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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:

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 statemen t 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 langua ge 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) Of fice 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.govAttachment: EO12866_RMP Modernization 2050

- AG82 NRPM ProposalRule

_20160223_redline.docx ***E.O.12866 Review

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Page 2 of 266 EO12866_RMP Modernization 2050

- AG82 NPRM Proposal&Rule_ 201 60218 201 60223 6560
- 50
- P

E NVIRONMENTAL PROTECTION AGENCY 40 CFR P art 68 [ EPA
- HQ
- OEM
- 20 15
- 0725 ; FRL
- xxxx - xx - OSWER 9940
- 94
- OLEM ] RIN 2050
- AG82 Accidental Release Prevention Requirements: Risk Management P rograms 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 r egulations . 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, enhance ment s to the emergency preparedness requirements , increase d public availability of chemical hazard information, and several other changes to certain r egulatory definitions and data elements submitted in risk management plans . The se 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

. C omments 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 u nder 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 quant ification of climate

- related damages associated with hazardous release.” Comment 2 : climate resilience planning. Climate

- related impacts

— such as more frequent and intense heat

waves, rising sea levels, and more frequent and severe weather events

— pose incre asing 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 sugg ested 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 pream ble 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 cata strophic 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 un der 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.***E.O.12866 Review

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Page 3 of 266 of your comments on or before [ INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION
IN THE FEDERAL REGISTER ]

. Public Hearing s . The EPA will hold a public hearing s 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

- 20 15

- 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 stat ute. 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 Hearing s . 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 20 460 [ 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***E.O.12866 Review

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Page 4 of 266 extended one hour after all schedu led 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

- proposed

rule.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 ], fo r 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 au dio 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. g overnment 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, establ ished 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,***E.O.12866 Review

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Page 5 of 266 cameras may only be used outside of the buil ding 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 hear ing. Verbatim transcripts of the hearing and written statements will be included in the docket for the rulem aking. 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 Response Land and Emergency Management , 1200 Pennsylvania Ave., NW (Mail Code 510 4A ) , Washington, DC, 20460; telephone number : (202) 564

- 8023 ; email address : belke.jim@epa.go v . Electronic copies of th is 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.***E.O.12866 Review

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Page 6 of 266 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***E.O.12866 Review

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Page 7 of 266 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.***E.O.12866 Review

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Page 8 of 266 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***E.O.12866 Review

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Page 9 of 2 66 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***E.O.12866 Review

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Page 10 of 266 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? I I . 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***E.O.12866 Review

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Page 11 of 266 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 I X. Statutory and E xecutive O rder Reviews A. E xecutive O rder 12866: Regulatory Planning and Review and E xecutive O rder 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. E xecutive O rder 13132: Federalism F. E xecutive O rder 13175: Consultation and Coordination with Indian Tribal Governments G. E xecutive O rder 13045: Protection of Children from Environmental Health Risks and Safety Risks H. E xecutive O rder 13211: Actions That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer and Advancement Act (NTTAA) J. E xecutive O rder 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 E xecutive O rder 13650 , “ Improving Chemical Facility Safety and Security, ” on August 1, 2013

. 1 Section 6(a)(i) of E xecutive O rder 13650 requires th at various F ederal agencies develop options for improved chemical facility safety and security that identify “improvements to existing

1 For more information on the E xecutive O rder see https://www.whitehouse.gov/the

- press office/2013/08/01/executive

- order

- improving

- chemical

- facility

- safety

- and

- security

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Page 12 of 266 risk management practices through agency programs, private sector initiatives, Government guidance, outreach, standards, and regulations. ” One agenc y 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 E xecutive O rder 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
R isk M anagement P rogram regulations (4 0 CFR part 68), on July 31, 2014, EPA published a “Request for Information” notice or “RFI” (79 FR 44604). EPA believes that the R isk M anagement P rogram regulations have been effective in preventing and mitig ating chemical accidents in the United States

. H owever, 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

. These revisions are a result of a review of the existing Risk Management Program and information gathered from the RFI and E xecutive O rder 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

. The se regulations apply to stationary sources (also referred to as “facilities”) that hold specific “regulated substances” in excess of threshold quantities. These f acilities are required to

asse s s 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 EP A. The release prevention steps va ry depending on the type of process, but progressively
ga in 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.***E.O.12866 Review

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Page 13 of 266 of these proposed revisions is introdu ced in the following paragraphs of this S ection s ection and described in greater detail in S ections s ections IV

– VI , later in this n otice document

. Certain proposed provisions would apply to a sub set 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 S ection s ection II of t his

n otice document

. 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 tha t 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 cause s of an incident so that they may be addressed

. Identifying the root cause s , 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

. Se cond, 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 aud iting process to determine whether the owner or operator of the facility is effectively complying with the accident prevention procedures and practices required un der 40 CFR p art 68

. The third proposed revision to the prevention program would add an eleme nt 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***E.O.12866 Review

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Page 14 of 266 Classification System ( NAICS ) codes 322 ( paper manufacturing ), 324 (petroleum and coal products manufacturing ), and 325 (chemical manufactur ing ) 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 requirement s 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 I ST alternatives

. Th e proposed is provision is intended to reduce the risk of serious accidental releases by requiring facilities in these sectors to conduct a careful examination of potential ly safer technolog y 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 consi dered for future rulemakings, including the scope of such requirements , or whether the A gency should publish guidance

. b. Emergency Response Enhancements This action also proposes to en hance 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 o f 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 non

responding facilities may become responding f acilities (i.e., develop an emergency response program in accordance with § 68.95 ). Commented [A14]: IA Comment #2 OSHA also has an i ssue 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, whic h 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 alternati ve (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 th erefore 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 activ e, 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 co mment 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 Technolog ies and Inherently Safer Design alternatives.” Commented [A19R18]: Change incorporated with modifications.***E.O.12866 Review

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Page 15 of 266 Additionally, all facilities with Program 2 or 3 processes would be required to c onduct notification exercises annually to ensure that the ir 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 contribut e to the seve rity 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 effect s of accidents

. This action also proposes to require that all f acilities 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 year s and one table top exercise annually in the other years

. Responding facilities th a t have a n RMP reportable accident would also have to conduct a full field exercise within a year of the accident

. Th e purpose of th is provision is to reduce the impact of accidents by ensuring that emergency re sponse personnel understand their roles in the event of an incident, that local responders are familiar with the hazards at a facility, and that th e 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
T his 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 Comm ittee ( LEPC ) ,***E.O.12866 Review

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Page 16 of 266 Tribal Emergency Planning Committee (TEPC) 2 or other local eme r gency 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 accident s ) ; 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 a n RMP reportable accident

. This provision will e nsur e that first resp onders 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 provision s described previously in this S ection s ection , 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 ammoni a 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 t he 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 proce ssors 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 contract ors of such agencies shall be controlled by applicable laws, regulations, or executive orders concerning the release of classified information.” Commented [A25R24]: Change incorporated.***E.O.12866 Review

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Page 17 of 266 Table 1 presents the number of facilities according to the l atest 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 mi xtures)

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.***E.O.12866 Review

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Page 18 of 266 Table 2 presents a summary of the annualized costs estimated in the regulatory impact analysis 3 . In total, EPA estimates annualized costs of $ 162.6 158. 3 million at a 3% discount rate and $ 16 5.3 161.0 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 $ 4.7 0.4 $ 4.7 0.4 Rule Familiarization $0. 2 3 $0.3 Total Cost + $ 162.6 158. 3 $ 165.3 16

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 analysis STAA ($34.8 million), and information sharing (LEPC) ($ 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 R elease 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 ($ 5.0 4.9 million ), public meetings ($ 4.7 0.4 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, causing resulting 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 death damages 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 presen ted 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 heal th.” 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

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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 on

site 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 $ 2 75 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 o ther 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 4 s ummarizes 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 pre vention 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***E.O.12866 Review

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Page 21 of 266 information disclosure benefit c ategory 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. Ta ble 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 po tentially 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 s ection 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.***E.O.12866 Review

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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 Other 4 313, 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 E xecutive O rder 13650 , “ Improving Chemical Facility Safety and Security,” on August 1, 2013

. 5 The purpose of the E xecutive O rder 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 E xecutive O rder 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 E xecutive O rder see https://www.whitehouse.gov/the

- press office/2013/08/01/executive

- order

- improving

- chemical

- facility

- safety

- and

- security

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Page 23 of 266 the Administrator of EPA, and the Secretary of Labor or their designated representatives at the Assistan t Secretary level or higher, and composed of senior representatives of other Federal departments, agencies, and offices. The E xecutive O rder 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 demonstrate d 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 Tes oro 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 E xecutive O rder 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 201 6 5 . Final Investigation Report, West Fertilizer Company Plant Fire and Explosion, West, TX, April 17, 2013. REPORT 2013

- 02

- I

- TX. http://www.csb.gov/west

- fertilizer

- expl osion

- and

- fire

- /

. 7 U.S. Chemical Safety and Hazard Investigation B oard (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

. htt p://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” a nd “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.***E.O.12866 Review

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Page 24 of 266 regulations (40 CFR part 68), on July 31, 2014, EPA published a n RFI (79 FR 44604). Information collected through the RFI has informed this propos al. 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 s ection I V. 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 regulation 11 and O ccupational Safety and Health Administration ’s (OSHA) 29 CFR 1910.119 Process Safety Management ( PSM ) standard were authorized in the C lean A ir A ct Amendments of 1990 (1990 CAAA) . This was in response to a number of catastrophic chemical accidents occurrin g 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 a uthority 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 regulati on,” 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.***E.O.12866 Review

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Page 25 of 266 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 u ndertake 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 additio n 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 sourc es 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 p lan was initially submitted. EPA later revised the list rule and the RMP rule. EPA mo dified 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 p art 68 applies to owners and operators of stationary sources that have more than a TQ of a regulated substance within a process

. The re gulations 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 delet ed the category of Department of Transportation Division 1.1 explosives, and exempt ed flamma ble 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 revis ed the facility identification da ta 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 A gency 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 s ubstances 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

asso ciated 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 ch anges; 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 R MP. 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.***E.O.12866 Review

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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 sta te 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 indu stry 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 agricult ural 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 re lating to process safety information ( PSI ) , PHA , operat ing 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, manage ment, 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 manufac turing). 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***E.O.12866 Review

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Page 28 of 266 EP A 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 t he importance of reviewing and evaluating current practices and regulatory requirements, and applying lessons learned from other incident investigations to advance process safety where needed.
I I I . Additional Information
A

. What Actions Are Not Addressed in This Rule ? Under Section s ection 6 of E xecutive O rder 13650 , “ Improving Chemical Facility Safety and Security, ” t he E xecutive O rder Working Group ( chaired by EPA , OSH A, and D epartment 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 (4 0 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 th is 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 ha ve 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 unde r 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.***E.O.12866 Review

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Page 29 of 266 include any explosive manufac turing 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 t heir Explosives and Blasting Agents standard , which has requirements for AN stored with and without, explosives and bl asting agents

. DHS is considering potential modification s of its Chemical Facility Anti

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

s creening TQs for c hemicals of i nterest in Appendix A in 6 CFR p art 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 amende d (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 notice action that proposed the Risk Management Program (58 FR 54 190, 54191

- 93 ( [ Oct. 20, 1993 )). ]). The preven tion program provisions discussed below (auditing, incident investigation, and safer technologies alternatives analysis) address the “prevention and detectio n 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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Page 30 of 266 sources of such releases.” (CAA 112(r)(7)(B)(i)). This paragraph calls for EPA’s regulations to recognize differences in “size, operations, processes, cl ass an d categories of sources.” In this notice document , we propose to maintain distinctions in prevention program levels and in response actions authorized by this pro vision. The information disclosure provisions discussed in this notice document 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 co mmunity 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.
I V . Prevention Program Requiremen ts A. Incident Investigation and Acci dent 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 endan germent 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 t o 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 w hile most catastrophic releases affect workers first, there are incidents where workers are protected but the***E.O.12866 Review

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Page 31 of 266 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

. Becau se 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

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Page 32 of 266 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, facilit y 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
di d 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 th at 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 da mage, or envi ronmental 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 accident al releases required to be reported under the accident history reporting requirements in § 68.42 . The proposed definition, in § 68.3 , to replace s “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 substances impacts 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 reinforce s 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 acc idents 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 fo r 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 defin ition? 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 curr ent 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 defi nition 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 mean s ... Commented [A53R52]: Changes incorporated with modifications. Commented [A54]: Edits to address Federal Register review

Quoting regulatory text is un acceptable, please fix and please fix any other text you have quoted in this document. 

### 1Page 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 c atastrophic 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***E.O.12866 Review

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Page 33 of 266 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 repo rted 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 prop erty 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 recom mendations 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 requir e 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 hea lth 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 provi sions, 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 t erm 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 relea se definition , whether it expands the

19 EPA. May 14 2 4 , 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 o ne 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.***E.O.12866 Review

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Page 34 of 266 scope of the current definition instead of clarifying it, and whether it the 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 e liminated would have either prevented the occurrence, or reduced its severity or frequency. 20 These are fac tors that facilitate the occurrence of an incident such as physical conditions and management practices

. Causal or contributing factors usually have u nderlying 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 identif ies 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 th e 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 catastroph ic 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 additiona l discussion to clarify that the intent of the proposed changes is clarification.***E.O.12866 Review

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Page 35 of 266 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. Th e 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.***E.O.12866 Review

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Page 36 of 266 were documented

. Failure to investigate these “near

- misse s” 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 activ ate automatically when the reactor temperature exceeded safe operating limits. On September 10, 1997, an explosion occurred in a resins production unit at Georgia

Pacific Resins, Inc. in Columbus, Ohio, causing the death of one worker, four injuries, exte nsive 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 , whi ch 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 b atch resin process at too high a rate

. Other alert operators noted the procedu ral 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, a t 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 (non

return) valve, resulting in a massive explosion and fire causing extensive damage to the facility, dam age 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/emerg encies/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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Page 37 of 266 in the olefins production unit. 25 Simila r 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 valv e 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 prevent ed the 1998 explosion. On April 2 3, 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 re actor 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 determine d 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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Page 38 of 266 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 di d 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, TX Texas , 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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Page 39 of 266  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, staf fing, 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 Briti sh government investigation 29 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
A labama, 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 A labama, where more than 800 people were working, causing 152 pe ople 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 ca n 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 Kingdo m) and Scottish Environment Protection Agency. August 18, 2003. Major Incident Investigation Report

- BP Grangemouth Scotland, 29 th June

- 10 th May, 2000. A Public Report Prepared on Behalf of the Competent Authorit y. 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

- c p.pdf

. See also http://www2.epa.gov/enforcement/millard

- refrigerated

- services

- llc

- clean

- air

- act

- caa - settlement

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Page 40 of 266 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 d efining 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,” 2 nd 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 R FI , 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.***E.O.12866 Review

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Page 41 of 266 Cal ifornia’s Contra Costa County Health Services (CCHS) and the city of Richmond, CA
C alifornia, 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 i nvestigation 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 base d 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. 6 2. 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.***E.O.12866 Review

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Page 42 of 266  The names and position titles of the investigators. Once the incident scenario is unders tood 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 v ital 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 propo sing 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 fun damental, underlying, system

related 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 appro ach

. CCPS’ “ Guidelines for Investigating Chemical Process Incidents ” discusses incident investigation approaches and techniques and root cause analysis Commented [A64]: Edits to address Federal Register rev iew

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Page 43 of 266 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 whether Is a root cause analysis is appropriate for every RMP reportable accident and near miss . S, or s hould 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 Investigati ng Chemical Process Incidents, 2 nd ed. 39 Chemical Facility Safety and Security Working Group. May 2014. E xecutive O rder 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 ev ery 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.***E.O.12866 Review

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Page 44 of 266 process and knowledge and experience in incident investigation techniques to participate on an incide nt investigation team.
6

. Decommissioned Process e s 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 ind ustry 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 R isk M anagement P rogram 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 requirem ents 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 R FI , p. 12

. 41 I ndependent Petroleum Association of America (IPAA) and A merican Exploration & Production Council ( AXPC )

. October 29, 2014. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0584 on Risk Management Program R FI , p. 33

. Commented [A67]: IA Comment #125 Regarding the incid ent 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.***E.O.12866 Review

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Page 45 of 266 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, 49 31 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 R FI , 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 R FI , pp. 46-47. 47 ACC

. October 29, 2014

. Comment No. EPA- HQ

- OEM -2014- 0328

- 0694 on Risk Management Program R FI , PDF pp. 44-45 of 189. 48 TPA

. October 29, 2014

. Comment No. EPA- HQ

- OEM -2014- 0328 -0617 on Risk Management Program R FI , 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 R FI , 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, 2 nd ed., p. 61. Commented [A69]: 2

- 1

- 16 This edit addre sses a comment from FR office. Footnote number was incorrect.***E.O.12866 Review

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Page 46 of 266 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 releas e 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 p art 68) ” ( RMP Guidance ), originally p ublished 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 ac cidents 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 an d 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, adve rse 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 t o 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 p art 68), EPA

- 550

- B

- 04

- 001, April 2004, page 6

- 26. http://www2.epa.gov/rmp/guidance

- facilities

- risk

management

- 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, m inor 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 o r 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.***E.O.12866 Review

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Page 47 of 266 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 th e N ew J ersey ’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. F acilities report accidents and potential catastrophic events annually to N ew J ersey . NJDEP notes that e ach 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 regula ted 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 discour age 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 becaus e 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 Consolid ated 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 R FI , p. 16. 56 GPA

. October 29, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0626 on Risk Management Program R FI , p. 14.***E.O.12866 Review

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Page 48 of 266 that represent near

- miss situations; and learning from process upset events that do potentially challenge process safety systems can b e 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 Measu re ” 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, bl owdown 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 misse s 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 R FI , 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, 2 nd 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 coul d 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

.***E.O.12866 Review

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Page 49 of 266 Because it is difficult to prescribe the various types of incidents that may occur in RMP

regulated 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) invol ved, and the specific conditions and circumstances involved

. In the 1996 Response to Comments on the Final f

inal Rule r ule , 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 inves tigations 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 §§ 68.6 0 an d 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 14 24 , 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 a fter 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 OSH A 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 shou ld 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 comm ent 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.***E.O.12866 Review

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Page 50 of 266 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 bett er quality data and information, although it may take time to collect, validate, and integrate data from a range of

sources . EPA has discovered situati ons 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 o f the incident, the process, the substance, and the investigation team’s experience, knowledge and members

. ACC 62 and API 63 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 m onths. 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 C alifornia, have corporate requirements to compl ete 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 R FI , p. 144. 62 ACC

. October 29, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 06 94 on Risk Management Program R FI , p. 44. 63 API

. October 29, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0624 on Risk Management Program R FI , p. 32. 64 CCHS

. October 28, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0546 on Risk Man agement Program R FI , p. 12

.***E.O.12866 Review

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Page 51 of 266 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 prop osing 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 canno t 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 c onsult 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) regulat ions already require root cause and corrective action analys e s for certain release events (see 40 CFR part s 63.648(j)(6) and (j)(7)) , and 60.103a(d) ) with a more stringent timeframe (i.e., 45 days) for completing the se analyses than the 12 months specified in this proposed rule

. RMP

regulated 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, r oot ca use analyses conducted to meet th o se requirements may also be used to comply

65 TPA

. October 29, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0617 on Risk Management Program R FI , p. 9

. 66 GPA

. October 29, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0626 on Risk Management Program R FI , p. 13. 67 JR Simplot

. October 29, 2014

. Comment No. EPA

- HQ

- OEM

- 2014

- 0328

- 0667 on Risk Management Program R FI , p. 31.***E.O.12866 Review

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Page 52 of 266 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***E.O.12866 Review

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Page 53 of 266 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 Supervis ion

. 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 withi n 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 th e 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 Gr oup Inc . 1999

. Root Cause MapTM and Root Cause Analysis Handbook, A Guide to Effective Incident Investigation

. ABS Group, Inc., Risk & Reliability Division, Knoxville, TN.***E.O.12866 Review

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Page 54 of 266 EPA is proposing to amend paragraph (b) by add ing 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 incide nts 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 d ecommissioned. 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 defi nition 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 proc ess 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 requir e facility owners or operators to***E.O.12866 Review

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Page 55 of 266 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 fro m 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 consist ency.***E.O.12866 Review

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Page 56 of 266 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 RM P 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 pr ocesses 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 was tewater 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 to unlike state and local government employees at facilities covered by in states with OSHA delegated approved State Plans

. These processes pose the same risk as the publicly owned wa ter/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 P SM: 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 om itted 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 OS HA

- approved State Plans are not covered by the OSHA PSM standard.” As drafted, EPA’s text is incorrect bec ause facilities with government employees in non state plan states could be covered by the PSM standard if private or federal employees are also expo sed to the PSM hazards. Commented [A86R85]: Adopted alternative language suggested in comment #22 that addresses the concern raised in this comment.***E.O.12866 Review

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Page 57 of 266 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

- part y 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 al l covered processes

. As described below, in some cases, self

- auditing may be insufficient to prevent accidents , determine compliance with the RMP rule’s p revention p rogram 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 underg o 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 dev eloped by the owner and/or operator under Subparts s ubparts 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 severit y o f 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***E.O.12866 Review

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Page 58 of 266 in Texas City, Texas. 70 This explosion and fir e 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 a t 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 Practi ce 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 T exas and Lemont, IL I llinois ) in accordance w ith 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 proc edure 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 Program s against best prac tices 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

- urgent

recommendations

- to

- citgo

- finds

- inadeq uate

- hydrogen

- fluoride

- water

- mitigation

- system

- during

- corpus christi

- 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***E.O.12866 Review

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Page 59 of 266 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 ammoni a 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.***E.O.12866 Review

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Page 60 of 26 6 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

. Th ese 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***E.O.12866 Review

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Page 61 of 266 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 Communication s Commission (FCC) regulations. 77 Further examples follow. The Bureau of Safety and Environmental Enforcement (BSEE)

76 Accidental Release Prevention Requirements: Risk Management Programs Under C AA 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

.***E.O.12866 Review

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Page 62 of 266 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 e Ex ample s of an EPA regulatory program s 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 certifi cation 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 certifica tion program. See https://www.gpo.gov/fdsys/pkg/BILLS

111s1660enr/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 subs ection (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 resi ns; ‘‘(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) exc eptions from the requirements of regulations promulgated pursuant to this subsection for products and components containing de minimis amounts of composite wood product.***E.O.12866 Review

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Page 63 of 266 Third

- party verification and certification approaches are also employ ed in a variety of

s tate regulatory settings

. Examples include the CAA Title II vehicle inspection, maintenance, and

em issions programs in authorized s tates, 80 California’s mandatory greenhouse gas (GHG) reporting program, 81 and Massachusetts Underground Storage Tank (UST) third

- party in spection
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) po tentially 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 well

designed 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 pro ducts 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 ma y 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. C ode of Regs. tit. 17 § 95132(b)(1). https://govt.westlaw.com/calregs/Document/I047B3A909A301 1E4A28EDDF568E2F8A2?viewType=Full Text&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=% 28sc.Default %29 82 MassDEP. 2015. UST Inspection Program

. http://www.mass.gov/eea/agenci es/massdep/toxics/ust/third

party

- ust

- inspection

- program.html

. 83 CCPS. March 200 7. Guidelines for Risk Based Process Safety. http://www.aiche.org/c cps/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 profess ional 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. Th e 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.***E.O.12866 Review

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Page 64 of 266 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” e xcludes 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, an d 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 third

party program should not be confused with a second party program in which a re gulated source employs a contractor or consultant, even when t he 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 t he 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, aud itor independence can be critical to the success of the program.
T hird

- party compliance audit programs should also establish criteria and standards for auditor independence

. As documented in the ACUS Recommendation on Agency Use of Third

Party 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 R EV . 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. R EV
. 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

- complianc e .***E.O.12866 Review

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Page 65 of 266 Programs Final Report (October 22, 2012) , and the McAllister law review article, auditor independence is critical to ensuring accurate and reli able independent third

- party auditing. 87 The literature on designing independent third

- party programs includes peer

- reviewed empirical studies emphasiz ing the importance of establishing criteria and features for auditor independence to promote accurate aud it reports, including those summarized briefly below

. While it is not necessary that all audit s be conducted only by independent third parties, when independent third

- party auditing is necessary and appropriate, the literature indicates that, without suffi cient 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 Pollutio n 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

- selecte d 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 poll ution 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 R EV . 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 E CON
. 4 at 1499

- 1545 (2013).***E.O.12866 Review

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Page 66 of 266 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 w ere 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 Manu ae l Bennet t , 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.***E.O.12866 Review

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Page 67 of 266 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 institut ions, 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 a dvance 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 emphas ize 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 c ompliance 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 T hese 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 P wC 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.***E.O.12866 Review

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Page 68 of 266 available through self

- aud iting alone

. In addition, these program s 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
pr ocess, 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

. SO CMA 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 ba tch 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 thr oughout their deepwater operations. 95 ACC members are required to participate in a Responsible Care m anagement s ystem described by ACC as including , identifying, and acting to address potential hazards and risks associated with their products, processes, di stribution and other operations. One of Responsible Care’s program elements is a process product safety code consisting of eleven m anagement
p ractices through which chemical manufacturers are encouraged to evaluate, demonstrate and continuously improve the ir 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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Page 69 of 266 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 t he 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 m anagement s ystem 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 indep endent, 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 proc ess 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 thr ee years, and companies can choose one of two certification options

. RCMS® certification in intended to verify that a company has implemented the Responsible Care M anagement System

. RC14001® certification combines Responsible Care and ISO 14001 certificati on . See http://responsiblecare.americanchemistry.com/Responsible

- Care

- Program

- Elements/Management

System

- and

- Certi fication an d http://responsiblecare.americanchemistry.com/Responsible

- Care

- Program

Elements/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 .***E.O.12866 Review

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Page 70 of 266 Currently, there are approximately 12,000 stationary sources with Program 2 and/orProgram 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 t wo conditions. Under the first condition, a third

- part y c ompliance a udit would be required in lieu of an internal compliance audit if there has been an accidental release from a n 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 c overed 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 acci dents 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 au ditor to conduct a compliance audit for the source

. Pursuant to § § 68.58(h) and 68.79(h), the third

- party aud it and associated report shall be completed, and submitted to the implementing age ncy pursuant to § 68.59(c)(3) or § 68.80(c)(3) as follows, unless a different timeframe is specified by the implementing agency: w ithin 12 months of when the third

- party audit is required pursuant to § 68.5 8 ( f) and/or (g) or § 68. 79 (f) and/or (g); or w ithi n 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 “catastrophi c 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 dam age or evacuations, however minor. Commented [A93R92]: As a result of the SBAR panel recommendations, EPA is requesting comment on l imiting applica bility of the third

- party audits for P3 facilities, triggered by major acci dents that have offsite impacts. See pg. 67 of the pr eamble.***E.O.12866 Review

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Page 71 of 266 Subpart s ubpart C or D of Part p art 68. Significant non

- compliance includes deficiencies relating to a previous third

- party audit (i.e., fail ure 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

a udit 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

a gency about the need to perform a third

- party a udit 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 c ompliance a udit s for a larger universe of regulated facilities

. We considered whether to require third

- party c ompliance a udit s for all facilities with processes subject to Program 3 requirements at least every three years

. We also considered whether to require third

- party c ompliance a udit s for all facilities with processes subject to Program 2 or Program 3 requirements every three years

. However, b ecause 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 comment s 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 acci dents or to only facilities that have had major accident s al 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 whet her to maintain or further limit applicability of this provision.” Commented [A95R94]: Change incorporated with modifications.***E.O.12866 Review

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Page 72 of 266 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 char acterize “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 com m ent on whether there are other criteria that could require RMP facilities to perform third

- party c ompliance a udits

. 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 c omplia nce a udits 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 p art 68 requirements , EPA is proposing to require certain RMP facilities to perform third

- party audits

. The p ropo sed changes
to § § 68. 58 and 68.79 would add this require ment 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 third

party audit is required

. Pursuant to these paragraphs, the next required compliance audit for a n RMP facility shall be a third

- party audit when one of the following conditions apply: (1) a n accidental release , meeting the criteria in § 68.42(a) , from a covered process has occurred ; or (2)

a n 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 alterna tives 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 al so consider a five year phase

- in period for small firms, allowing the agency to review the utility of this practic e 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 t o 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 i ndependence requirement for small businesses. Finally, EPA has proposed a 4

- year phased

- in compliance date for this provision for all facilities.***E.O.12866 Review

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Page 73 of 266 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 p art 68. EPA proposes new paragraphs §§ 68.58(g) and 68.79(g ) , Implementing agency notification and appeals , which describe the proce dure 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 implementin g 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) w ithin 12 months of when any third

- party audi t is required; or (2)

w ithin 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 third

party audits, and third

- party auditors.***E.O.12866 Review

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Page 74 of 266 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) th rough

- (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 re quiring auditors to have accreditation from a recognized auditing body or EPA

. M ost independent third

- party regulatory compliance verification programs require the qualifying third

- parties to apply for and receive accreditation from a qualified external pa rty 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 proc edures and costs

. Therefore, while EPA is not proposing that the Agency itself will accredit third

- party auditors, E PA 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
T hird

- party compliance verification programs should establish criteria and standards for auditor competence

. Typically, such criteria and standards combine specified minimum levels of***E.O.12866 Review

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Page 75 of 266 education, knowledge, experience, and training

. EPA is proposing to requi re in proposed §§ 68.59(b)(1) (i)

– through ( iv ) and 68.80(b)(1) (i)

– through (iv) that third

- party a uditors be :

 knowledgeable with the requirements of P art p art 68 ;

 experienced with the facility type and processes being audited and the applicable recognized and generally accepted good engineering practices (RAGAGEP) ;

 trained or c ertified 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 a uditors 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 me mber of the audit team, be a licensed PE is appropriate and whether there are enough licensed P E s to conduct third

- party a udits for the universe of facilities that may become subject to these requirements. Are there other qualification s 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 P anel that EPA consider subsitituting other qualified personnel such as: degreed chemist s , degreed chemical engineer s , Certified Safety Professional s (CSP), Certified Industrial Hygienist s (CIH), Certified Fire Protection Specialist s (CFPS), Certified Hazardous Materials Manager s (CHMM), Certified Professional Environmental Auditor s (CPEA) or Certified Process Safety Auditor s (CPSA). SERs indicated tha t 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 o f 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 ru les.” “ EPA believes that these credentials also generally (always?) include an ethical requirement to provide sound independent advice .” Commented [A102R101]: Change incorporated with modifications.***E.O.12866 Review

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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.***E.O.12866 Review

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Page 77 of 266 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 P anel process, S ERs raised concerns about the extent of the independence criteria and suggested this migh t limit the availability of qualifie d 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. A udit 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 third

party 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 contract ual 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 efficienc y, 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 addre sses 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 secur ity protections or whether existing non

disclosure 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 choic e 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.***E.O.12866 Review

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Page 78 of 266 timeframe to separate the audit from other business arrangements with the owner or opera tor 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 facilit y if the employee’s sole continuing financi al 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 impacte d 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 th is concern in the rule. Finally, EPA reque sts 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 P olicies and P rocedures 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 wh o cannot, despite best efforts, find a third

- party a uditor meeting all of the independence criteria

. Two specific options were considered

. Under the first option, owners and operators of RMP facilities , in addition to self

selecting 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.***E.O.12866 Review

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Page 79 of 266 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 ident ify 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 lim it 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 aut horized 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 time frame , 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 third

party auditor would include a description of the owner or operator’s efforts to find a n independent third

- party auditor, identification of the proposed alternative third

- party auditor (including t he 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 C ARB

. 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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Page 80 of 266 not meet, and an organizational chart of the proposed al ternative 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 Mitig ation 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

w ith 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 b y 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 w ould 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 operato rs to provide advance notice to the implementing agency***E.O.12866 Review

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Page 81 of 266 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 T oxic Substances Control Act (TSCA) formaldehyde in wood products third-party program proposed rule: “(3) Re sponsibilities. 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

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Page 82 of 266 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 D ec ree. 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***E.O.12866 Review

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Page 83 of 266 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 confidential attorney

- 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 r ecords 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 priv ilege, 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 privileges claims of confidential attorney work products

. Other O wner or O

perator O bligations Proposed §§ 68.59(d) (1 ) and 68.80(d) (1 ) , if finalized, would require owners o r 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 findi ngs 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 opera tor. 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 mi nimizing 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 r ule 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 ha ve 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) t hat 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 flexi bility for the timeframe. 

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### 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 furt her 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/o perator’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 th ree 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 imple menting 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 unne cessary, 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 th e implementing agency a findings response report.” EPA should provide an option for more than 90 day period, where needed. 

## Expanded comments on page 83

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Page 84 of 266 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 thi s 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
p rovide 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***E.O.12866 Review

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Page 85 of 266 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 i nherent s afety 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;

 M oderation

– 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, 2 nd 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 techno logy 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 h as 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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### 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 jointl y develo ped 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: proced ural, active, passive an d 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 fa ctors under neath, 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 crea te intr actable 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 prin cipals (mostly substit ution). 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 inherent ly
le ss 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 al l hazar ds, 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 di version of mater ials,
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 re ferring specifically to th e inherently safer strategies identified above.

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Page 86 of 266 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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Page 87 of 266 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, t he 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 rulemaking NPRM 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, “Ap plication 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 exis ting 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 199 6 preamble that addresses IST and not the full range of STAA. See revised language.***E.O.12866 Review

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Page 88 of 266 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 2 0, 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 s ection 112(r) enforcement cases, facilit y 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 Complian ce 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 b y 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 adv ances 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 oppor tunities 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 impleme ntation 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 p rocedural 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 requi re by regulation that a facility implement a particular IST.” Commented [A150R149]: Changes incorporated with slight modification (no need to say by regulation).***E.O.12866 Review

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Page 89 of 266 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
p revention 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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Page 90 of 266 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 E xecutive O rder 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. E xecutive O rder 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 governmen t in the implementation of safer technologies and alternatives IST

. Commented [A152R151]: Change incorporated.***E.O.12866 Review

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Page 91 of 266 The petitioners state d 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 cite d 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 substances 114 where feasible

. Examples they cite d include a 2009 explosion at a refinery in Corpus Christi, Texas, that resulted in the release of more than a ton of hy drogen 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 claim ed , if breached, would have resulted in a deadly release of the same chemical responsible for the Bhopal, India disaster. 116 They also identif ied 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 e xtremely Hazardous h azardous Substances s ubstances (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 p art 130) and for “any other extremely hazard ous substance. ” Although the term “any other extremely hazardous substance" is not defined, the legislative history of the 1990 CAA A indicate that the term would include any agent "which may or may not be listed or otherwise identified by any Government ag ency 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

- refiner y - hydrofluoric

acid

- 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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Page 92 of 266 recommended the refinery replace chlorine used as a biocide in cooling water treatment w ith inherently safer materials, such as sodium hypochlorite, at all its refineries

. 117 The petitioners also cite d several examples where readily available IST approaches have already been used , such as substitution of liquid bleach or ultraviolet light for chlorine in water disinfection 118 , 119 and the use of alternatives to replace HF in gasoline refining. 120
b. N ational Academy of Scienc e s (NAS) and CSB I nvestigation F indings 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 inher ently 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 t hat 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/lead ing

- water

- utilities

- secure their

- 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

- Using

Chlorine.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

- millions

risk

. 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

- Summa ry Final.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

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Page 93 of 266 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 certai n 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.***E.O.12866 Review

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Page 94 of 266 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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Page 95 of 266  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 ISO 130 and the City of Richmond, CA’s California ’s
ISO 131 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

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- 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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Page 96 of 266 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 , “I nherently 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 Coun ty 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 CCH S ’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 can not 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 report 134 indicated that 3 of the 7 facilities reported three or more ISS implemented during the last reporting year. In the city of Richmond, CA California , 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, 2 nd 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 ba sis 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.***E.O.12866 Review

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Page 97 of 266 incident invest igation recommendations, root cause analysis , or management of change MOC review indicate that change could reasonably result in a major chemical accident or release. d. Industry and T rade A ssociation I nput 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

. The y also noted that identification and evaluation of a safer alternative is not an off

- the

- shelf concept, but

136 ACC

. October 29, 2014

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- 06 94 on Risk Management Program R FI , PDF pp. 16

- 28 of 189. 137 SOCMA

. October 29, 2014

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- 0560 on Risk Management Program R FI , pp. 3

- 6. 138 IPAA and AXPC

. October 29, 2014. Comment No. EPA

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- 0584 on Risk Management Program R FI , pp. 21

- 24. 139 API

. October 29, 2014

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- 0624 on Risk Management Program R FI , pp. 24

- 26. 140 AMWA. October 29, 2014

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- 0639 on Risk Management Program R FI , pp. 1

- 7. 141 NACD. October 29, 2014

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- 0614 on Risk Manage ment Program R FI , pgs. 6

- 7. 142 NAM. October 29, 2014

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- 0625 on Risk Management Program R FI , pg. 2. 143 CGA

. October 29, 2014

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. 144 CI. October 29, 2014

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- 8. 145 AFPM

. October 29, 2014

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- 38. 146 CSAG. October 29, 2013

. Co mment No. EPA

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- 21. 147 Axiall Corp. October 29, 2013

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- 0549 on Risk Management Program R FI , pg. 5. 148 MKOPSC. October 29, 2014

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- 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.***E.O.12866 Review

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Page 98 of 266 requires a holistic and often complex evaluation involving various factors

. The commenters also indicated that IST decisions must be process

- , site

- , and hazard

- spec ific, 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 i mproper implementation of a seemingly safer alternative may lead to undesired
consequences . The commenters argued that b ecause an option may be inherently safer with regard to some hazards and i nherently 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, AMWA 140 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

- g uess” 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 heal th

. 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, c alculations 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 th at 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

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Page 99 of 266 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 (CO 2 ) 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, acti ve 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

. Oc tober 29, 2103

. Comment No. EPA- HQ

- OEM

- 2014

- 0328 -0648 on Risk Management Program R FI , pgs. 3- 5. Commented [A162]: IA Comment #130 We would like to better understand the pros and cons of potentia lly 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 alternativ es ( 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 ass ess 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 re validations 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 fac ility 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 ma naging 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

2Page 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 wh ether 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 do cuments, 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 commu nicating 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 a ctivities 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

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Page 100 of 266 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 discuss ed 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 con siders 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 te rm 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 th e is enforcement context , feasibility means that technical know

- how about materials and methods i s 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 ec onomic 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 m ay 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 requir ement 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 manufa cturing 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 proces sor 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 la rge 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 ma nufacturers 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 four

year period beyond the rule effecti ve 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 rulemaki ng. Commented [A176R175]: Change incorporated.***E.O.12866 Review

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Page 101 of 266 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 cond i tions 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 “p assive measures” (see § 68.3) that would relies on mean 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 de signs, 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. ” T ext 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 incor porated with modifications.

Commented [A179]: Edits to address Federal Register review

Quoting 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 review

Quoting regulatory text is unacceptable, please fix and please fix any other text you have quoted in this document.***E.O.12866 Review

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Page 102 of 266 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 m ay 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,

so cial, 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 requ ests comment on whether the term “feasible” is appropriate to characterize th e 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 review

Quoting regulatory text is unacceptable, please fix and please fix any other text you have quoted in this document. Commented [A182]: Ed its to address Federal Register review

Quoting 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 ri sks 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 becau se 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 fac tors 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 con siderations). 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 requestin g 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 reasonabl e 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 borrowi ng 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 te chnological 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 b etter 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***E.O.12866 Review

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Page 103 of 266 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 ISO 154 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 commen t 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 comm enters 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, b ut 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).

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Page 104 of 266 sometimes extreme process conditions and using a wide range of complex technologies. Therefore, such sources can often c onsider 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 limite d 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
compare d 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 RM P 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 oth er 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), oi l/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 Program s under the Clean Air Act, Section 112(r)(7).***E.O.12866 Review

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Page 105 of 266 0.04. Three sectors have sig nificantly 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 highe r, 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 p P anel process, SERs cited limitations with flexibility to evaluate alternatives for custom formula blends and compliance with FDA approval requirements and, therefore, requested t hat 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 Alternatives IST 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 c an 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 i ndustry 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/wastewa ter 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 (inc luding 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.***E.O.12866 Review

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Page 106 of 266 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 o wners or operators may

use any available methodology or guidance to conduct their safer technology and alternative s analysis STAA , 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 w ebpage , “ 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 rev iew 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, 2 nd 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, 2 nd 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, 2 nd ed. American Institute of Chemical Engineers, CCPS. New York, Wiley, 2009. Pgs. 200- 202. Commented [A199]: IA Comm ent #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 fo r why inherent safety review recommendations were rejected. Examples for why inherent safety review recommendations may not be feasible, i nclude when the recommendation:” Commented [A202R201]: EPA disagrees with this revision. CCPS uses the terms “inherent safety analysis” an d “inherent safety review” in the guidelines that are discussed in this paragraph.

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Page 107 of 266 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 O ptions As an alternative option, EPA is seek s ing 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 whe ther to require implementation of feasible options.
EPA evaluated the NJDEP 125 and CCHS 134 IST analysis programs as possible models to use in the Risk M anagement Program requirements . EPA seeks comment on whether we should include the following in our proposed STAA provisions:

 A spects 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 change MOC review that cou ld reasonably result in a major chemical accident or release.***E.O.12866 Review

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Page 108 of 266 Finally, EPA seeks comment on whether either EPA or a third-party should create a “clearinghouse” of safer technolog y 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

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- 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 o f 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 ofMassachusetts, 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. E xecutive O rder 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 Nationa l 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.***E.O.12866 Review

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Page 109 of 266 1

. Stationary Source Location The location of stationary sources, and the location and configuration of regulated processes and equipment within a source, ca n 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 toxi c 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 acciden ts, including, among others, the Bhopal disaster 164 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 apart ment complex and a nursing home located approximately 450 feet and 600 feet, respectively, from the source of the explosion w ere as heavily damaged, resulting in 3 three public fatalities (a total of 15 people were killed in the explosion). The explosion also caused over 2 0 6 0 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 b oundary 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, 2 nd ed. Appendix 5 Bhopal. Butterworth

- Heinemann, Oxford, Great Britain. 165 CSB. January 201 6 5 . Final Investigation Report, West Fertilizer Company Plant Fire and Explosion, West, TX, April 17, 2013. Report 2013

- 02

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- TX

. , pp gs . 13, 30, 49, 53, 54. http://www.csb.gov/west

- ferti lizer

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Page 110 of 266 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 subs equent releases from other nearby processes compromised by the initial release

. The 1984 disaster at the PEMEX liqu ef i e d petroleum gas (LPG) tank farm in San Juan Ixhuatepec, Mexico, illustrates the potential for such effects

. In this accident, an LPG pipe line 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 en tering 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 vessels secondary 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, 2 nd 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

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- 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). ht tp://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.***E.O.12866 Review

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Page 111 of 266 has not provided any guidance on how to adequately address stationary source siting in the PHA, RMP facility owner s or operators can refer to industry guidance on siting considerations. The following publications provide guidance on facility siting:

 API Recomm ended Practice 752, Management of Hazards Associated With Location of Process Plant Buildings, 3 rd 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 g uidance 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 the y 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 t hat 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, i ncluding 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 min imize 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, inc luding the scope of such requirements, or whether the Agency should publish guidance. Commented [A208R207]: Change incorporated.***E.O.12866 Review

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Page 112 of 266 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 sou rces 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 s hutdown 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 rulemakin g s, including the scope of such requirements , o r whether the A gency 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 emergenc y 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 plac es 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 res ponse 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 emergenc y 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.***E.O.12866 Review

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Page 113 of 266 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 s ection 303 of E mergency Planning & Community Right

- to

- Know Act (EPCRA) (for sources with regulated toxic subst ances) 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 inc lude the following elements in that program:

 A n emergency response plan ;

 P rocedures for the use of emergency response equipment and for its inspection, testing, and maintenance ;

 T raining for employees ; and

 Procedures to review and update the emergency response plan to reflect changes at the stationary source and ensure that e mployees 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 substan ces) 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, t he 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 § 6 8.10(b)(3))

. This proposal would not affect that requirement.***E.O.12866 Review

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Page 114 of 266 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 E xecutive O rder 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 C AA Violations at Facilities in Iowa and Kansa s. http :// yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/a9537cb213c0371985257 b1100738628!OpenDocument 173 E PA 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

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- 0328 -0679 on Risk Management Program R FI , PDF pp. 5-6, NASTTPO, Denver, CO. 175 Elder, M., October 29, 2014. Comment No. EPA- HQ

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- 0328 -0641 on Risk Management Program R FI , Oklahoma Hazardous Materials Emergency Response Commission (OHMERC). Formatted: Not Highlight***E.O.12866 Review

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Page 115 of 266 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 respond ing 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 1 7 0 , 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 found has 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 coordi nation 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, p gs. 201

- 203. http://www.csb.gov/west

- fertilizer

- explosion

- and

- fire

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. Commented [A211]: EPA revised to make technical corrections to reflect the recent final CSB report.

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Page 116 of 266 to ensure that the emergency plan would provide for timely community notification and mitigation of the release

. 178
CAA Section s ection 112 (r ) clearly anticipated that the R isk M anagement P rogram regulation would require regulated stationary sources to develop an emergency response program and provide for a respon se to releases of regulated substances

. Section 112(r)(7)(B)(ii) states that the re gulations 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, i n 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 res ponse 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 developmen t 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

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Page 117 of 266 flammable substances must coordinate response actions with the local fire department. These so urces 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 r esponse 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 compli ance inspections, and recent feedback provided to EPA’s RFI and during E xecutive O rder 13650 listening sessions indicate that many regulated sources have not provided for an adequate emergency response.
1

. Proposed Revisions to Emergency Resp onse Coordinat ion 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 s ubpart 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 station ary sources to review and update their emergency response program at least annually

.

179 General Guidance on Risk Management Programs for Chemical A ccident Prevention (40 CFR Part p art 68), EPA

- 550

- B

- 04

- 001, April 2004 , p. 8

- 1. http://www2.epa.gov/rmp/guidance

- facilities

- risk

management

- programs - rmp# general Formatted: Font: Not Italic***E.O.12866 Review

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Page 118 of 266 EPA is proposing to reorganize § 68.90 to specifically describe the applicability of the emergency response program requirements for non

- responding and responding facilit ies 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 cap abilities 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 writi ng 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 sou rce 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 eme rgency 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 L EPC , 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 sour ce 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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Page 119 of 266 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 r est 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 pro posing 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 authoritie s 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 ; i n 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 p aragraph (c) s pecifies 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 notifica t ions 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 Commen t #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 appropr iate 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 respo nsibility. 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 bu sinesses. 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 the se 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 res ponse 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 r esponder 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 pla ns be updated at least annually.” Commented [A217R216]: Change incorporated.***E.O.12866 Review

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Page 120 of 266 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 requ irements to

c oo rdinate response actions with local emergency planning and response agencies as provided in § 68.93. EPA believes that t hese 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.***E.O.12866 Review

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Page 121 of 266 situations should occur in advance, so that either the source or local responders are prepared to impleme nt response measures that are appropriate to the hazards of the stationary source

. I f 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 require ments of Subpart s ubpart 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 requiremen ts of Subpart s ubpart 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 operatio ns 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 othe r 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 responder s 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 p art 68), EPA

- 550

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- 04

- 001, April 2004, page 8

- 1. http://www2.epa.gov/rmp/guidance

- facilities

- risk

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Page 122 of 266 coordination between stationary source owners or o perators 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, s tate, 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 t he 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 clarifi cation on how to comply with coordination requirements when facility owners or operators make good faith efforts to coordinate with local emergency respon s e officials who do not respond to coordination attempts. EPA recommends that these coordination attem pts be documented and maintained at the facility

. However, i f 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) , the n the owner or operator must develop an emergency response program in accordance with § 68.95.
EPA seeks comment on this ap proach. 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
fr equency 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 mak es a wri tten 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 propose d 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 sign ificantly improve planning and coordination?” Commented [A222R221]: Change incorporated.***E.O.12866 Review

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Page 123 of 266 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 ? I f so, w hat 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 P rogram 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 maintai ning 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 th is 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 vi nyl chloride monomer (VCM) explosion at the FPC USA in***E.O.12866 Review

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Page 124 of 266 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 occurrin g 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 201 56 . Final Investigation Report: West Fertilizer CompanyPlant Fire and Explosion, West, TX, April 17, 2013

. Report No. 2013

- 02 -I- TX , p gs p . 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

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Page 125 of 266 that accident, 11 Glendale police officers responding to the accident were exposed to chlorine an d 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 fir e 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 , result ed 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 eq uipment 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 examp le, 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 facilit y 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 2 002. National PREP Guidelines

. http://www.au.af.mil/au/awc/awcgate/uscg/prep_gid.pdf

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Page 126 of 266 Coast Guard (USCG), and U.S. Department of the Interior (DOI) exercise requirements f or 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 exer cises. External exercises include area exercises that include members of the response community, and government

initiated unannounced exercises. Other examples include exercises that the U.S. Nuclear Regulatory Commission (NRC), in conjunction with the Fe deral Emergency Management Agency (FEMA) , requires commercial nuclear power plant operators to perform with and s tate and local government s 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 CF R 50 , and for commercial nuclear power reactors only, 10 CFR 50.47(b)

. Reactor o O perators 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 capabilities ensure the feasibility of the emergency preparedness plan

. Some state and local regulations also require emergency response exercises

. For example, the N ew J ersey 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

- respon ding 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 a ll 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 revise d 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 T est 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 O o perators 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 capa bilities 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.***E.O.12866 Review

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Page 127 of 266 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
S uperfund Amendments and Reauthorization Act (SARA) Title Three Program Officials (NASTTPO), wh ich 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

s cenarios

. 189 In addition to specific Federal and s tate 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 prov isions 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 t wo reasons . First, the A gency 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, C CPS , NY, Wiley. Pp pp . 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 19 96 rule was not specific on which other Federal regulations addressed exercise requirements.***E.O.12866 Review

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Page 128 of 266 RMP rule over nearly two decades, along with incidents suc h 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 s ome 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 perf orm exercises as an element of the emergency response program identified under Subpart s ubpart 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. Notificat ion 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

- to

date

. 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 notificatio n 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 fa cility 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.***E.O.12866 Review

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Page 129 of 266 important supplement to the existing requirement for local emergency plan exercises under
EPCRA s ection 303(c)(9), which requires local emergency plans to include methods and schedules for exercising the plan

. Respo nding 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

. N otifications to Federal, state, and local officials conducted as part of the field or tabletop exercise may also serve to meet the annual notifi cation 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 notification s 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, a ny required notifica t i ons to the National Response Center , as required by section 1 03(a) of CERCLA , and/or notificati ons 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

an d 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, p articipation in an exercise b y 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 exercise s 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 reso urces 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.***E.O.12866 Review

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Page 130 of 266 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 a n 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 i n 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 fo llows: “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 respons e 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 an d 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 r esponders 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 respo nse 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, th en 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 i ncident 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.***E.O.12866 Review

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Page 131 of 266 In § 68.96(b)(2) EPA is proposing to require the owner or operator to annually conduct an emergency tabletop exercise involving the simulated accident al 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 respo nse 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 e ach 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) wou ld 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 acti on 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 i s 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 infor mation 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 th e 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 sharin g of information that could reveal security vulnerabilities.***E.O.12866 Review

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Page 132 of 266 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 w ith §§ 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 renumber ing paragraph § 68.12(c)(4) as § 6 8.12(c)(5) (for Program 2) and § 68.12(d)(4) as § 68.12(d)(5) (for Program 3) , add ing a reference to exercise
requ irements , and correct ing 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 contain ed 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 respond s 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 main taining 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.***E.O.12866 Review

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Page 133 of 266 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 cons idered 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 equipm ent 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 N ew J ersey TCPA emergency exercise provisions, and provide for a comprehensive test of all systems un der 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 option s 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 E xecutive O rder 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 b e 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.***E.O.12866 Review

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Page 134 of 266 chemical facility informa tion 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 p reparedness 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 s eeking 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 propriet ar y

con siderations

. 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. Ac cording to CSD, f acility 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. E xecutive O rder 13650 Report to the President

– Actions to Improve Chemical Facility Safety and Security

– A Sha red 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

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- 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 complia nce 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 woul d 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 ma de 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 f acility 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, r ecommend 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.***E.O.12866 Review

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Page 135 of 266 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 substa nces . 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 analysis OCA

. 195
The MKOPSC stated that m ost 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 als o 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 b e motivated to continuously improve their safety in response to community pressure and oversight. 196 CCHS noted that requiring facilit y owners or operators to make this information available on the company website would promote improved regulatory complianc e, 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

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- 0679 on Risk Management Program RFI, PDF p. 2, 4, & 6, NASTTPO, Denver, CO. 195 Elder, M., October 29, 2014. Comment No. EPA

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- 0641 on Risk Management Program RFI, p. 3, OHMERC. 196 MKOPSC. October 29, 2014

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Page 136 of 266 issues that relate to safety. 197 The United Steel Workers (USW) state d that making unrestricted RMP information publicly available would incre ase 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 disas ters involving specific chemical releases. CPCD argues that f irst 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, shou ld 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 s evere impact on the community. 200
Poor communication between facilit y personnel and first responders, as well as poor communication between facilit y personnel and communities, has been shown to contribute to the

197 CCHS. October 28, 2014

. Comment No. EPA

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- 0546 on Risk Management Program RFI pg. 13. 198 USW. October 29, 2014

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- 0547 on Risk Management Program RFI , pg. 6. 199 CPCD. October 29, 2014

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- 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, U rges 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

- to

senate

- committee

- urges - additional

- resources - and

- clearer

- authorities

- for

- federal

- safety

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Page 137 of 266 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 inform ation and any associated vulnerabilities has the potential to aid terrorists in planning an attack. Commented [A254R253]: Change incorporated with modifications.***E.O.12866 Review

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Page 138 of 266 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 cer tain 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 Freedo m of Information Act ( FOIA ) request, by inspection at Federal Reading Rooms, or from a p erson’s SERC, LEPC, or related s tate or local government agencies. 203 EPA is proposing to require certain in formation 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 f or 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. Cognizan t 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 prov isions 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 informat ion is appropriate to improve

203 See 40 CFR Part p art 1400: Accidental Release Prevention Requirements; Risk Management Programs Under the C AA 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

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Page 139 of 266 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 ens uring 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 mor e about preparedn ess 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 ta ke during an emergency to protect themselves

. EPA is proposing to add provisions for sharing information , upon request, with LEPC s and/ or emergency response officials and revise the existing provisions for sharing information with the public

. EPA is also proposing that facilit y own e r s and operators conduct periodic public meetings within 30 days of a n RMP reportable accident to discuss chemical hazards present at facilit ies and provide information on any accident al release s that may occur . These meetings c an 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 s ubpart 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 provid ing 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 unl ikely 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 meeting s 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 t he following sentence on page 14 2 as clarification: S tationary sources may combine public meetings with LEPC meetings or other events as long as those events/meetings are available for public participation.***E.O.12866 Review

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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 on ly 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. Th e 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 d escription 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 r elease 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 hist ory; (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 faci lity and LEPC burdens of more? Commented [A258R257]: Please note

- The worst

- case re lease 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 Infor mation: 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.***E.O.12866 Review

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Page 141 of 266 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 Technolog ies (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))

. T he owner or operator shall update th is 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 ( I ST AA ). ” 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 th is 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 p rocess 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 th e substance is listed as toxic or flammable. If the chemicals affected are a mixture of flammable

s ubstances , the name “flammable mixture” may be used, instead of the individual flammable substance names; and

 The dates of implementation or planned implemen tation.
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 im proving 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 th is provision to IST rather than the full STAA

.

Commented [A265]: IA Comm ent #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 f unction 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 a dded 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 planner s 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 th is provision to IST rather than the full STAA.***E.O.12866 Review

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Page 143 of 266 T able 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)

. Own ers an d 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 i I nformation to be provided , upon request , to LEPCs or emergency response officials in § 68.205. Program Level(s) Applicability

Program 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

. Acco r ding to § 68.2 05(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 th is 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 update s 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.***E.O.12866 Review

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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***E.O.12866 Review

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Page 145 of 266 within their communities whenassist in revising the community emergency response plan d eveloped 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 responder s, 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]: Chan ge 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 reques t 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 info rmation to LEPCs only upon request. EPA revised request for comment. Commented [A280]: IA Comment #8 2 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 th is provision to IST rather than the full STAA

. Commented [A282]: IA Comment #80 Page 134, recommend the following edit: “...compliance audits reports, incident investigatio n 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 i n §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 s haring 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: §68.2 05 Availability of

... Commented [A287R286]: EPA rem oved quantities of chemicals form the information being proposed for public

... 

### 1 2 3 4Page 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 Actio n 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 tar get 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 tha t 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 c oncerns 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 co uld 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 co ncerns. 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 creati ng 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 tha t could reveal security vulnerabilities.

pg 145c***E.O.12866 Review

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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 ;

 I nformation 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 N ame 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 fol lows: “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 ma ke 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 increa se 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 f acilities 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. Alternative ly, EPA could consider being more specific and have facilities develop a

... Commented [A298R297]: EPA is seeking comment on how to lim it disclosure of information that could reveal security vulnerabilities.



### 1Page 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 magnit ude 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 doc umentation. 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

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Page 147 of 266  LEPC contact information, including LEPC name, phone number, and web site 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 pr ovide assurance to the communit y 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 o f 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 s uch 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,
up on 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 i I s 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 in formation 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.***E.O.12866 Review

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Page 148 of 266 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 pr eparedness 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 s entence 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 ann ually

– 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).***E.O.12866 Review

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Page 149 of 266 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 owner s or operator s 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- 11 3-Pg207.pdf

. Commented [A310]: IA Comment #91 Page 137, Public Meetings: The SERS pro vided 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 pub lic 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 fa cility. Commented [A311R310]: Added information on page 147 to describe comments received by SERs on public meetings.***E.O.12866 Review

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Page 150 of 266 community. The facility representative should describe the risks that are associated with the facility, and what the facility is doing to p rotect 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 dur ing 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 effici ent 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 fi ve - 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 hist ory 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 meet ings, 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 choos e? 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 implem enting agency for any extensions to the 30

- day timeframe.***E.O.12866 Review

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Page 151 of 266  Operational or process changes that resulted, thus far, from investigation of the release

. For post

- accident public meetings, EPA expects that , in some case s , 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 th e 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 sou rce or cause the process or source to be subsequently decommisioned. S tationary 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 representa tive 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***E.O.12866 Review

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Page 152 of 2 66 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 prop osed consider other options approach 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 restr icted to an RMP reportable accidents with offsite impacts? I i nstead 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 be yond 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 app rove 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- HQ

OEM- 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 op tions 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 af ter 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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Page 153 of 266 C

. Alternative Option s 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 p P anel process that periodic public meetings are often sparsely attended. EPA also considered limiting the requirement for periodic and post

- accident public meetings to only P rogram 2 and P rogram 3 facilities; however, EPA did not propose this option as our preferred option because ev en 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 off site impacts. Additionally, if a P rogram 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 meeting s 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 o f scoring criteria that should be used and any other issues that the Agency should consider when develop ing such a system.***E.O.12866 Review

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Page 154 of 266 EPA seeks comment on th e s e alternative approach es 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 s ubpart G require that the RMP indicate compliance with the regulations at 40 CFR p art 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 f or 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 accide ntal releases at the source, the CSB, and the public

. As a result, the information provided in a n 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 pro gram at a source. The nine sections of a n 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***E.O.12866 Review

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Page 155 of 266 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 s ubpart G and to make technical corrections t o 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 A gency in evaluating compliance with the RMP rule . EPA is also proposing to delete s ome data elements because the information can be obtained through improved coordination with Federal, s tate, and local agencies resulting from E xecutive O rder 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 da ta elements, EPA expects that the regulated community will find it easier to comply with Subpart s ubpart 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 A gency . B. Revisions to Subpart G EPA is proposing to revise existing provisions in Subp art s ubpart 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 element s that would be better evaluated during an on

- site inspection or information request;***E.O.12866 Review

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Page 156 of 266  Provide consistency with RMP*eSubmit;

 Provide more consistency in the data collected for similar data elements in the Program 2 and Program 3 p revention p rogram s ; and

 Replace data element s that w ere 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 , ann ual SOP review date does not provide compliance information for years 2016

- 2019

. As a result, the annual SOP review date in this example only provide s 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 the se dates with the RMP Certifying Official ’s
attest ation that the stationary source complies with each Risk Management Program requiremen t

. 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 dat a elements or the hazard review/PHA;

 For Program 3 only: management of change MOC , pre - startup review, employee participation plans, hot work permit procedures, contractor safety procedures and performance; and,***E.O.12866 Review

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Page 157 of 266  For sources with Emergency Response P rogram s: 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 s ubpart G based on the proposed rule requirements discussed in this notice document . 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 s ubpart G EPA will be able to e valuate 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 (Regist ration) EPA is proposing to delete and reserve :***E.O.12866 Review

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Page 158 of 266  § 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 latitu de 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 requir ing 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)(1 2) 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 r equir ing 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 r equir ing an email address for t he source or parent company, if the source or parent company has an e

- mail address ;

 § 68.160(b)(16) by r equir ing a source internet address, if the source has an internet address;***E.O.12866 Review

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Page 159 of 266  § 68.160(b)(17) by r equir ing a phone number at the source for public inquiries, if the source has a public inquiries phone number ;

 § 68.160(b)(18) by r equir ing 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 c hang ing 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 notice document :

 § 68.160(b)(21) would require a n attestation that c hemical h azard

- r elated i nformation is available to the LEPC or e mergency r esponse o fficials, as set forth in § 68.205 ;

 § 68.160(b)( 22) would require a n attestation that c hemical h azard

- r elated i nformation is available to the public, as set forth in § 68.210 ; and

 § 68.160(b)( 23 ) would require the d ate of most recent public meeting, as set forth in § 68.210(d)

. 2. Proposed Revisions to § 68.170 (Prevention Program/Program 2) EPA is proposi n g to delete the requirement in § 68.170(k) which identify t he 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 r eorganiz ing into subparagraphs (d)(1) and (d)(2). EPA is proposing to replace the date of the most recent review or rev ision of the safety information with an attestation that the safety information requ i rements , in § 68.48, are implemented. EPA is also proposing to move the requirement to list all F ederal and***E.O.12866 Review

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Page 160 of 266 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 subparag r aph (d)(2).

 § 68.170(e) by r eorganiz ing the date of completion of the most recent hazard review or hazard review update to § 68.170(e)(1) and remov ing from § 6 8.170(e)(1), t he requirement to identify an expected date of completion of any changes resulting from the hazard review;

 § 68.170(f) by replacing t he 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 r eplac ing t he date of the most recent review or revision of training
programs with an attestation that training requirements, in § 68.54, are imple mented. EPA is also proposing to delete the requirements to identify the type s of training provided and competency testing used in subparagraphs (g)(1) and (g)(2);

 § 68.170(h) by replacing t he date of the most recent review or revision of maintenance proce dures 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 t hird

- party audit, pursuant to §§ 68.58 and 68.59 ; and***E.O.12866 Review

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Page 161 of 266  § 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 mo st recent incident investigation into subparagraph (j)(2). EPA would delete the requirement to identify th e expected date of completion of any changes resulting from the investigatio n, and, in subparagraph (j)(3), would add a requirement that the plan indi cate 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 proposi n g to delete paragraph § 68.17 5(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 t he date of the most recent review or revis ion of the safety information with an attest at ion that the PSI requirements, in § 68.65, are implemented. EPA is also proposing to move the requirement to list all F ederal and state regulation s, industry

- specific and established company or stationary source design codes and standards that are applicable, and the requirement to identify those followed, in to sub paragraph (d)(2);

 § 68.175(e) by r eorganiz ing existing requirements into subparagraphs (e)(1) and (e)(2) and adding new requirements addressing safer technology and alternatives in

new sub paragraph (e)(2)

. Sub paragraph (e)(1) would apply to information on the***E.O.12866 Review

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Page 162 of 266 PHA or PHA update and revalidation information

. EPA would move the date of complet ion 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 ident i fy t he 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 t he date of the most recent review or revision of oper ating procedures with an attestation that the operating procedures requirements, in § 68.69, are implemented;

 § 68.175(g) by r eplac ing 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 requ ir ements to identify the type s of training provided and competency testing used in subparagraphs (g)(1) and (g)(2);

 § 68.175(h) by replacing t he date of the most recent review or revision of

m aintenance procedures and the date of the most recent equipment inspection or test and the equipment inspected or tested with an attest at ion that the mechanical integrity requirements, in § 68.73, are implemented;

 § 68.175(i) by replacing t he date of the most recent change that triggered management of change MOC procedures and the date of the most recent review or revision of management of change MOC procedures with an attestation that the management of change MOC requirements, in § 68.75, are implemented;***E.O.12866 Review

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Page 163 of 266  § 68.175(j) by replacing t he 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 sub paragraph (k)(1) and mov e the requirement to identify the date of the most recent compliance audit to sub paragraph (k)(2)

. EPA would r emove the requirement to ident i fy the expected date of completion of any changes resulting from the compliance audit ; and , in sub paragraph (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 sub paragraph (l)(1) and move the date of the most recent incident investigation in to sub paragraph (l)(2)

. EPA would delet e the requirement to identify th e expected date of completion of any changes resulting from the investigatio n; and, in sub paragraph (l)(3), would add a requir ement that the plan indicate whether root cause analyses have bee n completed for all accidents and incidents that are subject to the requirements of § 68.81;

 § 68.175(m) by replacing t he date of the most recent review or revision of employee participation plans with an attestation that employee participation requirement s, § 68.83, are implemented;

 § 68.175(n) by replacing t he date of the most recent review or revision of hot work permit procedures with an attestation that the hot work permit requ i rements, in § 68.85, are implemented ; and***E.O.12866 Review

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Page 164 of 266  § § 68.175(o) and 68.175(p) by replacing t he date of the most recent review or revision of contractor safety pro cedures 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 e mergency r esponse p rogram 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 stationa ry 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 e mergency response e xercises and revise local

c oordination 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 s ubpart E

- e mergency r esponse, and due to the difficulty in distinguishing between responding and non

- responding facilities in Subpart

s ubpart G § 68.180, the EPA is proposing to completely revise and reorganize Subpart s ubpart G § 68.180 into the following three parts: require ments 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 s ubpart 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 s ubpart G § 68.180***E.O.12866 Review

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Page 165 of 266 will also improve EPA’s abilit y 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
sub paragraphs (a)(1) through (a)(3) would be reorganiz ed and/or replaced. Subp aragraph (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 emerge ncy response efforts, pursuant to § 68.10(b)(3) or § 68.93. Subp aragraph (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). Subp aragraph (a)(3) would require the RMP to identify a list of F ederal or state emergency plan requirements to which the stationary source is subject . EPA would delete sub paragraphs (a)(4) through (a)(6) ;

 § 68.180( b) by replacing the current text with a requi rement 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 Subp aragraph (b)(1) would apply to non

- responding stationary sources. In sub paragraphs (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 Subp aragraph (b)(2) would apply to responding stationary sources. In sub paragraphs (b)(2)(i) through (b)(2)(v) the owner or operator would be required to identify whethe r the LEPC or local response entity requested that the***E.O.12866 Review

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Page 166 of 266 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); wh ether a field exercise is conducted every five years and after any RMP reportable accident al release , pursuant to § 68.96(b)(1)(i); and w hether 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 rev isions 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 w ith 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 u sers 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/hazc om/HCSFactsheet.html

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Page 167 of 266 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 r ule requires initial and refresher training for employees operating a Program 2
or P rogram 3 covered process. Since the inception of the r ule, however, there has been confusion on the types of employees that are considered workers oper ating 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 p rocess, including supervisors. This is consistent with the OSHA definition of employee se t forth at 29 CFR 1910.2(d) in which an e mploy ee means an employee of an employer who is employed in a business of his employer which affects

commer ce . 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 cond ucting emergency operations, then EPA expect s 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 review

Quoting regulatory text is unacceptable, please fix and please fix any other text you have quoted in this document.***E.O.12866 Review

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Page 168 of 266 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 empl oyee’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 t he 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***E.O.12866 Review

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Page 169 of 266 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, p iping and i nstrumentation d iagrams, SDSs , hazard information, and changes to the design of the process. Although PSI must be updated for Program 3 facilities through m anagement of c hange MOC requirements in § 68.75(d), EPA believes that the proposed change makes it clearer that PSI must be kept u p - to

date. This proposed change also ensures consistency with the s afety i nformation 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 expect s that revising § 68.65(a) in this manner will further clarify the requirement that PSI must be completed prior to conducting a
PHA

. Finally, i n order to be consistent with OSHA and the GHS, EPA is proposing to replace “Material Safety Data Sheet” with “S afety 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 n o. 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 . I n order to make the list of CAS no s . easier to search, EPA is proposing to right

justify the column of CAS no s . 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.***E.O.12866 Review

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Page 170 of 266 Butadiene, to read 106

- 99

- 0, instead of 196

- 99

- 0

. a CAS no. , right justify the first CAS nos. column and delete the sec ond 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, i n some cases, simply clarify existing requirements. The statute does not directly address when amendments should become applicable. Therefore, i n 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.***E.O.12866 Review

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Page 171 of 266  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 accidenta l 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 req uirements 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 f or 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 incid ent 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***E.O.12866 Review

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Page 172 of 266 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

o wner 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 of the required information to be p rovided 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 tim e 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 be lieves 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 an d 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 cycl e 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 update s 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 norm al PHA revalidation cycle which occurs every five years.***E.O.12866 Review

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Page 173 of 266 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 s ubpart G of the rule. The additional year will allow owners and operators an opportunity to begin to co mply 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 submit ting 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 F our years after effective

date June 5, 2021 Yes Root cause analysis F our years after effective

date June 5, 2021 Yes (also required after near misses) STAA F our years after effective

date June 5, 2021 No Emergency response coordination activities Within one year of

effective date June 5, 2018 No

LEPC re quires compliance with § 68.95 (emergency response program) Within three years of

receipt of written request N/A No***E.O.12866 Review

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Page 174 of 266 Emergency response exercises F our years after effective

date June 5, 2021 Partially

- field exercise within one year Information sharing F our years after effective

date June 5, 2021 Partially

- public meeting within 30 days Update RMP F ive years after effective

date June 5, 2022 No ( b ut previously existing correction requirements of § 68.1 95 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, 20 15 and completed its latest compliance audit on August 11, 201 7

. The source is not in NAICS 322, 324, or 325, and therefore is not subject to the p roposed 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.***E.O.12866 Review

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Page 175 of 266 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 spe cified in subpart G and § 68.42. In this case, th e 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 W ithin one year of

effective date of a final rule. Occurs annually Complete coordination activitie s before June 5, 2018 and document coordination
Notification e xercise By f our - years after effective date. Occurs annually Complete first notification exerci se by June 5, 202 1 Information availability provisions

Information to LEPC B y 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 submission Develop b y June 5, 202 1 and provide upon request

Information to the public B y four

- years

after effective date. Occurs annually.

Includes information on: regulated Complete first calendar year submission b y June 5, 202 1 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 revisio n 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 provi ding upon request. EPA is asking for comment on this approach in the section on LEPC information availability. Furthermore, the June 5 th date is a hypothetical date based on the example scenario which includes a rule effective date of June 5 th (see footno te to table). Formatted Table***E.O.12866 Review

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Page 176 of 266 substances including Safety Data Sheets; accident history; emergency response program; exercises; and LEPC contact information. Public meeting B y four

- years

after effective date. Once every five years.

Also required within 30 days of an RMP reportable accident Complete ini tial public meeting b y June 5, 202 1

Update RMP B y fiv e years after

effective date Owner’s next 5

- year

resubmission date occurs prior to effective date for provision, so owner must update RMP twice. Upd ate RMP on regular schedule ( by Jan uary 20, 2020) and again to include new information b y J une 5 , 202 2

* 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 wo uld 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 subj ect 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***E.O.12866 Review

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Page 177 of 266 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 eleme nts specified in subpart G and § 68.42. Table 1 1 : Summary of proposed provisions that would apply to Source B summarizes the proposed provisions that would apply to Source B.

Table 1 1 : Summary of proposed provisions that would apply to Source B Applicable Provisions: Timeframe Additional Information When to Complete* Emergency response coordination activities W ithin one year of

effective date of a final rule. Occurs annually Complete coordination activities before June 5, 2018 Emergency response exercises (proposed § 68.96)***E.O.12866 Review

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Page 178 of 266 Notification exercise F our - years after

effective date. Occurs annually Complete first notification exercise by June 5, 202 1

Field and t abletop e xercises F our - years after

effective date. Tabletop exercise

an nually, field exercise o nce every five years. No tabletop exercises in the year of a field exercise Complete first tab letop or field exercise b y June 5, 202 1 Information availability provisions

Information to LEPC F our - 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 submission Develop by June 5, 2021 and provide upon request

Information to the public F our - years after

effective date. Occurs annually.

Includes information on: regulated substances including Safety Data Sheets; accident history; emergency response program; exercises; and LEPC contact info rmation. Complete first calendar year submission by June 5, 2021

Public meeting F our - 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 f ive years after effective date Update RMP to include new information b y June 5, 202 2
* 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 1 2 below.
Table 1 2 : 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***E.O.12866 Review

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Page 179 of 266 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:

 Ac cident 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 a n RMP reportable accident, pursuant to § 68.210(d) (2)

. Chronologically, the first pr ovision 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 und er § 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
in vestigation 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***E.O.12866 Review

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Page 180 of 266 third

- party a udit 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 requiremen ts of § 68.96 within one year of the accidental release, and prepare an evaluation report within 90 days of completing the exercise. B y 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 1 3 summarizes the additional provisions that would apply to Source B following an RMP reportable accident (in addition to complying with new requirements triggered by a n 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 descri bed).
Table 1 3 : 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) F our - 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 pub lic meeting b y August 4, 2021

Incident investigations F our - years after effective date. Initiate within 48

hours, complete investigation and root cause analysis within 12 months Complete report by July 5, 2022***E.O.12866 Review

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Page 181 of 266 Third

- party audit F our - 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 F our - years after effective date. At least once every five

years, and within one year of an RMP reportable accident Com plete field exercise b y July 5, 2022 Complete an evaluation report within 90 days of the exercise

Include new accident history information in RMP F ive

- years after effective date. Correct RM P within 6

months of accident (existing requirement); r eport complete accident in formation 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 1 4 ) is a petroleum refinery in NAICS 32411. Its latest RMP update was submitted on Mar ch 31 , 2018 (i.e., the year after the rule effective date). Its latest PHA revalidation was completed on March 7, 201 7 (i.e., approximately three months before the rule effective date ).
Table 1 4 : 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 IST s or ISD s 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 th is provision to IST rather than the full STAA

.***E.O.12866 Review

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Page 182 of 266 By June 5, 2018 th e 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 S ource C must update the RMP to include all revised data elements specified in sub part G and § 68.42. Table 1 5 : Compliance date example for sources subject to STAA requirements , summarizes the proposed STAA provisions that would apply to Source C.
Table 1 5 : Compliance date example for sources subject to STAA requirements Applicable Provisions: Timeframe Additional Information When to Complete*

STAA F our - years after

effective date Occurs every five years

as part of PHA revalidation. By June 5 , 202 1

Information availability to LEPC , upon request F our - 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

. Develop P rovide in first calendar year submission to LEPC after completion of STAA or June 5, 20 2 1, whichever is later and p rovide to LEPC upon request

. Update RMP F ive years after

rule effective date By June 5 , 202 2

* Dates are based on a hypothetical scenario including a rule effective date of June 5, 2017. I X . Statutory and E xecutive O rder Reviews
A. E xecutive O rder 12866: Regulatory Planning and Review and E xecutive O rder 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 p repared a Regulatory Impact Commented [A330]: IA Comment #98 Page 168, Table 15, replace “IST and ISD” with “safer technologies and alternati ves”. Commented [A331R330]: Recurring comment. We intended to restrict th is provision to IST rather than the full STAA

.

Formatted: Indent: First line: 0"***E.O.12866 Review

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Page 183 of 266 A nalysis (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 E xecutive O rder 13650, “Improving Chemical Facility Safety and Security,” on August 1, 2013. The E xecutive O rder 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 represent atives of other Federal departments, agencies, and offices. The E xecutive O rder 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 facili ty 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 E xecutive O rder 13650 requires the Working Group to devel op 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) o f E xecutive O rder 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, 2 014, EPA published a n 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 proposing believes that revisions in order to could further protect human health and the environment from chemical hazards through advancement of process safety management PSM based on lessons learned. These revisions are a result of a review of the existing Risk Management Program and information gat hered 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 th e 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.***E.O.12866 Review

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Page 184 of 266 RFI and E xecutive O rder 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 process es 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 implementin g 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 crite ria. 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 conducte d for all
P rogram 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 r equire 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 fo rmal 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 i n P rogram 3 processes. The***E.O.12866 Review

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Page 185 of 266 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 p roposed rule, facilities in NAICS codes 322 (paper manufacturing), 324 (petroleum and coal products manufacturing), and 325 (chemical manufacturing) with P rogram 3 processes would be required to conduct a STAA for each process as part of their PHA, which

o ccurs 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 alterna tive, which would apply to all facilities with P rogram 3 processes in NAICS codes 322, 324, and 325. The medium cost alternative would apply the requirement to all P rogram 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 respo nd 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 writin g, 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 us e, inspection and maintenance of response equipment, training for responding employees, and procedures to review and update the program. Commented [A334]: I A 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.***E.O.12866 Review

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Page 186 of 266 Alternatives to this provision are similar to the proposed requirements. One alternative that imposes the same costs a s 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 Pr ogram 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 p art 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 c ost 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 n RMP reportable accident would also have to conduct a full field exercise within a year o f 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 exerc ises annually. Public Disclosure Information 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***E.O.12866 Review

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Page 187 of 266 the information available in an easily accessible manner, which might be pre senting 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 reg ulated 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
req uest 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 own ers 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 disc losure 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 30 days of a n RMP reportable accident. The medium cost alternative would require P rogram 2 and P rogram 3 facilities to hold a public meeting at least once every 5 years and within 30 days of a n RMP reportable accident. The high cost alternative would require all facilities (i.e., including P rogram 1 facilities) to hold a public meeting at least once every 5 years and within 30 days of a n RMP reportable accident. low cost alternative applies the requ irement to facilities with Program 2 or Program 3 processes

. The medium/high cost alternative would apply it to all facilities (i.e., P rogram 1 facilities would also be affected).***E.O.12866 Review

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Page 188 of 266 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 manufact urers, 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 o f 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***E.O.12866 Review

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Page 189 of 266 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 $ 162.6 158. 3 million at a 3% discount rate and $ 165.3 161.0 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 $ 4.7 0.4 $ 4.7 0.4 Rule Familiarization $ 0.2 0.3 $0.3 Total Cost + $ 162.6 158. 3 $ 165.3 161.0 * 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 cost s for current responders ($ 60.7 million), followed by new responders ($ 35.6 million), safer technology and alternatives analysis STAA ($34.8 million), and information sharing (LEPC) ($ 11.7 million). The remaining provisions impose average annual costs under $10 million, including coordination ($6.3 million), third

- party audits ($ 5.0 4.9 million), public meetings ($ 4.7 0.4 million), information***E.O.12866 Review

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Page 190 of 266 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

owne rs 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 seek s further information on their potential costs, and whether these costs should accrue to this proposal. W hat types of costs result from independent audits (other than the cost of the audit) that are different from self

- audit costs ? W hat types of costs resul t from root cause investigations as compared to non

- root

- cause investigations ? For the STAA provision s , what information exists to project what changes facilities are likely to voluntarily undertake ? EPA particularly requests cost data or studies for imple mentation 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 res idents to hazardous materials, and resultant damages Commented [A336]: Added to summarize the new Section 5.7 in the RIA.***E.O.12866 Review

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Page 191 of 266 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 R MP 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 r ule. Table
18 presents a summary of the quantified damages identified in the analysis.
Table 18 : Summary of Quant ified 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 on site 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 injuri es ($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 mi llion), fatalities ($0.9 million), evacuations ($0. 7 million), and hospitalizations ($0.7 million).***E.O.12866 Review

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Page 192 of 266 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 categori es), 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 provisio n. 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 s ummarizes 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 cat astrophes. 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 identif ies 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 scrutin ize 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 meetin gs 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.

Formatted: Indent: Left: 0.07", Bulleted + Level: 1 + Aligned at: 0.25" + Indent at: 0.5"

Formatted: Indent: Left: 0.07", Bulleted + Level: 1 + Aligned at: 0.25" + Indent at: 0.5" Formatted: Indent: Left: 0.07", Bulleted + Level: 1 + Aligned at: 0.25" + Indent at: 0.5"***E.O.12866 Review

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Page 193 of 266 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
2537.01 1656.16

. 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 officials responders 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. Formatted: Indent: Left: 0.07", Bulleted + Level: 1 + Aligned at: 0.25" + Indent at: 0.5"***E.O.12866 Review

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Page 194 of 266 (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 facility developing an emergency response program staff , including developing an emergency response plan, conducting emergency response exercises, documenting t raining, 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

. H owever, EPA is proposing revisions to further protect human health and the envi ronment 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 commun ity 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 add ress 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 prov ided 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 plan RMP 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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Page 19 5 of 266 Respondents/affected entities: In total, this ICR will affect 12,542 facilities and 1, 738 state and local agencies 1, 72 4 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, 46 5 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 24 8 Total 642 1,285 10,615 12,542 State and local agencies LEPCs (for Rule

Familiarization ) 1,738 1,724

* 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***E.O.12866 Review

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Page 196 of 266 submitting an RMP is authorized under CAA section 112(r)(7)(B)(iii), which states in relevant
pa rt 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 ava ilable 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: 659,001 623,970 hours (per year ). Burden is defined at 5 CFR 1320.3(b). Total estimated co st: $ 55,278,216 (per year), includes $ 5,529,000 4,303,435 an nualized 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 sen d 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 recei pt, 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)***E.O.12866 Review

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Page 197 of 266 Pursuant to section 603 of the RFA, the EPA prepared a n initial regulatory flexibility analysis ( I RFA) that examines the impact of the proposed rule on small entities along with regulatory alternatives that could minimize that impact. The complete I RFA 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,
in cluding the explosion that occurred at the West Fertilizer facility in West, Texas, on April 17,
2013 that killed 15 people , President Obama issued E xecutive O rder 13650, “ Improving Chemical Facility Safety and Security,” on August 1, 2013

. Section 6(a)(i) of E xecutive O rder 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 E xecutive O rder 13650, see S ection section II

. Background of this notice document

. 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 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. These revisions are a result of a review of the existing Risk Management Program and information gathered from the RFI and
E xecutive O rder 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 th e 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 prevent ing 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 lesson s learned. Commented [A342R341]: Changes incorporated.***E.O.12866 Review

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Page 198 of 266 NAICS codes. To develop an estimate of the number of small entities, the analysis required a series of reviews of the data to identify t he 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 possib le 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 larg e. 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 th e 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 inclu ded “USA” or “US holdings , ” which implied an international company, I nternet 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, count ies, 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 o f 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 whi ch 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.***E.O.12866 Review

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Page 199 of 266 irrigation districts, their Internet sites were checked for information on the p opulation served.
T able 20 21 below presents the number of small and large facilities by program level.
Table 20 21 : 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 3,996 3,545 6,097 451 6,619 522 10,615 Program 2 695 174 176 521 590 414 1 , 285 Program 1 219 21 3 414 6 423 9 642 Total 4,910 3,932 6,687 978 7,632 945 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

. P rogram 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 P rogram 1 facilities. Therefore, the IRFA has not considered P rogram 1 small facilities in the analysis of impacts. Program 2 and Program 3 facilities would incur the same costs for the other proposed
pro visions except the STAA. Each facility would be required to update information to be to disclose d 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.
P rogram 3 facilities in NAICS codes 322, 324, and 325 would have to conduct an S TAA 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 a n 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.***E.O.12866 Review

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Page 200 of 266 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 21 2 2 presents three sets of costs : low year, annualiz ed, 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 (appli es 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 ST AA). 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 21 2 2 : Low, Annualized, and High Year Combined Costs for Small Entities by Group Low Year Cost Annualized High Year Cost P rogram 2 and P rogram 3 facilities (excludes P rogram 3 facilities subject to STAA) Simple Complex Simple Complex Simple Complex

Non Responder $ 548 808 $ 903 1,223 $ 1,182 808 $ 2,027 1,2 23 $ 3,217 80

8 $ 5,280 1, 223 Responder 0

- 19 FTE $6, 577 743 $ 9,289 8,

969 $ 7,175 8,1

58 $ 9,471 10,

898 $ 12,347 9

,572 $ 20,357 1

2,507 Responder 20+ FTE $7, 711 870 $10, 442

761 $ 9,899 11,

885 $ 13,490 15

,261 $ 18,151 1

5,900 $ 24,437 1

9,761 P rogram 3 facilities subject to STAA Formatted: Font: Bold Formatted: Font: Bold

Formatted: Font: Bold***E.O.12866 Review

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Page 201 of 266 Non Responder n/a $ 1,223 90 3 n/a $ 6,190 17,

295 n/a $ 26,097 3

3,366 Responder <20 FTE n/a $ 9,289 8, 969 n/a $ 13,635 26 ,970 n/a $ 41,174 4

4,650

5. Related Federal Rules The Risk Management Program is one of several programs regarding chemical facility safety and security. E xecutive O rder 13650 directed F ederal agencies to identify ways to modernize policies, regulations, and standards to enhance safety and security in chemical facilities. The E xecutive O rder established a Chemical Facility Safety and Security Working Group t o oversee this effort, which is tri

- chaired by the EPA, DOL, and DHS. Member s 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 rev isions 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, a ims to prevent or minimize the
consequence s 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 preventi on 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***E.O.12866 Review

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Page 202 of 266 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 c onflicting 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 t heir 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 lik ely 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) t o encourage and support emergency planning efforts at the s tate and local levels, and (2) to provide the public an d local governments with information concerning potential chemical hazards present in their communities. EPCRA created s tate and local infrastructure designed to (1) prepare for and mitigate the effects of a chemical incident and (2) ensure that informatio n on chemical risks in the community is provided to the first responders and the public. These s tate 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 requ ired to:***E.O.12866 Review

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Page 203 of 266  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 emergen cy 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, TE RCs, 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 protec tion 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 c hemical 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 Formatted: Indent: Left: 0.5", Bulleted + Level: 1 + Aligned at: 0.75" + Indent at: 1"

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Page 204 of 266 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 recor d.
CAA Section s ection 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 p art 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 m easures 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 pl ans are not “one

- size

- fits

- all,” but in

depth, 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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Page 205 of 266 sell, or store explosives in th e 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 provisio n 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 app ly 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 P rogram 2 and/or P rogram 3 processes that have had a n RMP reportable accident. The other alternatives would have required that all compliance audits be conducted by third parties for sources with either P rogram 3 processes or
P rogram 2 and P rogram 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

- 2 5 in the R IA , 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
22 23 shows the percentage of accidents from 2004

- 2013 that occurred at small and large facilities.***E.O.12866 Review

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Page 206 of 266 Table 22 23 : Percentage of Accidents at Small and Large RMP facilities, 2004

– 2013 Sector P rogram 1 P rogram 2 P rogram 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 P anel made additional recommendations to further minimize the impacts of this provision on small businesses. T he Panel recommend ed that EPA consider proposing streamlined independence requirements for small businesses (i.e. based on size of the facility). The Panel also recommend ed that EPA limit the independence criteria to individuals participating in the audit rather than the entire company. The Panel further recommend ed that EPA seek
comments on:***E.O.12866 Review

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Page 207 of 266  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 P rogram 3 facilities, triggered by major accidents that have offsite impacts and how to define o r 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 langua ge to address these P anel recommendations in section IV.B of this document. The SBA Office of Advocacy separately recommend ed that EPA employ the BSEE approach for small firms, 210 using a simplified small business size standard, such as 250 employees. SBA also recommend ed 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. SB A 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 compl iance 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 t hat 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.***E.O.12866 Review

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Page 208 of 266 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 alt ernative 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
P rogram 3 p rocesses. 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 RMP

reportable accidents and near misses involving P rogram 2 and P rogram 3 processes. The lower

c ost option would apply the requirement to accidents and near misses at only P rogram 3 processes. Although the Agency chose the higher cost option, this provision is estimated to be one of the least costly provision s of the proposed rule. In fact, the costs for both options considered were nearly indistinguishable

– as indicated in Exhibit 5

- 2 5 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 P rogram 2 processes to also conduct root cause analyses after incidents and near misses was warranted. The SBAR P anel also made recommendations to further minimize the impacts of this provision on small businesses. T he Pa nel recommend ed 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 recommend ed that EPA consider propo sing to require root cause analysis only for reportable releases, not including near misses. The Panel recommend ed 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, t he Panel recommend ed that EPA seek comments on:***E.O.12866 Review

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Page 209 of 266  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 P anel recommendations in section
I V. A of this document. The SBA Office of Advocacy separately recommend ed 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 “seriou s 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 tha t 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 th e technique. The low cost alternative would apply the provision only to reportable accidents or near misses in P rogram 3 processes. The medium/high cost alternative would apply to reportable accidents or near misses involving Program 2 and Program 3 proces ses. 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 P rogram 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 a nnually), which would apply Formatted: Indent: Left: 0.75", Bulleted + Level: 1 + Aligned at: 0.25" + Indent at: 0.5"***E.O.12866 Review

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Page 210 of 266 the requirement to all P rogram 3 processes, and likely far less costly than the high option, which would require implementation of feasible safer alternatives for all P rogram 3 processes. The low

- cost STAA option not only minimi zes 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 perce ntage of small entities within the RMP facility universe. As indicated in Table 23 24 , 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 23 24 : 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 P anel also made recommendations to further minimize the impacts of this provision on small businesses. The Panel recommend ed that EPA explain what evidence we have that cause d us to reconsider the 1996 assessment that IST analysis was unlikely to yield additional benefits. The Panel further recommend ed 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 Formatted: Font color: Auto Formatted: Font color: Auto***E.O.12866 Review

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Page 211 of 266  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 P rogram 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 P rogram 3 processes in NAICS codes 322, 324, and 325. The medium cost alternative would apply the requirement to all P rogram 3 processes. The high cost alternative would apply the requirement to all P rogram 3 processes and require facilities to implement feasible inherently safer technology IST and alternatives that are considered inherently safer technology or design IST/ISD

. EPA incorporated preamble language to address these Panel recommendations in section IV.C of this document. The SBA Office of Advocacy separately recommend ed that small firms (under 250 employees) should not be subject to this provision until three years after the rule’s co mpliance date for large firms. SBA believes that t his 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 e xperimentation 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 effectiv e approaches to implementing its regulatory objective. For example, agencies could allow for experimentation, innovation, competition, and***E.O.12866 Review

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Page 212 of 266 experiential learning (calling upon the insights of internal statistical offices, as well as policy and program evalu ation 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 t his approach of delaying compliance for small firms until EPA can review the utility of th e provision for large firms is appropriate for a potentially costly new requirement.
SBA also recommend ed that batch toll processors be exempt from this provision unless the firm has a contractual relationship with the customer of five or more years, give n 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 P rogram 2 or
P rogram 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 P rogram 2 or P rogram 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 mil lion 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 in

house response capability, the Agency believes that non

- resp onding facilities, even if they are small businesses, must still coordinate with local public responders so that they are prepared to***E.O.12866 Review

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Page 213 of 266 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 p romulgate 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 accident s 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 faci lities conduct adequate emergency coordination, and if necessary, develop adequate emergency response capabilities, even if they are small. The SBAR P anel also made recommendations to further minimize the impacts of this provision on small businesses. T he P anel recommend ed 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. T he Panel also recommend ed that EPA seek comment on the proposed frequency for annual coordination

. EPA incorporated preamble language to address these P anel 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 believe s that it is not appropriate to place this re sponsibility 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***E.O.12866 Review

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Page 214 of 266 make arrangements with local r esponders, and to document any failure to complete such arrangements, recognizing the difficulty of achieving such arrangements across the country. SBA indicated that t oday, just as in 1980, the unavailability of local resources to provide the response fun ction is still a problem. SBA recommend ed that EPA use this approach for emergency response within the RMP rule , noting that t his is one mechanism whereby the facility can demonstrate its “good faith” in making such arrangements

. These include: <List of SBA R 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 eme rgency 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 al ternative 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 requ ire 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 P art 112) where all facilities subje ct 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.***E.O.12866 Review

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Page 215 of 266 Exercises

— (proposed revisions apply to new § 68.96) Notification Exercises. The proposed rule would require all facilities with P rogram 2 or
P rogram 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 provision s are estimated to cost less). Therefore EPA did not consider any alternatives to reduce the impact of this prov ision on small businesses, nor did the SBAR P anel 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 facili ties (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 com ment on the low option provision in the preamble to the proposed rule. The SBAR P anel 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 F ederal regulations could meet this requirement if***E.O.12866 Review

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Page 216 of 266 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 p P anel recommendations in section V.B of this document. The SBA Office of Advocacy separately recommend ed 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 f ie ld exercises at the facility without LEPC participation would be of limited value. These include: <List of SBAR recommendations for exercises> Th e 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 e xercise 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 add itional 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.***E.O.12866 Review

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Page 217 of 266 Public Information Disclosure Availability

— (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 rece iving 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 withi n 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 a n RMP reportable accident, or whet her a requirement for periodic and post

accident public meetings should be limited to only P rogram 2 and P rogram 3 facilities. Although EPA has not proposed specific alternatives to minimize the impact of the information disclosure provisions on small busi nesses, 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 r eportable 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 P anel also made recommendations to further minimize the impacts of this provision on small businesses. The Panel recommended that EPA :

 C onsider only requiring facilities to develop chemical hazard information summaries and allowing LEPCs to make reasonable requests for additional information ;***E.O.12866 Review

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Page 218 of 266  Make chemical hazard information available upon request by the LEPC rather than requiring it to be automatically submitted by the facility ;

 R equire that a public meeting be held only after an RMP reportable accident ; and

 A llow 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;

 Limiti ng 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 need These 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 );

 Wh ether 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 pub lic meetings ;***E.O.12866 Review

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Page 219 of 266  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 p P anel recommendations in

sec tion 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

 R equire 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, i f 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 fo r 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

con tact information.***E.O.12866 Review

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Page 220 of 266 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 acci dent 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 requireme nt to facilities with Program 2 or Program 3 processes. The medium/high cost alternative would apply it to all facilities (i.e., P rogram 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 representative SER s 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
I RFA

. The SBAR report contains the recommendations to the EPA Administrator from the three
F ederal P anel members (EPA, the Small Business Administration Office of Advocacy and the Office of Management and Budget OMB Office of Information and Regulatory Affairs). This proposal was informed T by t he small entity comments and the P anel 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.***E.O.12866 Review

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Page 221 of 266 This action contains a F ederal mandate under UMRA, 2 U.S.C. 1531

– 1538, that may result in expenditures of $ 1 0 0 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
E xecutive O rder 13650 listening sessions, webinars, and c onsultations, EPA has engaged s tates and local communities to discuss chemical safety issues. In the nine E xecutive O rder 13650 Improving Chemical Facility Safety and Security listening sessions and webinars, held between November 2013 and January 2014, s t ates and local communities identified lack of chemical facility participation and coordination in local emergency contingency planning as a key barrier to successfu l local community preparedness. Additionally, EPA has had consultations with s tates 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 i mprove local emergency preparedness and prevention. Key priority options discussed with NASTTPO s tates and local communities included: improving emergency response coordination between RMP facilities and LEPCs/first responder and requiring emergency respon se 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 f eedback from governmental entities while formulating the proposed revisions in this action

. Additionally, EPA participated in ongoing consultations with affected small entity representatives SERs (including small governmental entities ) through a Small Business Advocacy Review ( the SBAR ) panel . EPA Commented [A347]: IA Com ment #106 Page 194, Could we see a copy of any written NASTTPO comments? Commented [A348R347]: EPA will provide.***E.O.12866 Review

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Page 222 of 266 convened an SBAR panel in accordance with t he requirements of the RFA, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA)

. E. E xecutive O rder 13132: Federalism This action does not have Federal ism 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 gover nments , and t o 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. E xecutive O rder 13175: Con sultation 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 con cerns 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 offici als.
G. E xecutive O rder 13045: Protection of Children from Environmental Health Risks and Safety Risks This action is not subject to E xecutive O rder 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. E xecutive O rder 13211: Actions That Significantly Affect Energy Supply, Distribution or Use***E.O.12866 Review

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Page 223 of 266 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 st andards. The EPA proposes to require third

- party auditors to be experienced with applicabl e RAGAGEP, which include Voluntary Consensus Standards (VCS) as well as other measures, for regulated processes being audited. Numerous different standards apply to p rocesses 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 chemi cal 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 in dustry 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 o f applicable consensus standards because the accident prevention program provisions of the existing rule ( Subparts s ubparts C and D) require owners or
op erators to comply with RAGAGEP. Therefore, auditors must be knowledgeable of those practices in order t o perform an effective audit. EPA seeks comment on this proposed RAGAGEP requirement.
J. E xecutive O rder 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 dispro portionately high and adverse human health or environmental effects on***E.O.12866 Review

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Page 224 of 266 minority, low income , or indigenous populations. The results of this evaluation are included in the RIA, located in the docket.***E.O.12866 Review

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Page 225 of 266 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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Page 226 of 266 For the reasons set out in the preamble, title 40, chapter I, Part p art 68, of the Code of Federal Regulations C FR 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. R evis ing the definition “ C atastrophic release” , and
c. A dd ing in alphabetical order, the definitions , “CBI”, “Feasible”, “Inherently safer technology or design”, “LEPC”, “Passive measures”, “Procedural measures”, “ Root cause”, and “Third

- party audit”

. T revise the definition of “catastrophic release” and add t he following additions and revisions definitions in alph abetical 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 hyd rocarbon 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. Formatted: Space After: 0 pt

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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. langua ge 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, passiv e 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.***E.O.12866 Review

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Page 227 of 266 * * * * * 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 redu ction 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 measu res 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 identifie s 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 “practica ble” (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 s S afer 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 de finition 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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Page 228 of 266 * * * * * 3. Amend § 68.10 as follows by : a. Revis ing e paragraph s (a) introductory text; (a)(1) through (3) ; and adding paragraph (a)(4); b. Redesignat ing e paragraphs (b) through (f) as paragraphs (f) through (j); c. Add ing new paragraphs (b) through (e); and d. Revis ing e 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 th e final rule. (b) Within 1 year of [ INSERT DATE 1 YEAR AFTER TH E 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.***E.O.12866 Review

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Page 229 of 266 (d) By [ INSERT DATE 4 YEARS AFTER T HE EFFECTIVE DATE OF THE FINAL
RULE ], the owner or operator shall comply with the following provisions promulgated on [ Insert PUBLICATION 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 E FFECTIVE DATE OF THE FINAL
RULE ], the owner or operator shall comply wi th the risk management plan provisions of Subpart

s ubpart G promulgated on [ INSERT PUBLICATION DATE OF FINAL RULE].
* * * * *
4. Amend § 68.12 by:
a. R evis ing 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***E.O.12866 Review

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Page 230 of 266 (6) Submit as part of the RMP the data on prevention program elements for Program 2 processes as provided in § 68.17 0. (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. 95 96 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 by as follows:

a. r R edesignat ing e paragraphs (b)(10) and (b)(11) as paragraphs (b)(11) and (b)(12) ; and
b. A a dd ing 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 revis ing e 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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Page 231 of 266 7. Amend § 68.50 to by revis ing e 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 follows by : a. Revis ing e paragraphs (a), (b), and (d); and b. Add ing 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 operato r 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 employ ees 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. Formatted: None, Indent: Left: 0.5", Space Before: 0 pt, After: 8 pt, Don't add space between paragraphs of the same style, Don't keep with next, Don't keep lines together Formatted: None, Space Before: 0 pt, After: 8 pt, Don't add space between paragraphs of the same style, Don't keep with next, Don't keep lines together***E.O.12866 Review

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Page 232 of 266 (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 r evis ing e paragraph (a) ; and b. A a dd ing 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 for th 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 third

party audit when one of the following conditions apply: (1) An accidental release me eting 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 aud it 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 a udit is necessary pursuant to par agraph (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 pro vide 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. Formatted: Indent: Left: 0"***E.O.12866 Review

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Page 233 of 266 (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 determina tions 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 a udit 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 req uired 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 s ubpart 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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Page 234 of 266 (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 audit or/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 acti vities under this section; (ii) Receive no financial benefit from the outcome of the audit, apart from payment for the auditing services; (iii) Not ha ve conducted past research, development, design, construction services, or consulting for the owner or op erator 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

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Page 235 of 266 (3) The auditor shall have written policies and procedures to ensure that a ll 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 cont ent of each audit report shall: (i) I dentify 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 requireme nts 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 a udit 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 certi fy 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 th at 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 Formatted: Font: 10 pt***E.O.12866 Review

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Page 236 of 266 am aware that there are significant penalties for submitting false information, including the possibil ity 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 th e 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

commu nications 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 o f 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, stat ing: “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 identifi ed 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 impr isonment for knowing violations.” Formatted: Underline

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Page 237 of 266 (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 complete d, 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. Th e owner or operator shall p rovide 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 follows by : a. Revis ing e paragraph (a); b. Redesignat ing e paragraphs (c) through (f) as paragraphs (d) through (g); c. Add ing a new paragraph (c); and d. Revis ing th e newly re 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 Formatted: Underline

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Page 238 of 266 (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
exp erience 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 exten sion 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 invo lved 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 c auses 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.***E.O.12866 Review

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Page 239 of 266 12. Amend § 68.65 to by revis ing e 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) H AZARDOUS EFFECTS OF INADVERTENT MIXING O F DIFFERENT MATERIAL S THAT
COULD FORESEEABLY OC CUR
. N OTE TO PARAGRAPH (b): Safety D ata 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 follows by :

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***E.O.12866 Review

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Page 240 of 266 * * * * * (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 add ing 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 r evis ing paragraph (a) and a dd ing 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 self

evident. 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 oper ators to consider u se 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 Safe r 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. Summary

The 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 technolo gies and alternatives designs considered. Commented [A364R363]: Recurring comment. We intended to restrict th is provision to IST rather than the full STAA

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Page 241 of 266 (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
proce dures 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 a udit 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 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 a n 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 implementin g 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 ow ner 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 m ade by other implementing agencies, the administrator or director of such***E.O.12866 Review

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Page 242 of 266 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 im plementing 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 re port 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 p ursuant 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 s ubpart 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 op erator 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 a uditing techniques; and (iv) A licensed Professional Engineer, or shall include a licensed PE on the audit team.***E.O.12866 Review

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Page 243 of 266 (2) Independence and impartiality requirements . The auditor/audit team shall: (i) Act impartially when performing all activities under this sec tion; (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 o r 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
statem ent 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, independe nce, 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) I dentify 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;***E.O.12866 Review

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Page 244 of 266 ( 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 a udi t 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 prepa red 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 pre pared 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 violatio ns.” (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 submi t 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***E.O.12866 Review

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Page 245 of 266 (4) The audit report and related records shall not be privileged as attorney

- client communications or attorney work products, even if writt en 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 atta ched 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 be ing 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 respons es 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) Schedul e 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***E.O.12866 Review

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Page 246 of 266 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 draf

t 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 to by revis e ing 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 concl usion 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;***E.O.12866 Review

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Page 247 of 266 (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 fa ctors 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 recommenda tions 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:***E.O.12866 Review

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Page 248 of 266 (1) The outcome of the resp onse 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 w riting 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 s ubpart 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 ope rator 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 coordinatio n 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 r esponse 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 pro cess above the threshold quantity, the owner or operator shall coordinate response actions with the local fire department.
20. Amend § 68.95 as follows by :***E.O.12866 Review

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Page 249 of 266 a. Revis ing e 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. Revis ing e 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
emerg ency 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. Section Add § 68.96 is added to Subpart s ubpart 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 §***E.O.12866 Review

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Page 250 of 266 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. Th e 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 Fed eral, 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 personne l, 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 t abletop 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***E.O.12866 Review

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Page 251 of 266 (i) Frequenc y . 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 appropri ate 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; co ordination 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

o f 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 r esponse 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.”, remov ing e 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

c b

. In Revising Table 4, “ List of Regulated Flammable Su bstances and Threshold Quantities for Accidental Release Prevention ”

. , The revisions read as follows:

T ABLE 4 TO §68.130

— L IST OF R EGULATED F LAMMABLE S UBSTANCES 1 AND T HRESHOLD Q UANTITIES FOR A CCIDENTAL R ELEASE P REVENTION

[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 sum mary 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 vulne rabilities. 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 experien ced 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.).***E.O.12866 Review

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Page 252 of 266 CAS No. Chemical name Threshold quantity (lbs) Basis for

listing
60

- 29

- 7 Ethyl ether [Ethane, 1,1′

- oxybis

- ] 10,000 g 74

- 82

- 8 Methane 10,000 f 74

- 84

- 0 Ethane 10,000 f 74

- 85

- 1 Ethylene [Ethene] 10,000 f 74

- 86

- 2 Acetylene [Ethyne] 10,000 f 74

- 89

- 5 Methylamine [Methanamine] 10,000 f 74

- 98

- 6 Propane 10,000 f 74

- 99

- 7 Propyne [1

- Propyne] 10,000 f 75

- 00

- 3 Ethyl chloride [Ethane, chloro

- ] 10,000 f 75

- 01

- 4 Vinyl chloride [Ethene, chloro

- ] 10,000 a, f 75

- 02

- 5 Vinyl fluoride [Ethene, fluoro

- ] 10,000 f 75

- 04

- 7 Ethylamine [Ethanamine] 10,000 f 75

- 07

- 0 Acetaldehyde 10,000 g 75

- 08

- 1 Ethyl mercaptan [Ethanethiol] 10,000 g 75

- 19

- 4 Cyclopropane 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

- 4 Vinylidene chloride [Ethene, 1,1

- dichloro

- ] 10,000 g 75

- 37

- 6 Difluoroethane [Ethane, 1,1

- difluoro

- ] 10,000 f 75

- 38

- 7 Vinylidene fluoride [Ethene, 1,1

- difluoro

- ] 10,000 f 75

- 50

- 3 Trimethylamine [Methanamine, N, N

- dimethyl

- ] 10,000 f 75

- 76

- 3 Tetramethylsilane [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

- 9 Trifluorochloroethylene [Ethene, chlorotrifluoro

- ] 10,000 f 106

- 97

- 8 Butane 10,000 f 106

- 98

- 9 1

- Butene 10,000 f 106

- 99

- 0 1,3

- Butadiene 10,000 f Formatted Table***E.O.12866 Review

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Page 253 of 266 107

- 00

- 6 Ethyl acetylene [1

- Butyne] 10,000 f 107

- 01

- 7 2

- Butene 10,000 f 107

- 25

- 5 Vinyl methyl ether [Ethene, methoxy

- ] 10,000 f 107

- 31

- 3 Methyl formate [Formic acid, methyl ester] 10,000 g 109

- 66

- 0 Pentane 10,000 g 109

- 67

- 1 1

- Pentene 10,000 g 109

- 92

- 2 Vinyl ethyl ether [Ethene, ethoxy

- ] 10,000 g 109

- 95

- 5 Ethyl nitrite [Nitrous acid, ethyl ester] 10,000 f 115

- 07

- 1 Propylene [1

- Propene] 10,000 f 115

- 10

- 6 Methyl ether [Methane, oxybis

- ] 10,000 f 115

- 11

- 7 2

- Methylpropene [1

- Propene, 2

- methyl

- ] 10,000 f 116

- 14

- 3 Tetrafluoroethylene [Ethene, tetrafluoro

- ] 10,000 f 124

- 40

- 3 Dimethylamine [Methanamine, N

- methyl

- ] 10,000 f 460

- 19

- 5 Cyanogen [Ethanedinitrile] 10,000 f 463

- 49

- 0 Propadiene [1,2

- Propadiene] 10,000 f 463

- 58

- 1 Carbon 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

- 2 Bromotrifluorethylene [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

- 4 Vinyl acetylene [1

- Buten

- 3

- yne] 10,000 f 1333

- 74

- 0 Hydrogen 10,000 f 4109

- 96

- 0 Dichlorosilane [Silane, dichloro

- ] 10,000 f 7791

- 21

- 1 Chlorine monoxide [Chlorine oxide] 10,000 f 7803

- 62

- 5 Silane 10,000 f***E.O.12866 Review

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Page 254 of 266 10025

- 78

- 2 Trichlorosilane [Silane,trichloro

- ] 10,000 g 25167

- 67

- 3 Butene 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 follows by : 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)(i i) 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
i mplementation, and the e

- mail address for that person;
* * * * * (9) The number of full

- time equivalent employees at the stationary source;***E.O.12866 Review

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Page 255 of 266 * * * * * (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 a ddress 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, purs uant to § 68.205; (22) Location or means of public access for chemical hazard information made available to the public, pursuant to § 68.210; and***E.O.12866 Review

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Page 256 of 266 ( 23) Whether a public meeting has been held within the last five years and/or following

a n RMP reportable accident al release , pursuant to § 68.210(d).
24. Amend § 68.170 as follows by : a. Revis e ing paragraph s (a) , (e) , (f), and (h) ; b. Redesignat e ing paragraph (d) as paragraph s (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 paragra ph (j) as paragraph (j)(1), revising the newly designated paragraph (j)(1), and adding new paragraphs (j)(2) and (3); and Remove 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 . Remov ing e 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 operat or 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.***E.O.12866 Review

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Page 257 of 266 (2) A list of all F ederal and state regulations, industry

- spec ific 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 r ecent 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 inves tigation. (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. Revis ing e paragraph s (a) , (f) , (h) through (j), and (m) through (o) ; b. Redesignat ing e paragraph (d) as paragraph s (d)(1) , revising the newly designated paragraph (d)(1), and adding a new paragraph (d)(2) and revise ; c. Revis ing e paragraph s (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);***E.O.12866 Review

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Page 258 of 266 e d . Redesignat ing e paragraph (k) as paragraph s (k)(1) , revising the newly designated paragraph (k)(1), an d adding new paragraphs (k)(2) and through (k)(3) and revise ; f e . Redesignat ing e paragraph (l) as paragraph s (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 . Remov ing e 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 F ederal and state regulations, industry

- specific and established c ompany 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.***E.O.12866 Review

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Page 259 of 266 (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 imple mented. (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 r equirements, 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 t o 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 th is provision to IST rather than the full STAA

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Page 260 of 266 (1) Name, organizational affiliation, phone number, and e

- mail address of local
emergenc y 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 annuall y, pursuant to 68.93(a); and (3) A list of F ederal 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 respo nding 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, a s 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) Whe ther 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 an y RMP reportable accident al 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).***E.O.12866 Review

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Page 261 of 266 27. Amend In § 68.190 a sentence is added to the end of by revising paragraph (c) to add a sentence at the end read 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 R r edesignat ing e paragraph (a) as paragraph (a)(1) , revising the newly designated paragraph (a)(1), and revise; b. A a dd ing 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 five

year 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 in formation 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"***E.O.12866 Review

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Page 262 of 266 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 p art 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 i nformation 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;***E.O.12866 Review

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Page 263 of 266 (v) On

- site and offsite impacts; (v i) 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 accordan ce 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 implement ation. (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 s Sa fer 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...”an d “(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 intende d to restrict th is provision to IST rather than the full STAA

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Page 264 of 266 (d) The discl osure 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 o wner 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 follows by : a. Revis ing e paragraph (a); b. Redesignat ing e paragraph (b) as paragraph (e) and revise redesignated paragraph (e) ; and c. Add ing new paragraphs (b) t hrough (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 p art 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
 SD S
 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.***E.O.12866 Review

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Page 265 of 266 (1) Regulated substances information. Names and quantities of regulated substances held in a process. (2) Sa fety 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 informat ion concerning the source’s compliance with § 68.10(b)(3) or the emergency response provisions of Subpart s ubpart 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, pho ne 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 § 68.42 di scuss 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 agre ed 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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Page 266 of 266 (2) W w ithin 30 days of any accident subject to reporting under § 68.42

. , the owner or operator of a st ationary 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 af ter 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 applic able 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 C BI 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 no t 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.