[Federal Register Volume 60, Number 48 (Monday, March 13, 1995)]
[Proposed Rules]
[Pages 13526-13545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5656]




[[Page 13525]]

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Part III





Environmental Protection Agency





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40 CFR Part 68



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Accidental Release Prevention Requirements: Risk Management Programs 
Under Clean Air Act Section 112(r)(7); Proposed Rule

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[A-91-73; FRL-5168-2]
RIN 2050-AD26


Accidental Release Prevention Requirements: Risk Management 
Programs Under Clean Air Act Section 112(r)(7)

AGENCY: Environmental Protection Agency.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: On October 20, 1993, EPA proposed risk management program 
regulations, mandated under the accidental release provisions of the 
Clean Air Act (CAA). The purpose of the proposed rule is to reduce the 
number and severity of chemical accidents. Based on information 
presented during public hearings and in comments on the proposed rule, 
EPA is requesting additional comment on the following regulatory 
options and issues: approaches for increasing compliance flexibility 
and decreasing cost while still ensuring preparedness by tiering the 
regulatory requirements to take into consideration differences between 
various types, classes, and kinds of sources, devices, and systems; the 
hazard assessment approaches (including worst-case scenarios); accident 
information reporting; public participation in risk management program 
and plan oversight; inherently safer approaches for sources' design and 
operations; and the implementation of CAA section 112(r) regulations, 
including methods of integrating these requirements into the title V 
permitting requirements and the codification of approved state section 
112(r) requirements.

DATES: Comments: Comments must be submitted on or before May 12, 1995.

    Hearings: The Agency will hold a hearing on March 31 from 9 a.m. 
until 4 p.m.
ADDRESSES: Comments: Written comments may be mailed or submitted to: 
U.S. Environmental Protection Agency, Attn: Docket (A-91-73), Room 
1500, 401 M Street, SW, Washington, DC 20460. Comments must be 
submitted in duplicate. Comments may also be faxed to the docket at 
202-260-4400, as long as faxes are followed by hard copies.
    Hearings: The hearing will be held at the EPA Auditorium, 401 M 
Street, SW, Washington, DC. People who want to testify at this hearing 
should call 703-934-3158 by March 27.
    Docket: Supporting information used in developing the accidental 
release prevention regulations is contained in Docket No. A-91-73. This 
docket is available for public inspection and copying between 8:00 a.m. 
and 5:30 p.m., Monday through Friday (except government holidays) at 
the address listed above. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Dr. Lyse D. Helsing at (202) 260-6128, 
Chemical Emergency Preparedness and Prevention Office (5101), U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460, or the Emergency Planning and Community Right-to-Know Hotline at 
1-800-535-0202.

SUPPLEMENTARY INFORMATION:

I. Introduction and Background
    A. Statutory Authority
    B. Relationship of Section 112(r) to Other Requirements of the 
Clean Air Act
    C. Summary of the Proposed Risk Management Program Rule
II. Discussion of Issues and Approaches
    A. Approaches for Tiering the Regulatory Requirements
    B. Hazard Assessment
    C. Accident Information Reporting
    D. Public Participation
    E. Inherently Safer Approaches
    F. Implementation and Integration of Section 112(r) with State 
Programs
III. Required Analyses
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Enhancing the Intergovernmental Partnership
    D. Paperwork Reduction Act

I. Introduction and Background

A. Statutory Authority

    This supplemental notice of proposed rulemaking is being issued 
under sections 112(r) and 301(a)(1) of the Clean Air Act (CAA) as 
amended (42 U.S.C. 7412(r) and 7601(a)(1)).

B. Relationship of Section 112(r) to Other Requirements of the Clean 
Air Act

    The Clean Air Act Amendments of 1990 amend CAA section 112 and add 
a new paragraph (r). The intent of CAA section 112(r) is to prevent 
accidental releases to the air and minimize the consequences of 
releases by focusing preventive measures on chemicals that pose the 
greatest risk to the public and the environment. For a summary of the 
statutory requirements of section 112(r) and related statutory 
provisions, see the notice of proposed rulemaking (NPRM) (58 FR 54190; 
October 20, 1993).
    Since the October 20, 1993, notice, the Environmental Protection 
Agency (EPA) has taken various additional regulatory actions relevant 
to the section 112(r) program. EPA promulgated the List of Regulated 
Substances and Thresholds for Accidental Release Prevention on January 
31, 1994 (59 FR 4478). The list of regulated substances and thresholds 
will determine which sources must comply with the accident prevention 
regulations.
    CAA section 112(l) contains the statutory authority for EPA to 
approve and delegate specific Federal authorities to states. EPA 
promulgated a rule under section 112(l) on November 26, 1993 (58 FR 
62262) that addresses the approval of both state programs for section 
112 that mirror the Federal requirements and programs that differ from 
Federal requirements. Approval of state rules addressing section 112(r) 
requirements is addressed in the section 112(l) rule.
    Certain other regulatory actions that predate the October 20, 1993, 
NPRM are relevant to today's supplemental notice. Specifically, section 
112(r) is addressed in CAA title V, operating permits, and the 
subsequent rulemaking in 40 CFR part 70 (part 70) published on July 10, 
1992 (57 FR 32250). Section 112(r) listed substances are ``regulated 
air pollutants,'' and the accident prevention regulations developed 
under section 112(r)(7) are ``applicable requirements'' for the 
purposes of CAA title V and part 70.

C. Summary of the Proposed Risk Management Program Rule

    The proposed rule would require sources to:
    <bullet> Register with EPA not later than three years after 
publication of the final rule;
    <bullet> Develop and implement a risk management program that 
includes a hazard assessment, prevention program, and emergency 
response program, and maintain on-site documentation of the program's 
implementation. The hazard assessment would include offsite consequence 
analyses and a five-year accident history;
    <bullet> Develop and submit to Federal, state, and local 
authorities a risk management plan (RMP) that documents the risk 
management program. This plan will be available to the public; and
    <bullet> Update the risk management program and plan as required by 
rule, audit, or process or chemical changes at the source.
    The risk management program addresses the general requirements of 
CAA section 112(r)(7)(B) for regulations to provide for accidental 
release detection and prevention. The risk management plan, referred to 
as the [[Page 13527]] RMP in this notice, addresses the specific 
requirements of CAA section 112(r)(7)(B) for a plan that provides 
governmental entities and the public with information on the hazards 
found at sources and the source's plans for addressing the hazards. 
These hazards would be identified and addressed through implementation 
of the risk management program elements. Therefore, the RMP would 
summarize the results of hazard assessments and the implementation of 
the risk management program requirements. The proposed rule also 
contains a system to audit the RMPs, including criteria for selecting 
sources for audits.

II. Discussion of Issues and Approaches

    During public hearings on the proposed rule, in comments provided 
on the proposed rule, and through additional sources, EPA has learned 
that six areas of the proposed rule need clarification and further 
comment prior to development of a final rule. In addition to the 
regulatory provisions and alternatives in the proposed rule, EPA is 
requesting comment on regulatory options under consideration in the 
following areas: approaches for tiering the regulatory requirements to 
take into consideration differences between various types, classes, and 
kinds of sources, devices and systems; the hazard assessment approaches 
(including worst-case scenarios); accident information reporting; 
public participation in risk management program and plan oversight; 
inherently safer approaches for design and operation; and the 
implementation of section 112(r) regulations including methods of 
integrating these requirements into the title V permitting 
requirements. All regulatory provisions and alternatives under the 
proposed rule remain as options for the final rule. EPA will consider 
carefully comments already submitted. Therefore, commenters on this 
notice should not duplicate comments already submitted, but should 
focus on the issues in this notice.

A. Approaches for Tiering the Regulatory Requirements

    Many commenters asked for a tiered approach (i.e., applying 
different requirements to different sources). Commenters have presented 
several reasons why a tiered approach is needed:
    <bullet> Commenters stated that, if a source cannot cause offsite 
impacts, the source should not have to meet the requirements of the 
rule.
    <bullet> Commenters stated that the rule should be streamlined to 
ensure that the requirements are appropriate for each type of source 
covered and eliminate duplicative coverage where possible. Commenters 
argued that CAA section 112(r)(7)(B)(i) allows EPA to take into account 
differences in size, operations, processes, class and categories of 
sources, and voluntary actions.
    <bullet> Commenters, particularly states, were concerned about 
whether the final rule can be implemented effectively. Substantial 
requirements imposed on lower risk sources may undermine the program 
because implementing agencies and the public will find it more 
difficult to identify and focus on the most serious risks. Resources 
spent on unproductive regulatory requirements better might be used to 
analyze and develop new accident prevention technologies.
    <bullet> Commenters have stated that, based on their experience 
implementing similar accident prevention rules in New Jersey, 
California, and Delaware, and implementing the OSHA PSM standard, the 
rule would impose substantially higher costs on affected sources than 
EPA had originally estimated. These commenters argued that the costs of 
the rule should reasonably be related to benefits obtained. Commenters 
noted that EPA is required under CAA section 112(r)(7)(C) to consider 
the effects on small businesses.
    In light of data and information supplied by commenters during the 
initial comment period and developed by EPA subsequent to publication 
of the initial proposed rule, EPA believes that it would be 
unreasonable to apply the proposed rule prevention program to all 
sources subject to part 68. EPA is considering a tiered approach to 
achieve the program objectives of ensuring that the effort is 
appropriate to the potential risk and recognizing the prevention steps 
that sources are already required to take under other regulatory 
programs. EPA believes a tiered implementation framework may be a 
reasonable way to reduce the cost without sacrificing accident 
prevention benefits.
    EPA is proposing the use of three tiers, representing increasing 
levels of effort, in defining requirements for sources. The tiers would 
apply to different categories and classes of sources based on their 
potential risk and steps already being taken. In light of the various 
comments summarized above, EPA does not believe that the third tier, 
which would be the proposed prevention program and would entail the 
greatest level of effort among the alternatives discussed below should 
apply to all sources. EPA solicits comments on this position.
    Under the Common Sense Initiative (CSI), the Agency is working with 
a broad cross section of stakeholders to examine regulations affecting 
six industry sectors. These sectors are petroleum refining, metal 
finishing, iron and steel, automobile manufacturing, electronics and 
computers, and printing. Under CSI, the Agency and stakeholders 
together will be looking for approaches that provide more environmental 
protection at less cost for these industry sectors. The tiering 
approaches discussed in this notice incorporate these CSI principles.
Discussion of Issues and Approaches
    The CAA mandates that each source with more than a threshold 
quantity of a regulated substance develop and implement a risk 
management plan that includes an offsite consequence analysis, a five-
year accident history, a prevention program, and an emergency response 
program. Under its proposed rule, EPA would require the submission of 
an RMP that summarizes each of the elements listed. The risk management 
program specifies the activities required for each of the broad 
elements. The original proposal would require every source affected by 
the rule to complete all specified activities and submit an RMP. EPA is 
proposing today to create the following three tiers of risk management 
programs:

Tier 1: A brief RMP would demonstrate and certify that the source's 
worst-case release would not reach any public or environmental 
receptors of concern.
Tier 2: A streamlined risk management program would require sources to 
conduct an offsite consequence analysis, document a five-year accident 
history, implement prevention steps, have an emergency response plan, 
and submit an RMP. The rule would not require specific steps to comply 
with the prevention and emergency response programs.
Tier 3: The full risk management program and plan would be that 
described in the proposed rule.

    In addition to the approach in the proposed rule, EPA has developed 
two alternative approaches to assigning sources to the tiers in a way 
that takes into consideration risk as well as differences between 
types, classes, and kinds of sources:

Approach 1: Sources that could meet the requirements of Tier 1 would 
comply with Tier 1; manufacturers with 100 or more full-time employees 
(FTEs) producing pulp (SIC code 2611), chlor-alkalis (2812), industrial 
inorganics, not elsewhere classified [[Page 13528]] (nec) (2819), 
plastics and resins (2821), industrial organics, nec (2869), nitrogen 
fertilizers (2873), agricultural chemicals, nec (2879), and petroleum 
refineries (2911) would comply with Tier 3 requirements; all other 
sources would comply with Tier 2 requirements. In addition, eight years 
after the effective date of the rule, sources in SIC codes 2812, 2819, 
2869, 2873, and 2911 with 20 to 99 FTEs would be required to meet Tier 
3 requirements.
Approach 2: Sources that could meet the requirements of Tier 1 would 
comply with Tier 1; other sources with fewer than 100 full-time 
employees (FTEs) would comply with Tier 2 requirements; all other 
sources would comply with Tier 3 requirements.
Discussion of Tier Requirements
    Tier 1 (No Impact Tier). A source in Tier 1 would be a source that 
is subject to part 68 because it has more than a threshold quantity of 
a regulated substance, but that does not pose a risk to public or 
environmental receptors. A source would be eligible for Tier 1 if the 
owner or operator can demonstrate that, in a worst-case release, there 
are no public and environmental receptors of concern within the impact 
distances specified by rule. Sources would not be eligible for Tier 1 
if they have had a significant accidental release (as defined in the 
proposed rule) in the previous five years. To ensure that emergency 
responders are aware of the hazards at the sites, sources that exceed a 
threshold only for flammable or explosive regulated substances (i.e., 
they have no listed toxics above the threshold quantity) would need to 
post a sign at all normal access routes that warns the public and 
emergency responders about the hazard (fire or explosion) and lists an 
emergency contact telephone number. The owner or operator of a source 
eligible for Tier 1 that handles a regulated toxic substance would need 
to show that the local emergency response plan prepared under the 
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) 
section 303, 42 U.S.C. 11003, specifically addresses their source. For 
regulated substances that are not extremely hazardous substances (EHSs) 
under EPCRA, the owner or operator of the source would need to certify 
that source emergency response planning and measures have been 
coordinated with local first responders. EPA requests comments on this 
approach. Sources meeting these criteria would be required to register, 
submit an RMP consisting of the registration and standard one-paragraph 
statement (see rule text), and maintain records of compliance with 
these requirements.
    The provisions described above would satisfy each element of 
section 112(r)(7)(B)(ii) while recognizing that it is reasonable for 
this class of sources to be addressed in a simple manner. The hazard 
assessment element of the program would be satisfied by verifying that 
there were no receptors within the potential impact zone of the worst-
case accidental release and by the absence of any significant 
accidental release within the previous five years. In addition, EPA 
proposes that, in lieu of obtaining a professional survey, an owner or 
operator could rely on visual approximations of the distances 
surrounding the source to public and environmental receptors for 
comparison to the distance generated by the worst-case release. The 
prevention program would not require additional prevention activities 
because the characteristics of the process are such that there are no 
potential public or environmental impacts. A standardized RMP ensures 
that local emergency planners and the state know that the source has 
been assessed by the owner or operator.
    EPA believes that Tier 1 will be most suitable for operations that 
handle flammable substances or explosive substances in locations that 
are relatively distant from the public. In lieu of presenting a 
distance table for explosives in this part, EPA would allow a source to 
be eligible for Tier 1 if it maintained a distance to the public and 
environmental receptors consistent with 27 CFR part 55 or 30 CFR parts 
56, 57, or 77. These regulations, promulgated by the Bureau of Alcohol, 
Tobacco and Firearms (BATF) and the Mine Safety and Health 
Administration (MSHA) incorporate the American Table of Distances 
(ATD). The distances identified in the ATD are more conservative than 
the EPA listing criteria and should, therefore, protect the public and 
the environment from the effects that caused EPA to list explosives.
    Based on the known properties of flammable substances and 
explosives, it is possible to use conservative assumptions and 
calculate the maximum distance at which an overpressure or heat effect 
of concern can be detected. Distances for potential impacts of 
accidental releases for flammable substances and processes could be 
determined by consulting distance tables or derived using the following 
calculation method described in Flammable Gases and Liquids and Their 
Hazards:

D = C  x  (nE)<SUP>1/3,

where D is the distance in meters to a 1 psi overpressure; C is a 
constant for damages associated with 1 psi overpressures or 0.15, n is 
a yield factor of the vapor cloud explosion derived from the mechanical 
yield of the combustion and is assumed to be 10 percent (or 0.1) and E 
is the energy content of the explosive part of the cloud in Joules. E 
can be calculated from the mass of substance in kilograms times the 
heat of combustion (hc) in Joules per kilogram as follows:

E = mass  x  hc

Combining these two equations gives:

D = 0.15  x  (0.1  x  mass  x  hc)<SUP>1/3

If distances to receptors are greater than the distance given by the 
calculation method, then a source could be eligible for Tier 1.
    EPA has received a study addressing the potential consequences of 
accidental releases from oil and gas exploration and production (E&P) 
sources that may provide a more suitable method for calculating impact 
distances from these sources than the general formula presented above. 
The study, Hazard Assessment of E&P Facilities Potentially Subject to 
the EPA's Risk Management Program Regulations, was submitted by the 
American Petroleum Institute in January 1995 and is available in the 
docket (see ADDRESSES section of this rule). Generally the study 
purports to show that given the composition of produced hydrocarbons at 
the source and certain physical characteristics of an E&P source, such 
as operating phase and piping size, one may estimate the potential 
impact distances for vapor cloud explosions and radiant heat effects of 
an accidental release. EPA is announcing the availability of this study 
and seeks comment on whether EPA should allow E&P sources to use the 
results of the study to determine worst-case release impact distances.
    For listed toxic substances, EPA is proposing that sources use the 
lookup tables discussed in Section B below. Sources would use the 
lookup tables to determine the impact distance for their worst-case 
releases. If a source can demonstrate that there are no public or 
environmental receptors of concern within the distance, the source 
would be eligible for Tier 1.
    EPA seeks comment on whether Tier 1 is appropriate for the sources 
discussed above. In particular, EPA seeks comment on whether Tier 1 is 
appropriate for sources that have toxic regulated substances present in 
more than a threshold quantity. Should sources be allowed to determine 
that they have no offsite impacts for toxics [[Page 13529]] based on 
site-specific analyses rather than the lookup tables? Is the criterion 
of no significant accidental release in the previous five years 
appropriate as a condition for Tier 1 eligibility? Are additional 
response preparedness activities necessary beyond what has been 
specified for sources in this tier?
    Tier 2 (Streamlined Program). Sources would be required to register 
with EPA, conduct a hazard assessment, develop a five-year accident 
history, prevention program, and emergency response program, and submit 
an RMP summarizing these elements.
    The rule would not specify the prevention program in detail, but a 
source's program would have to cover the statutory elements of 
training, maintenance, safety precaution, and monitoring. The 
prevention program section of the RMP would describe the steps the 
source takes to train employees and maintain the facility, the safety 
precautions used, and monitoring. Sources may be able to meet these 
requirements through compliance with other, already existing Federal 
regulations. For example, almost all sources are subject to OSHA 
regulations. The Hazard Communication Standard (29 CFR 1910.1200) 
requires training on hazards and preventive actions. OSHA has numerous 
rules related to safety precautions. Certain industries (e.g., handlers 
of anhydrous ammonia and LPG) have specific OSHA standards. Propane 
handlers are also generally subject to state and local laws based on 
NFPA-58, a storage and handling standard for propane. Sources could 
cite compliance with these standards as part of their description of 
their prevention steps. Sources that are in compliance with the OSHA 
process safety management (PSM) standard or with chemical and refinery 
industry standards would be able to cite compliance with these because 
they parallel EPA's proposed prevention program.
    One mandated prevention element not usually addressed in 
regulations, except OSHA PSM, is maintenance. Sources would be required 
to describe how they maintain a safe facility; EPA would not, however, 
specify maintenance steps. EPA emphasizes that, under CAA section 
112(r)(1), all sources already are required to identify their hazards 
and design and maintain a safe facility and would continue to be 
subject to this general duty under today's proposed rule.
    The response program would document procedures for informing the 
public and local entities about accidental releases, procedures to be 
used on site to respond to an accidental release, and a description of 
employee training measures regarding emergency situations. EPA requests 
comment on whether Tier 2 sources should be required to exercise the 
emergency response program under proposed Sec. 68.45 or whether a 
streamlined response program would be sufficient. EPA notes that, for 
both Tier 2 and Tier 3 (described below), compliance with other Federal 
contingency and emergency response planning requirements (e.g., RCRA, 
OPA-90) would be considered adequate to meet the emergency response 
requirements of the rule. EPA asks for comment on what other Federal 
emergency response measures would satisfy the requirements of section 
112(r)(7)(B)(ii)(III). In particular, does HAZWOPER (29 CFR 1910.120) 
fulfill the requirement for ``a response program providing for specific 
actions * * * so as to protect human health and the environment''? If a 
source is specifically addressed in an emergency plan under EPCRA 
section 303, should that satisfy the response program element of the 
CAA? Should EPA require that the LEPC meet the membership, planning 
process, and public availability requirements of EPCRA sections 301, 
303 and 324 for a source to rely on an EPCRA local emergency plan?
    The streamlined approaches under Tier 2 fulfill the statutory 
provisions of section 112(r)(7)(B)(ii), while exercising the discretion 
granted under section 112(r)(7)(B)(i) to recognize ongoing prevention 
activities at classes of sources. Requirements for hazard assessments 
and response programs for sources would be similar to those in the 
original proposal as modified by other portions of today's notice. The 
five-year accident history would be based on the proposed rule. The 
prevention program would place less burden on sources that are subject 
to other governmental or industrial programs or that seem to present a 
lesser risk of a significant accidental release than other sources, 
based on public data and inferences drawn from such data. The RMP will 
fulfill the right-to-know aspects of section 112(r) by requiring a 
source to summarize data about its hazard assessment, prevention, and 
response program activities and make this information available to the 
public. EPA seeks comments on the proposed Tier 2 requirements. 
Specifically, EPA seeks comment on whether additional, specific 
prevention activities should be required to address safety precautions, 
maintenance, monitoring, and training (e.g., any particular 
requirements of the proposed rule targeted at these activities) and on 
whether there are additional governmental regulations and industry or 
third-party standards which fulfill the mandate of a prevention program 
under section 112(r).
    Tier 3--Full Rule. Tier 3 sources would be required to comply with 
the detailed prevention program of the rule, as finalized. The RMP 
would address hazard assessment, the prevention program, and the 
emergency response program. EPA intends that the final prevention 
program will be the OSHA PSM standard plus the requirement for a 
management system.
Discussion of Assignment to Tiers
    Sources would be eligible for Tier 1 based on a demonstration and 
certification of no impact on public or environmental receptors. All 
other sources would be allocated to either Tier 2 or Tier 3. Tier 2 is 
a default tier for those sources not specifically assigned to Tier 3.
    EPA's preferred approach would assign sources in specific four-
digit SIC codes to Tier 3. To identify such SIC codes, EPA analyzed its 
ARIP database for the period from 1987 through 1993. EPA believes that 
SIC codes in which more than 10 sources with 100 or more full-time 
employees reported regulated substance releases (not limited to 
accidental releases under part 68) and more than 20 percent of such 
sources had releases that had impacts onsite or offsite would be 
candidate SIC codes for Tier 3 during the initial implementation of 
part 68. EPA also considered the quantities released and the number of 
sources in the SIC code as reported in Census data. EPA used some 
judgment when looking at SIC codes in Census data because the Census 
reports only the one SIC code per source that represents the greatest 
financial activity even when many SIC codes apply. Thus, the Census may 
be likely to understate the total number of sources in a 4-digit SIC 
code, especially in the chemical industry, because sources in certain 
industries typically involve many different operations. EPA believes 
that chemical releases that are not accidental releases and releases in 
which workers were injured should be included in an analysis of 
accidental releases for the purposes of section 112(r) because all such 
releases may indicate a failure of company safety practices. EPA 
requests comments on this conclusion and data indicating that this 
assumption is valid (or not) for the groups discussed below.
    Based on the analysis described above, EPA identified eight four-
digit SIC codes that have a release history that supports requiring 
sources in such codes to implement a Tier 3 program. 
[[Page 13530]] These SIC codes are: 2611 (pulp mills), 2812 (chlor-
alkali), 2819 (industrial inorganics nec), 2821 (plastics and resins), 
2869 (industrial organics nec), 2873 (nitrogen fertilizer), 2879 
(agricultural chemicals nec), and 2911 (refineries). In all of these 
industries, the number of facilities reporting releases was more than 
20 percent of the number in each SIC code using Census data.
    Four industrial categories that EPA does not believe would be 
appropriate under the accident history criteria for Tier 3 are 2865 
(cyclic crudes), 3312 (steel mills), 2816 (industrial inorganic 
pigments), and 4911 (electric utilities). Less than 20 percent of the 
releases reported from cyclic crude sources and steel mills had 
impacts. In the cyclic crude industrial category, while 16 sources 
reported releases (approximately 25 percent of the SIC code), only 
three sources had releases with impacts. The largest release at 11 of 
the cyclic crude sources exceeded 1,000 pounds, and three of these 
sources had largest releases exceeding 10,000 pounds. Given the size of 
releases from cyclic crude sources, EPA requests comments on whether 
they should be required to meet Tier 3 requirements. In the steel mill 
sector, while 18 sources reported releases (approximately 14 percent of 
the industry), only 3 had impacts. However, six of these sources 
reported releases exceeding 10,000 pounds. The industrial inorganic 
pigment industry was just below the candidate SIC code criteria for 
facilities reporting releases and percentage of impact releases. While 
nearly half the industry reported releases, only two facilities had 
releases that were more than 1000 pounds, and none had releases that 
exceeded 10,000 pounds. Although there were a high number of releases 
reported by electric utilities, only about 2 percent of the industry 
accounted for the reported releases.
    EPA would initially limit Tier 3 to sources in the eight categories 
with 100 or more full-time employees because these sources have the 
most significant accident histories. However, certain smaller sources 
also have accident histories that would support eventual Tier 3 
treatment. EPA conducted an analysis of sources with 20-99 full-time 
employees and identified five categories that, based on accident 
history, would become Tier 3 sources 8 years after promulgation: 2812, 
2819, 2869, 2873, and 2911. The flammable substance accident history 
for refineries with 20-99 full-time employees supports eventually 
requiring these sources to comply with Tier 3. The four other 
industries all had a significant percentage of impact releases relative 
to the number of facilities reporting toxic releases. Three groups 
(industrial inorganics, industrial organics, and nitrogen fertilizer) 
had more than ten facilities reporting toxic releases, while two groups 
(chlor-alkali and nitrogen fertilizer) had more than 30 percent of the 
SIC code reporting releases. EPA may review this determination based on 
data gathered during the eight-year period. The full program would be 
phased in to allow these sources to benefit from the expertise gained 
by governmental agencies and larger industry during initial 
implementation of the full program; the phase in would also ease the 
cost burden on these smaller companies by giving them more time to 
implement the program. EPA would calculate full-time employees based on 
the definition in 40 CFR 372.3. Full-time employees would include 
contractors on site.
    EPA also requests comment on a second approach to tiering. EPA 
would include in Tier 3 all sources with more than 100 FTEs. Larger 
sources not eligible for Tier 1 would be subject to Tier 3 because of 
the size of their operations and the likelihood that they have larger 
quantities of regulated substances on site, as well as because of their 
technical capabilities to undertake the program relative to most small 
manufacturers and non-manufacturers. EPA does not favor this approach, 
however, because many of these large sources do not have a significant 
record of accidental releases.
    EPA requests comment on the two alternatives or on other criteria 
for placing sources in tiers under the risk management program. EPA may 
adopt, in whole or in part, any or all of the approaches to eligibility 
for Tier 2 in the final rule. The first approach focuses on industry 
segments that have a history of releases from a number of sources. This 
approach would remove from Tier 3 individual sources that may have had 
a history of accidents, but are part of sectors that have not had 
numerous accidents. It would also remove from Tier 3 entire sectors 
based on an accident history, which in the future may change. Should a 
change occur, EPA would revise the rule to include these sectors in 
Tier 3. Should such sources and segments be exempt from adopting 
process safety management principles until problems in the industry 
become pervasive? In addition to placing sources in Tier 3 based on 
industry segment, should a source be placed in Tier 3 if it has had one 
or more significant accidental releases in a five-year period? 
Conversely, should a source in an industry segment in Tier 3 be allowed 
to move to Tier 2 if it has not had a significant accidental release in 
the past five years? The Agency requests comment on the oversight and 
compliance burdens that would be placed on implementing agencies and 
sources by a site-specific tiering approach. Should proximity to 
significant numbers of people (either residential population, workers, 
or other people) be used (alone, or in conjunction with other criteria 
discussed above) to qualify a source for potential Tier 3 treatment? 
Should EPA structure the audit provisions of proposed Sec. 68.60 to 
allow for implementing agencies to require Tier 2 sources to undertake 
more specific prevention activities if an audit uncovers inadequate 
risk management programs? Are there additional industries (two-digit or 
four-digit SIC codes) that should not be eligible for Tier 2 under 
either approach? Under approach 2, are there sources with more than 100 
FTEs that should be eligible for Tier 2 because of industry-specific 
standards or the simplicity and nature of their processes? EPA believes 
the preferred approach is the most appropriate level for national 
implementation. EPA notes that state implementing agencies have the 
authority under the CAA to impose more stringent requirements.
    Qualified Third Party. EPA is seeking comments on whether 
provisions should be made to employ a ``qualified third party,'' under 
implementing agency oversight, to assist certain regulated sources in 
achieving and maintaining compliance with the RMP rule. In raising this 
issue, EPA is cognizant of the recent National Performance Review 
recommendations to OSHA on the use of third parties, and growing 
reliance on ``qualified third parties'' to facilitate compliance with 
other regulations, to audit the performance of regulated third parties, 
and verify compliance status on a periodic basis. Such arrangements, 
thereby, assist both the regulated community and the regulating 
agencies in ensuring compliance with regulations. EPA requests comments 
whether to use qualified third parties for this program as well as 
specific suggestions on how appropriately to include qualified third 
parties in the present rulemaking.
    One way to incorporate ``qualified third party'' review into the 
RMP tiering framework might be to assign certain sources that 
participate in the Voluntary Protection Program (VPP) to Tier 2. The 
VPP is a voluntary program sponsored by OSHA and industry that 
recognizes strong safety practices, including process safety 
management. Within [[Page 13531]] VPP, a ``Star'' rating indicates the 
highest level of worker safety practices in all aspects measured by the 
program, while a ``Merit'' rating indicates sound practices with 
specific qualifications. One commenter suggested that EPA should 
integrate Star and Merit status into the risk management program. It is 
not clear whether Star and Merit ratings are relevant to protecting the 
public and the environment from accidental releases because the VPP 
only directly measures worker safety impacts. EPA invites comment on 
whether a source that obtains Star rating or a Merit rating without 
qualifications related to process safety management should be eligible 
for Tier 2 even when it is part of an industry sector that otherwise is 
subject to Tier 3. Should implementing agencies and the public rely on 
Star or Merit status as a good indicator that the source poses a lesser 
risk of a significant accidental release than other sources in the same 
industry sector?
    Comments on other types of ``qualified third party'' options to 
facilitate responsible self-enforcement of the RMP rule will also be 
useful, particularly as they relate to subsectors of regulated sources 
which have demonstrated the capacity for establishing and enforcing 
voluntary safety procedures, or to subsectors in which the regulated 
sources or their associations have indicated an interest in developing 
such capacity. Comments from state and local officials, emergency 
responders, and the public regarding the use of third party 
arrangements are sought.

B. Hazard Assessment

    EPA received substantial comments on hazard assessment topics 
during the four public hearings, the comment period, and a one-day 
forum on worst-case scenarios. Commenters made the following main 
points:
    <bullet> Commenters questioned the intended use of the worst case, 
arguing that EPA failed to provide a clear description of its purpose.
    <bullet> Commenters questioned whether EPA would require sources to 
conduct separate analyses for each hazard for substances that are both 
flammable and toxic. Commenters suggested that the number of 
assessments could be limited by analyzing only the substance that has 
the potential for the most serious offsite impacts.
    <bullet> Commenters stated that, although the proposed definition 
of worst case as instantaneous loss of the total contents of a process 
may be possible for sources that have simple systems, instantaneous 
loss of the total process contents is not technically feasible for 
complex systems and, therefore, would provide no useful information to 
the public or the source.
    <bullet> Commenters stated that failure to account for at least 
well-designed passive mitigation systems reduces the incentive for 
installation of such systems.
    <bullet> Commenters argued that EPA should specify in the final 
rule certain methodological assumptions that sources would use to 
analyze release scenarios.
    <bullet> Several commenters argued that the worst-case 
meteorological conditions defined in the proposed rule (F stability and 
1.5 meters/second wind speed) were too conservative.
    <bullet> Commenters expressed concern that the results of the 
offsite consequence analyses would be difficult to compare between 
sources without specification of the assumptions.
    <bullet> Commenters asked for clarification of what EPA expects 
sources to do to define offsite populations and environmental impacts.
    Clarification of the Purpose of Worst-Case Analyses. Sources and 
the public need to assess and understand the extent of the impact 
associated with an uncontrolled major accident. EPA does not intend 
that worst-case analyses should be used as the sole or primary basis 
for emergency planning or accident prevention actions. The results of 
the worst-case analyses, in combination with other more likely release 
scenario assessments, as contained in the RMP, should be used to build 
a dialogue and a working partnership between the source and the public, 
response agencies, workers, and various levels of government for 
chemical accident prevention, response, and preparedness.
Worst-Case Release Definition
    EPA is considering alternatives to the definition of worst-case 
release in proposed Sec. 68.3. EPA is proposing to redefine a worst-
case release as the release of the largest quantity of a regulated 
substance resulting from a vessel or process piping failure. The worst-
case analysis would involve a 10-minute release under worst-case 
meteorological conditions (F stability and 1.5 meters per second wind 
speed) and would consider passive mitigation measures.
    The 10-minute release time is used in the Technical Guidance for 
Hazards Analysis. EPA believes that this release duration is reasonable 
and accounts for comments arguing that an ``instantaneous'' release is 
not realistic. As described in the Technical Guidance, a 10-minute 
release is intended to represent modeling of a continuous release 
rather than a ``puff'' release. Therefore, for modeling purposes, the 
release rate (per minute) to the air for gases would be the quantity 
released divided by 10. Liquids would be assumed to form a pool in 10 
minutes, with the release rate to the air determined by volatilization 
rate. This approach to liquid releases differs from that of the 
Technical Guidance, which specifies an instantaneous release. 
Alternatively, the Technical Guidance could be used, but no time frame 
would be specified; the liquid quantity would be assumed to form a pool 
for calculation of the volatilization rate. EPA requests comments on 
the appropriate release duration and justification for its basis.
    EPA is considering the revision of proposed Sec. 68.15(c) to 
incorporate the effects of passive mitigation systems, but not active 
mitigation systems, into the worst-case release scenario, if such 
systems are capable of withstanding destructive events (e.g., fires, 
explosions, floods, hurricanes, and earthquakes). Passive systems would 
include dikes, catch basins, and drains for liquids, and enclosures for 
both liquids and gases. EPA requests comment on its definition of 
``passive mitigation system'' and requests examples of other such 
devices. Scenarios involving passive mitigation systems that have 
connections to the environment (such as a rainwater drain valve) would 
have to assume failure of that connection. The threat of natural 
disasters would be specific to certain geographic regions, and sources 
could certify that their passive mitigation meets or exceeds local 
natural disaster design standards as capable of withstanding 
destructive natural events. Underground storage tanks might also be 
considered a passive mitigation system for liquids to the degree that 
overlying soils would reduce the volatilization rate to the air in the 
event of a worst-case accidental release. However, overlying soil is 
not likely to contain high pressure gas releases. EPA requests comment 
on this issue.
    Incorporation of passive mitigation measures into the worst-case 
release analysis could be left to implementing agency discretion. Such 
discretion would result in an increased administrative burden on that 
agency and cross-jurisdictional differences in the methodology used for 
worst-case analyses. EPA is considering allowing the incorporation of 
active mitigation measures in the hazard assessments for more likely 
accidental release scenarios.
    EPA seeks comment on several possible ways to define the relevant 
quantity of regulated substance in a [[Page 13532]] vessel or process 
piping for a worst-case release scenario. One alternative would be to 
define the quantity as the maximum possible vessel inventory, without 
regard for operational practices and administrative controls. This 
quantity would represent a physical maximum, but would exaggerate the 
potential worst case for sources that never operate at the physical 
maximum inventory of the vessel. The process piping failure scenario 
would assume that the inventory contained in vessels or other process 
equipment on either side of the piping failure location would be 
released through the pipe break at full pipe flow.
    A second, preferred alternative would be to require that the 
determination of the worst-case release scenario be based on the 
maximum possible vessel inventory unless there are internal 
administrative controls (written procedural restrictions) that restrict 
inventories to less than the maximum. The operational limit would be 
described in the worst-case release analysis in the RMP. Exceedance of 
any administrative control on vessel inventory would be a violation of 
Sec. 68.15 (failure to perform a worst-case analysis) unless the 
administrative control was revised and the worst-case analysis updated 
to reflect any changes in the analysis. An exceedance would also result 
in a violation of Sec. 68.50 unless the RMP was updated within the 
timeframes set out in that section. Acknowledgement of such 
administrative controls would reflect the efforts of sources that have 
intentionally reduced inventories of regulated substances for process 
safety reasons. EPA seeks comment on whether administrative controls 
are sufficiently reliable or whether a mechanical control should be 
required in addition to the administrative control.
    A third alternative for defining the relevant quantity would be to 
base the quantity on historic or projected maximum operating 
inventories without regard for administrative controls. The maximum 
operating inventory would be specified in the RMP. Exceedance of the 
maximum operating inventory also would be a violation of Secs. 68.15 
and 68.50 as described above. EPA does not favor this third alternative 
because it does not believe that historic or projected operating 
practices represent the maximum possible amount of a chemical that 
could be stored in a vessel unless there is a specific management 
operational restriction at the source.
    EPA is also considering providing the implementing agency with the 
discretion to determine the appropriate quantity for the worst-case 
release scenario on a site-specific or industry-specific basis. 
Implementing agency discretion would result in an increased 
administrative burden on the implementing agency and cross-
jurisdictional differences in the methodology used for the worst case 
analyses. EPA also requests comment on whether the scenario should 
consider the additional amount of substance that could potentially 
drain or flow from process equipment interconnected with the failed 
vessel or pipeline.
Applicability of the Hazard Assessment Requirements
    A number of commenters stated that multiple analyses of similar 
substances would not improve the information provided to the public. 
EPA is proposing the following requirements for substances and 
processes affected by the rule:
    <bullet> A single worst-case release scenario would be analyzed for 
all flammables on site; only one flammable substance would be analyzed 
for other more likely scenarios as well;
    <bullet> A single worst-case release scenario would be analyzed for 
all explosives on site; only one explosive substance would be analyzed 
for other more likely scenarios as well; and
    <bullet> A single worst-case release scenario would be analyzed for 
all toxic substances at the source; other more likely release scenarios 
would be analyzed for each toxic substance covered by the rule.

The appropriate hazard category would be the hazard for which the 
regulated substance was listed. This proposal would reduce to a maximum 
of three the number of worst-case analyses required of each source in 
the RMP. Additional screening analyses to determine the appropriate 
worst-case scenario may be necessary, but only one worst-case release 
scenario would be reported for each hazard category. Sources would, 
within the constraints of the worst-case release definition, describe 
the greatest offsite impacts presented by potential catastrophic 
accidents involving regulated toxic, flammable, and explosive 
substances. The potential worst-case impacts of substances and 
processes not described in the RMP would be less than those described. 
As an alternative, EPA could require analysis of only one worst-case 
scenario by each stationary source. This approach would require the 
analysis of the one scenario that presents the worst offsite 
consequences. A significant drawback to a one-scenario analysis is that 
the different types of worst-case hazards (for toxics, flammables and 
explosives) would not all be described.
    EPA would require more likely release scenarios per hazard category 
for flammables and explosives, but per substance for listed toxics. 
Toxic substances each have different exposure concentrations of 
concern, but flammables and explosives can be treated uniformly within 
hazard categories. EPA seeks comment on whether a single toxic 
substance could be considered representative of all toxic substances at 
a source or in a process.
Hazard Assessment Methodology and Calculations
    EPA intends to develop ``lookup'' tables for all listed substances 
to assist sources in determining the impact distances for their release 
scenarios. The tables will specify potential impact distances for 
releases of substances under conditions that are relevant to 
dispersion. Sources will only have to define their release scenarios 
and develop the information, such as release rate, needed to use the 
tables. The tables will provide impact distances that sources can then 
map. For explosives, the American Table of Distances will serve as the 
lookup table. For toxics and flammables, the lookup tables will be 
developed and made available for public review and comment prior to the 
publication of the final rule. The tables, and accompanying guidance, 
will represent a revision of the Technical Guidance for Hazards 
Analysis. The tables will provide distances under varying conditions, 
including worst-case. In developing the tables, EPA will select one 
level of concern value for each toxic substance. EPA seeks further 
comment on whether it should use a single endpoint to the extent 
possible to develop the tables (e.g., the 1/10 IDLH unless one does not 
exist for a substance), or a hierarchy of endpoints (e.g., ERPG-3; if 
one does not exist, then the 1/10 IDLH; and finally toxicity data if no 
other value is available). For flammables, should EPA use overpressure 
or both overpressure and radiant heat effects as endpoints? EPA 
requests comment on the lookup table approach. The tables and the 
methodology used to develop them will be made available for public 
review and comment.
    The purpose of providing lookup tables is three-fold. First, if 
each source conducts its own dispersion modeling, the results will be 
extremely difficult to compare among sources; different models and 
different assumptions can produce widely varying results. Second, 
because of the differences in models and the impact of changing 
assumptions [[Page 13533]] (e.g., a different wind speed), the results 
of dispersion modeling are best used to provide a general idea of 
impact; models do not have a level of predictive accuracy that can 
reliably differentiate between, for example, a release with a four-mile 
zone and one with a five-mile zone. Third, dispersion modeling is 
expensive, especially for sources that are outside of the chemical 
industry. Given that the results of sophisticated modeling may not be 
more accurate than results derived from simple tables, EPA decided that 
a simpler approach that would provide comparable data among sources was 
preferable. Sources that wish to conduct more sophisticated modeling 
may, but would not be required to do so, under the rule. For sources 
that want to do modeling, a number of models available in the public 
domain exist; EPA has published guidance on the use of these models. An 
alternative approach would be to limit use of the lookup tables to Tier 
2 sources and require Tier 3 sources to conduct air dispersion 
modeling. EPA requests comments on this alternative.
Offsite Consequence Analysis
    EPA agrees with commenters that further direction is necessary with 
respect to assessments of potentially affected populations and the 
environment. Section 68.15(e)(3) of the proposed rule requires an 
analysis of populations within distances of potential exposure. The 
preamble to the proposed rule specified that sensitive populations 
potentially affected by a release should be identified. Although much 
of this information is readily available, identification of some 
sensitive populations, such as day care centers and nursing homes, 
could require considerable effort, especially where the vulnerable zone 
crosses several jurisdictions. In addition, sources in the same area 
would be required to duplicate each other's efforts.
    To limit the effort required to define offsite populations, EPA is 
proposing that offsite populations be defined using available Census 
data. Information on the number of children and people over 65 may be 
considered a proxy for sensitive populations. With the assistance of 
the Bureau of the Census and NOAA, EPA is developing a geographic 
information system, LandView, that will facilitate analysis of resident 
populations. In addition, EPA may require sources to identify public 
arenas or institutions that are potentially affected. These arenas or 
institutions would be limited to those identified on available street 
maps or Census TIGER files.
    EPA has proposed that sources analyze both potential human health 
impacts and environmental impacts in hazard assessments and consider 
such impacts in designing prevention and response programs. ``The 
environment'' is specifically mentioned twice in section 112(r)(7)(B) 
as a receptor to be protected by emergency response measures. First, 
section 112(r)(7)(B)(i) states that regulations under subparagraph B 
``shall include procedures and measures for emergency response after an 
accidental release of a regulated substance in order to protect human 
health and the environment.'' Second, under the response program 
provisions of the risk management plan, the plan must address 
``specific actions to be taken in response to an accidental release of 
a regulated substance so as to protect human health and the 
environment.'' Also, a third reference to ``the environment'' is 
ambiguous and may refer not only to response measures, but also to 
other aspects of risk management plans (CAA 112(r)(7)(B)(ii)).
    The structure of the CAA's accidental release provisions integrates 
the assessment of potential hazards and the prevention of accidents 
with response planning to prevent potentially hazardous conditions from 
resulting in accidents and ensure that the response measures are 
adequate in the event of an accidental release. EPA supports this 
integrated approach to planning with respect to accidents. EPA believes 
it is reasonable for sources to address not only human health impacts, 
but also environmental impacts in the hazard assessment. In light of 
the mandatory CAA language requiring that the environment be addressed 
as a receptor for purposes of emergency response, EPA invites comments 
on this approach.
    EPA recognizes that one of the concerns of commenters about 
addressing the environment in a hazard assessment was that the proposed 
rule discussion of environmental impacts was not specific enough. 
Consequently, EPA would revise Sec. 68.15(e)(4) of the proposed rule to 
require identification of sensitive environments (rather than analysis 
of potential environmental damage) within the radius determined by the 
worst-case and more likely accidental release scenario analyses. In 
addition, EPA would revise Sec. 68.15(h)(3)(v) to require sources to 
list the sensitive environments within the accidental release scenario 
radii in the RMP. To identify receptors, the source could call the 
appropriate state or Federal agencies to determine if any sensitive 
environments were within the impact distances.
    EPA requests comments on the use of all or part of Appendix I of 
the NOAA Guidance for Facility and Vessel Response Plans: Fish and 
Wildlife and Sensitive Environments (59 FR 14714, March 29, 1994) for 
determination of sensitive environments. Appendix I lists the following 
sensitive environments and identifies responsible Federal agencies: 
wetlands (as defined in 40 CFR part 230.3); critical habitat for 
designated or proposed endangered/threatened species; habitat used by 
designated or proposed endangered/threatened species or marine mammals; 
national marine sanctuaries; national parks; Federal wilderness areas; 
national estuary program areas; near coastal waters program areas; 
clean lakes program critical areas; national monuments; national 
recreational areas; national preserves; national wildlife refuges; 
coastal barrier resource system; national river reach designated as 
recreational; Federal or state designated wild and scenic rivers; 
national conservation areas; hatcheries; waterfowl management areas; 
cultural resources; areas of critical environmental concern; and the 
national forest system. Accidental releases of volatile substances may 
not represent a major threat to certain of the sensitive environments 
listed above. For example, wetlands, national marine sanctuaries, 
national monuments, national estuary program areas, near coastal waters 
program areas, and clean lakes program critical areas may not be 
threatened by accidental releases to the air. They could, however, be 
threatened by volatile liquid releases. In addition, deposition of 
listed substances from accidental releases of toxics to the air could 
also represent a threat to these sensitive environments. EPA requests 
comment on whether these, and other, specific sensitive environments 
should be removed from consideration for identification of sensitive 
environments.

C. Accident Information Reporting

    The proposed rule addresses emergency notification (Sec. 68.45(b)) 
and self-investigation of accidental releases (Sec. 68.40). However, 
other than the five-year accident history in the RMP and emergency 
reporting under the Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA) and EPCRA, sources are not required to 
report any accident data or results of accident investigations. Certain 
accidental release information that otherwise is not available could be 
useful to states and EPA to learn which types of sources are having 
problems, understand more about accident causes, track trends in 
chemical accidents and [[Page 13534]] prevention activities, monitor 
the progress of the risk management program, focus future prevention 
activities, and avoid overregulation of industry sectors or substances.
    EPA is evaluating how such accidental release information needs 
might be met so as to impose a minimal burden on sources and avoid 
redundancy. One approach would be to require submission of information 
on any accidental release of a regulated substance if the release 
results in death, injury, evacuation, property damage, or offsite 
environmental impacts. If the source experiencing such an accident is 
subject to the OSHA PSM requirements or Tier 3 requirements described 
above, then the owner or operator could submit to EPA and the state a 
copy of the accident investigation report generated under 29 CFR 
1910.119(m)(4) or 40 CFR 68.40. For sources not subject to these 
requirements, or alternatively all sources, owners or operators could 
submit an accidental release information survey form to collect a 
brief, but accurate description of the event and its consequences, the 
substance and amount released, root causes, initiating events and 
contributing factors causing the release, and changes or potential 
changes at the source to prevent a recurrence. EPA requests specific 
information on the types of questions that should be included. EPA also 
seeks comments on which accidents should be reported (e.g., should any 
investigated deviation be reported?), reporting triggers (e.g., 
threshold quantities or reportable quantities released), whether 
reporting formats can be used to streamline or eliminate duplicative 
reporting, and if the submission of these data raises liability 
concerns.
    Another approach EPA is considering would be to have EPA request 
information developed under existing regulations, such as OSHA PSM 
accident investigation requirements or EPCRA section 304 follow-up 
notices. Under this approach, sources would not need to develop any new 
information for EPA, but could provide EPA with documents prepared 
under other regulations. EPA could supplement such information as 
necessary by undertaking surveys to acquire specific data on accidents 
based on these existing documents. EPA requests comment on this 
approach. Specifically, EPA seeks information on what the appropriate 
mechanism for obtaining data on accidents would be.
    The approach outlined above would not affect a source's current 
obligations to report releases of certain regulated substances under 
CERCLA section 103 or EPCRA section 304. For purposes of CERCLA section 
101(10)(H), part 68 is not a control regulation, and the RMP is not a 
permit allowing the accidental release of any specific quantity of a 
regulated substance.

D. Public Participation

    A number of commenters have asked that EPA require sources to 
involve the public in development and review of the risk management 
program. Several commenters have identified key points at which public 
involvement is appropriate, including at the outset of the planning 
process, upon completion of the process hazard analysis (PHA), prior to 
submittal of the RMP, prior to RMP revisions, after an accident, after 
an accident investigation, and during response drills involving action 
outside the plant.
    EPA believes that the public is a key stakeholder in preventing 
chemical accidents and that sources have the responsibility to make the 
public aware of the hazards associated with potential accidental 
releases. EPA is committed to encouraging public involvement. EPA's 
favored approach would encourage sources to use existing groups, 
primarily the local emergency planning committees (LEPCs), as a conduit 
for communications between the source and the public. Many sources 
covered under part 68 are already obligated to participate on, and 
perform emergency preparedness and planning activities with their LEPCs 
under EPCRA. In areas where there is no functioning LEPC or its 
equivalent, sources, local first responders, citizens, and others need 
to develop and support the LEPC or its equivalent. EPA expects sources 
to work with the LEPC during the development of the RMP as well as 
after its submission. Similarly, EPA expects the public to contact the 
LEPC for information from the source whenever it has questions or 
concerns. EPA notes that the RMP is not a one-time document; the RMP 
reflects the risk management program at the source and will change as 
activities at the source change. Sources, therefore, should be involved 
in a continuing dialogue with the LEPC about the prevention and 
emergency response programs as they evolve to address changes at the 
source. EPA prefers this approach because, just as one size of risk 
management program is not appropriate for all sources, a rigid set of 
public participation requirements would not be reasonable for all 
sources.
    A second approach would require a source to take steps to involve 
the public in discussions concerning the content of its RMP and 
describe those steps in the RMP. EPA would not specify the steps, but 
would provide guidance on ways a demonstration could be made. The 
source could describe its community outreach efforts during the 
planning process in on-site records that would be available to the 
public or could summarize these activities in the RMP. Similarly, a 
source could maintain a record on site of community outreach actions 
taken after submittal of the RMP. EPA would provide guidance on ways 
such a demonstration could be made. For example, sources could choose 
to notify the public through a general circulation newspaper that the 
RMP was available and make copies available; the source could publish 
the RMP in a newspaper or on electronic bulletin boards; or the source 
could hold a public meeting on the RMP or use local TV public service 
channels to target a local audience or to broadcast logistics for 
upcoming meetings. EPA requests comment on whether public participation 
activities should be limited to Tier 3 sources. Another suggested 
approach for public participation was to allow the public, by petition, 
to trigger audits of completed RMPs by the implementing agency. EPA 
does not favor this approach because it could generate an excessive 
burden for implementing agencies.

E. Inherently Safer Approaches

    The manufacture, processing, and use of chemicals is inherently 
risky. EPA believes that fulfillment of the risk management program 
requirements entails ongoing attention to hazard identification, hazard 
analysis, risk management (assessment, reduction and control, or 
elimination), and public outreach. This process should lead to 
continuous improvement and the evolution of safer sources through a 
wide range of actions involving reduction of the inherent risk and 
control or mitigation of the hazards. During the proposed rule 
hearings, several presenters argued that, like pollution prevention, 
accident prevention could be more successful if the program were to 
focus on the elimination of hazards to make processes inherently safer 
rather than on an attempt to control or mitigate existing hazards. It 
was suggested that sources be required to examine different approaches 
or technologies through a process of technology options analysis (TOA), 
or a ``state-of-the-art'' search and analysis of safety alternatives as 
required by New Jersey in its Toxic Catastrophe Prevention Act 
regulations, to find, and adopt, inherently safer chemical pathways and 
processing techniques. In addition to TOA and state-of-the-art 
searches, the Center for [[Page 13535]] Chemical Process Safety has 
published a guideline containing a checklist for evaluating the 
inherent safety of processes (Guidelines for Engineering Design for 
Process Safety, CCPS, 1993). Commenters suggested that EPA formalize 
the search for alternative technologies by making TOA or similar 
reviews a required part of PHAs and by requiring sources to document 
and share the results in the RMP.
    Such costly analyses are probably best conducted during the design 
of new processes, when, according to industry commenters, they often 
are already part of the design process to identify cost-effective 
approaches to improving safety. In addition, if alternative 
technologies are discovered, whether for new or existing processes, 
further analysis is necessary to determine whether risks are 
inadvertently being transferred by the new technology from one location 
to another. Adoption of new technologies without such analyses may 
inadvertently impose greater individual or societal risk. EPA 
recognizes, however, that there are many opportunities to make 
processes inherently safer without large-scale adoption of new 
technologies. These opportunities may become apparent through the PHA. 
Some sources have already performed such analyses and have successfully 
taken action to make their processes inherently safer. Consequently, 
EPA does not favor inclusion of a specific requirement in the initial 
program for an analysis of the inherent safety of processes or for 
adoption of new technologies. EPA, however, strongly encourages 
industry to consider implementing inherently safer approaches when 
appropriate and include a discussion of any such studies and actions it 
takes in RMP updates. EPA is considering further study of this issue 
with all stakeholders and requests comment on this issue.

F. Implementation and Integration of Section 112(r) With State Programs

    Section 112(r) places responsibility on sources to prevent 
accidents and share information about their accident prevention 
efforts. However, EPA believes, and Congress intended, that successful 
chemical emergency prevention, preparedness, and response efforts 
require active state and local involvement. The legislative history and 
CAA section 112(r) requirements support and build on the existing state 
and local infrastructure by requiring that RMPs be submitted to states 
and local planning entities. [See, e.g., S. Rep. No. 228, 101st 
Congress, 1st session, at 193 and 225.] EPA encourages and supports any 
state or local efforts to develop comprehensive plans for coordination 
and integration of section 112(r) with state and local programs 
mandated under the CAA, EPCRA, and other environmental statutes and 
planning and safety programs under OSHA and other agencies.
    The ways in which state and local organizations are, or could 
become, involved in the implementation and integration of section 
112(r) are described in more detail below. About 15 percent of the 
sources subject to the section 112(r) requirements will already have or 
will need to get operating permits from state air permitting 
authorities under part 70 by the time the RMPs are due. In the final 
part 68 rule, EPA intends to clarify the responsibilities of sources 
subject to part 70 permitting requirements and section 112(r), the air 
permitting authority with respect to section 112(r), and state or local 
agencies who elect to implement section 112(r) for all other sources. 
EPA worked closely with and directly involved several state and local 
air program officials and state emergency response and prevention 
representatives in the development of the preamble and regulatory 
language to prepare approaches detailed in the following sections. 
These approaches best reflect the concerns of the states about air 
permit program implementation and the needs for comprehensive 
participation in chemical accident prevention, preparedness, and 
response at the state and local level.
Applicable Requirements and Permitting Authority Responsibilities for 
Section 112(r)
    Under CAA section 504(a) and EPA's implementing regulations 
(Sec. 70.6(a)(1)), part 70 permits must contain conditions sufficient 
to assure compliance with all CAA applicable requirements. Part 70 
defines ``applicable requirement'' to include any standard or 
requirement of section 112, and includes any requirement concerning 
accident prevention under section 112(r)(7).
    In the preamble to part 70 (57 FR 32275, July 21, 1992), EPA stated 
its belief that section 112(r) was not intended to be implemented or 
enforced primarily through part 70 permits. EPA cited the provisions of 
section 112(r)(7)(F), which provides that, notwithstanding title V, no 
source must obtain a permit solely because it is subject to the 
requirements of section 112(r). The part 70 preamble stated that it was 
sufficient for a part 70 source subject to 112(r) to ``indicate in its 
permit [application] that it has complied with any requirement to 
register an RMP, or alternatively to indicate in its compliance plan 
and schedule of compliance its intent to comply with such 
requirement.'' Thus the preamble set forth the view that all that was 
required of a part 70 source with respect to 112(r) was a statement in 
its permit application that it has registered the RMP or has submitted 
a schedule to do so. By stating explicitly that section 112(r) 
requirements were not to be implemented or enforced primarily through 
the permit, the preamble defined a narrow role for the permit: one of 
ensuring submittal of the RMP, but not ensuring the quality of the RMP 
or the implementation or enforcement of section 112(r) regulations in 
any particular way. The preamble also did not say what conditions must 
be in the permit to assure compliance with applicable 112(r) 
requirements (even though the preamble went on to provide that the RMP 
itself need not be included in a title V permit). Finally, the preamble 
was silent on the issue of responsibilities the permitting authority 
might have in assisting the implementing agency in assuring compliance 
with section 112(r) requirements.
    This view was necessarily preliminary, since it was developed 
before any part 68 rulemaking that could clarify how the permit must 
assure compliance with ``applicable requirements'' relative to section 
112(r). The part 70 preamble does not preclude part 68 rulemaking from 
clarifying and even expanding the responsibilities of permitting 
authorities (e.g., a completeness review of the RMP) with respect to 
implementation of section 112(r) requirements through part 70 permits.
    Today's proposal would go beyond the part 70 preamble, principally 
by setting forth the part 70 measures necessary to ``assure compliance 
with'' applicable section 112(r) requirements. In addition, today's 
proposal would establish limits on the responsibilities of the air 
permitting authority for assuring compliance with section 112(r) within 
the part 70 program as opposed to the greater responsibilities 
envisioned for an implementing agency.
``Applicable Requirements'' for Part 70 Sources
    One principal objective of the regulations proposed today is to 
clarify the minimum content of part 70 permits with respect to section 
112(r) ``applicable requirements.'' EPA also intends to revise the 
definition in part 70 of ``applicable requirement'' relative to section 
112(r). This definition will include the requirements of part 68, 
[[Page 13536]] when promulgated, to which part 70 sources are subject. 
EPA expects to define this term to mean Secs. 68.10 to 68.58 or 
specific provisions within those sections. The part 70 rulemaking would 
be done as part of the phase II rulemaking addressing remaining issues 
raised by the part 70 litigants. This rulemaking is expected to be 
proposed this fall and finalized in early 1996.
    EPA does not believe that each permit must restate every 
requirement in section 112(r) or part 68 as a permit condition to 
comply with the part 70 applicable requirement definition. The permit 
could instead meet this requirement by containing a set of standard 
conditions that require compliance by the source with applicable 
section 112(r) requirements.
    These permit conditions are proposed in Sec. 68.58 and would 
require that each permit contain, at a minimum, conditions that require 
source action consistent with the following:

(1) Registration with the implementing agency (EPA or the appropriate 
state or local agencies) and submittal of an RMP, or a revised plan, to 
the part 70 permitting authority or other state or local agency 
designated by the state for this purpose, by the deadline under this 
part and certification upon submission that the plan is complete and 
accurate;
(2) Submittal of any additional information required for completeness;
(3) Annual certification of implementation of the risk management 
program as described by the RMP; and
(4) If the permit is issued prior to the RMP submittal date, a 
compliance schedule for submittal of the RMP.

In addition, the RMP would be a reporting and recordkeeping requirement 
under part 70. There is no requirement to include the RMP in the 
permit.
    EPA proposes that a ``complete'' RMP would be one certified by the 
source to contain all necessary elements in sufficient detail to meet 
part 68. The necessary elements of an RMP are contained in proposed 
Sec. 68.50, and new Secs. 68.13 and 68.14. As general criteria for 
completeness, an RMP would need to address all aspects of the three 
main elements of the risk management program, i.e., hazard assessment, 
prevention program, and emergency response program. EPA intends to 
issue guidance to assist sources and permitting authorities in 
determining completeness of RMPs, including a checklist addressing the 
required elements of an RMP.
    The completeness review of the RMP would be independent of the 
completeness determination for the permit application. While the RMP 
may be submitted with the permit application, in most situations the 
RMP will be submitted separately on its own deadline, since almost all 
permit applications will have been submitted well in advance of the RMP 
deadline. Accordingly, if another state or local agency has received 
112(l) delegation as the implementing agency for section 112(r), EPA 
presumes that agency, under a cooperative agreement with the permitting 
authority, could determine completeness of the RMP. In this situation, 
the state should establish appropriate procedures to ensure review of 
the plan for completeness. For example, the agreement could specify 
that the permit authority would not be obligated to review the RMP for 
completeness and could write the permit to require submittal of the RMP 
only to the state or local implementing agency, rather than to the 
permitting authority. Or, the state might decide that the permitting 
authority should retain the responsibility to review the RMP for 
completeness, even if another state or local agency has been designated 
as the implementing agency. EPA requests comment on this approach and 
whether a designated agency should also include EPA, provided that EPA 
and the permitting agency agree that EPA should take on the 
completeness review responsibility as the implementing agency.
    The proposed permit conditions should ensure a complete RMP 
submittal, because failure to comply with these conditions would be 
enforceable as a permit violation. Other permit conditions would call 
for the source to submit a compliance schedule if it has not yet 
completed its RMP, to provide any information requested to determine 
the RMP's completeness, and to revise, update, and resubmit existing 
RMPs according to part 68 criteria. For example, when a source covered 
by section 112(r) and part 70 revises its process to add or eliminate a 
regulated substance, the source would need to prepare a revised RMP 
according to Sec. 68.50(h) and submit it to the air permitting agency 
within 6 months. Failure to do so would potentially be a violation of 
both parts 68 and 70. Further, the permit would require a certification 
of the source's implementation of its risk management program, as 
described by the RMP. With the possible exception of the compliance 
schedule, EPA believes these permit conditions will be standard terms 
applicable to all part 70 sources subject to 112(r). EPA believes these 
standard terms would live on in the permit after submittal of the RMP, 
and there would be no reason to change them after an RMP is submitted 
or revised.
    EPA is not proposing any specific requirements for part 70 permit 
applications beyond those already required in Sec. 70.5, particularly 
the requirements that sources must cite and describe all applicable 
requirements, certify compliance with those requirements, or submit 
compliance schedules as necessary. Sources that submit applications 
after promulgation of part 68 would cite and describe part 68 as the 
applicable requirement, certify compliance (or that the source will 
comply in the future), and submit a compliance schedule for meeting 
section 112(r) deadlines. Sources that handle greater than threshold 
quantities of section 112(r) regulated substances should be able to 
identify themselves as potentially subject to section 112(r) in their 
initial part 70 applications. EPA is not requiring that the RMP be 
submitted with the permit application. Given the expected promulgation 
date of part 68 and the three-year compliance date for submittal of the 
RMP, EPA expects submittal of permit applications and issuance of most 
permits will occur long before the submittal deadline for RMPs (with 
the possible exception of part 70 programs with source-category limited 
interim approvals where it could take five years from interim approval 
to issue all permits).
    EPA also believes it is not necessary to require submittal of the 
RMP as a permit revision at the submittal deadline for the RMP. EPA is 
concerned that permitting authorities may be required by state law or 
regulation to process the application and to incorporate RMP 
information in the permit if the RMP were included as part of the 
formal permit application. This result obviously would not be desired. 
The purpose of reviewing the RMP for completeness is to obtain a 
complete RMP, not to initiate any form of permit action. EPA seeks 
comment, however, on whether it should require the RMP as part of the 
permit application, or as an addendum to the application or to allow 
the permitting authority the option to ask for the RMP in either form 
for permit applications after the date plans must be submitted.
Role of Part 70 Permitting Authority
    Under today's proposal the part 70 permitting authority or the 
designated agency (for completeness review) would be responsible for:

[[Page 13537]] (1) Verifying that an RMP was submitted when required 
and that it is complete, i.e., it contains the elements required under 
Secs. 68.50, 68.13, or 68.14;
(2) Verifying that the source has submitted an annual certification 
that it is properly implementing a risk management program as required 
by part 68 and as described by the RMP;
(3) Taking enforcement action (including penalties) for failure to 
submit a complete RMP revised plan, or the annual certification; and
(4) Incorporating and enforcing permit conditions specifying a 
compliance schedule for submittal of a complete RMP.

These four tasks are the extent of the responsibilities of the 
permitting authority, unless it is granted delegation under section 
112(l) as the implementing agency. Tasks (1) and (2) could be 
transferred to another state or local agency designated by the state 
under a cooperative agreement.
    The first task of the permitting authority or designated agency 
would be to determine if the RMP is complete. The permit would require 
the source to submit the RMP by the part 68 deadline; part 68 would 
require the source to certify as to the RMP's completeness. If the RMP 
or any revisions were determined to be incomplete, the permitting 
authority or designated agency would notify the source that the 
submittal was incomplete, state the deficiencies, and give the source a 
deadline to submit the requested information and/or revise the RMP. EPA 
requests comment on the definition of a complete RMP.
    The obligation to submit an RMP to the permitting authority or 
designated agency is a reporting requirement of a permit, but the 
contents of the RMP are not permit terms or conditions. Under today's 
rule, the completeness determination required under proposed 
Sec. 68.58(b)(1) is independent of the completeness determination 
required by CAA section 502(b)(6). It is not necessary for the 
permitting authority to provide public notice of completeness findings. 
The permitting authority may, however, wish to document and provide the 
public with a notice of completeness findings using electronic bulletin 
boards or other mechanisms. EPA seeks comments on this approach. EPA 
also seeks comment on whether it should establish deadlines for the 
determination of completeness by the permitting authority. EPA could 
select the 60-day deadline used for part 70 application completeness; 
however, EPA is aware that some states may find this deadline too short 
if a high number of part 70 sources are subject to 112(r). EPA solicits 
comments on other possible deadlines: six months, one year, or by 
permit renewal.
    The permitting authority or designated agency must be able to 
determine if a source is subject to the requirement to submit an RMP. 
EPA believes that this capability is already required under part 70 
since, under that regulation, a permitting authority must be able to 
ask for any specific information that may be necessary to implement and 
enforce other applicable requirements or to determine the applicability 
of such requirements [Sec. 70.5(c)(5)]. Thus, if a source fails to 
mention whether it is subject to 112(r) in its permit application, the 
permitting authority must have the authority to ask for information on 
the application to determine section 112(r) applicability. This 
information must be included in permit applications due before the 
promulgation of part 68, since the permitting authority or designated 
agency must determine which permits will require reopening after part 
68 is promulgated if standard permit conditions reflecting part 68 are 
not added. EPA believes this approach is sufficient and is prepared to 
rely on the resourcefulness of permitting authorities in identifying 
sources subject to 112(r), but solicits comment on whether EPA should 
make more specific demands of permitting authorities in determining 
applicability with respect to section 112(r) requirements.
    The implementing agency will have the authority under Sec. 68.60 to 
require revisions to the RMP. Permitting authorities may find, as a 
result of the completeness review or during regular part 70 
inspections, that revisions are necessary. The permitting authority 
should share this information with the implementing agency for 
appropriate action. The implementing agency should also share findings 
from RMP reviews and source audits with the permitting authority. EPA 
requests comment on whether the permitting authority should be able to 
require sources to make revisions to an RMP whenever the permitting 
authority determines revisions are necessary.
    In light of the possibility that at least some permitting 
authorities may need to expand their capabilities to meet these new 
responsibilities, states should reexamine several aspects of their 
current part 70 program. First, states should assess whether they have 
adequate legal authority to review RMPs for completeness, or to require 
their submission if not part of a permit application. Second, states 
should determine if they have adequate statutory and regulatory 
authority to determine whether a source is subject to part 68. This 
authority may be vested in an emergency response agency. Third, many 
permitting authorities may face resource or budget constraints if 
additional workload were taken on to implement section 112(r) 
requirements. This might require an adjustment in fee schedules, 
because there is no reason to assume a decrease in other workload 
costs. States may wish to consider raising title V fees for all 
sources, raising permit fees only for sources subject to both parts 70 
and 68, or imposing a fee on all sources subject to part 68 to provide 
resources for state and local program implementation. Permitting 
authorities may be limited on the amount of fees collectable for permit 
activities. EPA requests comment on alternative funding mechanisms or 
the resource reductions in other programs that may be necessary to 
complete the responsibilities described in this notice. Fourth, some 
permitting agencies may need to obtain technical training in the 
implementation of section 112(r) requirements. EPA intends to provide 
training and technical assistance to implementing agencies and 
permitting authorities.
    Given these expectations, EPA is prepared to presume that approved 
part 70 permit programs are adequate to carry out the additional 
section 112(r) requirements proposed today, unless the Agency receives 
specific information to the contrary. EPA also assumes that if 
modifications to state part 70 permit programs are necessary, they can 
be made with minimal burden.
    Finally, under the CAA provisions, permitting authority liability 
would generally be determined by state law. Congress's intent in 
enacting section 112(r) was not to expand liability for any government 
entity. Liability associated with implementation of section 112(r) is 
addressed below.
Incorporation of Part 68 Requirements Into Part 70 Permits
    According to the CAA, once part 68 requirements are promulgated, 
existing sources have three years to comply with these requirements. 
New sources constructed after promulgation of part 68 must comply by 
three years after promulgation except that sources constructed later 
than 3 years after promulgation must comply upon startup. However, 
until the risk management program rule is promulgated, the only 
applicable requirement for sources is the List of Regulated Substances 
and their Thresholds rule under section 112(r)(3)-(5). Thus, EPA 
expects that when a [[Page 13538]] source submits a part 70 application 
before part 68 is final, it would identify to the permitting authority 
those activities at the source that are subject to the part 68 
requirements according to the list rule criteria, but state that the 
risk management program requirements are not yet applicable to it. This 
identification is consistent with the requirement in Sec. 70.5(c)(5) 
for the permit application to include specific information necessary to 
determine whether the source is subject to applicable requirements.
    Permits issued before promulgation of part 68 will presumptively 
need to be reopened at the time of promulgation of part 68 and revised 
within 18 months to include the part 68 permit requirements. 
Alternatively, the permitting authority could place the standard part 
68 permit conditions in a permit issued before promulgation of part 68 
and make the conditions effective upon promulgation of part 68. Unlike 
most MACT standards, EPA believes the part 68 permit requirements will 
be essentially standard conditions with little source-to-source 
variation. Consequently, incorporating part 68 requirements (unless 
they were included during initial permit issuance) should require only 
the part 70 administrative amendment process. As proposed in the part 
70 revisions for MACT standards, the permitting authority or designated 
agency should provide to the public a list of sources whose permits are 
proposed to be reopened. Public comment on the list of sources could 
help the permitting authority identify other sources subject to section 
112(r).
    Reopened and reissued permits would include all permit requirements 
of Sec. 68.58, including a compliance schedule for submittal of the RMP 
according to part 68 deadlines. After part 68 is promulgated, part 70 
permits and applications will be required to contain compliance 
schedules which, in part, require the submittal of a complete RMP.
Solicitation of Comment on Alternatives
    Although no specific alternatives are proposed, EPA seeks comment 
on two other approaches for the definition of applicable requirements, 
permitting authority responsibilities, and permit content with respect 
to section 112(r). EPA will consider various alternatives offered by 
commenters between these two approaches as alternatives to the approach 
described above.
    The first option places no additional responsibilities on the 
permitting authority beyond those set forth in EPA's guidance contained 
in an April 13, 1993, policy memorandum from John Seitz, Director of 
the Office of Air Quality Planning and Standards (OAQPS), to EPA 
Regional Air Division Directors (available in the docket). In that 
memorandum, EPA required part 70 permitting authorities to obtain legal 
authority sufficient to: (1) Determine whether a source is obligated to 
register and submit an RMP; (2) secure verification from part 70 
sources that any required submittal was prepared and submitted; (3) 
obtain annual certifications from sources that the plan is being 
implemented; and (4) include as a permit condition a compliance 
schedule for submitting a plan if the source fails to submit the plan 
when originally due. Unlike today's proposal, this option does not 
require the permitting authority to determine completeness of the plan. 
It does not make specific requirements with respect to the content of 
part 70 permits. This option would not rely significantly on part 68 to 
expand or clarify the April 13 guidance.
    An advantage of this approach is that it imposes no additional 
expectation on part 70 agencies or sources subject to both part 68 and 
part 70 beyond the April 13, 1993, policy memorandum. Therefore, 
permitting authorities would not be expected to reassess current legal 
authority, resources or fee structure for adequacy in implementing 
section 112(r).
    However, the April 13 policy guidance was prepared before the risk 
management program rule was proposed and before public comments were 
received indicating that the relationship between part 70 and part 68 
was not clear. Further, the April 13 criteria do not account for 
implementation of the risk management program by the source (as opposed 
to implementation of the plan) and there is no review of the RMP by the 
permitting authority to ensure that the plan contains the elements 
required by part 68. Consequently, in a June 24, 1994, memorandum 
(available in the docket) from John Seitz and Jim Makris, Director of 
the Chemical Emergency Preparedness and Prevention Office (CEPPO), to 
EPA Regional Division Directors, EPA indicated that the ``approval 
criteria in the April 13 memorandum * * * may not be sufficient to 
ensure compliance with all `applicable requirements' established in the 
risk management program rule.'' By not requiring a review of the RMP 
for completeness or setting forth standard permit conditions that would 
assure compliance with part 68, the permitting authority's role in 
implementing section 112(r) relies mainly on the certification of 
submittal of the RMP by the source. Air permitting authorities would be 
unable to assure compliance with the requirements of part 68 as 
required unless another state or Federal implementing agency agrees to 
become the designated agency for that state and is willing to certify 
for the air permitting authority that the RMP is complete. Such a 
program may fall short of minimal title V statutory requirements of 
assuring compliance with all applicable requirements. The Agency 
requests comment on whether the permitting agency may be able to 
satisfy title V by certification by the implementing agency.
    A second approach at the opposite end of the spectrum would require 
permits to address all the hazard assessment, prevention program, and 
emergency response program activities under part 68, in addition to the 
registration, RMP submission, program implementation and plan revision 
requirements. Each requirement in part 68 would be specified as a 
permit condition. For example, the permit would include a requirement 
for pre-startup safety reviews of all process changes or that 
accidental release mitigation equipment at the source (e.g., spray 
curtains) be tested monthly. Upon part 68 promulgation, all existing 
permits at part 70 sources would need to be reopened to add permit 
conditions relative to section 112(r). The permitting authority would 
need to examine carefully each RMP and risk management program at each 
permitted source to make sure it is complete and to craft the permit 
conditions specific to each source and then issue a new permit. 
Permitting authorities would be expected to perform periodic 
inspections of each permitted source to verify whether the risk 
management program was being implemented as described by the RMP, to 
examine program implementation to verify compliance with permit 
conditions, and to determine whether the RMP needed to be revised as a 
result of permit conditions or changes at the source.
    This approach would be consistent with approaches for 
implementation of emission standards or other air toxics provisions 
under titles III and V of the Clean Air Act because it would 
consolidate the essential elements of the source's compliance 
requirements in the permit and would ensure the full involvement of the 
permitting authority in chemical accident prevention. It also would 
provide significant enforcement leverage through the permit and through 
inspections to ensure compliance with the source's risk management 
program and with the part 68 requirements.
    This approach still does not call for the permitting authority to 
perform [[Page 13539]] audits or to examine the quality of the RMP or 
program, which EPA believes is the responsibility of the implementing 
agency. It does, however, impose considerable resource and expertise 
burden on the permitting authority. EPA does not believe it is 
appropriate to include risk management program elements as permit 
conditions since these elements will be highly source-specific and 
subject to change as the source develops and implements its program. 
The permit would need to be changed every time the program or plan 
changed. This approach appears to go well beyond the need for part 70 
permits to assure compliance with applicable section 112(r) 
requirements and duplicates other local, state, and Federal efforts.
    There may be alternatives to the two extremes described in this 
section and to the proposed approach. EPA requests comment on other 
alternatives. EPA also requests that if other approaches are offered, 
commenters address the advantages and disadvantages of the approach 
with respect to the parts 68 and 70 programs and to the overall 
chemical emergency prevention, preparedness, and response effort.
Implementation of Section 112(r) for All Sources
    Congress intended a Federal-state partnership in implementing all 
of section 112, including section 112(r). The implementation envisioned 
by Congress for accident prevention focuses on coordination and sharing 
of accident prevention information among various state and local 
agencies within the same state. Implementation of section 112(r) means 
that the implementing agency takes responsibility for the compliance 
and enforcement of section 112(r) requirements. Further, section 
112(r)(7)(B)(iii) indicates that EPA shall establish, by rule, an 
auditing system to review regularly and, if necessary, require revision 
in RMPs. Although permitting authorities are responsible for assuring 
part 70 source compliance with part 68 requirements, EPA believes that 
the implementing agency should take responsibility for RMP reviews and 
audits. Consequently, EPA believes the implementing agency must: (1) 
Receive part 68 registrations; (2) inspect sources for compliance, 
regulatory development, and enforcement; (3) receive, review, and 
periodically audit RMPs according to Sec. 68.60; and (4) require 
revision of plans when necessary to ensure compliance with the 
requirements of part 68.
    In the proposed rule, ``implementing agency'' was not defined. EPA 
is proposing to define implementing agency as the state or local agency 
that obtains delegation for an accidental release prevention program 
under subpart B of part 63 under section 112(l). The implementing 
agency could, but is not required to be the state or local air 
permitting authority. EPA encourages the permitting authority to assess 
its capabilities with respect to carrying out the duties of the 
implementing agency and, if appropriate, seek delegation for part 70 
sources. If a state or local agency does not take delegation, EPA would 
assume the responsibility for implementation of section 112(r).
    EPA is also proposing that implementing agencies develop their own 
scheme to prioritize RMP reviews, audits, and source inspections using 
criteria as proposed in Sec. 68.60. EPA would not specify the number of 
inspections, reviews, or audits to be completed. Alternatively, EPA 
could require that an implementing agency review all RMPs within five 
years of submission, or that no less than all Tier 3 submissions be 
reviewed and audited within five years of submission, or that a certain 
percentage (for example, 1.5 percent of all plans or only those in 
certain tiers), be reviewed and audited within five years of 
submission. In addition, while paper reviews of the RMPs are important, 
it is critical that implementing agencies perform audits at facilities 
to examine and compare actual prevention practices at the source with 
information contained in the RMP. EPA recognizes that this effort can 
consume considerable resources and require particular expertise for 
implementing agencies. EPA plans to issue guidance for implementing 
agencies on review and audit criteria and to develop training for 
inspections, reviews, and audits. In addition, EPA would propose that 
implementing agencies make use of safety audits performed by sources, 
as required by OSHA PSM (29 CFR part 1910.119(o)) and proposed 
Sec. 68.38, as part of this inspection process. The implementing agency 
can use this information not only to determine whether the source is 
making progress toward accident prevention, but also to offer 
assistance to sources. EPA requests comment on whether a minimum number 
of reviews and audits should be established and, if so, the minimum 
number, Tier and the basis for the minimum number and Tier, and the 
tools and training that should be developed to assist implementing 
agencies with audits at sources.
    State and local involvement in the implementation of the section 
112(r) requirements for all sources is critical to the success of the 
accident prevention program. In addition, air pollution control, worker 
safety, pollution prevention, and public safety goals can be achieved 
most effectively only through the direct involvement of state and local 
officials. EPA expects that SERCs, LEPCs, and other state and local 
emergency preparedness and response organizations will make full use of 
the chemical emergency prevention, preparedness, and response 
information in the RMP, regardless of which agency is implementing the 
section 112(r) requirements.
    A streamlined and cohesive section 112(r) program will be best 
achieved if a state or local agency takes delegation to be the 
implementing agency for all section 112(r) sources. The use of tiered 
approaches to implement the 112(r) program would assist states by 
enabling them to focus their greatest accident prevention efforts on 
those sources that pose the greatest potential risk to the community. 
These approaches attempt to minimize the additional effort needed by 
states to cover all section 112(r) sources. Table 1 below shows the 
kinds of effort and expertise necessary for review and audit of RMPs. 
If a state or local organization has the resources and expertise and is 
willing to become an implementing agency for part 70 sources, EPA 
encourages it to consider becoming an implementing agency for all 
112(r) sources, since the organization would have had the experience of 
dealing with the most complex RMPs, reviews, and audits of part 70 
sources. EPA believes that divided implementation of 112(r) for part 70 
sources and non-part 70 sources, between EPA and state and local 
agencies, could cause considerable confusion for the regulated 
community and lead to ineffective and uncoordinated chemical accident 
prevention. Implementation for all sources by one state organization 
could serve to bring the state and local coordination needed to achieve 
broad environmental, worker, and public safety goals.

                                                                        
[[Page 13540]]                                                          
                                     Table 1.--Costs to Implementing Agency                                     
----------------------------------------------------------------------------------------------------------------
                                          National annualized implementation costs ($mm)                        
 Risk management -----------------------------------------------------------------------------------------------
program and plan            Until 1999                     1999 to 2004                  Yearly after 2004      
    activity     -----------------------------------------------------------------------------------------------
                    Approach 1     Proposed rule    Approach 1     Proposed rule    Approach 1     Proposed rule
----------------------------------------------------------------------------------------------------------------
Program                                                                                                         
 management.....             1.3             1.3            1.8             1.8             1.8             1.8 
Auditor training             0.3             0.3                                                                
Technical help                                                                                                  
 for sources....             0.5             0.5            0.3             0.3             0.08            0.08
Workshops/                                                                                                      
 training.......             0.4             0.4            0.15            0.15                                
RMP filing......                                            0.06            0.06            0.05            0.05
Initial review                                                                                                  
 of plan........                                            0.5             1.1             0.5             1   
Audits..........                                            0.6             1.9             0.5             1.6 
      Totals....             2.6             2.6            3.5             5.4             2.6             4.2 
----------------------------------------------------------------------------------------------------------------
[Note that the columns do not add to the total because EPA-only activities including registration and regional  
  oversight are not included in the table. All costs are annualized and discounted at a 4 percent rate. Approach
  1 refers to the Tiering section. It assumes accident history is used to segregate sources into tiers. The     
  initial review and audits of Tier 2 sources should take 1 hour and 2 hours, respectively and that all Tier 2  
  manufacturers would be audited every 10 years. Non-manufacturers would be audited every 10 or 20 years. These 
  figures are likely to be upper-bound estimates; actual costs will vary based on the degree of selective       
  program oversight necessary and cost savings as experience is gained.]                                        

    State or local organizations that want to become an implementing 
agency for section 112(r) can seek delegation under section 112(l). 
Section 112(l) contains the processes for (1) formally transferring 
implementation and enforcement responsibility from EPA to a state or 
local agency; (2) transferring responsibility for ensuring source 
compliance with section 112 requirements to an agency other than the 
permitting authority; and (3) allowing states to implement and enforce 
their own toxics requirements in lieu of Federally promulgated section 
112 requirements. EPA's implementing regulations for section 112(l) 
outline several mechanisms for approval of state and local air toxics 
programs and for delegation of federal authorities to state or local 
agencies (58 FR 62262; November 26, 1993). Permitting authorities with 
approved part 70 programs are well equipped to seek delegation as the 
implementing agency for part 70 sources, since the state's permit 
program contains adequate authorities, adequate resources for 
implementation, and an expeditious compliance schedule as required 
under section 112(l)(5).
    Each state has the flexibility to place the program in an 
appropriate agency, including with the air permitting agency if it so 
desires. A state may want to consolidate both its occupational safety 
and process safety management programs in its worker safety agency. 
Some states may wish to have an agency that is currently a member of 
the SERC, but not the air permitting authority, serve as the 
implementing agency, provided it can meet the approval criteria of 
section 112(l) and coordinate its activities with other affected state/
local programs. In states where the SERC itself is a state agency, the 
state may want the SERC to be the implementing agency. EPA is 
requesting that states that provide comments on this notice indicate if 
they plan to implement the program, and if so, whether an agency that 
currently is a member of the SERC, or if the SERC itself will take 
responsibility.
    EPA recognizes that states have concerns about resources, 
availability of expertise, and possible liability associated with 
accidental release prevention. EPA plans to develop guidance and 
training and provide assistance to states to help build expertise and 
to illustrate how effective programs can be developed and implemented. 
EPA seeks input on the types of training and technical assistance 
states and local agencies will need to promote efficient and effective 
implementation of section 112(r) regulations for all sources. The model 
RMPs being developed for specific industry sectors and technical 
guidance to help sources comply with the accidental release prevention 
requirements also are designed to minimize the burden on state and 
local programs. EPA seeks input on the types of guidance in support of 
program implementation that would be most useful to states.
    EPA agrees that Congress did not provide funding for implementation 
of non-part 70 sources. EPA is exploring the possible expansion of CAA 
section 105 grants to fund state programs that will cover non-part 70 
112(r) sources. State and local organizations may also wish to consider 
opportunities for collecting fees specifically for section 112(r) 
activities, similar to fee-based systems used for funding EPCRA 
activities. Some states have established ``polluter-pays'' type fee 
systems that are based on multiples of the threshold quantity of 
extremely hazardous substances or section 112(r)(3) regulated 
substances handled at the source. Sources could be required to submit a 
fee to the implementing agency with their registration or with their 
RMP. EPA seeks comment on these approaches, particularly with respect 
to the experience of states that have tried or are developing user fee 
systems.
    Finally, states have raised concerns about possible liability 
associated with the section 112(r) program. Section 112(r), unlike 
other CAA requirements that deal primarily with chronic hazards, 
involves acute hazards with the potential for catastrophic accidents 
resulting in immediate deaths and injuries. Generally, the liability of 
state and local entities for their actions in handling section 112(r) 
information would be controlled by state law concerning governmental 
immunity. As the CAA and the legislative history of section 112(r) make 
clear, Congress did not intend to create new liability for governmental 
entities when it enacted the accident prevention provisions.
    Specific language in section 112(r)(1) was included to provide 
liability protection to governments and to avoid arguments from 
industry that the filing of plans with emergency planners somehow 
immunized a company from liability. Section 112(r)(1) states that, 
``Nothing in [section 112(r)] shall be interpreted, construed, implied, 
or applied to create any liability or basis for compensation for bodily 
injury or any other injury or property damages to any person which may 
result from accidental release of such substances.'' The Environment 
and Public Works Committee inserted the above-quoted provision into the 
Senate's version of the CAA Amendments explicitly because of EPA's 
concern that the general duty clause and other portions of the accident 
prevention provisions would create some governmental 
[[Page 13541]] liability in the event of an accidental release. (S. 
Rep. No. 228, 101st Cong., 1st sess., at 210 (1989).) EPA expressed 
concern that liability in the event of an accident would shift to the 
government if a source identified a potential event in a hazard 
assessment, and the Agency failed to require the source to remove or 
reduce the hazard. (Id.) Another fear was that an owner or operator 
would argue that the Agency's failure to require a hazard to be 
addressed would be a defense for a source in a liability suit for 
injuries or damages caused to a third party. (Id.) To prevent either 
result, the Environment and Public Works Committee included in the 
precursor of section 112(r)(1) virtually identical language to that 
quoted above. (Id.)
    State and local agencies are encouraged to work with their 
attorneys general to determine the extent of their sovereign immunity 
under state law. Under common law or statute, nearly all states have 
retained some immunity from tort suit. One common law theory of 
sovereign immunity that may apply in several states would be the 
immunity that extends to purely governmental activities, as 
distinguished from proprietary activities. Emergency prevention and 
response activities would be examples of traditional governmental 
activities under this theory. Another immunity theory that may apply 
provides immunity for discretionary activities (activities that involve 
judgment). Other states may have enacted specific legislation that 
prevents governments from being sued for activities connected to 
emergency response. If a state, in the judgment of its attorney 
general, lacks sufficient sovereign immunity to ensure state and local 
agencies will not be subject to liability for bodily injury or property 
damage in the event of an accidental release, then EPA encourages the 
state to enact legislation specifically providing immunity for state 
and local agencies carrying out functions under section 112(r). Of 
course, even with sovereign immunity from tort suits, EPA, states, and 
local entities may remain subject to FOIA suits, penalties for 
violation of trade secret protections under section 114(c), or 
mandatory duty suits (such as EPA's failure to promulgate regulations 
or act on listing petitions) that may allow for attorney's fees.

III. Required Analyses

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735; October 4, 1993), EPA 
must determine whether the regulatory action is ``significant,'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal government or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Under the terms of the Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action.''
    EPA prepared a draft regulatory impact analysis for the proposed 
list rule and an addendum to the analysis for the proposed risk 
management program rule. EPA has prepared a revised economic impact 
analysis (EIA) for the risk management program rule to reflect the 
final list rule, the impacts of the options being considered in this 
notice, and comments on the draft regulatory impact analysis. The 
revised EIA is available in the docket.
    In developing its supplemental notice, EPA considered creating 
three tiers for risk management program requirements described above. 
EPA analyzed the three options for assigning sources to the tiers, 
approaches 1 and 2 described in Section IIA above and the application 
of the proposed rule to all sources as approach 3. Total annual costs 
and benefits for each approach are presented in Table 2. This table 
does not include projected costs or benefits associated with three 
issues upon which EPA is taking comment in this notice: public 
participation, accident reporting, and inherently safer approaches 
because EPA's preferred approaches on these issues would impose no 
additional requirements on sources.

              Table 2.--Total Annualized Costs and Benefits             
------------------------------------------------------------------------
                                       Annual cost of    Annual benefits
     Approach      Number of sources       program         of programs  
------------------------------------------------------------------------
1................  49,200 (Tier 1)..  $104 million....  $121.5 million. 
                   72,100 (Tier 2)..                                    
                   1,300 (Tier 3)...                                    
2................  49,200 (Tier 1)..  $339 million....  $175 million.   
                   57,100 (Tier 2)..                                    
                   16,300 (Tier 3)..                                    
3................  122,600 (Tier 3).  $696 million....  $299 million    
------------------------------------------------------------------------

    Based on the final list and thresholds, EPA estimates that 
approximately 122,600 sources would be affected by the proposed rule. 
The primary cost for Tier 2 was assumed to be the RMP. Tier 3 costs are 
strongly influenced by the tiering assumptions and by whether sources 
are expected to be covered by the OSHA PSM standard. The analysis 
assumed that a source in compliance with the OSHA PSM standard for a 
process would incur no additional costs to comply with many elements of 
EPA's prevention program. In addition, for some prevention program 
elements (e.g., training), some sources were assumed to be in 
compliance because of current activities; the only additional cost for 
these sources was documentation for the element. Large chemical 
companies and all refineries were assumed to be complying with industry 
standards that are the equivalent of the prevention program. These 
sources were assumed to bear no additional costs for some elements of 
the prevention program (for processes not covered by OSHA). Because EPA 
will require sources to submit, in the RMP, information on their 
hazards and steps being taken to reduce risks, EPA expects that sources 
and processes currently implementing PSM under OSHA or industry 
standards will take additional steps to ensure that their PSM programs 
are effective. Specifically, the EIA assumed that 
[[Page 13542]] sources covered by other programs would provide more 
program oversight, would conduct more training and refresher training, 
and carry out more maintenance activities; sources were also assumed to 
implement more capital improvements. EPA notes that because of a lack 
of data, the EIA made a number of assumptions on which the cost 
estimates are based. For example, the analysis assumed the number of 
listed toxic substances at large chemical companies ranged from 4 to 
12; the analysis also assumed that the number of covered processes was 
equal to the number of substances. EPA seeks comments and any data 
commenters may be able to provide on whether these assumptions are 
reasonable.
    The draft RIA prepared for the proposed list rule based its 
benefits calculations on the assumption that manufacturers and certain 
other sources would have two significant releases per year. Many 
commenters stated that this assumption was not justified, based on 
existing accident data. Consequently, the benefits analysis has been 
revised to reflect actual accident data and is based on EPA databases, 
other accident databases, and searches of newspaper reports. Based on 
these data, the annualized cost of all U.S. accidents involving listed 
toxic substances was estimated at $245 million; the annualized cost of 
all accidents involving listed flammables was estimated at $767 
million. The costs of accidents includes deaths, injuries, evacuations, 
property damage, lost business, environmental damage, and litigation.
    Benefits attributable to the risk management program rule are 
affected by two factors: The extent to which other, similar rules 
already provide the benefit and the expected effectiveness of these 
rules when fully implemented. Most of the processes covered by EPA's 
rule are also covered by the OSHA PSM rule. When OSHA adopted the PSM 
standard, it estimated, based on anecdotal evidence, that by 1997 the 
standard would prevent 80 percent of the accidents at OSHA-covered 
sources. EPA believes that the risk management program rule will 
increase compliance with the OSHA standard and cause many OSHA- and 
EPA-affected sources to achieve a higher level of safety because of the 
public availability of the RMP and the reviews and audits that will be 
conducted by implementing agencies. The RMP submission will provide 
implementing agency officials with a better basis for identifying and 
targeting problem sources; EPA expects that the RMP information will 
also benefit state and Federal OSHA inspectors.
    Based on an industry study, the analysis estimated that the 
effectiveness of the EPA standard in accident reduction would be 50 
percent. Accident reduction from the EPA standard applies to processes 
not covered by the OSHA standard and to the 20 percent of accidents not 
prevented by the OSHA standard. EPA estimates that the annual, 
quantifiable benefits of the rule will range from $121.5 million to 
$299 million, depending on the approach.
    The quantifiable benefits are probably understated. Although the 
EIA assigns a value to the likelihood of a Bhopal-scale accident 
occurring in the U.S. in any single year, the analysis did not attempt 
to assign values to other catastrophic accidents that have occurred 
elsewhere in the world, but have not as yet occurred in the U.S. For 
example, the 1984 explosion at a LPG gas terminal in Mexico City killed 
more than 400 people offsite; an explosion in Flixborough, England, 
damaged more than 1,000 buildings offsite. Similar sources exist in the 
U.S. and have the potential to have catastrophic accidents with offsite 
impacts. Because of the difficulty of assigning probabilities and 
values to such incidents, the EIA does not include them among the 
quantifiable benefits, but these sources are covered by the proposed 
rule, and compliance with the rule will reduce the likelihood of such 
catastrophic accidents.
    Other, intangible benefits are also attributable to the rule. For 
example, the definition of offsite populations, using Census data, will 
assist both sources and the public to identify areas where 
environmental justice concerns need to be addressed. The process hazard 
analysis is likely to identify areas where pollution prevention steps 
can be implemented, which may produce cost savings and reduce potential 
health effects offsite.
    Most importantly, the information available in the RMP will have an 
intrinsic value to the public. EPA has not attempted to measure the 
value of this information, but experience with EPCRA Toxic Release 
Inventory (TRI) data indicates that such information creates many 
benefits. The simple requirement to make information public under TRI 
has stimulated industry to take steps to reduce emissions to avoid 
public concern and assure the local community that the source is a good 
neighbor. The public benefits from the reduced risk; the source 
benefits from better relations with the community. The latter can have 
direct, economic benefits to the source. Industry commenters on the 
rule noted that when the public distrusts a source, the public has 
resisted permit changes or zoning variances that the source needs to 
improve operations. Better information and the public-industry dialogue 
that follows can make it easier for sources to gain public support for 
needed changes. Government agencies and public interest groups can 
target their efforts at those sources that pose the greatest potential 
risk, rather than assuming that all sources pose a high level of risk 
or misdirecting their efforts toward sources that have effective safety 
programs.

B. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act of 1980, Federal 
agencies must evaluate the effects of the rule on small entities and 
examine alternatives that may reduce the effects. EPA has prepared an 
analysis of the effects on small entities, available as Chapter 8 of 
the EIA. EPA believes that the rule as proposed in 1993 would create a 
severe, adverse effect on small manufacturers. For the smallest 
chemical manufacturers, the initial costs of the initial proposed rule 
could equal their annual net income; for chemical companies with 20 to 
99 employees, the initial cost of the proposed rule would approach 
their annual net incomes. The initial proposed rule imposes lower costs 
on non-manufacturers and, therefore, is less likely to create an 
adverse impact on them. The tiering approach considered in this notice 
would reduce the impact on small businesses significantly. Under the 
tiering approach, the impact on small business would be small. The 
tiering approach would also substantially reduce the impact on small 
communities.

C. Enhancing the Intergovernmental Partnership

    The Clean Air Act requires EPA to develop chemical accident 
prevention regulations under section 112(r)(7) that include release 
prevention and response provisions, including RMPs. As discussed above, 
Congress intended the states to play a key role in implementing the 
rule. Both state and local agencies are mandated to receive the RMPs. 
This interrelationship of Federal, state, and local agencies is a 
continuation of the philosophy developed under EPCRA, where each level 
of government is seen as a stakeholder with important roles to play. To 
consult in a regular and meaningful way with state, local, and tribal 
officials in the development of the risk management program rule, EPA 
has met with state and local officials. Before [[Page 13543]] the 
proposed rule was drafted, EPA conducted focus groups with state and 
local officials in three states that had risk management program laws. 
EPA invited these states and several others to attend a two-day seminar 
to elicit further information. EPA has held meetings with states 
several times during the rule-making process, working through its 
Regions and through associations of state officials likely to be 
involved in implementing the rule. In addition, a large number of state 
and local agencies attended the four public hearings and submitted 
comments on the proposed rule. During the development of the 
implementation and integration provisions (Sec. 68.58), EPA consulted 
with state and local air and emergency planning agencies. EPA will seek 
further input from states during development of the final rule.

D. Paperwork Reduction Act

    The information collection requirements in this notice have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et sec. An 
Information Collection Request document has been prepared by EPA (EPA 
No. 1656.02) and a copy may be obtained from Sandy Farmer, Information 
Policy Branch; EPA, 401 M Street, SW (Mail Code 2136), Washington, DC 
20460 or by calling (202) 260-2740.
    This collection of information has an estimated reporting burden 
averaging 3 to 4 hours per response for Tier 1, 16 to 30 hours per 
response for Tier 2, and for Tier 3 10 to 88 hours per response for 
non-chemical manufacturers and 392 to 3720 hours per response for 
chemical manufacturers. There is no annual recordkeeping burden for 
Tiers 1 and 2; in Tier 3 there is an estimated annual recordkeeping 
burden per respondent averaging 11 hours (for the non-chemical 
industry) to 1000 hours (for the chemical industry). These estimates 
include time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information.
    Send comments regarding the burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch; EPA, 401 M Street, SW (Mail 
Code 2136), Washington, DC 20460; and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503, marked ``Attention: Desk Officer for EPA.'' The final Rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

List of Subjects in 40 CFR Part 68

    Environmental protection, Chemicals, Hazardous substances, 
Intergovernmental relations.

    Dated: February 28, 1995.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, the proposal published on 
October 20, 1993 (58 FR 54190) is amended as set forth below.

PART 68--[AMENDED]

    1. The authority citation for part 68 continues to read as follows:

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

    2. Section 68.3 as proposed is now amended by revising the 
introductory text, adding five definitions and revising one proposed 
definition ``Worst case release'' to read as follows:


Sec. 68.3  Definitions.

    As used in this part, all terms not defined shall have the meaning 
given to them by the Clean Air Act (42 U.S.C. 7401 et seq.). For 
purposes of Sec. 68.58 of this part, terms such as ``permitting 
authority,'' ``applicable requirement'' and ``source'' have the same 
meaning given to them in part 70 of this chapter unless otherwise 
defined in this section.
* * * * *
    Covered process means a process that has a regulated substance 
present in more than a threshold quantity as determined under 
Sec. 68.115.
* * * * *
    Designated agency means the state or local agency designated by the 
air permitting authority as the agency responsible for the review of an 
RMP for completeness.
    Full-time employee means 2,000 hours per year of full-time 
equivalent employment. A source would calculate the number of full-time 
employees by totaling the hours worked during the calendar year by all 
employees, including contract employees, and dividing that total by 
2,000 hours.
    Implementing agency means the state or local agency that obtains 
delegation for an accidental release prevention program under section 
112(l) of CAA which is subpart E of part 63. The implementing agency 
may, but is not required to be, the state or local air permitting 
agency. If a state or local agency does not take delegation, EPA will 
be the implementing agency for that state.
    Mitigation means activities, technologies or equipment that are 
designed to capture or control substances after they are released to 
the environment or upon loss of containment. Passive mitigation means 
equipment, devices or technologies that function without human, 
mechanical or other energy input.
* * * * *
    Worst case release means the release of the largest quantity of a 
regulated substance resulting from a vessel or process line failure.
    3. Section 68.10 as proposed is revised to read as follows:


Sec. 68.10  Applicability.

    (a) Tier 1. The owner or operator of a stationary source with a 
covered process that meets the eligibility criteria of Sec. 68.13 shall 
comply with Secs. 68.12--68.13 no later than [three years from the date 
of final rule publication].
    Alternative 1 for paragraphs (b), (c) and (d):
    (b) Tier 2. Except as provided in paragraphs (a), (c), and (d) of 
this section, the owner or operator of a stationary source with a 
covered process shall comply with Secs. 68.12 and 68.14 no later than 
[three years after the date of final rule publication].
    (c) Tier 3. Except as provided in paragraph (a) of this section, 
the owner or operator of a stationary source with 100 or more full-time 
employees shall comply with Secs. 68.12 and 68.15 through 68.55 no 
later than [three years from the date of final rule publication] for 
any covered process in Standard Industrial Classification Code 2611, 
2812, 2819, 2821, 2869, 2873, 2879, or 2911. For all other covered 
processes at the stationary source, the owner or operator shall comply 
with Secs. 68.12 and 68.14.
    (d) Deferred Tier 3. Except as provided in paragraph (a) of this 
section, the owner or operator of a stationary source that has 20 or 
more full-time employees and a covered process in Standard Industrial 
Classification Code 2812, 2819, 2869, 2873, or 2911 shall:
    (1) Comply with Secs. 68.12 and 68.14 no later than [three years 
from the date of final rule publication]; and
    (2) Comply with Secs. 68.12 and 68.15 through 68.55 no later than 
[eight years from the date of final rule publication]. Alternative 2 
for paragraphs (b) and (c):
    (b) Tier 2. Except as provided in paragraphs (a) and (c) of this 
section, the owner or operator of a stationary source with a covered 
process shall comply with Secs. 68.12 and 68.14 no later than [three 
years after the date of final rule publication].
    (c) Tier 3. Except as provided in paragraph (a) of this section, 
the owner or operator of a stationary source with [[Page 13544]] a 
covered process shall comply with Secs. 68.12 and 68.15 through 68.55 
no later than [three years from the date of final rule publication] if 
the stationary source has 100 or more full-time employees.
    4. Section 68.13 is proposed to be added to subpart B to read as 
follows:


Sec. 68.13  No impact sources (Tier 1).

    (a) Sources that exceed a threshold quantity only for flammable or 
explosive regulated substances.
    (1) Eligibility. The owner or operator of a stationary source that 
is subject to this part and that does not exceed the threshold quantity 
for a toxic substance shall comply with paragraph (a)(2) of this 
section if the source has not had significant accidental release for 5 
years and:
    (i) For a source that exceeds the threshold for an explosive 
regulated substance, the source is subject to 27 CFR part 55 or 30 CFR 
parts 56, 57, or 77 and the distance from the process to a public or 
environmental impact is no closer than the distance to inhabited 
buildings provided in the American Table of Distances (27 CFR 55.218) 
for the quantity of explosives in the process; or
    (ii) For a source that exceeds the threshold for a flammable 
regulated substance, the distance from the point of release under the 
worst case release scenario to a public or environmental impact is 
greater than the distance as calculated using the following formula for 
the maximum quantity present in the process:

Distance (meters) = 0.15  x  (0.1 x mass  x  hc)<SUP>1/3

where mass is the quantity of flammable substance in kilograms, and hc 
is the heat of combustion in Joules per kilogram.
    (2) Program and plan requirements. (i) The owner or operator shall 
place a sign at all normal access routes that warns the public and 
emergency responders concerning the hazard presented by the regulated 
substance at the site and provides an emergency contact telephone 
number. Such sign shall be in English and any other language commonly 
spoken as a primary language in the area.
    (ii) The owner or operator shall submit the following as a risk 
management plan to the implementing agency, the State Emergency 
Response Commission (if the implementing agency is not a member of such 
Commission), the Local Emergency Planning Committee with jurisdiction 
for the area where the source is located:
    (A) A copy of the registration required by Sec. 68.12 (this copy 
may be before the certification required by Sec. 68.12(b)(6));
    (B) The following statement:

    Based on the criteria in 40 CFR 68.13(a)(1), the worst case 
accidental release for the source described on the attached form 
(registration) presents no potential for public or environmental 
impact given the nature of the process and the chemicals stored at 
the source. For the past 5 years, this source has not had a 
significant accidental release, as defined in 40 CFR 68.3. No 
additional measures are necessary to prevent public and 
environmental impacts from accidental releases. In the event of a 
fire or a release of the regulated substance indicated on the 
registration, entry within [distance for given quantity of regulated 
substance under American Table of Distances or paragraph (a)(1)(ii) 
of this section] of the source may pose a danger to public emergency 
responders. Therefore, public emergency responders should not enter 
this area except as arranged with the contact person indicated on 
the registration. The undersigned certifies that, to the best of my 
knowledge, information, and belief formed after reasonable inquiry, 
the information submitted is true, accurate, and complete. 
[Signature].

    (iii) The owner or operator shall maintain for five years 
documentation of the determination of eligibility under paragraph 
(a)(1) of this section and a copy of the risk management plan under 
paragraph (a)(2)(ii) of this section.
    (b) Sources that exceed a threshold quantity for toxic regulated 
substances.
    (1) Eligibility. The owner or operator of a stationary source that 
exceeds the threshold quantity for a toxic substance shall comply with 
paragraph (b)(2) of this section if:
    (i) The stationary source has not had a significant accidental 
release in the last five years,
    (ii) The stationary source can demonstrate the lookup table 
distance for a worst-case release is less than the distance to a public 
or environmental receptor; and
    (iii) The emergency response plan under 42 U.S.C. 11003 addresses 
appropriate response to an accidental release at the source.
    (2) Plan and program requirements. (i) The owner or operator of a 
stationary source that meets the eligibility criteria of paragraph 
(b)(1) of this section shall submit the following as a risk management 
plan to the implementing agency, the State Emergency Response 
Commission (if the implementing agency is not a member of such 
Commission), and the Local Emergency Planning Committee with 
jurisdiction for the area where the source is located:
    (A) A copy of the registration required by Sec. 68.12 (this copy 
may be before the certification required by Sec. 68.12(b)(6));
    (B) The following statement:

    Based on the criteria in 40 CFR 68.13(b)(1), the worst case 
accidental release for the source described on the attached form 
(registration) presents no potential for public or environmental 
impact within ______ kilometers of the source given the nature of 
the process and the chemicals stored at the source. For the past 5 
years, this source has not had a significant accidental release, as 
defined in 40 CFR 68.3. No additional measures are necessary to 
prevent public and environmental impacts from accidental releases. 
In the event of an accidental release of the regulated substance 
indicated on the registration, emergency response should be 
conducted according to the emergency response plan under 42 U.S.C. 
11003, which is available at [location]. Therefore, public emergency 
responders should not enter this area except as provided under that 
plan. The undersigned certifies that, to the best of my knowledge, 
information, and belief formed after reasonable inquiry, the 
information submitted is true, accurate, and complete. [Signature].

and
    (ii) The owner or operator shall maintain for five years 
documentation of the determination of eligibility under paragraph 
(b)(1) of this section and a copy of the risk management plan under 
paragraph (b)(2)(i) of this section.
    5. Section 68.14 is proposed to be added to subpart B to read as 
follows:


Sec. 68.14  Streamlined risk management program (Tier 2).

    (a) The owner or operator of a stationary source eligible for this 
part shall comply with Sec. 68.15.
    (b) The owner or operator of a stationary source shall establish a 
prevention program which includes safety precautions and maintenance, 
monitoring and employee training measures to be used at the source to 
prevent accidental releases. The prevention program shall identify 
other federal accident prevention requirements to which the source is 
subject, including national voluntary standards and measures required 
by 42 U.S.C. 7412(r)(1).
    (c) The owner or operator of a stationary source shall prepare an 
emergency response program which documents specific actions to be taken 
in an emergency response to an accidental release, including:

(1) Procedures for informing the public and local entities about 
accidental releases;
(2) Procedures to be used on site to respond to an accidental release; 
and
(3) A description of the employee training measures used to educate 
employees regarding emergency situations.

    [[Page 13545]] (d) The owner or operator of a stationary source 
shall submit a risk management plan summarizing paragraphs (a) through 
(c) of this section to the implementing agency, the State Emergency 
Response Commission (if the implementing agency is not a member of such 
Commission), and the Local Emergency Planning Committee with 
jurisdiction for the area where the source is located. The owner or 
operator shall retain a copy of the risk management plan for 5 years.
    6. Section 68.58 is proposed to be added to subpart B to read as 
follows:


Sec. 68.58  Permit content and air permitting authority requirements.

    (a) The requirements in this section apply to sources subject to 
both part 68 and part 70 of this Chapter. Each part 70 permit shall 
contain conditions requiring the following provisions, for any activity 
and/or emission unit subject to this part:
    (1) By the deadlines set out in this part, the source shall 
register and submit an RMP or revised plan and shall certify upon 
submission that such plan is accurate and complete. Submission of the 
plan by deadlines required under this part shall satisfy the reporting 
requirements of 40 CFR 70.6(a)(3)(ii)(A).
    (2) The source shall submit any additional information requested by 
the permitting authority or other designated state or local agency 
necessary to determine completeness of the RMP.
    (3) The source shall annually certify compliance with, and 
implementation of, risk management program requirements described in 
this part and as described by the submitted RMP or revised plan.
    (4) For part 70 permits that are issued prior to the deadline 
required for registering and submitting the RMP and do not contain 
permit conditions meeting the provisions of paragraphs (a) (1) through 
(3) of this section, the source no later than [3 years from the 
effective date of the final rule] shall submit an application for a 
permit revision consistent with Sec. 70.7 of this chapter to establish 
conditions consistent with these required in paragraphs (a)(1) through 
(3) of this section.
    (5) For part 70 permits issued on or after the deadline required 
for registering and submitting the RMP, the source shall register and 
submit any plan required by this part no later than [3 years from the 
effective date of the final rule].
    (6) For new emissions units or activities at previously permitted 
part 70 sources which become subject to this part after [the effective 
date of the final rule], the source shall submit an application for 
permit revision consistent with the provisions of Sec. 70.7 of this 
chapter upon startup of such units and/or activities or no later than 
[3 years from the effective date of the final rule], whichever is 
later.
    (7) If a previously permitted part 70 source has not submitted an 
RMP as required, then the source shall provide:
    (i) A compliance plan, including a compliance schedule for the 
submittal of the required plan; and
    (ii) An application for a permit revision to establish permit 
conditions meeting paragraphs (a) (1) through (7) of this section 
unless such conditions are already contained within the part 70 permit.
    (b) The permitting authority must, at a minimum, perform the 
following tasks to meet Sec. 70.4(b)(3)(i) of this chapter with respect 
to part 70 sources subject to section 112(r) of CAA and this part.
    (1) Verify that an RMP or a revised plan is submitted when required 
by this part, and that it is complete, i.e., it contains the elements 
required under Secs. 68.50, 68.13, or 68.14;
    (2) Verify that the source has submitted an annual certification 
that it is properly implementing a risk management program as required 
by this part and as described by the applicable RMP;
    (3) Take enforcement action (including penalties) on sources that 
fail to submit a complete plan or a revised plan, an annual 
certification, or accidental release report as required by this part;
    (4) Incorporate and enforce permit conditions that specify a 
compliance schedule for submittal of a complete RMP, for permits issued 
prior to reporting deadlines of this part or if a part 70 source 
subject to this part fails to submit a complete plan as required.

[FR Doc. 95-5656 Filed 3-10-95; 8:45 am]
BILLING CODE 6560-50-P