revise §§ 68.60 and 68.81 to clarify that incident investigations 

are required even if the process involving the regulated substance is destroyed or 

decommissioned following or as the result of an incident. EPA is also proposing to revise §

68.190, which addresses updates to the RMP, to require that prior to any de-registration of a 

process or stationary source that is no longer subject to the Risk Management Program rule, the 

owner or operator must report any accidents subject to the requirements of § 68.42 and conduct 

incident investigations as required under §§ 68.60 and/or 68.81. EPA seeks comment on the 

proposed revisions to require an owner or operator to meet applicable reporting and incident 

investigation requirements prior to de-registering a process. 

7. Near Misses

 

40

 CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-0546 on Risk Management 

Program RFI, p. 12. 

41

 Independent Petroleum Association of America (IPAA) and American Exploration & Production 

Council (AXPC). October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0584 on Risk Management 

Program RFI, p. 33.

Commented [A67]: IA Comment #125 Regarding the incident 

investigation and public meeting after an accident, what is the 

facility was destroyed or closed down permanently after the 

accident. Would the facility still have to comply with the 

requirements set forth in this rulemaking? 

Commented [A68R67]: Yes-EPA is proposing to amend 

§68.190 to require that accidents be reported and incident 

investigation reports be completed before the owner or operator 

can deregister the process or stationary source. See discussion in 

preamble for decommissioned processes.

EPA is proposing to require a public meeting within 30 days of an 

accident. This would still apply if the process is destroyed or source 

permanently closed. EPA added additional preamble language on 

pg. 140 to clarify requirements for public meetings.
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The current incident investigation provisions require facilities with Program 2 and/or 3 

processes to investigate incidents that could reasonably have resulted in a catastrophic release. 

These types of incidents are sometimes characterized as “near misses” but there is confusion 

about what this term means. Several commenters on the Risk Management Program RFI, 

including the Society of Chemical Manufacturers and Affiliates (SOCMA),42 American 

Petroleum Institute (API),43 Gas Processors Association (GPA),44 National Oilseed Processors 

Association (NOPA), & Corn Refiners Association (CRA),45 and American Fuel & Petroleum 

Petrochemical Manufacturers (AFPM),46 stated that they interpret the current requirements as 

including near misses. Other commenters (ACC,47 TPA,48 CGA,4931 DPC Industries, Inc.,50 and 

Allied Universal Corp [(AUC])51) urged EPA to not require investigations of near misses because 

the term is vague, inherently situation-specific and not reducible to a singular definition. CCPS 

defines a near miss as an event in which an accident causing injury, death, property damage, or 

environmental impact, could have plausibly resulted if circumstances had been slightly 

different.52

 

42

 SOCMA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0560 on Risk Management 

Program RFI, p. 9. 

43

 API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0624 on Risk Management Program 

RFI, p. 32. 

44

 GPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0626 on Risk Management Program 

RFI, p. 12. 

45

 NOPA & CRA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0328 on Risk Management 

Program RFI, pp. 30-31. 

46

 AFPM. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0665 on Risk Management 

Program RFI, pp. 46-47. 

47

 ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0694 on Risk Management Program 

RFI, PDF pp. 44-45 of 189. 

48

 TPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0617 on Risk Management Program 

RFI, pp. 7-8. 

49

 CGA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0633 on Risk Management Program 

RFI, p. 6.

50

 DPC Industries, Inc. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0649 on Risk 

Management Program RFI, p. 4. 

51

 AUC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0646 on Risk Management Program 

RFI, p. 3. 

52

 CCPS. March 2003. Guidelines for Investigating Chemical Process Incidents, 2nd ed., p. 61. 

Commented [A69]: 2-1-16 This edit addresses a comment from 

FR office. Footnote number was incorrect.
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EPA itself may have contributed to the confusion over the meaning of the term “near 

miss.” In the 1993 proposed RMP rule (58 FR 54200, October 20 1993), EPA indicated that 

investigation of near misses could provide facilities with important information on problems that 

should be addressed before a significant accidental release occurs. EPA considered a near miss as 

a mishap that did not result in a release for some reason, such as employee actions or luck. 

However, in the primary interpretive guidance document for the RMP rule, “General Guidance on 

Risk Management Programs for Chemical Accident Prevention (40 CFR Part part 68)” (RMP 

Guidance), originally published in 1999, EPA indicated that while the owner or operator “must 

investigate each incident which resulted in, or could have resulted in, a catastrophic release of a 

regulated substance,” the owner or operator was not required to investigate “minor accidents or 

near misses:” 

You should also consider investigating minor accidents or near misses because 

they may help you identify problems that could lead to more serious accidents; 

however, you are not required to do so under part 68.

53

Here, EPA intended to differentiate between incidents, which “could have resulted in a 

catastrophic release,” and “minor accidents and [minor] near misses,” which are unlikely to have 

led to a catastrophic release. 

EPA’s experiences with RMP facility inspections and incident investigations show there 

have been incidents that were not investigated, even though under slightly different 

circumstances, the incident could have resulted in a catastrophic release. While these events did 

not result in deaths, injuries, adverse health or environmental effects, or sheltering-in-place, if 

circumstances had been slightly different, a catastrophic release could have occurred. For 

example, a runaway reaction that is brought under control by operators is a near miss that may 

need to be investigated to determine why the problem occurred, even if it does not directly 

 

53

 See General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR part 

68), EPA-550-B-04-001, April 2004, page 6-26. http://www2.epa.gov/rmp/guidance-facilities-riskmanagement-programs-rmp#general

Commented [A70]: IA Comment #18 Page 41, footnote 51: In 

this 2004 guidance, EPA is distinguishing between “minor 

accidents” not warranting accident investigation and catastrophic 

accidents that do. However, minor accidents would now be 

included in EPA’s new definition of “catastrophic”, because it now 

includes any type of property damage, shelter in place or 

environmental damage, suggesting that EPA is modifying its 2004 

views. 

It would be better to reserve accident reviews for “major” or 

“substantial” harm, rather than minor accidents, such as a small 

excursion in process limits. If EPA adheres to its current proposal 

approach for modifying the catastrophic definition, it should 

transparently explain that it is departing from the 2004 guidance 

cited here.

Commented [A71R70]: EPA still believes that minor accidents 

and minor near misses do not require investigation and do not 

require reporting under 68.42. 

Minor accidents and minor near misses may include events that do 

not meet EPA consequence categories such as when a person is 

hurt but does not meet our definition of injury (i.e., require medical 

treatment beyond first aid) or a small release that does not cause 

reportable impacts.

A near miss could be a minor accident or could be an event that 

involves no release (e.g., an event where all layers of protection 

except one failed). 

Minor accidents are not necessarily near misses because they do 

not always have the potential to be a catastrophic release.

EPA believes that our proposed approach is consistent with our 

guidance. Whether or not the incident in investigated as a potential 

catastrophic release would depend upon numerous case-specific 

factors.
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involve a covered process both because it may have led to a release from a nearby covered 

process or because it may indicate a safety management failure that applies to a covered process 

at the facility. Similarly, fires and explosions near or within a covered process, any unanticipated 

release of a regulated substance, and some process upsets could potentially lead to a catastrophic 

release. 

Facilities regulated under the New Jersey’s TCPA program are required to investigate 

each regulated chemical (“extraordinarily hazardous substance”), involved in an accident or 

potential catastrophic event.54 The NJDEP notes that “potential catastrophic event” means an 

incident that could have reasonably resulted in a catastrophic release of a regulated chemical 

which includes incidents in which no regulated chemical was released or no regulated chemical 

was released beyond a permitted level, or in other words, a near miss. Facilities report accidents 

and potential catastrophic events annually to New Jersey. NJDEP notes that each year, less than 

fifty percent of the facilities reported that they had one or more incidents.55 Most of the incidents 

reported involved the release of a regulated chemical. The number of near misses reported 

averaged less than 1 per facility.

In its comments on the Risk Management Program RFI, GPA reasoned that requiring a 

root cause analysis for minor near misses would be burdensome and costly and would discourage 

employees and contractors from reporting near misses because of the burden of conducting a 

rigorous investigation.56 Similarly, some commenters, such as API thought that process upsets 

should not be included in incident investigation requirements because there is no standard 

definition; process upsets vary across a wide range from product quality/efficiency issues to ones 

 

54

 NJDEP TCPA. March 29, 2012. NJ Title 7, Chapter 31 TCPA Program Consolidated Rule Document, p. 

2. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf.

55

 NJDEP. October 21, 2014. Comment No. EPA-HQ-OEM-2014-0328-0338 on Risk Management 

Program RFI, p. 16. 

56

 GPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0626 on Risk Management Program 

RFI, p. 14. 
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that represent near-miss situations; and learning from process upset events that do potentially 

challenge process safety systems can be accomplished via other means. According to API, 

including all process upsets would overburden the root cause analysis/investigation resources 

within a facility.

57

CCPS’s “Process Safety Leading and Lagging Metrics – You Don’t Improve What You 

Don’t Measure” explains that a near miss has three essential elements.58 These include:

• an event occurs, or a potentially unsafe situation is discovered;

• the event or unsafe situation had reasonable potential to escalate, and

• the potential escalation would have led to adverse impacts. 

The CCPS document and the CCPS “Guidelines for Investigating Chemical Process Incidents”

contain many examples of near misses, which can be an actual event or discovery of a potentially 

unsafe situation. 59 Examples of incidents that should be investigated include some process upsets, 

such as: excursions of process parameters beyond pre-established critical control limits; 

activation of layers of protection such as relief valves, interlocks, rupture discs, blowdown 

systems, halon systems, vapor release alarms, and fixed vapor spray systems; and activation of 

emergency shutdowns. 

Near misses should also include any incidents at nearby processes or equipment outside 

of a regulated process if the incident had the potential to cause a catastrophic release from a 

nearby regulated process. An example would be a transformer explosion that could have impacted 

nearby regulated process equipment causing it to lose containment of a regulated substance. Near 

misses could also include process upsets such as activation of relief valves, interlocks, blowdown 

systems or rupture disks.

 

57

 API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0624 on Risk Management Program 

RFI, p. 32. 

58

 CCPS. January 2011. Process Safety Leading and Lagging Metrics – You Don’t Improve What You 

Don’t Measure, p. 36. CCPS, American Institute of Chemical Engineers, New York, NY. John Wiley and 

Sons. http://www.aiche.org/sites/default/files/docs/pages/CCPS_ProcessSafety_Lagging_2011_2-24.pdf.

59

 CCPS. March 2003. Guidelines for Investigating Chemical Process Incidents, 2nd ed., p. 68. 

Commented [A72]: IA v.3 Comment #15 Page 45, 

recommended edit statement found in slide #27 of 11/19 

powerpoint presentation. This illustrates the issue better. These 

examples are actually examples of “near misses”, but still illustrate 

that this definition was too broad for the SERs. An example would 

be a transformer explosion that could have impacted nearby 

regulated process equipment causing it to lose containment of a 

regulated substance. Near misses could also include releases from 

relief valves, interlocks, blowdown systems and rupture disks.

Commented [A73R72]: Change incorporated with 

modifications.
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Because it is difficult to prescribe the various types of incidents that may occur in RMPregulated sectors that should be considered near misses, and therefore be investigated, EPA is not 

proposing a regulatory definition. Instead, EPA will rely on facility owners or operators to decide 

which incidents to investigate, based on the seriousness of the incident, the process(es) involved, 

and the specific conditions and circumstances involved. In the 1996 Response to Comments on 

the Final final Rulerule, EPA acknowledged that 

the range of incidents that reasonably could have resulted in a catastrophic release 

is very broad and cannot be specifically defined. 60 EPA decided to leave it up to 

the discretion of the owner or operator to determine whether an incident could 

reasonably have resulted in a catastrophic release and to investigate such incidents. 

The intent is not to include every minor incident or leak, but focus on serious incidents that could 

have resulted in a catastrophic release, although EPA acknowledges this will require subjective 

judgment.

Finally, EPA expects that lessons learned from near miss incident investigations be 

considered when conducting a hazard review or PHA. Therefore, the proposed amendments to §§

68.50(a)(2) and 68.67(c)(2) would require the hazard review and the PHA to include findings 

from all incident investigations required under §§ 68.60 and 68.81. This includes incidents that 

could reasonably have resulted in a catastrophic release (i.e., a near miss). 

EPA seeks comment on the guidance and examples provided of a near miss. Is further 

clarification needed in this instance? Should EPA consider limiting root cause analyses only for 

incidents that resulted in a catastrophic release?EPA seeks comment on whether the examples 

provided of a near miss are useful to help facilities identify incidents that should be investigated 

and whether further clarification of incidents requiring investigation is necessary. 

8. Investigation Timeframe

60

 EPA. May 1424, 1996. Risk Management Plan Rule, Summary and Response to Comments. Volume 1, 

p. 16-4. Docket No. A-91-73, Document No. IX-C-1.

Commented [A74]: IA Comment #19 Page 44, paragraph 

starting with “Because it is difficult to prescribe the various types of 

incidents that may occur in RMP” Perhaps EPA should discuss 

OSHA’s parallel effort to define near misses – and that EPA could 

address this issue after OSHA is near completion of its work.

Commented [A75R74]: EPA disagrees. EPA is not proposing to 

define near misses. The current rule requires incident investigations 

for incidents that could reasonably have resulted in a catastrophic 

release (i.e., near misses). The OSHA effort is intended to provide 

further clarification on the scope of near misses and does not 

impact this rule effort.

Commented [A76]: IA Comment #20 Page 44, regarding “The 

intent is not to include every minor incident or leak, but focus on 

serious incidents that could have resulted in a catastrophic release, 

although EPA acknowledges this will require subjective judgment.” 

EPA again talks about “serious” incidents, and not the minor 

incidents included in its new proposed definition of “catastrophic 

release”. EPA should be consistent. Does EPA now intend to 

include “minor” accidents?

Commented [A77R76]: See response to comment 18. 

EPA still believes that minor accidents and minor near misses do 

not require investigation and do not require reporting under 68.42.

EPA believes that our proposed approach is consistent with our 

guidance. Whether or not the incident in investigated as a potential 

catastrophic release would depend upon numerous case-specific 

factors.

Commented [A78]: IA Comment #21 Page 45, suggested 

rewrite of the following: EPA seeks comment on whether the 

examples provided of a near miss are useful to help facilities 

identify incidents that should be investigated and whether further 

clarification of incidents requiring investigation is necessary.” To 

“EPA seeks comment on the guidance and examples provided of a 

near miss. Is further clarification needed in this instance?”

Commented [A79R78]: Change incorporated.
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EPA believes incident investigations will result in improved process safety through the 

dissemination of lessons learned and the implementation of recommended corrective actions. 

Conducting these investigations as soon as possible after an incident may yield better quality data 

and information, although it may take time to collect, validate, and integrate data from a range of 

sources. EPA has discovered situations where owners or operators of regulated facilities 

indefinitely delayed completing incident investigations. Therefore, in the Risk Management 

Program RFI, EPA considered whether incident investigations should be required to be 

completed within a certain amount of time. In their comments on the RFI, Mary Kay O’Connor 

Process Safety Center (MKOPSC)

61 stated that the timeframe requirement for an incident 

investigation to be completed should be based on the following factors: the consequence, the 

complexity of the incident, the process, the substance, and the investigation team’s experience, 

knowledge and members. ACC62 and API63 noted that the time to complete an investigation is 

highly dependent on the complexity of the accident and the process and can require assistance 

from outside process experts that may not immediately be available. CCHS commented that a 

specific timeframe for incident investigations to be completed would benefit overall safety and 

noted that most incidents can be investigated within six months.64 However, CCHS stated that it 

may be appropriate that a specific time be required that could be changed by documented 

justification. As to timeframes, some of the refineries in Contra Costa County, CA California,

have corporate requirements to complete all investigations within 30 to 60 days. Exceptions can 

be granted for large events. CCHS noted that there are challenges and limitations to completing 

 

61

 MKOPSC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0543 on Risk Management 

Program RFI, p. 144.

62

 ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0694 on Risk Management Program 

RFI, p. 44.

63

 API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0624 on Risk Management Program 

RFI, p. 32.

64

 CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-0546 on Risk Management 

Program RFI, p. 12. 
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an incident investigation within a specified timeframe. Other RFI commenters, such as TPA,65

GPA,66 and JR Simplot,67 noted that having a specific timeline to complete an investigation could 

cause facilities to focus more on complying with a deadline at the expense of using the 

appropriate level of rigor and getting the right answer. EPA’s own experience with accident 

investigation has shown that a major accident investigation can take up to a year or more. Taking 

into consideration the need for completion of an investigation while allowing the proper time to 

determine the correct root causes, EPA is proposing to require that facility owners or operators 

complete an incident investigation report within 12 months of an incident that resulted in, or 

could reasonably have resulted in, a catastrophic release. For very complex incident 

investigations that cannot be completed within 12 months, EPA is allowing an extension of time 

if the implementing agency approves, in writing. EPA believes that 12 months is long enough to 

complete most complex accident investigations but will allow facilities more time if they consult 

with their implementing agency and receive approval for an extension of time. 

EPA notes that the Agency’s own requirements under the Petroleum Refinery maximum 

achievable control technology (MACT) and New Source Performance Standards (NSPS)

regulations already require root cause and corrective action analyses for certain release events

(see 40 CFR parts 63.648(j)(6) and (j)(7)), and 60.103a(d)) with a more stringent timeframe (i.e., 

45 days) for completing these analyses than the 12 months specified in this proposed rule. RMPregulated facilities that are also required to meet the MACT and NSPS root cause analysis

requirements must continue to meet the timeframes specified under those rules as applicable. 

However, root cause analyses conducted to meet those requirements may also be used to comply 

 

65

 TPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0617 on Risk Management Program 

RFI, p. 9.

66

 GPA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0626 on Risk Management Program 

RFI, p. 13. 

67

 JR Simplot. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0667 on Risk Management 

Program RFI, p. 31.
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with the root cause analysis requirements proposed herein, provided the analysis meets the 

requirements of § 68.60 or § 68.81, as applicable. 

EPA seeks comment on the appropriateness of establishing a specific timeframe for 

incident investigations to be completed and what that timeframe should be. As an alternative, 

EPA considered whether the incident investigation should be completed prior to restart of the 

affected process, if the incident resulted in a process shutdown, to ensure that the causes of an 

incident have been addressed. EPA seeks comment on whether to add this condition to the 

incident investigation requirements or whether there are other options to ensure that unsafe 

conditions that led to the incident are addressed before a process is re-started. EPA also seeks 

comment on whether the different root cause analysis timeframes specified under the MACT and 

NSPS and proposed herein will cause any difficulties for sources covered under both rules, and if 

so, what approach EPA should take to resolve this issue. 

9. Accident History Reporting

Thorough investigations and reporting may help facilities identify and address root 

causes. Accident history reporting provides an avenue to disseminate lessons learned. Local 

communities are interested in whether facilities are investigating incidents and taking steps to 

prevent future accidents. EPA believes it is important to determine and report results of root cause 

analysis for accidents with reportable impacts in the RMP accident history. Therefore, EPA has 

proposed that information on root causes analyzed as part of an incident investigation be included 

in the RMP accident history in § 68.42. Because there can be numerous potential incident root 

causes identified for a single incident, and in order to simplify reporting for the RMP accident 

history, EPA believes that the root cause information should be reported as root cause categories. 

Various methods for identifying root causes have been published. Some methods involve 

the use of root cause trees which show root cause categories for different PSM systems, where 
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each category can be associated with many specific root cause deficiencies.68, 69 One root cause 

system uses the following list of root cause categories: Procedures; Training; Communications; 

Administrative/Management System; Personal Performance; Human Factors Engineering; 

Immediate Supervision; Equipment Design; Equipment/Records; Equipment 

Reliability/Maintenance; and Equipment Installation/Fabrication. Another uses a slightly different 

list: Procedures, Training, Quality Control, Communications, Management System, Human 

Engineering and Immediate Supervision. EPA will modify its on-line reporting system for RMPs 

(RMP*eSubmit) to incorporate an appropriate list of root cause categories for RMP facility 

incident investigations of RMP reportable accidents based on these categories. 

Because EPA is proposing that the incident investigation be required to be completed 

within 12 months, root causes may not be known until 12 months after an accidental release. 

Section 68.195(a) currently requires that the accident history information in § 68.42 be submitted 

within six months of the release. Because EPA is proposing to add accident root cause categories 

to § 68.42, EPA is also proposing in § 68.195(a)(2) that the root cause categories be submitted in 

the RMP within 12 months of the release. 

EPA seeks comment on the appropriateness of requiring root cause reporting as part of 

the accident history requirements of § 68.42, as well as the categories that should be considered 

and the timeframe within which the root cause information must be submitted.

10. Proposed Revisions to Regulatory Text

a. Definitions (§ 68.3)

EPA is proposing to add a definition of “root cause” and modify the definition of 

“catastrophic release” in § 68.3. 

b. Five-year accident history (§ 68.42)

 

68 Paradies, Mark, Unger, Linda and Busch, David. 1996. TapRooT® Root Cause TreeTM & User’s 

Manual, Rev. 4. Systems Improvements, Inc., Knoxville, TN. 

69 ABS Group Inc. 1999. Root Cause MapTM and Root Cause Analysis Handbook, A Guide to Effective 

Incident Investigation. ABS Group, Inc., Risk & Reliability Division, Knoxville, TN.
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EPA is proposing to amend paragraph (b) by adding a new subparagraph (b)(10) to 

require of incident investigation root cause categories to be reported. Current subparagraphs 

(b)(10) and (b)(11) will become subparagraphs (b)(11) and (b)(12), respectively. 

c. Hazard review (§ 68.50)

EPA is proposing to amend subparagraph (a)(2) by adding a phrase at the end to require 

the owner or operator to consider findings from incident investigations. This is similar to the 

revision proposed for Program 3 facilities in § 68.67(c)(2).

d. Incident investigation (§§ 68.60 and 68.81)

EPA is proposing to revise § 68.60, which is applicable to Program 2 processes, and §

68.81, which is applicable to Program 3 processes, by revising paragraph (a) to add 

subparagraphs (a)(1) and (a)(2) to better clarify the scope of incidents that must be investigated. 

Subparagraph (a)(1) applies to an incident that resulted in a catastrophic release and clarifies that 

the owner or operator must investigate the incident even if the process involving the regulated 

substance is destroyed or decommissioned. Subparagraph (a)(2) applies to a near-miss, which is 

an incident that could reasonably have resulted in a catastrophic release. EPA is also removing 

the phrase “of a regulated substance” from paragraph (a) because it is duplicative. The definition 

of catastrophic release refers to releases of regulated substances.

EPA is also proposing to add a new paragraph (c) to § 68.60 requiring that an incident 

investigation team be established and consist of at least one person knowledgeable in the process 

involved and other persons with appropriate knowledge and experience to thoroughly investigate 

and analyze the incident. This is similar to the requirement in § 68.81(c) for Program 3 processes. 

Current paragraphs (c) through (f) would become paragraph (d) through (g). 

EPA is also proposing to make changes to the new paragraph (d) in § 68.60 and current 

paragraph (d) in § 68.81 to revise the incident investigation report requirements. EPA is 

proposing to change the word “summary” to “report” and require facility owners or operators to 
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complete incident investigation reports within 12 months unless the implementing agency 

approves, in writing, an extension of time.

Furthermore, EPA is proposing to amend and add new subparagraphs in the new 

paragraph (d) in § 68.60 and current paragraph (d) in § 68.81 requiring additional elements in an 

incident investigation report. EPA is proposing to:

 Revise paragraph (d)(1) to require the time and location of the incident in the 

investigation report;

 Revise paragraph (d)(3) to specify that the description of the incident be in 

chronological order and provide all relevant facts;

 Add new paragraph (d)(4) to require that the investigation report include the name 

and amount of the regulated substance involved in the release or near miss and the 

duration of the event; 

 Add paragraph (d)(5) to require a description of the consequences, if any, of the 

incident; 

 Add paragraph (d)(6) to require a description of emergency response actions taken;

 Renumber current paragraph (d)(4) to (d)(7) and require additional criteria related to 

the factors contributing to the incident, including the initiating event, direct and 

indirect contributing factors, and root causes. Add language to new paragraph (d)(7) 

to require that root causes must be determined through the use of a recognized 

method. 

 Renumber the current paragraph (d)(5) to (d)(8) and add language to require a 

schedule for addressing recommendations resulting from the investigation to be 

included in the investigation report. 

Finally, EPA is proposing to amend the current paragraph (f) which would be the new 

paragraph (g) to add the word incident before investigation and change “summaries” to “reports” 

for consistency.
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e. Process hazard analysis (PHA) (§ 68.67)

EPA is proposing to add subparagraph (c)(2) to require the owner or operator to address

findings from incident investigations, as well as any other potential failure scenarios (e.g., 

incidents that occurred at other similar facilities and or processes, failure mechanisms discovered 

in literature or from other sources of information). This is similar to the revision for Program 2 

facilities in § 68.50(a)(2). 

f. Updates (§ 68.190) 

EPA is proposing to amend paragraph (c) to require that the owner or operator report any 

accidents covered by § 68.42 and conduct incident investigations required under §§ 68.60 and/or 

68.81 prior to de-registering a process or stationary source that is no longer subject to the RMP 

rule.

11. Alternative Options

EPA considered limiting these requirements to the original universe of Program 3 

processes that existed before OSHA changed its PSM retail exemption. Accidents occur at a 

higher frequency in these processes as compared to processes covered in Program 2. However, 

with the shift of many Program 2 processes into Program 3 due to OSHA’s revised policy on the 

PSM retail facility exemption, most of the accidents at remaining Program 2 processes occur at 

publicly owned water and wastewater treatment facilities that are not in Program 3 because they 

are not subject to OSHA PSM. Facilities with State and local government employees at facilities 

in states under Federal OSHA authority are not covered by the OSHA PSM standard if they are in 

states under Federal OSHA authority, as opposed tounlike state and local government employees 

at facilities covered byin states with OSHA delegated approved State Plans. These processes pose 

the same risk as the publicly owned water/wastewater treatment processes that are in Program 3. 

EPA decided that there was little justification for limiting the proposed requirements to the 

changed universe of Program 3 processes after the OSHA retail exemption change; there are 

fewer than six RMP reportable accidents a year at remaining Program 2 processes. Although the 

Commented [A80]: Language added to address IA Comment 

#112

Commented [A81]: IA Comment #22 Page 51, request the 

following to clarify the requirements for Federal facilities under

PSM: Facilities with state and local government employees at 

facilities in states under Federal OSHA authority are not covered by 

the OSHA PSM standard at facilities in states under Federal OSHA 

authority , as opposed to OSHA delegated State Plans.

Commented [A82R81]: Change incorporated with minor 

editorial changes.

Commented [A83]: IA v.3 Comment #3 On the state plan 

sentence (p. 35 in the new draft), EPA made some additional 

editorial changes, which are acceptable but as a result the sentence 

is pretty clunky. In addition, and this was omitted from our 

comments last time by oversight, the correct statutory term is 

“OSHA approved,” not “OSHA delegated.” We request the 

sentence be revised as follows:

State and local government employees at facilities in states under 

Federal OSHA authority are not covered by the OSHA PSM 

standard, unlike as opposed to state and local government 

employees at facilities in states with covered by OSHA delegated

approved State Plans.

Commented [A84R83]: Change incorporated.

Commented [A85]: IA Comment #23 Page 51, replace the 

sentence that reads “Facilities with government employees are not 

covered by the OSHA PSM standard if they are in states under 

Federal OSHA authority, as opposed to OSHA delegated State 

Plans” with the following text: “State and local government 

employers in states without OSHA-approved State Plans are not 

covered by the OSHA PSM standard.” As drafted, EPA’s text is 

incorrect because facilities with government employees in non 

state plan states could be covered by the PSM standard if private or 

federal employees are also exposed to the PSM hazards.

Commented [A86R85]: Adopted alternative language 

suggested in comment #22 that addresses the concern raised in this 

comment.
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alternative would be slightly less burdensome on the regulated community, it would also likely 

prevent fewer accidents than the proposed approach. EPA seeks comment on the alternative 

approach and whether there are any other alternative options that EPA should consider prior to 

issuing a final action.

B. Third-Party Compliance Audits

In addition to strengthening the incident investigation requirements, EPA is proposing to 

strengthen the RMP rule’s compliance audit provisions to require independent third-party 

compliance audits after an accident or findings of significant non-compliance by an implementing 

agency for stationary sources with Program 2 and/or Program 3 processes. Incident investigations 

often reveal that these facilities have deficiencies in some prevention program requirements 

related to that process. Compliance audits entail a systematic evaluation of the full prevention 

program for all covered processes. As described below, in some cases, self-auditing may be 

insufficient to prevent accidents, determine compliance with the RMP rule’s prevention program 

requirements, and ensure safe operation. Stationary sources that have had accidents and/or 

substantial non-compliance with Risk Management Program requirements pose a greater risk to 

the surrounding communities. EPA therefore believes it is appropriate to require such stationary 

sources to undergo objective auditing by competent and independent third-party auditors. Such 

independent third-party auditing can assist the owners and operators, EPA (or the implementing 

agency), and the public to better determine whether the procedures and practices developed by 

the owner and/or operator under Subparts subparts C and/or D of the RMP rule (i.e., the 

prevention program requirements) are adequate and being followed.

EPA and the CSB have cited poor compliance audits as a contributing factor to the 

severity of past chemical accidents. The CSB identified a lack of rigorous compliance audits as a 

contributing factor behind the March 23, 2005 explosion and fire at the BP Texas City Refinery 
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in Texas City, Texas. 70 This explosion and fire killed 15 people, injured another 180, led to a 

shelter-in-place order that required 43,000 people to remain indoors, and damaged houses as far 

away as three-quarters of a mile from the refinery. 

A CSB investigation of the July 2009 fire and explosion at the Citgo Corpus Christi 

Refinery found that Citgo had never conducted a safety audit of hydrofluoric acid (HF) alkylation 

operations at either of its U.S. refineries equipped with HF alkylation units pursuant to 

recommendations in API Recommended Practice 751, Safe Operation of HF Alkylation Units.71

The CSB recommended that within 60 days, Citgo complete a third-party audit of all Citgo HF 

alkylation unit operations in the United States (Corpus Christi, TX Texas and Lemont, ILIllinois)

in accordance with API Recommended Practice 751. The CSB also specified qualifications for 

the selected lead auditor including extensive knowledge of HF hazards, HF alkylation units, and 

API 751.

The CSB found that facility PSM audits failed to detect PSI and operating procedure 

deficiencies that contributed to the November 2003 chlorine release at DPC Enterprises, L.P. in 

Glendale, Arizona.72 The CSB recommended that DPC use a qualified, independent auditor to 

evaluate DPC’s PSM and Risk Management Programs against best practices and implement audit 

recommendations in a timely manner at all DPC chlorine repackaging sites.

The CSB also found numerous auditing deficiencies following the January 2008 

explosion at Bayer CropScience, LP, in Institute, West Virginia.73 The CSB recommended that 

Bayer commission an independent human factors and ergonomics study of all Institute site PSM

 

70 CSB. March 2007. Investigation Report: Refinery Explosion and Fire, BP, Texas City, Texas, March 23, 

2005. Report No. 2005-04-I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportBP.pdf

71 CSB. December 9, 2009. Urgent Recommendations to Citgo. http://www.csb.gov/csb-issues-urgentrecommendations-to-citgo-finds-inadequate-hydrogen-fluoride-water-mitigation-system-during-corpuschristi-refinery-fire-last-july/

72

 CSB. February 2007. Investigation Report: Chlorine Release, DPC Enterprises, L.P., Glendale, Arizona, 

November 17, 2003. Report No. 2004-02-I-AZ. http://www.csb.gov/assets/1/19/DPC_Report.pdf

73

 CSB. January 2011. Investigation Report: Pesticide Chemical Runaway Reaction Pressure Vessel 

Explosion, Bayer CropScience LP, Institute, West Virginia, August 28, 2008. Report No. 2008-08-I-WV.

http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf
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and Risk Management Program covered process control rooms to evaluate the human-control 

system interface, operator fatigue, and control system familiarity and training. 

EPA has required third-party audits in enforcement settlement agreements. For example, 

EPA found multiple occasions of noncompliance with the Risk Management Program 

requirements at Tyson Foods, Inc. facilities through a series of inspections and information 

requests. Dating back to October 2006, violations included failures to follow the general industry 

standards to test or replace safety relief valves, improperly co-located gas-fired boilers and 

ammonia machinery, as well as failures to abide by the RMP rule’s prevention program and 

reporting requirements. As part of a 2014 consent decree, Tyson Foods, Inc. agreed, in addition to 

paying a penalty of $3.95 million, to conduct pipe-testing and third-party audits of its ammonia 

refrigeration systems to improve compliance with Risk Management Program requirements at all 

23 of the company’s facilities in four Midwestern states.74

 

In March 2015, EPA Region 1 issued an administrative order on consent to Mann 

Distribution LLC and 3134 Post Road LLC (Respondents) regarding Resource Conservation and 

Recovery Act (RCRA) and CAA 112(r)(1) (the “general duty clause”) violations found during an 

April 4, 2013 inspection at a chemical distribution facility in Warwick, Rhode Island.75 Like the 

Risk Management Program requirements, Section section 112(r)(1) of the CAA addresses safe 

operation and prevention of accidental releases. Unsafe conditions found during the inspection 

included, among other things, failure to have a fire suppression system, failure to inspect a fire 

alarm, co-location of incompatible chemicals, and many RCRA generator violations. The facility 

also had a prior history of non-compliance. The order requires Respondents to implement an 

independent third-party inspection program, in addition to imposing other compliance 

requirements. 

74

 Consent Decree, United States v. Tyson Foods, Inc., et al., E.D. Miss., April 4, 2013. 

http://www2.epa.gov/enforcement/tyson-foods-inc

75

 Finding of Violation and Administrative Order on Consent, In the Matter of Mann Distribution LLC and 

3134 Post LLC, Docket Nos. RCRA-01-2015-0028 and CAA-01-2015-0029, March 17, 2015. 
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The proposed independent third-party compliance audit requirements include a definition 

of “third-party audit” in § 68.3; modifications to existing §§ 68.58 and 68.79 to specify when a 

third-party audit must be performed; and the requirements for third-party auditors and third-party 

audits in new §§ 68.59 and 68.80. EPA is proposing to require third-party compliance audits to be 

conducted at stationary sources following an accident meeting the five-year accident history 

criteria in § 68.42(a). EPA is also proposing a provision to allow an implementing agency to 

require a third-party audit be performed at a facility under certain circumstances that suggest a 

heightened risk for an accident. These circumstances are: non-compliance with the Prevention 

Program requirements of Subpart subpart C (Program 2) or subpart D (Program 3), including 

non-compliance with the competency, independence, or impartiality criteria of § 68.59(b) or §

68.80(b) regarding a previous third-party audit. All other stationary sources with Program 2 and 

Program 3 processes will continue to follow the current compliance audit requirements of §§

68.58 and 68.79. 

Sections 68.58 and 68.79 of the RMP regulation (Program 2 and Program 3 Compliance 

Audits) require owners or operators of stationary sources with processes subject to Program 2 or 

Program 3 requirements to audit compliance with the provisions of Subpart subpart C (Program 2 

Prevention Program requirements) or Subpart subpart D (Program 3 Prevention Program 

requirements) at least every three years. The purpose of the compliance audits is to verify that the 

procedures and practices developed under Subparts subparts C and D of the RMP rule are 

adequate and being followed. These compliance audit provisions are similar to language to that is 

found in 29 CFR 1910.119(o) of the OSHA PSM standard. Sections 68.58 and 68.79 of the RMP 

regulation and 1910.119(o) of the OSHA PSM standard require that the compliance audit be 

conducted by at least one person knowledgeable in the process, that audit findings be addressed 

promptly, and that a report be generated documenting the findings of the audit. 

Currently, neither EPA nor OSHA requires employers to use independent third-parties in 

conducting compliance audits. However, third-party compliance auditors exist, both the RMP rule 
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and the PSM standard permit their use, and they are utilized by some of the Risk Management 

Program and PSM regulated community, both voluntarily, and pursuant to enforcement 

settlement agreements. 

EPA discussed the potential to use independent third-party auditors for Risk Management 

Program compliance audits, in the preamble of the 1996 final RMP rule, as an issue for further 

consideration.76 The preamble endorsed the concept of using third parties, citing the following 

reasons: to assist in rule compliance and oversight, provided that any third-party proposal not 

weaken the compliance responsibilities of facility owners or operators; offer cost savings and 

benefits to the industry, community, and implementing agencies that significantly exceed the cost 

of implementing the approach; lead to a net increase in process safety, particularly for smaller, 

less technically sophisticated facilities; and promote cost-effective Agency prioritization of 

oversight resources. At the time, EPA did not require the use of third-party auditors because the 

Agency believed that several key issues, including qualification criteria, certification procedures, 

liability, and others, needed to be investigated. Based on EPA’s research of other third-party audit 

programs as well as the Agency’s own experience with third-party auditors in the context of 

enforcement settlements, the Agency is proposing third-party audit requirements for the rule’s 

accident prevention program. 

Third-party audits are required by other Federal programs in appropriate existing rules, 

and rules currently in development, to ensure safe operations. The Administrative Conference of 

the United States (ACUS) “Third-Party Programs Final Report” (October 22, 2012) describes a 

variety of third-party programs in Food and Drug Administration (FDA), Consumer Product 

Safety Commission (CPSC), and Federal Communications Commission (FCC) regulations.77

Further examples follow. The Bureau of Safety and Environmental Enforcement (BSEE) 

76

 Accidental Release Prevention Requirements: Risk Management Programs Under CAA Section 

112(r)(7), 61 FR 31705, June 20, 1996. http://www.gpo.gov/fdsys/pkg/FR-1996-06-20/pdf/96-14597.pdf

77

 McCallister, Lesley. October 22, 2012. Third-Party Programs Final Report (2012). 

http://www.acus.gov/report/third-party-programs-final-report. 
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promulgated revisions to their Safety and Environmental Management Systems (SEMS II) 

requirements (78 FR 20423, April 5, 2013) to help ensure the safe operations of offshore oil and 

natural gas drilling and production facilities. BSEE’s SEMS standard, 30 CFR part 250, Subpart 

subpart S, requires audits conducted by an independent third-party, subject to approval by BSEE, 

or by designated and qualified personnel if the employer implements procedures to avoid 

conflicts of interest. BSEE’s SEMS II revisions to the standard require that, by June 4, 2015, the 

team lead for compliance audits must be independent and represent an accredited audit service 

provider. In the preamble to its SEMS II final rule, BSEE discussed its third-party-auditing 

requirements as follows: 

Consistent audits performed by well trained and experienced auditors are critical 

to ensuring that SEMS programs are successfully implemented and maintained on 

the [Outer Continental Shelf] OCS. As a result, we are adopting industry best 

practices related to SEMS audits and auditor qualifications. Industry is already 

voluntarily adopting these practices in many deepwater operations. We believe that 

the application of these requirements to all OCS operations will result in more 

robust and consistent SEMS audits. (78 FR 20430, April 5, 2013.) 

Independent third-party audits or other forms of compliance verification are also required 

by a variety of EPA rules to promote compliance with regulatory standards. One eExamples of an 

EPA regulatory programs with built-in third-party verification include is the EPA CAA wood 

stoves rule.

78 Additionally, EPA is developing a rule forand the EPA a Thirdthird-Party party 

Certification certification Framework framework for the Formaldehyde formaldehyde Standards 

standards for Composite composite Wood wood Productsproducts in accordance with the 

Formaldehyde Standards for Composite Wood Products Act in which Congress mandated that 

EPA promulgate rules that include a third-party testing and certification program.

79

78

 Standards of Performance for New Residential Wood Heaters, New Residential Hydronic Heaters and 

Forced-Air Furnaces, 80 FR 13671, March 16, 2015. http://www.gpo.gov/fdsys/pkg/FR-2015-03-

16/pdf/2015-03733.pdf

79

 Formaldehyde; Third-Party Certification Framework for the Formaldehyde Standards for Composite 

Wood Products, 78 FR 34796, June 10, 2013. http://www.gpo.gov/fdsys/pkg/FR-2013-06-10/pdf/2013-

13254.pdf. See also the Formaldehyde Standards for Composite Wood Products Act 

https://www.gpo.gov/fdsys/pkg/BILLS-111s1660enr/pdf/BILLS-111s1660enr.pdf. 

Commented [A87]: IA Comment #24 On page 57 of the 

preamble, there is reference to the EPA’s third-party framework for 

the Formaldehyde standards rule. This rule has not been finalized. 

Recommend removing this reference.

Commented [A88R87]: Congress requires EPA to include a 

third-party testing and certification requirement for that rule and 

EPA believes it is a valid example. 

The Formaldehyde Standards for Composite Wood Products statute

requiring the rulemaking, Congress mandated that EPA promulgate 

rules that include a third-party testing and certification 

program. See https://www.gpo.gov/fdsys/pkg/BILLS111s1660enr/pdf/BILLS-111s1660enr.pdf – see, especially, the 

subsection, at page 7, cut and pasted below.

‘‘(d) REGULATIONS.—

‘‘(1) IN GENERAL.—Not later than January 1, 2013, the 

Administrator shall promulgate regulations to implement the 

standards required under subsection (b) in a manner that 

ensures compliance with the emission standards described in 

subsection (b)(2). 

‘‘(2) INCLUSIONS.—The regulations promulgated pursuant to 

paragraph (1) shall include provisions relating to—

‘‘(A) labeling; 

‘‘(B) chain of custody requirements; 

‘‘(C) sell-through provisions; 

‘‘(D) ultra low-emitting formaldehyde resins; 

‘‘(E) no-added formaldehyde-based resins; 

‘‘(F) finished goods; 

‘‘(G) third-party testing and certification; 

‘‘(H) auditing and reporting of third-party certifiers; 

‘‘(I) recordkeeping; 

‘‘(J) enforcement; 

‘‘(K) laminated products; and 

‘‘(L) exceptions from the requirements of regulations promulgated 

pursuant to this subsection for products and components 

containing de minimis amounts of composite wood product.
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Third-party verification and certification approaches are also employed in a variety of 

state regulatory settings. Examples include the CAA Title II vehicle inspection, maintenance, and 

emissions programs in authorized states,80 California’s mandatory greenhouse gas (GHG) 

reporting program,81 and Massachusetts Underground Storage Tank (UST) third-party inspection 

program.82

There are advantages to third-party auditing, particularly with strong auditor competence 

and independence criteria. According to the CCPS, ‘‘Third-party auditors (typically, consulting 

companies who can provide experienced auditors) potentially provide the highest degree of 

objectivity.’’83 ACUS, in its “Recommendation on Agency Use of Third-Party Programs to 

Assess Regulatory Compliance” (December 6, 2012) (Recommendation), found that, when welldesigned and implemented per the Recommendation, “[s]everal broad reasons support the 

growing use of third-party programs in Federal regulation.” Specifically, ACUS found that 

... Federal regulatory agencies are faced with assuring the compliance of an increasing 

number of entities and products without a corresponding growth in agency resources. 

Third-party programs may leverage private resources and expertise in ways that make 

regulation more effective and less costly. In comparison with other regulatory 

approaches, third-party programs may also enable more frequent compliance assessment 

and more complete and reliable compliance data.

 

80

 See, e.g., Missouri Dept. of Nat. Resources and Missouri State Highway Patrol, First Annual Oversight 

Report of the Decentralized Gateway Vehicle Inspection Program (2008). 

http://www.dnr.mo.gov/gatewayvip/docs/enforcementrpt.pdf.

81 Cal. Code of Regs. Accreditation Requirements for Verification Bodies, Lead Verifiers, and Verifiers of 

Emissions Data Reports and Offset Project Data Reports. tit. 17 § 95132(b)(4) (2010); see also Cal. Code 

of Regs. tit. 17 § 95132(b)(1)(describing the firm requirement of having a lead verifier); Cal. Code of Regs. 

tit. 17 § 95132(b)(2) (2010)(describing the lead verifier requirements) and Cal. Code of Regs. tit. 17 §

95132(b)(1).

https://govt.westlaw.com/calregs/Document/I047B3A909A3011E4A28EDDF568E2F8A2?viewType=Full

Text&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default

%29

82

 MassDEP. 2015. UST Inspection Program. http://www.mass.gov/eea/agencies/massdep/toxics/ust/thirdparty-ust-inspection-program.html.

83

 CCPS. March 2007. Guidelines for Risk Based Process Safety. 

http://www.aiche.org/ccps/resources/publications/books/guidelines-risk-based-process-safety.

Commented [A89]: IA Comment #25 Page 57, footnote 77: 

These are not very analogous to the provision of professional 

auditing services. These are testing lab reports of compliance with 

specific technical standards – and there is little incremental cost 

difference between in house labs and third party labs for the 

completion of these tests. Little professional judgment is required. 

Indeed, for most of these situations, it is likely less expensive to 

send to outside labs rather than develop in-house expertise. 

Either show how this is relevant, or delete. 

Commented [A90R89]: EPA believes that the premise is the 

same. The examples show the value of independence and do not 

relate to the costs to involve third-parties.

The example further shows that even when there should not be 

variations in results (because there is little professional judgement) 

there is a difference in third-party results.
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A leading scholar on regulatory third-party programs likewise found that, when well-designed 

and implemented, “third-party verification could furnish more and better data about regulatory 

compliance” while providing additional compliance and resource savings benefits.84

An “independent third-party” is a private auditor, inspector, or other type of verifier 

external to the facility. “Independent third-party” excludes the regulated entity, which is the first 

party (e.g., the stationary source and its parent company and subsidiaries), second parties within 

the firm’s industry or business community with whom the regulated entity has a supply-chain 

relationship, and third parties that are not independent of the first party, which may include 

contractors, consultants, or purchasers of the facility’s goods or services.85 An independent thirdparty program should not be confused with a second party program in which a regulated source 

employs a contractor or consultant, even when the contractor is a separate legal entity from the 

regulated facility and highly qualified. If a regulated source provides direct or indirect control 

over the contractor or consultant preparing the audit report, including controlling the report’s 

scope or findings, or has other non-audit relationships with the auditor, then the auditor is not a 

true independent third-party. This is important because when developing a third-party audit 

program, auditor independence can be critical to the success of the program. 

Third-party compliance audit programs should also establish criteria and standards for 

auditor independence. As documented in the ACUS Recommendation on Agency Use of ThirdParty Programs to Assess Regulatory Compliance (December 6, 2012),

86 the ACUS Third-Party 

 

84

 Lesley K. McAllister. Jan. 2012. Regulation by Third-Party Verification. 53 B.C.L REV. 1, 21-26. 

http://lawdigitalcommons.bc.edu/bclr/vol53/iss1/1/

85

 Lesley K. McAllister. Jan. 2012. Regulation by Third-Party Verification. 53 B.C. L. REV. 1, 22-23 at p. 

37. 

86 ACUS; Administrative Conference Recommendation 2012-7; Agency Use of Third-Party Programs to 

Assess Regulatory Compliance (Adopted December 6, 2012) at 3-4. 

https://www.acus.gov/recommendation/agency-use-third-party-programs-assess-regulatory-compliance.
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Programs Final Report (October 22, 2012), and the McAllister law review article, auditor 

independence is critical to ensuring accurate and reliable independent third-party auditing.87

The literature on designing independent third-party programs includes peer-reviewed 

empirical studies emphasizing the importance of establishing criteria and features for auditor 

independence to promote accurate audit reports, including those summarized briefly below. 

While it is not necessary that all audits be conducted only by independent third parties, when 

independent third-party auditing is necessary and appropriate, the literature indicates that, without

sufficient safeguards to ensure auditor independence, auditors are more likely to provide lenient 

or biased audit reports that can fail to accurately identify problems and violations by the regulated 

entity. 

One such study is a randomized control design field experiment in the State of Gujarat in 

India.88 This study revealed weaknesses in the existing third-party regulatory audit system and the 

potential for a series of market-based alterations to dramatically improve auditor accuracy. In 

India, Gujarat Pollution Control Board regulates more than 20,000 industrial plants. From the 

universe of audit-eligible plants located in two populous and heavily polluted industrial regions, 

the researchers identified a study sample of 473 randomly-selected plants, stratified by region.

Half of the plants were randomly assigned into a control group. The other half of the plants, also 

randomly assigned, were informed by the State of changes to their audit regulation that included 

the following: plants would be randomly assigned auditors they were required to use (i.e., they 

could no longer choose their own auditors); auditors would be paid from a central pool rather than 

by the plant for which they worked; auditor fees were set in advance at a flat rate (high enough to 

cover pollution measurement and give the auditor a modest profit); a random sample of each 

auditor’s pollution readings would be verified with follow-up visits to the audited plants by an 

 

87

 See, e.g., Lesley K. McAllister. Jan. 2012. Regulation by Third-Party Verification. 53 B.C.L REV. 1, pp. 

3, 39-40.

88

 Esther Duflo et al., Truth-Telling By Third-Party Auditors And The Response of Polluting Firms: 

Experimental Evidence From India, 128 Q. J. OF ECON. 4 at 1499-1545 (2013).
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independent technical agency; in year two of the experiment, the third-party auditors were 

informed that their pay would be linked to their reporting accuracy as measured by the technical 

agency’s follow-up visits. The researchers found that, under the status quo system, the third-party 

auditors systematically reported false pollution levels just below the applicable regulatory 

standard (also known as strategic misreporting) but the experimental changes significantly 

improved the truthfulness of the third-party auditors’ reports, even for auditors operating in both 

markets who audited firms in both the control and treatment groups. Also, and importantly, once 

the plants understood that their auditors would henceforth be reporting more accurately to the 

State, they reduced their actual pollution emissions. 

A pair of 2013 studies of independent third-party vehicle emission testing in New York 

also considered factors impacting third-party independence. This research was based on millions 

of emission test results from thousands of test facilities.89 The authors’ findings include that there 

is a relationship between testing facilities’ opportunities to “cross sell” other products and 

services to car owners and the test results. The researchers found that, in pursuit of customer 

loyalty, facilities with more cross-selling opportunities were incentivized to “pass” cars that 

facilities with fewer cross-selling opportunities would not.90

 

Further evidence suggests that many, if not most, of some types of financial audits are 

flawed due to insufficient auditor competence, independence, and/or lack of public transparency. 

Third-party auditing is a linchpin of financial reporting. But when the Public Company 

Accounting Oversight Board (PCAOB) released its third annual report on audits of broker-dealers 

89

 Victor Manuael Bennett, et al. August 2013. Customer-Driven Misconduct How Competition Corrupts 

Business Practices. Management Science Vol. 59, No. 8, pp. 1725-1742.

http://www.hbs.edu/faculty/Pages/item.aspx?num=43347 and 

Lamar Pierce and Michael W. Toffel. Sept.-Oct. 2013. The Role of Organizational Scope and Governance 

in Strengthening Private Monitoring. Organization Science Vol. 24, No. 5, pp. 1558-1584.

http://www.hbs.edu/faculty/Pages/item.aspx?num=43347

90

 Lamar Pierce and Michael W. Toffel. Sept.-Oct. 2013. The Role of Organizational Scope and 

Governance in Strengthening Private Monitoring. Organization Science Vol. 24, No. 5, at 1575. 

http://www.hbs.edu/faculty/Publication%20Files/11-004.pdf

Commented [A91]: 2-1-16 Made technical corrections in 

footnote 88. 
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registered with the Securities and Exchange Commission (SEC), the PCAOB found audit 

deficiencies in portions of 70 of the 90 audits. Independence problems were found in 21 on the 90 

audits where, contrary to SEC rules, firms helped with the bookkeeping or preparation of the 

financial statements they audited.91

In 2014, the New York State Department of Financial Services (NYDFS) fined 

PricewaterhouseCoopers (“PwC”) Regulatory Advisory Services $25 million, suspended it for 24 

months from accepting consulting engagements at regulated financial institutions, and required it 

to implement a series of reforms after PwC improperly altered a report submitted to regulators on 

sanctions and anti-money laundering compliance at Bank of Tokyo Mitsubishi (BTMU). Under 

pressure from BTMU executives who received an advance draft of its report to review, PwC 

edited the report, and in the final version of the report which was sent to regulators, a number of 

key provisions were deleted or otherwise significantly edited.92

These recommendations, studies, and reports emphasize the importance of designing 

independent third-party programs to embody auditor independence by building in appropriate 

criteria and processes for third-party independence. They identify a range of available design 

elements to promote such independence. EPA consulted this literature in developing today’s 

proposed independent third-party compliance auditing program.

Industry recognizes the benefits of third-party auditing programs and have established 

programs and standards for third-party audits for some types of operations, many of which are 

also subject to the RMP rule.93 These programs also demonstrate industry’s understanding that, in 

appropriate circumstances, third-party auditing can provide benefits and results above those 

 

91

 PCAOB. Aug. 18, 2014. Third Progress Report on PCAOB Inspections of Broker and Dealer Auditors 

Shows Continued High Number of Findings. 

http://pcaobus.org/Inspections/Documents/BD_Interim_Inspection_Program_2014.pdf

92

 Press Release: NYDFS Announces PwC Regulatory Advisory Services Will Face 24-Month Consulting 

Suspension; Pay $25 Million; Implement Reforms After Misconduct During Work At BTMU. Aug. 18, 

2014. http://www.dfs.ny.gov/about/press/pr1408181.htm

93

 EPA has not formally evaluated these programs and standards or their outcomes. This discussion is not a 

formal Agency review or endorsement of them.
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available through self-auditing alone. In addition, these programs and standards illustrate the 

range and variety of structural design elements that can be, and are, employed in third-party 

programs to address auditor competence and independence, auditor certification, the audit 

process, auditor reporting, recordkeeping, and the public disclosure of audit results and associated 

information. 

Some industry groups, such as SOCMA and the Center for Offshore Safety (COS), 

require certain types of third-party audits for their members. SOCMA members are U.S. 

companies engaging in the manufacturing or handling of synthetic and organic chemicals. Active 

members have a mandatory requirement to participate in ChemStewards®, a program intended to 

promote continuous performance improvement in batch chemical manufacturing. The program 

offers a three-tiered approach to participation. Each tier includes a third-party verified 

management system.94 The COS strategy for promoting safety and protection of the environment 

includes third-party auditing and certification of the COS member company’s SEMS and 

accreditation of the organizations (Audit Service Providers) providing the audit services. The 

third-party audits are intended to ensure that COS member companies are implementing and 

maintaining SEMS throughout their deepwater operations.95

ACC members are required to participate in a Responsible Care management system 

described by ACC as including, identifying, and acting to address potential hazards and risks 

associated with their products, processes, distribution and other operations. One of Responsible 

Care’s program elements is a process product safety code consisting of eleven management 

practices through which chemical manufacturers are encouraged to evaluate, demonstrate and 

continuously improve their product safety performance while making information about chemical 

products available to the public.96 Responsible Care also has a process safety code consisting of 

 

94

 SOCMA. 2015. See http://www.socma.com/ChemStewards/. 

95

 COS. 2013. See http://www.centerforoffshoresafety.org/auditInfo.html. 

96

 ACC. 2013. Responsible Care Product Safety Code. 

http://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Product-Safety-Code.
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seven management practices through which chemical manufacturers commit to safe operation of 

their chemical processes. According to ACC, 

the Responsible Care Process Safety Code differs from regulatory standards that, 

by necessity, focus on process safety at an individual facility. ACC contends that 

the Process Safety Code is more universal—it addresses issues across a division or 

corporation, and includes a company commitment to set process safety 

expectations, define accountability for process safety performance and allocate 

adequate resources to achieve performance expectations.97

The Responsible Care management system process includes mandatory certification, by auditors 

described by ACC as accredited and independent, to ensure the program participants have a 

structure and system in place to measure, manage and verify performance.98

The API, in collaboration with industry partners, has developed a Process Safety Site 

Assessment Program (PSSAP). According to API, the program is intended to provide for the 

assessment of API member sites’ process safety systems by third-party teams of independent, 

industry-qualified process safety expert assessors. Using industry-developed protocols, API 

describes the process safety site assessments as evaluating the quality of written programs and 

effectiveness of field implementation for the following process safety areas that will be evaluated: 

Process Safety Leadership; Management of Change (MOC); Mechanical Integrity (focused on 

fixed equipment); Safe Work Practices; Operating Practices; Facility Siting; Process Safety 

Hazards; and HF Alkylation/RP 751. The assessment teams produce reports that identify 

observations that site personnel should consider further but do not provide written 

recommendations.99

1. Applicability of Third-Party Audit Requirements

 

97

 ACC. 2013. Responsible Care Process Safety Code. 

http://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/Process-Safety-Code.

98

 Certification must be renewed every three years, and companies can choose one of two certification 

options. RCMS® certification in intended to verify that a company has implemented the Responsible Care 

Management System. RC14001® certification combines Responsible Care and ISO 14001 certification. 

See http://responsiblecare.americanchemistry.com/Responsible-Care-Program-Elements/ManagementSystem-and-Certification and http://responsiblecare.americanchemistry.com/Responsible-Care-ProgramElements/Process-Safety-Code/Responsible-Care-Process-Safety-Code-PDF.pdf. 

99

 API. 2015. PSSAP. http://www.api.org/certification-programs/process-safety-site-assessment-programs.
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Currently, there are approximately 12,000 stationary sources with Program 2 and/or 

Program 3 processes. The proposed rule would not require all of these RMP facilities to use thirdparty auditors when conducting compliance audits under Subpart subpart C or D. Instead, EPA is 

proposing that owners or operators be required to perform third-party compliance audits at their 

facilities only under the following two conditions. 

Under the first condition, a third-party compliance audit would be required in lieu of an 

internal compliance audit if there has been an accidental release from an RMP facility meeting 

the five-year accident history criteria as described in § 68.42(a). The existing five-year accident 

history criteria include accidental releases from covered processes that resulted in deaths, injuries, 

or significant property damage on-site; or deaths, injuries, property damage, evacuations, 

sheltering in place, or environmental damage offsite. EPA and other implementing agencies 

would learn about accidents meeting the five-year accident history criteria because such accidents 

must be included within a facility’s RMP within six months of the accident, in accordance with §

68.195(a). Following such an accident, the RMP facility’s owner or operator would be required to 

engage a third-party auditor to conduct a compliance audit for the source. Pursuant to §§ 68.58(h) 

and 68.79(h), the third-party audit and associated report shall be completed, and submitted to the 

implementing agency pursuant to § 68.59(c)(3) or § 68.80(c)(3) as follows, unless a different 

timeframe is specified by the implementing agency: within 12 months of when the third-party 

audit is required pursuant to § 68.58(f) and/or (g) or § 68.79(f) and/or (g); or within three years of 

completion of the previous compliance audit, whichever is sooner.

The second condition is if an implementing agency has made a determination that a thirdparty audit at an RMP facility is necessary, based on information about the facility or a prior 

third-party audit at the facility. Information about an RMP facility that would lead to such a 

determination could be obtained from sources including an inspection of a facility by the 

implementing agency’s representatives. Relevant information to support the determination may 

include evidence of significant non-compliance with the prevention program requirements of 

Commented [A92]: IA Comment #26 Page 64, regarding 

“Under the first condition, a third-party compliance audit would be 

required in lieu of an internal compliance audit if there has been an 

accidental release from an RMP facility meeting the five-year 

accident history criteria as described in §68.42(a).” Again, the more 

relevant provision is the “catastrophic release “provision that 

requires the investigation of an accidental release, not whether the 

accident will be included in the five year accident history. Third 

party audits should be reserved for major releases with offsite 

impacts, not any property damage or evacuations, however minor.

Commented [A93R92]: As a result of the SBAR panel 

recommendations, EPA is requesting comment on limiting 

applicability of the third-party audits for P3 facilities, triggered by 

major accidents that have offsite impacts. See pg. 67 of the 

preamble.
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Subpart subpart C or D of Part part 68. Significant non-compliance includes deficiencies relating 

to a previous third-party audit (i.e., failure to meet the competency, independence, or impartiality 

criteria of § 68.59(b) or § 68.80(b)).

If such a determination is made, the implementing agency must provide a written notice 

to the owner or operator of the facility stating the reasons for the determination that a third-party 

audit must be performed. The proposed rule provides for an opportunity for the owner or operator 

to provide information and data to the implementing agency and to consult with the implementing 

agency about the need to perform a third-party audit at the facility source before the 

implementing agency representatives make a final determination. EPA seeks comment on these 

proposed third-party audit applicability requirements. 

2. Alternative Options for Third-Party Audit Applicability Criteria

EPA considered requiring third-party compliance audits for a larger universe of regulated 

facilities. We considered whether to require third-party compliance audits for all facilities with 

processes subject to Program 3 requirements at least every three years. We also considered 

whether to require third-party compliance audits for all facilities with processes subject to

Program 2 or Program 3 requirements every three years. However, because EPA views facilities 

that have had accidents or significant non-compliance as presenting higher risks to surrounding 

communities, the Agency is proposing to limit the applicability of this provision to these 

facilities.

EPA seeks comments and suggestions on the proposed third-party audit applicability 

requirements and whether to eliminate or further limit applicability of this provision. For 

example, EPA could consider limiting the provision to only Program 3 facilities that have had 

accidents or to only facilities that have had major accidentsal releases with offsite impacts. As 

required by section 609(b) of the RFA, the EPA convened a Small Business Advocacy Review 

(SBAR) Panel to obtain advice and recommendations from small entity representatives (SERs) 

that potentially would be subject to the rule's requirements. As part of the SBAR Panel process, 

Commented [A94]: IA Comment #27 Page 66, suggest rewrite 

of the following: “EPA seeks comment on whether to further limit 

applicability of this provision.” To “EPA seeks comments and 

suggestions on the proposed third-party audit applicability 

requirements and whether to maintain or further limit applicability 

of this provision.”

Commented [A95R94]: Change incorporated with 

modifications.
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SERs suggested to the SBAR panel that EPA consider requiring third party audits only for 

Program 3 faclities that have had major accidents with offsite impacts. EPA seeks comments on 

this alternative approach and to define and characterize “major accidents with offsite impacts.”

Alternatively, EPA could revise this provision to reduce its impact on small businesses. When 

providing suggested alternatives, please include suggestions for how to improve compliance with 

auditing provisions.

EPA also seeks comment on whether there are other criteria that could require RMP 

facilities to perform third-party compliance audits. For example, a third-party audit could be 

required if an owner or operator of a facility were to learn or know of a condition or conditions at 

its facility suggesting a concern for, or potential risk of, future accidents. Such conditions would 

need to be objective and reasonably ascertainable by the facility owners or operators, the 

implementing agency, and the public. 

EPA also seeks comment on the benefits and costs of proposing additional requirements 

for third-party compliance audits and recommendations for appropriate conditions suggesting a 

concern for, or potential risk of, future accidents. 

3. Proposed Third-Party Audit Requirements

a. Compliance Audit (§§ 68.58 and 68.79)

In order to prevent accidents and ensure compliance with Part part 68 requirements, EPA 

is proposing to require certain RMP facilities to perform third-party audits. The proposed changes 

to §§ 68.58 and 68.79 would add this requirement for both Program 2 and Program 3 processes, 

under certain conditions. 

EPA proposes new paragraphs §§ 68.58(f) and 68.79(f) which describe when a thirdparty audit is required. Pursuant to these paragraphs, the next required compliance audit for an 

RMP facility shall be a third-party audit when one of the following conditions apply: (1) an 

accidental release, meeting the criteria in § 68.42(a), from a covered process has occurred; or (2) 

an implementing agency requires a third-party audit based on non-compliance with the 

Commented [A96]: IA Comment #28 Page 66, regarding 

“Alternatively, EPA could revise this provision to reduce its impact 

on small businesses.” Small business alternatives should include 

third party audits only upon request by state authority, after the 

facility notifies the state. Small business definition could be the 

existing SBA definition or a simplified employee definition such as 

500 employees. 

EPA should also consider a five year phase-in period for small firms, 

allowing the agency to review the utility of this practice for small 

firms. 

Commented [A97R96]: First, this provision would have a 

minimal impact on small businesses because it would only apply to 

facilities that have had RMP reportable accidents (most of which do 

not occur at small businesses). Furthermore, many states do not 

have implementing authority for the RMP rule and it could cause 

confusion over who the facility owner/operator must contact at the 

state level to review and decide whether a third-party audit is 

necessary.

However, as a result of SBAR panel recommendations, EPA is 

requesting comment on reduce the impact of this provision on 

small business. See page 72 for additional requests for streamlining 

the independence requirement for small businesses.

Finally, EPA has proposed a 4-year phased-in compliance date for 

this provision for all facilities.
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requirements of this subpart, including when a previous third-party audit failed to meet the 

competency, independence, or impartiality criteria of § 68.59(b) or § 68.80(b). The purpose is to 

help reduce the risk of future accidents by requiring an objective auditing process to determine 

whether the owner or operator of the facility is effectively complying with the prevention 

program requirements of Part part 68.

EPA proposes new paragraphs §§ 68.58(g) and 68.79(g), Implementing agency 

notification and appeals, which describe the procedure for when a third-party audit is required by 

an implementing agency. Pursuant to these paragraphs, if an implementing agency makes a 

preliminary determination that a third-party audit is necessary, the implementing agency will 

provide written notice to the facility owner or operator stating the reasons for the implementing 

agency’s determination. The owner or operator has an opportunity to provide information to, and 

to consult with, the implementing agency. The implementing agency then provides a final 

determination to the owner or operator. If the final determination requires a third-party audit, the 

owner or operator shall comply with the requirements of § 68.59 and/or § 68.80, but also may 

choose to appeal the final determination. After the appeal is considered, the implementing agency 

will provide a written, final decision on the appeal to the owner or operator.

EPA proposes new paragraphs §§ 68.58(h) and 68.79(h), which describe the schedule for

conducting third-party audits. The audit and associated report shall be completed, and submitted 

to the implementing agency as follows, unless a different timeframe is specified by the 

implementing agency: (1) within 12 months of when any third-party audit is required; or (2) 

within three years of completion of the previous compliance audit, whichever is sooner.

b. Third-party Audits (§§ 68.59 and 68.80)

EPA is proposing new §§ 68.59 and 68.80, which include the requirements for both thirdparty audits, and third-party auditors.
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Sections 68.59(a) and 68.80(a) state that owners or operators shall engage a third-party 

auditor to evaluate compliance with the provisions of this subpart in accordance with the 

requirements of this section when the criteria of § 68.58(f) or § 68.79(f) are met. 

EPA is proposing, in §§ 68.59(b) and 68.80(b), that owners and operators of RMP 

facilities subject to these requirements determine and document the competency, independence, 

and impartiality of their auditors. These sections require that the facility owners or operators be 

responsible for self-determining and documenting that their third-party auditors are competent 

and independent pursuant to the criteria listed in § 68.59(b)(1) through- (3) or § 68.80(b)(1)

through -(3), by requiring specific provisions and safeguards in their contracts and relationships 

with their third-party auditors. 

EPA seeks comment as to whether the requirement that owners and operators of RMP 

facilities be responsible for determining and documenting the competency, independence, and 

impartiality of their auditors is appropriate.

Alternative Option for Third-Party Auditor Selection and Accreditation

EPA also considered an alternative approach, such as requiring auditors to have 

accreditation from a recognized auditing body or EPA. Most independent third-party regulatory 

compliance verification programs require the qualifying third-parties to apply for and receive 

accreditation from a qualified external party to ensure competency and independence. Such an 

external accreditation approach can add rigor to the process of confirming the competence and 

independence of the auditors but it also adds procedures and costs. Therefore, while EPA is not 

proposing that the Agency itself will accredit third-party auditors, EPA seeks comment on 

whether to require additional accreditation criteria and how to best establish and structure an 

accreditation program within the context of the RMP rule.

Auditor Competence 

Third-party compliance verification programs should establish criteria and standards for 

auditor competence. Typically, such criteria and standards combine specified minimum levels of 
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education, knowledge, experience, and training. EPA is proposing to require in proposed §§

68.59(b)(1)(i) – through (iv) and 68.80(b)(1) (i) – through (iv) that third-party auditors be:

 knowledgeable with the requirements of Part part 68;

 experienced with the facility type and processes being audited and the applicable 

recognized and generally accepted good engineering practices (RAGAGEP);

 trained or certified in proper auditing techniques; and 

 be a licensed Professional Engineer (PE), or include a licensed PE on the audit team. 

EPA is proposing to require a PE as part of the audit team in an attempt to identify 

competent auditors that also have an ethical obligation to perform unbiased work. EPA seeks 

comment on whether these criteria are appropriate and sufficient to ensure third-party auditors are 

competent to perform high-quality compliance audits. EPA also seeks comment on whether the 

proposal to require that a third-party auditor, or a member of the audit team, be a licensed PE is 

appropriate and whether there are enough licensed PEs to conduct third-party audits for the 

universe of facilities that may become subject to these requirements. Are there other

qualifications who might be appropriate for RMP auditors in lieu of a PE? 

As required by section 609(b) of the RFA, the EPA convened a Small Business 

Advocacy Review (SBAR) Panel to obtain advice and recommendations from small entity 

representatives (SERs) that potentially would be subject to the rule's requirements. As part of the 

SBAR Panel process, SERs suggested to the SBAR Panel that EPA consider subsitituting other 

qualified personnel such as: degreed chemists, degreed chemical engineers, Certified Safety 

Professionals (CSP), Certified Industrial Hygienists (CIH), Certified Fire Protection Specialists

(CFPS), Certified Hazardous Materials Managers (CHMM), Certified Professional 

Environmental Auditors (CPEA) or Certified Process Safety Auditors (CPSA). SERs indicated 

that these credentials also include ethical obligations to provide sound independent advice. EPA

also seeks comment regarding potentially relevant and applicable consensus standards and 

Commented [A98]: IA Comment #29 Page 69, regarding “be a 

licensed Professional Engineer (PE), or include a licensed PE on the 

audit team.” EPA should explicitly take comment on the other 

professional credentials recommended by the SERs: such as the 

Certified Hazardous Materials Manager (CHMM) or the Dangerous 

Goods Safety Advisor (DGSA). One of the SERs pointed out that 

many of the EPA RMP inspectors are not Pes. What credentials 

were mentioned by the SERs and other commenters that deserve 

consideration?

Commented [A99R98]: Change incorporated.

Commented [A100]: Deleted because I used this intro to SBAR 

panel earlier, in incident investigation section.

Commented [A101]: IA v.3 Comment #6 Page 73, Please insert 

this sentence prior to “EPA also seeks comment regarding 

potentially relevant and applicable consensus standards and 

protocols that might apply to the audits and be built and/or 

incorporated by reference into the rules.” “EPA believes that these 

credentials also generally (always?) include an ethical requirement 

to provide sound independent advice.”

Commented [A102R101]: Change incorporated with 

modifications.
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Page 76 of 266

protocols that might apply to the audits and be built and/or incorporated by reference into the 

rules. These may include relevant and applicable American National Standards Institute (ANSI), 

American Society for Testing and Materials International (ASTM), European Committee for 

Standardization (CEM), International Organization for Standardization (ISO), and National 

Institute of Standards and Technology (NIST) standards. 

Auditor Independence and Impartiality 

Proposed §§ 68.59(b)(2)(i) – through (vi) and 68.80(b) (2)(i) – through (vi) set forth the 

independence and impartiality requirements for third-party auditors and audit teams. These 

include that third-party auditors: 

 act impartially when performing all third-party audit activities;

 receive no financial benefit from the outcome of the audit, apart from payment for the

auditing services;

 not have conducted past research, development, design, construction services, or

consulting for the owner or operator within the last 3 years;100

 not provide other business or consulting services to the owner or operator, including

advice or assistance to implement the findings or recommendations in an audit report,

for a period of at least 3 years following submission of the final audit report;

 ensure all personnel involved in the audit sign and date a conflict of interest

statement; and

 ensure all personnel involved in the audit do not accept future employment with the

owner or operator of the facility for a period of at least 3 years following submission

of the final audit report. For purposes of this requirement, employment does not

100

 For purposes of this requirement, consulting does not include performing or participating in third-party 

audits pursuant to § 68.59 or § 68.80. 
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include performing or participating in third-party audits pursuant to §§ 68.59 or § 

68.80.

As required by section 609(b) of the RFA, the EPA convened a Small Business 

Advocacy Review (SBAR) Panel to obtain advice and recommendations from small entity 

representatives (SERs) that potentially would be subject to the rule's requirements. As part of the 

SBAR Panel process, SERs raised concerns about the extent of the independence criteria and 

suggested this might limit the availability of qualified auditors. Specifically, SERs asked how to 

apply the independence criteria to a company that employs personnel who previously worked for 

or otherwise engaged in consulting services with the facility. Audit firms with personnel who, 

before working for the firm, performed services for the owner or operator as an employee, 

contractor or consultant, meet the rule’s independence criteria when such personnel do not 

participate on, manage, or advise the audit teams. Additionally, employees of an auditing firm are

not prohibited from accepting future employment with the owner/operator as long as they were 

not directly involved in performing or managing the audit. 

Another concern raised by SERs is ensuring that third-party auditors do not pose a 

terrorism concern or release information that could compromise facility security or CBI. EPA 

agrees that chemical facility security is a priority and seeks comments on the impacts a thirdparty auditor may have on a facility’s security and whether there is a need for third-party audit 

provisions to specify security protections or whether existing non-disclosure and contractual

agreements should handle this independently.

EPA seeks comment on whether the proposed auditor independence criteria are 

appropriate and sufficient. If not, we seek comment on how best to adjust the criteria for 

maximum auditing effectiveness and efficiency, including comments or suggestions on how to 

provide more flexibility in the auditor independence criteria, or whether to eliminate the 

requirement for independence. EPA also seeks comments on whether the proposed 3-year 

Commented [A103]: Moved to an earlier reference in this 

notice.

Commented [A104]: This paragraph partially addresses IA 

Comment #30.

Commented [A105]: Adding to address SBAR panel 

recommendations.

Commented [A106]: IA Comment #30 Page 71, regarding “EPA 

agrees that chemical facility security is a priority and seeks 

comments on whether there is a need for third-party audit 

provisions to specify security protections or whether existing nondisclosure and contractual agreements should handle this 

independently.” EPA proposal should not exclude firms from 

auditing simply because an employee was previously associated 

with a firm, or may be associated with the firm in the future, so 

long as this person is not in charge of most likely the go-to source, 

particularly for many small firms and all firms in rural America the 

audit team, but is just a member of the team. Retired employees 

are often the best choice for this function. Retirees that have no 

relationship with the company except for a pension have little 

incentive to jeopardize the safety of the former fellow employees. 

There is widespread belief that it will be very hard for small firms 

(or large firms) to find qualified auditors who are not affiliated with 

the facility. The availability problem would contribute to 

unnecessarily higher costs than EPA projects. EPA should also 

include a provision for a waiver where the company can justify the 

use of an affiliated person and the state agrees. 

EPA should also consider the approach of (BSEE?) which allows a 

team member to be affiliated where the lead person was 

independent.

Commented [A107R106]: The comment (which relates to 

auditor independence) does not appear to be directly related to the 

quoted text (which pertains to security). 

In accordance with SBAR panel recommendations on the issues 

identified in this comment, EPA:

Added preamble language on page 72 that clarifies independence 

criteria for firms. 

Added language seeking comments on page 73 of the preamble on 

how independence criteria should be applied for retired employees, 

and whether to streamline independence criteria for small facilities.
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timeframe to separate the audit from other business arrangements with the owner or operator is 

appropriate.

Furthermore, EPA is requesting comment on whether the proposed auditor independence 

criteria should be modified so as to not exclude a retired employee from auditing a former 

employer’s facility if the employee’s sole continuing financial attachment to the owner or 

operator is an employer-financed or employer-managed retirement plan. While EPA is concerned 

such attachments could provide the auditor with incentives to ensure the facilities they audit are 

not financially negatively impacted by their audits, it could also, as a practical matter, limit the 

available pool of otherwise qualified and competent auditors. EPA seeks comment on the 

potential magnitude of such incentives and how to address this concern in the rule.

Finally, EPA requests comment on whether to propose streamlined independence criteria

for small facilities (i.e., based on the size of the facility) including comments or suggestions on 

how to streamline the requirements.

Auditor Policies and Procedures

Proposed §§ 68.59(b)(3) and 68.80(b)(3), if finalized, would require that owner or 

operators of RMP regulated facilities ensure that third-party auditors have written policies and 

procedures to ensure that all personnel comply with the competency, independence, and 

impartiality requirements of these sections. EPA seeks comment on these proposed provisions.

Alternative Options for Auditor Qualifications

EPA considered including alternative options in the proposed rule for owners and 

operators of stationary sources who cannot, despite best efforts, find a third-party auditor meeting 

all of the independence criteria. Two specific options were considered. 

Under the first option, owners and operators of RMP facilities, in addition to selfselecting their third-party auditors pursuant to the specified independence criteria, would also 

self-determine when it is impossible or impractical to hire such auditors and self-select their 

alternative auditors. Under this option, the owner or operator would be required to inform the 

Commented [A108]: Adding to address SBAR panel 

recommendations.
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implementing agency and the public of the alternative auditors, which could be accomplished by 

providing and/or publicly posting information on the alternative auditors and how they were 

selected. The information could describe the steps taken to identify auditors meeting all of the 

rule’s independence criteria, the identities and competencies of the alternative auditors, the 

regulatory independence criteria that the alternative auditors were unable to meet and why, and 

any steps taken to address or limit the impacts of the auditors’ lack of independence on the 

outcomes and reliability of their audits.

Under the second option, owners and operators who, despite best efforts, could not find 

auditors meeting all the rule’s independence criteria would be authorized to identify specific 

alternative auditors to the implementing agency and petition it for approval to engage those 

auditors. This approach would include a requirement for auditors not fully satisfying the rule’s 

independence criteria to prepare and implement Conflict of Interest Mitigation Plans similar to 

those required by the California Air Resources Board (CARB) under its Regulation for the 

Mandatory Reporting of GHG Emissions,101 with associated reporting, recordkeeping, and due 

process procedures. Under this option, if, despite best efforts, an owner or operator cannot find a 

third-party auditor meeting all of the criteria in § 68.59(b) or § 68.80(b), the owner or operator 

would be required to request approval, in writing, to the implementing agency to use an 

alternative third-party auditor. The implementing agency would then be required, within a 

specified timeframe, to approve or disapprove the proposed request and provide notice of its 

decision to the owner or operator. The owner or operator’s request to use an alternative thirdparty auditor would include a description of the owner or operator’s efforts to find an independent 

third-party auditor, identification of the proposed alternative third-party auditor (including the 

same information required pursuant to this rule for a fully qualified auditor), identification of the 

specific independence requirements the proposed alternative third-party auditor meets and does 

 

101

 CARB. July 23, 2015. Verification of GHG Emissions Data Reports. 

http://www.arb.ca.gov/cc/reporting/ghg-ver/ghg-ver.htm.
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not meet, and an organizational chart of the proposed alternative third-party auditor and related 

entities with brief descriptions of the primary nature of the work each performs.

The owner or operator’s request to use an identified alternative third-party auditor would 

also include a Conflict of Interest Mitigation Plan demonstrating the steps the auditor would take 

to mitigate its inability to fully meet the independence requirements in § 68.59(b) or § 68.80(b). 

These steps could include ensuring that any individual or organizational component of the auditor 

with conflicts of interest or impartiality concerns is removed from the audit and/or isolated from 

the individuals or organizational component conducting the audit, an explanation of how and why 

the amount and nature of work previously performed should not be deemed to undermine the 

auditing team’s credibility and lack of bias, and descriptions of any other adjustments or 

circumstances taken to address actual or potential sources for conflicts of interest, with an 

appropriate certification signed and dated by a senior owner or operator official.

If, pursuant to this option, the implementing agency approves the alternative third-party 

auditor, it would provide written notice to the owner or operator and, upon receipt of the 

approval, the owner or operator may engage the alternative auditor to conduct the audit under this 

section. If the implementing agency does not approve the identified alternative auditor, the 

implementing agency would provide a written notice to the owner or operator stating the reasons 

for the decision. Within a specified timeframe after receipt of such written notice, the owner or 

operator would be required to submit the name of another proposed auditor for the implementing 

agency’s consideration. In the alternative, the owner or operator would be able to appeal the 

implementing agency’s decision pursuant to the applicable agency’s processes. 

EPA considered but did not propose other third-party auditor independence safeguards 

than those included in proposed § 68.59(b)(2) or § 68.80(b)(2). Examples include mandating the 

random assignment of auditors, paying them from a central pool of auditing funds, or requiring 

mandatory periodic auditor rotation after a specified period of time. Nor has EPA proposed 

provisions requiring owners and operators to provide advance notice to the implementing agency 
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of third-party auditor site visits to enable the implementing agency to accompany and observe the 

third-party auditors on such visits.102 EPA seeks comment on these alternative approaches. 

EPA further seeks comment on whether there are any other alternative approaches to 

third-party auditor qualifications EPA should consider prior to issuing a final action. For 

example, EPA could, in the final rule, allow for audits to be performed by auditors with some 

potential conflicts of interest (e.g., employees of parent company, affiliates, vendors/contractors 

that participated in developing the facility’s RMP, etc.) and/or allow a person employed at the 

facility who is a registered PE to conduct the audit. If such approaches are adopted in the final 

rule, the Agency could seek to place appropriate restrictions on auditors and auditing using third 

parties with less than full independence from their client facilities in an effort to increase 

confidence that the auditors will act appropriately when performing their activities under the 

RMP rule. The purposes of such provisions could include ensuring that auditor personnel who 

assess a facility’s compliance with the RMP rule do not receive any financial benefit from the 

outcome of their auditing decisions, apart from their basic salaries or remuneration for having 

conducted the audits. EPA also specifically requests commenters to identify any supportive 

literature or data as EPA is presently not aware of literature or data showing that such provisions 

are effective in counteracting biases due to lack of impartiality or independence. 

There may be other options, in addition to the approaches taken in the proposed thirdparty compliance auditing program or identified above, that can also increase owner or operator 

flexibility without compromising audit accuracy. EPA seeks comment on such alternative 

auditor/auditing approaches. 

102

 Compare proposed 40 CFR 770.7(a)(3)(iv) of EPA’s proposed Toxic Substances Control Act (TSCA) 

formaldehyde in wood products third-party program proposed rule: “(3) Responsibilities. EPA recognized 

Laboratory ABs must fulfill the requirements in paragraphs (b)(3)(i) through (xiii) of this section: ... (iv) 

Upon request, allow EPA representatives to accompany its assessors during an on-site assessment to 

observe the audit of a TPC.” Formaldehyde; Third-Party Certification Framework for the Formaldehyde 

Standards for Composite Wood Products, 78 FR 34796, June 10, 2013. http://www.gpo.gov/fdsys/pkg/FR2013-06-10/pdf/2013-13254.pdf
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If non-independent or limited independence third-party auditing, second-party auditing, 

or enhanced self-auditing is authorized, EPA seeks comment on how best to structure such 

auditing to maximize auditor independence and accurate auditing outcomes given the lack of 

complete independence. EPA also seeks suggestions for what steps a facility should be required 

to take if third-party auditors who meet the proposed independence and competence criteria are 

not available. If RMP facilities are allowed, in the final rule, to use enhanced self-auditing in lieu 

of independent third-party auditing, examples of the types of restrictions that could be placed on 

such self-auditing to potentially improve auditor impartiality and auditing outcomes appear in the 

U.S. and CARB v. Hyundai Motor Company, et al. Consent Decree.103

Third-Party Audit Report 

Proposed §§ 68.59(c) and 68.80(c), if finalized, would require owners or operators of 

stationary sources to ensure that their third-party auditors prepare and submit audit reports. 

Proposed §§ 68.59(c)(1) and 68.80(c)(1), if finalized, would include requirements for the scope 

and content of these reports, including a statement to be signed by the third-party auditor 

certifying that the third-party audit was performed in accordance with the requirements of 

Subpart subpart C or D. Proposed §§ 68.59(c)(1) and 68.80(c)(1), if finalized, would also require 

that the final third-party audit reports must identify any adjustments made by the third-party 

auditor to any draft third-party audit reports provided to the owners or operators for their review 

or comment. EPA believes that these provisions are important to minimize third-party compliance 

audit bias. EPA’s intent in allowing for owners and operators to receive and comment on draft 

third-party compliance audit reports with these additional requirements is to promote factual and 

informative final third-party compliance audit reports without compromising their accuracy and 

independence. EPA seeks comment, however, on whether we should also require draft third-party 

compliance audit reports to be submitted to the implementing agency at the same time, or before, 

103

 U.S District Court of D.C. November 11, 2014. Decree of Consent U.S California Air Resources Board 

v. Hyundai et al. http://www2.epa.gov/sites/production/files/2014-11/documents/hyundai-kia-cd.pdf
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such reports are provided to the owners and operators and whether such a requirement would be 

further effective in minimizing potential third-party compliance audit bias. 

Proposed §§ 68.59(c)(2) and 68.80(c)(2), if finalized, would include requirements for the 

retention of reports and records by the third-party auditors. Proposed §§ 68.59(c)(3) and 

68.80(c)(3), if finalized, would require the audit report to be submitted to the implementing 

agency at the same time, or before, it is provided it to the owner or operator. Finally, EPA is 

proposing in §§ 68.59(c)(4) and 68.80(c)(4) that the audit report and related records cannot be 

claimed as confidentialattorney-client communications or as attorney work products even if the 

auditors are themselves, or are managed by or report to, attorneys. With respect to the attorney 

work product privilege, the audit report and related records are produced to document compliance 

rather than in anticipation of litigation, just like a monitoring report required by an air emission 

rule would not be produced in anticipation of litigation. With respect to the attorney-client 

communication privilege, the third- party auditor is arms-length and independent of the stationary 

source being audited. The auditor lacks an attorney-client relationship with counsel for the 

audited entity. Therefore, neither the audit report nor the records related to the audit report,

provided to the third- party auditor are attorney-client privileged (including documents originally 

prepared with assistance or under the direction of the audited source's attorney). EPA seeks 

comment on these proposed requirements including any legal concerns that may result from the 

provision that limits attorney-related privilegesclaims of confidential attorney work products.

Other Owner or Operator Obligations

Proposed §§ 68.59(d)(1) and 68.80(d)(1), if finalized, would require owners or operators, 

as soon as possible, but no later than 90 days after receiving the final audit report, to determine an 

appropriate response to each of the findings in the audit report, and develop and provide to the 

implementing agency a findings response report. This findings response report would include: a 

copy of the final audit report; an appropriate response to each of the audit report findings; a 

schedule for promptly addressing deficiencies; and a statement, signed and dated by a senior 

Commented [A109]: IA Comment #123 EPA proposed that the 

owner or operator submit a copy of the draft audit to the 

implementing agency upon request. What is the rationale for the 

owner or operator to supply this preliminary draft report? Would 

the owner or operator even have access to the draft version? 

Recommend that the auditor supply the implementing agency with 

the draft audit report upon request.

Commented [A110R109]: This would allow the implementing 

agency to verify that the third-party auditor’s report was not 

improperly influenced by the owner or operator.

The owner or operator is required to maintain any draft reports 

under §68.59(e)(2) and §68.80(e)(2). The owner or operator can 

request the auditor to provide copies of drafts.

Commented [A111]: IA Comment #31 Page 76, regarding “EPA 

seeks comment, however, on whether we should also require draft 

third-party compliance audit reports to be submitted to the 

implementing agency at the same time, or before, such reports are 

provided to the owners and operators and whether such a 

requirement would be further effective in minimizing potential 

third-party compliance audit bias.” Submission of draft reports to 

EPA is unlikely to promote better audits. Auditing firms would seek 

...

Commented [A112R111]: EPA did not propose to require 

draft third-party audits to be submitted to EPA at the same time the 

draft is submitted to the facility representatives. However, EPA is 

...

Commented [A113]: IA Comment #120 One of the rule 

provisions is for third-party auditors to maintain the audit report for 

five years after the completion of this requirement. Why is this for a 

...

Commented [A114R113]: Five years is consistent with the 

existing recordkeeping requirements of the RMP rule under 

§68.200.

Commented [A115]: IA Comment #122 EPA is proposing that 

both the auditor and the owner or operator of the facility provide 

the implementing agency a copy of the third party audit. What is 

...

Commented [A116R115]: This requirement is to ensure that 

the final audit report has not been adjusted by the owner or 

operator prior to submitting to the implementing agency.

Commented [A117]: IA Comment #121 EPA is proposing to 

have the auditor sharing the audit with the implementing agency. Is 

...

Commented [A118R117]: The current rule does not require 

audits to be submitted to the implementing agency.

Commented [A119]: IA v.3 Comment #7 Page 80, regarding 

Third Party Reports: EPA could require production of such reports 

despite the existence of the attorney client privilege. Instead of the 

...

Commented [A121]: IA Comment #32 Page 76, regarding 

“Finally, EPA is proposing in §§68.59(c)(4) and 68.80(c)(4) that the 

audit report and related records cannot be claimed as confidential 

...

Commented [A120R119]: EPA added preamble language 

requesting comment on this concern.

Commented [A122R121]: This is to prevent o/o from 

shielding regulatory compliance documents under the guise of 

...

Commented [A123]: IA Comment #33 Page 77, regarding 

“Proposed §§68.59(d)(1) and 68.80(d)(1), if finalized, would require 

owners or operators, as soon as possible, but no later than 90 days 

...

Commented [A124R123]: Added language to the preamble to 

seek comment on flexibility for the timeframe. 

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Page 83: [1] Commented Author 

IA Comment #31 Page 76, regarding “EPA seeks comment, however, on whether we should also require draft

third‐party compliance audit reports to be submitted to the implementing agency at the same time, or before,

such reports are provided to the owners and operators and whether such a requirement would be further effective

in minimizing potential third‐party compliance audit bias.” Submission of draft reports to EPA is unlikely to

promote better audits.  Auditing firms would seek ways to share early versions with firms without EPA knowledge,

for example.   

Page 83: [2] Commented Author 

EPA did not propose to require draft third‐party audits to be submitted to EPA at the same time the draft

is submitted to the facility representatives. However, EPA is requesting comment on this approach as a way to

ensure that auditors provide unbiased results in a final report that is not swayed by the owner/operator’s review

of an early draft.

Page 83: [3] Commented Author 

IA Comment #120 One of the rule provisions is for third‐party auditors to maintain the audit report for

five years after the completion of this requirement. Why is this for a period of five years? Is this based on industry

best practices or based on other rule recordkeeping provisions? Recommend three years for maintaining the audit

by the auditing firm.

Page 83: [4] Commented Author 

IA Comment #122 EPA is proposing that both the auditor and the owner or operator of the facility provide

the implementing agency a copy of the third party audit. What is the rationale for this duplicative reporting?

Recommend the owner or operator submit the audit report to the implementing agency

Page 83: [5] Commented Author 

IA Comment #121 EPA is proposing to have the auditor sharing the audit with the implementing agency.

Is this a requirement in the current rule for the three year compliance audits?

Page 83: [6] Commented Author 

IA v.3 Comment #7 Page 80, regarding Third Party Reports: EPA could require production of such reports

despite the existence of the attorney client privilege.  Instead of the current regulatory language which makes

these materials potentially available to third parties in litigation, why not state that these materials are available to

EPA and implementing agencies without regard to the applicability of an attorney client privilege?  This achieves

EPA's purpose without making this information potentially available to the public.  EPA does not have the authority

to waive attorney client privilege for non‐governmental parties.

Page 83: [7] Commented Author 

IA Comment #32 Page 76, regarding “Finally, EPA is proposing in §§68.59(c)(4) and 68.80(c)(4) that the audit

report and related records cannot be claimed as confidential attorney work products even if the auditors are

themselves, or managed by or report to, attorneys.” EPA should not interfere with attorney client privilege.  This is

unnecessary, and would compromise the honesty and value of the audit.  It should suffice to have access to the

audit, if needed by the agency.  This provision could harm companies who are trying to perform a proper audit, but

would subject them to litigation liability.  What is the justification for such a provision?

Page 83: [8] Commented Author 

This is to prevent o/o from shielding regulatory compliance documents under the guise of attorney‐client

privilege. These documents should be available to the implementing agency for compliance monitoring purposes.

Page 83: [9] Commented Author 

IA Comment #33 Page 77, regarding “Proposed §§68.59(d)(1) and 68.80(d)(1), if finalized, would require owners or

operators, as soon as possible, but no later than 90 days after receiving the final audit report, to determine an

appropriate response to each of the findings in the audit report, and develop and provide to the implementing

agency a findings response report.” EPA should provide an option for more than 90 day period, where needed.

Expanded comments on page 83

pg 83b
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corporate officer, certifying that appropriate responses to the findings in the audit report have 

been identified and deficiencies were corrected, or are being corrected, consistent with the 

requirements of subpart C or D of 40 CFR part 68. The requirement to determine appropriate 

responses to findings is similar to existing compliance audit requirements that require the owner 

or operator to “promptly determine and document an appropriate response to each of the findings 

of the compliance audit.” EPA seeks comment on these proposed requirements and whether we 

should provide flexibility on the timeframe for developing the findings response report. 

EPA also considered prescribing a timeframe within which deficiencies must be 

corrected, rather than rely on “promptly” address deficiencies. However, EPA was unable to 

identify an appropriate timeframe given the variety of possible site-specific actions that an owner 

or operator may take to address audit findings. EPA seeks comment on whether to keep this 

approach or substitute a specific number of days and, if the latter, what is a reasonable time 

period to specify and why. 

Proposed §§ 68.59(d)(2) and 68.80(d)(2), if finalized, would require the owner or 

operator to implement the schedule and address deficiencies identified in the audit findings 

response report, and document the action taken to address each deficiency, along with the date 

completed. Proposed §§ 68.59(d)(3) and 68.80(d)(3), if finalized, would require the owner or 

operator to provide a copy of documents required under paragraphs (d)(1) and (d)(2) to the owner 

or operator’s audit committee of the Board of Directors, or other comparable committee, if one 

exists. EPA seeks comment on these proposed requirements. 

Proposed §§ 68.59(e) and 68.80(e), if finalized, would require the owner or operator to 

retain records at the stationary source, including: the two most recent third-party audit reports, 

related findings response reports, documentation of actions taken to address deficiencies, and 

related records; and copies of all draft third-party audit reports. The owner or operator shall 

provide draft third-party audit reports, or other documents, to the implementing agency upon 

request. For proposed § 68.59(e) (Program 2 third-party audit recordkeeping provision), these 
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requirements, if finalized, would not apply to any documents that are more than five years old 

(for Program 3 third-party audit records, as for the existing Program 3 compliance audits, the 

owner or operator would be required to retain records to support the two most recent audits). EPA 

seeks comment on these proposed requirements. 

C. Safer Technology and Alternatives Analysis (STAA) 

1. Meaning of STAA

Safer technology and alternatives refer to risk reduction strategies developed through 

analysis using a hierarchy of process risk management strategies (or hierarchy of controls), which 

consists of those which are inherent, passive, active, and procedural.

104 This philosophy can be 

applied initially to all design phases and then continuously throughout a process’s life cycle by 

identifying and assessing hazards and developing a control strategy. STAA includes concepts 

known as IST or inherently safer design (ISD), which are those strategies that permanently reduce 

or eliminate the hazards associated with materials and operations used in a process. The terms

IST, ISD, and inherent safety are interchangeable terms that are used in the literature and in the 

field. The four major inherently safer strategies (ISS) are:

 Minimization–using smaller quantities of hazardous substances;

 Substitution–replacing a material with a less hazardous substance;

 Moderation–using less hazardous conditions or a less hazardous form, or designing

facilities that minimize the impact of a release of hazardous material or energy; and

 Simplification–design facilities to eliminate unnecessary complexity and make

operating errors less likely.

The hierarchy establishes that inherently safer options (e.g., minimization, substitution, 

moderation, and simplification) are preferable and occupy the top of the hierarchy. Passive 

strategies (process and equipment design) are preferable to active ones such as engineering 

104

 CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2nd ed., American Institute 

of Chemical Engineers, CCPS New York, Wiley. 

Commented [A125]: IA v.3 Comment #8 Page 81, Meaning of 

STAA: Comments are specific to section C, Safer Technologies 

Assessment and Alternatives. Section C is addressed from a purely 

scientific perspective, the concept of inherently safer technology 

focuses on mitigating a specific hazard (or several closely related 

hazards). EPA references a definition that was jointly developed 

and published by CSAC and the Center for Chemical Process Safety. 

But what they don’t highlight is the report states that IST is not the 

panacea for safer processes. The broader term “safer design 

strategies”, which in our opinion has not been defined correctly by 

EPA, addresses four separate strategies: procedural, active, passive 

and inherent, inherent being the most intensive to implement 

(usually). As mentioned above, the four points they ascribe to safer 

design strategies are really part of IST. If section C would focus on 

the broader concept of safer design, and include each of those four 

factors underneath, it might make the discussion clearer.

In addition to my points above, I think Section C will potentially 

create a conflict between this new rule and the CFATS. This, I 

think, should be a major concern. And from a purely scientific 

...

Commented [A126R125]: EPA agrees with the comment “the 

challenge will be some of the processes that improve security may 

actually impede safety, and the reverse...” EPA has already 

...

Commented [A127]: IA Comment #129 STAA is an acronym for 

Safer Technology and Alternatives Analysis, but it appears that the 

only analysis proposed is one on inherent safety.

Commented [A128R127]: EPA is proposing a STAA analysis. 

However, much of the discussion in the preamble is focused on IST 

because this is an incremental change to the current PHA 

...

Commented [A132R131]: Change incorporated.

Commented [A131]: IA Comment #35 Page 78, One of the key 

concepts of IST is that the changes to the process are irreversible. 

Suggest inserting the work permanently. “IST or inherently safer 

...

Commented [A129]: IA Comment #34 Page 78, Clarify that IST 

is a subset given the comment in the executive summary above. 

Recommend the following edit: “STAA includes concepts known as

...

Commented [A130R129]: Change incorporated.

Commented [A133]: IA v.2 Comment #3 Page 78, insert 

comma after (ISD) in the following sentence: “STAA includes 

concepts known as IST or inherently safer design (ISD), which are 

...

Commented [A134R133]: Change incorporated.

Commented [A135]: IA Comment #36 Page 78, four bullets, 

These four elements are usually thought of as IST – is it possible to 

...

Commented [A136R135]: These strategies are intended to 

encompass both IST and ISD which are interchangeable terms. 

...

Commented [A137]: IA Comment #37 Page 79, The definition 

of moderation here does not match the definition listed in the reg 

text on page 199 “..Inherently safer technology or design ... 

...

Commented [A138R137]: EPA does not define moderation in 

the reg. text on pg. 199. The preamble discussion is intended to 

further clarify what moderation means.

Commented [A139]: IA Comment #38 Page 79, Several 

incidents have proven that these actions are not always 

...

Commented [A140R139]: This is a general statement of the 

hierarchy of controls and while there may be cases where it is 

appropriate to depart from the hierarchy there is no need for EPA 

...

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Page 85: [1] Commented Author 

IA v.3 Comment #8 Page 81, Meaning of STAA: Comments are specific to section C, Safer Technologies Assessment

and Alternatives.  Section C is addressed from a purely scientific perspective, the concept of inherently safer

technology focuses on mitigating a specific hazard (or several closely related hazards).  EPA references a definition

that was jointly developed and published by CSAC and the Center for Chemical Process Safety.  But what they don’t

highlight is the report states that IST is not the panacea for safer processes.  The broader term “safer design

strategies”, which in our opinion has not been defined correctly by EPA, addresses four separate strategies:

procedural, active, passive and inherent, inherent being the most intensive to implement (usually).  As mentioned

above, the four points they ascribe to safer design strategies are really part of IST.  If section C would focus on the

broader concept of safer design, and include each of those four factors underneath, it might make the discussion

clearer.

In addition to my points above, I think Section C will potentially create a conflict between this new rule

and the CFATS.   This, I think, should be a major concern.  And from a purely scientific standpoint, the language in

section C seems to create intractable challenges between two rules.  The challenge will be some of the processes

that improve security may actually impede safety, and the reverse.  CFATS has already begun to explore the

infusion of IST into the CFATS methodology, and in fact, a number of facilities have started to employ IST principals

(mostly substitution).

Page 85: [2] Commented Author 

EPA agrees with the comment “the challenge will be some of the processes that improve

security may actually impede safety, and the reverse...” EPA has already acknowledged this tension in

the preamble.  In the IST discussion on page 85 we state:

“Because an option may be inherently safer with regard to some hazards and inherently

less safe with regard to others, the decision process must consider the entire life cycle, the full

spectrum of hazards and risks, and the potential for transfer of risk from one impacted

population to another.”

Later in the same section:

“Few technologies will be inherently safer with respect to all hazards, and other

approaches will usually be required to manage the full range of hazards and risks. As an

example, the [DHS] report points out that an IST with respect to a catastrophic release hazard

may conflict with methods to minimize other hazards, such as theft or diversion of materials,

contamination of product, or degradation of infrastructure. It may not address other hazards at

all, or it may create new hazards.” (emphasis added)  

Expanded comments for page 85

pg 85b
Here EPA is specifically referring to the DHS report prepared by CCPS, and we clearly highlight

DHS’ concern.

Page 85: [3] Commented Author 

EPA is proposing a STAA analysis. However, much of the discussion in the preamble is focused on IST

because this is an incremental change to the current PHA requirements that already address passive, active, and

procedural controls.

Page 85: [4] Commented Author 

IA Comment #35 Page 78, One of the key concepts of IST is that the changes to the process are irreversible.  

Suggest inserting the work permanently. “IST or inherently safer design (ISD) are those strategies that permanently

reduce or eliminate the hazards associated with materials and operations used in a process.”

Page 85: [5] Commented Author 

IA Comment #34 Page 78, Clarify that IST is a subset given the comment in the executive summary above.

Recommend the following edit: “STAA includes concepts known as IST or inherently safer design (ISD) which are

those strategies that reduce or eliminate the hazards associated with materials and operations used in a process.”

Page 85: [6] Commented Author 

IA v.2 Comment #3 Page 78, insert comma after (ISD) in the following sentence: “STAA includes concepts known as

IST or inherently safer design (ISD), which are those strategies that reduce or eliminate the hazards associated with

materials and operations used in a process.   

Page 85: [7] Commented Author 

IA Comment #36 Page 78, four bullets, These four elements are usually thought of as IST – is it possible to move

these four elemts to the next section (#2) and keep this section focused on ISD?

Page 85: [8] Commented Author 

These strategies are intended to encompass both IST and ISD which are interchangeable terms.  

This section introduces the concept of IST as first part of the hierarchy of control. EPA expands on the

concept in later preamble discussion.

Page 85: [9] Commented Author 

IA Comment #37 Page 79, The definition of moderation here does not match the definition listed in the reg text on

page 199 “..Inherently safer technology or design ... moderate the use of regulated substances...”  Perhaps EPA can

review for consistency.

Page 85: [10] Commented Author 

IA Comment #38 Page 79, Several incidents have proven that these actions are not always “inherently” safer.

Please remove the term. “The hierarchy establishes that inherently safer options...”

Page 85: [11] Commented Author 

This is a general statement of the hierarchy of controls and while there may be cases where it is

appropriate to depart from the hierarchy there is no need for EPA to qualify exceptions to the hierarchy here.

Removing the term “inherent’ would add confusion to this discussion because we are referring specifically to the

inherently safer strategies identified above.

pg 85c
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controls (automatic digital or mechanical system controls), which are preferable to procedures or 

administrative options (controls requiring human action). However, risk reduction of a process 

hazard may also be achieved by using a combination of strategies, known as layers of protection. 

EPA is proposing to require analysis of safer technology and alternatives as part of the PHA for a 

subset of Program 3 processes. 

2. Inherently Safer Technology (IST)

A July 2010 DHS report prepared by the CCPS described IST as a philosophy and an 

iterative process, including eliminating a hazard, reducing a hazard, substituting a less hazardous 

material, using less hazardous process conditions, and designing a process to reduce the potential 

for, or consequences of, human error, equipment failure, or intentional harm. 105 It stated that 

there is no clear boundary between IST and passive, active, and procedural risk management 

strategies. CCPS further stated that ISTs are relative and can only be described as inherently 

safer when compared to a different technology, including a description of the hazard or set of 

hazards being considered, their location, and the potentially affected population. Because an 

option may be inherently safer with regard to some hazards and inherently less safe with regard to 

others, the decision process must consider the entire life cycle, the full spectrum of hazards and 

risks, and the potential for transfer of risk from one impacted population to another. This report 

also noted that there is currently no consensus on either a quantification method for IST or a 

scientific assessment method for evaluation of IST options. The report states that risk can be 

reduced by many methods, including ISD, but those methods must include the full spectrum of 

risk reduction approaches (passive, active, and procedural risk management systems). Few 

technologies will be inherently safer with respect to all hazards, and other approaches will usually 

be required to manage the full range of hazards and risks. As an example, the report points out 

105

 CCPS. July 2010. Final Report: Definition for IST in Production, Transportation, Storage, and Use. 

Prepared by: CCPS, American Institute of Chemical Engineers, New York, New York for Chemical 

Security Analysis Center, Science & Technology Directorate, U.S. DHS Aberdeen Proving Ground, MD. 

http://www.aiche.org/ccps/documents/definition-inherently-safer-technology.
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that an IST with respect to a catastrophic release hazard may conflict with methods to minimize 

other hazards, such as theft or diversion of materials, contamination of product, or degradation of 

infrastructure. It may not address other hazards at all, or it may create new hazards. 

3. EPA’s Past Approach to STAA

The RMP rule already embodies most aspects of the hierarchy of controls. For example, §

68.67 (PHA) requires owners and operators of Program 3 processes to address process hazards 

using engineering and administrative controls. In most cases, the rule’s requirements for 

compliance with RAGAGEP should ensure that equipment and processes are properly designed, 

using appropriate passive, active, and procedural controls. The RMP rule also encourages passive 

and active mitigation for releases by allowing a source to account for such mitigation techniques 

in its offsite consequence analysisOCA (see §§ 68.25 and 68.28). However, the rule does not 

contain any explicit requirement for owners and operators to address the first tier of the hierarchy 

of controls – i.e. inherent safety. 

Although the current rule does not include IST requirements, For many years, EPA has 

recognized the importance of considering IST for improving process safety. The preamble of the 

1995 supplemental notice of proposed rulemakingNPRM for the Risk Management Program 

recognized “that there are many opportunities to make processes inherently safer without large 

scale adoption of new technologies (60 FR 13533, March 13, 1995). EPA also noted in the 

preamble to the 1996 final RMP rule, “Application of good PHA techniques often reveals 

opportunities for continuous improvement of existing processes and operations without a separate 

analysis of alternatives” (61 FR at 31674, June 20, 1996). The structure of the applicability 

provisions of the RMP rule, with TQs, encourages minimizing the presence of regulated 

substances in processes and encourages sources to continue to examine and adopt viable 

alternative processing technologies, system safeguards, or process modifications to make new and 

existing processes and operations inherently safer. EPA’s existing guidance on the “general duty 

clause” in CAA section 112(r)(1) states that, “The owners and operators should try to substitute 

Commented [A141]: IA Comment #39 Page 80, recommended 

edit: “For many years, EPA has recognized the importance of 

considering safer technologies or alternatives IST for improving 

process safety.

Commented [A142R141]: No. EPA is specifically referring to 

the 1996 preamble that addresses IST and not the full range of 

STAA. See revised language.
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less hazardous substances for extremely hazardous substances or minimize inventories when 

possible. This is usually the most effective way to prevent accidents and should be the priority of 

a prevention program.”106

In the 1996 final RMP rule, EPA decided not to mandate IST analysis, stating that “EPA 

does not believe that a requirement that owners or operators conduct searches or analyses of 

alternative process technologies for new or existing processes will produce significant additional 

benefits.” (61 FR 31688, June 20, 1996). However, since 1996 EPA has seen that advances in 

ISTs and safer alternatives are becoming more widely available and are being adopted by some 

companies. Voluntary implementation of some ISTs has been identified through surveys and 

studies and potential opportunities have been identified through EPA inspections and CSB 

incident investigations. EPA now believes that there is a benefit in requiring that some facilities 

evaluate whether they can improve risk management of current hazards through potential 

implementation of ISTs or risk management measures that are more robust and reliable than ones 

currently in use at the facility. While EPA believes that facilities should look for additional 

opportunities to increase safety, we believe that the facility owners or operators are in the best 

position to decide identify which changes are feasible to implement for their particular process. 

As a result, and that EPA should is not proposing to require that a facility implement a particular 

ISTtechnology or design. 

In addition, in CAA Section section 112(r) enforcement cases, facility owners or

operators have occasionally entered into consent agreements involving implementation of safer 

alternatives. For example, a food processor in San Francisco had a release of anhydrous ammonia 

from its refrigeration system in 2009, resulting in evacuation of the facility and several 

106

 EPA, Office of Solid Waste and Emergency Response and Office of Enforcement and Compliance 

Assurance. May 2000. Guidance for Implementation of the General Duty Clause, CAA Section 112(r)(1). 

EPA 550-B00-002. 

http://www2.epa.gov/rmp/guidance-implementation-general-duty-clause-clean-air-act-section-112r.

Commented [A143]: IA Comment #42 Page 81, regarding 

“However, since 1996 EPA has seen that advances in ISTs and safer 

alternatives are becoming more widely available and are being 

adopted by some companies.” Why would a good PHA not include 

consideration of ISTs? 

Commented [A144R143]: A good PHA should consider IST but 

the RMP rule does not explicitly require it.

Commented [A145]: IA Comment #41 Page 81, recommend 

the following edits: However, since 1996 EPA has seen that 

advances in safer technologies ISTs and safer alternatives are 

becoming more widely available and are being adopted by some 

companies. Voluntary implementation of some safer technologies

ISTs has been identified through surveys and studies and potential 

opportunities have been identified through EPA inspections and 

CSB incident investigations. EPA now believes that there is a benefit 

in requiring that some facilities evaluate whether they can improve 

risk management of current hazards through potential 

implementation of safer technologies ISTs or risk management 

measures that are more robust and reliable than ones currently in 

use at the facility.

Commented [A146R145]: Changes not incorporated. PHAs 

are already considering the other elements of the hierarchy 

(passive, active, and procedural measures) and therefore, any 

advancements in these strategies should already be incorporated 

into PHA revalidations/updates. The discussion here is intended to 

focus on IST which is the incremental difference in the proposed 

rule.

Commented [A147]: IA Comment #43 Page 82, recommend 

the following edit: “...implement for their particular process and 

that EPA should not require that a facility implement a particular 

technology IST.

Commented [A148R147]: Change incorporated with 

modification.

Commented [A149]: IA Comment #40 Page 81, EPA seeks 

comments and suggestions on the proposed third-party audit 

applicability requirements and whether to maintain or further limit 

applicability of this provision. “While EPA believes that facilities 

should look for additional opportunities to increase safety, we 

believe that the facility owners or operators are generally in the 

best position to decide identify which changes are feasible to 

implement for their particular process. As a result, and that EPA 

should is not proposing to not require by regulation that a facility 

implement a particular IST.”

Commented [A150R149]: Changes incorporated with slight 

modification (no need to say by regulation).
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neighboring businesses and hospitalization of 17 people. As part of a consent decree, the facility 

owner or operator converted the anhydrous ammonia refrigeration system to a safer technology 

that uses glycol and less ammonia, along with implementing other safety measures and system 

upgrades.107 Following community complaints and a 2011 EPA inspection, the owner or operator 

of a fertilizer facility chose to remove a total of 99,000 pounds of anhydrous ammonia from the 

facility, thus reducing the risk to the surrounding population.108 In another case, the owner or 

operator of a dairy company agreed to reduce the anhydrous ammonia inventory and improve 

release detection equipment at two facilities after two anhydrous ammonia releases in 2005 and 

2007 (the latter causing nine people to spend a night in the hospital) and after EPA identified 

CAA violations.109 The owner or operator of a Connecticut metal finishing facility that used 

chlorine gas for treatment of cyanide waste agreed to implement a project to eliminate the use of 

chlorine by substituting liquid sodium hypochlorite after EPA found violations of accident 

prevention regulations.110 A release from one of the chlorine cylinders at the facility could 

potentially have impacted offsite public receptors in a densely populated area.111 Thus, EPA’s 

historic approach to STAA under CAA section 112(r) has resulted in chemical plant operators 

introducing safer technology and alternatives through implementation of existing rule provisions 

107

 EPA News Release. January 31, 2012. South San Francisco Food Processing Factory Will Pay Nearly 

$700,000 in Penalties, Spend $6 Million to Update Refrigeration System Safety. 

http://yosemite.epa.gov/opa/admpress.nsf/0/1c6b8ee238fd17d185257996005b892f. 

108

 EPA News Release. August 14, 2013. Abilene Products Co., Inc., Agrees to $90,660 Settlement for 

Violations of CAA at Abilene, Kan., Fertilizer Facility. 

http://yosemite.epa.gov/opa/admpress.nsf/0/8BB676093B7826FF85257BC7006B3E4C. 

109

 EPA News Release. October 1, 2012. Settlement with Suiza Dairy Corporation for Violations at 

facilities in Puerto Rico will make facilities safer, benefit nearby communities. 

http://yosemite.epa.gov/opa/admpress.nsf/0/319D803456BF7B0885257A8A005A4238. 

110

 EPA Region 1. January 20, 2014. Consent Agreement and Final Order- In the Matter of: Metal 

Finishing Technologies, LLC Docket Number: CAA-01-2013-0073. 

http://yosemite.epa.gov/OA/RHC/EPAAdmin.nsf/Filings/3A95FA64BDE7026C85257C8600214551/$File/

CAFO%20CAA-01-2013-0073.pdf. 

111

 EPA Region 1. September 30, 2013. Administrative Complaint - In the Matter of: Metal Finishing 

Technologies, LLC Docket Number: CAA-01-2013-0073. 

http://yosemite.epa.gov/OA/RHC/EPAAdmin.nsf/Filings/1BE4A3485C3E1E6B85257C1C0021490D/$File

/CAA-01-2013-0073%20Complaint.pdf. 
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that address most of the hierarchy of controls, but the Agency has not mandated the use or 

analysis of IST alternatives. 

4. Public Input on STAA

Public feedback and input to the Working Group established to oversee Executive Order

13650, showed there was broad agreement among facility owners and operators, plant workers, 

community members, and environmental and union organizations of the benefits of implementing 

safer alternatives where feasible. There was, however, no consensus about the role of government 

in the implementation of safer technologies and alternativesIST. Industry representatives are wary 

about process design and operational decisions, including choices of IST, being imposed through 

regulations. Process design and operational decisions are technically complex and often difficult 

to regulate. Conversely, many labor and environmental justice representatives believe the Federal 

government should have a larger role in encouraging IST, with particular emphasis on the 

opportunity to reduce the vulnerability of residents and workers from incidents.112

 

a. Pending Petition on IST

In July of 2012, a coalition representing 54 organizations and individuals petitioned EPA 

to use its rulemaking authority under CAA section 112(r)(7)(A), “to require the use of IST, where 

feasible, by facilities that use or store hazardous chemicals.” The petitioners also requested that 

pending completion of such rulemaking, that EPA should: 

revise its guidance concerning the enforcement of the CAA general duty clause, 

section 112(r)(1), 42 U.S.C. § 7412(r)(1), to make clear that the duty to prevent 

releases of extremely hazardous substances includes the use, where feasible, of 

safer technologies to minimize the presence and possible release of hazardous 

chemicals.113 

112

 Chemical Facility Safety and Security Working Group. May 2014. Executive Order 13650 Report to the 

President – Actions to Improve Chemical Facility Safety and Security – A Shared Commitment. EPA, the 

Department of Labor (DOL), DHS, the Department of Justice (DOJ), the Department of Agriculture 

(DOA), and the Department of Transportation (DOT). Washington, DC. 

https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf. 

113 Greenpeace et al. July 25, 2012. Petition to Prevent Chemical Disasters from Rick Hind of Greenpeace, 

Richard Moore of Los Jardines Institute and Scott Nelson of Public Citizen sent to EPA Administrator Lisa 

Jackson, EPA, Washington, DC, www.documentcloud.org/documents/404584-petition-to-epa-to-preventchem-disasters-filed.html. 

Commented [A151]: IA Comment #44 Page 83, recommend 

the following edit: There was, however, no consensus about the 

role of government in the implementation of safer technologies and 

alternatives IST.

Commented [A152R151]: Change incorporated.
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The petitioners stated that many Americans remain at risk of injury or death from the unforeseen 

release of harmful chemicals from nearby industrial parks, water treatment plants, etc., and that 

the DHS CFATS, which impose security measures on facilities presenting a high risk of 

vulnerability to releases of hazardous substances, do not cover water treatment facilities, many of 

which use and store significant quantities of chlorine gas. 

The petitioners cited specific threats or accidents as examples of risks that, in their view,

should have been addressed by taking steps to eliminate or minimize extremely hazardous 

substances114 where feasible. Examples they cited include a 2009 explosion at a refinery in 

Corpus Christi, Texas, that resulted in the release of more than a ton of hydrogen fluoride, with a 

much larger release being narrowly avoided.115 A 2008 explosion and fire at a Bayer CropScience 

facility in West Virginia, narrowly missed causing a breach in piping on the top of an 

aboveground tank of methyl isocyanate (MIC), which the petitioners claimed, if breached, would 

have resulted in a deadly release of the same chemical responsible for the Bhopal, India 

disaster.116 They also identified a 2007 propane explosion and fire at a refinery in Texas that 

resulted in the release of nearly three tons of chlorine gas, with deaths and injuries avoided only 

by prompt evacuation of workers. The CSB, which reported the chlorine release as 5,332 pounds, 

 

114

 This not intended to specifically reference the Extremely extremely Hazardous hazardous Substances 

substances (EHSs) listed under § 302 of EPCRA. Section 112(r)(1) of the CAA provides a purpose and 

general duty to prevent the accidental release and to minimize the consequence of any release of any 

regulated substances promulgated by EPA under § 112(r)(3) (40 CFR part 130) and for “any other 

extremely hazardous substance.” Although the term “any other extremely hazardous substance" is not 

defined, the legislative history of the 1990 CAAA indicate that the term would include any agent "which 

may or may not be listed or otherwise identified by any Government agency which may as the result of 

short-term exposures associated with releases to the air cause death, injury or property damage due to its 

toxicity, reactivity, flammability, volatility, or corrosivity.” See: 

http://www2.epa.gov/sites/production/files/2013-10/documents/gdcregionalguidance.pdf.

115 Petitioners are referring to an accident at the CITGO Refinery in Corpus Christi, Texas. For more 

information on this accident, see CSB. December 9, 2009. CITGO Refinery HF Release and Fire, Corpus 

Christi, Texas. Final Report, Urgent Recommendation. http://www.csb.gov/citgo-refinery-hydrofluoricacid-release-and-fire/.

116 CSB. January 2011. Investigation Report: Pesticide Chemical Runaway Reaction Pressure Vessel 

Explosion, Bayer CropScience, LP, Institute, West Virginia, August 28, 2008. Report No. 2008-08-I-WV, 

pp. 88-89, http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf.
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recommended the refinery replace chlorine used as a biocide in cooling water treatment with 

inherently safer materials, such as sodium hypochlorite, at all its refineries.

117 The petitioners also 

cited several examples where readily available IST approaches have already been used, such as 

substitution of liquid bleach or ultraviolet light for chlorine in water disinfection118, 119 and the use 

of alternatives to replace HF in gasoline refining.120

b. National Academy of Sciences (NAS) and CSB Investigation Findings

A 2012 report from the NAS that examined the 2008 Bayer CropScience accident in West 

Virginia and community concerns surrounding MIC (and other highly toxic materials), found that 

inherently safer process assessments can be valuable components of PSM that can help facility 

personnel consider the full range of options in process design.121 The NAS report found that while 

Bayer and previous owners of the site incorporated some considerations of IST, these companies 

"did not perform systematic and complete inherently safer process assessments on the processes 

for manufacturing MIC or the carbamate pesticides at the Institute site.” Thus, large amounts of 

MIC, phosgene, and other toxic materials were produced or stored at the site for decades.

The NAS also found that industry as a whole lacks a common understanding of what is 

needed to identify inherently safer processes and accurately quantify their benefits, including the 

potential for reduced emergency preparedness costs. The NAS panel noted that the goal of ISD is 

not only to prevent an accident, but also to reduce the consequences of an accident should one 

 

117 CSB. July 9, 2008. Investigation Report: LPG Fire at Valero-McKee Refinery, Sunray, Texas, February 

16, 2007. Report No. 2007-05-I-TX. http://www.csb.gov/assets/1/19/CSBFinalReportValeroSunray.pdf.

118

 Orum, Paul and Rushing, Reece. March 2, 2010. Leading Water Utilities Secure Their Chemicals.

Center for American Progress, Washington, DC. 

https://www.americanprogress.org/issues/security/news/2010/03/02/7538/leading-water-utilities-securetheir-chemicals/. 

119 M. McCoy. November 9, 2009. Clorox to Stop Using Chlorine. Chemical & Engineering News.

http://pubs.acs.org/cen/news/87/i45/8745notw2.html. http://cen.acs.org/articles/87/i45/Clorox-Stop-UsingChlorine.html.

120 Morris, J. and Hamby, C. May 19, 2014. Use of toxic acid puts millions at risk. Center for Public 

Integrity. Washington, DC. http://www.publicintegrity.org/2011/02/24/2118/use-toxic-acid-puts-millionsrisk.

121

 NAS. 2012. Summary- The Use and Storage of MIC at Bayer CropScience. pp. 3, 7. 

http://dels.nas.edu/resources/static-assets/materials-based-on-reports/reports-in-brief/MIC-SummaryFinal.pdf.

Commented [A153]: 2-1-16 corrected link in footnote 119.

Commented [A154]: IA v.3 Comment # 16 Page 89: corrected 

link to footnote: M. McCoy. November 9, 2009. Clorox to Stop 

Using Chlorine. Chemical & Engineering News. 

http://pubs.acs.org/cen/news/87/i45/8745notw2.html.

http://cen.acs.org/articles/87/i45/Clorox-Stop-Using-Chlorine.html.

Commented [A155R154]: Change incorporated.
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occur, thus allowing emergency preparedness planners to focus on more readily manageable 

scenarios.

NAS found that inherently safer process assessments will not always result in a clear, 

well-defined, and feasible path forward. Although one process alternative may be inherently safer 

with respect to one hazard—toxicity of byproducts, for example—the process may present other 

hazards, such as an increased risk of fire or more severe environmental impacts. Choosing 

between options for process design involves considering a series of tradeoffs and developing 

appropriate combinations of inherent, passive, active, and procedural safety systems to manage 

all hazards.

A 2011 analysis of 63 CSB accident investigation reports, studies and bulletins by 

Canadian university researchers identified over 200 examples of recommendations for risk 

reduction measures from the hierarchy of controls that apply to the prevention of accidents or 

consequence mitigation. Thirty-six percent of the examples involved inherent safety, 8% involved 

passive engineered safety, 14% involved active engineered safety and 42% involved procedural 

safety. ISD items were observed to be equally split among the four primary ISD principles of 

minimization, substitution, moderation and simplification.122

 

The CSB has released reports for two recent accidents that the Board indicated could have 

been avoided if safer technologies had been employed. CSB found that the use of a safer material, 

such as high-chromium steel, would have prevented the accelerated corrosion and failure of 

carbon steel involved in the equipment rupture at the Tesoro Refinery in Anacortes, Washington,

in 2010, which resulted in an explosion and fire that killed seven employees.123 One 

recommendation from this CSB accident investigation was that EPA should revise the RMP rule 

122 Paul R. Amyotte, Dustin K. MacDonald, Faisal I. Khan. September 2011. An analysis of CSB 

investigation reports concerning the hierarchy of controls. Process Safety Progress. Volume 30, Issue 3, pp. 

261–265. http://onlinelibrary.wiley.com/doi/10.1002/prs.10461/abstract

123

 CSB. May 2014. Investigation Report: Catastrophic Rupture of Heat Exchanger, Tesoro Anacortes 

Refinery, Anacortes, Washington, April 2, 2010. Report 2010-08-I-WA. 

http://www.csb.gov/assets/1/7/Tesoro_Anacortes_2014-May-01.pdf. 

Commented [A156]: IA Comment #128 The preamble 

language on Safer Technology and Alternatives Analysis (STAA) is 

very confusing. References to STAA, IST, and ISD are inconsistent 

which creates confusion about what EPA is proposing. This also 

creates confusion regarding certain examples provided. For 

instance, the example using the CSB Tesoro investigation mentions 

safer technologies, but then says that using of safer materials is 

inherently safer. OSHA believes that this is safer alternative, but 

not inherently safer.

Commented [A157R156]: While we agree that use of 

corrosion resistant materials may not be viewed by some as 

inherently safer, we believe it is an example of a passive design 

strategy which is one of the strategies of the hierarchy controls. The 

characterization in this paragraph is from the CSB findings.
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to require the documented use of inherently safer systems analysis and the hierarchy of controls 

to the greatest extent feasible when facilities are establishing safeguards for identified process 

hazards. CSB also cited the failure to use more corrosion resistant high-chromium steel as a factor 

in the 2012 Chevron Refinery accident in Richmond, CA California, which released 

hydrocarbons that ignited, endangering 19 employees.124 

c. State and Local IST Programs

Some state and local governments have included inherent safety requirements in their 

regulations. An IST Review Rule was adopted under the New Jersey TCPA program in May 

2008.125 It requires IST reviews of all facilities covered by the TCPA by evaluating, at a 

minimum, the four IST principles: minimization, substitution, moderation, and simplification. 

NJDEP defined “IST” to mean “the principles or techniques that can be incorporated in a covered 

process to minimize or eliminate the potential for an Extraordinarily Hazardous Substance 

release.”126

 

The rule includes a checklist developed under the direction of the New Jersey Domestic 

Security Preparedness Task Force. The NJDEP allows any available IST analysis method to be 

used to perform the IST review, but discusses two methods which are commonly used: (1) 

integrating IST into the facility’s PHA study and (2) reviewing and completing a checklist 

containing a number of practical inherent safety considerations. 127 The NJDEP also requires an 

IST review report that includes: 

 Information on the review team (name, position, qualifications, etc.); 

124

 CSB. January 2014. Regulatory Report: Chevron Richmond Refinery Pipe Rupture and Fire, Chevron 

Richmond Refinery #4 Crude Unit, Richmond, California, August 6, 2012. Report No. 2012-03-I-CA. 

http://www.csb.gov/assets/1/19/CSB_Chevron_Richmond_Refinery_Regulatory_Report.pdf. 

125

 NJDEP. March 29, 2012. NJDEP Title 7, Chapter 31 TCPA Program Consolidated Rule Document. 

Pages 17, 66 -68. http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_fonts.pdf. 

126

 NJDEP uses the term “Extraordinarily Hazardous Substance” to describe the substances that are subject 

to the NJ TCPA. 

127

 NJDEP, Bureau of Release Prevention. January 15, 2015. Guidance for TCPA, IST Review, Rev. 1. 

http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_guidance.pdf . 
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 IST analysis method used;

 IST already present in the process;

 Additional IST identified;

 IST to be implemented, and a schedule for their implementation; and

 A list of IST determined to be infeasible.

A facility owner or operator must determine an identified alternative’s feasibility, and must 

provide written justification based on both qualitative and quantitative evaluations of 

environmental, human health and safety, legal, technological, and economic factors if it decides 

not to implement it. The ACC noted that NJDEP’s definition of inherent safety allowed “add-on” 

safety equipment and included routine safety improvements that are not part of the inherent safety 

concept as defined by CCPS and others.128 NJDEP visited every regulated facility and reviewed 

the IST report with the facility staff. A January 2010 report prepared by the NJDEP to summarize 

the Department’s review of 85 IST reports indicated that approximately 48% of facilities reported 

that they had implemented or scheduled to implement IST measures as a result of conducting the 

IST review.129

California’s Contra Costa County’s ISO130 and the City of Richmond, CA’s California’s 

ISO131 require owners and operators of stationary sources to consider inherently safer strategies 

(ISS) in the development and analysis of mitigation systems resulting from a PHA for each 

128 ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0694 on Risk Management Program 

RFI, pg. 25. 

129 NJDEP. January 15, 2010. IST Implementation Summary. 

http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_SUMWEB.pdf 

130 Contra Costa County CA. 2006. ISO Code, Title 4 – Health and Safety, Division 450 – Hazardous 

Materials and Wastes, Chapter 450-8 – Risk Management. Contra Costa County, California pp. 5, 21-22. 

http://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf.

131

 The Richmond ISO is identical to the Contra Costa County ISO except it does not include the 2006 

amendments made to the Contra Costa ISO which require a safety culture assessment, a human factors 

program, management of change for maintenance, health and safety positions, and a security vulnerability 

analysis. CCHS. July 26, 2011.ISO. City of Richmond Annual Performance Review and Evaluation Report. 

CCHS, Contra Costa County, CA. http://cchealth.org/hazmat/pdf/iso/iso_report_richmond.pdf. 
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covered process, and in the design and review of new processes and facilities. Contra Costa 

County’s CC ISO defined ISS as 

“ISD strategies” as discussed in the latest edition of the CCPS publication, 

“Inherently Safer Chemical Processes,”

132 and to mean feasible alternative 

equipment, processes, materials, lay-outs, and procedures meant to eliminate, 

minimize, or reduce the risk of a major chemical accident or release by modifying 

a process rather than adding external layers of protection. Examples include, but 

are not limited to, substitution of materials with lower vapor pressure, lower 

flammability, or lower toxicity; isolation of hazardous processes; and use of 

processes which operate at lower temperatures and/or pressures. 

The Contra Costa County ISO requires that the stationary source must select and 

implement ISS to the greatest extent feasible and as soon as administratively practicable. If a 

stationary source concludes that implementation of an ISS is not feasible, the stationary source 

must document the basis for this conclusion in meaningful detail. Contra Costa County requires 

the documentation to include sufficient evidence to demonstrate to CCHS’s satisfaction that 

implementing the ISS is not feasible and the reasons for this conclusion. A claim that 

implementation of an ISS is not feasible cannot be based solely on evidence of reduced profits or 

increased costs. A February 2013 report prepared by CCHS on their ISO program indicated that 4 

of 7 facilities covered under the ordinance’s ISS provision implemented at least one inherently 

safer measure within the previous year.133 The February 2014 CCHS ISO report134 indicated that 

3 of the 7 facilities reported three or more ISS implemented during the last reporting year. In the 

city of Richmond, CACalifornia, as of July 2011, the two facilities covered by the Richmond ISO 

had implemented 62 safer alternative measures involving ISSs.135 In June 2014, the Contra Costa 

County ISO requirements were expanded to require evaluation and documentation of ISS analysis 

for new projects and processes and for existing processes, whenever major changes resulting from 

132

 CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2nd ed., American Institute 

of Chemical Engineers, CCPS New York, Wiley. 

133

 CCHS. February 26, 2013. Annual Performance Review and Evaluation-ISO. 

134

 CCHS. December 9, 2014. Annual Performance Review and Evaluation-ISO. 

http://cchealth.org/hazmat/pdf/iso/iso-report.pdf. 

135

 CCHS. July 26, 2011. ISO. City of Richmond Annual Performance Review and Evaluation Report. 

http://cchealth.org/hazmat/pdf/iso/iso_report_richmond.pdf. 

Commented [A158]: IA Comment #133 Is EPA's proposed 

requirement for facility owner/operators to explain why a 

potentially safer alternative is not being adopted comparable in 

rigor to Contra Costa County's requirement that the source 

"document the basis for this conclusion in meaningful detail" (EPA 

description from the preamble)?

Commented [A159R158]: The Contra Costa County's 

regulations include more extensive documentation of feasibility 

than those proposed in this notice.
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incident investigation recommendations, root cause analysis, or management of changeMOC

review indicate that change could reasonably result in a major chemical accident or release. 

d. Industry and Trade Association Input

Numerous trade associations (ACC,

136 SOCMA,137 Independent Petroleum Association of 

America ([IPAA]) and American Exploration & Production Council ([AXPC]),

138 API,139

Association of Metropolitan Water Agencies ([AMWA]),

140 National Association of Chemical 

Distributors ([NACD]),

141 National Association of Manufacturers ([NAM]),142 CGA,143 Chlorine 

Institute ([CI]),

144 American Fuel & Petrochemical Manufacturers (AFPM),145 Chemical Safety 

Advocacy Group ([CSAG])

146), one company, Axiall Corporation,147 and the Mary Kay 

O’Connor Process Safety Center [(MKOPSC]),

148) noted in their comments on EPA’s RFI, that 

IST is only one of many approaches that may be employed to achieve risk reduction. They also 

noted that identification and evaluation of a safer alternative is not an off-the-shelf concept, but 

 

136

 ACC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0694 on Risk Management Program 

RFI, PDF pp. 16-28 of 189. 

137

 SOCMA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0560 on Risk Management 

Program RFI, pp. 3-6. 

138

 IPAA and AXPC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0584 on Risk 

Management Program RFI, pp. 21-24. 

139

 API. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0624 on Risk Management Program 

RFI, pp. 24-26. 

140

 AMWA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0639 on Risk Management 

Program RFI, pp. 1-7. 

141

 NACD. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0614 on Risk Management 

Program RFI, pgs. 6-7. 

142

 NAM. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0625 on Risk Management 

Program RFI, pg. 2. 

143

 CGA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0633 on Risk Management Program 

RFI, pg. 4.

144

 CI. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0642 on Risk Management Program 

RFI, pgs. 7-8. 

145

 AFPM. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0665 on Risk Management 

Program RFI, pgs. 35-38. 

146

 CSAG. October 29, 2013. Comment No. EPA-HQ-OEM-2014-0328-0691 on Risk Management 

Program RFI, pgs. 38-21. 

147

 Axiall Corp. October 29, 2013. Comment No. EPA-HQ-OEM-2014-0328-0549 on Risk Management 

Program RFI, pg. 5. 

148

 MKOPSC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0543 on Risk Management 

Program RFI, pgs. 101-108. 

Commented [A160]: IA v.2 Comment #4 Page 90, 

recommended edit: Numerous trade associations (ACC, SOCMA, 

Independent Petroleum Association of America [(IPAA]) and 

American Exploration & Production Council [(AXPC]),

Commented [A161R160]: Change incorporated.
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requires a holistic and often complex evaluation involving various factors. The commenters also 

indicated that IST decisions must be process-, site-, and hazard-specific, technically and 

economically feasible, and avoid shifting risk. These commenters stated that a regulatory program 

focused exclusively on eliminating a safety hazard would overlook other important considerations 

and risks that must be factored into an evaluation of a process change. They further contended 

that improper implementation of a seemingly safer alternative may lead to undesired 

consequences. The commenters argued that because an option may be inherently safer with 

regard to some hazards and inherently less safe with regard to others, decisions about the 

optimum strategy for managing risks from all hazards are required.

In their comments on the RFI, AMWA140 also stated that decisions to select the most 

appropriate water treatment methods are best made by water utility managers based on a variety 

of factors. Most importantly, they stated, these managers should also determine which chemical 

will most effectively make water safe for public consumption and achieve compliance with the 

requirements of the Safe Drinking Water Act (SDWA).

149 According to AMWA, allowing 

Federal officials to “second-guess” these local decisions – with a focus on minimizing potential 

terror attack consequences offsite, rather than ensuring the appropriate treatment and safety of 

drinking water – could lead to inadequately treated water and even detriments to public health. 

AMWA also stated that if utilities were simply instructed to consider whether an alternative 

might be appropriate for them, the costs could be relatively small. But, in AMWA’s view, if this 

analysis were required to include numerous prescribed steps, calculations and justifications for 

subsequent decisions, then costs could quickly escalate beyond what is reasonable and affordable. 

MunicpalH2O, a Risk Management Program/PSM compliance consultant for the 

water/wastewater treatment industry, commented that implementing these changes is very 

expensive and cost prohibitive. The commenter suggested that if a new requirement is placed on 

 

149

 AMWA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0639 on Risk Management 

Program RFI, pgs. 4-5.
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regulated water and wastewater facilities to perform an analysis of safer technology and 

alternatives, those facilities that have previously completed an analysis of safer technology and 

alternatives for their operation should be allowed to utilize their already completed analysis and 

be exempt from any future requirement in this area.150

The American Water Works Association (AWWA) stated that it has found that options 

often classified as inherently safer may in fact have impacts that counter other Federal initiatives 

associated with the nation’s transportation systems, energy consumption, and carbon dioxide 

(CO2) emissions.151 Because of these risk tradeoffs, critical factors and variables, AWWA 

maintained that the choice of disinfectant should lie with qualified local officials, who are best 

acquainted with the specifics of their local situation.

NACD stated that requiring manufacturers to hold smaller quantities of hazardous 

materials on site would exhaust their limited inventories faster.141 The commenter also indicated 

that distributors would need to deliver hazardous chemicals to these facilities more frequently, 

thereby significantly increasing the number of miles driven to deliver the same amount of product 

and ultimately increasing and shifting risk to the public roadways. In addition, NACD suggested 

there is a higher risk of incident during product loading and unloading, and that more shipments 

would increase the number of times chemicals must be loaded and unloaded, thereby increasing 

risk. NACD also stated that fixed-site risks are more manageable than those with a transportation 

component. 

5. Proposed Revisions to Regulatory Text

Based on the considerations discussed above, EPA is proposing to modify the PHA 

provisions in § 68.67 to require analysis of potential safer technology and alternatives that would 

include, in the following order of preference: IST or ISD, passive measures, active measures, and 

150

 MunicipalH2O. October 28, 2103. Comment No. EPA-HQ-OEM-2014-0328-0588 on Risk 

Management Program RFI, pgs. 6-7. 

151

 AWWA. October 29, 2103. Comment No. EPA-HQ-OEM-2014-0328-0648 on Risk Management 

Program RFI, pgs. 3-5.

Commented [A162]: IA Comment #130 We would like to 

better understand the pros and cons of potentially applying the 

Safer Technology and Alternatives Analysis (STAA) requirements of 

the proposed rule to water supply and/or wastewater treatment 

facilities, which have been identified by some outside experts as 

being potential sources for high-consequence chemical releases 

and also having significant opportunities for low-cost safer 

alternatives. Based on the summary of comments on the RFI, it 

sounds like AMWA was most concerned about EPA imposing 

requirements that force adoption of specific IST alternatives ( as 

well as highly burdensome analytical requirements, which seemed 

secondary to their first concern), which is not what EPA would 

propose for any covered sector.

Commented [A163R162]: EPA focused this requirement on 

facilities that have complex processes and a relatively high 

frequency of accidents.

The water and WWT sector have the lowest accident history 

frequency (0.04 accidents/facility over 10 yrs.) as compared to 

chemical manufacturing (0.36 accidents/facility over 10 yrs.), 

pulp/paper (0.66. accidents/facility over 10 yrs.), and refineries 

(1.08 accidents/facility over 10 yrs.)

RMP deregistrations for this sector indicate that many water and 

WWT facilities have already converted from gaseous chlorine to 

other disinfection technologies.

Commented [A164]: IA Comment #131 We would strongly 

recommend that EPA consider requiring facilities to send 

completed STAA documentation to EPA. Even if EPA does not 

currently have the resources or anticipate getting sufficient 

resources for full review, this would 1) enable future sampling to 

assess whether and how facilities are broadly complying and 

whether guidance, reminders, or other remedies might be need to 

ensure robust, meaningful compliance and 2) send a stronger signal 

...

Commented [A167R166]: The PHA requirements would apply 

to STAA documentation. The owner/operator must retain PHAs and 

updates or revalidations for the life of each process. The rule does 

not specify where records must be maintained.

EPA does not specify requirements for senior officials sign off. 

However, §68.67(e) establishes a system for addressing, 

...

Commented [A166]: IA Comment #134 Where are STAA 

documents produced by facility owner/operators stored and for 

how long? Does a sufficiently senior official (to ensure 

accountability) need to sign off on the documents?

Commented [A165R164]: EPA is concerned that in many 

cases, submission of STAA documentation would equate to full 

PHAs being submitted to the EPA. This would also have implications 

for managing CBI-much of the data would likely be classified as CBI 

and require special handling and storage by agency personnel. 

...

Commented [A168]: IA Comment #135 Would STAA 

documents be available to EPA, OSHA, and/or other inspectors who 

could verify that the owner/operators are doing a robust job at 

meeting the STAA requirements (in the rare cases when inspections 

happen)? - What other options has EPA considered to ensure 

compliance?

Commented [A169R168]: Yes, like other aspects of the Risk 

Management Program rule requirements, documents must be 

available to the inspector.

EPA inspectors would be able to review RMPs to evaluate 

compliance with this provision (if finalized). EPA can also request 

documents under CAA §114 authority.

1

3

2
Page 99: [1] Commented Author 

IA Comment #131 We would strongly recommend that EPA consider requiring facilities to send completed STAA

documentation to EPA. Even if EPA does not currently have the resources or anticipate getting sufficient resources

for full review, this would 1) enable future sampling to assess whether and how facilities are broadly complying

and whether guidance, reminders, or other remedies might be need to ensure robust, meaningful compliance and

2) send a stronger signal (even if not backed up by full enforcement) to covered facilities that they shouldn't cheat

or shortcut compliance. If there are strong reasons why EPA will not propose submitting these documents, we'd

like to discuss and better understand.  If the additional burden of sending in documentation is an issue, did EPA

consider just requiring submission from a subset of facilities that have accidents or near misses?

Page 99: [2] Commented Author 

The PHA requirements would apply to STAA documentation. The owner/operator must retain PHAs and

updates or revalidations for the life of each process. The rule does not specify where records must be maintained.

EPA does not specify requirements for senior officials sign off. However, §68.67(e) establishes a system

for addressing, documenting, implementing and communicating how the o/o resolves recommendations from the

PHA revalidation/update.

Page 99: [3] Commented Author 

EPA is concerned that in many cases, submission of STAA documentation would equate to full PHAs being

submitted to the EPA. This would also have implications for managing CBI‐much of the data would likely be

classified as CBI and require special handling and storage by agency personnel.  

EPA inspectors can access information from PHAs as necessary as part of inspection activities or following

reportable releases.

For sectors regulated under this provision, the full PHA can be quite large. However, we have added

language to the end of this section requesting comment on whether to require the STAA be submitted.

Expanded comments for page 99

pg 99b
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procedural measures. EPA is limiting the proposed provisions to Program 3 processes in the 

petroleum and coal products manufacturing (NAICS 324), chemical manufacturing (NAICS 325), 

and paper manufacturing (NAICS 322) sectors for reasons discussed in Section section IV.C.6. 

STAA Applicability. 

EPA is also proposing to require owners or operators to evaluate the feasibility of 

implementing any IST or ISD considered. EPA believes a feasibility analysis of any considered 

IST or ISD is necessary to ensure the facility owner or operator seriously considers whether IST 

or ISD modifications could further reduce risks and prevent accidents at the facility. 

EPA is proposing to use the term “feasibility” to describe this analysis because it is 

already widely used in the context of IST. However, this term has a distinct meaning under the 

Occupational Safety and Health Act, where the courts look to whether a safety measure is capable 

of being done.152 In theis enforcement context, feasibility means that technical know-how about 

materials and methods is available or adaptable to specific circumstances, which when applied 

creates a reasonable possibility that employee exposure to occupational hazards will be reduced, 

and that the firm is financially able to implement the measure without severe adverse economic 

effect.153 Because of the potential for confusion, OSHA has indicated that it would be unable to 

adopt the term feasible, as defined in this notice, under its PSM standard if OSHA considers 

similar revisions involving IST. EPA seeks comment on whether it would be better if EPA used 

another term, such as “practicability” for this analysis.

EPA is not proposing to require sources affected by this provision to implement an 

evaluated IST or ISD. because the The decision to implement such measures must consider the 

numerous factors related to processes, facilities, and society at large. Improper implementation of 

a seemingly safer alternative may lead to undesired consequences. EPA believes that only 

152

 See American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 509 (1981); Seaworld of Florida, LLC v. 

Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2013). 

153

 OSHA CPL 02-00-159, Field Operations Manual 3-22 (2015); Avcon, Inc., 23 O.S.H. Cas. (BNA) 

1440, 1454 n.24 (O.S.H.R.C. Apr. 5, 2011).

Commented [A173R172]: EPA added additional preamble 

language to address this comment. Language to address economic 

feasibility is discussed in Section 7. Guidance on Safer Technologies 

and Alternatives.

Commented [A172]: IA Comment #47 Page 93, Applicability: 

Need to expand this section. EPA needs to account for the other 

consequences to workers, nearby populations, and the 

environment of this alternative. It could increase the risk of 

adverse environmental consequences to a larger population, shift 

the risk to another a transportation risk, or create other adverse 

environmental risks. The alternative may not be economically 

practicable, and could jeopardize the financial stability of the firm. 

Only the firms, in consultation with experts, are able to make sound 

judgments in these often complex determinations. 

Commented [A170]: IA Comment #46 Page 93, Applicability: 

IST analysis should not be required for any small firms. This 

requirement is too expensive for small firms and likely to be just a 

paperwork exercise. If the PHA does not yield such an alternative, 

it is unlikely that it would be feasible, in any event. Perhaps this 

should be applicable only to large or complex manufacturing 

facilities, perhaps only those with Title V permits. 

Also, IST analysis should not be required for toll processors unless 

the toll processor has a long term relationship (three years or more) 

to produce the product. Furthermore, the toll processor should not 

be required to consider alternative substances to be produced for 

the client firm. 

Alternatively, EPA could propose phasing in this requirement for 

small firms in five years, after EPA has reviewed the utility of these 

IST analyses for large firms. 

Commented [A171R170]: EPA is requesting comment on 

alternative options for small facilities based on SBAR panel 

recommendations. See preamble language at the end of Section 6. 

STAA Applicability.

Furthermore, the STAA does not specifically require batch toll 

manufacturers to only consider alternative substances to be 

produced for the client firm. The STAA allows for multiple 

inherently safer strategies.

The proposed provision already minimizes impact to small 

businesses by targeting industry sectors that have a low percentage 

of small facilities (pulp/paper- approx. 20% small business); 

(chemical mfg. and petroleum refining are both approx. 10% small 

business)

Finally, EPA is proposing to phase this requirement in over a fouryear period beyond the rule effective date in order to give facilities 

an opportunity to conduct the STAA as part of their normal PHA 

revalidation cycle.

Commented [A174]: New paragraph submitted by interagency 

commenter.

Commented [A175]: IA v.3 Comment #4 All of EPA’s changes 

to the OSHA insert on feasibility are acceptable, except on the 5th 

line where EPA changes “In the enforcement context” to “In this 

enforcement context.” “The” is important here, because feasibility 

has different meaning in other contexts under the OSH Act, 

especially rulemaking.

Commented [A176R175]: Change incorporated.
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qualified facility personnel should choose the best measures that can reduce the risk of an 

accident at the facility. While EPA believes that sources should look for additional opportunities 

to increase safety, we believe that the facility owners or operators are in the best position to 

identify which changes are feasible to implement for their particular process. This decision should 

be based on a careful analysis and take into account: the chemicals present and their associated 

hazards; the operations and process conditions involved; consequences to workers, nearby 

populations and the environment; and the types of equipment used that are specific to the 

facility’s process. The analysis may consider the potential to shift risk between populations, 

locations, environmental media (air, water land), etc.

a. Definitions (§ 68.3)

EPA is proposing to add several definitions that relate to a STAA in § 68.3. EPA is adding 

these definitions to describe risk reduction strategies that the owner or operator may use when 

considering safer technology and alternatives. 

First, EPA is proposing a definition for inherently safer technology or design (see § 68.3 

for the proposed definition). that The proposed “IST or design” definition would mean includes

risk management measures that would replace or reduce the use of regulated substances or make 

operating conditions less hazardous or less complex. Adopting the use of IST or ISD eliminates 

or reduces hazards by using different materials and/or process conditions which that minimize the 

use of regulated substances, substitute less hazardous substances, moderate the use of regulated 

substances, or simplify covered processes in order to that would make accidental releases less 

likely, or the impacts of such releases less severe. 

Second, EPA is proposing a definition for “passive measures” (see § 68.3) that would 

relies onmean risk management measures that use design features that reduce the a hazard 

without human, mechanical, or other energy input. Examples of passive measures include 

pressure vessel designs, dikes, berms, and blast walls. 

Commented [A177]: IA v.3 Comment #9 Page 98: After the 

deleted text “EPA believes that only qualified facility personnel 

should choose the best measures that can reduce the risk of an 

accident at the facility.” Please insert the following sentence “While 

EPA believes that facilities should look for additional opportunities 

to increase safety, we believe that the facility owners or operators 

are in the best position to identify which changes are feasible to 

implement for their particular process.” Text borrowed from earlier 

page. Can replace deleted text. Or use the ending alone: “we 

believe that the facility owners or operators are in the best position 

to identify which changes are feasible to implement for their 

particular process.”

Commented [A178R177]: Change incorporated with 

modifications.

Commented [A179]: Edits to address Federal Register reviewQuoting regulatory text is unacceptable, please fix and please fix 

any other text you have quoted in this document.

Commented [A180]: Edits to address Federal Register reviewQuoting regulatory text is unacceptable, please fix and please fix 

any other text you have quoted in this document.
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The third risk reduction measure that EPA is proposing to define is “active measures.” 

These involve engineering controls that rely on mechanical, or other energy input to detect and 

respond to process deviations. Examples of active measures include alarms, safety instrumented 

systems, and detection hardware (such as hydrocarbon sensors). 

Lastly, “procedural measures” would mean include risk management measures such as 

policies, operating procedures, training, administrative controls, and emergency response actions 

to prevent or minimize incidents (see § 68.3). Examples of procedural measures may include 

administrative limits on process vessel fill levels, procedural steps taken to avoid releases, etc.

In order to evaluate the ISTs and ISDs considered, EPA is proposing to define “feasible”

to include consideration of economic, environmental, legal, social, and technological factors 

when determining if the IST or ISD can be mean capable of being accomplished in a successful 

manner within a reasonable period of time, taking into account economic, environmental, legal, 

social, and technological factors (see § 68.3). Environmental factors could include consideration 

of risks transferred elsewhere if a new risk reduction measure is adopted. EPA requests comment 

on these proposed definitions. Furthermore, EPA requests comment on whether the term 

“feasible” is appropriate to characterize the viability of IST alternatives being considered. Is there 

another term, such as “practicable,” that may be more appropriate?

b. Process hazard analysis (PHA) (§ 68.67)

EPA is proposing to modify the PHA provisions by adding paragraph (c)(8) to § 68.67, to 

require that the owner or operator of a facility with Program 3 processes in NAICS codes 322, 

324, and 325 address safer technology and alternative risk management measures applicable to 

eliminating or reducing risk from process hazards. EPA is proposing to add paragraph (c)(8)(i) to 

specify that the analysis include, in the following order of preference: IST or design, passive 

measures, active measures, and procedural measures. The owner or operator may evaluate a 

combination of risk management measures to reduce risk. 

Commented [A181]: Edits to address Federal Register reviewQuoting regulatory text is unacceptable, please fix and please fix 

any other text you have quoted in this document.

Commented [A182]: Edits to address Federal Register reviewQuoting regulatory text is unacceptable, please fix and please fix 

any other text you have quoted in this document.

Commented [A183]: IA v.3 Comment #10 Page 99, comment 

A155: This reviewer still recommends: Feasible means capable of 

being accomplished in a successful manner within a reasonable 

period of time, economically practicable, and not inconsistent with 

other economic, environmental, legal, social, and technological 

factors. Environmental factors include consideration of risks 

transferred to other locations, populations, or ecological systems, if 

a new risk reduction measure is adopted.

EPA requests to know why this is better than EPA’s definition. It 

includes all of EPA’s definition, but it includes more specificity 

because it requires the IST approach to be “economically 

practicable.” This provides useful clarity, It is hard to imagine why 

a company should adopt a method that was not “economically 

practicable.” The absence of such words could imply that the other 

factors could overwhelm the economic factor.

Commented [A184R183]: Thank you for the clarification. EPA 

believes that each of the factors listed in the current proposed 

definition of feasibility should be considered within the perspective 

of practicability (including economic considerations). Identifying 

two nuances for economic factors may raise concerns and 

confusion for stakeholders. Furthermore, the term “not 

inconsistent” is not plain language. There are no proposed 

requirements to implement feasible options. EPA is requesting 

comment on the proposed definition.

Commented [A185]: IA Comment #49 Page 94, Definitions: 

The MultiSector General Permit (MSGP)– of feasibility specifies 

what stormwater measures should be required for industrial 

permittees:

Feasible – for the purposes of this permit, feasible means 

technologically possible and economically practicable and 

achievable in light of best industry practices.” 

Current text: EPA is proposing to define “feasible” to mean capable 

of being accomplished in a successful manner within a reasonable 

period of time, taking into account economic, environmental, legal, 

social, and technological factors. Environmental factors could 

include consideration of risks transferred elsewhere if a new risk 

reduction measure is adopted. 

Better definition borrowing from MSGP definition and using EPA 

RMP text:

Feasible means capable of being accomplished in a successful 

manner within a reasonable period of time, economically 

practicable, and not inconsistent with other economic, 

environmental, legal, social, and technological factors. 

Environmental factors include consideration of risks transferred 

to other locations, populations, or ecological systems, if a new 

risk reduction measure is adopted.

Commented [A186R185]: Need further clarification on why 

the commenter believes this is a better definition than the EPA 

proposed definition which is intended to allow flexibility.

EPA modeled the feasible definition based on NJ and CCC 

regulations.

Commented [A187]: Added to address IA Comment #2
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EPA is also proposing to add paragraph (c)(8)(ii) to require that the owner or operator 

determine the feasibility of the IST or ISD considered. The results of the feasibility analysis must 

be documented as part of the current PHA requirements in § 68.67(e), which requires the owner 

or operator to document actions to be taken and resolution of recommendations. EPA seeks 

comment on whether the proposed requirements to document feasibility are adequate or if these 

requirements should be modified to require a more extensive documentation of feasibility. For 

example, EPA could require that the source document the basis for this conclusion in meaningful 

detail (similar to California’s Contra Costa County’s ISO154 requirements).

The PHA must be updated and revalidated every five years in accordance with paragraph 

§ 68.67(f) and as such, this provides the owner or operator opportunities to evaluate the feasibility 

of IST or ISD considered since the last PHA review. EPA believes that five five-year revalidation 

will give the owner or operator the opportunity to identify new risk reduction strategies, as well 

as revisit strategies that were previously evaluated to determine whether they are now feasible. 

EPA seeks comment on these proposed revisions. Additionally, EPA requests comment on 

whether to require STAA documentation be submitted to EPA and/or the implementing agency.

6. STAA Applicability

EPA is proposing to limit the applicability of the STAA provisions to sources in the 

petroleum and coal products manufacturing (NAICS 324), chemical manufacturing (NAICS 325), 

and paper manufacturing (NAICS 322) sectors for two reasons. First, EPA believes that while 

most sectors regulated under 40 CFR part 68 could identify safer technology and alternatives, 

sources involved in complex manufacturing operations have the greatest range of opportunities to 

identify and implement safer technology, particularly in the area of inherent safety. These sources 

generally produce, transform, and consume large quantities of regulated substances under 

154 Contra Costa County CA. 2006. ISO Code, Title 4 – Health and Safety, Division 450 – Hazardous 

Materials and Wastes, Chapter 450-8 – Risk Management. Contra Costa County, California pp. 5, 21-22.

http://cchealth.org/hazmat/pdf/iso/2006_iso_official_code_complete.pdf

http://cchealth.org/hazmat/pdf/iso/Chapter-450-8-RISK-MANAGEMENT.pdf. 

Commented [A188]: IA v.3 Comment #2 This reviewer

recommends that EPA take comment on whether the 

documentation of feasibility proposed by EPA for the STAA is 

adequate or if commenters have suggestions for how it could be 

modified to ensure that it adequately (could reference the Contra 

Costa County requirements as an example that commenters could 

look to).

Commented [A189R188]: Change incorporated.

Commented [A190]: IA Comment #132 Do the STAA 

requirements apply to all program 3 facilities? It looks like NAICS 

codes 322, 324 and 325 cover subsets of NAICS codes that together 

include the universe of program 3 facilities, but we're looking for 

EPA confirmation. If that is the case, we would suggest saying that 

in the preamble.

Commented [A191R190]: No. The provision does not apply to 

all Program 3 facilities. 

There are a total of 10,628 facilities in Program 3.

The provision would only apply to a subset of 1,544 Program 3 

facilities in NAICS codes 322 (68 facilities), 324 (140 facilities), and 

325 (1,336 facilities).

Field Code Changed
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sometimes extreme process conditions and using a wide range of complex technologies. 

Therefore, such sources can often consider the full range of inherent safety options, including 

minimization, substitution, moderation, and simplification, as well as passive, active, and 

procedural measures. This contrasts with regulated sources that simply sell or distribute a 

particular regulated substance, such as bulk anhydrous ammonia. Although such sources may also 

have opportunities to identify and implement IST, the existence of such sources is predicated on 

handling and distributing a specific regulated substance. Therefore, their opportunities to 

implement certain IST strategies such as substitution or minimization may be limited. Similarly, 

sources involving relatively simpler chemical processes may have opportunities to implement 

chemical substitution strategies but may be limited in their ability to apply moderation and 

simplification strategies. 

Second, EPA notes that RMP facilities in the three selected sectors have been responsible 

for a relatively large number of accidents, deaths, injuries, and property damage.155 EPA 

compared the number of RMP accidents that occurred between January 1, 2004, and December 

31, 2013, reported by twelve industry sectors to the number of facilities in each sector. Each 

sector was comprised of industries based on similar operations involving the RMP substances and 

complexity. The twelve sectors were: petroleum and coal products manufacturing (NAICS 325), 

paper manufacturing (NAICS 322), chemical manufacturing (NAICS 324), food and beverage 

manufacturing (NAICS 311, 312), other manufacturing (all other NAICS 31-33), agricultural 

chemical distributors (NAICS 11, 42491), chemical/petroleum wholesalers (NAICS 4246, 4247), 

other wholesalers (all other NAICS 423, 424), warehouses (NAICS 493), water 

supply/wastewater treatment (NAICS 22131, 22132, 924), oil/gas extraction (NAICS 211) and 

all other (NAICS 211 (except 22131 and 22132), 44, 45, 48, 54, 56, 61, 72). The sector accident 

rates (number of accidents divided by the number of facilities in each sector) ranged from 1.08 to 

 

155

 EPA. January 27, 2016.Date Technical Background Document for Notice of Proposed Rulemaking: 

Risk Management Programs under the Clean Air Act, Section 112(r)(7).
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0.04. Three sectors have significantly higher accidents rates as compared to other sectors: 1.08 

(petroleum and coal products manufacturing), 0.66 (paper manufacturing) and 0.36 (chemical 

manufacturing). The petroleum and coal products manufacturing accident rate was 6-27 times 

higher, the paper manufacturing accident rate was about 4-6 times higher, and the chemical 

manufacturing accident rate was 2-9 times higher than other sectors. Therefore, implementation 

of safer technology and alternatives by these facilities in the pulp/paper manufacturing, chemical 

manufacturing, and petroleum refining sectors may prevent serious accidental releases in the 

future.

EPA seeks comment on whether the proposal to limit the STAA provisions to Program 3 

regulated processes in NAICS 322, 324, and 325 is appropriate. EPA also seeks comment on 

whether the Agency should further limit applicability of the STAA provisions (e.g., to apply only 

during the design stage of new processes or facilities, or only to certain processes). ). As part of 

the SBAR pPanel process, SERs cited limitations with flexibility to evaluate alternatives for 

custom formula blends and compliance with FDA approval requirements and, therefore, 

requested that EPA consider eliminating this provision and/or exempting batch toll manufacturers 

from this requirement-. EPA seeks comment on these alternatives.

Finally EPA seeks comment on whether there are other sectors that should be subject to 

the proposed STAA provision. For example, should EPA require RMP regulated water

supply/wastewater treatment facilities to analyze safer technology and alternatives and document 

feasibility of the alternatives?

7. Guidance on Evaluating Safer Technologies and AlternativesIST

Some owners or operators have already made process changes considered to be 

inherently safer, but others may not have sufficient information available to effectively assess 

whether their existing processes can incorporate inherently safer measures. To assist owners or 

operators with evaluating options for safer alternatives, EPA and OSHA developed a chemical 

safety alert in June 2015 illustrating the concepts, principles and examples of safer technology 

Commented [A192]: IA v.4 Comment-C Page 106 –

Before “Guidance on Evaluating Safer Technologies”

EPA also seeks comment on whether facilities can be exempted 

from STAA evaluations for a given chemical and process, if there 

was a previous STAA evaluation that applied to the facility or 

industry wide which was still applicable. The pulp and paper 

industry has cited the analysis performed for the industry with 

regard to the use of chlorine dioxide, which recommended that the 

industry continue use of that chemical for the bleaching process. It 

could be unnecessary for the facility to repeat that analysis in this 

case. CITATION

Commented [A193R192]: EPA added preamble language 

asking for comment on whether to limit applicability of this 

provision to a specific process.

Commented [A194]: Added to address SBAR panel 

recommendations

Commented [A195]: IA v.3 Comment #1 This reviewer

recommends that EPA solicit comment on whether large 

water/wastewater facilities regulated under RMP should be 

required to conduct STAA. The potential consequences of accidents 

at water supply and wastewater treatment facilities are likely to be 

high, even if frequency of accidents are relatively low. Stakeholders 

(including some industry experts familiar with this sector) have 

pointed out that these facilities present high risks and have 

relatively low cost safer alternatives, and it would be valuable to 

give industry and NGO experts an opportunity to provide EPA with 

input and data on whether or not this sector should be included.

Commented [A196R195]: Change incorporated.

Commented [A197]: IA Comment #50 Page 97, recommend 

the following edit: “7. Guidance on Evaluating Safer Technologies 

and Alternatives IST” and (see below)

Commented [A198R197]: Change incorporated.
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and alternatives to make industry more aware of this information, while providing sources of 

information for further investigation and review.156 

To conduct an IST / ISD analysis, EPA and OSHA have said owners or operators may 

use any available methodology or guidance to conduct their safer technology and alternatives

analysisSTAA, such as approaches discussed by CCPS (e.g., Hazard and Operability Study 

(HAZOP), What-If?, Checklist, Consequence-based methods),157 the NJ TCPA IST guidance 

materials,158 the Inherently Safer Systems Checklist provided by Contra Costa Hazardous 

Materials Program,159 or the information on OSHA’s webpage, “Transitioning to Safer 

Chemicals: A Toolkit for Employers and Workers.”

160 CCPS provides guidelines for what should 

be provided in an inherent safety analysis and provides example rationales for why inherent 

safety review recommendations were rejected.161 Examples for why inherent safety review 

recommendations may not be feasible, include when the recommendation:

 Is in conflict with existing Federal, state and local laws.

 Is in conflict with RAGAGEP.

 Is economically impractical, such that the process unit would stop being fiscally 

feasible. This can include consideration of:

o Capital investment;

o Product quality;

156

 EPA and OSHA. June 2015. Chemical Safety Alert: Safer Technology and Alternatives. EPA 550-F15-503. https://www2.epa.gov/rmp/chemical-safety-alert-safer-technology-and-alternatives

http://www.epa.gov/rmp/chemical-safety-alert-safer-technology-and-alternatives

157

 CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2nd ed., American Institute 

of Chemical Engineers, CCPS New York, Wiley. 

158

 NJDEP, Bureau of Release Prevention. January 15, 2015. Guidance for TCPA, IST Review. 

http://www.nj.gov/dep/rpp/brp/tcpa/downloads/IST_guidance.pdf. See also NJWEC. May 5, 2008. New 

Rule for IST Review by NJDEP. http://www.njwec.org/PDF/Factsheets/CS_IST_FactSheet.pdf. 

159

 Contra Costa Hazardous Materials ProgramCCHMP. June 15, 2011. ISS Checklist (extracted from IST 

Checklist found in the CCPS Inherently Safer Chemical Processes, 2nd ed., with incorporation of additional 

considerations). http://cchealth.org/hazmat/pdf/iso/attachment_c.pdf. 

160

 OSHA. Transitioning to Safer Chemicals, a Toolkit for Employers and Workers. 

https://www.osha.gov/dsg/safer_chemicals/index.html. 

161

 CCPS. 2009. Inherently Safer Chemical Processes: A Life Cycle Approach, 2nd ed. American Institute 

of Chemical Engineers, CCPS. New York, Wiley, 2009. Pgs. 200-202.

Commented [A199]: IA Comment #50 ...“To conduct an STAA

IST / ISD analysis...”

Commented [A200R199]: Deleted phrase (duplicative).

Commented [A201]: IA Comment #51 Page 98: recommend 

the following edits: “CCPS provides guidelines for what should be 

provided in an inherent safety analysis and provides example 

rationales for why inherent safety review recommendations were 

rejected. Examples for why inherent safety review 

recommendations may not be feasible, include when the 

recommendation:”

Commented [A202R201]: EPA disagrees with this revision. 

CCPS uses the terms “inherent safety analysis” and “inherent safety 

review” in the guidelines that are discussed in this paragraph.

Field Code Changed
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o Total direct manufacturing costs;

o Operability of the plant; and/or

o Demolition and future clean-up and disposal cost.

 Would have a negative social impact. Some examples could include an unacceptable 

visual or noise impact on the community, or increased traffic congestion.

 May violate a license agreement that cannot be modified, and so must remain in 

effect.

 May decrease the hazard, but would increase the overall risk.

 Provides less risk reduction than an alternative recommendation.

8. Alternative Options

As an alternative option, EPA is seeksing comment on whether to require facility owners 

or operators to implement any of the feasible options identified in the facility’s analysis. This 

option would rely on the owner or operator to select the specific technology or design to 

implement. EPA seeks comment on the factors EPA should consider when determining whether 

to require implementation of feasible options.

EPA evaluated the NJDEP125 and CCHS134 IST analysis programs as possible models to 

use in the Risk Management Program requirements. EPA seeks comment on whether we should 

include the following in our proposed STAA provisions:

 Aspects of the NJDEP’s program, such as more prescribed documentation of STAA;

or 

 Other aspects of CCHS’s program, such as requiring ISS analysis during the design 

of new processes, for PHA recommendations, or for major changes from an incident 

investigation recommendations, root cause analysis or management of changeMOC

review that could reasonably result in a major chemical accident or release.
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Finally, EPA seeks comment on whether either EPA or a third-party should create a 

“clearinghouse” of safer technology and alternatives that allow source owners or operators to 

share useful information and/or consult to identify technologies to evaluate for their process. We 

note that the concept of a clearinghouse has drawn support in comments on the RFI from state 

and local officials, labor and environmental stakeholders, academics, and industry 

representatives.162 One mechanism of collecting relevant information could be OSHA’s the 

National Working Group on Chemical Safety and Security’s best practices website,163 which 

collects and shares chemical safety and security best practices, including safer alternatives. 

Alternatively, EPA could require submission of STAA analyses, or information from those 

analyses, directly to EPA, and develop its own website. The information shared on such a website 

may include practicable risk reduction measures that could be applied at various facilities to 

mitigate threats to the public, worker, health, environment, and facility during the production, 

transport, and use of chemicals. 

D. Stationary Source Location and Emergency Shutdown 

Serious accidents often highlight numerous safety concerns and emphasize the need to 

consider existing regulations, industry standards, recommended practices and guidance to reduce 

risks of future incidents. Two issues of particular importance include the location of stationary 

sources and their emergency shutdown capabilities. 

162 AMWA. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0639 on Risk Management 

Program RFI, p. 3; BlueGreen Alliance. October 27, 2014. Comment No. EPA-HQ-OEM-2014-0328-0579 

on Risk Management Program RFI. p. 6. www.bluegreenalliance.org; BWD. October 24, 2014. Comment 

No. EPA-HQ-OEM-2014-0328-0654 on Risk Management Program RFI. p. 3. Beaver Water District 

(BWD), Lowell, Arkansas; CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-0546 on 

Risk Management Program RFI, p. 8; CPCD. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-

0644 on Risk Management Program RFI, pgs. 16, 18-19; MKOPSC. October 29, 2014. Comment No. 

EPA-HQ-OEM-2014-0328-0543 on Risk Management Program RFI, p. 105; Tickner, J. October 29, 2014. 

Comment No. EPA-HQ-OEM-2014-0328-0688 on Risk Management Program RFI. p. 6. University of 

Massachusetts, Lowell, Massachusetts; TURI. October 29, 2014. Comment No. EPA-HQ-OEM-2014-

0328-0539 on Risk Management Program RFI. Toxics Use Reduction Institute (TURI), University of 

Massachusetts, Lowell, Massachusetts. p. 5; United Steelworkers. October 29, 2014. Comment No. EPAHQ-OEM-2014-0328-0547 on Risk Management Program RFI, p. 5.

163

 OSHA. 2014. Executive Order 13650 Best Practices. 

https://www.osha.gov/chemicalexecutiveorder/LLIS/index.html.

Commented [A203]: IA Comment #52 Page 100, request the 

following to properly identify the best practices website: One 

mechanism of collecting relevant information could be OSHA’s the 

National Working Group on Chemical Safety and Security’s best 

practices website, which collects and shares chemical safety and 

security best practices, including safer alternatives.

Commented [A204R203]: Change incorporated.
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1. Stationary Source Location

The location of stationary sources, and the location and configuration of regulated 

processes and equipment within a source, can significantly affect the severity of an accidental 

release. The location of the stationary source in relation to public and environmental receptors 

may exacerbate the impacts of an accidental release, such as blast overpressures or concentrations 

of toxic gases, or conversely may allow such effects to dissipate prior to reaching receptors. The 

lack of sufficient distance between the source boundary and neighboring residential areas was a 

significant factor in the severity of several major chemical accidents, including, among others, the 

Bhopal disaster164 and the recent West Fertilizer accident. In the Bhopal disaster, most of the 

deaths and injuries occurred in a residential area that had grown up next to the plant. In the West 

Fertilizer accident, an apartment complex and a nursing home located approximately 450 feet and 

600 feet, respectively, from the source of the explosion wereas heavily damaged, resulting in 3

three public fatalities (a total of 15 people were killed in the explosion). The explosion also 

caused over 2060 injuries, as well as damage to over 350 homes and, three schools, and a nursing 

home located near the plant.165 

Facility designers have long recognized the potential benefits of adding buffer or safety 

zones (i.e., controlled areas separating the public and other facilities from the consequences of 

process incidents) when selecting the location for new chemical facilities. For existing facilities, 

owners have sometimes compensated nearby residents to relocate away from the facility 

boundary in order to create a buffer zone where one did not previously exist, or where adjacent 

residential areas had been developed after the facility itself was constructed. 

 

164

 Lees, Frank P. 1996. Loss Prevention in the Process Industries, Volume 3, 2nd ed. Appendix 5 Bhopal. 

Butterworth-Heinemann, Oxford, Great Britain.

165

 CSB. January 20165. Final Investigation Report, West Fertilizer CompanyPlant Fire and Explosion, 

West, TX, April 17, 2013. Report 2013-02-I-TX., ppgs. 13, 30, 49, 53, 54. 

http://www.csb.gov/west-fertilizer-explosion-and-fire-/.

Commented [A205]: EPA revised to make technical corrections 

to reflect the recent final CSB report.
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The selection of locations of processes and process equipment within a stationary source 

can impact the surrounding community not only by the proximity of the accidental release to 

offsite receptors near the facility boundary (e.g., people, infrastructure, environmental resources) 

but also by increasing the likelihood of subsequent releases from other nearby processes 

compromised by the initial release. The 1984 disaster at the PEMEX liquefied petroleum gas 

(LPG) tank farm in San Juan Ixhuatepec, Mexico, illustrates the potential for such effects. In this 

accident, an LPG pipeline rupture resulted in a large ground fire that spread to nearby LPG 

storage vessels, initiating a series of massive explosions. The cascading explosions and fires 

ultimately destroyed the entire facility and many nearby residences, resulting in over 500

fatalities and thousands of severe injuries.166

In the United States in 2007, a large fire at the Valero McKee refinery in Sunray, Texas, 

resulted in the release of chlorine gas and sulfuric acid from an adjacent process, which prevented 

responders from entering the area and extinguishing the fire for more than two days.167

At West Fertilizer, the Risk Management Program-regulated anhydrous ammonia process 

was located near the AN storage area. Although the AN explosion did not cause any catastrophic

failure of the ammonia storage vesselssecondary release of anhydrous ammonia, the potential for 

a release existed. A 1994 explosion involving AN solution at Terra Industries in Port Neal, Iowa,

which killed four workers, also damaged on-site ammonia tanks, creating an ammonia cloud that 

resulted in the evacuation of 2,500 people.168

The PSM standard and RMP rule both require that facility siting be addressed as one 

element of a PHA (see 29 CFR 1910.11 9(e)(2) and (3)(v)), and 40 CFR 68.67(c)). While EPA 

 

166 Lees, Frank P. 1996. Loss Prevention in the Process Industries, Volume 3, 2nd ed. Appendix 4 Mexico 

City. Butterworth-Heinemann, Oxford, Great Britain.

167

 CSB. July 9, 2008. Investigation Report: LPG Fire at Valero-McKee Refinery, Sunray, Texas, February 

16, 2007. Report No. 2007-05-I-TX. http://www.csb.gov/valero-refinery-propane-fire/.

168 EPA, Region 7, Emergency Response and Removal Branch (Kansas City, KS). January 1996. Chemical 

Accident Investigation Report: Terra Industries, Inc., Nitrogen Fertilizer Facility, Port Neal, Iowa (January 

1996). http://archive.epa.gov/emergencies/docs/chem/web/pdf/cterra.pdf.

Commented [A206]: EPA revised to make technical corrections 

to reflect the recent final CSB report.
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has not provided any guidance on how to adequately address stationary source siting in the PHA, 

RMP facility owners or operators can refer to industry guidance on siting considerations. The 

following publications provide guidance on facility siting:

 API Recommended Practice 752, Management of Hazards Associated With Location 

of Process Plant Buildings, 3rd Edition, December 2009;

 API Recommended Practice 753, Management of Hazards Associated with Location 

of Process Plant Portable Buildings, First Edition, June 2007;

 CCPS Guidelines for Evaluating Process Plant Buildings for External Explosions, 

Fires, and Toxic Releases, Second Edition, 2012; and 

 CCPS Guidelines for Facility Siting and Layout (2003).

The first three references listed above focus on providing guidance and best practices on 

establishing the location of occupied buildings within a facility, but generally do not address the 

potential risks to offsite receptors associated with the location of the facility or processes within 

the facility, nor do they consider the potential for releases caused by natural hazards that may 

occur in particular locations. The CCPS Guidelines for Facility Siting and Layout address both 

external factors influencing site selection, as well as factors internal to the source that could 

influence site layout and equipment spacing.

At this time, EPA is not proposing any additional requirements for location of stationary 

sources. However, EPA seeks comment on whether such requirements should be considered for 

future rulemakings, including the scope of such requirements, or whether the Agency should 

publish guidance.

2. Emergency Shutdown

In addition to properly locating stationary sources in relation to surrounding receptors, 

and locating processes within sources so as to minimize the possibility of cascading release 

events, accidents such as these highlight the importance of being able to quickly and safely shut 

Commented [A207]: IA Comment #53 Page 103, 

recommended edit: However, EPA seeks comment on whether such 

requirements should be considered for future rulemakings, 

including the scope of such requirements, or whether the Agency 

should publish guidance.

Commented [A208R207]: Change incorporated.
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down processes where accidental releases are occurring or may imminently occur. The RMP 

regulation requires owners and operators of stationary sources to develop and implement written 

operating procedures for the safe and timely emergency shutdown of Program 2 and Program 3 

processes, to ensure operator training for these procedures, and for maintaining the mechanical 

integrity of emergency shutdown systems. However, the regulation does not explicitly require 

that all covered processes must include emergency shutdown systems.

EPA encourages owner and operators of stationary sources to consider location of 

stationary sources and process equipment and the adequacy of emergency shutdown systems at 

their facilities to determine if changes are necessary to both reduce risks of an accidental release 

and ensure that procedures are in-place to mitigate those effects. Emergency shutdown or putting 

a process into a safe operation mode in the event of an emergency is a preventive safeguard to 

address hazard(s) identified as part of hazard review or PHA. Thus, the hazard review required 

under § 68.50 or the PHA required under § 68.67 should identify the use of this safeguard, when 

appropriate. 

At this time, EPA is not proposing any additional requirements for emergency shutdown 

systems. However, EPA seeks comment on whether such requirements should be considered for 

future rulemakings, including the scope of such requirements, or whether the Agency should 

publish guidance.

V. Emergency Response Preparedness Requirements

A. Emergency Response Program Coordination with Local Responders

Subpart E of the RMP rule, the emergency response provisions, applies to facilities with 

Program 2 or 3 processes. These provisions require owners or operators of regulated facilities

with Program 2 or 3 processes to coordinate with local response authorities and in some cases 

develop an emergency response program in accordance with § 68.95 to address how the owner or 

Commented [A209]: IA Comment #54 Page 104, Emergency 

Response Preparedness Requirements A. This is a controversial 

interpretation of the existing requirement. EPA needs to respond 

to the December 9 comments by Hydrite Chemical Company 

contending that EPA did not require small firms to be responding 

firms, and that the burden was on the LEPC to develop the 

response capability (see page 9). This new requirement places a 

large burden on small firms that needs to be accounted for in this 

rule. We oppose this burden being shifted to small firms.

Commented [A210R209]: The commenter misunderstands 

the existing requirement for local coordination. EPA cites the 1996 

preamble discussion raised by Hydrite on page 110 below and also 

includes a further discussion from the 1996 rule to explain that 

small sources that are not covered under the community response 

plan or have not coordinated with the local fire department must 

develop an emergency response program.

EPA has clearly identified in the preamble those areas of the 

provision where we are proposing changes (i.e., to require 

coordination on an annual basis, documentation, etc). EPA 

anticipates that more facilities will likely develop emergency 

response programs and this will impact small businesses. Therefore, 

we convened an SBAR panel and assessed costs for new responders 

in the Reg. Impact Analysis.
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operator of the facility will respond to accidental releases.

169 The rule requires the owner or 

operator to prepare and implement an emergency response program to protect public health and 

the environment, unless the stationary source is included in the community emergency response 

plan developed under section 303 of Emergency Planning & Community Right-to-Know Act 

(EPCRA) (for sources with regulated toxic substances) and has coordinated response actions with 

the local fire department (for sources with only regulated flammable substances). An owner or 

operator that needs to develop an emergency response program (i.e., be a “responding” facility), 

will need to include the following elements in that program: 

 An emergency response plan;

 Procedures for the use of emergency response equipment and for its inspection, 

testing, and maintenance;

 Training for employees; and

 Procedures to review and update the emergency response plan to reflect changes 

at the stationary source and ensure that employees are informed of changes. 

The emergency response plan must also be coordinated with local response authorities.

An owner or operator of a facility who is relying on local responders to respond to an 

accidental release (i.e., a “non-responding” facility) when the stationary source has been included 

in the community emergency response plan developed under section 303 of EPCRA (for sources 

with regulated toxic substances) or has coordinated response actions with the local fire 

department (for sources with only regulated flammable substances, and without regulated toxic 

substances) is not required to develop an emergency response program. However, the owner or 

operator must also ensure that appropriate notification mechanisms are in place to notify 

emergency responders when there is a need for a response.

 

169 Owners or operators of stationary sources with Program 1 processes are required to coordinate 

emergency response procedures with local emergency planning and response organizations under §

68.10(b)(3)). This proposal would not affect that requirement. 
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Risk Management Program regulated facilities must indicate within their RMP whether 

or not they are a responding facility (i.e., by indicating compliance with mandatory elements of 

emergency response plans required in § 68.95(a)(1)). Our review of the RMP*Info database has 

indicated that the majority of RMP facilities claim to be non-responding facilities.170 However, 

during facility inspections, EPA has often found that facilities either are not included in the 

community emergency plan or have not properly coordinated response actions with local 

authorities.171,172,173 State and local response officials echoed this concern during listening 

sessions conducted under Executive Order 13650, and in feedback provided to EPA in 

conjunction with the RFI.174,175 This problem occurs with both responding and non-responding 

facilities, but it is particularly troublesome for non-responding facilities, because if the facility 

itself does not maintain the capability to respond to emergencies, and local authorities are not able 

to respond, then a proper response to an accidental release at the facility may not occur or may be 

significantly delayed. Also, when local responders are unfamiliar with the hazards of the facility, 

they may not be prepared to safely respond. 

Poor coordination between chemical facilities and local emergency responders has been 

identified as a factor contributing to the severity of chemical accidents. For example, following 

170

 EPA. January 27, 2016.Date Technical Background Document for Notice of Proposed Rulemaking: 

Risk Management Programs under the Clean Air Act, Section 112(r)(7). 

171

 EPA Press Release. July 20, 2011. National Chemical Company will Upgrade Facilities and Pay Fine 

to Settle Clean Air Violations. 

http://yosemite.epa.gov/opa/admpress.nsf/1e5ab1124055f3b28525781f0042ed40/9884f5d5e5e6368c85257

8d300642a3e!OpenDocument

172

 EPA Press Release. February 13, 2013. Koch Nitrogen Company to Pay $380,000 Civil Penalty for 

CAA Violations at Facilities in Iowa and Kansas.

http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/a9537cb213c0371985257

b1100738628!OpenDocument

173

 EPA Press Release. May 27, 2014. EPA Moves to Improve Emergency Planning at Facilities in NJ and 

NY; Inspections Focus on Information on Chemical Hazards Needed by First Responders during 

Emergency Responses. 

http://yosemite.epa.gov/opa/admpress.nsf/0/C6DB6A8A0918857F85257CE5005FEE24

174

 Gablehouse, T. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-0679 on Risk 

Management Program RFI, PDF pp. 5-6, NASTTPO, Denver, CO. 

175

 Elder, M., October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0641 on Risk Management 

Program RFI, Oklahoma Hazardous Materials Emergency Response Commission (OHMERC). 

Formatted: Not Highlight
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the August 2008 explosion and fire at the Bayer CropScience facility in Institute, West Virginia, 

the CSB found that lack of effective coordination between facility and local responders prevented 

responding agencies from receiving timely information updates about the continually changing 

conditions at the scene, prevented a public shelter-in-place order from reaching the local 

community, and may have resulted in toxic exposure to on-scene public emergency responders. 

Additionally, facility authorities initially prevented local responders from gaining access to the 

site of the incident.

176

The April 170, 2013 accident at West Fertilizer resulted in the deaths of 12 first 

responders. During its investigation of the accident, Although the accident is still under 

investigation, the CSB foundhas indicated that the LEPC did not include the facility in the 

community emergency response plan.

177

Another example is the August 2002 accidental chlorine release at the DPC Enterprises 

facility in Festus, Missouri, that resulted in sixty-three people from the surrounding community 

seeking medical evaluation at the local hospital for symptoms of respiratory distress. The CSB 

investigation found that the DPC emergency response plan did not provide clear guidance on 

when facility emergency response personnel should respond to a release or when response by an 

offsite community hazardous materials response team is required. The CSB also found that 

coordination between local emergency planning and response entities and DPC was insufficient 

 

176 CSB. January 2011. Investigation Report: Pesticide Chemical Runaway Reaction Pressure Vessel 

Explosion, Bayer CropScience, LP, Institute, West Virginia, August 28, 2008. Report No. 2008-08-I-WV, 

http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf

177

 CSB. April 22, 2014. News Conference Statement by CSB Chairperson Rafael Moure-Eraso and 

Supervisory Investigator Johnnie Banks, , Dallas, TX, regarding West Fertilizer Accident. 

http://www.csb.gov/assets/1/16/Statement_-_News_Conference_(Final).pdf.

CSB. January 2016. Final Investigation Report, West Fertilizer Company Fire and Explosion, West, TX, 

April 17, 2013. Report 2013-02-I-TX, pgs. 201-203. 

http://www.csb.gov/west-fertilizer-explosion-and-fire-/.

Commented [A211]: EPA revised to make technical corrections 

to reflect the recent final CSB report.

Field Code Changed
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to ensure that the emergency plan would provide for timely community notification and 

mitigation of the release.

178

CAA Section section 112(r) clearly anticipated that the Risk Management Program 

regulation would require regulated stationary sources to develop an emergency response program 

and provide for a response to releases of regulated substances. Section 112(r)(7)(B)(ii) states that 

the regulations shall require the owner or operator to “provide a prompt emergency response to 

any such releases in order to protect human health and the environment,” and that the RMP shall 

include:

a response program providing for specific actions to be taken in response to an 

accidental release of a regulated substance so as to protect human health and the 

environment, including procedures for informing the public and local agencies 

responsible for responding to accidental releases, emergency health care, and 

employee training measures. 

Accordingly, in the preamble discussion of the 1996 final RMP rule, EPA explained that 

the option to be a non-responding facility was contingent on local community responders’ ability 

to appropriately respond to the stationary source’s hazards.

The final rule also provides relief for sources that are too small to respond to 

releases with their own employees; these sources will not be required to develop 

emergency response plans provided that procedures for notifying non-employee 

emergency responders have been adopted and that appropriate responses to their 

hazards have been addressed in the community emergency response plan 

developed under EPCRA (42 U.S.C. 11003) for toxics or coordinated with the 

local fire department for flammables. (61 FR 31673, 31698, June 20, 1996.)

EPA recognizes that some sources will only evacuate their employees in the event 

of a release. For these sources, EPA will not require the development of emergency 

response plans, provided that appropriate responses to their hazards have been 

discussed in the community emergency response plan developed under 42 U.S.C. 

11003 for toxics or coordinated with the local fire department for flammables. (61 

FR 31681, June 20, 1996.) 

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

response themselves, EPA has provided, in this new section, the actions they must 

take if they will not respond to releases. Specifically, for sources with regulated 

toxic substances, the source must be addressed in the community emergency 

response plan developed under EPCRA section 303. Sources with regulated 

 

178 CSB. May 2003. Investigation Report: Chlorine Release, DPC Enterprises, L.P., Festus, Missouri, 

August 14, 2002. Report No. 2002-04-I-MO. http://www.csb.gov/assets/1/19/DPC_Report.pdf
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flammable substances must coordinate response actions with the local fire 

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

emergency responders. Sources that do not meet these requirements must comply 

with EPA’s emergency response program requirements. (61 FR 31712, June 20, 

1996.)

EPA also explained this point in the RMP Guidance:

179

If your employees will not respond to accidental releases of regulated substances, 

you need not comply with the emergency response plan and program requirements 

provided you coordinate with local response agencies to ensure that they will be 

prepared to respond to an emergency at your facility.

These excerpts from the 1996 final rule and RMP Guidance indicate that from its inception, the 

RMP rule has required that owners and operators of regulated sources must either meet the full 

emergency response program requirements of § 68.95 or ensure that local responders are capable 

of responding to releases at the source. In spite of this fact, the history of poor emergency 

response coordination during accidental releases, EPA’s findings during compliance inspections, 

and recent feedback provided to EPA’s RFI and during Executive Order 13650 listening sessions 

indicate that many regulated sources have not provided for an adequate emergency response.

1. Proposed Revisions to Emergency Response Coordination Requirements 

EPA proposes to amend the rule requirements to clarify the obligations of the owner or 

operator of the stationary source to coordinate emergency response with local authorities. In order 

to provide clarity, EPA is proposing to reorganize Subpart subpart E to address the applicability 

provisions for responding and non-responding sources in § 68.90, describe required coordination 

activities in new § 68.93, and include a new requirement in § 68.95 for owners or operators of 

responding stationary sources to review and update their emergency response program at least 

annually. 

 

179

 General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR Part part 

68), EPA-550-B-04-001, April 2004, p. 8-1. http://www2.epa.gov/rmp/guidance-facilities-riskmanagement-programs-rmp#general

Formatted: Font: Not Italic
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EPA is proposing to reorganize § 68.90 to specifically describe the applicability of the 

emergency response program requirements for non-responding and responding facilities in 

paragraphs (a) and (b), respectively. 

The proposed revisions to § 68.90 paragraph (a) describe the applicability provisions for 

non-responding facilities. The owner or operator of a stationary source need not comply with the 

emergency response program requirements in § 68.95 provided that after conducting coordination 

activities required under the proposed § 68.93, the local response authorities and the owner or 

operator of the stationary source determine that local public emergency response capabilities are 

adequate to respond to accidental releases at the stationary source; appropriate mechanisms are in 

place to notify emergency responders when an accident occurs; and the LEPC or equivalent local 

response authorities have not requested in writing that the owner or operator develop an 

emergency response program for the stationary source in accordance with § 68.95. 

Section 68.90 paragraph (b) describes applicability provisions for responding facilities.

The owner or operator of the stationary source would be required to comply with the emergency 

response program requirements of § 68.95 when the outcome of the annual coordination activities 

with local response authorities required under § 68.93 indicates that local public emergency 

response capabilities are not adequate to respond to accidental releases of regulated substances at 

the stationary source. If, as a result of the annual coordination, the facility owner or operator must 

develop an emergency response program in accordance with § 68.95, the owner or operator 

should develop the program as soon as reasonably practicable. The owner or operator would also 

be required to comply with § 68.95 upon receiving a written request to do so from the LEPC, 

local fire department, or other local emergency response officials having jurisdiction. 

EPA believes that it is appropriate to provide a mechanism for the local emergency 

response officials to request that the owner or operator of the stationary source comply with the 

emergency response program requirements of § 68.95 because it is the presence of the source and 

its attendant hazards that create a risk to the surrounding community of accidental releases. 
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Therefore, in the event that the outcome of the coordination activities with local response 

authorities indicates that local public emergency response capabilities are not adequate, the 

ultimate burden of providing for an appropriate response to releases of regulated substances from 

the source should rest with the owner or operator. This philosophy is consistent with the general 

duty clause of CAA section 112(r)(1), which among other things requires the owner or operator to 

minimize the consequences of accidental releases that do occur.

EPA is proposing to add § 68.93 to clarify emergency response coordination activities

and require that these activities be documented and occur annually. Section 68.93 would require 

the owner or operator of a stationary source with a Program 2 or 3 process to coordinate with 

local response authorities to ensure that appropriate resources and capabilities are in place to 

respond to an accidental release of a regulated substance. As part of the coordination, the owner 

or operator and the local response authorities would work together to determine who will respond 

if an incident occurs, and what would be an appropriate response. Paragraph (a) would require 

coordination to occur at least annually, and more frequently if necessary, to address changes at 

the source; in the source’s emergency action plan; in local authorities’ response resources and 

capabilities; or in the local community emergency response plan. Paragraph (b) would require the 

owner or operator to document coordination with local authorities, including the names of 

individuals involved and their contact information (phone number, email address, and 

organizational affiliations), dates of coordination activities, and the nature of coordination 

activities. The proposed paragraph (c) specifies who should be involved in the coordination for 

both stationary sources with regulated toxic and flammable substances. If a stationary source 

involves a regulated toxic substance, then the source must be included in the community 

emergency response plan developed under EPCRA.

EPA also proposes to revise § 68.95 to ensure that notification procedures include 

notifications to Federal, Tribal, and state agencies and to require that emergency response plans 

be updated at least annually. Specifically, EPA is revising § 68.95(a)(1)(i) to add a reference to 

Commented [A212]: IA Comment #55 Page 110, regarding 

“Therefore, in the event that the outcome of the coordination 

activities with local response authorities indicates that local public 

emergency response capabilities are not adequate, the ultimate 

burden of providing for an appropriate response to releases of 

regulated substances from the source should rest with the owner or 

operator.” We don’t believe the 1996 rule was predicated on small 

firms taking this responsibility, nor is a good idea today. This should 

be a government responsibility. This concept would endanger the 

community. Furthermore, this should not be a requirement for any 

retailers that are almost universally too small to be a responding 

facility. This is not a clarification of the 1996 rule – and should be 

treated as a substantive revision, if retained.

Commented [A213R212]: Since 1996, small sources that are 

not covered under the community response plan or have not 

coordinated with the local fire department must develop an 

emergency response program.

EPA has clearly identified in the preamble those areas of the 

provision where we are proposing changes (i.e., to require 

coordination on an annual basis, documentation, etc). EPA 

anticipates that more facilities will likely develop emergency 

response programs and this will impact small businesses. Therefore, 

we convened an SBAR panel and assessed costs for new responders 

in the Reg. Impact Analysis.

Commented [A214]: IA Comment #56 Page 110, regarding 

“EPA is proposing to add §68.93 to clarify emergency response 

coordination activities and require that these activities be 

documented and occur annually.” EPA’s response to LEPCs being 

unable to undertake the existing requirements is to double down 

and add to LEPC burdens. For example, coordination now becomes 

an annual requirement for notification and drills, instead of 

allowing tailoring of the requirement to the need and available 

resources. The annual coordination should be limited to annual 

notification drills.

Commented [A215R214]: The justification for proposing this 

change is based upon the CAA requirements in Section 

112(r)(7)(B)(ii) that states that the regulations shall require the 

owner or operator to “provide a prompt emergency response to 

any such releases in order to protect human health and the 

environment. The 1996 rule required facilities to develop 

emergency response programs when they are not included in a 

community emergency response plan. The proposed revision is 

intended to ensure that response capabilities are assessed on an 

ongoing basis. Notification drills serve a different purpose (to 

ensure that local responder contacts are up-to-date).

Commented [A216]: IA Comment #57 Page 111, 

recommended edit: “EPA also proposes to revise §68.95 to ensure 

that notification procedures include notifications to Federal, Tribal

and state agencies and to require that emergency response plans 

be updated at least annually.”

Commented [A217R216]: Change incorporated.
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Federal and state agencies. EPA is also proposing to revise § 68.95(a)(4) to specify that the owner 

or operator review and update the program annually or more frequently if necessary (e.g., to 

incorporate lessons learned from incident investigations, or if changes occur in emergency 

notification systems, local responder organizations, stationary source hazards, or other critical 

emergency response planning information). EPA is also proposing to revise § 68.95(c) to replace 

local emergency planning committee with the acronym LEPC. 

Additionally, EPA is proposing to revise § 68.3 to add LEPC for local emergency 

planning committee. The term is used throughout the rule and means the LEPC as established 

under 42 U.S.C. 11001(c). 

Finally, EPA is proposing to revise § 68.12 (General requirements) to be consistent with 

these proposed coordination requirements. EPA is proposing revisions to Program 2 requirements 

under § 68.12(c) in which EPA would renumber paragraph § 68.12(c)(4) and (c)(5) as §

68.12(c)(5) and (c)(6). New paragraph § 68.12(c)(4) would specify the owner or operator’s 

requirements to coordinate response actions with local emergency planning and response 

agencies as provided in § 68.93. EPA is proposing similar revisions to Program 3 requirements 

under § 68.12(d). EPA would renumber paragraph § 68.12(d)(4) and (d)(5) as § 68.12(d)(5) and 

(d)(6). New paragraph § 68.12(d)(4) would specify the owner or operator’s requirements to 

coordinate response actions with local emergency planning and response agencies as provided in 

§ 68.93.

EPA believes that these proposed amendments would clarify existing obligations and 

prevent situations where neither regulated stationary sources nor local authorities are prepared to 

appropriately respond to accidental releases at the source. EPA recognizes that an appropriate 

response— – even for responding facilities— – may sometimes involve evacuation of facility 

employees, evacuation or sheltering of nearby residents, and implementation of other defensive 

measures to prevent harm to workers, responders, and the public. However, planning for such 

Commented [A218]: IA Comment #58 Page 112, 

recommended edits for clarity: “EPA believes that these proposed

amendments would clarify existing obligations and prevent 

situations where neither regulated stationary sources nor local 

authorities are prepared to appropriately respond to accidental 

releases at the source.”

Commented [A219R218]: Change incorporated.
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situations should occur in advance, so that either the source or local responders are prepared to 

implement response measures that are appropriate to the hazards of the stationary source. 

If local public responders are not capable of responding to accidental releases at a 

stationary source, the owner or operator can continue to satisfy the applicable requirements of 

Subpart subpart E (Emergency Response) in a number of different ways beyond training and 

equipping the source’s own employees to respond to releases. For example, EPA has observed 

situations where stationary source owners or operators supplement their on-site response 

capability using response contractors, or via mutual aid agreements with other nearby sources. In 

the RMP Guidance, EPA explained that this may be the most appropriate course of action to 

comply with the emergency response requirements of Subpart subpart E, particularly for small 

sources with few employees:

180

EPA recognizes that, in some cases (particularly for retailers and other small 

operations with few employees), it may not be appropriate for employees to 

conduct response operations for releases of regulated substances. For example, it 

would be inappropriate, and probably unsafe, for an ammonia retailer with only 

one full-time employee to expect that a tank fire could be handled without the help 

of the local fire department or other emergency responder. EPA does not intend to 

force such facilities to develop emergency response capabilities. At the same time, 

you are responsible for ensuring effective emergency response to any releases at 

your facility. If your local public responders are not capable of providing such 

response, you must take steps to ensure that effective response is available (e.g., 

by hiring response contractors).

Such arrangements would continue to be acceptable to the Agency as a means to meet a 

facility’s emergency response program obligations. Alternatively, stationary source owners or 

operators can work with local emergency response officials to identify gaps in local responder 

capabilities, and assist local authorities in supplementing those capabilities, as appropriate, by 

providing the equipment or training needed to allow local public responders to prepare for and 

carry out an appropriate response to accidental releases at the source. Close and ongoing 

 

180

 See General Guidance on Risk Management Programs for Chemical Accident Prevention (40 CFR Part 

part 68), EPA-550-B-04-001, April 2004, page 8-1. http://www2.epa.gov/rmp/guidance-facilities-riskmanagement-programs-rmp#general
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coordination between stationary source owners or operators and local responders will allow such 

capability gaps to be quickly identified and corrected and appropriate response plans to be 

developed. Coordination will also assist local responders in complying with other Federal, state, 

and local emergency preparedness, planning, and response requirements, such as planning 

requirements under EPCRA, training requirements under the OSHA Hazardous Waste Operations 

and Emergency Response standard (29 CFR 1910.120), and other applicable requirements.

As part of the SBAR Panel process, SERs expressed frustration with the requirement to 

coordinate with local emergency response officials because some LEPCs are not active or do not 

have sufficient resources to fully implement EPCRA requirements. SERs requested clarification 

on how to comply with coordination requirements when facility owners or operators make good 

faith efforts to coordinate with local emergency response officials who do not respond to 

coordination attempts. EPA recommends that these coordination attempts be documented and 

maintained at the facility. However, if the LEPC is inactive and has not developed a community 

emergency response plan or has not included the facility in the plan (for toxic substances), or the 

owner or operator is unable to coordinate response actions with the local fire department (for 

flammable substances), then the owner or operator must develop an emergency response program 

in accordance with § 68.95. 

EPA seeks comment on this approach. Will the proposed amendments contribute to 

improvements in emergency response planning and coordination? Are there additional practices 

that EPA should consider that significantly improve emergency response planning and 

coordination? Should EPA further clarify what is necessary for RMP facility owners or operators 

to adequately coordinate their emergency response program with local authorities? Should 

coordination activities and emergency plan updates be required annually, or is some other 

frequency appropriate? How should disagreements between local authorities and the source 

owner or operator concerning which party should provide for an emergency response to releases 

of regulated substances at the source be resolved? When an LEPC makes a written request for the 

Commented [A220]: Language added to address SBAR panel 

report recommendations

Commented [A221]: IA Comment #59 Page 113, proposed 

rewrite for: “Will the proposed amendments significantly improve 

emergency response planning and coordination?” to “Will the 

proposed amendments contribute to improvements in emergency 

response planning and coordination? Are there additional practices 

that EPA should consider that significantly improve planning and 

coordination?”

Commented [A222R221]: Change incorporated.
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owner or operator to comply with the emergency response program requirements of § 68.95, 

should the LEPC be required to provide a rationale for the request that meets certain criteria, to 

ensure that the request is reasonable? If so, what criteria should be established?

2. Alternative Options

EPA considered an alternative that would require owners and operators of all stationary 

sources with Program 2 or Program 3 processes to comply with the full emergency response 

program requirements of § 68.95. Under this option, RMP facilities would still be required to 

perform the annual local coordination and to document activities described previously. However, 

it would eliminate the flexibility of the current rule and require all Program 2 and Program 3 

facilities to be “responding” facilities. EPA did not propose this approach because it does not 

consider the existing capabilities of local responders and shifts to the regulated stationary sources 

the burden associated with developing and maintaining an appropriate and effective emergency 

response capability from local responders in communities that may have adequate capabilities. 

Additionally, EPA believes that this approach would place an unnecessary burden on small 

facilities.

EPA seeks comment on this alternative approach and whether there are any other 

alternative options that EPA should consider prior to issuing a final action. 

B. Facility Exercises 

Exercising an emergency response plan is critical to ensure that response personnel 

understand their roles, that local emergency responders are familiar with the hazards at the 

facility, and that the emergency response plan is appropriate and up-to-date. It ensures that 

personnel are properly trained and lessons learned from exercises can be used to identify future 

training needs.

Poor emergency response procedures during some recent accidents have highlighted the 

need for facilities to conduct periodic emergency response exercises. For example, the CSB’s 

investigation of the April 2004 vinyl chloride monomer (VCM) explosion at the FPC USA in 
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Illiopolis, Illinois, found that the facility’s failure to rehearse a response to a large VCM release 

made the consequences of the accident significantly worse, and likely contributed to the deaths of 

operators at the facility.181 The CSB found that after the VCM release began, and despite 

knowingly working directly over a toxic and highly flammable VCM cloud, two operators did not 

put on protective breathing apparatus, activate emergency alarms, or evacuate the facility, 

contrary to emergency response actions outlined in facility emergency procedures. These 

operators consequently died as a result of injuries received during the ensuing explosion. 

Failure to conduct emergency exercises involving local authorities may also have resulted 

in injuries and fatalities to local responders. As previously indicated, 12 local responders died as a 

result of injuries received during the West Fertilizer explosion, and the CSB investigation report 

findings show that inadequate emergency planning contributed to the severity of the accident and 

that responders were not sufficiently aware of the risks at the facility.182 According to accident 

history information obtained from EPA’s RMP national database, accidents occurring between 

2004 and 2014 resulted in at least 44 responder injuries and 2 additional fatalities.183 The 2002 

accident involving a chlorine release at DPC Enterprises in Festus, Missouri, resulted in 66 

people seeking medical attention at the local hospital, including 63 members of the community 

surrounding the facility. The CSB’s investigation found that DPC’s emergency response plan had 

inadequate procedures for training and drills, and that these deficiencies resulted in DPC’s 

inadequate preparation for a large uncontrolled chlorine release.184 In 2003, another DPC 

Enterprises facility (in Glendale, Arizona,) had an accident involving a large chlorine release. In 

181

 CSB. March 2007. Investigation Report: VCM Explosion, FPC., Illiopolis, Illinois, April 23, 2004; 

Report No. 2004-10-I-IL. http://www.csb.gov/assets/1/19/Formosa_IL_Report.pdf. 

182

 CSB. January 20156. Final Investigation Report: West Fertilizer CompanyPlant Fire and Explosion, 

West, TX, April 17, 2013. Report No. 2013-02-I-TX, pgsp. 14, 116-117, 200-204, 241-242.

http://www.csb.gov/west-fertilizer-explosion-and-fire-/. 

183

 EPA. DateJanuary 27, 2016. Technical Background Document for Notice of Proposed Rulemaking: 

Risk Management Programs under the Clean Air Act, Section 112(r)(7). 

184

 CSB. May 2003. Investigation Report: Chlorine Release, DPC Enterprises, L.P., Festus, Missouri, 

August 14, 2002. Report No. 2002-04-I-MO. http://www.csb.gov/assets/1/19/DPC_Report.pdf. 

Formatted: Not Highlight
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that accident, 11 Glendale police officers responding to the accident were exposed to chlorine and 

required medical treatment. The CSB’s investigation found that police officers responding to the 

accident to assist in evacuation of nearby residents entered the hazardous area without any 

respiratory protection. The CSB recommended that the Glendale fire and police departments 

schedule periodic hazardous materials incident drills to ensure safe and effective responses to 

future hazardous materials incidents.185

On April 12, 2004, a runaway chemical reaction at MFG Chemical, Inc., in Dalton, 

Georgia, resulted in the release of toxic vapor clouds of allyl alcohol and allyl chloride into the 

surrounding community. The accident resulted in the evacuation of more than 200 families and 

medical treatment for 154 people, including 15 responders. The CSB found that MFG did not 

train or equip employees to conduct emergency mitigation actions, and that local emergency 

response agencies did not adequately prepare for responding to emergencies involving hazardous 

chemicals. The CSB recommended that the facility obtain equipment and provide emergency 

response training to employees, and that local agencies conduct drills for emergencies at fixed 

facilities.

186

Other EPA and Federal agency programs require exercises as an element of their 

emergency response programs. For example, under the Oil Pollution Prevention regulation (40 

CFR part 112), facilities subject to the Facility Response Plan (FRP) provisions are required to 

conduct exercises, including evaluation procedures (§ 112.21). FRP facility owners and operators 

are encouraged to follow the National Preparedness for Response Exercise Program (PREP) 

Guidelines,

187 which were developed to provide a mechanism for compliance with EPA, U.S. 

 

185

 CSB. February 2007. Investigation Report: Chlorine Release, DPC Enterprises, L.P., Glendale, 

Arizona, November 17, 2003. Report No. 2004-02-I-AZ. http://www.csb.gov/assets/1/19/DPC2-_Final.pdf.

186

 CSB. April 2006. Investigation Report: Toxic Chemical Vapor Cloud Release, MFG Chemical, Inc., 

Dalton, Georgia, April 12, 2004. Report No. 2004-09-I-GA. 

http://www.csb.gov/assets/1/19/MFG_Report.pdf.

187

 USCG, EPA, and DOI. August 2002. National PREP Guidelines.

http://www.au.af.mil/au/awc/awcgate/uscg/prep_gid.pdf.
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Coast Guard (USCG), and U.S. Department of the Interior (DOI) exercise requirements for oil 

pollution response. The PREP guidelines include both internal and external exercise components. 

Internal exercises include notification exercises, emergency procedure exercises, spill 

management team tabletop exercises, and equipment deployment exercises. External exercises 

include area exercises that include members of the response community, and governmentinitiated unannounced exercises. 

Other examples include exercises that the U.S. Nuclear Regulatory Commission (NRC), 

in conjunction with the Federal Emergency Management Agency (FEMA), requires commercial 

nuclear power plant operators to perform with and state and local governments perform at nuclear 

power plants. These exercises evaluate both on-site and offsite emergency preparedness response 

capabilities. The NRC also requires Research and Test Reactor (RTR)all nuclear reactor

emergency plans to address the necessary provisions for coping with radiological emergencies at 

each facility in accordance with 10 CFR 50.54(q), and Appendix E to 10 CFR 50, and for 

commercial nuclear power reactors only, 10 CFR 50.47(b). Reactor oOperators of RTRs are 

required to train personnel and perform emergency preparedness exercises in order to to test the 

adequacy of the plans, ensure personnel are familiar with their duties, and maintain response 

capabilitiesensure the feasibility of the emergency preparedness plan.

Some state and local regulations also require emergency response exercises. For example, 

the New Jersey TCPA, which incorporates the requirements of 40 CFR part 68, contains certain 

additional provisions imposed under state law, including a requirement for regulated facilities to 

perform at least one emergency response exercise per calendar year. Non-responding facilities are 

required to invite at least one outside responding agency designated in the emergency response 

plan to participate in the exercise, and employees of the facility are required to perform their 

assigned responsibilities for all emergency response exercises. Owners or operators of all other 

facilities are required to perform at least one full scale emergency response exercise in which the 

Commented [A223]: IA Comment #60 Page 117, the reviewer 

has concerns because the quoted language overemphasizes 

research and test reactors. The NRC regulations referred to in the 

quoted language apply to all NRC-licensed reactors, including the 

much larger commercial nuclear power reactors that generate 

electricity and operate at much higher temperatures, pressures, 

and power levels. Consequently, the NRC Staff recommends that 

the quoted language be revised as follows (deletions are shown by 

strikethrough and inserted text is shown by underlining): Other 

examples include exercises that the U.S. Nuclear Regulatory 

Commission (NRC), in conjunction with the Federal Emergency 

Management Agency (FEMA), requires commercial nuclear power 

plant operators to perform with and state and local governments 

perform at nuclear power plants. These exercises evaluate both 

on-site and offsite emergency response preparedness

capabilities. The NRC also requires Research and Test Reactor (RTR)

all nuclear reactor emergency plans to address the necessary 

provisions for coping with radiological emergencies at each facility 

in accordance with 10 CFR 50.54(q), and Appendix E to 10 CFR Part

50, and for commercial nuclear power reactors only, 10 CFR 

50.47(b). Reactor Ooperators of RTRs are required to train 

personnel and perform emergency preparedness exercises in order 

to test the adequacy of the plans, ensure personnel are familiar 

with their duties, and maintain response capabilities ensure the 

feasibility of the emergency preparedness plan.

Commented [A224R223]: Changes incorporated with 

modifications to remove FEMA acronym because it is not used 

again in the document.
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emergency response team as well as containment, mitigation, and monitoring equipment are 

deployed at a strength appropriate to demonstrate the adequacy and implementation of the plan.

188

In comments received from the Agency’s recent RFI, the National Association of 

Superfund Amendments and Reauthorization Act (SARA) Title Three Program Officials 

(NASTTPO), which represents members of State Emergency Response Commissions (SERCs), 

Tribal Emergency Response Commissions (TERCs), and LEPCs, has encouraged EPA to require 

RMP facilities to conduct exercises that include local first responders and realistic accident 

scenarios.

189

In addition to specific Federal and state requirements for conducting exercises and the 

NASTTPO comments, industry guidelines recommend conducting exercises. The CCPS 

Guidelines for Risk Based Process Safety recommend periodically testing the adequacy of 

emergency response plans and level of preparedness of responders, including contractors and 

local response agencies.190

In the original proposed RMP rule (58 FR 54190, October 20, 1993), EPA had included 

within the emergency response program provisions a proposed requirement for regulated sources 

to conduct emergency exercises. In the final RMP rule (61 FR 31668, June 20, 1996), EPA 

decided not to finalize this requirement (and several other additional emergency response 

program provisions), for two reasons. First, the Agency decided to limit the emergency response 

program requirements to the minimum requirements contained in CAA section 112(r)(7) in order 

to avoid inconsistency with other emergency response planning regulations. Second, the Agency 

indicated that the additional requirements were already addressed in other Federal regulations and 

therefore, sources were already doing them. However, EPA’s experience with implementing the 

 

188

 NJDEP, Title 7, Chapter 31 Toxic Catastrophe Prevention Act Program, Consolidated Rule Document, 

Section 7:31-5.2; http://www.state.nj.us/dep/rpp/brp/tcpa/downloads/conrulerev9_no%20fonts.pdf

189

 Gablehouse, T. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-0679 on Risk 

Management Program RFI, PDF pg 5-6, NASTTPO, Denver, CO.

190

 CCPS. 2007. Guidelines for Risk Based Process Safety. American Institute of Chemical Engineers, 

CCPS, NY, Wiley. Pppp. 513, 524-526, 538-540.

Commented [A225]: IA Comment #61 Page 118, for clarity, 

suggest including (as citation) these Federal regulations and 

corresponding applicability to current regulation. “Second, the 

Agency indicated that the additional requirements were already 

addressed in other Federal regulations...”

Commented [A226R225]: The 1996 rule was not specific on 

which other Federal regulations addressed exercise requirements.
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RMP rule over nearly two decades, along with incidents such as those described above, indicate 

that many regulated sources do not regularly conduct emergency exercises that involve local 

response authorities. The Agency now believes that adding this provision to the regulation will 

likely reduce the severity of some accidents that do occur.

1. Proposed Exercise Program Requirements

In order to further improve coordination with community responders and ensure that both 

facility personnel and local responders have practice responding to accidental releases at RMP 

facilities, EPA is proposing to require most regulated facilities to perform exercises as an element 

of the emergency response program identified under Subpart subpart E. Proposed § 68.96 would 

require both responding and non-responding RMP facilities with any Program 2 or 3 process to 

perform emergency exercises. 

a. Notification Exercises

EPA proposes a new paragraph § 68.96(a) to require facilities with any Program 2 or 

Program 3 process to annually perform an exercise of the source’s emergency notification system. 

This exercise would include contacting the Federal, Tribal, state, and local public emergency 

response authorities, and other external responders that would respond to accidental releases at 

the source. The purpose of these notifications is to ensure facility personnel understand how to 

initiate the notification system and to test the emergency contact information to ensure it is up-todate. As part of the notification exercise, the individual making the notifications should clearly 

indicate that the call is part of an exercise to test the notification system. The owner or operator 

would be required to document these notification exercises and maintain a written record of each 

exercise conducted for a period of five years. The owner or operator would also be required to 

provide copies of the report to local response officials, and to make the report available to the 

public in accordance with §§ 68.205 and 68.210.

As non-responding facilities will rely on local authorities to respond to accidental 

releases at the source, EPA believes that the proposed facility notification exercises will be an 

Commented [A227]: IA Comment #62 Page 119, 

recommended edit “This exercise would include contacting the 

Federal, Tribal state, and local public emergency response 

authorities, and other external responders that would respond to 

accidental releases at the source.”

Commented [A228R227]: Change incorporated.
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important supplement to the existing requirement for local emergency plan exercises under 

EPCRA section 303(c)(9), which requires local emergency plans to include methods and 

schedules for exercising the plan. Responding facilities will be required to meet additional field 

and tabletop exercise requirements below, which in many cases will also involve the participation 

of local authorities. Notifications to Federal, state, and local officials conducted as part of the

field or tabletop exercise may also serve to meet the annual notification exercise requirements 

provided that the owner or operator documents these notification exercises. 

EPA is also proposing to modify § 68.95(a)(1)(i) to clarify that the emergency response 

program should include procedures for performing appropriate notifications to Federal and state 

emergency response agencies, as well as the public and local emergency response agencies, about 

accidental releases. This could include, for example, any required notifications to the National 

Response Center, as required by section 103(a) of CERCLA, and/or notifications to the SERC as 

required by section 304 of EPCRA. 

b. Responding Facility Field and Tabletop Exercises

EPA is proposing a new paragraph § 68.96(b) to require responding facilities to develop 

and implement an emergency response exercise program that uses the emergency response plan 

required under § 68.95(a)(1). EPA is proposing to require two types of exercises– field exercises 

and tabletop exercises. The owner or operator would be required to coordinate with local public 

emergency response officials in planning and conducting exercises, and invite local officials to 

participate in exercises. However, participation in an exercise by local responders is not required 

for a facility to comply with the exercise provisions.

i. Field Exercises

Field exercises involve the actual performance of emergency response functions during a 

simulated accidental release event. Field exercises involve mobilization of firefighters and/or 

hazardous materials response teams, activation of an incident command structure, deployment of 

response equipment, evacuation or sheltering of facility personnel as appropriate, and notification 

Commented [A229]: IA Comment #63 Page 120, what efforts 

are being proposed to encourage full participation in exercises? Is 

EPA proposing a notice schedule or sharing additional guidance for 

implementation?

Commented [A230R229]: Under the proposed information 

disclosure requirements (§68.205(b)(6) and §68.210(b)(5)), o/o 

would be required to disclose exercise schedules for upcoming 

exercises.

Commented [A231]: Added to address SBAR panel 

recommendation 

Commented [A232]: IA Comment #64 Page 120, Field 

Exercises: This commenter does not support required field exercises, 

but supports the option to require tabletop exercises, discussed later 

in this text. We would reverse the order of these options. Many (if 

not most) LEPCs do not have the resources to perform field 

exercise.

Commented [A233R232]: EPA is requesting comment on an 

option to require only tabletop exercises in accordance with the 

SBAR panel recommendations.
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and mobilization of law enforcement, emergency medical, and other response personnel as 

determined by the scenario and the source’s emergency response plan.191

Section 68.96(b)(1) would require the owner or operator to conduct an emergency 

response field exercise involving the simulated accidental release of a regulated substance at least 

once every five years and within one year of any accidental release meeting the criteria in §

68.42(a). If the facility is required to conduct a field exercise as a result of an RMP reportable 

accident, then this would effectively reset the timeframe for when the next five-year field exercise 

is due. 

EPA is proposing that the scope of the field exercises would include tests of: 

 procedures for informing the public and the appropriate Federal, state, and local 

emergency response agencies about an accidental release; 

 procedures and measures for emergency response after an accidental release of a

regulated substance including evacuations and medical treatment; 

 communications systems;

 mobilization of facility emergency response personnel;

 coordination with local emergency responders;

 equipment deployment, and

 other actions identified in the source’s emergency response plan, as appropriate.

ii. Tabletop Exercises

Tabletop exercises are discussion-based exercises without the actual deployment of 

response equipment. During tabletop exercises, responders typically assemble in a meeting 

location and simulate procedural and communications steps for response to a simulated accidental 

release, as determined by the scenario and the source’s emergency response plan. 

191

 EPA. May 1988. Guide to Exercises in Chemical Emergency Preparedness Programs, OSWER 88006. 

Commented [A234]: IA Comment #124 This reviewer observed 

that there seems to be a disconnect in the timing between the 

proposed incident investigation requirements of sections 68.60/81 

and the proposed emergency response exercise requirements of 

section 68.96. The draft proposed rule describes the proposed 

incident investigation requirements as follows: “EPA is proposing to 

require that facility owners or operators complete an incident 

investigation report within 12 months of an incident that resulted 

in, or could reasonably have resulted in, a catastrophic release.” 

The proposed emergency response exercise requirements are 

described as follows: “Section 68.96(b)(1) would require the owner 

or operator to conduct an emergency response field exercise 

involving the simulated accidental release of a regulated substance 

at least once every five years and within one year of any accidental 

release meeting the criteria in §68.42(a). The purpose of this 

provision is to reduce the impact of accidents by ensuring that 

emergency response personnel understand their roles in the event 

of an incident, that local responders are familiar with the hazards at 

a facility, and that the emergency response plan is up-to-date.”

This reviewer had some questions about the proposed requirement 

for a field exercise within one year of an accidental release. 

Specifically, it was not clear to this reviewer what the purpose of 

this field exercise would be (for example, would it be to evaluate 

corrective actions?) or what the benefit would be to the program. 

This reviewer noted that if the response of the facility and offsite 

response organizations to an actual event is satisfactory, then 

requiring an exercise within one year of the incident would seem to 

add little value, and if the response of the facility and offsite 

response organizations to an actual event is unsatisfactory, then 

one year may not be sufficient time to implement corrective actions 

prior to another exercise. The draft proposed rule would require a 

facility owner or operator to complete an incident investigation 

within 12 months of the incident. If the purpose of the follow-on 

exercise is to evaluate improvements to emergency response 

following an actual event, the corrective actions resulting from the 

incident investigation may not be completed in time to support an 

exercise within one year.

Commented [A235R234]: The purpose of the incident 

investigation is to determine the cause of the accident which in 

some cases will also include an assessment of response capabilities. 

However, EPA believes that any lessons learned from the 

investigation that pertain to response capabilities would not require 

12 months to determine and an exercise can be scheduled before 

completing the incident investigation report.

The purpose of holding an exercise subsequent to the accident is to 

incorporate lessons learned from the response to the accident into

the emergency response exercise program. We believe that there 

are always some lessons learned following a response.
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In § 68.96(b)(2) EPA is proposing to require the owner or operator to annually conduct 

an emergency tabletop exercise involving the simulated accidental release of a regulated 

substance, except during years when field exercises are conducted. The scope of a tabletop 

exercise would include tests of: 

 procedures for informing the public and the appropriate Federal, state, and local 

emergency response agencies about an accidental release; 

 procedures and measures for emergency response after an accidental release of a 

regulated substance including evacuations and medical treatment; 

 identification of facility emergency response personnel and responsibilities; 

 coordination with local emergency responders; 

 procedures for the use of emergency response equipment, and other actions identified 

in the source’s emergency response plan, as appropriate.

c. Exercise Reports & Program Updates

EPA is proposing in § 68.96(b)(3) to require the owner or operator to evaluate each 

exercise and prepare a written report within 90 days of the exercise. The report would include:

 a description of the exercise scenario;

 names and associations of each exercise participant;

 an evaluation of the results of the exercise including lessons learned;

 recommendations for improvement or revisions to the emergency exercise program 

and emergency response program; and 

 a schedule to promptly address and resolve recommendations. 

The report would also include an evaluation of the adequacy of coordination with local 

emergency response authorities, and other external responders, as appropriate. Section 

68.96(b)(3) would also require the owner or operator to update the emergency exercise program 

and emergency response program at least annually, and more frequently if necessary to 

Commented [A236]: IA Comment #65 Section 68.210 requires 

a summary of the exercises be made available to the public in 

accordance with Section 68.205(b)(6) – which ultimately takes you 

to the documentation requirements in Section 68.95(b)(3). Which 

are also described here in the preamble.

This reviewer has concerns regarding the sharing of all the elements 

listed in this section with the public. Sharing certain elements is 

essentially providing a listing of vulnerabilities. These 

vulnerabilities could be used by a terrorist to either target a certain 

facility or the vulnerabilities could be exploited to increase the 

magnitude of an attack. 

We are also concerned that many facilities may not be experienced 

enough to develop one internal after action report and a second 

version of the after action report for the public. 

Recommend deleting lessons learned and recommendations for 

improvement from the documentation. Alternatively, EPA could 

consider being more specific and have facilities develop a separate 

document (or Appendix to the AAR) that is designed to be shared 

with the public that just provides a high level description of the 

scenario and participants.

Commented [A237R236]: EPA disagrees. EPA believes the 

elements for the report described in this section should remain. 

However, EPA added language on page 139 of the preamble (in the 

section discussing information disclosure to the public) seeking 

comment on how to limit sharing of information that could reveal 

security vulnerabilities.

Commented [A238]: IA Comment #66 Page 122, This reviewer 

has concerns that sharing this information with the public could 

highlight vulnerabilities that terrorists could exploit. Recommend 

deleting this sentence, unless EPA inserts language about 

developing a separate public report (or Appendix). “The report 

would also include an evaluation of the adequacy of coordination 

with local emergency response authorities, and other external 

responders, as appropriate.”

Commented [A239R238]: EPA disagrees. EPA believes the 

elements for the report described in this section should remain. 

However, EPA added language on page 139 of the preamble (in the 

section discussing information disclosure to the public) seeking 

comment on how to limit sharing of information that could reveal 

security vulnerabilities.
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incorporate recommendations and lessons learned from emergency response exercises, incident

investigations, or other available information. The owner or operator would also be required to 

provide schedules of exercises and copies of exercise reports to local response officials, and to 

make exercise reports available to the public in accordance with §§ 68.205 and 68.210. Exercise 

reports would be maintained for five years.

d. Updates to § 68.12 (General requirements)

EPA is proposing to revise § 68.12 (General Requirements) to be consistent with these 

proposed exercise requirements. EPA is proposing to revise the Program 2 and Program 3 

requirements under § 68.12 by renumbering paragraph § 68.12(c)(4) as § 68.12(c)(5) (for 

Program 2) and § 68.12(d)(4) as § 68.12(d)(5) (for Program 3), adding a reference to exercise 

requirements, and correcting citations to subpart E.

EPA is aware that while not all facilities regulated under the RMP rule conduct 

emergency exercises, many do, and the Agency believes that exercises conducted in accordance 

with other Federal, state, or local requirements, or exercises conducted in conjunction with a 

facility’s trade association membership or code of practice, etc., may be used to satisfy the new 

requirements to the extent those exercises address the specific regulatory provisions contained 

herein.

EPA seeks comment on this approach. Will the proposed exercise requirements improve 

the ability of RMP facility personnel and local authorities to respond to accidental releases? Are 

there additional exercise provisions that EPA should consider to improve the ability of RMP 

facility personnel and local authorities to responds to accidental releases? Are annual exercises 

sufficient or should EPA consider alternative frequencies? What information regarding exercises 

would be most helpful to the public while maintaining a balance for security?” Some SERS 

expressed concern that local emergencies could force a facility to postpone an exercise causing it 

to reschedule. EPA seeks comments on how best to address emergency postponement and 

Commented [A240]: IA Comment #67 Page 123, Recommend 

the following question for public comment: “What information 

regarding exercises would be most helpful to the public while 

maintaining a balance for security?”

Commented [A241R240]: Change incorporated.

Commented [A242]: IA Comment #68 Page 123, 

recommended edit: Will the proposed exercise requirements 

improve the ability of RMP facility personnel and local authorities to 

respond to accidental releases? Are there additional exercise 

provisions that EPA should consider to improve the ability of RMP 

facility personnel and local authorities to responds to accidental 

releases?

Commented [A243R242]: Change incorporated.

Commented [A244]: Added to address SBAR panel 

recommendations.
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rescheduling of exercises. EPA also seeks comment on whether to eliminate the requirement for 

tabletop and field exercises should not be required. 

2. Alternative Options

EPA considered two alternative approaches to requiring emergency exercises. The first 

alternative option would also require responding and non-responding facilities to conduct an 

annual emergency notification system exercise. However, under this option responding facilities 

would additionally be required to conduct only annual tabletop exercises; emergency field 

exercises would not be required. This alternative option would be a lower cost option for 

responding facilities, as field deployment of the source’s equipment and personnel would not be 

required. However, it may also result in less realistic and less effective emergency exercises.

The second alternative approach considered by EPA would contain the same provisions 

for notification exercises as in the proposed option, but would require responding facilities to 

conduct field exercises annually, instead of tabletop exercises. This approach would be similar to 

the New Jersey TCPA emergency exercise provisions, and provide for a comprehensive test of all 

systems under the emergency exercise program for responding facilities. However, the costs of 

this approach would be significantly higher than the proposed approach.

EPA seeks comment on these alternative approaches and whether there are any other 

alternative options that EPA should consider prior to issuing a final action. 

VI. Information Availability Requirements

Ensuring that communities, local planners, local first responders, and the public have 

appropriate chemical facility hazard-related information is critical to the health and safety of the 

responders and the local community. Throughout the many public meetings and outreach efforts

related to Executive Order 13650, LEPCs, first responders, and members of the public stated that

Commented [A245]: IA Comment #69 Page 123, Alternative 

Options: Reverse order of these options. The alternative should be 

the proposed option. EPA should explicitly comment on the 

availability of LEPC resources. What evidence does EPA have that 

field exercises are practicable for LEPCs?

Commented [A246R245]: EPA believes that field exercises 

would be an important part of maintaining an effective response 

program because it tests training of response personnel, assesses 

readiness of equipment and ensures that the response will work as 

planned. 

LEPCs are not required to participate in any exercises.
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chemical facility information and data-sharing efforts need significant improvement.

192

Specifically, LEPCs and first responders want to have access to the most relevant chemical 

hazard and risk information for their needs, in a user-friendly format, to better support planning 

and preparedness efforts. Community residents, operators of community facilities (such as 

daycares and nursing homes) and organizations consistently noted that they need basic 

information regarding chemical risks at facilities, presented in a clear and consistent manner, so 

that they can effectively participate in preparedness and planning to address such issues as 

effective emergency notification procedures, evacuation, and sheltering in place. In response to 

these issues, EPA is seeking proposing ways to enhance information sharing and collaboration 

between chemical facility owners and operators, tribal and local emergency planning committees, 

first responders, and the public., in a manner that balances security and proprietary 

considerations. Some public commenters responding to EPA’s RMP RFI elaborated the need for 

more public access to information about the RMP facilities. The Center for Science and 

Democracy (CSD) stated that public access to information is key to enabling communities to hold 

facility owners and operators accountable for reducing risks as much as possible, and for being 

prepared should an accident occur. According to CSD, facility owners and operators should be 

responsible for ensuring that appropriate measures are in-place to handle an emergency and 

should be fully communicating with local authorities on the development of community 

emergency response plans that include chemical facilities.193

 

192

 Chemical Facility Safety and Security Working Group. May 2014. Executive Order 13650 Report to the 

President – Actions to Improve Chemical Facility Safety and Security – A Shared Commitment, pgs. 93-

94. https://www.osha.gov/chemicalexecutiveorder/final_chemical_eo_status_report.pdf

193 CSD. October 20, 2014. Comment No. EPA-HQ-OEM-2014-0328-0424 on Risk Management Program

RFI, pgs.2-3. 

Commented [A247]: IA Comment #71 Page 124, regarding 

“Community residents and organizations consistently noted that they 

need basic information regarding chemical risks at facilities, 

presented in a clear and consistent manner” Note there is no specific 

request for compliance audit reports, accident histories, IST 

analyses, and the other new information now being proposed by 

EPA. This information, should instead, be provided upon request by 

the LEPC, instead of adding to the pile of materials that LEPCs and 

the public would be unable to use. Has NASTTPO or any LEPCs 

expressed any information in the newly proposed categories of 

information to be made available without request? If so, please 

describe.

Commented [A248R247]: EPA has revised the proposed 

requirements to allow information to be made available upon 

request. 

NASTTPO requested EPA consider providing information on 

emergency planning and exercises, audit reports, and RMP 

Executive summaries that include information such as accident 

histories, and names of RMP-regulated substances. 

Oklahoma SERC also commented and requested posting of chemical 

information including an RMP summary along with Tier2 

information on a company website at a minimum. They also 

requested making the following information available to LEPCs: the 

facility emergency response plan, accident history, along with 

offsite consequence analysis.

Comments provided on the RMP RFI will be sent over separately to 

interagency reviewers.

Commented [A249]: IA Comment #70 Page 124, recommend 

edit: “In response to these issues, EPA is seeking proposing ways to 

enhance information sharing and collaboration between chemical 

facility owners and operators, tribal and local emergency planning 

committees, first responders, and the public.”

Commented [A250R249]: Change incorporated.

Commented [A251]: IA Comment #70 Page 124, recommend 

edit: “In response to these issues, EPA is seeking proposing ways to 

enhance information sharing and collaboration between chemical 

facility owners and operators, tribal and local emergency planning 

committees, first responders, and the public.”

Commented [A252R251]: Change incorporated.
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NASTTPO requested EPA consider providing information on emergency planning and 

exercises, audit reports, and RMP Executive summaries that include information such as accident 

histories, and names of RMP-regulated substances.

194

Oklahoma Hazardous Materials Emergency Response Commission (OHMERC) also 

commented and requested posting of chemical information including an RMP summary along 

with Tier2 information on a company website at a minimum. They also requested making the 

following information available to LEPCs: the facility emergency response plan, accident history, 

along with offsite consequence analysisOCA.

195

The MKOPSC stated that most of the information is already available online and from 

LEPCs and need not be provided on a website. But MKOPSC noted that LEPCs can utilize the 

information to understand the risk in the communities and involve local facilities, local officials, 

SERCs, local citizens and EPA to have dialogues to improve regulatory compliance and promote 

safety. MKOSPSC also believes it is also important to let the public understand how the facilities 

address the hazard present in their community and keep the risk at or below the “acceptable 

level.” When local citizens have adequate information and knowledge, facility owners and 

operators may be motivated to continuously improve their safety in response to community 

pressure and oversight.196

CCHS noted that requiring facility owners or operators to make this information available 

on the company website would promote improved regulatory compliance, because the more 

willing a facility is to be open and transparent the greater that company is willing to address 

 

194 Gablehouse, T. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-0679 on Risk 

Management Program RFI, PDF p. 2, 4, & 6, NASTTPO, Denver, CO.

195 Elder, M., October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0641 on Risk Management 

Program RFI, p. 3, OHMERC.

196 MKOPSC. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0543 on Risk Management 

Program RFI, pgs. 162, 165. 
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issues that relate to safety.197 The United Steel Workers (USW) stated that making unrestricted 

RMP information publicly available would increase compliance, as it enables communities to 

hold facilities accountable and gives facilities greater incentive to strengthen safety measures and 

to comply with regulations.198 The Coalition to Prevent Chemical Disasters (CPCD) believes that 

schools located within vulnerability zones of RMP facilities need to have chemical disaster drills 

in place, but that many schools are unaware of any risks. In CPCD’s view, not informing

communities about chemical risks reduces their ability to prepare for potential disasters involving 

specific chemical releases. CPCD argues that first responders need to know what chemicals they 

are facing and what emergency equipment to use. CPCD believes that information, such as 

compliance audits and incident investigation reports, should be disclosed to LEPCs and that with 

this information, active LEPCs can better include local communities in emergency planning and 

training.199 CPCD made reference to testimony made six years prior to the West disaster by a 

former CSB chairperson about her concern for:

a lack of chemical emergency preparedness that our investigations have found 

among many communities where accidents strike. Preventing accidents and 

mitigating their impact requires an active partnership between communities and 

industrial facilities. If that partnership is missing, the stage is set for a potentially 

severe impact on the community.200

Poor communication between facility personnel and first responders, as well as poor 

communication between facility personnel and communities, has been shown to contribute to the 

 

197 CCHS. October 28, 2014. Comment No. EPA-HQ-OEM-2014-0328-0546 on Risk Management 

Program RFI pg. 13. 

198 USW. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0547 on Risk Management 

Program RFI, pg. 6. 

199 CPCD. October 29, 2014. Comment No. EPA-HQ-OEM-2014-0328-0644 on Risk Management 

Program RFI, pgs. 36-37. 

200 CSB. July 10, 2007. CSB News Release: CSB Chairman Merritt Describes the Lessons from Five Years 

of Board Investigations to Senate Committee, Urges Additional Resources and Clearer Authorities for 

Federal Safety Efforts.

http://www.csb.gov/csb-chairman-merritt-describes-the-lessons-from-five-years-of-board-investigations-tosenate-committee-urges-additional-resources-and-clearer-authorities-for-federal-safety-efforts/
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severity of chemical accidents. One example is the Bayer CropScience explosion that occurred in 

Institute, West Virginia, in 2008. According to the CSB, 

The Bayer fire brigade was at the scene in minutes, but Bayer management 

withheld information from the county emergency response agencies that were 

desperate for information about what happened, what chemicals were possibly 

involved...The Bayer incident commander, inside the plant, recommended a 

shelter in place; but this was never communicated to 911 operators. After a few 

hours of being refused critical information, local authorities ordered a shelter in 

place, as a precaution.201 

Improper communication between the facility and the first responders during the accident led to a 

delay in implementing a public shelter-in-place order for the local community, and may have 

resulted in toxic exposure to on-scene public emergency responders. 

After a release of HF from the Citgo Refinery in Corpus Christi, Texas, in July 2009, 

nearby residents complained of headaches, nausea, and respiratory issues, though Citgo claimed 

that the toxic cloud stopped at the plant fence line. According to reports, neighbors could see the 

flames and smoke coming from the refinery, but they were unable to get information on the 

accident and potential risks to their community.202

The previous examples and public comments demonstrate the need for better 

communication of the potential risks associated with accidental releases at stationary sources. 

However, in making information more readily available EPA must also recognize and balance the 

associated security concerns because the public sharing of certain specific facility information 

and any associated vulnerabilities has the potential to aid terrorists in planning an attack. The 

RMP rule was published in 1996, before many computer-based and other information-sharing 

methods were widely used. At the time of initial publication of the rule, EPA expected 

201

 CSB. January 20, 2011. CSB issues report on 2008 Bayer Cropscience explosion: finds multiple 

deficiencies led to runaway chemical reaction; recommends states create chemical plant oversight 

regulation. http://www.csb.gov/csb-issues-report-on-2008-bayer-cropscience-explosion-finds-multipledeficiencies-led-to-runaway-chemical-reaction-recommends-state-create-chemical-plant-oversightregulation/

202

 Morris, Jim and Chris Hamby, Center for Public Integrity. February 24, 2011; Updated May 19, 2014. 

Fueling Fears-Use of toxic acid puts millions at risk. http://www.publicintegrity.org/2011/02/24/2118/usetoxic-acid-puts-millions-risk

Commented [A253]: IA Comment #72 Page 127, Recommend 

the following edit: “However, in making information more readily 

available EPA must also recognize and balance the associated 

security concerns because the public sharing of specific facility 

information and any associated vulnerabilities has the potential to 

aid terrorists in planning an attack.

Commented [A254R253]: Change incorporated with 

modifications.
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information to be disclosed to the public through disclosure of the entire RMP. After the 

CSISSFRRA was enacted on August 5, 1999, EPA restricted access to offsite consequence 

analysis (OCA) data for the public and government officials to minimize the security risks 

associated with posting the information on the internet (65 FR 48108, August 4, 2000). 

Governmental officials continue to have electronic access to OCA information, subject to certain 

restrictions, while the public may view OCA information only at Federal Reading Rooms around 

the country and only for a limited number of RMPs at any one time. The non-OCA portions of 

the RMPs are available from EPA to the public either through Freedom of Information Act 

(FOIA) request, by inspection at Federal Reading Rooms, or from a person’s SERC, LEPC, or 

related state or local government agencies.203

EPA is proposing to require certain information to be made available, upon request, to 

LEPCs and emergency response officials to help them to understand the potential risks at RMP 

regulated facilities, as well as to aid them in emergency planning and response activities. EPA is 

also proposing to amend the information sharing provisions for the public to make existing 

information more easily accessible to neighboring communities to encourage them to prepare for 

an emergency. EPA also believes that the revisions will likely contribute to the prevention of 

future chemical accidents. Cognizant of the spirit and intent of the CSISSFRRA, the proposed 

revisions do not disclose the substance or form of information subject to restriction under CAA 

112(r)(7)(H) or 40 CFR part 1400.

EPA has two objectives for improving public information sharing provisions of the RMP 

rule. The first is to ensure that local emergency response and planning officials have the 

information they need to prepare for an emergency response to an accidental release at a 

stationary source. This includes determining what information is appropriate to improve 

 

203

 See 40 CFR Part part 1400: Accidental Release Prevention Requirements; Risk Management Programs 

Under the CAA Section 112(r)(7); Distribution of OCA Information (65 FR 48108, August 4, 2000).

http://www.gpo.gov/fdsys/pkg/FR-2000-08-04/pdf/00-19785.pdf
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community emergency response plans and ensure the safety of the local responders and the 

community. EPA must also determine the appropriate frequency for updating this information to 

avoid overwhelming local planners while ensuring information is current. While developing 

emergency response plans, LEPCs and facility owners or operators should also involve local 

citizens to help them understand the appropriate actions they should take in the event of an 

accidental release. This may reduce public panic and enable residents to act quickly and 

appropriately to protect themselves.

The second objective is to help improve public awareness of risks in their communities 

and provide information on where they can learn more about preparedness and community 

emergency response plans. Any publicly available information should be in a format that is easily 

accessible. The goal is to encourage residents to learn about community emergency response 

plans and understand what actions they need to take during an emergency to protect themselves. 

EPA is proposing to add provisions for sharing information, upon request, with LEPCs

and/or emergency response officials and revise the existing provisions for sharing information 

with the public. EPA is also proposing that facility owners and operators conduct periodic public 

meetings within 30 days of an RMP reportable accident to discuss chemical hazards present at 

facilities and provide information on any accidental releases that may occur. These meetings can 

provide opportunities for facilities to engage the public to address concerns following an 

accidental release and explain how facilities address risks that will prevent future accidents. 

A. Proposed Public Disclosure Requirements to LEPCs or Emergency Response Officials

EPA is proposing to add requirements to Subpart subpart H-Other Requirements that

apply to all facilities regulated under the RMP rule, including facilities with Program 1 processes. 

EPA proposes to add § 68.205 to require owners and operators to provide information to local 

emergency responders and LEPCs upon request. If information required under this proposal is 

already available to the public on a company website, the owner or operator may comply by 

providing the website link to the first responders and LEPC. Paragraph § 68.205(a) would require 

Commented [A255]: IA Comment #73 Page 129, regarding 

“These meetings can provide opportunities for facilities to engage 

the public to address concerns and explain how facilities address 

risks that will prevent accidents.” As many SERs indicated, the past 

EPCRA experience showed that most meetings were not attended 

by the public. In the absence of an actual accident, the public is 

unlikely to be interested. EPA should fashion a meeting 

requirement only for actual chemical releases, and the the 

discussion should take place at an LEPC meeting, to ensure 

engagement with the LEPC.

Commented [A256R255]: EPA has revised the requirement to 

require public meetings within 30 days of any accident subject to 

reporting under §68.42.

EPA does not specify a location for public meetings and agrees that 

these meetings can be held as part of an LEPC meeting-provided 

that the LEPC meeting is open to the public. EPA added the 

following sentence on page 142 as clarification: Stationary sources 

may combine public meetings with LEPC meetings or other events 

as long as those events/meetings are available for public 

participation.
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Page 140 of 266

that the RMP be accessible to local emergency responders and LEPCs in the exact same manner 

as the current requirement under § 68.210(a). A reference to 42 U.S.C. 7414(c), which covers 

information and reports (such as the RMP) required under section 42 U.S.C. 7412, is included to 

show the authority under which the non-OCA portion of an RMP shall be available to the public, 

except for any information that would divulge methods or processes entitled to protection of CBI 

or trade secrets. This reference is already part of the current § 68.210(a). A reference to 40 CFR 

part 1400 has been added to address the disclosure restrictions under CSISSFRRA (i.e., 

restrictions on the disclosure of OCA information). EPA is not changing its policy regarding 

OCA information. The reference to 40 CFR part 1400 only clarifies the statutory obligations that 

relate to securing this information. 

Under paragraph § 68.205(b), EPA would require the owner or operator to provide 

develop , upon request, summaries of specific chemical hazard information for all of their 

regulated processes and provide this information, upon request, to the LEPC or local emergency 

responders response officialsand the LEPC as part of their emergency response coordination 

efforts. The facility should make information available in a manner that is understandable and 

avoids technical jargon. The information should be conveyed without revealing CBI or trade 

secret information. The information must adequately explain the findings, results, or analysis 

being provided. 

The specific information that must be provided to LEPCs or emergency response officials

upon request is outlined below:

Information on Regulated Substances. Information related to the names and quantities of 

regulated substances at the source (paragraph § 68.205(b)(1)). This only applies to regulated 

substances held in a process above the TQ.

Accident History Information. The facility’s accident history information required under 

§ 68.42 (paragraph § 68.205(b)(2)).

Commented [A257]: IA Comment #74 Page 130, regarding 

“The specific information that must be provided to LEPCs or 

emergency response officials is outlined below:” 40 CFR Section 

68.155 already requires:

§ 68.155 Executive summary. 

The owner or operator shall provide in the RMP an executive 

summary that includes a brief description of the following 

elements: 

(a) The accidental release prevention and emergency 

response policies at the stationary source;

(b) The stationary source and regulated substances handled; 

(c) The worst-case release scenario(s) and the alternative 

release scenario(s), including administrative controls and 

mitigation measures to limit the distances for each reported 

scenario; 

(d) The general accidental release prevention program and 

chemical-specific prevention steps; 

(e) The five-year accident history; 

(f) The emergency response program; and 

(g) Planned changes to improve safety.

This is likely the only information that the great majority of the 

LEPCs need. Why should we add to the facility and LEPC burdens 

of more?

Commented [A258R257]: Please note-The worst-case release 

and alternative release scenarios with their administrative controls 

and mitigation measures is no longer required in the executive 

summary. This section of the CFR was amended in 2004- someone 

may be looking at an earlier version of CFR.

EPA believes the additional elements proposed for LEPC disclosure 

(such as summaries of exercises, audit reports, incident 

investigation and IST) may assist emergency responders in 

allocating response resources.

Commented [A259]: IA Comment #75 Page 130, Accident 

History Information: Facilities should provide accident history, 

compliance audit reports, IST reports, and information on exercises 

only upon LEPC request. Incident investigation reports should go to 

LEPCs without request. LEPCs are already overburdened, so only 

the most important information should be required by rule to be 

provided to the LEPC. In this manner, LEPCs can control the 

material to be kept and reviewed.

Commented [A260R259]: EPA has revised the proposed 

requirements to allow information to be made available upon 

request.
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Compliance Audit Reports. Summaries of compliance audit reports required under §§

68.58 and 68.59 (for Program 2 processes), or §§ 68.79 and 68.80 (for Program 3 processes), as 

applicable (paragraph § 68.205(b)(3)). The audit report summary shall include: 

 The date of the report;

 The name and contact information of the auditor and the facility contact person;

 A brief description of the audit findings;

 An appropriate response to each of the findings; and

 A schedule for addressing each of the findings.

Incident Investigation Reports. Summaries of incident investigation reports required 

under § 68.60(d) (for Program 2 processes) or § 68.81(d) (for Program 3 processes), as applicable 

(paragraph § 68.205(b)(4)). The incident investigation report summary shall include: 

 A description of the incident and events leading up to it, including a timeline;

 A brief description of the process involved;

 The names and contact information of personnel on the investigation team;

 The direct cause, contributing cause, and root cause of the incident;

 The on-site and offsite impacts;

 The emergency response actions taken;

 Any recommendations; and

 A schedule for implementing recommendations, as applicable.

Inherently Safer Technologies (IST). For each process in NAICS codes 322, 324, and 

325, a summary of the IST or ISD identified in accordance with § 68.67(c)(8) that the owner or 

operator has implemented or plans to implement (paragraph § 68.205(b)(5)). The owner or 

operator shall update this summary as part of the calendar year submission if any of the summary 

information has been revised as a result of the safer technology analysis that is conducted as part 

of the update to the PHA prepared in accordance with § 68.67(f). The calendar year submission 

Commented [A261]: IA Comment #76 Page 131, Shouldn’t this 

be the same as the name of the analysis that EPA is requiring? 

Recommend the following edits: “Safer Technologies and 

Alternatives Inherently Safer Technologies (ISTAA).” And “For each 

process in NAICS codes 322, 324, and 325, a summary of the safer 

technology or alternative IST or ISD identified...” and (see below)

Commented [A262R261]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.
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Page 142 of 266

should also identify whether any revisions were incorporated. The IST/ISD summary shall 

include, at a minimum:

 The RMP process ID and process description, if provided, of the process affected;

 A brief description of the IST or ISD and which type of measure best characterizes it: 

minimization, substitution, modernization, or simplification;

 The names of the regulated substance(s) whose hazard, potential exposure, or risk 

was or will be reduced as a result of the implementation and whether the substance is 

listed as toxic or flammable. If the chemicals affected are a mixture of flammable

substances, the name “flammable mixture” may be used, instead of the individual 

flammable substance names; and

 The dates of implementation or planned implementation. 

Exercises. Information on emergency response exercises conducted under § 68.96, 

including, at a minimum, schedules for upcoming exercises, reports for completed exercises, and 

other related information (paragraph § 68.205(b)(6)).

EPA believes that requiring facilities to provide to LEPCs, upon request, summary 

information on findings from incident investigations, compliance audits, exercises, and IST 

employed, can demonstrate to local emergency response officials how a facility is improving its 

management of chemical risks and assist local emergency planners to understand and better 

prepare for these risks when developing community emergency response plans. Furthermore, 

EPA believes that disclosing information related to IST can help responders and planners to 

prioritize and allocate response resources. For example, IST implementation information may be

relevant for emergency response personnel who are maintaining response capabilities to address a 

specific hazard that would no longer apply once an IST is implemented (such as by substituting a 

less hazardous chemical for an RMP-regulated substance).

Commented [A263]: IA Comment #76 ... “A brief description of 

the safer technology or alternative IST or ISD and which type of 

measure best characterizes it: minimization, substitution, 

modernization, or simplification;”

Commented [A264R263]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.

Commented [A265]: IA Comment #78 Page 132, regarding 

“EPA believes that disclosing information related to IST can help 

responders and planners to prioritize and allocate response 

resources.” It is unlikely that IST information would help formulate 

the response plan. That is the function of the PHA and other 

information currently available under the RMP rule. The IST 

focuses on the alternatives not adopted by the facility.

Commented [A266R265]: EPA requires information 

disclosure of only IST information that is being implemented by the 

facility. EPA added additional preamble language to explain why IST 

information may be relevant for emergency responders.

Commented [A267]: IA Comment #77 Page 132, recommend 

the following edits: “EPA believes that requiring facilities to provide 

to LEPCs summary information on findings from incident 

investigations, compliance audits, exercises, and safer technologies 

and alternatives IST employed...” and “Furthermore, EPA believes 

that disclosing information related to safer technologies and 

alternatives IST can help responders and planners to prioritize and 

allocate response resources.” And “Owners and operators of 

Program 3 processes must submit all of the above information, as 

well as the safer technologies and alternatives IST information...”

Commented [A268R267]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.
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Table 6 below summarizes the information to be provided developed under § 68.205(b)

to LEPCs or emergency response officials upon request and identifies the applicable program 

level for each provision. The owner or operator need only submit provide upon the LEPC’s 

request information developed for this provision that is applicable to the program-level for each 

regulated process at the facility. For example, owners or operators of Program 2 processes must 

provide submit information on regulated substances in accordance with § 68.205(b)(1), accident 

history information in accordance with § 68.205(b)(2), compliance audit report summaries to 

LEPC or emergency response officials in accordance with § 68.205(b)(3), incident investigation 

report summaries in accordance with § 68.205(b)(4), and exercise schedules and report 

summaries in accordance with § 68.205(b)(6). Owners and operators of Program 3 processes 

must provide submit all of the above information, as well as the IST information required under §

68.205(b)(5). Owners and operators of Program 1 processes would be required to submit provide

only information on regulated substances in accordance with § 68.205(b)(1) and accident history 

information in accordance with § 68.205(b)(2).

Table 6: Public LEPC Disclosure Information

Public disclosure iInformation to be provided, upon request, to LEPCs 

or emergency response officials in § 68.205.

Program Level(s) 

ApplicabilityProgram 1, 2, or 3

(b)(1) Information on regulated substances 1, 2, 3

(b)(2) Accident history information 1, 2, 3

(b)(3) Compliance audit report summaries 2, 3

(b)(4) Incident investigation report summaries 2, 3

(b)(5) IST summary 3*

(b)(6) Exercise schedules and report summaries 2, 3

* Applies only to Program 3 facilities in NAICS codes 322, 324, and 325.

Submission Dates and Updates. According to § 68.205(c), EPA is proposing that the 

owner or operator update and submit summary information every calendar year, including all 

applicable information that was revised since the last submission, and provide this information

upon request. 

Classified Information. EPA is proposing to add § 68.205(d) to address protection of 

classified information from disclosure. This provision is identical to the current § 68.210(b). 

Commented [A269]: IA Comment #79 Page 133, Table 6: 

Please replace IST with STAA at (b)(5).

Commented [A270R269]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.

Commented [A271]: IA v.3 Comment #11 Page 141, regarding 

Submission Dates and Updates: This appears to add an annual 

requirement to several provisions that don’t currently require 

annual updates. Since this information is provided only upon 

request, it would lower the burden to require updates only on 

request, especially since this is expected rarely. 

For example under68.58 compliance audits are only required to 

be updated every three years. Exercises may not be done 

annually. 

Commented [A272R271]: EPA added a request for comment 

on this suggestion. See page 144 of the preamble.
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Page 144 of 266

Confidential Business Information. EPA is proposing to add the acronym CBI to § 68.3 

and to add § 68.205(e) to describe the process for claiming and handling CBI. EPA is proposing 

that an owner or operator asserting a CBI claim for information requested by an LEPC or local 

emergency responderresponse official required under this section should submit a sanitized 

version to the LEPC or emergency response officials, and submit to EPA both the sanitized 

version and a version containing the CBI along with a substantiation of the CBI claim at the time 

it is asserted. This process for assertion and substantiation of CBI claims is the same as that 

required in §§ 68.151 and 68.152 for information contained in the RMP. As provided under §

68.151(b)(3), an owner or operator of a stationary source may not claim five-year accident history 

information as CBI. As provided in § 68.151(c)(2), an owner or operator of a stationary source 

asserting that a chemical name is CBI shall provide a generic category or class name as a 

substitute in its submission. 

An owner or operator should be aware that anything they send to their LEPC in 

accordance with § 68.205(e) becomes public information. For any information claimed as CBI 

when submitted to EPA and later submitted to the LEPC, the CBI claim regarding such 

information is waived. Therefore, if an owner or operator wants to maintain the confidentiality of 

information, when submitting such information to the LEPC, they should submit a sanitized 

version. 

With these proposed requirements, EPA intends to ensure that LEPCs and emergency 

response officials have information on chemical hazards at regulated facilities and are better 

prepared to understand and prepare for risks to the communities and emergency responders. EPA 

encourages local emergency response officials to coordinate with owners or operators of 

regulated facilities and participate in emergency response exercises as time and resources allow. 

LEPC and local emergency response officials should consider use the information provided 

identified in § 68.205(b)in the calendar year submissions to address the specific risks located 
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Page 145 of 266

within their communities whenassist in revising the community emergency response plan 

developed under 42 U.S.C 11003 and related purposes. 

EPA seeks comment on this approach. Will the proposed requirements improve the 

community emergency planning and preparedness? Is there additional information that should be 

shared with LEPCs or emergency response officials? For example, should EPA require the full 

safer technologies and alternatives analysis to be submitted to the LEPC? EPA also seeks 

comment on whether to Alternatively, should EPA require less information to be shared (e.g., 

limit incident investigation information to incidents with offsite impacts).? Some SERs suggested 

that information be limited to a one page summary of each significant chemical hazard and 

suggested including only the following elements:, identifying the name of the substance, its 

properties, its location, and recommended firefighting and emergency response measures. EPA 

seeks comment on this narrowed approach. Should EPA require owners or operators to 

periodically submit information only upon receiving a request for the information from anto the

LEPC or local responders, and if so, what timeframe should EPA consider? Is the proposed 

timeframe for updating information sufficient to ensure information is up-to-date without 

overwhelming local emergency planning officials? Should EPA require information to be updated 

only after the source receives a request from an LEPC or local emergency response official? If so, 

how much time is sufficient to allow development and submission of summaries following 

requests for information under this proposed provision? Should EPA specify a standard format 

for summary information in order to make it easier for local officials to interpret the information 

(e.g., specify a one-page summary template for information on regulated substances, compliance 

audits reports, incident investigation reports, IST)? 

B. Proposed Revisions to Requirements for Information Availability to the Public

Under paragraph § 68.210(a), EPA is proposing to add a reference to 40 CFR part 1400 

to address CSISSFRRA disclosure restrictions (i.e., for OCA information). EPA is not changing 

Commented [A273]: IA Comment #81 Page 134, 

recommended edit: “EPA also seeks comment on whether to

Alternatively, should EPA require less information to be shared 

(e.g., limit incident investigation information to incidents with 

offsite impacts)?

Commented [A274R273]: Change incorporated.

Commented [A275]: IA v.3 Comment #17 Page 142, 

recommended edit: EPA also seeks comment on whether to require 

less information to be shared (e.g., limit incident investigation 

information to incidents with offsite impacts). Some SERs suggested 

that information be limited to a one page summary of each 

significant chemical hazard and suggested including only the 

following elements:, identifying the name of the substance, its 

properties, its location, and recommended firefighting and 

emergency response measures. EPA seeks comment on this 

narrowed approach.

Commented [A276R275]: Change incorporated.

Commented [A277]: 2-1-16 Added to address SBAR Panel 

recommendation.

Commented [A278]: IA Comment #85 Page 134, regarding 

“Should EPA require owners or operators to submit information 

only upon receiving a request for the information from an LEPC or 

local responder?” Note: Mathy said during the December 17th call 

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

are overwhelmed already.

Commented [A279R278]: EPA revised the proposed approach 

to require submitting information to LEPCs only upon request. EPA 

revised request for comment.

Commented [A280]: IA Comment #82 Page 134, regarding “a 

standard format for summary information” Will this (proposed) 

template be posted to websites immediately, or will it require 

additional analysis and re-write before sharing?

Commented [A283R282]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.

Commented [A282]: IA Comment #80 Page 134, recommend 

the following edit: “...compliance audits reports, incident 

investigation reports, safer technologies and alternatives IST)?”

Commented [A281R280]: The template would provide a 

format to guide the owner or operator in developing information 

that would be made available.

Commented [A284]: IA Comment #83 Page 134, this reviewer 

believes there are national security concerns with four data points 

in §68.210 Availability of Information to the Public, which proposes 

that facilities either post on their website or put in a public library:

Chemical Name

Chemical Quantity

SDS

First Responder POC

Exercise After Action Reports

This reviewer believes that sharing this information with the public 

could assist terrorists in selecting targets and/or increasing the 

severity of an attack by decreasing first responder capability. There 

...

Commented [A285R284]: EPA removed quantities of 

chemicals from the information being proposed for public 

...

Commented [A286]: IA Comment #138 EPA is proposing to 

two categories of information sharing: §68.205 Availability of 

...

Commented [A287R286]: EPA removed quantities of 

chemicals form the information being proposed for public 

...

1

2

3

4
Page 145: [1] Commented Author 

IA Comment #83 Page 134, this reviewer believes there are national security concerns with four data points in

§68.210 Availability of Information to the Public, which proposes that facilities either post on their website or put

in a public library:

 Chemical Name

 Chemical Quantity

 SDS

 First Responder POC

 Exercise After Action Reports

This reviewer believes that sharing this information with the public could assist terrorists in selecting

targets and/or increasing the severity of an attack by decreasing first responder capability. There are at least four

products from the Intelligence Community that support the notion that terrorists are seeking to target law

enforcement and first responders. Recommendation:  this reviewer proposes that the following five items are

deleted from being shared with the public:

 Chemical Name

 Chemical Quantity

 SDS

 First Responder POC

 Exercise After Action Reports

Page 145: [2] Commented Author 

EPA removed quantities of chemicals from the information being proposed for public disclosure and is

seeking comment on whether there is value in the public having this information.

EPA will not ask for individual names of responders to be disclosed. We will keep remaining information

elements and seek comment on how to limit disclosure of information that could reveal security vulnerabilities.

Page 145: [3] Commented Author 

IA Comment #138 EPA is proposing to two categories of information sharing: §68.205 Availability of information to

the LEPC and emergency response officials and §68.210.  

This reviewer supports EPA’s proposal to share information with first responders and LEPC members who

have a need to know in order to assist with community preparedness.

However, This reviewer has concerns regarding EPA’s proposal that facilities either post on their website

or put in a public library (§68.210):

 Chemical Name

 Chemical Quantity

 Safety Data Sheets

 First Responder Point of Contact Information

 Exercise After Action Reports (AAR)

Availability of information to the public could assist terrorists in selecting targets and/or increasing the

severity of an attack by decreasing first responder capability. Having facilities share this information would be

precedent setting – currently the CFATS, PSM, and ATF (liscensee/permittee) programs do not share this level of

detail with the public due to security concerns. The EPA’s proposed level of detail may inadvertently provide a

roadmap to assist terrorists. We note that placarding is a good example of balancing safety and security concerns.  

Through placarding, the public is aware of the hazard and can prepare accordingly but is not provided specifics that

can assist terrorists in creating a targeting list.   

Page 145: [4] Commented Author 

Expanded comments for page 145

pg 145b
EPA removed quantities of chemicals form the information being proposed for public disclosure and is

seeking comment on whether there is value in the public having this information.

EPA will not ask for individual names of responders to be disclosed. We will keep remaining information

elements and seek comment on how to limit disclosure of information that could reveal security vulnerabilities.

pg 145c
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Page 146 of 266

its policy regarding OCA information. The reference to 40 CFR part 1400 only clarifies the 

statutory obligations that relate to securing this information. 

EPA is proposing to redesignate the current paragraph § 68.210(b) that addresses the nondisclosure of classified information by the Department of Defense or other Federal agencies or 

their contractors as § 68.210(e). 

EPA is proposing a new paragraph (b) to require the owner or operator of a stationary 

source to distribute certain chemical hazard information for all regulated processes to the public 

in an easily accessible manner. EPA is proposing to require the owner or operator to distribute the 

following information, as applicable: 

 Names and quantities of regulated substances held in a process above TQs;

 Safety Data Sheets (SDSs) for all regulated substances held above TQs at the facility;

 The facility’s accident history required under § 68.42;

 Information concerning the source’s compliance with § 68.10(b)(3) or the emergency 

response provisions of Subpart subpart E, including: 

o Whether the source is a responding stationary source or a non-responding

stationary source; 

o Name and, organizational affiliation, phone number, and e-mail address of local 

emergency response organizations with which the source last coordinated 

emergency response efforts, pursuant to § 68.180; and 

o For sources subject to § 68.95, procedures for informing the public and local 

emergency response agencies about accidental releases. 

 Information on emergency response exercises required under § 68.96, including

schedules for upcoming exercises, reports for completed exercises as described in §

68.96(b)(3), and any other related information; and

Commented [A288]: IA Comment #86 Page 135, As per 

previous agreement, chemical volume was not being shared with 

the public. Revise as follows: “Names and quantities of regulated 

substances held in a process above TQs;”

Commented [A289R288]: Change incorporated.

Commented [A290]: IA Comment #138 Chemical Name and 

Quantity

This reviewer believes that online access to a facility’s chemical 

inventory and chemical quantity would make facility targeting by 

terrorists much easier. DHS has maintained throughout the EO 

that first responders and LEPC members with a need to know 

should have access to information – but that when it comes to 

the public, a balance of security is needed.

Commented [A291R290]: EPA removed quantities of 

chemicals from the information proposed for public disclosure.

Commented [A292]: IA Comment #138 SDS

SDS sheets provide information beyond chemical name and 

quantity. This information could be exploited by terrorists.

Commented [A293R292]: EPA is seeking comment on how to 

limit disclosure of information that could reveal security 

vulnerabilities.

Commented [A294]: IA Comment #87 Page 135, regarding 

“The facility’s accident history required under §68.42;” Does this 

include specific RMP violation information? Perhaps inlude as a 

separate category, if appropriate.

Commented [A295R294]: No, this requirement does not 

include any information on violations.

Commented [A296]: Revised to address concerns raised by IA 

comments #83, 119, and 138 about disclosing personal information 

on responders.

Commented [A297]: IA Comment 138 Exercise After Action

Reports

Sharing certain exercise after action report elements is essentially 

providing a listing of vulnerabilities. These vulnerabilities could be 

used by terrorists to either target a certain facility or the 

vulnerabilities could be exploited to increase the magnitude of an 

attack. 

This reviewer is concerned that many facilities may not be 

experienced enough to develop one internal after action report and 

a second version of the after action report for the public.

Commented [A300R299]: EPA is seeking comment on how to 

limit disclosure of information that could reveal security 

vulnerabilities.

Commented [A299]: IA Comment #84- As stated above, this 

reviewer has concerns regarding the sharing of all the elements 

listed in this section with the public. Sharing certain elements is 

essentially providing a listing of vulnerabilities. These 

vulnerabilities could be used by a terrorist to either target a certain 

facility or the vulnerabilities could be exploited to increase the 

magnitude of an attack. 

This reviewer is also concerned that many facilities may not be 

experienced enough to develop one internal after action report 

and a second version of the after action report for the public. 

Recommend deleting lessons learned and recommendations for 

improvement from the documentation. Alternatively, EPA could 

consider being more specific and have facilities develop a 

...

Commented [A298R297]: EPA is seeking comment on how to 

limit disclosure of information that could reveal security 

vulnerabilities.

1
Page 146: [1] Commented Author 

IA Comment #84‐ As stated above, this reviewer has concerns regarding the sharing of all the elements listed in

this section with the public.  Sharing certain elements is essentially providing a listing of vulnerabilities.  These

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

to increase the magnitude of an attack.   

This reviewer is also concerned that many facilities may not be experienced enough to develop

one internal after action report and a second version of the after action report for the public.  

Recommend deleting lessons learned and recommendations for improvement from the

documentation.  Alternatively, EPA could consider being more specific and have facilities develop a

separate document (or Appendix to the AAR) that is designed to be shared with the public that just

provides a high level description of the scenario and participants.

Expanded comments for page 146

pg 146b
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 LEPC contact information, including LEPC name, phone number, and website

address, and email addresses of LEPC contacts, as available.

EPA believes that providing this information to the general public will allow people that 

live or work near a regulated facility to improve their awareness of risks to the community and to

be prepared to protect themselves in the event of an accidental release. EPA also thinks that 

requiring facilities to provide summary information on the facility’s emergency response plans 

and emergency exercises to the public, will provide assurance to the community that the facility is 

adequately prepared to properly handle a chemical emergency, should it arise. An additional 

benefit of sharing exercise schedules is to avoid unnecessary public alarm when exercises are 

conducted. 

The facility owner or operator can make all the required information available to the 

public in a variety of ways. For example, the owner or operator could comply by making the 

information available on the facility or company website, if one is available. If the facility doesn’t 

have a website, the owner or operator could establish one. Alternatively, there are free or low cost 

internet platforms, file sharing services, and social media tools that are designed to share 

information with the public. As another option, the facility could make the information available 

in hard copy at publicly accessible locations such as a public library or a local government office. 

If the facility has the means to handle public visitors, it could choose to make the information 

available at the facility location. The facility could alternatively provide the information by email, 

upon request. EPA encourages the facility owner or operator to coordinate information 

distribution with the LEPC or local emergency response officials to determine the best way to 

reach public stakeholders. 

EPA seeks comment on this approach.whether there iIs there additional information that 

should be shared with the public?. For example, should EPA require the STAA analysis proposed 

under § 68.67(c)(8), or a summary of that analysis, be shared with the public? Alternatively, 

should EPA further limit the information elements proposed? For example, how should EPA limit 

Commented [A301]: IA Comment #138 First Responder POC

This reviewer is concerned that EPA’s proposal to provide first 

responder information to the public could provide terrorists with 

additional information to increase the impact of the incident by 

potentially:

Diverting first responders with multiple incidents in their 

area of responsibility; or

Prior to an incident, diminishing the capabilities of first 

responders; or

Planning a second incident where first responders gather.

There have been several intelligence products - from DHS and 

the FBI and the National Counterintelligence Center - discussing 

how first responders may be potential targets for terrorists.

Commented [A302R301]: EPA revised LEPC information 

elements to remove information that may be specific to an 

individual. EPA is seeking comment on how to limit disclosure of 

information that could reveal security vulnerabilities.

Commented [A303]: IA Comment #88 Page 136, suggested 

rewrite of: “EPA seeks comment on whether there is additional 

information that should be shared with the public.” To “EPA seeks 

comment on this approach. Is there additional information that 

should be shared with the public?”

Commented [A304R303]: Change incorporated.

Commented [A305]: IA Comment #89 Page 137, sentence to

consider for public comment: “Is there an alternative way to 

improve community preparedness for safety purposes while 

balancing the security concerns to limit a terrorist’s ability to use 

the information for an attack?”

Commented [A306R305]: Change incorporated.
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the disclosure of information in exercise reports that might reveal security vulnerabilities about 

the facility or emergency responders? Should EPA not require disclosure of names of individuals 

involved in exercises or facility security vulnerabilities revealed by the exercise? Is there an 

alternative way to improve community preparedness for safety purposes while balancing the 

security concerns to limit a terrorist’s ability to use the information for an attack? Is there other 

information that community residents and operators of community facilities (such as schools, 

nursing homes, daycares) need in order to participate in emergency preparedness planning, 

particularly as it relates to effective incident notification, sheltering in place, and evacuation?

EPA also seeks comment on the feasibility of these various options for providing 

information to the public and requests suggestions for other ways that the data could be made 

available. Lastly, EPA seeks comment on any challenges facility owners or operators would have 

in providing the information or challenges public stakeholders would have in obtaining the 

information. In order to inform the public of the location of the information, EPA is proposing to 

require under § 68.160(b) that the facility report in their RMP the location or means of public 

access to the information proposed to be disclosed under this subsection. 

Submission Dates and Updates. EPA is proposing that the owner or operator shall update 

and submit information required under § 68.210(b) every calendar year, including all applicable 

information that was revised since the last update. 

Confidential Business Information. In § 68.210(f), an owner or operator asserting CBI 

shall submit a sanitized version of the information required under this section to the public. 

Assertion of claims of CBI and substantiation of CBI claims shall be in the same manner as 

required in §§ 68.151 and 68.152 for information contained in the RMP required under subpart G. 

As provided in § 68.151(c)(2), an owner or operator of a stationary source asserting that a 

chemical name is CBI shall provide a generic category or class name as a substitute. If an owner 

or operator has already claimed CBI for a portion of the RMP, then that claim still applies for the 

Commented [A307]: Added this sentence in response to IA 

Comments #65, 66, and #115.

Commented [A308]: IA Comment #90 Page 137, Submission 

Dates and Updates: Again, this information should be on request, 

and not required annually. The chemical inventory information is 

already required to be updated annually – and that is the important 

information for emergency preparedness. 

Commented [A309R308]: EPA requests comment on an 

alternative to make information available to the public upon 

request (see preamble on page 143).
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disclosure elements here. The owner or operator should provide a sanitized version as described 

in the RMP*eSubmit User’s Manual.

204

EPA seeks comment on this approach. Will the proposed requirements improve the knowledge 

sharing between regulated facilities and the public? Is there additional information that should be 

shared with the public stakeholders? Should EPA only require information to be shared upon 

request by the public? Alternatively, should EPA further limit the information we are proposing 

to be required, such as, requiring only a one page summary that addresses chemical hazard 

information and emergency response measures? EPA could alternatively eliminate some of the 

required information elements or further limit information, such as by limiting accident history 

information to only those with offsite impact. Some SERs asked whether the existing RMP data 

or the RMP executive summary available to the public through existing sources (FOIA, Federal 

Reading rooms or other public sources who have compiled the data) are adequate to meet the 

information needs of the public. 

Public Meetings. When the CSISSFRRA was enacted in 1999, it included a section that 

required owners or operators of all facilities regulated under the RMP rule to hold a public 

meeting within 180 days of enactment.205 The purpose of the public meeting was to describe and 

discuss the local implications of the RMP on the community. Two or more stationary sources 

were allowed to conduct a joint meeting, while small businesses were allowed to instead post a 

summary of their OCA information no later than 180 days after enactment. 

In paragraph § 68.210(d)(1), EPA is proposing to require the owner or operator of a 

regulated stationary source to hold public meetings at least once every five years. Public meetings 

must address the chemical hazard information described under § 68.210(b) and any other 

appropriate information that may improve safety and emergency preparedness activities in the 

204

 See EPA. March 2014. RMP*eSubmit Users Manual. http://www2.epa.gov/rmp/rmpesubmit-usersmanual. 

205 Chemical Safety Information, Site Security and Fuels Regulatory Relief Act, Public Law 106-40, 

August 5, 1999. See http://www.gpo.gov/fdsys/pkg/STATUTE-113/pdf/STATUTE-113-Pg207.pdf. 

Commented [A310]: IA Comment #91 Page 137, Public 

Meetings: The SERS provided substantial information about the lack 

of public attendance at these meetings – particularly, Hydrite and 

Allied. Please describe the input from the SERs generally regarding 

the degree of public participation, and opine about EPA’s 

expectation of public participation in the absence of an accident. 

In addition, EPA should consider requiring those meetings only in 

conjunction with LEPC meetings to ensure more participation and 

meaningful coordination with the LEPC which has responsibility 

over this facility.

Commented [A311R310]: Added information on page 147 to 

describe comments received by SERs on public meetings.
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community. The facility representative should describe the risks that are associated with the 

facility, and what the facility is doing to protect the public from those risks. In addition, the 

facility personnel should relay information that would assist the public to prepare for accidental 

releases. For example, at the meeting, the facility representative should discuss the process for 

public emergency notification, procedures for sheltering in place or evacuating, and where to 

obtain further updates on the status of an emergency incident. The discussion should also address 

how the public can access community emergency response plans and identify what the 

community may expect to see during a field exercise. EPA believes that it would be appropriate 

for two or more nearby stationary sources to conduct a joint meeting to fulfil this requirement if 

such a meeting would be the most efficient manner of providing chemical hazard information for 

multiple sources to the public. This is consistent with the public meeting provisions of

CSISSFRRA.

Additionally, EPA is proposing to require regulated facilities that have any accident 

meeting the five-year accident history criteria of § 68.42 to hold a public meeting within 30 days

after the accident. This provides an opportunity for the owner or operator of the RMP facility to 

inform the community about the accident including, at a minimum, the information reportable 

under § 68.42. This includes information on:

 When the accident occurred; 

 The nature of the accident including initiating event and contributing factors if 

known; 

 Chemicals involved and quantities released; 

 Weather conditions, if known; 

 On-site and offsite impacts; 

 Emergency response notifications; and

Commented [A312]: IA Comment #92 Page 138, regarding 

“Additionally, EPA is proposing to require regulated facilities that 

have any accident meeting the five-year accident history criteria of 

§68.42 to hold a public meeting within 30 days after the accident.” 

Suggest an option for later date with approval from the state. 

Commented [A313R312]: EPA is requesting comment on 

page 147: If EPA finalizes the requirement to hold post-accident 

public meetings, should EPA extend the required timeframe to 

complete the meeting beyond 30 days, in order to give the owner 

or operator more time to learn about accident causal factors and 

prepare for a public meeting? If so, what extended timeframe 

should EPA choose? 

In reference to getting approval from the state, this could add 

confusion to the requirement because not all states have 

implementing authority for the RMP rule. EPA added language on 

pg. 142 to ask whether we should require approval from the 

implementing agency for any extensions to the 30-day timeframe.
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 Operational or process changes that resulted, thus far, from investigation of the 

release. 

For post-accident public meetings, EPA expects that, in some cases, sources will have 

completed the incident investigation required under § 68.60 or § 68.81 prior to holding the public 

meeting. This would allow the owner or operator to share appropriate information about the 

accident with the local community. However, in some cases, such as for complex, protracted 

investigations, the source may need to hold a public meeting prior to completing the incident 

investigation. In such cases, the owner or operator should consider holding a second public 

meeting after completing the incident investigation. Additionally, a public meeting must be held 

after accidents that destroy a process or stationary source or cause the process or source to be 

subsequently decommisioned. Stationary sources may combine public meetings with LEPC 

meetings or other events as long as those events/meetings are available for public participation.

Public meetings must also address other relevant chemical hazard information such as 

that described in § 68.210(b) and any other appropriate information that may improve safety and 

emergency preparedness activities in the community. The facility representative should describe 

the risks that are associated with the facility, and what the facility is doing to protect the public 

from those risks. In addition, the facility personnel should relay information that would assist the 

public to prepare for accidental releases. For example, at the meeting, the facility representative 

should discuss the process for public emergency notification, procedures for sheltering in place or 

evacuating, and where to obtain further updates on the status of an emergency incident. The 

discussion should also address how the public can access community emergency response plans 

and identify what the community may expect to see during a field exercise.

Commented [A314]: Language added to address IA Comment 

#125.

Commented [A315]: Language added in response to IA 

Comment #73
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As part of the SBAR pPanel process, several SERs questioned the value of having any 

public meetings and noted that, when held in the past, public meetings were not well attended.206

Some SERs suggested altering the requirement to allow for the request of a public meeting if an 

LEPC or community felt it was necessary. Additionally, SERs expressed concern about the 

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

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

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

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

Additionally, should EPA seeks comment on the proposedconsider other optionsapproach

for when to require public meetings and whether there are other options that EPA should consider

for public meetings.? For example, should EPA rather than require regular public meetings rather 

than only after an accident subject to reporting requirements under § 68.42? Should, EPA could 

require public meetings upon request by LEPCs, emergency responders or the public?.

Alternatively, should the public meeting requirement be restricted to an RMP reportable 

accidents with offsite impacts? Iinstead of requiring a public meeting after RMP reportable 

accidents, should EPA require owners and operators to meet only with LEPCs and emergency 

responders? If EPA finalizes the requirement to hold post-accident public meetings, should EPA 

extend the required timeframe to complete hold the meeting beyond 30 days (e.g. to 90 days), in 

order to give the owner or operator more time to learn about accident causal factors and prepare 

for a public meeting? If so, what extended timeframe should EPA choose and should EPA require 

the implementing agency to approve any extensions? 

206

 See SER comments from American Refining Group (pg.16), (NACD)/Allied Universal Corporation 

(Allied) (pgs. 6-7), Nebraska Fertilizer and Chemical Association (pg. 5), Gas Processors Association 

(GPA) (pg. 5), International Association of Refrigerated Warehouses (IARW) (pg. 3), Kugler Oil 

Company (pg. 4), National Rural Electric Cooperative Association (NRECA) (pg. 4), and Hydrite 

Chemical Company (pgs. 11-12). These written comments are available in the public docket EPA-HQOEM-2015-0725 as part of the Final Report of the SBAR Panel on EPA’s Planned Proposed Rule-Risk 

Management Modernization Rule. 

Commented [A316]: IA Comment #93 Page 139, 

recommended edits: Additionally, should EPA consider EPA seeks 

comment on other options for when to require public meetings. ?

Commented [A317R316]: Change incorporated.

Commented [A318]: IA Comment #94 Page 139, regarding 

“For example, rather than require regular public meetings, EPA 

could require public meetings upon request by LEPCs, emergency 

responders or the public.” This is the better option for public 

meetings, and only after an accident. 

Commented [A319R318]: EPA has revised the proposed 

requirements to require a public meeting only after an accident 

subject to reporting requirements under §68.42.
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C. Alternative Options

EPA considered an option to require all facilities to hold public meetings at least once 

every five years (and within 30 days after an accident) to share chemical hazard information 

described under § 68.210(b) and any other appropriate information that may improve safety and 

emergency preparedness activities in the community. However, EPA did not propose this 

requirement as our preferred option because of concerns raised by the SBAR pPanel process that 

periodic public meetings are often sparsely attended.

EPA also considered limiting the requirement for periodic and post-accident public 

meetings to only Program 2 and Program 3 facilities; however, EPA did not propose this option 

as our preferred option because even though accidents at Program 1 facilities should not have 

significant public impacts, some communities near these facilities may still be interested in 

understanding the risks at the facility and the procedures and controls that are in place to limit 

offsite impacts. Additionally, if a Program 1 facility does have an RMP reportable accident with 

offsite impacts, EPA believes they should be held to the same standard as other facilities and be 

required to hold a public meeting within 30 days of the incident to provide additional information 

on the accidental release. Nevertheless, EPA is interested in receiving public feedback on whether 

EPA should consider requiring periodic the public meetings and whether the requirement should 

be limited to Program 2 and Program 3 facilities. 

EPA is also considering an option for supporting the public disclosure provisions with a 

“score card” or a “grade” system that could be provided by an independent third-party. The score 

or grade would be made available to the LEPCs and public to demonstrate the facility’s 

compliance with the RMP rule. This method could be used either instead of or in addition to what 

EPA is proposing. EPA requests information and recommendations on how to develop such a 

program, including the types of scoring criteria that should be used and any other issues that the 

Agency should consider when developing such a system. 
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EPA seeks comment on these alternative approaches and whether there are any other 

alternative options that EPA should consider for future actions. 

VII. Risk Management Plan Streamlining, Clarifications, and RMP Rule Technical 

Corrections

A stationary source subject to the RMP rule is required to submit a RMP in a method and 

format specified by the EPA, pursuant to § 68.150(a). The CAA and 40 CFR Subpart subpart G 

require that the RMP indicate compliance with the regulations at 40 CFR part 68 and also include 

information regarding the hazard assessment, prevention program, and emergency response 

program. The RMP also includes stationary source registration information, such as name, 

location and contact information. The EPA may review RMPs for information gathering, 

inspection preparation, errors in submissions, and changes requiring a correction or re-submission 

of the RMP. The CAA requires that RMPs be made available to states, local entities responsible 

for planning or responding to accidental releases at the source, the CSB, and the public. As a 

result, the information provided in an RMP is intended to be easily understood, thus encouraging 

the public, local entities, and governmental agencies to interact with stationary sources on issues 

related to accident prevention and preparedness.

The RMP format consists of a combination of check-off boxes, yes/no answers, 

numerical entries, and write-in information pertaining to the data best describing the various 

elements of the risk management program at a source. The nine sections of an RMP are:

Registration Information; Toxics Worst Case; Toxics Alternative Release; Flammables Worst 

Case; Flammables Alternative Release; Accident History; Prevention Program: Program Level 3;

Prevention Program: Program Level 2; and Emergency Response. Data elements in these sections 

address compliance with each of the rule elements. Some sections may not be applicable to all 

stationary sources, as some sections apply only to processes with certain program levels, and 

some apply only to certain types of regulated substances (toxics or flammables). The RMP also 

includes an Executive Summary, which allows stationary sources to provide a brief description of 
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the source’s prevention and preparedness activities as they relate to covered processes, in a 

format that is easy to understand.

Based on feedback received from the regulated community and EPA’s own experience, 

EPA is proposing to revise several data elements in Subpart subpart G and to make technical 

corrections to the RMP rule. The following sections provide an overview of the proposed 

revisions.

A. Deletions from Subpart G

EPA is proposing to delete data elements that do not effectively assist the Agency in 

evaluating compliance with the RMP rule. EPA is also proposing to delete some data elements 

because the information can be obtained through improved coordination with Federal, state, and 

local agencies resulting from Executive Order 13650, such as information currently required by 

§§ 68.160(b)(13) (the date of the last safety inspection of the stationary source by a Federal, state, 

or local government agency) and 68.160(b)(19) (OSHA Voluntary Protection Program status).

EPA is proposing to delete other data elements because we believe an on-site inspection or formal 

information request are better ways to evaluate compliance with these Risk Management Program 

requirements (for example, some data elements pertaining to training, contractor safety, and 

maintenance/mechanical integrity). By removing several RMP data elements, EPA expects that 

the regulated community will find it easier to comply with Subpart subpart G requirements. In 

addition to burden relief for the regulated community, EPA expects that removing several RMP 

data elements will reduce the number of errors in RMPs submitted to the Agency.

B. Revisions to Subpart G

EPA is proposing to revise existing provisions in Subpart subpart G as follows: 

 Modernize requirements to include electronic contact information if it exists, such as 

e-mail addresses and website homepages; 

 Revise provisions to remove a portion of select data elements that would be better 

evaluated during an on-site inspection or information request; 
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 Provide consistency with RMP*eSubmit; 

 Provide more consistency in the data collected for similar data elements in the 

Program 2 and Program 3 prevention programs; and

 Replace data elements that were not effective in demonstrating a stationary source’s 

compliance with the rule, with one that will demonstrate compliance. 

Data elements that require a date to demonstrate compliance can become irrelevant 

during the typical five-year RMP resubmission cycle. An example is a stationary source that 

submitted an RMP to the EPA on January 8, 2015, that included an annual operating procedures 

review date of January 1, 2015, in its RMP in accordance with § 68.175(f). Assuming the 

stationary source will not have any changes that would require a resubmission of the RMP and 

the stationary source will not voluntarily correct the RMP with newer annual standard operating 

procedure (SOP) review dates, the January 1, 2015, annual SOP review date does not provide 

compliance information for years 2016 - 2019. As a result, the annual SOP review date in this 

example only provides compliance information for 2015. Because the dates of most recent review 

or update of a process safety element in an RMP do not always reflect compliance with regulatory 

requirements, EPA is proposing to replace most of these dates with the RMP Certifying Official’s

attestation that the stationary source complies with each Risk Management Program requirement. 

Data elements for which the last review or revision dates are being replaced include:

 For Program 2 and Program 3: safety information, operating procedures, training 

programs, maintenance procedures, changes triggering review of any of the 

previous data elements or the hazard review/PHA; 

 For Program 3 only: management of changeMOC, pre-startup review, employee 

participation plans, hot work permit procedures, contractor safety procedures and 

performance; and,
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 For sources with Emergency Response Programs: emergency response plans and 

emergency response training of employees. 

EPA will still require the date of the most recent hazard review or PHA or their update 

(required every 5 years), date of most recent compliance audit (required every 3 years), and date 

of most recent incident investigation (required only when an incident occurs). These data 

elements are not updated as frequently as the other program elements, and are therefore more 

likely to indicate current compliance with regulatory requirements. 

C. Additions to Subpart G

In addition to removing and revising several RMP data elements, EPA is proposing to 

add several RMP data elements in Subpart subpart G based on the proposed rule requirements 

discussed in this noticedocument. This includes new data elements to address compliance with:

 Third-party audit requirements, 

 Root cause analysis requirements as part of incident investigations;

 IST analysis requirements in the PHA;

 Emergency response preparedness requirements including information on local 

coordination and emergency response exercises; and 

 Information sharing provisions.

By adding these data elements to the RMP requirements in Subpart subpart G EPA will 

be able to evaluate a stationary source’s compliance with these proposed rule requirements once 

they are finalized. 

D. Proposed Amendments and Technical Corrections

1. Proposed Revisions to § 68.160 (Registration)

EPA is proposing to delete and reserve:
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 § 68.160(b)(13) - The date of the last safety inspection of the stationary source by a 

Federal, state, or local government agency and the identity of the inspecting agency; 

and

 § 68.160(b)(19) - OSHA Voluntary Protection Program status (Optional).

EPA is proposing to revise:

 § 68.160(b)(1) by removing the method for obtaining latitude and longitude (but keep 

the rest of § 68.160(b)(1));

 § 68.160(b)(4) by requiring an email address for the owner or operator, if that person 

has an e-mail address, rather than making it optional;

 § 68.160(b)(5) by removing “position” and requiring an email address for the person 

with overall responsibility for RMP elements and implementation, if that person has 

an e-mail address (rather than making it optional);

 § 68.160(b)(9) by adding “equivalent” to clarify that the number of full-time 

employees means full-time equivalent employees to be consistent with

RMP*eSubmit;

 § 68.160(b)(12) by adding the phrase “and if so” to clarify that if the stationary 

source has a CAA Title V operating permit, then the RMP plan must include the 

permit number;

 § 68.160(b)(14) by requiring an email address for the contractor who prepared the 

RMP (if any), if the contractor has an e-mail address;

 § 68.160(b)(15) by requiring an email address for the source or parent company, if 

the source or parent company has an e-mail address;

 § 68.160(b)(16) by requiring a source internet address, if the source has an internet 

address;
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 § 68.160(b)(17) by requiring a phone number at the source for public inquiries, if the 

source has a public inquiries phone number; 

 § 68.160(b)(18) by requiring the name, phone number, e-mail address, and internet 

address for the LEPC, if the LEPC has such information available; and

 § 68.160(b)(20) by changing facility to stationary source in subparagraphs (b)(20)(ii) 

and (b)(20)(iv).

EPA is proposing to add the following RMP data elements that relate to the information 

sharing provisions being proposed in this noticedocument:

 § 68.160(b)(21) would require an attestation that chemical hazard-related information 

is available to the LEPC or emergency response officials, as set forth in § 68.205;

 § 68.160(b)(22) would require an attestation that chemical hazard-related information 

is available to the public, as set forth in § 68.210; and

 § 68.160(b)(23) would require the date of most recent public meeting, as set forth in 

§ 68.210(d).

2. Proposed Revisions to § 68.170 (Prevention Program/Program 2)

EPA is proposing to delete the requirement in § 68.170(k) which identify the date of the 

most recent change that triggered a review or revision of safety information, the hazard review, 

operating or maintenance procedures, or training.

EPA is proposing to revise:

 § 68.170(a) by changing the reference to paragraph (k) to paragraph (j) because we 

are proposing to delete paragraph (k). 

 § 68.170(d) by reorganizing into subparagraphs (d)(1) and (d)(2). EPA is proposing 

to replace the date of the most recent review or revision of the safety information 

with an attestation that the safety information requirements, in § 68.48, are 

implemented. EPA is also proposing to move the requirement to list all Federal and 
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state regulations, industry specific and established company or stationary source 

design codes and standards that are applicable, and the requirement to identify those 

followed, into subparagraph (d)(2).

 § 68.170(e) by reorganizing the date of completion of the most recent hazard review 

or hazard review update to § 68.170(e)(1) and removing from § 68.170(e)(1), the 

requirement to identify an expected date of completion of any changes resulting from 

the hazard review;

 § 68.170(f) by replacing the date of the most recent review or revision of operating 

procedures with an attestation that the operating procedures requirements, in § 68.52, 

are implemented;

 § 68.170(g) by replacing the date of the most recent review or revision of training 

programs with an attestation that training requirements, in § 68.54, are implemented. 

EPA is also proposing to delete the requirements to identify the types of training 

provided and competency testing used in subparagraphs (g)(1) and (g)(2);

 § 68.170(h) by replacing the date of the most recent review or revision of 

maintenance procedures and the date of the most recent equipment inspection or test 

and the equipment inspected or tested with an attestation that the maintenance 

requirements, in § 68.56, are implemented;

 § 68.170(i) by reorganizing into subparagraphs. EPA would add an attestation that 

the compliance audit requirements of § 68.58 are implemented in subparagraph (i)(1) 

and move the requirement to identify the date of the most recent compliance audit to 

subparagraph (i)(2). EPA would remove the requirement to identify the date of 

completion of any changes resulting from the compliance audit; and, in subparagraph 

(i)(3), add a requirement that the owner or operator identify whether the most recent 

compliance audit was a third-party audit, pursuant to §§ 68.58 and 68.59; and 
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 § 68.170(j) by reorganizing into subparagraphs. EPA would add an attestation that 

the incident investigation requirements, in § 68.60, are implemented in subparagraph 

(j)(1) and move the date of the most recent incident investigation into subparagraph 

(j)(2). EPA would delete the requirement to identify the expected date of completion 

of any changes resulting from the investigation, and, in subparagraph (j)(3), would 

add a requirement that the plan indicate whether root cause analyses have been 

completed for all accidents and incidents that are subject to the requirements of §

68.60.

3. Proposed Revisions to § 68.175 (Prevention Program/Program 3)

EPA is proposing to delete paragraph § 68.175(p) because we are addressing the data 

elements for contractor safety procedures in paragraph (o).

EPA is proposing to revise the following provisions:

 § 68.175(a) by changing the reference to paragraph (p) to paragraph (o) because we 

are proposing to combine the data elements in paragraphs (p) and (o) that show 

compliance with the requirements for contractor safety procedures. 

 § 68.175(d) by reorganizing into subparagraphs (d)(1) and (d)(2). EPA is proposing 

to replace the date of the most recent review or revision of the safety information 

with an attestation that the PSI requirements, in § 68.65, are implemented. EPA is 

also proposing to move the requirement to list all Federal and state regulations, 

industry-specific and established company or stationary source design codes and 

standards that are applicable, and the requirement to identify those followed, into

subparagraph (d)(2);

 § 68.175(e) by reorganizing existing requirements into subparagraphs (e)(1) and 

(e)(2) and adding new requirements addressing safer technology and alternatives in 

new subparagraph (e)(2). Subparagraph (e)(1) would apply to information on the 
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PHA or PHA update and revalidation information. EPA would move the date of 

completion of the most recent PHA or update and require the plan identify the 

technique used to § 68.170(e)(1)(i). EPA would delete the requirement to identify the 

expected date of completion of any changes resulting from the PHA. Additional PHA 

information would move to subparagraph (e)(1)(ii) through- (vi). EPA would add

subparagraph (e)(2) to address requirements for safer alternatives including: an 

attestation that the PHA address safer technology and risk management measures, as 

required in § 68.67(c)(8); whether any IST or ISD were implemented and if so, the 

technology category that describes the IST or ISD (i.e., substitution, minimization, 

simplification, and/or moderation);

 § 68.175(f) by replacing the date of the most recent review or revision of operating 

procedures with an attestation that the operating procedures requirements, in § 68.69, 

are implemented;

 § 68.175(g) by replacing the date of the most recent review or revision of training 

programs with an attestation that training requirements, in § 68.71, are implemented.

EPA is also proposing to delete the requirements to identify the types of training 

provided and competency testing used in subparagraphs (g)(1) and (g)(2);

 § 68.175(h) by replacing the date of the most recent review or revision of 

maintenance procedures and the date of the most recent equipment inspection or test 

and the equipment inspected or tested with an attestation that the mechanical integrity 

requirements, in § 68.73, are implemented;

 § 68.175(i) by replacing the date of the most recent change that triggered 

management of changeMOC procedures and the date of the most recent review or 

revision of management of changeMOC procedures with an attestation that the 

management of changeMOC requirements, in § 68.75, are implemented;
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 § 68.175(j) by replacing the date of the most recent pre-startup review with an 

attestation that the pre-startup review requirement, in § 68.77, are implemented;

 § 68.175(k) by reorganizing into subparagraphs. EPA would add an attestation that

the compliance audit requirements of § 68.79 are implemented in subparagraph (k)(1)

and move the requirement to identify the date of the most recent compliance audit to 

subparagraph (k)(2). EPA would remove the requirement to identify the expected 

date of completion of any changes resulting from the compliance audit; and, in 

subparagraph (k)(3), add a requirement that the owner or operator identify whether 

the most recent compliance audit was a third-party audit, pursuant to §§ 68.79 and 

68.80;

 § 68.175(l) by reorganizing into subparagraphs. EPA would add an attestation that 

the incident investigation requirements, in § 68.81, are implemented in subparagraph 

(l)(1) and move the date of the most recent incident investigation into subparagraph 

(l)(2). EPA would delete the requirement to identify the expected date of completion 

of any changes resulting from the investigation; and, in subparagraph (l)(3), would 

add a requirement that the plan indicate whether root cause analyses have been 

completed for all accidents and incidents that are subject to the requirements of §

68.81;

 § 68.175(m) by replacing the date of the most recent review or revision of employee 

participation plans with an attestation that employee participation requirements, §

68.83, are implemented;

 § 68.175(n) by replacing the date of the most recent review or revision of hot work 

permit procedures with an attestation that the hot work permit requirements, in §

68.85, are implemented; and
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 §§ 68.175(o) and 68.175(p) by replacing the date of the most recent review or 

revision of contractor safety procedures and the date of the most recent evaluation of 

contractor safety performance with an attestation in § 68.175(o) that the contractor 

safety requirements, in § 68.67, are implemented.

4. Proposed Revisions to § 68.180 (Emergency Response Program)

Subpart G § 68.180 contains the emergency response program data elements that must be 

included in the RMP. Although the data elements in § 68.180 are intended to help identify 

whether stationary source personnel will respond to an accidental release of a regulated 

substance, the existing data elements do not clearly distinguish between responding stationary 

sources and non-responding stationary sources. As a result, many non-responding stationary 

sources are submitting RMPs to the EPA with errors, because they appear to be answering 

questions that were only meant to be answered by responding sources. Consequently, the RMP

data do not indicate with certainty, whether a stationary source is a responding or non-responding 

stationary source.

The proposed revisions to add emergency response exercises and revise local

coordination provisions of the rule are intended to improve coordination with local response 

authorities and to bolster emergency response capabilities and preparedness for accidental

releases. Because of the proposed regulatory changes to subpart E- emergency response, and due 

to the difficulty in distinguishing between responding and non-responding facilities in Subpart 

subpart G § 68.180, the EPA is proposing to completely revise and reorganize Subpart subpart G 

§ 68.180 into the following three parts: requirements for (1) all non-responding and responding 

stationary sources, (2) non-responding stationary sources, and (3) responding stationary sources. 

The EPA believes that splitting Subpart subpart G § 68.180 into three parts will aid facilities’ 

understanding of the reporting requirements, reduce errors in submitted RMPs, and improve 

compliance with the RMP requirements. The proposed revisions to Subpart subpart G § 68.180 
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will also improve EPA’s ability to evaluate a facility’s compliance with the proposed Emergency 

Response Program requirements. 

EPA is proposing to revise:

 § 68.180(a) by deleting the phrase “the following information.” The text in 

subparagraphs (a)(1) through (a)(3) would be reorganized and/or replaced. 

Subparagraph (a)(1) would require the RMP to identify the name, organizational 

affiliation, phone number, and e-mail address of local emergency planning and 

response organizations with which the stationary source last coordinated emergency 

response efforts, pursuant to § 68.10(b)(3) or § 68.93. Subparagraph (a)(2) would 

require the RMP to identify whether coordination with the local emergency response 

organizations is occurring at least annually, pursuant to § 68.93(a). Subparagraph 

(a)(3) would require the RMP to identify a list of Federal or state emergency plan 

requirements to which the stationary source is subject. EPA would delete 

subparagraphs (a)(4) through (a)(6);

 § 68.180(b) by replacing the current text with a requirement to identify whether the 

facility is a responding or non-responding stationary source, pursuant to § 68.90. 

EPA would reorganize the paragraph into subparagraphs as follows:

o Subparagraph (b)(1) would apply to non-responding stationary sources. In 

subparagraphs (b)(1)(i) through (b)(1)(iii) the owner or operator would be 

required to identify whether the owner or operator has confirmed that local 

responders are capable of responding to accidental releases at the source, whether 

appropriate notification mechanisms are in place, and whether a notification 

exercise occurs at least annually.

o Subparagraph (b)(2) would apply to responding stationary sources. In 

subparagraphs (b)(2)(i) through (b)(2)(v) the owner or operator would be 

required to identify whether the LEPC or local response entity requested that the 
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stationary source be a responding facility; whether the stationary source complies 

with requirements in § 68.95; whether a notification exercises occurs at least 

annually, as required in § 68.96(a); whether a field exercise is conducted every 

five years and after any RMP reportable accidental release, pursuant to §

68.96(b)(1)(i); and whether a tabletop exercise occurs at least annually, except 

during the calendar year when a field exercise is conducted, as required in §

68.96(b)(2)(i). 

EPA is proposing to delete § 68.180(c), which requires the owner or operator to list other 

Federal or state emergency plan requirements to which the stationary source is subject. 

5. Technical Corrections

a. Proposed revisions to § 68.10 (Applicability)

EPA is proposing to correct a typographical error in § 68.10(b)(2). Section 68.10(b)(2) 

uses the term public receptor and indicates that public receptor is defined in § 68.30; however the 

term public receptor is defined in § 68.3, not § 68.30. The proposed rule language corrects this 

typographical error.

b. Proposed revisions to § 68.48 (Safety information)

EPA is proposing to remove the word “material” from the term Material Safety Data 

Sheet in § 68.48(a)(1) to conform with OSHA’s revised terminology for SDS. In 2012, OSHA

made changes to its Hazard Communication Standard at 29 CFR 1910.1200 in order to align with 

the UN Globally Harmonized System of Classification and Labelling of Chemicals (GHS), 

Revision 3 (77 FR 17574, March 26, 2012). One change was the change in nomenclature from 

“Material Safety Data Sheets” to “Safety Data Sheets.” Consequently, OSHA made this change to 

the PSM standard at 1910.119(d)(1)(vii) (78 FR 9311, February 8, 2013). Chemical producers 

and users must comply with new SDS requirements by June 1, 2015.207 In order to be consistent 

 

207

 OSHA Fact Sheet- Hazard Communication Standard Final Rule.

https://www.osha.gov/dsg/hazcom/HCSFactsheet.html.
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with OSHA and the UN GHS, EPA is proposing to replace “Material Safety Data Sheet” with 

“Safety Data Sheet” in § 68.48(a)(1).

c. Proposed revisions to §§ 68.54 and 68.71 (Training)

The RMP rule requires initial and refresher training for employees operating a Program 2 

or Program 3 covered process. Since the inception of the rule, however, there has been confusion 

on the types of employees that are considered workers operating a covered process. Although 

“employee” is not defined in § 68.3, EPA has traditionally interpreted an employee to be any 

worker that is involved in operating a process, including supervisors. This is consistent with the 

OSHA definition of employee set forth at 29 CFR 1910.2(d) in which an employee means an 

employee of an employer who is employed in a business of his employer which affects 

commerce. 

EPA has noted during facility inspections that some owners and operators are confused 

about how the existing training requirements apply to supervisors involved in process operations.

If a supervisor is involved in decision-making for process operations, such as making changes to 

operating parameters, developing or approving operating procedures, or conducting emergency 

operations, then EPA expects that the supervisor receives initial and refresher training appropriate 

to the supervisor’s responsibilities. In such cases, the training of a supervisor might not need to be 

as extensive as that of an operator, but EPA expects that the supervisor training would include 

process operations for which the supervisor might have decision-making authority. For this 

reason, EPA is proposing to clarify that the training requirements in §§ 68.54 and 68.71 (for 

Program 2 and Program 3 facilities, respectively) apply to supervisors who are involved in 

operating a covered process by adding paragraph (e) to indicate that the term employee includes 

supervisors.

Similarly, the EPA realizes that there may be other employee types involved in operating 

a covered process besides operators. For example, process engineers and maintenance technicians 

may occasionally be involved in process operations. The degree of involvement for these other 

Commented [A320]: Edits to address Federal Register reviewQuoting regulatory text is unacceptable, please fix and please fix 

any other text you have quoted in this document.
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employee types may vary greatly. Therefore, EPA is proposing to revise § 68.54(d) to clarify that 

the requirement applies to employees involved in operating a process. For employees other than 

operators and supervisors, EPA expects that initial and refresher training will be appropriate to 

the employee’s responsibilities in operating the process. 

Finally, EPA believes that Program 3 requirements in §§ 68.71(a) and 68.71(b) provides 

clearer regulatory language regarding the applicability of employees subject to initial and 

refresher training requirements than the similar Program 2 requirements §§ 68.54(a) and 68.54(b). 

Specifically, §§ 68.71(a) and 68.71(b) indicates that initial and refresher training is required for 

employees “involved in” operating a covered process. Because EPA believes that this language 

can better facilitate compliance for Program 2, the EPA is proposing to add similar language for 

Program 2 facilities at §§ 68.54(a) and 68.54(b). 

d. Proposed revisions to § 68.65 (PSI)

EPA is proposing to revise § 68.65(a) in order to remove irrelevant text regarding the 

timeframe for initial development of PSI and to more clearly demonstrate that PSI must be kept 

up-to-date. The EPA believes that these proposed changes will help Program 3 facilities to better 

comply with PSI requirements.

EPA is proposing to revise § 68.65(a) to remove the phrase “In accordance with the 

schedule set forth in § 68.67.” This language appears to have been adopted from OSHA’s PSM 

PHA completion schedule of May 1994 to May 1997 and is not relevant to the RMP rule because 

the compliance date of June 21, 1999 is after OSHA’s PSM PHA completion schedule. 

Additionally, the only schedule currently referenced in § 68.67 is in § 68.67(e), which pertains to 

a written schedule of PHA corrective actions. Because § 68.67(e) does not pertain to when a PHA 

must be completed, EPA is proposing to remove the phrase “In accordance with the schedule set 

forth in § 68.67” from § 68.65(a). 

Furthermore, EPA is proposing to add the phrase: “and shall keep PSI up-to-date.” EPA 

has always intended that PSI be kept up-to-date for Program 3 facilities. Updated PSI is necessary 
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to properly update or revalidate the PHA every 5 years as required by § 68.67(f). PSI items that 

that need to be kept up-to-date include, but are not limited to, piping and instrumentation 

diagrams, SDSs, hazard information, and changes to the design of the process. Although PSI must

be updated for Program 3 facilities through management of changeMOC requirements in §

68.75(d), EPA believes that the proposed change makes it clearer that PSI must be kept up-todate. This proposed change also ensures consistency with the safety information requirement for

Program 2 facilities, where § 68.48(a) indicates “The owner or operator shall compile and 

maintain the following up-to-date safety information...” EPA expects that revising § 68.65(a) in 

this manner will further clarify the requirement that PSI must be completed prior to conducting a 

PHA.

Finally, in order to be consistent with OSHA and the GHS, EPA is proposing to replace 

“Material Safety Data Sheet” with “Safety Data Sheet” in the note to § 68.65(b). EPA is also 

proposing to remove the phrase “at least the following” in § 68.65(b) because it is unnecessary. 

e. Proposed revisions to § 68.130 List of substances

EPA is proposing revisions to Tables 1, 2, and 4 in § 68.130 as follows:

Table 1 to § 68.130- List of Regulated Toxic Substances and TQs for Accidental Release 

Prevention. EPA is proposing to correct a typographical error in the chemical Chemical abstracts 

Abstracts service Service (CAS) number (no.) for allyl alcohol in Table 1 in § 68.130. The 

incorrect CAS no. of 107-18-61 for allyl alcohol would be corrected to 107-18-6. 

Table 2 to § 68.130, List of Regulated Toxic Substances and TQs for Accidental Release 

Prevention. In order to make the list of CAS nos. easier to search, EPA is proposing to rightjustify the column of CAS nos. in Table 2 in §68.130. This will match the alignment of the CAS 

nos. in other tables in § 68.130.

Table 4 to § 68.130-List of Regulated Flammable Substances and TQs for Accidental 

Release Prevention. EPA is proposing to correct a typographical error to the CAS no. for 1, 3-

Commented [A321]: Change incorporated to address IA 

Comment #111.
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Butadiene, to read 106-99-0, instead of 196-99-0.a CAS no., right justify the first CAS nos. 

column and delete the second CAS nos. column because it is redundant. 

Table 4 in § 68.130 currently has two columns with CAS nos. In the left column of CAS 

nos., EPA is proposing to correct the CAS no. for 1, 3-Butadiene, to read 106-99-0, instead of 

196-99-0. In addition, we are proposing to right-justify the left column of CAS nos. in Table 4 to 

make it easier for users to read and find the CAS no. associated with a particular regulated 

substance. EPA is also proposing to remove the second column of CAS nos. (i.e., the CAS nos. 

column that appears after the chemical name column) because it is redundant.

f. Proposed revisions to § 68.200 (Recordkeeping)

EPA is proposing to revise § 68.200 to clarify that records must be maintained at the 

stationary source. 

VIII. Compliance Dates

The initial Risk Management Program rule applied 3 years after promulgation of the rule 

on June 20, 1996, which is consistent with the last sentence of CAA section 112(r)(7)(B)(i). The 

provisions of this proposal modify terms of the existing rule, and, in some cases, simply clarify 

existing requirements. The statute does not directly address when amendments should become 

applicable. Therefore, in modifications to § 68.10, EPA is proposing to:

 Require compliance with emergency response coordination activities within one year 

of an effective date of a final rule; 

 Provide up to three years for the owner or operator of a non-responding stationary 

source to develop an emergency response program in accordance with § 68.95 

following an LEPC or equivalent’s written request to do so; 

 Comply with new provisions, unless otherwise stated, four years after the effective 

date of the final rule; and 

Commented [A322]: IA Comment #96 Page 157, Compliance 

Dates, Recommend removing either “simplify” or “clarify” in the 

following sentence. “The provisions of this proposal modify terms 

of the existing rule, and, in some cases, simply clarify existing 

requirements.”

Commented [A323R322]: Change incorporated. The reader 

ay have read the word simply as simplify. Removed the word 

simply.
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 Provide regulated sources one additional year (i.e., five years after the effective date 

of the final rule) to correct or resubmit RMPs to reflect new and revised data 

elements. 

EPA is proposing that within one year of the effective date of a final rule, the owner or 

operator of a stationary source comply with emergency response coordination activities in §§

68.93(a) and 68.93(b). This includes coordinating response needs annually with local emergency 

planning and response organizations to ensure resources and capabilities are in place to respond 

to an accidental release of a regulated substance, and documenting coordination activities. EPA 

believes one year is sufficient to arrange for and document coordination activities. The 

coordination activities in this proposed rule mostly are clarifications of current requirements 

rather than new provisions.

EPA is also proposing to require three years for the owner or operator of a stationary 

source to comply with emergency response program requirements of § 68.95 after receiving a 

written request by an LEPC or equivalent to develop an emergency response program. This 

timeframe is consistent with the time established in the original rule to comply with risk 

management program requirements and submit initial RMPs. 

Additionally, EPA is proposing to provide additional time for compliance with other 

proposed provisions (i.e., third-party compliance audits, root cause analyses as part of incident 

investigations, STAA, emergency response exercises, and information availability provisions). 

For these provisions, the proposed rule requires affected facilities to comply by four years after 

the effective date of the rule. Our reasons for the four year phase for these modified requirements 

are set out below. For the third-party audit, and incident investigation root cause analysis, and 

public meeting provisions, this means that for any RMP reportable accident occurring later than 

four years after the effective date of the rule, the owner or operator of a source must conduct a 

third-party audit; investigate an incident, including a root cause analysis; and hold a public 

meeting within 30 days of the accident. For any incident that could reasonably have resulted in a 
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catastrophic release (near miss), the owner or operator has four years after the effective date of 

the rule to comply with the proposed incident investigation root cause analysis requirements. For 

the STAA, emergency exercise, and information availability provisions, this means that the 

owner or operator must have completed or updated their PHA to include the STAA, ; conducted a 

notification exercise and at least one tabletop or field exercise, ; and prepared completed the 

initial calendar year submission ofthe required information to be provided to the public or, upon 

request, to the LEPCs and the public, and held at least one public meeting by four years after the 

effective date of the rule. 

EPA is proposing to provide this additional time for several reasons. First, EPA believes 

that for most sources, the incident investigation root cause analysis and emergency response 

exercise requirements will involve training and program development activities that may 

reasonably require significant time to complete. Second, the extended compliance timeframe will 

allow potential auditors enough time to meet the competency and independence criteria necessary 

to serve as a third-party auditor. Third, for sources subject to the STAA provisions, EPA believes 

that in many cases these sources will prefer to perform a full PHA update when implementing the 

STAA requirements. Sources subject to this provision are among the largest and most complex 

sources regulated under 40 CFR part 68, and therefore PHAs and PHA updates at these sources 

typically require a significant level of effort. Since PHA updates are normally done at five year 

intervals, EPA believes it would be appropriate to allow most sources to adopt these provisions in 

their normal PHA update cycle if they so choose. Sources that performed their most recent PHA 

update immediately prior to the rule publication date would have up to four years to perform their 

next PHA update and adopt the STAA provisions. Most sources could schedule their PHA 

updates to incorporate the new STAA provisions on their normal PHA update schedule. 

Lastly, EPA intends to publish guidance for certain provisions, such as STAA, root cause 

analysis, and emergency response exercises. Once these materials are complete, owners and 

Commented [A324]: IA Comment #136 Why is 4 years needed 

for compliance with this requirement (STAA)? Has EPA considered 

a shorter deadline?

Commented [A325R324]: EPA is proposing four years to 

allow sufficient time for most facilities to conduct the STAA in 

conjunction with their normal PHA revalidation cycle which occurs 

every five years.
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operators will need time to familiarize themselves with the new materials and incorporate them 

into their risk management programs.

EPA is also proposing to provide one additional year for owners or operators to update 

RMPs to reflect proposed new or revised data elements in Subpart subpart G of the rule. The 

additional year will allow owners and operators an opportunity to begin to comply with revised 

rule provisions prior to certifying compliance in the RMP. Additionally, the Agency will need to 

make significant revisions to its online RMP submission system, RMP*eSubmit, to accommodate 

the newly required and revised data elements, and sources will not be able to update RMPs with 

new or revised data elements until the submission system is ready. Also, once it is ready, 

allowing an additional year for sources to update RMPs will prevent potential problems with 

thousands of sources submitting updated RMPs on the same day.

Examples for compliance and submission dates.

The following examples assume a hypothetical effective date of June 5, 2017 for a final 

rule that includes the proposed provisions in Table 7: Proposed Rule Provisions and 

Corresponding Compliance Dates with corresponding proposed compliance dates.

Table 7: Proposed Rule Provisions and Corresponding Compliance Dates

Rule provision Proposed Compliance 

Date

Hypothetical 

Compliance Date

Initiated after an 

RMP Reportable 

Accident?

Third-party audit Four years after effective 

date June 5, 2021 Yes

Root cause 

analysis 

Four years after effective 

date June 5, 2021 Yes (also required after near misses)

STAA Four years after effective 

date June 5, 2021 No

Emergency 

response 

coordination 

activities

Within one year of 

effective date June 5, 2018 No

LEPC requires 

compliance with §

68.95 (emergency 

response program) 

Within three years of 

receipt of written request N/A No
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Emergency 

response exercises

Four years after effective 

date June 5, 2021

Partially- field 

exercise within one

year

Information 

sharing

Four years after effective 

date June 5, 2021

Partially- public 

meeting within 30 

days

Update RMP Five years after effective 

date June 5, 2022

No (but previously 

existing correction 

requirements of §

68.195 still apply)

Example 1: Proposed provisions that would apply to a non-responding stationary source

Source A (see Table 8) is a non-responding stationary source with a regulated process 

subject to Program 2 requirements. Source A’s owner submitted the latest RMP update to EPA on 

January 20, 2015 and completed its latest compliance audit on August 11, 2017. The source is 

not in NAICS 322, 324, or 325, and therefore is not subject to the proposed STAA provisions. 

The source has not had any RMP reportable accidents since the effective date of a final rule.

Table 8: Example 1, Source A

Source A—Program 2, Non-responding Stationary Source

Date of Last RMP Update Last compliance audit Last accident 

January 20, 2015 August 11, 2017 N/A

In this example, the following proposed provisions would apply:

 Annual emergency response coordination activities in accordance with proposed §

68.93;

 Notification exercises (proposed § 68.96(a)); and

 Information availability provisions (proposed §§ 68.205 and 68.210).

The owner or operator must coordinate response needs with local emergency planning 

and response organizations to ensure resources and capabilities are in place to respond to an 

accidental release of a regulated substance. Coordination activities must occur annually and be 

documented.
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Source A is a non-responding facility, and the owner or operator would be required to 

conduct annual notification exercises. The owner or operator would also be required to annually 

provide update information to for the LEPC and provide the information upon request, and make 

certain information easily accessible to the public. A public meeting would be scheduled once 

every five-years to discuss chemical hazard information at the facility. 

Finally, beginning 5 years after the rule effective date, the owner or operator must update 

the RMP to include all revised data elements specified in subpart G and § 68.42. In this case, the 

owner or operator would update their RMP no later than January 20, 2020 (the source's next 

scheduled five-year update), and again by June 5, 2022 (the required resubmission date for the 

proposed rule).

Table 9: Summary of proposed provisions that would apply to a non-responding 

stationary source summarizes the proposed provisions that would apply to Source A.

Table 9: Summary of proposed provisions that would apply to a non-responding stationary

source

Applicable 

Provisions: Timeframe Additional Information When to Complete*

Emergency response 

coordination 

activities

Within one year of 

effective date of a 

final rule. 

Occurs annually

Complete coordination 

activities before June 5, 

2018 and document 

coordination

Notification exercise

By four-years 

after effective 

date.

Occurs annually

Complete first 

notification exercise by

June 5, 2021

Information availability provisions

Information to LEPC

By four-years 

after effective 

date.

Occurs Update 

information annually. 

Includes information 

on regulated 

substances; accident 

histories; compliance 

audits; incident 

investigations (as 

applicable) and 

exercises. Provide to 

LEPC upon request.

Complete first calendar 

year 

submissionDevelop by 

June 5, 2021 and 

provide upon request

Information to the 

public

By four-years 

after effective 

date.

Occurs annually. 

Includes information 

on: regulated 

Complete first calendar 

year submission by June 

5, 2021

Commented [A326]: IA v.4 Comment D Page 107 and Later: 

Tables 9, 11 And 17

In the “when to complete column” for the LEPC information – EPA 

writes “Develop by June 5, 2021 and provide upon request” 

Suggest revision to “Provide upon request on June 5, 2021 or 

later” This information should not be required until it is 

requested.

However, if EPA goes with the annual updating – then it would 

say Complete on “June 5, 2021 and annually thereafter”

Incidentally – I don’t recommend that EPA use “June 5” as a 

compliance date. Should be June 1 or something else that can be 

remembered.

Commented [A327R326]: These examples are intended to 

demonstrate the current rule requirements, which include 

developing summaries annually and then providing upon request. 

EPA is asking for comment on this approach in the section on LEPC 

information availability.

Furthermore, the June 5th date is a hypothetical date based on the 

example scenario which includes a rule effective date of June 5th

(see footnote to table). 

Formatted Table
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substances including 

Safety Data Sheets; 

accident history; 

emergency response 

program; exercises; 

and LEPC contact 

information.

Public meeting

By four-years 

after effective 

date.

Once every five years. 

Also required within 

30 days of an RMP 

reportable accident

Complete initial public 

meeting by June 5, 2021

Update RMP By five years after 

effective date

Owner’s next 5-year 

resubmission date 

occurs prior to 

effective date for 

provision, so owner 

must update RMP 

twice.

Update RMP on regular 

schedule (by January 

20, 2020) and again to 

include new information 

by June 5, 2022

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

If the LEPC submits a request to Source A’s owner requesting the source comply with 

the emergency response program requirements of § 68.95, then Source A’s owner would have 

three years from the date of the letter to develop and implement an emergency response plan, 

obtain equipment, and train personnel in relevant procedures. 

Once the owner has developed an emergency response program, the source is a 

responding facility and must also comply with tabletop and field exercise requirements for 

responding facilities. 

Example 2A: Proposed provisions that would apply to a responding stationary source

Source B (see Table 10) is a responding stationary source with a process subject to 

Program 3 requirements. Its latest RMP update was submitted June 30, 2020 (i.e., three years 

after the rule effective date). Its latest compliance audit was performed on April 6, 2020. The 

source is not in NAICS 322, 324, or 325, and therefore is not subject to the proposed STAA

provisions, and the source has not had any RMP reportable accidents since the effective date of a 

final rule.

Table 10: Example 2A, Source B

Source B—Program 3, Responding Stationary Source

Date of Last RMP Update Last compliance audit Last accident 
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June 30, 2020 April 6, 2020 N/A

In this example, the following proposed provisions would apply:

 Annual emergency response coordination activities in accordance with proposed § 68.93;

 Emergency response exercises (proposed § 68.96); and

 Information availability provisions (proposed §§ 68.205 and 68.210).

The owner or operator must coordinate response needs with local emergency planning 

and response organizations to ensure resources and capabilities are in place to respond to an 

accidental release of a regulated substance. Coordination activities must occur annually and be 

documented.

Additionally, since Source B is a responding facility, the owner or operator would be 

required to conduct annual notification exercises, annual tabletop exercises (with a field exercise 

substituting for a tabletop exercise once every five years).

The owner or operator would be required to update information annually and provide the 

infromation upon request, information to the LEPC and make information easily accessible to the 

public. A public meeting would be scheduled once every five-years to discuss chemical hazard 

information at the facility. 

Finally, by five years after the rule effective date, the owner or operator must update the 

RMP to include all revised data elements specified in subpart G and § 68.42. Table 11: Summary 

of proposed provisions that would apply to Source B summarizes the proposed provisions that 

would apply to Source B.

Table 11: Summary of proposed provisions that would apply to Source B

Applicable 

Provisions: Timeframe Additional Information When to Complete*

Emergency response 

coordination activities

Within one year of 

effective date of a 

final rule. 

Occurs annually

Complete coordination 

activities before June 

5, 2018

Emergency response exercises (proposed § 68.96)
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Notification exercise Four-years after 

effective date. Occurs annually

Complete first 

notification exercise by

June 5, 2021

Field and tabletop 

exercises

Four-years after 

effective date.

Tabletop exercise 

annually, field 

exercise once every 

five years. No tabletop 

exercises in the year of 

a field exercise

Complete first tabletop 

or field exercise by 

June 5, 2021

Information availability provisions

Information to LEPC Four-years after 

effective date.

Occurs Update 

information annually. 

Includes information 

on regulated 

substances; accident 

histories; compliance 

audits; incident 

investigations (as 

applicable) and 

exercises. Provide to 

LEPC upon request.

Complete first calendar 

year 

submissionDevelop by 

June 5, 2021 and 

provide upon request

Information to the 

public

Four-years after 

effective date.

Occurs annually. 

Includes information 

on: regulated 

substances including 

Safety Data Sheets; 

accident history; 

emergency response 

program; exercises; 

and LEPC contact 

information.

Complete first calendar 

year submission by 

June 5, 2021

Public meeting Four-years after 

effective date.

Once every five years. 

Also required within 

30 days of an RMP 

reportable accident

Complete initial public 

meeting by June 5, 

2021

Update RMP By five years after

effective date

Update RMP to 

include new

information by June 5, 

2022

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

Example 2B: Additional proposed provisions that would apply to a responding stationary 

following an RMP reportable accident. See Table 12 below.

Table 12: Example 2B, Source B

Source B—Program 3, Responding Stationary Source

Date of Last RMP Update Last compliance audit Last accident 

June 30, 2020 April 6, 2020 July 5, 2021
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In this example, Source B has an accidental release on July 5, 2021 that meets the 

reporting requirements of § 68.42. As a result of the accident, Source B’s owner would be 

required to comply with the following additional proposed provisions:

 Accident history provisions of § 68.42 (to report root causes identified during the 

incident investigation); 

 Third-party audit provisions of § 68.80; 

 Incident investigation and root cause analysis requirements of § 68.81; 

 Field exercise provisions of § 68.96(b)(1)(i) (i.e., requiring a field exercise within 

one year of any accidental release required to be reported under § 68.42); and 

 Public meeting within 30 days of an RMP reportable accident, pursuant to §

68.210(d)(2). 

Chronologically, the first provision that would apply is the requirement to host a public 

meeting. Section 68.210(d)(2) requires the owner or operator to hold a public meeting within 30 

days after the accident to inform the public about the accident, including information required 

under § 68.42, and other relevant information. 

An incident investigation must be initiated promptly, but no later than 48 hours following 

an incident. The proposed incident investigation provisions would require the owner or operator 

to complete an incident investigation that includes a root cause analysis and other elements 

specified in § 68.81(d), and an incident investigation report, within 12 months of the incident, 

unless the implementing agency approves an extension of time. A summary of the incident 

investigation report must be provided to the LEPC, upon request.

The proposed third-party audit provisions would require the owner or operator to hire a 

third-party auditor to perform a third-party compliance audit and submit an audit report to the 

implementing agency and owner or operator within 12 months of the accident (if the source’s 

next scheduled compliance audit was required sooner than one year following the incident, the 
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third-party audit would be required to be completed by the scheduled compliance audit date 

unless the implementing agency approved an extension). The owner or operator must also 

complete an audit findings response report and submit it to the implementing agency within 90 

days of receiving the audit report from the third-party auditor. The owner or operator must also 

provide the audit findings response report, as well as a schedule to address deficiencies identified 

in the audit findings response report and documentation of actions taken to address deficiencies, 

to the owner or operator’s audit committee of the Board of Directors, or other comparable 

committee, if one exists. 

The owner or operator would also be required to conduct a field exercise meeting the 

requirements of § 68.96 within one year of the accidental release, and prepare an evaluation 

report within 90 days of completing the exercise. By five years after the rule effective date, the 

owner or operator must update the RMP to include all revised data elements specified in subpart 

G and § 68.42. Table 13 summarizes the additional provisions that would apply to Source B 

following an RMP reportable accident (in addition to complying with new requirements triggered 

by an RMP reportable accident, the owner or operator must annually coordinate response needs 

with local emergency planning and response organizations, document coordination activities, and 

comply with the other information disclosure provisions as previously described).

Table 13: Summary of additional proposed provisions that would apply to Source B 

following an RMP reportable accident

Applicable Provisions 

following an RMP 

reportable accident:

Timeframe Additional Information When to Complete*

Public meeting (every 

5 years and within 30 

days after an accident)

Four-years after 

effective date.

Within 30 days after an 

accident -the five year 

interval for the next 

public meeting starts 

when a meeting takes 

place after the accident.

Hold public meeting 

by August 4, 2021

Incident investigations Four-years after 

effective date.

Initiate within 48 

hours, complete 

investigation and root 

cause analysis within 

12 months

Complete report by 

July 5, 2022
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Third-party audit Four-years after 

effective date.

Within 12 months of 

the accident or three 

years of previous audit, 

whichever is sooner

Complete third-party 

audit by July 5, 2022

Complete findings 

response report within 

90 days of completing 

audit.

Field exercise Four-years after 

effective date.

At least once every five 

years, and within one 

year of an RMP 

reportable accident 

Complete field 

exercise by July 5, 

2022

Complete an 

evaluation report 

within 90 days of the 

exercise

Include new accident 

history information in 

RMP

Five-years after 

effective date.

Correct RMP within 6 

months of accident 

(existing requirement); 

report complete 

accident information in 

next five-year RMP 

update

Correct RMP by 

January 5, 2022; report 

complete accident 

information by June 5, 

2025

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

Example 3: Compliance date example for sources subject to STAA requirements 

Source C (see Table 14) is a petroleum refinery in NAICS 32411. Its latest RMP update 

was submitted on March 31, 2018 (i.e., the year after the rule effective date). Its latest PHA 

revalidation was completed on March 7, 2017 (i.e., approximately three months before the rule 

effective date).

Table 14: Example 3, Source C

Source C—Program 3, NAICS 32411

Date of Last RMP Update Last PHA revalidation

March 31, 2018 March 7, 2017

Because the source is in NAICS 32411, it is subject to the proposed STAA provisions of 

§ 68.67(c)(8). Therefore, by four years after the rule effective date, the owner or operator must 

complete a PHA revalidation that addresses safer technology and alternative risk management 

measures, and determine the feasibility of the ISTs and ISDs considered. Under the proposed 

information availability requirements of § 68.205, the owner or operator must also submit to their 

LEPC a summary of the ISTs or ISDs implemented or planned, and annually update the summary 

as part of the calendar year submission described in § 68.205(c).

Commented [A328]: IA Comment #97 Page 168, recommend 

the following edits: “...and determine the feasibility of the safer 

technologies and alternatives ISTs and ISDs considered. Under the 

proposed information availability requirements of §68.205, the 

owner or operator must also submit to their LEPC a summary of the 

safer technologies and alternatives ISTs or ISDs implemented or 

planned, and annually update the summary as part of the calendar 

year submission described in §68.205(c).”

Commented [A329R328]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.
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By June 5, 2018 the owner or operator of Source C must comply with the new emergency 

response coordination provisions, and by June 5, 2021, the owner or operator must also comply 

with other applicable proposed rule provisions including: third-party audits; incident 

investigations; emergency response exercises; and information availability (including public 

meetings).

By five years after the rule effective date, the owner or operator of Source C must update 

the RMP to include all revised data elements specified in subpart G and § 68.42. Table 15:

Compliance date example for sources subject to STAA requirements, summarizes the proposed 

STAA provisions that would apply to Source C.

Table 15: Compliance date example for sources subject to STAA requirements

Applicable 

Provisions: Timeframe Additional Information When to Complete*

STAA Four-years after 

effective date

Occurs every five years 

as part of PHA 

revalidation. 

By June 5, 2021

Information 

availability to 

LEPC, upon request

Four-years after 

effective date

In addition to other 

information availability 

provisions, include 

information on IST or 

ISD to be implemented.

Update every five years 

as part of calendar year 

update information to

provide to LEPC upon 

request.

DevelopProvide in first 

calendar year

submission to LEPC 

after completion of 

STAA or June 5, 2021, 

whichever is later and 

provide to LEPC upon 

request.

Update RMP Five years after 

rule effective date By June 5, 2022

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017.

IX. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review 

This action is an economically significant regulatory action that was submitted to the 

Office of Management and Budget (OMB) for review. Any changes made in response to OMB 

recommendations have been documented in the docket. The EPA prepared a Regulatory Impact 

Commented [A330]: IA Comment #98 Page 168, Table 15, 

replace “IST and ISD” with “safer technologies and alternatives”.

Commented [A331R330]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.

Formatted: Indent: First line: 0"
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Analysis (RIA) of the potential costs and benefits associated with this action. This RIA is 

available in the docket and is summarized here (Docket ID Number EPA-HQ-OEM-2015-0725). 

1. Why EPA is Considering this Action

In response to catastrophic chemical facility incidents in the United States, President 

Obama issued Executive Order 13650, “Improving Chemical Facility Safety and Security,” on 

August 1, 2013. The Executive Order establishes the Chemical Facility Safety and Security 

Working Group (Working Group), co-chaired by the Secretary of Homeland Security, the 

Administrator of EPA, and the Secretary of Labor or their designated representatives at the 

Assistant Secretary level or higher, and comprised of senior representatives of other Federal 

departments, agencies, and offices. The Executive Order requires the Working Group to carry out 

a number of tasks whose overall goal is to prevent chemical accidents, such as the explosion that 

occurred at the West Fertilizer facility in West, Texas, on April 17, 2013, which killed 15 people, 

most of whom were first responders, caused multiple injuries, and resulted in extensive building 

damage to the town. 

Section 6(a)(i) of Executive Order 13650 requires the Working Group to develop options 

for improved chemical facility safety and security that identify “improvements to existing risk 

management practices through agency programs, private sector initiatives, Government guidance, 

outreach, standards, and regulations.’’ Section 6(c) of Executive Order 13650 requires the 

Administrator of EPA to review the Risk Management Program. As part of this effort to solicit 

comments and information from the public regarding potential changes to EPA’s RMP 

regulations (40 CFR part 68), on July 31, 2014, EPA published an RFI (79 FR 44604). 

EPA believes that the RMP regulations have been effective in preventing and mitigating 

chemical accidents in the United States; however, EPA is proposingbelieves that revisions in 

order tocould further protect human health and the environment from chemical hazards through 

advancement of process safety managementPSM based on lessons learned. These revisions are a 

result of a review of the existing Risk Management Program and information gathered from the 

Commented [A332]: IA Comment #99 Page 170, 

recommended edits: “EPA believes that the RMP regulations have 

been effective in preventing and mitigating chemical accidents in 

the United States; however, EPA is proposing believes that revisions 

could in order to further protect human health and the 

environment from chemical hazards through advancement of 

process safety management based on lessons learned.

Commented [A333R332]: Changes incorporated.
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RFI and Executive Order listening sessions, and are proposed under the statutory authority 

provided by CAA section 112(r) as amended (42 U.S.C. 7412(r)).

2. Description of Alternatives to the Proposed Rule

The RIA analyzed the proposed new requirements and revisions to existing requirements 

as well as several alternatives for each.

Third-Party Audits—(proposed revisions apply to existing §§ 68.58 and 68.79 and new §§ 68.59 

and 68.80)

The existing rule requires Program 2 and Program 3 processes to conduct a compliance 

audit at least once every 3 years. The proposed rule would require facilities to contract with an 

independent third-party to conduct the next scheduled compliance audit following an RMP 

reportable accident or after an implementing agency determines that certain circumstances exist 

that suggest a heightened risk for an accident. The third-party would have to be someone with 

whom the facility does not have an existing or recent relationship and who meets specific 

qualification criteria. The low cost alternative would apply only for Program 2 and Program 3 

processes after an RMP reportable accident or at the request of the implementing agency. The 

medium cost alternative would apply every three years for all compliance audits conducted for all 

Program 3 processes. The high cost alternative would apply every three years for all compliance 

audits conducted for Program 2 and Program 3 processes.

Root Cause Analysis—(proposed revisions apply to §§ 68.60 and 68.81)

The proposed rule would require facilities to conduct a root cause analysis as part of an 

incident investigation following an RMP reportable accident or an incident that could reasonably 

have resulted in an RMP reportable accident (i.e., “near miss”). A root cause analysis is a formal 

process to identify underlying reasons for failures that lead to accidental releases. These analyses 

usually require someone trained in the technique. The low cost alternative would apply the 

provision only to RMP reportable accidents or near misses in Program 3 processes. The 
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medium/high cost alternative would apply to RMP reportable accidents or near misses involving 

Program 2 and Program 3 processes. 

Safer Technology and Alternatives Analysis (STAA)—(proposed revisions apply to § 68.67)

Under the proposed rule, facilities in NAICS codes 322 (paper manufacturing), 324 

(petroleum and coal products manufacturing), and 325 (chemical manufacturing) with Program 3 

processes would be required to conduct a STAA for each process as part of their PHA, which 

occurs every 5 years. The STAA includes two parts: the initial analysis to identify alternatives, 

and a feasibility study to determine the costs and assess the reasonableness of implementing 

technology alternatives. The proposed rule is the low cost alternative, which would apply to all 

facilities with Program 3 processes in NAICS codes 322, 324, and 325. The medium cost 

alternative would apply the requirement to all Program 3 processes. The high cost alternative 

would apply the requirement to all Program 3 processes and require facilities to implement 

feasible IST/ISD. inherently safer technology and alternatives that are considered inherently safer 

technology or design.

Coordination Activities—(proposed revisions apply to §§ 68.90, new 68.93, and 68.95)

Under the proposed rule, all facilities with Program 2 or Program 3 processes would be 

required to coordinate with local response agencies annually to determine response needs and 

ensure that response resources and capabilities are in place to respond to an accidental release of a 

regulated substance. The owner or operator would also be required to document coordination 

activities. The proposed rule also includes a provision enabling the LEPC or local emergency 

response official to request, in writing, that the RMP-facility owner or operator comply with the 

emergency response program requirements of § 68.95. Section 68.95 requires the owner or 

operator to develop an emergency response program that includes an emergency response plan, 

procedures for use, inspection and maintenance of response equipment, training for responding 

employees, and procedures to review and update the program. 

Commented [A334]: IA Comment #100 Page 172, recommend 

the following edits: “...feasible inherently safer technology and 

alternatives that are considered inherently safer technology or 

design.”

Commented [A335R334]: Revised to address comment with 

modifications. Furthermore, this is a recurring comment. We 

intended to restrict this provision to IST rather than the full STAA.
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Alternatives to this provision are similar to the proposed requirements. One alternative 

that imposes the same costs as the proposed option would eliminate the option for local officials 

to request that a facility owner or operator comply with the requirements of § 68.95. A second 

alternative is a high cost alternative and would require all facilities with Program 2 or Program 3 

processes to comply with § 68.95, regardless of local response capability. This would be 

analogous to the requirements under the Oil Pollution Prevention regulation (40 CFR Part part 

112) where all facilities subject to the FRP provisions at § 112.20 are required to prepare and 

implement an emergency response plan for oil discharges into navigable waters or adjoining 

shorelines.

Exercises—(proposed revisions apply to new § 68.96)

Notification Exercises. All facilities with Program 2 or Program 3 processes would be 

required to conduct a notification exercise annually to ensure that the contact list to be used in an 

emergency is complete, accurate, and up-to-date. 

Tabletop and Field Exercises. The proposed rule would require responding facilities to 

conduct annual exercises of their emergency response plans and invite local emergency response 

officials to participate. Under the low cost alternative, facilities would conduct tabletop exercises 

annually. Under the proposed rule, which is the medium cost alternative, facilities would conduct 

a full field exercise at least once every five years and tabletop exercises annually in the interim 

years. Facilities with an RMP reportable accident would also have to conduct a full field exercise 

within a year of an RMP reportable accident, but this may not impose any additional burden 

under the medium alternative as it would count as the required field exercise for the next 5-year 

period. Under the high cost alternative, facilities would conduct full field exercises annually.

Public DisclosureInformation Availability—(proposed revisions apply to new § 68.205 and 

existing § 68.210)

The proposed rule would require all facilities to disclose certain chemical hazard 

information to the public. The facility or its parent company, if applicable, would have to make 
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the information available in an easily accessible manner, which might be presenting information 

on a company website, posting the information at public libraries, publishing it in local papers, or 

other means appropriate for particular communities and facilities. The information to be disclosed 

includes names and quantities of regulated substances at the facility; SDS; accident history 

information; emergency response program information; and LEPC or local response agency 

contact information.

In addition, facility owners or operators would be required to provide information upon 

request to the LEPC or other local response agencies with information annually on all of the 

following that apply to the facility: names and quantities of regulated substances; five-year RMP 

reportable accident history; summaries of compliance audit reports; summaries of incident 

investigation reports; summaries of implementation of IST; and information on emergency 

response exercises, including schedules for upcoming exercises. Facilities owners or operators 

would be required to update this information annually. Although EPA did not analyze alternatives 

for this provision, the different applicability for the STAA provision alternatives increases the 

cost of the medium/high alternative for disclosure to the LEPC because more facilities would 

have to report on that analysis.

Public Meeting—(proposed revisions apply to § 68.210)

The proposed rule would require facilities to hold a public meeting for the local 

community at least once every 5 years or within a year30 days of an RMP reportable accident. 

The medium cost alternative would require Program 2 and Program 3 facilities to hold a public 

meeting at least once every 5 years and within 30 days of an RMP reportable accident. The high 

cost alternative would require all facilities (i.e., including Program 1 facilities) to hold a public 

meeting at least once every 5 years and within 30 days of an RMP reportable accident.low cost 

alternative applies the requirement to facilities with Program 2 or Program 3 processes. The 

medium/high cost alternative would apply it to all facilities (i.e., Program 1 facilities would also 

be affected).
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3. Summary of Costs

Approximately 12,500 facilities have filed current RMPs with EPA and are potentially 

affected by the proposed rule changes. These facilities range from petroleum refineries and large 

chemical manufacturers to water and wastewater treatment systems; chemical and petroleum 

wholesalers and terminals; food manufacturers, packing plants, and other cold storage facilities 

with ammonia refrigeration systems; agricultural chemical distributors; midstream gas plants; and 

a limited number of other sources that use RMP-regulated substances.

Table 16 presents the number of facilities according to the latest RMP reporting as of 

February 2015 by industrial sector and chemical use. 

Table 16: Number of Affected Facilities by Sector

Sector NAICS Codes Total 

Facilities

Chemical Uses

Administration of 

environmental quality 

programs (i.e., 

governments)

924 1,923 Use chlorine and other 

chemicals for treatment

Agricultural chemical 

distributors/wholesalers

111, 112, 115, 

42491

3,667 Store ammonia for sale; some 

in NAICS 111 and 115 use 

ammonia as a refrigerant

Chemical manufacturing 325 1,466 Manufacture, process, store

Chemical wholesalers 4246 333 Store for sale

Food and beverage 

manufacturing

311, 312 1,476 Use (mostly ammonia as a 

refrigerant)

Oil and gas extraction 211 741 Intermediate processing

(mostly regulated flammable 

substances and flammable 

mixtures)

Other 44, 45, 48, 54, 56, 

61, 72

248 Use chemicals for wastewater 

treatment, refrigeration, store 

chemicals for sale

Other manufacturing 313, , 326, 327, 33 384 Use various chemicals in 

manufacturing process, waste 

treatment

Other wholesale 423, 424 302 Use (mostly ammonia as a 

refrigerant)

Paper manufacturing 322 70 Use various chemicals in pulp 

and paper manufacturing

Petroleum and coal 

products manufacturing 

324 156 Manufacture, process, store

(mostly regulated flammable 

substances and flammable 

mixtures)

Petroleum wholesalers 4247 276 Store for sale (mostly 

regulated flammable 
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substances and flammable 

mixtures)

Utilities 221 (except 

22131, 22132)

343 Use chlorine (mostly for 

water treatment)

Warehousing and storage 493 1,056 Use mostly ammonia as a 

refrigerant

Water/wastewater 

Treatment Systems

22131, 22132 102 Use chlorine and other 

chemicals

Total 12,542

Table 17 presents a summary of the annualized costs estimated in the regulatory impact 

analysis. In total, EPA estimates annualized costs of $162.6158.3 million at a 3% discount rate 

and $165.3161.0 million at a 7% discount rate.

Table 17: Summary of Annualized Costs (Millions, 2014 dollars)

Provision 3% 7%

Third-party Audits $5.0 $5.0

Incident Investigation/Root Cause $0.8 $0.8

STAA $34.8 $34.8

Coordination $6.3 $6.3

New Responders* $33.0 $35.6

Notification Exercises $1.4 $1.4

Facility Exercises $60.7 $60.7

Information Sharing (LEPC) $11.7 $11.7

Information Sharing (Public) $4.0 $4.0

Public Meeting $4.70.4 $4.70.4

Rule Familiarization $0.20.3 $0.3

Total Cost+ $162.6158.3 $165.3161.0

* Reflects costs for some facilities to convert from “non-responding” to 

“responding” as a result of improved coordination with local emergency 

response officials.

+Totals may not sum due to rounding.

The largest average annual cost of the proposed rule is the exercise costs for current 

responders ($60.7 million), followed by new responders ($35.6 million), safer technology and 

alternatives analysisSTAA ($34.8 million), and information sharing (LEPC) ($11.7 million). The 

remaining provisions impose average annual costs under $10 million, including coordination 

($6.3 million), third-party audits ($5.04.9 million), public meetings ($4.70.4 million), information 
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sharing (public) ($4.0 million), notification exercises ($1.4 million), incident investigation/root 

cause analysis ($0.8 million), public meetings ($0.4 million), and rule familiarization ($0.3

million).

The proposed rule includes three prevention program provisions – third party audits, root 

cause analysis, and STAA – involving information collection and analysis activities that can lead 

to a wide range of outcomes, and therefore costs, if and when the owner acts upon the findings 

and/or recommendations generated by the audit, investigation, or analysis. Although resolving 

audit and investigation findings is required under the existing rule provisions, and the proposed 

rule does not require implementation of feasible IST alternatives, EPA believes it is possible that 

there may be costs associated with resolving findings from the proposed third-party audit and root 

cause analysis provisions that go beyond the costs of the existing provisions, and that some 

owners or operators may have additional costs due to voluntary implementation of IST. Due to 

the wide range of outcomes from these proposed provisions and the significant uncertainties 

associated with their costs, EPA seeks further information on their potential costs, and whether 

these costs should accrue to this proposal. What types of costs result from independent audits 

(other than the cost of the audit) that are different from self-audit costs? What types of costs result 

from root cause investigations as compared to non-root-cause investigations? For the STAA 

provisions, what information exists to project what changes facilities are likely to voluntarily 

undertake? EPA particularly requests cost data or studies for implementation of IST changes from 

any commenters who may prefer the high option for this provision, which would require 

implementation of feasible IST alternatives.

4. Summary of Potential Benefits

EPA anticipates that promulgation and implementation of this rule would result in a 

reduction of the frequency and magnitude of damages from releases. Accidents and releases from 

RMP facilities occur every year, resulting in fires and explosions, property damage, acute and 

chronic exposures of workers and nearby residents to hazardous materials, and resultant damages 

Commented [A336]: Added to summarize the new Section 5.7 

in the RIA.
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to health. Although we are unable to quantify what specific damage reductions may occur as a 

result of these proposed revisions, we are able to present data on the total damages that currently 

occur at RMP facilities each year. The data presented are based on a 10-year baseline period, 

summarizing RMP accident impacts and, when possible, monetizing them. EPA expects that 

some portion of future damages would be prevented through implementation of a final rule. Table

18 presents a summary of the quantified damages identified in the analysis.

Table 18: Summary of Quantified Damages

Unit Value 10-Year Total Ave/Year Average/Accident

On-site

Fatalities $8,583,113 $497,820,554 $49,782,055 $328,161

Injuries $50,000 $105,150,000 $10,515,000 $69,314 

Property Damage $2,054,895,236 $205,489,524 $1,354,578 

On-site Total $2,657,865,790 $265,786,579 $1,752,053

Offsite

Fatalities $8,583,113 $8,583,113 $858,311 $5,658 

Hospitalizations $36,000 $6,804,000 $680,400 $4,485 

Medical Treatment $1,000 $14,807,000 $1,480,700 $9,761 

Evacuations $181 $6,992,327 $699,233 $4,609

Sheltering in Place $91 $40,920,849 $4,092,085 $26,975

Property Damage $11,352,105 $1,135,211 $7,483 

Offsite Total $89,459,394 $8,945,939 $58,971

Total $2,747,325,184 $274,732,518 $1,811,024

EPA monetized both on-site and offsite damages. EPA estimated total average annual onsite damages of $265.8 million. The largest monetized average annual on-site damage was 

avoided on-site property damage, which resulted in an average annual damage of approximately 

$205.5 million. The next largest impact was avoided on-site fatalities ($49.8 million) and injuries 

($10.5 million). 

EPA estimated total average annual offsite damages of $8.9 million. The largest 

monetized average annual offsite damage was from sheltering in place ($4.1 million), followed 

by medical treatment ($1.5 million), property damage ($1.1 million), fatalities ($0.9 million), 

evacuations ($0.7 million), and hospitalizations ($0.7 million).
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In total, EPA estimated monetized potential damages of $275 million per year. However, 

the monetized impacts omit many important categories of accident impacts including lost 

productivity, the costs of emergency response, transaction costs, property value impacts in the 

surrounding community (that overlap with other benefit categories), and environmental impacts. 

Also not reflected in the 10-year baseline costs are the impacts of non-RMP accidents at RMP 

facilities and any potential impacts of rare high consequence catastrophes. A final omission is 

related to the information provision. Reducing the probability of chemical accidents and the 

severity of their impacts, and improving information disclosure by chemical facilities, as the 

proposed provisions intend, would provide benefits to potentially affected members of society.

Table 19 summarizes four broad social benefit categories related to accident prevention 

and mitigation including prevention of RMP accidents, mitigation of RMP accidents, prevention 

and mitigation of non-RMP accidents at RMP facilities, and prevention of major catastrophes. 

The table explains each and identifies ten associated specific benefit categories, ranging from 

avoided fatalities to avoided emergency response costs. Table 19 also highlights and explains the 

information disclosure benefit category and identifies two specific benefits associated with it: 

improved efficiency of property markets and allocation of emergency resources.

Table 19: Summary of Social Benefits of Proposed Rule Provisions

Broad Benefit 

Category Explanation Specific Benefit Categories

Accident Prevention Prevention of future RMP facility 

accidents

 Reduced Fatalities

 Reduced Injuries

 Reduced Property Damage

 Fewer People Sheltered in 

Place

 Fewer Evacuations

 Avoided Lost Productivity

 Avoided Emergency Response 

Costs

 Avoided Transaction Costs

 Avoided Property Value 

Impacts*

 Avoided Environmental 

Impacts

Accident Mitigation Mitigation of future RMP facility 

accidents

Non-RMP accident 

prevention and 

mitigation

Prevention and mitigation of 

future non-RMP accidents at 

RMP facilities

Avoided 

Catastrophes

Prevention of rare but extremely 

high consequence events

Commented [A337]: IA Comment #101 Page 176, Note that 

the monetized damages (which is only an estimate of the potential 

maximum amount of benefits) is very close in magnitude to the 

estimated (non-maximum) costs. Given the lack of net benefits, 

EPA and the public should carefully scrutinize the individual 

requirements to evaluate their individual costs and benefits.

In other words, for example - how much will sharing of accident 

history or IST analyses contribute to avoided or reduced accidents? 

How beneficial will be the public meetings when there have been 

no accident at the facility?

Commented [A338R337]: EPA had no data to project the 

specific impact of each proposed rule element on the probability 

and magnitude of chemical accidents. Therefore the RIA evaluates 

the total costs of accidents over a 10-yr period and concludes that 

the proposed rule, if finalized, would prevent some of those costs.

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Information 

Disclosure

Provision of information to the 

public and LEPCs

 Improved efficiency of property 

markets

 Improved resource allocation

* These impacts partially overlap with several other categories such as reduced health and environmental impacts.

B. Paperwork Reduction Act (PRA)

The information collection activities in this proposed rule have been submitted for 

approval to the Office of Management and Budget (OMB) under the PRA. The Information 

Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 

2537.011656.16. You can find a copy of the ICR in the docket for this rule, and it is briefly 

summarized here. 

This ICR would amend a previously approved ICR (1656.15), OMB Control No. 2050-

0144. That ICR covers the risk management program rule, originally promulgated on June 20, 

1996; the current rule, including previous amendments, is codified as 40 CFR part 68. This ICR 

addresses the following proposed information requirements that are part of a proposed revision to 

the rule: 

(1) Make certain information related to the risk management program available to the 

local community.

(2) Provide Provide information, upon request, to the LEPC and local emergency 

response officialsresponders with summaries of certain activities under the risk management 

program.

(3) Hold a public meeting at least one every 5 years and within 30-days of an accident 

subject to reporting under § 68.42.

(4) Hire a third-party to conduct the compliance audit after a reportable release.

(5) Conduct and document a root cause analysis after a reportable release.

(6) Conduct and document an incident investigation, including root cause analysis, after a 

near miss.

(7) Conduct and document a safer technology and alternatives analysis.

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(8) Meet and coordinate with local responders to ensure adequate response capability 

exists.

(9) Conduct a notification drill to verify information.

(10) Conduct and document emergency response exercises.

(11) Come into compliance with requirements for responding to a release with 

facilitydeveloping an emergency response program staff, including developing an emergency 

response plan, conducting emergency response exercises, documenting training, and providing 

information to the LEPC.

EPA believes that the RMP regulations have been effective in preventing and mitigating 

chemical accidents in the United States. However, EPA is proposing revisions to further protect 

human health and the environment from chemical hazards through advancement of PSM based on 

lessons learned – resulting in better coordination between facilities, LEPC’s, and the public. State 

and local authorities will use the information in RMPs to modify and enhance their community 

response plans. The agencies implementing the RMP rule will use RMPs to evaluate compliance 

with part 68 and to identify sources for inspection because they may pose significant risks to the 

community. Citizens may use the information to assess and address chemical hazards in their 

communities and to respond appropriately in the event of a release of a regulated substance. 

These revisions are a result of a review of the existing Risk Management Program and are 

proposed under the statutory authority provided by section 112(r) of the CAA as amended (42 

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

Some of the elements mandated in the regulation for the risk management planRMP may 

require the submittal of data viewed as proprietary, trade secret, or confidential. As described 

above, EPA has adopted procedures for sources to claim certain information as confidential 

business information. EPA encourages facilities that have CBI claims to submit substantiation

with the RMP.
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Respondents/affected entities: In total, this ICR will affect 12,542 facilities and 1,738 

state and local agencies1,724 LEPCs for the purposes of rule familiarization. Table 20 provides 

the breakdown of affected entities by NAICS and RMP program level.Manufacturers, utilities, 

warehouses, wholesalers, food processors, ammonia retailers, and gas processors.

Table 20: Annual Number of Respondents Subject to New Information Collection 

Requirements under the Final Rule

Sector Program 1 Program 2 Program 3 Totals

NAICS 311 Food Manufacturer 3 11 1,371 1,385

NAICS 312 Beverage/Ice 0 0 91 91

NAICS 322 Pulp and Paper 1 1 68 70

NAICS 324 Petroleum 13 3 140 156

NAICS 325 Chemical 53 64 1,349 1,465

Other Manufacturing 62 73 249 384

NAICS 4246 Chemical Distributors 6 0 327 333

NAICS 4247 Petroleum Distributors 14 0 262 276

NAICS 11, 12, 15, 42491 Agricultural 10 0 3,657 3,667

NAICS 211 Oil and Gas Exploration 310 41 390 741

NAICS 2213 Water/Wastewater* 1 10 91 102

NAICS 221, 222 Utilities 38 72 233 343

NAICS 493 Warehousing 70 0 986 1,056

NAICS 423, 424 Other Wholesale 5 0 297 302

NAICS 92 Governments 15 935 973 1,923

Other 41 62 144 248

Total 642 1,285 10,615 12,542

State and local agenciesLEPCs (for Rule 

Familiarization)

1,7381,724

* Except government owned which appear as NAICS 92 Government.

Respondent’s obligation to respond: Respondents are mandated to comply with the 

information collection requests outlined in this ICR. Information collection for on-site 

documentation is authorized by CAA sections 112(r)(7)(B)(i) and (ii), which state that “The 

Administrator shall promulgate reasonable regulations and appropriate guidance to provide ... for 

the prevention and detection of accidental releases of regulated substances....” and “The 

regulations ... shall require the owner or operator ... to prepare and implement a risk management 

plan to detect and prevent or minimize accidental releases...” Information collection for 
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submitting an RMP is authorized under CAA section 112(r)(7)(B)(iii), which states in relevant 

part that “The owner or operator of each stationary source...shall register a risk management 

plan...with the Administrator before the effective date of the regulations...in such form and 

manner as the Administrator shall, by rule, require...and shall be available to the public under 

section 114(c).” Information collection for on-site documentation and submittal of RMPs is also 

authorized by CAA 114(a)(1).Mandatory (CAA sections 112(r)(7)(B)(i) and (ii), CAA section 

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

Estimated number of respondents: 12,542

Frequency of response: Varies from 1-5 years. RMP submissions are mandated every 

five years.On occasion.

Total estimated burden: 659,001623,970 hours (per year). Burden is defined at 5 CFR 

1320.3(b).

Total estimated cost: $55,278,216 (per year), includes $5,529,0004,303,435 annualized

capital or operation &and maintenance costs. 

An agency may not conduct or sponsor, and a person is not required to respond to, a 

collection of information unless it displays a currently valid OMB control number. The OMB 

control numbers for the EPA’s regulations in 40 CFR are listed in 40 CFR part 9. 

Submit your comments on the Agency’s need for this information, the accuracy of the 

provided burden estimates and any suggested methods for minimizing respondent burden to the 

EPA using the docket identified at the beginning of this rule. You may also send your ICR-related 

comments to OMB’s Office of Information and Regulatory Affairs via email to 

oria_submissions@omb.eop.gov, Attention: Desk Officer for the EPA. Since OMB is required to 

make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive 

comments no later than [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER]. The EPA will respond to any ICR-related comments in the final rule.

C. Regulatory Flexibility Act (RFA)
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Pursuant to section 603 of the RFA, the EPA prepared an initial regulatory flexibility 

analysis (IRFA) that examines the impact of the proposed rule on small entities along with 

regulatory alternatives that could minimize that impact. The complete IRFA is available for 

review in the docket and is summarized here. 

1. Why EPA is Considering this Action

The purpose of this action is to improve safety at facilities that use and distribute 

hazardous chemicals. In response to catastrophic chemical facility incidents in the United States, 

including the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17, 

2013 that killed 15 people, President Obama issued Executive Order 13650, “Improving 

Chemical Facility Safety and Security,” on August 1, 2013. Section 6(a)(i) of Executive Order

13650 requires that various Federal agencies develop options for improved chemical facility 

safety and security, including modernizing regulations. As a result, EPA is proposing revisions to

the Risk Management Program (40 CFR part 68). For more information on Executive Order

13650, see Section section II. Background of this noticedocument.

2. Objectives of, and Legal Basis for, the Proposed Rule

EPA believes that the RMP regulations have been effective in preventing and mitigating 

chemical accidents in the United States; however, EPA is proposingbelieves that revisions in 

order tocould further protect human health and the environment from chemical hazards through 

the advancement of process safety based on lessons learned. These revisions are a result of a 

review of the existing Risk Management Program and information gathered from the RFI and 

Executive Order listening sessions, and are proposed under the statutory authority provided by 

CAA section 112(r) as amended (42 U.S.C. 7412(r)).

3. Estimate of the Number of Small Entities to which the Proposed Rule Will Apply

The RMP rule affects a broad range of sectors (296 separate NAICS codes are listed in 

RMP filings; 240 of these are associated with small entities). The RMP data include facility and 

parent company name as well as the number of full time equivalents (FTE) for the facility and the 

Commented [A339]: IA Comment #102 Page 181, regarding 

“The complete IRFA is available for review in the docket and is 

summarized here.” Chapter 7 of the RIA does not appear in the 

form of an IRFA – please provide. No small business alternatives 

are analyzed.

Commented [A340R339]: EPA will provide once the SBAR 

panel report is finalized.

Commented [A341]: IA Comment #103 Page 182, 

recommended edits: “EPA believes that the RMP regulations have 

been effective in preventing and mitigating chemical accidents in 

the United States; however, EPA is proposing believes that revisions 

in order to could further protect human health and the 

environment from chemical hazards through the advancement of 

process safety based on lessons learned.

Commented [A342R341]: Changes incorporated.
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NAICS codes. To develop an estimate of the number of small entities, the analysis required a 

series of reviews of the data to identify the large entities and the small entities that were part of 

small firms owning multiple facilities. The data were reviewed to identify parent companies that 

were clear from the facility name, but not included in the parent company field. That made it 

possible to determine the total FTE for facilities belonging to the same parent company and 

compare that number to the Small Business Administration (SBA) standard (when in FTEs). If 

the total FTE exceeded the standard, all the facilities were classified as large. Where the facilities 

listed different NAICS codes, the analysis applied either the code used for a majority of the 

facilities or, if no single code dominated, the code with the highest threshold. For example, if a 

firm had facilities in sectors where the standards were 500 and 1,000 FTE, the 1,000 FTE 

standards was used to determine if the firm was large. 

For remaining facilities, if there were multiple facilities belonging to a single firm and the 

total FTE approached the threshold or if the name included “USA” or “US holdings,” which 

implied an international company, Internet searches were conducted to identify whether the 

facilities belonged to a firm with other facilities or employees.

The RFA defines small governments as governments of cities, counties, towns, 

townships, villages, school districts, or special districts, with a population of less than fifty 

thousand.208 Most governmental RMP facilities are water and wastewater treatment systems and 

listed a city or county as the owning entity. A check of budgets that were available for some of 

the smallest cities indicated that (1) the systems are sub-agencies of the city/county and (2) obtain 

some revenues from the general fund although most of their revenues are derived from user fees. 

To determine which facilities belong to small governments, the populations for each of cities or 

counties were determined by checking the 2014 estimates from the Census. For special water and 

 

208

 5 U.S.C. 602.
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irrigation districts, their Internet sites were checked for information on the population served. 

Table 2021 below presents the number of small and large facilities by program level. 

Table 2021: Number of Facilities Owned by Small and Large Entities by Program Level

RMP 

Program

Small

Private

Large 

Private

Small 

Government

Large

Government Total

Program 3 3,9963,545 6,097 451 6,619522 10,615

Program 2 695174 176 521 590414 1,285

Program 1 219213 414 6 4239 642

Total 4,9103,932 6,687 978 7,632945 12,542

4. Projected Reporting, Recordkeeping and Other Compliance Requirements of the Proposed 

Rule

Under the proposed rule, all facilities would be required to make certain information 

available to the public and, upon request, to the LEPC or local emergency response officials. 

Program 1 facilities would not likely have to spend more than an hour a year on this disclosure 

because the information disclosed to the public is information every facility should have readily 

available and because the additional information that would be provided, upon request, disclosed

to the LEPC relates to provisions that do not apply to Program 1 facilities. Therefore, the IRFA 

has not considered Program 1 small facilities in the analysis of impacts.

Program 2 and Program 3 facilities would incur the same costs for the other proposed 

provisions except the STAA. Each facility would be required to update information to beto

disclosed information annually, hold a public meeting at least once every 5 years, and coordinate 

with the local responders, and conduct a notification drill annually. If the facility is a responder, it 

would have to hold an annual exercise, including at least one full field exercise every 5 years. 

Program 3 facilities in NAICS codes 322, 324, and 325 would have to conduct an STAA as part 

their PHA every 5 years.

If a facility has an accident, it would incur costs to hold a public meeting within 30 days 

of an RMP reportable accident. It would also incur additional costs for obtaining a third-party to 

conduct their next scheduled compliance audit and . It would also incur additional costs to 

Commented [A343]: IA Comment #104 Page 184, Table 21: 

Please separate government and private entities in this table.

Commented [A344R343]: Change incorporated.
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conduct a root cause analysis as part of the incident investigation. Facilities would also be 

required to conduct root cause investigations of near misses, including a root cause analysis. 

Finally, if a facility has to become a responder, it would incur costs to develop an emergency 

response plan, train personnel to respond, purchase and maintain equipment, and conduct 

exercises. 

Table 2122 presents three sets of costs: low year, annualized, and high year (excludes 

costs incurred after an accident or a near miss). Low-year costs represent costs for years in which 

routine annual costs apply. These include costs for coordinating with local responders, conducting 

notification exercises (applies to all Program 2 and Program 3 facilities), conducting tabletop 

exercises (applies only to responders), and updating disclosure information to LEPC and the 

public. High-year costs represent a year in which every applicable provision would occur, except 

costs incurred after an accident or “near miss.” This includes the routine annual costs and periodic 

costs that apply either every 3 or 5 years (i.e., field exercise in lieu of a tabletop exercise, public 

meeting, all public disclosure requirements, and STAA). Because the STAA provisions would 

only apply to a subset of facilities (i.e., those in NAICS 322, 324, and 325), these facilities are 

broken out separately in the last two rows of the table. Complex facilities are those categorized as 

NAICS 324 or 325 and simple facilities are all others. Annualized costs average the low costs 

incurred for four years with the high costs incurred every fifth year.

Table 2122: Low, Annualized, and High Year Combined Costs for Small Entities by Group

Low Year Cost Annualized High Year Cost

Program 2 and 

Program 3 facilities 

(excludes Program 3 

facilities subject to 

STAA)

Simple Complex Simple Complex Simple Complex

Non Responder $548 808 $903 

1,223

$1,182808 $2,0271,2

23

$3,21780

8

$5,2801,

223

Responder 0-19 FTE $6,577 

743

$9,2898,

969 

$7,1758,1

58

$9,47110,

898

$12,3479

,572

$20,3571

2,507

Responder 20+ FTE $7,711 

870

$10,442 

761

$9,89911,

885

$13,49015

,261

$18,1511

5,900

$24,4371

9,761

Program 3 facilities 

subject to STAA

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Non Responder n/a $1,22390

3 

n/a $6,19017,

295

n/a $26,0973

3,366

Responder <20 FTE n/a $9,2898,

969 

n/a $13,63526

,970

n/a $41,1744

4,650

5. Related Federal Rules 

The Risk Management Program is one of several programs regarding chemical facility 

safety and security. Executive Order 13650 directed Federal agencies to identify ways to 

modernize policies, regulations, and standards to enhance safety and security in chemical 

facilities. The Executive Order established a Chemical Facility Safety and Security Working 

Group to oversee this effort, which is tri-chaired by the EPA, DOL, and DHS. Members of the 

Working Group (at the management and staff level) regularly share information in order to 

coordinate activities on any work involving revisions in regulations, such as revisions to OSHA’s 

PSM standard and DHS’ CFATS regulations. These efforts also serve to avoid unnecessary 

duplication, overlap and conflicts with the Risk Management Program requirements.

OSHA’s 29 CFR 1910.119 PSM standard. Mandated by the CAAA of 1990 and issued in 

1992, the PSM standard sets requirements for the management of highly hazardous substances to 

prevent and mitigate hazards associated with catastrophic releases of flammable, explosive, 

reactive, and toxic chemicals that may endanger workers. The PSM standard covers the 

manufacturing of explosives and processes involving threshold quantities of flammable liquids 

and flammable gasses, as well as 137 other highly hazardous chemicals.

The OSHA PSM standard, similar to the EPA RMP rule, aims to prevent or minimize the 

consequences of accidental chemical releases through implementation of management program 

elements that integrate technologies, procedures, and management practices. The EPA RMP 

regulation closely tracks the accident prevention measures contained in the OSHA PSM standard 

because Section 112(r)(7)(D) of the CAA requires EPA to coordinate the RMP regulation with 

“any requirements established for comparable purposes” by OSHA. Consequently, the OSHA
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PSM standard and EPA RMP regulation are closely aligned in content, policy interpretations, 

Agency guidance, and enforcement. 

Since the inception of these regulations, EPA and OSHA have coordinated closely on 

their implementation in order to minimize regulatory burden and avoid conflicting requirements 

for regulated facilities. For example, owners and operators of RMP covered processes also 

subject to the OSHA PSM standard will generally have met their RMP accident prevention

program obligations if they have properly implemented their PSM program.

Occupational Safety and Health Act General Duty Clause. Section 5(a)(1) of the 

Occupational Safety and Health (OSH) Act requires employers to provide its employees with a 

workplace free from recognized hazards that are causing, or are likely to, cause death or serious 

physical harm.

EPA’s EPCRA regulations (40 CFR 350-372). Following the 1984 release of 

approximately 40 tons of MIC into the air in Bhopal, India, that killed over 3,700 people and the 

1985 leak of 500 gallons of aldicarb oxime from a Union Carbide facility in Institute, West 

Virginia, Congress passed EPCRA in October 1986. The purpose of EPCRA is twofold: (1) to 

encourage and support emergency planning efforts at the state and local levels, and (2) to provide 

the public and local governments with information concerning potential chemical hazards present 

in their communities.

EPCRA created state and local infrastructure designed to (1) prepare for and mitigate the 

effects of a chemical incident and (2) ensure that information on chemical risks in the community 

is provided to the first responders and the public. These state and local entities are the SERCs, 

TERCs, LEPCs, and Tribal Emergency Planning Committees (TEPCs). Representatives on the 

LEPCs include local officials and planners, facility owners and operators, first responders, health 

and hospital personnel, environmental groups, and citizen/members of the public. 

A central requirement of LEPCs and TEPCs is to develop a local emergency response 

plan. These plans are required to: 
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 Identify facilities and transportation routes of extremely hazardous substances and 

assess the risk based on chemical information from facilities; 

 Describe on-site and offsite emergency response procedures; 

 Designate a community coordinator and facility emergency coordinator(s) to 

implement the plan; 

 Describe emergency notification procedures; 

 Describe how to determine the probable affected area and population by releases 

(including identification of critical community receptors and assets); 

 Describe local emergency equipment and facilities and the persons responsible for 

them; 

 Describe evacuation plans;

 Identify the training program for emergency responders (including schedules); and 

 Identify the methods and schedules for exercising emergency response plans.

Under the community right-to-know section of EPCRA, certain facilities that 

manufacture, process, or store any hazardous chemicals are required to submit an SDS or list of 

hazardous chemicals, grouped into hazard categories, to SERCs, TERCs, LEPCs, TEPCs, and 

local fire departments. Under the Hazard Communication Standard, OSHA requires SDSs that 

describe the properties, hazards, and health effects of these chemicals as well as emergency 

response procedures and appropriate personal protection equipment. Facilities must also annually 

report their inventories of all on-site chemicals for which SDSs are required that are stored above 

reporting threshold quantities to SERCs, LEPCs, and local fire departments. LEPCs must use 

information about chemical inventories at facilities and SDSs in developing their local emergency 

plans; this information must also be available to the public.

Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and 

Disposal Facilities (40 CFR 264 and 265). These regulations establish minimum national 

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standards which define the acceptable management of hazardous waste including requirements 

for arrangements that owners and operators of hazardous waste facilities make with local 

authorities. In sections 264.37 and 265.37, hazardous waste generators are required to attempt to 

make arrangements for emergency response activities with local authorities, and document the 

refusal of local or State authorities to complete such arrangements in the operating record.

CAA Section section 112(r)(1) general duty clause. The statute requires facility owners 

and operators to identify hazards; design, maintain and safely operate a facility; and prevent and 

minimize releases of any regulated substances under § 112(r)(3) (40 CFR Part part 130) and “any 

other extremely hazardous substance.”209

DHS’s 6 CFR part 27 CFATS rule. The CFATS program, established in 2007, regulates 

chemical facilities that present a high level of security risk to ensure they have security measures 

in place to reduce the risks associated with their possession of chemicals of interest (COI). There 

are 325 COI and 137 of the 140 RMP regulated substances are included on the list of COI.

The CFATS program requires the development, submission, and implementation of Site 

Security Plans (SSPs) (or Alternative Security Programs in lieu of SSPs), which document the 

security measures high-risk chemical facilities use to satisfy the applicable risk-based 

performance standards (RBPS) under CFATS. These plans are not “one-size-fits-all,” but indepth, highly customized, and dependent on each facility’s unique circumstances.

Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) requirements for 

explosives. ATF is responsible for enforcing Federal explosives laws that govern commerce in 

explosives in the United States, including licensing, storage, recordkeeping, and conduct of 

business. ATF conducts inspections of Federal explosives licensees who manufacture, import, 

 

209 Although the term “any other extremely hazardous substance" is not defined, the legislative history of 

the 1990 CAA amendments indicates that the term would include any agent "which may or may not be 

listed or otherwise identified by any Government agency which may as the result of short-term exposures 

associated with releases to the air cause death, injury or property damage due to its toxicity, reactivity, 

flammability, volatility, or corrosivity." See: http://www2.epa.gov/sites/production/files/2013-

10/documents/gdcregionalguidance.pdf.
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sell, or store explosives in the United States to ensure that explosives are managed in accordance 

with Federal law.

6. Description of Alternatives to the Proposed Rule

The RIA analyzed the proposed new requirements and revisions to existing requirements 

as well as several alternatives for each. In most cases, EPA chose regulatory alternatives that had 

reduced impacts on small businesses relative to other alternatives that EPA considered. In this 

section, we discuss each regulatory provision, explain whether and how the proposed provision 

minimizes impacts on small businesses, and discuss additional recommendations resulting from 

the SBAR Panel that could further mitigate small business impacts. EPA has requested comment 

on these recommendations.

Third-Party Audits—(proposed revisions apply to existing §§ 68.58 and 68.79 and new §§ 68.59 

and 68.80)

EPA evaluated three options for this provision and selected the lowest cost alternative, 

which would apply the requirement only to sources with Program 2 and/or Program 3 processes 

that have had an RMP reportable accident. The other alternatives would have required that all 

compliance audits be conducted by third parties for sources with either Program 3 processes or 

Program 2 and Program 3 processes. Limiting the applicability of this proposed provision to 

sources that have had RMP reportable accidents minimizes its impact to the overall universe of 

RMP facilities, and particularly to small businesses. As indicated in Exhibit 5-25 in the RIA, the 

estimated cost of the high option ($96.2 million annualized) is nearly 20 times higher than the 

estimated costs of the proposed option ($5.0 million annualized). Furthermore, a majority of the 

costs for the proposed option would likely be borne by large businesses, as historically, most 

RMP accidents have occurred at facilities that do not meet SBA small business criteria. Table 

2223 shows the percentage of accidents from 2004-2013 that occurred at small and large 

facilities.
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Table 2223: Percentage of Accidents at Small and Large RMP facilities, 2004 – 2013

Sector

Program 1 Program 2 Program 3

Total

Small Large Small Large Small Large

NAICS 325 - Chemical 

Manufacturing

0 6 1 5 53 465 530

NAICS 311, 312 -

Food/Beverage 

Manufacturers

0 0 2 0 58 210 270

NAICS 322 –Paper 

Manufacturing 0 0 0 0 9 37 46

NAICS 331, 332, 333, 

334, 336, 339 - Other 

Manufacturing

0 0 4 0 12 27 43

NAICS 11, 12, 15, 

42491 - Agricultural 

Chemical Distributors

0 0 0 0 91 65 156

NAICS 4246, 4247 -

Chemical/petroleum 

wholesale

0 2 0 0 7 29 38

NAICS 4244, 4245 -

Other wholesale

0 0 0 0 7 13 20

NAICS 493 –

Warehouse 0 1 0 0 18 53 72

NAICS 324- Petroleum 

and Coal Products 

Manufacturing

2 6 0 0 15 146 169

NAICS 22131, 22132 -

Water/POTW

0 0 14 20 17 24 75

NAICS 211 - Oil/Gas 

exploration 4 4 1 0 10 34 53

Other 3 7 7 4 7 17 45

Total 9 26 29 29 304 1,120 1,517

While the proposed third- party audit provision should have fairly low impact on small 

businesses, the SBAR Panel made additional recommendations to further minimize the impacts of 

this provision on small businesses. The Panel recommended that EPA consider proposing 

streamlined independence requirements for small businesses (i.e. based on size of the facility).

The Panel also recommended that EPA limit the independence criteria to individuals participating 

in the audit rather than the entire company. The Panel further recommended that EPA seek 

comments on:
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 Eliminating the independence requirement, in its entirety, and retaining existing 

requirement for compliance audits;

 Limiting applicability of the third-party audit provision by only requiring third-party 

audits, for Program 3 facilities, triggered by major accidents that have offsite impacts and 

how to define or characterize “major accidents with offsite impacts”;

 Deleting the current PE requirement and considering other independent accreditation for 

third-party auditors which also carry ethical requirements, such as CSP, CIH, CFPS, 

CHMM, CPEA, or CPSA; and

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

should be included in the rule provision to protect facilities from terrorism or release of 

CBI from a third-party auditor.These include:

EPA incorporated preamble language to address these Panel recommendations in section 

IV.B of this document.

The SBA Office of Advocacy separately recommended that EPA employ the BSEE 

approach for small firms,210 using a simplified small business size standard, such as 250 

employees. SBA also recommended that small firms can submit a waiver request of the 

independence requirement, based on consideration of the specific facts, such as the limited 

availability of qualified independent auditors. SBA noted that a waiver may be appropriate where 

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

industrial processes.<List of SBAR recommendations for Third Party Audits>

The existing rule requires Program 2 and Program 3 processes to conduct a compliance 

audit at least once every 3 years. The proposed rule would require facilities to contract with an 

independent third-party to conduct the next scheduled compliance audit following an RMP 

reportable accident or after an implementing agency determines that certain circumstances exist 

 

210

 In 30 CFR 250.1920(a), BSEE only requires that the person leading the audit team be independent of 

the facility being audited.
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that suggest a heightened risk for an accident. The third-party would have to be someone with 

whom the facility does not have an existing or recent relationship and who meets specific 

qualification criteria. The low cost alternative would apply only for Program 2 and Program 3 

processes after an RMP reportable accident or at the request of the implementing agency. The 

medium cost alternative would apply every three years for all compliance audits conducted for all 

Program 3 processes. The high cost alternative would apply every three years for all compliance 

audits conducted for Program 2 and Program 3 processes.

Incident Investigation/Root Cause Analysis—(proposed revisions apply to §§ 68.60 and 68.81)

In this case, EPA considered two potential regulatory options, and proposed the higher 

cost option, which would apply the requirement for an incident root cause analysis to all RMPreportable accidents and near misses involving Program 2 and Program 3 processes. The lower 

cost option would apply the requirement to accidents and near misses at only Program 3 

processes. Although the Agency chose the higher cost option, this provision is estimated to be 

one of the least costly provisions of the proposed rule. In fact, the costs for both options 

considered were nearly indistinguishable – as indicated in Exhibit 5-25 in the RIA, both the low 

and proposed options are estimated to cost approximately $0.8 million annually. Therefore, EPA 

believes that the additional safety benefit of requiring owners and operators of Program 2 

processes to also conduct root cause analyses after incidents and near misses was warranted.

The SBAR Panel also made recommendations to further minimize the impacts of this 

provision on small businesses. The Panel recommended that EPA clarify our intent that incident 

investigations are not intended to cover minor accidents or minor near misses that could not 

reasonably have resulted in a catastrophic release. The Panel further recommended that EPA 

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

misses. The Panel recommended that EPA clarify in the preamble the comparative advantages of 

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

the rule. Finally, the Panel recommended that EPA seek comments on:
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 Whether the root cause analysis requirement should be eliminated;

 The revised definition of catastrophic release and whether it should be limited to 

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

 Examples of near misses.These include:

EPA incorporated preamble language to address these Panel recommendations in section 

IV.A of this document.

The SBA Office of Advocacy separately recommended that EPA retain the root cause 

analysis requirement, but not revise the definition of catastrophic release from the 1996 version 

which SBA believes is limited to major accidents, and maintains consistency with the current 

OSHA PSM definition of catastrophic release which refers to a “major uncontrolled emission, fire 

or explosion,” presenting a “serious danger.” <List of SBAR recommendations for Incident 

Investigation/Root Cause Analysis>The proposed rule would require facilities to conduct a root 

cause analysis as part of an incident investigation following an RMP reportable accident or an 

incident that could reasonably have resulted in an RMP reportable accident (i.e., “near miss”). A 

root cause analysis is a formal process to identify underlying reasons for failures that lead to 

accidental releases. These analyses usually require someone trained in the technique. The low 

cost alternative would apply the provision only to reportable accidents or near misses in Program 

3 processes. The medium/high cost alternative would apply to reportable accidents or near misses 

involving Program 2 and Program 3 processes. 

Safer Technology and Alternatives Analysis (STAA)—(proposed revisions apply to § 68.67)

For STAA, EPA examined three potential alternative regulatory options, and chose the 

least costly option. The proposed option, which would apply the STAA requirement to Program 3 

processes in NAICS 322 (paper manufacturing), 324 (petroleum and coal products 

manufacturing), and 325 (chemical manufacturing), costs $34.8 million annually and is 

approximately half as costly as the medium option ($71.7 million annually), which would apply 

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Aligned at: 0.25" + Indent at: 0.5"
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the requirement to all Program 3 processes, and likely far less costly than the high option, which 

would require implementation of feasible safer alternatives for all Program 3 processes.

The low-cost STAA option not only minimizes the overall number of sources that are 

subject to it, but is also biased toward larger sources. This is because the three sectors selected for 

regulation under this proposed provision all have a lower percentage of small entities than the 

overall percentage of small entities within the RMP facility universe. As indicated in Table 2324, 

approximately 39% of facilities regulated under the RMP regulation are owned by small entities. 

In comparison, NAICS 322 (paper manufacturing) has about 20% RMP-regulated small 

businesses within the sector, while NAICS 324 (petroleum and coal products manufacturing) and 

325 (chemical manufacturing) each have approximately 10% small businesses.

Table 2324: Percentage of Small Businesses in NAICS 322, 324, 325 and Overall

Sector Small Total Percentage 

Small

NAICS 322 –Paper 

Manufacturing 9 46 19.6%

NAICS 324- Petroleum 

and Coal Products 

Manufacturing

17 169 10.1%

NAICS 325 - Chemical 

Manufacturing 54 530 10.2%

All Sectors 4,910 12,542 39.1%

The SBAR Panel also made recommendations to further minimize the impacts of this 

provision on small businesses. The Panel recommended that EPA explain what evidence we have

that caused us to reconsider the 1996 assessment that IST analysis was unlikely to yield 

additional benefits. 

The Panel further recommended that EPA seek comments on:

 Whether to eliminate this requirement;

 Limiting this provision to require analyses only to be conducted at the design 

stage of new processes; and

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 Exempting batch toll manufacturers from this requirement.

These include:

<List of SBAR recommendations for STAA>

Under the proposed rule, facilities in NAICS codes 322 (paper manufacturing), 324 

(petroleum and coal products manufacturing), and 325 (chemical manufacturing) with Program 3 

processes would be required to conduct a STAA for each process as part of their PHA, which 

occurs every 5 years. The STAA includes two parts: the initial analysis to identify alternatives, 

and a feasibility study to determine the costs and assess the reasonableness of implementing 

technology alternatives. The proposed rule is the low cost alternative, which would apply to all 

facilities with Program 3 processes in NAICS codes 322, 324, and 325. The medium cost 

alternative would apply the requirement to all Program 3 processes. The high cost alternative 

would apply the requirement to all Program 3 processes and require facilities to implement 

feasible inherently safer technologyIST and alternatives that are considered inherently safer 

technology or designIST/ISD.EPA incorporated preamble language to address these Panel 

recommendations in section IV.C of this document.

The SBA Office of Advocacy separately recommended that small firms (under 250 

employees) should not be subject to this provision until three years after the rule’s compliance 

date for large firms. SBA believes that this would allow EPA to re-examine the utility of such a 

provision for large firms for possible application to the firms for which this is most burdensome.

SBA further noted that experimentation with different regulatory approaches is an innovation 

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

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

permissible and appropriate, agencies should consider designing their regulations in ways that 

allow alternative approaches in the rule that could help the agency in a subsequent review of the 

rule to determine whether there are more effective approaches to implementing its regulatory 

objective. For example, agencies could allow for experimentation, innovation, competition, and 
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experiential learning (calling upon the insights of internal statistical offices, as well as policy and 

program evaluation offices, in order to design plans for reassessing regulations, to the extent they 

have such resources).” 79 Fed. Reg. 75116 (Dec. 17, 2014). SBA believes that this approach of 

delaying compliance for small firms until EPA can review the utility of the provision for large 

firms is appropriate for a potentially costly new requirement. 

SBA also recommended that batch toll processors be exempt from this provision unless 

the firm has a contractual relationship with the customer of five or more years, given that SBA 

believes this requirement is unlikely to yield practical information for contracts of short duration.

Emergency Response Program Coordination with Local Responders Coordination Activities—

(proposed revisions apply to §§ 68.90, new 68.93, and 68.95)

The proposed option (medium option) would require all facilities with Program 2 or 

Program 3 processes to coordinate with local response agencies annually and document 

coordination activities. This option would also allow the LEPC or local emergency response 

officials to require that the RMP-facility owner or operator comply with the emergency response 

program requirements of § 68.95. EPA considered, but did not propose, the more stringent option 

of requiring all facilities with Program 2 or Program 3 processes to implement an emergency 

response program and respond to accidental releases at the facility. The proposed option is 

estimated to cost $6.3 million annually and is far less costly than the high option, which would 

likely have exceeded $100 million annually. Therefore, by selecting the medium option, EPA 

substantially reduced the cost impact for the many small entities that may rely on local response 

organizations to respond to accidental releases at the source (see Exhibit 3-8 and Appendix B in

the RIA for more information on the number, size, and industrial categories of non-responding 

facilities).

While EPA does not believe it is necessary to require that all facilities develop an inhouse response capability, the Agency believes that non-responding facilities, even if they are 

small businesses, must still coordinate with local public responders so that they are prepared to 
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handle emergencies at the facility. EPA expects that these coordination activities will result in 

some sources, including some small entities, becoming responding facilities, which may involve 

additional costs for those facilities (see section 5.6 of the RIA). EPA believes this is necessary to 

meet the objectives of Clean Air Act section 112(r), which requires the Agency to promulgate 

regulations to (among other things) provide for a prompt emergency response to any accidental 

releases in order to protect human health and the environment. We also note that the 2013 

accident at West Fertilizer, which was one of several accidents that triggered the Executive Order 

that ultimately led to this rule proposal, occurred at a facility that would likely have been 

considered a small entity under the established SBA criteria. The Agency believes it is 

appropriate to require that such facilities conduct adequate emergency coordination, and if 

necessary, develop adequate emergency response capabilities, even if they are small.

The SBAR Panel also made recommendations to further minimize the impacts of this 

provision on small businesses.The Panel recommended that EPA explain how coordination 

should occur between local emergency response officials and small facilities and clarify 

requirements for facilities that make a “good faith” effort to coordinate with local emergency 

response officials. The Panel also recommended that EPA seek comment on the proposed 

frequency for annual coordination. EPA incorporated preamble language to address these Panel 

recommendations in section V.A of this document. 

The SBA Office of Advocacy separately noted in the SBAR Panel report that SERs have 

disagreed with EPA’s interpretation that the current regulation clearly places responsibilities on 

regulated facilities to meet the emergency response requirements alone in the absence of a public 

response mechanism. The SBA Office of Advocacy is unsure about which legal interpretation is 

correct, although SBA believes that it is not appropriate to place this responsibility on small firms 

in these situations.

SBA further noted that in a related rulemaking, the 1980 EPA emergency preparedness 

rule for hazardous waste generators (40 CFR 265.37) only required generators to “attempt” to 
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make arrangements with local responders, and to document any failure to complete such 

arrangements, recognizing the difficulty of achieving such arrangements across the country. SBA 

indicated that today, just as in 1980, the unavailability of local resources to provide the response 

function is still a problem. SBA recommended that EPA use this approach for emergency 

response within the RMP rule, noting that this is one mechanism whereby the facility can 

demonstrate its “good faith” in making such arrangements.These include:

<List of SBAR recommendations for local coordination>Under the proposed rule, all facilities 

with Program 2 or Program 3 processes would be required to coordinate with local response 

agencies annually to determine response needs and ensure that response resources and capabilities 

are in place to respond to an accidental release of a regulated substance. The owner or operator 

would also be required to document coordination activities. The proposed rule also includes a 

provision enabling the LEPC or local emergency response official to request, in writing, that the 

RMP-facility owner or operator comply with the emergency response program requirements of §

68.95. Section 68.95 requires the owner or operator to develop an emergency response program 

that includes an emergency response plan, procedures for use, inspection and maintenance of 

response equipment, training for responding employees, and procedures to review and update the 

program. 

Alternatives to this provision are similar to the proposed requirements. One alternative 

that imposes the same costs as the proposed option would eliminate the option for local officials 

to request that a facility owner or operator comply with the requirements of § 68.95. A second 

alternative is a high cost alternative and would require all facilities with Program 2 or Program 3 

processes to comply with § 68.95, regardless of local response capability. This would be 

analogous to the requirements under the Oil Pollution Prevention regulation (40 CFR Part 112) 

where all facilities subject to the FRP provisions at § 112.20 are required to prepare and 

implement an emergency response plan for oil discharges into navigable waters or adjoining 

shorelines.
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Exercises—(proposed revisions apply to new § 68.96)

Notification Exercises. The proposed rule would require all facilities with Program 2 or 

Program 3 processes to annually conduct an emergency notification exercise to ensure that their 

emergency contact list is complete, accurate, and up-to-date. This proposed provision is expected 

to be one of the least costly rule provisions at $1.4 million annually (only the incident 

investigation root cause analysis and public meetings provisions are estimated to cost less). 

Therefore EPA did not consider any alternatives to reduce the impact of this provision on small 

businesses, nor did the SBAR Panel make any such recommendations.All facilities with Program 

2 or Program 3 processes would be required to conduct a notification exercise annually to ensure 

that the contact list to be used in an emergency is complete, accurate, and up-to-date. 

Tabletop and Field Exercises.

The proposed option was the medium option, and would require responding facilities to 

conduct a full field exercise at least once every five years and tabletop exercises annually in the 

interim years. This option was substantially less costly than the high option ($61 million vs $104 

million annually), which would require annual field exercises. As this provision only affects 

responding facilities, which tend to more often be large facilities (see Exhibit 3-8 in the RIA), 

EPA has proposed an option that mitigates the impact on small entities. EPA also considered a 

low option that would only require annual tabletop exercises. This option would have saved 

approximately $11 million annually. We did not propose the low option because the Agency 

believes that periodic field exercises are an important component of a comprehensive emergency 

response program. Nevertheless, this was also a recommendation from the SBAR panel and we 

have requested comment on the low option provision in the preamble to the proposed rule.

The SBAR Panel also made other recommendations to further minimize the impacts of 

this provision on small businesses. The Panel recommended that EPA clarify that participation by 

local responders is not required for a facility to comply with exercise requirements and that field 

exercises and drills required by other state and Federal regulations could meet this requirement if 
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the facility’s emergency response plan is tested as part of those exercises. The Panel also 

recommended that EPA seek comments on:

 Whether the exercise provision should be eliminated; 

 How to address postponement and rescheduling issues (which SERs have 

indicated may take up to a year); 

 Limiting the requirement to only tabletop exercises; and

 The frequency of required field and tabletop exercises.

EPA incorporated preamble language to address these pPanel recommendations in 

section V.B of this document.

The SBA Office of Advocacy separately recommended that EPA propose tabletop 

exercises alone, and include no minimum requirements for field exercises. SBA is concerned that 

LEPCs cannot achieve compliance with the current EPCRA requirements, and that adding to 

them would be counterproductive. SBA believes that field exercises at the facility without LEPC 

participation would be of limited value.

These include:

<List of SBAR recommendations for exercises>The proposed rule would require 

responding facilities to conduct annual exercises of their emergency response plans and invite 

local emergency response officials to participate. Under the low cost alternative, facilities would 

conduct tabletop exercises annually. Under the proposed rule, which is the medium cost 

alternative, facilities would conduct a full field exercise at least once every five years and tabletop 

exercises annually in the interim years. Facilities with a reportable accident would also have to 

conduct a full field exercise within a year of an RMP reportable accident, but this may not impose 

any additional burden under the medium alternative as it would count as the required field 

exercise for the next 5-year period. Under the high cost alternative, facilities would conduct full 

field exercises annually.
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Public Information DisclosureAvailability—(proposed revisions apply to new § 68.205 and 

existing § 68.210)

There are three proposed information disclosure requirements. Under the proposed 

requirements, all facilities would be required to make certain information available to the public. 

Upon receiving a request from their LEPC or local emergency response official, regulated 

facilities would also be required to provide certain information to the LEPC or emergency 

response officials. Lastly, facilities would be required to hold public meetings within 30 days of 

any RMP reportable accident. In the preamble to the proposed rule, EPA has requested public 

comments on whether all regulated facilities should be required to hold a public meeting every 

five years and after an RMP reportable accident, or whether a requirement for periodic and postaccident public meetings should be limited to only Program 2 and Program 3 facilities. Although 

EPA has not proposed specific alternatives to minimize the impact of the information disclosure 

provisions on small businesses, the Agency believes that in general, smaller facilities will bear 

lower costs to comply with these provisions. By requiring certain information disclosure elements 

(i.e., incident investigation and public meeting provisions) only following an RMP reportable 

accident, EPA is minimizing the impact to the overall universe of RMP facilities, and particularly 

to small businesses. Most RMP reportable accidents have generally occurred at facilities that do 

not meet SBA small business criteria (see Exhibit 7-11 in the RIA). Also, small facilities will 

generally have fewer processes, fewer chemicals, fewer accidental releases, etc., on which to 

provide information to LEPCs and the public.

The SBAR Panel also made recommendations to further minimize the impacts of this 

provision on small businesses. The Panel recommended that EPA:

 Consider only requiring facilities to develop chemical hazard information 

summaries and allowing LEPCs to make reasonable requests for additional 

information;
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 Make chemical hazard information available upon request by the LEPC rather 

than requiring it to be automatically submitted by the facility;

 Require that a public meeting be held only after an RMP reportable accident; and

 Allow public meetings to be combined with any meeting open to the general 

public (e.g. city council, municipal board, or LEPC meeting). 

The Panel also recommended that EPA seeks comments on:

 Narrowing the approach to require a one page summary of each significant 

chemical hazard during a fire identifying the product, its properties, its location 

and firefighting measures for responders-- a one-page summary of information 

that addresses chemical hazard information and emergency response measures;

 Limiting the amount of information to be shared with LEPCs; 

 Whether EPA should specify a format for summary information to make it easier 

for local officials to find and interpret the information that they needThese 

include:

 Ways to limit the scope of the information elements shared with the public as 

well as the format in which information should be provided (e.g. a one-page 

summary of information that addresses chemical hazard information and 

emergency response measures);

 Whether the existing RMP data, including the executive summary, are adequate 

for the public in the absence of a specific request, and 

 Whether additional information should only be provided to the public upon 

request.

 Whether it is appropriate to require public meetings;
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 Whether to eliminate the public meeting requirement and instead require the 

facility to schedule a meeting with the LEPC and/or emergency responders 60 to 

90 days after an accident or incident;

 Whether public meetings should be held upon request (e.g., LEPC or its 

community equivalent) rather than automatically within an established 

timeframe; and

Extending the timeframe from 30 to 90 days or whether there is a more 

appropriate timeframe for scheduling a meeting following an RMP reportable

accident and who should be included in the invitation (e.g. limit to local 

emergency response officials and LEPCs).

 <List of SBAR recommendations for Information Disclosure>

EPA incorporated preamble language to address these pPanel recommendations in 

section VI of this document. EPA also revised the proposed rule to incorporate the following two 

Panel recommendations as the proposed options:

 Make chemical hazard information available upon request by the LEPC rather 

than requiring it to be automatically submitted by the facility; and

 Require that a public meeting be held only after an RMP reportable accident.

The proposed rule would require all facilities to disclose certain chemical hazard 

information to the public. The facility or its parent company, if applicable, would have to make 

the information available in an easily accessible manner, which might be presenting information 

on a company website, posting the information at public libraries, publishing it in local papers, or 

other means appropriate for particular communities and facilities. The information to be disclosed 

includes names and quantities of regulated substances at the facility; SDS; accident history 

information; emergency response program information; and LEPC or local response agency 

contact information.
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In addition, facility owners or operators would be required to provide the LEPC or other 

local response agencies with information annually on all of the following that apply to the 

facility: regulated substances; five-year reportable accident history; summaries of compliance 

audit reports; summaries of incident investigation reports; summaries of implementation of IST; 

and information on emergency response exercises, including schedules for upcoming exercises. 

Although EPA did not analyze alternatives for this provision, the different applicability for the 

STAA provision alternatives increases the cost of the medium/high alternative for disclosure to 

the LEPC because more facilities would have to report on that analysis.

Public Meeting—(proposed revisions apply to § 68.210)

The proposed rule would require facilities to hold a public meeting for the local 

community at least once every 5 years or within a year of a reportable accident. The low cost 

alternative applies the requirement to facilities with Program 2 or Program 3 processes. The 

medium/high cost alternative would apply it to all facilities (i.e., Program 1 facilities would also 

be affected). 

7. Small Business Advocacy Review

As required by section 609(b) of the RFA, the EPA also convened a Small Business 

Advocacy Review (SBAR) Panel to obtain advice and recommendations from small entity 

representativeSERs that potentially would be subject to the rule's requirements. The SBAR Panel 

evaluated the assembled materials and small-entity comments on issues related to elements of an 

IRFA. The SBAR report contains the recommendations to the EPA Administrator from the three 

Federal Panel members (EPA, the Small Business Administration Office of Advocacy and the 

Office of Management and BudgetOMB Office of Information and Regulatory Affairs). This 

proposal was informed Tby the small entity comments and the Panel report recommendations 

were used in the development of this proposal, as provided in section 609(b) of the RFA. A copy 

of the full SBAR Panel Report is available in the rulemaking docket.

D. Unfunded Mandates Reform Act (UMRA)

Commented [A345]: IA Comment #105 Page 193, 

recommended insert: As required by section 609(b) of the RFA, the 

EPA also convened a Small Business Advocacy Review (SBAR) Panel 

to obtain advice and recommendations from small entity 

representatives that potentially would be subject to the rule's 

requirements. The SBAR Panel evaluated the assembled materials 

and small-entity comments on issues related to elements of an 

IRFA. The SBAR report contains the recommendations to the EPA 

Administrator from the three federal panel members (EPA, the 

Small Business Administration Office of Advocacy and the Office of 

Management and Budget Office of Interagency Affairs). This 

proposal was informed The small entity comments and the panel 

report recommendations were used in the development of this 

proposal, as provided in section 609(b) of the RFA. A copy of the 

full SBAR Panel Report is available in the rulemaking docket.

Commented [A346R345]: Change incorporated with 

modifications. Office of Interagency Affairs was changed to Office of 

Information and Regulatory Affairs.
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This action contains a Federal mandate under UMRA, 2 U.S.C. 1531–1538, that may 

result in expenditures of $100 million or more for state, local, and tribal governments, in the 

aggregate, or the private sector in any one year. Accordingly, the EPA has prepared a written 

statement required under section 202 of UMRA. The statement is included in the docket for this 

action and briefly summarized here.

Over the 16 years of implementing the RMP program and, most recently through 

Executive Order 13650 listening sessions, webinars, and consultations, EPA has engaged states 

and local communities to discuss chemical safety issues. In the nine Executive Order 13650 

Improving Chemical Facility Safety and Security listening sessions and webinars, held between 

November 2013 and January 2014, states and local communities identified lack of chemical 

facility participation and coordination in local emergency contingency planning as a key barrier 

to successful local community preparedness. Additionally, EPA has had consultations with states 

and local communities through participation in the NASTTPO annual meetings to discuss key 

issues related to chemical facility and local community coordination and what areas of the RMP 

regulations need to be modernized to facilitate this coordination and improve local emergency 

preparedness and prevention. Key priority options discussed with NASTTPO states and local 

communities included: improving emergency response coordination between RMP facilities and 

LEPCs/first responder and requiring emergency response exercises of the RMP facility plan to 

involve LEPCs, first responders and emergency response personnel.

This action may significantly or uniquely affect small governments. The EPA consulted 

with small governments concerning the regulatory requirements that might significantly or 

uniquely affect them. Through the July 31, 2014, RFI (79 FR 44604), EPA sought feedback from 

governmental entities while formulating the proposed revisions in this action. Additionally, EPA 

participated in ongoing consultations with affected small entity representativesSERs (including 

small governmental entities) through a Small Business Advocacy Review (the SBAR) panel. EPA 

Commented [A347]: IA Comment #106 Page 194, Could we 

see a copy of any written NASTTPO comments? 

Commented [A348R347]: EPA will provide.
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convened an SBAR panel in accordance with the requirements of the RFA, as amended by the 

Small Business Regulatory Enforcement Fairness Act (SBREFA).

E. Executive Order 13132: Federalism

This action does not have Federalism implications. The EPA believes, however, that 

these proposed regulatory revisions may be of significant interest to local governments. 

Consistent with the EPA’s policy to promote communications between the EPA and state and 

local governments, and to better understand the concerns of local governments, EPA sought 

feedback through the July 31, 2014, RFI (79 FR 44604). Additionally, consultations with 

governmental entities occurred through the SBREFA process.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

This action has tribal implications. However, it will neither impose substantial direct 

compliance costs on federally recognized tribal governments, nor preempt tribal law. EPA will be 

consulting with tribal officials as it develops this regulation to permit them to have meaningful 

and timely input into its development. Consultation will include conference calls, webinars, and 

meetings with interested tribal representatives to ensure that their concerns are addressed before 

the rule is finalized. In the spirit of Executive Order 13175 and consistent with EPA policy to 

promote communications between EPA and tribal governments, EPA specifically solicits 

comment on this proposed rule from tribal officials.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety 

Risks

This action is not subject to Executive Order 13045 because the EPA does not believe the

environmental health risks or safety risks addressed by this action present a disproportionate risk 

to children. The EPA believes that the proposed revisions to the Risk Management Program 

regulations would further protect human health, including the health of children, through 

advancement of process safety.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use
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This proposed action is not a ‘‘significant energy action’’ because it is not likely to have 

a significant adverse effect on the supply, distribution, or use of energy. This proposed action is 

not anticipated to have notable impacts on emissions, costs or energy supply decisions for the 

affected electric utility industry.

I. National Technology Transfer and Advancement Act (NTTAA)

This action involves technical standards. The EPA proposes to require third-party 

auditors to be experienced with applicable RAGAGEP, which include Voluntary Consensus 

Standards (VCS) as well as other measures, for regulated processes being audited. Numerous 

different standards apply to processes regulated under the proposed rule and their application will 

vary depending on the particular process and chemicals involved. EPA is not proposing to list all 

the various codes, standards and practices that would apply to the wide variety of chemical 

processes covered by this rule as doing so would be impracticable, given that this rule affects 

sectors across many industries and listing the applicable RAGAGEP measures would require the 

EPA to update that list every time there was a change in the industry standards or best practices. 

The proposed rule would require third-party auditors to be familiar with standards applicable to 

processes they audit, and to obtain their own copies of applicable standards where needed. 

Auditors must be knowledgeable of applicable consensus standards because the accident 

prevention program provisions of the existing rule (Subparts subparts C and D) require owners or 

operators to comply with RAGAGEP. Therefore, auditors must be knowledgeable of those 

practices in order to perform an effective audit. EPA seeks comment on this proposed RAGAGEP 

requirement.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations

The EPA believes the human health or environmental risk addressed by this action will 

not have potential disproportionately high and adverse human health or environmental effects on 
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minority, low income, or indigenous populations. The results of this evaluation are included in 

the RIA, located in the docket.
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List of Subjects

40 CFR part 68

Environmental protection, Administrative practice and procedure, Air pollution control, 

Chemicals, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping 

requirements.

Dated: ____________________________________________

___________________________________________________

Gina McCarthy,

Administrator.
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For the reasons set out in the preamble, title 40, chapter I, Part part 68, of the Code of 

Federal Regulations CFR is proposed to be amended as follows:

PART 68—CHEMICAL ACCIDENT PREVENTION PROVISIONS

1. The authority citation for part 68 continues to read as follows:

Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f. 

2. Amend § 68.3 to by:

a. Adding in alphabetical order the definition “Active measures”;

b. Revising the definition “Catastrophic release”, and

c. Adding in alphabetical order, the definitions, “CBI”, “Feasible”, “Inherently safer 

technology or design”, “LEPC”, “Passive measures”, “Procedural measures”, “Root 

cause”, and “Third-party audit”.

Trevise the definition of “catastrophic release” and add the following additions and 

revisionsdefinitions in alphabetical order to read as follows:

§ 68.3 Definitions.

* * * * *

Active measures means risk management measures or engineering controls that rely on 

mechanical, or other energy input to detect and respond to process deviations. Examples of active 

measures include alarms, safety instrumented systems, and detection hardware (such as 

hydrocarbon sensors)

* * * * *

Catastrophic release means a major uncontrolled emission, fire, or explosion, involving one or 

more regulated substances that results in deaths, injuries, or significant property damage on-site, 

or known offsite deaths, injuries, evacuations, sheltering in place, property damage, or 

environmental damage.

CBI means confidential business information.

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Commented [A349]: IA Comment #108 Page 198, 68.3, 

consider defining – STAA, accident or incident (based on the 

comments above)

Commented [A350R349]: Safer Technology and Alternatives. 

The reg. language in 68.67(i) explains the required elements for the 

safer technology and alternative risk management measures and no 

additional definition is necessary. EPA does not use the term STAA 

in reg. language. The four required elements (IST/ISD, active, 

passive and procedural measures are all defined in 68.3).

Accident/Incident.

These terms are already used in the existing regulation and EPA is 

not proposing to make any changes to these terms.
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* * * * *

Feasible means capable of being successfully accomplished within a reasonable time, accounting 

for economic, environmental, legal, social, and technological factors. Environmental factors 

would include consideration of potential transferred risks for new risk reduction measures. 

* * * * *

Inherently safer technology or design means risk management measures that minimize the use of 

regulated substances, substitute less hazardous substances, moderate the use of regulated 

substances, or simplify covered processes in order to make accidental releases less likely, or the 

impacts of such releases less severe.

* * * * *

LEPC means local emergency planning committee as established under 42 U.S.C. 11001(c).

* * * * *

Passive measures means risk management measures that use design features that reduce the 

hazard without human, mechanical, or other energy input. Examples of passive measures include 

pressure vessel designs, dikes, berms, and blast walls. 

* * * * *

Procedural measures means risk management measures such as policies, operating procedures, 

training, administrative controls, and emergency response actions to prevent or minimize 

incidents.

* * * * *

Root cause means a fundamental, underlying, system-related reason why an incident occurred 

that identifies a correctable failure(s) in management systems. 

* * * * *

Third-party audit means a compliance audit conducted pursuant to the requirements of §§ 68.59 

and/or 68.80, by an entity (individual or firm) meeting the competency, independence and 

impartiality criteria in those sections.

Commented [A351]: IA Comment #107 Page 198, 68.3, replace 

“feasible” with “practicable” (replace all other uses of feasible in 

the standard with practicable.

Commented [A352R351]: EPA disagrees. See response to IA 

Comment #2.

Commented [A353]: IA Comment #109 Page 200, recommend 

the following edit: “Inherently sSafer technology and alternatives or 

design means risk management measures that...”

Commented [A354R353]: Recurring comment. This definition 

is intended for IST/ISD and not the full hierarchy of controls under 

STAA

Commented [A355]: IA Comment #110 Page 200, For the 

definition of Inherently safer technology or design, as mentioned 

previously, the definition of moderation here does not matach the 

definition listed in the preamble on pages 78 & 79 “..using less 

hazardous conditions or a less hazardous form, or designing 

facilities that minimize the impact of a release of hazardous 

material or energy...” Perhaps EPA can review for consistency.

Commented [A356R355]: EPA uses the term “moderation” in 

the definition of IST/ISD and does not define moderation in the reg. 

text. The preamble discussion is intended to further clarify what 

moderation means.
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* * * * *

3. Amend § 68.10 as followsby:

a. Revisinge paragraphs (a) introductory text; (a)(1) through (3); and adding paragraph 

(a)(4);

b. Redesignatinge paragraphs (b) through (f) as paragraphs (f) through (j);

c. Adding new paragraphs (b) through (e); and

d. Revisinge redesignated the newly designated paragraph (f)(2).

The revisions and additions read as follow:

§ 68.10 Applicability.

(a) Except as provided in paragraphs (b) through (e) of this section, an owner or operator 

of a stationary source that has more than a threshold quantity of a regulated substance in a 

process, as determined under § 68.115, shall comply with the requirements of this part no later 

than the latest of the following dates: 

* * * * *

(2) Three years after the date on which a regulated substance is first listed under §

68.130; 

(3) The date on which a regulated substance is first present above a threshold quantity in 

a process; or

(4) For any revisions to this part, the effective date of the final rule. 

(b) Within 1 year of [INSERT DATE 1 YEAR AFTER THE EFFECTIVE DATE OF 

THE FINAL RULE] the owner or operator of a stationary source shall comply with the 

emergency response coordination activities in § 68.93(a) and 68.93(b).

(c) Within 3 years of the LEPC or equivalent requesting in writing, pursuant to §

68.90(b)(2), the owner or operator must develop and implement an emergency response program 

in accordance with § 68.95.
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(d) By [INSERT DATE 4 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL 

RULE], the owner or operator shall comply with the following provisions promulgated on 

[InsertPUBLICATION DATE OF FINAL RULE rule publication date]:

(1) Third-party audit provisions in §§ 68.58(f), 68.58(g), 68.58(h), 68.59, 68.79(f), 

68.79(g), 68.79(h), and 68.80;

(2) Incident investigation root cause analysis provisions in §§ 68.60(d)(7) and 68.81(d)(7) 

and the incident root cause category information provision in § 68.42(b)(10);

(3) Safer technology and alternative analysis provisions in § 68.67(c)(8);

(4) Emergency response exercise provisions of § 68.96, and;

(5) Availability of information provisions in §§ 68.205, 68.210(b), 68.210(c), and 

68.210(d).

(e) By [INSERT DATE 5 YEARS AFTER EFFECTIVE DATE OF THE FINAL 

RULE], the owner or operator shall comply with the risk management plan provisions of Subpart 

subpart G promulgated on [INSERT PUBLICATION DATE OF FINAL RULE].

* * * * *

4. Amend § 68.12 by:

a. Revising paragraphs (c)(4) and (5), and adding paragraph (c)(6); and

b. Revising paragraphs (d)(4) and (5), and adding paragraph (d)(6).

The revisions and additions to revise paragraphs (c) and (d) to read as follows:

§ 68.12 General requirements.

* * * * *

(c) * * *

(4) Coordinate response actions with local emergency planning and response agencies as 

provided in § 68.93;

(5) Develop and implement an emergency response program, and conduct exercises, as 

provided in §§ 68.90 to 68.96; and 
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(6) Submit as part of the RMP the data on prevention program elements for Program 2 

processes as provided in § 68.170. 

(d) * * * 

(4) Coordinate response actions with local emergency planning and response agencies as 

provided in § 68.93;

(5) Develop and implement an emergency response program, and conduct exercises, as 

provided in §§ 68.90 to 68.9596 of this part; and 

(6) Submit as part of the RMP the data on prevention program elements for Program 3 

processes as provided in § 68.175.

5. Amend § 68.42 byas follows:

a. rRedesignatinge paragraphs (b)(10) and (b)(11) as paragraphs (b)(11) and (b)(12); and

b. A adding a new paragraph (b)(10) to read as follows:

§ 68.42 Five-year accident history.

* * * * *

(b) * * * 

(10) Categories of root causes identified based on the root cause analysis required in the 

incident investigation in accordance with § 68.60(d)(7) or § 68.81(d)(7);

* * * * *

6. Amend § 68.48 to by revisinge paragraph (a)(1) to read as follows:

§ 68.48 Safety information.

(a) * * * 

(1) Safety Data Sheets (SDS) that meet the requirements of 29 CFR 1910.1200(g);

* * * * *

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7. Amend § 68.50 to by revisinge paragraph (a)(2) to read as follows:

§ 68.50 Hazard review.

(a) * * * 

(2) Opportunities for equipment malfunctions or human errors that could cause an 

accidental release, including findings from incident investigations;

* * * * *

8. Amend § 68.54 as followsby:

a. Revisinge paragraphs (a), (b), and (d); and

b. Adding a new paragraph (e).

The revisions and addition read as follows:.

§ 68.54 Training.

(a) The owner or operator shall ensure that each employee presently involved in 

operating a process, and each employee newly assigned to a covered process have been trained or 

tested competent in the operating procedures provided in § 68.52 that pertain to their duties. For 

those employees already operating a process on June 21, 1999, the owner or operator may certify 

in writing that the employee has the required knowledge, skills, and abilities to safely carry out 

the duties and responsibilities as provided in the operating procedures. 

(b) Refresher training. Refresher training shall be provided at least every three years, and 

more often if necessary, to each employee involved in operating a process to ensure that the 

employee understands and adheres to the current operating procedures of the process. The owner 

or operator, in consultation with the employees operating the process, shall determine the 

appropriate frequency of refresher training. 

* * * * *

(d) The owner or operator shall ensure that employees involved in operating a process are 

trained in any updated or new procedures prior to startup of a process after a major change.

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(e) For the purposes of this section, the term employee also includes supervisors 

responsible for directing process operations.

9. Amend § 68.58 as follows:

a. R by revisinge paragraph (a); and

b. Aadding new paragraphs (f) through (h) to read as follows:.

§ 68.58 Compliance audits.

(a) The owner or operator shall certify that they have evaluated compliance with the 

provisions of this subpart for each covered process, at least every three years to verify that the 

procedures and practices developed under the rule are adequate and are being followed. When 

required as set forth in paragraph (f), the compliance audit shall be a third-party audit. 

* * * * *

(f) Third-party audit applicability. The next required compliance audit shall be a thirdparty audit when one of the following conditions apply:

(1) An accidental release meeting the criteria in § 68.42(a) from a covered process at a 

stationary source has occurred; or

(2) An implementing agency requires a third-party audit based on non-compliance with 

the requirements of this subpart, including when a previous third-party audit failed to meet the 

competency, independence, or impartiality criteria of § 68.59(b).

(g) Implementing agency notification and appeals.

(1) If an implementing agency makes a preliminary determination that a third-party audit 

is necessary pursuant to paragraph (f)(2) of this section, the implementing agency will provide 

written notice to the owner or operator stating the reasons for the implementing agency’s 

determination.

(2) Within 30 days of receipt of such written notice, the owner or operator may provide 

information and data to, and may consult with, the implementing agency on the determination. 

Thereafter, the implementing agency will provide a final determination to the owner or operator.

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(3) If the final determination requires a third-party audit, the owner or operator shall 

comply with the requirements of § 68.59, pursuant to the schedule in paragraph (h) of this 

section.

(4) Appeals. The owner or operator may appeal a final determination made by an 

implementing agency under paragraph (g)(2) of this section within 30 days of receipt of the final 

determination. The appeal shall be made to the EPA Regional Administrator, or for 

determinations made by other implementing agencies, the administrator or director of such 

implementing agency. The appeal shall contain a clear and concise statement of the issues, facts 

in the case, and any relevant additional information. In reviewing the appeal, the implementing 

agency may request additional information from the owner or operator. The implementing agency 

will provide a written, final decision on the appeal to the owner or operator.

(h) Schedule for conducting a third-party audit. The audit and audit report shall be 

completed, and the audit report submitted to the implementing agency pursuant to § 68.59(c)(3) 

as follows, unless a different timeframe is specified by the implementing agency: 

(1) Within 12 months of when any third-party audit is required pursuant to paragraphs (f) 

and/or (g) of this section; or

(2) Within three years of completion of the previous compliance audit, whichever is 

sooner.

10. Add §Section 68.59 is added to Subpart subpart C to read as follows:

§ 68.59 Third-party audits.

(a) The owner or operator shall engage a third-party auditor to evaluate compliance with 

the provisions of this subpart in accordance with the requirements of this section when either 

criterion of § 68.58(f) is met. 
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(b) Auditor qualifications. The owner or operator shall determine and document that the 

auditor and/ or audit team are independent and impartial, and that the auditor’s or audit team’s 

credentials address the following competency requirements: 

(1) Competency requirements. The auditor/auditor team shall be:

(i) Knowledgeable with the requirements of this part;

(ii) Experienced with the stationary source type and processes being audited and 

applicable recognized and generally accepted good engineering practices;

(iii) Trained or certified in proper auditing techniques; and

(iv) A licensed Professional Engineer, or shall include a licensed PE on the audit team.

(2) Independence and impartiality requirements. The auditor/audit team shall:

(i) Act impartially when performing all activities under this section; 

(ii) Receive no financial benefit from the outcome of the audit, apart from payment for 

the auditing services;

(iii) Not have conducted past research, development, design, construction services, or 

consulting for the owner or operator within the last 3 years. For purposes of this requirement, 

consulting does not include performing or participating in third-party audits pursuant to §§ 68.59 

or 68.80;

(iv) Not provide other business or consulting services to the owner or operator, including 

advice or assistance to implement the findings or recommendations in an audit report, for a period 

of at least 3 years following submission of the final audit report;

(v) Ensure that all personnel involved in the audit sign and date the conflict of interest 

statement in § 68.59(d)(8); and

(vi) Ensure that all personnel involved in the audit do not accept future employment with 

the owner or operator of the stationary source for a period of at least 3 years following 

submission of the final audit report. For purposes of this requirement, employment does not 

include performing or participating in third-party audits pursuant to §§ 68.59 or 68.80.
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(3) The auditor shall have written policies and procedures to ensure that all personnel 

comply with the competency, independence, and impartiality requirements of this section. 

(c) Third-party audit report. The owner or operator shall ensure that the auditor prepares 

and submits an audit report as follows:

(1) The scope and content of each audit report shall: 

(i) Identify the lead auditor or manager, participating individuals, and any other key 

persons participating in the audit, including names, titles, and summaries of qualifications 

demonstrating that the competency requirements in paragraph (b)(1) of this section are met;

(ii) Document the auditor’s evaluation, for each covered process, of the owner or 

operator’s compliance with the provisions of this subpart to determine whether the procedures 

and practices developed by the owner or operator under this rule are adequate and being 

followed;

(iii) Document the findings of the audit, including any identified compliance or 

performance deficiencies;

(iv) Include a summary of the owner’s or operator’s comments on, and identify any 

adjustments made by the auditor to, any draft audit report provided by the auditor to the owner or 

operator for review or comment; and 

(v) Include the following certification, signed and dated by the auditor or supervising 

manager for the audit: 

“I certify that this RMP compliance audit report was prepared under my direction or supervision in 

accordance with a system designed to assure that qualified personnel properly gather and evaluate 

the information upon which the audit is based. I further certify that the audit was conducted and 

this report was prepared pursuant to the requirements of subpart C of 40 CFR Part part 68 and all 

other applicable auditing, competency, independence, impartiality, and conflict of interest 

standards and protocols. Based on my personal knowledge and experience, and inquiry of 

personnel involved in the audit, the information submitted herein is true, accurate, and complete. I 

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am aware that there are significant penalties for submitting false information, including the 

possibility of fines and imprisonment for knowing violations.”

(2) The auditor shall retain copies of all audit reports and related records for a period of 

five years, and make them available if directed by the owner or operator, to the owner or operator 

and/or the implementing agency.

(3) The auditor shall submit the audit report to the implementing agency at the same time, 

or before, it provides it to the owner or operator.

(4) The audit report and related records shall not be privileged as attorney-client 

communications or attorney work products, even if written for or reviewed by legal staff.

(d) Third-party audit findings. (1) Findings response report. As soon as possible, but no 

later than 90 days after receiving the final audit report, the owner or operator shall determine an 

appropriate response to each of the findings in the audit report, and develop and provide to the 

implementing agency a findings response report that includes: 

(i) A copy of the final audit report; 

(ii) An appropriate response to each of the audit report findings;

(iii) A schedule for promptly addressing deficiencies; and 

(iv) A certification, signed and dated by a senior corporate officer, or an official in an 

equivalent position, of the owner or operator of the stationary source, stating:

“I certify under penalty of law that the attached RMP compliance audit report was received, 

reviewed, and responded to under my direction or supervision by qualified personnel. I further 

certify that appropriate responses to the findings have been identified and deficiencies were 

corrected, or are being corrected, consistent with the requirements of subpart C of 40 CFR Part 

part 68, as documented herein. Based on my personal knowledge and experience, or inquiry of 

personnel involved in evaluating the report findings and determining appropriate responses to the 

findings, the information submitted herein is true, accurate, and complete. I am aware that there 

are significant penalties for submitting false information, including the possibility of fines and 

imprisonment for knowing violations.”

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(2) Schedule to address deficiencies. The owner or operator shall implement the schedule 

to address deficiencies identified in the audit findings response report in paragraph (d)(1)(iii) of 

this section and document the action taken to address each deficiency, along with the date 

completed.

(3) Submission to board of directors. The owner or operator shall immediately provide a 

copy of each document required under paragraphs (d)(1) and (d)(2) of this section, when 

completed, to the owner or operator’s audit committee of the Board of Directors, or other 

comparable committee, if one exists.

(e) Recordkeeping. The owner or operator shall retain at the stationary source, the 

following:

(1) The two most recent third-party audit reports, related findings response reports, 

documentation of actions taken to address deficiencies, and related records. This requirement 

does not apply to any document that is more than five years old.

(2) Copies of all draft third-party audit reports. The owner or operator shall provide draft 

third-party audit reports to the implementing agency upon request. This requirement does not 

apply to any draft audit reports that are more than five years old.

11. Revise Amend § 68.60 as followsby:

a. Revisinge paragraph (a);

b. Redesignatinge paragraphs (c) through (f) as paragraphs (d) through (g);

c. Adding a new paragraph (c); and

d. Revising the newlyre designated paragraphs (d) and (g).

The revisions and additions read as follows:

§ 68.60 Incident investigation.

(a) The owner or operator shall investigate each incident that:

(1) Resulted in a catastrophic release (including when the affected process is 

decommissioned or destroyed following, or as the result of, an incident); or

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(2) Could reasonably have resulted in a catastrophic release (i.e., was a near miss).

* * * * *

(c) An incident investigation team shall be established and consist of at least one person 

knowledgeable in the process involved and other persons with appropriate knowledge and 

experience to thoroughly investigate and analyze the incident.

(d) A report shall be prepared at the conclusion of the investigation. The report shall be 

completed within 12 months of the incident, unless the implementing agency approves, in 

writing, an extension of time. The report shall include:

(1) Date, time, and location of incident;

(2) Date investigation began;

(3) A description of the incident, in chronological order, providing all relevant facts;

(4) The name and amount of the regulated substance involved in the release (e.g., fire, 

explosion, toxic gas loss of containment) or near miss and the duration of the event;

(5) The consequences, if any, of the incident including, but not limited to: injuries, 

fatalities, the number of people evacuated, the number of people sheltered in place, and the 

impact on the environment;

(6) Emergency response actions taken;

(7) The factors that contributed to the incident including the initiating event, direct and 

indirect contributing factors, and root causes. Root causes shall be determined by conducting an 

analysis for each incident using a recognized method; and

(8) Any recommendations resulting from the investigation and a schedule for addressing 

them.

* * * * *

(g) Incident investigation reports shall be retained for five years.
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12. Amend § 68.65 to by revisinge the first sentence of paragraph (a) first sentence and revise the 

note to paragraph (b)and “Note to paragraph (b)”. to 

The revisions and additions read as follows:

§ 68.65 Process safety information. 

(a) The owner or operator shall complete a compilation of written process safety 

information before conducting any process hazard analysis required by the rule, and shall keep 

process safety information up-to-date. * * *

(b) * * * Information pertaining to the hazards of the regulated substances in the 

process. This information shall consist of: 

* * * * *

(7) HAZARDOUS EFFECTS OF INADVERTENT MIXING OF DIFFERENT MATERIALS THAT 

COULD FORESEEABLY OCCUR.

NOTE TO PARAGRAPH (b): Safety Data Sheets (SDS) meeting the requirements of 29 CFR 

1910.1200(g) may be used to comply with this requirement to the extent they contain the 

information required by this subparagraph.

* * * * *

13. Amend § 68.67 to revise paragraph (c) as followsby:

a. Revising paragraph (2);

b. In paragraph (6) remove the word “and”

c. In paragraph (7) by removing “.” and adding “; and” in its place; and

d. Adding paragraph (8).

The revisions and additions read as follows:

§ 68.67 Process hazard analysis. 

* * * * *

(c) * * *

Commented [A358R357]: Change incorporated.

Commented [A357]: IA Comment #111 Page 210, 68.65(b) –

This changes requirements of an exclusive list versus the existing 

language which says, “This information shall consist of at least the 

following...” ie. request adding back the “at least”.

Formatted: Small caps
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* * * * *

(2) The findings from all incident investigations required under section 68.81, as well as 

any other potential failure scenarios;

* * * * *

(6) Human factors;

(7) A qualitative evaluation of a range of the possible safety and health effects of failure 

of controls; and 

(8) For processes in NAICS 322, 324, and 325, safer technology and alternative risk 

management measures applicable to eliminating or reducing risk from process hazards.

(i) The owner or operator shall consider, in the following order of preference, inherently 

safer technology or design, passive measures, active measures, and procedural measures. A 

combination of risk management measures may be used to achieve the desired risk reduction. 

(ii) The owner or operator shall determine the feasibility of the inherently safer 

technologies and designs considered. 

* * * * *

14. Revise Amend § 68.71 to by adding a new paragraph (d) to read as follows:

§ 68.71 Training. 

* * * * *

(d) For the purposes of this section, the term employee also includes supervisors with 

process operational responsibilities.

15. Amend § 68.79 by revising paragraph (a) and adding paragraphs (f) through (h) to read as 

follows:

a. Revise paragraph (a); and

b. Add new paragraphs (f) through (h). 

§ 68.79 Compliance audits.

Commented [A359]: IA Comment #112 Page 210, 68.67 (c)(2) 

“potential failure scenarios” are not defined and are not selfevident.

Commented [A360R359]: EPA added additional preamble 

language on page 52 to provide examples.

Commented [A361]: IA Comment #113 Page 210, 68.67(c)(8)(i) 

– The first sentence clearly states that owner/operators should 

follow the hierarchy of controls in determining safeguards. The 

second sentence may give an owner/operator an out to use 

multiple lower level safeguards. Consider qualifying or deleting the 

second sentence.

Commented [A362R361]: EPA disagrees. EPA is requiring 

owners or operators to consider use of risk reduction measures 

using the hierarchy, but is not requiring what specific measures 

they should use because a decision to implement IST has to take 

into consideration, other hazards and risks. The use of inherently 

safer technologies or design may not eliminate all risk. In some 

cases, it may decrease the hazard, but would increase the overall 

risk or provide less risk reduction than an alternative 

recommendation (see pg. 100 of preamble citing CCPS. 2009. 

Inherently Safer Chemical Processes). An option may be inherently 

safer with regard to some hazards and inherently less safe with 

regard to others (see pg, 81 of preamble citing CCPS. July 2010. 

Final Report: Definition for IST); decisions about the optimum 

strategy for managing risks from all hazards are required. Choosing 

between options for process design involves considering a series of 

tradeoffs and developing appropriate combinations of inherent, 

passive, active, and procedural safety systems to manage all 

hazards. (see pgs. 87-88 of preamble citing NAS. 2012. SummaryThe Use and Storage of MIC at Bayer CropScience).

Commented [A363]: IA Comment #114 Page 211, recommend 

the following edits: “(ii) The owner or operator shall determine the 

feasibility of the inherently safer technologies and alternatives

designs considered.

Commented [A364R363]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.
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(a) The owner or operator shall certify that they have evaluated compliance with the 

provisions of this subpart for each covered process, at least every three years to verify that the 

procedures and practices developed under the rule are adequate and are being followed. When 

required as set forth in paragraph (f), the compliance audit shall be a third-party audit. 

* * * * *

(f) Third-party audit applicability. The next required compliance audit shall be a thirdparty audit when one of the following conditions apply:

(1) An accidental release meeting the criteria in § 68.42(a) from a covered process at a 

stationary source has occurred; or

(2) An implementing agency requires a third-party audit based on non-compliance with 

the requirements of this subpart, including when a previous third-party audit failed to meet the 

competency, independence, or impartiality criteria of § 68.80(b).

(g) Implementing agency notification and appeals. (1) If an implementing agency makes 

a preliminary determination that a third-party audit is necessary pursuant to paragraph (f)(2) of 

this section, the implementing agency will provide written notice to the owner or operator stating 

the reasons for the implementing agency’s determination.

(2) Within 30 days of receipt of such written notice, the owner or operator may provide 

information and data to, and may consult with, the implementing agency on the determination. 

Thereafter, the implementing agency will provide a final determination to the owner or operator.

(3) If the final determination requires a third-party audit, the owner or operator shall 

comply with the requirements of § 68.80, pursuant to the schedule in paragraph (h) of this 

section.

(4) Appeals. The owner or operator may appeal a final determination made by an 

implementing agency under paragraph (g)(2) of this section within 30 days of receipt of the final 

determination. The appeal shall be made to the EPA Regional Administrator, or for 

determinations made by other implementing agencies, the administrator or director of such 
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implementing agency. The appeal shall contain a clear and concise statement of the issues, facts 

in the case, and any relevant additional information. In reviewing the appeal, the implementing 

agency may request additional information from the owner or operator. The implementing agency 

will provide a written, final decision on the appeal to the owner or operator.

(h) Schedule for conducting a third-party audit. The audit and audit report shall be 

completed, and the audit report submitted to the implementing agency pursuant to § 68.80(c)(3) 

as follows, unless a different timeframe is specified by the implementing agency: 

(1) Within 12 months of when any third-party audit is required pursuant to paragraphs (f) 

and/or (g) of this section; or

(2) Within three years of completion of the previous compliance audit, whichever is 

sooner.

16. Add §Section 68.80 is added to Subpart subpart D to read as follows:

§ 68.80 Third-party audits.

(a) The owner or operator shall engage a third-party auditor to evaluate compliance with 

the provisions of this subpart in accordance with the requirements of this section when either 

criterion of § 68.79(f) is met. 

(b) Auditor qualifications. The owner or operator shall determine and document that the 

auditor and/ or audit team are independent and impartial, and that the auditor’s or audit team’s 

credentials address the following competency requirements: 

(1) Competency requirements. The auditor/auditor team shall be:

(i) Knowledgeable with the requirements of this part;

(ii) Experienced with the stationary source type and processes being audited and 

applicable recognized and generally accepted good engineering practices;

(iii) Trained or certified in proper auditing techniques; and

(iv) A licensed Professional Engineer, or shall include a licensed PE on the audit team.
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(2) Independence and impartiality requirements. The auditor/audit team shall:

(i) Act impartially when performing all activities under this section; 

(ii) Receive no financial benefit from the outcome of the audit, apart from payment for 

the auditing services;

(iii) Not have conducted past research, development, design, construction services, or 

consulting for the owner or operator within the last 3 years. For purposes of this requirement, 

consulting does not include performing or participating in third-party audits pursuant to §§ 68.59 

or 68.80;

(iv) Not provide other business or consulting services to the owner or operator, including 

advice or assistance to implement the findings or recommendations in an audit report, for a period 

of at least 3 years following submission of the final audit report;

(v) Ensure that all personnel involved in the audit sign and date the conflict of interest 

statement in § 68.59(d)(8); and

(vi) Ensure that all personnel involved in the audit do not accept future employment with 

the owner or operator of the stationary source for a period of at least 3 years following 

submission of the final audit report. For purposes of this requirement, employment does not 

include performing or participating in third-party audits pursuant to §§ 68.59 or 68.80.

(3) The auditor shall have written policies and procedures to ensure that all personnel 

comply with the competency, independence, and impartiality requirements of this section. 

(c) Third-party audit report. The owner or operator shall ensure that the auditor prepares 

and submits an audit report as follows:

(1) The scope and content of each audit report shall: 

(i) Identify the lead auditor or manager, participating individuals, and any other key 

persons participating in the audit, including names, titles, and summaries of qualifications 

demonstrating that the competency requirements in paragraph (b)(1) of this section are met;
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(ii) Document the auditor’s evaluation, for each covered process, of the owner or 

operator’s compliance with the provisions of this subpart to determine whether the procedures 

and practices developed by the owner or operator under this rule are adequate and being 

followed;

(iii) Document the findings of the audit, including any identified compliance or 

performance deficiencies;

(iv) Include a summary of the owner’s or operator’s comments on, and identify any 

adjustments made by the auditor to, any draft audit report provided by the auditor to the owner or 

operator for review or comment; and 

(v) Include the following certification, signed and dated by the auditor or supervising 

manager for the audit: 

“I certify that this RMP compliance audit report was prepared under my direction or supervision in 

accordance with a system designed to assure that qualified personnel properly gather and evaluate 

the information upon which the audit is based. I further certify that the audit was conducted and 

this report was prepared pursuant to the requirements of subpart D of 40 CFR Part part 68 and all 

other applicable auditing, competency, independence, impartiality, and conflict of interest 

standards and protocols. Based on my personal knowledge and experience, and inquiry of 

personnel involved in the audit, the information submitted herein is true, accurate, and complete. I 

am aware that there are significant penalties for submitting false information, including the 

possibility of fines and imprisonment for knowing violations.”

(2) The auditor shall retain copies of all audit reports and related records for a period of 

five years, and make them available if directed by the owner or operator, to the owner or operator 

and/or the implementing agency.

(3) The auditor shall submit the audit report to the implementing agency at the same time, 

or before, it provides it to the owner or operator.

Formatted: Font: 10 pt
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(4) The audit report and related records shall not be privileged as attorney-client 

communications or attorney work products, even if written for or reviewed by legal staff.

(d) Third-party audit findings. (1) Findings response report. As soon as possible, but no 

later than 90 days after receiving the final audit report, the owner or operator shall determine an 

appropriate response to each of the findings in the audit report, and develop and provide to the 

implementing agency a findings response report that includes: 

(i) A copy of the final audit report; 

(ii) An appropriate response to each of the audit report findings;

(iii) A schedule for promptly addressing deficiencies; and 

(iv) A certification, signed and dated by a senior corporate officer, or an official in an 

equivalent position, of the owner or operator of the stationary source, stating:

“I certify under penalty of law that the attached RMP compliance audit report was received, 

reviewed, and responded to under my direction or supervision by qualified personnel. I further 

certify that appropriate responses to the findings have been identified and deficiencies were 

corrected, or are being corrected, consistent with the requirements of subpart D of 40 CFR Part 

part 68, as documented herein. Based on my personal knowledge and experience, or inquiry of 

personnel involved in evaluating the report findings and determining appropriate responses to the 

findings, the information submitted herein is true, accurate, and complete. I am aware that there 

are significant penalties for submitting false information, including the possibility of fines and 

imprisonment for knowing violations.”

(2) Schedule to address deficiencies. The owner or operator shall implement the schedule 

to address deficiencies identified in the audit findings response report in paragraph (d)(1)(iii) of 

this section and document the action taken to address each deficiency, along with the date 

completed.

(3) Submission to board of directors. The owner or operator shall immediately provide a 

copy of each document required under paragraphs (d)(1) and (d)(2) of this section, when 

Formatted: Underline

Formatted: Font: 10 pt

Formatted: Underline

Formatted: Underline
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completed, to the owner or operator’s audit committee of the Board of Directors, or other 

comparable committee, if one exists.

(e) Recordkeeping. The owner or operator shall retain at the stationary source, the 

following:

(1) The two most recent third-party audit reports, related findings response reports, 

documentation of actions taken to address deficiencies, and related records. This requirement 

does not apply to any document that is more than five years old.

(2) Copies of all draft third-party audit reports. The owner or operator shall provide draft 

third-party audit reports to the implementing agency upon request. This requirement does not 

apply to any draft audit reports that are more than five years old.

17. Amend § 68.81 toby reviseing paragraphs (a), and (d)(1), (d)(3) through (5), and adding 

paragraphs (d)(6) through (8) to read as follows:

§ 68.81 Incident investigation.

(a) The owner or operator shall investigate each incident that:

(1) Resulted in a catastrophic release (including when the affected process is 

decommissioned or destroyed following, or as the result of, an incident); or

(2) Could reasonably have resulted in a catastrophic release (i.e., was a near miss). 

* * * * *

(d) A report shall be prepared at the conclusion of the investigation. The report shall be 

completed within 12 months of the incident, unless the implementing agency approves, in 

writing, an extension of time. The report shall include:

(1) Date, time, and location of incident;

* * * * *

(3) A description of the incident, in chronological order, providing all relevant facts;

(4) The name and amount of the regulated substance involved in the release (e.g., fire, 

explosion, toxic gas loss of containment) or near miss and the duration of the event;
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(5) The consequences, if any, of the incident including, but not limited to: injuries, 

fatalities, the number of people evacuated, the number of people sheltered in place, and the 

impact on the environment;

(6) Emergency response actions taken;

(7) The factors that contributed to the incident including the initiating event, direct and 

indirect contributing factors, and root causes. Root causes shall be determined by conducting an 

analysis for each incident using a recognized, method; and

(8) Any recommendations resulting from the investigation and a schedule for addressing 

them.

* * * * *

18. Revise § 68.90 to read as follows:

§ 68.90 Applicability.

(a) Non-responding stationary source. The owner or operator of a stationary source need 

not comply with § 68.95 of this part provided that:

(1) The coordination activities required under § 68.93 indicate that adequate local public 

emergency response capabilities are available to appropriately respond to any accidental release 

of the regulated substances at the stationary source; 

(2) Appropriate mechanisms are in place to notify emergency responders when there is a 

need for a response; and 

(3) The LEPC or equivalent has not requested in writing that the owner or operator 

comply with the requirements of § 68.95. 

(b) Responding stationary source. The owner or operator of a stationary source shall 

coordinate response activities as described in § 68.93. The owner or operator shall also comply 

with the requirements of § 68.95 when: 
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(1) The outcome of the response coordination activities demonstrates that local public 

emergency response capabilities are not adequate to appropriately respond to an accidental 

release of the regulated substances at the stationary source; or

(2) The LEPC or equivalent requests in writing that the owner or operator of the 

stationary source comply with the requirements of § 68.95.

19. Add Section§ 68.93 is added to Subpart subpart E to read as follows:

§ 68.93 Emergency response coordination activities.

The owner or operator of a stationary source shall coordinate response needs with local 

emergency planning and response organizations to ensure resources and capabilities are in place 

to respond to an accidental release of a regulated substance.

(a) Coordination shall occur at least annually, and more frequently if necessary, to 

address changes: at the source; in the source’s emergency action plan; in local authorities’ 

response resources and capabilities; or in the local community emergency response plan. 

(b) The owner or operator shall document coordination with local authorities, including: 

the names of individuals involved and their contact information (phone number, email address, 

and organizational affiliations); dates of coordination activities; and nature of coordination 

activities.

(c) The owner or operator shall coordinate potential response actions as follows:

(1) For stationary sources with any regulated toxic substance held in a process above the 

threshold quantity, the owner or operator shall coordinate potential response actions with the 

LEPC or equivalent and ensure that the stationary source is included in the community 

emergency response plan developed under 42 U.S.C. 11003; and/or

(2) For stationary sources with only regulated flammable substances held in a process 

above the threshold quantity, the owner or operator shall coordinate response actions with the 

local fire department.

20. Amend § 68.95 as followsby:
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a. Revisinge paragraph (a)(1)(i); 

b. Adding a sentence to the end of Revise paragraph (a)(4) by adding a sentence at the 

end; and 

c. Revisinge paragraph (c).

The revisions and addition read as follows:

68.95 Emergency response program.

(a) * * *

(1) * * *

(i) Procedures for informing the public and the appropriate Federal, state, and local 

emergency response agencies about accidental releases; 

* * * * *

(4) * * * The owner or operator shall review and update the program annually, or more 

frequently if necessary, to incorporate recommendations and lessons learned from emergency 

response exercises and/or incident investigations, or other available information.

* * * * *

(c) The emergency response plan developed under paragraph (a)(1) of this section shall 

be coordinated with the community emergency response plan developed under 42 U.S.C. 11003. 

Upon request of the LEPC or emergency response officials, the owner or operator shall promptly 

provide to the local emergency response officials information necessary for developing and 

implementing the community emergency response plan.

21. SectionAdd § 68.96 is added to Subpart subpart E to read as follows:

§ 68.96 Emergency response exercises.

(a) Notification exercises. At least once each calendar year, the owner or operator of a 

stationary source with any Program 2 or Program 3 process shall conduct an exercise of the 

source’s emergency response notification mechanisms required under § 68.90(a)(2) or §
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68.95(a)(1)(i), as appropriate. Owners or operators of responding stationary sources may perform 

the notification exercise as part of the tabletop and field exercises required in § 68.96(b). The 

owner/operator shall maintain a written record of each notification exercise conducted over the 

last five years.

(b) Emergency response exercise program. The owner or operator of a stationary source 

subject to the requirements of § 68.95 shall develop and implement an exercise program for its 

emergency response program, including the plan required under § 68.95(a)(1). When planning 

emergency response field and tabletop exercises, the owner or operator shall coordinate with local 

public emergency response officials and invite them to participate in the exercise. The emergency 

response exercise program shall include:

(1) Emergency response field exercises. The owner or operator shall conduct a field 

exercise involving the simulated accidental release of a regulated substance (i.e., toxic substance 

release or release of a regulated flammable substance involving a fire and/or explosion).

(i) Frequency. The field exercise shall be conducted at least once every five years, and 

within one year of any accidental release required to be reported under § 68.42.

(ii) Scope. The field exercise shall include tests of: procedures to notify the public and the 

appropriate Federal, state, and local emergency response agencies about an accidental release; 

procedures and measures for emergency response actions including evacuations and medical 

treatment; communications systems; mobilization of facility emergency response personnel, 

including contractors, as appropriate; coordination with local emergency responders; equipment 

deployment; and any other action identified in the emergency response program, as appropriate.

(2) Tabletop exercises. The owner or operator shall conduct a tabletop exercise involving 

the simulated accidental release of a regulated substance. The exercise shall involve facility 

emergency response personnel, response contractors, and local emergency response and planning 

officials, as appropriate. 

Formatted: Underline

Formatted: Underline
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(i) Frequency. The owner or operator of a stationary source shall conduct tabletop 

exercises annually, except during the calendar year when a field exercise is conducted.

(ii) Scope. The exercise shall include tests of: procedures to notify the public and the 

appropriate Federal, state, and local emergency response agencies; procedures and measures for 

emergency response including evacuations and medical treatment; identification of facility 

emergency response personnel and/or contractors and their responsibilities; coordination with 

local emergency responders; procedures for equipment deployment; and any other action 

identified in the emergency response plan, as appropriate.

(3) Documentation. The owner/operator shall prepare an evaluation report within 90 days 

of each exercise. The report shall include: a description of the exercise scenario; names and 

organizations of each participant; an evaluation of the exercise results including lessons learned; 

recommendations for improvement or revisions to the emergency response exercise program and 

emergency response program, and a schedule to promptly address and resolve recommendations. 

22. Amend § 68.130 as follows by:

a. In Table 1, “List of Regulated Toxic Substances and Threshold Quantities for 

Accidental Release Prevention” [Alphabetical Order—77 Substances], under second column 

entitled “CAS No.”, removinge the CAS No.number “107-18-61” in the row for Allyl alcohol [2-

Propen-l-ol] and replace it with CAS No. adding “107-18-6” in its place; and

b. In Table 2, List of Regulated Toxic Substances and Threshold Quantities for 

Accidental Release Prevention [CAS Number Order—77 Substances], in column 1 remove dots 

and right justify the CAS numbers in the column; and

cb. InRevising Table 4, “List of Regulated Flammable Substances and Threshold 

Quantities for Accidental Release Prevention”.,

The revisions read as follows:

TABLE 4 TO §68.130—LIST OF REGULATED FLAMMABLE SUBSTANCES1 AND 

THRESHOLD QUANTITIES FOR ACCIDENTAL RELEASE PREVENTION 

[CAS Number Order—63 Substances]

Formatted: Underline

Formatted: Underline

Commented [A365]: IA Comment #115 Page 223, (3) 

Documentation: All references for what to share with the public 

regarding the exercise summary seem to point to this provision. 

Please see comments from the preamble:

This reviewer has concerns regarding the sharing of all the 

elements listed in this section with the public. Sharing certain 

elements is essentially providing a listing of vulnerabilities. 

These vulnerabilities could be used by a terrorist to either target 

a certain facility or the vulnerabilities could be exploited to 

increase the magnitude of an attack. 

This reviewer is also concerned that many facilities may not be 

experienced enough to develop one internal after action report 

and a second version of the after action report for the public. 

Recommend deleting lessons learned and recommendations for 

improvement from the documentation. Alternatively, EPA could 

consider being more specific and have facilities develop a 

separate document (or Appendix to the AAR) that is designed to 

be shared with the public that just provides a high level 

description of the scenario and participants.

Commented [A366R365]: EPA disagrees. EPA believes the 

elements for the report described in this section should remain. 

However, EPA added language on page 139 of the preamble (in the 

section discussing information disclosure to the public) seeking 

comment on how to limit sharing of information that could reveal 

security vulnerabilities.

Commented [A367]: , in column 1 remove dots and right justify 

the CAS numbers in the column; in column 1 remove CAS No. 196-

99-0 in the row for 1,3-Butadiene and replace it with CAS No. 106-

99-0; and remove the third column (CAS No.).
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CAS No. Chemical name

Threshold 

quantity 

(lbs)

Basis for 

listing

60-29-7Ethyl ether [Ethane, 1,1′-oxybis-] 10,000 g

74-82-8Methane 10,000 f

74-84-0Ethane 10,000 f

74-85-1Ethylene [Ethene] 10,000 f

74-86-2Acetylene [Ethyne] 10,000 f

74-89-5Methylamine [Methanamine] 10,000 f

74-98-6Propane 10,000 f

74-99-7Propyne [1-Propyne] 10,000 f

75-00-3Ethyl chloride [Ethane, chloro-] 10,000 f

75-01-4Vinyl chloride [Ethene, chloro-] 10,000 a, f

75-02-5Vinyl fluoride [Ethene, fluoro-] 10,000 f

75-04-7Ethylamine [Ethanamine] 10,000 f

75-07-0Acetaldehyde 10,000 g

75-08-1Ethyl mercaptan [Ethanethiol] 10,000 g

75-19-4Cyclopropane 10,000 f

75-28-5 Isobutane [Propane, 2-methyl] 10,000 f

75-29-6 Isopropyl chloride [Propane, 2-chloro-] 10,000 g

75-31-0 Isopropylamine [2-Propanamine] 10,000 g

75-35-4Vinylidene chloride [Ethene, 1,1-dichloro-] 10,000 g

75-37-6Difluoroethane [Ethane, 1,1-difluoro-] 10,000 f

75-38-7Vinylidene fluoride [Ethene, 1,1-difluoro-] 10,000 f

75-50-3Trimethylamine [Methanamine, N, N-dimethyl-] 10,000 f

75-76-3Tetramethylsilane [Silane, tetramethyl-] 10,000 g

78-78-4 Isopentane [Butane, 2-methyl-] 10,000 g

78-79-5 Isoprene [1,3,-Butadiene, 2-methyl-] 10,000 g

79-38-9Trifluorochloroethylene [Ethene, chlorotrifluoro-] 10,000 f

106-97-8Butane 10,000 f

106-98-9 1-Butene 10,000 f

106-99-0 1,3-Butadiene 10,000 f

Formatted Table
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107-00-6Ethyl acetylene [1-Butyne] 10,000 f

107-01-7 2-Butene 10,000 f

107-25-5Vinyl methyl ether [Ethene, methoxy-] 10,000 f

107-31-3Methyl formate [Formic acid, methyl ester] 10,000 g

109-66-0Pentane 10,000 g

109-67-1 1-Pentene 10,000 g

109-92-2Vinyl ethyl ether [Ethene, ethoxy-] 10,000 g

109-95-5Ethyl nitrite [Nitrous acid, ethyl ester] 10,000 f

115-07-1Propylene [1-Propene] 10,000 f

115-10-6Methyl ether [Methane, oxybis-] 10,000 f

115-11-7 2-Methylpropene [1-Propene, 2-methyl-] 10,000 f

116-14-3Tetrafluoroethylene [Ethene, tetrafluoro-] 10,000 f

124-40-3Dimethylamine [Methanamine, N-methyl-] 10,000 f

460-19-5Cyanogen [Ethanedinitrile] 10,000 f

463-49-0Propadiene [1,2-Propadiene] 10,000 f

463-58-1Carbon oxysulfide [Carbon oxide sulfide (COS)] 10,000 f

463-82-1 2,2-Dimethylpropane [Propane, 2,2-dimethyl-] 10,000 f

504-60-9 1,3-Pentadiene 10,000 f

557-98-2 2-Chloropropylene [1-Propene, 2-chloro-] 10,000 g

563-45-1 3-Methyl-1-butene 10,000 f

563-46-2 2-Methyl-1-butene 10,000 g

590-18-1 2-Butene-cis 10,000 f

590-21-6 1-Chloropropylene [1-Propene, 1-chloro-] 10,000 g

598-73-2Bromotrifluorethylene [Ethene, bromotrifluoro-] 10,000 f

624-64-6 2-Butene-trans [2-Butene, (E)] 10,000 f

627-20-3 2-Pentene, (Z)- 10,000 g

646-04-8 2-Pentene, (E)- 10,000 g

689-97-4Vinyl acetylene [1-Buten-3-yne] 10,000 f

1333-74-0Hydrogen 10,000 f

4109-96-0Dichlorosilane [Silane, dichloro-] 10,000 f

7791-21-1Chlorine monoxide [Chlorine oxide] 10,000 f

7803-62-5Silane 10,000 f
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10025-78-2Trichlorosilane [Silane,trichloro-] 10,000 g

25167-67-3Butene 10,000 f

[CAS Number Order—63 Substances], in column 1 remove dots and right justify the 

CAS numbers in the column; in column 1 remove CAS No. 196-99-0 in the row for 1,3-

Butadiene and replace it with CAS No. 106-99-0; and remove the third column (CAS No.).

23. Amend § 68.160 to revise paragraph (b) as followsby:

a. Revising paragraphs (1), (4), (5), (9), and (12);

b. Removing and reserving paragraph (13);

c. Revising paragraphs (14) through (18);

d. Removing and reserving paragraph (19);

e. Revising paragraphs (20)(ii) and (iv); and 

f. Adding paragraphs ((b)(21) through (23).

The revisions and additions reads as follows:

§ 68.160 Registration.

* * * * *

(b) * * * 

(1) Stationary source name, street, city, county, state, zip code, latitude and longitude, 

and description of location that latitude and longitude represent;

* * * * *

(4) The name, telephone number, mailing address, and e-mail address of the owner or 

operator; 

(5) The name and title of the person with overall responsibility for RMP elements and 

implementation, and the e-mail address for that person; 

* * * * *

(9) The number of full-time equivalent employees at the stationary source; 
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* * * * *

(12) If the stationary source has a CAA Title V operating permit, and if so, the permit 

number; 

(13) [Reserved];

(14) The name, mailing address, email address, and the telephone number of the 

contractor who prepared the RMP (if any); 

(15) Source or parent company e-mail address (if an e-mail address exists);

(16) Source internet address (if an internet address exists);

(17) Phone number at the source for public inquiries (if a public inquiries phone number 

exists);

(18) LEPC name, phone number, e-mail address, and internet address (if applicable and 

available);

(19) [Reserved];

(20) * * *

* * * * *

(ii) Corrections under § 68.195 or for purposes of correcting minor clerical errors, 

updating administrative information, providing missing data elements or reflecting stationary 

source ownership changes, and which do not require an update and re-submission as specified in 

§ 68.190(b); 

* * * * *

(iv) Withdrawals of an RMP for any stationary source that was erroneously considered 

subject to this part 68;

(21) Whether chemical hazard information has been provided to the LEPC or emergency 

response officials, pursuant to § 68.205;

(22) Location or means of public access for chemical hazard information made available 

to the public, pursuant to § 68.210; and
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(23) Whether a public meeting has been held within the last five years and/or following 

an RMP reportable accidental release, pursuant to § 68.210(d).

24. Amend § 68.170 as followsby:

a. Reviseing paragraphs (a), (e), (f), and (h);

b. Redesignateing paragraph (d) as paragraphs (d)(1), revising the newly designated 

paragraph (d)(1), and adding a new paragraph (d)(2) and revise;

c. Revising paragraphs (e) introductory text, (e)(1), (f) through (h);

d. Redesignating paragraph (i) as paragraph (i)(1), revising the newly designated 

paragraph (i)(1), and adding new paragraphs (i)(2) and (3);

e. Redesignating paragraph (j) as paragraph (j)(1), revising the newly designated 

paragraph (j)(1), and adding new paragraphs (j)(2) and (3); andRemove paragraphs (g)(1) 

and (g)(2) and revise paragraph (g);

d. Redesignate paragraph (i) as paragraphs (i)(1) through (i)(3) and revise; 

e. Redesignate paragraph (j) as paragraphs (j)(1) through (j)(3) and revise; and

f. Removinge paragraph (k).

The revisions and additions read as follows:

§ 68.170 Prevention program/Program 2.

(a) For each Program 2 process, the owner or operator shall provide in the RMP the 

information indicated in paragraphs (b) through (j) of this section. If the same information applies 

to more than one covered process, the owner or operator may provide the information only once, 

but shall indicate to which processes the information applies. 

* * * * *

(d)(1) Whether safety information requirements, in § 68.48, are implemented.
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(2) A list of all Federal and state regulations, industry-specific and established company 

or stationary source design codes and standards that are applicable, and identify those followed, 

to demonstrate compliance with the safety information requirements.

(e) The most recent hazard review or hazard review update information, pursuant to §

68.50, including: 

(1) The date of completion of the most recent hazard review or hazard review update; 

* * * * *

(f) Whether operating procedure requirements, in § 68.52, are implemented.

(g) Whether training requirements, in § 68.54, are implemented.

(h) Whether maintenance requirements, in § 68.56, are implemented.

(i)(1) Whether compliance audit requirements, in § 68.58, are implemented.

(2) The date of the most recent compliance audit. 

(3) Whether the most recent compliance audit was a third-party audit, pursuant to §§

68.58 and 68.59. 

(j)(1) Whether incident investigation requirements, in § 68.60, are implemented.

(2) The date of the most recent incident investigation. 

(3) Whether root cause analyses have been completed for all accidents and incidents that 

are subject to the incident investigation requirements in § 68.60.

25. Amend § 68.175 as follows:

a. Revisinge paragraphs (a), (f), (h) through (j), and (m) through (o);

b. Redesignatinge paragraph (d) as paragraphs (d)(1), revising the newly designated 

paragraph (d)(1), and adding a new paragraph (d)(2) and revise;

c. Revisinge paragraphs (e) by redesignating paragraphs (e)(1) through (e)(6) as (e)(1)(i) 

through (e)(1)((vi) and adding a new paragraph (e)(2)through (j);

d. Remove paragraphs (g)(1) and (g)(2) and revise paragraph (g);
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ed. Redesignatinge paragraph (k) as paragraphs (k)(1), revising the newly designated 

paragraph (k)(1), and adding new paragraphs (k)(2) and through (k)(3) and revise;

fe. Redesignatinge paragraph (l) as paragraphs (l)(1), revising the newly designated 

paragraph (l)(1), and adding new paragraphs (l)(2) and through (l)(3) and revise;

f. Revising paragraphs (m) through (o); and

g. Removinge paragraph (p).

The revisions and additions read as follows:

§ 68.175 Prevention program/Program 3.

(a) For each Program 3 process, the owner or operator shall provide the information 

indicated in paragraphs (b) through (o) of this section. If the same information applies to more 

than one covered process, the owner or operator may provide the information only once, but shall 

indicate to which processes the information applies. 

* * * * *

(d)(1) Whether process safety information requirements, in § 68.65, are implemented.

(2) A list of all Federal and state regulations, industry-specific and established company 

or stationary source design codes and standards that are applicable, and identify those followed, 

to demonstrate compliance with the safety information requirements. 

(e)(1)The most recent PHA or PHA update and revalidation information, pursuant to §

68.67, including: 

(i) The date of completion of the most recent PHA or update and the technique used; 

(ii) Major hazards identified; 

(iii) Process controls in use; 

(iv) Mitigation systems in use; 

(v) Monitoring and detection systems in use; and 

(vi) Changes since the last PHA. 
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(2)(i) Whether the current PHA addresses safer technology and alternative risk 

management measures, as required in § 68.67(c)(8).

(ii) Whether any inherently safer technology or design measures were implemented. 

(iii) If any inherently safer technology or design measures were implemented, identify the 

measure and the technology category (substitution, minimization, simplification, and/or 

moderation).

(f) Whether operating procedure requirements, in § 68.69, are implemented.

(g) Whether training requirements, in § 68.71, are implemented.

(h) Whether mechanical integrity requirements, in § 68.73, are implemented.

(i) Whether management of change requirements, in § 68.75, are implemented.

(j) Whether pre-startup review requirements, in § 68.77, are implemented.

(k)(1) Whether compliance audit requirements, in § 68.79, are implemented. 

(2) The date of the most recent compliance audit.

(3) Whether the most recent compliance audit was a third-party audit, pursuant to §§

68.79 and 68.80. 

(l)(1) Whether incident investigation requirements, in § 68.81, are implemented.

(2) The date of the most recent incident investigation. 

(3) Whether root cause analyses have been completed for all accidents and incidents that 

are subject to the incident investigation requirements in § 68.81.

(m) Whether employee participation requirements, in § 68.83, are implemented.

(n) Whether hot work permit requirements, in § 68.85, are implemented. 

(o) Whether contractor safety requirements, in § 68.87, are implemented.

26. Revise § 68.180 to read as follows:

§ 68.180 Emergency response program and exercises.

(a) The owner or operator shall provide in the RMP: 

Commented [A368]: IA Comment #116 Page 227, recommend 

the following edits: “(ii) Whether any inherently safer technology or 

alternative design measures were implemented. (iii) If any 

inherently safer technology or alternative design measures were 

implemented, identify the measure and the technology category 

(substitution, minimization, simplification, and/or moderation).”

Commented [A369R368]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.
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(1) Name, organizational affiliation, phone number, and e-mail address of local 

emergency planning and response organizations with which the stationary source last coordinated 

emergency response efforts, pursuant to §§ 68.10(b)(3) or 68.93; 

(2) Whether coordination with the local emergency response organizations is occurring at 

least annually, pursuant to 68.93(a); and

(3) A list of Federal or state emergency plan requirements to which the stationary source 

is subject. 

(b) The owner or operator shall identify whether the facility is a responding stationary 

source or a non-responding stationary source, pursuant to § 68.90. 

(1) For non-responding stationary sources, the owner or operator shall identify:

(i) Whether the owner or operator of the stationary source has confirmed that the local 

emergency response entity is capable of responding to accidental releases at the stationary source;

(ii) Whether appropriate mechanisms are in place to notify public emergency responders 

when there is a need for emergency response; and

(iii) Whether a notification exercise occurs at least annually, as required in § 68.96(a).

(2) For responding stationary sources, the owner or operator shall identify:

(i) Whether the LEPC or local response entity requested the stationary source to be a 

responding stationary source as required in § 68.90(a)(3);

(ii) Whether the stationary source complies with emergency response program 

requirements in § 68.95;

(iii) Whether a notification exercise occurs at least annually, as required in § 68.96(a);

(iv) Whether a field exercise is conducted every five years and after any RMP reportable 

accidental release, pursuant to § 68.96(b)(1)(i); and

(v) Whether a tabletop exercise occurs at least annually, except during the calendar year 

when a field exercise is conducted, as required in § 68.96(b)(2)(i).
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27. Amend In § 68.190 a sentence is added to the end of by revising paragraph (c) to add a 

sentence at the endread as follows:

68.190 Updates.

* * * * *

(c) * * * Prior to de-registration the owner or operator shall meet applicable reporting and 

incident investigation requirements in accordance with §§ 68.42, 68.60, and/or 68.81.

28. Amend § 68.195 as follows:

a.by Rredesignatinge paragraph (a) as paragraph (a)(1), revising the newly designated paragraph 

(a)(1), and revise; 

b. Aadding a new paragraph (a)(2) to read as follows:.

§ 68.195 Required corrections.

* * * * *

(a) New accident history information—(1) For any accidental release meeting the fiveyear accident history reporting criteria of § 68.42 and occurring after April 9, 2004, the owner or 

operator shall submit the data required under § 68.168, except for root cause information required 

in § 68.42(b)(10), with respect to that accident within six months of the release or by the time the 

RMP is updated under § 68.190, whichever is earlier. 

(2) Root cause information required under § 68.42(b)(10) shall be submitted within 12 

months, or by the alternative timeframe provided by an implementing agency, as specified in §§

68.60(d) or 68.81(d).

* * * * *

29. Revise § 68.200 to read as follows:

§ 68.200 Recordkeeping.

The owner or operator shall maintain records supporting the implementation of this part 

at the stationary source for five years, unless otherwise provided in subpart D of this part. 

Formatted: Indent: First line: 0"
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30. Add Section § 68.205 is added to subpart H to read as follows:

§ 68.205 Availability of information to the LEPC or emergency response officials. 

(a) RMP availability. The RMP required under subpart G of this part shall be available to 

local emergency responders and LEPCs under 42 U.S.C. 7414(c) and 40 CFR Part part 1400. 

(b) Chemical hazard information. The owner or operator of a stationary source shall 

provide develop summaries of chemical hazard information for all regulated processes and 

provide the information, upon request, to the LEPC or emergency response officials. Information 

shall include, as applicable: 

(1) Information on regulated substances. Names and quantities of regulated substances 

held in a process.

(2) Accident history information. Provide the five-year accident history information 

required to be reported under § 68.42.

(3) Compliance audit reports. Summaries of compliance audit reports developed in 

accordance with §§ 68.58, 68.59, 68.79, or 68.80, as applicable, updated as part of the calendar 

year submission described in subparagraph (c). The summary shall include:

(i) The date of the report;

(ii) Name and contact information of auditor and facility contact person;

(iii) Brief description of the findings;

(iv) An appropriate response to each of the findings; and 

(v) Schedule for addressing each of the findings, as applicable.

(4) Summaries of incident investigation reports developed in accordance with §§ 68.60(d) 

or 68.81(d), as applicable. The summary shall include: 

(i) Description of the incident and events leading up to it, including a timeline;

(ii) Brief description of the process involved; 

(iii) Names and contact information of personnel on the investigation team; 

(iv) Direct, contributing, and root causes of the incident; 
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(v) On-site and offsite impacts; 

(vi) Emergency response actions taken;

(vii) Recommendations; and 

(viii) Schedule for implementing recommendations, as applicable.

(5) Inherently safer technology. For each process in NAICS codes 322, 324, and 325, 

provide a summary of the inherently safer technologies (IST) or inherently safer designs (ISD) 

implemented or planned, in accordance with § 68.67(c)(8). Update the summary, as part of the 

calendar year submission described in subparagraph (c), and following any revisions prepared in 

accordance with 68.67(f) and indicate when no revisions are incorporated, as applicable. The 

summary shall include:

(i) The RMP process ID and process description, if provided, of the process affected; 

(ii) A brief description of the IST or ISD and which IST/ISD type of measure best 

characterizes it: minimization, substitution, moderation or simplification;

(iii) The name of the RMP regulated substance(s) whose hazard, potential exposure or 

risk was or will be reduced as a result of the implementation and whether the substance is listed 

as a toxic or flammable. If the chemicals affected are a mixture of flammables, the name 

“flammable mixture” may be used rather than the individual flammable substance names; and 

(iv) The date of implementation or planned implementation. 

(6) Exercises. Information on emergency response exercises required under § 68.96. The 

information shall include schedules for upcoming exercises, reports for completed exercises as 

described in § 68.96(b)(3), and any other related information.

(c) Submission dates and updates. The owner or operator shall update and resubmit 

summary information every calendar year, including all applicable information that was revised 

since the last submission, and provide the information upon request.

Commented [A370]: IA Comment #117 Page 231, recommend 

the following edits: “(5) Inherently sSafer technology and 

alternatives. For each process in NAICS codes 322, 324, and 325, 

provide a summary of the inherently safer technologies (IST) or 

inherently safer designs (ISD), passive measures, active measures, 

or procedural measures implemented or...”and “(ii) A brief 

description of the safer technology or alternative IST or ISD and 

which safer technology or alternative IST/ISD type of measure best 

characterizes it: minimization, substitution, moderation or 

simplification;”

Commented [A371R370]: Recurring comment. We intended 

to restrict this provision to IST rather than the full STAA.
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(d) The disclosure of information classified by the Department of Defense or other 

Federal agencies or contractors of such agencies shall be controlled by applicable laws, 

regulations, or executive orders concerning the release of classified information. 

(e) CBI. An owner or operator asserting CBI for information required under this section 

shall provide a sanitized version to the LEPC or emergency response officials. Assertion of 

claims of CBI and substantiation of CBI claims shall be in the same manner as required in 40 

CFR 68.151 and 68.152 for information contained in the RMP required under subpart G of this 

part. As provided under 40 CFR 68.151(b)(3), an owner or operator of a stationary source may 

not claim five-year accident history information as CBI. As provided in 40 CFR 68.151(c)(2), an 

owner or operator of a stationary source asserting that a chemical name is CBI shall provide a 

generic category or class name as a substitute.

31. Amend § 68.210 as followsby:

a. Revisinge paragraph (a); 

b. Redesignatinge paragraph (b) as paragraph (e) and revise redesignated paragraph (e); 

and

c. Adding new paragraphs (b) through (d);

d. Revising the newly designated paragraph (e); and 

e. Adding a new paragraph (f).

The revisions and additions read as follows:

§ 68.210 Availability of information to the public.

(a) RMP availability. The RMP required under subpart G of this part shall be available to 

the public under 42 U.S.C. 7414(c) and 40 CFR Part part 1400. 

(b) Chemical hazard information. The owner or operator of a stationary source shall 

distribute chemical hazard information for all regulated processes to the public in an easily 

accessible manner, such as on a company website, including, as applicable:

Commented [A372]: IA Comment #119 Page 233, Please see 

prior comments: this reviewer proposes that the following four 

items are deleted from being shared with the public:

Chemical Name and Chemical Quantity

SDS

First Responder POC

Exercise After Action Reports

Commented [A373R372]: EPA removed quantities of 

chemicals form the information being proposed for public 

disclosure and is seeking comment on whether there is value in the 

public having this information.

EPA will not ask for individual names of responders to be disclosed. 

We will keep remaining information elements and seek comment 

on how to limit disclosure of information that could reveal security 

vulnerabilities.
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(1) Regulated substances information. Names and quantities of regulated substances held 

in a process.

(2) Safety data sheets (SDS). SDSs for all regulated substances located at the facility. 

(3) Accident history information. Provide the five-year accident history information 

required to be reported under § 68.42.

(4) Emergency response program. Summary information concerning the source’s 

compliance with § 68.10(b)(3) or the emergency response provisions of Subpart subpart E, 

including:

(i) Whether the source is a responding stationary source or a non-responding stationary 

source; 

(ii) Name and phone number, of local emergency response organizations organizational 

affiliation, phone number, and e-mail address of local emergency response organizations with 

which the owner or operator last coordinated emergency response efforts, pursuant to § 68.180; 

and

(iii) For sources subject to § 68.95, procedures for informing the public and local 

emergency response agencies about accidental releases;

(5) Exercises. The summary information required under § 68.205(b)(6). 

(6) LEPC contact information. Include LEPC name, phone number, and web address, and 

email addresses of LEPC contacts, as available. 

(c) Submission dates and updates. The owner or operator shall update and submit 

information required under § 68.210(b) every calendar year, including all applicable information 

that was revised since the last update. 

(d)(1) Public meetings. The owner or operator of a stationary source shall hold a public 

meeting to provide information required under § 68.42discuss the chemical hazard information 

described in paragraph (b), as well as other relevant chemical hazard information, such as that 

described in paragraph (b), at least once every five years.

Commented [A374]: IA Comment #118 Page 233, As noted 

above, we previously agreed that quantities would not be released 

publicly. Revise as follows: “(1) Regulated substances information. 

Names and quantities of regulated substances held in a process.”

Commented [A375R374]: Change incorporated.

Commented [A376]: Revised to address concerns raised by IA 

comments #83, 119, and 138 about disclosing personal information 

of responders.

Commented [A377]: Revised to address concerns raised by IA 

comments #83, 119, and 138 about disclosing personal information 

of responders.

Commented [A378]: EPA has revised the proposed 

requirements to require a public meeting only after an accident 

subject to reporting requirements under §68.42.
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(2) Wwithin 30 days of any accident subject to reporting under § 68.42., the owner or 

operator of a stationary source shall hold a public meeting and provide information required 

under § 68.42, and other relevant information. The five year interval for the next public meeting 

starts when a meeting takes place after an accident or after five years from the date of the last 

meeting, whichever comes first. 

(e) The disclosure of information classified by the Department of Defense or other 

Federal agencies or contractors of such agencies shall be controlled by applicable laws, 

regulations, or executive orders concerning the release of classified information. 

(f) CBI. An owner or operator asserting CBI for information required under this section 

shall provide a sanitized version to the public. Assertion of claims of CBI and substantiation of 

CBI claims shall be in the same manner as required in 40 CFR 68.151 and 68.152 for information 

contained in the RMP required under subpart G. As provided under 40 CFR 68.151(b)(3), an 

owner or operator of a stationary source may not claim five-year accident history information as 

CBI. As provided in 40 CFR 68.151(c)(2), an owner or operator of a stationary source asserting 

that a chemical name is CBI shall provide a generic category or class name as a substitute.